SCMR 2009 Judgments

2009 S C M R 821

[Shariat Appellate Jurisdiction]

Present: Nasir-ul-Mulk, Ch. Ejaz Yousaf Dr. Allama Khalid Mehmood and

Allama Rashid Ahmed Jullundhari, JJ

SAJJAD ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.6(S) of 2008, decided on 4th December, 2008.

(On appeal from the judgment of the Federal Shariat Court, Islamabad, dated 16-9-2005 passed in Criminal Appeal No.141(I) of 2002).

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

----S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Constitution of Pakistan (1973), Art.203-F(2-B)---Leave to appeal was granted to the accused by Supreme Court for reappraisal of the entire evidence, keeping in view the principles of safe administration of criminal justice.

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

----S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Constitution of Pakistan (1973), Art.203-F(2-B)---Appraisal of evidence---Prosecution case rested only on the testimony of the complainant and her brother, who claimed to have seen the accused running away from the scene of occurrence after committing the crime---Nothing had been recovered from the accused to connect him with the offence---Was not understandable as to why brother of the complainant had come to visit her, when she had already left her home to visit him and why he visited his sister at day time, when he was gainfully employed---Presence of the said brother of the complainant at the spot at the relevant time, therefore, was doubtful---Absence of complainant from her house for a long time and her return at the moment when the accused was about to leave the house after the commission of the crime, would be too much of coincidence to be accepted---Claim of the complainant that she met her brothers just in front of her house had also created doubt about the timing-Complainant although claimed to have returned to her own house, but in the circumstances she was a chance witness---Conviction of accused could not be based safely only on the said highly improbable coincidence, in the absence of any other strong evidence against him---Accused was acquitted accordingly.

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

M. Siddique Khan Baloch, D.P.-G. Punjab for the State.

Date of hearing: 3rd December, 2008.

2009 SCMR 946

[Shariat Appellate Jurisdiction]

Present: Justices M. Javed Buttar, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mehmood Allama Rashid Ahmed Jullundhari, Members

Mst. SAIRA BIBI---Petitioner

Versus

MUHAMMAD ASIF and others----Respondents

Criminal Shariat Petition No.49 of 2005, decided on 25th March, 2009.

(On appeal against the judgment, dated 20-6-2005 passed by the Federal Shariat Court, Lahore in Criminal Appeals Nos.94/L, 107/L, 111/L of 2003 and Criminal Revision No.37-L of 2003).

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

----Art. 132---Cross-examination---Nature and scope---Cross-examination is continuing part of the whole statement, rather more important than the examination in chief.

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

---S. 417---Appeal against acquittal---Reversal of order---General rule---Before the order of acquittal is reversed, it must be shown that the same was not reasonable or was wrong.

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

----S. 417---Appeal against acquittal---Important and consistently followed principles on the question of setting aside an acquittal by Supreme Court, enumerated and elaborated.

Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11; PLD 1980 SC 317; PLD 1981 SC 286; 1981 SCMR 95; 1981 SCMR 415; 1981 SCMR 474; PLD 1951 FC 107; PLD 1960 SC 286; PLD 1964 SC 422; PLD 1966 SC 424; PLD 1969 SC 293; PLD 1973 SC 469; PLD 1975 SC 227; PLD 1976 SC 234; PLD 1977 SC 4; PLD 1977 SC 529 and Muhammad Iqbal v. Rana Sana Ullah PLD 1997 SC 569 ref.

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

----S. 10(2)---Constitution of Pakistan (1973), Art.203-F(2B)----Appeal against acquittal---Whole prosecution case revolved around the statement of the prosecutrix Said statement being inconsistent did not inspire confidence and hence was not worthy of credence---Even the above referred statement was not corroborated by any independent and reliable incriminatory evidence---Findings recorded by the Appellate Court while acquitting the accused respondents were neither perverse nor arbitrary---Impugned judgment did not warrant any interference by Supreme Court---Leave to appeal was declined to the prosecutrix accordingly.

Ghulam Sikandar v Mamraz Khan PLD 1985 SC 11; PLD 1980 SC 317; PLD 1981 SC 286; 1981 SCMR 95; 1981 SCMR 415; 1981 SCMR 474; PLD 1951 FC 107; PLD 1960 SC 286; PLD 1964 SC 422; PLD 1966 SC 424; PLD 1969 SC 293; PLD 1973 SC 469; PLD 1975 SC 227; PLD 1976 SC 234; PLD 1977 SC 4; PLD 1977 SC 529 and Muhammad Iqbal v. Rana Sana Ullah PLD 1997 SC 569 ref.

Ch. M. Anwar Bhinder, Senior Advocate Supreme Court for Petitioner.

Ch. Amin Javed, Advocate Supreme Court for Respondent No.3.

Saif-ul-Malook, Advocate Supreme Court for Respondents Nos.1 to 2.

Ch. Munir Sadiq, D_P.-G. Punjab for the State.

Date of hearing: 24th March, 2009.

2009 SCMR 1087

[Shariat Appellate Jurisdiction]

Present: Justice M. Javed Buttar, Chairman, Justices Zia Perwez, Muhammad Farrukh Mehmood, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhri, Members

Ch. MUHAMMAD ISMAIL----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.23(S) of 2003, decided on 14th April, 2009.

(On appeal against the judgment, dated 15-9-1998 passed by the Federal Shariat Court in Criminal Appeal No.186/L of 1994).

Expunction of Adverse Remarks from the Judgment---

----Federal Shariat Court had not given any opportunity of hearing to the Magistrate before passing adverse remarks in its judgment against him, in relation to trial of a case by the Magistrate---Supreme Court, in circumstances, converted the petition for leave to appeal into appeal allowed the same and adverse remarks narrated in the prayer of the application, were expunged---Constitution of Pakistan (1973), Art.203-F.

Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf PLD 1963 SC 51 fol.

G.S. Gideon, Advocate v. The State PLD 1963 SC 1; Abdul Khaliq v. Khan Bahadur and another PLD 1996 SC 176; Muhammad Mansha v. The State PLD 1996 SC 229; Abdul Sattar Khan, District and Sessions Judge, Lakki Murwat v. The State SCMR 2000 SC 652 and PLD 1991 FSC 66 ref.

Munir Ahmed Bhatti, Advocate Supreme Court, along with Arshad Ali Ch., Advocate-on-Record for Petitioner.

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

2009 S C M R 1115

[Shariat Appellate Jurisdiction]

Present: Justice M. Javed Buttar, Chairman, Justices Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

SULTAN MUHAMMAD and another----Appellants

Versus

THE STATE-Respondent

Criminal Appeal No.37(S) of 2001 in Jail Petition No.30(S) of 1998, decided on 24th April, 2009.

(On appeal against the judgment, dated 9-10-1998 passed by the Federal Shariat Court in Criminal Appeal No.58/Q of 1996 and Murder Reference No.3/Q of 1996).

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

----Ss. 396 & 302---Constitution of Pakistan (1973), Art.203-F---Contention of the petitioners was that the confession made by them had been excluded from consideration by the Federal Shariat Court holding same to be involuntary and the result. of coercion, therefore, the remaining evidence consisting, of the statements of prosecution witnesses and the alleged recovery of knife could not form basis for conviction---Leave to appeal was granted by Supreme Court to consider whether evidence on record was sufficient enough' to sustain conviction and sentence of death of the petitioners/accused.

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

----S. 302---Reappraisal of evidence---Where the witnesses had not seen the occurrence, post-mortem examination of the dead body was a must in order to establish the cause of death---Medical evidence though merely provides corroboration or support to substantive or circumstantial evidence, acceptability of medical evidence obviously depended upon grounds of cogency of reasoning.

Abdur Rehman Khan v. State 1998 SCMR 1778 ref.

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

----S. 302---Reappraisal of evidence---Only substantive piece of evidence against the accused was judicial confession which was discarded---Other pieces of evidence were only supportive or corroborative in nature and could only be based for conviction if these came through unimpeachable source,. which was lacking in the present case--Prosecution case, on the contrary, was replete with doubts---Presumption, however strong it may be, cannot take shape of proof---Prosecution case being not free from doubts, Supreme Court allowed the appeal of accused, judgments passed by the courts below were set aside to the extent of the accused who pursued the appeal---Accused was acquitted of all the charges and would be released forthwith, if not required in any other case.

Sheikh Muhammad Naeem, Advocate Supreme Court for Appellants.

Azam Khan Khattak, Additional Advocate-General, Balochistan for the State.

Date of hearing: 24th April, 2009.

2009 SC M R 1192

[Shariat Appellate Jurisdiction]

Present: Justice M. Javed Buttar, Chairman, Justices Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhri, Members

MUHAMMAD AKBAR alias AKKU----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.42(S) of 2008, decided on 29th April, 2009.

(On appeal against the judgment, dated 15-7-2008 passed by the Federal Shariat Court in Criminal Appeal No.108/I of 2001 and Murder Reference No.2 of 2004)

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

---Ss. 302(b), 377 & 302(c)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Constitution of Pakistan (1973), Art.203-F(2-B)---Appraisal of evidence---Sentence, reduction in---Statement of the father of the deceased was based on the statement of his son who had been subjected to sodomy, while he was injured---Said statement was fully supported by medical evidence and corroborated by the circumstances of the case---Record did not show any reason as to why the complainant and the victim would depose against the accused---Prosecution case, thus, stood proved through reliable evidence---Victim boy had lost his life due to injuries caused to him during sexual intercourse---Accused was neither armed nor he had caused any injury with a weapon to the deceased at the time of occurrence---Intention of the accused was to satisfy his unnatural lust with the victim, without any intention to cause his murder-Act of accused amounted to culpable homicide not amounting to murder covered by Exceptions 4 of S.300(old), P.P.C., which could be looked into by the Court---Cases covered by the Exceptions to the old S.300, P.P.C. read with the old S.304, P.P.C., were now intended to be dealt with under clause (c) of the new S.302, P.P.C.---Conviction of accused under S.302(b), P.P.C. was, consequently, altered to S.302(c), P.P.C. and his sentence was reduced to 14 years' R.I. in circumstances---Remaining two convictions of accused were maintained, but the sentences thereunder were also reduced to 14 years' R.I.---All the sentences were directed to run concurrently---Petition for leave to appeal was converted into appeal and partly allowed with the said modifications.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC - 274 and Gul Hassan's case PLD 1989 SC 633 ref.

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

----Ss. 302(c), 300(old) & 304(old)---Cases falling under S.302(c), P.P.C.---Intent and import---Cases covered by the Exceptions to the old S.300, P.P.C. read with the old S.304, P.P.C. are intended to be dealt with under clause (c) of new S.302, P.P.C.

Gul Hassan's case PLD 1989 SC 633 ref.

Hafiz Aman, Advocate Supreme Court for Petitioner.

Shabbir Lali, D.P.-G. Punjab for the State.

2009 SCMR 1248

[Shariat Appellate Jurisdiction]

Present: Justice M. Javed Buttar, Chairman, Justices Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullaundhri, Members

MUHAMMAD SAJJAD----Appellant

Versus

THE STATE----Respondent

Criminal Shariat Appeal No.11 of 2007, decided on 4th May, 2009.

(On appeal against the judgment, dated 7-6-2007 passed by the Federal Shariat Court in Criminal Appeal No.247/L of 2005).

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

----Ss. 302(b) & 380/411---Constitution of Pakistan (1973), Art.203-F(2B)---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence of last seen and the recoveries.

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

---Ss. 302(b) & 380/411---Appraisal of evidence---Crime was un-witnessed---Story of extra-judicial. confession had been disbelieved by the Appellate Court for good and cogent reasons---Co-workers of the complainant who happened to be present at the relevant time by chance, had only stated about the presence of the accused near the house of the complainant and they had not seen the deceased in the company of accused---Conduct of the prosecution witnesses who were chance witnesses, and their indifferent and unnatural reaction in the matter, had called for very strong and independent corroboratory evidence to believe their testimony, which was lacking in the case---Recovery of identity card of the complainant which was of no use to accused and the ordinary silver ring of the deceased of not much worth to be stolen, from the accused, had been proved through the improved statements of two constables in violation of the mandatory provisions of S.103, Cr.P.C., who were subordinate to the Investigating Officer---No explanation was available as to why the inhabitants of the locality were not associated during search---Recovery evidence, thus, was not worthy of any credence---Medical evidence did not lead to the killer---Accused was acquitted in circumstances.

Muhammad Azam v. The State PLD 1996 SC 67 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

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

----S. 103---Search to be made in presence of witnesses---Application, requirements and object---Section 103, Cr.P.C. applies with full force when search is to be made of a place situated in a locality---Section 103, Cr.P.C. is relatable to the place and not to the person---If the place to be searched is known and is situate in a locality inhabitated by the people, then two or more respectable persons from that locality must be joined to witness the search---Main object of the section is to guard against possible chicanery and concoction by joining witnesses from the locality in the investigation and if such witnesses are subsequently not produced before Trial Court on the ground of having been won-over, then the evidence of the Police Officer making the recovery can be believed, if his conduct is beyond reproach.

Muhammad Azam v. The State PLD 1996 SC 67 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

Malik Saeed Hassan, Senior Advocate Supreme Court for Appellant.

Mrs. Rukhsana Malik, Additional D.P.-G. Punjab along with Ch. Akhtar Ali, Advocate-on-Record for the State.

Date of hearing: 4th May, 2009.

2009 SCMR 1410

[Shariat Appellate Jurisdiction]

Present: Justice M. Javed Buttar, Chairman, Justices Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhri, Members

MURSAL KAZMI alias QAMAR SHAH and another----Appellants

Versus

THE STATE----Respondent

Criminal Shariat Appeals Nos.12 and 13 of 2007, decided on 16th April, 2009.

(On appeal against the judgment, dated 27-7-2007 passed by the Federal Shariat Court in Criminal Appeal No.294/I of 2002 and Murder Reference No.2/I of 2003).

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

---S. 302(b)/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Identification of accused in Court---Principle---Substantive evidence of a witness is his statement in the Court, but the purpose of identification test is to test that evidence and the safe rule is that the sworn testimony of a witness in Court as to the identity of an accused who was stranger to the, witness, requires corroboration, which should be in the form of an earlier identification proceedings.

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

----Art. 22---Penal Code (XLV of 1860), S.302(b)/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Identification test---Necessity and object---Holding of identification test becomes necessary in cases where names of accused persons are not mentioned in the F.I.R.---Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits.

Farman Ali v. State 1997 SCMR 971 ref.

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

---S. 302(b)/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Appraisal of evidence---One accused was arrested after three years and eleven months of the occurrence, while other accused was arrested after four years and eight months thereof---Memory of a witness would fade away with the passage of time and the suspect should be necessarily identified at the earliest possible opportunity after the incident---Complainant had not given any description of the accused in his first statement about their identification marks, structure, physique etc. and he even did not state therein that he could identify them---On the contrary, complainant in his statement recorded after five and half years of the occurrence in the Court had named the accused ascribing to them specific roles of firing on the deceased, which was nothing but a dishonest improvement on his part--Complainant, therefore, could not be relied upon regarding identification of accused---Other prosecution witness was a chance witness not named in the F.I.R., who had accidentally met the Investigating Officer after more than three years and nine months of the occurrence and reported the incident to him---It was the worst padding on the part of Investigating Officer and the said witness had rightly been not relied upon by the Appellate Court---Medical evidence had only indicated that the deceased had lost his life due to fire-arm injury, but it did not lead to the culprits---No crime-empties having been recovered from the spot, recovery of fire-arm from the accused was inconsequential---Accused were acquitted in circumstances.

State/Government through Advocate-General v. Sobharo 1993 SCMR 585; Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; State through Advocate-General, Sindh v. Farman Hussain and others PLD. 1995 SC 1; Sabir Ali Waseem and 3 others v. The State 2007 YLR 2142; Chellappan v. State of Kerala AIR 1979 SC 1767; Muhammad Azam v. State 1997 SCMR 1489 and Farman Ali v. State 1997 SCMR 971 ref.

(d) Criminal trial---

----Evidence---Corroboration---Principle---One tainted piece of evidence cannot corroborate another piece of tainted evidence, otherwise the very necessity of corroboration would be frustrated.

(e) Criminal trial---

----Identification---Identification of accused in Court---Validity---Identification of an accused in Court produced months after the event, cannot satisfy the requirements of law for proving his identity.

Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088 ref.

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Appellants (in Criminal Shariat Appeal No.12 of 2007).

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Appellants (in Criminal Shariat Appeal No.13 of 2007).

Zulfiqar Abbas Naqvi, Advocate Supreme Court for the Complainant (in both cases).

Ch. Munir Sadiq, D.P.-G., Punjab for the State (in both cases).

Date of hearing: 16th April, 2009.

2009 S C M R 1

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan

and Ch. Ejaz Yousaf, JJ

GOVERNMENT OF PUNJAB, through Secretary Education, Civil Secretariat, Lahore and others----Petitioners

Versus

SAMEENA PARVEEN and others----Respondents

Criminal Petitions Nos.71-L and 72-L, Civil Petitions 215-L, 216-L, 217-L, 218-L, 224-L to 236-L of 2006, decided on 29th April, 2008.

(On appeal from the judgment, dated 29-1-2008 of the Lahore High Court, Lahore passed in Cr.O.P. No.370/W and 561/W of 2007, Writ Petitions Nos.11525, 11263, 11516, 11662, 11663, 11766, 11881, 11835, 12136 and 12185 of 2007, 86, 123, 274, 345, 599, 64'3 and 11619 of 2008).

Civil service---

----Administration of justice---If a Tribunal or the Supreme Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may, not be parties to that litigation, instead of compelling them to approach the Tribunal or any other legal forum---All citizens are equal before law and entitled to equal protection of law as per Art.25 of the Constitution.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 fol.

Mst. Muqqadas Akhtar and another v. Province of Punjab through Secretary Education Department, Government of Punjab and another 2000 PLC (C.S.) 867 ref.

Ms. Afshan Ghazanfar, A.A.-G., Punjab and Rana Abdul Qayyum, D.S. (Education) Punjab for Petitioners.

S.M. Tayyab, Senior Advocate Supreme Court for Respondents (in Cr.Ps. Nos.71-L, 72-L and C.P.224-L of 2008).

Nemo for other Respondents.

2009 S C M R 4

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

MAH GUL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.212 of 2003, decided on 10th April, 2008.

(On Appeal from the judgment, dated 25-9-2002. of the Peshawar High Court, Peshawar in Criminal Appeal No.294 of 2002).

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

----S.302---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.22---Reappraisal of evidence---Identification parade---Description of accused---Benefit of doubt---F.I.R. alleged that at night time all the three accused opened fire on police party from behind the bushes due to which one police official was killed---One accused was sentenced to death by Trial Court while other two accused were awarded imprisonment for life---High Court set aside conviction and sentence awarded under S.302 P.P.C. to two co-accused and maintained death sentence of the accused---Plea raised by accused was that neither his description was mentioned in F.I.R. nor any test identification parade was conducted during investigation---Validity---F.I.R. did not contain requisite details regarding identification of accused, nor his description by appearance was given there with sufficient details---Omission so made was fatal to prosecution case, particularly when neither accused' persons after their arrest were put to 'identification test, nor any of prosecution witnesses had picked out or identified the accused at trial--Prosecution had failed to produce confirmatory evidence to prove charge against the accused and there was room for doubt, benefit whereof must go to accused---Supreme Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed.

Danial Boyd (Muslim name Saifullh) and another 1992 SCMR 196; State through Advocate-General Sindh v. Farman Hussain and others PLD 1995 SC 1; Muhammad Bashir Alam v. The State PLD 1948 SC (Pak.) 1; Ibrahim Bhak's case PLD 1955 FC 113 and Nadir Khan v. The State PLD 1992 FSC 390 ref.

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

----Arts. 2(c) & 22---Statement made in court by witness, and identification parade---Distinction---Statement made in court by witness is substantive evidence within the purview of Art.2(c) of Qanun-e-Shahadat, 1984, and identification made by witness at the parade is only corroborative in nature---Where accused was not previously known to the witness and he had only fleeting glimpse of the accused, holding of test identification parade becomes essential because usually statements of witnesses are recorded in courts much after the occurrence and, therefore, possibility that witness might have mistakenly nominated or pointed out an accused cannot be ruled out.

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

----S. 302---Appreciation of evidence---Identification of accused during trial---Scope---Evidence of identification of accused at trial, for the first time is inherently of a very weak character---Prosecution in order to carry conviction must establish that accused was correctly and properly identified by the witness at the time of occurrence and such goal could not be achieved unless evidence furnished by prosecution at trial was capable to provide answers to certain questions e.g. as to how long did the witnesses have the accused under observation; that what distance and in what light; was observation impeded in any way; had the witness ever seen the accused before and; if so how often, if only occasionally, had he any special reason for remembering the accused etc.---Needful cannot be done unless the suspect is put to identification test at the first opportunity because human beings have their own limitations and memory fades by lapse of time.

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

---S. 302---Confessional statement, belated and retracted---Recoveries--Effect---Such confessional statement and evidence of recoveries only, being purely of corroborative in nature are not capable to bring home charge against accused in absence of direct evidence.

Bahadur Khan v. The State PLD 1995 SC 336 rel.

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

----S. 302---Conviction---Principle---Unless substantive or direct evidence is available, conviction cannot be based on any other type of evidence, how convincing it may be.

Qalb-e-Abbas alias Nehola v. The State 1997 SCMR 290; Muhammad Noor v. Member-I Board of Revenue and other 1991 SCMR 643, Ali Muhammad v. The State 2005 YLR 3357 and Abdul Sattar v. The State 2008 MLD 619 rel.

Kh. Muhammad Khan, Advocate Supreme Court for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 10th April, 2008.

2009 S C M R 12

[Supreme Court of Pakistan]

Present: Munawar Ahmed Mirza and Muhammad Arif, JJ

Mst. NASIM AKHTAR----Appellant

Versus

ABDUL RASHID KHAN and 2 others----Respondents

Civil Appeal No.170 of 1995 and C.M.A. No.705 of 1997, decided on 15th December, 1998.

(On Appeal from the judgment, dated. 15-11-1993 passed by the Lahore High Court, Multan Bench Multan in R.S.A. No.181 of 1973).

(a) Supreme Court Rules, 1980---

----O. XV, R.6---Constitution of Pakistan (1973), Art.185(3)---Defective record---Two respondents had died during pendency of Regular Second Appeal before the High Court on which their legal representatives were brought on record---Appellant, by an application before the Supreme Court had stated that the names of respondents who had died had been wrongly mentioned in the civil petition for leave to appeal to Supreme Court and title of the appeal was sought to be corrected accordingly mentioning their legal representatives in the petition---Contention of the counsel for respondent was that the very institution of the civil petition against the two deceased respondents was a nullity as respective legal representatives of both the deceased were admittedly brought on the record during the pendency of Regular Second Appeal before the High Court and stated that R.6 of O.XV of the, Supreme Court Rules, 1980 did not apply in the case in . that the records in the Supreme Court did not become defective on account of anything taking an origin after the grant of leave to appeal-Validity-Held, the bringing on record of respective legal representatives of the deceased in the High Court clearly indicated that the impleadment of the deceased in civil petition before Supreme Court was a conscious act of all concerned in the process---No premium could be put on gross and culpable negligence of the appellant in making the civil petition before the Supreme Court against dead persons---Supreme Court, in circumstances, declined to take the view that bringing on record of the legal representatives of the deceased respondents through the application would tantamount to curing any alleged defect within the contemplation of Supreme Court Rules, 1980---Petition for leave to appeal, in such a situation was not properly constituted and there was no appeal properly filed in the Supreme Court---Petition was dismissed.

Aisha Bibi v. Syed Saghirul Hassan and others 1985 SCMR 1758 fol.

Muhammad Sher v. Muhammad Khan PLD 1975 Lah. 1016; Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363; Muhammad Sharif v. Dr. Khurshid Mian 1996 SCMR 781; Allah Dad v. Bagh Ali and another PLD 1968 Lah. 428; Muhammad Irshad and 4 others v. Sardar Khan 1981 CLC 124 and Ghulam Hussain v. Jam Allah Dad through Legal Heirs PLD 1989 Lah. 73 ref.

(b) Pre-emption---

----Transaction in dispute (sale of lands) was sale and not exchange---Disputed lands could not escape the incidence of pre-emption, according to law.

Kh. Muhammad Farooq, Advocate Supreme Court, Ch. Khurshid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant.

Gulzarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Dates of hearing: 14th and 15th December, 1998.

2009 S C M R 19

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Messrs BEST BUY COMPUTERS, LAHORE and another----Petitioners

Versus

DIRECTOR, INTELLIGENCE & INVESTIGATION (CUSTOMS & EXCISE), LAHORE and others----Respondents

Civil Petitions Nos.1339 and 1340 of 2004, decided on 2nd April, 2008.

(On appeal from the judgment dated 21-4-2004 in Customs Appeals Nos.19 and 20 of 2004 passed by the Lahore High Court, Lahore).

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

----S. 50(5)---Notification S.R.O. No.539(I)/91, dated 30-6-1991---Constitution of Pakistan (1973), Art. 185(3)---Advance income tax at import stage---Exemption---Petitioners were assembling computers out of computer parts imported by them and claimed exemption on the plea that they were manufacturers---Authorities withdrew the exemption on the ground that petitioners were registered as commercial importer/exporter, therefore, they were not entitled to avail benefit of exemption---Validity---Petitioners had themselves admitted that imported goods were used in assembling of computers which could not be termed or classified to be goods imported for setting up an industrial undertaking, nor it be categorized as plant, machinery, fixtures, fittings or any other equipment within the purview of clause (iv) of Notification S.R.O. No.593(I)/91, dated, 30-6-1991---Reasons weighed with High Court in rejecting appeals filed by petitioners fully conform to the requirement of law and did not call for interference by Supreme Court---Leave to appeal was refused.

(b) Discretion---

----Ill-gotten gains---Scope--Discretionary relief cannot be granted to help retention of ill-gotten gain by a party even if order of Tribunal may be defective due to any technical reason.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Ahmad Sher Khan and another v. Additional Commissioner (Revenue)/Settlement Commissioner (Lands) Sargodha 1998 SCMR 408; Messrs Vulcan Company (Pvt.) Ltd. v. Collector of Customs, Karachi and others PLD 2000 SC 825;, Abdul Haque Indhar and others v. Province of Sindh through Secy. Forest fisheries and Livestock Department, Karachi and others 2000 SCMR 907; Muhammad Sharif through L.Rs. and others v. Sultan Hamayun and others 2003 SCMR 1221; Muhammad Shoaib and others v. Government of N.-W.F.P. through the Collector, D.I. Khan and others 2005 SCMR 85 and Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630 rel.

Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in both cases).

M. Bilal, Senior Advocate Supreme Court, Sh. Izhar-ul-Haq, Advocate Supreme Court and Mumtaz A. Sheikh, Member (Legal) (in both cases).

Date of hearing: 2nd April, 2008.

2009 SCMR 25

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

CENTRAL BOARD OF REVENUE through Chairman, Government of Pakistan, Islamabad----Petitioner

Versus

MUHAMMAD NADIR KHAN HOTI and others----Respondents

Civil Petition No.237 of 2008, decided on 27th May, 2008.

(On Appeal from the judgment, dated 8-12-2007 of the Federal Service Tribunal, Islamabad in Appeal No.1467(R)(C.S.) of 2005).

Civil service---

----Promotion---Civil servant met with the required threshold and other relevant ingredients required for promotion but according to minutes of Central Selection Board he did not meet the criteria of having completed seventeen years service and. excellence and comparative merit--Authorities had failed to show the reasons of junior civil servants having been found to be better qualified for promotion---Case of civil servant had not been considered in its true perspective, he was appointed/promoted on acting charge basis on recommendation of the Board and approval of the Prime Minister---Civil servant became eligible for promotion on completion of seventeen years of service, but his case was not referred to the Central Selection Board with due diligence and authorities had failed to show any reason for such delay---Supreme Court declined to interfere in the judgment of Service Tribunal wherein it was directed that case of civil servant be immediately placed before the Central Selection Board for promotion to BPS-20 and dismissed petition for leave to appeal against judgment of Service Tribunal.

Raja Muhammad Bashir, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Raja M. Ibrahim Satti, Advocate Supreme Court and M. Akram, Advocate-on-Record for Respondent No. 1.

Sardar M. Ghazi, Advocate Supreme Court and Khalid Masood Khan, Superintendent (Establishment) for Respondent No.2.

2009 S C M R 29

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Sheikh Hakim Ali, JJ

UMAR DIN through L.Rs.----Appellants

Versus

Mst. SHAKEELA BIBI and others----Respondents

Civil Appeals Nos.1683 and 1684 of 2002, decided on 7th July, 2008.

(On Appeal from the judgment, dated 1-6-2001 passed by the Lahore High Court, Lahore in Civil Revisions Nos.30 and 31 of 2001).

Arbitration Act (X of 1940)---

----S. 26-A---Award to set out reasons---Object and scope---Failure to give reasons---Effect---Appellant was aggrieved of the award announced by arbitrators and assailed the same on the ground that arbitrators did not state any reason justifying their award-Validity--Civil court which had to make award rule of the court was granted opportunity and power to examine reasons of adjudication of subject-matter in dispute by arbitrators--As to how and on what basis arbitrators had decided and made award was to be scrutinized critically by civil court, to check-up as to whether award was based on whimsical grounds, without any foundation or reason or it was supported by and rendered on some basis, evidence and documents---Arbitrary, non-speaking, sketchy, careless and sleazy award, deciding fate of parties to dispute was not to be blessed with approval to give it authority of court by making it rule of court---Award which did not contain reasons in sufficient detail was to be rejected and was not to be approved. by civil court so as to make it rule of court---Arbitration award was enforceable and was to be granted approval of Court to be transformed into the shape and form of rule of court, when it complied with essential characteristics and requirements as were contained in S.26-A of Arbitration Act, 1940---As arbitrators did not give any reason for deciding the dispute, therefore, Supreme Court set aside the award and remitted the same to arbitrators for decision afresh---Supreme Court directed the arbitrators to grant the parties full opportunity to prove their case before them---Appeal was allowed.

Wazir Khan v. Sardar Ali 2001 SCMR 760; Allah Din & Co. v. Trading Corporation of Pakistan 2006 SCMR 614 and Muhammad Farooq shah v. Shakirullah 2006 SCMR 1657 rel.

Khalida Malik v. Farida Malik 1994 MLD 2346 and Muhammad Saghir Bhatti & Sons v. Federation of Pakistan PLD 1958 SC 221 distinguished.

Mian Allah Nawaz Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in both Appeals).

Saleheen Mughal, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos.1 to 13 (in both Appeals).

Respondent No.14 (in Appeal No.1684 of 2002): Ex parte.

Date of hearing: 7th July, 2008.

2009 S C M R 34

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD JAMIL KHAN----Appellant

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar and another----Respondents

Civil Appeal No.351 of 2006, decided on 17th June, 2008.

(On Appeal from the judgment, dated 14-4-2003 passed by the Peshawar High Court, Peshawar in SJSA No.7 of 1999).

(a) North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---

----R.5---Constitution of Pakistan (1973), Art.212---Appeal to Supreme Court---Removal from service---Appellant, while posted as Additional District Judge, had unauthorisedly `awarded' a number of weapons i.e. the case property to various private persons including his brother and to himself without any justification nor had he any competence to do so---Release of weapons being patently illegal and in access of jurisdiction not vested in the appellant he was rightly punished by the competent authority---Law relating to release of such weapons etc. elucidated---Impugned judgment of the High Court, therefore, did not suffer from any legal infirmity so as to call for interference by Supreme Court---Keeping in view the fact that all the weapons were returned and no pecuniary loss was caused to the Government or the State and that appellant, prior to the incident had more than 18 years service at his credit, the penalty of removal from service inflicted on the appellant was a bit on the higher side and ends of justice would be met with if removal from service was converted into compulsory retirement from service---Order accordingly.

(b) West Pakistan Arms Ordinance (XX of 1965)---

----S. 20---North-West Frontier Province Arms Rules, 1922, R.(ix)---Disposal of confiscated arms---Procedure.

(c) Surrender of Illicit Arms Act (XXI of 1991)---

---S. 10---Disposal of confiscated arms---Procedure.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant.

Sh. Riazul Haq, Advocate Supreme Court for Respondent No.1.

Zia-ur-Rehman, Advocate-General, N.-W.F.P. for Respondent No.2.

Date of hearing: 17th June, 2008.

2009 S C M R 40

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Sheikh Hakim Ali, JJ

Mst. SHABANA IRFAN----Petitioner

Versus

MUHAMMAD SHAM KHAN and others---Respondents

Civil Petition No.911 of 2008, decided on 15th August, 2008.

(On Appeal from the judgment, dated 30-5-2008 passed by the Islamabad High Court, Islamabad in Civil Revision No.316 of 2003).

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.12(2)---Setting aside of judgment and decree---Summary disposal---Framing of issues and recording of evidence---Principles---Principal and agent, relationship---Owner of suit property executed general power of attorney and the attorney entered into agreement to sell with plaintiff---Suit for specific performance of agreement to sell was decreed in favour of plaintiff---Owner of the suit property sought setting aside of judgment and decree under S.12(2) C.P.C., which application was dismissed by Trial Court---High Court in exercise of revisional jurisdiction remanded the application under S.12(2) C.P.C. to Trial Court for deciding the same after framing of issues and recording of evidence of parties---Validity---If any fraud was allegedly committed by attorney with owner of the property, it was the matter between agent and principal, for which principal could institute a suit in civil Court, proceed against delinquent agent through criminal proceedings and agitate his grievance therein---Owner of the property having other separate remedies against his agent, he could not be allowed to affect the transaction of plaintiff, who had paid a huge sum to the agent of owner of the property---Petition under S.12(2), C.P.C. could be decided summarily by the Court, which had 'passed final judgment, decree or order in dispute, when there were admitted facts and documents between the parties---No need to prolong the litigation, when the case ex-facie appeared to have not been filed in a wrong jurisdiction and when fraud or misrepresentation was not involved in the case or in the transaction---Matter and dispute in between principal and agent could not affect the third party, as the third party (plaintiff) was not privy to the alleged fraud, misstatement, misrepresentation or wrong doing of the agent, if any committed by the agent with his principal---Supreme Court set aside the judgment/order passed by High Court and restored that of Trial Court resulting into dismissal of application under S.12(2), C.P.C.---Appeal was allowed.

Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 distinguished.

Sheikh Zamir Hussain, Advocate Supreme Court for Petitioner.

Mehmood A. Sheikh Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

2009 S C M R 45

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

Syed ABDUL GHAFOOR SHAH----Petitioner

Versus

Syed LUQMAN and others----Respondents

Civil Petition for Leave to Appeal No.751 of 2007, decided on 14th April, 2008.

(On Appeal from the judgment, dated 8-6-2007 in F.A.O. No.11 of 2007, passed by the High Court of Balochistan, Quetta.).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant---Default and bona fide personal need of landlord---Description of property---Concurrent findings of fact by the Courts below---Ejectment of tenant from shop in question was sought on the ground of default in payment of monthly rent and bona fide personal need of landlord---Tenant denied relationship of landlord and tenant on the ground that shop in possession of tenant had different municipal number from the one mentioned by landlord in ejectment application---Rent Controller passed eviction order which was maintained by High Court---Validity---Tenant could not take advantage of the position and frustrate eviction proceedings on the pretext that there was discrepancy regarding municipal number of shop in question---Property in question clearly was the same property which was let to him on rent by co-owner of the property particularly when none else had claimed ownership/proprietary rights over the same---There being concurrent findings of both the courts below, Supreme Court did not see any ground to interfere with judgment--Leave to appeal was refused.

Abdur Rashid Awan, Advocate Supreme Court for Petitioner.

Tariq Mehmood, Advocate Supreme Court for Respondents.

Date of hearing: 14th April, 2008.

2009 S C M R 51

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

GHULAM SIDDIQUE and another----Petitioners

Versus

Malik MUHAMMAD QASIM----Respondent

Civil Petition No.45-Q of 2008, decided on 12th September, 2008.

(On appeal from the judgment, dated 25-4-2008 of the High Court of Balochistan Quetta passed in F.A.O. No.54 of 2007).

Limitation Act (IX of 1908)---

----S. 5---Constitution of Pakistan (1973), Art.185(3)---Limitation---Application for condonation of delay---Sufficient cause---Duty of applicant for condonation---Judgment of High Court was detailed and well reasoned leaving no room, for further consideration---Said judgment did not suffer from any infirmity, legal or factual, warranting interference by Supreme Court---Petitioner/applicant could not persuade Supreme Court to take a view contrary to the view expressed by the High Court---Supreme Court declined to grant leave to appeal.

It was the duty of the petitioner to keep himself informed about fate of his case in the High Court, and negligence on the part of the counsel to give him the necessary information would not per se constitute sufficient ground for condonation of delay when valuable rights have accrued to the opposite-party by efflux of time. Mere engagement of counsel does not absolve litigant of all his responsibilities and litigant as well as his counsel both are bound to see that appeal is properly and diligently prosecuted. Counsel engaged, if lacking in his sense of responsibility to Court, opposite party cannot be made to suffer on that account.

Saifullah Siddiqui v. Karachi Electric Supply Corporation Limited 1997 SCMR 926 ref.

Qari Abdul Rashid, Advocate Supreme Court for Petitioners.

Jamal Khan Mandokhel, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

Date of hearing: 12th September, 2008.

2009 SCMR 54

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ch. Ejaz Yousaf, JJ

ALAMGIR KHAN through L.Rs. and others----Petitioners

Versus

Haji ABDUL SITTAR KHAN and others----Respondents

Civil Petition for Leave to Appeal No.2686 of 2005, decided on 18th July, 2008.

(On appeal from the judgment, dated 5-9-2005 in Civil Revision No.227 of 2003 passed by the Peshawar High Court, Abbottabad Bench).

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

----S. 115---Specific Relief Act (I of 1877), Ss.42 & 54---Revision---Maintainability---Concurrent finding of facts arrived at by the courts below did not suffer from misreading or non-reading of evidence nor there was any jurisdictional error in the judgments of courts below---High Court, however after, assessing the material on record, had ultimately come to the conclusion that there was no substance in the claim of the petitioner---Revision was not maintainable in circumstances.

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

----Art. 185(3)---Petition for leave to appeal---Civil matter---Concurrent findings by courts below---Effect---Supreme Court, would not normally go beyond concurrent findings of facts recorded by courts below unless it is shown that the findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice.

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

----Art. 185(3)---Petition for leave to appeal---Civil matter---Findings of facts by courts below---Interference by Supreme Court---Principles---Supreme Court does not meddle with findings of facts reached by primary courts or High Court when it is established that findings of courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.

Amir Abdullah Khan v. Kafaitullah Khan 2008 SCMR 756; Sheikh Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460; Shaukat Ali v. Allied Bank of Pakistan Ltd. 2007 SCMR 198; Shafi Muhammad v. Khanzada Gull 2007 SCMR 368; Muhammad Zubair v. The State 2007 SCMR 437; Province of Punjab v. Muhammad Yaqoob Khan 2007 SCMR 554; Muhammad Sharif v. Muhammad Anwar 2007 SCMR 687; Mst. Muhammadi v. Ghulam Nabi 2007 SCMR 1047; Syed Ansar Raza Zaidi v. Chief Settlement Commissioner 2007 SCMR 910; Bashir Ahmed v. Muhammad Ali 2007 SCMR 1047; Punjab Industrial Development Board v. United Sugar Mills Limited 2007 SCMR 1394; Musarat Shaukat v. Safia Khatoon 1994 SCMR 2198; Naeem-ur-Rehman v. Abdul Aziz 1986 SCMR 61 and Abdul Hameed v. Ali Ahmed 1979 503 ref.

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

----Art. 185(3)---Petition for leave to appeal---Civil matter---Concurrent findings by courts below---Burden of proof---Burden lies heavily on the petitioner to show that concurrent findings of facts recorded by the courts below are not sustainable.

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

----Art. 185(3)---Petition for leave to appeal---No illegality or material irregularity in the findings of the courts below---Supreme Courts declined to interfere with such findings.

Abdul Karim Khan Kundi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent No.1.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2.

Nemo for Respondents Nos.3 to 6.

Date of hearing: 18th July, 2008.

2009 S C M R 61

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Saiyed Saeed Ashhad and Mian Hamid Farooq, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT, LAHORE and others----Appellants

Versus

Dr. ABIDA IQBAL and another----Respondents

Civil Appeal No.2175 of 2004, decided on 31st July, 2008.

(On appeal from the judgment, dated 101-7-2004 passed by the Punjab Service Tribunal, Lahore in Appeal No.708 of 2004).

(a) Punjab Civil Servants Act (XIII of 1974)---

----S. 9---Postings and transfers---In the present case, "N" was appointed as Assistant Professor through the channel of Public Service Commission while "A" could not succeed in the competition of appointment of Assistant Professor and did not appear before the Public Service Commission for the post of Associate Professor---"A", however had served outside the institution in another government institution by holding a general cadre post of Assistant Professor, it was therefore, not understandable as to why "A" and "N" could be treated differently for post of Associate Professor---Every civil servant is liable to serve anywhere within or outside the Province in any post under the Provincial Government---When both the civil servants were similarly placed, they were entitled to equal protection of law.

(b) Privately Managed Schools and Colleges (Taking Over) Order, 1972 [M.L.O. No.118]---

----Para. 7(2)(b)---Teachers of nationalized colleges were given protection of such scales of pay and other benefits as were not less favourable than those to which the teachers of equivalent qualification, seniority and experience in the colleges maintained by the government were entitled---Protection afforded by the Legislature was personal to the incumbents and there was no guarantee for the higher posts.

Province of Punjab v. Bashir Ahmed Bukhari PLD 1982 SC 27 and Shamaun v. Secretary, Education, Punjab Government and another 1981 SCMR 802 ref.

(c) Civil service---

----Posting, transfer or promotion---Held, there was no fundamental right with regard to the posting, transfer or promotion as such.

(d) Civil service---

----Appeal against promotion etc. of civil servant was pending before Supreme Court when the civil servant retired from service---Supreme Court declined to record findings adverse to the interest of retired civil servant observing that the same may prejudice her cause, who was no more in service and would have surrendered her claim and promotion and that benefits including the retirement benefits derived by her shall remain intact.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

Mian Tariq Ahmed, Additional Advocate-General with Ejaz Farrukh, Senior Law Officer for Appellants.

Amir Alam Khan, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 31st July, 2008.

2009 S C M R 70

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari, JJ

GHULAM GHOUS----Petitioner

Versus

MUHAMMAD YASIN and another----Respondents

Civil Petition No.1649-L of 2003, decided on 5th September, 2008.

(On appeal from the order, dated 16-4-2003 of the Lahore High Court, Lahore passed in Civil Revision No.1329 of 2002).

Islamic law---

----Gift---Allegation of fraud---Donor, in the present case, was original owner of the suit property and he transferred the same in favour of his two sons through a registered gift deed dated 21-12-1981 which was subsequently incorporated in Revenue Record---Possession was delivered as per revenue record to the donees---Donor, during his life time neither revoked the gift nor he made any indication of any fraud or undue influence exercised on him to constitute the said gift---Relations between the objector (other son of the donor) and the donor (father) remained embittered throughout and they were bound down under the security proceedings---Donor died on 27-6-1995 and suit against the gift was filed on 8-11-1995 by the other son---Nothing existed on the file to indicate that donor was sick and infirm at the time of execution of the gift deed and the same had been obtained by his two sons through fraud, coercion and undue pressure---Evidence produced by the objector failed to prove that fraud had been practised upon him and gift deed was not executed with free consent---Mere assertion of the objector (the other son) that a fraud had been practised upon him and he had been deprived of his share in the estate of his father, without a positive attempt on his part to substantiate the same, was of no consequence as it was very easy to assert fraud but difficult to prove the same---No exception, in circumstances, could be taken to the conclusion by the High Court concurring with the findings of the courts below that gift was validly made and no fraud was exercised

Wali Muhammad Ch. Advocate Supreme Court for Petitioner.

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

Date of hearing: 5th September, 2008.

2009 S C M R 74

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

INAMUL HAQ----Petitioner

Versus

MUHAMMAD SALIM BHATTI----Respondent

Criminal Petition No.290-L of 2008, decided on 24th September, 2008.

(On appeal from the order, dated 8-7-2008 of the Lahore High Court, Lahore passed in Criminal Original No.103/W of 2008).

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

----O. I, R.10---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan (1973), Art.185(3)---Contempt petition---Impleading of party---Scope---Intra-court appeal---Division Bench of High Court although did not specifically set aside the judgment of the Single Judge, yet for all intents and purposes rigor and impact of the judgment by Single Judge evaporated and for all legal and practical purposes, it stood merged into judgment passed by the Division Bench---Question, in the present case, was about impleading of legal heir (petitioner) of original exemptee to assert his rights in the plot in question in the civil suit, which was allowed with consent of both the parties by the Division Bench--Counsel from both the sides having stated that all the parties including the petitioner, who had moved a contempt application against the functionaries of Local Development Authority, were participating in the proceedings of suit which was pending, the judgment rendered by the Division Bench stood implemented and therefore, there was no occasion to prosecute the contempt application--Judgment of Single Judge having merged into the judgment of the Division Bench of the High Court, same could not be enforced and implemented through the impugned order of Single Judge---Single Judge had passed a very harsh and lacunal order in complete oblivision of the judgments of Division Bench of High Court and Supreme Court as it could not be conceived that parties did not apprise the Single Judge about the said judgments---Single Judge had fallen in grave legal error, when he dismissed petitioner's application under O.I, R.10, C.P.C. on the ground that his identical application in the earlier round of litigation was dismissed, which was not a sufficient cause, under the circumstances, for non-suiting a person, whose valuable rights were involved in the property and who was deprived of his right of hearing at all stages---Petitioner, in circumstances, was a necessary party in the contempt petition, more so, when in the earlier round of litigation he was condemned unheard---Judgment of Single Judge being not in the field, for enforcement of which contempt petition was filed, said petition had become infructuous---Impugned order of Single Judge being not sustainable in law deserved to be set aside---Supreme Court converting the petition for leave to appeal into appeal, allowed the same and dismissed the constitutional petition-Trial Court seized of the petitioner's suit was directed to decide the suit, within a period of six months even if it had to undertake day to day proceedings, in accordance with law.?

Mirza Aurangzeb Mirza with Mehmood-ul-Islam, Advocate-on-?record for Petitioner.

M. Saleem Shahnazi, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-record for Respondent No.1.

Nemo for Respondents Nos.2 to 13.

Date of hearing: 7th August, 2008.

2009 S C M R 82

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Muhammad Qaim Jan Khan, JJ

FAZAL MUHAMMAD----Petitioner

Versus

GOVERNMENT OF N.-W.F.P. and others----Respondents

Civil Petition No.316-P of 2007, decided on 25th August, 2008.

(On appeal from the judgment, dated 28-2-2007 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeal No.224 of 1996).

Civil service---

----Seniority---Both the incumbents were selected and appointed in the same batch---Mere fact that one of them assumed the duties earlier would not adversely affect the seniority position of the one who assumed the duties later.

Siddiq Haider Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th August, 2008.

2009 S C M R 84

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Sheikh Hakim Ali, JJ

MUHAMMAD YAMEEN alias RAJA----Appellant

Versus

THE STATE and others----Respondents

Criminal Appeal No.131 of 2006, decided on 9th July, 2008.

(On appeal from the order, dated 20-2-2006 and judgment dated 11-3-2006 of the High Court of Sindh, Karachi, passed in Special A.T. Acquittal Appeal No.60 of 2001).

Penal Code (XLV of 1860)---

---S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.161---Qanun-e-Shahadat (10 of 1984), Art. 22---Reappraisal of evidence---Benefit of doubt---Identification parade---Delay in recording statements under S.161 Cr.P.C.---All the accused were acquitted by Trial Court but High Court, in exercise of appellate jurisdiction, convicted one accused and sentenced him to imprisonment for life---Validity---Statements under S.161 Cr.P.C. of prosecution witnesses were recorded after more than one month and 21 days---Police record showed that statements of prosecution witnesses were recorded on 30-10-2000, while deposing on oath, one prosecution witness had given the date of recording of his statement as 30-11-2000, creating such doubts in statements of prosecution witnesses with regard to their presence, at the time of alleged occurrence, recording of their statements and identification parade---Identification parade had lost its worth when two prosecution witnesses had admitted that accused was produced before Magistrate in handcuffs and in the custody of police---Statements of both the prosecution witnesses was more than enough to pronounce acquittal of accused in the case---Identification test was conducted after lapse of 76 days and at the time of identification test, prosecution witnesses had not described role of each accused, which was played by him at the time of alleged occurrence---Memo of identification test had also not shown details, names and addresses of dummies---Many other infirmities in their statement were also appearing due to which identification test had lost its verity---Supreme Court set aside the conviction and sentence of accused awarded by High Court and acquitted him of the charge---Appeal was allowed.

State v. Farman Hussain PLD 1995 SC 1 and State/Government of Sindh v. Sobharo 1993 SCMR 585 ref.

Malik Shahzad Ahmed Khan, Advocate Supreme Court for Appellant.

M. Qasim Mirjat, A.A.-G. Sindh with Raja Abdul Ghafoor, Advocate-on-record for the State.

Nemo for other Respondents.

Date of hearing: 9th July, 2008.

2009 SCMR 91

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan and Ch. Ejaz Yousaf, JJ

LIAQUAT ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.155 of 2002 and Criminal Appeals Nos.103 of 2002, 6 of 2003 and 24 of 2004, decided on 24th April, 2008.

(On Appeal from the judgment of the Lahore High Court, Lahore, dated 10-1-2002 passed in Criminal Appeals Nos.621 and 1016 of 1992 and Criminal Revisions Nos.476 and 761 of 1992).

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/148/149---Reappraisal of evidence---Sentence, reduction in---Evidence---Minor discrepancies---Effect---Out of six accused, High Court convicted and sentenced two accused to death penalty under S.302 (b) P.P.C. while remaining accused were variously convicted and sentenced under other offences---Validity---Occurrence was a daylight incident, F.I.R. was promptly lodged and motive had also been established---Even accused had admitted enmity and motive in their own statements---Parties being residents of same locality were known to each other, therefore, question of false implication was improbable---Prosecution case was fully proved by ocular evidence duly corroborated by medical evidence and motive---Occurrence was even admitted by accused but in a somewhat different manner---Formation of unlawful assembly, premeditated and pre-concerted attack on complainant party resulting into two murders and causing injury to one prosecution witness was proved to be beyond any doubt---Venue of occurrence was also established as blood-stained earth had been collected from the spots where victims died---Weapons of offence were specifically mentioned by prosecution witnesses and were duly proved by medical evidence as pellets had been recovered from two dead bodies---Prosecution witnesses were put to lengthy searching cross-examination but nothing favourable to defence came out from their mouth---Minor discrepancies could not mar the prosecution case---Accused had come to a marriage ceremony without any arms or weapons and at the first moment it was one of the deceased who objected to their coming and initiated quarrel by giving slaps to two accused and disgraced them before Baraatis, therefore, keeping in view such circumstances, Supreme Court converted sentence of death penalty of two accused, into imprisonment for life, while that of the remaining accused was maintained---Appeal was allowed accordingly.

Syed Zahid Hussain Bokhari, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Appellants.

Mian Asif Mumtaz, D.P.-G., Punjab for the State.

Hasan Ahmed Kanwar, Advocate Supreme Court for the Complainant.

Date of hearing: 29th April, 2008.

2009 SCMR 99

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ijaz Yousaf, JJ

IJAZ AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.327of 2004, decided on 1st July, 2008.

(On Appeal from the judgment, dated 3-10-2002 in Criminal Appeal No.439 of 1998, Murder Reference No.285 of 1998 passed by the Lahore High Court, Lahore).

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

----S. 302---Reappraisal of evidence---Interested and related witness, evidence of---Scope---Mere relationship of witness with deceased is no ground for discarding his evidence if, he otherwise appears to be truthful and his presence at place of occurrence is probable---Relationship of witness with any of the parties would not dub him as an interested witness because interested witness is one, who has, of his own, a motive to falsely implicate accused, is swayed by a cause against accused, is biased, partisan, or inimical towards accused---Any witness who deposes against accused on account of occurrence, such witness cannot be regarded as an "interested witness"---Merely because witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy---Related witnesses sometime particularly in murder cases, may be found more reliable because they on account of their relationship with deceased would not let go the real culprit nor substitute an innocent person for him---Evidence of interested witness even cannot be outrightly discarded unless it was proved that the witness had involved the accused for some ulterior motive---In case of interested witness, only as a rule of prudence and not as a rule of law, the courts have emphasized that testimony of witness may be evaluated with more than ordinary care and corroboration may be sought from other evidence.

Sheraz Tufail v. The State 2007 SCMR 518; Khair Muhammad and another v. State 2007 SCMR 158; Amal Sherin and another v. State through A.-G., N.-W.F.P. PLD 2004 SC 371; Dosa and others v. The State 2002 SCMR 1578; Mulla Riaz Ahmad v. The State 2002 SCMR 626; Feroze Khan v. The State 2002 SCMR 99; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Muhammad Amin v. The State 2000 SCMR 1784; Saeed Akhtar and others v. The State 2000 SCMR 383; Mir Hassan and others v. State and others 1999 SCMR 1418; Sharafat Ali v. The State 1999 SCMR 329; Sardar Khan and others v. State 1998 SCMR 1823; Wahid Bukhsh and others v. The State 1997 SCMR 1424; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639; State of Rajasthan v. Hanaman AIR 2001 SC 282; State of Punjab v. Wassan Singh and others AIR 1981 SC 697; Abdul Majeed v. The State 2001 SCMR 90; Suraj Pal v. State of UP AIR 1994 SC 748; State of Karnataka v. Bheemappa 1993 Cr.LJ 2609 (SC) and State of U.P. v. Ballabh Das and others AIR 1985 SC 1384 rel.

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

----Ss. 302---Reappraisal of evidence---Evidence of natural witnesses---Acquittal of co-accused---One accused was convicted and sentenced to death whereas remaining three accused were acquitted by Trial Court---Conviction and sentence of death awarded by Trial Court was maintained by High Court---Plea raised by accused was that conviction was awarded on the basis of evidence of interested witnesses whereas on the same evidence three co-accused were acquitted---Validity---Prosecution witnesses were father and mother of deceased and were natural witnesses, therefore, their presence in the house at relevant time was rightly believed by both the courts below---Although three co-accused were acquitted of charge by Trial Court for want of proof, yet it could not be said that accused was convicted on the basis of same evidence---Both the eyewitnesses had, at trial categorically stated that co-accused inflicted Chhuri blow to deceased but they were not sure as to whether it actually hit the deceased or otherwise and no overt act was attributed to third co-accused---On the contrary the accused was specifically charged by both the eye-witnesses for inflicting gunshot injuries to deceased, therefore, it could not be said that on the basis of same evidence co-accused persons were acquitted---Supreme Court declined to interfere with the conviction and sentence of death awarded to the accused by the Courts below---Appeal was dismissed.

Qari Abdul Rashid, Advocate Supreme Court for Appellant.

M. Siddique Baloch, D.P.-G. Punjab for the State.

Date of hearing: 1st July, 2008.

2009 SCMR 105

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ch. Ejaz Yousaf and Sheikh Hakim Ali, JJ

MINISTRY OF DEFENCE through Secretary, Government of Pakistan and others----Appellants

Versus

Syed WAJDI RIZVI----Respondent

Civil Appeals No.1470 to 1487 of 2004, decided on 10th July, 2008.

(On Appeal from the judgment, dated 18-9-2003, passed by the Peshawar High Court, Abbottabad Bench, in R.F.As. Nos.13 etc. of 1998).

Land Acquisition Act (I of 1894)---

----Ss.4, 18 & 23---Acquisition of land---Compensation enhancement of---Potential value---Compensation awarded by the authorities was enhanced by Referee Judge as well by High Court---Validity---Rule that price of land acquired had to be fixed in accordance with the aim and rule that willing buyer was ready to pay and willing purchaser was prepared to receive the price so fixed for whole of the land, had to be kept in view---Entire land was rightly assessed at Rs.8,00,000 per Kanal because the price was based upon one year average price and notification issued under S.2 (a) of Finance Act, 1992, according to which land under Military Estate Officer was treated at the rates of Rs.8,00,000/-per Kanal and land for residential purpose was fixed at Rs.6,00,000/- per Kanal---Notification for acquisition under S.4 of Land Acquisition Act, 1894, was issued in year, 1990 while award was delivered on 26-5-1993, after a span of about three years, in which prices of land had increased alarmingly---Fixation of price/compensation at Rs.7,00,000 per Kanal by High Court could not be considered to be illegal so as to require setting aside of the judgment---Appeal was dismissed.

Ms. Nahida Mehboob Elahi, D.A.-G. with Raja Abdul Gharoor, Advocate-on-Record for Appellants (in all cases).

Malik Manzoor Hussain, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record, M. Bilal Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record, Qazi Ghulam Rauf, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record, and Malik Ittat Hussain Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 10th July, 2008.

2009 SCMR 109

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

GOHAR ALI and another----Appellants

Versus

Messrs HOECHST PAKISTAN LIMITED----Respondent

Civil Appeals Nos.2763 and 2764 of 2001, decided on 3rd July, 2008.

(On Appeal from the judgments, dated 19-9-2001 of the Peshawar High Court Peshawar passed in R.FAs. Nos.35 and 36 of 1999).

Damages---

----Master and servant---Wrongful dismissal---Recovery of damages---Quantum, determination of---Principles---Plaintiffs sought recovery of damages against employer company for terminating their services on false and baseless grounds---Suits filed by plaintiffs were decreed in their favour but High Court, in exercise of appellate jurisdiction, set aside the judgment and decree passed by Trial Court resultantly suits were dismissed---Validity---Application of master and servant, rule was that an employee of a corporation, in absence of violation of law or any statutory rule could not press into service constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service---Remedy for wrongful dismissal was to claim damages---There could be no yardstick or definite principle for assessing damages in such cases---Damages were meant to compensate a party who suffered an injury; it might be a bodily injury, loss of reputation, business and also mental shock and suffering---Nervous shock depended upon the evidence produced to prove nature, extent and magnitude of such suffering---Even on such basis it would become difficult to assess a fair compensation; it was discretion of Judge who, on facts of the case and considering how far the society would deem it to be a fair sum, could determine amount to be awarded to a person who had suffered a damage---Conscience of 'court should be satisfied that damages awarded would, if not completely, but satisfactorily compensate the aggrieved party---Judgment passed by High Court was set aside and that of Trial Court was restored in favour of plaintiffs---Appeal was allowed.

Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60 ref.

Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore through Mayor PLD 1996 SC 737 rel.

Nazeer Ahmad Bhatti, Advocate Supreme Court, Waseem-ud-Din Khattak, Advocate Supreme Court and Ch. Muhammad Akram Advocate-on-Record for Appellants.

Neel Keshov, Advocate Supreme Court for Respondent.

Date of hearing: 3rd July, 2008.

2009 SCMR 114

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan and Zia Perwez, JJ

MUHAMMAD TAJ----Petitioner

Versus

ARSHAD MEHMOOD and 3 others----Respondents

Civil Petition No.983 of 2008, decided on 30th July, 2008.

(On Appeal from the judgment, dated 17-6-2008 of the Islamabad High Court, Islamabad passed in Civil Revision No.323 of 2007).

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

---S. 55---Time as of the essence of contract---Principle---Question of time being essence of contract has to be decided with reference to facts of each case.

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

----S. 12---Contract Act (IX of 1872), S.55---Constitution of Pakistan (1973), Art. 185 (3)---Specific performance of agreement to sell---Time as essence of contract---Determination---Suit filed by plaintiff against defendant/owner of property was dismissed by Trial Court and earnest money was forfeited in favour of defendant---Judgment and decree passed by Trial Court was set aside by Lower Appellate Court which judgment was maintained by High Court in exercise of revisional jurisdiction---Plea raised by defendant/owner of property was that time was of the essence of contract and plaintiff failed to make payment according to terms of contract---Validity---Contracts where time was of the essence of contract, as stipulated under S.55 of Contract Act, 1872, was generally not attracted to transactions involving sale of immovable property---Merely mentioning of a specific date for performance of agreement would not make time the essence of contract but such intention was to be gathered from terms agreed amongst the parties contained in contract in the light of facts and circumstances of the case---Condition of transfer of property in the office of Capital Development Authority stipulated further condition in addition to the date---In absence of issuance of No Objection Certificate' such transfer was not possible---Within couple of days, after issuance ofNo Objection Certificate', plaintiff served legal notice calling upon owner of the property/defendant to transfer the property in his favour followed by suit for specific performance---Supreme Court did not find any ground for indulgence in concurrent judgment and decree passed by Lower Appellate Court and High Court---Leave to appeal was refused.

Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 and Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544 distinguished.

(c) Power of attorney---

----Transfer by agent in favour of his close fiduciary relations---Principle---Whenever general attorney transfers property of his principal in his own name or in the name of his close fiduciary relations, the attorney has to take special permission from the principal.

Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 ref.

Ibad-ur-Rehman Lodhi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 30th July, 2008.

2009 S C M R 117

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

MUHAMMAD SALEEM KHAN----Petitioner

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN and others---Respondents

Civil Petition No.982 of 2007, decided on 14th April, 2008.

(On Appeal from the judgment, dated 31-10-2007 of the Federal Service Tribunal, Islamabad passed in Appeal No.992(R)(C.S.) of 2004).

Civil service---

----Promotion---Adverse remarks in the ACR which were not communicated to the civil servant would be ignored in case of promotion---If a civil servant, who had not been considered for promotion at a stage and was subsequently promoted and no order for inter se seniority had been passed by the competent authority, then such civil servant would be considered to have been promoted in the same batch as his juniors, meaning thereby that he will maintain the seniority of his batchmates.

Abdul Jabbar Khan v. Government of Sindh 1996 SCMR 850 and Muhammad Farooq Chauhan v. The Province of Punjab PLD 1987 SC 271 ref.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ms. Nahida Mehboob Ellahi, D.A.-G. and M.S. Khattak, Advocate-on-Record for Respondents Nos.1 and 2.

Nemo for Respondents Nos.7, 11, 12, 20, 21, 24.

Other respondents in person.

2009 S C M R 120

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Syed Sakhi Hussain Bokhari and Muhammad Farrukh Mahmud, JJ

MUHAMMAD JAMIL----Petitioner

Versus

MUHAMMAD AKRAM and others----Respondents

Criminal Petition No.227-L of 2007, decided on 3rd September, 2008.

(On Appeal from the judgment, dated 20-2-2007 passed by Lahore High Court, Multan Bench in Criminal Appeal No.624 of 2002).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal of accused by High Court---Complainant and his two sons, according to F.I.R., had seen three persons coming out of their house, who could be identified by them---Accused being servant of the complainant would have been named in the F.I.R. if he was one of the said three persons---Complainant and his son had made dishonest improvements during trial and their statements were correctly discarded by both the Courts below---Rejection of direct evidence by the lower Courts was not challenged by the counsel of the complainant and he had tried to base his case on circumstantial evidence---Case against accused being one of direct evidence, other pieces of evidence were to be used for corroboration or in support of direct evidence---When the direct evidence was disbelieved then conviction could not be safely based on corroborative or confirmatory evidence---Recovery of blood-stained "Chhuri" after one month of the occurrence from an open plot not in exclusive possession of accused, was rightly disbelieved, particularly when blood on the "Chhuri" was likely to disintegrate meanwhile---Recovery of cloth after 21 days of the incident from the shop of the complainant himself was also not believable, as it was most unlikely for the accused to come to the shop of the complainant and conceal the role of the cloth in that shop---Injuries on the hand of the accused were of no avail to the prosecution, because if the same had been received during the occurrence, prosecution witnesses must have spotted them---Accused had no motive to commit the offence---Finding of acquittal recorded in the impugned judgment was not perverse, illogical, unconscionable and contrary to law and acts---Leave to appeal was declined to complainant accordingly.

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

----S. 302(b)---Appreciation of evidence---Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence---When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence.

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court for Petitioner.

Irshad Hussain Bhatti, D.P.-G. for the State.

Date of hearing: 3rd September, 2008.

2009 SCMR 124

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Muhammad Qaim Jan Khan and Muhammad Akhtar Shabbir, JJ

MUHAMMAD NAWAZ MINHAS and others----Petitioners

Versus

Mst. SURRIYA SABIR MINHAS and others----Respondents

Civil Petitions Nos.834 and 835 of 2008, decided on 13th August, 2008.

(On appeal from the judgment, dated 19-4-2008 passed by the Islamabad High Court, Islamabad in Civil Revisions Nso.37 and 38 of 2005).

(a) Benami transaction---

----Onus of the particular sale/purchase if Benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so---Principles---Determining factors to be taken into consideration enumerated.

The onus of the particular sale/purchase if "Benami" and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of "Benami" or establish circumstances reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not un-often such intention is shrouded in a thick veil', which cannot be easily pierced through. Despite that such difficulties do not relieve the person taking the plea of "Benami" transaction to be Benami of any part of the serious onus that rests on him. The question, whether a particular sale isBenami' or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, yet in determining the probabilities and for gathering the relevant indicia, the courts have usually laid down the criteria to determine the `Benami' transaction. Determining factors to be taken into consideration are enumerated as under:-

(i) Source of construction;

(ii) from whose custody the original title, bill and other documents came in evidence;

(iii) who is in possession of the suit property; and motive for Benami transaction.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Muhammad Siddiqi through Attorney v. Messrs T.J. Ibrahim & Co. 2001 CMR 1443; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Mv. MD. Abdul Majid and others v. MD. Jainul Abedin and others PLD 1970 Dacca 414 and Jane Margrete William v. Abdul Hameed Mian 1994 CLC 1437 ref.

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

----Art. 185(3)---Benami transaction---Findings of all the three courts below on the question of fact did not suffer from any illegality, infirmity, misreading or non-reading of evidence---Supreme Court, in such like cases, was always reluctant to interfere with the judgments of the lower courts.

Khalid Mehmood v. Abida Perveen 2003 SCMR 18 ref.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court (in both cases) for Petitioners.

Abdur Rashid Awan, Advocate Supreme Court for Respondents.

Date of hearing: 13th August, 2008.

2009 SCMR 129

[Supreme Court of Pakistan]

Present: Muhammad Moosa Khan Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

ZARAI TARAQIATI BANK LTD., ISLAMABAD and another----Petitioners

Versus

AFTAB AHMED KOLACHI and another----Respondents

Civil Petition No.1024 of 2008, decided on 27th August, 2008.

(On Appeal from the judgment and order of the High Court of Sindh, Bench at Larkana, dated 22-5-2008 passed in Constitution Petition No.22 of 2008).

Civil service---

----Dismissal from service---Back-benefits---Service Tribunal, on appeal, reinstated the employee and allowed the employers to conduct a fresh enquiry and left the question of back-benefits dependant upon the result of fresh enquiry proceedings---Service Tribunal further directed that in case of failure of the employers to initiate and conclude the de novo proceedings within a period of four months the employee shall be entitled to all the back benefits---Employee, however, could get the relief of his reinstatement only by resorting to the constitutional petition before High Court---High Court had not barred the employers/Bank from conducting the enquiry but had passed directions for completing the enquiry expeditiously preferably within the period of three months and direction to the employee to cooperate in holding the enquiry---Employers/Bank, however could not initiate enquiry proceedings within the period of four months stipulated by the Service Tribunal, as a consequence thereof, they had been directed to make payment of back benefits to the employee---Effect---Held, such directions of the High Court were neither perverse nor fallacious, rather absolutely just and proper as the employers could not be permitted to seek premium for the acts of apathy, stoicism and impassivity, displayed by them---No case for grant of leave to appeal to Supreme Court was, thus made out---Petition for leave to appeal was dismissed--Constitution of Pakistan (1973), Art.185(3).

Haider Hussain, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 27th August, 2008.

2009 S C M R 133

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari JJ

FAISAL HUSSAIN BUTT----Petitioner

Versus

THE STATE and another----Respondents

Civil Petition No.940-L of 2008, decided on 11th November, 2008.

(On appeal from the judgment, dated 27-5-2008 passed by Lahore High Court, Lahore in Writ Petition No.1265 of 2008).

National Accountability Ordinance (XVIII of 1999)---

---Ss. 9(a)(xii) & 9(b)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Delay in trial---Allegation against accused was that he along with his co-accused misappropriated huge amount from bank, where he was serving as incharge CD Department---Allegation against accused persons was that they opened accounts of various persons and prepared forged record and obtained about Rs.12 Crore through on-line process from different branches of country without depositing any amount--Plea raised by accused was delay in conclusion of trial---Validity---Co-accused with similar allegation were in judicial lock-up and facing trial and the case was fixed for trial---Supreme Court declined the grant of bail to accused---Judgment passed by High Court dismissing constitutional petition of accused was just and proper---Accused failed to point out any illegality or infirmity in the judgment passed by High Court, warranting interference by Supreme Court---Leave to appeal was refused.

Ch. Riasat Ali, Advocate Supreme Court for Petitioner.

Qazi Misbah-ul-Hassan, Senior Prosecutor NAB and Rana Naeem Sarwar, Addl. D.P.-G. NAB for Respondents.

Date of hearing: 11th November, 2008.

2009 S C M R 135

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ISHAQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.592 of 2006, decided on 22nd April, 2008.

(On Appeal from the judgment, dated 28-2-2005 of the Lahore High Court, Lahore passed in Criminal Appeal No.186-J of 2000).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by Supreme Court to consider that death sentence could not be awarded to him as his case fell under Ss.306(c) and 307(c), P.P.C. read with S.308(2), P.P.C.

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

----S. 302(b)---Reappraisal of evidence---Participation of accused in the commission of the offence was proved on record, who had caused repeated Chhuri' blows on the persons of both the deceased and murdered his wife and mother-in-law in a callous manner---Ocular account furnished by complainant was fully corroborated by medical evidence, motive, recovery ofChhuri' at the instance of accused and positive report of serologist---Brutal and atrocious manner in which the accused had committed both the murders did not call for any leniency in the sentence---Impugned judgment did not suffer from any illegality or infirmity---Conviction and sentence of accused were upheld accordingly.

Muhammad Ajmal v. The State PLD 2003 SC 1 ref.

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

----S. 302(b)---Sentence---Circumstantial evidence---Death sentence can be awarded to accused on circumstantial evidence, provided the circumstances constitute a continuous chain without missing any link, combined effect of which establishes the guilt of accused beyond any shadow of doubt.

Malik M. Kabir, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G. Punjab for the State.

Complainant in person.

Date of hearing: 22nd April, 2008.

2009 S C M R 141

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ASLAM (AMIR ASLAM) and others----Petitioners

Versus

DISTRICT POLICE OFFICER, RAWALPINDI and others----Respondents

Civil Petitions Nos.652 and 653 and Criminal Petition No.270 of 2008, decided on 21st August, 2008.

Civil Petitions Nos.652 and 653 of 2008

(On Appeal from the judgment, dated 28-4-2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petitions Nos.55 and 179 of 2008).

and Criminal Petition No.270 of 2008

(On Appeal from the order, dated 22-7-2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No.604/B of 2008).

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

----Art. 9---Security of person---Safeguards as to life and liberty---Duty of Courts-Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person---Where the liberty of a citizen is involved, the action initiated by the police when found to be mala fide the Court should not hesitate to step in and grant relief to the citizen.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss.561-A, 173 & 344---Constitution of Pakistan (1973), Art.185(3)---Quashing of proceedings---Accused was in jail for the last over eight months---Not a single witness had so far been examined in the case' and the trial was being delayed on one pretext or the other---Examination of the accused conducted by the Medical Board pursuant to Court's order had revealed a number of multiple injuries on his person and fracture of his one leg, which showed the atrocities committed by the police---No traces of "Charas" were found in the initial report of the Chemical Examiner who had asked for further sample, for examination of which extraordinary reasons were required---Formalities of Ss.173 and 344, Cr.P.C. had not been complied with and challan against the accused had not been submitted within the stipulated period, resulting in grave miscarriage of justice---Material on file did not make out any offence against the accused, charge on the face of it was groundless and no possibility of conviction of accused was present---Charge having been framed by Trial Court was no bar in the way of quashment of proceedings, continuation of which would be a futile exercise and wastage of time--Petitions for leave to appeal were consequently converted into appeals and allowed and impugned F.I.Rs. were quashed accordingly, with the direction to Jail Authorities to release the accused.

Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Maqbool Rehman v. The State 2002 SCMR 1076; The State v. Amjad Ali PLD 2007 SC 85; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 and Mazhar Hussain v. Ishtiaq Hussain and another PLD 1990 Lah. 249 ref.

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

----S. 36---Report of Government Analyst---Re-examination of recovered material---Scope---Once a substance had been tested, the extraordinary reasons must exist and must be given before directing fresh examination of such a substance.

The State v. Amjad Ali PLD 2007 SC 85 ref.

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

----Ss 344 & 173---Detention of accused in police custody due to non-filing of challan in terms of S.173, Cr.P.C.---Effect---Under S.344, Cr.P.C. it is the duty of the Police Officer to furnish justification for detention of accused in custody if challan under S.173, Cr.P.C. has not been filed and trial has not commenced, otherwise in absence of report of a Police Officer of challan, detention of the accused would be unjustified and against the provisions of law.

Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 ref.

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

---S. 561-A---Quashing of proceedings---Framing of charge---Effect---Framing of charge in the case by Trial Court does not debar burying of the proceedings by way of quashment---No invariable rule of law existed in this regard and it depended on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud.

Sardar M. Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Ch. Munir Sadiq, D.P.-G., Nazir Ahmed, S.H.O., Muhammad Khali, Investigating Officer Police Station Civil Lines, Rawalpindi for Respondents.

Date of hearing: 21st August, 2008.

2009 S C M R 150

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Muhammad Qaim Jan Khan, JJ

SHAHZAD AHMED----Petitioner

Versus

Mian MUAZZAM SHAH and others----Respondents

Civil Petition No.1195 of 2008, decided on 16th September, 2008.

(Against the judgment, dated 18-6-2008 passed by the Federal Service Tribunal, Islamabad in Appeal No.195(R)(C.S.) of 2006).

Civil Servants (Seniority) Rules, 1993---

----R. 6---Constitution of Pakistan (1973), Art.212(3)---Seniority of promotee/appointee---Principles---Promotee was promoted in accordance with the provisions of R.6, Civil Servants (Seniority) Rules, 1993 in the same Calendar year in which other three persons were appointed by initial appointment---Rule 6, Civil Servants (Seniority) Rules, 1993 related only to the actual dates of promotion and appointment for purposes of assignment of seniority and did not consider other factors like the dates of recommendations or selection by the Public Service Commission---No law existed which permitted that appointees could be deemed to have been appointed in the years when they were merely recommended and selected for appointment by the Public Service Commission; they were appointed from the dates as specified in their appointment letters---Action of the Ministry in revising the seniority list was against the law and Rules---Promotion of the appointee in the meanwhile to next grade, or for that matter the promotion of other two appointees in the meanwhile in the next grade, would not change the fact that promotee was senior to them---Petition for leave to appeal was dismissed.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2009 S C M R 154

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud JJ

Chaudhry MUHAMMAD SHARIF----Applicant

Versus

THE STATE and others----Respondents

C.M.A. No.2175 of 2008 and Civil Appeal No.1224 of 2007, decided on 26th August, 2008.

(On Appeal from the judgment, dated 25-11-2004 passed by the High Court of Sindh, in C.P. No.D-1176 of 2004).

National Reconciliation Ordinance (LX of 2007)---

---S. 7---National Accountability Ordinance (XVIII of 1999), Ss.9/10 & 5(a)---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---High Court vide impugned order had directed for joint trial of all the accused persons including the present accused---During pendency of his appeal before Supreme Court accused had filed a petition for acquittal in the case on the ground that his case was covered under S.7 of the National Reconciliation Ordinance, 2007---Contention was that inquiry in the present matter was started on 29-12-1996 with a Source Report about a company in which the share of accused was 5%---Inquiry was continued by the F.I.A. and then by Ehtesab Commissioner and after completion of investigation the case was sent up before the Accountability Court for trial---Case of accused was contended to be fully covered by S.7 of the National Reconciliation Ordinance, 2007, as proceedings under investigation included inquiry as defined in S.5(a) of the National Accountability Ordinance, 1999---Validity---Held, since the case was pending before the Trial Court, it was appropriate that the accused might prefer the application under S.7 of the National Reconciliation Ordinance, 2007, before the Trial Court, which, if preferred, was directed to be disposed of on merits within one week's time---Appeal was disposed of accordingly.

Ahmad Riaz Sheikh and others v. The State Criminal Miscellaneous Application No.62 of 2008 in Criminal Petition No.349 of 2005 ref.

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

Dr. M. Asghar Rana, Additional D.P.-G. NAB for Respondents Nos. 1 and 2.

Sh. F.M. Javed, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Respondent No.3.

Mukhtar Ahmad co-accused (present in Court) on Courts call.

2009 S C M R 157

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sheikh Hakim Ali, JJ

FAROOQ IMRAN----Petitioner

Versus

Group Captain (R.) NAEEM AHMED SIDDIQUI----Respondent

C.P.L.A. No.2850-L of 2000, decided on 31st October, 2008.

(On appeal from the judgment of Lahore High Court, Lahore, dated 25-9-2000 passed in Civil Revision No.910 of 1990).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell property---Decree in the suit was passed in a compromise between the parties with a condition precedent that the party will deposit the balance amount on specified date---Said party failed to deposit the amount by the specified date and sought extension of time---Validity---Held, time had rightly not been extended by the Trial Court as well as High Court, which could only be extended with the consent of opposite party---Principles---Petition for leave to appeal was dismissed against the order of High Court in circumstances.

Hadayatullah v. Murad Ali Khan PLD 1972 SC 69 and Shabbir Ahmed v. Zahoor Bibi PLD 2004 SC 790 distinguished.

Chaudhry Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Petitioner.

Respondent in person.

Date of hearing: 31st October, 2008.

2009 S C M R 160

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sh. Hakim Ali, JJ

Dr. MUHAMMAD SHAHBAZ MUFTI----Petitioner

Versus

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

C.P.L.A. N6.1547-L of 2008, decided on 30th October, 2008.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 22-8-2007 passed in Appeal No.1598 of 2007).

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

----S. 5(1)(a) & Explanation---Constitution of Pakistan (1973), Art.212(3)---Communication to accused civil servant, the charges and the statement of allegations by the Inquiry Committee---Enquiry Officer had been saddled with the duty only to communicate to the accused/civil servant the charges and the statement of allegations, otherwise, the statement of allegations and charges were to be prepared and issued by . the competent authority, and if the competent authority had directly issued and served the charge-sheet and statement of allegations upon the civil servant, the aim, purpose and spirit was duly served by the provisions of S.5(1)(a) & Explanation, Punjab Removal from Service (Special Powers) Ordinance, 2000.

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

----S. 7---Enquiry Officer was conferred with the powers under S.7, Punjab Removal from Service (Special Powers) Ordinance, 2000 to regulate its own procedure.

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

----Ss. 5 & 7---Constitution of Pakistan (1973), Art.212(3)---Communication of charges and allegations against accused civil servant---In the present case, first charge levelled against the civil servant was wilful absence from duty for about seven months---While submitting written reply, no specific explanation, as to how the allegation was incorrect or that the civil servant had been attending the office or to his assigned work, was mentioned---No proof was appended to the written, reply to disprove the allegation; same was the case with the other charges levelled against the civil servant which were considered to have been proved against him---Judgment rendered by Service Tribunal against the civil servant could not be held to be illegal, and amenable to be interfered with by the Supreme Court---Petition for leave to appeal by civil servant was dismissed.

Talaat Farooq Sheikh, Advocate Supreme Court and Ch.. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.

Akhtar Ali Qureshi, A.A.-G. Punjab for Respondents.

Date of hearing: 30th October, 2008.

2009 S C M R 166

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. and Ch. Ejaz Yousaf, J

TAHIR JAVED----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.770 and 771 of 2006, decided on 5th September, 2008.

(On appeal from the judgment, dated 3-5-2005 in Criminal Appeal No.339-J of 2002 passed by the Lahore High Court, Lahore).

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

----S. 302(b)/34---Appraisal of evidence---Benefit of doubt---Occurrence was unseen and the prosecution case had rested only on circumstantial evidence---Extra-judicial confession coming from unimpeachable source and corroborated by trustworthy evidence could only be used against the accused---In the present case extra-judicial confession having been made by accused in the presence of a number of other persons appeared to be quite improbable, because confession of such a heinous offence like murder was not normally made in the public---Extra-judicial confession was not corroborated from any independent source, inasmuch as in pursuance of the confession even the place of occurrence where the deceased was allegedly murdered, was not pointed out by any of the accused persons---Trial Court, in the absence of any corroboratory evidence, could not safely rely on the evidence of extra-judicial confession---No explanation had been offered at the trial as to why the dagger recovered at the instance of accused had reached the Laboratory after a delay of one month and four days after its dispatch by the police---Evidentiary value of the Chemical Examiner's report was therefore, greatly, marred---Report of Serologist having not been tendered in evidence, the dagger could not be said to be stained with human blood---Evidence of recovery of dagger, therefore, was of no use to prosecution---Despite the complainant having gained knowledge about the deceased being seen in the company of accused much earlier, he did not inform the police in time regarding involvement of the accused in the case and this omission was fatal to prosecution case---Occurrence, thus, had not taken place in the manner as asserted by the prosecution---Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

Ahmed v. The Crown PLD 1951 PC 107; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Ziaul Rehman v. The State 2001 SCMR 1405; Tayyab Hussain Shah v. The State 2000 SCMR 683 and Sarfraz Khan v. The State and others 1996 SCMR 188 ref.

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

----S. 302(b)/34---Circumstantial evidence---Extra-judicial confession---Extent and scope---Extra-judicial confession can be used against the accused only when it comes from an unimpeachable source and trustworthy evidence is available to corroborate the same.

Ahmed v. The Crown PLD 1951 PC 107; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Ziaul Rehman v. The State 2001 SCMR 1405; Tayyab Hussain Shah v. The State 2000 SCMR 683 and Sarfraz Khan v. The State and others 1996 SCMR 188 ref.

S.M. Nazim, Advocate Supreme Court for Appellant (in Criminal Appeal No.770 of 2006).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.771 of 2006).

Mian Asif Mumtaz, D.P.-G. Punjab for the State.

Date of hearing: 5th September, 2008.

2009 S C M R 173

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

SHAFI MUHAMMAD SAND----Petitioner

Versus

GOVERNMENT OF SINDH and another----Respondents

Civil Petition No.267-K of 2008, decided on 4th November, 2008.

(On appeal against the judgment, dated 31-1-2008 passed by Sindh Service Tribunal at Karachi in Appeal No.368 of 2005 (Shafi Muhammad Sand v. Government of Sindh and another).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Departmental order of reinstatement nowhere mentioned any minor penalty for the civil servant---Contention of the civil servant was that in view of reinstatement order no minor penalty could be imposed without notice to the civil servant and a proper inquiry under the Rules, consequently the civil servant was entitled to be proceeded again under the relevant Rules which exercise had yet not been taken---Validity---Held, prima facie it appeared that the civil servant was condemned unheard---Supreme Court while granting leave, converted the petition for leave to appeal into an appeal and directed the same to be listed in due course.

Ansari Abdul Latif, Advocate Supreme Court and Mazher Ali B. Chohan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th November, 2008.

2009 S C M R 174

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sheikh Hakim Ali, JJ

SHAMEEL AHMED----Petitioner

Versus

THE STATE----Respondent

Cr.P.L.A. No.419-L of 2008, decided on 29th October, 2008.

(On appeal from judgment of Lahore High Court, Lahore, dated 15-9-2008 passed in Criminal Miscellaneous No.5229/B of 2008).

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

----S. 497---Bail in a case not falling within the prohibitory clause of S.497, Cr.P.C.---Principles---Grant of bail in cases not falling within the domain of prohibition clause of proviso to S.497, Cr.P.C. is not a rule of universal application---Each case has to be seen through its own facts and circumstances---Grant of bail, no doubt, is a discretion granted to a Court, but its exercise cannot be arbitrary, fanciful or perverse.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Principles---Grant of bail to an accused in every case not hit by the prohibitory clause of S.497(1), Cr.P.C., was not a rule of universal application, because each case had to be dealt with on its own facts and circumstances---Court vested with such discretion could not exercise the same in an arbitrary, fanciful or perverse manner---If an order granting the bail had been obtained by accused after suppressing the details of vital importance, the same could be cancelled by the Court which had passed it---Accused being involved in three previous cases of similar kind was, prima facie, found to be a habitual offender of issuing cheques and defrauding the people---Entering. into a compromise in one case, getting acquittal in other case and a bail order having been issued in the third case, could not be simply ignored at the time of grant of bail, because all these had gone to the root of the case---Conduct of accused was also relevant, who had remained at large from registration of F.I.R. till the date of his arrest and had not applied for pre-arrest bail during the period of more than one year, nor had surrendered to any Court---High Court had maintained the cancellation of bail order passed by Sessions Court on sound reasons taking into consideration all the aforesaid facts---High Court had already directed Trial Court to conclude trial within four months and the discretion exercised by the Courts below did not warrant any interference---Leave to appeal was refused to accused accordingly.

Malik Amjad Pervaiz, Senior Advocate Supreme Court for Petitioner.

Ms. Yasmin Saigal, D.P.-G., Punjab and Muzafar, A.S.-I. for the State.

2009 S C M R 177

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sheikh Hakim Ali, JJ

MUHAMMAD ANWAR SIDDIQUI----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY and 2 others----Respondents

C.P.L.A. No.1651-L of 2007, decided on 23rd October, 2008.

(On appeal from judgment of Lahore High Court, Lahore, dated 25-9-2007 passed in I.C.A. No.135 of 2007 in Writ Petition No.10782 of 2006).

(a) Civil service---

----Increments, withholding of---Discriminatory treatment---Effect---Record showed that civil servant had been treated discriminately qua the other employees having the cases of similar nature---No reasonable explanation was provided by the authorities for refusal of the release of advance increments after their sanction by the competent authority in the case of civil servant---Plea of authorities of uniform policy could not be accepted in the case of civil servant, as the increments were sanctioned in favour of civil servant in the year 1996, with effect from 10-11-1996, while the trumpeted uniform policy had come into existence in the year 2002, after more than 6 years of the order of sanction which could not be applied with retrospective effect, so as to exclude the lone case of civil servant---Supreme Court, in circumstances, directed the authorities to pay the sanctioned advance increments to the civil servant within a period of two months.

(b) Laches---

---Applicability---Scope---Rule of laches being not a rule of universal application, had to be applied to the facts and circumstances of its own case---Principles.

Petitioner in person.

M. Rashid Ahmed, Advocate Supreme Court for Respondent.

Date of hearing: 23rd October, 2008.

2009 S C M R 181

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

REHAN----Petitioner

Versus

THE STATE-Respondent

Criminal Petition No.242 of 2008, decided on 28th August, 2008.

(On appeal from the order, dated 30-6-2008 of the Peshawar High Court, Abbottabad Bench passed in Criminal Miscellaneous No.63 of 2008).

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of----Indiscriminate firing was attributed to all the accused---No crime-empty was recovered from the spot, ,nor any blood stains were observed at the place of occurrence---Two pallet injuries suffered by the complainant on his back had not been described "as dangerous to life" by the doctor and they had not caused any fracture---No .recovery was effected from the accused---Accused was in jail for about eleven months and no challan had so far been submitted in the Court---Accused was admitted to bail in circumstances.

Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 ref.

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

----Ss. 344 & 173---Commencement of trial and adjournment of proceedings---Duty of Court emphasized---Trial should normally commence, if possible, on the basis of interim report under S.173, Cr.P.C. which must be submitted as per mandatory requirement of proviso to subsection (1) of S.173, Cr.P.C.---If the commencement of the trial is to be postponed, then the Court must record reasons in writing---Section 344, Cr.P.C. casts a heavy duty on the Court to commence the trial as early as possible and not to adjourn the case on flimsy grounds---Court is also duty bound to ensure submission of complete challan/find report under S.173, Cr.P.C. without any unnecessary delay.

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

----Ss. 173 & 167---Strict adherence of the Investigating Agency to the provisions of S.173(1), Cr.P.C. stressed---If final report cannot possibly be submitted before or after completion of investigation period prescribed under S.167, Cr.P.C., the Investigating Agency should strictly adhere to the provisions of S.173(1), Cr.P.C. and must submit interim challan through Public Prosecutor for trial and should not keep in custody the accused arrested in the case without any legal justification for indefinite period.

Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 ref.

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

----Ss. 167 & 344---Constitution of Pakistan (1973), Arts.9 & 10---Note of caution for Courts---Article 9 of Constitution guarantees that no person would be deprived of life or liberty save in accordance with law, while Art.10 of Constitution provides safeguard as to arrest and detention---Courts should be mindful of the said Articles before remanding the accused to police custody or postponing the commencement of trial.

Qari Abdul Rasheed, Advocate Supreme Court for Petitioner.

Ch. Muhammad Akram, Advocate Supreme Court for the Complainant.

Zia-ur-Rehman, Advocate-General, N.-W.F.P. for the State.

Date of hearing: 28th August, 2008.

2009 S C M R 187

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Mehar MUHAMMAD NAWAZ----Appellant

Versus

MANAGING DIRECTOR, SMALL BUSINESS FINANCE CORPORATION and 2 others----Respondents

Civil Appeal No.427 of 2005, decided on 23rd October, 2008.

(On appeal from the judgment, dated 9-1-2003 passed by the Federal. Service Tribunal, Islamabad in Appeal No.755(R)(C.E.) of 2000).

Constitution of Pakistan (1973)---

----Arts. 212 & 25---Dismissal from service of an employee of a Corporation---Contention of the counsel of the appellant was that the dismissal of appellant be converted into compulsory retirement as he had been discriminated and treated unfairly qua his colleagues, similarly placed; that appellant had passed away during pendency of appeal leaving behind a widow, a son and three daughters, wholly dependant on the deceased and that they were entitled for pension and pensionary benefits of the appellant---Validity---Held, while dealing with the case where the aggrieved party had alleged discrimination, the Court could not overlook the implication thereof---Equal treatment of all similarly situated was the basic principle on which rested justice under the law---If evenhanded justice was not administered, same could have many adverse and negative effects on a society and could cause discontentment and frustration in the social set up and there could be no denial that social justice was an objective and enshrined in the Constitution---Supreme Court, in circumstances, partly accepted the appeal, set aside the impugned judgment and converted the dismissal of the appellant from service into compulsory retirement---Legal representatives of the appellant, held, shall be entitled to the pensionary benefits admissible under the law.

Dr. Qamar-uz-Zaman Ch. v. Syed Afzal Muhammad Farooq and others 2005 PLC (C.S.) 1424 rel.

Muhammad. Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs v. Ministry of Finance, Government of Pakistan through its Secretary, Islamabad 1991 SCMR 1192; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others, PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others, PLD 2007 SC 681 ref.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

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

Date of hearing: 9th October, 2008.

2009 S C M R 191

[Supreme Court of Pakistan]

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

AHMAD KHAN and others----Petitioners

Versus

ABDUR REHMAN and others----Respondents

C.P.L.A. No.1748-L of 2003, decided on 22nd October, 2008.

(On appeal from the judgment of Lahore High Court, Lahore, dated 29-4-2003 passed in R.S.A. No.51 of 1998).

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

----Ss. 60 & 61---Limitation Act (IX of 1908), Ss.19 & 20(1)---Joint mortgage---Redemption of---Limitation---Relevant mutation indicated that in the order of the Revenue Officer it was not mentioned that the joint mortgage, would operate separately--Mortgage being a joint mortgage on behalf of two persons and they happening to be the co-sharers each one would, therefore, be considered as an owner in each and every inch of land and when one of them redeemed the property, it would be considered as redemption of not the partial property but of the entire one in partial measurement and on behalf of both the mortgagors---Even one of the mortgagors could redeem the property and redemption mutation operated as novation of contract---Where, in a joint mortgage, one of the mortgagors redeemed within the statutory period of 60 years, time stood extended and the remaining land could be redeemed within a further period of 60 years---Enjoyment of usufruct and the receipt of produce every time by the mortgagee amounted to acknowledgment giving fresh start to limitation---Principles.

Khair Din v. Ghulam Muhammad 1989 SCMR 688 and Abdul Haq v. Ali Akbar 1999 SCMR 2531 fol.

Inamullah Hashmi, Advocate Supreme Court for Petitioners.

Malik Noor Muhammad Awan, Advocate, Supreme Court for Respondents.

Date of hearing: 22nd October, 2008.

2009 SCMR 194

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SECRETARY, MINISTRY OF EDUCATION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another----Petitioners

Versus

MUHAMMAD AZAM CH. and another----Respondents

Civil Petition No.1124 of 2008, decided on 19th September, 2008.

(On appeal from the order, dated 7-6-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.980(R)(C.S.) of 2006).

(a) Civil service---

----Appointment on probation for one year---Termination of service---Civil servant admittedly assumed the charge with effect from 12-7-2004---Even assuming that the period of probation stood extended by one year, the same came to an end on 11-7-2006, whereafter, civil servant became a permanent employee---Termination of service of such civil servant by a notification dated 23-8-2006 with effect from 22-2-2006 without assigning any reason during his probationary period, was not tenable.

(b) Civil service---

----Appointment on probation for one year---Reversion and then termination of service---If, in the opinion of the government, the work and conduct of the civil servant during probationary period was found unsatisfactory, government may discharge/revert him forthwith or extend his probationary period for further one year as it may think fit---Nothing was, however, available on record to show that the competent authority did form the opinion that the work of civil servant was unsatisfactory or that his probationary period was liable for extension for further one year---No specific extension in probationary period of civil servant was on the record---Order first of reversion and then of termination was without lawful authority---Order of termination which was passed with retrospective effect was also a nullity in the eye of law---Civil servant, having continuously worked on the post, his lien against the said post was terminated and reversion was without legal efficacy on that ground as well.

(c) Civil service---

----Departmental appeal---Object and purpose.

The object and purpose of the departmental appeal is to provide a tangible forum to the appellant for redressal of his grievance before he was obliged to approach the Service Tribunal for adjudication of his claim. Obviously the requirement of filing a departmental appeal prior to approaching the Tribunal is not to create a hurdle in the way of a bona fide litigant but to facilitate him to avoid unnecessary expense and effort in pursuing his appeal in a legal forum. While much furore is raised for filing of the mandatory departmental appeal, a vast -majority of government departments do not take the departmental appeal with any seriousness. More often than not the departmental appeals remain un­actioned. It can never be the intention of the legislature to make the filing of departmental appeal as a hurdle in the way of an appellant. Invariably the requirement of the departmental appeal is used as stumbling block for the appellant rather than facilitating him in the pursuit of his relief.

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

----Art. 212(3)---Reversion/termination of services of a probationer civil servant---When Service Tribunal had recorded a detailed and well-reasoned judgment discussing all the aspects of the case, leaving no room for further consideration; there was no illegality or infirmity, legal or factual, in the impugned judgment, calling for interference; no misreading or non-reading of the record had been pointed out by the petitioner department; services of the civil servant could not be terminated without assigning any reason/disciplinary action and civil servant should have been given a fair opportunity to clarify his position qua unsatisfactory performance attributed to him, Supreme Court declined interference and dismissed petition for leave to appeal.

Tasnim Ali Mir v. The Federation of Pakistan and others PLD 1959 (W.P) Karachi 62; Muhammad Afzal Khan v. Superintendent of Police, District Montgomery and others PLD 1961 (W.P) Lah. 808; Mazhar Ali v. Federation of Pakistan/President of Pakistan through the Secretary, Establishment Division, Cabinet Secretariat and 2 others 1992 SCMR 435 and Dr. Muhammad Tahir Achakzai and others v. Government of Balochistan and others 1999 SCMR 1680 ref.

Muhammad Siddiq Javaid v. The Government of West Pakistan PLD 1974 SC 393; Punjab Road Transport Board v. Muhammad Fazil Hussain and another PLD 1983 Lahore 531; Mazhar Ali v. Federation of Pakistan/President of Pakistan through the Secretary Establishment Division, Cabinet Secretariat and 2 others 1992 SCMR 435; Amir Ahmed v. Secretary, Finance Division; Islamabad and another; 1993 SCMR 114; Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat; Islamabad and 2 others 1996 SCMR 284; The Secretary, Government of the Punjab through Secretary; Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 and Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others; 2003 PLC (C.S) 1421 distinguished.

Niaz Ahmed Rathore, D.A.-G. and M.S. Khattak, Advocate-on-Record for Petitioners.

M. Shoaib Shaheen, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 19th September, 2008.

2009 S C M R 202

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Zia Perwez and Sabihuddin Ahmed, JJ

ARMY WELFARE SUGAR MILLS, WORKERS' UNION----Appellant

Versus

ARMY WELFARE SUGAR MILLS----Respondent

Civil Appeal No.1675 of 2005, arising out of Civil Petition No.807-K of 2005, decided on 3rd November, 2008.

(On appeal against the judgment, dated 7-9-2005 passed by High Court of Sindh, Hyderabad Circuit in C.P. No.S-294 of 2004).

Industrial Relations Ordinance (XCI of 2002)---

: ----Ss. 1(4)(b) & 80(2)(a)---Constitution of Pakistan (1973), Arts.17(1) & 245---Trade union---Armed forces establishment---Authorities of sugar mill owned by Army Welfare Trust sought cancellation of trade union of their employees on the ground that mill in question was a project of Armed forces and provisions of Industrial Relation Ordinance, 2002, were not applicable---Validity---For claiming exemption under S.1 (4) of Industrial Relations Ordinance, 2002, functional connection with armed forces as to activities performed in establishment where a person was employed must be .established---Functions of armed forces were spelled out in Art.245 of the Constitution and, therefore, only an installation which was directly connected with such function i.e. defence of Pakistan against external aggression or to act in aid of civil power if called upon to do so must be shown---Mill in question was neither rendering services exclusively to Armed forces nor could it be treated as an installation of such forces---Order passed by High Court was set aside and that of Labour Court was restored whereby complaint of employer for cancellation of trade union registration was set aside---Appeal was allowed.

Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Rehmat Gill v. Quetta Cantonment Board PLD 1983 SC 133; Canteen Stores Department Employees Welfare Union, Karachi v. Canteen Stores Department and others 1983 SCMR 1101; The Controller Stationery and Forms, Government of Pakistan v. The Registrar, Trade Unions, Sindh and others PLD 1991 SC 353; Haji Malik Aman and others v. Federation of Pakistan 1993 SCMR 1837 and Nisar Ahmad and others v. Federation of Pakistan and others 1999 SCMR 1338 ref.

Syed Shahenshah Hussain, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Appellant.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondent No.1.

Respondents Nos.2 and 3:

Ex parte. Date of haring: 3rd November, 2008.

2009 S C M R 210

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

AUQAF DEPARTMENT through Chief Administrator Auqaf, Punjab, Lahore----Petitioner

Versus

SECRETARY, MINISTRY OF RELIGIOUS ZAKAT, USHAR AND MINORITIES AFFAIRS GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others-Respondents

Civil Petition No.2910-L of 2002, decided on 30th October, 2008.

(On appeal from the judgment, dated 30-5-2002 passed by the Lahore High Court, Lahore in Writ Petition No.10751 of 1998).

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

----S. 8---Declaration of property as evacuee trust property---It is the Chairman of the Evacuee Trust Property Board who can declare an `evacuee property' as "evacuee trust property" by issuing a notification and who is also empowered to cancel the allotment or alienation, as the case may be, of the said property---Principles.

Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313; Jehanzeb Khan and another v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad and 5 others 1999 MLD 2505 ref.

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

----S. 10---Validation for transfer of the evacuee trust property---Criteria.

The criterion for validation of transfer of the `evacuee trust property' in terms of section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 is as under:---

(i) That the property was utilized bona fide and was transferred against the specific verified claim.

(ii) That in respect of such property a permanent transfer deed has been issued in favour of the transferee prior to June, 1968 and if any of these conditions is missing the transfer of such property cannot be validated under section 10 of the Act. The payment of transfer price by the transferee would not amount to transfer in satisfaction of verified claim and the provisions of section 10 would not be attracted to cases in which only PTO and not a PTD was issued prior to June, 1968, even after full payment of the price.

Mst. Mariam Bai and others v. Islamic Republic of Pakistan and 5 others 1993 SCMR 515 fol.

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

----Ss. 10, 8 & 2(1)(d)---Punjab Waqf Properties Ordinance (IV of 1979), S.2(e)---Determination of status and nature of the property attached to a religious institution---Principles and procedure.

There are two different kinds of property, one Muslim Waqf Property' defined in section 2(e) of the Punjab Waqf Properties Ordinance, 1979 and the otherevacuee trust property' defined in section 2(1)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. These two properties can be maintained by the concerned functionaries/authorities under the relevant provisions of law. The Administrator Auqaf is not competent to take over possession, control and management of the `evacuee trust property', rather it is the Chairman, Evacuee Trust Property Board, who is competent for the same.

The burden 6f showing actual creation of trust was on the party asserting that the same was attached to a religious or charitable trust, and such matter could be decided on the rule of preponderance of evidence.

The status and nature of the property attached to a religious institution would be determined on the basis of overall evidence as existing on the date of independence of the country and its use as such. The status of the property could be determined on the basis of evidence which was made available or which could be brought on record or examined by the officer or authority charged with the duty to determine the question of status of property and the question whether evacuee property was attached to a religious, charitable or educational trust or institution in the first instance was to be determined by the Chairman Evacuee Trust Property and then a revision was to lie to the Federal Government.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Writ of certiorari, when to be issued--Findings recorded by authorities being based on appreciation of evidence, could not be interfered with by High Court in exercise of constitutional jurisdiction---Writ of "certiorari" could only be issued, if in recording such findings, the respondent had acted on evidence which was legally inadmissible or had refused to accept admissible evidence or if the findings were not supported by any evidence at all and if in such cases error would amount to error of law.

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

----Art. 185(3)---Interference in concurrent findings of facts by Supreme Court---Scope---Where there were factual controversies, Supreme Court would not interfere with the concurrent findings of facts recorded by the lower fora---Impugned order having not suffered from any such infirmity or illegality calling for interference by Supreme Court, petition for leave to appeal was dismissed.

Naseem Ahmad Khan, Advocate Supreme Court for Petitioners.

Mian Qamar-uz-Zaman, Advocate Supreme Court and Talib Hussain, Advocate-on-Record for Respondents Nos.2 and 3.

Date of hearing: 30tn October, 2008.

2009 S C M R 218

[Supreme Court of Pakistan]

Present Saiyed Saeed Ashhad and Muhammad Moosa K. Leghari, JJ

Messrs AHMED BROTHER TRADE INTERNATIONAL, WALIABAD GULMIT HUNZA, GILGIT----Petitioner

Versus

COLLECTOR CUSTOMS, CUSTOM HOUSE, RAWALPINDI/ISLAMABAD and others---Respondents

Civil Petition No.1116 of 2008, decided on 18th September, 2008.

(On appeal from the judgment, dated 16-6-2008 passed by Islamabad High Court, in C.R. No.5 of 2008).

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

----Ss. 32(1), 180 & 168---Imports and Exports (Control) Act (IX of 1950), S.3(1)---Drugs Control Act (XXXI of 1976), Preamble---Constitution of Pakistan (1973), Art.185(3)---Seizure of goods---Show-­cause notice---Goods on importation were lying at the dry port area pending clearance without any seizure having been effected, and the matter of the imported goods being banned for import in the country was being inquired into---Goods were formally seized after providing enough opportunity to the importer to submit the proof of import authorization, even the agency on whose behalf the importer claimed to have imported the goods, did not respond to the query made by the Customs authorities despite lapse of 1-1/2 months---Importer was accordingly issued a show-cause notice after effecting formal seizure of the goods but no satisfactory reply was received from the importer---Show-cause notice issued to the importer, in circumstances, was within time---Petition for leave to appeal was dismissed.

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

----Ss. 32(1), 168 & 180---Constitution of Pakistan (1973), Art.185(3)--Import of banned injections---Seizure of goods---Show-cause notice---Report froth Health Ministry was available on the record to show that the goods, so imported by the importer, were not only unregistered but banned in Pakistan since 2006 on account of causing adverse effects to human beings---Effect---Drugs in question having adverse effect on human health and being already banned in the country could, in no case, be released or returned---Contention raised by the petitioner (importer) having sufficiently been discussed and properly dealt with by the Tribunal as well as by the High Court in a legal and valid manner, petition for leave to appeal against the judgment of the High Court was dismissed.

Malik Manzoor Hussain, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 18th September, 2008.

2009 S C M R 221

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Muhammad Qaim Jan Khan, JJ

MUSTAFA KAMAL and others----Petitioners

Versus

DAUD KHAN and others----Respondents

Civil Petition No.891 of 2008, decided on 18th July, 2008.

(On appeal from the judgment, dated 23-4-2008 of the Peshawar High Court, Peshawar passed in Civil Revision No.322 of 1998).

(a) Res judicata, principle of---

----Applicability---Scope---Analysis of the cases, in the present case, indicated that both matters were based on different causes of action and between different parties---Earlier suit was filed on the basis of promissory note whereas the subsequent suit was filed by a different party and subject-matter thereof was disputed as to its mutation--When subject-matter and parties were not the same, principle of res judicata was not applicable.

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

----S. 65---When the contract becomes void benefit received by a person is to be restored to the other party---When neither there was any defect in the contract nor it was void, merely for a subsequent act taking place after eight years of finalization of the contract and there being no evidence regarding consideration or some bank cheque which was not honoured subsequently and there being no evidence in that behalf, taking such plea after eight years i.e. beyond period of limitation was of no use to the party.

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

----O. XLI, R.27---Constitution of Pakistan (1973), Art. 185(3)---Production of additional evidence and inclusion of an admission---When the fact of production of additional evidence and inclusion of an admission of respondent was fully in the knowledge of the petitioners and same was neither raised by them before the Trial Court nor before the Appellate Court, petitioners could not fill up the lacuna in their case by relying on O.XLI, R.27, C.P.C.---Plaintiff had to prove his case on the basis of material facts relevant on the date of institution of the suit---Suit, in the present case, was instituted in 1975 and decided in 1995 and said plea was not taken by the petitioners at the relevant time and thus was correctly rejected by the Appellate Court as well as revisional court at the latter stage---Petition for leave to appeal was rejected.

Abid Hassan Minto, Senior Advocate Supreme Court and Ch. Akhter Ali, Advocate-on-Record for Petitioners.

Gul Zarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1, 2 and 3.

Date of hearing: 18th July, 2008.

2009 S C M R 224

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, M. Javed Buttar and Nasir-ul-Mulk, JJ

COLLECTOR OF LAND ACQUISITION, ABBOTTABAD and others----Petitioners

Versus

Alhaj SARDAR BAHADUR KHAN and others----Respondents

Civil Appeals Nos.1554 to 1563 of 2004, decided on 30th September, 2008.

(On appeal from the judgment, dated 12-3-2004 of the Peshawar High Court, Abbottabad Bench Abbottabad passed in R.F.As. Nos.8, 9, 10, 11, 12, 26, 27, 28, 29 and 30 of 2001).

Land Acquisition Act (I of 1894)---

----S. 11---Constitution of Pakistan (1973), Art.185---Acquisition of land for Pakistan Military Academy---Appeal to Supreme Court by acquiring authority against enhancement of compensation by High Court---Validity---Very requirement that the limits of Military Academy were to be expanded and its boundaries were to be widened, was a proof of the fact that the acquired property was immediately contiguous to the Academy---Market values of the constructed as well as landed properties were glaringly determinable from the fact that it was contiguous to the most important National and Historical Institution that exists since 1947---Most posh residential colonies were contiguous to the Academy as well as to the property acquired which had therefore, a strategic location and was bound to enhance its market value, muchless the compensation which was always higher than the market value---Affectees of acquisition should have felt aggrieved of the compensation fixed, rather than the acquiring authority---Supreme Court upheld the enhancement made by the High Court and dismissed the appeals filed by the acquiring department and the acquiring agencies, in circumstances.

M. Iqbal Mohmand, D.A.-G. and M. Rashid, Deputy M.E.O. for Appellants (in all cases).

Malik Manzoor Hussain, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 30th September, 2008.

2009 S C M R 226

[Supreme Court of Pakistan]

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

Ch. MAQBOOL AHMED----Petitioner

Versus

CUSTOMS, FEDERAL EXCISE AND SALES TAX, APPELLATE TRIBUNAL and 3 others----Respondents

Civil Petition No.657 of 2000, decided on 24th September, 2008.

(On appeal from the judgment of the Lahore High Court, Multan Bench, dated 1-4-2008 passed in C.R.A. No. 7 of 2007).

Customs Act (IV of 1969)---

----S. 156(1), Cl.(89)---S.R.O. No.574(I)/2005 dated 6-6-2005---Constitution of Pakistan (1973), Art.185(3)---Smuggled vehicle with proved tampered chassis frame and not a smuggled vehicle with non-tampered chassis frame---Held, outright confiscation of the vehicle through order-in-original under Cl.(89) of S.156(1) of the Customs Act, 1969 read with S.R.O. No.574(I)/2005 dated 6-6-2005 was lawfully passed and did not suffer from any illegality---Petition for leave to appeal against judgment of the High Court upholding said order was dismissed---Principles.

Muhammad Naeem Qazi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

M. Bilal, Senior Advocate Supreme Court with Mehmood A. Sheikh, Advocate-on-Record for Respondents.

Date of hearing: 24th September, 2008.

2009 SCMR 230

[Supreme Court of Pakistan]

Present: Syed Jamshed Ali and Muhammad Farrukh Mahmud, JJ

MUHAMMAD AKRAM----Petitioner

Versus

THE STATE----Respondent

Criminal Petitions Nos.169-L and J.P. No.125 of 2006, decided on 24th September, 2008.

(Against the order dated 1-3-2006 passed by Lahore High Court in Criminal Appeal No.1516 of 2004 and Murder Reference No.13-T of 2004).

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Benefit of doubt---Conduct of the father of the abductee, who knew the accused, in lodging the F.I.R. after an inordinate delay of six months of the abduction and recovery of his son, had cast heavy doubt on the veracity of the F.I.R.---Not a single independent witness from the locality was produced to support the story of abduction---Prosecution witnesses had made divergent statements at the trial about delivery of ransom amount exonerating one accused---If the prosecution witnesses could involve one accused in a false case, then their statements qua the other accused could not be relied upon in the absence of very strong, independent and corroboratory evidence against them---F.I.R. and prosecution evidence revealed that the ransom amount was given to the accused who was later on exonerated by all the prosecution witnesses---Passing of ransom amount to accused, thus, was not established--Recoveries of ransom amount from the accused were in violation of the provisions of S.103, Cr.P.C., which were not supported by the evidence of any respectable inhabitant of the locality---Recovered amount was not proved to be the same, which was delivered at the time of release of the abductee---Recovery of weapons was also of no consequence as the same were never sent to any Expert to determine whether they were in working order or not---Witnesses in whose presence the alleged recovery was effected were not produced during trial---Prosecution evidence was not free from doubt, benefit of which must be given to the accused as a matter of right and not of grace---Petitions for leave to appeal were converted into appeals which were allowed and the accused were acquitted accordingly.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

(b) Criminal trial---

---Benefit of doubt---Principle---In case of doubt, the benefit thereof must be given to accused as a matter of right and not as a matter of grace.

(c) Criminal trial---

---Benefit of doubt---Principles---For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

S.M. Nazim, Advocate Supreme Court for Petitioner (in Criminal Petition No.169-L of 2006).

Ch. Muhammad Anwar Khan, Advocate Supreme Court for Petitioners (in J.P. No.125 of 2006).

Irshad Hussain Bhatti, D.P.-G. for the State (in both petitions).

Date of hearing: 24th September, 2008.

2009 S C M R 237

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

SHAHID ABBAS----Petitioner

Versus

SHAHBAZ and others----Respondents

Criminal Petition No.253-L of 2007, decided on 24th September, 2008.

(On appeal from the judgment, dated 26-2-2007 passed by Lahore High Court, Lahore in Criminal Appeal No.376 of 2002 and Murder Reference No.332 of 2002).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Inordinate delay in lodging the F.I.R. in the absence of reasonable explanation had made the prosecution case doubtful---Conduct of eye-witnesses, both sons of the deceased, allowing the accused to kill their father in their presence, had suggested their non-presence at the scene of occurrence at the relevant time---Enmity between the parties prior to the occurrence due to property dispute was admitted---No crime-empty having been recovered from the spot, recovery of gun had no value---No miscarriage of justice had occurred due to acquittal of accused---Judgment of High Court was not perverse and reasons shown therefor were not artificial or capricious and the same did not suffer from any illegality or infirmity, so as to warrant interference by Supreme Court---Leave to appeal was declined to complainant accordingly.

Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928 ref.

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

----S. 417---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Extent and scope---Different parameters exist for interference in an appeal against acquittal and an appeal against conviction--Presumption of innocence of the accused becomes double in case of acquittal---Supreme Court would not interfere unless the conclusion_ reached by the Courts below was such that no reasonable person would conceivably reach the same and grounds given by High Court were not supportable from the evidence on record---Supreme Court, in case of acquittal, only interferes to avoid grave miscarriage of justice and when judgment of acquittal is perverse, capricious or arbitrary.

Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928 ref.

Syed Zahid Hussain Bokhari, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 24th September, 2008.

2009 S C M R 240

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

MUHAMMAD TARIQ and 4 others----Appellants

Versus

ASIF JAVED and another----Respondents

Civil Appeal No.1450 of 2004, decided on 27th May, 2008.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 13-4-2004 passed in Civil Revision No.191-D of 2002).

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

----S. 13---Suit for pre-emption---Talbs, performance of---Minor clerical omission in the statement of a witness whose statement was recorded after sufficient time,- cannot mar the case of plaintiff---Law does not favour to throw away the pre-emptor just on technicalities---Pre-emptor having proved the two Talbs with cogent oral and documentary evidence, Supreme Court declined interference.

Ladhi Bibi v. Masaddar Ali AIR 1949 Assam 81; Amir Hassan v. Rahim Bakhsh and others ILR 19 All 466; Feroze Khan v. Ahmad Yar 1992 MLD 1570; Sar Anjam v. Abdul Raziq 1999 SCMR 2167; Muhammad Hayat v. Faiz Ali 2002 MLD 938; Sarfraz Khan v. Naimatullah Khan 2002 SCMR 751; Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105; Faiz Muhammad v. Muhammad Azam PLO 2008 Lah. 7; Kala Khan v. Ayyub Khan 1993 SCMR 543; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Abdul Qayum v. Mushk-e-Alam 2001 SCMR 798; Khalid Hussain v. Muhammad Baqir PLD 2002 Lah. 280; Raooh-ul-Qadoos v. Muhammad Rafique 2002 CLC 379; Muhammad Nawaz v. Ahmad Khan and another 2005 YLR 197 and Hayat Muhammad v. Mazhar Hussain 2006 SCMR 1410 ref.

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

----S. 20---Pre-emption suit---Pre-emptor and vendee equally entitled---Effect---Legislature has divided the pre-emptor and the vendee into two distinct classes i.e. the pre-emptor and the vendee, and if the pre-emptor and the vendee have equal right of pre-emption, the property would be shared by them equally notwithstanding the number of pre-emptors or the vendees.

Muhammad Younis Bhatti, Advocate Supreme Court for Appellants.

Agha Tariq Mehmood, Advocate Supreme Court for Respondents.

Date of hearing: 27th May, 2008.

2009 S C M R 245

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Zia Perwez and Syed Sakhi Hussain Bokhari, JJ

FARHAT ABBAS----Appellant

Versus

I.-G. and others----Respondents

Civil Appeal No.116 of 2006, decided on 8th September, 2008.

(On appeal from the judgment, dated 15-6-2005 of the Punjab Service Tribunal, Lahore in Appeal No.1919 of 2004).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to examine question of animus-revertendi in the case on recall of order of promotion upheld by judgment of Service Tribunal.

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

----S. 8---Promotion, out of turn---Diligence and efficiency---Appreciation---Principle---In appreciation of his excellent and extraordinary performance, civil servant was awarded out of turn promotion under the instruction of Inspector General of Police---Subsequently the civil servant was reverted to his earlier rank on the ground that promotion could only be granted on the basis of seniority cum fitness and such promotion resulted in injustice to his seniors and had become cause of frustration and heart burning to those who were superseded---Validity---Performance of duty with due diligence and efficiently deserved due appreciation but it could not be over appreciated out of proportion so as to make out a case of grievance to other employees in service of department---If a case of glaring favouritism was made out resulting in mala fide action, the same had to be rectified in accordance with law to avoid injustice---Supreme Court declined to set aside valid order passed by authorities merely on conjectures or surmises---Practice of such out of turn promotion would encourage a person to obtain any order using underhand means or otherwise and then to claim immunity for such acts which would, therefore, result in rewarding the person using such means by allowing him to continue to enjoy fruits of such ill-gotten gains and thus could perpetuate injustice---Supreme Court declined to interfere with order of reversion passed by authorities and maintained by Service Tribunal---Appeal was dismissed.

Raja Muhammad Anwar v. Government of the Punjab 1981 SCMR 523; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi JLD 1969 SG 407; Ali Nawaz v. Pakistan Railways through Chairman/Secretary and others 1999 SCMR 1873 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Respondents Nos.1 to 3: Ex parte.

Date of hearing: 8th September, 2008.

2009 S C M R 249

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Zia Perwez and Sabihuddin Ahmed, JJ

Dr. Syed SHARAF ALI SHAH and 2 others----Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

Civil Petitions Nos.233-K to 235-K of 2008, decided on 31st October, 2008.

(On appeal from the order, dated 27-2-2008 passed by High Court of Sindh, Karachi in Constitutional Petitions Nos.2229, 2231 and 2232 of 2006).

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

----Art. 185(3)---Civil Service---Residential accommodation for employees---Allotment, restoration of---Change in policy---Retrospective effect---Applicability---Privileges, taking away of---Scope---Petitioners were employees of Provincial Government and notices were issued to them to vacate their residential flats allotted to them by the government---Authorities raised the plea that by change in allotment policy, petitioners had become unauthorized occupants or allotments in their favour which became liable to cancellation---Validity---Contention of authorities did not merit any serious consideration---Any executive dispensation or change of policy could never have retrospective effect or impair vested rights---Government could be well within its rights to change its allotment policy but such change could only apply to allotments made after its enforcement---Change in policy could never affect rights of old allottees which could only be taken away through legislative dispensation given retrospective effect---Certain rights were created in favour of petitioners through allotment orders issued by government and such rights, even if in the nature of privileges, could not be taken away by subsequent executive action or change in policy---Such privileges could only be impaired through legislative dispensation expressly given retrospective operation---Notice issued by authorities to petitioners for vacating their residential flats and judgment passed by High Court in exercise of Constitutional jurisdiction were set aside--Appeal was allowed.

Multiline Associates v. Aredeshir Cowasjee and 2 others PLD 1995 SC 423; Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439 and Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917 ref.

(b) Public functionary---

----No public power can be exercised arbitrarily at whims of those on whom same was bestowed.

Naraindas C. Motiani, Advocate Supreme Court for Petitioners.

Masood A. Noorani, Additional Advocate-General Sindh, for Respondents.

Date of hearing: 31st October, 2008.

2009 S C M R 254

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

Syed RAFIUL QADRE NAQVI----Petitioner

Versus

Syeda SAFIA SULTANA and others----Respondents

Civil Petition No.494-K of 2007, decided on 9th October, 2008.

(Against the judgment, dated 9-4-2007 passed by High Court Sindh, Karachi in IInd Appeal No.14 of 2005).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.100---Second appeal---Scope---Concurrent findings Of fact--Suit filed by plaintiffs was concurrently decreed by Trial Court and Lower Appellate Court in their favour but High Court allowed second appeal filed by defendants and set aside concurrent judgments of both the courts below---Validity---Second appeal did not lie on the ground of error or question of fact and it could only lie on the ground of law or error in procedure which might have affected decision of case upon merits---Decision arrived at by two courts below was not shown to be either based on irrelevant or inadmissible evidence or further that evidence had in any way been misread by them---Although concurrent findings could be reversed in case of non-reading or misreading of evidence but High Court had wrongly interfered with concurrent findings of fact---Reversal of concurrent findings of fact as a result of re-appraisal of evidence on record under S.100 C.P.C. was not permissible unless the same was found to be perverse or contrary to evidence on record---Trial Court and Lower Appellate Court decided suits on merit on appreciation of evidence on record, both oral and documentary and had rightly come to the conclusion that plaintiffs had established their case---Supreme Court set aside the judgment and decree passed by High Court---Appeal was allowed.

Muhammad Feroz and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777; Abdul Jabbar and others v. Muhammad Jabbar and others 2002 SCMR 1173; Muhammad Yaqoob through Legal Heirs v. Feroz Khan and others 2003 SCMR 41; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCMR 286; Khushi Muhammad v. Liaqat Ali PLD 2002 SC 581; Abdul Rashid v. Mst. Bashiran and another 1996 SCMR 808 and Haji Sultan Ahmad (deceased) through L.Rs. v. Naeem Raza and others 1996 SCMR 1729 ref.

I.H. Zaidi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Habibur Rehman, Advocate Supreme Court and A.A. Khan, Advocate-on-Record for Respondents Nos.1 and 2.

Date of hearing: 22nd August, 2008.

2009 S C M R 259

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

SHAKTI RAM RATHORE----Appellant

Versus

FEDEIIATION OF PAKISTAN and others----Respondents

Civil Appeal No.332 of 2006, decided on 4th November, 2008.

(On appeal against the judgment, dated 12-12-2005 passed by Federal Service Tribunal (Karachi Bench) in Service Appeal No.73/K(C.S.) of 2003).

Civil Servants Act (LXXI of 1973)---

----S. 13---Compulsory retirement---Average and below average Annual Confidential Report---Non-communication to civil servant---Effect---Civil servant was compulsorily retired from service on the allegation of getting average and below average Annual Confidential Reports---Order passed by authorities was maintained by Service Tribunal---Plea raised by civil servant was that reports in question were never communicated to him---Validity---Average remarks in Annual Confidential Reports were not communicated to civil servant hence he had no opportunity to meet the same---Annual Confidential Reports in question having been made ground for premature retirement of civil servant, therefore, same should have been communicated to him and finalized accordingly before any action could be taken against him under S.13 of Civil Servants Act, 1973---Average entry in Annual Confidential Report was not adverse unless disciplinary action was initiated on such ground and communicated to the civil servant---Order of compulsory retirement and judgment of Service Tribunal were set aside by Supreme Court and civil servant was reinstated in service with back benefits---Appeal was allowed.

Chairman, Central Board of Film Censors, Islamabad and another v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707; Ejaz Ahmed Qazi v. Province of Sindh 2003 SCMR 1080; M.D. Sui Southern Gas Company v. Ghulam Abbas PLD 2003 SC 724; Chairman, WAPDA, Lahore v. Gul Bat Khan NLR 1996 Service 11; WAPDA through Chairman v. Fida Muhammad Khan NLR 1996 Service 157; Shaikh Abdul Aziz v. Collector, Muzaffargarh and 2 others NLR 1983 Service 175; Ali Muhammad v. Commissioner, Afghan Refugees 1995 SCMR 1675; Pakistan Railways v. Ghulam Rasool 1997 SCMR 1581; Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others PLD 1992 SC 144; Province of Punjab v. Sardar Noor Ilahi Leghari 1992 SCMR 1427; Federation of Pakistan and others v. Muhammad Qaisar Hayat Khan 1992 SCMR 544 and Federation of Pakistan through the 'Secretary, Health Division v. Dr. Najmul Ghani Khan PLD 1995 SC 556 ref.

M.M. Aqil Awan, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Appellant.

Amir Naqvi, D.A.G. for Respondents Nos.1 and 2.

Lateefur Rehman Sarwary, Advocate Supreme Court for Respondent No.3.

Date of hearing: 27th October, 2008.

2009 S C M R 264

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Sheikh Hakim Ali, JJ

Mst. AKHTAR BEGUM----Petitioner

Versus

MUSLIM COMMERCIAL BANK LTD.----Respondent

Civil Petitions Nos.343-K and 344-K of 2007, decided on 21st July, 2008.

(On appeal from the order, dated 10-4-2007 passed by High Court of Sindh, Karachi in Appeals Nos.22 and 23 of 2005).

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

----S. 9---Qanun-e-Shahadat (10 of 1984), Art.59---Civil Procedure Code (V of 1908), S.12(2)---Decree, setting aside of---Fraud and misrepresentation---Comparison of signatures---Report of Forensic Science Laboratory---Suit filed by bank was decreed against petitioner in her capacity of guarantor---Petitioner assailed judgment and decree on the ground that she did not sign any document in favour of bank, including mortgage deed and general power of attorney---Validity---Banking Court must have referred the same to handwriting expert for obtaining his opinion whether purported signatures on disputed documents were in handwriting of petitioner or were forged or manipulated by somebody else---Such important aspect of the case not only escaped attention of Banking Court but High Court also did not take notice thereof---Any person could not be made liable for making payment which he or she was otherwise not legally bound to pay but was pressurized and forced to pay on the ground of some forged or manipulated documents---Supreme Court, in view of persistent, strong and vehemence denial of petitioner of her signatures on mortgage deed, power of attorney etc. made a comparison of her denied signatures with her admitted signatures and further directed comparison by handwriting expert to conclusively hold that disputed documents had signatures of petitioner---Supreme Court also directed that proceedings against petitioner would be taken after the report of handwriting expert was received by concerned Banking Court in terms of the report---Appeal was allowed.

(b) Administration of justice---

----Liability of any party---Determination---Duty of Court---Party has right to seek and demand every possible assistance from Court of law and to hold him/her responsible only when he/she is found to have acted contrary to law.

Rizwan Ahmed Siddiqui, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record and Syed Shafiq Ahmed, Officer, G.R.I., SA.M.G. (M.C.B.) for Petitioner (in both petitions).

Nemo for Respondent (in both petitions).

2009 S C M R 269

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Sabihuddin Ahmed, JJ

Qazi CHAND MUHAMMAD----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Civil Petition No.655-K of 2007, decided on 22nd October, 2008.

(On appeal from the judgment, dated 9-10-2007 passed by Sindh Service Tribunal, Karachi in S.A. No.69 of 2004).

Sindh Civil Service Manual---

----Para. 171---Age of civil servant---Correction---Procedure---Age of civil servant was altered by authorities on the basis of seniority list---Appeal of civil servant against order of departmental authority, rejecting his plea for rectification of his date of birth was dismissed by Service Tribunal---Validity---Provincial Government had plenary powers to correct a wrongly entered date of birth in service records without any limit of time---Such power could be exercised by government only fairly and honestly upon careful consideration of all facts and material brought to its notice and after giving reasonable opportunity to be heard to affected person in accordance with established principles of natural justice---All the more important was to hold proper inquiry when serious allegation of forgery, being quasi criminal in nature, was levelled---No such exercise was undertaken nor any specific order stating to correct civil servant's date of birth was placed on record---Supreme Court rejected view of Service Tribunal that Provincial Government could pass order altering date of birth of civil servant merely through seniority list without following due process of law---Supreme Court converted petition for leave to appeal into appeal and set aside orders passed by authorities as well as by Service Tribunal---Appeal was allowed.

Abdul Haq v. Province of Sindh 1989 PLC 300 and Inspector-General of Police, Punjab v. Mushtaq Ahmed Warriach and others PLD 1985 SC 159 ref.

M.M. Aqil Awan, Advocate Supreme Court for Petitioner.

Masood A. Noorani, Additional Advocate-General and Alam Subhani, Acting A.I.-G. (Legal) for Respondents.

Date of hearing:,22nd October, 2008.

2009 SCMR 276

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

AZIZULLAH SHEIKH and another----Petitioners

Versus

STANDARD CHARTERED BANK LTD.----Respondent

Civil Petition No.299-K of 2007, decided on 22nd October, 2008.

(On appeal from the judgment, dated 22-3-2007 of the High Court of Sindh at Karachi passed by in Special High Court Appeal No.92 of 2006).

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

----S. 73---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.9(1)---Suit for recovery of damages with interest---Breach of contract---Damages, claim for---Party claiming damages had to firstly plead and then prove by sufficient, trustworthy, independent and. cogent evidence that the concluded agreement existed between the parties, the other party committed breach of contract, such breach entitled the first party to damages and the foremost factor was quantum of damages---Principles for ascertaining the quantum of general and special damages stated.

Gohar Ali v. Sher Zaman Khattak Civil Appeals Nos.2763 and 2764 of 2007; Ahmed Saeed Kirmani v. Muslim Commercial Bank Ltd. 1993 SCMR 441 and Islamic Republic of Pakistan v. Sh. Nawab Din PLJ 2002 Lah. 1998 ref.

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

----S. 73---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.9(1)---Suit for recovery of damages with interest---Breach of contract---Damages, claim for---Plaintiffs failed to produce any evidence to show that in fact they suffered any loss due to breach of contract---Solitary statement of one plaintiff was not sufficient to decree the colossal suit amount as plaintiffs' witness did not state anything about damages---Plaintiffs through his failure to produce evidence totally failed to prove that due to breach of contract they were in fact entitled to damages and to what extent, which were sine qua non for the grant of damages under S.73, Contract Act, 1872---Held, plaintiffs, in circumstances, had not proved that they suffered any loss and also failed to prove, through production of evidence on record, that they were entitled for decree of the total amount claimed in the suit.

Suleman Habibullah, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd October, 2008.

2009 S C M R 281

[Supreme Court of Pakistan]

Present: Zia Perwez and Sabihuddin Ahmed, JJ

SHIBLI FAROOQUI----Appellant

Versus

FEDERATION OF PAKISTAN and others----Respondents

Civil Appeal No.1056 of 2005 arising out of Civil Petition No.665-K of 2003, decided on 9th October, 2008.

(On appeal against the judgment, dated 3-7-2003 passed by Federal Service Tribunal, Islamabad in S.A. No.7(K)(C.S.) of 2001).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether allegations against civil servant, even if correct, amounted to misconduct within the meaning and terms of relevant rules or could be merely considered as irregularities which stood cured by depositing amounts inadvertently long before issuance of charge sheet; whether authority was justified in imposing penalty severer than the one proposed by authorized officer without recording any reasons; and whether infliction of penalty of removal from service, in any event, was too harsh and disproportionate to acts attributed to civil servant.

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

----Rr. 4(1)(b) & 5(1)(iv)---Removal from service---Penalty not recommended by authorized officer---Effect---Technical irregularity---Inquiry against civil servant---Authorized Officer recommended reduction of pay by two stages in time scale for period of two years but competent authority imposed penalty of removal from service---Validity---Competent authority, without taking into consideration recommendations of authorized officer to the status of Auditor General of Pakistan, completely overlooked his recommendations and went on to impose extremely harsh penalty of removal from service---If authority was not inclined to agree with findings of authorized officer, it was required to record proper reasons for doing so after notice to affected civil servant---Public power could not be exercised arbitrarily or capriciously---Competent authority did not record any reason for not following recommendations of authorized officer---Supreme Court set aside penalty of removal from service being unwarranted and since certain allegations against civil servant stood established, those could not be allowed to go un-noticed altogether---Supreme Court reinstated civil servant with back-benefits and remanded the case to competent authority to decide whether penalty proposed by authorized officer or such lighter penalty as it could consider fit, ought to be imposed in the interest of justice---Appeal was allowed.

Chief Director-General Directorate of National Savings v. Rahat Ali 1996 SCMR 248 fol.

(c) Administrative decision---

----Effects and scope---When such decision is rendered by an administrative authority it is essential that appropriate balance must be struck between adverse effects which decision may have on rights or interests of person concerned and purpose which authority is seeking to pursue, proportionately.

Independent Newspaper Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others 1993 SCMR 1533 rel.

M.M. Aqil Awan, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Appellant.

Rizwan Ahmed Siddiqui, D.A.-G. and A.A. Siddiqui, Advocate­-on-Record for Respondent No.1.

Ali Mumtaz Hassan; Advocate-on-Record (absent) for Respondents Nos.2 to 4.

Date of hearing: 9th October, 2008.

2009 S C M R 288

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Zia Perwez and Sabihuddin Ahmed, JJ

Captain ABDUL RAHIM----Petitioner

Versus

NAEEM SAGAR and others----Respondents

Criminal Petition No.61-K of 2008, decided on 5th November, 2008.

(On appeal from the order, dated 5-8-2008 of the High Court of Sindh, Karachi passed in Criminal Acquittal Appeal No.39 of 2008).

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

----S. 417---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Principles enumerated.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 fol.

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

---Ss. 409/420/468/471/34---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Sufficient incriminating evidence had not been brought on record during trial to prove the charge against the accused person--Acquittal of accused did not suffer from any legal infirmity---Complainant petitioner had only adopted proceedings to cause undue harassment by frivolous litigation in a family dispute and such practice could not be encouraged---Petition for leave to appeal was consequently dismissed and leave to appeal was refused with costs amounting to Rs.10,000.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th November, 2008.

2009 S C M R 291

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

THE STATE---Petitioner

Versus

ABDALI SHAH---Respondent

Criminal Petition No.3-K of 2008, decided on 30th October, 2008.

(On appeal against the order, dated 16-11-2007 passed by High Court of Sindh in Criminal Bail Application No.902 of 2007 (Abdali Shah v. The State).

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

----Ss. 497(5) & 537---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21---Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation---Huge quantity of 52 Kgs. of "Charas" was allegedly recovered from the dickey of the taxi of the accused---Police could not possibly foist such a huge quantity of "Charas" upon the accused---High Court had relied heavily upon the technical aspect of the seizure and arrest which was misconceived---Accused was apprehended by police during normal patrol duty and no raid was carried out by the police personnel, and as such S.21 of the Control of Narcotic Substances Act, 1997, was not applicable---Even otherwise, policy party could not be expected to go in search of the officer entitled to arrest the accused being an A.S.-I., on his apprehension---At the most this was an irregularity which was curable under S.537, Cr.P.C.---Second ground weighing with High Court that the investigation was not carried out by an official authorized to do so, was also devoid of substance, as no prejudice had been caused to accused by such investigation and it was merely an irregularity curable under S.537, Cr.P.C.---Bail allowed to accused was cancelled in circumstances.

Muhammad Hanif v. The State 2003 SCMR 1237; Muhammad Idrees v. The State PLD 2006 Lah. 780 and The State through Advocate-General v. Bashir PLD 1997 SC 408 ref.

Muhammad. Farooq Khan v. The State 2007 PCr.LJ 1103 distinguished.

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

---Ss. 21 & 9(c)---Criminal Procedure Code (V of 1898), S.537---Investigation by an unauthorized officer is an irregularity---Investigation carried out in the case by an officer not authorized to do so is merely an irregularity, which is curable under S.537, Cr.P.C.

Shahadat Awan, Prosecutor-General, Sindh and A.A. Siddiqui, Advocate-on-Record for the State.

Nemo for Respondent.

Date of hearing: 30th October, 2008.

2009 S C M R 294

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Zia Perwez and Sabihuddin Ahmed, JJ

THE STATE----Petitioner

Versus

MUHAMMAD ASLAM KHAN and others----Respondents

Criminal Petition No.62-K of 2008, decided on 5th November, 2008.

(On appeal from the order, dated 24-7-2008 passed by High Court of Sindh, Karachi in Criminal Miscellaneous Application No.101 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.364, 302, 342, 201 & 202/34---Constitution of Pakistan (1973), Art.185(3)---Quashing of proceedings---Petition for leave to appeal had arisen out of order of High Court whereby proceedings of Sessions case pending in the Trial Court, were quashed---Issue, which required to be examined in the case, was as to whether the quashing of the proceedings was allowed in accordance with the settled principles of law, which required that if prima facie the offence had been committed, the ordinary course of trial before the court was not to be allowed to be deflected through an approach to inherent jurisdiction of the High Court---Leave to appeal was granted to examine the impugned order on the touchstone of above said rule.

Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

Shahadat Awan, P.-G. Sindh and Mazhar Ali B. Chohan, Advocate-on-Record for the State.

M. Ilyas Khan, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondents Nos. 1 to 3.

Nemo for Respondents Nos.4 to 49.

Date of hearing: 5th November, 2008.

2009 S C M R 296

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ghulam Rabbani, JJ

FAZAL-UR-REHMAN HANIF----Petitioner

Versus

STATION HOUSE OFFICER, TALUKA POLICE STATION, MIRPURKHAS and 3 others----Respondents

Civil Petitions Nos.893-K and 894-K of 2003, decided on 16th April, 2007.

(On appeal from the judgment dated 7-10-2003 passed by High Court of Sindh at Karachi in Constitutional Petition No. D-961 of 1993 and Special Customs Appeal No.61 of 1998).

Customs Act (IV of 1969)--

----Ss. 6, 156(1)(8)(89), 168(2), 171 & 180---Constitution of Pakistan (1973), Art.185(3)---Three thousand Tolas of gold belonging to petitioner having been recovered from vehicle driven by the petitioner, case under S.156(1)(8)(89) of Customs Act, 1969 was registered against him and recovered gold with vehicle was confiscated and penalty was also imposed on the petitioner---Appeal filed before Customs Appellate Tribunal and Special Customs Appeal filed by the petitioner had been dismissed by the High Court---Contentions of the petitioner were; that Traffic Police Inspector having not been notified as Customs Officer under S.6 of the Customs Act, 1969, he was not empowered to search the vehicle and make seizure of gold; that no notices under Ss.168(2), 171 & 180 of Customs Act, 1969 had been given which were mandatory requirement of law, the action on the part of Police and Customs Authorities including the adjudication proceedings, were illegal and that neither the recovered gold was proved to have been smuggled nor said questions of law were properly considered by the High Court in appeal and in constitutional petition---Contentions raised by the petitioner had sufficient force to be considered; leave to appeal was granted to consider the contentions of the petitioner.

Sohail Muzaffar, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

A.S.K. Ghori, Advocate-on-Record for Respondents Nos.3 and 4 (in Civil Petitions Nos.893-K and 894-K of 2003).

Akhtar Ali Mehmood, D.A.G. on Court notice.

Date of hearing: 16th April, 2007.

2009 S C M R 299

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

MITHO PITAFI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.69-K of, 2008, decided on 29th October, 2008.

(Against the order, dated 11-8-2008 passed by High Court of Sindh, Sukkur Bench in Criminal Bail Application No.376 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Co-accused was released on bail by the Trial Court, but the concession of bail was declined to the accused petitioner on the ground that he was fugitive from law---High Court as well as the Trial Court had rejected the bail of petitioner on account of his absconsion and not on merits---Validity---Bail could be granted, if accused had good case for bail on merits and mere his absconsion would not come in the way while granting him bail---High Court had not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner---Petition was converted into appeal and same was allowed---Impugned order passed by the High Court was set aside and the petitioner was directed to be released on bail, in circumstances.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioner.

Shahadat Awan, P.-G. Sindh for the State.

2009 S C M R 301

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ghulam Rabbani, JJ

ZARAI TARAQIATI BANK----Petitioner

Versus

LAEEQ AHMED----Respondent

Civil Petition No.343-K of 2006, decided on 17th April, 2007.

(On appeal from the judgment, dated 19-4-2006 passed by High Court of Sindh at Karachi in I. A. No.9 of 2005).

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

----S. 9---Constitution of Pakistan (1973), Art.185(3)---Petitioner had stated that the proceedings in the suit filed by the petitioner involving the same dispute in the Banking Court, had matured for conclusion; and if the execution of the decree passed by the High Court in the suit filed by the respondent against the petitioner under challenge before the Supreme Court in the present petition, was stayed till the decision of the suit of petitioner Bank, he would not press the petition---Counsel for respondent, had stated that respondent would not agitate for the execution of decree pending disposal of the suit filed by the petitioner Bank---Petition was disposed of by the Supreme Court with direction that pending final decision of the suit filed by the petitioner Bank against the respondent in the Banking Court, decree would not be executed.

Muhammad Siddiq Mirza, Advocate Supreme Court for Petitioner.

A.A. Siddiqui, Advocate-on-Record for Respondent.

2009 S C M R 303

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ijaz Yousaf, JJ

PIR MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal M.A. No.272 of 2008 in Criminal Appeal No.233 of 2007, decided on 22nd August, 2008.

(On appeal from the judgment, dated 21-9-2005 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.941 of 2005).

Penal Code (XLV of 1860)---

----Ss. 302, 309 & 310---Compromise---Accused had moved application that parties had compromised the matter and that legal heirs of deceased had forgiven accused in the name of Allah Almighty and had also waived the right of Qisas and they did not claim Diyat amount---District and Sessions Judge to whom compromise application was made, after recording statements of legal heirs of deceased submitted that legal heirs of deceased had compounded the matter with accused in the name of Almighty Allah---Statements of elders of the locality and of Nazim Union Council were also recorded in that respect---Legal heirs of deceased present in the court had admitted their statements with regard to compromise---Parties were permitted to compound the offence---Conviction and sentence of death awarded to accused by the Trial Court, were set aside and he was directed to be released.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Sh. Mehmood Ahmed, Advocate-General, N.-W.F.P. for the State.

S. Zafar Abbas Naqvi, Advocate-on-Record for the Complainant.

2009 S C M R 304

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Mirza FARHAN AHMED----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.237 of 2008, decided on 30th July, 2008.

(On appeal from the judgment, dated 11-7-2008 in Criminal Miscellaneous No.4567/B of 2008 passed by the Lahore High Court, Lahore).

Customs Act (IV of 1969)---

----Ss. 2(s), 16, 39, 156(1)(8)(1)(70) & 157---S.R.O.1017(I)/98, dated 21-7-1998---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Deputy Prosecutor General had not controverted that petitioner was not a previous convict; that petitioner was ' ill and his custody was no more required for the purpose of investigation---Offence under S.156(1)(8) of Customs Act, 1969 though carried a sentence of 14 years imprisonment, but the act of taking foreign currency out of Pakistan beyond the prescribed limit being not immoral or anti-social in nature, but was technical because as per clause (f) of the S.R.O. No.1017(I)/98, dated 21-7-1998, the Government itself had allowed taking out of Pakistan the amount up to the US Dollar 10,000 or equivalent to other currencies---Case for grant of bail having been made out, petition was converted into appeal and allowed---Petitioner would be released on bail in circumstances.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mian Asif Mumtaz, D.P.-G. Punjab for the State.

Date of hearing: 30th July, 2008.

2009 SCMR 306

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Akhtar Shabbir and Sarmad Jalal Osmany, JJ

ABDUL RASHEED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.422 of 2005 out of J.P. 230 of 2004, decided on 15th October, 2008.

(On appeal from the judgment, dated 24-11-2003 passed by the High Court of Balochistan, Quetta in Criminal Appeal No.125 of 2003).

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

---S. 9(b)---Appraisal of evidence---Prosecution witnesses had demonstrated complete unanimity on all aspects of the case---No contradiction could be pointed out in the evidence, so as to create a dent in the prosecution case---No enmity, ill-will or grudge had been alleged against the prosecution witnesses to falsely implicate the accused---Large quantity of one Kg. heroin could not be thrust upon the accused in absence of any tangible and concrete enmity, which had not been proved by the defence---No misreading or non-reading of evidence resulting into miscarriage of justice was pointed out in the case---Provisions of S.103, Cr.P.C. were not applicable by virtue of S.25 of the Control of Narcotic Substances Act, 1997---Prosecution witnesses being members of the raiding party were natural witnesses and their testimony could not be discarded merely on the ground of their being employees of police force---Accused had admitted the raid and heroin had been recovered from underneath the bed of a room of his house---Accused had failed to substantiate that the recovered articles were not in his. exclusive possession---Merely raising the plea that some other persons also occupied the house was not sufficient to exonerate the accused from the charge---After the proof of recovery by the prosecution, accused had not discharged the burden shifted to him under S.29 of the said Act--Recovery witnesses and Chemical Examiner's report had proved the guilt of accused---Impugned judgment did not suffer from any illegality or infirmity---Appeal was dismissed in circumstances.

Fida Jan v. The State 2001 SCMR 36; 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 ref.

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

----Ss. 25 & 9(b)---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Recovery witnesses, status of---Section 25 of the Control of Narcotic Substances Act, 1997, has excluded the applicability of S.103, Cr.P.C. to the cases under the said Act---Prosecution witnesses being members of the raiding party are natural witnesses and their testimony cannot be discarded merely on the ground that they are the employees of police force.

Fida Jan v. The State 2001 SCMR 36; 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 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 15th October, 2008.

2009 S C M R 310

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Moosa K. Leghari and Sheikh Hakim Ali, JJ

MUHAMMAD YASIN----Petitioner

Versus

Mst. ABIDA RAHIM and others----Respondents

Civil Petition No.1528-L of 2007, decided on 7th May, 2008.

(On appeal from the judgment, dated 24-9-2007, passed by Lahore High Court, Lahore in Civil Revision No.634 of 2000).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art.185(3)---High Court as well as the first appellate court after proper appreciation of evidence had recorded concurrent findings of fact that delivery of the possession of the suit property was not proved by the petitioner and that it was the respondents who were still in possession of suit property over which their predecessors had built up a house---In his earlier suit for possession of the suit property on the basis of ownership filed by the petitioner, he did not mention about making of the gift of the suit property to him by his father---Impugned judgment of the High Court, not suffering from any infirmity warranting inference by the Supreme Court, petition for leave to appeal was dismissed.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Muhammad Anwar, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 7th May, 2008.

2009 S C M R 312

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD SAFDAR RANA----Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others----Respondents

Civil Petition No.1143-L of 2007, decided on 30th September, 2008.

(On appeal from the judgment, dated 23-5-2007 passed by Punjab Service Tribunal, Lahore in Appeal No.101 of 2007).

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

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Promotion---Service Tribunal had decided appeal brought by the petitioner after appraisal of entire material available on record and it was a well reasoned judgment---As per seniority list, case of petitioner was not a fit case for his promotion---Petitioner had since retired---No substantial question of law of public importance was involved in the petition---Impugned judgment was just and proper and no illegality or infirmity was found in said judgment so as to warrant interference by the Supreme Court---Petition lacking in merits was dismissed and leave refused.

Pervaiz.Inayat Malik, Advocate Supreme Court for Petitioner.

Mian Tariq Ahmed, Additional Advocate-General, Ms. Shama Zia, D.S. Education Department and Inayat Ullah Niazi, Section Officer, Education Department for Respondents.

Date of hearing: 30th September, 2008.

2009 S C M R 315

[Supreme Court of Pakistan]

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

GOVERNMENT OF SINDH through Secretary Education and others----Petitioners

Versus

DELHI ANGLO ARABIC COLLEGE AND SCHOOLS----Respondent

Civil Petition No.285-K of 2004, decided on 19th December, 2006.

(On appeal from the judgment, dated 20-1-2000 passed by High Court of Sindh, Karachi in H.C.A. No.357 of 2000).

(a) Arbitration Act (X of 1940)---

----Ss. 20 & 34---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of rent---Rent deed provided for reference of dispute to arbitration---Defendant admitted his liability and undertook to pay rent but did not object to maintainability of suit and ask Trial Court to stay proceedings in presence of arbitration agreement between parties---Suit decreed by Trial Court upheld in appeal by High Court---Validity---Supreme Court repelled defendant's objection raised regarding maintainability of suit on such ground and refused leave to appeal in circumstances.

(b) Privately Managed School and Colleges (Taking over) Regulation, 1972 [MLR 118]---

----Para. 11---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Transfer of Property Act (IV of 1882), S.111---Constitution of Pakistan (1973), Art.185(3)---Nationalized Educational Institution functioning in private rented premises---Suit for recovery of rent---Maintainability--Suit decreed by Trial Court upheld in appeal by High Court---Validity---Exemption provided by M.L.R. 118 to such premises from application of Sindh Rented Premises Ordinance, 1979 had been withdrawn---Breach of any term of lease agreement by defendant-tenant was sufficient ground for plaintiff to terminate agreement---Defendant had not raised objection as to maintainability of suit before Trial Court or High Court---Supreme Court repelled such objection and refused leave to appeal in circumstances.

(c) Administration of justice---

----Injustice or hardship to a party would not deprive aggrieved party to claim and assert his right available to him under the law---Principles.

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

Salman Hamid, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Respondent.

2009 SCMR 320

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Syed Sakhi Hussain Bokhari and Sheikh Hakim Ali, JJ

SECRETARY, IRRIGATION AND POWER DEPARTMENT GOVERNMENT OF PUNJAB, LAHORE and others----Petitioners

Versus

MUHAMMAD AKHTAR and others----Respondents

Civil Petitions Nos.367-L to 370-L, 386-L to 388-L and 404-L of 2008, decided on 22nd October, 2008.

(On appeal from the order, dated 12-3-2008 of the Lahore High Court, Multan Bench passed in F.A.Os. Nos.18-L to 25-L of 2007).

Industrial Relations Ordinance (XCI of 2002)---

---Ss. 2(xxx), 46 & 48---Punjab Civil Servants Act (VIII of 1974), S.2---Constitution of Pakistan (1973), Art.212(3)---Regularization of service---Grievance petition---"Workman", determination of---Grievance petition filed by employees before the Labour Court for regularization of their services, having been allowed by the Labour Court, Department preferred appeal, which was dismissed by the High Court---Labour Court had recorded its findings on the basis of the evidence adduced by the parties and came to the conclusion that in view of the nature of duties performed by employees and their length of continuous service, they were entitled to be regularized in service---Validity---Ordinarily, the Supreme Court was not expected to substitute findings of fact recorded by the competent forum---Question whether employees were to be treated to be civil servants, was not seriously agitated by the Department at the appropriate stage---Prima facie, in view of the definition contained in S.2 of Punjab Civil Servants Act, 1974, the work-charged employees did not fall within the category of civil servants---Such point, however needed to be examined further in some other appropriate case---Impugned judgment of the High Court was plainly correct---Cases were not fit warranting interference by the Supreme Court---Petition for leave to appeal was dismissed, in circumstances.

Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 and Muhammad Asim v. Telecommunication and others 1997 PLC (C.S.) 1131 ref.

Mian Tariq Ahmed, Additional Advocate-General, Punjab for Petitioners.

Sher Nawaz Shah, Advocate Supreme Court for Respondents (in C.Ps. Nos.367-L to 370-L, 387-L, 388-L and No.404-L of 2008).

Nemo for Respondents (in C.P. No.386-L of 2008).

2009 SCMR 323

[Supreme Court of Pakistan]

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

THE STATE through Directorate-General of Inspection and Internal Audit (Customs and Excise), Karachi----Petitioner

Versus

ZAFAR ALI KHAN and another----Respondents

Criminal Petitions Nos.13-K and 19-K of 2004, decided on 3rd April, 2006.

(On appeal from the order, dated 16-1-2004 of the High Court of Sindh, Karachi, in Special Criminal Acquittal Appeal No.12 of 2002 and Special Criminal Acquittal Appeal No.5 of 2003).

Customs Act (IV of 1969)---

----S. 185---Constitution of Pakistan (1973), Art. 185(3)---Counsel for the petitioner had contended that Director-General of Inspection and Internal Audit was competent to file appeal in terms of S.185 of the Customs Act, 1969 and that words `any person' having been elaborately discussed by the Supreme Court in PLD 2005 SC 686, leave to appeal could be granted---Leave to appeal was granted to consider said contentions of the petitioner accordingly.

The State through Collector Customs and Excise, Quetta v. Azam Malik and others PLD 2005 SC 686 ref.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner (in Criminal Petition No.13-K of 2004).

Akhtar Hussain, Advocate Supreme Court for Petitioner (in Criminal Petition No.19-K of 2004).

Nemo for Respondents.

2009 S C M R 324

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Sabihuddin Ahmed, JJ

NOOR MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.57-K of 2008, decided on 20th October, 2008.

(On appeal against the order, dated 30-6-2008 passed by High Court of Sindh, Karachi in Criminal Bail Application No.579 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(ii), 504, 147, 148 & 149---Bail, grant of---Two F.I.Rs, one by accused himself and the other by cousin of deceased respecting the same incident containing the version of the complainant party, were registered---Reading the counter version in juxtaposition with each other existence of a quarrel over money leading to raising the tempers and use of fire-arm by both parties appeared to be acknowledged; it also appeared to have been acknowledged that it was the complainant party, which went to the spot where accused and his companions were already working---Both parties were involved in the same business i.e. excavating water channels leading to the sea---Accused and his brother were not allowing the complainant party to operate machines in the area whereas deceased had asked accused either to allow the machine to operate on the same site or to pay amount which the deceased and his parents owed to a contractor---Tempers ran high in the course of arguments leading to a sudden fight between the parties equipped with fire-arms; in circumstances, it could not be said that it was a case of premeditated cold-blooded murder---Was yet to be determined as to which of the parties was the aggressor and whether capital punishment or that of imprisonment for life could to awarded in the circumstances---All accused persons from both the sides had already been granted bail at one stage or the other---Taking all factors into consideration along with the fact that accused had already remained in custody for more than a year, concession of bail could also be extended to accused---Accused was granted bail, in circumstances.

M. Ashraf Kazi, Senior Advocate Supreme Court for Petitioner.

Shahadat Awan, Prosecutor-General, Sindh for Respondent.

I.A. Hashmi, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for the Complainant.

2009 SCMR 326

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Syed Sakhi Hussain Bokhari and Sheikh Hakim Ali, JJ

MUHAMMAD AZAM----Appellant

Versus

MUHAMMAD ABDULLAH through L.Rs.----Respondents

Civil Appeal No.1600 of 2001, decided on 3rd November, 2008.

(On appeal from the judgment, dated 13-2-2001 passed by the Lahore High Court, Lahore in Civil revision No.83-D of 1990).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185---Civil Procedure Code (V of 1908), O.XLI, R.27---Suit for pre-emption--Production of additional evidence---Application for---Both the Trial Court and Appellate Court concurrently decreed the suit---Revision filed by defendant was partly allowed and suit of the plaintiff was dismissed to the extent of land measuring 1 Kanal and 7 Marlas on the ground that plaintiff was not to share in said Khewat--Counsel for the defendant had submitted that he had filed application for production of additional evidence before the High Court whereupon notice was issued to the plaintiff and High Court observed that same would be decided along with main case (Revision), but the High Court did not dispose of said application before decision of the main case---High Court decided the revision petition brought by the defendant without taking into consideration documents in question and without disposal of said application for additional evidence---Case of defendant, in circumstances, had been prejudiced---Even otherwise case of defendant was that he was co-sharer in the Khewat in question---High Court in the interest of justice; should have decided application of defendant before final adjudication of the case---Impugned order being not sustainable, same was set aside by the Supreme Court and case was remanded to the High Court for decision afresh on merits and in accordance with law after dealing with the application for additional evidence.

Muhammad Umer v. Muhammad Qasim 1991 SCMR 1232; Muhammad Yousaf v. Abdul Khaliq 1991 SCMR 1981 and Imtiaz Begum v. Sultan Jan 2008 SCMR 1259 ref.

Gulzarin Kiani, Advocate Supreme Court for Appellant.

Ch. Arshad Mehmood, Advocate Supreme Court and Abdul Rashid Awan, Advocate Supreme Court for Respondents.

Date of hearing: 3rd November, 2008.

2009 SCMR 329

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

CHIEF ELECTION COMMISSIONER OF PAKISTAN and others----Petitioners

Versus

Miss NASREEN PERVEZ----Respondent

Civil Petition No.748 of 2008, decided on 4th December, 2008.

(On appeal against the judgment, dated 8-5-2008 passed by Federal Service Tribunal, Karachi in Appeal No.92(K)(C.S.) of 2006).

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

----Ss. 3 & 5(4)---Dismissal from service---Procedure---Before imposing such penalty, regular inquiry must be held to determine factual basis of allegations required to be proved in accordance with law---When allegations required explicit proof, then holding of inquiry could not be dispensed with---Principles.

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

---Ss. 35(4) & 10---Service Tribunals Act (LXX of 1973), S.3---Civil Servants Act (LXXI of 1973), S.2(b)---Election Commission of Pakistan Rules, 1989 (S.R.O.128(I)/89, dated 5-2-1989), Rr.5, 10 & 12---Constitution of Pakistan (1973), Ars.199 & 221---Constitutional petition before High Court---Employee of Election Commission of Pakistan--Compulsory retirement from service---Charge of misconduct---Imposition of such penalty after finding petitioner's reply to show-cause notice as unsatisfactory without holding regular inquiry---Validity---Before imposing such penalty, regular inquiry must have been held to determine factual basis of such allegations, which were required to be proved in accordance with law---When allegations required explicit proof, then holding of inquiry could not be dispensed with---Election Commission was performing functions in connection with affairs of Federation--Chief Election Commissioner in exercise of powers under Art.221 of the Constitution and with approval of the President had framed rules relating to terms and conditions of employment in Commission notified as S.R.O.128(I)/89, dated 5-2-1989---Petitioner would be considered a civil servant as his terms and conditions of service were determinable by Federal Legislature under Art.221 of the Constitution and governed by statutory rules--Allegations levelled in show-cause notice did not constitute "misconduct" as defined in Removal from Service (Special Powers) Ordinance, 2000---Impugned order was set aside and petitioner was reinstated in service with all back-benefits.

Muhammad Mubin-ul-Islam v. Federation of Pakistan PLD 2006 SC 603 rel.

Aamir Raza Naqvi, D.A.-G and A.S.K. Ghori, Advocate-on-Record for Petitioners.

Respondent in person.

2009 SCMR 333

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

RASOOL BUX----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.36-K of 2006, decided on 9th October, 2006.

(On appeal from the judgment, dated 10-5-2006 passed by the High Court of Sindh Karachi in Criminal Appeal No.539 of 2005).

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

----S. 9---Constitution of Pakistan (1973), Art. 185(3)---Counsel for the petitioner had assailed the judgments of the Trial Court as well as High Court stating that both said courts had completely overlooked grave and serious infirmities and contradictions in the evidence of the witnesses; non-examination of important witnesses; contradictory evidence relating to the apprehension of the petitioner as given by prosecution witness in his statement under S.161, Cr.P.C. and in his evidence in court; and discrepancies in the weight of two packets containing Charas---Further contentions of the petitioner's counsel was that the Trial Court, during the proceedings found one of the prosecution witnesses not to have observed the sanctity and propriety of the court proceedings as he made gestures and signs suggesting answers to another prosecution witness which fact was noted by the Trial Court in the judgment; it was submitted that such conduct of prosecution witnesses had adversely reflected their reliability and was sufficient to discard their testimony---Validity---Contentions advanced by the counsel required consideration for which purpose, fresh examination and appraisal of evidence was to be made---Leave to appeal was granted by Supreme Court in circumstances.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2009 S C M R 335

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

HABIB-UL-HAQUE alias AJAR----Petitioner

Versus

UMER GUL through L.Rs. and others----Respondents

C.R.P. No.125 of 2004 in Civil Petition No.664 of 2002 and C.M.A. No.2696 of 2004, decided on 13th November, 2008.

(On appeal from the judgment, dated 28-4-2994 of this Court passed in Civil Petition No.664 of 2002).

Constitution of Pakistan (1973)---

----Art. 188---Review of Supreme Court judgment---Supreme Court, after taking into consideration every aspect of the case and taking conscious and deliberate decision on points of facts and law had dismissed petitioner's civil petition---Neither any mistake or error appeared on the face of record nor discovery of a new and important matter or evidence was shown, which is sine qua non for exercise of review jurisdiction of the Supreme Court---Petitioner could not be allowed to re-open the case under the umbrella of review petition and his counsel could not be permitted to reargue the case---Review was declined.

Mst. Kabir-un-Nisa and another v. Settlement Commissioner (Lands) Lahore and 3 others 1975 SCMR 493; Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865; Mst. Kalsoom Malik v. Assistant Commissioner 1996 SCMR 710 and Daewoo Corporation v. Zila council Jhang 2004 SCMR 1213 ref.

Mian Muhammad Younis Shah, Senior Advocate Supreme Court for Petitioner.

Gul Zarin Kiani, Advocate Supreme Court for Respondents.

Ms. Nahida Mehboob .Elahi, D.A.-G. and Ikram Ullah Additional Advocate-General (N.-W.F.P.) for the State.

2009 S C M R 339

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Sheikh Hakim Ali, JJ

MUHAMMAD HALEEM and another----Petitioners

Versus

GENERAL MANAGER (OPERATION) PAKISTAN RAILWAYS HEADQUARTER, LAHORE and others----Respondents

Civil Petitions Nos.222-K and 223-K of 2008, decided on 25th July, 2008.

(On appeal from the judgment, dated 4-2-2008 passed by Federal Service Tribunal, Islamabad in Appeals Nos.426 and 427(K)(C.S.) of 2003).

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

----Ss. 3, 5(4) & 10---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Employee of Pakistan Railways---Charge of illegal supply of water and electricity belonging to Railways to residents of a colony---Imposition of such penalty by authority after considering appellant's reply to show-cause notice without holding regular inquiry---Submission of legal notices by appellant through his Advocate instead of filing departmental appeal---Dismissal of appeal by Service Tribunal for non-filing of departmental appeal by appellant---Validity---Such charges could have been proved only by producing evidence showing appellant to be responsible for alleged illegal act---Authority had not given any reason as to why there was no need to hold inquiry and how such factual charges were taken to be proved without holding an inquiry---Validity---Holding of inquiry was essential to prove such charges of fact and the same could not be dispensed with---When initial order or act relating to initiation of proceedings was contrary to law then all subsequent proceedings and actions taken thereon would have no basis and would fall---Department had penalized appellant without complying with provisions of law---Such legal notices could not be equated/treated as appeal under Removal from Service (Special Powers) Ordinance, 2000---Tribunal had entangle itself in technicalities and completely ignored such illegalities committed by department---Entire process initiated against appellant for his removal from service smacked of mala fides and animosity besides lacking legal sanctions---Supreme Court set aside impugned order and ordered for appellant's immediate reinstatement with all back-benefits.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124 fol.

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

----Ss. 3 & 5(4)---Charge of misconduct or allegation of fact---Proof---Holding of regular inquiry in such-like cases would be essential and dispensation therewith was not permissible---Reasons stated.

Where the allegations/charges/misconduct is of the nature requiring production of evidence to prove the same, then holding of a departmental inquiry is a necessary condition and dispensation therewith cannot be made as in the first place, there would be no evidence or material in possession of the department to establish and prove the charges/allegations of fact and secondly, that the civil servant proceeded against would be deprived of his right to defend himself properly as it would not be possible for him to cross-examine the witnesses, who would depose against him and from their cross-examination, he could not elicit favourable and beneficial statements.

(c) Administration of justice---

----When initial order or act relating of initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124 fol. Petitioners in person.

Latif-ur-Rehman Survery, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.2.

2009 SCMR 344

[Supreme Court of Pakistan]

Present Iftikhar Muhammad Chaudhry, C. J., Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

COMMISSIONER OF INCOME TAX and others----Appellants

Versus

FATIMA SHARIF TEXTILE, KASUR and others----Respondents

Civil Appeals Nos. 1962 to 2205 of 2005, decided on 1st March, 2006.

(On appeal from judgment and order of the Lahore High Court, Lahore, dated 21-7-2004 and 4-10-2004 in Writ Petitions 7800, 8047, 8121, 8294, 8398, 8410, 8481, 8183, 8494, 8516, 8614, 8616, 8623, 8627, 8662, 8682, 8688, 8710, 8736 to 8739, 8743, 8751, 8758, 8759, 8761, 8777, 8797, 8822, 8830, 8838, 8840, 8841, 8895, 8898, 8923, 8930, 8935, 8938, 8940, 8959, 8983, 9001, 9023 to 9026, 9036, 9037, 9042, 9048 to 9053, 9064, 9065, 9075, 9080, 9114, 9135, 9151, 9152, 9166, 9171, 9173, 9174, 9187, 9188, 9193, 9194, 9202 to 9204, 9208, 9209, 9926, 10056 to 10059, 10104, 10108, 10124, 10126, 10148 to 10150, 10238, 10498, 10502, 10503, 10577 to 10579, 10591 to 10601, 10667 to 10676, 10875, 10876, 10878, 10686; 10874, 10925, 10927, 10929, 11032, 11082 to 11084, 11091 to 11107, 11123, 11255 to 11270, 11348 to 11350, 11354 to 11366, 11373, 11374, 11381 to 11383, 11432, 11562, 11726 to 11731, 11799, 11800, 12053, 12056, 12066 to 12070, 12279, 12081 to 12083, 12159, 12280, 12493 to 12498, 12590, 12627, 12635, 12720, 12927 to 12930, 13807, 13851, 13852, 13854 to 13868, 14252, 15022 and 15027 of 2004).

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 177---C.B.R. Circular No. 1(1)S(ITAS)/2004---Filing of return under self-assessment scheme---Reopening of assessment---Absence of specific provision in Income Tax Ordinance, 2001 requiring issuance of notice to assessee before proceeding against him---Effect---Law provided that such return filed by assessee would amount to an assessment order---General audit of assessment would result in prejudice to assessee making him subject to scrutiny---No one could be condemned unheard---Provision of notice to a person against whom department proposed to proceed would be read in every statute irrespective of absence of such provision therein---Notice to assessee would be given before proceeding against him in spite of absence of its provision in Income Tax Ordinance, 2001---Principles.

Mst. Sattan and others v. Group Captain Masroor Hussain. Officer Commanding, P.A.F. Station Sargodha Cantt. PLD 1962 Lah. 151; Abdul Rashid v. Government of the Punjab through. the Chief Conservator of Forests Lahore and 2 others 1985 CLC 199; Mst. Abeda Begum v. Government of Pakistan and others 1985 CLC 2859; Muhammad Tufail v. Government of Punjab 1990 MLD 327; Gul Muhammad and 8 others v. Buxal and 2 others 1991 CLC 229; Messrs Murree Brewery Company Limited v. Director-General, Excise and Taxation and 3 others 1991 MLD 267; Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061 and Mst. Zahida Sattar and others v. Federation of Pakistan an others PLD 2002 SC 408 rel.

(b) Income tax---

----Press-release issued by Federal Board of Revenue subsequent to filing of return by assessee---Validity---Such subsequent press release could not work retrospectively and would be of no legal consequence for same not being in knowledge of assessee while filing return.

Sadiq Brothers Poultry, Rawalpindi v. Appellate Additional Commissioner I.T./W.T. Rawalpindi 2003 PTD 1780 and 2004 PTD 122 rel.

Makhdoom Ali Khan, Attorney General of Pakistan Raja Muhammad Irshad D.A.G., Muhammad Zafar Iqbal, Advocate-on-Record, Sh. Shaukat Ali, C.I.T., LTU, Lahore for Appellants.

Muhammad Naeem Shah, Latif Ahmad Qureshi, Shahbaz Butt, Dr. Ilyas Zafar, Shahzad Shaukat, Muhammad Iqbal Hashmi, Mian Ashiq Hussain, Zaeem ul Farooq, Siraj-ud-Din Khalid, Advocate Supreme Court, for Respondents.

Dates of hearing: 28th February and 1st March, 2006.

2009 S C M R 348

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD MURAD and others----Petitioners

Versus

THE STATE and others----Respondents

Criminal Petition No.244-L of 2008, decided on 18th September, 2008.

(Against the order of the Lahore High Court, Bahawalpur Bench, dated 4-6-2008 passed in Criminal Miscellaneous No.148-B of 2008/BWP).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/337-H(ii)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Seventeen persons were accused in the F.I.R. for the occurrence taking place at 2 a.m. in the night---Deceased had received six injuries, out of which three were sharp-edged wounds, whereas seven out of seventeen accused were armed with hatchets---Accused were neither connected with the motive part of the story, nor were they attributed any specific injury to the deceased---Accused had been declared innocent in three successive investigations including the one conducted by the Range Crime concerned---Question of guilt of accused required further enquiry in circumstances and they were admitted to bail accordingly.

Muhammad Qamar-uz-Zaman, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Petitioners.

Tanvir Ahmad, Advocate-on-Record for Respondent No.2.

Alamgir, Additional Prosecutor-General with Faqir Muhammad, S.-I. Police Station Sadar Bahawalnagar for the State.

2009 S C M R 350

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

JAVED PAREKH----Appellant

Versus

MUHAMMAD SAFDAR MALIK----Respondent

Civil Appeal No.1712 of 2008, decided on 2nd December, 2008.

(On appeal against the order, dated 25-9-2008 passed by High Court of Sindh, Karachi in 1st Appeal No.4 of 2007).

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2---Suit for recovery of amount---Order for furnishing security to appellant by High Court for decreed amount viz. Rs.25,80,000 which was done by submitting the title deeds of property owned by him together with valuation certificate indicating the value of property as about 40,00,000---Nazir of High Court also submitted the report before the Court informing that value of the property in question ranged between Rs.30,00,000 to Rs.32,00,000---High Court, on the basis of said report of the Nazir of the Court directed that the property offered could not be accepted as security because its value was less then Rs.40,00,000 and consequently directed the appellant to furnish fresh security in the amount of Rs.40,00,000 within on month---Validity---Held, it was totally incomprehensible that when the title documents in respect of the property were admitted to be valued at more than the amount ordered by the Court, how the Court was persuaded to hold that such surety could not be accepted---Valuation certificate furnished by the appellant might have represented an exaggerated value but the fact remained that the Nazir himself had found the property worth more than the amount directed to be furnished as security---No reason for reviewing the earlier order passed by the High Court has been assigned nor it was shown as to on what basis the figure of Rs.40,00,000 was arrived at---Supreme Court, allowed the appeal, set aside the impugned order and directed that the security furnished before the High Court be accepted---Supreme Court, however, observed that greater care was needed to be undertaken by the High Court to help parties in avoiding litigation before the Supreme Court consuming considerable time and expense and causing delay in delivery of justice.

Anwar Hussain, Advocate Supreme Court for Appellant.

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

Date of hearing: 2nd December, 2008.

2009 S C M R 353

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Mian Hamid Farooq, JJ

GOVERNMENT OF THE PUNJAB through Secretary Social Welfare Women Development and Baitul Mal and another----Petitioners

Versus

ABDUL MUTTALIB and others----Respondents

Civil Appeals Nos.314 to 321-L of 2008 and Civil Petitions Nos.378 to 385-L of 2008, decided on 29th August, 2008.

(On appeal from the judgment, dated 14-1-2008 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.2193, 426, 427, 428, 738, 739, 740 and 741 of 2006 respectively).

Constitution of Pakistan (1973)---

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider that whether the Service Tribunal was required to consider the effect of rejection of the representation of the employees by the Secretary to the Government; that whether the employees were required to pass the Departmental promotion examination under the Rules in order to qualify for further promotion to (BS-17), notwithstanding the Circular Letter dated 5-10-1975 issued by the Services and General Administration and Information Department and that whether the employees were entitled to be afforded an opportunity of hearing, before annulment of the entire departmental examination and whether the Service Tribunal had justifiably directed the department, to announce the result of the examination which had already been cancelled---Short points being involved in the case, the office was directed to fix main appeals, on the present record, for hearing within a specified period.

Akhtar Ali Qureshi, A.A.-G., Punjab for Petitioners.

Nemo for Respondents.

2009 S C M R 354

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Mst. ZOHRA BEGUM and others----Petitioners

Versus

MUHAMMAD ISMAIL----Respondent

Civil Review Petition No.178 of 2007, decided on 12th February, 2008.

(On review from the judgment, dated 11-4-2007 of this Court passed in Civil Appeal No.487 of 2003).

Constitution of Pakistan (1973)---

----Art. 188---Review of Supreme Court judgment---Scope---Scope of review was limited and did not permit rehearing of the matter afresh---Every judgment pronounced by the Supreme Court was presumed to be final, solemn and well-considered covering all points arising from the case---Review petition being devoid of merits was dismissed and impugned judgment was maintained.

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

2009 SCMR 356

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SAJID SOHAIL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.82 of 2006, decided on 16th September, 2008.

(On appeal from the judgment, dated 28-9-2004 in Criminal Appeal No.107/J of 1999 and Murder Reference No.535 of 1999 passed by the Lahore High Court, Lahore).

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

----Ss. 302(a) & 302(b)---Punishment of Qatl-i-Amd---No doubt sentence of death as Qisas cannot be inflicted unless requirements of Tazkiyah-al-Shuhood are satisfied and proof of Qatl-i-Amd liable to Qisas as required by S.304, P.P.C. is available, but in the absence of requisite proof under S.304, P.P.C. Ta'zir punishment can be inflicted on an accused, because every Muslim is a competent witness as he is ordained to speak truth and his testimony cannot be discarded, so far as Ta'zir punishment is concerned, if the same is otherwise believable.

Mumtaz Ahmad and another v. The State PLD 1990 FSC 38; Arshad Ali v. The State 1993 PCr.LJ 2540; Ghulam Ali v. The State PLD 1986 SC 741; Riaz Ahmad v. The State 1998 SCMR 1729; Abdul Salam v. The State 2000 SCMR 338; Muhammad Rafiq v. Muhammad Manzoor and others 2007 SCMR 216 and Muhammad Saleem and others v. The State 2006 SCMR 849 ref.

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

----Ss. 302(a) & 302(b)---Appraisal of evidence---Although sentence of death as Qisas could not be awarded to accused unless requirements of Tazkiyah-al-Shuhood were satisfied and proof of Qatl-i-Amd liable to Qisas as required by S.304, P.P.C. was available, yet Tazir punishment could be inflicted on him, because every Muslim was a competent witness who was ordained to speak truth and his testimony could not be discarded if it was otherwise believable---Question of minority of accused at the time of commission of offence had been considered by High Court keeping in view the evidence on record and repelled---Documents referred to and relied upon in support of minority of accused were not produced before the Trial Court as well as the High Court, and at the belated stage accused by his conduct was estopped to take a different stand---All the three eye-witnesses having the stamp of injuries on their persons had corroborated each other in material particulars and their testimony was supported by the medical as well as other evidence---No previous enmity existed between the parties, which knew each other and there was no chance of mistaken identity---Concurrent findings of both the Courts below having been based on reliable and tangible evidence, were unquestionable---Conviction of accused was altered from S.302(a), P.P.C. to S.302(b), P.P.C. and his sentence of death was converted into imprisonment for life in circumstances.

Mumtaz Ahmad and another v. The State PLD 1990 FSC 38; Arshad Ali v. The State 1993 PCr.LJ 2540; Ghulam Ali v. The State PLD 1986 SC 741; Riaz Ahmad v. The State 1998 SCMR 1729; Abdul Salam v. The State 2000 SCMR 338; Muhammad Rafiq v. Muhammad Manzoor and others 2007 SCMR 216 and Muhammad Saleem and others v. The State 2006 SCMR 849 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

M. Saddique Khan Baloch, D.P.-G., Punjab for the State.

Date of hearing: 16th September, 2008.

2009 S C M R 360

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Muhammad Moosa K. Leghari and Zia Perwez, JJ

AFTAB ALAM and others----Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others----Respondents

Civil Petition No.169-K of 2008, decided on 9th July, 2008.

(On appeal from the order, dated 12-2-2008 of the High Court of Sindh, Karachi passed in C.Ps. Nos.D-1659 of 2006, 62 and 317 of 2007).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Grievance of the petitioner which led to the constitutional petition before High Court, was based on presumed narrowing of the road in front of his plot on account of alteration in the policy by the City District Government, in ordering construction of shops between the plot of the petitioner and the road---During the course of proceedings of the constitutional petition in the High Court, it had thus been stated on behalf of the City District Government that road in front of the plot of the petitioner would not be narrowed from 50 feet irrespective of the fact that the shops would be constructed between the plot of the petitioner and the road---Interest/right of the petitioner had thus been sufficiently safeguarded and petitioner was unnecessarily having fear of narrowing of road in front of his plot---City District Government, had clarified that creation of new residential/ commercial plots in the different sectors of the Scheme, redevelopment of project would be made with the approval of concerned authorities and in accordance with the rules of Master Plan Group of offices---Such clarification had further safeguarded the interest of the petitioner---No interference, was called for with the impugned order---Petition for leave to appeal was dismissed.

K.A. Wahab, Advocate-on-Record for Petitioners.

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

2009 S C M R 362

[Supreme Court of Pakistan]

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

FAYYAZUDDIN KHAN----Appellant

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and others----Respondents

Civil Appeal No.1543 of 2000, decided on 30th November, 2006.

(On appeal from the judgment, dated 12-5-2000 passed by Sindh High Court, Karachi in C.P.D. No.665 of 1999).

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

----S. 10---Claim of relief under S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Scope---Section 10 would cover only an erroneous transfer of evacuee trust property in a bona fide manner, but not a deliberate or wanton transfer of evacuee property through auction.

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

----Ss. 8 & 10---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.4---Property described in record as "Gau Shala"---Transfer of such property through auction by settlement Authorities in satisfaction of a claim after adjusting its price from compensation book of claimant---Validity---Mere payment of auction price through compensation book would not establish that claimant was a displaced person---Such property was an evacuee trust property---Impugned transfer was set aside in circumstances.

Kunwer Mukhtar, Advocate Supreme Court for Appellant.

Respondents Nos. 1 and 4: Ex Parte.

Qamar-uz-Zaman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos.2 and 3.

Raja M. Ibrahim Satti, Advocate Supreme Court for Respondents Nos.5 and 6.

Date of hearing: 30th November, 2006.

2009 S C M R 366

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

MUHAMMAD AZEEM-Petitioner

Versus

SHABBIR HUSSAIN and others----Respondents

Civil Petitions Nos.388 to 390-L of 2007, decided on 27th February, 2007.

(On appeal from- judgment/orders, dated 4-12-2006 passed by the Lahore High Court, Lahore in Civil Revisions Nos.1411, 1412 and 1413 of 2006).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---High Court and both courts below had recorded concurrent finding of fact after proper appreciation of evidence on record that petitioner had failed to prove the performance of Talbs as required by the provisions of Punjab Pre-emption Act, 1991---Supreme Court could not be expected to re-appraise the evidence for the purpose of coming to a different conclusion without there being any exceptional circumstances---Impugned judgment was plainly correct to which no exception could be taken---Petition for leave to appeal was dismissed.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioners (in all cases).

Nemo for Respondents (in all cases).

Date of hearing: 27th February, 2007.

2009 S C M R 367

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

SINDH ABADGARS SUGAR MILLS LIMITED----Petitioner

Versus

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION, through Commissioner, Karachi and 3 others----Respondents

Civil Petition No.196-K of 2008, decided on 6th October, 2008.

(On appeal from the judgment, dated 20-2-2008 passed by the High Court of Sindh, Karachi in Constitutional Petition No.968 of 2003).

Provincial Employees' Social Security Ordinance (X of 1965)---

---S. 20(1)---Constitution of Pakistan (1973), Art. 185(3)---Obligation of the establishment to get registered with the Employees Social Security Provincial Institution is a statutory one and in terms of S.20(1), Employees' Social Security Ordinance, 1965, it should pay the necessary contribution to the Institution--Such obligation of the establishment is not dependent upon any action or initiative on the part of Institution---Establishment and the Institution still enter into arrangement as provided under S.46 of the Ordinance.

S.M. Yaqoob, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

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

Nemo for Respondents Nos.2 to 4.

Date of hearing: 6th October, 2008.

2009 S C M R 369

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Muhammad Qaim Jan Khan, JJ

ARSALA KHAN and another----Petitioners

Versus

GULFAM and others----Respondents

Civil Petition No.115-P of 2008, decided on 23rd October, 2008.

(Against the judgment, dated 5-6-2008 passed by the Peshawar High Court, Peshawar in Writ Petition No.801 of 2006).

Specific Relief Act (I of 1877)---

-- --S. 8---Constitution of Pakistan (1973), Art.185(3)---Conversion of petition for leave to appeal into appeal---Suit for possession---High Court decided constitutional petition on merits in absence of the petitioner or his counsel, because on the previous date of hearing both the parties had agreed for addressing arguments on next date of hearing---High Court in its wisdom opted not to dismiss petitioner's constitutional petition for non-prosecution and dismissed same on merits on the same date of hearing---Validity---Absence of counsel for the petitioner could have prejudiced the petitioners---Counsel representing respondent, had very fairly stated that let the matter be remanded to High Court for fresh decision in presence of both the parties---With the consent of counsel for the parties, petition was converted into appeal and was allowed---Impugned judgment by High Court, was set aside and constitutional petition was directed to be decided afresh which would be deemed to be pending before the said Court.

Gulzarin Kiani, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Petitioners.

Atiq-ur-Rehman Qazi, Advocate Supreme Court for Respondent No.1.

Muhammad Wisal, S.D.O. for Respondent No.2.

Nemo for other Respondents.

2009 S C M R 371

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Zia Perwez and Syed Sakhi Hussain Bokhari, JJ

REHMATULLAH KHAN and another-Appellants

Versus

GHULAM FARID and others----Respondents

Civil Appeals Nos.263 and 300 of 2006, decided on 11th September, 2008.

(Against the judgment of the Peshawar High Court, D.I. Khan Bench, dated 17-1-2006 passed in Civil Revision No.189 of 2008).

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

----S. 13---Civil Procedure Code (V of 1908), O.XX, R.5---Judgment---No issue-wise finding given---Effect---Ten issues were framed in a pre-emption suit and Trial Court dismissed the suit by deciding only three issues but Lower Appellate Court decreed the suit in favour of pre-emptor, on the basis of those issues which were not decided by Trial Court---High Court in exercise of revisional jurisdiction gave its finding on only one issue and partly dismissed the suit---Validity---Material available on record had made it clear that evidence had not been properly appreciated at any stage---Supreme Court set aside the judgments and decrees passed by the courts below and remanded the case to Trial Court for decision afresh giving its findings on all issues after hearing the parties and providing them proper opportunity to produce further evidence---Appeal was allowed.

Abdul Aziz Kundi, Advocate Supreme Court/Advocate-on-Record for Appellant (in C.A. 263 of 2006) and for Respondent No.1 (in C.A. No.300 of 2006).

Gulzarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in C.A. No.300 of 2006) and for Respondents Nos.1 to 4 (in C.A. No.263 of 2006).

Respondent No.5 (in C.A. No.263 of 2006) and Respondents Nos.2 to 5 (in C.A. No.300 of 2006): Ex parte.

Date of hearing: 11th September, 2008.

2009 S C M R 375

[Supreme Court of Pakistan]

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

ADMINISTRATOR, MUSLIM AUQAF, PUNJAB and others----Appellants

Versus

MUHAMMAD MOHSIN and another----Respondents

Civil Appeal No.39 of 2003, decided on 8th December, 2006.

(On appeal from the judgment of the Lahore High Court, Lahore dated 30-4-2001 passed in F.A.O. No.8 of 1978).

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

----Ss. 3, 8 & 10---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Courts below and High Court concurrently held that property, the subject-matter of appeal, was not treated in Revenue Record as attached with the shrine; that it was an evacuee property which stood allotted to the respondents by the competent authority in the Rehabilitation department---Counsel appearing for the Chairman Evacuee Trust Board on court notice had submitted that all the properties attached with the said shrine had been declared to be properties of the Evacuee Trust Board in terms of the order passed by the Chairman of the Board and that appellants had nothing to do with the property and the Evacuee Trust Board would examine the matter and would file a reference in that regard, if it considered proper---Counsel for the respondents had submitted that the concurrent findings of the courts below had been given effect to and the property which had been allotted to the respondents was neither Waqf property nor the property on which the Evacuee Trust Board could lay any claim; however, if at any stage, a reference was filed by the latter, respondents would join the proceedings and put up their case there---Supreme Court, in circumstances, declined to comment on the merits of the referred order passed, lest it should prejudice the case of either side; however, in view of the finding given by the Chairman, Evacuee Trust Board to which reference had been made; and the fact that the appellants had ,not challenged the same, appeal filed by appellant/Administrator Muslim Auqaf, being not maintainable, was dismissed.

Mian Ahmed Alib v. The Rehabilitation Authorities PLD 1964 SC 229 ref.

Muhammad Rafique Warriach, Advocate Supreme Court for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents.

Mian Qamar-uz-Zaman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record on Court notice.

Date of hearing: 8th December, 2006.

2009 S C M R 378

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan and Zia Perwez, JJ

PUNJAB ROAD TRANSPORT CORPORATION and another----Appellants

Versus

MUHAMMAD SARFRAZ and another----Respondents

Civil Appeals Nos.786 and 787 of 2007, decided on 29th July, 2008.

(On appeal from the judgment, dated 22-11-2006 of the Lahore High Court, Lahore passed in L.As. Nos.387 and 388 of 2003).

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

----S. 8---Industrial Relations Ordinance (XXIII of 1969), Ss.25 & 51---Industrial Relations Ordinance (XCI of 2002), Ss.46 & 62---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Notification for exemption of appellant-Corporation from Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Grievance petition--Corporation, vide Government Notification was exempted from Standing Orders Ordinance, 1968 and was aggrieved by common judgment of High Court in Labour appeal upholding application under Ss.51/62 of Industrial Relations Ordinance, 1969/2002, whereby appeals were accepted, with direction for payment of benefits and dues to respondents in pursuance of collective settlement and benefits accruing therein---Basic benefits of the employees working in establishment under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 being statutory in nature, were enforceable together with such further benefits as could be conferred by settlement---No settlement could be presumed to have an effect overriding that of statutory rights---Even the minimum rights of employees protected by law ceased to exist as a consequence of said Notification---Employees were substituted by the terms of Golden Handshake Scheme---Minimum rights available under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, conferred upon the employees of establishment concerned being statutory in nature, stood on a higher padestal as compared to contractual obligation arising out of settlement through collective bargaining which were only an addition to such minimum benefits---Proceedings under Ss.51/62 of Industrial Relations Ordinance; 1969/2002 for enforcement of the terms of settlement which became unenforceable, could not be maintained--Allowing appeals both impugned judgments were set aside by the Supreme Court.

Muhammad Arif Raja, Advocate Supreme Court for Appellants (in both Civil Appeals).

Ghulam Rasool Malik, Advocate Supreme Court for Respondents (in both Appeals).

Date of hearing: 29th July, 2008.

2009 SCMR 382

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

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

Versus

QASIM SHAH----Respondent

Civil Petition No.248-P of 2007, decided on 18th November, 2008.

(On appeal from the judgment, dated 14-2-2007 of the Peshawar High Court, Abbottabad Bench passed in Writ Petition No.369 of 2006).

Constitution of Pakistan (1973)---

----Art. 185(3)---Selection of candidates---Principles---Waiting list of candidates---Four posts on which successful candidates did not join were. left vacant by authorities to be filled after fresh advertisement---High Court directed the authorities to consider respondent and other remaining successful candidates for appointment against first available vacancy---Validity---When some of the candidates did not join the service, such vacant posts remained vacant and it was imperative for the department to have considered remaining candidates for appointment against such posts---If some selected candidates were still available on waiting list, then such posts could not be kept vacant till the next process of recruitment---Four posts were not filled in, the remaining four persons were entitled to be considered for appointment---Failure of authorities to appoint respondent and others in earlier process was not in. accordance with fair practice of recruitment---Respondent was one of the candidates who were selected during earlier recruitment process whereby twenty persons qualified the test and remaining selected candidates, including respondent, were ignored despite availability of seats---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 and Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through its Chairman and others 1993 SCMR 1124 distinguished.

Zia-ur-Rehman, Advocate-General, N.-W.F.P. for Petitioners.

Nemo for Respondent.

2009 S C M R 385

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Sarmad Jalal Osmany, JJ

SAHIB DAD----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Petition No.2825-L of 2001, decided on 19th December, 2008.

(On appeal from order, dated 3-7-2001 of the Lahore High Court, Lahore passed in C.M. No.410 of 2001 in Civil Revision No.1130-D of 1989).

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

----S. 12---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXII, R.10(1), Ss.12(2) & 151---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell---Allottee, of State land statedly had fulfilled all the conditions of allotment and proprietary rights qua the land were, reportedly, conferred on him---Allottee apprehending resumption of the State land by the Provincial Government, filed suit for permanent injunction restraining the Provincial Government from resumption of said land---Allottee, during pendency of said suit (for injunction), agreed to sell questioned land, vide agreement to sell to the petitioner; allottee did not abide by the terms of the agreement to sell and thereupon the purchaser filed suit for specific performance against the allottee, which was decreed against the allottee by Trial Court, Appellate Court and the High Court---Suit filed by allottee for grant of injunction against Provincial Government was however, decreed in his favour by Trial Court but High Court dismissed the same and held that the resumption of land of the allottee was justified by the Provincial Government---Petitioner/purchaser filed an application under S.12(2) read with S.151, C.P.C. for setting aside the said order which was dismissed by the High Court---Validity---Petitioner/purchaser had agreed to purchase disputed land, vide agreement to sell when suit of allottee against Provincial Government was pending, meaning thereby that the proceedings qua the petitioner, which took off from the date of agreement to sell and ended with the attestation of mutation were undertaken during pendency of the suit, appeal and revision arising out of the suit of allottee against the Provincial Government, thus undoubtedly petitioner/purchaser was a transferee pendente lice---Petitioner/purchaser had stated that allottee during the pendency of the suit had assigned his rights in the disputed land in his favour and in that scenario the case of purchaser was adequately covered under O.XXII, R.10(1), C.P.C. but he did not choose to file any such application and felt satisfied on defending the proceedings by the allottee---Held, Assignee could file an application to either become a party under O.I, R.10, C.P.C. or his substitution in place of the assignor and if the assignee choose not to file any application for his impleadment in the proceedings then the decision against the assignor would be binding upon him---Order of the High Court did not suffer from any legal infirmity and was passed not only in accordance with the record of the case but also in consonance with the law on the subject---Petition for leave to appeal was dismissed by Supreme Court.?

Surraya Begum v. Suban Begum 1992 SCMR 652 fol.

Surraya Begum v. Suban Begum 1992 SCMR 652; Rashid Ahmed v. Jiwan 1997 SCMR 170; Muhammad Nawaz Khan v. Muhammad Khan 2002 SCMR 2003; Shamsher Ali v. Sher Ali PLD 1976 Lah. 650; H.M. Saya & Co. v. Wazir Ali Industries Limited PLD 1969 SC 65 ref.

(b) Appeal (Civil)---

----Maintainability---Stranger to a suit or a proceeding can file an appeal if he is adversely affected by an order in the suit or proceeding.?

H.M. Saya & Co. v. Wazir Ali Industries Limited PLD 1969 SC 65 fol.

Abdul Sattar Chughtai, Advocate Supreme Court and Mehmud?-ul-Islam, Advocate-on-Record for Petitioner.

M. Hanif Khatana, Additional Advocate-General for Respondents.

Date of hearing: 19th December, 2008.

2009 SCMR 390

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Akhtar Shabbir and Sarmad Jalal Osmany, JJ

MUHAMMAD ILYAS KHAN-Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, N.-W.F.P., PESHAWAR and others----Respondents

Civil Petition No.1337 of 2008, decided on 16th October, 2008.

(On appeal from the judgment, dated 25-9-2008 passed by the N.-W.F.P. Service Tribunal in Appeal No.806 of 2008).

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----S. 30(3)---Constitution of Pakistan (1973), Art.212 (3)---Successive transfers---Scope---Respondent was Patwari who was transferred to three stations within a span of eight months---Service Tribunal accepted appeal filed by respondent Patwari and set aside his transfer orders---Validity---Successive transfers of respondent to three stations within a span of eight months were against posting/transfer policy of Provincial Government, which indicated that a government servant should not be transferred in ordinary circumstances, prior to completion of a period of three years at one place of posting---Transfer order of respondent was passed during ban period, prematurely under political influence, as copy of the same was sent to private secretary to Provincial Minister for Revenue---Tenure of posting of an officer or official of Government to a District Government was provided in S.30 (3) of North-West Frontier Province Local Government Ordinance, 2001, as three years but any officer could be transferred earlier due to exigency of service or in public interest---Dispute raised in petition for leave to appeal related to an individual grievance and no substantial question of law of public importance was involved to warrant interference by Supreme Court under Art.212 (3) of the Constitution---Supreme Court did not find any illegality or infirmity in the judgment passed by Service Tribunal so as to justify interference by Supreme Court under Art.212 (3) of the Constitution---Petition was dismissed.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Muhammad Nasir Khan v. Secretary Education, Government of Punjab and others 2000 PLC (C.S.) 312; Abdul Haq v. G.M. S.N.G.P. Ltd. 2000 SCMR 925; Muhammad Binyamin v. WAPDA 1991 SCMR 382; Muhammad Azim v. Chief Engineer Irrigation 1991 SCMR 255; Muhammad Nawaz v. Divisional Forest Officer, Islamabad and 2 others 1982 SCMR 880; Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13; Saboor Ahmad v. Managing Director, Sui Southern Company Limited and another 2002 SCMR 953 and Faiz Ahmad v. Deputy Postmaster-General, Lahore and others 1991 SCMR 368 rel.

Qazi Muhammad Anwar, Senior ,Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Haroon Rashid, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.3.

Nemo for other Respondents.

Date of hearing: 16th October, 2008.

2009 SCMR 394

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

ALI AHMAD----Petitioner

Versus

MUHAMMAD IQBAL----Respondent

C.R.P. No.299 of 2001 in C.A. No.1455 of 1995, decided on 7th November, 2008.

(On review of this Court's judgment, dated 31-5-2001, passed in Civil Appeal No.1455 of 1995).

Supreme Court Rules, 1980---

----O. XXVI---Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---Scope---Review by its very nature was not an appeal or rehearing merely on the ground that one party or the other conceived himself to be dissatisfied with the decision of court---Petitioner failed to point out any mistake or error apparent on the face of record---Supreme Court, in exercise of review jurisdiction, declined to interfere with the judgment already passed by it---Review petition was dismissed.

Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208; Mst. Miraj Bibi v. Mst. Azim Khatoon and others 1997 SCMR 1892; Lt.-Col. Nawabzada Muhammad Amir Khan v. The Collector of Estate Duty Government of Pakistan, Karachi and others PLD 1962 SC 335 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 rel.

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

Nemo for Respondent.

2009 S C M R 396

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

WAPDA and others----Petitioners

Versus

Qari MUHAMMAD FEROZE and others----Respondents

Civil Petitions Nos.1174 to 1177 of 2008, decided on 27th October, 2008.

(On appeal against the judgment, dated 26-6-2008 passed by Federal Service Tribunal, Islamabad, in Appeals Nos.26 to 29(P)(C.E.) of 2004).

Constitution of Pakistan (1973)---

----Art. 212(3)---Seniority list, preparation of---Pendency of lis before Supreme Court---Effect---Petitioner department and other departments and authorities, particularly in service matter when lis was pending in the court relating to terms and conditions of service, where rights of parties regarding seniority were under consideration and were still to be determined by the Court with a resultant consequence of effecting further promotion and other rights like Selection Grade, the department should keep its hands off unless there was specific order of the court for further proceeding on the part of department/authority, in order to avoid further complications and which ought to have been visualized by the department---Petitioner department had, without visualizing such complications, had shown smartness by deciding the matter hurriedly without waiting for decision of court and if any difficulty had then arisen, it was for petitioner department to solve or to suffer for that---Service Tribunal had rightly passed judgment in favour of respondents and declined to interfere---Leave to appeal was refused.

Sheikh Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in all cases).

M. Shoaib Shaheen, Advocate Supreme Court along with Tanveer Ahmed in person (pro forma respondent) for Respondent No.1 (in all cases).

Date of hearing: 27th October, 2008.

2009 S C M R 399

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

AHMED NAWAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.365 of 2007 and Criminal Review Petition in Jail Petition No.96 of 2005, decided on 12th November, 2008.

(On review from the judgment, dated 11-12-2006 passed by this Court in Jail Petition No.96 of 2005).

Penal Code (XLV of 1860)---

----S. 302(b)---Supreme Court Rules, 1980, O.XXVI---Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---New fact---Minor age of accused---Determination---Accused and his father faced the trial where accused was convicted and sentenced to death by Trial Court, while his father was acquitted---Conviction and sentence awarded to accused by Trial Court was maintained by High Court as well by Supreme Court---Plea raised by accused was that at the time of occurrence, he was less than 18 years of age and he acted under the influence of his father which fact could not be brought into the notice of courts earlier---Validity---Though it was objected to by prosecution that at such belated stage accused by his conduct was estopped to take a somersault but in the interest of justice and in order to find out as to whether there was substance in the contentions, Supreme Court considered the petition on merits---Record had established that accused was serving in army at the time of commission of offence, hence, plea that he was a minor stood vanished because a minor could not render service in army---Statement of accused recorded under S.342, Cr.P.C. showed that his age was mentioned as thirty years and it had also been written therein that he was an army personnel, therefore, his age at the time of occurrence as per record was about 28 years---Further in his statement under S.342 Cr.P.C., accused denied the suggestion that he committed murder at the instigation of his father who was co-accused---Accused was estopped to take a summersault and set up a new case in defence and such belated plea was irrelevant to review petition---Supreme Court did not find any error apparent on the face of record, therefore, no case for review of judgment was made out---Review petition was dismissed.

Mahmood Rashid's case 2003 SCMR 581; Liaqat Shah's case 1985 SCMR 1415; Mst. Hafeezan's case 1995 SCMR 256 and Mst. Hayyat Bibi's case 1976 SCMR 128 ref.

Ijaz Hussain v. The State 2002 SCMR 1455; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 and Government of Punjab v. Munawar Sultana and others 1985 SCMR 165 rel.

Muhammad Anwar Khan, Advocate Supreme Court for Petitioner.

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

Nemo for the Complainant.

Date of hearing: 10th March, 2008.

2009 S C M R 405

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

Ch. FAQIR MUHAMMAD----Petitioner

Versus

SECRETARY TO GOVERNMENT OF PUNJAB, AGRICULTURE DEPARTMENT, PUNJAB, LAHORE and others----Respondents

Civil Petition No.1409 of 2008, decided on 14th November, 2008.

(On appeal from the judgment, dated 24-6-2008 of the Punjab Service Tribunal, Lahore passed in Appeal No.1373 of 2007).

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

----S. 8(3) & (5)---Constitution of Pakistan (1973), Art.212(3)---Promotion with retrospective effect---Scope---Vacancies in question fell vacant in year, 2004 and due to departmental inquiries pending against civil servant and adverse remarks and punishments in his service record he was not considered for such vacancies---Validity---In year, 2005 amendment was made in S.8 of Punjab Civil Servants Act, 1974, and no promotion or pro forma promotion could be granted in year, 2007, when the civil servant had already retired from service---Effect---If plea of civil servant was admitted that right of-promotion had accrued to him in year, 2004, it would tantamount to hold that amendment in S.8 of Punjab Civil Servants Act, 1974, was altogether ineffective and promotions, despite such amendments, could be granted in retrospect and such was not the intention of positive, specific and clear legislation---Supreme Court declined to interfere with the judgment passed by Service Tribunal whereby appeal filed by civil servant was dismissed---Leave to appeal was refused.

M. Shoaib Shaheen, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 14th November, 2008.

2009 S C M R 407

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

IBRAHIM and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.101 of 2006, decided on, 13th November, 2008.

(Against the judgment, dated 20-10-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.455 of 2002).

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

----Ss. 302, 392 & 34---Qanun-e-Shahadat (10 of 1984), Art.22---Criminal Procedure Code (V of 1898), S.103---Constitution of Pakistan (1973), Art.185 (3)---Leave to appeal was granted by Supreme Court to examine in depth the evidentiary value of identification test and recoveries.

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

----Ss. 302, 392 & 34---Qanun-e-Shahadat (10 of 1984), Art.22---Criminal Procedure Code (V of 1898), S.103---Re-appraisal of evidence---Circumstantial evidence---Recovery of case property---Accused was arrested in some other case and was sent to judicial lockup, where prosecution witnesses of the present case identified him during identification parade---Trial Court convicted the accused on the basis of circumstantial evidence in shape of last seen witness, identification parade and recovery of identity card and bank pass book of deceased on the pointation of accused from hotel---Sentence and conviction awarded by Trial Court was maintained by High Court---Validity---Circumstantial evidence should be like a well knit chain whose one end should point to accused and the other to deceased---Evidence of last seen furnished by prosecution witnesses and evidence of identification test were not worthy of any credence---Statement of doctor revealed only cause of death and did not lead to assailants---None from the hotel staff was cited as witness and no documentary evidence was collected by investigating officer in proof of stay of accused in the hotel, nor statement of manager or any other member of staff of hotel was recorded in that context---Such conduct was most unlikely that assailant who had taken care to hide his crime, would keep useless incriminating evidence intact---High Court knowing that recovery evidence was of no value, did not mention it in its judgment whereby appeal was dismissed---Prosecution had failed to prove its case against accused, therefore, conviction and sentence awarded to accused were set aside and accused was acquitted---Appeal was allowed.

Barrister Masood Kausar, Advocate Supreme Court for Appellants.

M. Ilyas Siddiqui, Advocate Supreme Court for the Complainant.

M. Siddique Khan Baloch, D.P.-G. for the State.

Date of hearing: 13th November, 2008.

2009 S C M R 412

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

FUAD ASADULLAH KHAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and others----Respondents

Civil Petition for Leave to Appeal No.1585 of 2000, decided on 10th November, 2008.

(On appeal against the judgment of the Federal Service Tribunal, Islamabad, dated 16-8-2000 passed in Appeal No.867/R of 1997).

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

----R. 4(1)(b)---Reversion---Principles---When a person is directed to return to a lower post from a higher post, such person is said to be reverted---Return implies that the incumbent must have held the lower post at some point of time and from which he was promoted in service--In its immediate effect, reversion is always bound to bring about a reduction in rank and connotes a movement downward from a higher position already held by a civil servant---Reversion from higher to lower post of civil servant may be made under certain circumstances---Question of reversion can only arise when a valid and proper promotion has been made---Direct recruit- to a post cannot be reverted to a lower post; it is only a promotee who can be reverted from promotion post to lower post from which he was promoted.

State of U.P. v. Sughar Singh AIR 1974 SC 423; Hussain Sasansaheb Kaladgi v. State of Maharashtra AIR 1987 SC 1627 and Nyadar Singh v. Union of India AIR 1988 SC 1979 rel.

(b) Civil service---

----Appointment---Irregularities committed by the Department qua the appointments---Appointees could not be condemned subsequently with the change of Heads of Department or at other level---Government was an institution in perpetuity and its orders could not be reversed simply because the Heads had changed---Such act of the departmental authority was all the more unjustified when the candidate was otherwise fully eligible and qualified to hold the job.

State of U.P. v. Sughar Singh AIR 1974 SC 423 rel.

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

----R. 5---Major penalty, awarding of---Principles---In case of awarding major penalty, a proper inquiry is to be conducted in accordance with law, where full opportunity of defence is to be provided to delinquent officer.

Pakistan International Airlines Corporation through Managing Director, PIAC Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed 2004 SCMR 316; Secretary, Kashmir Affairs and Northern Areas Division, Islamabad v. Saeed Akhtar and another PLD 2008 SC 392 and Fazal Ahmad Naseem Gondal v. Registrar, Lahore High Court 2008 SCMR 114 rel.

(d) Civil service---

----Exercise of power vested in the competent authority---Scope.

The power vested in the competent authority should be exercised by the such authority itself, fairly and justly. Decision has to be made in the public interest based on policy. Such power must be exercised by the proper authority and not by some agent or delegatee without restraint as the public interest may, from time to time requires. Such power must not be fettered or hampered by contracts or other bargains or by self-imposed rules of thumb. A distinction must be drawn between following a consistent policy and blindly applying some rigid rule and discretion must not be abused.

Hussain Sasansaheb Kaladgi v. State of Maharashtra AIR 1987 SC 1627 ref.

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

----R. 4(1)(b)---Reversion---Direct appointee---Scope---Civil servant was directly appointed as Director (B-19) after fulfilling prescribed procedure---After change in government and departmental head the civil servant was reverted to the post of Deputy Director (B-18) on the allegation of lacking qualification---Validity---Reversion of civil servant from the post of Director to the post of Deputy Director was not sustainable as he was appointed legally and validly by competent authority in accordance with prescribed rules---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal as well as the order of reversion passed by authorities---Supreme Court restored the civil servant to the post of Director (B-19) by maintaining notification of his appointment as such with all consequential benefits---Appeal was allowed.

Federation of Pakistan through Secretary, Establishment Division Islamabad and another v. Gohar Riaz 2004 SCMR 1662; Secretary to the Government of N.-W.F.P. Zakat/Social Welfare Department Peshawar and another v. Saadulalh Khan 1996 SCMR 413; Water and Power Development Authority through Chairman WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630; Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285; Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and other 2007 PLC (C.S.) 179 and Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 rel.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioner.

Sardar Muhammad Ghazi, Deputy Attorney-General, for Respondents.

Date of hearing: 3rd November, 2008.

2009 S C M R 420

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

TAUQEER AHMED KHAN----Appellant

Versus

ZAHEER AHMAD and others----Respondents

Criminal Appeal No.219 of 2004, decided on 6th November, 2008.

(On appeal from the judgment, dated 18-9-2003 in Criminal Appeal No.357 of 2002 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

---Ss. 302(b) & 308---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether observation of High Court to the effect that accused, at the time of occurrence was less than 18 years of age and judgment based thereon was sustainable.

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

----S. 308---Qatl-e-Amd not liable to Qisas---Scope---Provision of S.308 P.P.C. is attracted only in case liable to Qisas in which by virtue of provisions of Ss.306 and 307 P.P.C., the punishment of Qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as Tazir.

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

----Ss. 302 & 308---Re-appraisal of evidence---Age of accused---Determination of---Onus to prove---Accused was convicted by Trial Court and sentenced to imprisonment for life---High Court held the accused to be less than 18 years of age and by exercising powers under the provisions of S.308 P.P.C., reduced the sentence from life imprisonment to seven years of imprisonment as "Tazir"---Validity---Inquiry was conducted by Trial Court regarding age of accused and had found that accused was not minor at the time of commission of offence---Such inquiry conducted by Trial Court culminating into a proper order which was not challenged during trial by accused, was conclusive and final for the determination of age---Plea of minor age of accused was nothing but an after-thought, onus to prove such plea was heavily placed on the shoulders of accused but he failed to discharge the same by producing cogent and convincing evidence---Evidence produced by accused was discrepant and fell short of required standard---Mere assertion of accused that at the time of occurrence he was below the age of 18 years and was entitled to benefit under S.308 P.P.C., without positive attempt on his part to substantiate the same, was of no consequence---Judgment passed by High Court was set aside and that of Trial-Court was restored---Appeal was allowed.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Syed Zafar Abbas Naqvi, Advocate Supreme Court for Respondent No.1.

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

Date of hearing: 29th October, 2008.

2009 SCMR 425

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Sardar AMJAD ALI KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.346 of 2008, decided on 6th November, 2008.

(On appeal from the order, dated 8-9-2008 of the High Court of Sindh Bench at Sukkur passed in Criminal Bail Application No.S-119 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Medical ground---Delay in conclusion of trial--Accused was clearing agent and was involved in the case where 6000 kilograms of Charas was recovered from his co-accused---Accused was in custody for more than four years and trial had not concluded--Accused was suffering from chronic liver disease (HCV +VE) which could not be treated while keeping him in custody---Supreme Court converted petition for leave to appeal into appeal and allowed the same---Bail was granted.

Tariq Aziz, Advocate Supreme Court for Petitioner.

Masood A. Noorani, Additional Advocate-General, Sindh and Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record on behalf of P.-G. Sindh for the State.

2009 SCMR 427

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Zia Perwez and Mian Hamid Farooq, JJ

SHAMS-UD-DIN----Appellant

Versus

MUHAMMAD SHAHBAZ QAMMAR and 2 others----Respondents

Criminal Appeal No.254 of 2005, decided on 29th May, 2008.

(On appeal from the judgment, dated 3-10-2003 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No.388 of 2001).

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

----S. 308/34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court reversed judgment passed by Trial Court whereby accused were convicted/sentenced under S.308/34 P.P.C., without taking into consideration the incriminating evidence available on record, contrary to the principles laid down by Supreme Court in its judgments.

Ghulam Sikandar and another v. Mamaraz Khan and another PLD 1985 SC 11 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

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

----S. 308/34---Re-appraisal of evidence---Dying declaration, non-signing of---Effect---Motive---Circumstantial evidence---Benefit of doubt---Principles---Trial Court convicted two accused under S.308 P.P.C. for causing Qatl-e-Amd of deceased lady and sentenced them to ten years of imprisonment, while two co-accused were acquitted by High Court in appeal---Validity---Case of prosecution was duly supported by dying declaration in which deceased lady narrated entire story about incident---Fact of burning the deceased lady was duly supported by medical evidence which was furnished by doctor and deceased lady was kept in hospital for six days---Specific motive in case existed, as husband of deceased lady had contracted second marriage as a consequence whereof she was not enjoying cordial relations with him---Husband of deceased took her deceitfully to his house where he poured kerosene oil upon her and set her on fire due to which she died later on---Motive coupled with circumstantial evidence was established by prosecution against accused persons---Deceased lady suffered severe burns on her body including her arms, thus question of her holding a pen did not arise, therefore, her inability to sign statement could not be made ground for acquittal---Judgment based on evidence could not be set aside on mere hypothetical assumption as to her putting thumb mark on complaint and failure to inscribe her signatures---Accused were entitled to benefit of doubt but such doubt had to be reasonable and rational and not hypothetical and whimsical in utter disregard to facts of case, positive evidence available on record and principles laid down by Supreme Court---Judgment passed by High Court resulted in serious miscarriage of criminal justice thus the same was set aside and that of Trial Court was restored---Appeal was allowed.

Ghulam Sikandar and another v. Mamaraz Khan and another PLD 1985 SC 11 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

(c) Administration of justice---

----Judicious decision---Principle---To arrive at judicious decision, it is necessary to consider and appreciate evidence in its true perspective---Evidence available on record cannot be ignored and disregarded.

Ch. Afrasiab Khan, Advocate Supreme Court for Appellant.

Ch. M. Sadiq Warraich, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Mian Asif Mumtaz, D.P.-G. for Respondent No.3.

Date of hearing: 29th May, 2008.

2009 S C M R 431

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

GUL DAST KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.307 of 2008, decided on 7th November, 2008.

(On appeal from the judgment, dated 21-5-2008 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.49 of 2007).

Anti Terrorism Act (XXVII of 1997)---

----S. 7---West Pakistan Arms Ordinance (XX of 1965), S.13(2)---Criminal Procedure Code (V of 1898), S.103---Re-appraisal of evidence---Benefit of doubt---Substitution of real accused, principle of---Applicability---Recovery proceedings---Case property, failure to produce in Trial Court---Effect---Accused was apprehended at the spot and huge quantity of arms and ammunition was recovered from secret cavities of the motorcar in which he was present---Trial Court convicted the accused and sentenced him to seven years, which conviction was maintained by High Court---Validity---Mere presence of accused in motorcar was not sufficient to connect him with the offence unless prosecution had brought material that accused had knowledge of concealment of illicit arms and ammunition in car---Possibility of accused having no hand in the affair and taken lift from driver of motorcar, could not be excluded---Driver of car was stated to have stepped down from the car and succeeded to make good his escape by taking refuge in nearby sugarcane field---Raiding party surrounded the field for three days but failed to apprehend the driver---Such conduct on The part of police was highly deplorable and not beyond reproach---Police had let off the real culprit and accused was implicated in the case for reasons not far to seek---Case property was neither exhibited nor produced at the trial, causing dent in prosecution case---Violation of requirement of S.103, Cr.P.C. had made the recovery unreliable---Arms and ammunitions recovered were not sent to Fire Arms Expert to ascertain as to whether they were in serviceable condition or not---Such lapse on the part of investigating officer was also fatal to prosecution case and would nullify entire exercise---Effect---Where circumstances of case had made it impossible to procure two private persons from public and evidence of policemen did not suffer from any legal or factual infirmity, the same could be accepted---Despite prior information, investigating officer did not associate independent and disinterested witnesses from locality with recovery proceedings---Prosecution having failed to bring charges home to accused beyond reasonable doubt, benefit of slightest doubt must be extended to accused without any reservation---Judgment passed by High Court was outcome of misreading and non-reading of evidence and both the courts below had failed to appreciate evidence in its true perspective---Conviction and sentence awarded to accused was set aside and he was acquitted of the charge---Appeal was allowed.

Mst. Bakht Bano and another v. Allah Yar and others 1986 SCMR 1483 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Nazir Ahmad Bhutta, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant.

Mian Asif Mumtaz, Deputy Prosecutor-General for Respondent.

Date of hearing: 7th November, 2008.

2009 SCMR 436

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD AFZAL alias ABDULLAH and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.30 to 33 of 2004, decided on 22nd April, 2008.

(On appeal from the judgment, dated 27-6-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.393-J and Murder Reference No.58-T of 2001).

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

---Ss. 302(b)/324/395/396/412/148/140---Anti Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.22---Reappraisal of evidence---Benefit of doubt---Mitigating circumstances---Identification parade---Description of accused, non-mentioning of in F.I.R.---Occurrence took place in dark hours of night and it had not been disclosed as to how prosecution witnesses were able to identify accused persons---Presumption at the most could be that accused were seen in headlights of vehicle but accused could not have been seen by prosecution witnesses more than once and that too for a while---Though it was alleged that deceased as well as complainant were fired at by one of the culprits yet, it had not been pointed out as to who was that accused, nor description of that accused was given in F.I.R.---Effect---Absence of such details in F.I.R. militated against bona fides of prosecution and greatly marred evidentiary value of test identification parade---When description by appearance of accused was not given in F.I.R. and specific role was not attributed to him, identification of such accused in court for the first time, in absence of strong corroboratory evidence was not safe to be relied upon as by passage of time memory would fade and possibility that accused might not have been mistakenly picked out was augmented---Occurrence had not taken place in the manner as suggested by prosecution and prosecution had failed to produce confirmatory evidence in such regard---Supreme Court found room for benefit of doubt, which must go to accused---Supreme Court set aside the conviction and sentence awarded to accused persons and acquitted them of the charge---Appeal was allowed.

Ghulam Rasul and others v. The State 1988 SCMR 557; Ghulam Qadir v. The State 2008 SCMR 1221; State/Government of Sindh v. Sobharo 1993 SCMR 585; Ismail and another v. The State 1974 SC 175 and Asghar Ali alias Sabah and others v. The State 1992 SCMR 2088 rel.

(b) Criminal trial---

----Evidence of recovery---Scope---Such evidence is purely corroborative in nature and standing alone is not capable to bring hone charge against accused in absence of any direct evidence---Unless direct or substantive evidence is available, conviction cannot be recorded on the basis of any other type of evidence, howsoever convincing it may be.

Malik Amjad Parvez, Advocate Supreme Court for Appellant (in Criminal Appeal No.30 of 2004).

Mian Asif Mumtaz, D.P.-G., Punjab for the State (in Criminal Appeal No.30 of 2004).

Mian Asif Mumtaz, D.P.-G., Punjab for Appellant (in Criminal Appeal No.31 of 2004).

Malik Amjad Pervez, Advocate Supreme Court for Respondent No.1 (in Criminal Appeal No.31 of 2004).

M. Javed Sindhu, Advocate Supreme Court for Respondents Nos.2 and 3 (in Criminal Appeal No.31 of 2004).

Nemo for Respondents Nos.4 to 7 (in Criminal Appeal No.31 of 2004).

M. Javed Sindhu, Advocate Supreme Court for Appellants (in Criminal Appeals Nos.32 and 33 of 2004).

Mian Asif Mumtaz, D.P.-G., Punjab for the State (in Criminal Appeals Nos.32 and 33 of 2004).

Date of hearing: 22nd April, 2008.

2009 S C M R 444

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ijaz-ul-Hassan Khan, JJ

GHULAM SHABBIR SHEIKH----Petitioner

Versus

CHIEF EXECUTIVE OFFICER, QUETTA ELECTRIC SUPPLY COMPANY (QESCO), QUETTA and another----Respondents

Civil Petition No.1341 of 2008, decided on 16th December, 2008.

(On appeal against the judgment, dated 9-8-2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No.2240(R)(C.E.) of 2005).

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

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Departmental proceedings--- Regular inquiry, dispensing with---Grievance of civil servant was that he was compulsorily retired from service without holding any regular inquiry and without providing him proper opportunity to defend his case---Validity---Except in extraordinary and exceptional circumstances, dispensation of regular inquiry in case involving factual controversy would amount to withholding right of fair opportunity of a person to rebut the charges against him---Civil servant was proceeded departmentally and he was duly informed of charges levelled against him and high power committee was constituted to probe into the matter---Civil servant was afforded reasonable opportunity of personal hearing before imposition of penalty and the same was considered enough to provide opportunity of defence---It was for competent authority to decide whether formal inquiry was required, or not in terms of provisions of S.5(4) of Removal from Service (Special Powers) Ordinance, 2000---Service Tribunal had rightly dismissed appeal filed by civil servant assigning sound and cogent reasons, which were not open to legitimate exception---Civil servant failed to point out any misreading or non-reading of material on file or any infirmity, legal or factual, calling for interference by Supreme Court---No substantial question of law of public importance could be raised within the meaning of Art.212(3) of the Constitution---Leave to appeal was refused.

Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; Inspector-General of Police, Police Headquarter Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207; Syed Yaqoob Shah v. XEN PESCO (WAPDA), Peshawar and another PLD 2002 SC 667; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and another v. Noor Jamal, Ex-Executive Engineer 2004 SCMR 294 and Executive Engineer and others v. Zahid Sharif 2005 SCMR 824 distinguished.

Haider Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 16th December, 2008.

2009 S C M R 448

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD NAJEEB----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.317 of 2008, decided on 23rd September, 2008.

(On appeal from the judgment, dated 20-8-2008 of the Peshawar High Court, Peshawar passed in Criminal Miscellaneous No.845 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365/34---Constitution of Pakistan, 1973, Art.185(3)---Bail, grant of---Complainant initially had nominated the accused in the F.I.R., but later on through an affidavit he had expressed his satisfaction with regard to the innocence of the accused and did not want to proceed with the matter---Courts below had failed to consider the said aspect of the matter---Case of accused, thus, was of further inquiry---Accused was admitted to bail accordingly.

Syed Iftikhar Hussain Shah, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Ziaur Rehman, Advocate-General, N.-W.F.P. for the State.

Date of hearing: 23rd September, 2008.

2009 S C M R 451

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

Mst. REHMU----Petitioner

Versus

Mst. AMINA BIBI and another----Respondents

Civil Petition No.1315-L of 2003, decided on 13th January, 2009.

(On appeal from the judgment, dated 3-3-2003 of the Lahore High Court, Lahore passed in R.S.A. No.102 of 1996).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of oral agreement to sell---Plaintiff had failed to produce trustworthy, cogent and independent evidence to prove payment of the earnest money and that she was willing and ready to perform her part of agreement---High Court, after legally appreciating the evidence on record and taking into consideration every aspect of the case, had rightly affirmed the findings of the first Appellate Court---Plaintiff could not point out any misreading or non-reading of evidence on record justifying interference by Supreme Court in the judgment---No legal infirmity having been found in the impugned judgments sufficient to reverse the concurrent findings arrived at by both the Appellate Courts, Supreme Court dismissed petition for leave to appeal.

Malik Abdus Sattar Chughtai, Advocate Supreme Court for Petitioner.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court for Respondent No.2.

2009 SCMR 455

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ijaz-ul-Hassan Khan, JJ

MUHAMMAD ILYAS and others----Appellants

Versus

Mst. AMRAIZAN and another----Respondents

Civil Appeal No.2237 of 2001, decided on 16th December, 2008.

(On appeal against the judgment, dated 26-2-1999 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No.114 of 1993).

Specific Relief Act (I of 1877)---

----S. 8---West Pakistan Land Revenue Act (XVII of 1967), S.42---Recovery of possession---Revenue record---Changing of entries---Concurrent findings of fact by the courts below---Plaintiff claimed to be the owner of suit land and it was alleged that defendant was tenant at will and had forcibly taken possession of the land and got incorrect entries in revenue record---Judgment and decree passed by Trial Court in favour of plaintiff was maintained by Lower Appellate Court and High Court---Validity---Defendant had failed to explain as to how the entries in revenue record were changed---Findings regarding defendant being banami mortgagees were whimsical and not based on any record---Revenue Officer merely presumed certain things which were beyond his jurisdiction as defendant was tenant at will---Concurrent findings of fact recorded by all the courts below did not suffer from any misreading or non-reading of evidence to warrant interference by Supreme Court---Appeal was dismissed.

Abdul Rashid Awan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants along with Muhammad Ilyas, Appellant No.1.

Haji Ghulam Basit, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents along with Muhammad Umar son of Dost Muhammad Special Attorney.

Date of hearing: 16th December, 2008.

2009 S C M R 462

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

REHMAN SHAH and others----Petitioners

Versus

SHER AFZAL and others----Respondents

Civil Petition No.208-P of 2006, decided on 29th December, 2008.

(On appeal from the judgment, dated 31-1-2006 of the Peshawar High Court, Peshawar passed in Civil Revision No.177 of 1997).

Civil Procedure Code (V of 1908)---

----O. XLI, Rr.23 & 25---Constitution of Pakistan (1973), Art.185 (3)---Remand of case---Scope---Petitioner assailed judgment passed by High Court whereby case was remanded to Trial Court for decision afresh---Validity---Power to remand a case should not be exercised lightly but sufficient care should be taken in such regard---Court should examine evidence and if it came to conclusion that it was not sufficient to pronounce judgment or decide issues between parties, court should remand the case or record the evidence itself and decide the case---Petitioner failed to point out any misreading or non-reading of evidence on record---Supreme Court did not find any infirmity legal or factual in the judgment calling for interference---Leave to appeal was refused.

Fateh Ali v. Pir Muhammad and another 1975 SCMR 221; Sher Muhammad and others v. Jamadar Ghulam Ghous 1983 SCMR 133; Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 and Syed Abdul Hakim and others v. Ghulam Mohiuddin PLD 1994 SC 52 rel.

Haji Zahid Shah, Advocate Supreme Court/Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 29th December, 2008.

2009 S C M R 464

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

Mst. FARIDA KHATOON----Appellant

Versus

Dr. MASOOD AHMED BUTT and others----Respondents

Civil Appeals No.1112 and 1946 of 2002, decided on 17th March, 2008.

(On appeal from the judgment, dated 29-5-2002 of the Lahore High Court, Lahore passed in R.F.A. No.499 of 2000).

Specific Relief Act (I of 1877)---

----S. 42---West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S.3-A---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2---Right of inheritance---Custom or usage---Owner of suit property died issueless who, in his life time, had gifted half of the property in favour of his wife--Owner of property also executed a will whereby his wife was entitled to the usufruct of remaining half of the property during her life time---Validity---Transfer of 50% share by way of gift in favour of wife was not disputed in her favour, whereas remaining 50% of the property subject to life interest of usufruct in favour of wife was not sustainable in view of provisions of West Punjab Muslim Personal Law (Shariat) Application Act, 1948, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and Punjab Muslim Personal Law (Shariat Application) (Removal of Doubts) Ordinance, 1972---Right of inheritance, according to Shariat, could not be deferred or superseded by custom or usage---Appeal filed by appellant were barred by limitation---Supreme Court did not find/any ground for interference in the judgment passed by High Court---Appeal was dismissed.

Naziruddin and others v. Khairat Ali 1938 ILR Lucknow 713; Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan PLD 1948 PC 23; Mst. Khan Bibi v. Mst. Safia Begum and others PLD 1969 Lah. 338; Murid Hussain and 2 others v. Mst. Bakhsh Ilahi and 4 others PLD 1975 Lah. 1484 and Mst. Sarnia Naz v. Sheikh Pervaiz Afzal and others 2002 SCMR 164 ref.

Amina Khatoon and another v. Siddiqur Rehman Dihidar and another PLD 1960 Dacca 647; Chief Administrator of Auqaf, West Pakistan v. Khan Muhammad Sher Nawab Khan PLD 1967 Lah. 672; Fazal Muhammad v. Mst. Chohara widow of Ghulam Sarwar (since dead) represented by her L.Rs. 1992 SCMR 2182; Ihsan Illahi v. Hukam Jan PLD 1967 SC 200 and Muhammad Tufail v. Atta Shabir PLD 1977 SC 220 distinguished.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court for Appellant (in Civil Appeal No.1112 of 2002).

S.M. Naeem, Advocate Supreme Court for Appellant (in Civil Appeal No.1946 of 2002).

S.M. Naeem, Advocate Supreme Court for Respondents (in Civil Appeal No.1112 of 2002).

Mirza Hafeez-ur-Rehman, Advocate Supreme Court for Respondents (in Civil Appeal No.1946 of 2002).

Date of hearing: 17th March, 2008.

2009 SCMR 471

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

QAISAR KHAN and others----Petitioners

Versus

THE STATE and others----Respondents

Criminal Petitions Nos.56-P and 77-P of 2008, decided on 24th December, 2008.

(On appeal from the judgment, dated 6-10-2008 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.603 of 2006).

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

----Ss. 302(b), 324, 337-A(i), 337-F(ii), 337-A(iii), 148, 149 & 427---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---F.I.R. had been lodged promptly without loss of time, eliminating all chances of consultations and deliberations---Ocular testimony furnished by natural and injured witnesses including the complainant, was consistent on material points and was fully supported by medical evidence---Parties being known to each other prior to the occurrence, mistaken identity of accused was impossible---Minor contradictions in evidence were negligible---Abscondence of accused, although by itself was insufficient for conviction, yet was a strong source of corroboration for other direct and circumstantial evidence in the case---Non-recovery of crime-empties was not fatal to prosecution case, when the spot was near the village "Abadi" and possibility of the same having been taken away by the passersby before the arrival of Investigating Officer, could not be excluded---Impugned judgment did not suffer from any misreading or non-reading of evidence, or from any legal or factual infirmity, calling for interference by Supreme Court---Leave to appeal was declined accordingly.

Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036 ref.

(b) Criminal trial---

----Abscondence---Effect---Long abscondence of accused without any plausible and reasonable explanation indicates his guilt, when considered in conjunction with the ocular and circumstantial evidence.

Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036 ref.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Sentence; enhancement of---Accused had been involved for constructive liability and fatal injuries to the deceased and prosecution witnesses had not been attributed to any one of them with certainty---Courts below, therefore, had taken lenient view in matter of sentence for valid reasons---Leave to appeal was refused to complainant accordingly.

Imtiaz Ali, Advocate Supreme Court and Tasleem Hussain, Advocate-on-Record for Petitioners (in Criminal Petition No.56/P of 2008).

Mehmood Shah, Advocate Supreme Court for Petitioner (in Criminal Petition No.77/P of 2008).

Nemo for Respondent (in both cases).

Date of hearing: 24th December, 2008.

2009 SCMR 477

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Hamid Farooq , JJ

Cr.P.L.A. No.176 of 2008

Syed MASOOD ALAM RIZVI and others----Petitioners

Versus

Dr. MUHAMMAD SAEED----Respondent

(On appeal from the order, dated 21-5-2008 of the Lahore High Court, Lahore passed in Criminal Original No.323/W of 2008).

Cr. P.L.A. No.219 of 2008

Dr. MUHAMMAD SAEED----Petitioner

Versus

Syed MASOOD ALAM RIZVI----Respondent

(On appeal from the order, dated 27-5-2008 of the Lahore High Court, Lahore passed in Criminal Original No.383/W of 2007).

Crl. P.L.As. Nos.176 and 219 of 2008, decided on 1st December, 2008.

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

----Arts. 204 & 185(3)---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---High Court had summoned the petitioner to charge him for committing contempt of Court---Tenor of the order showed that High Court, after proper application of mind had decided to proceed against the petitioner under contempt laws and had issued notice to him---Since High Court had expressed its mind to charge the petitioner in contempt proceedings, the said order, to all intents and purposes, was a final order and hence could be assailed before Supreme Court---Respondent alleging violation and disobedience of two orders; one passed by High Court and the other by Supreme Court, had filed two contempt petitions---Record of the case manifested that pursuant to the said orders, petitioners had completed the missing service record of the respondent and referred the case to the Committee for the grant of BS-21 on meritorious grounds---Meeting of the Committee was also convened for considering the case of the respondent for regular promotion to BS-21, which came to the conclusion that no professor could be promoted to regular BS-21 through regular promotion and that no regular post in BS-21 existed against which any professor could be promoted, relevant portion whereof had been reproduced in the impugned order---Petitioners, by submitting the case of the respondent before the competent authority, had complied with the directions of High Court and Supreme Court and they could not be argued to have failed to do so---No case for initiating contempt proceedings was made out against the petitioners under the circumstances---High Court had dismissed the first petition after giving cogent reasons in accordance with the record of the case and also in consonance with the law on the subject---Admittedly, letter issued by the Cabinet Division informing that "none of the officers of SZPGMI has been approved for grant of BS-21 on meritorious basis" was not challenged by the respondent before any forum and he instead had opted to file the second petition, which was an endeavor to secure the promotion through exercise of pressure tactics by filing repetitive contempt petitions and, thus, even equity did not lean in his favour---Assuming that a case for initiating contempt proceedings was made out against the petitioners, even then in view of the settled law that a matter of contempt in between the court and the alleged contemnor, it was upto the Court either to take any appropriate action against the alleged contemnors or drop the matter---Respondent on this count too had no case---Petition filed by the petitioners was converted into appeal and allowed setting aside the impugned order passed by High Court, while the petition filed by the respondent was dismissed being meritless and leave to appeal was refused accordingly.

?

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

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt of Court---Repetitive petitions, not permissible---Litigant cannot be allowed to file repetitive petitions on the same subject-matter and for the same relief.?

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

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt petition-Competency-Matter of contempt being between the Court and the alleged contemnor, it is upto the Court either to take any appropriate action against the alleged contemnor or drop the matter.?

Amir Alam Khan, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioners (in Cr.P.L.A. No.176 of 2008).

Ihsan-ul-Haq Ch., Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for Respondent (in Cr.P.L.A, No.176 of 2008).

Ihasn-ul-.Haq Ch., Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for Petitioner (in Cr.P.L.A. No.219 of 2008).

Amir Alam Khan, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent (in Cr.P.L.A. No.219 of 2008).

Date of hearing: 1st December, 2008.

2009 S C M R 484

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

EJAZ NASEEM----Petitioner

Versus

FAREEHA AHMAD and others----Respondents

Civil Petition No.1490 of 2008, decided on 3rd December, 2008.

(On appeal from the order/judgment, dated 31-10-2008 passed by Islamabad High Court, Islamabad in Writ petition No.2938 of 2006).

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

----S. 5, Sched. & S.9---Constitution of Pakistan (1973), Art.185(3)---Items mentioned in Schedule---Counter claim of defendant, deciding of---In suit for restitution of conjugal rights filed by husband, wife filed her counter claims in her written statement---Suit was decided on the basis of compromise between parties and court included counter claim of wife in decree---Validity---Family Court had jurisdiction to entertain, hear and adjudicate upon all those disputed items which were pleaded, claimed and raised by wife in her written statement---No item was mentioned in written statement which could be disputed and deemed to be falling outside the ambit of jurisdiction of Family Court---Husband could have only raised the plea that counter claims were containing multifarious prayers and reliefs for which wife could be ordered to bring out separate suits for those reliefs/claims---Failure of husband to raise such objection at appropriate stage had debarred him from raising such plea before Supreme Court, when consent decree was allowed to be passed by husband on the basis of compromise entered into by him without any objection to it---Such act of husband had created estoppel against him especially at the stage of execution petition and through appeal which was barred by 390 days, which could not be condoned on any reasoning---Judgment passed by High Court did not suffer from any illegality and Supreme Court declined to interfere in the same---Leave to appeal was refused.

Muhammad Afzal v. Board of Revenue, West Pakistan and another PLD 1967 SC 314; Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292 and Islamic Republic of Pakistan v. Messrs Conforce Limited and others 2001 CLC 1741 ref.

Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

Khawaja Muhammad Farooq, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

2009 S C M R 488

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ijaz-ul-Hassan Khan, JJ

KHADIM HUSSAIN----Petitioner

Versus

GHULAM EISSA and others----Respondents

Civil Petition No.359-P of 2005, decided on 12th December, 2008.

(On appeal from the order, dated 5-5-2005 of the Peshawar High Court, D.I. Khan Bench, passed in Civil Revision No.3 of 2002).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Pre-emption right, exercise of---Talb-e-Muwathibat---Proof---Non-mentioning of time, date, place and name of informer---Concurrent findings of fact by the courts below---High Court in exercise of revisional jurisdiction maintained the judgments and decrees passed by two courts below whereby suit and appeal filed by pre-emptor were dismissed---Validity---Pre-emptor did not state name of informer and date, time and place of Talb-e-Muwathibat in notice for Talb-e-Ishhad---Denial of one witness to be present at the time of Talb-e-Ishhad and other several defects were rightly referred in the judgment passed by High Court---Name of informer disclosed for the first time during cross-examination, after five years was an afterthought---High Court had rightly dismissed revision of pre-emptor assigning sound and cogent reasons and upheld findings of fact recorded by Trial Court and maintained by lower appellate court with detailed reasons---No infirmity legal or factual was pointed out in the judgment and decrees calling interference 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.

Riaz Ahmed Khan, Advocate Supreme Court and Haji M. Zahir Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 12th December, 2008.

2009 SCMR 493

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

GULRAIZ AKHTAR and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.41, 42 and 261 of 2008, decided on 6th January, 2009.

(On appeal from the judgment, dated 6-12-2007 in Criminal Appeals Nos.316 of 2003, 184/J of 2003 and Criminal Revisions Nos.238 and 239 of 2003 and Murder Reference No.142 of 2003 passed by the Lahore High Court, Lahore.)

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

----S. 302(b)/34---Appraisal of evidence---F.I.R. was lodged without any delay containing the names of both the accused with their roles in the occurrence---Complainant and the other eye-witness, despite lengthy cross-examination, had fully supported prosecution version, casting complete responsibility of the murder of the deceased on the accused---Parties being previously known to eye-witnesses, possibility of mistaken identity of accused had to be ruled out---Ocular testimony was corroborated by medical evidence---Crime-empties collected from the spot had matched with the fire-arms recovered at the instance of accused---Crime-empties having been recovered from the place of occurrence, were not even challenged by the defence---Convictions and sentences of accused were upheld in circumstances.

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

----Ss. 302(b)/109---Appraisal of evidence---Knowledge about hatching the conspiracy by the accused for the murder of the deceased, though having been gained by the prosecution witnesses 47 days prior to the occurrence, was not conveyed to complainant party well in time enabling them to protect themselves---Explanation offered by prosecution in this regard was not satisfactory---Allegation of conspiracy was nothing but an afterthought---Was not believable that the said conspiracy was being hatched at night in a "Baithak" on the road side with an open window, thereby affording opportunity to both the witnesses not only to hear the conversation but also peep through the same and identify and recognize the participants in the electric light without themselves being detected---All these factors heavily militated against the bona fides of the prosecution qua the plea of conspiracy---Accused were acquitted in circumstances.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Criminal Appeal No.41 of 2008).

Sardar Muhammad Siddique Khan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in Criminal Appeals Nos.42 and 261 of 2008).

Dr. Babar Awan, Senior Advocate Supreme Court for the Complainant.

Siddique Khan Baloch, D.P,-G., Punjab for the State.

Date of hearing: 11th September, 2008.

2009 SCMR 502

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

IFTIKHAR AHMED KHAN----Appellant

Versus

ASGHAR KHAN and another----Respondents

Criminal Appeal No.57 of 2004, decided on 18th November, 2008.

(On appeal from the order/judgment, dated 7-5-2002 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.115 of 1996).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to complainant to consider the quantum of sentence.

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

----S. 302(b)---Discretion of Court to award sentence of death or punishment of imprisonment for life---Circumstances in which penalty of death must be imposed, stated---Facts and circumstances of each case, as provided by S.302(b), P.P.C. itself, are the best determinative factors for award of penalty of death or that of lesser punishment of imprisonment for life---Law has conferred discretion upon the court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course---However, penalty of death must be imposed if the Court finds the manner and method of incident to be in the nature of a brutality, horrific, heinous, shocking involving terrorist nature, creating panic in the society as a whole or in part, callous and cold blooded---In such cases (list is not exhaustive), the penalty of death must not be withheld; in other words, grave inhuman attitude, acts, manners, methods and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded.

Khurram Malik v. The State and another PLD 2006 SC 354; Muhammad Yasin and 2 others v. The State 2002 SCMR 391; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294; Haroon Rasheed and 6, others v. The State and another 2005 SCMR 1568 and Zulfiqar Ali v. The State 2008 SCMR 796 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.403---General Clauses Act (X of 1897), S.26---Constitution of Pakistan (1973), Arts.13(a) & 185(3)---Sentence, enhancement of---Accused had already served out the sentence of imprisonment for life for the offence for which he was tried .and convicted and had been released from jail---Section 403, Cr.P.C. and S.26 of General Clauses Act, 1897, were not applicable in the facts and circumstances of the case, as the accused was not required to be tried again for the same offence and only his sentence of life imprisonment was sought to be enhanced to death---However, second portion of clause (a) of Art.13 of the Constitution was fully applicable, which prohibited from passing another sentence of death for the same offence, which the accused had already suffered---Accused had also got the expectancy of life due to serving out the sentence of imprisonment for life---Although rule of expectancy of life could not be a sole ground for refusing to enhance the sentence, yet it would be applicable with full force when a convict had served out the complete sentence of life imprisonment and had already been released at the time of hearing and final decision of the appeal---Appeal for enhancement of sentence was dismissed accordingly.

Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12; Sakhawat v. The State 2001 SCMR 244; Arshad Ali alias Achhu v. The State' 2002 SCMR 1806; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294; Muhammad Yasin and 2 others v. The State 2002 SCMR 391; Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Muattiullah Khan v. The State 2005 SCMR 1626; Latif Ullah v. The State 2007 SCMR 994; Zulfiqar Ali v. The State 2008 SCMR 796; Muhammad Iqbal v. The State 2006 SCMR 216; Abdur Rehim alias Rahima and others v. The State and others PLD 2003 SC 662; Aziz Muhammad v. Qamar Iqbal and others 2003 SCMR 579; Abdul Haq v. Muhammad Amin alias Manna and others 2004 SCMR 810; Abdul Malik and others v. The State and others PLD 2006 SC 365; Khurram Malik v. The State and another PLD 2006 SC 354; Haroon Rasheed and 6 others v. The State and another 2005 SCMR 1568; Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302; Mst. Promilla and others v. Safeer Alam and others 2000 SCMR 1116; Amir Khan and others v. The State and others 2002 SCMR 403; Muhammad Noor alias Norak v. Member, Board of Revenue, Balochistan and others PLD 1985 SC 335; Bahadur Ali and others v. The State and others 2002 SCMR 95; Kala Khan and others v. Misri Khan and others 1979 SC 347 and Agha Dinal Khan v. Saffar and others 2008 SCMR 728 ref.

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

----S. 302(b)---Sentence, enhancement of---Expectancy of life--Rule of expectancy of life shall be applicable with full force when a convict has served out the complete sentence of imprisonment for life and has already been released at the time of hearing and final decision of the appeal.

Agha Dinal Khan v. Saffar and others 2008 SCMR 728 ref.

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

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Respondent No. 1.

Mian Asif Mumtaz, D.P.,-G. Punjab for Respondent No.2.

Date of hearing: 18th November, 2008.

2009 S C M R 511

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

ABDUL ADEEL and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.346, 347 and 348 of 2005, decided on 27th November, 2008.

(Against the judgment, dated 28-8-2003 of the High Court of Sindh, Karachi, passed in Special A.T. Appeal No.12 of 2003 and Confirmation Case No.3 of 2003).

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

----Ss. 365-A/34 & 365/34---Appraisal of evidence---Sentence, reduction in---Abductee, 13 years old boy, who had no previous ill-will or grievance against the accused so as to depose falsely against them, had proved his abduction and detention at a secret place by making very candid and trustworthy statement, which was corroborated by his father, medical evidence and circumstances of the case---Abductee having remained in the custody of accused for two days, had identified each of the accused with the specific role played by him, leaving no doubt about their identification---However, neither F.I.R. had disclosed the amount of ransom to be arranged, nor any ransom Was paid for the release of the abductee---Even the abductee himself had not stated before the Trial Court that the accused had demanded ransom 'from his father---Cell phones recovered from the possession of accused were also not proved on record to have been used by them for demanding ransom---Prosecution, thus, had failed to prove the motive behind the occurrence, although abduction and detention of the abductee at secret place stood proved---Conviction of accused under S.365-A/34, P.P.C. was consequently altered to S.365/34, P.P.C. and since they were in jail for more than six years, their sentence was reduced to the imprisonment already undergone by them in circumstances.

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

----Ss. 365-A/34 & 365/34---Appreciation of evidence---Benefit of doubt---Principle---Benefit of all doubts is to be given to the accused.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.346 of 2005).

Sardar Muhammad Siddique Khan, Advocate Supreme Court and I.A. Hashmi, Advocate Supreme Court for Appellants (in Criminal Appeals Nos.347 and 348 of 2005).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record for the State.

Date of hearing: 27th November, 2008.

2009 S C M R 517

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

ABDUL RASHID NASIR and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.361 of 2005, decided on 4th December, 2008.

(On appeal from the judgment and order of the High Court of Balochistan Quetta, dated 5-9-2005 passed in Criminal Appeal No.3 of 2004).

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

----S. 409---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by Supreme Court to consider the question whether the alleged transaction of misuse of bank guarantee constituted an offence under S.409, P.P.C. and the conviction and sentence awarded to accused had the sanction of law.

(b) National Reconciliation Ordinance (LX of 2007)---

----Preamble---Penal Code (XLV of 1860), S.409---Appraisal of evidence---Proceedings against the principal offender, President of the Bank concerned, having been dropped by a Full Bench of Supreme Court on withdrawal of prosecution under the National Reconciliation Ordinance, 2007, accused were also entitled to be acquitted in the case---In order to constitute an offence under S.409, P.P.C. there must not only be entrustment but dishonest misappropriation or conversion to one's own use or dishonest disposal of property by the offender---Such ingredients were absolutely lacking in the case---No evidence was available to conclude that the bank guarantee was encashed by the accused or by some one else acting on their behalf and the cash was misappropriated---Bank had also not sustained any loss attributable to accused on account of alleged transaction---Accused were acquitted in circumstances.

National Accountability Bureau through Chairman v. Aamir Lodhi and another PLD 2008 SC 697 and Muhammad Iqbal Chatha v. The State 1988 MLD 354 ref.

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

----Ss. 409 & 109---Abetment---Conviction of abetter not sustainable when principal accused acquitted---Where an abettor or any other person is charged, tried or convicted along with the principal offender, then on the acquittal of the principal offender the same benefit would be extended to the ordinary person, because both sailed in the same boat.

National Accountability Bureau through Chairman v. Aamir Lodhi and another PLD 2008 SC 697 ref.

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

----S. 409---Criminal breach of trust by public servant etc.---Essentials---Entrustment, dishonest misappropriation or conversion to one's own use or dishonest disposal of property by the offender, are the essential ingredients to constitute an offence under S.409, P.P.C.

Waseem Sajjad, Senior Advocate Supreme Court and Tariq Mehmood, Advocate Supreme Court for Appellants.

Sardar M. Ghazi, D.A.-G. for the State.

Date of hearing: 4th December, 2008.

2009 S C M R 523

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

NAZIR AHMED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.239 of 2007, decided on 28th March, 2008.

(On appeal from the judgment, dated 23-2-2006 of the Lahore High Court, Bahawalpur Bench passed in Criminal Appeal No.367 of 2002).

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

----Ss. 302(b) & 337-A(ii)---Appraisal of evidence---Accused was nominated in the promptly lodged F.I.R. for the occurrence having taken place at 1-00 a.m. in the night---Ocular account furnished by complainant and eye-witnesses was fully corroborated by medical evidence---Prosecution evidence had remained unshattered despite lengthy cross-examination on witnesses---Complete lack of motive or failure of prosecution to prove the same, would not affect the imposition of normal penalty of death in murder case, if the prosecution case against accused stood proved beyond reasonable doubt---Impugned judgment being free from any illegality or infirmity, did not warrant interference by Supreme Court---Appeal was dismissed accordingly.

Nawaz Ali and another v. The State 2001 SCMR 726 and Ahmad Nisar v. The State 1977 SCMR 175 ref.

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

----S. 302(b)---Appreciation of evidence---Absence of motive---Effect---Absence of motive or failure on the part of prosecution to prove the same, does not adversely affect the testimony of the eye-witnesses, if they are otherwise reliable.

Nawaz Ali and another v. The State 2001 SCMR 726 and Ahmad Nisar v. The State 1977 SCMR 175 ref.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

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

Date of hearing: 28th March, 2008.

2009 SCMR 527

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD YAQOOB and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.103 and 104 of 2003, decided on 6th January, 2009.

(On appeal from the judgment, dated 10-12-2001 in Criminal Appeal No.355/T of 2000 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

----S. 25(4-A) [as added by Anti-Terrorism (Second Amendment) Act, 2004 (II of 2005)]---Insertion of subsection (4-A) in S.25 of the Anti-Terrorism Act, 1997---Effect---Amendment brought in Anti-Terrorism Act, 1997, vide subsection (4-A), of S.25 by the Anti-Terrorism (Amendment) Act, 2004, being purely procedural in nature, has to govern the pending cases/proceedings as well, because it had not taken away any right vesting in the accused.

Aftabuddin Qureshi and another v. Mst. Rachel Joseph and another PLD 2001 SC 482; Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Adnan Afzal v. Sher Afzal PLD 1969 SC 187 and Colonial Sugar Refining Company Limited Irving 19065 AC 369 ref.

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

----Ss. 302(b)/34, 324/34 & 337-A(ii)---Anti-Terrorism Act (XXVII of 1997), S.7---Appraisal of evidence---Occurrence was not denied---Presence of eye-witnesses at the place of occurrence was not challenged--.Manner in which the occurrence took place was not disputed, rather the same was impliedly admitted---Occurrence, thus, had taken place in the manner as suggested by the prosecution---Three persons had been killed and another one person had been grievously injured in the occurrence which had taken place in a Bazaar opposite a Bank, but the F.I.R. had no contents to the effect that the incident had struck terror or panic in the public, and in the absence of any evidence that the incident had created sense of fear or insecurity in the public or any section of public or community or any sect, S.7 of the Anti-Terrorism Act, 1997, was not attracted in the case---Motive behind the occurrence was previously strained relations between the parties and no evidence was brought on record to show that the object was not to kill the deceased, but also to strike terror etc. in the general public as stated above---Conviction and sentence of accused under S.7 of Anti-Terrorism Act, 1997, was consequently set aside, but their rest of the convictions and sentences were upheld in circumstances.

Aftabuddin Qureshi and another v. Mst. Rachel Joseph and another PLD 2001 SC 482; Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Adnan Afzal v. Sher Afzal PLD 1969 SC 187; Colonial Sugar Refining Company Limited Irving 1905 AC 369; Tariq Mahmood V. The State 2008 SCMR 1631; Muhammad Idrees and others v. The State 2008 SCMR 1544; Mohabbat Ali v. The State 2007 SCMR 142; and Fazal Dad v. Col. (Retd.) Ghulam Muhammad Malik PLD 2007 SC 571 ref.

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

---S. 7---Appreciation of evidence---Scope---In order to bring a particular act within the ambit of S.7 of the Anti-Terrorism Act, 1997, it is to be seen as to whether the said act had created sense of fear or insecurity in public or in any section of public or community or any sect, or the occurrence was simply the result of previous enmity or personal vendetta.

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

----S. 302(b)/34---Anti-Terrorism Act (XXVII of 1997), S.7---Sentence, enhancement of---Trial Court had not inflicted normal penalty of death for murder of the deceased persons on the ground that all the three accused were real brothers---Said reason was not absurd, but also extraneous to the established principles governing the administration of criminal justice---Relationship inter se the accused persons could hardly be a consideration for imposition of lesser penalty and the same could also not be regarded as a mitigating circumstance by any stretch of imagination---However, despite that, sentence of accused was not enhanced by Supreme Court, because firing was attributed to all of them and the injuries caused by them had collectively culminated in death of the deceased persons, particularly when the occurrence had taken place about nine years back and the accused had already undergone the agony of a protracted trial---Appeal was dismissed accordingly.

Muhammad Idrees and others v. The State 2008 SCMR 1544 ref.

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

----S. 302(b)/34---Sentence---Mitigating circumstance---Relationship inter se of the accused persons e.g., real brothers, can hardly be a consideration for imposition of lesser penalty, and it cannot be regarded as a mitigating circumstance by any stretch of imagination.

Kh. Sultan Ahmad, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in Appeal No.103 of 2003).

M. Siddique Khan Baloch, D.P.-G., Punjab for the State (in Appeal No.103 of 2003).

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in Appeal No.104 of 2003).

Kh. Sultan Ahmad, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos.1 to 4 (in Appeal No.104 of 2003).

M. Siddique Khan Baloch, D.P.-G. Punjab for the State.

Date of hearing: 26th March, 2008.

2009 S C M R 536

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, MUHAMMAD ARIF BALOCH and another---Appellants

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.638 and 639 of 2006, decided on 21st August, 2008.

(On appeal from the judgment, dated 25-5-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.130 of 2001).

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

----S. 9(c)---Appraisal of evidence---Prosecution witnesses were interested witnesses and their statements suffered from material improvements, which could not be relied upon---Specific plea taken by accused in his statement recorded under S.342, Cr.P.C. regarding his false implication in the case, had not been taken into account by the court below---All the co-accused in the case had been acquitted by Trial Court under S.265-K, Cr.P.C. and thus, the accused was also entitled to the same benefit on the principle of consistency---Prosecution had failed to prove its case against the accused beyond any reasonable doubt---Accused was acquitted accordingly.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.638 of 2006).

Sh. Riazul Haque, Advocate Supreme Court for Respondent (in Criminal Appeal No.638 of 2006).

Sh. Riazul Haque, Advocate Supreme Court for Appellant (in Criminal Appeal No.639 of 2006).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court for Respondent (in Criminal Appeal No.639 of 2006).

Date of hearing: 21st August, 2008.

2009 S C M R 540

[Supreme Court of Pakistan]

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

Mst. BIVI----Appellant

Versus

GHULAM MURTAZA and others----Respondents

Civil Appeal No.2724 of 2001, decided on 26th November, 2008.

(On appeal from the order/judgment, dated 30-5-2001 passed by Lahore High Court, Lahore in Civil Revision No.222-D of 1991).

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

----Ss. 13 & 34(2)---Punjab Pre-emption Act (I of 1913), S.21---Pre­emption laws--- Applicability--- Judgment and decree passed on 31-7-1986---Effect---Suit filed by pre-emptor was decreed in her favour on 31-7-1986 but Lower Appellate Court set aside the decree on the ground that judgment was passed after cut-off date fixed by Supreme Court---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---In judgments passed by Supreme Court, words "till" and "ﺑﻌﺪ" were of vital importance which connoted that date of 31-7-1986 was inclusive in saving process---Judgment and decree passed in favour of pre-emptor on 31-7-1986 was preserved from effect of repeal and was directed to be governed by provisions of Punjab Pre-emption Act, 1913---From 1-8-1986, any judgment and decree passed under old law i.e. Punjab Pre-emption Act, 1913, could not be considered to have been saved due to provision of S.34(2) of Punjab Pre-emption Act, 1991---Supreme Court set aside judgments and decrees passed by High Court and Lower Appellate Court and remanded the case to Lower Appellate Court for decision afresh on the appeal in accordance with provisions of Punjab Pre-emption Act, 1913---Appeal was allowed.

Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 and PLD 1990 SC 865 rel.

Samad Mahmood, Advocate Supreme Court for Appellant.

Gul Zarin Kiyani, Senior Advocate Supreme Court and Abdul Rashid Awan, Advocate Supreme Court for Respondents.

Date of hearing: 26th November, 2008.

2009 SCMR 544

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

ABDUL MANAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.460 of 2008, decided on 6th January, 2009.

(On appeal from the judgment, dated 21-10-2008 of the High Court of Sindh, Karachi passed in Criminal Appeal No.275 of 2007).

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

----S. 9---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 where it was contended that petitioners in the present case, who were driver and cleaner, were held guilty for the offence whereas the alleged narcotics were recovered from the last seat of the vehicle from which 35 passengers, besides the petitioners, had alighted.

Noor Alam Khan, Advocate Supreme Court for Petitioners.

Nemo for the State.

2009 SCMR 545

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Qaim Jan Khan, and Syed Zawwar Hussain Jaffery, JJ

CONTROLLER OF EXAMINATION----Petitioner

Versus

FARMANULLAH KHAN----Respondent

Civil Petition No.262-K of 2008, decided on 11th June, 2008.

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Constitutional petition---Order of High Court directing re-evaluation/re-marking/re-assessment of answer book of petitioner (student of University)---Validity---Supreme Court granted leave to appeal to consider, inter alia, validity of such order.

Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir 1984 SCMR 433; Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Tahir Saeed Qureshi v. The Board of Intermediate and Secondary Education, Sargodha and 3 others 1996 SCMR 1872 and Mst. Shakeela v. University of Peshawar PLD 2003 Pesh. 69 ref.

2009 SCMR 546

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SHAHID HAYAT----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Civil Appeal No.558 of 2008, heard on 11th and 12th December, 2008(sic).

Constitution of Pakistan (1973)---

----Arts. 212(3), 9, 18, 25 & 27---Service Tribunals Act (LXX of 1973), S.4---Civil Servants Act (LXXI of 1973), Ss.13 & 14---Petitioner filed an appeal before Service Tribunal praying therein that he could be held entitled to continue in service for 2 years and 3 months beyond the date of his superannuation i.e. the period for which he was not allowed to perform his duties; and Ss.13 & 14 of the Civil Servants Act, 1973, in so far as they did not allow a civil servant to continue his service beyond the period of superannuation, could be held ultra vires of Fundamental, Rights guaranteed under Arts.9, 18, 25 & 27 of Constitution---Validity---Denial to the petitioner of his right to actively serve the department without any fault on his part was established in the case, which had brought humiliation and suffering to the petitioner---Petitioner should be allowed to serve for a period of two years and three months, equivalent to the interrupted period of his service---Authorities were directed to take appropriate measures in that regard---Benefit of that judgment would also be available to other police officers, who were implicated along side the petitioner in said criminal case---Judgment of Service Tribunal was set aside and petition was converted into appeal and was disposed of accordingly.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

Malik Muhammad Qayyum, Attorney-General of Pakistan, Assisted by Raja Abdul Rehman, D.A.-G. Masood A. Noorani, A.A.-G., Sindh for Respondents.

Dates of hearing: 11th and 12th December, 2008.

2009 S C M R 549

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Muhammad Farrukh Mahmud and Sabihuddin Ahmed, JJ

Messrs AL-MADAN COAL COMPANY PVT. LTD. and others-Petitioners

Versus

REGIONAL DEVELOPMENT FINANCE CORPORATION-Respondent

Civil Petition No.2592-L of 2004, decided on 6th January, 2009.

(On appeal from the judgment, dated 31-5-2004 of the Lahore High Court, Lahore passed in R.F.A. No.403 of 1999).

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 10---Constitution of Pakistan (1973), Art. 185 (3)---Recovery of loan---Leave to defend the suit, denial of---Defendants obtained financial facility under Locally Manufactured Machinery (LMM) Scheme and executed required documents---On the specific request of defendants, showing full satisfaction about quantum and quality of machinery supplied to it, bank disbursed amount to manufacturer---In suit filed by financial institution, Banking Court refused to grant leave to defend the suit and passed decree against defendants---Validity---Defendants could not be allowed to blow hot and cold in the same breath as on one hand they secured machinery and asked financial institution to make payment to supplier and when financial institution demanded outstanding liabilities, defendants opted to deny execution of documents---Defence set up in defendants' application for leave to defend the suit was evasive, improbable and no substantial questions of law or facts were raised therein which was rightly rejected by Banking Court---Supreme Court declined to reverse findings of two courts below which were based on facts of the case and law on the subject---Leave to appeal was refused.

Muhammad Arshad v. Citibank N.A. 2005 CLD 1237, Al-Hadayat Textiles v. State Bank of Pakistan; 2004 CLD 435 and Muhammad Arshad v. Citibank N.A. 2006 CLD 1011 ref.

Malik Saeed Hassan, Senior Advocate Supreme Court for Petitioners.

Shahid Hamid, Senior Advocate Supreme Court and Mehmood­-ul-Islam, Advocate-on-Record for Respondent.

Date of hearing: 6th January, 2009.

2009 S C M R 558

[Supreme Court of Pakistan]

Present: Zia Perwez, Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

SHAHID alias KALOO----Petitioner

Versus

THE STATE----Respondent

Criminal Appeal No.338 of 2004, decided on 14th January, 2009.

Penal Code (XLV of 1860)---

----Ss. 365 & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7 (b)---Re-appraisal of evidence---Abduction for ransom---Proof---Jail appeal---Condonation of delay---Accused was apprehended at the scene of crime along with complainant/abductee and crime weapon was also recovered from him---At the trial, not only complainant but also other prosecution witnesses had identified the accused---Demand of ransom was allegedly made in a span of few minutes during the time it took to travel one kilometer---Validity---Such demand of ransom was unlikely as normally such demands were made when abductee had been secured in a safe place and hue and cry was dead down---Supreme Court having no doubt about accused being guilty of abduction of complainant but had doubt as to whether or not any demand of ransom was made from complainant, benefit of the same was given to accused---Supreme Court converted offence under S.365-A P.P.C. into S.365 P.P.C. viz abduction simpliciter---Delay in filing of appeal was condoned as it was a jail appeal---Appeal was allowed accordingly.

Khawaja Naveed Ahmed, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellant.

Shahadat Awan, Prosecutor-General, Sindh for the State.

Date of hearing: 23rd December, 2008.

2009 S C M R 562

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

MUHAMMAD NAWAZ----Petitioner

Versus

MEMBER BOARD OF REVENUE and others----Respondents

Civil Petition No.1280-L of 2002, decided on 15th January, 2009.

(On appeal from the order, dated 18-2-2002 of the Lahore High Court, Multan Bench, Multan passed in Writ Petition No.6070 of 2001).

Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)--- Horse and Mule Breeding Scheme---Tenancy, grant of---Suitable tenant---Determination---After the death of tenant of land in question, petitioner was found to be a suitable candidate by District Remount Officer and such recommendation was approved by District Collector---Appeal against recommendation of petitioner was allowed by Commissioner and respondent was held entitled and suitable for allotment---Order passed in appeal was maintained by Board of Revenue as well as by High Court---Validity---Though in such type of cases choice of Collector was to be given weight but it was equally true that almost all forums in Revenue hierarchy and High Court, after considering choice of Collector in petitioner's favour, came to similar conclusions, which were not only in accordance with record of case but also in consonance with law on the subject---Assuming there were minor mis-readings or non-readings of record but those were not sufficient to dislodge concurrent findings arrived at by three courts including the High Court---Petitioner failed to show anything from record which could persuade Supreme Court to, interfere with concurrent findings arrived at by three courts including the High Court---Leave to appeal was refused.

Raja Muhammad Aslam v. Raja Muhammad Sarwar and others 2000 SCMR 531 and Subedar Muhammad Asghar v. Mst. Safia begum and another PLD 1976 SC 435 distinguished Rao Munawar Khan, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioners.

Rana Farman Ali Sabir, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondent No.3.

2009 S C M R 565

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery, and Sabihuddin Ahmed, JJ

NADIR SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.86/K of 2004, decided on 21st October, 2008.

(On appeal against the judgment, dated 7-10-2004 passed by High Court of Sindh, Karachi in Special A.T. No.52 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302/149---Anti-Terrorism Act (XXVII of 1997), S.7---Reappraisal of evidence---Delay. in F.I.R.---Concurrent findings of fact---Prosecution case was primarily founded upon eye-witness account of five witnesses---Four prosecution witnesses clearly implicated accused with commission of offence---Trial Court as well as High Court found evidence of prosecution witnesses as confidence inspiring which could not be shattered by defence through cross-examination, which fully supported prosecution version---Plea raised by accused was that there was an un-explained delay in registration of F.I.R.---Validity---Delay of few hours in lodging F.I.R. had been fully explained as victims of offence were first taken to hospital and F.I.R. was recorded thereafter---Entire evidence was carefully analyzed in well reasoned judgment of High Court---Another co-accused had earlier been convicted and such conviction was not only maintained by High Court but by Supreme Court as well---Conviction and sentence awarded to accused were unexceptionable and called for no interference by Supreme Court---Leave to appeal was refused.

Iqtidar Ali Hashmi, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 21st October, 2008.

2009 SCMR 569

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

BADAR MUNIR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.404 of 2002, decided on 2nd December, 2008.

(On appeal from the short order, dated 4-7-2002 and detailed judgment dated 6-7-2002 passed by Peshawar High Court, Peshawar, in Criminal Appeal No.91 of 1999).

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

----Ss. 6, 7, 8 & 9---Criminal Procedure Code (V of 1898), Ss.423 & 439---Reappraisal of evidence---Converting acquittal into conviction---Revisional jurisdiction---Condonation of delay---Division Bench of High Court under suo motu action and in exercise of revisional jurisdiction, converted acquittal of accused into conviction---Validity---Though High Court had been conferred with power of appellate Court under S.423 Cr.P.C. while exercising powers of revision under S.439, Cr.P.C. but S.423(1), Cr.P.C. did not award power to revisional court to convict any acquitted person by taking suo motu action---Division Bench of High Court was not empowered to exercise suo motu power of revision in such manner so as to convert judgment of acquittal into a judgment of conviction---Although the appeal was barred by 31 days, yet in the interest of justice, Supreme Court condoned the delay, set aside conviction passed by High Court and acquitted the accused---Appeal was allowed.

Shera and 6 others v. The Crown PLD 1954 FC 141 and Karl John Joseph and another v. The State PLD 2005 Kar. 4 rel.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Nemo for Respondent.

Date of hearing: 2nd December, 2008.

2009 SCMR 574

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmad and Sarmad Jalal Osmany, JJ

KATHIAWAR COOPERATIVE HOUSING SOCIETY LTD. ----Petitioner

Versus

MACCA MASJID TRUST and others----Respondents

Civil Appeal No.771-K of 2000, decided on 19th February, 2009.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 9-12-1998 passed in R.A. No.168 of 1997).

Civil Procedure Code (V of 1908)---

----S. 92 & O. XXIX, R.1---Specific Relief Act (I of 1877), S.42---Private trust---Permission of Advocate-General---Principles---Signing of pleadings---New plea, raising of---Administration of justice---Rules of procedure---Scope---Judgment and decree passed by Trial Court was reversed by Lower Appellate Court solely on the ground that the suit had been filed in violation of S.92 C.P.C.---Validity---Direction of Advocate General was not required in private disputes where Trust was alleged to have been established unlawfully for the purpose of usurping a particular property belonging to and/or under the control of any other person or corporate entity---Marked difference was between prayers in the suit filed by appellant and provisions of S.92 C.P.C. which was designed for protection of and administration of trusts created for public purpose and required consent of Advocate General before filing suit to obtain decrees relating to eight kinds of reliefs mentioned therein, in which public at large would be interested---No specific objection having been taken by respondent regarding competency of person who signed and verified plaint to do so either in written statement or in evidence produced before Trial Court, such objection could not be taken at appellate stage---Had such objection been taken, it would have been rectified by appellant by producing requisite authority to sign and verify the plaint---Absence to have authority to sign pleadings was mere an irregularity which could be set at right and could not be made basis of non-suiting a litigant---Matter should be decided on merits and not dismissed on technicalities, which even otherwise could not be substantiated---Rules of procedure were framed to foster the cause of justice and not to hamper it unless any party was prejudiced by any violation of the same---Such rules should not stand in the way of dispensation of justice---Judgment and decree passed by Lower Appellate Court and maintained by High Court in revisional jurisdiction was set aside by Supreme Court and case was remanded to Lower Appellate Court for decision afresh on merits---Appeal was allowed.

Anwar Mansoor Khan, Advocate Supreme Court and Abdul Latif A. Shakoor, Advocate Supreme Court for Petitioner.

Khalid Javed, Advocate Supreme Court for Respondents Nos.1 to 9.

Respondent No.10: Ex parte.

Abdul Fateh Malik, Additional Advocate-General, Sindh on Court notice.

Date of hearing: 19th February, 2009.

2009 S C M R 579

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

QAISARULLAH and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.285 and 286 of 2008, decided on 19th January, 2009.

(Against the judgment, dated 14-4-2008 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeals Nos.254 and 257 of 2005 respectively).

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

---Ss. 9(c) & 9(a)---Appraisal of evidence---Recovery of---Benefit of doubt---Sentence, reduction in---"Charas" from the car being driven by the accused was proved by the consistent prosecution evidence---Accused along with his co-accused had been injured after the car had met with an accident and their presence had been established---None of the prosecution witnesses had any personal grudge or enmity against the accused so as to involve him in a false case---F.I.R. had shown that 170 packets of "Charas" were recovered from the car---Each packet weighed one Kg. and some quantity of "Charas" was separated from each packet for the purpose of chemical examination---Even if one gram of "Charas" had been taken from each packet, then the total would have been 170 grams and not 10 grams sent to Chemical Examiner---Separation of 1/17 grams even by micro tools from a packet containing one Kg. of "Charas", was virtually impossible---Possibility of having separated 10 grams of "Charas" from a single packet, therefore, could not be ruled out---Benefit of each doubt had to be given to the accused---Conviction of accused under S.9(c) of the Control of Narcotic Substances Act, 1997, was consequently altered to S.9(a) thereof and his sentence was reduced to the period already served out by him in circumstances.

Daulat Khan v. The State 2007 SCMR 1437 ref.

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

----Ss. 9(c) & 9(a)---Appreciation of evidence---Benefit of doubt---Principle---Benefit of each doubt is to be given to accused.

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

----S. 9(c)---Appraisal of evidence---Benefit of doubt---Car from which "Charas" was recovered was being driven by co-accused and not by the accused---Prosecution had failed to connect accused with the ownership of the car as well as to prove through convincing evidence that accused had exclusive knowledge of the concealment of narcotics in the car---From the very first day the defence plea of accused was that he was an employee of Pakistan Air Force and he was given lift by the driver of the car, which was admitted and found correct by the Investigating Officer---No link between the accused and driver of the car had been established on the record---First version of the accused recorded immediately after his apprehension was to be given weight, which was supported by the circumstances of the case---Accused was acquitted on benefit of doubt in circumstances.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Appellant (in Criminal Appeal No.285 of 2008).

Noor Alam Khan, Advocate Supreme Court for Appellant (in Criminal Appeal No.286 of 2008).

Mian Asif Mumtaz, D.P.-G. for the State.

Date of hearing: 19th January, 2009.

2009 S C M R 585

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

MUHAMMAD IQBAL and others----Petitioners

Versus

Messrs SAMPAK PAPER AND BOARD MILLS and others----Respondents

Civil Petition No.538-L of 2004, decided on 16th January, 2009.

(On appeal from order, dated 5-12-2003 of the Lahore High Court, Lahore passed in C.O. No.76 of 1998).

Companies Ordinance (XLVII of 1984)---

----S. 405---Constitution of Pakistan (1973), Art.185(3)---Liabilities of company---Settlement of claims---Procedure---Proposed scheme' for distribution of sale proceeds received from sale of assets was approved by Company Judge and Official Liquidator had made proportionate payments to ex-employees of the company---Plea raised by ex-employees of the company was that order regarding scheme for distribution of sale proceeds should have been a detailed order and after paying revenue tax etc. total claim of ex-employees of the company should have been satisfied---Validity---Even admitted claims of secured creditors and first charge holders could not be satisfied from sale proceeds of assets of the company thus ex-employees of the company were treated as preferential claimants and were rightly disbursed the amount in accordance with law and their claims were rightly satisfied---No detailed order was required for distribution of sale proceeds as company had been ordered to be wound up through detailed order, thereafter it was function of Official Liquidator to receive claims from creditors, scrutinize the claims and furnish his recommendations before Company Judge seeking order for implementation of final scheme for distribution---None including petitioner, raised objection to proposed scheme of distribution, therefore, it was rightly and validly approved by company Judge and Company was finally directed to distribute the amounts to secured creditors---Order passed by Company Judge for distribution of sale proceeds among creditors was justified and Supreme Court declined to interfere in the same---Leave to appeal was refused.

Ch. Muhammad Amin Javed, Advocate Supreme Court for Petitioners.

Nemo for Respondent No.5.

2009 S C M R 589

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan and Mian Hamid Farooq, JJ

GUL REHMAN----Appellant

Versus

GUL NAWAZ KHAN----Respondent

Civil Appeal No.742 of 2008, decided on 17th December, 2008.

(On appeal from the judgment, dated 30-6-2008 of the Peshawar High Court, Peshawar passed in Civil Revision No.658 of 2006).

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

----Ss. 96, 115 & O. XLI, Rr.31, 32, 33---Appeal and revision---Powers of Appellate Court and Revisional Court---Distinction stated.

Revision and appeal are two different fields. Appeal is the continuation of original suit and the appellate Court has got ample power to thrash out the entire evidence and scrutinize the available documents in the light of arguments advanced by the respective parties. On the other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in the impugned judgment. A bare perusal of section 115, C.P.C., clearly shows that scope of revision is limited to the above points.

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

----S. 96 & O.XLI, Rr. 32, 33---First Appellate Court---Duties stated.

The legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend and the appellate Court should not easily agree with the trial Court simply because it was not inclined to take much trouble over the case. If the appellate Court itself does not examine the facts and the evidence and does not even mention the points which the case raises, it will be certainly failing in its duty.

Sailajananda Pandey and others v. Lakhichand Sao and others AIR 1951 Patna 502 fol.

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

----S. 96 & O. XLI, Rr.23, 27, 31, 32, 33---First appeal---Sufficient evidence available on record not thrashed out by appellate Court---Dismissal of appeal by appellate Court mainly depending on decision of Trial Court---Validity---Impugned judgment was not a judgment in its true sense---Appellate Court had chosen the path of least resistance instead of applying O.XLI, R.32, C.P.C., in strict sense for having ample powers under Rr.32 & 33 thereof---Case was remanded to Appellate Court for writing fresh judgment after hearing both parties.

Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 and Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCMR 524 distinguished.

Gul Zarin Kiani, Senior Advocate Supreme Court for Appellant.

Haji M. Zahir Shah, Advocate Supreme Court/Advocate-on-Record for Respondent.

Date of hearing: 17th December, 2008.

2009 S C M R 594

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

BHAI KHAN and others----Petitioners

Versus

SHAKEEL and others----Respondents

Civil Petitions Nos.385 and 386-K of 2006, decided on 21st October, 2008.

(On appeal from the order, dated 29-5-2006 of the High Court of Sindh, Hyderabad Circuit, passed in R.As. Nos.88 and 90 of 2003).

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XXVI, Rr.9 & 10---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of encroached land---Dismissal of suit by Trial Court after recording ex parte evidence of plaintiff---Appointment of Local Commissioner by High Court for spot inspection with consent of both parties agreeing to be bound by his report---Commission in his report found defendant to have occupied suit-land---Objection to such report by defendant---Suit decreed by High Court on basis of such report---Validity---High Court had accepted revision petition in view of such voluntary commitment and agreement of parties to resolve dispute on basis of report of Commissioner---Defendant had shown dissatisfaction over such report when same went against him---Once having given consent for appointment of Commissioner and to be bound by his report, defendant could not be allowed to turn round and object to such report---Supreme Court dismissed petition for leave to appeal in circumstances.

Barkat Masih v. Barkat Bibi and three others, 1999 YLR 1215; Muhammad Khan v. Nazir Ahmed, 2003 SCMR 1911 and Muhammad Asghar v. Shah Muhammad Awan PLD 1986 SC 542 rel.

Ghulam Qadir Jatoi, Advocate Supreme Court/Advocate-on-Record for Petitioners (in Civil Petitions Nos.385-K and 386-K of 2006).

Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondents Nos.1, 2, 4 and 5 (in Civil Petition No.385-K of 2006).

Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondents Nos.3 and 4 (in Civil Petition No.386-K of 2006).

Nemo for Respondents Nos.1 and 2 (in Civil Petition No.386-K of 2006).

2009 S C M R 598

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Mian Hamid Farooq, JJ

TAJ MUHAMMAD KHAN through L.Rs. and another--Petitioners

Versus

Mst. MUNAWAR JAN and 2 others----Respondents

Civil Petitions Nos.109 and 110 of 2009, decided on 2nd February, 2009.

(On appeal from the judgment of the Peshawar High Court, Abbottabad Bench dated 18-12-2008 passed in Civil Revisions Nos.415 and 416 of 2006).

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79 ---Civil Procedure Code (V of 1908), O.VI, R.4---Suit for declaration---Transfer of land by deceased through mutations of gift and sale in favour of his two daughters excluding his third daughter from inheritance---Plaintiff's plea was that such mutations were the result of fraud and misrepresentation; and that deceased had never appeared before Revenue Officer for their attestation---Proof---Both witnesses of sale mutation were landowners in Deh---One witness of gift mutation was a Lambardar, while other was a resident of Deh---All such witnesses had deposed in Court that they had identified deceased at the time of attestation of such mutations in open assembly of 300/400 people of Deh---Such mutations had been challenged after 7/8 years of attestation thereof and four years of death of deceased---Plaintiff had neither mentioned in plaint ingredients of fraud nor led any evidence to prove as to how defendant committed fraud with her---Plaintiff had failed to discharge initial onus to prove misrepresentation and fraud---Defendant had proved gift deed by producing its scribe and attesting witnesses---Ex-Girdawar Kanungo had deposed to have verified entries of both mutations---Suit was dismissed for want of proof in circumstances.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Arshad Khan v. Mst. Resham Jan 2005 SCMR 1859; Nasrullah Khan v. Rasul Bibi 2001 SCMR 1156 and Mst. Nusrat Zohra v. Mst. Azhara Bibi PLD 2006 SC 15 ref.

Siddik Mahomed Shah v. Mt. Saran and others AIR 1930 PC 57; Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Abdul Karim v. Muhammad Akram 1995 CLC 130; Tom Boevey Barrett v. African Products Ltd. AIR 1928 PC 261; Ghulam Shabbir v. Nur Begum PLD 1977 SC 75; Banwari Lal and others v. Shaikh Shukrullah and others AIR 1940 Patna 204 and Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703 rel.

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

----S. 4(9)---"Estate"---Meaning---Estate would mean not only a particular village, but also that village included as a unit for purpose of assessment of land revenue.

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

----S. 42(7) & (8)---Mutation, attestation of---Identification of vendor or donor---Scope---Any Lambardar or Member of Union Council concerned but not necessarily of that village/Mauza could identify vendor or donor---Principles.

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

----O. VI, R.4---Plea of fraud and misrepresentation etc., raised in plaint without mentioning ingredients thereof---Effect---No amount of evidence could be looked into upon such plea---Illustration.

Siddik Mahomed Shah v. Mt. Saran and others AIR 1930 PC 57; Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Abdul Karim v. Muhammad Akram 1995 CLC 130; Tom Boevey Barrett v. African Products Ltd. AIR 1928 PC 261; Ghulam Shabbir v. Nur Begum PLD 1977 SC 75; Banwari Lal and others v. Shaikh Shukrullah and others AIR 1940 Patna 204 and Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703 rel.

Khalid Rehman Khan Qureshi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd February, 2009.

2009 SCMR 605

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

Mrs. ABIDA PARVEEN CHANNAR----Appellant

Versus

HIGH COURT OF SINDH at Karachi----Respondent

Civil Appeal No.1669 of 2007 arising out of Civil Petition No.219-K of 2007, decided on 23rd February, 2009.

(On appeal against the judgment, dated 5-4-2007 passed by Sindh Subordinate Judiciary Service Tribunal at Karachi in Appeal No.6 of 2005).

(a) Sindh Judicial Service Rules, 1994----

----R. 9-A---Services of probationer could be dispensed with before expiry of probation period.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 rel.

(b) Civil service---

----Probationer only on successful completion of probation period could acquire a sure footing---Principles.

Appointment of a probationer can only acquire a sure footing, if he successfully completes the period of probation and the appointing authority is fully satisfied with his conduct and performance of duties.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 fol.

(c) Civil service---

----Misconduct, charge of---Employee's right to show-cause notice before passing of termination order against him by competent authority---Scope stated.

A right to notice is riot to be premised merely upon the question whether the order of termination indicated a stigma, but whether allegations of misconduct had any bearing upon the mind of the competent authority passing the order.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 rel.

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

----S. 3-B---Constitution of Pakistan (1973), Art.212(3)---Termination of service during probation period---Judicial Magistrate---Misconduct, charge of ---Imposition of such penalty on basis of discreet enquiries conducted by District Judge---Dismissal of appeal by Service Tribunal---Validity---In view of serious allegations of misconduct levelled against appellant, recording definite conclusion against him on basis of discreet enquiries was highly improper---Competent authority had erred by failing to summon entire record, when appellant had levelled allegations of bias against District Judge. in departmental appeal---Report of District Judge submitted two months after assuming charge contained allegations relating to period prior to his appointment and same being unrelated to performance of duties by appellant possibility of bias could not be altogether ignored---Supreme Court, set aside orders of Service Tribunal and competent authority with direction to reinstate appellant in service while allowing competent authority to initiate enquiry into allegations of misconduct, if considered necessary.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 and Pakistan State Oil v. Muhammad Tahir Khan PLD 2001 SC 980 ref.

(e) Administration of justice---

----Public functionaries---All public powers must be exercised reasonably and honestly for purpose for which same are conferred.

(f) Civil service---

----Misconduct, charge of --Judicial Officer---Discreet enquiries---Validity---Not proper to record definite conclusion on basis of such enquiries-Principles.

When serious allegations of misconduct are levelled against the judicial officers, it is highly improper to record conclusions on the basis of "discreet enquiries". Indeed such inquiries may be permissible for the purpose of enabling the competent authority to determine whether appropriate action should be initiated so as to prevent unnecessary harassment. Nevertheless there can be no justification to come to definite conclusions on the basis of such enquiries.

(g) Civil service---

----Inquiry proceedings---Duty of Judicial Officer---Scope-Judicial officers should honestly and faithfully report failings of their subordinates to enable competent authority to apply their independent judgment rather than attempting to foist their own prejudices.

M.M. Aqil Awan, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Appellant.

Abdul Fateh Malik, Additional Advocate-General, Sindh for Respondent.

Date of hearing: 23rd February, 2009.

2009 S C M R 611

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmad and Sarmad Jalal Osmany, JJ

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN----Petitioner

Versus

MUHAMMAD AYUB STONE CRUSHERS and others----Respondents

C.P.L.A. No.88-K of 2009, decided on 23rd February, 2009.

(On appeal from the judgment of High Court of Sindh at Karachi, dated 12-12-2008 passed in H.C.A. No.274 of 2007).

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

----S. 19---Industrial Development Bank of Pakistan Ordinance (XXXI of 1961), S.39---Civil Procedure Code (V of 1908), O.XXI, R.52 & O. XXXIV, R.13---Transfer of Property Act (IV of 1882), Ss. 48, 50 & 78---Registration Act (XVI of 1908), S. 50---Execution proceedings---Mortgage of same property by borrower in favour of Bank "N" through prior registered deed and then in favour of another Bank by deposit of title deed---Sale of property by Banking Court to satisfy decree of said another Bank, but failure of Official Assignee to deliver possession of property to auction purchaser for being attached by another court ---Application by Bank "N" for recalling such order of sale for having been obtained by concealment of its prior registered charge on property already attached by another court in execution of decree---Acceptance of such application by Banking Court with direction to said another Bank to return sale proceeds to Bank N'---Validity---Registered mortgage in favour of BankN' was prior in time, while simple mortgage by deposit of title deed in favour of said other Bank was later in time and unregistered---Other Bank's case was not that due to fraud, misrepresentation or gross negligence of Bank `N' the other E WA had been induced to advance money to judgment debtor on security of already mortgaged property---Registered mortgage would be a notice to entire world of factum of its registration---Other Bank should have made efforts and exercised due care and diligence before advancing amount to judgment debtor on strength of property over which Bank 'N' had already a registered mortgage---Registered mortgage, even though later in time, would take priority over an earlier unregistered mortgage---Sale proceeds as per O.XXXIV, R.13, C.P.C., would be applied towards satisfaction of a prior mortgagee's debt before subsequent mortgage could have any interest therein---Other Bank,' despite having full knowledge about property being in custody of another Court on basis of attachment had approached Banking Court for its sale and started inviting purchase offers on its own--Only Banking Court could determine question of priority of interest as between both the Banks---Such order of sale was not only illegal, but also without jurisdiction---Supreme Court upheld impugned judgment in circumstances.

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

----S. 50---Transfer of Property Act (IV of 1882), S.58---Mortgage---Registered mortgage would be a notice to entire world of factum of its registration.

Ainuddin Khan, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd February, 2009.

2009 S C M R 615

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ijaz Yousaf, JJ

MUHAMMAD HANIF----Petitioner

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF INTERIOR and another----Respondents

Civil Petition No.964 of 2008, decided on 14th January, 2009.

(On appeal from the judgment, dated 13-5-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.907(R)(C.S.) of 2002).

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

----Ss. 5 & 3---Revised Leave Rules, 1980---Office Memorandum No.F(1)-Rev.1/78, dated 21-9-1978, para.13---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement--- Civil servant was granted 90 days' ex-Pakistan leave for medical treatment and was denied further extension of leave---Civil servant failed to join the duty on expiry of leave---Proceedings against civil servant were carried out ex parte without waiting for his return from abroad---Record revealed that no charge-sheet was issued to the civil servant as required under S.3(2), Removal from Service (Special Powers) Ordinance, 2000---Civil servant, thus was deprived of opportunity of showing cause by giving a defence reply to the charge-sheet and of defence at the first stage required under the law---Authority should have adopted the elementary principles of natural justice unless the same had been expressly excluded---Such proceedings, therefore, could not be sustained which had prejudiced the right of defence of the civil servant---Provisions of S.5, Removal from Service (Special Powers) Ordinance, 2000 contemplated that in case of charge of misconduct as stipulated in S.3 of the said Ordinance, a full-fledged enquiry was to be conducted in order to give an opportunity to civil servant to clarify his position---Authority was not justified in refusing to grant the leave on EOL (leave without pay)---Civil servant had 26 years of service to his credit and as per Revised Leave Rules, 1980 he was entitled to EOL without pay for a maximum period of 5 years, if he had rendered more than 10 years of service---No justification, therefore, was available to the Authority for refusing EOL when the civil servant requested for extension of leave on medical grounds---Principles---Supreme Court converted petition for leave to appeal into appeal and allowed---Judgment of Service Tribunal, was set aside and civil servant was directed to be reinstated in service with all back-benefits, however, department would be at liberty to initiate fresh enquiry against the civil servant in accordance with law.

Sajjad Hussain Bhatti v. The Post Master General, Pakistan Post Office, Metropolitan, S.S.C. Karachi and two others, 2002 PLC (C.S.) 843; Collector of Customs Hyderabad and another v. Muhammad Hayat, 2001 PLC (C.S.) 81; Irrigation Secretariat, Lahore v. Abdul Hamid Arif and others, 1991 SCMR 628; Allah Yar v. General Manager, Railways Headquarters, Lahore, 2001 SCMR 256; Amjad Ali and others v. Board of Intermediate and Secondary Education and others, 2001 PLC (C.S.) 81 and Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another, 2008 SCMR 1369 ref.

Azid Nafees, Advocate Supreme Court for Petitioner.

Shah Khawar, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 14th January, 2009.

2009 S C M R 623

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Mian Hamid Farooq, JJ

Mst. NAGINA BEGUM----Appellant

Versus

Mst. TAHZIM AKHTAR and others----Respondents

Civil Appeal No.1208 of 2007, decided on 22nd January, 2009.

(On appeal from the judgment, dated 13-3-2007 of the Peshawar High Court, Peshawar, passed in R.F.A. No.48 of 2005).

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

---Art. 79---Proof of execution of document---Scope---If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses have been called for the purpose of proving its execution, if there be two attesting witnesses alive.

(b) Gift---

----Declaration of gift' cannot be equated with agift deed' which has different dimensions and parameters as compared to the former.

(c) Islamic law---

----Gift---Necessary and inseparable ingredients are declaration/offer by the donor; acceptance of gift by the donee and delivery of possession under the gift.

(d) Islamic law---

----Gift---Proof---Gift by a Muslim would be complete, even if there is no writing and three ingredients i.e. declaration of gift by the donor; acceptance of gift expressly or impliedly by or on behalf of the donee; and delivery of possession of the subject-matter by the donor to the donee, are proved.

Maulvi Abdullah v. Abdul Aziz 1987 SCMR 1403 rel.

(e) Islamic law---

----Gift---Validity---Declaration of gift showed that donor out of love and affection, offered his wife and children to gift the property to them, which offer was accepted by them, inasmuch as, the possession was transferred under the gift---Not only that but all the donees also, in token of acceptance of the offer of gift and taking over the possession of the questioned property, affixed their signatures on the declaration of gift---Declaration of gift duly signed by the donees was also witnessed by two witnesses---Held, all the ingredients necessary for completion of a valid gift under Islamic law were fulfilled and it could not be argued that no valid gift was made.

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

----Art. 79---Proof of execution of a document---Litigant, in order to prove a document is required to produce two attesting witnesses, if they are alive---If two attesting witnesses are not alive, the execution of document could be proved by producing other admissible evidence.

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

----Ss. 123 & 129---Gift by Muslim can be complete even without any writing and such gifts are expressly excluded from the operation of Transfer of Property Act, 1882---Principles.

Maulvi Abdullah v. Abdul Aziz 1987 SCMR 1403 fol.

(h) Islamic law---

----Gift--- Gift by Muslim can be complete even without any writing and such gifts are expressly excluded from the operation of Transfer of Property Act, 1882---Principles.

Maulvi Abdullah v. Abdul Aziz 1987 SCMR 1403 rel.

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

----S. 9---Suit by person dispossessed of immovable property---Claim of damages---Scope---Plaintiff had failed to prove that she had sustained any sort of damages---No evidence was led by the plaintiff to prove the quantum of damages and thus, her claim for damages was rightly rejected.

Shakeel Ahmed, Advocate Supreme Court and Mir Adnan Khan, Advocate-on-Record for Appellants.

Ms. Nahida Mehboob Elahi, Advocate Supreme Court for Respondents Nos. 1 to 6.

Date of hearing: 22nd January, 2009.

2009 S C M R 630

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

HAQ NAWAZ----Appellant

Versus

MUHAMMAD KABIR----Respondent

Civil Appeal No.1259 of 2008, decided on 18th November, 2008.

(On appeal from the judgment, dated 15-4-2008 in Civil Revision No.285 of 2006 passed by the Lahore High Court, Rawalpindi Bench).

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

----S. 13---Talb-e-Muwathibat---Mentioning of date, place and time of such Talb in plaint were essential requirement of law.

The mentioning of date, place and time in the plaint regarding Talb-e-Muwathibat in a suit for pre-emption is sine qua non, because in the absence of proper date, place and time, the time provided in S.13(3) of the Punjab Pre-emption Act, 1991 for making Talb-e-Ishhad cannot be calculated correctly.

Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 and Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 rel.

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

----S. 13---Talb-e-Muwathibat, performance of---Plaint mentioning only date and place, but not time of making such Talb---Plea that judgment of Supreme Court in case of Mian Pir Muhammad PLD 2007 SC 302 pronounced on 12-12-2006 would not apply retrospectively to suit pending since 22-3-2001---Validity---Requirement of mentioning time, date and place of performance of such Talb was essential even in pending cases---Suit was dismissed in circumstances.

Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 and Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 rel.

Nazir Ahmad Bhutta, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant.

Gulzarin Kiani, Senior Advocate Supreme Court for Respondent.

Date of hearing: 18th November, 2008.

2009 S C M R 634

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali JJ

LAND ACQUISITION COLLECTOR, NATIONAL HIGHWAY AUTHORITY, LAHORE and another----Appellants

Versus

JAVED MALIK and others----Respondents

Civil Appeals Nos.2057 and 2058 of 2006, decided on 23rd January, 2009.

(On appeal from the judgment, dated 5-9-2006, passed by the Lahore High Court, Lahore in R.F.A.No.495 of 2004).

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

----Ss. 9 & 25---Acquisition of land---Rule as to amount of compensation---Notice to persons interested---Invocation of S.25, Land Acquisition Act, 1894---Scope---Collector is bound to cause public notice to be given at convenient places on or near the land to be taken and to serve notice on the occupier and on all such persons interested therein or were entitled to act for persons so interested, or had agents to accept service on their behalf within the Revenue District concerned---Collector was also directed under S.9, Land Acquisition Act, 1894 to serve notice through post, if the persons so interested are not residents of the Revenue District, in which the land was situated---Such mandatory compliance of S.9, if had been made by the Land Acquisition Collector, then the provision of S.25, Land Acquisition Act, 1894 could be invoked by the Collector as well as by the persons for whom the land had been acquired---Referee Court was prohibited to grant compensation more than the amount claimed by the applicants or less than the amount awarded by the Collector, if such notices were given under S.9 by the Collector, otherwise Referee Court was not prohibited to grant compensation, in accordance with the assessed price of the land acquired---Provisions of S.25 of the Act are penal, stringent and restrictive in nature in respect of the fixation of compensation, therefore, its preceding essentialities have to be complied with otherwise S.25 cannot be invoked or enforced to tie hands of the Referee Court---Collector was bound to raise such point of objection before the Referee Court, to get an issue framed from the said Court and to produce the notices if transmitted to landowners, as required by S.9, Land Acquisition Act, 1894 into the evidence, otherwise it would be late in the day to make hue and cry or to construct an edifice on this basis, before the Supreme Court---No such effort or exercise having been made by the Collector, it was mere an objection, having no relevance with the case and required no consideration from Supreme Court.

Liyar Khan v. Land Acquisition Collector/A.C. Swabi 2003 YLR 3287; Tara Prasad Chaliha v. Secretary of State and another, AIR 1930 Calcutta 471; State of Bihar v. Anant Singh and others AIR 1964 Patna 83; Special Land Acquisition Officer v. Sanagouda Paragouda Patil AIR 1974 Karnatak 74; The Collector of Karachi v. Fida Hussain Muhammad Ali Lotia and others PLD 1965 Kar. 573; Deputy Commissioner v. Abdul Karim Mossa and others 1983 CLC 15'42; Hyderabad Development Authority and another v. Kamran Khan Shoro 1985 SCMR 45 and Afzal Shah v. Land Acquisition Collector and others PLD 1990 Peshawar 83 ref.

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

----S. 25---Acquisition of land---Award of compensation--Principles--Land acquired, in the present case, was of a commercial nature having hotel, shops, service station, petrol pump and mosque---Award of compensation for the superstructure by the Collector itself corroborated such fact and admission of witness supported the case of landowners, made in his statement before the Referee Court---When the Collector, in circumstances, had failed to rebut the evidence of mutations produced by the owners in the Referee Court, through any other evidence, the mutations, which were exhibited in evidence without any objection, could not be overlooked, discarded or thrown away from the record to assess the correct compensation---Assessment of compensation had to be made justly and fairly and keeping in view the facts and circumstances of the given case, it had not to be excessive so as to burden the exchequer unfairly and illegally and not too lesser as to cut the pocket of the landowners from their legal right and due share---Balance had to be kept in between the two--When, in circumstances, there was no controversial or rebuttal evidence on the record, there was no alternative but to accept the price mentioned in the mutations produced by the landowners in the case, however, the mutation which contained no mention of price in it, was to be discarded from consideration---After calculating the total price mentioned in the said mutations and dividing same on the lands, alienated through their mutations, the average price of all their mutations was calculated by the Supreme Court, which became an average price and held that landowners were entitled for the price so calculated by the Supreme Court.

Muhammad Rafiq Shad, Advocate Supreme Court for Appellants (in Civil Appeal No.2057 of 2006).

Sh. Naveed Shaharyar, Advocate Supreme Court for Respondents (in Civil Appeal No.2057 of 2006).

Sh. Naveed Shaharyar, Advocate Supreme Court for Appellants (in Civil Appeal No.2058 of 2006).

Muhammad Rafiq Shad, Advocate Supreme Court for Respondents (in Civil Appeal No.2058 of 2006).

Date of hearing: 11th September, 2008.

2009 SC MR 642

[Supreme Court of Pakistan]

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

MUHAMMAD YOUSAF BAIG----Appellant

Versus

REHMAT ALI----Respondent

Civil Appeal No.1167 of 2007, decided on 26th January, 2009.

(On appeal from the judgment, dated 17-4-2007 of the Lahore High Court, Lahore passed in R.S.A. No.140 of 2004).

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

----S. 13---Civil Procedure Code (V of 1908), S.100---Talb-e-Muwathibat and Talb-e-Ishhad, performance of ---Filing of suit on 13-9-2000---Plaintiff on oath stating date of performance of Talb-e-Muwathibat to be 27-9-2000---Suit dismissed by Courts below decreed by High Court in second appeal---Validity---Record showed that plaintiff had proved making of Talb-e-Ishhad through registered notice dated 5-9-2000---Courts below had ignored date of making Talb-e-Muwathibat mentioned as 27-8-2000--High Court had rectified such error by treating date mentioned as 27-9-2000 to be a slip of tongue---Question of any interpretation of evidence contrary to record merely on basis of a slip could not upheld---High Court had rightly reversed concurrent findings of Courts below for being contrary to evidence and erroneous---Supreme Court dismissed petition for leave to appeal in circumstances.

Pervaiz Rauf, Advocate Supreme Court and Akhtar Ali, Advocate-on-Record for Appellant.

Gulzarin Kiani, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents.

Date of hearing: 26th January, 2009.

2009 S C M R 644

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir

and Muhammad Farruk Mahmud, JJ

GHULAM SHABBIR and others----Appellants

Versus

Mst. BAKHAT KHATOON and others----Respondents

Civil Appeal No.82 of 2006, decided on 22nd January, 2009.

(On appeal from the judgment, dated 12-10-2005 passed by the Lahore High Court, Lahore in Civil Revision No.182 of 1996).

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

----S. 115---Revision---When there are contradictory findings by two courts, revisional court would interfere to examine that the judgment of which court is correct.

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

----Art. 185---Appeal to Supreme Court---Scope---Supreme Court though could not interfere in the concurrent findings of fact recorded by the courts below, but to save the precious time of parties as well as the court, it went through the evidence produced by the parties and decided the appeal after evaluation of the parties cases instead of remanding the case to the High Court.

(c) Islamic law---

----Sect---Great majority of the Muslim of Indo-Pak Sub-Continent being Sunni the presumption is that the parties to a suit or proceedings are Sunnis unless it is shown that they belonged to Shia Sect---Burden to prove that the deceased was Shia is on the person alleging him to be not Sunni but Shia---Principles.

A Muslim when dies, the moveable or immovable property devolves on his legal heirs which is to be distributed or transferred in accordance with Muslim Law of inheritance In Sub-Continent of Indo-Pak the whole Muslim Community is divided into two sects namely, Sunnis and Shias. The Sunnis are divided into four sects namely Hanfis, Malkis, Shafies, and Hanbalis. The Sunni Muslims belong to Hanfi School of thought. The great majority of the Muslims of Indo-Pak Sub-Continent being Sunni, the presumption is that the parties to a suit or proceedings are Sunnis unless it is shown that they belong to Shia sect.

Majority of the Muslims belong to Hanfi School of thought and the Court may presume that a deceased person was Hanfi till contrary is proved and ordinarily it will raise such presumption.

There will be no case so devoid of circumstances from which religions of parties may be inferred, that there should be a necessity for the application of the presumption even after evidence is led but the presumption is however one of fact and the Court may refuse to give effect to it in the circumstances of a particular case. In the absence of any required proof to the contrary, it must be presumed to be a Muslim and, therefore, governed by Hanfi Law.

In Indo-Pak Sub-Continent there is initial presumption that a Muslim is governed by Hanfi Law unless the contrary is established by good evidence.

The initial presumption in Pakistan is that a Muslim is a Sunni until the contrary is proved, the burden of proof was on the plaintiffs.

The burden to prove that the deceased was Shia is on the person alleging him to be not Sunni but Shia.

Mst. Sardar Bibi v. Muhammad Baksh PLD 1954 Lah. 480; Akbarally v. Mahomedally AIR 1932 Bom. 356; Pahatan v. Mst. Wasai and another PLD 1965 SC 134; Nur Ali and another v. Malik Sultan and others PLD 1961 (W.P.) 431; Syed Muhammad Noor Shah and others v. Amir Hussain Shah and others 1999 CLC 1712; Mt. Iqbal Begum v. Mt. Syed Begum and others AIR 1933 Lali. 80 and Hussain v. Mansoor and 5 others PLD 1977 Kar. 320 ref.

(d) Islamic law---

----Sect---Shias are divided into three main sects, namely Athna-Ashrias, Ismailyas and Zaidyas---Most Shias are Athna-Ashrias, therefore, presumption is that the Shias are governed by Athna-Asharias exposition of law.

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

----Art. 74---Secondary evidence--Sect, determination---Non-production of counterfoils of subscription receipts paid to Sectarian Anjuman---Effect---Judicial consideration of such receipts could not be taken.

(f) Islamic law---

----Sect---Initial presumption---Inheritance---Whole evidence, in the present case, produced by the appellants was silent as to the sub-sect of the deceased, who was claimed to be Shia---No evidence was available as to when the deceased denounced his faith and appellants had not been able to produce evidence in this respect---Deceased's father, brothers, sister, close relatives and his two widows all were Sunnis and to their extent Hanfi Law of inheritance was attracted---Two widows of the deceased claimed their shares of inheritance out of the property left by their deceased husband---Evidence of witnesses and documents, certified copies of register of Ushr was sufficient and convincing evidence to believe that the deceased was a Sunni Muslim and he died as such---Appellants had not been able to rebut the evidence produced by respondents---Initial presumption that a Muslim was Sunni, follower of Hanfi School of thought, unless contrary was proved, having not been rebutted by the appellants, Supreme Court held that deceased was rightly found a Sunni Muslim by first appellate court and High Court---Appeal was dismissed.

Mst. Rukhsana Bibi and others v. Lal Hussain and others 1991 SCMR 2049 ref.

Syed Zulfiqar Ali Bukhari, Advocate Supreme Court for Appellants.

Sh. Zamir Hussain, Advocate Supreme Court for Respondent No. 1(ii-iii).

Respondents Nos.1(i), 1(iv)(a-c) and 2: Ex parte.

Date of hearing: 22nd January, 2009.

2009 SCMR 652

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Zia Perwez, JJ

NAJAM AZIZ SETHI----Appellant

Versus

MUHAMMAD AZEEM BUTT----Respondent

Civil Appeal No.399 of 2008, decided on 15th September, 2008.

(On appeal from the judgment, dated 3-10-2007 of the Lahore High Court, Lahore passed in F.A.O. No.384 of 2006).

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

----S. 17(8)(9)---Income Tax Ordinance (XLIX of 2001), S.155---Transfer of Property Act (IV of 1882), S.108---Constitution of Pakistan (1973), Art.185(3)---Deduction of advance income tax from the rent to be deposited in court on the order of Rent Controller by the tenant---Leave to appeal was granted by Supreme Court to consider the question, inter alia, whether the tenant was entitled to deduct advance income tax @ 5% on the gross amount of rent fixed by the Rent Controller consistent with the past practice and in view of provisions of S.155, Income Tax Ordinance, 2001 and Cl.(g) of S.108, Transfer of Property Act, 1882 and whether the defence of the tenant was liable to be struck off.

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

----S. 17(8), (9) & (4)(b)(iii)---Income Tax Ordinance (XLIX of 2001), S.155---Deduction of advance income tax by tenant (a limited company selling books) from the amount of rent as ordered by the Rent Controller to be deposited in court---Striking off defence of tenant by Rent Controller on the ground that tenant failed to deposit full amount of rent as ordered by the Rent Controller---Validity---Ejectment of tenant, in the present case, was sought on the ground of personal bona fide use of landlord and no default in payment of rent was alleged to have been committed---Deposit receipts showed the amount deposited in compliance of the order of the Rent Controller out of which the advance income tax was deducted was within prescribed period---Non-deposit of amount deducted towards the income tax from the rent in official account was also not alleged---Tenant a limited company was a distinct legal entity and as a consequence, it was a duty cast upon the tenant tendering rent to deduct advance income tax @ 5% in pursuance of the provisions of S.155 of the Income Tax Ordinance, 2001 which was attracted to payments made by the company---Held, payment of monthly rent was the liability of the limited company, the deposit of the same after deduction of income tax of the premises occupied by company carrying on its business only constituted a technical default not calling for ejectment---Principles---Protection afforded by proviso to S.17(4)(b)(iii) of Cantonments Rent Restriction Act, 1963 was not available to the premises where only books were sold---Supreme Court observed that order of the Rent Controller was required to be specific and quantum of amount of increase in rent, ought to have been mentioned for deposit of increased amount of the rent---By allowing appeal, Supreme Court set aside the impugned orders of both the Courts below and remanded the case of Rent Controller for disposal of the same on merits.

Abdul Rehman v. Haji Mir Ahmed Khan and another PLD 1982 Kar. 532; Major Ferozdin Khan and others v. Sh. Muhammad Amin PLD 1967 Lah. 966; Ashiq Ali and another v. Mehr Ilahi and 13 others 2001 SCMR 130; Mehboob Jewellers and others v. Nur Ahmed 1989 SCMR 1327 and Sh. Hafizullah v. Capt. Muhammad Mansib Ali Ch. and 2 others 1971 SCMR 132 rel.

Mehraban Ali v. Haji Muhammad Qasim PLD 1976 Lah. 1052; Muhammad Siddique v. Abdul Rasheed 1982 CLC 217; Noor Muhammad and another v. Mehdi PLD 1991 SC 711; L. Hussain v. Muhammad Nawab and 4 others PLD 1992 Kar. 307; Niaz Muhammad and another v. Waris Hussain and 2 others 2004 YLR 1266; Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR 557; Muhammad Ibrahim v. Rab Nawaz 1997 MLD 24; Zakir Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328; Khadim Hussain v. Nasir Ahmad 2003 SCMR 1580; Safeer Travels (Pvt.) Ltd. v. Muhammad Khan Shafi PLD 2007 SC 504; Muhammad Saeed v. Muhammad Asghar 2008 MLD 236; Muhammad Bisharat v. Mrs. Uzma Bhatti PLD 2008 Lah. 414; Muhammad Nadeem Anwar and another v. National Accountability Bureau and others PLD 2008 SC 645; Quinn v. Leathem (1901) AC 495, 506 and Trustees of the Karachi Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 distinguished.

(c) Judgment---

----Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found that they are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.

Quinn v. Leathern (1901) AC 495 and Trustees of the Karachi Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 fol.

Ahmed Rauf, Advocate Supreme Court for Appellant.

Muhammad Yasin Chughtai, Advocate Supreme Court for Respondent.

Date of hearing: 15th September, 2008.

2009 SCMR 659

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan and Mian Hamid Farooq, JJ

AFZAL MOTORS COMPANY (PVT.) LIMITED----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Civil Petition No.1232 of 2008, decided on 17th December, 2008.

(Against the judgment, dated 25-8-2008 of the High Court of Sindh at Karachi, passed in C.P. No.D-1142 of 2008).

Malta fide---

----Contention was that actions of public functionaries including awarding of contract to the highest bidder, were mala fide and the entire process in the said direction was not transparent---Record did not demonstrate that in fact the public functionaries, while initiating, processing and awarding contract acted in a mala fide manner---No document was available on record which could tend to show that the actions of the public functionaries were tainted with malice or the process starting from the invitation of tenders till award of contract was either mala fide or non-transparent---Simply to level vague and unsubstantiated allegation of mala fide on the part of the public functionaries did not advance the case of mala fide; it was very easy for a litigant to allege mala fide but was very difficult to prove the same---Allegation of mala fides required proof of a high order and the burden of proof lay on the person who made it---Principles.

Federation of Pakistan v. Saeed Ahmed PLD 1974 SC 151; Shabbir Hussain v. Registrar, Lahore High Court PLD 2004 SC 191 and Hazara (Hill Tract) Improvement Trust v. Qaisara Elahi 2005 SCMR 678 fol.

Muhammad Afzal v. Shahzad Asghar Dar 2003 SCMR 280; Ittehad Cargo Service v. Syed Tasneem Hussain Naqvi PLD 2001 SC 116; Air Support Service v. Airport Manager 1998 SCMR 2268; Pacific Multinational (Pvt.) Ltd. v. I.-G. of Police PLD 1992 Kar. 283; Riaz Ahmed v. Regional Transport Authority 1992 MLD 1882 and Petrosin Products Pak. (Pvt.) Ltd. v. Federation of Pakistan 2001 CLC 820 ref.

M. Afzal Siddiqui, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 17th December, 2008.

2009 S C M R 663

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

DISTRICT COORDINATION OFFICER, DISTRICT DIR LOWER and others----Petitioners

Versus

ROZI KHAN and others----Respondents

Civil Petitions Nos.660-P, 661-P and 662-P of 2006, decided on 6th February, 2009.

(On appeal from the judgment, dated 17-6-2006 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeals Nos.490, 491 and 492 of 2005).

Constitution of Pakistan (1973)---

----Art. 212(3)---Termination/withdrawal of appointment of civil servant---Civil servants, in the present case, were qualified and their appointments were made by the competent authority after observance of due process of law---No proper inquiry, such as issuing of charge­-sheet/statement of allegations, show-cause notice, had been issued to the civil servants while terminating/withdrawing their services---Judgment of the Service Tribunal was based on valid and sound reasons and was entirely in consonance with the settled law---Neither there was misreading, nor misconstruction of facts and law was found in the said judgment of Service Tribunal---Any irregularity, whatsoever, if committed by the appointing department itself, the appointee could not be harmed, damaged or condemned subsequently when it occurred to the department that it had itself committed some irregularities qua any appointment---Petition for leave to appeal by the department was dismissed by the Supreme Court, in circumstances.

Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 fol.

Ghulam Rasool and others v. Government of Balochistan and others 2002 PLC (C.S.) 47; Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Gohar Riaz 2004 SCMR 1662 and Abdul Salim v. Government of N.-W.F.P through Secretary, Department of Education Secondary, N.-W.F.P, 2007 PLC (C.S.) 179 ref.

Tasleem Hussain, Advocate Supreme Court for Petitioners.

Ijaz Anwar, Advocate Supreme Court for Respondents.

Date of hearing: 6th February, 2009.

2009 S C M R 666

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Zia Perwez, JJ

CIVIL AVIATION AUTHORITY, QUAID-E-AZAM, INTERNATIONAL AIRPORT, KARACHI----Petitioner

Versus

JAPAK INTERNATIONAL (PVT.) LIMITED, LAHORE----Respondent

Civil Petition No.1392 of 2008, decided on 20th January, 2009.

(On appeal from the judgment, dated 6-8-2008 of the High Court of Sindh, Karachi in H.C.A. No.56 of 2005).

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

----O. VIII, Rr.6, 7 & 9---Written statement and set-off---After filing of written statement without claiming any set-off, the party is barred from raising such a defence which is not claimed in the written statement---Claim for set-off can be presented at a subsequent stage only after leave of the court under O.VIII, R:9, C.P.C. is allowed.

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

----O. VIII, Rr.6, 7 & 9---Provisions of O.VIII, Rr.6, 7 & 9 permit a defendant to raise in his defence what is called a legal set-off---Essential conditions of legal set-off enumerated.

Following are the essential conditions of legal set-off:---

(i) The suit must be one for the recovery of money.(ii) As regards the amount claimed to be set-off---

(ii) it must be an ascertained sum of money;

(a) such sum must be legally recoverable;

(b) it must be recoverable by defendant or by all the defendants if more than one;

(c) it must be recoverable by the defendant from the plaintiff or from all the plaintiffs if more than one;

(d) it must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is brought; and

(e) both parties must fill, in the defendants claim to set-off, the same character as they fill in the plaintiff's suit.

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

----O. VIII, Rr.6, 7, 9 & O.XX, R.19---Plea of legal set-off, in its essential character, is a defence and a counter-claim combined, a defence to the extent of the plaintiff's claim and a claim by the defendant in the suit itself for the balance---Plea of equitable set-off---Principles.

A plea of legal set-off, in its essential character is a defence and a counter-claim combined, a defence to the extent of the plaintiff's claim and a claim by the defendant in the suit itself for the balance. O.VIII, Rr.6, 7 & 9 read with Order XX, rule, 19, C.P.C. permits what is in essence a counter-claim of a specific kind, namely, where it is for an ascertained amount exceeding the plaintiff's claim in his suit for recovery of money. The doctrine of equitable set-off permits on equitable considerations a defendant, to raise a plea of set-off even in respect of an unascertained sum of money on the principle that if there be some connection between the plaintiff's claim for a debt and; the defendant's claim to set-off, it will be inequitable to drive the defendant to a separate suit. Instances of such equitable set-off are when the claims of the two parties arise out of the same transaction or transactions which can be regarded as one transaction or the cross-demands are so connected, in their nature and circumstances that they can be looked upon as part of one transaction or a final settlement of accounts and part payments against running bills for different items of works executed under a contract. Such a set-off is called an equitable set-off, as it was allowed by the Courts of Equity in England, as distinguished from a legal set-off, which was allowed by the Courts of Common Law in respect only of an ascertained sum. Although a claim for equitable set-off falls outside the provisions of Order VII, rule 6, C.P.C. it is permissible for a defendant to plead an equitable set-off as effectively as a legal set-off. This view finds support from the proposition that the provisions of the Code regulate procedure only, and they do not have the effect of taking away any right of set-off which a defendant may otherwise have independently of its provisions. Order XX, rule 19, C.P.C. is further statutory recognition of the right of a defendant to plead an equitable set-off and obtain relief thereon. However, there is well-recognized distinction between a set-off and a counter-claim. Although in one sense both are identical inasmuch as they are cross-actions on the part of the defendant but a set-off is essentially a weapon of defence. If the defendant succeeds in establishing it, it serves the purpose of answering to the plaintiff's claim either wholly or pro tanto because a set-off is really an outstanding ascertained amount not required to be proved by leading evidence of fact constituting the claim as in a case of decree in favour of the defendant or other such established claim. Such debt may be claimed by the defendant against the plaintiff to counter-balance the debt claim of the plaintiff against the defendant. A counter-claim, on the other hand, is essentially a weapon of offence and is not really relevant as a plea in defence to the claim of the plaintiff. It enables a defendant to have an issue framed and to establish and prove the claim by adducing evidence. On proof defendant may enforce a claim against the plaintiff as effectually as in an independent action. In such cases the defendant is also required to affix the prescribed ad valorem court-fees under Article 1 of Sched.1 of the Court Fees Act, 1870 (as amended in 1908). Its essential nature is that of a cross-suit pleaded through the written statement, but, in the same suit. Having regard to these essential ingredients of a counter-claim, it is plain that a right to make a counter-claim is not admissible if it does not fall within the ambit of Order VIII, rule 6, C.P.C. or qualify as an equitable set-off. The right to make a counter-claim has been always held to be a statutory right and as already observed there is nothing in the Code of Civil Procedure conferring the right, to plead such counter-claim, upon a defendant without proper adjudication by a competent forum if the same is disputed by the plaintiff.

Syed Niamat Ali and 4 others v. Dewan Jairamdass and another PLD 1983 SC 5 fol.

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

----O. VIII, R.9---Court Fees Act (VII of 1870), Sched.1, Art.1---Constitution of Pakistan (1973), Art.185(3)---Written statement and set­off---Claim of set-off---Pleadings reflected that no specific claim for set-off or counter-claim was set further by the petitioner in their written statement filed before the Court---No application for leave to appeal of the court under the provisions of O.VIII, R.9, C.P.C. nor the prescribed court-fee was affixed as provided under Art. I, Sched.1 of the Court Fees Act, 1870 nor any issue to this effect was framed---Petitioner, at the stage of petition for leave to appeal to Supreme Court, could not be encouraged to plead its own lapses and negligence as a ground for setting aside judgments, which otherwise did not suffer from any legal infirmity---Judgment of the Trial Court, as well as findings in appeal based on issues duly proved by evidence on record did not call for any interference---No ground for grant of leave to appeal having been made out, petition for leave to appeal was dismissed.

Ms. Naheeda Mehboob Ellahi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 20th January, 2009.

2009 S C M R 673

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Mian Hamid Farooq, JJ

Mst. SALEEM AKHTAR----Appellant

Versus

Chaudhry SHAUK AHMED----Respondent

Civil Appeal No.998 of 2001, decided on 20th January, 2009.

(On appeal from the judgment, dated 24-1-2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in R.F.A. No.90 of 1996).

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

----S. 13(3)---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Demand of Talbs---Leave to appeal was granted by the Supreme Court to consider that whether High Court was not justified to concur with the finding of Trial Court that the plaintiff failed to prove the performance of "Talb-i-Muwathibat" strictly in accordance with S.13(3) of the Punjab Pre-emption Act, 1991; that whether the High Court had rightly affirmed the finding of Trial Court on the proof of "Talb-i-Muwathibat" and that whether the High Court was not justified to have upheld the findings of the Trial Court on the question that "Talb-i-Ishhad" having not been made strictly in accordance with S.13(I)(II) of the Punjab Pre-emption Act, 1991 with reference to the precedent from Indian jurisdiction in Aliman Begum v. Ali Husan and another AIR 1923 All. 355(I) and Haji Raja Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 (relevant at page 20).

Aliman Begum v. Ali Husan and another AIR 1923 All. 355(1) and Haji Raja Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 ref.

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

----S. 13---Talbs, making of---Principles---Held, it would be mandatory for a plaintiff in suit for pre-emption to incorporate in the plaint the date, time and place of performance of "Talb-i-Muwathibat" and date of issuing the notice of "Talb-i-Ishhad" in terms of S.13, Punjab Pre-emption Act, 1991, otherwise plaintiff's suit deserved to be dismissed---Plaintiff having failed to plead qua the making of Talb-i-Muwathibat in the plaint according to settled parameters, her suit deserved to be dismissed.

Bashiran Begum v. Nazar Hussain PLD 2008 SC 559; Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 and Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 rel.

Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant.

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

Date of hearing: 20th January, 2009.

2009 S C M R 678

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD SULEMAN----Appellant

Versus

SHAUKAT ALI----Respondent

Civil Appeal No.770 of 2006, decided on 10th February, 2009.

(On appeal from the judgment, dated 8-12-2003 of the Lahore High Court, Multan Bench, Multan in Civil Revision No.345-D of 2002).

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

----S. 13(1)---Talbs---Mere general assertion in plaint that as soon as plaintiff learnt about sale-transaction, he made the declaration of his intention to pre-empt the sale, would not be sufficient compliance of S.13(1), Punjab pre-emption Act, 1991---Where Talb was not made according to established requirements, the same could be fatal to pre-emptor's right of pre-emption---Pre-emption being a feeble right, formalities required for its exercise and enforcement must be strictly observed and there must be a clear proof of same on record.

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

----Art. 185---Appeal to Supreme Court---Findings of facts recorded by courts below---Scope of interference---Supreme Court does not normally go beyond concurrent findings of facts recorded by the courts below unless it is shown that the findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice---Supreme Court does not interfere with the findings of facts recorded by primary courts or High Court when it is established that findings of the court below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.

Amir Abdullah Khan v. Kafaitullah Khan 2008 SCMR 756; Sheikh Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460; Shaukat Ali v. Allied Bank of Pakistan Ltd. 2007 SCMR 198; Shafi Muhammad v. Khanzada Gull 2007 SCMR 368; Muhammad Zubair v. The State 2007 SCMR 437 and Muhammad Sharif v. Muhammad Anwar 2007 SCMR 687 ref.

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

----Art. 185---Punjab Pre-emption Act (IX of 1991), S.6---Supreme Court Rules, 1980, App.VI---Appeal to Supreme Court against judgment of High Court in pre-emption suit---Pre-emption suit---Maintainability---Scope---Appellant, in the present case, was grossly negligent in prosecuting his remedy---Conduct of appellant reflected gross negligence in prosecuting his remedy before the Supreme Court---Petition for leave to appeal would not lie and direct appeal was barred by time---Effect---No material practice existed to the effect that Supreme Court had been entertaining "Civil Petitions for Leave to Appeal" in cases arising out of pre-emption suits decided by High Court irrespective of valuation of the subject-matter of the dispute in the court of first instance---Ignorance of law was no excuse, as by passage of time beyond the period fixed under the Supreme Court Rules, 1980 for filing of appeal, a valuable right had accrued in favour of the respondent, which could not be lightly disturbed or destroyed at the behest of the appellant---Appeal was dismissed by Supreme Court in circumstances.

Allied Bank Limited v. Mujeebur Rehman Qazi and others NLR 2006 Labour 1 ref.

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

----Art. 185---Appeal to Supreme Court---Appellant had not been able to point out any infirmity, factual or legal, warranting interference by Supreme Court---High Court, in the impugned judgment, had exhaustively discussed all aspects of the matter leaving no room for further consideration---No instance of misreading or omission to consider the important evidence had been pointed out in the impugned judgment, justifying interference by Supreme Court---Mere assertion of the counsel for the appellant that evidence had not been appreciated in its true perspective, without a positive attempt on his part to substantiate the same, was of no consequence.

Abdul Rashid Awan, Advocate Supreme Court for Appellant.

Muhammad Ozair Chughtai, Advocate Supreme Court for Respondent.

Date of hearing: 10th February, 2009.

2009 S C M R 683

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

Engineer MAJEED AHMED MEMON---Petitioner

Versus

LIAQUAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCES, JAMSHORO and others----Respondents

Civil Petition No.85-K of 2009, decided on 17th February, 2009.

(On appeal against the order, dated 13-11-2008 passed by High Court of Sindh, Karachi in C.P. No.D-1202 of 2008).

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

----Ss. 2(b) & 3---Constitution of Pakistan (1973), Art.185(3)---Probationer---Misconduct---Removal from service---Leave to appeal was granted by Supreme Court where petitioner had contended that even though he was a probationer since there were definite allegations of corruption or irregularity against him, he could not be removed without a proper inquiry.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 ref.

Ansari Abdul Lateef, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Kamaluddin, Advocate Supreme Court and Ghiasuddin Mirza, Advocate-on-Record for Respondents Nos.3 and 4.

2009 SCMR 684

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Muhammad Akhtar Shabbir and Muhammad Farrukh Mahmud, JJ

Sheikh ATTIQ-UR-REHMAN SARWAR----Appellant

Versus

SAJJAD HUSSAIN----Respondent

Civil Appeal No.569 of 2008, decided on 16th December, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore dated 13-5-2008 passed in F.A.O. No.67 of 2008).

Civil Procedure Code (V of 1908)---

----O. XXI, R.1---Payment of money under decrees---Compromise between the parties---Time being essence of the consent order passed by the High Court and appellant having not complied with the terms of the compromise arrived at between him and the respondent before the High Court, O.XXI, R.1, C.P.C. would not help him to make the payment of the decretal amount beyond the time granted by the High Court as the executing Court could not go beyond the decree and had to execute the same as it was, unless the same was patent nullity---Time being the essence of the agreement and the last date of the time so granted falling on holiday, the payment made thereafter would not comply with the terms of the compromise as directed by the High Court.

Muhammad Ali v. Ghulam Sarwar 1989 SCMR 640; Kazi Abdul Kader v. The East Pakistan Provincial Co-operative Bank Ltd. 1969 SCMR 275; Indal v. Ram Nidh AIR 1946 Oudh 156 and Ch. Muhammad Nawaz v. Ch. Rehmat Ali and another 1994 SCMR 349 ref.

Rana Muhammad Zahid, Advocate Supreme Court for Appellant.

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

2009 S C M R 688

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

Contractor Haji MUHAMMAD ALAM (deceased) through Legal Heirs----Petitioners

Versus

SHAUKAT SULTAN and others----Respondents

C.M.A. No.2889 of 2008 in Civil Petition No.1167 of 2008, decided on 11th February, 2009.

(On appeal from the judgment, dated 28-4-2008 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Writ Petition No.1542 of 2000).

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

----S. 9---Ingredients of S.9, Specific Relief Act, 1877---Where co-sharer in possession is dispossessed by another co-sharer, then he has two remedies to avail, he can either file suit for partition or a suit under S.9, Specific Relief Act, 1877---Where the record showed that plaintiffs were in possession when they were dispossessed and the defendants' case was not that possession was taken over with consent of the plaintiff and suit was filed within 10 days of the dispossession, all the ingredients of S.9, Specific Relief Act, 1877 having been established, Trial Court had lawfully decreed the suit for reasons, not open to legitimate exception---Principles.

Where co-sharer in possession is dispossessed by another co-sharer, then he has two remedies to avail. He can either file suit for partition or a suit under section 9 of the Specific Relief Act, (I of 1877). Record in the present case, revealed that plaintiffs were in possession when they were dispossessed on 4-5-1989. It was not even the case of the defendants that the possession was taken over with consent of the plaintiffs. The suit was filed after 10 days i.e. 14-5-1989. All the ingredients of section 9 of the Act having been established, the Trial Court had lawfully decreed the suit for reasons not open to legitimate exception.

Section 9 of the Specific Relief Act (I of 1877), has four ingredients:---

(i) person suing must have been dispossessed, (ii) such dispossession must be from immovable property, (iii) dispossession should be without consent and (iv) dispossession should be otherwise than in due course of law. Under this provision the Court is not competent to decide the title of the property. It only relates to possession of immovable property. If the plaintiff had been illegally dispossessed then section 9 could be invoked. The plaintiff should establish that he was actually in physical possession of the immovable property from which he had been illegally dispossessed without his consent. The plaintiff must allege and prove actual physical possession either personal or constructive. If a co-sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bringing a suit for partition of the joint property. A co-owner in exclusive possession, if dispossessed by other co-owners within 6 months, can sue under the section. A person in joint possession, of immovable property is as much in possession of that property as a person who is in exclusive possession and if the person who was in joint possession is dispossessed, he can sue to be restored to that possession which he enjoyed before he was dispossessed.

Sayed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26; Haji Khan Muhammad and others v. Yaqub Khan and others PLD 1956 (W.P.) Pesh. 96; Ahmed Miaji and others v. Eakub Ali Munshi and others PLD 1961 Dacca 259 and Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC (Pak.) 9 ref.

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

----Art. 185(3)---Petition for leave to appeal to Supreme Court---Time­-barred---Condonation of delay---Scope---Mere fact that petitioners, due to lack of proper instructions by their counsel regarding the limitation for filing the petition, failed to file petition in time, by itself, does not constitute a valid ground for condonation of delay---Conduct of petitioners reflected gross negligence in prosecuting the remedy before Supreme Court---Indulgence by Supreme Court was declined in circumstances.

Tariq Mehmood, Advocate Supreme Court for Petitioner.

Abdul Rashid Awan, Advocate Supreme Court for Respondents.

Date of hearing: 11th February, 2009.

2009 S C M R 693

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Hamid Farooq, JJ

Mst. FATIMA BIBI through L.Rs. and another----Appellants

Versus

ALTAF AHMED and others----Respondents

Civil Appeal No.940 of 2004, decided on 4th December, 2008.

(On appeal from the judgment, dated 29-5-2001 of the Lahore High Court, Lahore passed in Civil Revision No.1062 of 1984).

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art.95---Civil Procedure Code (V of 1908), O.VI, R.2---Declaration of title---Fraud---Limitation---Pleadings---Paragraph marking-Object-Plaintiffs were first wife and daughters from deceased owner of suit land who assailed consent decree passed in favour of defendants who were second wife and children of deceased owner---Trial Court and Lower Appellate Court had concurrently decided suit and appeal in favour of plaintiffs but High Court, in exercise of revisional jurisdiction, dismissed the suit being barred by limitation---Validity---Independent source of income of minors (defendant) was not proved and borrowing of Rs.80,000 by predecessor-­in-interest from minors (defendants) and adjustment thereof as sale consideration had not been physically proved---No evidence was available to the effect that father transferred possession through attornment---Trial Court and Lower Appellate Court were justified in holding that factum of sale was not proved, as the same was the most important question of fact---High Court had no justification to set aside such question of fact while exercising revisional jurisdiction---Limitation started from point of time when fraud had become known to the party wronged---Plaintiffs, in one of the paragraphs of plaint, had referred to accrual of cause of action from the date of decree as well as death of their predecessor-in-interest---Factum of knowledge was though not mentioned in such paragraph but the same was clearly and specifically mentioned in another paragraph of the plaint---Effect of pleadings was to be taken from general and overall reading thereof and it was-not at all fatal if some assertion was omitted to be taken in relevant paragraph---Ear-marking of specific paragraphs in law of pleadings and conveyancing was only for the purpose that some material aspects would not be omitted to be mentioned---Decree assailed in suit being a consent decree could never have come to the knowledge of plaintiffs who had inheritance mutation in their favour, which mutation was challenged by defendants on revenue side---Plaintiffs obtained knowledge when they were to appear before Revenue authorities, therefore, suit filed by plaintiffs was well within time---High Court was not justified in setting aside concurrent findings of two courts below on pure question of fact---Judgment and decree passed by High Court was set aside and those of two Courts below were restored---Appeal was allowed.

Ch. Muhammad Ashraf, Advocate Supreme Court for Appellant.

Malik Noor M. Awan, Advocate Supreme Court for Respondents.

Date of hearing: 4th December, 2008.

2009 S C M R 697

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Miss AMINA RAFIQUE----Petitioner

Versus

JOINT ADMISSION COMMITTEE, KHYBER MEDICAL UNIVERSITY and others----Respondents

Civil Petition for Leave to Appeal No.312 of 2008,0 decided on 5th May, 2008.

(On appeal from the judgment, dated 28-2-2008 passed by the Peshawar High Court, Peshawar in Writ Petition No.336 of 2007).

Educational institution---

----Admission in medical college---Reserved seat---Backward area---Educational facilities, absence of---Candidate was denied admission in medical college on reserved seat on the ground that she did not complete her education from the area of her domicile---Plea raised by candidate was that no education facilities were available in her area of domicile---Validity---Candidate was entitled for admission due to the reason that she could not obtain requisite qualification from concerned backward area as no facility of education was available within the area of her domicile at relevant time and she could not be made to suffer for no fault on her part---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by High Court---Supreme Court directed the authorities to accommodate the candidate and grant her admission in first year M.B.,B.S.

Arifur Rehman v. Government of N.-W.F.P. through Secretary Education 2005 SCMR 340; Bilal Khan Tanoli v. Joint Admission Committee, Ayub Medical College Civil Appeal No.1422 of 2006; Manzoor Ahmad Qureshi v. Chairman Joint Admission Committee K.M.C. and others C.A. No.1596 of 2005 and Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education 2001 SCMR 1161 ref.

Rashid-ul-Haq Qazi, Advocate Supreme Court for petitioner.

Roohul Amin, Advocate Supreme Court for Respondents Nos.1, 4, 5 and 6.

Qari Abdul Rashid, Advocate Supreme Court Baghbad Shah, S.O. Health for Respondent No.3.

Sartaj Ali Shah, Admn. Officer for Respondent No.2.

M. Nasir Mehfooz, Advocate Supreme Court for Respondent No.9.

Date of hearing: 5th May, 2008.

2009 SCMR 703

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Sakhi Hussain Bokhari and Sheikh Hakim Ali, JJ

Mst. IFFAT NAZIR----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Population Welfare Department, Lahore----Respondent

Civil Petition No.1849 of 2008, decided on 13th January, 2009.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 20-10-2008, in Writ Petition No.10780 of 2008).

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Constitutional petition before High Court---Maintainability---Civil service---Promotion, withholding of---Promotion of petitioner was withheld due to pendency of departmental inquiry against her on the allegations of corruption---Plea raised by petitioner was that promotion could not be withheld on account of pendency of disciplinary proceedings---Validity---Constitutional jurisdiction of High Court was not meant to be exercised to compel competent authority to promote civil servant against whom prima facie evidence showing her involvement in serious charges of misconduct was available---Any direction by High Court, in such circumstances would be disharmonious to principle of good governance and canon of service discipline causing undue interference to hamper smooth functioning of departmental authorities---Order passed by High Court, in exercise of Constitutional jurisdiction, was unexceptionable and warranted no interference---Leave to appeal was refused.

Mrs. Sanjida Irshad, Director Nursing EDO (Health), Bahawalpur v. Secretary to Government of the Punjab, Health Department, Lahore 2008 PLC (C.S) 1019 distinguished.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 13th January, 2009.

2009 SCMR 706

[Supreme Court of Pakistan]

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

REGIONAL DEVELOPMENT FINANCE CORPORATION----Appellant

Versus

Haji GUL HASSAN and another----Respondents

Civil Appeal No.1859 of 2000, decided on 26th November, 2008.

(On appeal from the judgment, dated 3-10-2000 of the Peshawar High Court, Peshawar passed in F.A.B. No.57 of 1998).

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 9---Civil Procedure Code (V of 1908), Ss.20 & 21---Recovery of bank loan---Territorial jurisdiction of Banking Court---Scope---Objection to territorial jurisdiction---Suit decreed by Banking Court was dismissed by High Court on the ground of lack of territorial jurisdiction---Validity---Court within territorial jurisdiction of which cause of action had arisen had jurisdiction under S.20 (c) C.P.C. to adjudicate upon the matter, yet S.20 (a) and (b) C.P.C. equally conferred jurisdiction on court within local limits of whose jurisdiction, defendant resided---Bank had chosen first option which was not at all illegal---No objection, under S.21 C.P.C. regarding territorial jurisdiction could be allowed to be taken before appellate or revisional Court unless such objection was taken in the Court of first instance i.e. Trial Court---Application for leave to defend indicated that no objection about territorial jurisdiction was taken by defendant at the earliest possible opportunity---High Court had wrongly repelled objection taken by bank as provisions of S.21, C.P.C. could not be so conveniently avoided-Judgment and decree passed by High Court was set aside and case was remanded to High Court for decision of appeal afresh---Appeal was allowed.

Mian Abdul Rauf, Advocate Supreme Court for Appellant.

Hidayatullah Khan, Advocate Supreme Court for Respondent No.1.

Tariq Jehangiri, Advocate Supreme Court with Ch. M. Akram, Advocate-on-Record for Respondent No.2.

Date of hearing: 26th November, 2008.

2009 SCMR 708

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

Brig. (R.) SAKHI MARJAN, CEO, PESCO, PESHAWAR----Petitioner

Versus

MANAGING DIRECTOR PEPCO, LAHORE and others----Respondents

Civil Petition for Leave to Appeal No.574 of 2008, decided on 23rd February, 2009.

(On appeal from the judgment, dated 11-3-2008 passed by the Peshawar High Court, Peshawar in Writ Petition No.238 of 2008).

Constitution of Pakistan (1973)---

----Art. 185(3)---Contractual employment---Non-holding of inquiry---Termination of service---Remedy---Petitioner was employed in corporation on contract and he was terminated on the allegation of insubordination---Plea raised by petitioner was that no regular inquiry was held depriving him of opportunity of being heard---Validity---Was not necessary that inquiry must be held in each and every case as it depended upon circumstances of each case---Services of an employee could be terminated without holding regular inquiry for the reason that competent authority could dispense withholding of such inquiry especially when allegation levelled against employee was proved on the basis of documentary evidence---Employee of corporation, in absence of violation of law or any statutory rule, could not press into service the Constitutional or civil jurisdiction for seeking relief of reinstatement in service---Such employee could only claim damages against his wrongful dismissal or termination---High Court had rightly declined to interfere in exercise of Constitutional jurisdiction for enforcement of contractual obligation---Leave to appeal was refused.

The Secretary, Government of Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Asim Rizwan v. Secretary Information and Broadcasting P.Tv.C. and others C.P.No.549 of 2008; 1998 SCMR 2268; 1999 SCMR 467; Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Pipe Lines (Pvt.) Ltd. 2004 SCMR 1274; Allied Bank Ltd. v. Syed Nasir Abbas Naqvi and others 2007 SCMR 1143 and Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Storage and Terminal Ltd. 2007 SCMR 1357 ref.

Muhammad Aslam v. Inspector-General of Police Punjab 2004 PLC (C.S.) 675; Mst. Samina Nazeer v. District Education Officer (W), Khanewal and others 2004 SCMR 290 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 rel.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner.

Sh. Riazul Haque, Advocate Supreme Court for Respondents Nos.1, 2 and 5.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.3 and 7.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Respondent No.6.

Khan Muhammad Azad, D.A.-G. on Court notice.

Date of hearing: 20th November, 2008.

2009 SCMR 715

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Syed Sakhi Hussain Bokhari and Sheikh Hakim Ali, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX COMPANIES ZONE-II, LAHORE--:-Appellant

Versus

Messrs LAHORE CANTT. COOPERATIVE HOUSING SOCIETY, LAHORE and 7 others----Respondents

.Civil Appeals Nos.1477 to 1484 of 2000, decided on 7th November, 2008.

(On appeal from the judgment, dated 23-5-2000 of the Lahore High Court, Lahore passed in I.T.As. Nos.297, 303, 311 of 1999, 439 of 1998, 472 of 1999, 501, 511 and 508 of 2000).

Income Tax Ordinance (XXXI of 1979)---

----Ss. 2(16)(b) & 80-B---Cooperative Societies Act (VII of 1925), S.23---Corporate body formed by or under any law---Scope---Cooperative society---Status---Interest/profit from bank deposits---Plea raised by Cooperative Societies was that they were not companies in terms of S.2 (16)(b) of Income Tax Ordinance, 1979, therefore, interest/profit from bank deposits was covered by S.80-B of Income Tax Ordinance, 1979---Validity---Only those bodies corporate were covered under S.2 (16)(b) of Income Tax Ordinance, 1979, which were created by some law for the time being in force---Such were only those Societies which were directly established, constituted and created by relevant statue itself---Body formed by private individuals and subsequently registered under some law was not a body formed under that law, rather it was a body formed otherwise but registered under law---Formation, creation and constitution of a body under law was therefore, altogether different from a body required merely to be registered under some law---Respondent-Societies were not creation of any law but whatever be their mode of creation, they were required to he registered with Registrar of Cooperative Societies under Cooperative Societies Act, 1925--Respondent-Societies were not covered by the definition of company as provided in S.2(16)(b) of Income Tax Ordinance, 1979 and could not be taxed as claimed by income tax authorities, therefore, Supreme Court upheld the judgment passed by High Court---Appeal was dismissed.

Black's Law Dictionary, 6th Edition, New Lexicon Webster's Dictionary, Words and Phrases Permanent Edition, Stroud's Judicial Dictionary, 5th Edition ref.

M. Ilyas Khan, Advocate Supreme "Court, M. Bilal, Senior Advocate Supreme Court, Mumtaz A. Sheikh, Member Legal F.B.R. for Appellant (in all cases).

Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in C.A. No.1482 of 2000).

Zia Haider Rizvi, Advocate Supreme Court for Respondents (in C.As. Nos.1477 and 1478 of 2000).

Kh. Ibrar Majal, Advocate Supreme Court for Respondents (in C.As. Nos.1479 and 1480 of 2000).

Iqbal Hashmi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.As. Nos.1481 and 1482 of 2000).

Respondents in other case: Ex parte.

Date of hearing: 7th November, 2008.

2009 S C M R 720

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Hamid Farooq, JJ

FEDERATION 'OF PAKISTAN through Secretary Finance Government of Pakistan and others----Appellants

Versus

KHALID JAVED----Respondent

Civil Appeal No.48 of 2007, decided on 1st December, 2008.

(On appeal from the judgment, dated 11-10-2006 of the Federal Service Tribunal, Islamabad passed in Appeal No.244(L)(C.S.) of 2003).

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

----S. 3---Removal from service---Major penalty---Employee pf financial institution---Embezzlement and negligence---Respondent, who was employee of financial institution, was compulsorily retired on the allegation of embezzlement and negligence but Service Tribunal converted the punishment into reduction in lower scale for five years---Validity---People employed in financial institutions dealt with public money and any negligence or default on their behalf could lead to loss of faith in such institutions---Once public had lost confidence, it was extremely difficult, painstaking and time consuming to rehabilitate the same---Supreme Court took serious notice of misappropriation conducted in a financial institution---Matter was that of late posting of money and no ultimate loss was sustained by customers---Service Tribunal was not justified in reducing punishment of respondent, which was set aside and punishment of compulsory retirement imposed by departmental authorities was restored---Appeal was allowed.

Assistant Director (Admn.) National Savings Centre and others v. Muhammad Anwar 1990 SCMR 1214 fol.

Agha Tariq Mehmood, D.A.-G. and Ch. Akhtar Ali, Advocate­-on-Record along with Saghir Ahsan Farooqi, National Saving Officer for Appellants.

M. Shoaib Shaheen, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 1st December, 2008.

2009 S C M R 723

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

RASHID AKHTAR----Petitioner

Versus

SECRETARY, MINISTRY OF FOREIGN AFFAIRS, ISLAMABAD and another----Respondents

Civil Petition No.357 of 2008, decided on 17th June, 2008.

(Against the judgment, dated 24-1-2008 passed by Federal Service Tribunal, Islamabad, in Appeal No.644(R)(C.S.) of 2004).

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

----S. 3---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Civil servant was posted abroad---Long absence of said civil servant from duty without leave after receipt of order of his transfer back to his country---Civil servants had applied for 5 years extraordinary leave with an option for pre-mature retirement from service---Validity---Held, in peculiar facts and circumstances of the case, the extreme penalty of dismissal from service of civil servant was disproportionate to his fault and it would meet the ends of justice if the same was converted into compulsory retirement from service---Order accordingly.

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

Niaz Ahmed Rathore, D.A.-G. and Sajid Hussain Assistant Director, Ministry of Foreign Affairs for Respondents.

Date of hearing: 17th June, 2008.

2009 S C M R 725

[Supreme Court of Pakistan]

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

RIAZ AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Petitions Nos.271 and 272 of 2007, decided on 23rd October, 2007.

(On appeal from the judgment, dated 14-9-2007 passed by Lahore High Court, Multan Bench in Criminal Miscellaneous Nos.2142 and 2143/B of 2007).

Criminal Procedure Code (V of 1898)---

----S. 498---Constitution of Pakistan (1973), Art. 185(3)---Pre-arrest bail, refusal of---Accused was specifically named in the F.I.R. with serious allegations---Extraordinary relief of pre-arrest bail could not be granted to such-like offenders---F.I.R. against the accused was not shown to have been lodged due to the mala fides of the police or the complainant which was the precondition for grant of pre-arrest bail---High Court on the said cogent and strong reasons had disallowed pre-arrest bail to accused, which called for no interference by Supreme Court in the discretionary powers exercised by the High Court---Pre-arrest bail was declined to accused accordingly.

Murad Khan v. Fazal Subhan PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192 ref.

Abdul Rehman Siddiqui, Advocate Supreme Court for Petitioner.

Malik Jailed Akhtar Vaince, Advocate Supreme Court for the Complainant.

Ch. Munir Sadiq, D.P.-G., Punjab and Tariq Bashir, Assistant Director, Anti-Corruption, Multan for the State.

2009 S C M R 727

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Sabihuddin Ahmed, JJ

Mian MUHAMMAD SHAHBAZ SHARIF----Applicant/Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

C.M.As. Nos.956 and 957 of 2009 in C.R.P. Nos.61 and 62 of 2009 in Civil Petitions Nos.878 and 905 of 2008, decided on 31st March, 2009.

(On review from the judgment of this Court, dated 25-2-2009 passed in C.Ps. Nos.878 and 905 of 2008).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.8---Representation of the People Act (LXXXV of 1976), S.14(6)---Review of Supreme Court judgment---Application for grant of interim relief---Petitioner was proceeded ex parte; although the petitioner did not appear pursuant to the notice issued, Supreme Court may have converted the petition for leave to appeal into appeal and should have issued fresh notice for full hearing of the same; interpretation accorded to S.14(6) of the Representation of the People Act, 1976 was not only being challenged by the petitioner but also by the Federal Government; although the High Court, despite reversing the order of the Returning Officer, had allowed the petitioner to continue functioning as Chief Minister, but the judgment under review non-seated him from the said office and new circumstance i.e. that the Governor's Rule had been lifted and session of the Provincial Assembly scheduled for the next day was likely to elect a new Chief Minister which could change the complexion of the present case---Supreme Court could not remain oblivious of the likely inconvenience and irreparable loss which might accrue to the petitioner in case of refusal of the interim relief which apprehension had not been disputed even by the Attorney General---Such elements of the judgment under review were considered sufficient by Supreme Court to constitute prima facie case---Supreme Court, while allowing the application directed that till the final disposal of the main petition, operation of the judgment under review shall remain suspended and the petitioner shall resume the office of the Chief Minister with immediate effect.

Khawaja Haris Ahmed, Advocate Supreme Court for Applicant/Petitioner.

Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan on Court call.

Agha Tariq Mehmood, D.A.-G., Muhammad Abdul Rafiq, Returning Officer, PP-48, Bhakkar-II along with Ejaz Hussain, S.G., Sahibzada Ahmed Raza Kasuri, Senior Advocate Supreme Court and Dr. Mohiuddin Qazi, Advocate Supreme Court for Respondents.

Nemo of Respondents Nos.3 and 4.

2009 S C M R 731

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Actg. C.J. and Ch. Ejaz Yousaf, JJ

NOOR MUHAMMAD and 5 others----Appellants

Versus

MUHAMMAD MISKEEN and others----Respondents

Civil Appeal No.847 of 2005, decided on 26th September, 2008.

(On appeal from the judgment, dated 29-4-2005 of the Peshawar High Court, Abbottabad Bench Abbottabad passed in Civil Revision No.170 of 2002).

Limitation Act (IX of 1908)---

----S. 18---Specific Relief Act (I of 1877), S.42---Suit for declaration and possession---Limitation---Exchange transaction of land---Allegation of fraud---Provisions of S.18, Limitation Act, 1908 were not beneficially available to the legal heirs of the original transferor when he himself lived for as many as 53 years after the transaction and continuously seeing the transferee from a different village to be in possession of his property in the village; had there been any fraud, the original transferor would not have remained silent for more than half a century.

Muhammad Ali and others v. Hassan Muhammad and others PLD 1994 SC 245; Noor Bibi and others v. Fazal Hussain and others 1998 SCMR 230; Nazar Gul v. Islam and others 1998 SCMR 1223; Mansoor Afzal pasha and another v. D.H.A. Karachi and another 2008 SCMR 877 and Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 ref.

Gulzarin Kiani, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent No.1.

Other respondents: Ex parte.

Date of hearing: 26th September, 2008.

2009 S C M R 734

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Mian Shakirullah Jan and Nasir-ul-Mulk JJ

HAMID ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.484-L of 2007, decided on 29th October, 2007.

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

----S. 497---Bail---Trial belated---Bail cannot be claimed as a matter of right in a criminal offence merely for the reason that trial has not proceeded, particularly when the facts and circumstances of the case are sufficient to conclude that the accused is responsible for not allowing the Trial Court to proceed with the matter.

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

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17/22---Bail, grant of---Sentence under Ss.17/22 of Emigration Ordinance, 1979, was upto 14 years---Investigation of the case had been completed---Challan had been submitted in the Court---Transaction between the parties seemed to be in respect of dispute of money, which statedly accused and his son had received from the complainant for sending him abroad along with work permit, but he failed to fulfil his commitment---No useful purpose would be served by keeping the accused in custody for an indefinite period, because it was not known as to how much time would be consumed by the prosecution in completion of the trial---Accused was admitted to bail in circumstances.

Mian Khurshid Alam Rarnay, Advocate Supreme Court for Petitioner.

Niaz Ahmad Rathore, D.P.-G. for the State.

2009 S C M R 736

[Supreme Court of Pakistan]

Present: Syed Jamshed Ali, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

ALLAH NAWAZ----Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.236 of 2005, decided on 15th September, 2008.

(On appeal from the judgment and order, dated of the Peshawar High Court, D.I. Khan Bench, dated 23-4-2004 passed in Criminal Appeal No.119 of 2003 and Murder Reference No.13 of 2003).

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

---Ss. 302(b), 302(c), 324 & 337-A00---Appraisal of evidence--Despite the fact that eye-witnesses knew the accused, he was not named in the F.I.R., which led to the only inference that they were not present at the spot---On the inquest reports of the two deceased prepared by the police immediately after registration of the case, other prosecution witnesses had identified both the deceased, which also showed absence of the eye-witness at that time---Identification parade in the circumstances was also of no consequence--Recovery of pistol or crime-empty or clothes or blood-stained earth did not connect the accused with the crime---Judicial confession of accused, according to Judicial Magistrate, had been recorded after fulfilling all the formalities---Mere suggestion of the defence that the same was involuntary was not enough to throw it away--Accused after confession had been remanded to judicial custody---Nothing was available on record to disbelieve the confession, which had to be rejected or accepted as a whole, in which the accused had claimed that he had fired at both the deceased when they assaulted him---One deceased was unarmed while other deceased was carrying a "Lathi", as against that, the accused was equipped with a fire-arm and inflicted injuries to both the deceased at the chest, vital part of the body---Accused, thus, had exceeded his right of self-defence---Conviction of accused under S.302(b), P.P.C. was consequently, altered to S.302(c), P.P.C. and his sentence of death was reduced to 14 years' R.I. on two counts with the direction to run concurrently---Accused was acquitted of the charges under Ss.324 & 337-A(ii), P.P.C. as neither he had confessed the same, nor the injured witness had implicated him in the offence---Appeal was disposed of accordingly.

Khan Muhammad and others v. The State 1999 SCMR 1818 ref.

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

----S. 164---Penal Code (XLV of 1860), Ss.302(b), 324 & 337-A(ii)-Judicial confession---Status---Confession of accused is to be rejected or accepted as a whole.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

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

Date of hearing: 15th September, 2008.

2009 S C M R 740

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ghulam Rabbani, JJ

MUHAMMAD RASHEED KHAN----Petitioner

Versus

Mst. MEHR-UN-NISA----Respondent

Civil Appeal No.1842 of 2005, decided on 9th May, 2008.

(On appeal from the judgment, dated 19-10-2005 passed by the Lahore High Court, Lahore in Civil Revision No.1123 of 2001).

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.15 & 17---Suit for specific performance of agreement of sale---Suit was filed by the plaintiff on the basis of an agreement to sell land allegedly entered with defendant who was real sister of the plaintiff---Defendant denied to have entered into the transaction of sale with the plaintiff---Trial Court dismissed suit, but Appellate Court below reversed judgment of the Trial Court and decreed the suit---High Court in revision filed by the defendant, set aside judgment of Appellate Court---Validity---Only one marginal witness to the alleged agreement to sell who was produced by the plaintiff, did not 'support the claim of plaintiff regarding payment of sale consideration in his presence as was mentioned in the said agreement---Assertion of defendant that her signature on alleged agreement were obtained deceitfully, would be sufficiently supported by the evidence on record---Genuineness of agreement and the transaction of sale was not proved as per requirement of Arts.15 & 17 of Qanun-e-Shahadat, 1984---Relief of specific performance could not be granted, unless the execution of sale agreement as per requirement of law and payment of sale consideration in part or full was proved---Counsel for plaintiff had not been able to point out any material defect or legal infirmity in the judgment under challenge---In the absence of any substantial error in the judgment of High Court calling for interference of Supreme Court, appeal was dismissed.

Zahid Hussain Khan, Advocate Supreme Court for Appellant.

Muhammad Arif Ch., Advocate Supreme Court for Respondent.

2009 S C M R 742

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

KHALIL AHMAD and others----Petitioners

Versus

REHMAT ALI and others----Respondents

Civil Petition No.451-L of 2002, decided on 21st August, 2008.

(On appeal from the judgment, dated 20-11-2001 of the Lahore High Court, Lahore passed in Civil Revision No.760 of 1991).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Suit property was mutated by the Central Government in favour of one of the brothers of the petitioners vide mutation and said brother of petitioners who, vide said mutation had become owner of suit land, sold said land in favour of respondents---Subsequently on application of petitioners/other family members of vendor, Collector, cancelled mutation whereby suit land was mutated in favour of brother of the petitioners---Suit filed by the vendees/respondents for declaration, who claimed to be owners in possession of suit land, was concurrently decreed by the courts below and the High Court---Validity---Brother of petitioners in whose favour land was mutated who sold said land to respondents and petitioners being family members did not challenge said entries in the revenue record---By the time order cancelling mutation was passed by the Collector, respondents had purchased suit property from the brother of petitioner through registered deed and possession had also been given to respondents/vendees---Petitioners deliberately concealed that fact and did not implead respondents as party---High Court had rightly concluded that order by the Collector whereby mutation was cancelled was obtained by the petitioners without impleading respondents/purchasers of the land as party; and that said order had no legal effect on the right of the respondents/purchasers---In absence of any flaw in the impugned order justifying interference by the Supreme Court, petition for leave to appeal was dismissed.

Tariq Masood, Advocate Supreme Court for Petitioners.

Abdul Qudoos Rawal, Advocate Supreme Court for Respondents Nos.1 and 2.

2009 S C M R 745

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Zia Perwez, JJ

NASRULLAH and others----Petitioners

Versus

MUHAMMAD ZAHEER and others----Respondents

Civil Petition No.159-L of 2008, decided on 27th June, 2008.

(Against the judgment, dated 17-1-2008 passed by the Lahore High Court in Civil Revision No.2129 of 2007).

Partition Act (IV of 1893)---

----S. 2---Constitution of Pakistan (1973), Art.185(3)---Suit for partition---Whole case of petitioner rested on a document of partition---Minute perusal of said document revealed that said document pertained to some other property and the same had no nexus with the property in dispute---Trial Court, Appellate Court as well as the High Court, after taking into consideration the oral as well as documentary evidence of the parties, had decreed the suit---Concurrent findings of fact by the three courts, could not be interfered with in absence of any jurisdictional error or legal defect or misreading or non-reading of evidence.

Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Faiz Muhammad and others v. Mukhtar Ali 2005 SCMR 1077 rel.

Zahid Hussain Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2009 S C M R 747

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ABDUL RASHEED and 3 others----Appellants

Versus

JAMIA MASJID GHOSIA----Respondent

Civil Appeals Nos.1171 to 1174 of 2003, decided on 11th June, 2008.

(On appeal from the judgment, dated 27-2-2003 passed by Lahore High Court, Lahore in S.A.O. No.76 of 1999).

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

----S. 15---Appeal to High Court---Limitation---Appeals filed by appellants under S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959 were dismissed on the ground that those were filed beyond period of thirty days provided for filing of appeals---Period of thirty days prescribed for filing of appeal expired on the Ist of May which was a holiday and next day was Sunday---Appeal filed on the first opening day of the court after the expiry of thirty days, would be within time--Appeals filed on the first opening day being within time, High Court was not justified to dismiss them on ground of limitation---Impugned judgments of the High Court were set aside and cases were remanded to the High Court to be decided on merits after allowing opportunity of hearing to both the parties.

Zahid Hussain Khan, Advocate Supreme Court for Appellants.

Nemo for Respondents.

2009 S C M R 749

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Zia Perwez and Sheikh Hakim Ali, JJ

MUHAMMAD ASHIQ and others----Petitioners

Versus

WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE through Chairman and others----Respondents

Civil Review Petition No.34 of 2008 in C.P. No.1634 of 2005, decided on 17th September, 2008.

(On review from the judgment, dated 11-3-2008 passed by this Court in C.P. No.1634 of 2005).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Scope---Scope of review being very limited, review cannot be treated as a substitute for appeal proceedings---Principles of law and norms as enumerated by the Supreme Court in Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 still hold field and cannot be lost sight of while deciding for filing of a petition for review---Trend developed during recent years to challenge each and every judgment through review petition disapproved by the Supreme Court.

Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 fol.

Dr. M. Aslam Khaki, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondent No.1.

Date of hearing: 17th September, 2008.

2009 S C M R 751

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

ZOHRA KHANUM----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.249-L of 2008, decided on 23rd September, 2008.

(On appeal from the order, dated 9-6-2008 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.3597/B of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Further inquiry---Even if the prosecution story that accused/petitioner went and called out the complainant party, was believed, there was no allegation that petitioner raised any Lalkara or asked assailants to fire at the complainant party---On complainant's own showing petitioner had called him out of the house for a compromise---Question whether petitioner shared the common intention with co-accused would require further inquiry---Petitioner, who was a woman was in judicial lock-up for the last more than 10 months---Petitioner having made out a case for grant of bail, her petition for leave to appeal was converted into appeal and allowing the same she was admitted to bail.

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

Alamgir, Additional Prosecutor-General and Mushtaq Ahmed, S.-I. Police Station, Saddar Narowal for the State.

Khadim Hussain Qaiser, Advocate Supreme Court for the Complainant.

2009 S C M R 753

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Mian Hamid Farooq, JJ

MUHAMMAD YASEEN----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

C.P.L.A. No.2439-L of 2003, decided on 5th August, 2008.

(On appeal from the order, dated 8-7-2003 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No.540-D of 2003).

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 26---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration against orders of the consolidation officer including Board of Revenue---Jurisdiction of civil Court in such matter---Scope---Suit for declaration filed by the plaintiff had concurrently been dismissed by the two courts below and the High Court---Validity---Plaintiff had challenged different orders passed by the consolidation officers and Board of Revenue---Adjustment of lands and share distribution in consolidation operation fell within the exclusive jurisdiction of the Consolidation Authorities and civil court could not sit in appeal on them---Even if not expressly ousted, the jurisdiction of the civil court was barred impliedly---Jurisdiction of civil court was barred under S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960, even if such allegations were made in a suit pleading that decision had been obtained by fraud and misrepresentation---Plaintiff having not been able to make out a case of mala fide, fraud or want of jurisdiction, provision of S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960 was attracted to the case---Even otherwise concurrent findings of fact of three courts, would not be interfered with by the Supreme Court---In absence of any illegality or infirmity in impugned order, same was unexceptionable.

Ghulam Qadir v. Member, Board of Revenue, West Pakistan, Lahore and 4 others 1970 SCMR 292; Muhammad Jamil Asghar v. The Improvement Trust Rawalpindi PLD 1965 SC 698; Aviation Authority, Karachi v. Rist Consultants (Pvt.) Ltd. Lahore 1998 SCMR 2393; Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 1998 SCMR 2485; Muhammad Azam v. Inayat Shah 1998 SCMR 1356 and Mazhar Iqbal v. D.C.O. Toba Tek Singh and others 2005 PSC 124 rel.

Muhammad Nawaz, Advocate Supreme Court for Petitioner.

Zahid Hussain Khan, Advocate Supreme Court along with Pir S.A. Rashid, Advocate Supreme Court for Respondents Nos.7 to 13.

Date of hearing: 5th August, 2008.

2009 S C M R 756

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Muhammad Qaim Jan Khan and Ch. Ejaz Yousaf, JJ

FEDERATION OF PAKISTAN and another---Petitioners

Versus

DILAWAR KHAN and others---Respondents

Civil Petitions Nos.728 to 745 of 2008, decided on 24th July, 2008.

(On appeal from the judgment, dated 3-4-2008 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.55(P)(C.S.), 56(P)(C.S.), 57(P)(C.S.), 58(P)(C.S.), 59(P)(C.S.), 60(P)(C.S.), 61(P)(C.S.), 62(P)(C.S.), 63(P)(C.S.), 64(P)(C.S.), 65(P)(C.S.),66(P)(C.S.), 67(P)(C.S.), 68(P)(C.S.), 69(P)(C.S.), 70(P)(C.S.), 71(P)(C.S.) and 72(P)(C.S.) of 2003).

Constitution of Pakistan (1973)---

----Art. 212(3)---Leave to appeal was granted by Supreme Court where Federal Service Tribunal had passed two contradictory judgments on the question as to whether levies personnel were civil servants or not.

Raja Niaz Ahmed Rathore, D.A.-G. and Ch. Akhtar Ali Advocate-on-Record for Petitioner.

Nemo for Respondents.

2009 SCMR 757

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Muhammad Akhtar Shabbir, JJ

PAKISTAN NAVY---Petitioner

Versus

PIR MUHAMMAD KHAN---Respondent

Civil Petition No.18 of 2008, decided on 21st January, 2008.

Service Tribunals Act (LXX of 1973)---

----S. 2(a)---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to examine question of law of public importance to the effect that respondent being an industrial worker, could not be treated as a Civil Servant for the purposes of Service Tribunals Act, 1973, and that the provisions of Removal from Service (Special Powers) Ordinance, 2000, were not applicable to him.

Ch. Akhtar Ali, Advocate-on-Record and M. Rakib Hashmi, Staff Officer Naval Headquarters, Islamabad for Petitioner.

Nemo for Respondent.

2009 S C M R 758

[Supreme Court of Pakistan]

Present: Zia Perwez and Mian Hamid Farooq, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Government of

Pakistan and others---Petitioners

Versus

Messrs REHAN CONSTRUCTION COMPANY----Respondents

Civil Petition No.632 of 2008, decided on 9th June, 2008.

(On appeal from the order, dated 2-4-2008 of the Lahore High Court, Rawalpindi Bench passed in R.S.A. No.4 of 2008).

Constitution of Pakistan (1973)---

----Art. 185(3)---Delay in filing the first appeal against the judgment of Trial Court followed by order of District Judge dismissing the appeal on the grounds of being time barred and for non-payment of court-fee even after sufficient notice---Said judgment was maintained by High Court---No illegality or question of law arising out of the proceedings having been pointed out and in the absence of any ground for non-payment of court-fee and condonation of delay, petition for leave to appeal merited dismissal.

Niaz Ahmed Rathore, D.A.-G. and Ch. Akhtar Ali, Advocate­-on-Record for Petitioners.

Nemo for Respondent.

2009 S C M R 759

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Mian Hamid Farooq, JJ

Mirza MUHAMMAD INAYAT SARAF----Petitioner

Versus

Mst. NASIM AKHTAR and others----Respondents

Civil Petition No.4177-L of 2002, decided on 5th August, 2008.

(On appeal from the judgment, dated 11-9-2002 passed by the Lahore High Court, Lahore in Civil Revision No.1400 of 1999).

Specific Relief Act (I of 1877)---

----S. 42---Partition Act (IV of 1893), S.4---Qanun-e-Shahadat (10 of 1984), Arts.114 & 140---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Estoppel, principle of---Applicability---Previous suit---Effect---Partition of joint property---Plaintiff claimed to be one of the co-owners of disputed house on the ground that it was purchased by their father and sought partition of the same---One of the co-owners executed registered gift deed regarding the house, in favour of his wife who onward sold the house in favour of defendant vide registered sale deed, plaintiff assailed both the deeds as well---Trial Court as well as Lower Appellate Court concurrently dismissed the suit and appeal filed by plaintiff but High Court in exercise of revisional jurisdiction decreed the suit in favour of plaintiff and passed preliminary decree for partition of suit property---Validity---Record established, through copy of previous plaint which was admittedly signed and verified by the co-owner, who had executed gift deed, acknowledging their father as owner of disputed house---In view of such admission of the co-owner, which document was confronted to him, he could not be allowed to make a somersault that the admission was not binding upon him as he withdrew the suit---High Court had rightly come to the conclusion that there was no evidence on record to show that the co-owner either purchased any portion of the property or his mother transferred any portion to him---Judgment and decree passed by High Court did not suffer from any legal infirmity, rather it rectified the judgments and decrees passed by two Courts below, as both proceeded contrary to evidence on record---Findings of High Court were in accordance with evidence on record and no misreading and non-reading of record had been pointed out---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 5th August, 2008.

2009 S C M R 763

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

POST MASTER-GEN1rRAL, N.-W.F.P. PESHAWAR----Petitioner

Versus

LIAQUAT ALI and another---Respondents

C.P.L.A. No.991 of 2007, decided on 21st January, 2008.

(On appeal from the judgment, dated 28-9-2007 in Appeal No.182(P(C.S.) of 2004 passed by the Federal Service Tribunal Islamabad).

Constitution of Pakistan (1973)---

----Art. 212(3)---Petition for leave to appeal barred by 7 days---Contention of petitioner/government department was that it was due to lack of co-ordination between different departments that petition could not be filed within time---Such being hardly a ground for condonation of delay, contention was repelled and petition dismissed.

Province of Punjab through Secretary, Education v. Kishwar Qudus Paul 2004 SCMR 571 ref.

Niaz Ahmad Rathore, D.A.-G. and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2009 SCMR 764

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari, JJ

TANVEER SHAUKAT----Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, NAROWAL and others----Respondents

Civil Petition No.1423-L of 2007, decided on 25th August, 2008.

(On appeal from the judgment, dated 9-7-2007 of Punjab Service Tribunal, Lahore passed in Appeal No.758 of 2006).

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

----S. 8---Constitution of Pakistan (1973), Art.212(3)---promotion, entitlement to---Petitioner was serving as Process Server in civil court---Test was conducted for promotion to the post of Naib Nazir and on the basis of merit list respondents were recommended for promotion against said posts of Naib Nazirs and they were accordingly promoted, whereas petitioner was not promoted---Departmental appeal brought by petitioner was dismissed---Petitioner filed appeal before Service Tribunal which was also dismissed---Validity---Judgment of Service Tribunal was well reasoned and respondents had been promoted on the recommendation of D.P.C.---Counsel for the petitioner had failed to point out any irregularity in the order of promotion of respondents---Impugned judgment was just and proper---In absence of any illegality or infirmity in the impugned judgment, no justification was to set aside the same---Petition for leave to appeal was dismissed.

1983 PLC (C.S.) 652 and 2000 PLC (C.S.) 563 ref.

Pervaiz Inayat Malik, Advocate Supreme Court for Petitioner.

Asmat Kamal Khan, Advocate Supreme Court for Respondents Nos.3 and 4.

Date of hearing: 25th August, 2008.

2009 S C M R 767

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

COLLECTOR LAND ACQUISITION, ABBOTTABAD and others----Appellants

Versus

FAZAL-UR-REHMAN and others----Respondents

Civil Appeal No.1811 of 2003, decided on 11th January, 2008.

(On appeal from the judgment and decree, dated 4-4-2003 passed by the Peshawar High Court, Abbottabad Bench in R.F.A. No.20 of 2002).

Limitation Act (IX of 1908)---

----S. 5---Land Acquisition Act (I of 1894), S.54---Time barred appeal---Condonation of delay---Decree in the present case, was passed on 16-2-2000 by the Senior Civil Judge and appeal was filed on 19-8-2000 before the High Court, which was returned for removal of certain objections with direction to file the same on or before 1-9-2000---Appeal was resubmitted on 17-4-2002---Ground taken for condonation of delay was that clerk of the counsel for the appellants did not bring the fact to his knowledge and that later the counsel came to know that the file was lying on the record of the disposed of cases which was procured on 3-4-2003---Validity---Held, application for condonation of delay was deficient in many respects; delay from 3-4-2000 to 10-6-2000 was not accounted for, it was also the appellants to have remained in contact with their counsel to ascertain the result of their appeal which was not done---High Court had rightly dismissed the appeal as barred by time in such circumstances.

Raja Niaz Ahmad Rathore, Advocate Supreme Court and Raja Muhammad Akram, Advocate-on-Record for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents.

Date of hearing: 11th January, 2008. .

2009 S C M R 769

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

SECRETARY FINANCE DIVISION, ISLAMABAD----Petitioner

Versus

MUHAMMAD ZAMAN, EX-INSPECTOR, I.B., ISLAMABAD and others----Respondents

Civil Petition No.359 of 2008, decided on 31st March, 2008.

(On appeal from the judgment, dated 6-12-2007 passed by the Federal service Tribunal, Islamabad in Appeal No.940(R)(C.S.) of 2004).

Civil Service Rules---

----R. 423---Constitution of Pakistan (1973), Art.212(3)---Civil Service Rules, R.423---Scope---Civil servant, in the present case, had retired from service on attaining age of superannuation---Total service of civil servant for qualifying pension being short by 10 years with deficiency of 5 months and 3 days, he was declined pensionary benefits---Appeal of civil servant was allowed by Service Tribunal and deficiency of 5 months and 3 days was automatically condoned in terms of R.423(1), Civil Service. Rules---Validity---R.423, CSR is without any qualification and is not restricted to the pensionary benefit of a widow, R.423(2) empowers the competent authority to condone the deficiency of more than 6 months but less than one year where an officer has died while in service, or has retired under circumstances beyond his control---While the Rules were capable of bearing a reasonable interpretation favourable to the employee then that interpretation should be preferred---Petition for leave to appeal against judgment of the Service Tribunal was dismissed in circumstances.

Postmaster-General Eastern Circle (E.P.) Dacca and another v. Muhammad Hashim PLD 1978 SC 61 ref.

Niaz Ahmed Rathore, Advocate Supreme Court, M.S. (hattak, Advocate-on-Record and Ali Sher, S.O. (Finance) for Petitioner.

Nemo for Respondents.

2009 SCMR 771

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

LAND ACQUISITION COLLECTOR, ABBOTTABAD and others----Appellants

Versus

GOHAR-UR-REHMAN ABBASI----Respondent

Civil Appeal No.1193 of 2007, decided on 13th October, 2008.

(On appeal from the judgment, dated 12-1-2007 of the Peshawar High Court, Abbottabad Bench, passed in R.F.A. No.50 of 2003).

Land Acquisition Act (I of 1894)---

----S. 23---Acquisition of land---Compensation---Determining factors---Average of sales of last one year (Ost Yak Sala)---Scope---Award announced by Referee Judge was increased by High Court on report of Local Commission who was appointed to ascertain market value of land in question---Validity---Local Commission was appointed by authorities before announcement of award for determination of market value of suit-land on the ground that price of land in question agreed through private negotiations was much higher than that of one year average price---Local Commission stated in his report that in last one year there was sharp increase in the prices of lands---Agreed price of land was justified as it was situated in the best and the most suitable locality---At the time of passing of award, potential value of the property had to be considered in addition to market value of land---Average sales of last one year was not conclusive for determination of market value of land and while assessing the market value of the land, its location and potentiality had also to be considered... Supreme Court declined to interfere with the judgment passed by High Court whereby compensation awarded to landowners was increased---Appeal was dismissed.

Province of Sindh v. Ramzan and others PLD 2004 SC 512; Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870; Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. and 3 others 1993 SCMR 1700 and Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692 rel.

Zia-ur-Rehman, A.-G., N.-W.F.P. for Appellants.

Respondent: in person.

Date of hearing: 13th October, 2008.

2009 S C M R 775

[Supreme Court of Pakistan]

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

Dr. NIGHAT BIBI, PHYSICIAN, GENERAL MEDICINE, PIMS, ISLAMABAD----Petitioner

Versus

SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD and others----Respondents

C.P.L.A. No.595 of 2008, decided on 28th November, 2008.

(On appeal from judgment of Islamabad High Court, Islamabad, dated 30-4-2008 passed in I.C.A. No.2 of 2003).

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 9---General Clauses Act (X of 1897), S.21---Promotion and seniority. .Locus poenitentiae, principle of---Past and closed transaction, principle of-Applicability-Appellant was employee of Provincial Government who was absorbed in Federal Government and was given seniority from the date when she was absorbed---Validity---Such absorption was confirmed and declared valid by superior Courts in past litigation thus matter had become past and closed transaction, not to be challenged and re-agitated---Government could not take benefit of its own illegalities and if competent authority was of the view that some higher authority had no jurisdiction, such authority should have shown courage to disobey the order-Once it was not done, the step so taken could not be subsequently retraced by Government if the incumbent otherwise was eligible for benefit so granted---Nobody could doubt eligibility of appellant keeping in view of her past service record and qualifications---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Division Bench of High Court and restored that of Single Judge of High Court whereby appellant was declared permanent employee of Federal Government---Appeal was allowed.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh, and others 2005 SCMR 1814 distinguished.

Wasim Sajjad, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mrs. Naheeda Mehboob Elahi, Deputy Attorney-General with Raja Abdul Ghafoor, Advocate-on-Record and Zamir Naqvi, Law Officer, PIMS for Respondents Nos. 1 and 2.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.3.

Date of hearing: 28th November, 2008.

2009 S C M R 780

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Syed Zawwar Hussain Jaffery, JJ

CRIMINAL MISCELLANEOUS APPLICATION NO.296 OF 2008 IN/AND CRIMINAL ORIGINAL PETITION NO.38 OF 2008

Criminal Original Petition No.38 of 2008, decided on 30th July, 2008.

(Suo motu action taken on the application filed by Syed Sharifuddin Pirzada, learned Senior Advocate of Supreme Court and others regarding manhandling of their client, Irfan Ali, in the Court Premises).

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

----Art. 204--Contempt of Court Act (LXIV of 1976), Ss.3 & 4--Contempt of Court---Unconditional apology---Effect---When a contemner tenders unconditional apology at the first opportunity and the Court is satisfied that his regret and repentance are sincere, ordinarily he is pardoned; however, it is not a rule to be invariably followed in all cases and much would depend upon the circumstances of each case.

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

----Arts. 204 & 184(3)---Contempt of Court Act (LXIV of 1976), Ss.4 & 5--- Contempt of Court--- Unconditional apology--- Effect--- Law Enforcement Agencies, no doubt, are duty bound to cause arrest of the required persons, but it should be done in a decent and proper manner with decorum---Had it been a simple case of arrest in the Court premises, contemners could have been excused on the ground of being not aware of the decorum of the Court, but the acts of dragging, manhandling and beating the accused in the Bar Room situated in the Court premises, misbehaving with the Advocates and Media personnel, could by no stretch of imagination be regarded as innocent and bona fide acts, rather it appeared to be a flagrant attempt to undermine and lowering authority of the Court besides disturbing its decorum---Courts in such-like cases, in order to safeguard their dignity and honour, would not be reluctant to initiate contempt proceedings against the contemners---Contemners in the case being custodian of law were not supposed to act in such a disgusting manner, particularly in the presence of specific directions of Supreme Court for maintaining status quo in accordance with the order of High Court---Contemners, however, had placed themselves at the mercy of the Court by submitting unconditional apology at the very outset and stated to remain careful in future---Unconditional apology of the contemners was accepted and contempt proceedings against them were dropped in circumstances.

Zulfiqar Ali v. The State 1999 SCMR 2810 and Raja Munawwar and others v. The State 1990 SCMR 215 fol.

Dr. Babar Awan, Senior Advocate Supreme Court, Wasim Sajjad, Senior Advocate Supreme Court and Ch. Arshad Ali, Advocate-­on-Record for Applicants.

Dr. Danishwar Malik, P.-G. NAB, Dr. M Asghar Rana, A.D.P.-G., NAB, Sardar Muhammad Ghazi, D.A.-G. and Raja Niaz Ahmad Rathore, D.A.-G. on Court call.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Ch. Muhammad Akram, Advocate-on-Record, Altaf Aziz Khattak, S.H.O., Police Station Secretariat, Muhammad Rashid, A.S.-I., Police Station Secretariat, Abrar, A.S.-I. Police Station Secretariat along with Contemners Col. (R.) Tariq, Investigating Officer, NAB and M. Aslam Member, F.C.I.W., NAB for Contemners.

2009 SCMR 784

[Supreme Court of Pakistan]

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

MUHAMMAD NASEER----Petitioner

Versus

SAJID HUSSAIN----Respondent

C.P.L.A. No.32 of 2009, decided on 16the February, 2009.

(On appeal from the judgment, dated 12-12-2008 of Lahore High Court, Rawalpindi Bench, Rawalpindi passed in F.A.O. No.61 of 2008).

Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(8)---Constitution of Pakistan (1973), Art. 185 (3)---Ejectment of tenant---Default in deposit of arrears of rent---Interpretation of order---Eviction order was passed by Rent Controller on the ground that tenant failed to deposit arrears of rent before specified date---Plea raised by tenant was that non-deposit of arrears before fixed date was a bona fide mistake in interpreting order of Rent Controller, and could not be considered as default---Validity---Supreme Court declined to subscribe to interpretation of default made by tenant because it would be extremely convenient for every defaulting tenant to take the plea that he had fallen into a bona fide mistake in interpreting the order of Rent Controller---If any order specifically laid down that rent was to be deposited before the specified date, no party had a right to interpret that rent was to be deposited by such date---Supreme Court did not find any ambiguity in the order passed by Rent Controller as the same could not be interpreted otherwise and tenant was rightly ejected--Leave to appeal was refused.

Sarfraz Khan v. Muhammad Abdul Rauf PLD 1969 Kar. 176 ref.

Malik Shahzad Ahmed Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 16th February, 2009.

2009 SCMR 786

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan Khan and Ch. Ijaz Yousaf, JJ

Mst. NOOR HABIB----Petitioner

Versus

SALEEM RAZA and others----Respondents

Criminal Petitions Nos.224 and 375 of 2008, decided on 28th January, 2009.

(On appeal from the orders, dated 18-6-2008 and 19-9-2008 of Lahore High Court, Lahore passed in Criminal Miscellaneous Nos.4132/B and 6169/B of 2008).

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, cancellation of-Principles-Considerations for cancellation of bail are quite distinct from the considerations for grant of bail---Once hail has been granted by a competent Court of law, strong and exceptional grounds are required for cancelling the same---It has to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109--Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation of---Accused had been specifically named in the F.I.R. for firing effectively along with others, culminating in the murders of two young brothers aged 35 years and 32 years---Fifty-two crime-empties had been recovered from the place of occurrence and large number of fire-arm injuries were found on the persons of the deceased---Accused having been, prima facie, implicated in the case, there was no justification for grant of bail to any of them---Pleas desired to be raised by the accused in their defence could , be raised by them at the trial stage---Bail allowed to accused by High Court was cancelled in circumstances.

Abdul Ghaffar v. Sakhi Sultan and 3 others 1987 SCMR 1556 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149/109---Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation of---Although accused was one of the accused persons directly nominated in the F.I.R., yet a role of conspirator was attributed to him---Main role of firing was assigned to other accused persons---Reasons for granting bail to accused were not open to any legitimate exception---Petition for cancellation of bail granted to accused was dismissed in circumstances.

Mazhar Iqbal Sidhu, Advocate Supreme Court for Petitioner.

Masood Chishti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondents.

Mian Asif Mumtaz, D.P.-G., Punjab Umer Saeed, S.-I. for the State.

Date of hearing: 5th January, 2009.

2009 S C M R 790

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Syed QASIM SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.242 of 2006 and Criminal Miscellaneous Application No.5 of 2006, decided on 4th March, 2008.

(On appeal from the judgment, dated 30-5-2006 passed by the Peshawar High Court, Peshawar in Ehtesab Criminal Appeal No.5 of 2004) .

(a) National Accountability Ordinance (XV1II of 1999)---

---Ss. 9/10 & 14----Constitution of Pakistan (1973), Art.185(3)---National Accountability Bureau Authorities had calculated the accumulative wealth of the accused by considering the movable as well as immovable assets in his own name and in the name of his spouse and other relatives as Benamidars---Total assets included 26 properties consisting of land, four industrial units and two chains of hotels---All the properties admittedly had been acquired during the period from 1990 to 1998, whereas the accumulative wealth of the accused was calculated in the year 2004 on the basis of market values of all the properties prevailing at the time of filing of the Reference without considering the fact that the properties were acquired at much less price---Courts below had failed to consider that prior to year 1985 accused was not penniless, but was owner of valuable assets and had also sources of income other than his salary, which could have been utilized by him for purchasing the immovable properties---As per assessment order of Wealth Tax Department for the year 1981-82, the value of the movable assets owned by accused was shown as Rs.1,902,960---Mills were established with small amount invested by the accused and the remaining amount was either invested by other persons or was borrowed from the Bank, which was paid off during the said period---Accused could only be held accountable for the actual 'amount invested by him and not the total amount used for the establishment of the Mills, as the explanation was already given regarding the same---Income from forest and agricultural land was also not calculated towards the known sources of income of accused on the presumption that the land situated at an altitude of 7000 feet was not capable to yield anything---Notwithstanding the presumption contained in S.14(c) of the National Accountability Ordinance, 1999, the initial burden of proof always rests on the prosecution---Burden to prove all the ingredients of the charge always lies on the prosecution and it never shifts on to accused, who can stand on the plea of innocence assigned to him under the law, till it is dislodged---Prosecution would never be absolved from proving the charge beyond reasonable doubt and burden would shift to the accused only when the prosecution would succeed in establishing the presumption of guilt against him---Prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Petition for leave to appeal was consequently converted into appeal and was allowed---Accused was acquitted in circumstances.

Mansoor-ul-Haq v. .Government of Pakistan PLD 2008 SC 166 and Pir Mazharul Haq v. The State PLD 2005 SC 63 ref.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss.14, 9 & 10---Presumption against accused---Shifting of onus to accused---Applicability---Despite the presumption contemplated in S.14(c) of the National Accountability Ordinance, 1999, initial burden of proving all the ingredients of the charge always lies on the prosecution and the burden shifts to the accused only after the prosecution succeeds in establishing the presumption of his guilt---Accused can stand on the plea of innocence assigned to him under the law, till it is dislodged.

Mansoor-ul-Haq v. Government of Pakistan PLD 2008 SC 166 ref.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 14---Presumption against accused---Scope---Applicability---Section 14 of National Accountability Ordinance, 1999, cannot be used to undermine the well-established rule of law that burden to prove guilt of accused initially is on the prosecution and it never shifts to accused unless discharged through cogent and reliable evidence.

Pir Mazharul Haq v. The State PLD 2005 SC 63 ref.

Muhammad Sardar Khan, Senior Advocate Supreme Court, Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Dr. M. Asghar Rana, Additional P.-G. NAB, Fasihul Mulk, Dy. P.-G. NAB and MS. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 4th, March, 2008.

2009 SCMR 803

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

Haji PAIO KHAN----Petitioner

Versus

SHER BIAZ and others----Respondents

Criminal Petition No.138/P of 2004, decided on 2nd January, 2009.

(On appeal from the judgment, dated 16-6-2004 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.538 of 2003).

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

----S 417---Appeal against acquittal---Presumption---Double presumption of innocence is attached to the order of acquittal passed by a Court of competent jurisdiction---Superior Courts do not interfere with such order unless the same is arbitrary, capricious, fanciful and against the record.

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

----S. 302(b)/34---Appreciation of evidence---Medical evidence---Corroborative value---Extent and scope---Medical evidence may confirm the ocular evidence with regard to the seat of the injury, kind of weapon used in the occurrence and nature of injury, but it would not connect the accused with the commission of the crime.

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

----S. 302(b)/34---Abscondence---Nature and scope---Abscondence of accused is a supporting evidence of his guilt and it may be consistent with the guilt or innocence of accused, which is to be decided keeping in view the overall facts of the case.

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

----S. 302(b)/34---Constitution of Pakistan (19973), Art.185(3)---Appeal against acquittal---Double presumption of innocence having been attached to the order of High Court acquitting the accused, Supreme Court would interfere only if the said order was arbitrary, capricious, fanciful and against the record---Medical, evidence might confirm the ocular evidence with regard to the seat of injury, nature of the injury and kind of weapon used in the occurrence, but it would not connect the accused with the commission of the crime---Mere abscondencc of accused was not conclusive proof of his guilt, which even had not been established---Accused had been proved on record to be present at their places of postings performing their duties on the day of occurrence far away from the spot---Impugned judgment of acquittal did not suffer from any misreading or non-reading of evidence---Leave to appeal was declined to complainant in circumstances.

M. Amin Khattak, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd January, 2009.

2009 S C M R 808

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Muhammad Qaim Jan Khan and Ch. Ejaz Yousaf, JJ

M.B. ABBASI and another----Petitioners

Versus

THE STATE----Respondent

Cr.P.L.A. No.293 of 2008, decided on 3rd September, 2008.

(On appeal from the order, dated 20-11-2003 passed by the High Court of Balochistan, Quetta in Special Criminal Appeal No.4 of 2001).

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

----Ss. 409, 420 & 494(2)---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Arts.185(3), 9 & 10(i)---Accused were convicted and sentenced by Trial Court in absentia on the charge of having. managed the issuance of bank guarantee worth Rs.60 million favouring PSO without legal formalities and requirements against inadequate security, thus, dishonestly inducing PSO to deliver the said amount on the basis of the said bank guarantee---During pendency of appeal a compromise was arrived at between the parties and the outstanding amount allegedly covered by the guarantee had been paid to PSO and resultantly the bank guarantee issued by the bank favouring PSO had become infructuous---Bank guarantee in question, thus, was duly discharged and returned to the bank and claim of accused against guarantee was accordingly settled and no loss on account of the guarantee was caused to the bank or to any other person---As regards the trial of accused in absentia, record did not show that the requirements justifying exercise of power under S.5(4) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, were satisfied and efforts were made to get the service effected on the accused, who at the relevant time were out of country---Proceedings in absentia, therefore, had lost their efficacy besides being violative of the principles of natural justice as per maxim "audi alteram partem" and Arts.9 & 10(i) of the Constitution---Admittedly accused were never served in the case to face the trial, as they could not be traced out---Review Board (NRO) in its decision had also recommended for withdrawal of the case against the accused, which was squarely covered by the provisions of S.494(2), Cr.P.C. inserted through National Reconciliation Ordinance, 2007, and on this account too, they could not be proceeded against---Petition for leave to appeal was converted into appeal and allowed and the accused were acquitted accordingly.?

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Muhammad Arif v. The State 2008 SCMR 829; Mir Ikhlaq Ahmed v. The State 2008 SCMR 951; Gul Zaman Kasi v. The State Criminal Appeal No.269 of 2003; The State through P.G. NAB v. Aftab Ahmed Khan Sherpao PLD 2005 SC 399; Zamarud Khan v. The State 1987 SCMR 569; Haji Muhammad v. The State PLD 2003 SC 262; Chairman Board of Intermediate and Secondary Education, Bahawalpur v. Rizwan Rashid 2005 SCMR 728; United Bank Ltd. v. Yousaf Haji Noor Muhammad Hadi 1988 SCMR 82; Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289; Federal Land Commission v. Mian Ghulam Qadir and others 1983 SCMR 867; Pakistan International Airlines Corporation v. Junior Labour Court, Karachi PLD 1978 SC 239; F.B. Ali v. The State PLD 1975 SC 506 and Muhammad Fazil and others v. The State and others 2006 SCMR 1432 ref.

(b) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S. 5(4)---Constitution of Pakistan (1973), Arts.9 & 10(i)---Trial in absentia---Effect---Proceedings in absentia without giving an opportunity of hearing to the accused lose their efficacy being violative of the principle of natural justice as per maxim "audi alteram partem" and Arts.9 & 10(i) of the Constitution.?

Mir Ikhlaq Ahmed v. The State 2008 SCMR 951; The State through P.-G. NAB v. Aftab Ahmed Khan Sherpao PLD 2005 SC 399; Mehram Ali v. Federation of Pakistan PLt 1998 SC 1445; Zamarud Khan v. The State 1987 SCMR 569; Haji Muhammad v. The State PLD 2003 SC 262; Chairman Board of Intermediate and Secondary Education, Bahawalpur v. Rizwan Rashid 2005 SCMR 728; United Bank Ltd. v. Yousaf Haji Noor Muhammad Hadi 1988 SCMR 82; Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289; Federal Land Commission v. Mian Ghulam Qadir and others 1983 SCMR 867; Pakistan International Airlines Corporation v. Junior Labour Court, Karachi PLD 1978 SC 239; F.B. Ali v. The State PLD 1975 SC 506 and Muhammad Fazil and others v. The State and others 2006 SCMR 1432 ref.

(c) Interpretation of statutes---

----Provision entailing penal consequences has to be strictly construed.

(d) Appeal (criminal)---

----Conviction in absentia---Options---Person convicted in absentia has option either to surrender before the Trial Court and seek fresh trial or file an appeal in the Appellate Court, if he feels that evidence recorded against him in absentia would not justify conviction and such person has equal right of filing appeal, who seeks its adjudication on merits.?

Muhammad Fazil and others v. The State and others 2006 SCMR 1432 ref.

Malik Muhammad Qayyum, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan and Raja Abdul Ghafoor, Advocate-on-Record for the State.

Date of hearing: 3rd September, 2008.

2009 S C M R 819

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

Mst. GULSHAN BIBI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.42-P of 2007, decided on 21st January, 2009.

(On appeal from the judgment, dated 8-3-2007 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.738 of 2005).

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

---S. 9(c)----Constitution of Pakistan (1973), Art.185(3)----Huge quantity of "Charas" weighing 15 kilograms had been recovered from the possession of accused, which had been satisfactorily proved-Mere fact that one of the witnesses to the recovery memo. was not produced, was not fatal to prosecution case---Plea of acting as "carrier" had not been taken at the trial, nor spelt out from the material on record---Plea of substitution was also not substantiated---Leave to appeal was refused to accused in circumstances.

Muhammad Iqbal alias Bali v. The State 2008 SCMR 1601 ref.

Haji M. Zahir Shah, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 21st January, 2009.

2009 S C M R 825

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Jjaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

TALIB HUSSAIN and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.220 to 223 of 2002 and Jail Petition No.34 of 2002, decided on 20th May, 2008.

(On appeal from the judgment, dated 18-7-2001 in Criminal Appeals Nos.397 of 1993, 189 of 1995, 291 of 2001 passed by Lahore High Court, Lahore).

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

----S. 302(b)/34---Appraisal of evidence---Death was the cumulative effect of all' the injuries caused to the deceased by the accused---Mere relationship of the witness with the deceased or he being interested in prosecution of accused on account of occurrence, would nod dub him as an interested witness---Plea of alibi was not substantiated by accused on record through evidence---Accused had a strong motive to commit the crime over a dispute of land between the parties---F.I.R. was promptly lodged nominating all the accused with the role attributed to each of them---Presence of eye-witnesses at the scene of occurrence had been proved by independent and reliable evidence---Ocular testimony was supported by evidence of recoveries and medical evidence---Occurrence having taken place in the day time, possibility of mistaken identity or of substitution of accused had to be ruled out---Occurrence had taken place in the manner as suggested by the prosecution---Convictions and sentences of accused were maintained in circumstances, except the alteration of death sentence of two accused to imprisonment for life due to mitigating circumstances in their favour.

Sheraz Tufail v. The State 2007 SCMR 518; Khair Muhammad and another v. State 2007 SCMR 158; Amal Sherin and another v. State through Advocate-General, N.-W.F.P PLD 2004 SC 371; Dosa and others v. The State 2002 SCMR 1578; Mulla Riaz Ahmad v. The State 2002 SCMR 626; Feroze Khan v. The State 2002 SCMR 99; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Muhammad Amin v. The State 2000 SCMR 1784; Saeed Akhtar and others v. The State 2000 SCMR 383; Mir Hassan and others v. State and others 1999 SCMR 1418; Sharafat Ali v. The State 1999 SCMR 329; Sardar Khan and others v. State 1998 SCMR 1823; Wahid Bukhsh and others v. The State 1997 SCMR 1424; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639; State of Rajasthan v. Hunaman AIR 2001 SC 282 and State of Punjab v. Wassan Singh and others AIR 1981 SC 697 ref.

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

----S. 302(b)/34---Related witness---Connotation---Mere relationship of a witness with the deceased or the very fact that he is interested in prosecution of the accused on account of the occurrence, would not dub him as an interested witness.

Sheraz Tufail v. The State 2007 SCMR 518; Khair Muhammad and another v. State 2007 SCMR 158; Amal Sherin and another v. State through Advocate-General, N.-W.F.P PLD 2004 SC 371; Dosa and others v. The State 2002 SCMR 1578; Mulla Riaz Ahmad v. The State 2002 SCMR 626; Feroze Khan v. The State 2002 SCMR 99; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Muhammad Amin v. The State 2000 SCMR 1784; Saeed Akhtar and others v. The State 2000 SCMR 383; Mir Hassan and others v. State and others 1999 SCMR 1418; Sharafat Ali v. The State 1999 SCMR 329; Sardar Khan and others v. State 1998 SCMR 1823; Wahid Bukhsh and others v. The State 1997 SCMR 1424; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639; State of Rajasthan v. Hunaman AIR 2001 SC 282 and State of Punjab v. Wassan Singh and others AIR 1981 SC 697 ref.

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

----S. 302(b)/34---Witness---Interested witness---Interested witness is one who is partisan or inimical towards the accused or has a motive or cause of his own to falsely implicate the accused in the crime.

Aftab Farrukh, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.220 of 2002).

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Appellant ((in Criminal Appeal No.221 of 2002) and for the Complainant in all cases.

Raja M. Shafqat Abbasi, Advocate Supreme Court for Respondent No.1 (in Criminal Appeal No.221 of 2002).

M. Saeed Ansari, Advocate Supreme 'Court for Appellant (in Criminal Appeal No.222 of 2002).

Ch. Naseer Ahmad, Advocate Supreme Court for Appellant (in Criminal Appeal No.223 of 2002).

Syed Ali Hussain Gillani, Advocate Supreme Court for Petitioner (in Jail Petition No.34 of 2002).

Ch. Munir Sadiq, D.P.-G., Punjab and M. Siddique Khan, D.P.-G., Punjab for the State (in all cases).

Date of hearing: 20th May, 2008.

2009 S C M R 834

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

SAEED AKHTAR----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.44-P of 2007, decided on 21st January, 2009.

(On appeal from the judgment, dated 20-3-2007 of the Peshawar High Court, Abbottabad Bench passed in Criminal Appeal No.20 of 2007).

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

----S. 514---Penal Code (XLV of 1860), Ss.324/353/411/201/109/34---Constitution of Pakistan (1973), Art.185(3)---Forfeiture of surety bond---Petitioner had stood surety for the release of accused on bail, who had disappeared thereafter---Trial Court taking a lenient view had burdened the petitioner with a penalty of Rs.50,000, while the surety bond was for a sum of Rs.1,00,000---High Court, in appeal filed by the petitioner had discussed all aspects of the matter in detail and the impugned judgment did not suffer from any misreading or non-reading of record, justifying interference by Supreme Court---No lenient view should be taken and entire amount of the bail bond should be recovered as an amount of penalty in the absence of any mitigating circumstance in favour of the surety---Leave to appeal was refused to the petitioner in circumstances.

2004 SCMR 211 and Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

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

----S. 514---Forfeiture of surety bond---General rule---Courts while forfeiting bail bond amount should not show any undue leniency and their approach should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds---Forfeiture of bail bond amount not in full is no legal requirement---Once an accused jumps bail bond, entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances.

Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

Muhammad Asif, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioner.

Ishtiaq Ibrahim, A.A.-G., N.-W.F.P. for the State.

Date of hearing: 21st January, 2009.

2009 SCMR 838

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

Messrs PARKS PAKISTAN (PVT.) LTD. through Managing Director----Petitioner

Versus

PRIVATIZATION COMMISSIONER, through Secretary and another----Respondents

Civil Petition No.1573/L of 2002, decided on 26th February, 2009.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 26-2-2002 passed in F.A.O. No.308 of 1999).

Arbitration Act (X of 1940)---

----Ss. 2(a), 8 & 20---Application for appointment of arbitrator---Auction of hotel by Privatization Commission---Deposit of first instalment by applicant after acceptance of his bid and issuance of letter of intent in his favour by Commission---Withdrawal of first instalment by applicant for non-extension of liquor permit of hotel by Commission---Applicant's prayer for referring such dispute to. arbitration on basis of Letter of Intent and Instructions to Bidders---Validity---Instructions to Bidders relating to invitation of bids for purchase of hotel did not find mention of arbitration clause---Commission in its Letter of Intent had not taken responsibility to get the liquor permit of hotel extended from Government---Commission had cancelled applicant's bid for non-depositing other instalments---No written agreement had been executed after acceptance of applicant's bid by Commission---Instructions to Bidders were' mere a notice of tender and could not be termed as an agreement containing arbitration clause---Applicant by withdrawing first instalment had himself rescinded contract---Letter of Intent contained certain conditions to be fulfilled by applicant before execution of final agreement---Commission due to applicant's failure to fulfil such conditions had cancelled Letter of Intent---Applicant for not challenging Letter of Intent had impliedly admitted cancellation of contract---Application for appointment of arbitrator was dismissed in circumstances.

Mst. Shamim Akhtar v. Najma Baqai and 3 others PLD 1977 SC 644 and Messrs Progressive Constructions Ltd. v. Bharat Hydro Power Corporation Ltd AIR 1996 Delhi 92 ref.

Messrs M.A. Khan and Co. through Sole Proprietor Muhammad Ali Khan v. Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. Through its Principal Officer/Secretary Karachi 2006 SCMR 721 and Messrs Progressive Constructions Ltd. AIR 1996 Delhi 92 rel.

Ch. Khurshid Ahmad, Advocate Supreme Court for Petitioner.

M. Rafique Shad, Advocate Supreme Court and M. Yasin Chughtai, Advocate-on-Record for Respondent No.1.

Naveed Inayat Malik, D.A.-G. for Respondent No.2

Date of hearing: 26th February, 2009.

2009 S C M R 843

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Mian MUHAMMD AMAR YOUSAF----Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Housing and Works, Islamabad----Respondent

Civil Appeal No.1964 of 2002, decided on 22nd February, 2008.

(On appeal from the judgment, dated 2-9-2002 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in R.F.A. No.255 of 1993).

Specific Relief Act (I of 1877)---

----S. 8---Transfer of Property Act (IV of 1882), S.106---Suit for recovery of possession and compensation for use of house after expiry of lease period---Suit decreed by Trial Court for possession and recovery of compensation at rate of double rent till vacation of house by defendant--High Court in appeal modified decree partly allowing compensation at the rate of 10% of rent---Validity---No fresh lease agreement had been made after expiry of lease period--Defendant had not responded plaintiff's notice demanding from him vacation of premises and recovery of compensation---Suit house for being situated in a posh locality of the city could fetch much more rent than demanded by plaintiff---Supreme Court set aside impugned judgment and maintained decree passed by Trial Court in circumstances.

Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185 ref.

Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Ms. Nahida Mehboob Ellahi, D.A.-G. and Muhammad Ashraf JEO for Respondent.

Date of hearing: 22nd February, 2008.

2009 SCMR 846

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Zia Perwez, JJ

QAISER JAVED MALIK----Petitioner

Versus

PERVAIZ HAMEED and 2 others----Respondents

Civil Petition No.1872 of 2008, decided on 10th February, 2009.

(On appeal from the judgment, dated 25-11-2008 of the Islamabad High Court, Islamabad passed in Writ petition No.3233 of 2004).

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 6 & 17---Ejectment petition on ground of expiry of term fixed in lease agreement and personal need of premises by landlord---Maintainability---Words "subject to provisions of section 17" as used in S.6 of Islamabad Rent Restriction Ordinance, 2001 signified that provisions of S.17 thereof would continue to apply as grounds for eviction of tenant in addition to a further condition of existence of a valid tenancy agreement---Such words would not affect rights conferred upon parties by S.6 of the Ordinance, but would mean conditional upon observance of provisions of S.17 thereof---After expiry of term fixed by lease agreement, tenant would lose right to continue to occupy or hold over premises---Right of landlord, in such circumstances, to seek eviction of tenant on grounds specified in S.17 of the Ordinance would remain unaffected-Ejectment application was accepted in circumstances---Principles.

K. R. C. S. Balakrishna Chetty and Sons & Co. v. The State air 1961 SC 1152 rel.

(b) Words and phrases---

----"Valid"---Meaning.

Chambers 21st Centuary Dictionary; Black's Law Dictionary and Words and Phrases (Permanent Edition) Vol.44 rel.

(c) Interpretation of statutes---

----Preference would be given to an interpretation giving meanings to each word of a statute and not rendering ineffective any portion thereof---Principles.

The Courts should adopt an interpretation, which may give meanings to each word of an enactment taking into consideration the spirit of such legislation. An interpretation, whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meanings can be given to various provisions of an enactment in a harmonious manner.

Shahid Nabi Malik and another v. Chief Election Commissioner and 7 others PLD 1997 SC 32; M. Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225; Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219; D.G. Khan Cement Company Limited and others v. Federation of Pakistan and others 2004 SCMR 456 and Shoukat Baig v. Shahid Jamil PLD 2005 SC 530 rel.

Muhammad Ishtiaq Ahmed Raja, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Abdul Rashid Awan, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents.

Date of hearing: 10th February, 2009.

2009 S C M R 851

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

Ms. CLARE BENEDICTA CONVILLE and others----Appellants

Versus

Mst. SABAHAT IDREES and others----Respondents

Civil Appeals Nos.1587 and 1588 of 2007, decided on 12th March, 2009.

(Against the judgment, dated 29-6-2007 of the Lahore High Court, Lahore passed in R.F.As. Nos.62 and 63 of 2005, respectively).

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

---S. 100 & O.XLI, R.23--Constitution of Pakistan (1973), Art.185(2)(3)---Direct appeal to Supreme Court against remand order of High Court passed in second appeal---Validity---Impugned order being interim to nature could not be termed as decision or final order---Only petition seeking leave to appeal was competent and appeal was not maintainable.

Chairman, N.W.F.P., Forest Development corporation and others v. Khurshid Anwar Khan and others 1992 SCMR 1202 ref.

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

---S. 100 & O. XLI, R. 23 Constitution of Pakistan, (1973), Art 185(2)-- Second appeal Remand of case by High Court for re-writing judgment by Trial Court for having re-capitulated in its judgment written arguments submitted by defendant---Validity---Judgment of Trial Court was not valid for not being based on independent application of mind---First Appellate Court though had discussed and applied its mind to all issues, but had no valid judgment before it while sitting in appeal---Ordinarily Appellate Court would decide case on merits, where evidence on record was sufficient for deciding issues---No valid judgment passed by Trial Court was available on record, thus, High Court was not barred from remanding case---Defendant would not suffer from remand order for being in possession of suit land and High Court had given time frame to Trial Court for re-writing judgment- Supreme Court dismissed appeal in circumstances.

Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others PLD 1965 SC 434; Fateh Ali v. Pir Muhammad and another 1975 SCMR 221; Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10; Anwar Ahmad v Mst. Nafis Bano through L.Rs 2005 SCMR 152; Muhammad Dervaish Al-Gilani and 14 others v Muhammad Sharif and others 1997 SCMR 524; Balwant Singh v. Baldev Singh and others AIR 1921 Lah.119; Ghulam Mohi-ud-Din Chief Settlement Commissioner Pakistan, Lahore and others PLD 1964 SC 829; Slier Muhammad v. Abdul Rashid and others 1980 SCMR 928 and Muhammad Akhtar v. the State PLD 1957 SC (Pak) 297 ref.

Farooq Amjid Mir. Advocate Supreme Court for Appellants (in both cases).

Maqbool Sadiq, Advocate Supreme Court along with Arshad Ali Ch. Advocate-on-Record for Respondents Nos.1 and 2 (in Civil Appeal No.1587 of 2007) and for Respondents Nos 1 to 4 (in Civil Appeal No.1588 of 2007).

Respondents Nos.3 and 4 (in Civil Appeals Nos.1587) and for Respondents Nos.5 and 6 (in Civil Appeal No.1588 of 2007).

Date of hearing: 12th March, 2009.

2009 S C M R 857

[Supreme Court of Pakistan]

Present: Zia Perwez, Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

MAHMOOD HUSSAIN LARIK and others----Appellants

Versus

MUSLIM COMMERCIAL BANK LIMITED----Respondent

Civil Appeals Nos.697, 698 and 699 of 2005, decided on 31st March, 2009.

Per Sarmad Jalal Osmany, J.; Zia Perwez, J. agreeing; Sabihuddin Ahmed. J. Contra.

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

---Art. 185(2)(d)(e) & (3)---Appeal to Supreme Court---Maintainability---No value could be given to the subject-matter of the appeals involving labour disputes, service cases, cases arising from the rent jurisdiction or family disputes where the main prayer was of restoration in service, eviction of the tenant on various grounds or dissolution of marriage/custody of minors respectively, although it may be that granting or refusing of the main prayer may result in some monetary benefit to any party to the dispute before the court of first instance and in an appeal---No direct appeal as of right could be filed in said matters as the first pre-condition could not be quantified---Appeal would be to the Supreme Court as of right if the matter was covered under Art.185(2)(d) & (e) of the Constitution and if the matter was not so covered then leave to appeal had to be sought from Supreme Court in terms of Art.185(3) of the Constitution---Principles.

An appeal would lie to Supreme Court as of right if matters are covered under Article 185(2) (d) & (e) of the Constitution for which the limitation is 30 days. Obviously if they are not so covered then leave to appeal has to be sought from Supreme Court in terms of Article 185(3) for which limitation is 60 days per the rules.

Upon reading Article 185(2)(d) & (e) of the Constitution it would be seen that essentially Sub-Article (2)(d) contemplates a monetary claim being the subject-matter of the dispute between the parties in the Court of first instance which should at least be in the sum of Rs.50,000 whereas Sub-Article (2)(e) contemplates disputes in respect of property of the same value. Of course in both cases, the further requirement is that the High Court must have set aside or varied the judgment etc. of the Court immediately below. It would further be seen that such provisions have been borrowed from sections 109 and 110 of the Civil Procedure Code, which previously, regulated appeals to Supreme Court from the judgments and decrees of the High Court. Obviously since the Civil Procedure Code essentially dealt with controversies of a civil nature between the litigants the wording of Section 109 and 110 also contemplated civil suits as such. Hence, it would be prudent to conclude that Article 185(2)(d) & (e) is also confined to civil disputes between the litigants respecting money claims or property disputes. The expression used in section 109 i.e. the amount of value of the subject matter of the suit is identical therefore, interpretation of these provisions of the Civil Procedure Code earlier made would be applicable to the relevant clauses (d) and (e) of Article 185 of the Constitution. In fact the term subject-matter of the dispute meant the market value of the property. In these circumstances, cases involving labour disputes and for that matter service cases;, cases arising from the rent jurisdiction or family disputes where the main prayer is of restoration in service, eviction of the .tenant on various grounds or dissolution of marriage/custody of minors etc., respectively it cannot be said that any value could be given to the subject-matter of the dispute or for that matter to a claim respecting property, although it may be that granting or refusing of the main prayer may result in some monetary benefit to any party to the dispute before the Court of first instance and in an appeal.?

Muhammad Inayat and others v. Fateh Muhammad and others 2003 SCMR 875 and S.M. Rukmani Bai v. Joshi Ram AIR 1950 Allahabad 242 fol.

Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33 findings held to be per incuriam.

Per Sabihuddin Ahmed, J., Contra.?

Wajid Ali through L.Rs. v. Syed Sajid Ali through L.Rs. 1985 SCMR 401; Muhammad Inayat and others v. Fateh Muhammad and others 2003 SCMR 875; Noorul Hassan v. Federation of Pakistan PLD 1956 SC. 331; Rai Kumar v. Resh Behari Mandal AIR 1931 PC 125; State of Maharashtra v. Mishi Lala Tarachand AIR 1964 SC 457; "The New Property" by Charles A. Reich published in Yale Law Review in 1964; Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Company Ltd. and others AIR 1954 SC 119; The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282; Ajiruddin Mondal and others v. Rahman Fakir and others PLD 1961 SC 349; Asma Jehangir v. Province of Punjab PLD 1969 SC 139; Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Allied Bank Limited v. Mujeeb-ur-Rehman Qazi and others SBLR 2006 SC 33; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Sardar Abdul Rauf Khan and others v. Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1992 SCMR 1181; Haji Muhammad Nawaz v. Hussain Shah 1990 SCMR 1621; Water and Power Development Authority through Chief Engineer v. Saadullah Khan 1999 SCMR 319; Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371; Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC . 22; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304; Allied Bank of Pakistan v. Muhammad Humayun 1997 SCMR 1630; National Bank of Pakistan v. Punjab Labour Court No.7, Gujranwala and others 1992 SCMR 1891; Yousaf Ali Shah v. Quetta Serena Hotel 1997 SCMR 1630; Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511 and Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488 ref.

Per Sarmad Jalal Osmany, J.; Zia Pervwez, J. agreeing; Sabihuddin Ahmed, J. Contra.

(b) Industrial Relations Ordinance (XCI of 2002)---

----S. 2(xxx)---Industrial Relations Ordinance (XXIII of 1969). S.2(xxviii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman/Worker---Determination---Test---Whether a person is a workman, test to determine is the nature of the work done by him and not the designation or title etc --Bank employee, who was Accountant of the Branch and was an Officer Grade-III and used to supervise a number of workers, his duties were certainly not manual or clerical in nature---Such employee incorrectly approached to the Labour Appellate Tribunal for relief.--Principles.?

[Case law] ref.

(c) Industrial Relations Ordinance (XCI of 2002)---

----S. 2(xxx)---Industrial Relations Ordinance (XXIII of 1969), S.2(xxviii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman/Worker-.Determination---Test---Bank employee who was working as officer Grade III in the managerial cadre and performing the functions of signing paying slips, vouchers, debt vouchers, collection of transfer bills cheque books as well as demand drafts etc; was not member of any trade union or workers union registered with the NIRC; was not doing any manual or clerical work and such officers were posted as managers of the :Branch, held, was not a workman doing any manual or clerical work and his grievance application before Labour Appellate Tribunal was misconceived.?

[Case-law] ref.

Per Sabihuddin Ahmed, J., Contra.

?

Ganga R. Madhani v. Standards Bank Ltd. and others 1985 SCMR 1511; Yousaf Ali Shah v. Quetta Serna Hotel 1997 SCMR 1630 and PLD 1968 (W.P.) Statutes 170 ref.

M.M. Aqil Awan, Advocate Supreme Court for Appellants.

Mehmood Abdul Ghani, Advocate Supreme Court for Respondent.

Date of hearing; 25th November, 2008.

2009 S C M R 886

[Supreme Court of Pakistan]

Present: Zia Perwez and Sabihuddin Ahmed, JJ

MUHAMMAD UMAR KHAN and others----Petitioners

Versus

HABIB BANK LTD. and others----Respondents

Civil Petition No.618-K of 2007, decided on 10th October, 2008.

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

----Ss. 5, 15(2)(ii) & 21---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant on ground of default in payment of rent---Predecessor-in-interest of the landlord rented out premises in question to Bank/tenant at the monthly rent of Rs.11000 for the period of five years---Landlord, after expiry of lease, refused to receive rent at the rate stipulated in the lease-deed and tenant started depositing rent in Court, which the landlord kept withdrawing---Tenant communicated to the landlord that it was prepared to pay enhanced rent at the rate of Rs.25,000 per month for a further period of five years and requested the landlord to execute a fresh agreement immediately---Landlord failed to do so and according to tenant, landlord had requested for three years' rent in advance, which the tenant was unwilling to pay---Tenant kept depositing rent at previous rate and the landlord remained withdrawing said amount for about two years and thereafter the landlord filed ejectment petition against the tenant seeking ejectment on ground of default in payment of rent---Rent Controller dismissed ejectment petition holding that since the landlord had failed to execute a fresh agreement, no enhanced rent was due toward the tenant and Appellate Authority below upheld findings of the Rent Controller---Landlord moved High Court assailing findings of Rent Controller and sustained by the Appellate Authority below----Nigh Court held that concurrent findings of the two courts below being premised on appreciation of evidence, were not liable to be disturbed in the constitutional jurisdiction of High Court---Concrete offer by one party and its categorical acceptance by the other would constitute a valid contract enforceable at law---Landlord having not accepted offer of the tenant with regard to enhancement of rent of premises, no valid contract was constituted---Withdrawal of rent at the old rate by the landlord had constituted a waiver on his part---No valid contract to pay rent at the rate of Rs.25,000 having come into being, landlord could not say that tenant had committed default by paying rent at old rate---Ejectment petition was rightly dismissed by the Rent Controller and Appellate Authority below, which findings were upheld by High Court---Petition for leave to appeal was dismissed.

Zareena Khawaja v. Mehboob Shah PLD 1988 SC 190 ref.

Muhammad Sadiq Hidayatullah for Petitioner.

Kamal Azfar for Respondent No. 1.

2009 S C M R 891

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Sheikh Hakim Ali, JJ

MUHAMMAD UMAR alias UMRI----Petitioner

Versus

THE STATE---Respondent

Jail Petition No.196 of 2005, decided on 25th March, 2009.

(On appeal from the judgment and order of the Lahore High Court dated 1-4-2005 passed in Criminal Appeals Nos.235, 240 and 249 of 2003).

Criminal Procedure Code (V of 1898)---

----S. 382-B---Penal Code (XLV of 1860), Ss.302(b), 324, 452 & 149---Constitution of Pakistan (1973), Art.185(3)----Benefit, of period of detention to he considered while awarding sentence of imprisonment---Held, unless there were any exceptional circumstances in a case which the court considered sufficient for the purpose of denying the benefit of S.382-B, Cr.P.C. to the accused, the Court, in all other cases, while awarding sentence will take into consideration the period during which the accused remained in detention during his trial, and this period will normally be adjusted in the sentence awarded to accused by allowing him the benefit of S.382-B, Cr.P.C.---Supreme Court having not discovered any exceptional circumstances in the present case, converted the petition for leave to appeal into appeal, allowed the same and held that petitioner/ accused was entitled to the benefit of S.382-B, Cr.P.C.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

M. Siddique Khan Baloch, Dy. Punjab for the State.

2009 S C M R 893

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

MUHAMMAD SHAFI----Appellant

Versus

STATE LIFE INSURANCE CORPORATION----Respondent

Civil Appeal No.510 of 1998 arising out of Civil Petition No.392 of 1997, decided on 1st April, 2009.

(Against the judgment, dated 4-10-1995 passed by High Court of Sindh, Karachi' in F.R.A. No.329 of 1991).

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

----S. 15---Constitution of Pakistan (1973), Art.185(3)--Leave to appeal was granted by Supreme Court, inter alia, to consider whether upon induction of his two brothers as partners without leaving the premises himself, did the tenant render himself liable to ejectment under S.15 of the Sindh Rented Premises Ordinance, 1979 and whether the High Court was justified in holding that principles laid down in Saeeda Begum v. Shameem Ahmed reported as 1994 SCMR 791 were not applicable to the case.

Saeeda Begum v. Shameem Ahmed 1994 SCMR 791 ref.

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

----S. 15---Default in payment of rent---Mere fact that rent was not disbursed from the personal account of the tenant does not by itself amount to default---All that the law seems to ensure is that the landlord must receive the rent due at the appropriate time and it is not his concern as to how the tenant arranges for its tender.

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

----Preamble & S.15---Interpretation and object of Sindh Rented Premises Ordinance, 1979----As long as the tenant continued to remain in possession and undertook to perform his obligations under the lease, no interest of the landlord would be affected and as such it was difficult to conceive that a ground for ejectment might still become available to seek the tenant's eviction.

While interpreting the provisions of Sindh Rented Premises Ordinance, 1979 the intention of the Legislature as far as it could be gathered from the operative provisions and the preamble also needs to be taken into consideration. It ought to be considered what the law intended to achieve and the mischief that it required to be curbed. The preamble to the Sindh Rented Premises Ordinance, 1979 suggests that it was intended to regulate relations between landlord and the tenants and protect their respective interests in respect of rental premises. Keeping this in view it appears that when a landlord chose to induct a tenant in a building owned by him he needed assurance that the tenant would pay rent and abide by other covenants of the lease. To protect his interest the law stipulates that the tenant, without his consent, would not abdicate his responsibility by divesting himself of interests and leave the landlord at the mercy of a complete stranger. With the object of curbing this mischief the relevant provision in the statute was designed, therefore, as long as the tenant continued to remain in possession and undertook to perform his obligations under the lease, no interest of the landlord would be affected and as such it is difficult to conceive that a ground for ejectment might still become available to seek the tenants eviction.

Habibullah v. Rent Controller Peshawar 1998 SCMR 2656 fol.

Saeeda Begum v. Shameem Ahmed 1994 SCMR 791 and Manek J. Mobed and another v. Shah Behram and others PLD 1974 SC 351 ref.

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

----S. 15---Tenant inducting his two brothers as partners and had categorically asserted that he had ceased to remain a tenant and that the tenancy rights stood transferred to the entire partnership first consisting of three partners---Plea of landlord's acceptance of cheques from the partnership firm did not create an estoppel because the law expressly required that transfer of such rights could only he effected with prior consent of the landlord---Word "prior" occurring in the statute could not be ignored and even a subsequent ratification by the landlord through his conduct, would not debar him from exercising rights conferred by law---Supreme Court dismissed the appeal of tenant, however, premises being a commercial premises, six months time was granted to the tenant to vacate the same.

Iqbal Kazi, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

Mian Mushtaq Ahmed, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent.

Date of hearing: 12th February, 2009.

2009 S C M R 903

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

IQBAL AHMED----Appellant

Versus

MUSLIM COMMERCIAL BANK LTD.----Respondent

Civil Appeal No.1302 of 2005, decided on 30th October, 2008.

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

----S.O. 15(3)(i)--Constitution of Pakistan (1973), Art.185---Dismissal from service---Appellant serving as cashier in Bank, was dismissed from service after charge-sheeting him and holding enquiry against him on charges of gross negligence/defalcation of Bank's monies---Charge against appellant was that he had received an amount of Rs.35 million, but could not account for Rs.2 million for which he could not offer any cogent or satisfactory explanation and, in circumstances, had embezzled the same---Counsel for appellant had contended that as appellant was acquitted by the Special Court under S.249-A, Cr. P.C. , he could not be terminated/dismissed from service---Validity---Each case was to be decided on its own facts---Two proceedings were independent in nature---Facts of the present case would disclose that charges against appellant in departmental proceedings were that due to his negligence the huge amount of Rs.2 million had disappeared and that he had misappropriated the same---Appellant could certainly be held accountable for that act of gross negligence amounting to misconduct due to which Bank suffered a loss of 2 million--Appellant, though, could have been acquitted on the criminal charges filed against him vis-a-vis defalcation of the amount in question, however he could still be proceeded in departmental proceedings on account of misconduct/negligence on his part which resulted in said defalcation and which precisely were the charges against him---Judgment of the High Court was upheld, in circumstances and appeal was dismissed.

Attaullah Shaikh v. WAPDA and others 2001 SCMR 269; Khushal Khan v. Muslim Commercial Bank Ltd. and others 2002 SCMR 943; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Muslim Commercial Bank Limited v. Abdul Jabbar 2001 PLC 721 and H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 rel.

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

----S.O. 15(3)---Negligence/misconduct---Scope--Punishment given in Standing Order 15(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not exhaustive; and there could be many others, which was gross negligence.

Shabbir Ahmed Awan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Appellant.

Shahid Anwar Bajwa, Advocate Supreme Court and Ahmedullah Farooqui, Advocate-on-Record for Respondent.

Date of hearing: 29th October, 2008.

2009 S C M R 908

[Supreme Court of Pakistan]

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

GOVERNMENT OF PAKISTAN through Secretary Establishment Division, Islamabad----Petitioner

Versus

IQBAL AHSAN ZAIDI and 2 others----Respondents

C.P.L.A No.900 of 2007, decided on 29th November, 2007.

(Against the judgment, dated 29-9-2007 passed by Federal Service Tribunal, Islamabad, in Appeal No.1095(R)(C.S.) of 2004).

Constitution of Pakistan (1973)---

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Leave to appeal was granted by Supreme Court to consider, inter alia, contentions of department that Service Tribunal had erred in expunging downgrading remarks recorded by Countersigning Officer in Part VI(b)(iii) i.e. "yet not fit for promotion" and in Part VI(a)(iv) i.e. "equals the majority of officers (average)" of the ACR of respondent civil servant merely stating that it was not backed by the requisite revision in the preceding Parts of the ACR and that the Tribunal had condoned period of limitation in filing appeal after rejection of earlier representation of the respondent without valid and cogent reasons.

Niaz Ahmed Rathore, D.A.-G. and Arshad Ali Chaudhry, Advocate-on Record for Petitioner.

Nemo for Respondents.

2009 S C M R 909

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Zia Perwez, JJ

IFEANYI SAMSON----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.301 of 2007, decided on 30th November, 2007.

(Against the judgment, dated 26-6-2007 of the Peshawar High Court, Peshawar in Criminal Appeal No.105 of 2005).

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

----Art. 185(3)---Petition for leave to appeal---Delay, condonation of---Petitioner being foreigner had not been able to arrange filing of petition earlier--Delay as such was not intentional rather that was due to circumstances beyond his control---Delay was condoned in view of peculiar circumstances.

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

----S. 9(b)---Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal had no substance on merits---Accused was a foreigner and with a view to advance cause of justice his sentence of four years' R.I. was reduced to two years' R.I. so that he could be deported to his native country as soon as possible---Fine was directed to be paid in terms of the judgment of High Court---Petition was disposed of accordingly.

Muhammad Aslam Uns, Advocate Supreme Court for Petitioner.

Niaz Ahmed Rathore, D.P.-G. for the State.

2009 S C M R 911

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

USMAN NASIR DAR----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.155-I, of 2008, decided on 4th July, 2008.

(On appeal from the order, dated 8-5-2003 of the Lahore High Court, Lahore, passed in Criminal Revision No.49 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 516-A---Constitution of Pakistan (1973), Art.185(3)---Superdari of vehicle---Application for---Car in question which had been taken into possession by the Police was used in commission of offence in respect of which criminal case was registered at Police Station concerned---Request made by petitioner for Superdari of said car had been declined by the High Court---Validity---Petitioner who failed to produce Registration Book etc. of the car in question to prove its ownership, had submitted that Bank had financed him for the purchase of said car, but as instalment of Bank had not been cleared, the car had not yet been transferred in his name---Car being leased one, Financial institution/Bank in case of default of any instalment could take the possession of the car---Petitioner having failed to establish his ownership in respect of car in question, could not make out case for Superdari of car---Superdari of car was rightly denied to the petitioner by the High Court.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.

Alamgir, A.P.-G. along with Muhammad Mansha, S.-I. Police Station Garhi Shahu, Lahore for the State.

Muhammad Akhtar Shabbir, Advocate Supreme Court and Syed Fayyaz A. Sherazi, Advocate-on-Record for the Complainant.

2009 S C M R 913

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

QADIR SHAH and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.594 of 2005, decided on 3rd November, 2008.

(On appeal from the judgment, dated 13-5-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.960 of 2003).

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

----Ss. 354-A & 354---Appreciation of evidence---F.I.R. had been lodged after an unexplained delay of 16 days---Police, after investigation, had found the case to be false and prepared a report of cancellation of the F.I.R.---Validity---No independent witness had been produced to support the prosecution version---Injury on the right eyebrow of the victim allegedly caused by a pistol shot fired by accused was not supported by medical evidence---Occurrence had taken place in the fields, clothes of the victim were just torn and not stripped off and she was not exposed to public-at-large as no one from general public was present at the scene of incident, case against accused, therefore, did not fall within the ambit of S.354-A, P.P.C., but was hit by S.354, P.P.C.---Conviction of accused under S.354-A, P.P.C. was consequently, altered to S.354, P.P.C. and their sentence was reduced to two years' R.I. each with fine in circumstances---Appeal was disposed of accordingly.

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

----S. 354-A---Assault or use of criminal force on a woman and stripping her off her clothes---Essentials---Two conditions must co-exist and must be fulfilled to bring the case within the ambit of S.354-A. P.P.C., firstly there should be stripping off the clothes of the victim and secondly she, in that condition, be exposed to the public view.

Munir Ahmed Bhatti, Advocate Supreme Court for Appellants.

Siddique Khan Baloch, D.P.-G. Punjab for the State.

2009 S C M R 916

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

Criminal Appeal No.280 of 2003

GHULAM MUSTAFA----Appellant

Versus

THE STATE----Respondent

(On appeal from judgment of Lahore High Court, Lahore, dated 4-7-2002 passed in Criminal Appeal No.593 of 2002).

Criminal Appeal No.88 of 2908

MUHAMMAD SAFDAR----Appellant

Versus

THE STATE---Respondent

(On appeal from Judgment of Lahore High Court, Lahore, dated 13-12-2004 passed in Criminal Appeal No.16 of 2004).

Criminal Appeals Nos.280 of 2003 and 88 of 2008, decided on 19th March, 2009.

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

----Ss. 302(b)/34, 324/34, 384/34, 337-F(ii), (iii), (vi), 353/34, 3241/149 & 337-A(v)---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21(E) - Appraisal of evidence---Prosecution witnesses had improved their statements at the trial, besides being related to the deceased and insured persons None of the accused was put to any identification test---Medical evidence was silent about the type of weapon used in the occurrence, which even otherwise could never he a primary source of evidence for the crime, but was only corroborative of the same---Recoveries of fire-arm from the accused being inconsequential did not corroborate the ocular version---Parties admittedly were inimical towards each other---If enmity would persuade a person to commit a crime then it would also be sufficient to falsely implicate same person from the other side in the crime---If evidence on record warranted a doubt in the credibility of witnesses regarding one set of accused, then indeed their testimony regarding another set of co-accused would have to he considered with caution and could not be accepted without strict corroboration from other independent and credible sources---No corroborative piece of evidence was available to substantiate the eye witnesses, whose ocular account regarding the second set of co-accused had been disbelieved by both the Courts below---Veracity and credibility of the eye witnesses being full of contradictions and doubts, benefit of the same had to go to the accused---Accused were acquitted in circumstances.?

Fazal Muhammad v. Muzaffar Hussain 1981 SCMR 959 Ata Muhammad v. State 1995 SCMR 599: Mumtaz Begum v. Ghulam Farid 2003 SCMR 647; Muhammad Nawaz v. State 1969 SCMR 132; Shafoo v. State 1968 SCMR 719 and Allah Ditta v State PLD 2002 SC 52 ref.

(b) Evidence---

----Medical evidence---Scope---Medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination---Medical evidence can never be a primary source of evidence for the crime itself, but is only corroborative of the same.?

(c) Criminal trial---

----Motive---Motive cuts both ways---If enmity persuades a person to commit a crime, then it is also sufficient to falsely implicate some person from the other side.?

(d) Maxim---

----Falsus in uno falsus in omnibus---"Falsus in uno falsus in omnibus" is not a universal principle to be applied in all criminal cases---Exceptions are there---If evidence on record warrants a doubt in the credibility of witnesses regarding one set of accused, then indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. ?

Muhammad Nawaz v. State 1969 SCMR 132; Shafoo v. State 1968 SCMR 719 and Allah Ditta v. State PLD 2002 SC 52 ref.

Raja Mehmood Akhtar, Advocate Supreme Court and Mehmood?-ul-Islam, Advocate-on-Record for Appellant (in Criminal Appeal No.280 of 2003).

Syed Ibn-e-Hassan, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Appellant (in Criminal Appeal No.88 of 2008).

M. Siddique Khan Baloch, Deputy Prosecutor-General, Punjab for the State (in both Appeals).

Date of hearing: 28th January, 2009.

2009 SCMR 925

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

ABDUL AZIZ MEMON and another----Appellants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.171 and Criminal Appeal No.140 of 2008 and Criminal Miscellaneous Application No. 172 of 2008 and Criminal Appeal No. 141 of 2005, decided on 11th May, 2008.

(On appeal from the judgment, dated 6-11-2002 of the High Court of Sindh, Karachi in Criminal Ace. Appeals Nos.58 and 59 of 2002).

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(v)---National Reconciliation Ordinance (LX of 2007), S.7---Appraisal of evidence---Proceedings initiated against public office-holder before 12th October, 1999---Validity---Inquiry against accused was filed on 2-6-1998 on the complaint filed by United Bank Limited to Chairman, Ehtesab Commission, under S.15 of the Ehtesab Act, 1997, which had culminated in filing of Reference against them---Provisions of S.7 of the National Reconciliation Ordinance, 2007, stipulated that under S.33-F of the National Accountability Ordinance, 1999, the proceedings initiated against holders of public office before 12-10-1999 stood withdrawn and terminated with immediate effect and they would not be liable to any action under the said Ordinance---Accused were acquitted accordingly from the charges, under S.7 of the National Reconciliation Ordinance, 2007.

Khalid Anwar, Senior Advocate Supreme Court for Appellants.

Malik Muhammad Qayyum, Attorney-General for Pakistan and Dr. M. Asghar Rana, A.D.P.-G. NAB for the State.

2009 S C M R 929

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

GHULAM FARID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1 10 of 2006, decided on 28th January, 2009.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Mohan, dated 19-1-2006 passed in Criminal Appeal No.472 of 2001 and Murder Reference No.329 of 2001).

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

---S. 302(b)---Constitution of Pakistan (1973), Art.185(3)-- Leave to appeal was granted to accused by Supreme Court to consider the question of sentence only.

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

----S. 302(b) Appraisal of evidence---Defence counsel while pleading right of self-defence had not challenged the concurrent findings of fact with regard to the occurrence---Accused had not raised the plea of self-defence during trial either in his statement under S.342, Cr.P.C. or at the time of cross-examination of prosecution witnesses---Court, however, could infer the same from the evidence led during trial if it was tenable, but to justify such an inference in favour of accused, who stood convicted on a murder charge and sentenced to death, his conduct during the occurrence should fall within parameters of right of private defence as codified in the Pakistan Penal Code---Conduct of accused (luring the whole transaction commencing from his visiting house of the deceased for an illicit purpose to his murder reflected both mens rea and actus reus---Accused was resident of a different locality and his relations were strained with the deceased on account of the suspicion drat he had illicit liaison with the wife of the deceased and he wanted to eliminate him to marry her---Accused having armed himself with a gun committed house trespass into the house at an odd hour of the night in order to commit adultery and if discovered by anyone to use the gun --Deceased and others, in such circumstances, were within their right to arrest the accused in terms of S.59, Cr.P.C.---Accused was found standing with the wife of the deceased and when deceased chased him he fired the fatal shot---Conduct of accused, therefore, did not fall within the exceptions of Ss.96, 97 & 100, P.P.C. and he had no right to cause death of the deceased---No case for mitigation of sentence was made out either----Accused had rightly been convicted and sentenced to death --Appeal was dismissed accordingly.

Ghulam Ali v. Rasab and others PLD 1983 SC 135; Mst. Hamida Bauo v. Ashiq Hussain and State PLD 1963 SC 109; Nawab v. The Crown PLD 1953 Lah. 207; The State v. Muhammad Akbar PLD 1966 SC 432; Abdul Rahim alias Rehman v. The State 1986 PCr.LJ 2833; Zulfiqar Ali. v. The State 2008 SCMR 796; Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427 and Waris Khan v. The State 2001 SCMR 387 ref.

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

---Ss. 96, 97, 99, 100 & 106--Plea of sell-defence, examination of---Principles are that conduct of the accused during the whole transaction and his presence at the spot should be bona fide, faultless and devoid of elements of mens rea or actus reus; that there should be a danger to the life of the accused or of grievous bodily hurt or a genuine apprehension to that effect, that the situation should be such that the accused is left with no option of a safe exit; and that the force used by the accused is proportionate to the apprehended danger---Credible evidence or circumstances to indicate that causing of death was necessary to save the life of the accused are to be present in case of murder.

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

----S. 59---Arrest by private persons---Plea of self-defence raised by accused---Feasibility--When an accused raises a plea of self-defence for causing hurt or death in the face of apprehended arrest or attack from the victim, the entire episode has to be considered as one transaction--Anyone who either sees the person committing such an offence or finds hire running away immediately thereafter, would be entitled to arrest the said person under the mandate of S.59, Cr.P.C.---If such person causes hurt or death with a view to resist such apprehension, he cannot plead to have acted in self-defence.

Malik Muhammad Salem, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G. Punjab for the State.

Date of hearing: 28th January, 2009.

2009 S C M R 941

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan, Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

IRSHAD ULLAH---Petitioner

Versus

MUHAMMAD NAWAZ and others---Respondents

Criminal Petition No.472 of 2008, decided on 23rd February, 2009.

(Against the judgment dated 6-11-2008 passed by the Lahore High Court, Lahore in Criminal Appeal No.1617 of 2004 along with Murder Reference No.18-T of 2004).

Penal Code (XIV of 1860)---

---S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal--Ocular testimony had a glaring and irreconcilable contradiction with medical evidence----Complainant and other eye-witness were close relatives of the deceased----Accused had a background of enmity of previous murder, which ended on the basis of compromise---Maternal­-uncle or complainant, another eye-witness, had been dropped by the prosecution as being won over--Despite the place of occurrence being located in a populated area, no independent witness was cited to support the prosecution case---Incident was an un-witnessed one---High Court had rightly disbelieved the ocular evidence, recovery of weapons and the report of Forensic Science Laboratory---Impugned judgment did not suffer from any illegality or infirmity and there was no miscarriage of justice---Leave to appeal was refused to accused accordingly.

The State v. Rab Nawaz and another PLD 1974 SC 87 and The State through A-G. Sindh v. Shankar 1997 SCMR 1000 ref.

Sardar Muhammad Ishaq, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd February, 2009.

2009 S C M R 954

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.352 of 2008, decided on 14th November, 2008.

(On appeal from the judgment, dated 22-9-2008 of the Peshawar High Court, D.I. Khan Bench passed in Criminal Miscellaneous No. 119 of 2008).

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--Contrabands were not recovered directly from the possession of accused, rather the same were recovered from the cabin made on the root of the Bus---Question whether said cabin was in the exclusive use of the driver or for the passengers being a factual controversy, could not be resolved in a bail petition---Case of accused, thus, was of further inquiry--Accused was admitted to hail accordingly.

Mian Muhibullah Kakakhel, Senior Advocate Supreme Court and Mrs. Tehmina Muhibullah, Advocate Supreme Court for Petitioner.

Ms. Naheeda Mehboob Ellahi, D.A.-G. and Sh. Riazul Haque, Prosecutor-General, ANF for the State.

Date of hearing: 14th November, 2008.

2009 SCMR 956

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Syed Zawwar Hussain Jaffery and Muhammad Farrukh Mahmud, JJ

CIVIL AVIATION AUTHORITY through Director-General----Appellant

Versus

JAVED AHMAD and another----Respondents

Civil Appeals Nos.509 and 571 of 2008, decided on 20th March, 2009. .

(On appeal from the judgment, dated 23-4-2008 passed by the High Court of Sindh at Karachi, in Constitutional Petition No.D-970 of 2007).

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

----Preamble----Service Tribunals Act (LXX of 1973), S.2-A---Misconduct----Compulsory retirement---Employee was neither dealt with fairly nor any enquiry was conducted in the matter----Departmental authorities, in spite of" remand of the case by the Service Tribunal, dilated upon the merits of the case and formed its earlier opinion and became prejudiced towards the employee on the basis of other complaints and no opportunity in defence was provided to him---Department, in spite of reinstatement order, passed by high Court, did not allow the employee to join service which reflected that department had made up its mind to deprive the employee of his right---Departmental action on the statement containing 23 allegations which included additional allegations, was taken on malice and predetermined desire to get rid of the employee---Appeal of employee before the Service Tribunal having been abated High Court had the power to give directions to the effect that the employee may be reinstated in service however, in the present case, high Court wrongly observed that his intervening period may he treated as extraordinary leave without salary--No jurisdictional error, infirmity and illegality having been found in the impugned judgment, the same was maintained by the Supreme Court.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Raja Riaz v. Chairman, Pak Space and Upper Atmosphere Research Commission 2008 SCMR 402; Muhammad Mubeen-us-Salam PLD 2005 SC 302; Muhammad Idrees v. Agriculture Development Bank of Pakistan and others PLD 2007 SC 681 ref.

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

----Art. 199---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Service Tribunals Act (LXX of 1973), S.2-A---Constitutional jurisdiction of High Court---Scope---Held, after abatement of service appeal and Service Tribunal having taken another view by entertaining service appeal involving departmental penalties and there being no appropriate remedy under the law available to agitate the grievance by the employee, High Court rightly entertained and disposed of the constitutional petition.

Makhdoom Ali Khan, Senior Advocate Supreme Court, Arshad Ali Chaudhry, Advocate-on-Record and M. Iqbal Chief Human Resources, Civil Aviation Authority for Appellant (in Civil Appeal No.509 of 2008).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Respondent No.1 (in Civil Appeal No.509 of 2008).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Appellant (in Civil Appeal No.571 of 2008).

Babar Ali, Advocate Supreme Court, Ch. Akhtar Ali, Advocate­-on-Record, Obaidul Rehman Abbasi, Regional Legal Officer, Civil Aviation Authority for Respondents (in Civil Appeal No.571 of 2008).

Date of hearing: 19th February, 2009.

2009 S C M R 973

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. and Muhammad Farrukh Mahmud, J

Messrs FAZAL DIN & SONS (PVT.) LTD.----Petitioner

Versus

FEDERAL BOARD OF REVENUE, ISLAMABAD and others----Respondents

Civil Petition No. 1520 of 2008, decided on 6th March, 2009.

(On appeal from the judgment, dated 14-10-2008 of the Lahore High Court, Lahore passed in Writ Petition No.9851 of 2008).

(a) Income Tax Ordinance (XLIX of 2001)---

----Ss. 122(1)(5) & 120-A(i)---Investment Tax Scheme, 2008 [C.B.R. Circular No.3 of 2008 dated 1-7-2008]---C.B.R. Circular No.7 of 2008, dated 19-7-2008---C.B.R. Circular No.8 of 2008, dated 5-9-2008----Investment Tax Scheme, 2008---Scope---Assessee had filed its income tax returns, which being complete, were treated and taken by the department to be an assessment of taxable income for the relevant tax years --Department, in exercise of powers under S.122(1) read with S.122(5) of the Income Tax Ordinance, 2001, initiated proceedings to amend the assessments--Assessment for one year stood amended by virtue of an order which was challenged before Commissioner of Income Tax (Appeals) while in rest of the years amendment proceedings were initiated and statutory notices were issued---Pending the said proceedings S.120-A was inserted in the Income Tax Ordinance, 2001 through Finance Act, 2008 whereby the Federal Board of Revenue was empowered to make a scheme for payment of investment lax in respect of undisclosed income, representing any amount or investment made in movable or immovable assets---Federal Board of Revenue subsequently, issued Investment Tax Scheme, 2008 through Circular No.3 of 2008, dated 1-7-2008 in pursuance of which assessee filed a declaration in respect of its yearwise computed undisclosed, untaxed and unexplained income on 15-7-2008 in accordance with the terms and conditions of the Scheme and paid all the taxes due thereon--After filing of declaration by the assessee, Federal Board of Revenue issued a clarificatory Circular No.7 of 2008 on 19-7-2008 explaining that the Scheme was applicable to all undisclosed assets/income which could not he disclosed and remained unexplained and that issues pending in appeals or raised/detected by the department would be dealt with under normal law and not under the Scheme and that scope of the Scheme was limited to the proceedings covered by the Income Tax Ordinance, 2001 and the declaration made and tax paid under the Scheme, shall not absolve the declarant from any action under the provisions of other applicable law---Declaration filed by the assessee was accordingly rejected on the ground that pending proceedings did not qualify and were not covered under the schedule with the reason that notices under S.122(1) and (5) and S.111(1)(b) read S.111(2) of the Ordinance for remaining tax years had already been issued---Validity---Held, vested right had accrued in favour of the assessee the moment he had filed declaration in pursuance of the Scheme/Circular No.3 of 2008 and a subsequent amendment in the original Scheme could not be given retrospective effect by a subsequent act of the department to destroy the said right---Vested right could not be taken away by express words and necessary intendment---Legislature, though was also competent to amend, vary or repeal the same but the right conferred through Statute could only be taken away by Legislative enactment and not by an executive authority through notification in exercise of the rule-making powers or power to amend, vary or rescind an earlier order/notification in the proponed exercise of power conferred under S.21, General Clauses Act, 1897--Principles.?

Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917; Federation of Pakistan and others v. Ch. Muhammad Aslant and others 1986 SCMR 916; Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652 and Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and others PLD 1969 SC 599 ref.

(b) Income Tax Ordinance (XLIX of 2001)---

----Ss. 120-A & 120---Investment Tax Scheme, 2008 [C.B.R. Circular No.3 of 2008, dated 1-7-2008]--C.B.R. Circular No.8 of 2008 dated 5-9-2008---Amendment of Investment Tax Scheme, 2008 brought through C.B.R. Circular No.8 of 2008, dated 5-9-2008 was of substantive nature thereby restricting the scope of the Original Scheme and the state of law stood changed from the said date affecting the rights and liabilities of those who acted upon the scheme in good faith under its original scope C.B.R. Circular No.8 of 2008, dated 8-8-2008 therefore, could not apply retrospectively---Principles.

Shahzad Butt, Advocate Supreme Court and Sirajuddin Khalid, Advocate Supreme Court for Petitioner.

Shahid Jamil, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Mumtaz Ahmed Sh., Member (Legal) FBR for Respondents.

2009 S C M R 980

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

MUHAMMAD FARID KHATTAK and others----Appellants

Versus

CHIEF SECRETARY, GOVERNMENT OF N.-W.F.P. and others----Respondents

Civil Appeals Nos.650 to 652 of 2000, decided on 29th August, 2008.

(On appeal from the judgment, dated 6-1-2000 in Appeals Nos.13 of 1996, 14 of 1996 and 15 of 1996 passed by the N.-W.F.P. Service Tribunal, Peshawar).

(a) Civil service---

----Gradation and presumption of certain terms and conditions of a particular post---Held, it was for the government to place a particular post in any grade or prescribe certain terms and conditions therefor, as per its policy, and incumbents of a particular post could not claim as of right for settlement of prescription or provision of certain terms and conditions according to their own choice and it was always open for a candidate to accept or not the terms and conditions prescribed for a particular post.

Province of Punjab v. Kamaluddin and others PLD 1983 SC 126 and Ahmad Hussain v. Director of Education 2001 SCMR 955 distinguished.

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

----S. 4---Nobody has a vested right in policy decision of the Government and Service Tribunal is divested of power to indirectly set aside the public policy decision in exercise of its power under Service Tribunals Act, 1973 or rules framed thereunder.

(c) Civil service---

---Grant of status to a civil servant with retrospective effect-Scope--Held, a particular status could not be legally bestowed upon a civil servant with retrospective effect, even by a competent authority as he could not be legally made what he had never been---Persons discharging similar duties appointed in different departments may claim that they may be given the same status and benefits but a person, whose nature of duties is altogether different and his terms and conditions were also not alike, could not claim as of right that he may be allowed the same benefits and emoluments which were not part of and covered by the terms and conditions of his service----Government had the prerogative to determine terms and conditions of service of a particular post which could not be challenged.

Ahmad Hussain v. Director of Education 2001 SCMR 955 and Province of Punjab v. Kamaluddin and others PI,1) 1983 SC 126 distinguished.

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

----S. 4---Upgradation of status---Civil servant, under the garb and cloak of financial benefits could not demand upgradation of the post retrospectively from Service Tribunal, such being outside the scope and ambit of the Service Tribunal.

Syed Asif Shah, Advocate Supreme Court for Appellants (in all Appeals).

M. Bilal, Senior Advocate Supreme Court for Advocate-General, N.-W.F.P. for Respondents.

Date of hearing: 29th August, 2008.

2009 S C M R 985

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD ASLAM----Petitioner

Versus

SABIR HUSSAIN and others----Respondents

Criminal Petitions Nos.437 and 438 of 2008, decided on 13th February, 2009.

(On appeal from the judgment, dated 17-9-2008 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.1993 and 1996 of 2002).

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

----Ss. 302(b) & 308(2)/34 Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal----Evidence of conspiracy being fabricated was not worth reliance---Statement of the prosecution witness regarding extra-judicial confession allegedly made by accused before him was devoid of truth---Accused had no occasion for making such a confessional statement before the paternal first cousin of the deceased, who had not even tried to apprehend the accused alter their confession---Ocular testimony furnished by the sole eye witness stood belied by host of circumstances and her solitary evidence could not be safely relied upon in the absence of any corroboration from independent and unimpeachable source---Recovery of pistol from the accused though matched with one of the crime empties, was useless for the prosecution being open to doubts due to some overwriting and cutting in the recovery memo.----Medical evidence could not support the prosecution version's the event of the same having not been proved through trustworthy ocular account--No misreading or non-appraisal of evidence warranting interference could he pointed out in the impugned judgment of acquittal, which was neither fanciful nor conjectural Prosecution case was replete with doubts and infirmities---Occurrence appeared to have gone un-witnessed-- Leave to appeal was refused to complainant in circumstances.

Muhammad Rafique v. Mohabbat Khan and others 2008 SCMR 715; Qamar Zaman v. Waseem Iqbal and 5 others 2001 SCMR 1209 and Qalb-e-Abbas alias Nahola v. the State 1997 SCMR 290 ref.

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

----S. 164---Confession---Extra judicial confession---Evidence of extra-judicial confession is always treated as a weak piece of evidence.

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

----Ss. 302(b) & 308(2)/34---Evidence---Medical evidence--Scope and extent-- Medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of injury and kind of weapon used in the occurrence, but it would not connect the accused with the commission of the crime.

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

----S. 417---Appeal against acquittal---Principles---Law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied alter a finding of not guilty recorded by a competent Court of law Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non reading of evidence---Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 13th February, 2009.

2009 S C M R 994

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmud Jalal Osmany, JJ

BOARD OF TRUSTEES, KARACHI PORT TRUST----Petitioner

Versus

ORGANIZATION OF K.P.T. WORKERS and 2 others----Respondents

Civil Petition No.258-K of 2008, decided on 29th December, 2008.

(On appeal from the judgment, dated 25-2 2008 passed by High Court of Sindh, Karachi in I.R.A. No.6 of 2006).

(a) Industrial Relations Ordinance (XCI of 2002)---

----Ss. 61 & 59---Interpretation of awards and settlements---Locus standi to invoke jurisdiction of High Court---Scope---Expression "parties" occurring in S.61(2), Industrial Relations Ordinance, 2002 is referable to all parties bound by the terms thereof in terms of S.59 of the Ordinance---Worker could always approach the High Court under S.61 in cases of difficulty or doubts as to terms of a settlement to avoid fruitless litigation before a lower forum and in such proceedings the High Court is only required to interpret ambiguous terms and could not import its own concept of fairness and equity---Principles.

The statutory provision of section 61, Industrial Relations Ordinance, 2002 does not provide as to how and by whom the jurisdiction of the High Court is to be invoked. Apparently even a Labour Court adjudicating proceedings where a right arising out of a settlement is claimed, could also through a Reference seek interpretation of the terms of settlement in the event of genuine difficulty or doubt. Similarly any affected party could also move the High Court. Such view appears to be consistent with the scheme of the special law, which is intended to provide for early settlement of disputes between workers and employers and for adjudication of disputes by the Labour Court within a limited time frame. In such cases the High Court could, in the event of ambiguous provisions, undertake the process of interpretation to which the law attributes finality and thus, obviate the occasions of fruitless litigation before Labour Courts whose findings in any event would be amenable to the Appellate Jurisdiction of the High Court. Under the Industrial Relations Ordinance, 1969 a similar power was conferred upon the Labour Appellate Court, which was otherwise an Appellate Forum against decisions of Labour Courts. Moreover a restricted scope of the expression "parties" appears to be inconsistent with the principles of natural justice which are required to be read in all statutory provisions as well as the overall scheme of the Industrial Relations Ordinance which is required to be taken into consideration while interpreting a particular provision.?

Section 59(1)(b) of Industrial Relations Ordinance, 2002 requires that a settlement entered into by the C.B.A. is binding on all workers employed in the establishment. It would he highly incongruous to assume that while the terms of a settlement bind any worker he has no right to present his view point before a Court interpreting such terms. Indeed there may be cases when the C.B.A. entering into the settlement loses its status as such and is no longer interested in pursuing the cause of the beneficiaries of the settlement. ?

It is entirely incomprehensible that while a worker is a party to an industrial dispute (though represented by C.B.A.) he would he completely debarred from presenting his view point in proceeding where the terms of such settlement are being interpreted by a Court. There seems no justification for assuming that a worker who is party' to an industrial dispute and on whose behalf the C.B.A. (as his representative) has entered a settlement should be excluded from the purview of the expression "parties" occurring in section 61(2). ?

Section 61 is to be read together with section 59 and the expression "parties" occurring in section 61(2) is referable to all parties bound by the terms thereof in terms of section 59. When a registered trade union (which is an entity itself) enters into a settlement with the employer in the capacity of a collective bargaining agent, it does so only in its representative capacity duly acknowledged by law on behalf of workmen whom it represents and who are parties to the dispute in terms of section 43. The position is further clarified by section 59(2) which stipulates that any settlement between an employer and a trade union otherwise than in the course of conciliation proceedings, will only he binding on the parties thereto i.e. the employer and the union but not the workers. Every worker bound by the terms of the settlement is, strictly speaking, a party to proceedings relating to interpretation of such settlement under section 61. Nevertheless it needs to be clarified that in case the employer approaches the High Court for such interpretation a notice to the C.B.A. representing the workers at the time of hearing might be treated as sufficient notice to all workers. However, this would not preclude any individual worker to approach the High Court on his own in his capacity as a party to industrial dispute leading to the settlement or being otherwise hound by its terms.?

Organisation of workers being neither a party to the settlement nor enjoying the status of a C.B.A. to represent workers had no locus standi to move the High Court. However, the right of the worker, who opted for the Golden Hand Shake, to do so could not be questioned and the application on his behalf was clearly maintainable. Indeed when a worker claimed a right arising out of the terms of the settlement which is contested by the employer some process of interpretation of such terms would always be involved even while deciding the application under section 46 of industrial Relations Ordinance, 2002 and the decision would be amenable to the Appellate Jurisdiction of the High Court under section 48. Keeping in view the dominant intent of the legislature requiring early settlement of disputes a worker could always approach the High Court under section 61 in cases of difficulty or doubts as to terms of a settlement to avoid fruitless litigation before a lower forum. in such proceedings the High Court is only required to interpret ambiguous terms and could not import its own concept of fairness and equity.?

In the settlement, in the present case, with reference to demand it was expressly stipulated that the benefits under the settlement would be available to those employees who had "normally" retired after 1-4-2004 and not to those who had been relieved under the Golden Hand Shake Scheme. The settlement was entered into on 25-6-2005 and retrospective effect was given only for the benefit of those who had "normally" retired. The addendum extended the benefit to ad hoc and casual workers but once again those having received golden handshake were excluded. It was made explicitly clear that those retiring in normal course constituted a category separate from those relieved under the Golden handshake Scheme.

The Golden Handshake Scheme, in the present case, showed that several additional financial benefits were granted to those having opted for voluntary retirement. Evidently, the settlement drew a clear distinction between those retired normally(without the benefit of the scheme) and those opting for retirement under the aforesaid scheme. The benefits under the settlement were only made available to the former category, because the latter had already become entitled to additional financial benefits under the scheme.?

No discrimination was invalid. Reasonable classification is always permissible in terms of Article 25 of the Constitution which guarantees equality and equal protection of law. The classification made in the settlement appears to be perfectly rational inasmuch as only those employees have been excluded from its benefit who became entitled to substantial benefits under the scheme. On the other hand a discrimination premised merely on the date of actual release of employee from service could have been less reasonable.?

An agreement to deprive employees of their lawful rights contradictory to the mandatory provision of law was not valid. Guaranteed rights of workers could not be taken away through a settlement. In the present case existing rights were not disturbed and merely some additional benefits were being conferred. The optees of voluntary retirement scheme were excluded for good and proper reasons, in view of their having availed substantial benefits under the scheme, which were not available to those retiring in normal course.?

Each and every financial benefit under a settlement must invariably be extended to every workman employed in the establishment on the elate of the execution of the settlement it is always permissible to C.B.A. to raise demands with respect to certain categories of workmen. Indeed some benefits could he claimed for a category of workers i.e. those undertaking work of hazardous nature or suffering some disadvantage but the settlement could not be set aside unless it was found to be contrary to law. Indeed a settlement causing invidious discrimination amongst workmen may offend Article 25 of the Constitution and hence unlawful, but when the classification is perfectly fair and rational, no illegality can be attributed. ?

The application on behalf of the employee who had opted for Golden Hand Shake was maintainable, there seems no reason to hold him entitled to financial benefits arising from the settlement.

Muhammad Rashid v. Balochistan Labour Appellate Tribunal 1995 PLC 242 overruled.

Muhammad Rasheed and 13 others v. Chairman, Balochistan Labour Appellate Tribunal and 3 others 1995 PLC 242; Khyber Zaman and others v. Governor, State Bank of Pakistan, Karachi and others 2005 SCMR 235 and Qayum Nawaz v. N.-W.F.P. Small Industries Development Board 1999 SCMR 2331 ref.

(b) Industrial Relations Ordinance (XCI of 2002)---

----Ss. 59, 60 & 61---Constitution of Pakistan (1973), Art.25---Entitlement of workers to benefits under settlement---Reasonable classification---Permissibility---Principles.?

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Petitioner.

Abdul Mujib Pirzada, Senior Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No. 1.

Malik Hay Nawaz, President, Worker Union, K.P.T. Respondent No.2.

Jalil Shah, General Secretary, Labour Union, K. P T Respondent No.3.

Date of hearing: 26th November, 2008.

2009 S C M R 1005

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

KARACHI TRANSPORT CORPN. and another----Petitioners

Versus

MUHAMMAD HANIF and others----Respondents

Civil Petitions Nos.481-K and 482-K of 2008, decided on 25th February, 2009.

(On appeal against the judgment, dated 10-10-2008 passed by high Court of Sindh, Karachi in H.C.As. Nos.296 and 297 of 2002).

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

----S. 6--- Legal disability--- Extending of period of limitation---Principle---Extended period of limitation has been made available to persons suffering from a legal disability--Such benefit cannot be availed merely because of a possibility to sue through next friend or even upon filing a suit during period of minority.

(b) Fatal Accidents Act (XIII of 1855)---

----S. 1---Constitution of Pakistan (1973), Art.185(3)---Recovery of damages---Employer, liability of---Acquittal in criminal case---Effect---Suit filed by plaintiffs was decreed in their favour and decree was maintained by Division Bench of High Court-- Plea raised by defendants was that accident was not met due to any negligence but it took place due to failure of brakes, therefore, driver had been acquitted by court in criminal trial from same incident wherein witnesses had admitted failure of brakes---Validity--- Employer was always vicariously liable for acts of its employees performed in the course of duties---Standards of appraisement of evidence in criminal and civil cases were altogether different and findings of criminal court would not be binding on civil court---Even judgment of criminal court or deposition of defendant's witnesses were not placed on record---Supreme Court was not to sit in judgment over appraisal of evidence undertaken in concurrent findings of courts below in civil disputes---Supreme Court declined to interfere in concurrent judgments and decrees passed by two Courts below---Leave to appeal was refused.

Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550; Muhammad Aqil Khan v. Akhtar Hussain and others PLD 1971 Kar. 864; Mariyum and 3 others v. Ali Bahadur 1991 CLC 692 and Karachi Electric Supply Corporation through Secretary v. Aisha Kanwal and 3 others 2000 MLD 697 ref.

Abdul Fateh Malik, Additional A.-G. Sindh and Suleman Habibullah, Advocate on-Record for Petitioners.

Nemo liar Respondents.

2009 S C M R 1008

[Supreme Court of Pakistan]

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

MUSHTAQ AHMAD KIANI----Petitioner

Versus

BILAL UMAIR and others----Respondents

Civil Petition No.18 of 2009, decided on 3rd February, 2009.

(On appeal from the judgment of Islamabad High Court, Islamabad, dated 6-11-2008 passed in Writ Petition No. 1177 of 2008).

Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17(8)(9)---Ejectment application---Tenant was directed under S.17(8) of Islamabad Rent Restriction Ordinance, 2001 to deposit rent on or before specified date which he failed to do---Effect---Provision of S.17(9), Islamabad Rent Restriction Ordinance, 2001, was mandatory; consequences of non-deposit or non-compliance of the order of Rent Controller having been given in S.17(9) of the Ordinance, no discretion was left with the Rent Controller except to order ejectment of the tenant without further proceedings---Principles.

Raja Muhammad Bashir, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd February, 2009.

2009 S C M R 1010

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

Messrs INTENSIVE AGRICULTURAL PRODUCTION PROJECT COOPERATIVE SOCIETY LTD. through General Secretary----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another----Respondents

Civil Petition No.124 of 2009, decided on 5th March, 2009.

(On appeal from the judgment, dated 26-1-2009 of the Islamabad High Court, Islamabad passed in Writ Petition No.1483 of 2008).

Lease---

----Allotment of land for 33 years by Development Authority---Allottee was required to pay premium in eight equal instalments which it kept on depositing and no dispute arose till payment of seven instalments which were accepted' without any objection---Authority had asked the allottee to deposit outstanding amount and when the allottee deposited the same, it was returned after about nine months, being barred by time and the allotment was cancelled---Authority had failed to show as to why the instalment was returned after lapse of about nine months and whether any notice before cancelling the allotment was served upon the allottee---Effect---Act of the Authority was based on mala fide intention, arbitrariness and against the principles of natural justice---Authority was aware of the improvements made by the allottee and due to escalation of prices cancelled the allotment for selling same at a higher price---Record showed that allottee had paid almost all the premium and the dispute was only with regard to payment of delayed charges and allottee had conceded that he was ready to clear all outstanding dues against it---Supreme Court, converted petition for leave to appeal into appeal and set aside-the order of cancellation of allotment and directed the allottee to deposit outstanding dues including 8th instalment within three days and compliance report be submitted with the Registrar of Supreme Court.

Shoaib Shaheen, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Abdul Karim Kundi, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

2009 S C M R 1014

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sarmad Jalal Osmany, JJ

BASHIR AHMED----Appellant

Versus

ABDUL AZIZ and others----Respondents

Civil Appeal No.372 of 2005, decided on 12th March, 2009.

(On appeal from judgment of Lahore High Court, Multan Bench, Multan, dated 1-3-2005 passed in Civil Revision No.963 of 2001).

(a) Islamic law---

----Inheritance---Whenever a Muslim claims inheritance, the rule of law shall be the Muslim Personal Law (Shariat) and the party placing reliance upon custom shall have to prove the existence thereof.

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

----S. 2-A---Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), Preamble---Inheritance---Custom---Once it is settled that rule of inheritance at certain time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat) provided such acquisition had occurred prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948 and such devolution had been declared absolute by S.2-A, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

Syed Ishtiaq Haider, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellant.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Respondents Nos.1 and 2.

Other Respondents: Ex parte.

Date of hearing: 12th March, 2009.

2009 SCMR 1018

[Supreme Court of Pakistan]

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

FEDERATION OF PAKISTAN and another----Petitioners

Versus

IRFAN TARIQ and others----Respondents

Civil Petition No.725 of 2008, decided on 26th February, 2009.

(Against the order of the Islamabad High Court, Islamabad, dated 14-4-2008 passed in Writ Petition No.918 of 2005).

Competitive Examination Rules, 2002---

----Para. 11---Candidate from N.-W.F.P. having succeeded in C.S.S. Competitive Examination, 2003 was deprived of the department of his first choice, on the ground that said seat was utilized in advance for another candidate who appeared in C.S.S. Competitive Examination, 2001 and he had domiciled from N.-W.F.P. and there was a court order for such utilization of the seat---Public Service Commission had never requested or advised the Establishment Division to substract a seat from N.-W.F.P. quota for the said department in advance i.e. for C.S.S. Competitive Examination for the year 2003---Such substraction/deduction which neither had the backing of law, rules or any departmental instructions or order, had the effect of depriving the candidate of a seat which otherwise would have accrued to him---Held, the procedure adopted by the authorities was against the law.

Federation of Pakistan v. Muhammad Tayyab 2006 SCMR 326 fol.

Shah Khawar, D.A.-G. and M.S. Khattak, Advocate-on-Record for Petitioners.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent No.2.

Hafiz Zahoor, Adnm. Officer for Respondent No.3.

Date of hearing: 26th February, 2009.

2009 S C M R 1022

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

AHMAD JAN and others----Petitioners

Versus

Qazi AZIZUL HAQ and others----Respondents

Civil Petition No.38-P of 2008, decided on 6th November, 2008.

(On appeal from the order, dated 7-2-2008 of the Peshawar High Court, Peshawar passed in Review Petition No.42 of 2006).

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

----Art. 162---Review---Limitation---When a petition is dismissed by the High Court in the exercise of its original jurisdiction, the application for review is governed by the provisions of Art.162 of the Limitation Act, 1908, which provide that a review application can be filed within 20 days from the date of the order or judgment---Application having been filed beyond the period of limitation, was barred by time.

Nigar Bibi v. Salahuddin Khan PLD 1991 SC 197; Hafiz Abdul Khalique v. Government of Sindh PLD 2007 Kar. 374 and Desmond Vas v. K.B.C.A. PLD 2005 Kar. 161 ref.

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

----Art. 162 & S.5---Delay in filing review petition---Condonation of delay---Party had neither requested for condonation of delay in filing of review petition nor the Court condoned the delay---Simple permission to file the review petition could not condone the delay---Party having not filed application under S.5 of the Limitation Act, 1908 for the condonation of delay in filing of review petition, it was an error to entertain the review petition by the High Court.

Barrister Masood Kausar, Advocate Supreme Court for Petitioners.

Tasleem Hussain, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 to 9.

Date of hearing: 6th November, 2008.

2009 S C M R 1025

[Supreme Court of Pakistan]

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

ABID HUSSAIN----Petitioner

Versus

CHAIRMAN, NESCOM, ISLAMABAD and another----Respondents

C.P.L.A. No.33 of 2009, decided on 26th January, 2009.

(On appeal from judgment, dated 16-12-2008 of Federal Service Tribunal, Islamabad passed in Appeal No.1107(R)(C.W.) of 2004).

(a) Civil service---

----Removal from service---Charge against the civil servant was that he attempted to rape a lady who had visited the place of his work---Said charge was fully proved during regular inquiry conducted by the Committee; he had fully been associated with the proceedings; the witnesses were examined in his presence; he cross-examined them according to his choice, was given show-cause notice and above all, he had confessed his guilt in writing---Charge against the accused having been proved, no exception could be taken to such action against him.

(b) Civil service---

----Recommendations of Enquiry Committee---Inquiry Officer had recommended the stoppage of promotion for a period of 14 years but competent authority, not agreeing with the quantum of punishment, ordered removal of civil servant from service---Validity---Competent authority had every jurisdiction and power to disagree with the Inquiry Officer, especially on the quantum of punishment---In the present case, show-cause notice was served on the civil servant after submission of inquiry report and it was clarified to him that the punishment involved could include dismissal from service---Civil servant, in circumstances, was not condemned unheard.

2008 SCMR 1174 distinguished.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th January, 2009.

2009 S C M R 1027

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Syed Zawwar Hussain Jaffery, JJ

MAZHAR BUTT----Petitioner

Versus

JAWAID IQBAL and another----Respondents

Civil Petition No.491-K of 2008, decided on 19th December, 2008.

(On appeal from the order, dated 3-11-2008 passed by High Court of Sindh at Karachi in F.R.A. No.7 of 2008).

Bias---

----Bias in a Judge---Mere institution of a suit on behalf of Banking Company against some borrower/defendant (petitioner in the present case) during his legal practice by a Judge would not be enough reason to preclude the Judge from hearing a matter that too after a period of more than one and half decade, unless there was an eminent act to reasonably assume the grudge, hostility or bias---If, however, some apprehensions of such kind occurred in the mind of the litigant, the same could have been brought to the notice of the Judge, who, then, in all fairness should have stayed off his hands---Where no such attempt had been made, such plea of bias appeared to be an afterthought, and had to be repelled.

Muhammad Younus, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 19th December, 2008.

2009 S C M R 1030

[Supreme Court of Pakistan]

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

Mian MUHAMMAD ASIF----Appellant

Versus

FAHAD and another----Respondents

Civil Appeal No.2237 of 2008, decided on 17th March, 2009.

(On appeal against the judgment, dated 29-10-2008 passed by the Lahore High Court, Lahore, in Writ Petition No.6627 of 2008).

Civil Procedure Code (V of 1908)---

----O. XVII, R.2 & O.IX, R.3---Limitation Act (IX of 1908), Arts.181 & 163---Dismissal of suit for non-prosecution---Application for restoration---Limitation---Order of the Trial Court whereby the suit was dismissed for non-prosecution did not mention that the same was being dismissed under O.IX, R.3, C.P.C. but it was apparent that the Trial Court had proceeded under O.IX, R.3, C.P.C.---Article 181 of the Limitation Act, 1908, in circumstances, was not attracted and courts correctly applied Art.163 of the Limitation Act, 1908 while considering the application for condonation of delay in moving the application for restoration of the suit---No ground, in the present case, had been made out for condoning the delay in filing of the application for restoration of suit---Issue of limitation lost its importance when party had failed to show any cause for his absence and that of his counsel on the relevant date---Even otherwise, the court was not bound to restore the suit merely because the restoration application was within time.

Hassomal Tillumal v. Ghulam Nabishah AIR (36) 1949 Sind 26, Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan and Punjab Small Industries Corporation, Lahore PLD 1981 SC 21 and Yousaf Raza Hussain v. The IVth Additional District Judge South, Karachi and others 1987 MLD 2989 distinguished.

Syed Iftikhar Hussain Shah, Advocate Supreme Court for Appellant.

A.G. Tariq Ch., Advocate Supreme Court for Respondent No.1.

Date of hearing: 17th March, 2009.

2009 S C M R 1034

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

PROVINCE OF PUNJAB through Chief Secretary and another----Petitioners

Versus

SAMUEL BHATTI and others----Respondents

Civil Petition No.975-L of 2008, decided on 14th April, 2009.

(Against order, dated 21-5-2008 of the Lahore High Court, Lahore passed in Writ Petition No.10293 of 2006).

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

----Art. 25---Equality of citizens---Reasonable classification---State is not prohibited to treat its citizens on the basis of reasonable classification and it is not the intention of Art.25 of the Constitution that every citizen is to be treated alike in all circumstances, however, it would be applicable on the persons similarly placed or similarly situated---Where the persons were neither similarly placed nor were discriminated, Art.25 of the Constitution was not attracted/applicable.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 ref.

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

----Art. 199---Constitutional petition---"Aggrieved person"---Persons who were arrayed as respondents in the constitutional petition and had not agitated the matter before the High Court were not at all "aggrieved persons" within the contemplation of law and were not entitled to the award of relief by the High Court.

Tahir Munir Malik, Additional A.-G. for Petitioners.

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents Nos.1-10, 12-20 and 22-26.

Date of hearing: 14th April, 2009.

2009 S C M R 1037

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

ZULFIQAR ALI----Petitioner

Versus

Mst. SHAZIA BIBI and others----Respondents

Civil Petition No.1698-L of 2008, decided on 9th April, 2009.

(On appeal from the judgment, dated 17-9-2008 passed by the Lahore High Court, Lahore in Writ Petition No.5091 of 2008).

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 9(2)---West Pakistan Family Courts Act (XXXV of 1964), S.5---Wife having filed suit for maintenance for herself and minor children, against husband prior in time before the Judge, Family Court, petition under S.9(2), Muslim Family Laws Ordinance, 1961 before the Chairman Arbitration Council was not competent, as she had already resorted to the remedy of the exclusive jurisdiction of Family Court--Principles.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

---S. 9(2)---Application by a divorced wife for grant of maintenance for herself and minors to Chairman, Arbitration Council---Certificate by the Chairman, Arbitration Council had been issued in a mechanical way, without noticing that husband had already divorced her on 15-3-2007---Tenor of the Certificate issued displayed that divorced wife was granted maintenance from 1-5-1999 onwards without its point of culmination, which could not be awarded to divorced wife---Order of High Court upholding such certificate was set aside by Supreme Court.

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 9(2)---Application of wife for grant of maintenance for herself and minor children---Arbitration Council granting certificate for maintenance from 1-5-1999 while the couple got married on 3-4-1999 and divorced 15-3-2007---No proof was available on record to the effect that lady was not being maintained by husband during said period, particularly when the children were also born from the marital tie---Lady having not claimed maintenance and no protest was made by her during the period prior to it nor any evidence to that effect was brought and proved on the record, Supreme Court declined to approve the grant of maintenance through the impugned certificate which was illegal.

(d) Muslim Family Laws Ordinance (VIII of 1961)---

---S. 9(2)---Grant of certificate for, wife and minors by Arbitration Council---Scope---Arbitration Council had no jurisdiction, power or authority to grant maintenance for a period of more than three years.

Controlling Authority/Collector, Sialkot v. Chairman, Arbitration Council and others 1989 MLD 145 and Muhammad Nawaz v. Mst. Khurshid begum and 3 others PLD 1972 SC 302 ref.

(e) West Pakistan Rules under Muslim Family Laws Ordinance, 1961---

---R. 7(1)---Constitution of Arbitration Council---Essentials---Where no representative was got appointed by the husband, in case of issuing a maintenance certificate for wife and minor children, and nothing was brought on the record that husband was issued a notice under R.7(1) of the West Pakistan Rules under Muslim Family Laws Ordinance, 1961 calling upon him to nominate his representative, the Arbitration Council was not a properly and validly constituted Council---Order upholding the certificate issued by such Council was set aside by Supreme Court.

Muhammad Nawaz, Advocate Supreme Court and Syed Fayyaz Ahmad Sherazi, Advocate-on-Record for Petitioner.

Ali Baqir, Advocate Supreme Court for Respondent No.1.

Date of hearing:, 9th April, 2009.

2009 SCMR 1042

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

Criminal Petition No.231-L of 2008

MUHAMMAD ILYAS----Petitioner

Versus

THE STATE----Respondent

(Against the judgment, dated 8-5-2008 of the Lahore High Court, Lahore passed in Criminal Appeal No.1900 of 2002 and Murder Reference No.95 of 2003).

Criminal Petition No.181-L of 2008

MUHAMMAD ASLAM----Petitioner

Versus

THE STATE and another----Respondents

(Against the judgment, dated 8-5-2008 of the Lahore High Court, Lahore passed in Criminal Appeal No.1900 of 2002 and Murder Reference No.95 of 2003).

Criminal Petitions Nos.231-L and 181-L of 2008, decided on 27th March, 2009.

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

----S. 382-B---Penal Code (XLV of 1860), S.302(b)---Benefit of period spent in judicial lock-up---Contention of accused was that High Court converted death sentence into imprisonment for life but did not award him benefit of S.382-B Cr.P.C.---Validity---High Court in its judgment did not at all advert to and conveniently skipped over to consider such aspect of the case---Courts had discretion either to grant or decline benefit of S.382-B, Cr.P.C. to a convict but it was equally true that such discretion should be exercised judicially---Accused was entitled to benefit of S.382-B, Cr.P.C. and High Court should have exercised its discretion in his favour --Supreme Court converted petition for leave to appeal into appeal and modified judgment passed by High Court to the extent that benefit of S.382-B, Cr.P.C. be granted to accused---Appeal was allowed.?

Mukhtar-ud-Din v. The State 1997 SCMR 55 rel.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Sudden act---Mitigating circumstances---Reduction in sentence---Accused was convicted and sentenced to death by Trial Court but High Court converted sentence of death into imprisonment for life---Validity---High Court, after giving cogent reasons regarding existence of mitigating circumstances and after concluding that it was sudden act on his part, rightly converted death sentence of petitioner into life imprisonment, which findings were not open to any exception---Supreme Court declined to reverse findings of High Court as conversion of death sentence into life imprisonment was based on sound judicial principles and mitigating circumstances recognized under law.?

Abdul Rasheed alias Babu v. the State 1984 SCMR 1184 rel.

Ch. Manzoor Hussain Basra, Advocate Supreme Court for Petitioner (in Criminal Petition No.231-L of 2008).

Alamgir, Additional Prosecutor-General for the State (in Criminal Petition No.231-L of 2008).

Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner (in Criminal Petition No.181-L of 2008).

Alamgir, Additional Prosecutor-General for the State (in Criminal Petition No. 181-L of 2008).

Date of hearing: 27th March, 2009.

2009 S C M R 1045

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

ALLAH RAKHA through L.Rs. and others----Petitioners

Versus

MUHAMMAD RIAZ and others----Respondents

Civil Petition No.2768-L of 2001, decided on 9th April, 2009.

(On appeal from the judgment, dated 22-5-2001 passed by Lahore High Court, Lahore in R.S.A. No.241 of 1981).

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

----S. 12---Suit for specific performance of agreement to sell---Original document' of agreement to sell executed in favour of vendee by the vendors was admittedly not produced---Other documents produced were at the most containing acknowledgment---Suit, in circumstances, was not competent and rightly dismissed.

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

----S. 12---Suit for specific performance of agreement to sell---Original document of agreement to sell executed in favour of vendee by the vendors was admittedly not produced---Vendors, even if had admitted that they had settled the transaction of sale with the plaintiffs and that agreement to sell was executed in favour of another person as a Benamidar of real beneficiaries of the alleged agreement of sale, contract of sale having not been directly entered into with the vendors, by plaintiffs, no relief could be granted to the plaintiffs---Plaintiffs had failed to bring on record the original or even copy of the agreement to sell, which was allegedly entered into by the vendors, such document being the primary document, upon which the foundation of whole of the suit was laid, having not been produced, the suit .was rightly held incompetent and no privy of contract existed between the plaintiffs and the vendors because they were not party to the alleged agreement to sell.

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

----S. 12---Suit for specific performance of agreement to sell---Original document of agreement to sell executed in favour of vendee by the vendors was admittedly not produced---Acknowledgment in favour of third party, namely, the plaintiffs could not be permitted and accepted unless, it was endorsed and ratified by the vendors---Alleged acknowledgement in favour of plaintiffs could not be acted upon unless it was accepted by the vendors---Such acknowledgment was ineffective as against the subsequent purchasers, who had no knowledge of the alleged Benami nature of the transaction---Ingredients necessary to prove Benami transaction being also missing in the evidence, suit was rightly dismissed.

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

----S. 12---Suit for specific performance of agreement to sell---Limitation---Such suit was admittedly instituted after a period of three years from the date of execution of the registered sale-deed by vendors on 24-12-1969---Sale transaction was clearly a refusal on the part of vendors/owners, that the agreement of sale, if any made, with the alleged purchasers-plaintiffs on 6-4-1957 was not going to be performed and completed---Suit having been filed after three years from 24-12-1969 was clearly barred by time.

Malik Abdus Sattar Chughtai, Advocate Supreme Court for Petitioners.

Niamat Ali, Advocate Supreme Court for Respondents Nos.1 to 4 and 6 (Respondent No.3 in person).

Date of hearing: 9th April, 2009.

2009 SCMR 1051

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman----Petitioner

Versus

GHULAM SHABBIR and others----Respondents

Civil Petition No.2718-L of 2004, decided on 20th May, 2009.

(On appeal from the judgment, dated 7-4-2004 of the Lahore High Court, Multan Bench passed in R.F.A. No.51 of 1988).

Land Acquisition Act (I of 1894)---

----S. 18---Constitution of Pakistan (1973), Art.185(3)---Acquisition of land---Beneficiary of acquired land has no right and locus standi to either file reference against the award of compensation or appeal against the judgment arising out of the reference under S.18, Land Acquisition Act, 1894---Petition for leave to appeal by the beneficiary being not maintainable, was dismissed by Supreme Court.

Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485; Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East Karachi) and others 1989 SCRM 812; Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193; Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245; Pakistan through Military Estate Officer, Kharian Cantt. and another v. Hayee Khan through legal heirs and 5 others PLD 1995 SC 418; Federation of Pakistan and another v. Abdul Hayee Khan and, others 1996 SCMR 1389; Defence Department of Pakistan through Secretary, Ministry of Defence v. Province of Punjab and another 2006 SCMR 402 and IBP Pakistan Exploration and Production v. Sher Ali Khawaja and another PLD 2008 SC 400 rel.

Hafiz Muhammad Yousuf, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2009 SCMR 1052

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

Mst. NASEEM AKHTAR----Appellant

Versus

DISTRICT JUDGE, MULTAN and others----Respondents

Civil Appeals Nos.159 and 160-L of 2009 in C.Ps.Nos.306 and 307-L of 2009, decided on 19th May, 2009.

(On appeal from the judgment, dated 26-12-2008 of the Lahore High Court, Multan Bench passed in Writ Petitions Nos.7434 and 7435 of 2008).

Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Welfare of minor---Minor girl of about 8 years---Keeping in view the age of minor, there should be a woman to look after the minor, there being no lady in the house of father to look after her, her maternal grandmother who appeared to be healthy and having permanent source of income and she stated that she would not claim maintenance allowance of minor from the father, it was in the welfare of the minor that she should remain with the maternal ­grandmother---Father, may repeat application for custody after about 5 years when minor becomes of some mature understanding and attains the age of 13 years, his application shall be decided on merits in accordance with law---Father having right to meet the minor, the grandmother shall bring the minor twice a month in the court of Civil Judge on 1st and 3rd Saturday of every month at specified time for meeting with father.

Ghulam Farid Sanotra for Appellant (in both cases).

Rana M. Zahid for Respondent No.3 (in both cases).

Date of hearing: 19th May, 2009.

2009 S C M R 1055

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

GOVERNMENT OF PUNJAB and others----Petitioners

Versus

Haji ABDUL GHAFOOR and others----Respondents

Civil Petitions Nos.2710, 2711-L and 2712-L of 2004, decided on 20th May, 2009.

(Against order, dated 29-6-2004 of the Lahore High Court, Multan Bench, Multan passed in I.C.As. Nos.10, 11 and 12 of 2004).

Auction---

----Vested right---Past and closed transaction---Respondents, in the present case, had purchased plots in a market in an open auction, deposited initial amounts and thereafter without payment of remaining amounts, statedly, constructed buildings of shops within stipulated time frame---Respondents filed applications before the Secretary to the Government, explaining causes for non-payment of balance amount and seeking extension in time to deposit the remaining amount, which applications were duly processed and ultimately the Director of the Department allowed in writing to the respondents to deposit the amount on certain terms and conditions and subject to payment of penalty amount---Secretary to the Government, subsequently, without hearing the respondents set aside the order of the Director and cancelled/restored said plots and notices were issued to the respondents informing them that their plots were cancelled and thus they should surrender the shops---Validity---Held, when the terms of letters from the Director were faithfully obeyed by the respondents, then a vested right had accrued in favour of respondents and the authorities, without opportunity of hearing to the respondents, could not be allowed to retract from the said letter, which was duly implemented and executed and the matter became past and closed transaction---Principles---High Court had rightly decided the matter in favour of the respondents and Supreme Court declined to take contrary view, in circumstances---Petition for leave to appeal was dismissed---Constitution of Pakistan (1973), Art.185(3).

M.A. Ghani Chaudhry, Advocate Supreme Court for Petitioners (in all Petitions).

Nemo for Respondents (in all Petitions).

Date of hearing: 20th May, 2009.

2009 SCMR 1058

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

GUL SHAH and others----Appellants

Versus

Hafiz GHULAM MUHAMMAD and others----Respondents

Civil Appeals Nos.226 and 227 of 2004, decided on 11th May, 2009.

(On appeal from the judgment, dated 10-10-2003 passed by the High Court Balochistan, Quetta in Civil Revision No.129 of 2002).

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

----S. 14---Jurisdiction of Civil Court though was barred under S.14, Evacuee Trust Property (Management and Disposal) Act, 1975 in ordinary cases, but were mala fide and malice was attributed to the functionaries of the Government Civil Court was the court of ultimate jurisdiction and could decide the matter in accordance with law---Principles.

Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 ref.

Evacuee Trust Property Board through Assistant Director, Evacuee Trust Properties, Gujrat v. Muhammad Siddique alias Bandoo and others 1995 SCMR 1748; Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313 and Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another 2000 SCMR 1 distinguished.

Iftikhar-ul-Haq, Advocate Supreme Court and Kamran Murtaza, Advocate Supreme Court for Appellants in Civil Appeals Nos.226 and 227 of 2004).

Qahir Shah; Advocate Supreme Court for L.Rs. of Respondent No.1.

Kamran Murtaza, Advocate Supreme Court for Respondents Nos.3 and 4 (in Civil Appeal No.226 of 2004).

Date of hearing: 11th May, 2009.

2009 SCMR 1062

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

SAIMA AHMED----Petitioner

Versus

TANVIR AHMED and others----Respondents

Civil Petition No.696-L of 2009, decided on' 20th May, 2009.

(Against order, dated 11-2-2009 of the Lahore High Court, Lahore passed in Writ Petition No.17469 of 2008).

Guardians and Wards Act (VIII of 1890)---

----Ss. 25 & 12---Constitution of Pakistan (1973), Art.185(3)---Custody of minor---Welfare of minor--Pending proceedings on the petition, father applying for permission to visit the minor girl---Order of proposed arrangement made by High Court was neither just nor equitable and proper, as the agonies of both the parties were in fact multiplied---Arrangement made by the Additional District Judge, under the circumstances, was fair equitable and was not only in the interest and welfare of minor, but also reasonably protected the rights of both the. parties---Said order of the District Judge was to the effect that "father may have meeting with his minor daughter on the first Saturday and third Saturday of every month for a period of two hours either' within the premises of Trial Court or at the office/chamber of counsel for the mother and in that respect parties may submit their understanding to the Trial Court"---Supreme Court converted petition for leave to appeal into appeal, allowed the same and order of the High Court was set aside and that of Additional District Judge was restored with the slight modification that the "father shall meet the minor on the first and third Saturday of every month for a period of two hours in the Court Room/Chamber of the Guardian Judge"---Guardian Judge seized of the matter was directed to decide the main petition on the specified date under intimation to the Supreme Court office.

Shireen Qasim Khan v. Ashfaque Ahmed Sharif 2008 SCMR 1514 distinguished.

M. Iqbal, Advocate Supreme Court for Petitioner.

M. Saleem Chaudhry, Advocate Supreme Court and Mrs. Tasnim Amin, Advocate-on-Record for Respondent No.1.

2009 S C M R 1066

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

MUHAMMAD AKRAM and 9 others----Petitioners

Versus

MUHAMMAD YOUSAF and another----Respondents

Criminal Petition No.17-Q of 2007, decided on 11th May, 2009.

(On appeal from the judgment, dated 10-5-2007 of the High Court of Balochistan, Quetta passed in Criminal Revision No.97 of 2006).

Illegal Dispossession Act (XI of 2005)---

----S. 3(1) & (2)---Scope and application of S.3(1)(2) of the Illegal Dispossession Act, 2005---Essentials for complainant to allege and show before the court and the defence line of the accused enumerated.

The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants.

The provisions of subsection (1) of section 3 of the Illegal Dispossession Act, 2005 are in the form of preventive provisions. The section begins with the words: "no one shall...". This is a prohibitory mandate. There is no restriction as to the class of persons. All persons have been prohibited to commit the offence detailed in this provision, be he male or female. In order to constitute an offence under section 3(1) of the Illegal Dispossession Act, 2005, the complainant is to allege and show before the Court:--

(i) That the complainant is the actual owner (or occupier i.e. in lawful possession) of the immovable property in question.

(ii) That the accused has entered into (or upon) the said property.

(iii) That the entry of the accused into (or upon) the said property is without any lawful authority.

(iv) That the accused has done so with the intention to dispossess (to grab or to control or to occupy) the complainant.

The defence line for the accused can be:---

(1) that the complainant is not the actual owner of the property, (2) that the entry of the accused into the property is not to dispossess the complainant, (3) that the accused has the lawful authority to enter into the property, (4) that the accused had no intention to dispossess the complainant.

The law has made it clear that a person who is proved guilty shall not be saved from the punishment for which he may be liable under any other law for the time being in force.

The provisions of section 3(2) is salutary and mandatory. It is with the purpose to alleviate the suffering and is also effective deterrent against crime. The Legislature has taken full care to close all doors of any injustice to the parties.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 fol. Mehta W.N. Kohli, Advocate-on-Record for Petitioners.

Naeem Akhtar Afghan, Advocate Supreme Court for Respondent No.1.

Date of hearing: 11th May, 2009.

2009 S C M R 1070

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

TEHSIL MUNICIPAL ADMINISTRATION and others----Petitioners

Versus

NOMAN AZAM and others----Respondents

Civil Petition No.1011-L of 2008, decided on 20th May, 2009.

(Against judgment, dated 18-6-2008 of the Lahore High Court, Lahore passed in Writ Petition No.5775 of 2007).

Punjab Local Governments (Tax on Transfer of Immovable Property) Rules, 2001---

----R. 3---Punjab Local Governments (Taxation) Rules, 2001, R.9(2)--Constitution of Pakistan (1973), Art.185(3)---Tax on transfer of immovable property---Taxes and fees would take effect from the date of publication of notifications in the official gazette---Tax laws could not be applied retrospectively---Although powers had been given to the Local Councils to give a date for enforcement of the tax proposals, yet those could not be exercised so as to give retrospective effect to tax proposals/laws---Where the Local Council tried to give retrospective effect to the notification, R.9(2) of the Punjab Local Governments (Taxation) Rules, 2000 was not applicable, as the action of the Local Council was violative of the established law---Principles---Petition for leave to appeal was dismissed.

Muhammad Riaz Lone, Advocate Supreme Court for Petitioners.

Nemo for Respondent No.1.

Date of hearing: 20th May, 2009.

2009 S C M R 1073

[Supreme Court of Pakistan]

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

MUHAMMAD ANWAR----Petitioner

Versus

MUHAMMAD SUFFYIAN and another----Respondents

Criminal Petition No.58-L of 2009, decided on 11th May, 2009.

(Against the order, dated 17-12-2008 of the Lahore High Court, Lahore passed in Criminal Revision No.100 of 2008).

Juvenile Justice System Ordinance (XXII of 2000)--

----S. 7---Constitution of Pakistan (1973), Art.185(3)---Age of accused person---Proof---Scope---Entry of date of birth in the register "Dakhil Kharij" and in "Provisional Result Certificate" were not independent sources of information about the age of the accused because both the documents followed the information volunteered by the student himself or someone connected with him---Such documents, therefore, could not be found to be conclusive proof of the concerned person's date of birth---In the present case, evidence of date of birth offered by accused through birth certificates was a dubious affair and opinion of Medical Board that he was of about 19 years, having not been challenged, and proved before the High Court, had attained finality---Finding of Trial Court that accused was not a child at the time of occurrence, did not appear to be open to any exception---Supreme Court converted petition for leave to appeal of the complainant into appeal and allowed the same by setting aside the impugned judgment of the High Court.

Mian Ata-ur-Rehman, Advocate Supreme Court for Petitioner.

Mazhar Iqbal Sindhu, Advocate Supreme Court for Respondent No.1.

Alamgir, Additional Prosecutor-General for the State.

2009 S C M R 1077

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Zia Perwez, JJ

ABBAS ALI KHAN----Petitioner

Versus

Mst. FARHAT IQBAL and 2 others----Respondents

C.P.L.A. No.1866-L of 2008, decided on 12th February, 2009.

(On appeal from the judgment, dated 6-11-2008 of Lahore High Court, Lahore passed in Writ Petition No.12983 of 2008).

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

----S. 13---Ejectment of tenant on grounds of default and bona fide need of landlady---Tenant taking the plea that he was owner of the property on the basis of an agreement to sell executed by the landlady---Validity---Tenant had not filed any copy of the said agreement of sale with the petition and admitted that the original of same had been lost---Tenant had admitted the title of landlady in his pleadings and that he obtained the possession of the premises from her---Agreement to sell, held, did not confer title and tenant on the basis of such agreement was not entitled to deny relationship of landlord and tenant---Plea of tenant being mala fide, he was liable to be straightaway ejected.

Ch. Muhammad Arshad Ramay, Advocate Supreme Court for Petitioner.

Maqbool Sadiq, Advocate Supreme Court for Respondent.

Date of hearing: 12th February, 2009.

2009 S C M R 1079

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sabihuddin Ahmed, JJ

MUHAMMAD ALI and others----Petitioners

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Petition No.1838 of 2008, decided on 11th March, 2009.

(On appeal against the judgment, dated 22-10-2008 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No.341-D of 2008).

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

----O. VII, R.11 & S.2(2)---Rejection of plaint---Order rejecting a plaint is certainly a decree in terms of the definition of the expression "decree" contained in S.2(2),, C.P.C. and would carry the same degree of finality and enforceability unless provided otherwise by law---Expiry of the period of limitation for a second appeal against the order, the order rejecting the plaint would acquire complete finality.

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

----O. VII, Rr.13, 11, O.II, R.2, O.XXIII, R.1 & S.10---Rejection of plaint---Question whether a fresh plaint could be presented under O.VII, R.13, C.P.C. would depend upon the nature of the order passed by the Court in rejecting a plaint under O.VII, R.11, C.P.C.---Principles illustrated.

No doubt Order VII, rule 13, C.P.C. does contemplate that rejection of a plaint shall not of its own force preclude the plaintiff from presenting a fresh plaint, nevertheless the underlined words are important and clearly indicate that other provisions relating to avoiding multiplicity of litigation and attributing finality to adjudications could not be ignored. For instance if a plaint under Order VII, Rule 11, C.P.C. is rejected on the ground of the relief being undervalued or failure to affix proper court-fee stamps, a fresh plaint could always be presented upon rectifying the defects within the prescribed period of limitation. Nevertheless if the plaint is rejected after proper adjudication as to the non-existence of cause of action or upon the suit being barred by law the findings could operate as res judicata and would not enable the plaintiff to re-agitate the same question through filing a subsequent suit upon the same cause of action and seeking the same relief. Therefore, the question whether a fresh plaint could be presented under Order VII, Rule 3 or otherwise would depend upon the nature of the order passed by the court in rejecting a plaint under Order VII, Rule 11, C.P.C.

In the present case a fresh plaint, even if permissible after rejection of the plaint by the Trial Court could not be presented after the decree had been appealed against, disposed of and limitation for preferring a second appeal allowed to expire. Moreover, it was evident from the record that the third suit was filed during the pendency of the second one and was as such liable to be stayed in view of the mandatory provisions of section 10, C.P.C. and could proceed only after the disposal of the second one. The moment petitioners abandoned their claim and unconditionally withdrew the second suit they could be held barred from pursuing the third suit on the same cause of action in terms of the spirit of Order XXIII, Rule 1, C.P.C. The provisions of section 10, C.P.C. ought to be read along with Order XXIII, Rule 1, C.P.C. because otherwise the object of the latter could possibly be defeated.

Even if it be assumed that the third suit was maintainable on grounds of its having been filed prior to withdrawal of the second one, the fact remained that the fourth one was filed on the same cause of action after the unconditional withdrawal of the second one and dismissal of the petitioners' appeal against the order rejecting the plaint in the third suit. Evidently both these factors were sufficient to render the suit not maintainable. Obviously when the petitioners had unconditionally withdrawn the second suit in 2003 the matter could not be reagitated through a fourth suit in 2006 because of the bar contained in Order II, Rule 2 and Order XXIII, Rule 1, C.P.C.

At the same time the decree of the Appellate Court upholding the rejection of the plaint in the third suit could not enable the petitioners to wipe out its effect through bringing a fourth suit before the Trial Court.

Muhammad Ibrahim Khan, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2009 S C M R 1084

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

Syed ALTAF SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Review Petition No.1-P of 2006 in Criminal Petition No.63-P of 2005, decided on 19th December, 2008.

(For review of order dated 12-6-2006 passed by this Court in Criminal Petition No.63-P of 2005).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Control of Narcotic Substances Act (XXVII of 1997), S.9(c)---Review of Supreme Court judgment---Scope.

In the present case the impugned order suffered from no error or mistake warranting 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 case could not be reopened on merits in review. Scope of review was very limited and review petition was not maintainable on those points which had been decided one way or the other. Moreover, any dispute which had already been resolved could not be reviewed even if the same had been resolved illegally.

The exercise of review jurisdiction does not mean a rehearing of the matter and as finality attaches to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions, which converge on the merits of the decision. It needs no reiteration that before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest and so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface and does not require any elaborate discussion or process of rationcination. It is not denied that if the 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 cannot be obtained on the grounds 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. The contentions of the counsel were nothing but reiteration of the same grounds, which were urged at the hearing of petition, but were rejected by Supreme Court after consideration. These contentions could not be allowed to be raised again in review proceedings as in the garb of proceedings for review, the petitioner could not obtain rehearing of the petition.

In the present case, there was nothing on the file to show 'that the petitioner was carrier. No such plea had been taken by the petitioner in his statement under section 342, Cr.P.C. This aspect of the matter had been duly considered by Supreme Court and dealt with appropriately.

In the circumstances, finding no ground for review, petition was dismissed.

Abdul Latif Yousafzai, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2009 S C M R 1091

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Sarmad Jalal Osmany, JJ

Civil Appeal No.625 of 2003

TUFAIL MUHAMMAD through L.Rs.----Appellants

Versus

Messrs SIDDIQUE TEXTILE MILLS LTD. and others----Respondents

(On appeal from the judgment, dated 11,-2-2002 passed in Writ Petition No.129-R of 1992).

Civil Appeal No.627 of 2003

MEMBER BOARD OF REVENUE and another----Appellants

Versus

Messrs SIDDIQUE TEXTILE MILLS LTD. and others----Respondents

(On appeal from the judgment, dated 11-2-2002 passed in Writ Petition No.129-R of 1992).

Civil Appeal No.628 of 2003

SAFDAR HUSSAIN and others----Appellants

Versus

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

(On appeal from the judgment, dated 11-2-2002 passed in Writ Petition No.241-R of 1995).

Civil Appeal No.629 of 2003

ABDUL RAZZAQ and others----Appellants

Versus

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

(On appeal from the judgment, dated 11-2-2002 passed in Writ Petition No.241-R of 1995).

Civil Appeals Nos.625, 627, 628 and 629 of 2003, decided on 14th April, 2009.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 2 &13---Chief Settlement Commissioner Notification No.1697-73/1567-R(L), dated 16-5-1973---All available evacuee land, including the one not yet confirmed to any person against his units or evacuee land, which may become available in future in all revenue estates situated within urban limits of a Municipal Corporation, Municipal Committee, Small Town . Committee, a Sanitary Committee or Cantonment throughout the Province of Punjab was declared as "building sites" for disposal under S.13, Displaced Persons (Land Settlement) Act, 1958---Once the land in question had gone out of the compensation pool earlier in 1958 and in 1973, all the urban land in the Province of Punjab had been declared to be "building sites" and no person having a claim under the evacuee laws, which had not been confirmed could be compensated thereafter by adjustment of his claim in the Province of Punjab.

Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822; Bashir Ahmed v. Punjab University Academic Staff Association 1991 SCMR 377; Saifullah v. Board of Revenue, Balochistan 1991 SCMR 1255 and Member, Board of Revenue v. Muhammad Mustafa 1993 SCMR 732 ref.

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

----S. 2---"Pending cases"---Cases of those persons whose claims had not been confirmed (temporary claimants) cannot be termed as "pending cases" in the terms of S.2, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.?

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

----S. 53-A--Part performance, doctrine of---Applicability---Provision of S.53-A, Transfer of Property Act, 1882 encompasses the equitable doctrine of part performance, which protects a buyer of immovable property in possession from claims put forward by a transferee and any person claiming under him irrespective of the fact that the instrument of transfer had not been registered or that the transfer had not been completed in the manner prescribed by law---Where the party was never put in possession of the entire area in question but only a piece of area was handed over to it, at the most, doctrine of part performance was of assistance to such party to the extent of such area.?

S.M. Nasim, Senior Advocate Supreme Court for Appellants (in Civil Appeal No.625 of 2003).

Kh. Saeed-uz-Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1 (in Civil Appeal No.625 of 2003).

Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab for Respondents Nos.2 and 3 (in Civil Appeal No.625 of 2003).

Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab for Appellants (in Civil Appeal No.627 of 2003).

Kh. Saeed-uz-Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1 (in Civil Appeal No.627 of 2003).

S.M. Nasim, Senior Advocate Supreme Court for Respondents Nos.2 and 3 (in Civil Appeal No.627 of 2003).

Syed Kaleem A. Khurshid, Advocate Supreme Court for Appellants (in Civil Appeal No.628 of 2003).

Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab for Respondents Nos. l and 2 (in Civil Appeal No.628 of 2003).

S.M. Nasim, Senior Advocate Supreme Court for Respondents Nos.3 and 4 (in Civil Appeal No.628 of 2003).

Syed Kaleem A. Khurshid, Advocate Supreme Court for Appellants (in Civil Appeal No.629 of 2003).

Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab for Respondent (in Civil Appeal No.629 of 2003).

Dates of hearing: 5th, 6th and 11th March, 2009.

2009 S C M R 1101

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

UMER KHAN----Petitioner

Versus

Haji MUSA JAN----Respondent

Civil Petition for Leave to Appeal No.76-Q of 2007, decided on 8th April, 2009.

(On appeal from the judgment, dated 21-6-2007 of High Court of Balochistan, Quetta passed in R.F.A. No.57 of 2002).

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Suit for recovery of money on the basis of cheque and promissory note---Affidavit filed by the defendant with his application for leave to defend the suit had not disclosed necessary facts to prove "prima facie" "plausible defence", therefore it would be inferred that affidavit was not in accordance with the provisions of O.XXXVII, R.3, C.P.C.---Contention of the defendant was' that Court had directed him to file written, statement and adopted the other procedure---Held, suit was filed by the plaintiff under O.XXXVII, R.2, C.P.C. and a special procedure had been provided in the said provision, to be followed in suits instituted upon bill of exchange, hundies or promissory notes---Where the defendant had defaulted in obtaining prescribed leave for his appearance for defending the suit and application for leave to defend the suit was not allowed by the court then no option was left with the court but to decree the suit without recording of evidence otherwise object of speedy and summary trial could be defeated---If the Court, without adverting to the special procedure provided under the law, had directed the defendant to file written statement and thereafter adopted valid and required procedure, it had not committed any illegality---Principles.

Haji Ali Khan & Co., Abbottabad and 8 others v. Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963' SC 163; Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and-others 1992 SCMR 718 and Ch. Maqsood Ahmed v. Khalid Pervaiz 1990 CLC 1536 ref.

Khushnood Ahmed, Advocate Supreme Court and Mehta W.N. Kohli, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 8th April, 2009.

2009SCMR 1105

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Moosa K. Leghari and Muhammad Sair Ali, JJ

KARIM NAWAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.228 of 2006, decided on 23rd April, 2009.

(On appeal from the judgment and order of the Lahore High Court, Multan Bench, Multan, dated 27-1-2006 passed in Criminal Appeal No..605 of 2000 and Murder Reference No.5 of 2005).

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

----Ss. 302(b), 324 & 449---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider question as to whether, in the circumstances of the case, lesser penalty was warranted.

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

----Ss. 302(b), 324 & 449---Appraisal of evidence---Statement made by the accused under S.342, Cr.P.C. adequately revealed that he had not denied the commission of offence; accused had admitted having caused the murder of deceased and caused injuries to ladies; accused had further stated that he acted under grave and sudden provocation and in self-­defence---Plea of grave and sudden provocation causing the murder of accused was accepted by High Court and the -sentence awarded to accused for causing murder of the deceased was reduced by altering the conviction---Plea of self-defence raised against the ladies who, according to the accused himself, were armed with Sotas was neither plausible nor comprehensible to justify the accused to resort to direct firing on account of which a lady lost her life and three other sustained injuries---Accused had reached the house of the deceased which was adjacent to his house, and started indiscriminate firing upon the ladies, which resulted in death of one lady and injuries to three others---Blood-stained earth was also taken from the house of the deceased; medical evidence including the post-mortem report was supportive of the case of the prosecution---Sustaining injuries by the accused, would not in anyway, constitute a mitigating circumstance in the peculiar circumstances of the case to award lesser penalty---High Court, in circumstances, had rightly observed that accused caused the death of the lady and also injured three innocent women without any rhyme or reason---Appeal of accused being without merit, was dismissed by Supreme Court while upholding the judgment of High Court.

Altaf Ibrahim Qureshi, Advocate Supreme Court for Appellant.

Syed Amanat Ali Bukhari, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 23rd April, 2009.

2009 S C M R 1109

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MAHMOOD HASSAN HARVI----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.28 of 2004 and 625 of 2006, decided on 12th March, 2009.

(On appeal from the judgment, dated 2-12-2003 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.162 and 1538 of 2001).

Per Abdul Hameed Dogar, C.J.; Ijaz-ul-Hassan Khan, J. agreeing.

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

----S. 15---Reappraisal of evidence---Accused had been involved on the spy information received by complainant and thereafter machinery of law was put in action---Trial Court convicted the accused under S.15, Control of Narcotic Substances Act, 1997 and sentenced him to 10 years' R.I. with fine of Rs.5 lac---High Court enhanced the sentence to imprisonment for life and fine was also enhanced to Rs. ten lac---Validity---High Court erred in enhancing the sentence of accused, especially when the documentary evidence had been totally misread by the court below in its true perspective which was an unproved document and without producing either scribe/sender or the recipient of the same---Supreme Court partly allowed the appeal, impugned judgment of High Court was set aside and that of Trial Court was restored---Order of confiscation of property passed by the Trial Court in absentia, as at the relevant time accused was in jail and no opportunity of hearing was provided to him to substantiate his case, was also set aside.

Per Ch. Ejaz Yousaf, J.

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

----S. 15---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Maintainability---Accused was convicted by Special Judge and sentenced to undergo ten years' R.I. along with a fine of the Rs.5,00,000 or in default to further undergo six months' R.I.---High Court, on appeal, though maintained the conviction, yet sentence of imprisonment was enhanced from ten years to life imprisonment and amount of fine was also increased from Rs.5 lac to Rs.10 lac---Appeal before Supreme Court filed by the accused through his counsel whose Wakalatnama, as pointed out by the office, was available on record, yet record was silent as to whether the accused in pursuance of judgment of the High Court had surrendered or was taken into custody---Maintainability of appeal to Supreme Court, was under jeopardy in circumstances.

Karam Ellahi v. The State PLD 2007 SC 260 and Chan Shah v. The Crown PLD 1956 FC 43 ref.

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

----Ss. 15 & 13---Reappraisal of evidence---Allegation/charge against the accused was that he had on telephone directed a Travelling Agent, to issue a ticket to one of the accused persons, who was allegedly involved in transporting the contraband material---Copy of the memo. prepared in pursuance of the direction allegedly given by the accused to the Travelling Agent, was produced at the trial yet, neither original thereof was tendered in evidence, nor compared with the memo, nor author thereof was' examined so as to prove the same, therefore, presumption could not have been drawn that the document in question was true---Special Prosecutor had conceded that case of the accused was covered by S.15, Control of Narcotic Substances, Act, 1997, as only allegation of aiding, abetting and facilitating the co-accused was attributed to him---Case of the accused, in circumstances, was covered by S.15 of the Act instead of S.13 thereof.

S.M. Zafar, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.28 of 2004).

Mian Abdul Rauf, Advocate Supreme Court for Appellant (in Criminal Appeal No.625 of 2004).

Niaz Ahmed Rathore, Special Prosecutor, ANF for the State.

Date of hearing: 12th March, 2009.

2009 S C M R 1121

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

ZIA-UR-REHMAN----Petitioner

Versus

DIVISIONAL SUPERITNENDENT, POSTAL SERVICES, ABBOTTABAD and others----Respondents

Civil Petition No.404 of 2009, decided on 22nd April, 2009.

(Against the judgment, dated 27-12-2008' passed by the Federal Service Tribunal, Islamabad, in Appeal No.20(P)(C.S.) of 2007).

(a) Civil service---

----Departmental appeal---Limitation---Appellate authority was justified to dismiss time-barred appeal.

(b) Civil service---

----Leave---Mere submission of application for leave by an employee to his department would not mean that leave has been granted in his favour, he is duty bound to enquire from the department himself about the fate of his request for grant of leave.

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

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Service Tribunal had given findings of fact against the petitioner after reappraisal of evidence and upheld the order of the department that his departmental appeal was time-barred, therefore, appeal before the Service Tribunal was not maintainable---Petitioner thus, had challenged the vires of the concurrent orders of the department and impugned judgment of the Service Tribunal through petition under Art.212(3) of the Constitution and had failed to raise any question of public importance---Validity---Supreme Court, held, could not interfere with the concurrent findings of fact arrived at by the courts below while exercising powers under Art.212(3) of the Constitution in circumstances---Principles.

Iftikhar Ahmed Malik's case 2005 SCMR 806; Tahir Latif's case 2007 SCMR 152; Ch. Muhammad Azim's case 1991 SCMR 255; Chairman PIA and others v. Nasim Malik PLD 1990 SC 951 and Muhammad Aslam v. WAPDA and others 2007 SCMR 513 ref.

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

----S. 4---Appeal to Service Tribunal---Scope---Service Tribunal had no jurisdiction to convert the penalty, while observing that appellate authority dismissed the appeal of civil servant as time-barred.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2009 S C M R 1126

[Supreme Court of Pakistan]

Present: Zia Perwez, Sarmad Jalal Osmany and Ghulam Rabbani, JJ

Messrs DEWAN CEMENT LTD.----Petitioner

Versus

COLLECTOR OF CUSTOMS AND SALES TAX and another----Respondents

C.P.L.As. Nos.319-K and 320-K of 2008, decided on 8th May, 2009.

(On appeal from judgment of High Court of Sindh, Karachi dated 16-1-2008 passed in Special C.R.As. Nos.29 of 2002 and 10 of 2006).

Central Excise Rules, 1944---

----R. 10---Central Excise Act (I of 1944), S.4(2)---Central Excise General Order 23 of 1969---Recovery of duty short levied---Application and scope of R.10, Central Excise Rules, 1944---Word "error" used in R.10 denotes one of fact as well as of law---Where there was nothing on the record to demonstrate any misdeclaration, false information or collusion and short levy of duty was by reason of misconstruction of the law, the case fell within the ambit of R.10(1), Central Excise Rules, 1944 in which event show-cause notices were time-barred---Supreme Court having held the show-cause notices as time-barred, declined to discuss the merits of the case---Principles.

A plain reading of Rule 10(1), Central Excise Rules, 1944 would amply denote that it would be applicable in the cases where due to no fault either of the assessee or the Department any charge has not been levied or has been short levied or erroneously refunded. The thrust of the Rules, therefore, is that there should have been some inadvertent error or misconstruction in the process of payment of duty due to no fault of either party which led to the short levy, refund etc. The word error denotes one of fact as well as of law.

On the other hand sub-rule (2) contemplates a conscious act on the part of the assessee i.e. an element of mens rea is involved since the words misdeclaration, false information or collusion are in fact a state of mind in which the actor knows what he is doing and purposely does something i.e. either misdeclares a product in question or gives any false information in connection thereof or colludes with anyone in order to avoid payment of the duty or pays lesser duty than that mandated by the law and the rules. In the present case, assessee, had written to the Department seeking its concurrence for supply of Cement to the Army at the contractual rate which was lesser than the normal retail price and hence implied payment of lesser excise duty. Such permission was granted by the Department provided the conditions laid down in CEGO No.23 of 1969 were followed and a declaration was made that the Cement was not meant for sale in the open market. The exchange of further correspondence between the parties also denoted that the permission remained intact but subject to CEGO No.23 of 1969 which provided in sum that "where excisable goods are supplied in bulk to Government Organizations at contracted prices, the retail price should also be printed on the containers/packages". Consequently both the parties were under the genuine impression that excise duty could be charged at the contractual price otherwise there was no occasion for the assessees to seek the permission from the Department. Admittedly such permission was granted, be it under a mistake of law, which was the moot question in this matter. Nevertheless, there is no escaping the fact that acting on such permission the assessees had cleared the goods in question at a lower rate and hence paid duty accordingly. It is the Department's case throughout that the law did not mandate (section 4(2)) of the Act and subsequent notification) any clearance of the goods at a rate which was below that what was printed on the cartons in question. However, it was not their case that the goods were cleared at a lower rate due to the assessees' misdeclaration false information or collusion with the Government functionaries. In fact this could not be the case as the assessee had, even before signing the contract with the Army, sent it to the Department for approval. There was also nothing on the record to demonstrate any such misdeclaration; false information or collusion. In the circumstances, indeed the levy of the duty in question was by reason of misconstruction of the law, which squarely brings the case within the ambit of Rule 10(1) of the Central Excise Rules, 1944 in which even the show-cause notices are time-barred. Supreme Court, in circumstances, allowed the appeal of assessee and declined the necessity of discussing the merits of the case.?

Commissioner of Sales Tax v. Kruddsons Ltd. PLD 1974 SC 180; Mollasses Trading and Export (Pvt.) Ltd.. v. Federation of Pakistan 1993 SCMR 1905; Atlas Battery Ltd. v. Superintendent Central Excise and Land Customs Circle "C" Karachi PLD 1984 SC 86; Messrs Radaka Corporation v. Collector of Customs 1989 SCMR 353; Al-Samrez Corporation v. Federation of Pakistan 1986 SCMR 1917; Yunnan Corporation v. Collector, Central Excise 2001 PTD 661; State Cement Corporation v. Collector of Customs 2002 MLD 180 and Collector of Sales Tax and Central Excise v. Zamindara Paper and Board Mills 2007 PTD 1804 ref.

Dr. Muhammad Farough Naseem, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioners.

Aqeel Ahmed Abbasi, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 24th April, 2009.

2009 S C M R 1133

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

Criminal Appeal No.110 of 2004

MOBASHAR AHMAD----.Appellant

Versus

THE STATE----Respondent

(On appeal from judgment of Lahore High Court, Lahore, dated 2-7-2002 passed in Criminal Appeal No.915 of 1999 and Murder Reference No.285-T of 1999).

Criminal Appeal No.126 of 2008

MUHAMMAD SHARIF----Appellant

Versus

THE STATE----Respondent

(On appeal from judgment of Lahore High Court, Lahore, dated 2-7-2002 passed in Criminal Appeal No.743 of 1999 and Murder Reference No.285-T of 1999).

Criminal Appeals Nos.110 of 2004 and 126 of 2008, decided on 23rd April, 2009.

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

----Ss. 302(b), 364 & 392---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.43---Re-appraisal of evidence---Last seen evidence---Extra judicial confession---Joint trial---Statement of one accused against other---Independent witness---Both the accused along with two unknown persons were seen boarding taxi of deceased from taxi stand---Later on dead body of deceased was found on pointation of one accused who made extra judicial confession---Death sentence awarded to both the accused was maintained by High Court---Validity---Presence of prosecution witness at taxi stand where he had seen deceased last time was established in cross-examination as he used to work as auto-electrician and used to repair taxis etc.---As such the prosecution witness was independent witness bearing no relationship at all with complainant or deceased except that he knew the latter, who had given truthful and confidence inspiring narration of incident i.e. boarding of deceased's car by two accused as well as two other unknown persons and their departure---Under cross-examination nothing could be extracted from such prosecution witness except for his denial of having informed complainant regarding last seen evidence, whereas he had stated so in his statement before police, which was a minor discrepancy and could be ignored---Prosecution witness had no reason whatsoever to implicate both the accused falsely as no enmity had been remotely suggested by accused in their cross-examination---Testimony of two prosecution witnesses inspired confidence and could be relied upon---Accused, who made extra judicial confession pad fully implicated other accused in his confession before prosecution witness which was approved by Supreme Court---Where, in a joint trial, confession of one accused was proved, under Art.43 of Qanun-e-Shahadat, 1984, the same might be taken into consideration as circumstantial evidence against co-accused---Extra?judicial confession of one accused as well last seen evidence was corroborated by arrest of accused along with car belonging to deceased which was proved by prosecution through evidence of recovery witness--Under cross-examination nothing could be gleaned from recovery witness as to alleged false arrest of one accused and recovery of car in question---Supreme Court maintained death sentence awarded to both the accused by two courts below---Appeal was dismissed.

?

Binyamin v. State 2007 SCMR 778 and Khurshid v. State PLD 1996 SC 305 ref.

(b) Criminal trial---

----Related witness---Mere relationship is no reason to disregard evidence of any witness if otherwise his testimony inspires confidence.?

(c) Criminal trial---

----Defence plea---Scope---Where accused takes up a particular line of defence, burden is upon him to exclusively prove it.?

Mian Aftab Farrukh, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.110 of 2004).

Mian Asif Mumtaz, Deputy Prosecutor-General, Punjab for the State (in Criminal Appeal No.110 of 2004).

Muhammad Ilyas Siddiqui, Advocate Supreme Court for the Complainant (in Criminal Appeal No.110 of 2004).

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant (in Criminal Appeal No.126 of 2008).

Mian Asif Mumtaz, Deputy Prosecutor-General, Punjab for the State (in Criminal Appeal No.126 of 2008).

Date of hearing: 14th April, 2009.

2009 S C M R 1141

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

YAROON KHAN----Petitioner

Versus

LAL ZADA----Respondent

Civil Petition No.751-P of 2004, decided on 23rd April, 2009.

(On appeal from the order, dated 6-10-2004 of the Peshawar High Court, Peshawar passed in Civil Revision No.1139 of 2004).

Civil Procedure Code (V of 1908)---

----S. 149---Constitution of Pakistan (1973), Art.185(3)---Contentions of petitioner was that he did not commit default wilfully; that Trial Court did not direct him to deposit specific court-fee; that Trial Court as well as Lower Appellate Court did not grant reasonable time to petitioner to deposit court-fee that High Court did not appreciate the matter in its true perspective while upholding concurrent findings of two courts below; and that if opportunity was given, petitioner was ready to make up deficiency in court-fee---Validity---Leave to appeal was granted to consider the contentions of petitioner.

Mian Khan v. Aurangzeb and 12 others 1989 SCMR 58 and Memon Educational Board and Society, Karachi, v. Munawar Hussain 2003 SCMR 157 ref.

Maazullah Barkandi, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2009 SCMR 1142

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Nasir-ul-Mulk, JJ

IFTIKHAR AHMED and another----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.196 and 197 of 2006, decided on 5th November, 2008.

(On appeal against the judgment, dated 14-5-2003 passed by the Lahore High Court, Lahore, in Criminal Appeal No.671 and Criminal Revision No.400 of 1998).

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

----Ss. 302(b) & 365-A---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Concurrent findings recorded by the courts below in regard to the convictions of accused did not suffer from any misreading/non-reading of evidence or any legal infirmity' to warrant interference by Supreme Court---Ample evidence was available on record which proved the prosecution case against the accused and may be, for this reason, he had elected not to press his appeal---Reasons advanced by the courts below for recording convictions against accused were cogent and were based on the evidence available on record---Supreme Court also declined the request of the counsel to reduce the fine ordered by the High Court or to interfere in the order of forfeiture of his property, however, request of the counsel for making sentences of accused concurrent was granted being reasonable.

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

----Ss. 201 & 218---Constitution of Pakistan (1972), Art.185---Appeal to Supreme Court---Trial Court had given cogent and convincing reasons in holding the accused persons (doctors) as guilty and for recording their convictions, while the High Court gave no reasons at all and acquitted them of the charge merely on the basis of presumptions without discussing the ample evidence available on record which was discussed in detail by the Trial Court---High Court even did not discard the reasons given by the Trial Court which were cogent---Supreme Court, keeping in view the fact that the accused persons (doctors) had already undergone a lengthy trial and might lose their official positions etc. reduced their sentences as recorded by the Trial Court to that of already undergone and set aside the fines imposed upon them.

Mian Aftab Farrukh, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.196 of 2006).

M. Hussain Awan, Advocate Supreme Court for Appellant (in Criminal Appeal No.197 of 2006).

Mujeeb-ur-Rehman, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos.2 to 5 (in Criminal Appeal No.197 of 2006).

M. Siddique Khan Baloch, Deputy Prosecutor-General for the State.

Date of hearing: 5th November, 2008.

2009 S C M R 1161

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Sakhi Hussain Bokhari, JJ

TEHSIL MUNICIPAL ADMINISTRATION----Petitioner

Versus

MUHAMMAD AMIR----Respondent

Civil Petition No.1469-L of 2008, decided on 22nd April, 2009.

(Against the judgment of the Lahore High Court, Lahore, dated 11-8-2008 passed in Labour Appeal No.77 of 2007).

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

----Schd. S.Os.12, 1 & S.2(bb)---Constitution of Pakistan (1973), Art.185(3)---Termination of employment---Work being performed by the employee as "tube-well operator" was connected with "water work", "well" within the meaning of "construction Industry" as defined in S.2(bb) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Nothing was on record to indicate that he was being paid salary only for those days of week during which he worked---Record also showed that employee was engaged on a work of permanent nature within the meaning of clause (b) of S.O. 1 of the Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee being a permanent workman in terms of the provisions of the Ordinance, he could not have been summarily dismissed and that too without a written order---Procedure adopted by the employer, in dismissing the employee, was violative of S.O. 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Petition for leave to appeal was dismissed in circumstances.

Mian Ghulam Rasool, Advocate Supreme Court for Petitioner.

Ch. Muhammad Ikram Zahid, Advocate Supreme Court on Court's call.

Nemo for Respondent.

2009 S C M R 1169

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD YOUNIS and others----Appellants

Versus

ESSA JAN and others----Respondents

Civil Appeal No.915 of 2005 out of Civil Petition No.111-Q of 2004, decided on 15th April, 2009.

(On appeal from the judgment, dated 25-6-2004 passed by the High Court of Balochistan, Quetta in Civil Revision No.25 of 2004).

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

---Ss. 42, 55 & 39---Suit for declaration, permanent injunction and cancellation of mutation---Plaintiffs had filed the suit on the ground that their forefathers had purchased the property in question about 131 years ago through a Sanad/writing, whereafter, they and then the' plaintiffs had been cultivating the same without any interference---Document of purchase was shown to have been executed in presence of the marginal witnesses, but neither any of them had signed the said document nor it was attested by any competent authority, so much so that even the place of residence of the vendor had not been disclosed in the same---Said old document had not been placed on record and exhibited in evidence---Document which was not part of judicial record, its judicial notice could not be taken---Courts below i.e. the Trial Court as well as appellate Court head not taken into consideration the said Sanad/document while deciding the suit against the plaintiffs because they had not been able to produce sufficient convincing evidence to establish their asscertions made in the plaint and the said findings had been affirmed by the High Court vide the impugned judgment---Plaintiffs had admitted in the plaint that in the record property was entered in favour of someone else who was forefather of the defendants which established that defendants were the owners of the property---Concurrent findings of fact rendered by the three courts below against the plaintiffs could not be interfered with by the Supreme Court---Plaintiffs had not pointed out any illegality, infirmity, jurisdictional detect, misreading or non-reading of evidence in the impugned judgment warranting interference by Supreme Court---Appeal was dismissed by Supreme Court.

(b) Judgment---

----Law declared by courts is never retrospectively effective and it only takes effect after the announcement of the judgment or the date notified by the court.

Qazal Bash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 ref.

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

----Preamble---Provisions of Land Reforms Regulation, 1972 had been declared against the Injunctions of Qur'an and Sunnah by the Shariat Appellate Bench of the Supreme Court---Decision in said case would be effective from 23-3-1990---Law declared by courts was never retrospectively effective and it only takes effect after the announcement of the judgment or the date notified by the court.

Qazal Bash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 ref.

(d) Document---

----Document which was not placed on record and exhibited in evidence was not part of judicial record and thus, its judicial notice could not be taken.

Tahir Muhammad Khan, Advocate Supreme Court for Appellants.

Imran-ul-Haq, Advocate Supreme Court for Respondents Nos.1 to 9.

2009 SCMR 1173

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

ZARIN QAISRA and others----Appellants

Versus

AHMAD FARAZ and others----Respondents

Civil Appeal No.30-L of 2009, decided on 22nd April, 2009.

(Against order, dated 26-8-2008 of the Lahore High Court, M.B.M., passed in S.A.O. No.3 of 2008).

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

----S. 13---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court, inter alia, to consider the questions as to whether the statements of the witnesses produced by the petitioners were unrebutted and should have been considered sufficient evidence to establish the relationship of landlord and tenant between the parties; whether, under the circumstances, sufficient grounds in law existed warranting remand of the case to the Trial Court, when both the courts concurrently held that relationship of landlord and tenant existed between the parties; whether the ex parte decree declaring lease deed as illegal and result of fraud could be relied upon to non-suit the petitioners, more so, when they had already filed an application under section 12(2), C.P.C. challenging the vires of that decree and whether the impugned judgment was sustainable in law and facts of the case.

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

----S. 13---Civil Procedure Code (V of 1908), S.12(2)---Ejectment petition---Application under S.12(2), C.P.C.---Remand of case to Trial Court by High Court---Held, High Court erred in law in clubbing the ejectment petition with the application under S.12(2), C.P.C. and on the said premises proceeded to remand the case to the Trial Court and this relegated the parties to the position of square one; when there was enough material available on record sufficient for the High Court to decide the appeal itself instead of remanding the case---Principles---Supreme Court allowed the appeal against order of the High Court, resultantly appeal shall be deemed to be pending before the High Court, which shall decide the same afresh, in view of the evidence on record within a period of three months.

Ashiq Ali v. Zamir Fatima PLD 2004 SC 10; Muhammad Dervaish Al-Gilani v. Muhammad Sharif 1997 SCMR 524 and Rozi Khan v. Nasir 1997 SCMR 1849 ref.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Appellants.

Sh. Naveed Shehryar, Advocate Supreme Court for Respondents.

2009 SCMR 1179

[Supreme Court of Pakistan]

Present: Zia Perwez, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

Haji GUL REHMAN----Petitioner

Versus

IMRAN-UD-DIN and another----Respondents

Criminal Petition No.100-K of 2008, decided on 18th May, 2009.

(Against the judgment, dated 10-11-2008 passed by High Court of Sindh, Karachi in Criminal Bail Application No.269 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.362/302---Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation of---Further inquiry---Order of High Court granting bail was not based on proper appreciation of material available on record in its true perspective---Prosecution, in the present case, had traced the record of telephone calls, the particulars of the person using the telephone calls were traced out with regard to land line connection installed at the residence of accused---Record of car tracker showing movement of car coincided with the timings and movement of the deceased---Memo. of recovery pertaining to the pointation by accused leading to recovery of the dead body of the deceased and recovery of his CNIC along with dead body constituted, prima facie, evidence sufficient to connect accused with the commission of offence which could not be ignored on the pretext of the case of further inquiry---Ground of further inquiry should be based on a rational conclusion arrived at with reference to the peculiar facts of the case and not on mere hypothetical and whimsical statement contrary to the material available on record---Supreme Court, converted petition for leave to appeal into appeal and recalled the order of granting bail to accused by High Court.

Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621; WAPDA through its Chairman v. Shujjat Ali Baghdadi PLD 1988 SC 622; Mst. Perveen Akhtar v. The State and others 2002 SCMR 1886; Talat Mahmood v. Muhammad Ilyas and others 2002 SCMR 1889; Haji Akbar Khan v. Abdullah Khan and others 1994 SCMR 660; Muhammad Amir v. The State 1994 SCMR 662; Syed Maqbool Muhammad v. The State 2005 SCMR 635; Shamin Ahmed Kazmi v. PIAC 2005 SCMR 638; Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857; Executive Engineer Qadirabad Barrage Division Qadarabad and others v. Ejaz Ahmed 2007 SCMR 1860; Ehsan Akbar v. The State and others 2007 SCMR 482; Akbar Ali v. The State 2007 SCMR 486; Jamashed Ahmed v. The State 2006 MLD 288; Rasheed Ahmed v. D.P.O.; Lodhran and others 2006 MLD 294; Mst. Rashid Begum v. Abdul Rashid and others 1990 SCMR 579; State through A.-G., N.-W.F.P and another v. Sajjad Hussain and others 1990 SCMR 581; Muhammad Akram v. Zahid Iqbal and others 2008 SCMR 1715; National Accountability Bureau v. Khalid Masood and another 2005 SCMR 1291 and Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 ref.

Anwar Mansoor Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Shaukat Hayat, Advocate Supreme Court for Respondent No. 1.

Ms. Rehana Akhtar, Additional Prosecutor-General, Sindh for Respondent No.2.

2009 S C M R 1183

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

SHAMIM AKHTAR----Appellant

Versus

RASHEEDA BIBI and others----Respondents

Civil Appeal No.1008 of 2002, decided on 28th April, 2009.

(Against judgment, dated 8-3-2002 of the Lahore High Court, Lahore passed in R.S.A. No.109 of 2000).

Constitution of Pakistan (1973)---

----Art. 185---Civil Procedure Code (V of 1908), S.100---Appeal to Supreme Court---Appellant though contested second appeal before High Court but no objection was raised by her before the High Court with respect to competency of said appeal---Appellant, however, raised the objection for the first time, before the Supreme Court that second appeal was not maintainable before the High Court---Effect---Held, appellant by not raising the said plea before the High Court, in fact, acquiesced in the said objection and that ground deemed to have been waived by her, therefore, she was estopped to urge the said plea before the Supreme Court---High Court had discussed each and every witness produced by the parties and found that both the judgments of lower courts were result of . misreading and non-reading of the record of the case--No glaring misreading and non-reading of evidence by High Court was pointed out by the appellant in the said perspective---High Court while accepting respondents' appeal did not commit any illegality---Appeal against judgment of High Court was dismissed by Supreme Court.

Abdul Hafeez Cheema, Advocate Supreme Court for Appellant.

Ch. M. Jehangir Wahlah, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent No. 1.

Respondents Nos.2, 4 to 10: Ex parse.

Respondent No.3: Died.

Date of hearing: 28th April, 2009.

2009 S C M R 1188

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

MIR MUHAMMAD alias MIRO----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.395 of 2006, decided on 8th April, 2009.

(On appeal from the judgment, dated 3-2-2006 passed by the High Court Sindh at Karachi in Criminal Appeal No.6 of 2002 and Conf. Case No.1 of 2002).

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

---S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to examine, inter alia, as to whether the High Court, under the circumstances of the case, was justified in confirming death sentence of the accused while at the same time acquitting two co-accused from the charge of murder on the same set of evidence.

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

----S. 302---Constitution of Pakistan (1973), Art.185---Reappraisal of evidence---Benefit of doubt---Sentence, reduction in---Mitigating circumstances---Death of accused was confirmed by the High Court while acquitting the two co-accused on same set of evidence giving them benefit of doubt---Ocular evidence qua the co-accused was admittedly not believed by the Appellate Court by observing that "the evidence was exaggerated and required corroboration which was lacking"---Motive as set up by the prosecution remained unproved---Evidence with regard to recovery of weapons was not admissible---Accused was in his advanced age and was in continuous incarceration since 1995, and in death cell as condemned prisoner since 29-12-2001---Question of sentence required utmost care and caution on the parts of the courts, as such decision restrict the life and liberties of the people---Principle underlying the concept of benefit of doubt could, in addition to the consideration of question of guilt or otherwise,. be pressed also in matter of sentence---Mitigating circumstances for awarding lesser penalty, therefore, existed in the given situation---Supreme Court, while dismissing the appeal and maintaining the conviction, modified the sentence of death awarded to accused by awarding him imprisonment for life with benefit of S.382-B, Cr.P.C.

Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859 rel.

Israr Ali v. The State 2007 SCMR 525 and Iftikhar Hussain and another v. The State 2004 SCMR 1185 ref.

Mehmood A. Qureshi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Appellant.

Muhammad Iqbal Kolho, Additional Prosecutor-General for the State.

Complainant in person.

Date of hearing: 8th April, 2009.

2009 SCMR 1197

[Supreme Court of Pakistan]

Present: Javed Iqbal, Nasir-ul-Mulk and Sayed Zahid Hussain, JJ

AKHTAR ALI----Petitioner

Versus

DIRECTOR, FEDERAL GOVERNMENT, EDUCATIONAL INSTITUTION PGET DTA, RAWALPINDI and others----Respondents

Civil Petition No.704 of 2008, decided on 21st April, 2009.

(On appeal from the judgment, dated 19-3-2009 of the Federal Service Tribunal, Islamabad passed in Appeal No.23(P)(C.S.) of 2003).

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

----S. 3---Service Tribunals Act (LXX of 1973), S.5---Modifying of order---Compulsory retirement---Absence from duty---Acquittal from criminal charge---Civil servant was removed from service on the allegation of his wilful absence from duty---Plea raised by civil servant was that his absence from duty was due to circumstances beyond his control as he had been involved in murder case---Validity---Service Tribunal while dealing with appeal, had power under S.5 of Service Tribunals Act, 1973, to vary and modify order of departmental authority---Supreme Court while sitting in appeal over judgment of Service Tribunal could also exercise such power to meet the ends of justice---Civil servant, who had long unblemished service record of about 17 years and he, by force of circumstances (involvement in case in which he was later on acquitted), was prevented from performing his duty---Civil servant was absent from duty entailing some penalty under law and his removal from service was too harsh penalty for him--Supreme Court converted petition for leave to appeal into appeal and converted penalty of removal from service into compulsory retirement---Appeal was allowed.

Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60; Abdul Hassan v. Secretary, Education (S&L) N.-W.F.P. and 3 others 2008 PLC (C.S.) 77; Shamim Ahmed Kazmi v. Pakistan International Airlines Corporation and another 2005 SCMR 638; Agriculture Development Bank of Pakistan through Chairman and another v. Akif Javed 2005 SCMR 752; Javed Akhtar and others v. Chief Engineer, Highway Department and others 2006 SCMR 1018; Islamic Republic of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100; Water and Power Development Authority, Lahore and 2 others v. Muhammad Yousaf, Test Inspector PLD 1996 SC 840; Mian Shafiuddin, Deputy Director and 4 others v. Surat Khan Marri, Director Regional Information Office, Islamabad and 41 others 1991 SCMR 2216; Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774; Inspector General (Prisons) N.-W.F.P Peshawar and another v. Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others 2006 SCMR 815; Abdul Sattar and another v. Director Food, Punjab and others 2007 PLC (C.S.) 319 and Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 PLC (C.S.) 428 ref.

Amjad Ali, Advocate Supreme Court for Petitioner.

Agha Tariq Mehmood, D.A.-G. for Respondents.

Date of hearing: 21st April, 2009.

2009 S C M R 1202

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

MUHAMMAD AZHAR----Petitioner

Versus

DILAWAR and another----Respondents

Criminal Petition No.20-P of 2009, decided on 17th April, 2009.

(On appeal from the judgment, dated 26-1-2009 of the Peshawar High Court, Peshawar passed in Criminal Miscellaneous No.1667 of 2008).

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

----S. 497(5)---Penal Code (XLV of 1860), S.324---Constitution of Pakistan (1973), Art.185(3)---Cancellation of bail, refusal of---High Court while granting bail to accused had assigned sound and valid reasons, which could not be shown to have suffered from any infirmity or irregularity, legal or factual, warranting interference with the impugned judgment---Strong and exceptional grounds were required for cancelling bail granted to accused by a competent Court of law, e.g. whether order granting bail was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice---No exception could be taken to the conclusion rightly reached by the High Court---Accused was not shown to have misused the concession of bail and he was entitled to remain on bail---Leave to appeal was declined to complainant accordingly.

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

----S. 497(5)---Cancellation of bail---Principle---Considerations for cancellation of bail are quite distinct from the considerations for grant of bail---Strong and exceptional grounds are required for cancelling the bail granted to an accused by a competent Court of law; it is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.

Mir Adam Khan, Advocate-on-Record for Petitioner.

Mian Muhibullah Kakakhel, Advocate Supreme Court and Ms. Tehmina Muhibullah, Advocate Supreme Court for Respondent No.1.

Hafiz Aman for the State.

Date of hearing: 17th April, 2009.

2009 S C M R 1204

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Mahmood Akhtar Shahid Siddiqui, JJ

QASIM WASTI and others----Appellants

Versus

SECRETARY TO GOVERNMENT OF PUNJAB, REVENUE DEPARTMENT, BOARD OF REVENUE, LAHORE and others----Respondents

Civil Appeals Nos.702 to 724 of 2008, decided on 26th May, 2009.

(Against the judgment, dated 25-7-2007 of the Punjab Service Tribunal, Lahore passed Service Appeals Nos.2374, 1182 of 2005, 1846, 1183 of 2006, 2442 of 2005, 2462 of 2004, 1184, 2439 of 2005, 2199 of 2006, 2460 of 2004, 2556 of 2005 and 1852 of 2006).

(a) West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962---

----R. 8---West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, 1969, Rr.50 to 58, 3 & 4---Seniority---Determination of---Point of time at which a Tehsildar could be said to have been appointed as such---Person cannot be said to have got inducted into service on his selection for appointment to the said post but shall be deemed to have been so appointed after he had successfully completed the prescribed training and had passed the required departmental examination and when he was actually posted as Tehsildar---As an indispensable corollary, the period-spent by such a selected person in successfully completing the said training and passing the said departmental examination, cannot and would not be counted towards his service for the purposes of seniority etc.---Findings of Service Tribunal to the contrary were not sustainable in law and were, therefore, set aside by the Supreme Court---Principles.

The normal scheme of selection of civil servants and then their appointments against the posts for which they had been selected, is generally known, is that nothing really intervenes between the two except a ministerial order or a notification. But Rule 8 of West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 has a different story to tell. It clearly prescribes, without any ambiguity, that after a person has been found fit and selected for the post of a Tehsildar and before he is appointed to the said post, a lot needs to be done i.e. he has, inter alia, to successfully complete the prescribed training and to pass the prescribed departmental examination. And the said prescribed training is a two years training ordained by Rules 50 to 58 of the of West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, of 1969 and the said departmental examination is the one envisaged by Rule 3' thereof. It, therefore, follows that a persons selected for appointment does not get appointed as a Tehsildar till he successfully completes the said two years' training and passes the said departmental examination. A reading of Rule 4 and others, including Rules 50 to 58 of the said Rules of 1969, would also reveal that a person so selected for appointment is called a "candidate" till he has successfully completed the said two years training, has passed the requisite departmental examination and is actually appointed/posted as Tehsildar.

A person selected for appointment as a Tehsildar cannot be said to have been appointed to the said post or to have been inducted into service till after he has satisfied the requirements of Rule 8 of the said 1962 Rules.

Jamal Khan's case 1994 SCMR 759 fol.

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

----Art. 212---West Pakistan General Clauses Act (VI of 1956), S.13---Seniority---Conflicting orders of departmental authorities become irrelevant when the matter comes to be decided by the Service Tribunal which is then the forum to determine the issues in question with the final word being with the Supreme Court---When the view of Service Tribunal appeared to have been formed in ignorance of S.13, West Pakistan General Clauses Act, 1956, said view of the Tribunal could not sustain.

(c) West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962---

----R. 8---West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training Rules, 1969---Punjab Civil Servants Act (VIII of 1974), S.23(2)---West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962 and West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and. Training Rules, 1969 were not inconsistent with the provisions of Punjab Civil Servants Act, 1974 and in view of S.23(2) of the said Act, both the Rules, 1962 and 1969 continue to be in force as having been owned and adopted by Punjab Civil Servants Act, 1974.

Ihsan-ul-Haq Ch., Advocate Supreme Court and Ijaz-ul-Ahsan, Advocate Supreme Court for Appellants (in Civil Appeals Nos.702 to 711 of 2008).

Hanif Khatana, Additional Advocate-General along with M. Akram Bhatti, Deputy Secretary (Revenue) for Appellants (in Civil Appeals Nos.712 to 723 of 2008).

Nemo for Appellants (in C.A. No.724 of 2008).

Hanif Khatana, Additional Advocate-General for Respondents (in Civil Appeals Nos.702 to 711 and 724 of 2008).

Riaz Kiani, Advocate Supreme Court for Respondent Malik Ahmed Ali (in Civil Appeals Nos.712 to 723 of 2008).

Iqbal Mehmood Awan, Advocate Supreme Court for Syed Ali Ausat (in Civil Appeals Nos.712 to 723 of 2008).

Nemo for Respondent (in Civil Appeal No724 of 2008).

Other respondents: Ex parte.

Date of hearing: 26th May, 2009.

2009 S C M R 1210

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

Maulana ABDUL AZIZ----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.217 of 2008, heard on 15th April, 2009.

(On appeal from the order, dated 23-6-2008 of the Islamabad High Court, Islamabad in Criminal Miscellaneous No.116-B of 2008).

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

----S. 497---Penal Code (XLV of 1860), Ss.448/427/452/506/147/149---Anti-Terrorism Act (XXVII of 1997), Ss.6/7 & 21-C(4)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Sufficient incriminating material was lacking prima facie connecting the accused with the commission of the alleged offence---Presumption of innocence of accused is always paramount irrespective of the heinousness of the alleged offences---No plausible justification could be given as to why Chowkidar of the Library had failed to nominate the accused in the F.I.R. lodged by him, but implicated him in his supplementary statement---No prima facie case was made out against the accused---Impugned order of High Court refusing bail to accused being laconic could not be kept intact, as the case fell within the ambit of further inquiry---It was not known how the alleged offences were abetted or facilitated by the accused in the absence of any evidence in this regard on record---Section 21-C(4) of the Anti-Terrorism Act, 1997, was not applicable to the case of accused---Submission of challan after a lapse of eight months in the Court by itself was sufficient to grant bail to accused---Ipsi dixit of police regarding guilt or innocence of accused could not be depended upon, as the same would be determined by Trial Court on the basis of evidence, yet to be collected---Accused was admitted to bail in circumstances.

Abdul Haq v. The State 1979 SCMR 254; Ghulam Nabi v. The State NLR 1978 Cri. 328; Sultan Khan v. Amir Khan PLD 1977 SC 642; Haq Nawaz v. Tie State 1969 PCr.LJ 358; Haq Nawaz v. The State 1969 SCMR 174; Mst. Zaro v. The State 1974 SC 11; Muhammad Sadiq v. Sadiq PLD 1985 SC 182; Falak Sher v. The State 1979 SCMR 103; Najeeb Gul v. Khalid Khan 1989 SCMR 899; Syed Amanullah Shah v. The State PLD 1996 SC 241; Arbad Ali v. Khamiso 1985 SCMR 195; Tariq Bashir v. State PLD 1995 SC 34; Shabbir Ahmad v. The State PLD 1977 Lah. 201; Nisar Ahmad v. The State PLD 1971 SC 174 and Mian Mehraj Din and others v. The State 1985 PCr.LJ.2987 ref.

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

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail---Practice and procedure---Intervention by Supreme Court---Supreme Court would not unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused persons, which has to be exercised on sound judicial principles---Supreme Court does not interfere with the discretionary powers of the Courts below in bail matters, unless it is satisfied that the order of lower Court is perverse or has been made in clear disregard of settled norms of justice and principles of law.

Abdul Haq v. The State 1979 SCMR 254; Ghulam Nabi v. The State NLR 1978 Cri. 328; Sultan Khan v. Amir Khan PLD 1977 SC 642; Haq Nawaz v. The State 1969 PCr.LJ 358; Haq Nawaz v. The State 1969 SCMR 174 and Mst. Zaro v. The State 1974 SC 11 ref.

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

----S. 497(2)---Bail---Further inquiry---Where evidence on record is °vague and sketchy and prosecution version leaves much to be inquired into, the bail can be granted by pressing into service the concept of further inquiry as envisaged by S.497(2), Cr.P.C.

Muhammad Sadiq v. Sadiq PLD 1985 SC 182 and Falak Sher v. The State 1979 SCMR 103 ref.

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

---S. 497(2)---Bail---Further inquiry---Accused can claim admission to bail as a right, where Court finds reasonable grounds to believe that he is not guilty of the offences levelled against him.

Najeeb Gul v. Khalid Khan 1989 SCMR 899 ref.

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

---S. 497---Bail---Abetment or instigation---Where evidence with regard to the allegation of abetment or instigation is lacking, the concession of bail can be extended in favour of accused.

Syed Amanullah Shah v. The State PLD 1996 SC 241; Arbad Ali v. Khamiso 1985 SCMR 195; Tariq Bashir v. State PLD 1995 SC 34; Shabbir Ahmad v. The State PLD 1977 Lah. 201; Nisar Ahmad v. The State PLD 1971 SC 174; Mian Mehraj Din and others v. The State 1985 PCr.LJ.2987 and Muhammad said v. Sadiq and others PLD 1985 SC 182 ref.

Shaukat Aziz Siddiqui, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Muhammad Ilyas Siddiqui, Special Prosecutor-General for the State.

Date of hearing: 15th April, 2009.

2009 S C M R 1217

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

LIAQAT ALI----Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Health, Peshawar and others----Respondents

Civil Petition No.307-P of 2007, decided on 10th April, 2009.

(On appeal from the judgment, dated 28-4-2007 of the N.-W.F.P. Service tribunal, Peshawar passed in Appeal No.601 of 2006).

Constitution of Pakistan (1973)---

----Art. 212(3)---Termination from service---Absence from duty---Non­-holding of regular inquiry---Effect---Civil servant who was involved in criminal case was terminated during the period when he remained fugitive from law---Plea raised by civil servant was that he was acquitted from criminal charge and no regular inquiry was conducted to probe into the matter---Validity---Involvement of civil servant in criminal case and his wilful absence from duty were never denied by him, therefore, non-holding of regular inquiry did not cause any prejudice to him---Civil servant had been dealt with fairly and was terminated by competent authority after completing all codal formalities---Service Tribunal discussed the matter in depth and assigned cogent and sound reasoning before dismissing appeal filed by civil servant---Neither any misreading or non-reading of material on file could be pointed out in judgment passed by Service Tribunal, justifying interference by Supreme Court, nor any substantial question of law of public importance was involved in the case---Supreme Court declined to interfere in judgment passed by Service Tribunal---Leave to appeal was refused.

Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCMR 57 distinguished.

Khaliq Dad v. Inspector General of Police and 2 others 2004 SCMR 192 and Government of N.-W.F.P through Secretary, Finance, Excise and Taxation Department, Peshawar and 2 others v. Aurangzeb 2003 SCMR 338 ref.

Roohul Amin Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2009 S C M R 1220

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Sheikh Hakim Ali and Sardar Muhammad Aslam, JJ

MUHAMMAD TARIQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.247of 2006, decided on 4th May, 2009.

(On appeal from the judgment, dated 28-3-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No.1693 of 2003).

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Sentence of death of accused only was sought to be converted into imprisonment for life---Different punishments of death, imprisonment for life and 14 years' R.I. enumerated in S.9(c) of Control of Narcotic Substances Act, 1997, had given a discretion to the Court in the matter of imposition of sentence on the accused, considering the facts and circumstances of each case---Some accused might be involved in the commission of the offence of S.9(c) of the said Act, but their role, part, act or omission, character or conduct, might call for lesser punishment than of death---Case of first offender who was not a drug baron could fall in such domain---Accused having no antecedents of any criminal case and he being not an incorrigible, desperate or hardened criminal, might deserve punishment lesser than death, in the interest of justice---Extreme penalty of death in such cases could be withheld in order to grant a chance to accused to mend his ways in his future life---In the present case, accused was not previously involved in any case of such nature and he was a first offender---Extreme penalty of death was too harsh to be imposed upon the accused and his death sentence was converted into imprisonment for life in circumstances.

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

Niaz Ahmed Rathore, Advocate Supreme Court for the State.

Shah Khawar, A.A.-G., Punjab on Court call.

Date of hearing: 4th May, 2009.

2009 S C M R 1223

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

EVACUEE TRUST PROPERTY BOARD----Appellant

Versus

Sheikh ABDUL SATTAR and another----Respondents

Civil Appeals Nos.487 to 490 of 2002, decided on 22nd April, 2009.

(Against judgment, dated 18-5-1999 of the Lahore High Court, Lahore passed in Civil Revisions Nos.330, 331, 332 and 333 of 1985).

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

----S. 10(2)-Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court, inter alia, to consider whether the High Court had interpreted S.10(2) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, contrary to the observations made by Supreme Court in the case of Federation of Pakistan v. Mufti Iftikhar-ud-Din and another 2000 SCMR 1, if so, to what effect.

Federation of Pakistan through Secretary, Ministry of Religious affairs/Ministry Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another 2000 SCMR 1 ref.

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

---Ss. 10(2) & 14---Bar of jurisdiction of civil court---Scope---Only those orders passed by the Chairman, Evacuee Trust Properties Board are protected from calling in question in any court which were passed strictly within the scope and purview of S.10(2) of Evacuee Trust Properties (Management and Disposal) Act, 1975 and none else and; therefore, in all cases of evacuee trust property jurisdiction of civil court cannot be ousted---Principles.

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

---S. 10(2)(3)---Chairman Evacuee Trust Properties Board was debarred from taking any decision under S.10(2) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 without giving the person affected a reasonable opportunity of being heard---Owners of the property having purchased from the transferee of same were the affected persons and, therefore, they had an inalienable right to be heard by the Chairman of Evacuee Trust Properties Board and in absence whereof, the Chairman was not competent to decide the matter or pass any order---Affected person having neither been served nor represented, the order passed by the Chairman was violative of proviso to S.10(3) of the Act---No adverse order could be passed at the back of a party/affected person without providing him opportunity of hearing, otherwise he or she would be deprived of his/her vested right or interest.

Atta-ur-Rehman v. Sardar Umar Farooq PLD 2008 SC 663 and Muhammad Ali Rind v. Zahoor Ahmed PLD 2008 SC 412 ref.

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

---Ss. 10(1)(b), 10(2) & 14---Transfer of property before the target date given in S.10(1)(b), Evacuee Trust Properties (Management and Disposal) Act, 1975 shall be deemed to have been validly transferred and in such eventualities the only order which could be passed by the Chairman, Evacuee Trust Properties Board on the application was to make a claim to the Chief Settlement Commissioner for reimbursement of the sale proceeds of the property---Bar contained in S.14 read with S.10(2) of the Act was not attracted---Principles.

Muhammad Nazir Khan v. Ahmad 2008 SCMR 521; Hamid Hussain v. Government of Pakistan and others 1974 SCMR 356 and Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 ref.

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

----Art. 185---Appeal to Supreme Court---Scope---No misreading or non-reading of the evidence on record had been pleaded---Appellant could not point out any material on record, which could pursuade the Court to a view contrary to the one adopted by the High Court and reverse the findings concurrently arrived at by all the Courts---Appeal was dismissed.

Mian Qamar-uz-Zaman, Advocate Supreme Court for Appellants (in all Appeals).

Khan Muhammad Vehniwal, Advocate Supreme Court for Respondents (in all Appeals).

Date of hearing: 22nd April, 2009.

2009 SCMR 1232

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Sheikh Hakim Ali and Sardar Muhammad Aslam, JJ

MUHAMMAD AZAM and others----Applicants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.400-L of 2006 in Criminal Appeals Nos.824 and 825 of 2006, decided on 8th May, 2009.

(On appeal from the judgment, dated 27 and 28-6-2005, passed by the Lahore High Court, Lahore in Criminal Appeals Nos.345 and 346 of 2000 and Murder Reference No.312 of 2000).

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

----S. 417---Appeal against acquittal---Extent and scope---Principles---Findings of Court acquitting the accused must be proved to be perverse, arbitrary, whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, false, based on misreading of material evidence, on inadmissible evidence, on a view not possible to gather from the evidence on the record, highly conjectural, or based on surmises unwarranted in law---Acquitted accused is credited with two advantages, one his innocence at the pre-trial stage and the other earned by him after his acquittal by a Court of competent jurisdiction.

Ahmad v. The Crown PLD 1951 FC 107; Fateh Muhammad v. Bagoo and, others PLD 1960 SC 286; Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Feroze Khan v. Captain Ghulam Nabi Khan and another PLD 1966 SC 424; Usman Khan and others v. The State PLD 1969 SC 293; Noora and another v. The State PLD 1973 SC 469; Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Taj Muhammad v. Muhammad. Yusuf and 2 others PLD 1976 SC 234; Farid v. Aslam and 4 others PLD 1977 SC 4; Ali Sher v. The State and 3 others PLD 1980 SC 317; Mst. Habibunnisa alias Mst. Bivi v. Zafar Iqbal and another 1981 SCMR 95; Capt. Mahmood Jan v. Madad Khan and another 1981 SCMR 474; State through Advocate-General, N.-W.F.P. Peshawar v. Amir Nazar and others PLD 1981 SC 286; Nazir Ahmad v. Muhammad Din and others 1981 SCMR 415; Ghulam Sikandar and another v. Mamaraz Khan and others- PLD 1985 SC 11; Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477; Khan v. Sajjad and 2 others 2004 SCMR 215; Mst. Moodan v. Saifullah and 2 others 2004 SCMR 923; Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCMR 1209; Mst. Zahida Saleem v. Muhammad Naseem and others PLD 2006 SC 427; Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 ref.

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

----Ss. 302(b)/34, 324/34 & 337-F(ii)/34---Constitution of Pakistan (1973), Art.185---Appeal against acquittal---F.I.R. was belated due to precarious condition of the complainant---No independent witness from the locality was produced by prosecution---Witnesses admittedly present at the time of alleged occurrence and named by the prosecution itself were given up, inference being that they were not supporting the prosecution case---Whole case of prosecution was raised upon the ocular testimony of the informant and his son, who could not be termed as independent witnesses to convict the acquitted accused, particularly when presence of the said son of the complainant had been proved on the record to be doubtful at the scene of occurrence---Accused had no animosity or ill-will against the three deceased persons and immediate cause of their murders was not known---View of innocence taken by High Court qua the accused was not open to any interference---Appeal against acquittal of accused was dismissed accordingly.

Ahmad v. The Crown PLD 1951 FC 107; Fateh Muhammad v. Bagoo and others PLD 1960 SC 286; Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Feroze Khan v, Captain Ghulam Nabi Khan and another PLD 1966 SC 424; Usman Khan and others v. The State PLD 1969 SC 293; Noora and another v. The State PLD 1973 SC 469; Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Taj Muhammad v. Muhammad Yusuf and 2 others PLD 1976 SC 234; Farid v. Aslam and 4 others PLD 1977 SC 4; Ali Sher v. The State and 3 others PLD 1980 SC 317; Mst. Habibunnisa alias Mst. Bivi v. Zafar Iqbal and another 1981 SCMR 95; Capt. Mahmood Jan v. Madad Khan and another 1981 SCMR 474; State through Advocate-General, N.-W.F.P. Peshawar v. Amir Nazar and others PLD 1981 SC 286; Nazir Ahmad v. Muhammad Din and others 1981 SCMR 415; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477; Khan v. Sajjad and 2 others 2004 SCMR 215; Mst. Moodan v. Saifullah and 2 others 2004 SCMR 923; Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCMR 1209; Mst. Zahida Saleem v. Muhammad Naseem and others PLD 2006 SC 427; Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 ref.

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

---Ss. 302(b)/34, 324/34, 337-F(ii)/34 & 302(c)/34---Appraisal of evidence---Accused had not caused murder of the deceased or any injury to the complainant according to the prosecution case itself---Prosecution, therefore, could not claim the conviction and awarding of death sentence to accused on the basis of its own evidence, which had been disbelieved qua the three accused---Confessional statement of accused recorded under S.342, Cr.P.C. thus, had to be accepted or rejected as a whole--Accused had exceeded in his right of self-defence and had suppressed the real story regarding the injuries caused to the deceased lady--Indiscriminate firing allegedly resorted to by the accused after the injured had fallen on the earth and active participation of accused in the occurrence confessed by himself, which took the lives of three deceased persons, had made the accused vicariously liable and he was consequently convicted under S.302(c)/34, P.P.C. and sentenced to 14 years' R.I. thereunder---Conviction of accused under S.302(b)/34, P.P.C. was set aside, but his remaining convictions and sentences were upheld in circumstances.

Farman Ali and 2 others v. The State 1992 SCMR 2055; The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 and Faiz and another v. The State 1983 SCMR 76 ref.

Muhammad Masood Chishti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellants (in Criminal Appeal No.824 of 2006).

Sardar Muhammad Ishhaq Khan, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.825 of 2006).

Muhammad Siddique Khan Baloch D.P.-G., Punjab for the State (in Criminal Appeal No.824 of 2006).

Sardar Muhammad Ishhaq Khan Senior Advocate Supreme Court for the Complainant (in Criminal Appeal No.824 of 2006).

Muhammad Siddique Khan Baloch D.P.-G., Punjab for Respondent No.1(in Criminal Appeal No.825 of 2006).

Mian Aftab Farrukh, Senior Advocate Supreme Court for Respondents Nos.2 to 4 (in Criminal Appeal No.825 of 2006).

Date of hearing: 8th May, 2009.

2009 S C M R 1243

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

WAQAR HAIDER BUTT----Petitioner

Versus

JUDGE, FAMILY COURT and others----Respondents

Civil Petition No.608 of 2009, decided on 5th May, 2009.

(Against the judgment, dated 9-2-2009 passed by Lahore High Court, Lahore in Writ Petition No.1461 of 2009).

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

----S. 5---Constitution of Pakistan (1973), Art.185(3)---Recovery of maintenance---Concurrent findings of fact by the Courts below---Jurisdiction of Supreme Court---Scope---Suit filed by wife and minor children was decreed in their favour and appeal filed by husband was partly allowed by Lower Appellate Court and monthly maintenance allowance of minors was reduced---High Court in exercise of constitutional jurisdiction declined to interfere in judgment and decree passed by Lower Appellate Court---Validity---Petition under Art.199 of the Constitution was not maintainable against concurrent findings of Tribunals below---Both the Courts below had given findings of fact against husband, therefore, High Court was justified to dismiss constitutional petition and the same was in accordance with law laid down by Supreme Court---Normally Supreme Court did not meddle with findings of fact reached at by primary Courts or High Court when it was satisfied that findings of Courts below were reasonable and were not arrived at by disregarding any of the provisions of law or any accepted principle concerning appreciation of evidence, notwithstanding that a different view might also was possible---High Court, while exercising constitutional jurisdiction had rightly refused to interfere with findings of fact recorded by Courts of competent jurisdiction---Supreme Court did not find any infirmity or illegality or any misreading of evidence on record by the Courts below---Leave to appeal was refused.

Khuda Bakhsh v. Muhammad Sharif and another SCMR 1974 SC 279; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Begum Wazir Ahmad Industrial Home's case PLD 1976 SC 214; Tayyab Khan's case 2000 CLC 558 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

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

----Art. 185(3)---Civil petition for leave to appeal---Supreme Court, jurisdiction of----Scope---Concurrent findings of fact by the Courts below---Principle---Supreme Court does not normally go behind concurrent findings of fact recorded by Courts below, unless it can be shown that the findings were on the face of it against evidence or so patently improbable or perverse that to accept same would amount to perpetuating grave miscarriage of justice or if there had been any misapplication of principle relating to appreciation of evidence, or finally if finding could be' demonstrated to be physically impossible---Such being the practice and rule of Supreme Court in civil petitions, burden lay rather heavily on petitioner to show that concurrent findings recorded by High Court are not sustainable on record and should be interfered with by Supreme Court.

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

----Art. 184(3)---Constitutional jurisdiction---Scope---Constitutional jurisdiction is always discretionary in character---He who seeks equity must come with clean hands.

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

----Art. 185(3)---Leave to appeal---Principle---Such leave from Supreme Court cannot be claimed as of right because essentially it is matter of discretion.

Noora's case PLD 1973 SC 469 and Fazal Din's case 1971 SCMR 186 rel.

Sana Ullah Zahid, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2009 S C M R 1256

[Supreme Court of Pakistan]

Present: Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

MUHAMMAD BASHIR----Appellant

Versus

MUHAMMAD HUSSAIN and 16 others----Respondents

Civil Appeal No.771 of 2002, decided on 16th June, 2009.

(On appeal from the judgment, dated 5-3-2002 passed by a learned Judge-in-Chamber of Lahore High Court, Bahawalpur Bench, in R.S.A. No.49 of 1997).

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

---O. XIV, R.1---Non-framing of issues is' an illegality amounting to exercise of jurisdiction illegally or with material irregularities.

Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 fol.

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

----S. 5---Bahawalpur State Notification No.74, dated 12-6-1944---Civil Procedure Code (V of 1908), O.XIV, R.1---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Pre-emption right of---Exemption---Non-framing of issue with regard to assertion on exemption---Effect---Land vesting in the Provincial Government was not pre-emptible in view of Notification No.74, dated 12-6-1944 relating to Bahawalpur State---Where the objection raised in the written statement of appellant regarding exemption from pre-emption of the suit-land was not put to an issue, appellant who raised the objection, was seriously prejudiced in not being able to produce evidence to prove the assertion---Supreme Court, in circumstances, framed the issue, remitted the case to Trial Court for decision afresh, after granting an opportunity to produce evidence on the issue.

Muhammad Aslam and others v. Shabbir Ahmad and others PLD2003 SC 588; Abdullah v. Muhammad Hayat and 2 others 1994 SCMR 90; Noor Muhammad through his Legal Heirs v. Muhammad Tufail & others 1991 SCMR 512; Ahmad and others v. Ghulam Haider 1972 SCMR 357 and Mst. Rehmat Bibi v. Nathe Khan and others PLD 1969 SC 197 ref.

(c) Appeal (Civil)---

----On filing of an appeal the entire matter reopens and becomes sub judice and has to be decided in accordance with law prevalent---If a ground is raised but not pressed, which relates to fundamental-question, same can be considered by the Court in appeal.

The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1 and Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895 fol.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Appellant.

Abdul Rashid Awan, Advocate Supreme Court for Respondents Nos.1 to 3.

Respondents Nos.4 to 7: Ex parte.

Date of hearing: 16th June, 2009.

2009 SCMR 1260

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD TARIQ alias TARA and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.448 and 449 of 2005, decided on 6th May, 2009.

(On appeal from the judgment, dated 9-6-2005 of the Lahore High Court, Lahore passed in Criminal Appeal No.703 of 2000).

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

----Ss. 302(b)/34 & 324/34---Appraisal of evidence---Motive for the occurrence stood established---Injured eye-witness whose presence on the spot at the time of occurrence could not be doubted, had fully supported the complainant and the prosecution case---F.I.R. was promptly lodged leaving no room for fabrication---Identity of accused could not entertain any doubt in a daylight occurrence---Ocular testimony was consistent---Gun recovered from one accused had matched with the crime-empties secured from the spot---Although crime-empties had not matched with the pistol recovered from the other accused, yet it did not make his case doubtful on account of his participation in the occurrence having been fully proved by evidence on record---Medical evidence had fully corroborated the ocular account and the injuries caused by both the accused to the deceased---Accused were named in the F.I.R. with their respective roles and the weapons used by them---Long incarceration would not make the accused" entitled to lesser punishment in the absence of any mitigating circumstance in their favour---Appeals were dismissed in circumstances.

Ijaz Ahmad v. The State 2009 SCMR 99 and Abdul Malik v. The State and others PLD 2006 SC 365 ref.

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

----Ss. 302(b)/34 & 324/34---Appreciation of evidence---Related witnesses---Credibility---Close relationship of prosecution witnesses is no ground to discard their testimonies.

Ijaz Ahmad v. The State 2009 SCMR 99 ref.

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

----S. 302(b)/34---Sentence---Long incarceration of accused does not bestow them with a right to get lesser punishment.

Abdul Malik v. The State and others PLD 2006 SC 365 ref.

Ch. Abdus Saleem, Barrister-at-Law, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.448 of 2005).

Qari Abdur Rashid, Advocate Supreme Court for Appellants (in Criminal Appeal No.449 of 2005).

Nemo for the Complainant.

Ms. Rukhsana Malik, Additional P.-G., Punjab for the State.

Date of hearing: 6th May, 2009.

2009 SCMR 1265

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

SHARIF AHMAD and another----Appellants

Versus

GHULAM RASOOL and others----Respondents

Civil Appeals Nos.2292 and 2293 of 2001, decided on 10th June, 2009.

(On appeal from the judgment, dated 5-10-2001 passed by the Lahore High Court, Lahore in Civil Revision No.1158/D of 1992 and 1159/D of 1992).

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

----S. 5---Civil Procedure Code (V of 1908), O.VI, R.7---Pre-emption suit---Application under O.VI, R.7, C.P.C. for amending the plaint so as to include the assertion of being owners in Patti and Khata, was required to be decided in accordance with law i.e. Muhammad Anwar and 3 others v. Allah Bakhsh and another 1986 SCMR 1575---Impugned judgment of High Court was set aside, the revision petition would be deemed pending before the High Court enabling it to decide the application after affording due opportunity to contest the same by filing reply thereto, so that the other side may take such pleas as warranted i.e. the conduct of appellants---Supreme Court observed that matter being fairly old one, it was expected that same will be heard and decided by High Court, at some early date.

Muhammad Anwar and 3 others v. Allah Bakhsh and another 1986 SCMR 1575 fol.

Mst. Ghulam Bibi and others v. Sarsa Khan .and others PLD 1985 SC 345 ref.

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Appellants (in both cases).

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondents Nos.1 to 6 (in both cases).

Respondents Nos.7 and 8: Ex parte (in both cases).

Date of hearing: 10th June, 2009.

2009 SCMR 1268

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

PEER DIL and others----Petitioners

Versus

DAD MUHAMMAD----Respondent

Civil Petition No.79/'Q of 2008, decided on 28th May, 2009.

(On. appeal from the judgment, dated 15-7-2008 passed by the High Court of Balochistan, Quetta in Civil Revision No.111 of 2006).

Civil Procedure Code (V of 1908)---

----O. XXIII, R.3---Consent decree based on compromise between the parties can safely be equated to that of a contract, breach whereof would give rise to the fresh cause of action and a fresh suit can be filed by an aggrieved person for the redressal of his grievances---Principles.

Arunachallam v. Sethupathi AIR 1925 Mad. 1260; C.J. Smith v. A. Kenny AIR 1924 Pat. 231; Jahuri Lal v. Kandhai Lal AIR 1935 Pat. 123; Hiralal v. Durga Bai AIR 1937 Nag. 413; Mitha v. Ramat Dass AIR 1937 Lah. 828; Amin Cotton Co. Ltd. v. Muhammad Jamil and Co. PLD 1967 Kar. 795; A.R. Khan v. P.N. Bogha through Legal Heirs PLD 1987 SC 107; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and others PLD 1986 SC 542; Abdul Wahab and others v. Habib Ali and others PLD 1969 Lah. 365; Muhammad Hussain and others v. Walayat Shah and others PLD 1959 Lah. 526; Zahir-ul-Said Alvi v. Lachhmi Narayan AIR 1932 PC 251; Surendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158; Sajjad Hussain v. Musarat Hussain Shah 1989 SCMR 1826; Ramchandra Dec Garu v. Chaitana Sahu and others AIR 1920 PC 139; Chandoo v. Murlidhar and others AIR 1926 Oudh 311; Halsbury's Laws of England. Fourth Edition. Vol.37 para.382 and Vol.3 para.1118; Nazir Ahmad v. Ghulama 1987 SCMR 1704; Shah Wali v. Ghulam Din PLD 1966 SC 983; Khurshid Akbar v. Manzur Ahmad 1982 SCMR 824; Bhai Khan v. Allah Bakhsh 1986 SCMR 849 and Halsbury's Laws of England, Fourth Edn. Vol.37, para.390 ref.

Jamal Khan Mandokhail, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 28th May, 2009.

2009 SCMR 1273

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUHAMMAD YAQOOB----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.199 of 2003, decided on 6th May, 2009.

(On appeal from the judgment, dated 22-10-2002 of the Lahore High Court, Multan Bench passed in Criminal Appeal No.302 of 1999).

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

---S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by Supreme Court to examine whether he was entitled for modification in the quantum of his sentence in view of the judgment in the case of Khawand Bakhsh v. State PLD 2000 SC 1, relied upon by him.

Khawand Bakhsh v. State PLD 2000 SC 1 ref.

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

---Art. 185---Appeal to Supreme Court---Appraisal of evidence---Principle---Each case has to be adjudged on its own facts and circumstances---Supreme Court can come to its own independent findings upon re-examination of the evidence untrammelled by the opinions of the lower Courts.

Noora and another v. The State PLD 1973 SC 469 ref.

(c) Precedents---

----Application of---Jurists and Judges possessed of rich experience and a long line of rulings in criminal cases tell us that there is hardly a criminal case which would be cent per cent identical on all fours to other case---Background and causes for commission of offence may differ from case to case---Ruling in one criminal case, therefore, is carefully considered before citing it as a precedent in its application to the other.

(d) Precedents---

----Application and scope---Everything said in a judgment more particularly in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case; it may be regarded as having a persuasive value rather than a binding precedent.

The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

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

----S. 302(b)---Appraisal of evidence---Sentence, reduction in---Complainant for the murder of his son had roped in fourteen persons including the accused---None had received any injury from the complainant side except the deceased, despite alleged large scale indiscriminate firing---Previous long standing enmity existed between the parties including litigation upto the level of Supreme Court---Thirteen co-accused of accused had already been acquitted---Although accused was stated to be armed with a .222 rifle and crime-empties of the same calibre were also recovered from the spot, yet during investigation a .7 mm licensed rifle was recovered from him, which to some extent weighed against the prosecution and a circumstance akin to the mitigating circumstance in his favour---Conviction of accused was upheld but his sentence of death was altered to imprisonment for life in circumstances.

Khawand Bakhsh v. State PLD 2000 SC 1 rel.

Israr Ali v. The State 2007 SCMR 525; Ansari Ahmad Khan Barki v. The State 1993 SCMR 1660; Allah Dad and another v. The State 1995 SCMR 142; Muhammad Tahir Khan v. The State 1983 SCMR 1169; Noor and another v. The State PLD 1973 SC 469 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Asif Mumtaz, D.P.-G., Punjab for the State.

Date of hearing; 28th April, 2009.

2009 S C M R 1279

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C J, Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

Civil Appeal No.778 of 2005

COMMISSIONER OF INCOME TAY----Appellant

Versus

Messrs ELI LILLY PAKISTAN (PVT.) LTD.----Respondent

(On appeal from the judgment dated 30-3-2005 passed by the High Court of Sindh, Karachi in C.P. No. D-652 of 2004)

C.As. Nos. 876 to 879 of 2005

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs HONDA SHAHRA-E-FAISAL (AOP) and 3 others----Respondents

(On appeal from the judgment dated 2-3-2005 passed. by High Court of Sindh, Karachi in C.Ps. 643 to 646 of 2004)

C.As. Nos. 1601 to 1625 of 2006

COMMISSIONER OF INCOME TAX----Appellant.

Versus

Messrs AERO ASIA INTERNATIONAL (PVT.) LTD. and others----Respondents

(On appeal from the judgments dated 5-10-2006, 24-1-2006, 26-1-2006, 16-3-2006, 24-3-2006, 12-4-2006, 29-3-2006, 30-3-2006, 21-4-2006, 7-4-2006, 28-3-2006, 9-5-2006, 10-8-2006, passed by High Court of Sindh, Karachi in C.P. No.379/05, C.Ps. Nos. D-378/05, 1707/05, ITRAs Nos.245 to 247/06, 169/06, ITRs Nos.177 to 179/06, ITRAs Nos.196-196-A/06, 197 to 198/06, 256/06, 203/06, 26/06, 225/06, 224/06, 235/06, 239/06,'230 to 231/06, 264/06, D-652/04 and C.P. No.643/04)

C.As. Nos. 2670 to 2687 of 2006

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs B.P. INDUSTRIES LTD. and others----Respondents

(On appeal from the judgments dated 22-8-2006, 31-5-2006, 15-9-2006, 26-9-2006, 22-9-2006, 28-9-2006 passed by High Court of Sindh, Karachi in ITRs Nos. 404 to 406, 492/06, 272/06, 436 to 439/06, 450 to 452/06, 512 to 513/06, 263/06, 298/06 and 307 to 308/06)

C.As. Nos. 585 to 595 of 2007

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs EVIAN FATS AND OIL (PVT) LTD. and others----Respondents

(On appeal from the judgment dated 19-10-2006, 28-11-2006,14-11-2006, 13-10-2006, 26-9-2006, 10-10-2006, 17-10-2006, 17-11-2006, passed by High Court of Sindh at Karachi in ITRAs. Nos.490/06, 49/06, 555/06, 559/06, 539/06, 510 and 511/06, 536 and 537/06, 541/06 and 558/06)

C.As. Nos. 706 to 707 of 2007

COMMISSIONER OF INCOME TAX----Appellant

Versus

DAUD AHMED----Respondent

(On appeal from the judgment dated 21-11-2006 and 24-01-2007, passed by High Court of Sindh, Karachi in ITRAs Nos.472 and 473/06)

C.As. Nos. 1369 to 1404 of 2007

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs WAKEN HUT (PVT.) LTD. and others----Respondents

(On appeal from the judgments dated 24-1-2007, 11-1-2007, 20-2-2007, 21-5-2007, 6-2-2007, 12-9-2007, 18-5-2007, 26-4-2007, 22-10-2007, passed by High Court of Sindh, Karachi in ITRAs Nos.603/06, 590/06, 23 & 24/07, 613 & 614/06, 5 to 7/07, 604/06, 211/06, 73/07 and 92 to 115/07)

C.As. Nos. 459 to 501 of 2008

COMMISSIONER OF INCOME TAX- --Respondent

Versus

Messrs S.C. JHONSON & SONS (PVT.) LTD. and others----Respondents

(On appeal from the judgments dated 22-10-2007, 30-11-2006, 26-10-2007, 31-10-2007, 17-12-2007, passed by High Court of Sindh, Karachi in ITRs Nos.233 to 265/07, 576-577/06, 578/06, 197/07, 230 to 232/07 and 380 to 382/07)

C.As. Nos. 783 to 791 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs NATIONAL HIGHWAY AUTHORITY and another----Respondents

(On appeal from the judgment dated 3-4-2008, 2-4-2008, passed by Islamabad High Court, Islamabad in RAs. Nos. 50 to 52, 56 to 58/07, 62/07 and 63/07).

C.As. Nos. 803 to 1039 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

KHALID JAVED and others----Respondents

(On appeal from- the judgments dated 3-4-2008, 2-4-2008, 7-4-2008, 14-4-2008, 10-4-2008, passed by Lahore High Court, Multan Bench in PTRs Nos. 10/07, 10/06, 27/06, 35/06, 04/07, 64/07, 11-12/07, 23-25/07, 30-33/07, 47-52/07, 61/07, 63/07, 16/08, 19/08, 42/08, 09/07, 17/07, 18/07, 54-56/07, 76/07, 59/07, 26-27/08, 30/08, 386/06, 372/07, 405-406/07, 531/07, 533/07, 550-51/07, 612-14/07, 661 to 63/07, 674/07, 698/07, 849/07, 880-81/07, 532/07, 534/07, 540/07, 1-3/08, 513/07, 629/07, 635/07, 707-10/07, 816/07, 821/07, 469-471/07, 630-33/07, 773/07, 777-780/07, 805-808/07, 830-831/07, 886-888/07, 334-339/07, 511-12/07, 625-26/07, 636-39/07, 715/07, 123/07, 202/07, 206/07, 221-22/07, 241-42/06, 251-52/07, 355/06, 360/06, 374-375/07, 413/06, 464/07, 505-507/07, 580-584/07, 593-596/07, 679/07, 841/07, 882-885/07, 208/06, 356/06, 592/07, 172-173/07, 289-290/07, 347-348/07, 359/07, 415/07, 418-421/07, 459/07, 461/06, 465/07, 446/07, 467-468/07, 495-499/07, 519-520/07, 640/07, 642-644/07, 684/07, 793/07, 823-824/07, 837-838/08, 842-844/07, 852-864/07, 37/07, 78/08, 114/07, 151-154/07, 166-171/07, 174/07, 248-250/07, 262-263/05, 118/06, 23-24/07, 34 and 36/07, 102/07, 177-179/07, 183-184/07, 189/07, 244/07, 294/07, 358/07, 391-92/07, 462-63107, 734/07 and 4/08).

C.As. Nos.1148 to 1150 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

QAMAR-UZ-ZAMAN----Respondent

(On appeal from the judgment dated 12-3-2008 passed by Lahore High Court, Rawalpindi Bench in TRs. Nos.60/07 and 100-101/06).

Civil Petition No.1245 of 2008

COMMISSIONER OF INCOME TAX----Petitioner

Versus

Messrs ATTOCK REFINERY LTD., MORGAH, RWP.----Respondent

(On appeal from the judgment dated 13-3-2008 passed by Lahore High Court, Rawalpindi Bench in T.R. No.110 of 2006).

C.As. Nos.1492-1509 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs JHELUM VALLEY COAL (PVT.) LTD. and others----Respondents

(On appeal from the judgment dated 10-4-2008 passed by Lahore High Court, Lahore in PTRs Nos. 460-61/06, 453/06, 500/07, 617-18/07, 817-818/07; 832-833/07, 868-70/07 and 889-93/07)

C.As. Nos.1847 to 1849 of 2008

COMMISSIONER (LEGAL DIVISION)----Appellant

Versus

CHERAT ELECTRIC LTD. KARACHI----Respondent

(On appeal from the judgment dated 17-9-2008 passed by Lahore High Court, Lahore in I.T.R.As. Nos.230-32/07).

C.As. Nos. 2257-2281, 2283-2311 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

ZAMEER PARVEZ SHAH and others----Respondents

(On appeal from the judgment dated 23-9-2008 passed by Lahore High Court, Lahore in PTRs Nos. 35-36/08, 106-108/08, 207/08, 316-18/08, 338-39/08,. 438/08, 47/08, 63-67/08, 98-99/08, 133-36/08, 163/08, 165-74/08, 253/08, 274/08, 348/08, 409/08, 432-33/08, 25/08, 175-76/08, 250/08, 252/08, 320/08, 323/08, 325/08, 327/08, 330-31/08, 333/08 and 335/08).

C.A. No. 1322 of 2007

C.B.R. through Chairman and others----Appellants

Versus

Messrs SIARA INDUSTRIES----Respondent

(On appeal from the judgment passed by Lahore High Court, Lahore in W.P. No. 3474/03)

C.As. Nos. 115 to 118 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs MUHAMMAD ALAM FERTILIZERS----Respondent

(On appeal from the judgment dated 24-9-2007 passed by Peshawar High Court, Peshawar in TRs. Nos. 32 to 35/07)

C.A. No. 1491 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus?

Messrs SULTAN TRADING COMPANY----Respondent

(On appeal from the judgment dated 10-4-2008 passed by Lahore High Court, Lahore in PTR No.147/05)

C.As. Nos. 7 to 9 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs FRONTIER SUGAR MILLS----Respondent

(On appeal from the judgment dated 22-10-2008 passed by Peshawar High Court in TRs. Nos.61-63/07)

C.As. Nos. 1984 to 2046 of 2007

COMMISSIONER OF INCOME TAX----Appellant

Versus

A.C.B. (PVT.) LTD. and others----Respondents

(On appeal from the judgment dated 18-5-2007 passed by High Court of Sindh at Karachi in ITRAs. Nos. 42-70/07, 126-128/07, 129-140/07, 142-147/07, 170-171/07,187-195/07 and 120-121/07).

C.As. Nos. 291 to 292 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs ISLAM OIL MILLS----Respondent

(On appeal from the judgment dated 31-10-2007 passed by High Court of Sindh, Karachi in ITRAs. Nos.149-150)

C.As. Nos. 1099 to 1101 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

Mst. NUSRAT SULTANA----Respondent

(On appeal from the judgments dated 10-4-2008 passed by Lahore High Court, Multan Bench in PTRs Nos.9-11/08

Civil Petitions Nos. 12 & 13 of 2009

COMMISSIONER OF INCOME TAX----Appellant

Versus

Hakim ABDUL WAHEED AFGHANI DAWAKHANA----Respondent

(On appeal from the judgment dated 23-9-2008 passed by Peshawar High Court, Peshawar in TRs Nos. 33-34/08)

C.As. Nos. 30 to 32 of 2009

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs LAHMAYAR INTERNATIONAL and another----Respondents

(On appeal from the judgment dated 31-10-2008 .passed by High Court of Sindh, Karachi in ITRAs Nos. 985-86/08 and 397/07)

C.As. Nos. 33 to 57 of 2009

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs ALI BRICKS COMPANY and others----Respondents

(On appeal from the judgment dated 23-9-2008 passed by Lahore High Court, Lahore in PTRs. Nos.17-19/08, 31/08, 77-78/08, 147-150, 206/09, 226-31/08, 264-68/08, 384/08 and 399-400/08).

C.As. Nos. 112 & 113 of 2009

COMMISSIONER OF INCOME TAX----Appellant

Versus

JACK & JELL PUBLIC SCHOOL----Respondent

(On appeal from the judgment dated 4-11-2008 passed by Peshawar High Court, Peshawar in TRs Nos.108-109/07)

C.As. Nos. 122 & 123 of 2009

COMMISSIONER OF INCOME TAX----Appellant

Versus

Haji MUHAMMAD AMIN and another----Respondents

(On appeal from the judgment dated 6-11-2008, passed by Peshawar High Court, Peshawar in TRs. Nos.84, 98/06)

C.As. Nos. 163 & 164 of 2009

COMMISSIONER OF INCOME TAX----Appellant

Versus

Messrs AGRICULTURE DEVELOPMENT BANK and another----Respondents

(On appeal from the judgment dated 9-4-2008 passed by Islamabad High Court in ITRs. Nos.842-843 of 2008)

C.As. Nos.281-283 of 2009

COMMISSIONER, OF INCOME TAX----Appellant

Versus

Messrs ALLIED PAK INDUSTRIES (PVT.) LTD. and another----Respondents ?

(On appeal from the judgment dated 1-12-2008 and 19-11-2008 passed by Peshawar High Court, Peshawar in TRs. Nos. 21/07 and 74-75/07).

C.As. Nos.1102 to 1110 of 2008

COMMISSIONER OF INCOME TAX----Appellant

Versus

Sheikh ASGHAR MEHMOOD and another----Respondents

(On appeal from judgment dated 10-4-2008, passed by Lahore High Court, Multan Bench in PTRs Nos. 12/08, 1/08, 14-16/08, 25/07, 127/07; 175-176/07, 9-10/08 and 11/07)

Civil Appeals Nos.778, 876 to 879 of 2005, 1601 to 1625, 2670 to 2687 of 2006, 585 to 595, 706, 707, 1369 to 1404 of 2007, 459 to 501, 783 to 791, 803 to 1039, 1148 to 1150; 1245, 1492 to 1509, 1847 to 1849, 2257 to 2281, 2283 to 2311 of 2008, 1322 of 2007, 115 to 118, 1491, 7 to 9 of 2008, 1984 to 2046 of 2007, 291, 292, 1099 to 1101 of 2008, Civil Petitions Nos.12, 13 of 2009 Civil Appeals Nos.30 to 32, 33 to 57, 112, 113, 122, 123, 163, 164, 281 to 283 of 2009 and 1102 to 1110 of. 2008, heard on 19th May, 2009.

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 122(5A)---Constitution of Pakistan (1973), Art.185(3)---Amendment of assessment---Leave to appeal was granted by Supreme Court, inter alia, to examine whether provision contained in subsection (5A) of S.122, Income Tax Ordinance, 2001 inserted w.e.f. 1st July, 2003 was procedural in nature and was retrospective in operation or otherwise.?

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 122---Amendment of assessment---Brief survey of the legislative process through which S.122, Income Tax Ordinance, 2001 had passed in taking its present shape.?

(c) Income Tax Ordinance (XLIX of 2001)---

----S. 122 [as amended from time to time]---Amendment of assessment---Powers of Commissioner to amend an assessment order by making such alterations or additions as he considered necessary---Scope and extent.

A perusal of the overall provisions of section 122, Income Tax Ordinance, 2001 as amended from time to time, shows that the Commissioner is empowered to amend an assessment order by making such alterations or additions as he considers necessary. The power of amendment is to be exercised in the manner provided in section 122, which stipulates certain restrictions on the exercise of such power. The power of amendment can be exercised in respect of an assessment order treated as issued under section 120 or issued under section 121, or issued under section 59, 59A, 62, 63 or 65 of the Income Tax Ordinance, 1979 (since repealed). The assessment order can be amended within five years after the Commissioner has issued or is treated as having issued the assessment order on the taxpayer while an amended assessment order can be amended or further amended within a period of one year after the Commissioner has issued or is treated as having issued the amended assessment order to the taxpayer. The time limit provided in section 65 of the repealed Ordinance would be available in respect of an assessment order passed under that section. Under subsection (5), an assessment shall only be amended, or an amended assessment shall only be further amended on the basis of definite information acquired from an audit or otherwise, where the Commissioner is satisfied that any income chargeable to tax has escaped assessment, or total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund, or any amount under a head of income has been misclassified. So, there has to be definite information with the Commissioner, e.g. information on sales or purchases of any goods made by the taxpayer, receipts of the taxpayer from services rendered or any other receipts that may be chargeable to tax under the Ordinance and on the acquisition, possession or disposal of any money, asset, valuable article or investment made or expenditure incurred by the taxpayer. Such information must have been received from a certain source. Such information must stipulate a case of escaped assessment, under-assessment, assessment at too low a rate, excessive relief or refund, or misclassification of a head of income. Subsection (5A) also empowers the Commissioner to amend, or further amend an assessment order if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue, but before doing that, he shall provide the taxpayer with an opportunity of being heard. Power to amend or further amend an assessment order is also subject to the time-limit of five years or one year.?

(d) Interpretation of statutes---

----Savings clause---Purpose---Held, in the context of transition to a new phase of law, particularly where an existing law is repealed, the savings clause is always of pivotal nature, inasmuch as it serves as a bridge to make the transaction smooth.?

(e) Income Tax Ordinance (XLIX of 2001)---

----S. 239 [as amended by Finance Ordinance, (XXVII of 2002)]---Income Tax Ordinance (XXXI of 1979), Ss.59, 59A, 61, 62 & 63---Authority competent to make an assessment in respect of a tax year ending on or before the 30th day of June, 2002 under the Income Tax Ordinance, 2001 was empowered to make an assessment in respect of a tax year ending on any date after the 30th day of June, 2002, in accordance with the procedure specified in S.59, 59A, 61, 62 or 63 of the repealed Income Tax Ordinance, 1979---Imposition or charge of any penalty, additional tax or any other amount, under the repealed Ordinance would also be governed by aforesaid provisions---In subsection (2) of S.239 of Income Tax Ordinance, 2001, assessments under S.59, 59A, 62 or 63 of the repealed Ordinance were referred to [whereas in subsection (1) of S.122 of the Income Tax Ordinance, 2001, apart from the assessments under S.59, 59A, 62 or 63 of the repealed Ordinance, assessment under S.65 of the repealed Ordinance was also included].?

(f) Income Tax Ordinance (XLIX of 2001)---

----S. 122---Income Tax Ordinance (XXXI of 1979), S.65---Income Tax Act (XI of 1922), S.34---Amendment of assessment---Three provisions were juxtaposed with the help of comparative chart to facilitate an easy analysis.?

(g) Income Tax Ordinance (XLIX of 2001)---

----S. 122---S.R.O. No.633(I)/2002, dated 14-9-2002---Amendment of assessment---Pending cases---Effect of Supreme Court decision in Commissioner of Income Tax v. Kashmir Edible Oils Ltd. 2006 SCMR 109---Proceedings initiated in pursuance of the amendments of S.R.O. No.633(I)/2002, dated 14-9-2002 during the period 14-9-2002 to 30-6-2003 would abate, inasmuch the very provisions of the Ordinance under which the proceedings were initiated were declared ultra vires and rendered null and void ab initio, however, the proceedings initiated on the basis of provisions of the Ordinance, as amended from time to time, minus the provisions of the S.R.O. No.633(I)/2002, dated 14-9-2002 period, would be in the field and subject to the decision of appeal before the Supreme Court---Principles.?

(h) Income Tax Ordinance (XLIX of 2001)---

----S. 122---Income Tax Ordinance (XXXI of 1979), S.65---Amendment of assessment---Introduction of time limit within which an assessment can be amended in both the Ordinances (S.65 of Income Tax Ordinance, 1979 and S.122 of the Income Tax Ordinance, 2001), is a statutory recognition of the. protection against arbitrary power of reopening or amending an assessment after the expiry of the prescribed period---Held, it could not be said that in reopening the assessments already completed no right of the assessee/taxpayer was involved.?

(i) Interpretation of statutes---

----Fiscal statute---"Provisions which impose taxes" and those "which provide for the machinery by which tax is assessed and realized"---Distinction---Provisions relating to imposition of tax are to be strictly construed in favour of the subject so that if there be any substantial doubt; it has to be resolved in his favour---Machinery sections are to be liberally construed---Principles.

There is a distinction between provisions which impose tax and those which provide for the machinery by which tax is assessed and realized. The provisions relating to imposition of tax are to be strictly construed in favour of the subject so that if there be any substantial doubt, it has to be resolved in his favour. But the machinery sections are to be liberally construed. If the incidence of tax be clear, the machinery sections should be so construed as to make the realization of the proper tax possible. They should not be so construed as to defeat the intention of the Legislature and to prevent the realization of the tax that is in fact due.?

Mahaliram Ramjidas's case AIR 1940 Privy Council 124; Khan Bahadur Amiruddin v. West Punjab Province PLD 1956 FC 220 and Muhammad Amir Khan v. Controller of Estate Duty PLD 196.1 SC 119 ref.

(j) Income Tax Ordinance (XLIX of 2001)---

----S. 122---Amendment of assessment---Scope and application of S.122, Income Tax Ordinance, 2001---Provision of S.122, Income Tax Ordinance, 2001 is impregnated with an essential attribute, which affects an accrued right of an assessee or a taxpayer that after efflux of a certain period of time, his assessment will not be opened or amended---Section 122 of the Income Tax Ordinance, 2001, therefore, cannot be applied retrospectively unless the Legislature intended to give it retrospective effect---Section 122 having the potential of adding to the liability of the taxpayer, the same was not a mere matter of procedure and taxpayers/assessees have a right that their assessments will not be opened after the expiry of the statutory period of five years.

?

(k) Income Tax Ordinance (XLIX of 2001)---

----Ss. 122 & 239(1)---Amendment of assessment---Held, had the unamended provision of S.239(1) of the Income Tax Ordinance, 2001 continued on the statute book no difficulty would have arisen regarding the treatment of assessment order passed in respect of the assessment year ending on 30th June, 2003; in such eventuality the assessments upto the said period would have been governed under the Income Tax Ordinance, 1979 (repealed), while the assessments of the post enforcement period of the Income Tax Ordinance, 2001 would be governed under the latter Ordinance---Principles.

(l) Constitution of Pakistan (1973)---

----Art. 185---Income Tax Ordinance (XLIX of 2001), Ss.122, 122A, 122B, 221 & Preamble---Appeal to Supreme Court---Question was as to how the Supreme Court could come to the rescue of the draftsman of a legislation who had left so much to be desired in the legislation (Income Tax Ordinance, 2001)---Held, in the course of interpretation of statute, Supreme Court while ascertaining the manifest, undoubted and true will and intent of the legislation, is fully competent and empowered not only to fill the lacuna or supply the omissions, but also to point to the deficiencies or the excesses that have crept into the legislation due to the unskilfulness of the draftsman against the legislative will--Supreme Court, while pointing out the deficiencies in drafting the legislation observed that there was a need to review the language,, content and scope of the power to amend and further amend an assessment, the power to revise an assessment and the power to rectify mistakes envisaged in these sections of the Income Tax Ordinance, 2001, so as to make it in line with the legislative intent of consolidating the law relating to income tax so as to make it easily comprehensible to the convenience of the taxpayers---Principles.?

Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 119 quoted.

(m) Income Tax Ordinance (XLIX of 2001)---

----S. 122---Income Tax Ordinance (XXXI of 1979), S.65---Initiation of proceedings for additional assessment in the cases of escapement of income from assessment---Time limit---Scope---Held, keeping in view the repealed Income Tax Ordinance, 1979 and the present Income Tax Ordinance, 2001, irresistible conclusion was that assessments completed under the repealed Ordinance ought to be governed by the old law while the assessments of the post-enforcement period of the present Ordinance were to be governed by the present law---Such treatment of the two sets of assessments would also overt the anomaly that would be created if the assessments of the period of 30th June, 2003 were excluded from the operation of the previous law on account of its repeal, and not included in the new law on account of its being prospective in application---If the cases of assessees did not fall within the ambit of provisions of S.122, Income Tax Ordinance, 2001 on account of the same being prospective, they could not exclude their assessments from the purview of S,65, Income Tax Ordinance, 1979 merely because of the lapse of the draftsman who omitted subsection (1) of S.239 of the present Ordinance at the amendment stage---Had the provision of subsection (1) of S.239 of the present Ordinance continued on the statute book, there would have been no ambiguity and no difficulty at all; in that eventuality, the assessments upto the period ending on 30th June, 2002 would be governed by the relevant provisions of the repealed Ordinance as if Ordinance of 2001 had not come into force.?

(n) Income Tax Ordinance (XLIX of 2001)---

----S. 122---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Availability of statutory remedy---Principles---Held, tendency to bypass the remedy provided in the relevant statute and to press into service constitutional jurisdiction of the High Court was to be discouraged, though in certain cases invoking of such jurisdiction instead of availing the statutory remedy was justified e.g. when the impugned order/action was pulpably without jurisdiction and/or mala fide---Once a party opted to invoke the remedies provided for under the relevant statute, he could not, at his sweet will, switch over to constitutional jurisdiction of the High Court in the mid of the proceedings in absence of any compelling and justifiable reason---Rule that the High Court would not entertain a Constitutional petition when other appropriate remedy was yet available, was not a rule of law barring jurisdiction, but a rule by which the court regulated its jurisdiction---Where a statutory functionary acted mala fide or in a partial, unjust and oppressive manner, the High Court, in the exercise of its writ jurisdiction, had power to grant relief to the aggrieved party---In the present case, the jurisdiction of Income Tax Authorities to issue the impugned show-cause notice was successfully brought under challenge before the High Courts and it was found that the notices were not competently issued in view of the prospective application of S.122, Income Tax Ordinance, 2001---No factual controversy having been involved in the constitutional petitions, constitutional petitions filed by the taxpayers in such matters, were justified and objection to filing the petitions in circumstances, raised by the department was overruled by the Supreme Court.?

Commissioner of Income Tax v. Hamdard Dawakhana (Waqf) PLD 1992 SC 847 and Muiree Brewery Co. Ltd v. Pakistan PLD 1972 SC 279 ref.

Pak Arab Fertilizers (Pvt.) Ltd. v. Deputy Commissioner Income Tax 2000 PTD 263 distinguished.

(o) Income Tax Ordinance (XLIX of 2001)---

---Ss. 122 & 239(1)---Income Tax Ordinance (XXXI of 1979), S.65---Amendment of assessment---Provisions of S.122, Income Tax Ordinance, 2001 are prospective in their application and do not apply to the assessment of a year ending on or before 30th June, 2002---Provisions of S.65 of the repealed Income Tax Ordinance, 1979 provided a period of five years for additional assessment and such assessments were to be dealt with under S.65 of the repealed Ordinance in accordance with original and unamended S.239(1) of Income Tax Ordinance, 2001; High Courts having failed to take into consideration such aspect of the matter, Supreme Court, by filling said lacuna in the impugned judgments, directed that the assessment of any year ending on or before 30th June, 2002 would be governed by the repealed Ordinance of 1979 and shall be dealt with as if the Ordinance of 2001 had not come into force---Where rights and procedure are dealt with together, the intention of the Legislature may well be that the old rights are to be determined by the old procedure, and that only the new rights under the substituted section are to be dealt with by new procedure.?

Passage from the Maxwell on Interpretation of Statutes 10th Edn. (1953) p.228 ref.

(p) Interpretation of statutes---

----Rights and procedure dealt with together in an enactment---Principle--Where rights and procedure are dealt with together, the intention of the Legislature may well be that the old rights are to be determined by the old procedure, and that only the new rights under the substituted section are to be dealt with by new procedure.?

Passage from the Maxwell on Interpretation of Statutes 10th Edn. (1953) p.228 quoted.

Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--

(q) Constitution of Pakistan (1973)---

----Preamble, Arts.4, 5(2), 9, 14, 25 & 2-A---Constitution of Pakistan is based on trichotomy: Legislator to legislate the laws; Executive to implement; Judiciary to interpret the law and Constitution---Scope and limits of the three organs---Constitution has to be read as an organic whole for the purpose of maintaining balance in every sphere of life such as opportunities of job, social justice, distribution of wealth etc.---Framing of taxing laws in such a manner that people themselves voluntarily pay the taxes encouragingly and honestly---Obligation of the State to provide atmosphere based on honesty by providing. equal protection of law---Every citizen must be treated equally, dignity of human being life should be maintained, and liberty of life and honour must be guaranteed as envisaged in the Articles 9, 14 & 25 of the Constitution---Procedure for enacting laws under the Constitution e.g., deliberations and the recommendations of the Committees, the proceedings of the drafting Committees and the speech of the mover at the time of introducing the draft along with the reports of these Committees on all available material---Objections of the Assembly, the manner in which they meet any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection, will be helpful in throwing light on the particular matter in issue---Supreme Court desired that law making body shall frame the laws after deliberations which is an additional duty cast upon the law making body in terms of Art.2-A of the Constitution which is in accordance with the Injunctions of Islam and doctrine of expectation of consultations---Principles.?

Zia ur Rehman's case PLD 1973 SC 49, Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Hakim Ali's case PLD 1992 SC 595; PLD 1957 SC 219; Chaudhry Zahoor Elahi's case PLD 1975 SC 383; Zahid Akhtar's case PLD 1995 SC 530; Agha Shorish Kashmiri's case PLD 1969 SC 14; Fauji Foundation's case PLD 1983 SC 457; R.V. Secretary of State for Transport's case (1985) 3 All ER 300 and Re Liverpool Taxi Owners' Association's case (1972) 2 All ER 589 ref.

Pak Arab Fertilizers (Pvt.) Ltd. v. Deputy Commissioner Income Tax 2000 PTD 263 approved.

(r) Democracy---

----Meaning.?

Black's Law Dictionary Revised Fourth Edition; International Encyclopedia of the Social Sciences Volumes 3 and 4; Webster comprehensive Dictionary Encyclopedic Edition and The World Book Dictionary Volume one ref.

Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan assisted by Sardar Muhammad Ghazi, D.A.-G. Zubair Khalid, Advocate Supreme Court, Abdul Waheed, Advocate Supreme Court and Sardar Shahbaz Khosa, Advocate for Appellants/Petitioners.

Muhammad Ilyas Khan, Sr. Advocate Supreme Court for Appellants/Petitioners (in C.As. Nos.803-864, 912-1039, 2251-2311 and 874-894/2008).

M. Bilal, Sr. Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants/Petitioners (in C.As. Nos.163-164/ 2009).

Raja Muhammad Bashir, Sr. Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants/Petitioners (in C.As. Nos.291-292, 1149 and 1150/2008).

Akhtar Ali Mehmood, ,Advocate Supreme Court for Appellants/Petitioners (in C.As. Nos.876-79/05, 1602/06, 1617-1619/06, 587-593/07 and 1381-1395/07).

A.S.K. Ghauri, Advocate-on-Record for Appellants/Petitioners (in C.As. Nos. 778/05, 1601/06, 1608-1614, 1616, 1624, 1625, 2670-73, 2686-87/06, 585-86, 1369-1377, 1379-1404, 1984-2046/07 and 459-501/08).

Shahid Jameel, Advocate Supreme Court .for Appellants/Petitioners (in C.As. Nos.707/07, 33-57/09 and C.Ps. Nos.12-13/09).

M.S. Khattak, Advocate-on-Record. for Appellants/Petitioners (in C.As. Nos. 707/07, 112-113, 122-123/09 and C.Ps. Nos. 12-13/09).

Muhammad????? Farid,?? Advocate???????? Supreme?????????? Court?? for Appellants/Petitioners (in C.As. Nos. 1620 to 1624/2006).

Syed Arshad Hussain, Advocate Supreme Court for Appellants/ Petitioners (in C.A. No.2673/2006).

Hafiz Muhammad Idrees, Advocate Supreme Court for Appellants/Petitioners (in C.A. No.355/09).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record for Appellants/Petitioners (in C.P. No. 1245/2008 and C.As. Nos. 1322/2007 and 115-118 and 1491-1513/2008).

Mehmood A. Sheikh, Advocate Supreme Court/Advocate-on-Record for Appellants/Petitioners (in C.As. Nos.7-9/2009).

Ch. Akhtar Ali, Advocate-on-Record for Appellants/Petitioners (in C.As. Nos:1604-1607, 1615, 2677-2682/06, 590,591, 594/07 and 783-791/08).

Mumtaz Ahmed, Member (Legal), F.B.R. Nemo. (in the remaining cases)

Mansoor-ul-Arifin, Senior Advocate Supreme Court for Respondents (in C.As. Nos.876 to 879/2005).

Israr-ul-Haq, Advocate Supreme Court for Respondents (in C.A. No. 32/09).

Rehan Hassan Naqvi, Advocate Supreme Court and Ms. Lubna Pervez, Advocate Supreme Court for Respondents (in C.As. Nos.1611 to 15/06 and 587/07).

Badar Villani, Advocate Supreme Court for Respondents (in C.A. No.459/08).

Umar Mehmood Kasuri, Advocate Supreme Court for Respondents (in C.As. Nos.865, 901, 902 and 914/08).

Salman Akram Raja, Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Respondents (in C.As. Nos.50-54/09).

Sirajuddin Khalid, Advocate Supreme Court for Respondents (in C.As. Nos.826, 837-839 and 1025 to 1027/08).

Dr. Farough Naseem, Advocate Supreme Court for Respondents (in C.A. No.1602/06).

Muhammad Rashid Qamar, Advocate Supreme Court for Respondents (in C.A. No.163/09).

Noor Muhammad Chandio, Advocate Supreme Court for Respondents (in C.As. Nos.895 to 900/08).

Kh. Israr Majal, Advocate Supreme Court for Respondents (in C.As. Nos.966 to 968/08).

Zaeem-ul-Farooq Malik, Advocate Supreme Court for Respondents (in C.A. No.926/08).

Hamid Shabbir Azar, Advocate Supreme Court for Respondents (in C.A. No.848/08).

Qari Abdur-Rashid, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondents (in C.A. No.2261/08).

Syed Naveed Andrabi, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Respondents (in C.As. Nos.778/05 and 941 to 944/2008).

Shafqat Mehmood Chohan, Advocate Supreme Court Mian Muhammad Akhtar, Advocate Supreme Court for Respondents (in C.As. Nos.669, 670, 919, 928, 962, 2263/08 and 38, 39/09).

Farhat Nawaz Lodhi, Advocate Supreme Court for Respondents (in C.P. No.1245/2008).

Hakam Qureshi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.A. No.1149/08).

Fauzi Zafar, Advocate Supreme Court for Respondents (in C.As. Nos.921, 952 to 960/08).

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents (in C. As. Nos.475-77 and 89/08).

Muhammad Shoaib Abbasi, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Respondents (in C.As. Nos.115 to 118/08).

Irfan Ahmad Sheikh, Advocate Supreme Court for Respondents (in C.As. Nos.923-924/2008).

Iqbal Suleman Pasha, Advocate Supreme Court for Respondents (in C.As. Nos.1625, 2684/06 & 592-93, 1369, 2007-2010, 2016-18/07 & 1847-1849/08).

Shahbaz Butt, Advocate Supreme Court for Respondents (in C.As. Nos.841, 856-858, 891, 911, 916, 971, 972, 1002, 1003, 1099, 1100, 1502, 1505-1512, 2281, 2292, 2114-2115/2008, 36/09 and C.P. No.12/09).????? .

Muhammad Iqbal Hashmi, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Respondents (in C.As. Nos.825, 854, 1008-1010, 1013-15, 1111, 1491, 1500, 1501, 2264 and 2304/08).

Ms. Edwina Williams (in person) (in C.As. Nos.112-113/09).

Nemo (in the remaining cases).

Dates of hearing: 15th, 16th, 17th, 21st, 22nd and 28th April & 4th, 5th, 11th & 19th May, 2009.

2009 SCMR 1352

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Muhammad Moosa K. Leghari, JJ

ALLAH BACHAYO and others----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.70-K of 2008, decided on 26th January, 2009.

(On appeal from the order, dated 8-9-2008 of the High Court of Sindh, Karachi passed in Criminal Bail Application No.S-407 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 504, 147, 148 & 149---Constitution of Pakistan (1973), Art.185(3)---Refusal of pre-arrest bail---Material was available to indicate that petitioners and others had gone to the house of the complainant party---As a result of assault of one of the petitioners by use of firearms, one female lost her life, whereas Other received firearm injuries on vital parts of her body and she luckily survived-Injured female supported the prosecution case thereby involving the petitioners with the commission of offence---Principles governing the concession of anticipatory bail were quite different from those which were attracted to case of post-arrest bail---Ordinarily, Supreme Court being constitutional court was not expected to interfere with the bail matters, if properly dealt with by the High Court---Petitioners having not been able to make out case for grant of pre-arrest bail, discretion exercised by the High Court did not suffer from any legal infirmity so as to warrant interference by the Supreme Court---Petition for leave to appeal was dismissed.

Gul Naseeb v. State 2008 SCMR 670; Ghulam Nabi v. The State 1996 SCMR 1023 and Sultan Khan v. Amir Khan PLD 1977 SC 642 ref.

Muhammad Ilyas Khan, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioners.

Shahadat Awan, P.-G. (Sindh) for the State.

Mehmood A. Qureshi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for the Complainant.

Date of hearing: 26th January, 2009.

2009 SCMR 1354

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

ABDUL WAHAB and another----Petitioners

Versus

SECRETARY, GOVERNMENT OF BALOCHISTAN and another----Respondents

Civil Appeal Nos.58/Q and 859/Q of 2009 and Civil Petitions Nos.118/Q and 119/Q of 2008, decided on 29th May, 2009.

(On appeal from the judgment, dated 16-10-2008 passed by Balochistan Service Tribunal, Quetta in S.As. Nos.6 and 7 of 2005).

(a) Civil service---

----Termination of service---No one could be allowed, irrespective of the fact who was who to act in an arbitrary, fanciful and whimsical manner, and they had got to be judicious, fair and just in taking such decision---Contention that question of retention and dispensation of an employee fell within the discretion of department was repelled---Termination of civil servants had been dealt with in a careless, cursory and casual manner without examining the merits of case---Explanations furnished by responsible officials of the department for termination of services of employees were vague, sketchy and contradictory as the record spoke otherwise---Supreme Court converted petition for leave to appeal of the employees into appeal and accepted the same.

(b) Discretion---

----Exercise of discretion---Scope.

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. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power to exercise discretion would not authorize such Authorities to act arbitrarily, discriminately and mala fide. They have to act without any ulterior motive.

Human Rights' Case No.5818 of 2006 2008 SCMR 531; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Abid Hussain v. PIAC 2005 SCMR 25; Manzoor Hussain v. Muhammad Ashraf 1999 PLC (C.S.) 279; Gadoon Textile Mills v. WAPDA 1997 SCMR 641 and Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 ref.

Petitioners in person (in both cases).

Tariq Ali Tahir, Additional Advocate-General, Niaz Ahmad, Chief Engineer (S) PHED, Amjad Mehmood, A.D.C. (Claim) and Muhammad Ishaq, AO(S) for Respondents.

Date of hearing: 29th May, 2009.

2009 SCMR 1364

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

MUMTAZ BAIG and others----Petitioners

Versus

JAMAL DIN through Legal Heirs----Respondents

Civil Petition No.833 of 2008, decided on 18th June, 2009.

(On appeal from the judgment, dated 16-4-2008 of the Lahore High Court, Rawalpindi Bench passed in Review Application No.4-C of 1999).

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

----Art. 185(3)---Petition for leave to appeal---Limitation---Full-fledged contested litigation right from the lowest forum of Trial Court to the High Court was dealt with and decided by the Courts having jurisdiction in the matter, their adjudication of the matter thus could not be termed as void or without jurisdiction to overcome the question of limitation.---Petition for leave to appeal was dismissed.

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

----Art. 185(3)---Petition for leave to appeal---Limitation---While seeking leave to appeal against order refusing to review the main previous order, in fact the object of petitioner was to seek vacation of the said previous order which by efflux of time had become final---Fact that in review the Court further affirmed the said order was immaterial inasmuch as a refusal to review the same would not give a fresh period of limitation to challenge the same---When the previous order had become binding on the petitioners, they could not be allowed to bypass same by simply pleading that the present petition was against order refusing to review the same because while stating so their intention was to point out errors and mistakes in the basic order which was sought to be removed through a review application but which failed---Question, in the present petition, was not of lack of jurisdiction of the High Court to entertain review, but after entertaining it, refusing the same on the ground that no case for review on merits existed---Such a decision would essentially compel a suitor to challenge the previous order itself to point out the mistakes allegedly existing therein, which exercise obviously could not be resorted to if the period of limitation for challenging the main previous order had run out and because one could not do indirectly which could not be done directly---Petition for leave to appeal was dismissed.

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

----Art. 185(3)---Petition for leave to appeal---Limitation---Period spent for pursuing review petition was not liable to exclusion while reckoning the period of limitation for assailing the basic judgment---For all intents and purposes, object behind filing present petition for leave to appeal was to call in question the correctness and validity of the initial judgment, which had attained finality by efflux of a long period and a valuable right had accrued in favour of the respondents which could not be lightly disturbed and destroyed for the simple reasons that the petitioner had been negligent in prosecuting his remedy---Nothing had been brought to the notice of the Court to the contrary nor any sustainable ground had been urged to permit deviation from the view taken---Petition for leave to appeal was dismissed.

Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another PLD 1980 SC 198; Ghulam Nabi and 5 others v. Rashid PLD 2000 SC 63 and Collector Sales Tax (East), Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi 2008 SCMR 435 fol.

Malik Shahzad Ahmed Khan, Advocate Supreme Court for Petitioners.

Gul Zarin Kiyani, Senior Advocate Supreme Court along with Ch. Akhtar Ali, Advocate-on-Record for Respondents.

2009 SCMR 1368

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed JJ

Chaudhry MUHAMMAD MUNIR and others----Petitioners

Versus

ELECTION TRIBUNAL, MANDI BAHAUDDIN and others----Respondents

Civil Petitions Nos.888 and 1270-L of 2007, decided on 13th May, 2009.

(On appeal from the orders, dated 8-11-2007 and 29-6-2007 of the Lahore High Court, Lahore passed in Writ Petitions Nos.10998 and 2165 of 2007).

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

---R. 12(4)---Fresh elections---Notorious disqualification, principle of---Applicability---Disqualification of returned candidate having not been found to be not notorious' invariably fresh election on vacant seats to be held though disqualification may relate to concealment of any fact required to be correctly and truly given in prescribed declaration filed with nomination paper by a candidate or affect to his candidature as a validly nominated candidate or to his eligibility to contest the election, therefore, in absence of any mandate provided by law or under Punjab Local Government Elections Rules, 2005, it cannot be claimed with inflexibility where disqualification was notnotorious' for any act or omission, other candidates who contested election having secured second highest votes to be declared as elected to vacant seats without any exception, is not a just and correct approach to issue without looking into the facts and circumstances of each case warranting otherwise.

(b) Punjab Local Government Elections Rules, 2005---

----R. 12(4)---Fresh elections---Principle of notorious disqualification and throwaway votes---Applicability---Bogus Matriculation certificate---Appellant secured highest votes in election and was notified. to be returned candidate but Election Tribunal declared him disqualified and respondents who secured second highest votes were declared as returned candidates---Judgment passed by Election Tribunal was maintained by High Court in exercise of Constitutional jurisdiction---Plea raised by appellant was that his disqualification was not notorious' thus principle ofthrowaway votes' was not applicable---Validity---High Court failed to exercise jurisdiction by not examining question apparent on the face of record that disqualification of appellant was not notorious and thus principle `throwaway votes' was not applicable---Respondents who secured second highest votes were not entitled to have been declared as returned candidates on the seats which fell vacant on account of disqualification of appellant---Default on the part of returned candidates of their acts and omissions would not impeach voters to exercise their rights to vote nor the Court in exercise of powers vested in it under the Constitution for doing complete justice would feel deterred to pass proper orders and to issue directions---Supreme Court set aside the judgments passed by Election Tribunal and High Court and directed Election Commission to take necessary steps to conduct fresh election of vacant seats of the office of Nazims and Naib-Nazims of union councils concerned---Appeal was allowed.

Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003 SCMR 1611; Sher Zaman Sher and others v. Jahanzeb Khan and others PLD 2004 SC 505; Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCMR 1484; Shaukat Ali and another v. District Returning Officer and another PLD 2006 SC. 78; Sardar Muhammad Amir Khan v. Nadeem Akhtar and others 2007 SCMR 1044; Wali Muhammad and others v. Raja Muhammad and others 1978 SCMR 415; Muhammad Sadiq and others v. Ali Asghar Khan and others 1995 CLC 1529; Ghulam Siddique v. Collector Land Acquisition and others 1996 MLD 1399; Muhammad Abid Hassan and others v. DRO and others PLD 2005 Lah. 712; Sheikh Muhammad Akram and another v. Sheikh Muhammad Yaqub and others PLD 2006 Lah. 24; Sher Zaman Sher and others v. Jehanzeb Khan and others PLD 2004 SC 505; Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250; Muhammad Boota v. Election Tribunal and others 2005 SCMR 1139 and Ellahi Bakhsh v. District and Sessions judge/Election Tribunal and others PLD 2003 SC 268 rel.

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

----S. 99 & O.I, R.10---Necessary and proper parties---Misjoinder and non-joinder---Effect---No proceedings in a Court of law exercising civil jurisdiction ipso facto can be defeated because of non-impleading of one of the necessary parties or proper party or impleadment of improper petitioner or respondent as the case be and for that matter even if a necessary party having not been transposed as co-petitioner in such proceedings or civil suit, the Court always enjoys ample powers to transpose any of the respondent as co-petitioner and vice versa, inasmuch as, depending upon the nature of cause, if it finds that lis can effectively be adjudicated upon without transposition, the Court would be competent to decide the cause accordingly.

Malik Muhammad Qayyum, Senior Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Petitioners (in both cases).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.2 and 3 (in C.P. No.888 of 2007).

Ch. Muhammad Anwar Bhinder, Senior Advocate Supreme Court for Respondents Nos.3 and 4 (in C.P. No.1270-L of 2007).

Date of hearing: 21st April, 2009.

2009 SCMR 1378

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

PROVINCIAL GOVERNMENT through Additional Chief Secretary (Development) Government of Balochistan, Quetta and another----Appellants

Versus

ABDULLAH JAN and others----Respondents

Civil Appeal No.911 of 2005, decided on 3rd June, 2009.

(On appeal from the judgment, dated 7-4-2004 passed by the High Court Balochistan, Quetta in Civil Miscellaneous Appeal No.9 of 2001).

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

---S. 148---Court-fee---Extension of time in making good deficiency of court-fee---When there was negligence or contumacious attitude of the litigant, then in no way the time in making of the deficiency of court-fee should be granted.

Muhammad Sarwar Khan v. Said Hussain Khan PLD 2007 SC (AJ&K) 1; Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; Riffat Iqbal v. Mst. Fatima Bibi and others 2007 SCMR 494; Mubarak Ahmad and 2 others v. Hassan Muhammad through Legal Heirs 2001 SCMR 1868; Abdul Sattar Khan and another v. Hafiz Muhammad Baldish and another 1979 SCMR 243; Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; 1997 SCMR 919; PLD 1979 SC 821. Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Mubarak Ahmad v. Sub-Registrar, District Courts, Faisalabad and 4 others 1993 CLC 166 ref.

(b) Court Fees Act (VII of 1870)---

----Preamble---Court Fees Act, 1870 being a taxing statute to be interpreted in favour of the subject---Principles.

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

---S. 18---Civil Procedure Code (V of 1908), S.148-Dismissal of appeal of landowner by High Court on ground of deficiency in court-fee, despite chances given to the appellants---Validity---Supreme Court, in circumstances, allowed the appeal and directed the appellants to make up the deficiency in court-fee and remanded the case to High Court while setting aside the judgment of the High Court---Principles.

Kamran Murtaza, Advocate Supreme Court for Appellants.

Mumtaz Hussain Bagari, Advocate Supreme Court for Respondents Nos.1 to 4.

Date of hearing: 3rd June, 2009.

2009 SCMR 1382

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

MUHAMMAD FAZIL----Petitioner

Versus

BASHIR AHMAD and another----Respondents

Criminal Petition No.116 of 2009, decided on 6th May, 2009.

(Against the judgment, dated 27-1-2009 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.388 of 2003 and Murder Reference No.573 of 2003).

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

---S. 417---Appeal against acquittal---Parameters regarding interference in appeal against acquittal of accused enumerated.

Ghulam Sikandar's case PLD 1985 SC 11 and Muhammad Iqbal's case 1994 SCMR 1928 ref.

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

----S. 302(b)---Constitution of Pakistan (1973), Art 185(3)---Appeal against acquittal by High Court---Appraisal of evidence---Injury inflicted by accused on the head of the deceased by a "Sota" as deposed by eye-witnesses, was not supported by medical evidence----Recovery of "Sota" from the accused had been disbelieved by the Courts below---Ocular testimony was not in consonance with the contents of the F.I.R. as well as medical evidence---Presence of eye-witnesses on the spot at the relevant time had rightly been disbelieved by High Court---Four co-accused had been acquitted by Trial Court on the basis of same evidence, on which accused had been convicted and sentenced to death, without adverting to the principle that such witnesses must be evaluated with great care and caution---Improvements made by eye-witnesses, who happened to be chance witnesses, in their statements to make the same in line with medical evidence had caused serious doubt about their veracity---Impugned judgment of acquittal did not suffer from any illegality or infirmity---Leave to appeal was declined to complainant in circumstances.

Ghulam Sikandar's case PLD 1985 SC 11; Muhammad Iqbal's case 1994 SCMR 1928; Shahbaz Khan Jakhrani's case 1984 SCMR 42; Muhammad Shafique Ahmed's case PLD 1981 SC 472; Bagh Ali's case

PLD 1973 SC 321; Darey Khan's case 1972 SCMR 578 and Shah Bakhsh's case 1990 SCMR 158 ref.

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

----S. 302(b)---Appreciation of evidence---Improvements made by eye-witnesses at the trial---Effect---Improvements made by eye-witnesses in their statements before Trial Court in order to bring the same in line with medical evidence cause serious doubt about their veracity.

Shahbaz Khan Jakhrani's case 1984 SCMR 42; Muhammad Shafique Ahmed's case PLD 1981 SC 472 ref.

Muhammad Zawar Shah Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2009 SCMR 1387

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

Syed JAWED HAIDER KAZMI----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Civil Petition No.231-K of 2008, decided on 23rd October, 2008.

Constitution of Pakistan (1973)---

----Arts. 184(3) & 185(3)---Public Interest Litigation---Petitioner, advocate by profession, in Public Interest Litigation, filed constitutional petition against the respondents, inter alia, pleading that nature of Park in question, which had been used as Public Park since pre-partition, had been changed and so many persons had illegally encroached upon the land and constructed shops thereon with collusion of corrupt staff of Corporation---High Court had disposed of the constitutional petition on the subject with certain observations---Petitioner dissatisfied with judgment of High Court filed petition for leave to appeal---High Court, in the present set of circumstances, had rightly comprehended the matter and disposed of the petition with certain directions/observations qua maintenance of existing status of the park and its development---High Court had provided sufficient safeguards to the apprehension shown by the petitioner inasmuch as the concerned authorities were restrained from raising any further construction for any other purpose---Counsel for authorities had undertaken before the Supreme Court to comply with the directions and observations of the High Court in letter and spirit---Grievance of the petitioner and for that purpose the other residents of the locality, had sufficiently been redressed and taken care of as the concerned authorities undertook to maintain the status of the park in question---No case of leave to appeal having been made out, petition was disposed of with observation for all concerned that they would be bound by the commitments and undertakings given before Supreme Court.

M. Anwar Tariq, Advocate Supreme Court, Suleman Habibullah, Advocate-on-Record for Petitioner along with Manzoor Ahmed, Legal Advisor, C.D.G., Karachi.

Mehmood A. Noorani, Additional Advocate-General, Sindh for Respondent No. 1.

A. Siddiqui, Advocate-on-Record and Manzoor Ahmed, Law Officer, C.D.G., Karachi for Respondents Nos.2 and 3. -

Qamar Masoodi, Deputy. T.O. and Director (Parks,) C.D.G. Karachi.

Muhammad Asim, T.O. (Infrastructure), C.D.G., Karachi.

Izhar Alam Farooqi, Advocate-on-Record and Shahid Jameel, Legal Advisor, K.B.C.A. for Respondent No.4.

2009 SCMR 1392

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN----Petitioner

Versus

Mian NISAR ELAHI and others----Respondents

Civil Petitions Nos.2502, 2503 and 2504 of 2001, decided on 25th October, 2001.

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 33 & 34---Constitution of Pakistan (1973), Art.185(3)---Independent Inquiry Committee appointed to investigate the matter, submitted its report and commission had passed some interim orders, which were challenged before the High Court---Before approaching High Court, respondents should have waited for alternate remedies available under Ss.33 & 34 of Securities and Exchange Commission of Pakistan Act, 1997---Dispute was highly technical in nature and could amicably be resolved only through special expertise---Very object of Securities and Exchange Commission of Pakistan Act, 1997 would be frustrated if initial orders of the Securities and Exchange Commission were directly challenged before the High Court, whereas the law had provided alternate remedy, which, as a rule, would be followed, unless cogent reasons were shown for proceedings otherwise-No such reason having been shown and controversy relating to the crises could more appropriately be appreciated before the hierarchy provided under Securities and Exchange Commission of Pakistan Act, 1997, petitions for leave to appeal were converted, into appeals and were allowed.

Waseem Sajjad, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Aitzaz Ahsan, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 25th September, 2001.

2009 SCMR 1396

[Supreme Court of Pakistan]

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

MUHAMMAD IQBAL HAIDER and another----Petitioners

Versus

VTH RENT CONTROLLER/SENIOR CIVIL JUDGE, KARACHI CENTRAL and others----Respondents

Civil Petition No.1193 of 2008, decided on 9th June, 2009.

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

----Ss. 2(F)(J), 15(2)(ii)(vii), 16 & 17---Constitution of Pakistan (1973), Art.185(3)---Qanun-e-Shahadat (10 of 1984), Art.115---Ejectment of tenant on ground of wilful default in payment of rent and bona fide personal need of landlord---Non-compliance of tentative rent order---Effect---Petitioners (tenants) denied relationship of landlord and tenant between the parties---Landlord filed an application under S.16 of Sindh Rented Premises Ordinance, 1979 for a direction to the petitioners/tenants to deposit the arrears of rent, to which petitioners filed objection thereto and also an application under S.17 of the Ordinance for award of compensation---Rent Controller allowed application of landlord filed under S.16(1) of Sindh Rented Premises Ordinance, 1979 and dismissed the one filed by the petitioners under S.17 of said Ordinance and petitioners were directed to deposit amount within 25 days as arrears of rent and also to deposit future rent---Petitioners, instead of complying with tentative rent order, passed by the Rent Controller, filed constitutional petition, which having been dismissed by the High Court, they had filed petition for leave to appeal---Petitioners (tenants) who had failed to comply with tentative rent order, had pleaded that they had already instituted two civil suits; one for specific performance of agreement of sale and the other for cancellation of sale deed executed in favour of landlord and that there did not exist any relationship of landlord and tenant between the parties---Validity---Institution of two suits by the petitioners, per se would not be sufficient to refuse compliance of order of Rent Controller under S.16(1) of Sindh Rented Premises Ordinance, 1979 pending final determination---Once petitioners (tenants) were, prima facie shown to be inducted as a tenants of the demised premises, they could not claim any exemption from payment of rent on account of institution of suits for specific performance and for cancellation of sale deed---Article 115 of the Qanun-e-Shahadat, 1984 had laid down that no tenant of immovable property would, during the continuance of the tenancy be permitted to deny that his landlord had a title of such property---Relationship of landlord and tenant was not severed even if the execution of agreement to sell was admitted---Petitioner was not absolved of his responsibility of compliance of order passed by the Rent Controller under the provisions of S.16 of Sindh Rented Premises Ordinance, 1979 for making payment of arrears and future rent---Impugned judgment of the High Court was plainly correct to which no exception could be taken.

Nazir Ahmed v. Mst. Sardar Bibi and others 1989 SCMR 913; Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 87; Waheedullah v. Mst. Rehana Nasim and others 2004 SCMR 1568; Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74; Habib Khan v. Haji Haroon-ur-Rasheed 1989 CLC 783; Gohar Ali Shah v. Shahzada Alam 2000 MLD 82; Iqbal and others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Syed Imran Ahmed v. Bilal and another Civil Appeal No.2230 of 2008 rel.

Petitioner in person.

Abdul Aziz Khan, Advocate-on-Record with Nawab Mirza husband of Respondent No.2.

Date of hearing: 9th June, 2009.

2009 SCMR 1399

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

Engineer IQBAL ZAFFAR JHAGRA----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad and 12 others----Respondents

Civil Miscellaneous Application No.2080 of 2009 and Constitutional Petitions Nos.33 and 34 of 2005, decided on.7th July, 2009.

Petroleum Products (Petroleum Development Levy) Ordinance (XXV of 1961)---

----S. 3---Constitution of Pakistan (1973), Art.184(3)---Finance Act (I of 2009), S.7(5)---Carbon tax, levy of---Scope---Contention of petitioner was that Carbon Tax was imposed in place of Petroleum Development Levy in pursuance of Finance Act, 2009---Validity---Amendment was introduced in Petroleum Products (Petroleum Development Levy) Ordinance, 1961, by Finance Act, 2009---Supreme Court was prima facie of the view that there was no justification for imposing Carbon Surcharge in place of Petroleum Development Levy---Carbon tax could be imposed subject to certain conditions, such as provision of petroleum products free of lead or carbon dioxide and consequential pollution free atmosphere to all citizens and it was also necessary that Ministry of Environment should demand funds for purpose of catering to its requirements of providing pollution free atmosphere to general public and such funds could only be used for the purpose of pollution free atmosphere---Carbon tax was not a new tax because it was in force in other countries but at the same time they were providing pollution free atmosphere---Such tax could be imposed upon the price of components but not upon total price after adding sales tax etc.---Supreme Court suspended operation of notification to the extent of imposition of Carbon tax pending decision of petition before Supreme Court---Application was allowed.

Muhammad Ikram Chaudhry, Advocate Supreme Court for Petitioners (in Constitutional Petition No.33 of 2005).

Ms. Rukhsana Zuberi in Person (in Constitutional Petition No.34 of 2005).

Muhammad Akram Sheikh, Senior Advocate Supreme, Court for Applicant (in C.M.A. No.1526 of 2009).

Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan and Khan Dil Muhammad Khan Alizai, D.A.-G. on Court notice.

Khawaja Saeed-uz-Zafar, Advocate Supreme Court and Nazir Malik, Senior Law Officer, OGRA for Oil and Gas Regulatory Authority.

Mahmood Saleem Mahmood, Secretary, Ministry of Petroleum, Government of Pakistan, Islamabad for the Ministry of Petroleum.

Ayub Khan Tareen, Additional Secretary, Ministry of Finance, Government of Pakistan, Islamabad for the Ministry of Finance.

Nemo for other Respondents.

2009 SCMR 1403

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

FAIZ MUHAMMAD and another----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.25-Q of 2009, decided on 22nd May, 2009.

(On appeal from the judgment, dated 2-4-2009 of the High Court of Balochistan, Quetta, passed in Criminal Appeal No.292 of 2007).

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

----S. 9(c)---West Pakistan Arms Ordinance (XX of 1965), S.13-E---Constitution of Pakistan (1973), Art.185(e)---Allegation of smuggling/ transportation of huge quantity of narcotics, arms and ammunitions---High Court while dismissing the appeal filed by the petitioners dealt with the contentions of counsel comprehensively, dilating upon each and every aspect of the case---Evidence which had been brought on record had rightly been appreciated by the Trial Court, determination whereof had been upheld by the High Court, assigning valid and cogent reasons---No illegality, irregularity or mis-appreciation of evidence could be pointed out persuading to grant leave to appeal---High Court had reappraised the entire evidence available on record by making threadbare examination of each piece of evidence supported with 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 appreciated in its true perspective---Evidence of the prosecution witnesses about the recovery of Charas weighing 126 Kgs. and taking of sample from each of the" rod and slab could not be disputed by the defence and report of Chemical Examiner also supported the case of the prosecution---Petitioners were using uncommon route for transportation of Charas, arms and ammunitions by concealing same in secret cavities of the vehicle, which reflected their knowledge---Driver having the charge of vehicle for long journey was supposed to have knowledge with regard to contents and articles being transported in it---Findings and judgments of Trial Court as well as High Court neither reflected any mis-appreciation or non-reading of evidence nor suffered from any legal infirmity so as to make room for further consideration---Counsel though argued at length but could not point out any misreading or non-appraisal of evidence---Petition for leave to appeal was dismissed.

S.A.M. Quadri, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd May, 2009.

2009 S C M R 1407

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

GOVERNMENT OF SINDH through Land Acquisition Officer and others----Appellants

Versus

MUHAMMAD JUMAN and another----Respondents

Civil Appeal No.42 of 2000, decided on 9th June, 2009.

(Against judgment, dated 15-11-1999 of the High Court of Sindh, Hyderabad Circuit passed in 1st Appeal No.12 of 1999).

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

----O. XX, R.7---Limitation Act (IX of 1908), Art.156--Filing of appeal---Limitation---Limitation for filing of appeal will commence from the date of decree and time which elapsed between the announcement of the judgment and signing of the decree was included "in time requisite for obtaining the copy of the judgment and decree"---Limitation under Art.156, Limitation Act, 1908 for filing the appeal would run from the date of signing of the decree---Principles.

Tulsidas Phtumal v. Parsram R. Thadani AIR (35) 1948 Sind 18; Hyderabad Development Authority v. Abdul Majeed PLD 2002 SC 84; Zaitoon Bibi v. Dilawar Muhammad 2004 SCMR 877 and Government of West Pakistan v. Niaz Muhammad PLD 1967 SC 271 ref.

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

----S. 24-A---Court must pass a speaking judicial order manifesting by itself that the court applied its mind to issues involved in the case.

Gouranga Mohan Sikdar v. The Controller of Import and Export PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 ref.

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

----Art. 185---Appeal to Supreme Court---High Court, while deciding the matter neither referred to evidence nor any other material available on record justifying dismissal of appeal---Supreme Court allowed appeal, set aside the judgment of High Court, resultantly the appeal shall be deemed to be pending before the High Court---Case was remanded to the High Court with observation that High Court shall decide the appeal within a period of three months from the announcement of judgment by the Supreme Court.

Zaitoon Bibi v. Dilawar Muhammad 2004 SCMR 877 distinguished.

Syed Haider Ali Pirzada, Advocate Supreme Court and Ahmadullah Faruqi, Advocate-on-Record for Appellants.

Mazhar Ali B. Chohan, Advocate-on-Record and A.S.K. Ghauri, Advocate-on-Record for Respondents.

Date of hearing: 9th June, 2009.

2009 SCMR 1418

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

JAMIA MASJID QAZI ABDUL QADIR AND DARUL ALOOM HAQANIA QADRIA through Akama Ghulam Yahya Haqani and others----Petitioners

Versus

JAN MUHAMMAD and others----Respondents

Civil Petition No.79-Q of 2006, decided on 19th May, 2009.

(On appeal from the judgment, dated 5-5-2006 of the High Court of Balochistan Quetta, passed in C.M. Appeal No.20 of 2002).

Arbitration Act (X of 1940)---

----Ss. 8 & 10---Matter in dispute was referred by Supreme Court to the arbitrators for decision on the issue with consent of the parties, thereby impliedly setting aside the judgment of the Trial Court as well as the High Court---Where a dispute was referred to an arbitrator of the choice of the parties and he makes an award, it becomes the duty of the court to give every reasonable intendment in favour of the award and lean towards upholding same rather than vitiating it.

Muhammad Abdul Khaleque and others v. Birendra Lal Das Choudhury and others PLD 1955 Dacca 13; Messrs Waseem Construction Co. v. Government of Sindh and others PLD 1987 Karachi 575; Messrs Awan Industries Ltd. v. The Executing Engineer Lined Channel Division and another 1992 SCMR 65; Ishfaq Ali Qureshi v. Municipal Corporation Multan and another 1984 SCMR 597 and Abdul Rauf v. Muhammad Saeed Akhtar PLD 1958 (W.P.) Karachi 145 ref.

Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioners.

Syed Ayaz Zahoor, Senior Advocate Supreme Court and Mehta W.N. Kohli, Advocate-on-Record for Respondents.

Date of hearing: 19th May, 2009.

2009 SCMR 1421

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Muhammad Akhtar Shabbir and Ghulam Rabbani, JJ

SHAHTAJ SUGAR MILLS LTD. through Chief Executive---Petitioner

Versus

ADDL. SECRETARY GOVERNMENT OF PAKISTAN, MINISTRY OF FINANCE, KARACHI and others----Respondents

Civil Petition No.1295-L of 2005, decided on 1st June, 2009.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 12-2-2004 passed in Writ Petition No.1283 of 1989).

(a) Central Excise Rules, 1944---

----R.11---Contract Act (IX of 1872), S. 72-Customs Act (IV of 1969), S.33---Sales Tax Act (VII of 1990), S.66---Excise duty, tax, charges deposited by the taxpayer by mistake, error under coercion, or misconstruction, can be refunded to him---Period for refund of claim of deposit of the duty or other taxes or charges, having been provided, which would be reckoned from the date of deposit of said duty or charge.

Colony Thal Textile Mills Ltd. v. Assistant Collector, Central Excise and Land Customs, Faisalabad and another PLD 1980 Lah.377 ref.

(b) Central Excise Rules, 1944---

----R. 11---Constitution of Pakistan (1973), Art.185(3)---Levy of Regulatory Excise Duty on manufacture of sugar---Manufacturer by depositing the Regulatory Duty without challenging the levy of the duty or any protest and not claiming the refund within one year, was estopped to agitate the claim after six years, and the principle of laches and waiver would also come into play against the manufacturer---Principles.

Income Tax Officer, Central Circle II, Karachi and another v. Cement Agencies Ltd. PLD 1969 SC 322; Octavius Steel and Company Ltd. v. The Commissioner of Income Tax, Dacca PLD 1960 SC 371; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan 2001 SCMR 1161 and Commissioner of Income Tax v. Shahnawaz Ltd. and others 1993 SCMR 73 fol.

Central Board of Revenue and others v. Colony Thal Textile Mills Ltd. 1981 SCMR 303 and Messrs Pfizer Laboratories .Ltd. v. Federation of Pakistan PLD 19998 SC 64 distinguished.

Ijaz-ul-Ahsan, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Petitioners.

Izhar-ul-Haq Sh., Advocate Supreme Court for Respondent No.3.

2009 SCMR 1428

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sarmad Jalal Osmany and Sayed Zahid Hussain, JJ

Mst. RAZIA alias JIA----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.138, 602 and 139 of 2005, decided on 6th May, 2009.

(Oh appeal from the judgment, dated 3-7-2003 of the Lahore High Court, Lahore passed in Criminal Appeal No.903 of 1998 and Murder Reference No.365 of 1998).

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

----Ss. 302(b)/34 & 308---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence to ensure that the conviction and punishments of both the accused had been validly recorded and that death sentence had been rightly awarded to the female accused in view of the provisions of S.308, P.P.C.---Delay in filing the petitions was condoned.

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

----S. 302(b)/34---Appraisal of evidence---Sentence, reduction in---Ocular testimony of the two child witnesses, aged 12 years and 10 years, as to the events and occurrence having taken place in the house before their eyes, had inspired confidence---Trial Court had taken all possible and due steps to judge the level of intelligence and maturity of the child witnesses before recording their statements, who had given consistent account of occurrence and participation of their mother and her paramour in killing their father and they had no reason whatsoever for falsely implicating their mother---Ocular evidence had derived strength and corroboration from other evidence including the post-mortem report---Cause of death of the deceased had tallied with the statements of the eye­witnesses---Some minor discrepancies or even contradictions having no material bearing, did not vitiate the findings recorded by the two Courts on proper application of evidence---Conviction of accused was consequently upheld---As a result of the said episode five children, eldest being 12 years old, had lost their father, whereas their mother had been sentenced to death and they had become orphans, and in such a situation death sentence of their mother really deserved consideration---In a case of Qisas Court had no discretion in the matter of sentence, whereas in a case of Tazir Court might award either of the sentence provided under S.302(b), P.P.C. and exercise the discretion depending upon the facts and circumstances of the case---Keeping in view the welfare of the five minor bereaved children, death sentence of their mother (female accused) was converted into imprisonment for life with benefit of S.382-B, Cr.P.C.---However, death sentence awarded to male accused was affirmed in circumstances.

Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Murtaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref.

Aftab Ahmad Bajwa, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G. Punjab for the State.

Date of hearing: 17th April, 2009.

2009 SCMR 1435

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

ABDUL RASHID----Petitioner

Versus

DIRECTOR-GENERAL, POST OFFICES, ISLAMABAD and others----Respondents

Civil Petition No.589 of 2009, decided on 28th April, 2009.

(Against the judgment, dated 31-1-2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No.1235(R)(C.S.) of 2003).

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

----Art. 212(3)---Supreme Court, jurisdiction of---Findings of fact---Scope---Supreme Court cannot interfere in findings of fact arrived at by Service Tribunal while exercising power under Art.212(3) of the Constitution.

Ch. Muhammad Azim's case 1991 SCMR 255 and Muhammad Nawaz's case 1982 SCMR 880 rel.

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

----S. 4---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.212(3)-Appeal---Limitation---Repetition of departmental representation--- Effect--- Condonation of delay--- Principle--- On 25-4-1998, authorities imposed punishment of reduction in pay equal to two steps on civil servant, who instead of filing appeal before Service Tribunal within time prescribed under law, repeatedly filed departmental representations and thereafter filed appeal before Service Tribunal on 19-11-2003---Appeal against order passed by authorities was dismissed by Service Tribunal being time-barred---Validity---Law favoured diligent litigant and not negligent---Civil servant was neither vigilant to agitate matter before competent authority nor before Service. Tribunal within prescribed period---Service Tribunal was justified to dismiss appeal of civil servant as time-barred---Mere repetitions of representation could not, by itself, enlarge prescribed period of limitation---Person seeking condonation of delay was to justify each day's delay but civil servant in his application for condonation of delay did not raise any plausible reason/ground for condonation of delay---Service Tribunal had examined all controversial questions of law and fact in a comprehensive manner after having scrutinized entire record and relevant laws---Service Tribunal exercised its discretion judiciously, which was not capricious, hence conclusion drawn by Service Tribunal was in accordance with law and settled norms of justice---Supreme Court did not find any. ambiguity or illegality warranting interference in the judgment passed by Service Tribunal---Finding of Service Tribunal was conclusive which could not be challenged unless the same was result of misreading or non-reading of record---Civil servant failed to raise any question of public importance as contemplated under Art.212(3) of the Constitution---Leave to appeal was refused.

Muhammad Sharif's case 1981 SCMR 1158; Bashir Ahmed Khan's case PDL 1985 SC 309; Muhammad Hasham's case 1990 SCMR 1440; Ali Muhammad's case PLD 1996 SC 292; Muhammad Saleem's case PLD 1995 SC 396; Muhammad Feroze Khan's case 1986 SCMR 930; Zaffar Iqbal Khan's case 2003 SCMR 1471; Haji Kadir Bux's case 1982 SCMR 582 and Syed Ali Hasan Rizvi's case 1986 SCMR 1086 ref.

(c) Limitation---

----Time-barred remedy--Effect---It is duty and obligation of aggrieved person to pursue his legal remedy with diligence and to satisfy conscience of Court or Quasi-Judicial Authority for approaching respective forums beyond prescribed limitation---In case aggrieved .person does not avail remedy within prescribed period then vested right accrues to other side which could not be taken away lightly even if objections to that effect were not raised by opposite party.

Hakim Muhammad Buta's case PLD 1985 SC 153 and Muhammad Hussain's case PLD 1993 SC 147 rel.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2009 S C M R 1440

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Mahmood Akhtar Shahid Siddiqui, JJ

NAZIR SHEHZAD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.95 and 96 of 2007, decided on 11th May, 2009. (On appeal against the judgment, dated 28-11-2001 passed by the Lahore High Court, Lahore in Criminal Appeal No.218/J of 1999 in Murder Reference No.518-T of 1999).

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

----Ss. 302(b), 365-A & 201---Qanun-e-Shahadat (10 of 1984), Art.40---Appraisal of evidence---Discovery based on the information furnished by both the accused to the Investigating Officer in separate investigations, had led to the recovery of the dead body from the "Nallah"---Prior to the said information whereabouts of the dead body were not known to anyone and the same could be used against the accused under Art.40 of Qanun-e-Shahadat, 1984---Unnatural death of a 18 years old boy was proved by medical evidence, whose dead body had been identified by his father after seeing the shoes, belt and trouser of the deceased---Statements of the Doctor and father of the deceased having not been challenged, it could not be said that the dead body was not identified---Abduction of the deceased for ransom had been proved through overwhelming evidence---Complainant and his wife had received telephone calls demanding ransom and threats on behalf of accused that in case ransom was not paid their son would be done to death---Ransom amount delivered to accused on demand had subsequently been recovered from him after his arrest---Scooter belonging to deceased being used by accused was also recovered from them at the time of their arrest---Accused had further led to various recoveries of incriminating articles fully implicating them in the case---Accused had murdered a student young boy of 18 years for ransom and no mitigating circumstance existed in their favour---Appeals of accused were dismissed in circumstances.

Naresh Chandra Das and another v. Emperor AIR (29) 1942 Cal. 593 and Sher Muhammad v. The State 1968 PCr.LJ 221 ref.

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

----Art. 40---How much of information received from accused may be proved---Information received from more than one accused---Admissibility---Plurality of information received before discovery shall not necessarily take any of these informations out of Art.40, Qanun-e-Shahadat, 1984---In a .suitable case it is possible to ascribe to more than one accused the information, which leads to the discovery.

Naresh Chandra Das and another v. Emperor AIR (29) 1942 Cal. 593 ref.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant (in Criminal Appeal No.95 of 2007).

Naeemul Hassan Sherazi, Advocate Supreme Court for Appellant (in Criminal Appeal No.96 of 2007).

Ms. Rukhsana Malik, Additional P.-G., Punjab along with Ch. Akhtar Ali, Advocate-on-Record for the State.

Date of hearing: 11th May, 2009.

2009 SCMR 1448

[Supreme Court of Pakistan]

Present; Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar, Ch. Ejaz Yousaf and Sheikh Hakim Ali, JJ

SAJJAD AHMAD JAVED BHATTI----Petitioner

Versus

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

Civil Petition No.1546 of 2008, decided on 21st April, 2009.

(On appeal from judgment, dated 17-11-2008 of the Islamabad High Court, passed in I.C.A. No.61 of 2008)..

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

----Ss. 10, 13 & 14---Posting as an Officer on Special Duty (O.S.D.)---Retirement of petitioner (BS-21) from service on attaining age of superannuation---Petitioner's prayer for grant of an extension or re-employment in service (in BS-21/22) for period he remained posted as an O.S.D.---Dismissal of Intra-Court. Appeal by High Court filed by petitioner---Validity---Service as an O.S.D. for all practical purposes and legal consequences would be treated as on duty without any break or interruption in service, thus, such period could not be excluded from age of superannuation---Petitioner had not remained out of service during his posting as an O.S.D.---Petitioner for such period had drawn his salary and allowances having been counted towards his pensionary benefits---Petitioner's entitlement to grant of BS-22 would give him only benefit of revision of pay and pension etc., but not right to further extension or re-employment in Government service for such reason---Retiring or retired civil servant could not demand re-employment as a matter of right---No extra tenure could be given to a civil servant by way of extension or re-employment in service on ground that he was prevented from performing his official duties for a certain period on account of circumstances beyond his control or for which he was not at fault or for any other cause---Completion of age of superannuation could not be postponed for reason that civil servant remained on an erratic posting for certain period or was prevented from discharging his official duties for any other cause such as suspension or forced leave or withholding of promotion---Suspension from service on disciplinary grounds or committal to prison would result in temporary severance from office, but civil servant would continue to be in service of Government---Supreme Court refused to grant leave to appeal in circumstances.

Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab and another 2006 SCMR 1360 ref.

Messrs East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605; Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321 and Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 rel.

(b) Civil service---

----Post of Officer on Special Duty (O.S.D.)---Creation of and appointment on such posts---Purpose stated.

Post of O.S.D. can be created to cater for various contingencies including the period during the Government servant remains on training in Pakistan or abroad or for doing work of a special nature such as O.S.D. (Inquiries) or to overcome a technical difficulty.

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

----S. 10---Posting as Officer on Special Duty (O.S.D.)---Legal effect stated.

Posting of a civil servant as O.S.D. does not affect continuity of his service or lien to his substantive post. The service as an O.S.D. for all practical purposes and legal consequences is treated as on duty and there is no interruption or break in service. Therefore, it does not stand to reason as to how the period of service spent by a civil servant as an O.S.D. can be excluded from the age of superannuation. By virtue of provisions of section 10 of the Civil Servants Act, 1973, every civil servant is liable to serve anywhere within or outside Pakistan in any equivalent or higher post under the Federal Government or any Provincial Government or local authority or a Corporation or body set up or established by any Government.

(d) Civil service---

----Posting as Officer on Special Duty (O.S.D.)---Such posting for considerably long period deprecated by Supreme Court---Principles.

At times, civil servants are made O.S.D. or kept without any posting, in case they have become persona non grata. Therefore, the posting of such officers as O.S.D. for considerably long period is deprecated by the Court. It may be unfair and unjust to keep a Government servant on 'tenterhooks without getting any work from him. The right to work is a valuable right of a person as visualized by Article 3 of the Constitution, a provision meant to ensure social and economic justice to the people of Pakistan.

Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab and another 2006 SCMR 1360; Pakistan and others v. Public-at-large and others PLD 1987 SC 304; P.K. Chinnasamy v. Government of Tamil Nadu and others AIR 1988 SC 78; Not the Whole Truth by late Mr. Justice M.R. Kayani; The Discipline of Law pages 188 and 189, 1979 Edition by Late Lord Denning and Langston v. AUEW (1974) WLR 185 rel.

Petitioner in person.

Shah Khawar, D.A.-G. for Pakistan for Respondents.

Date of hearing: 21st April, 2009.

2009 S C M R 1458

[Supreme Court of Pakistan]

Present; Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Raja Fayyaz Ahmad, JJ

SAADIA USMAN and another----Appellants

Versus

MUHAMMAD USMAN IQBAL JADOON and another----Respondents

Civil Appeals Nos.109, 110, 111 of 2008, decided on 1st April, 2009.

(On appeal from the judgment/order, dated 7-11-2008 passed by the Islamabad High Court, Islamabad in Writ Petitions Nos.1059, 1060 and 1063 of 2008).

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

----S. 5---Muslim Family Laws Ordinance (VIII of 1961), S.9---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider the correct import of `deferred dower' and whether it could become prompt if and when demanded; whether Family Court could not grant maintenance which instead could be granted by Arbitration Council as mentioned in S.9 of Muslim Family Laws Ordinance, 1961; whether amount of maintenance decree commensurated with status and income of husband; whether restitution of conjugal rights could be allowed subject to condition of separate living of wife with husband abroad; and whether restitution of conjugal rights could be subjected to payment.of maintenance.

(b) Islamic Law---

----Dower---Meaning---Dower is gift given by bridegroom to bride and the Holy Qur'an is silent on two types of dower i.e. prompt and deferred dower.

(c) Islamic Law---

----Dower---Mehr-e-Mu'wajjal---Payment---Where part of dower is described as Mu'wajjal i.e. deferred but no time limit is fixed for its payment, the time of such payment is either death or divorce.

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

----S. 5---Deferred dower (Mehr-e-Mu'wajjal)---Recovery---Demand of deferred dower---Wife filed suit for recovery of deferred dower (Mehr-e-Mu'wajjal), which suit was decreed in her favour by Family Court--Judgment and decree passed by Family Court was maintained by Lower Appellate Court but High Court in exercise of Constitutional jurisdiction modified judgment and decree in the terms that deferred dower (Mehr-e-Mu'wajjal) would be recoverable at the time of dissolution of marriage either by death or divorce---Validity---Prompt dower was payable on demand during subsistence of marriage tie whereas deferred dower was payable on the time stipulated between parties---Where no time was stipulated, deferred dower did not become "prompt" merely because wife had demanded the same---Total amount of dower, in the present case, was fixed at Rs.10,00,000, prompt dower to the tune of Rs.5,00,000 which was paid at the time of marriage in shape of gold ornaments etc.---As no time was fixed for payment of deferred dower of Rs.5,00,000 it would be payable in eventuality of dissolution of marriage either by death or divorce---Judgment of High Court was based on proper appreciation of facts and circumstances of case as well as law governing the same---Supreme Court declined to interfere in' the judgment passed by High Court---Appeal was dismissed.

Kitabul Fiqh by Abdur Rehman Al-Jaziri; Fatawa-i-Kazee Khan; Darul Mukhtar; Sura Al-Nisa V.4:4; Translation of the meanings of the Noble Qur'an by Dr. Muhammad Tagi-ud-Din Al-Hilali and Dr. Muhammad Muhsin Khan; Tafseer Mazhari Vol.1 by Qazi Muhammad Sanaullah Usmani; Ziaul Qur'an Vol. 1 by Pir Muhammad Karam Shah; Ma'aariful Qur'an Vol. II by Mufti Muhammad Shafi; Tafseer Durr-e-Manthur (translation), by Pir Muhammad Karam Shah; Tafseer Namoona Vo1.II (translation) by Syed Safdar Hussain Najfi; Urdu Encyclopaedia of Islam, Vol. XXI; Kitab-al-Fiqh al-al-Madhahab-al-arba'a; Mahomedan Law by D.F. Mulla; Haqooq-e-Zaujain (Rights 'of the Spouses), p.32, by Maulana Abut Aala Moududi; Eidan v. Mazhar Hussain (1877) 1 All. 483; Taufik-un-Nissa v. Ghulam Kambar (1877) 1 All. 560; Fatima Bibi v. Sadruddin (1865) 2 Bom. HC 291; Nasiruddin Shah v. Mst. Amatul Mughani Begum (1948) Lab. 135 and Commentaries on Mahommedan Law by Syed Ameer Ali, Edition 2007 p.1382 rel.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in Civil Appeal No.109 of 2009) and for Respondent (in Civil Appeals Nos.110 and 111 of 2009).

Abdul Rashid Awan, Advocate Supreme Court for Respondent (in Appeal No.109 of 2009) and for Appellants (in Appeals Nos.110 and 111 of 2009).

Date of hearing: 1st April, 2009.

2009 S C M R 1472

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui JJ

Dr. M. SOHAIL KARIM HASHMI----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another----Respondents

Civil Petitions Nos.912 and 913 of 2009, decided on 13th July, 2009.

(On appeal from the judgment, dated 28-4-2009 in Appeals Nos.657(R)(C.S.) of 2008 and 314(R)(C.S.) of 2009).

(a) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 9(1) & 35---Civil Servants (Confirmation) Rules, 1993, R.6 (4)---Fundamental Rules, R.14-A---Constitution of Pakistan (1973), Art.212(3)---Lien, retention of-Principle---Appointment by Council---Scope---Appellant was an employee of Ministry of Health and applied for the post advertised in press by Pakistan Medical and Dental Council---Later on inquiry was conducted against appellant under S.35 of Pakistan Medical and Dental Council Ordinance, 1962, alleging against him acts of omission and commission, constituting inefficiency, misappropriation, misuse of power and misconduct, resultantly he was repatriated to Ministry of Health---Plea raised by appellant was that after successful completion of his probation, he had become a regular employee of Council and as such could not be repatriated to his previous department---Validity---Provisions relating to retention of lien or right of reversion were beneficial provisions vis-a-vis the government servants---Such provisions had to be construed accordingly to the advantage of government servants and not to their detriment---On his selection and appointment having relieved appellant to join that post, Ministry of Health should have retained his lien---On completion of his probation, appellant should have been given option to rejoin his parent department and in case of his failing to do so, his lien should have been terminated and he should have been apprised of same accordingly---Appointment of appellant, could not be challenged on the ground of irregularities having been committed by concerned authorities in Pakistan Medical and Dental Council or. Ministry of Health---Authorities initiated disciplinary proceedings against appellant, got inquiry conducted against him and finally issued him notice to show cause why action be not taken against him---When authorities were required by High Court to determine as to who was competent authority in respect of disciplinary proceedings initiated against appellant, authorities took Somersault and came up with the stance that appellant was a civil servant having lien with Ministry of Health and thus repatriated him---If according to authorities, appellant was guilty of misconduct on all or any of the charges levelled against him in the charge-sheet, how he could be repatriated to his parent department---Service Tribunal completely overlooked such aspect of the matter in the judgment and allowed to go unnoticed the self-contradictory stance taken and zigzag path followed by. authorities from time to time---Judgment passed by Service Tribunal and order passed by authorities repatriating appellant to Ministry of Health were set aside---Appeal was allowed.

Secretary to the Government of N.-W.F.P. v. Saadullah Khan 1996 SCMR 413 rel.

(b) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 35 & Preamble---Medical and Dental, Council---Object and scope---Inquiry Commission---Pakistan Medical and Dental Council is a statutory body, which is controlled and regulated by provisions of Pakistan Medical and Dental Council Ordinance, 1962---Council carries out purpose of Pakistan Medical and Dental Council Ordinance, 1962, by means of Regulations framed from time to time---Federal Government has power to appoint Commission of inquiry and may amend Regulations of the Council, or make such provision or order or take such other steps as may seem necessary to give effect to recommendations of the Commission---At any rate, the Council remains an independent body, which performs its functions subject to statutory controls and limits.

M. Shoaib Shaheen, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ms. Naheeda Mehboob Elahi, D.A.-G., Mumtaz Ahmed, Section Officer (Admn.) Ministry of Health, Government of Pakistan, Islamabad for Respondent No.1.

Abdur Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

Date of hearing: 18th June, 2009.

2009 SCMR 1488

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Sardar Muhammad Raza Khan, Ch. Ijaz Ahmad and Jawwad S. Khawaja, JJ

ZAFAR IQBAL----Petitioner

Versus

MUHAMMAD ANWAR and others----Respondents

Criminal Petition No.300 of 2009, decided on 1st July, 2009.

(On appeal from the judgment/order, dated 15-4-2009 passed by Islamabad High Court, Islamabad in Criminal Miscellaneous No.81/BC of 2009).

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

----Ss. 497 & 498---Bail---Principles---Courts in cases, where offence falls within non-prohibitory clause of S.497, Cr.P.C., consider favourably by granting bail as a rule but decline to do so in exceptional cases---As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Subhan Khan v. The State 2002 SCMR 1797 rel.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Partial return of money---Civil suit, pendency of---Effect---Complainant had no business deal with accused and amount was given to accused for profit bearing investment---Accused failed to make payment of profit to complainant for one or the other reason, on which the complainant got registered case against him---Bail granted by Trial Court to accused was cancelled by High Court---Validity---Accused charged for criminal offence ordinarily could not be kept into custody for the purpose of punishment---Accused had remained, in custody for a period of six months and if prosecution would fail to establish guilt against him, longer detention of accused would cause him loss and his liberty would be curtailed for .a considerable period without any legal justification---In case of a matter falling under non-prohibitory clause of S.497, Cr.P.C., accused could not claim bail as a matter of right but such facility could be extended to him as a matter of concession---Accused had already returned huge portion of amount received by him from complainant---Civil litigation had already commenced at the behest of complainant who filed suit for recovery of amount against accused---Bail was granted.

Haroon-ur-Rashid, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nazir Ahmed Bhutta, Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for Respondent No. 1.

Ch. Tariq Mehmood, Additional Prosecutor and Abdul Sattar, S.-I./Investigating Officer for the State.

2009 SCMR 1492

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

ANWAR ALI and another----Petitioners

Versus

CHIEF EXECUTIVE HESCO (WAPDA), HYDERABAD and others----Respondents

Civil Petitions Nos.315-316 of 2009 and Civil Petitions Nos.457 and 458 of 2009, decided on 22nd May, 2009.

(On appeal from the judgment, dated 26-12-2008 passed by Federal Service Tribunal, Islamabad in Appeals Nos.400(R)(C.S.) of 2008 and 401(R)(C.S.) of 2008).

Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 5---Dismissal from service---Bogus academic certificates---Service Tribunal, decision of---Principle---Civil servants produced bogus academic certificates at the time of their selection, therefore, they Were dismissed from service---Service Tribunal partially allowed appeals filed by civil servants and converted dismissal from service into compulsory retirement with pensionary benefits---Validity---Had the Service Tribunal gone through documents placed before Inquiry Officer, there could have no occasion to show any leniency in favour of civil servants---Service Tribunal might have recommended department for further criminal action against such persons so that it might serve deterrence for likeminded persons in future---Instead of doing so, civil servants, who were found guilty of gross misconduct and fraud, had been benefited by converting penalty of dismissal from service into compulsory retirement only for the reason that they had served department for about 27 years---Such reasons prevailed upon Service Tribunal were not acceptable in any context---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Service Tribunal---Supreme Court recommended authorities to examine possibility of getting registered criminal case against civil servants so that in future no one should dare to commit such misconduct in government departments---Appeal was allowed.

Postmaster-General, AJK v. Muhammad Zorab 1996 SCMR 280 rel.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Ch. Naseer Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 22nd May, 2009.