SCMR 2010 Judgments

2010 S C M R 457

[Shariat Appellate Jurisdiction]

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

Criminal Shariat Appeal No.27 of 2009

NIZAM-UD-DIN----Appellant

Versus

RIAZ and another----Respondents

(On appeal from the judgment, dated 2-2-2006 of the Federal Shariat Court passed in Criminal Appeal No.58/P of 2004 linked with and 18/P of 2005, Criminal Revision No.1/P of 2005 and Criminal Murder Reference No.1/P of 2005).

Criminal Shariat Appeal No.28 of 2009

RIAZ----Appellant

Versus

THE STATE and another----Respondents

(On appeal from the judgment, dated 2-2-2006 of the Federal Shariat Court passed in Criminal Appeal No.58/P of 2004 linked with and 18/P of 2005, Criminal Revision No.1/P of 2005 and Criminal Murder Reference No.1/P of 2005).

Criminal Appeal No.29 of 2009

TAJ MUHAMMAD----Appellant

Versus

THE STATE----Respondent

(On appeal from the judgment, dated 2-2-2006 of the Federal Shariat Court passed in Criminal Appeal No.58/P of 2004 linked with and 18/P of 2005, Criminal Revision No.1/P of 2005 and Criminal Murder Reference No.1/P of 2005).

Criminal Shariat Appeals Nos.27, 28 and 29 of 2009, decided on 29th April, 2009.

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

----S. 302(b)---Qatl-i-amd---Appraisal of evidence---Confession---Evidentiary value---Retracted confession either judicial or extra-judicial, if found truthful and confidence-inspiring and also having qualified the test of voluntariness, can be used for conviction without looking for any other sort of corroboration.

Manjeet Singh v. The State PLD 2006 SC 30 ref.

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

----S. 302(b)---Qatl-i-amd---Appraisal of evidence---Confessional statements of accused were truthful and voluntary---Confidence-?inspiring deposition of the wife of the deceased had established that the deceased had left his house in the company of the accused and did not return home---Pointation of place of occurrence by the main accused, the recovery of crime-empties therefore, the recovery of the crime weapon at the instance of main accused, medical evidence, positive Ballistic Expert's report, documentary evidence establishing that the main accused was the client of the deceased, had all established the guilt of both the accused beyond any shadow of doubt---Co-accused had shared common intention with the main accused to rob the deceased and as per his own confession he had received a sum of Rs.25,000 as his share out of the robbed amount---However, co-accused had not caused any injury to the deceased and therefore, his sentence of imprisonment for life was not enhanced to death---Convictions and sentences of both accused were upheld in circumstances.

?

Abdus Samad v. The State PLD 1964 SC 167 and Manjeet Singh v. The State PLD 2006 SC 30 ref.

Abdul Sattar Khan, Advocate Supreme Court for Appellant (in Criminal Shariat Appeal No.27 of 2009).

Haji Muhammad Zahir Shah, Advocate Supreme Court for Respondent No.1 (in Criminal Shariat Appeal No.27 of 2009).

Haji Muhammad Zahir Shah, Advocate Supreme Court for Appellant (in Criminal Shariat Appeal No.28 of 2009).

Abdul Sattar Khan, Advocate Supreme Court for Respondent No.2 (in Criminal Shariat Appeal No.28 of 2009).

Arshad Ali Chaudhary, Advocate Supreme Court for Appellant (in Criminal Shariat Appeal No.29 of 2009).

Qari Abdul Rashid, Advocate Supreme Court for the State (in all cases).

2010 S C M R 495

[Shariat Appellate Jurisdiction]

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

BASHIR AHMAD----Appellant

Versus

FIDA HUSSAIN and 3 others----Respondents

Criminal Shariat Appeal No.15 of 2004, decided on 16th April, 2009.

(On appeal against the judgment, dated 12-11-2003 passed by the Federal Shariat Court in Criminal Appeal No.174-I of 2002).

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

----Ss. 302/34 & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-i-amd and sodomy---Constitution of Pakistan (1973), Art. 203 F(2B)---Appeal against acquittal---Evidence of last-seen furnished by close relatives of complainant did not inspire confidence---Evidence of extra judicial confession allegedly made by accused before the uncle of the deceased seemed to be a concoction and was not believable---Evidence of recovery of articles of the deceased from the possession of accused was also not credible---Medical evidence per se was inconsequential, which merely showed murder of the deceased after having been subjected to sodomy, but did not connect the said offences with the accused---Concurrent findings of both the Courts below were neither perverse nor shocking and did not suffer from any legal infirmity including misreading or non-reading of evidence---Conclusions drawn by lower Courts were based on the material available on record---Appeal against acquittal of accused was dismissed in circumstances.

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

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

----Arts 185(3) & 203-F(2B)---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Interference by Supreme Court---Guide lines provided.

Ghulam Sikandar and another v. Mamarz Khan and Others PLD 1985 SC 11 ref.

Shoaib Shaheen, Advocate Supreme Court and Malik Mumtaz Hussain Jai, Advocate Supreme Court for Appellant.

Muhammad Saleem Malik, Advocate Supreme Court for Respondents Nos.1 to 3.

Ch. Munir Sadiq, D'.P.-G. Punjab for the State.

Date of hearing; 16th April, 2009.

2010 S C M R 681

[Shariat Appellate Jurisdiction]

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

Haji BAKHTAWAR SAID MUHAMMAD----Petitioner

Versus

Mst. DUR-E-SHAHWAR BEGUM and others----Respondents

Criminal Shariat Petition No.2 of 2008, decided on 31st March, 2009.

(On appeal from the judgment/order, dated 25-1-2008 passed by the Federal Shariat Court, Islamabad, in Criminal Revision No.8/I of 2004).

Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----Ss. 6, 7 & 14---Constitution of Pakistan (1973), Art.203-F(2B)---Trial Court had refused to frame the charge under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, on the ground that the petitioner had levelled the charge of adultery etc. against the respondent during the subsistence of marriage and that the dispute being between husband and wife, S.14 of the said Ordinance was attracted in the case---Federal Shariat Court accepting the revision petition filed by the respondent set aside the order of Trial Court and remanded the case with the direction to frame the charge under Ss.6 & 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and proceed with the case in accordance with law-Validity-Relationship of husband and wife (between the parties) had admittedly come to an end on the day when the petitioner had divorced the respondent and executed the divorce deed---Facts disclosed by the petitioner in his evidence adduced during preliminary inquiry under S.202, Cr.P.C. had revealed that the petitioner and respondent were just a man and a women and not husband and wife, when the petitioners in his three written statements, before his elder brother and allegedly also before a Punchayat in his own house, had made imputation of Zina against the respondent and explicitly alleged that all of her three children were illegitimate children---Action of petitioner, therefore, had clearly attracted the provisions of Ss.6 & 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and there was no question of S.14 of the said Ordinance being attracted in the case---Leave to appeal was refused to petitioner by Supreme Court accordingly.

Qur'an Sura Al-Noor: 3 and Mussalman Law by Charlas Hamilton p.197 ref.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Petitioner.

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

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

2010 S C M R 1

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

Mian SHAHID IQBAL----Petitioner

Versus

Sheikh TARIQ MEHMOOD----Respondent

Civil Petition No.650 of 2009, decided on 15th May, 2009.

(On appeal from the order, dated 13-3-2009 of the Lahore High Court, Lahore passed in S.A.O. No.6 of 2009).

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

----Ss. 5-A & 13(6)---Order of Rent Controller directing tenant to deposit past and future rent by specified date---Striking off defence of tenant for no-compliance of such order---Plea of tenant that Rent Controller had no jurisdiction to direct deposit of time-barred rent---Validity---Duty of Rent Controller was to pass such an order---By means of S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959, tenant was statutorily bound to increase rent notwithstanding the fact whether same had become time-barred---Rent Controller under S.13(6) of the Ordinance could direct deposit of statutorily increased rent---Tenant having any reservation to such order could agitate same before Rent Controller, but after compliance of such order---Not by refusing or committing default in payment of rent, but only after compliance of such order, tenant could express his reservation before Rent Controller for its final determination by contending that his ejectment could not be directed as there was no default and claim of landlord had become time-barred---Ejectment proceedings could not be questioned merely for reason that rent due was made part of time-barred rent, thus, ejectment application could not be maintained under the Ordinance---When such order was passed and subsequently, tenant had not expressed his reservation thereto, but had complied with same after expiry of time fixed therein, Supreme Court refused to grant leave to appeal against impugned order of Rent Controller which was upheld by High Court.

Ashfaqur Rehman v. Choudhry Muhammad Afzal PLD 1968 SC 230; Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000, SCMR 207 and Badruddin v. Muhammad Yousaf 1994 SCMR 1900 ref.

Malik Shahzad Ahmed Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2010 S C M R 5

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

MUHAMMAD IDREES and others----Petitioners

Versus

MUHAMMAD PERVAIZ and others----Respondents

Civil Petition No.1381 of 2009, decided on 11th August, 2009.

(Against the judgment, dated 8-5-2009 passed by Peshawar High Court, Abbottabad Bench in Civil Revision No.83 of 2007).

(a) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances and facts.

Muhammad Saleem's case 1994 SCMR 2213 rel.

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

---S. 115---Re visional jurisdiction of High Court---Findings by Court of competent jurisdiction---Scope---Finding on question of fact or law, how erroneous the same may be, if recorded by court of competent jurisdiction, the same cannot be interfered with by High Court in exercise of its revisional jurisdiction under S.115 C. P. C., unless such findings suffer front controversial defects, illegality or material irregularity.

Hindu Religious Endowments Board, Madras's case PLD 1949 PC 26 rel.

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

---Art. 185(3)---Supreme Court, jurisdiction of----Concurrent findings of fact recorded by courts below---Burden of proof---Scope---Supreme Court seldom interferes in concurrent conclusions arrived at by courts below while exercising power under Art.185(3) of the Constitution unless and until finding is on the face of it against evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating to appreciation of evidence or finally if finding could be demonstrated to be physically impossible-In civil petitions, burden lies 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.

(d) Documentary evidence---

----Registered document---Scope---Registered document has sanctity attached to it and strong evidence is required to cast aspersion on its genuineness.

Mirza Muhammad Sharif's case1993 SCMR 462 rel.

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

----Art. 100---Partition Act (IV of 1893), S.4---Constitution of Pakistan (1973), Art.185(3)---Partition of property---Concurrent findings of fact by the courts below---Thirty years old document---Presumption---Property in question was transferred vide sale-deed registered on 12-5-1952, in the names of predecessors-in-interest of parties and possession was also handed over to then---Suit filed for recovery of possession of property through partition was decreed by Trial Court in favour of plaintiffs---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court as well as by High Court--Validity---Presumption under Art.100 of Qanun-e-Shahadat, 1984, was attached to thirty years old document, which presumption was rebuttable presumption---Such duty had become heavily cast when opposite party challenged very genuineness of the document--Defendants failed to rebut registered sale deed as it was evident from the contents of written statement filed by them-No substantial question of law had been raised by defendants---Constitutional jurisdiction being discretionary in nature, Supreme Court declined to exercise such discretion in favour of defendants---Leave to appeal was refused.

Muhammad Sajjad Hussain's case 1991 SCMR 703 and Khairannessa Bibi's case AIR 1958 Cal. 733 ref.

Khuda Bakhsh's case 1974 SCMR 279 and Syed Raunaq Ali's case PLD 1973 SC 236 rel.

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2010 S C M R 11

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Education and others---Petitioners

Versus

NAHEED NAUSHAHI----Respondent

Civil Petition No.891 of 2009, decided on 2nd June, 2009.

(On appeal from the judgment, dated 24-3-2009 of the Federal Service Tribunal passed in Appeal No.1052(R)(C.S.) of 2006).

Service Tribunals Act (LXX of 1973)---

----S. 4---ESTACODE, 2007 Edition, Vol.II, Serial No.155---Back-benefits, awarding of---Procedure---Civil servant was reinstated in service by Service Tribunal with back-benefits---Plea raised by authorities was that back-benefits could not be awarded otherwise than the procedure laid in Serial No.155 of Vol.II of ESTACODE, 2007 Edition---Validity---Service Tribunal instead of granting relief with regard to financial back-benefits should have referred the case to department for establishing Committee for the purpose, as mentioned in Serial No.155 of Vol.II of ESTACODE, 2007 Edition---Supreme Court directed the authorities to refer the case of civil servant to the Committee constituted in view of Serial No.155 of Vol.II of ESTACODE, 2007 Edition, for determining whether civil servant was entitled for the claimed financial benefits or not---Appeal was allowed.

Nadir Shah, S.D.O. Minor Canal Cell, Irrigation Sub-Division, Dera Murad Jamali and 2 others v. Secretary, Irrigation and Power Department, Balochistan, Quetta and 7 others 2003 PLC (C.S.) 961 rel.

Shah Khawar, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Abdul Rahim Bhatti, Advocate Supreme Court and Arshad Ali Chaudhary, Advocate-on-Record for Respondent.

2010 S C M R 18

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

MUHAMMAD SHAMIM through Legal Heirs----Appellants

Versus

Mst. NISAR FATIMA through Legal Heirs and others----Respondents

Civil Appeal No.2805 of 2001, decided on 9th June, 2009.

(On appeal from the order, dated 24-9-2001 passed by the Lahore High Court, Bahawalpur Bench in R.S.A. No.84 of 1985).

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

----S. 8---Transfer of Property Act (IV of 1882), S.41---Recovery of possession---Co-sharers, rights of---Ostensible owner---Protection of S.41 of Transfer of Property Act, 1882---Applicability---Plaintiffs were daughters of deceased owner of suit property and defendant was their cousin who purchased suit property from one of their brothers---Grievance of plaintiffs was that after the death of their father, they were excluded from mutation of inheritance and land was sold to defendant---Plea raised by defendant was that he purchased land from ostensible owner whose name was entered in revenue record---Suit was decreed by Trial Court in favour of plaintiffs but Lower Appellate Court reversed the findings of Trial Court in exercise of appellate jurisdiction restored the judgment and decree passed by Trial Court---Validity---Once it was established that plaintiffs were entitled to inherit left over of their deceased father, they became co-sharers in the property on death of their father---Plaintiffs were co-owners of property to the extent of their share for all intents and purposes---Co-sharer was not entitled to alienate more than his share---Each co-sharer was deemed to be owner in joint property and any one of them could not act in a manner which could constitute an invasion on the rights of other co-shares---Though names of ladies (plaintiffs) had been excluded while entering inheritance mutation, yet defendant vendee, who wits their cousin had the knowledge of their due entitlement and share---If defendant simply acted on the basis of revenue entries, he did not adopt due care which an ordinary buyer should have taken---Defendant took advantage of his position being relative and lessee of the properly---Rightful owner of property could not be deprived of his/her share unless precluded to claim the same due to conscious abandonment or relinquishment---Plaintiffs were daughters of deceased owner and under the law entitled to succeed and inherit the left-over of the deceased---Plaintiffs had stepped into the shoes of their father on his death and became share holder to the extent of their shares---Any of the brothers, who were also co-sharer in the property could not deprive sisters of their due share by alienating the property falling in their share and belonging to them---As plaintiffs were continued to be paid their share in the produce, no question of limitation could arise as limitation could not run against a co-sharer in such an eventuality---Defendant could not succeed in his plea of being bona fide purchaser and his reliance upon S.41 of Transfer of Property Act, 1882, was misplaced and misconceived---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.?

Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874; Abdul Ghafoor and others v. Muhammad Shaft and others PLD 1985 SC 407; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Rab Nawaz and another v. Akbar Ali and others 1989 SCMR 93 and Ali Gohar Khan v. Sher Ayaz 1989 SCMR 130 ref.

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

----S. 41---Bona fide purchaser-Protection-Pre-conditions-In order to invoke provisions of S.41 of Transfer of Property Act, 1882, it is necessary that transferor should be ostensible owner, his ownership should be consented or implied by real owner, the transfer should be for consideration and transferee must have acted in good faith taking reasonable care to ascertain that transferor had the power to transfer.?

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84; Haji Abdul Ghafoor Khan v. Ghulam Sadiq PLD 2007 SC 433 and Mst. Bilqees Begum and others v. Additional Commissioner (Revenue), Lahore and others PLD 2003 SC 899 rel.

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

----S. 54---Specific Relief Act (I of 1877), S.42---Passing of title---Principles---Vendor cannot pass on to vendee anything better than he himself held, therefore, it is vendee who has to apply maximum care before going for a transaction of sale / purchase---Right/title of vendee is dependent upon the strength or weakness of the title of seller---Vendee has to sail, swim and sink with seller and to pursue him for any loss suffered if he was ultimately the loser.?

Abdul Rashid Awan, Advocate Supreme Court for Appellants.

Jaffar Hashmi, Advocate Supreme Court for Respondents Nos.1(a)(b)(q), 2(a)(b), 6(a)(c), 7, 8 and 21.

Other respondents: Ex parte.

Date of hearing: 9th June, 2009.

2010 S C M R 27

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

ISMAEEL----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.318 of 2009, decided on 25th June, 2009.

(Against the judgment, dated 4-6-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No.259 of 2005).

Per Ch. Ijaz Ahmed, J., Jawwad S. Khawaja, J. agreeing---

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

----Ss. 9(c), 25 & 29(d)---Constitution of Pakistan (1973), Art.185(3)---Official witnesses---Recovery from vehicle---Proof of---Shifting of onus to prove---Chars weighing 39 kilograms and opium weighing 3 kilograms was recovered from inside four doors of the car which was being driven by accused---Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and was sentenced to imprisonment for life, which conviction and sentence was maintained by High Court---Validity---Mere fact that prosecution witnesses belonged to Anti-Narcotics Force, by itself could not be considered valid reason to discard their statements---Chars and opium recovered from four doors of the car which was being driven by accused coupled with the fact that only accused was present in the car, therefore, courts below were justified to give finding against accused regarding his guilt---In case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of country, if the case stood otherwise proved---Approach of Court should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases---Court should consider entire material as a whole and if it was convinced that the case was proved then conviction should be recorded notwithstanding procedural defects---Chemical Examiner's reports regarding Chars and opium were sufficient to prove that substance recovered from accused was Chars which could be used to cause intoxication---Prosecution discharged its initial onus while proving that substance was recovered from him whereas accused failed to discharge his burden in terms of S.29 (d) of Control of Narcotic Substances. Act, 1997---Supreme Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Leave to appeal was refused.?

Mirza Shah's case 1992 SCMR 1475; Naseer Ahmed's case 2004 SCMR 1361; Riaz Ahmad's case 2004 SCMR 988; Muhammad Shah's case PLD 1984 SC 278; Said Shah's case PLD 1987 SC 288; Nadir Khan's case 1988 SCMR 1899; Rab Nawaz's case PLD 1994 SC 858; Ikram Hussain's case 2005 SCMR 1487; Munawar Hussain's case 1993 SCMR 785; Muhammad Arshad case 2007 SCMR 1378; Mst. Taj Bibi's case 2007 SCMR 1591 and Wajid Khan's case 2007 SCMR 1435 rel.

(b) Interpretation of statutes---

----Special and general law---Proving of case---Procedure---Standard of proving case under special law is different in case special law is read as whole, while comparing with general low---Special law excludes general law.?

Ziaur Rehman's case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 rel.

(c) Interpretation of Constitution---

----Mandate of Constitution---Scope---Constitution of Pakistan is based on concept of welfare State wherein principle of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, should be fully observed---Mandate of Constitution envisages that every person has to obey the Constitution as it demands loyalty and obedience---Constitution is a social binding contract between State and its people---Every organ of State should act within its parameters as defined by Constitution without meddling into matters of other organs.?

(d) Interpretation of statutes---

----Preamble---Scope---Preamble and object of a statute should always be kept in mind while interpreting provisions of any Act---Preamble is key to understand the Act.?

Stowel v. Lord Zouch (1565) I Plowd ref.

Per Jawwad S. Khawaja, J. agreeing with Ch. Ijaz Ahmed, J.

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

----Art. 9---Security of person---Adherence to law---Scope---Interest of country is best served when executive and judicial machinery of State while administering penal statutes, adhere to law---It is so, where fundamental rights of a citizen such as his liberty, are involved---Right of personal liberty of citizen is enshrined in Art. 9 of the Constitution and has been jealously guarded by courts in Pakistan---If any person is to be deprived of his liberty, that should only happen in accordance with law.

Syed Ali Hassan Gilani, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 25th June, 2009.

2010 SCMR 36

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sardar Muhammad Aslam, JJ

MUHAMMAD KHAN----Appellant

Versus

SALEHUN alias SALEH MUHAMMAD--Respondent

Civil Appeals Nos.1177 and 1178 of 2003, decided on 1st July, 2009.

(On appeal from the judgment, dated 6-11-2002 of the Lahore High Court, Lahore passed in R.S.A.No.13 of 1999 and Civil Revision No.313-D of 1999).

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

---Ss. 3 & 14---Constitution of Pakistan (1973), Art.185(3)---Petitioner contended that issue of limitation was not correctly decided in accordance with law, as all the courts below mechanically proceeded on the assumption as if observation made by Supreme Court in earlier judgment that petitioner could seek remedy of specific performance of agreement constituted expression of opinion or a decision about condonation of delay in filing the suit whereas question of limitation should have been decided independently keeping in view the facts and circumstances of the case---Petittoner also contended that S.14 of Limitation Act, 1908, was not properly construed and applied in its true perspective and on relevant consideration inasmuch as previous proceedings initiated by respondent under the garb of arbitration agreement suffered from mala fides and was an attempt to indirectly by under-hand means to get a decision which could not be held by any stretch of imagination or law to be proceedings prosecuted in good faith---Petitioner further contended that even if evidence of petitioner had been closed but certified copies of proceedings- in previous arbitration matter were produced in evidence in which a finding had been recorded that there was no arbitration agreement but courts below did not apply their mind to such aspect of the case that respondent was not prosecuting that case bonafidely in good faith---Leave to appeal was granted by Supreme Court to consider the contentions of petitioner.

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

----S. 12---Limitation Act (IX of 1908), S.14---Specific performance of agreement to sell---Limitation---Plaintiff initiated proceedings, in year 1997, for matting award rule of court but the proceedings were contested by defendant on the ground that there was no arbitration agreement between the parties---Matter went upto Supreme Court where it was observed that plaintiff should have sought specific performance of agreement to sell---On such observation, plaintiff filed suit in year 1988, which suit was decreed in his favour by Trial Court which judgment and decree was maintained by Appellate Court and High Court---Validity---No observation whatsoever was made by Supreme Court in regard to the issue of limitation which was likely to crop up in subsequent proceedings to be initiated by plaintiff---In the suit for specific performance of agreement to sell filed by plaintiff, issue of limitation had to be decided on its own merit---No justifiable reasons existed for excluding time spent by plaintiff in arbitration proceedings before different forums including Supreme Court---Previous proceedings initiated by plaintiff under the garb of arbitration agreement could not be held to be prosecuted in good faith---It was held in earlier proceedings that there was no arbitration agreement and alleged arbitration award produced by plaintiff for making the same rule of court was declared to be a forged document---Such proceedings therefore, suffered from mala fide or bad faith and plaintiff could not be allowed a premium for the same by extending hint time spent in such proceedings---Supreme Court set aside the judgments and decrees passed by the courts below and suit filed by plaintiff was dismissed being barred by limitation---Appeal was allowed.?

Abdul Majid and others v. Mst. Zubeda Begum and others 2007 SCMR 866 ref.

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

----S. 14---Bar of limitation---Protection---Pre-conditions---Provisions of S.14 of Limitation Act, 1908, comes into play, when conditions were fulfilled that plaintiff had been prosecuting another civil proceedings against defendant; that he had been prosecuting it with due diligence; that present proceeding were founded upon same cause of action; that it was prosecuted in good faith; and that it did not bear fruit because court was unable to entertain it due to defect of jurisdiction or other cause of alike nature.?

Akhtar Masood Khan, Advocate Supreme Court for Petitioner (in both cases).

Ghulam Hussain Awan, Advocate Supreme Court for Respondent (in both cases).

Date of hearing: 1st July, 2009.

2010 S C M R 42

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION----Petitioner

Versus

S.M. ISMAIL NAQVI and others----Respondents

Civil Petitions Nos.1588 to 1825 of 2008, decided on 17th June, 2009.

(On appeal against the judgment, dated 9-10-2008 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.74(R)(C.E.) of 2001 to 311(R)(C.E.) of 2001).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Judgment passed by Service Tribunal---Implementation---Respondents got retirement under Mandatory Retirement Scheme but petitioner Corporation did not pay them their dues---Appeal filed by respondents was allowed by Service Tribunal and the petitioner Corporation was directed to pay their dues---Validity---Respondents were employees of petitioner Corporation and were offered certain benefits in lieu of their proceedings on early retirement for certain considerations best known to petitioner Corporation---Beneficial aspect of the policy was vis-a-vis concerned employees was dominant consideration and construction having the effect of depriving them of benefits envisaged therein could not be adopted---Admissibility of annual increments and encashment for PL/Leave Preparatory to Retirement were not allowed by way of concession---On the contrary they were the normal benefits /entitlements admissible to concerned employees, therefore, the same could not be withheld on any ground or principle governing interpretation of instruments, such as the Scheme in question---Supreme Court directed petitioner Corporation to accept the benefit of increments and encashment for PL/Leave Preparatory to Retirement within a period of one month---Leave to appeal was refused.

Abdul Hameed Nasir v. National Bank of Pakistan 2003 SCMR 1030 ref.

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

----S. 4---ESTACODE, 2007 Edition, Sr.No.11, Vol. II, page, 1272---Judgment of Serf/ice Tribunal---Filing of appeal---Pre-condition---If it is decided, in consultation with Law and Justice Division that order passed by Service Tribunal does not involve any substantial question of law of public importance for moving Civil Petition for Leave to Appeal before Supreme Court, that order should be implemented forthwith under intimation to Registrar, Service Tribunal.

Shahid Anwar Bajwa, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners (in all petitions).

Abdul Rahim Bhatti, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in all petitions).

2010 S C M R 48

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

Mst. JINDO MAI through L.Rs. and others----Petitioners

Versus

MUHAMMAD BAKHSH and others----Respondents

Civil Petition No.895 of 2007, decided on 18th June, 2009.

(On appeal from the order, dated 3-9-2007 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No.550-D of 2007 and Civil Miscellaneous Nos.1-2/C of 2007).

Civil Procedure Code (V of 1908)---

----S. 149-Deficiency in court-fee---Time fixed by Court---Appeal filed by petitioners was dismissed by Appellate Court on the ground that deficiency in court fee was not completed within time given by Court and Reader of the Court had no authority to extend time for deposit of court-fee-Validity-Petitioners had neither violated target date nor order of Appellate Court was flouted, which could not be complied with due to absence of Presiding Officer on one hand and direction of Reader on the other who mentioned that court fee was to be deposited on next date of hearing---No direction whatsoever was given by Reader that court fee was to be deposited with Duty Judge---If there had been some Duty Judge, the Reader himself would .have not given date and adjourned the case---General practice was that usually where Presiding Officer was on short leave for a day or two, no Duty Judge was appointed and in criminal cases for the purposes of remand, additional duties were assigned to some other Judicial Officer---Date on which court fee was deposited was a valid, tendering of court-fee, under the peculiar circumstances of the case---Nothing was available on record to support that Duty Judge was functioning on that day---Conduct of petitioners could not be declared contumacious nor they had acted with mala fide intention to deliberately flout orders of the Court---Supreme Court converted petition for leave to appeal into appeal and remanded the matter to Lower Appellate Court for decision of appeal afresh---Appeal was allowed.

Ahmad Yar Jang v. Noor Ahmed Khan 1994 SC 688; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Shahna Khan v. Aulia Khan and others PLD 1984 SC 157; Mst. Paveen v. Ms. Jamsheda Begum and another PLD 1983 SC 227 ref.

Malik Muhammad Latif Khokhar, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Nemo for Respondents Nos.1 to 3 and 5.

G.N. Gohar, Advocate Supreme Court/Advocate-on-Record for Respondent No.4.

Date of hearing: 18th June, 2009.

2010 SCMR 52

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

ABDUL QADOOS through L.Rs.----Petitioner

Versus

HABIBUR REHMAN and others----Respondents

Civil Petition No.534-P of 2003, decided on 2nd July, 2009.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 24-6-2003 passed in Civil Revision No.489, of 1994).

Constitution of Pakistan (1973)---

----Art. 185(3)---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Petition for leave to appeal---Duty of petitioner---Concurrent findings of fact by Courts below-.--Petitioner assailed concurrent findings of fact passed by Courts below---Validity---In petition for leave to appeal burden was heavily on petitioner to show that concurrent findings of facts recorded by Courts below were not sustainable---Supreme Court did not interfere with findings of fact recorded by primary Courts or High Court when it was satisfied that findings of Courts below were on the whole reasonable and were not arrived -at by disregarding any provision of law or any accepted principle concerning appreciation of evidence--No illegality or infirmity was found in the present case and judgment passed by High Court and Courts below had thoroughly appraised whole evidence of parities and thereafter reached at conclusion concerning controversy involved---Neither any misreading or non-reading of evidence on record nor any infirmity legal or factual had been pointed out in the judgment under challenge---No substantial question of law of public importance was involved, requiring determination, therefore, Supreme Court declined to interfere in the-judgment passed by High Court---Leave to appeal was refused.

Sh. Fateh Muhammad v. Muhammad Adil and others PLD 2007 SC 460; Alamgir Khan through L.Rs. and others v. Haji Abdul Sittar Khan and others 2009 SCMR 54; Muhammad Feroz's case 2006 SCMR 1340; Aurangzeb's case 2007 SCMR 236 and Balochistan Employees Social Security Institution through Commissioner and others v. Gatron Industries Limited 2007 SCMR 929 rel.

Barrister Masood Kausar, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2010 SCMR 55

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

MAJEED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.84 of 2006, decided on 1st October, 2009.

(Against judgment, dated 31-5-2004 of the High Court of Balochistan, Quetta passed in Criminal Appeal No.112 of 2000).

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

----S. 302(b)---Qatl-i-Amd---Appraisal of evidence---Dying declaration made by the deceased immediately after the incident had eliminated the possibility of any influence by the witnesses, whereby the accused was made responsible for causing the injuries to hint---Dying declaration made even before a private person, if free from influence, would become substantive piece of evidence after examination of the said person and would require no- corroboration and could be made basis of conviction---Accused in his judicial confession had specifically admitted to have caused fire-arm injuries to the deceased, which was corroborated by the dying declaration---Delay of twelve days in recording the confession by itself was not sufficient to discard the same---Time of half an hour given to accused by Magistrate for reflection was sufficient, which had not caused any prejudice to the accused---Even otherwise, any lapse by Magistrate in recording confession could not always be treated as fatal to its evidentiary value, when the Court was satisfied that the lapse had not in any way adversely affected the voluntary or truthful nature of the confession---Assessment of evidence by the Courts below did not suffer from any infirmity---Appeal was dismissed in circumstances.

Farmanullah v. Qadeem Khan 2001 SCMR 1474; Nabi Bakhsh v. State 1999 SCMR 1972; Muhammad Yaqoob v. State 1992 SCMR 1983; Gul Jamal v. State 1980 SCMR 654; Naseem Akhtar v. State 1999 SCMR 1744 and Gul Muhammad v. The State 1991 SCMR 942 ref.

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

----Art. 46(1)---Dying declaration eligible for conviction--Principles---No specified forum for making dying declaration is required and it can be 'made before a private person; dying declaration is not legally required either to be read over to or to be signed by its maker;' dying declaration' should be influence free; . in order to prove dying declaration the person by whom it was recorded should be examined; dying declaration becomes substantive evidence when it is proved to have been made by the deceased; corroboration of a dying, declaration is not a rule of law, but a requirement of prudence and such declaration when proved by cogent evidence can be made a base for conviction.

Farmanullah v. Qadeem Khan 2001 SCMR 1474 ref.

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

----S. 164---Judicial confession---Delay in recording confession---Effect---Delay in recording the confessional statement of an accused by itself is not sufficient to adversely affect its, validity---No hard and fast rule can certainly be laid down about the period for recording such confession during investigation.

Nabi Bakhsh v. State 1999 SCMR 1972 and Muhammad Yaqoob v. State 1992 SCMR 1983 ref.

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

----S. 164---Power to record confession---Lapse by Magistrate-Effect---Any lapse on the part of Magistrate in recording confession cannot always be treated as fatal to the evidentiary value of confession, if Court is satisfied that the said lapse has not in any way adversely affected the voluntariness or truthfulness of the confession.

Naseem Akhtar v. State 1999 SCMR 1744 and Muhammad Yaqoob v. State 1992 SCMR 1983 ref.

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

----S. 164---Judicial confession, when sufficient for conviction---Voluntary and true recorded confession requires no corroboration and is sufficient for conviction, but as a rule of procedure, Court is required to seek corroboration of the same on material particulars.

Gul Muhammad v. The State 1991 SCMR 942 ref.

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

Raja Abdul Ghafoor, Advocate-on-Record for the State.

Date of hearing: 1st October, 2009.

2010 SCMR 61

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

THE STATE through Director-General, Anti-Narcotics Force, Rawalpindi----Petitioner

Versus

ABDUL GHANI----Respondent

Criminal Petition No.186 of 2008, decided on 28th April, 2009.

(On appeal from the order, dated 2-5-2008 of the High Court of Sindh, Karachi passed in Criminal Bail No.478 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 12, 13 & 15---Constitution of Pakistan (1973), Art.185(3)---Possession etc. of narcotic drugs---Bail, cancellation of---High Court had erred in entering into the facts of the case and making an incorrect observation that accused was not found in exclusive possession of the narcotics---According to the prosecution case and the. Investigating Officer 2.610 kilograms heroin and 1.780 kilograms "Charas" was recovered from the possession of accused, which he was carrying on his motorcycle---Accused, thus, was prima facie involved in an offence falling within the prohibition contained in S.497(1), Cr.P.C. and he was not entitled to bail---Submission of challan in the Court and a case of further inquiry having been made out, had no legal force in the given circumstances of the case---Possibility of further inquiry did exist in every case, but it was not possible to release the accused on bail notwithstanding his involvement in a heinous criminal case, particularly in which a considerable number of members of the society" including children, girls, men and women fell prey to drug trafficking---Bail allowed to accused by High Court was cancelled in circumstances.

Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621 ref.

Niaz Ahmed Rathore Special Prosecutor, A.N.F. for Petitioner.

Qari Abdul Rashid, Advocate Supreme Court for Respondents.

2010 SCMR 64

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

ADREES AHMAD and others----Petitioners

Versus

ZAFAR ALI and another----Respondents

Criminal Petition No.119 of 2009, decided on 6th May, 2009.

(On appeal from the order, dated 5-3-2009 passed by the Lahore High Court, Bahawalpur Bench Bahawalpur in Criminal Miscellaneous No.594/CB of 2008).

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.337-F(v), 342, 365, 148 & 149---Ghayr-Jaifah, wrongful confinement and abduction---Bail, grant of---Prima facie case---Scrutiny of evidence---Enmity between parties---Pre-arrest bail granted to accused by Additional Session Judge was cancelled by High Court---Validity---In depth scrutiny of entire evidence was not required in such-like cases but no decision could be made in vacuum---Cursory glance of evidence would be quite inevitable to see as to whether case was registered with mala fides and ulterior motives or prima facie case connecting accused with commission of alleged offence was made out and thereafter it could be decided as to whether concession of pre-arrest bail could be extended in their favour or otherwise---Case was registered against entire family and there was no evidence of sodomy on record and further no arm injury whatsoever was found on the body of complainant except for fracture of his finger which according to medical report was fabricated and fracture was described as "self suffered"-Initially case was got registered under Ss. 148, 149 and 342 P.P.C. and subsequently addition of S.365 P.P.C. was made, which depicted mala fide and ulterior motive---Litigation was pending between parties on water course which indicated factum of enmity---Nothing could be produced on record by prosecution showing that concession of pre-arrest bail had been misused and accused remained absconders---Supreme Court set order passed by High Court and restored that of Additional Sessions Judge---Bail was granted.

Murad Khan v. Fazal-e-Subhan PLD 1983 SC 82 and Muhammad Safdar v. State 1983 SCMR 645 rel.

Sardar Muhammad Ghazi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Mian Asif Mumtaz, D.P.-G., Arshad Ali Chaudhry, Advocate­-on-Record and Sadiq Hussain, S.-I., Police Station Sadiqabad, District Rahim Yar Khan for Respondents.

Date of hearing; 6th May, 2009.

2010 SCMR 69

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Jawwad S. Khawaja, JJ

TALIB HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.320 of 2009, decided on 15th July 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Ss. 3 & 4---Possession of intoxicant---Bail, grant of-Delay in trial---Non­appearance of prosecution witnesses---Heavy quantity. of country made liquor was recovered from accused who was arrested and F.I.R. was registered---After framing of charge, despite issuance of non-bailable warrants no prosecution witness appeared before Trial Court---Plea raised by accused was that he had been in custody for the last ten months and trial had not been concluded---Validity---Supreme Court could have considered the case of accused for grant of bail but without prejudice to his case, as far as question of grant of bail, was concerned, prima facie Supreme Court was of the opinion that if police was not taking interest in the present case then what would be their position as far as other criminal cases which were pending in the Courts concerned---There could be two possibilities, either the case against accused was false and prosecution had not come forward with evidence or accused was influential person and he had prevailed upon prosecution witnesses not to depose against him so that he could arrange his bail or ultimately acquittal from Court---Apparently considerable quantity of liquor was recovered from the possession of accused and Court seized with the matter was taking full interest in disposal of case but it was the prosecution which was causing hindrance in disposal of the same---Supreme Court directed District Police Officer that he should execute order of Trial Court and take responsibility to produce in Trial Court all such police officials who were witnesses in the case on the next date of hearing---Supreme Court further directed District Police Officer to submit a report indicating as to why such witnesses were reluctant to appear in Trial Court---Supreme Court also directed the Trial Court to complete trial without adjourning the matter, within the minimum period of time, which should not be more than seven days and to transmit copy of judgment to Supreme Court before next date of hearing---Supreme Court directed to transmit copy of the order to different offices and concerned departments for adopting uniform policy in such matters---Petition was adjourned.

Sh. Ahsan-ud-Din, Advocate Supreme Court for Petitioner.

Ch. Tariq Mehmood, Additional Prosecutor-General, Punjab and Dr. Khalid Islam, Chemical Examiner along with Investigating Officer for the State.

2010 SCMR 72

[Supreme Court of Pakistan]

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

TASNIM JALAL and others----Petitioners

Versus

DEPUTY DIRECTOR, A.N.F. and others----Respondents

Criminal Petitions Nos.722-L of 2002 and 288-L of 2006, decided on 24th August, 2009.

(Against the judgments, dated 31-7-2002 and 15-3-2006 passed by the Lahore High Court, Lahore in Criminal Miscellaneous Nos.1192/M of 1995 and 1521/M of 2005 respectively).

(a) Interpretation of statutes---

----Saving clause---Object and scope---Saving clause is generally used to preserve' from destruction certain rights, remedies or privileges already existing---Saving means that it saves all rights the party previously had but it does not create any new right in his favour.

Arnold's case (1856) 69 ER 911 rel.

(b) Words and phrases---

----"Repeal"---Meaning---Word "repeal" means to revoke, rescind etc.

(c) Words and phrases---

----"Expire"---Meaning---Word "expire" means to cone to an end.

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

----Art. 199---Constitutional jurisdiction---Scope---Such jurisdiction is always discretionary in character---He who seeks equity must come with clean hands.

Nawab Syed Raunak Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and Noora's case PLD 1973 SC 469 rel.

(e) Control of Narcotic Substances Ordinance (VI of 1995)---

----S. 37---Constitution of Pakistan (1973), Art.185(3)---Forfeiture of property---Predecessor-in-interest of petitioner was owner of properties in question who was convicted abroad on the charge of possessing and distributing Heroin---Authorities filed application, on the basis of judgment passed by foreign Court, before High Court for forfeiture of properties owned by accused in Pakistan-High Court allowed the application and passed judgment whereby properties owned by accused were forfeited---Validity---Petitioner failed to raise any substantial question of law---Supreme Court in the interest of justice and fair-play, re-examined case of petitioner and did not find any infirmity or illegality in the judgment---Supreme Court had no jurisdiction to substitute its own findings in place of finding of High Court while exercising power under Art. 185 (3) of the Constitution---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Saiyyid Abul Ala Maudoodi's case PLD 1964 SC 673; Arnold's case (1856) 69 EDR 911; Nabi Ahmed's case PLD 1969 SC 599; Abdur Rehman's case 1978 SCMR 292; Bhai Khan's case PLD 1992 SC 14; Zia Ullah Khan's case PLD 1989 Lah. 554; Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602; United Sugar Mills Ltd.'s case PLD 1977 SC 397 and Syed Azmat Ali's case PLD 1964 SC 260 ref.

Ahmed Awais, Advocate Supreme Court for Petitioners (in both cases). .

Ch. Mushtaq Ahmed, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for A.N.F. (in both cases).

2010 SCMR 82

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

WAPDA through S.E. Acquiring Cell CRBC Project WAPDA D.I. Khan and another----Appellants

Versus

SYED ALI and others----Respondents

Civil Appeals Nos.2001-2004 of 2001 and C.M.As. Nos.917 to 920 of 2009, decided on 9th June, 2009.

(On appeal from the judgment, dated 22-5-2001 of Peshawar High Court Circuit Bench D.I. Khan passed by in R.F.As. Nos.5, 6, 8 and9of2000).

Land Acquisition Act (I of 1894)---

----S. 18---Acquisition of land---Compensation---Potential value of land---Determination---Compensation awarded by authorities was assailed by land owners in court---On the basis of report of Local Commission appointed by Court, compensation was enhanced from Rs. 8,000 per Kanal to Rs. 68,000 per Kanal but High Court reduced the same to Rs.50,000 per Kanal---Validity---There was no allegation of mala fide on the part of Local Commissioner with regard to his report---Local Commissioner was appointed under remand order passed by High Court---Land in question had potential of urbanization because neighbouring village had acquired status of Town and Development Authority was already established there at the time of announcement of award, therefore,, land in dispute at the time of its acquisition had good potential of urbanization---High Court after taking into consideration the evidence available on record and entire circumstances of the case, correctly concluded that it was safe to fix Rs.50,000 per Kanal, as it was the market value of land at the time of acquisition which a potential buyer would have been willing to pay to willing seller---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

BP Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another PLD 2008 SC 400; Defence Department of Pakistan through Secretary Ministry of Defence v. Province of Punjab and another 2006 SCMR 402; Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan through Legal Heirs and others PLD 1995 SC 418; Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193; Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485; Himalaya Tiles and Marble (P) Ltd. v. Francis Victor Countinho (dead) by L.Rs. AIR 1980 SC 1118; Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 and Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870 ref.

Mazhar Alam Khan; Advocate Supreme Court along with Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in all Appeals).

M. Bilal, Senior Advocate Supreme Court for Respondents (in all Appeals).

Sanaullah Khan Gandapur, Advocate Supreme Court for Respondent No.1 (in C.A. No.2002 of 2001) and for Respondent No.2 (in C.A. No.2003 of 2001).

Date of hearing; 9th June, 2009.

2010 SCMR 91

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Sayed Zahid Hussain, JJ

ABDUL AZIZ and another----Appellants

Versus

MUNIR HUSSAIN and others----Respondents

Civil Appeal No.2723 of 2001, decided on 8th June, 2009.

(On appeal from the order, dated 9-1-2001 passed by, the Lahore High Court, Rawalpindi Bench in R.S.A. No.7 of 1981).

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

----S. 21---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether a person, who himself contended that transaction of property be cancelled because it was result of fraud, collusion etc. could in same breath claim its possession through right of pre-emption of the same property; and whether it was not necessary for pre-emptor to prove the transaction as genuine and valid, therefore, he had a right to pre-empt, the property and if not so, then how on a sale which was based on fraud etc. a suit for possession through pre-emption could be based.

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

----S. 21---Right of pre-emption---Deficiency in court-fee---Failure to provide opportunity---Contumacious conduct of plaintiff---Scope---Pre­emption suit was decreed by Trial Court in favour of pre-emptor but Lower Appellate Court dismissed the same as conduct of pre-emptor who was, contumacious---High Court allowed second appeal filed by pre-emptor on the ground that without providing opportunity to pre-emptor to make good deficiency in court fee, suit could not be dismissed and pre-emptor was afforded only one chance for making up the deficient court fee, could not be held to be contumacious in complying with Court's direction---Validity---View taken by High Court was correct and justified which called for no interference by Supreme Court---Appeal was dismissed.

Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; Siddique Khan v. Abdul Shakoor Khan PLD 1984 SC 289; Noor Muhammad v. Hassan Muhammad 1986 SCMR 1345; Ch. Nazir Ahmed v. Abdul Karim and another PLD 1990 SC 42; Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859; Mukhi Chatromal and another v. Khubchand and 6 others 1993 SCMR 1113; Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148 and Sultan Ali v. Khuda Bakhsh 2004 SCMR 742 rel.

(c) Plea---

----Raising and abandoning of plea---Principle---Party to litigation cannot, at its own whims, abandon a plea and then at a later stage re-agitate the same.

Zaheer Bashir Ansari, Advocate Supreme Court for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1.

Nemo for other Respondents.

Date of hearing: 8th June, 2009.

2010 SCMR 95

[Supreme Court of Pakistan]

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

ROZNAMA HAMDARD through Chief Editor---Petitioner

Versus

HAMDARD NATIONAL FOUNDATION PAKISTAN-Respondent

Civil Petition No.1376 of 2008, decided on 8th July, 2009.

(On appeal from judgment of the Islamabad High Court Islamabad dated 30-7-2008 passed in R.F.A. No.8 of 2008).

Trade Marks Ordinance (XIX of 2001)---

----S. 40(4)---Constitution of Pakistan (1973), Art.185(3)---Infringement of trade mark---Publication of newspaper---Petitioner intended to use name "The Daily Hamdard" for newspaper to be published by it---Respondent was owner of registered trade mark known as "Hamdard" renowned in the field of Unani medicines, syrups and other goods-Respondent assailed the name of petitioner on the ground that it was already publishing magazines and journals under the name and title of "Hamdard-e-Sehat" and "Hamdard Naunehal"---High Court allowed the suit in favour of respondent and restrained petitioner from using the name---Validity---Petitioner's name could give an abrupt impression that it was some publication of Hamdard National Foundation i.e. respondent---Such name was deceptive and so was rightly declared by High Court as name of petitioner's daily newspaper could create deception---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Ishtiaq Ahmad Raja, Advocate Supreme Court for Petitioner.

Sultan Ahmad Sheikh, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

2010 SCMR 97

[Supreme Court of Pakistan]

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

Criminal Appeal No.139 of 2003

NOOR MUHAMMAD----Appellant

Versus

THE STATE and another----Respondents

(Against judgment, dated 12-3-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.142 of 1998).

Criminal Petition No.134 of 2003

RIASAB KHAN----Petitioner

Versus

NOOR MUHAMMAD and another----Respondents

(Against judgment dated 12-3-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.142 of 1998).

Criminal Appeal No.139 and Criminal Petition No.134 of 2003, decided on 9th September, 2009.

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

----S. 302(b)---Qatl-i-Amd---Appraisal of, evidence---Prosecution had failed to prove the motive for the occurrence---Despite the presence of other witnesses and people at the places of recovery of the crime-empty and the rifle, complainant had himself chosen to become the recovery witness as well as the witness of the motive---S.H.O. being in league with the complainant in preparing the case had conducted mala fide investigation and he had been changing his statement again and again at the trial to strengthen the prosecution case so as to fit in the circumstances---Prosecution could not furnish any plausible explanation for the delay of twelve hours in lodging the F.I.R., which time appeared to have been spent in consultation and preparation of the case and the same was fatal to the prosecution case---Complainant and other eye-witnesses were not found to be present with the deceased at the time of occurrence---Non-production of the crime-empty before the Trial Court for examination or identification through the complainant or Investigating Officer was also a fatal blow to the prosecution case---Even otherwise, recovery of crime-empty and rifle with matching report of Forensic Science Laboratory being a corroborative piece of evidence was not by itself sufficient to convict the accused after discarding ocular evidence---Said incriminating recoveries, therefore, were insignificant---Benefit of doubt was given to accused in circumstances and he was acquitted accordingly.

?

Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432; Ameenullah v. State PLD 1976 SC 629; Ijaz Ahmed v. State 1997 SCMR 1279 and Saifullah v. The State 1985 SCMR 410 ref.

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

----S. 302(b)---Qatl-i-Amd---Appraisal of evidence---Motive---When motive is alleged but not proved, then ocular evidence is required to be scrutinized with great caution.?

Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR214; Hakim Ali v. The State 1971 SCMR 432 and Ameenullah v. State PLD 1976 SC 629 ref.

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

----S.?? 302(b)---Qatl-i-Amd---Appraisal of evidence---Motive---Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence. ?

Hakim Ali v. The State 1971 SCMR 432 ref.

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

----S. 302(b)---Qatl-e-Amd---Appreciation of evidence---Principles--Corroborative and ocular evidence to be read together---Corroborative evidence is meant to test the veracity of ocular evidence and, therefore, both of them are to be read together and not in isolation.?

Ijaz Ahmed v. State 1997 SCMR 1279 ref.

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

----S. 302(b)---Qatl-i-Amd---Appraisal of evidence---Recovery, corroboration in absence of ocular testimony---When there is no eye-witness to be relied upon, then there is nothing which can be corroborated by the recovery.?

Saifullah v. The State 1985 SCMR 410 ref.

Kowkab Iqbal, Advocate , Supreme Court for Appellant (in Criminal Petition No.139 of 2003).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for the Complainant (in Criminal Petition No.139 of 2003).

M. Siddique Khan Baloch, D.P.-G. for the State (in Criminal Petition No.139 of 2003).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Petitioner (in Criminal Petition No.134 of 2003).

Kowkab Iqbal, Advocate Supreme Court for Respondent No.1 (in Criminal Petition No.134 of 2003).

M. Siddique Khan Baloch, D.P.-G. for the State (in Criminal Petition No.134 of 2003).

Date of hearing: 9th September, 2009.

2010 SCMR 105

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD FIAZ KHAN----Petitioner

Versus

AJMER KHAN and another----Respondents

Civil Petition No.925 of 2009, decided on 18th June, 2009.

(Against judgment, dated 15-4-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.1313 of 2005).

(a) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances and facts.

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

----S. 154---Registration of case-Limitation-Effect-No limitation is provided in criminal law for lodging a complaint---When complaint is filed after a considerable delay, which was not explained by complainant then in such situation it raises suspicion as to its truthfulness---Delray in filing complaint is not by itself fatal except under very special circumstances---Complaint looses its truthfulness with length of delay, more particularly when it is based on oral evidence.

Queen Empress v. Ajudhia Singh and others 10 All. 350 and Mst. Shamim's case 2003 SCMR 1466 rel.

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

---Ss. 202 & 204---Private complaint---Preliminary inquiry---Appreciation of evidence---Issuance of process---Principle---Appreciation of evidence at preliminary inquiry with the yardstick of Trial Court is not the purpose under S.202 Cr.P.C.---Trial Court has only to see if prima facie case is made out or not that is why full dress rehearsal of trial is not possible;---Such is general principle with regard to examining evidence on record before issuing process under S.204 Cr. P. C.

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

----S. 202---Preliminary proceedings---Object and scope of S.202 Cr. P. C. is two fold to allow free and fair opportunity to complainant to produce some evidence to make out grounds for issuing process against accused. It is the duty of Magistrate to scrutinize contents of complainant, nature of allegations made therein, material in support of accusation and object intended to be achieved, possibility of victimization and harassment, if any, to ensure himself that no innocent person against whom all allegations are levelled should suffer ordeal of protracted, lime consuming and cumbersome process of law.

Sheikh Meeran's case AIR 1915 Mad. 128 and Muhammad Nawaz's case 2000 SCMR 1904 rel.

(e) Constitution of Pakistan (1973)--

----Arts. 185(3) & 199---Constitutional jurisdiction under Art.185(3) or 199 of the Constitution is discretionary in character.

(f) Administration of justice---

----He who seeks equity must come with clean hands and must be vigilant qua his right to approach Court well in time.

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

----Ss. 202, 203 & 439-A---Constitution of Pakistan (1973), Art.199---Private complaint---Dismissal---Unexplained delay in filing of complaint---Effect---Constitutional jurisdiction of High Court against order passed in revisional jurisdiction---Scope---Complainant remained unsuccessful in getting registration of F.I.R., therefore, he filed private complaint but the same was dismissed by Trial Court and also by Lower Appellate Court in exercise of revisional jurisdiction---High Court in exercise of Constitutional jurisdiction set aside the order passed by two courts below---Validity---Unexplained delay was undoubtedly fatal to the case of complainant---Court was -bilged to examine such aspect of case even if counsel of parties had Piled to raise such plea on the well known principle that a Judge must wear all laws of country on the sleeve of his robes and failure of counsel to properly advise was not complete excuse in the matter---Constitutional petition was not maintainable in High Court against order passed by Lower Appellate Court in Criminal revision---Petition for leave to appeal was converted into appeal and judgment passed by High Court was set aside---Appeal was allowed.

Abdul Rehman Bajwa's case PLD 1981 SC 522; Noor Muhammad's case PLD 2007 SC 9; Anwar Ali Khan's case 1991 SCMR 1608; Muhammad Sarwar's case PLD 1969 SC 278; Khawaja Muhammad Sharif's ease PLD 1988 rah. 725; Haji Muhammad Saifullah Khan's case PLD 1989 SC 166; Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and Badaruddi's case PLD 1993 SC 399 rel.

Sh. Zamir Hussain, Advocate Supreme Court for Petitioner.

Ahsanuddin Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing; 18th June, 2009.

2010 SCMR 115

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

GOVERNMENT OF BALOCHISTAN, CWPP&H DEPARTMENT and others----Appellants

Versus

Nawabzada MIR TARIQ HUSSAIN KHAN MAGSI and others----Respondents

Civil Appeal No.1415 of 2006, decided on 18th May, 2009.

(On appeal from the judgment, dated 21-9-2005 passed by the High Court of Balochistan (Sibi) in Civil Revision (S) No.17 of 2005).

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

----Art. 174---Civil Procedure Code (V of 1908), S.79---Suit by or against the Government---Leave to appeal was granted by Supreme Court to consider as to whether the suit was instituted properly .pursuant to the provisions as enumerated in Art.174 of the Constitution and S.79, C.P.C. as admittedly the Provincial Government was not impleaded as party through the Secretary concerned---Question which needed determination was as to whether without impleading the Provincial Government, the suit instituted could be considered a validly instituted suit in view of the provision of S. 79, C.P. C.

Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16 ref.

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

----S. 79---Constitution of Pakistan (1973), Art.174---Suit against the Government---No suit can be filed against Provincial Government without impleading the Province as a party and the procedural pre-condition is mandatory in nature and no relief can be sought without its strict compliance and suit would not be maintainable---Provisions as contemplated in S.79, C.P.C. cannot be made a ground for technical knockout and wrong description of Secretary as functionary of the Government is always subject to correction---Due to non-compliance of mandatory provisions of S.79, C.P.C. and Art.174 of the Constitution, a suit against the functionary only is not maintainable.

Province of Punjab v. Muhammad Hussain PLD 1993 SC 147; Abdul Aziz v. Government of Balochistan 1999 SCMR 16 and WAPDA v. Alam Khan PLD 1991 SC 374 ref.

Kamran Murtaza, Advocate Supreme Court for Appellants.

Abdul Sattar Khan, Advocate Supreme Court for Respondents.

Date of hearing: 18th May, 2009.

2010 SCMR 121

[Supreme Court of Pakistan]

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

STATE BANK OF PAKISTAN---Appellant

Versus

FRANKLIN CREDIT AND INVESTMENT COMPANY LTD. through Attorney and others-Respondents

Civil Appeal No.576 of 2003, decided on 13th May, 2009.

(On appeal from judgment dated 11-7-2002, of the High Court of Sindh, Karachi, passed in C.P. No.D-1506 of 2000).

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

---Art. 129(e)---Acts performed by public functionaries---Presumption---Duty of Court---Scope---Acts performed by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and whole gamut of powers in pursuance to which they act or perform their functions and discharge their duties should be examined--Presumption of regularity is attached to official acts.

Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs and others v. Aftab Ahmed Khan Sherpao and others PLD 1992 SC 723; Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others PLD 1983 SC 151; Lahore Improvement Trust v. Custodian, Evacuee Property PLD 1971 SC 811; Chairman Pakistan Railway Board, Chittagong and others v. Abdul Majid Sardar PLD 1966 SC 725 and Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916 ref.

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

----S. 24-A---Order, quashing of---Reasons stated in order---Validity---If bad reasons are severable from good ones and are not intertwined or inter-linked, an order passed by an administrative, authority may not be quashed if otherwise sustainable on remaining valid grounds---Cases involving detention or liberty of citizens fall in a different category.

Government of West Pakistan v. Haider Bakhsh Jatoi and another PLD 1969 SC 210; Rafiq Ahmed Sheikh v. The Crown PLD 1951 Lah. 17; Kh. Ahmed Tariq Rahim v. Federation of Pakistan through the Secretary , Ministry of Law, Justice and Parliamentary Affairs, Islamabad PLD 1992 SC 646 at P.666; Mohtarama Benazir Bhutto v. The President of Pakistan and others PLD 1998 SC 388 at pages 541-542; Commissioner Sargodha Division v. Khizar Hayat PLD 1996 SC .793; Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 706; Swain Singh v. State of Punjab and others AIR 1976 SC 232; State of Orrisa and others v. Bidyabhushan Mohapatra AIR 1963 SC 779 at pages 785-786; State of Maharashtera v. B.K. Takkamore AIR 1947 S.C. 1353; Royal Bank of Canada v. I.R.C. (1972) 1 All. E.R. 225 at page 239; Breen v. Amalgamated Engineering Union and others (1971) 2 Q.B. 175; Halsbury's Laws of England, Fourth Edition, Volume 1 Paragraph 26 P.29 and Administrative Law by H.WR. Wade, Sixth Edition p.338 ref.

(c) Banking Companies Ordinance (LVII of 1962)---

----S. 27(4)---State Bank of Pakistan Prudential Regulation No.XXI for Fund Management Services---Banking company---Cancelling of licence--Governor State Bank---Powers and duties---Mismanaging of affairs---Siphoning of funds---Chief Executive of Bank, appointing of---Approval of State Bank---Respondent-Bank was involved in mismanagement of affairs of bank and misuse of position by Directors of Bank for their own benefit---Huge amount of bank was siphoned off to the detriment of interest and rights of depositors in collusion with foreign companies in which Directors of the Bank had substantial interests---Chairman of Board of Directors acted as de facto Chief Executive of Bank without approval of State Bank---Governor State Bank, in exercise of powers under S.27(4) of Banking Companies Ordinance, 1962, cancelled licence of respondent-Bank--- Validity---Governor State Bank, while dealing with matter of cancellation of licence was not required to hold full-dress trial like a Court of law---Charges against respondent-Bank were serious enough to warrant cancellation of licence---Governor State Bank had acted fairly and reasonably by observing principles of natural justice and statutory requirements on the basis of relevant material---High Court was not expected to substitute its judgment for that of State Bank as if it was exercising an appellate jurisdiction---In the presence of relevant material including inquiry report of chartered accountants, Governor State Bank of Pakistan was perfectly justified in forming opinion that affairs of respondent-Bank were being conducted in a manner detrimental to the interest of depositors---Governor State Bank had necessary expertise in relevant field and he arrived at a conclusion which a reasonable man in his place would do---Once licence was granted, it became a matter of serious concern to cancel the same---Judgment passed by High Court was not sustainable at law and moreso when matter of winding up of respondent-Bank had already attained finality with dismissal of appeal and review petition by Supreme Court---Fact of acquittal of Directors of respondent-Bank from charges of criminal misconduct would not per se nullify order of cancellation of licence passed by Governor State Bank in exercise of his statutory powers conferred under S.27(4) of Banking Companies Ordinance, 1962---Judgment passed by High Court against order passed by Governor State Bank was set aside---Appeal was allowed.

State Bank of Pakistan v. Indus Bank Limited through Chairman 2001 CLC 1833; Mr. Rafique Ahmed Sheikh v. The Crown PLD 1951 Lah. 17 (22); Maher Alvi v. Pakistan and 5 others PLD 1980 Kar. 609(650); Khalid Malik v. Federation of Pakistan PLD 1991 Kar. 1(99); Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388 (541-542); Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman Fourth Wage Board 1993 SCMR 1533; Kumar v. Union of India AIR 2000 SC 3689=(2001)2 S.C.C. 386=2000 SOL Case No.636; Habib Bank Ltd. v. Hamza Board Mills PLD 1996 Lah. 651; Taj Company Ltd. In re: NLR 1996 Un-reported cases 796; Alliance Motors (Pvt.) Ltd. In re. 1997 MLD 1966 (Karachi); New Swadeshi Mills of Ahmedabad Ltd. v. Dye-Chen Corporation (1986) 59 Com. cases 183 (186-187); In re: Messrs Pakland Cement Limited 2002 CLD 1392; Sudersan Chits (India) Ltd. v. Sukumaren Pillai (1985) 57 Corn. Cases 85; Collector Land Acquisition Abbottabad and 2 others v. Lal Khan PLD 2002 SC 277; Syed Ali Abbas v. Vishan Singh PLD 1967 SC 294; S. Vankatachalam Iyyer v. State of Madras AIR 1957 Madras 623(626); Manak Lal v. Dr. Prem Chand .Singhri PLD 1957 SC (India) 346 (351-352); Jamil Ahmed v. Province of Sindh 2001 YLR 1837; Reserve Bank of India v. Patiala Central Bank Ltd. AIR 1961 Kerala 268 at P.275; District Magistrate Lahore v. Faqeer Sayyed Fayyazuddin PLD 1965 SC 371 (377-378); Associated Provincial Pictures House Ltd. v. Wednesbury Corporation (1947) 2 All. E.R. 680; The Presiding Officer v. Sadaruddin Ansari and others PLD 1967 SC 569 (579); Krishna Murari Aggerwala v. The Union of India AIR 1975 SC 1877 (1882-1883); H. Lavender and Sons Ltd. v. Minister of Housing and Local Government (1970) 3 All E.R. 871 (872); Muhammad Jamil Asghar v. The Improvement Trust PLD 1965 SC 698; Hyderi International Finances Limited v. The State Bank of Pakistan PLD 1980 Lah. 658; Saghir Ahmed through L.Rs v. Province of Punjab through Secretary, Housing and Physical Planning, Lahore and others PLD 2004 SC 261 at P.268; Nazir Ahmed v. Pakistan PLD 1970 SC 453; Ram Labhaya v. Dhani Ram AIR 1947 Lah. 296; K.P. Veghaese v. The Income Tax Officer AIR 1981 SC 1922; Radha Corporation and others v. Collector of Customs 1989 SCMR 353; Asian Food Industries Limited v. Pakistan 1985 SCMR 1753 at P.1756; Mrs. Aiman Arshad v. Miss Naeem Khan PLD 1990 SC 612; Koro v. The State PLD 1963 Kar. 256; Craies On Statute Law, Sixth Edition by S.G.G. Edgar at page 150; Crawford Statutory Construction in sections 219 and 221 at pages 393 and 399 and N.S. Bindra's Interpretation of Statutes, 10th Edition 2007, in Chapter 16 at Pages 859-861 ref.

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Anwar Mansoor Khan, Senior Advocate Supreme Court for Respondents Nos.1 to 3.

Date of hearing: 13th May, 2009.

2010 S C M R 141

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Farrukh Mahmud and Muhammad Sair Ali, JJ

IJAZ AHMED and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.430 of 2005, decided on 29th May, 2009.

(On appeal from the judgment, dated 7-3-2002 passed by the Lahore High Court, Lahore in Criminal AppealNo.505 of 2000 and Murder Reference No.447-T of 2000).

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

----Ss. 10(4), 11 & 16---Penal Code (XLV of 1860), S.380---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider the contention that initially case was registered under Ss.11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and S.380 P.P.C. wherein complainant had categorically stated that abductee was enticed away by accused for the purpose of committing Zina whereas at trial he improved his statement---Abductee had put forth quite different story while stating that amount of Rs.25,000 was robbed from her at pistol point by accused then her children were taken away and she was asked to come at bus-stand otherwise their children would be killed---Abductee stated with regard to recovery that she and her children were recovered from railway station from the possession of accused whereafter she was sent to Darul Amin by Magistrate and was produced after eight days and then her statement under S.164 Cr.P.C. was recorded, thereafter, she was handed over to complainant who was her husband---Accused also contended that abductee in her statement admitted that she neither raised hue and cry nor narrated incident to anyone during her being taken away in bus as well as during her stay in a hotel.

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

----Ss. 10, 11 & 16---Penal Code (XLV of 1860), S.380---Anti-Terrorism Act (XXVII of 1997), S.7---Reappraisal of evidence---Sentence, reduction in---Related witnesses---All witnesses, except for police officials and Lady Doctor, were closely related to, complainant who was husband of abductee---No independent witness was produced before Trial Court from any of the places where abductee had allegedly been taken to or made to stay by. accused persons---Effect---Such was a case of elopement and abductee had left with accused on her own---Supreme Court altered conviction of accused from offence under S.10 (4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to 10(2) of the Ordinance---Sentence of accused was reduced from death penalty to imprisonment already undergone by accused in jail---Appeal was allowed.

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

----Ss. 10(4), 11 & 16---Penal Code (XLV of 1860), S.380---Anti-Terrorism Act (XXVII of 1997), S.7---Reappraisal of evidence---Benefit of doubt---Case of accused was on different footings than his co­-accused---According to F.I.R. abductee had developed illicit relationship with co-accused only---No independent incriminating evidence was available against accused---Effect---Supreme Court set aside conviction and death sentence awarded under S.10 (4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by the Courts below and accused was acquitted of the charge---Appeal was allowed.

Malik Muhammad Kabir, Advocate Supreme Court for Appellants.

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

Date of hearing: 29th May, 2009.

2010 S C M R 149

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Zia Perwez and Sarmad Jalal Osmany, JJ

JANNAT BIBI----Appellant

Versus

MUHAMMAD TAYYAB HUSSAIN and others----Respondents

Criminal Appeal No.206 of 2001

(On appeal from judgment of Lahore High Court, Bahawalpur Bench Bahawalpur, dated 10-5-1999 passed in Criminal Appeal No.90 of 1996 and Murder Reference No.16 'of 1996).

Criminal Appeal No.207 of 2001

MUHAMMAD KHAN----Appellant

Versus

THE STATE----Respondent

(On appeal from judgment of Lahore High Court, Bahawalpur Bench Bahawalpur, dated 10-5-1999 passed in Criminal Appeal No.90 of 1996 and Murder Reference No.16 of 1996).

Criminal Appeals Nos.206 and 207 of 2001, decided on 22nd June, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 302(b)----Appreciation of evidence---One appeal had been filed by the complainant against the acquittal of accused of the charge under S.302(b)/34, P.P.C. whereas by other appeal accused had assailed his conviction and sentence of death awarded under S.302(b)---Incident itself was not denied by the defence---Accused, however, had given their own version in their examination under S.342, Cr. P. C.---Defence version when kept in juxtaposition with prosecution version particularly the medical evidence, truth appeared to be lying the middle of the two conflicting versions and both the parties had not been candid before the Trial Court---Defence version was believable to the extent that an altercation was going on between the deceased and the principal accused when the remaining accused arrived there---Prosecution witnesses had exaggerated the event in order to falsely implicate maximum number of all near relatives---Principal accused was driving the tractor and although the incident might not be a premeditated one, the injuries on the body of the deceased revealed that he was done to death mercilessly, which bore multiple abrasions and his head was crushed---Abrasions could only be caused by dragging of the deceased's body on the ground with a tractor, which was found entangled in the fear wheels of the tractor---Said principal accused, thus, was the perpetrator of the crime---Both the appeals were dismissed in circumstances.?

Muhammad Hanif v. State PLD 1993 SC 895; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Zahid Imran v. State PLD 2006 SC 109; Elahi Bakhsh v. State 2005 SCMR 810; Muhammad Naeem v. State 2005 SCMR 284; Zulfiqar Ali v. State 2008 SCMR 796 and Muhammad Yaqoob v. The State PLD 2001 SC 378 ref.????

Sheikh Khizar Hayat, Advocate Supreme Court for Appellant (in Criminal Appeal No.206 of 2001).

Syed Raffaqat Hussain Shah, Advocate Supreme Court for Respondents Nos. 1 to 4 (in Criminal Appeal No.206 of 2001).

Mian Asif Hayat, Deputy Prosecutor-General, Punjab for the State (in Criminal Appeals Nos.206 and 207 of 2001).

Qari Abdur Rashid, Advocate Supreme Court (in Criminal Appeal No.207 of 2001).

Date of hearing: 8th June, 2009.

2010 S C M R 157

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Anwar Zaheer Jamali, JJ

Sheikh MAHMOOD AHMED----Petitioner

Versus

DEPUTY REGISTRAR, COOPERATIVE SOCIETIES and another----Respondents

Civil Petition No.765-K of 2003, decided on 18th August, 2009.

(On appeal from the judgment, dated 17-6-2003 of the High Court of Sindh, Karachi passed in Constitutional Petition No.D-1148 of 1990).

Cooperative Societies Act (VII of 1925)---

----Ss. 54 & 56---Constitution of Pakistan (1973), Art.185(3)---Arbitration---Opportunity of hearing---Affidavit in evidence, non filing of---Arbitrator closed case of Society by not allowing representative of Society to file affidavits in evidence, which order was set aside by appellate authority and case was remanded---Order passed by. appellate authority was maintained by High Court---Validity---Case of Society could not have been closed for want of filing affidavits, as the same were required only to avoid delay and were beneficial only if accepted by opposite party and if not, the deponent had to be cross-examined---For all intents and purposes affidavit was substitute of examination-in-­chief---Even if affidavits were not earlier filed, arbitrator could have examined representative of the Society, who was present on the date in question---Arbitrator could have recorded examination-in-chief of the representative and thereafter he could have offered himself for cross­-examination---Closure of evidence of Society was neither in accordance with law nor justice thus appellate authority had rightly remanded the case to arbitrator for deciding the matter after recording of evidence of Society---Supreme Court declined to interfere in judgment passed by High Court---Leave to appeal was refused.

Syed Ali Ahmad Tariq, Advocate Supreme Court with Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

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

Abdul Qadir Khan, Advocate Supreme Court with Abdul Aziz Khan, Advocate-on-Record for Respondent No.2.

Date of hearing: 18th August, 2009.

2010 S C M R 160

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

TARIQ AZIZ and others----Petitioners

Versus

MUHAMMAD IRSHAD and others----Respondents

Civil Petition No.1422 of 2008, announced on 8th September, 2009.

(On appeal against the judgment, dated 13-10-2007 passed by Peshawar High Court, Peshawar in Writ Petition No.944 of 2007).

North West Frontier Province Local Government (Conduct of Elections) Rules, 2005---

---Rr. 30 (2)(iii) & 35 (4) (iii)(a)---Constitution of Pakistan (1973), Art.185(3)---Voting procedure---Ballot papers---Signature of Presiding Officer, absence of---Disputed ballot papers contained official mark but did not contain signatures of Presiding Officer---Grievance of petitioner was that by including such ballot papers in counting, respondents were declared returned candidates---Validity---Ballot papers bearing official mark of Presiding Officer were valid votes and were rightly held so resulting in declaration of respondents as returned candidates---Supreme Court declined to take any exception to findings and conclusion arrived at by High Court which affirmed finding of Election Tribunal---Leave to appeal was refused.

Akbar Ali v. Razi-ur-Rahman Khawaja and others PLD 1955 SC 492 and Arbab Aamir Ayub Khan and another v. Chief Election Commissioner of Pakistan, Islamabad and 4 others PLD 2002 Pesh. 173 rel.

Abdul Rauf Rohaila, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Arshad Ali Ch: Advocate-on-Record for Respondents.

Date of hearing: 25th March, 2009.

2010 S C M R 164

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ghulam Rabbani and Sarmad Jalal Osmany, JJ

MURREE BREWERY COMPANY LIMITED----Petitioner

Versus

COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOMS HOUSE KARACHI----Respondent

Civil Petition No.906 of 2009, decided on 28th July, 2009.

(On appeal from the order, dated 17-3-2009 passed by High Court of Sindh at Karachi in Special Customs Reference Application No.190 of 2006).

Customs Act (IV of 1969)---

----S. 196---Constitution of Pakistan (1973), Art. 185 (3)---Imported goods--- Description---Scope---Grievance of importer was that goods imported fell within PTC Heading 8419.5090 chargeable to customs duty at 10% but authorities applied PTC Heading 8419.5010 and charged customs duty at the rate of 35%---Validity---Goods imported were shaped like "Shell" as well as "Tube", therefore, it did not appeal ,to a prudent mind to take the same out from description "Shell or Tube type" and put under description "other" not akin to relevant description---Adjudicating officer had correctly classified imported goods chargeable under PCT Heading 8419.5010, so also the Customs Appellate Tribunal---High Court rightly dismissed appeal and reference of importer---Concurrent findings recorded by courts below were unexceptionable-Leave to appeal was refused.

Sohail Muzaffar, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 28th July, 2009.

2010 S C M R 166

[Supreme Court of Pakistan]

Present: Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUHAMMAD FARYAD----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.342 of 2008, decided on 19th May, 2009.

(On appeal from the judgment, dated 28th November, 2008 passed by the Lahore High Court, Multan Bench in Criminal Appeal No.878 of 2002 and Murder Reference No.568 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Medical evidence had supported the ocular testimony---Uncertain expression of the doctor on the probable distance could not believe the consistent and credible version of the prosecution witnesses on the distance and manner of commission of crime--Incident had occurred in daylight---Accused was known to prosecution witnesses---Accused alone was nominated in the F.I.R. with the role of having fired the single fatal pistol shot---Pistol had been recovered from the accused---Eye-witnesses had no motive for false implication of accused---Reprimand of accused by the deceased for staring at the college girls, was the immediate motive for the murder, which had been duly proved by mutually corroborative prosecution evidence---Material contradictions or serious discrepancies did not exist in the statements of prosecution witnesses---Concurrent findings of the Courts below did not call for any interference---Leave to appeal was declined to accused accordingly.

Aftab Ahmed Khan, Advocate Supreme Court for Petitioner.

Mian Asif, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 19th May, 2009.

2010 S C M R 169

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar, Ch. Ejaz Yousaf and Sheikh Hakim Ali, JJ

FEDERATION OF PAKISTAN through Secretary Establishment Division----Petitioner

Versus

SHAHID HAYAT and another----Respondents

Civil Review Petition No.110 of 2008, decided on 21st April, 2009.

(For review of judgment, dated 12-6-2008 of this Court passed in Civil Appeal No.558 of 2008).

Civil Servants Act (LXXI of 1973)---

----S. 13(1)(i) & (ii)---Government Servants (Efficiency and Discipline) Rules, 1973, R.3---Constitution of Pakistan (1973), Arts.13 & 25---Suspension of civil servant for involvement in criminal case---Validity---Suspension was provided in law having a complete mechanism of its own---Civil servant proceeded against under disciplinary laws could not be said to have been dealt with in derogation of Arts.25 etc. of the Constitution.

Shah Khawar, Deputy Attorney-General, Ch. Muhammad Akram, Advocate-on-Record and Mumtaz Ali Khan, D.S. (Estt.) for Petitioner.

Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Respondent.

2010 S C M R 171

[Supreme Court of Pakistan]

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

MUHAMMAD YOUSAF MIRZA----Appellant

Versus

SAMIULLAH and others----Respondents

Civil Appeals Nos.1012 to 1015 of 2005, decided on 26th August, 2009.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 10-6-2005 passed in Regular Second Appeal No.65 of 2004).

Specific Relief Act (I of 1877)---

----S. 42---Declaration of title---Benami transaction---Proof---Plaintiff alleged that suit property was not owned by his father and in fact he was beneficial owner of the same---Judgment and decree passed by Trial Court in favour of plaintiff was concurrently set aside by Lower Appellate Court and High Court---Validity---Plaintiff failed to point out as to why he purchased property as Benami transaction---No convincing evidence was led by plaintiff against receipts reflecting payment of disputed property made by defendant to Settlement Department; issuance of Permanent Transfer Deed; approval of site plan in favour of defendant; and letting out of suit property to tenant by defendant---Plaintiff failed to point out any misreading or non-reading of evidence which could persuade Supreme Court to interfere with findings of fact---Judgment and decree passed by High Court was in accord with weight of evidence led---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

Shoeb Shaheen, Advocate Supreme Court for Appellant (in all Appeals).

Gulzarin Kiani, Advocate Supreme Court for Respondents Nso.10 and 11 (in all Appeals).

Respondents Nos.1 to 10 and 12: Ex parte.

Date of hearing: 26th August, 2009.

2010 S C M R 175

[Supreme Court of Pakistan]

Present: Sayed Zahid Hussain, Muhammad Sair Ali and Muhammad Akhtar Shahid Siddiqui, JJ

ZAIN-UL-AB EDEEN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.811-L of 2009, decided on 13th August, 2009.

(On appeal from the order, dated 23-6-2009 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.6643/B of 2009).

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5---Cheating and forgery---Bail, grant of---Prohibitory -clause of S.497, Cr. P. C. ---Further inquiry---On the complaint of Chairman Punjab Cooperative Board for Liquidation, case was registered against previous administration of the Board for selling some land in violation of law---Out of 14 officials, only petitioner was arrested who remained under physical remand for 4 days and thereafter he was sent to judicial remand---Validity---Entire record of purported fraudulent transaction was available with Liquidation, Board and investigation could proceed further only on arrest of other persons---Neither investigation was being actively conducted nor commencement of trial was in sight---Accused remained incarcerated for a period of 4 months and 24 days in offences which did not fall within prohibitory clause of S.497 Cr.P.C.---In such case withholding or refusal of bail in absence of extraordinary circumstances was an exception and bail could not be declined as a punishment---Such was a case of further inquiry to connect accused with alleged offences---Bail was allowed.

Ashtar Ausaf Ali, Advocate Supreme Court and Sheikh Salah­ud-Din, Advocate-on-Record for Petitioner.

Salim Khan Chechi, Advocate Supreme Court for the Complainant.

Shabbir Lali, Additional Prosecutor-General for the State.

2010 S C M R 179

[Supreme Court of Pakistan]

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

Raja FAZAL-UR-REHMAN----Petitioner

Versus

MUHAMMAD AFZAL and another----Respondents

Criminal Petition No.291 of 2008, decided on 24th September, 2009.

(On appeal against the order, dated 22-7-2008 passed by Lahore High Court, Lahore in Criminal Miscellaneous No.5377/B of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.364/109---Constitution of . Pakistan (1973), Art.185(3)---Abduction---Bail, cancellation of---Version of the wife of the abductee was a strong piece of evidence in whose presence the abductee was taken away by the accused and on having a telephonic contact with her husband his response indicated that he was in a difficult situation and was seeking the help of someone---Such was not an ordinary case of last-seen evidence, as a specific assertion had been made that the accused was solely responsible for taking away the abductee and after that time till today his whereabouts were not known---Conduct of the accused by remaining fugitive from law had further supported the prosecution story, which was relevant and could be taken into consideration at bail stage---Under S.497, Cr.P.C. an accused could not be granted bail when there existed reasonable grounds to believe that he was guilty of the offence charged with---Since reasonable grounds existed for believing that the accused in the present case was guilty of the offence, he was not entitled to grant of bail---Bail granted to accused by High Court was consequently cancelled by converting the petition for leave to appeal into appeal and allowing the same.

Altaf Elahi Sheikh, Senior Advocate Supreme Court for Petitioner.

Nazir Ahmed Shami, Advocate Supreme Court for Respondents.

Shahid Abbasi, D.P.-G., Muhammad Riaz Gara, D.P.O. Gujrat, Muhammad Afzal, S.P. Investigation and Muhammad Sharif, S.H.O. Saddar Kharian for the State.

Date of hearing: 24th September, 2009.

2010 SCMR 182

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

Criminal Appeal No.397 of 2006

MUHAMMAD ZUBAIR----Appellant

Versus

THE STATE----Respondent

(Against judgment, dated 8-6-2008 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.514 and Murder Reference No.717 of 2000).

Criminal Appeal No.398 of 2006

MUHAMMAD HANIF----Appellant

Versus

MUHAMMAD ZUBAIR and others----Respondents

(Against judgment dated 8-6-2005 of the Lahore High Court, Rawalpindi Bench Rawalpindi, passed in Criminal Appeal No.514 and Murder Reference No.717 of 2000).

Criminal Appeals Nos.397 and 398 of 2006, decided on 7th October, 2009.

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

----Ss. 302(b) & 324---Appraisal of evidence---Eye-witness, a minor girl, while supporting the prosecution case had specifically stated that the accused had caused "Chhuri" injuries to the deceased and also to her---Said girl was a natural witness whose presence at the place of incident could not be doubted and she had no reason to falsely implicate the accused---Ocular testimony had no discrepancy and infirmity, which was further corroborated by the complainant who had seen the accused armed with "Chhuri" just after the incident standing outside the room of the house, where the deceased was lying dead and the eye-witness, minor girl, was present in injured condition, who had disclosed the facts of the incident---Medical evidence had also supported the ocular account of occurrence---"Chhuri" recovered from the accused. was found to be stained with blood---High Court had reduced the death sentence of the accused to imprisonment for life by taking into consideration his age and being of the opinion that the accused was 18 years old at the time of occurrence and was not adult within the meaning of S.299, P.P.C.---According to prosecution accused was 20 years of age at the time of incident, thus, there was a doubt in respect of the age of accused and in such a situation the view favouring the accused was normally to be accepted---Finding of High Court on the said aspect of the case was, therefore, maintained---Convictions and sentences of accused were upheld in circumstances.?

Ijaz Hussain v. Th. State 2002 SCMR 1455; Sohail Iqbal v. The State 1993 SCMR 2377 and Javid Iqbal v. The State 1982 SCMR 447 ref.

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

----Ss. 302(b) & 324---Age of accused---Two views available---View favouring the accused to be accepted---Where two views relating to the age of accused are possible, the view in favour of accused is normally to be accepted.?

Ijaz Hussain v. The State 2002 SCMR 1455; Sohail Iqbal v. The State 1993 SCMR 2377 and Sohail Iqbal v. The State 1993 SCMR 2377 ref.

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.397 of 2006).

Raja Shahid Mehmood Abbasi, Deputy Prosecutor-General for the State (in Criminal Appeals Nos.397 and 398 of 2006).

Malik Shahzad Ahmed Khan, Advocate Supreme Court for Appellant (in Criminal Appeal No.398 of 2006).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Respondent No.1 (in Criminal Appeal No.398 of 2006).

Date of hearing: 7th October, 2009.

2010 S C M R 189

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

ABDUL ZAHIR----Appellant

Versus

JAFFAR KHAN----Respondent

Civil Appeal No.1423 of 2006, decided on 30th July, 2009.

(On appeal from the judgment, dated 30-6-2006 of the High Court of Balochistan, Quetta, passed in F.A.O. No.4 of 2006).

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

----Ss. 13, 2(c) & 2(i)---Constitution of Pakistan (1973), Art.185(3)---Landlord and tenant, relationship of---Leave to appeal was granted by Supreme Court, inter" alia, to examine as to whether in view of the fact that the tenant had purchased the share of one of the landlords (co-sharer in the disputed property), the ejectment proceedings initiated against him by one of the co-sharers (landlord) were maintainable in view of the law laid down by Supreme Court in Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rahman and others 1992 SCMR 1352.

Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rahman and others 1992 SCMR 1352 ref.

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

---Ss. 13, 2(c) & 2(i)---"Landlord"---Landlord and tenant, relationship of---No treaty of tenancy between the parties was in existence---Purchaser of a share out of a joint property having become a co-owner, his status as a `tenant' ceases and his possession will become that of a co-owner who falls within the definition of "landlord"---Co-sharer is entitled to retain the possession of the joint property till partition and cannot be ejected.

Mst. Sanobar Sultan and others v. Obaidullah Khan and others PLD 2009 SC 71; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani and others 1981 SCMR 139; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 and Muhammad Nawaz v. Sh. Abdul Latif 1971 SCMR 198 ref.

Mst. Kalsoom Akhtar and 8 others v. Muhammad Yaqub PLD 1976 Kar.992; Muhammad Anwar through his Legal Representative v. Abdul Shakoor 1982 SCMR 1120; Messrs Muhammad Ismail and Bros. v. Malik Muhammad Tahir and others 1981 SCMR 139; Muhammad Akram v. Chaudhry Mushtaq Ahmed 1993 SCMR 1355; Muhammad Sadiq v. Allah Dad, Mst. Athar Jabeen and another v. Deputy Settlement Commissioner, Circle III, Lahore and another PLD 1993 Lah. 842; 1996 SCMR 48; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs. 2006 SCMR 1068; Said Rehman and others v. Mst. Sardar Begum and others PLD 2008 SC 554 and Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 distinguished.

Naeem Akhtar, Advocate Supreme Court for Appellant.

Khushnood Ahmed and Muhammad Qahir Shah, Advocates Supreme Court for Respondent.

Date of hearing: 25th May, 2009.

2010 S C M R 194

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

ABDUL MUKTADAR and another----Petitioners

Versus

DISTRICT AND SESSIONS JUDGE, JHANG and 2 others----Respondents

Civil Petition No.645 of 2009, decided on 8th May, 2009.

(On appeal from the order, dated. 20-3-2009 passed by the Lahore High Court, Lahore in Writ Petition No.7099-F of 2008).

(a) Words and phrases---

----"Amendment" means addition, deletion, insertion or substitution.

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

----Ss. 200, 202 & 204---Penal Code (XLV of 1860), S.302---Qatl-e-Amd---Private complaint---Issuance of process by Court against accused persons after recording preliminary evidence---Application from complainant for correction in names and other particulars of two accused persons nominated in complaint---Validity---Complaint could not be declared such a sacrosanct document, wherein no change could be made, however its impact need to be examined before granting permission---Substitution of a person and correction of names being entirely two different things could not be amalgamated---Proposed amendment for correction of names of already nominated accused was neither deletion or addition nor insertion or substitution, but correction simplicitor having no bearing on merits of case---Issuance of process under Ss.202 & 204, Cr.P.C., would depend upon availability or non-availability of sufficient incriminating material and would have nothing to do with correction of names of accused---Process had been issued against same accused persons, whose names were sought to be corrected---Non-mentioning of correct names due to an inadvertent omission or lack of knowledge could be corrected, if same was not prejudicial or detrimental in any manner whatsoever to accused---Due to some omission, correct names of nominated accused persons could not be mentioned in complaint---No new person was being implicated through proposed amendment in the present case-Such application was accepted, in circumstances.

(c) Words and phrases---

----"Amendment" and "correction"---Distinction stated.

Legally the terms "amendment" and "correction" are neither synonymous nor interchangeable, because correction mainly relates to removal or rectification of errors, mistakes, inadvertent omissions, defects or faults. Whereas the "amendment" connotes addition, deletion, insertion and substitution having substantial bearing on the character of pleadings irrespective of its nature.

Muhammad Aslam Uns, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 8th May, 2009.

2010 SCMR 198

[Supreme Court of Pakistan]

Present: Javid Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUHAMMAD SIDDIQUL FAROOQ----Petitioner

Versus

THE STATE----Respondent

Criminal Review Petition No.45 of 2004 in Criminal Petition No.232 of 2001, heard on 30th September, 2009.

(On review against the judgment, dated 13-9-2004 passed by Supreme Court of Pakistan in Criminal Appeal No.232 of 2001).

Per Muhammad Sair Ali, J, Javed Iqbal and Sayed Zahid Hussain, JJ, agreeing

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---National Accountability Ordinance (XVIII of 1999), S.9(a)(iii) & (vi)---Review of Supreme Court judgment---Scope of review jurisdiction---Principles.

If nothing was overlooked nor had the court failed to consider an important aspect of the matter, review petition was not sustainable. Review petition would be competent if something which is obvious in the judgment had been overlooked and that if it would have been considered by the court the final result of the case would have been otherwise. In the present case while passing the judgment under review Supreme Court appeared to have overlooked the all important evidence of three prosecution witnesses and also the absence of prosecution evidence on the culpability of the accused in terms of offences of section 9(a)(iii) and (vi) of the National Accountability Ordinance, 1999.

While rendering judgment evidence of said prosecution witnesses appeared to have escaped attention of Supreme Court. The statements of said witnesses had direct bearing upon the determination of the guilt or otherwise of the accused. Had these depositions not escaped consideration of Supreme Court result would have been different. Review was allowed by Supreme Court.

Absence of such evidence escaped the attention of Supreme Court while pronouncing the judgment under review. From the circumstances and the evidence on record, what could be concluded was that what during the previous regime, the accused was irrationally, unreasonably and falsely implicated in the present case because of his stated political liaison with the former Prime Minister, his party or the government.

The result thereof was that offences under section 9(a)(iii) and (vi) of the National Accountability Ordinance, 1999 were held not have been made out against the accused.

Managing Director SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724; Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada 1999 SCMR 2189; Wasim Sajjad v. Federation of Pakistan through Secretary, Cabinet Division and others PLD 2001 SC 233 and Suba through Legal Heirs v. Fatima Bibi through Legal Heirs 1996 SCMR 158 ref.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), (iii), (vi) & 14(a)---Constitution of Pakistan (1973), Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court Judgment---Commission of corruption and corrupt practices---Analysis of S.9(a)(iii), National Accountability Ordinance, 1999---Existence of dishonesty, fraud, misappropriation or conversion of the entrusted property for bringing accused within the mischief of S.9(a)(iii) of the Ordinance---Initial burden of proof on the prosecution---Presumption or inference against accused---Scope.

Analyzing clause (iii) of section 9(a) of the National Accountability Ordinance, 1999 the proof of offence thereunder demands proof of dishonesty or fraudulent misappropriation or conversion of the entrusted property to his own use by the accused or for the use of any other person etc. etc. It is for the prosecution to initially prove existence of dishonesty, fraud, misappropriation or conversion of the entrusted property for bringing an accused within the mischief of offence under clause (iii). Cases under the Ordinance are strict liability cases. Prima facie case has to be established by the prosecution before drawing a presumption or inference against the accused under the Ordinance. It must be shown that the accused committed misappropriation deceptively or fraudulently or dishonestly with some ulterior purpose. In the present case there was no evidence of appropriation or misappropriation by the accused as with dishonest or fraudulent object to make some wrongful gains or to otherwise convert the said funds to his own use etc. In the absence of such proof, no offence under clause (iii) of section 9(a) could be said to have been made out.

A perusal of section 9(a)(vi) shows that holder of a public office or any other person is said to commit the offence of corruption and corrupt practices if he misuses his authority in order to gain any benefit or favour for himself etc. or for any other person. The prosecution alleged that the accused abusing his official position misused his authority, sent gifts valuing Rs.1,05,000 to get personal gain or benefits or favour for himself from the recipients of the gifts.

Survey of evidence on record starkly brought out total absence of evidence on dishonesty or fraud or appropriation/conversion for his own use or of misuse of authority for gain or benefit or favour derived by the accused from the recipients of the purported gifts. The prosecution based its case on probabilities, presumptions and illogical deductions and not on evidence of any dishonesty or fraud (required under clause (iii)) or of misuse of authority for personal gains, benefits or favours for himself or anyone else (required under clause (vi)).

There are presumptions under section 14(a) and (d) of the National Accountability Ordinance, 1999 against an accused in the offences under clauses (iii) and (vi) of section 9(a) and of his burden to prove innocence.

Section 14(a) of the National Accountability Ordinance, 1999 evidently places the initial burden on the prosecution to prove that an offence under clause (iii) of subsection (a) of section 9 had been committed by dishonest and fraudulent misappropriation or conversion for himself or any other person. It was on proof through evidence that the presumption against the accused arose thereby shifting burden on him to prove the contrary.

In case the prosecution succeeded in making out a reasonable case against the accused person to the satisfaction of the court, only then would the prosecution be deemed to have discharged the prima facie burden of proof, to shift onus on the accused to rebut the presumption of his guilt. The accused then would be required to show that he used his authority fairly, justly and in the public interest.

In the present case no evidence whatsoever was produced by the prosecution to discharge its prima facie burden to prove the offence under clause (iii) or to first making out a reasonable case against the accused for offence under clause (vi) of section 9(a).

In absence of any prosecution evidence on the essential factors, no presumption or assumption could be drawn under section 14(a) and (d) against the accused. Prosecution, in the present case, had failed to prove or first make out a reasonable case against the accused under above referred clauses (iii) and (vi). The prosecution was unable to prove "unreasonableness" or colourable use of administrative discretion by the accused to gain pecuniary or financial advantages or accumulation of wealth or assets or position or the misappropriation or misuse of authority for personal benefits or favours. Presumption of reasonability as well as relationability thus, tilted against the prosecution.

Absence of such evidence escaped the attention of Supreme Court while pronouncing the judgment under review. From the circumstances and the evidence on record what could be concluded was that during the previous regime, the accused was irrationally, . unreasonably and falsely implicated in the present case because of his stated political liaison with the former Prime Minister, his party or the government.

The result thereof was that offences under section 9(a)(iii) and (vi) of the National Accountability Ordinance, 1999 were held not have been made out against the accused.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Per Sayed Zahid Hussain, J. agreeing with Muhammad Sair Ali, J.

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---National Accountability Ordinance (XVIII of 1999), S.9(a)(iii) & (vi)---Scope of power and parameters of review jurisdiction of Supreme Court---`Justice'---Concept.

Article 188, Constitution of Pakistan makes reference to the provisions of any Act of Parliament and of any rules made by the Supreme Court of Pakistan. Article 191 of the Constitution enables the Supreme Court to make rules regulating the practice and procedure of the Court which power is subject to the Constitution and law. Supreme Court Rules, 1980 were framed under this enabling provision. Its Order XXVI deals with review.

Review jurisdiction is exercisable by the Court on grounds akin to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure in civil proceedings and in criminal proceedings on the ground of an error apparent on the face of record.

The provisions of Rule 2 of Order X of the Supreme Court Rules, 1980, i.e. "subject to the provisions contained in Order XXVI a judgment pronounced by the court or by a majority of the court or by a dissenting Judge in open court shall not afterwards be altered or added to save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission" are noteworthy. Such an assumed finality is again subject to the review power and jurisdiction of the court. Of course it has to be so as the power of review emanates from the constitutional provisions which have to be accorded supremacy.

Once the remedy of review is provided by the statute [in this case by the Constitution] the party concerned may invoke the same and claim its decision in accordance with the settled principles.

In order to achieve the prime purpose of justice for all, whenever, it is brought to the notice of the court that injustice has occurred as a result of some material evidence having escaped the notice of the court, the same can be set right without reservation by way of review of judgment. In order to ensure "complete justice" Supreme Court is vested with an additional power flowing from Article 187 of the Constitution.

The entire edifice of judicial structure is founded upon the primary object and goal of administering and dispensing justice. The Preamble of the Constitution of Islamic Republic of Pakistan, 1973 takes care of this aspect as follows:-- "Whereas it is the will of the people of Pakistan to establish an order".

Article 37 of the Constitution which falls in the Chapter of Principles of Policy makes it obligatory for the State to "ensure inexpensive and expeditious justice".

"Justice" means "proper administration of laws; to render every man his due". "Justice" means "to remain within one's proper sphere; and injustice means to overstep that sphere. The court's function, so far as a public authority is concerned, is to ensure that it does justice; it does not act unjustly by overstepping its proper sphere".

At this juncture, the advice, having the status of Code and Command by Hazrat Ali (A.S.) to Malik-e-Ashter, for the Judges cannot be overlooked i.e. "When they realize that they had committed a mistake they should not persist upon it and should not try to justify it. When truth is made clear to them or when right path opens up before them, they should not consider it below their dignity to correct the mistake made or to undo the wrong done".

Judges are humans though they are ordinarily of high standard and rarely commit serious solecisms, fundamental flaws and grave goofs. Justly, therefore, even High Court Bench pronouncements do desiderate decisional review and correctional reversal. So Judge must abandon the populist superstition of judicial supremacy or curial papacy. Judges are under the Constitution, not over it.

Sometimes incorrect decisions do have far-reaching effects on the person concerned. Correctional reversal thus becomes absolutely essential to make correction of the same in order to avoid the injustice.

To err is human. Possibilities of mistakes and errors creeping in the decision making may not be very often but cannot outrightly be ruled out on occasions, especially the courts becoming over conscious of heavy back log of cases and long lists of daily causes fixed before them. Skipping over or escaping the notice of the court some material and important aspects is also not unusual. Once, therefore, such a mistake/error comes to the notice of the court resulting in injustice it should not be hesitant or reluctant to make necessary correction to undo the injustice caused thereby. The entire theme is the avoidance of injustice. If in a case it is caused by any act or omission of the court inadvertently, accidentally or otherwise there should be no hesitation to rectify and make necessary correction by undoing the same.

Present is the case wherein very material pieces of evidence escaped due consideration by the Supreme Court. Such evidence was not only of material relevancy but also had the direct impact as to the fate of the matter before the court. Such error apparent on the face of the record and consequential injustice warranted re-consideration and review of the matter, which in the circumstances became the duty of the court to do so.

The Law Lexicon by Justice Y.V. Chandrachud 2nd Edition 2008 p. 1755; Judicial Dictionary 14th Edition, Black's Law Dictionary, 14th ;Edition; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Muhammad Amir Khan's case PLD 1962 SC 335; Evacuee Trust Property Board v. Sh. Hameed Elahi and another PLD 1981 SC 108; Pir Bakhsh v: The Chairman, Allotment Committee and others PLD 1987 SC 145; Abdul Ghaffar-Abdul Rehman and other v. Asghar Ali and others PLD 1998 SC 363; Begum Afsar Saeed and others v. Ch. Abdul Aziz C.R.P. No.1/K of 1989; Pakistan through Ministry of Finance Economic Affairs and others v. Fecto Belarus Tractors Ltd. PLD 2002 SC 208; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Black's Law Dictionary Sixth Edition p.864; Judicial Review of Public Actions; Letter No.53 at p.491/501 of Nahjul Balagha; PLD 1966 Journal 50 and Justice Krishna Iyer in the Majesty of the Judiciary p.2 ref.

Muhammad Ikram Ch., Advocate Supreme Court for Petitioner.

Abdul Baseer Qureshi, Additional Prosecutor-General, NAB; Dr. Asghar Rana, Additional Deputy Prosecutor-General NAB and Khan Dil Muhammad Khan Alizai, D.A.-G. for the State.

Date of hearing: 30th September, 2009.

2010 S C M R 222

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

Haji AMANULLAH----Petitioner

Versus

MUNIR AHMED and others----Respondents

Criminal Petitions Nos.12/Q and 13/Q of 2008, decided on 23rd July, 2009.

(On appeal from the judgment, dated 9-6-2008 passed by the High Court of Balochistan, Quetta in Criminal Acquittal Appeal No.317 of 2006).

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

----S. 417--Appeal against acquittal---Interference by Appellate Court---Principles---Appellate Court would not interfere with acquittal of accused merely because on reappraisal of evidence it comes to a conclusion different from that of the Court acquitting the accused, provided both the conclusion are reasonably possible---However, if the conclusion reached by the lower Court was such that no reasonable person would conceivably reach the same and was impossible, then Appellate Court would interfere in such cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too with a view to avoid grave miscarriage of justice and for no other purpose--Important test is that the finding sought to be interfered with should be found wholly artificial, shocking and ridiculous after scrutiny.

Ali Sher v. The State and 3 others PLD 1980 SC 317; State through Advocate-General N.-W.F.P., Peshawar v. Amir Nazar and others PLD 1981 SC 286; Mst. Habibun Nisa alias Bivi v. Zafar Iqbal and others 1,981 SCMR 95; Nazir Ahmad v. Muhammad Din and others 1981 SCMR 415; Capt. Mahmood Jan v. Madad Khan and another 1981 SCMR 474; Ahmad v. Crown PLD 1951 FC 107; Fateh Muhammad v. Bagoo PLD 1960 SC 286; Abdul Majid v. Superintendent and Remembrance of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Feroze Khan v. Capt. Ghulam Nabi PLD 1966 SC 424; Usman Khan v. The State PLD 1969 SC 293; Noora and another v. The State PLD 1973 SC 469; Abdul Rashid v. Umid Ali and others PLD 1975 SC 227; Taj Muhammad v. Muhammad Yousaf and others PLD 1976 SC 234; Farid v. Aslam PLD 1977 SC 4; Fazalur Rehman v. Abdul Ghani PLD 1977 SC 529 and Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 ref.

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

----Ss. 447/427/147/148/149---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Entire prosecution evidence being vague, sketchy and partisan, had rightly been discarded by the Courts below---Evidence had been appreciated in its true perspective in accordance with principles laid down by Supreme Court qua appreciation of evidence---No illegality, infirmity, misreading or non-reading of evidence, could be pointed out warranting interference in the impugned judgment of acquittal, which being unexceptionable could not be reversed---Leave to appeal was refused to complainant by Supreme Court accordingly.

Ali Sher v. The State and 3 others PLD 1980 SC 317; State through Advocate-General N.-W.F.P., Peshawar v. Amir Nazar and others PLD 1981 SC 286; Mst. Habibun Nisa alias Bivi v. Zafar Iqbal and others 1981 SCMR 95; Nazir Ahmad v. Muhammad Din and others 1981 SCMR 415; Capt. Mahmood Jan v. Madad Khan and another 1981 SCMR 474; Ahmad v. Crown PLD 1951 FC 107; Fateh Muhammad v. Bagoo PLD 1960 SC 286; Abdul Majid v. Superintendent and Remembrance of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Feroze Khan v. Capt. Ghulam Nabi PLD 1966 SC 424; Usman Khan v. The State PLD 1969 SC 293; Noora and another v. The State PLD 1973 SC 469; Abdul Rashid v. Umid Ali and others PLD 1975 SC 227; Taj -Muhammad v. Muhammad Yousaf and others PLD 1976 SC 234; Farid v. Aslam PLD 1977 SC 4; Fazalur Rehman v. Abdul Ghani PLD 1977 SC 529 and Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 ref.

Jamal Khan Mandokhail, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 21st May, 2009.

2010 S C M R 229

[Supreme Court of Pakistan]

Present: Zia Perwez, Sayed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

UNITED BANK LIMITED----Petitioner

Versus

Mst. JAMEELA MUMTAZ and others----Respondents

Civil Petition No.242-K of 2009, decided on 23rd July, 2009.

(On appeal from the judgment, dated 20-1-2009 of the High Court of Sindh, Karachi passed in Spl. High Court Appeal No.272 of 2005).

Karachi Port Trust Act (VI of 1886)---

----S. 46---Transfer of Property Act (IV of 1882), Ss.57, 69(4) & 108---Civil Procedure Code (V of 1908), O.XXXIV, Rr.12 & 13---Constitution of Pakistan (1973), Art.185(3)---Sale of property subject to prior mortgage---Sale proceeds, distribution of---Principle---Property subject-matter of sale was owned by Karachi Port Trust and was leased out to judgment-debtor---During execution of decree passed in favour of petitioner bank and against judgment-debtor, property in question was put to auction---Dispute had arisen with regard to disbursement of the amount of sale proceeds of property in question---Validity---Legislature had expressly protected recovery 'of dues and charges payable with respect to property subject to mortgage, under provisions of O. XXXIV, R.13 C.P.C. as well as S.69 (4) of Transfer of Property Act, 1882---Dues of Karachi Port Trust were covered under provisions of S.57 of Transfer of Property Act, 1882, as the dues and charges pertaining to lease of "said property" and were to be paid out of auction proceeds before any disbursement could be made to decree-holder bank---When special provision had been made on a subject and there was also a general provision susceptible of covering the same field and matter was covered by both the provisions, the presumption would be that general provision was not intended to interfere with operation of special provision and the case would have to be dealt with under the latter provision---Lease of "said property" was due to expire and in absence of valid lease, the question of auction could not arise as no valid title to the "said property" remained to be transferred---Karachi Port Trust renewed lease as directed by High Court, so as to confer and validate title---Karachi Port Trust could not, under such circumstances be deprived of its dues while extending lease to make valid transfer of leasehold rights possible---Supreme Court declined to interfere in the order passed by High Court---Leave to appeal was refused.

Mallikarjuna Sastri v. Narasimha Rao ILR 1901 Mad. 412; Oudh Commercial Bank Ltd. v. Secretary of State AIR 1935 Lah. 319(2); Mst. Nawab Bibi v. Mst. Rafiq Bano PLD 1971 SC 481; M.P. Krishnaswami Pillai v. Chockalingam Chettiar and others AIR 1943 Mad. 455 and Punjab Small Industries Corporation v. Muslim Commercial Bank Ltd. 2006 CLD 1432 distinguished.

Golden Orphies (Pvt.) Ltd. and 12 others v. Director of Vigilance, Central Excise, Customs and Sales Tax and others 1993 SCMR 1635 rel.

Aziz-ur-Rehman, Advocate Supreme Court and Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioner.

Qamarul Islam Abbas, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.8.

Nemo for Respondents Nos.1 to 7 and 9.

Date of hearing: 13th May, 2009.

2010 S C M R 237

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

EXECUTIVE ENGINEER, GEPCO LIMITED and another----Petitioners

Versus

LIAQAT ALI----Respondent

Civil Petition No.579 of 2009, decided on 8th May, 2009.

(On appeal .from the judgment, dated 29-1-2009 passed by the Federal Service Tribunal in Appeal No.146(R)(C.E.) of 2006).

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

----Ss. 3, 3-A & 5---Constitution of Pakistan (1973), Art.212(3)---Major penalty---Departmental inquiry, non-holding of---Denial of allegation---Effect---Penalty of compulsory retirement was imposed upon respondent, without holding any departmental inquiry, therefore, Service Tribunal reinstated him in service---Validity---Respondent in detailed reply set up his defence pleas along with supported documents in total denial of charges and also alleged mala fide of relevant authorities against him---As allegation was denied by respondent, therefore, the same had become disputed and required inquiry as envisaged in Ss. 3 and 5 of ,Removal from Service (Special Powers) Ordinance, 2000---Competent authority, for even handed administration of justice was obliged to follow prescribed procedure before passing order of imposition of major penalty i.e. compulsory retirement from service---Such was not. a case falling within statutory ambit of proviso to S.3 or Ss.3-A, 5(4) and 5(5) of Removal from Service (Special Powers) Ordinance, 2000, where holding of inquiry or opportunity of hearing could be dispensed with---Authorities neither pleaded nor made out a case under such provisions of law---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Aurangzeb Mirza, Advocate Supreme Court for Petitioners.

Respondent in Person.

2010 S C M R 240

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ

KHURSHID ALAM----Petitioner

Versus

E.D.O. (EDUCATION) SKP and another----Respondents

Civil Petition No.1239/L of 2009, decided on 21st August, 2009.

(Against the judgment of the Punjab Service Tribunal, dated 6-4-2009 passed in Appeal No.380 of 2008).

Constitution of Pakistan (1973)---

----Art. 212(3)---Misconduct---Removal from service---Charge against civil servant was that he joined as teacher in the Government School at place "M" in 1997 although his posting was done at place "W"---Contentions of the petitioner was that he had joined the duty at. place "M" pursuant to a direction issued by the competent authority; that he served there for almost ten years without any complaint whatsoever; that he drew salary against the said post and it was not 'tenable in law to proceed against him on the said charge and that no senior official with whose consent he worked there was proceeded against on charges of misconduct---Leave to appeal was granted to the civil servant by Supreme Court, inter alia, to consider whether the charge of misconduct could have been said to have been proved notwithstanding the fact that for a period of ten years neither the competent authority nor the Drawing and Disbursing Officer raised any objection to the said posting.

Mian Mehmood Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2010 S C M R 241

[Supreme Court of Pakistan]

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

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

Versus

Messrs HOLIDAY INN, MULTAN and others----Respondents

Civil Appeal No.1304 of 2006, decided on 30th September, 2009.

(On appeal from the judgment, dated 21-10-2003 of the Lahore High Court, Lahore passed in Civil Appeal No.8 of 2002).

Central Excise Act (I of 1944)---

----Ss. 3-B & 36-C---Notification S.R.O.456(I)/96, dated 13-6-1996---Central excise duty---Determination---PCT Heading 9810.1010, 9801.1020 and 9801.1030---Distinction---Respondent-company paid Central Excise Duty on various functions at the rate of 12-1/2% instead of 20%, therefore, authorities sought recovery of short deposit along with additional duty under S.3-B of Central Excise Act, 1944---Appellate Tribunal partly allowed appeal filed by respondent-company and waived off additional duty and penalty imposed by authorities---Validity---Word "function" was not defined under Central Excise Act, 1944 or the Rules made thereunder nor so given in Notification S.R.O.456(I)/96, dated 13-64996, therefore, the same had to be interpreted and understood in its ordinary meaning and reasonably in the sense in which it had been used in relevant PCT Heading referred to by supplying ordinary sense and interpretation---Keeping in view the percentage of the charges, the manifest wisdom appeared to be that the functions related to matrimonial ceremonies were chargeable at a high rate of duty for the services rendered for such functions which excluded ordinary functions chargeable at less percentage of duty--Interpretation made by High Court of the word "function" used in PCT Heading 9801.1030 was in accord with rules of interpretation of statutes by applying the principle of "ejusdum generis" and therefore, no exception could be taken thereto---Appeal was dismissed.

Izharul Haque, Advocate Supreme Court for Appellant.

Sajjad Hussain, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 30th September, 2009.

2010 S C M R 247

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Moosa K. Leghari and Muhammad Sair Ali, JJ

ULFAT HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.316 of 2006, decided on 24th April, 2009.

(On appeal from the judgment, dated 7-6-2005 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.407 of 2000 and Murder Reference No.721 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.3---Reappraisal of evidence--- Child witness---Corroboration---Benefit of doubt---Motive, absence of---Effect---Accused was convicted by Trial Court under S.302(b), P.P.C. and was sentenced to death, which sentence was maintained by High Court---Plea raised by accused was that his conviction was based upon sole testimony of child witness, which was neither corroborated by medical evidence nor with weapon of offence---Validity---Though in principle, conviction could be based upon testimony of an intelligent and understanding child witness but Courts had generally preferred to adopt settled principle of prudence and rule of care attached to sole testimony of child witness despite child's intelligent deposition---No evidence was available on record to corroborate testimony of child witness as medical evidence and recovery of weapon did not furnish required support---Medical evidence pertained to four injuries which were ante-mortem and were due to blunt weapon---Doctor stated during evidence that skull of deceased had been cut but it was not a sharp weapon; in the same breath she self destructively admitted that the injury could be from sharp-edged 'weapon---Such evidence of doctor cast serious doubt on prosecution story based on sole statement of child witness that deceased was struck by blunt weapon i.e. Ghotna and not by sharp-edged weapon---Weapon of offence was recovered after over 2-1/2 years and the same was neither reported to be blood-stained nor was it sent for chemical examination---Motive was neither alleged nor proved, though it might be insignificant yet it could be a clue to the mind of accused--Prosecution was not able to prove case against accused beyond reasonable doubt, therefore, conviction and sentence awarded to accused was set aside and he was acquitted of the charge---Appeal was allowed.

Amjad Javed v. The State 2002 SCMR 1247; Muhammad Jamal v. State 1997 SCMR 1595; State through A.-G. Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1 and Amir Khan and others v. The State PLD 1985 Lah. 18 ref.

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

Syed Amanat Ali Bokhari, D.P.-G. for the State.

Date of hearing: 24th April, 2009.

2010 SCMR 253

[Supreme Court Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager and another----Appellants

Versus

MUHAMMAD ZAHID and 29 others----Respondents

Civil Appeal No.351 of 2005, decided on 22nd June, 2009.

(On appeal from the judgment, dated 28-4-2004 of the Lahore High Court, Rawalpindi Bench; Rawalpindi, passed in I.C.A. No.164 of 2002)

(a) Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----S. 34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court inter cilia to examine as to whether respondents were employees of the Pakistan Telecommunication Company Limited or Telecom Foundation; if so to what effect.

(b) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----Preamble---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Preamble---Scope, application and analysis of certain provisions of both the statutes stated.

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

----Art. 199(5)---Jurisdiction of High Court---Scope---"Person" as used in Art.199(5) of the Constitution with reference to the scope of extraordinary jurisdiction of High Court stated.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 ref.

(d) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----Preamble---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Preamble---Constitution of Pakistan (1973), Arts.199, 2-A, 4 & 25---Constitutional jurisdiction of High Court---Scope---"Person" as mentioned in Art.199(5) of the Constitution---Connotation---Employees of erstwhile Telegraph and Telephone Department transferred to the Corporation under the relevant provisions of the Pakistan Telecommunication Corporation Act, 1991 and later on succeeded by the PTCL, discharging their functions and duties in the International Gateway Exchange as operators had been inducted permanently or regularized subsequently under the rules necessarily relate to one of the "affairs of the Federation" within the purview of provisions of Art.199 of the Constitution---Similar duties and functions in the International Gateway Exchange being discharged by the employees as operators could not be distinguished and said that the same did not relate to the "affairs of the Federation" though conferred upon the Corporation and finally upon the PTCL---Subject which pertained to one of the important "affairs of the Federation" discharged now through PTCL, essentially fell within the context of "person" as defined in Art.199(5) of the Constitution, therefore, employees were amenable to the constitutional jurisdiction of the High Court---Case of the employees/respondents was that they were employed on daily wages and not regularized despite having rendered service for period of more than 2 years as contract employees renewed from time to time; that they were being discriminated as against the other operators performing service permanently with the PTCL or having been regularized in due course ' as operators in the International Gateway Exchange performing similar functions in Exchange amounted to having been grossly violated as against the guaranteed rights under Arts.2-A, 4 & 25 of the Constitution by depriving them of their emoluments besides all other service benefits being paid to other operators performing service in the said Exchange and similarly placed---High Court judgment that such-like employees were for all purposes regular employees and to be dealt 'with as such was unexceptionable irrespective of the status of the employees which might be that of a "worker" or a 'civil servant" or the "contract employees" having no nexus to the maintainability of the constitutional petition on the ground of discrimination meted out to them---Principles.

Muhammad Manwar Mumtaz v. Pak Arab Refinery Limited, (PARCO) through Managing Director Corporate Headquarters Korangi, Karachi and 6 others 2009 PLC 13; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan and others PLD 2006 SC 172; Messrs Soofi Textile and Printing Mills Ltd., Karachi v. Abdul Aziz 1975 PLC 260; Taj Din and 44 others v. Punjab Labour Court No.3 Lyallpur and another PLD 1976 Lah. 1169; Masood Ahmed and 24 others v. Pakistan International Airlines Corporation and 2 others 2001 PLC (C.S.) 41; Raza Muhammad alias Rajib Ali and another v. The State 2001 YLR 1743; Nagina Bakery v. Sui Southern Gas Limited and 3 others PLC 2001 SC 760; Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888; Atchison College Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Mst. Tahira Almas and another v. Islamic-Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Ikram Bari and 524 others v. National Bank of Pakistan. through President and another 2005 SCMR 100; Muhammad Boota and 2 others v. National Construction Company and 2 others 1984 CLC 256 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 ref.

S. Naeem Bokhari, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondents Nos.1 to 14.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents Nos.15 to 28.

Nemo for Respondent No.29.

Date of hearing: 27th April, 2009.

2010 SCMR 285

[Supreme Court of Pakistan]

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

Mst. INAYAT BEGUM and others---Petitioners

Versus

MUHAMMAD ALI---Respondent

Civil Petition No.132-L of 2005, decided on 10th September, 2009.

(Against the judgment dated 3-11-2004 passed by the Lahore High Court, Lahore in R.S.A. No.13 of 1997).

Constitution of Pakistan (1973)---

----Arts. 185(2)(d) & 185(3)---Direct appeal to Supreme Court---Maintainability---Question of law arising in the petition was that Supreme Court had taken divergent views on interpretation of provisions of Art.185(2)(d) of the Constitution---Leave to appeal was granted by Supreme Court to remove inconsistent views taken by Supreme Court in its judgments already passed.

Zulfiqar's case PLD 2007 SC 582; Taza Gul's case 2006 SCMR 504; Syed Jamshaid Ali Shah's case 1992 SCMR 1195; Haji Muhammad Nawaz's case 1990 SCMR 1621; Sardar Abdur Rauf Khan's case 1991 SCMR 2164; Khurshid Anwar Khan's case 1992 SCMR 1202; Muhammad Inayat's case 2003 SCMR 875; Sardar Abdur Rauf Khan's case 1992 SCMR 1181; Elahi Bakhsh's case 1992 SCMR 2443; Sardar Abdur Rauf Khan's case 1992 SCMR 1181; Mahmood Hussain Larib's case 2009 SCMR 857; Zafar Iqbal- Hameed Khan's case 2005 SCMR 1371 and Ghulam Muhammad's case 2007 SCMR 41 ref.

Ras Tariq Chaudhry, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 10th September, 2009.

2010 S C M R 286

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

MUHAMMAD HUSSAIN and others---Appellants

Versus

Dr. ZAHOOR ALAM---Respondent

Civil Appeals Nos. 943 and 944 of 2002, decided on 22nd July, 2009.

(On appeal from the judgment dated 13-9-2001 passed by the Lahore High Court, Lahore in R.F.As. Nos. 207 and 208 of 1992).

Per Ch. Ijaz Ahmed, J. Iftikhar Muhammad Chaudhry, C.J. and Jawwad S. Khawaja, J. agreeing--

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

----S.12---Contract Act (IX of 1872), S.55---Suit for specific performance of agreement to sell immovable property---Agreement was executed and earnest money was received by defendant on 15-6-1986---Target for completion of agreement was fixed as 5-6-1987---Plaintiff filed suit on 6-7-1987---Dismissal of suit by Trial Court---Plaintiff's offer made during pendency of his appeal before High Court to purchase suit land @ Rs.2 lac instead of Rs.1 lac agreed between parties---Acceptance of plaintiff's appeal by High Court on payment of Rs.2 lac per acre-Plaintiff's offer made before Supreme Court to purchase suit land @ Rs.5 lac per acre---Validity---Both parties were at fault towards performance of their specific obligations arising out of agreement---Time was not essence of the contract---Value of suit land after agreement had appreciated, due to which both parties did not want to implement agreement and had tried their level best to blame each other for its non-compliance---Value of price on account of lapse of 23 years had diminished due to devaluation of currency, while price of properties had increased due to trend of increase of price of immovable properties in market---Plaintiff had deposited Rs.50 lac in terms of impugned judgment more than seven years ago---Supreme Court upheld impugned judgment while directing plaintiff to pay Rs.6 lac per acre as consideration for suit land within specified time, otherwise his suit would be deemed to have been dismissed.

Abdul Hamid's case PLD 1962 SC 1; Madan Gopal's case PLD 1969 SC 617; Jamshed's case AIR 1915 PC 83; Seth Essabhy's case PLD 1973 SC 39; Nisar Muhammad Khan's case PLD 1965 SC 690; Muhabat's case PLD 1970 Lah.303; Haji Muhammad Younas's case PLD 1907 Lah. 153 and Mir Ajam Khan's case 2006 SCMR 1927 rel.

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

----S. 22---Determination of fairness of contract---Duty of Court.

In judging the fairness of the contract, the Court will look not merely at the terms of the contract itself, but all the surrounding circumstances.

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

----S. 22---Grant of decree for specific performance of contract---Scope---Discretion to grant such decree could not be used arbitrarily, but had to be exercised judiciously on sound principles.

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

----S. 55---Agreement to sell immovable property---Time as essence of such contract---Scope.

In the contract relating to immovable property, time is not generally the essence of the contract in the failure to perform part of the contract by the date fixed in the agreement to sell i.e. for execution of sale deed is not a ground for refusing specific performance, unless the circumstances must be highlighted and proved by the owner .of the land that time is essence of the contract.

Abdul Hamid's case PLD 1962 SC 1 and Seth Essabhy's case PLD 1973 SC 39 rel.

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

----Art. 185---Constitutional jurisdiction of Supreme Court---Scope--Parameters prescribed by Supreme Court for exercise of such jurisdiction.

There are various parameters prescribed by the Supreme Court in various pronouncements to refuse to exercise equitable discretionary relief in favour of the appellant/petitioner on the following well-known maxims: --

(i) He who seeks equity must come with clean hands.

(ii) Law favours who are vigilant qua their rights.

(iii) The purpose of exercising the discretionary jurisdiction is to see that Justice is rendered according to the rules- of equity and good conscience.

Matters for consideration for the exercise of discretion are: bad faith, dishonesty, unreasonableness of the decision and constitutional remedies being extraordinary, no one is entitled to claim as of right exercise of discretionary power.

Haji Saifullah Khan's case PLD 1989 SC 166 rel.

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

----Art. 185---Appeal to Supreme Court---Jurisdiction under Art.185 is discretionary in character.

(g) Equity---

----Person seeking equity must come with clean hands.

(h) Administration of justice---

----Law favours who are vigilant qua their rights.

(i) Discretion---

----Purpose of exercise of discretionary jurisdiction is to see that justice is rendered according to the rule of equity and good conscience.

(j) Constitution of Pakistan (1973)---

----Arts. 184, 185 & 199---Constitutional remedies being discretionary could not be claimed as of right.

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

----Art. 185(2)(d)(e) & (3)---Supreme Court Rules, 1980, O.XIII, R.2---Filing of petition for leave to appeal instead of direct appeal---Order of Supreme Court passed in absence of respondent directing the office to treat petition as direct appeal, when appeal had become time-barred---Condonation of delay in filing direct appeal---Supreme Court in view of such conduct of appellant declined to exercise discretion in his favour without adverting to its divergent views regarding condonation of delay in filing petitions instead of appeals or not.

Ghulam Muhammad's case 2007 SCMR 41; Rukhsana Parven Nazeer's case 2008 SCMR 555; Khurshid Anwar Khan's case 1992 SCMR 1202; Taza Gul's case 2006 SCMR 504 and Muhammad Inayat's case 2003 SCMR 875 ref.

(l) Administration of justice---

----Each and every case is to be decided on its peculiar circumstances and facts.

Per Jawwad S. Khawaja, J, agreeing with Ch. Ijaz Ahmed, J--

In the facts of present cases, time of payment of the balance amount was not of the essence of the agreement. The pleadings of the parties and the evidence on record had been thoroughly examined by the High Court, which had correctly concluded that the respondent/plaintiff had proved that he was ready and willing to perform his part of the bargain. Appellants were unable to advert to any infirmity in these findings recorded by the High Court.

His Lordship observed that "the appeals may be time barred. However, in view of the divergence of opinion on the question, I would leave for another day and a more appropriate case, the resolution of such divergence.

While agreeing with the decision recorded in the final paragraph of the judgment proposed by my learned brother Ch. Ijaz Ahmad, J, I would confine myself to the reasons recorded above".

Muhammad Saleem's ease 1994 SCMR 2213 rel.

Mian Shah Abbas, Advocate Supreme Court for Appellants (in both cases).

S.M. Naseem, Advocate Supreme Court for Respondent (in both cases).

Date of hearing: 30th June, 2009.

2010 S C M R 302

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

CHAIRMAN DR. A.Q. KHAN, RESEARCH LABORATORIES and another---Petitioners

Versus

Malik MUHAMMAD HAMID ULLAH KHAN---Respondent

Civil Petition No.1508 of 2009, decided on 21st August, 2009.

(On appeal from the judgment dated 29-6-2009 passed by the Federal Service Tribunal, Islamabad in Appeal No.33(R)CE/2004).

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

----S. 5---Granting of relief by Service Tribunal---Scope---Service Tribunal enjoys powers under S. 5 of Service Tribunals Act, 1973, to modify any order but such power is to be exercised judiciously.

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

----S. 5---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Service Tribunal, jurisdiction of---Modifying of penalty---Scope---Civil servant was charged with absence without leave and he was dismissed from service but Service Tribunal converted the penalty into compulsory retirement---Validity---Courts/Tribunals seized with the matter were required to pass order strictly within parameters of the Constitution and law and rules---Service Tribunal did not have any jurisdiction to grant arbitrary relief in favour of any person---Observation of Service Tribunal which was incorporated in its judgment in two lines was without any reason, law on subject, as well as under rules and the same was not sustainable---If Service Tribunal had decided to modify the decision, then it could have referred previous record of civil servant to show indulgence---Past record of civil servant was mentioned in one of the grounds of charge sheet wherein it was mentioned that earlier also, three warnings/discipline violation letters were issued to the civil servant for unauthorized absence---Service Tribunal exceeded its authority in granting relief to civil servant thus judgment of Service Tribunal was not sustainable in law---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Service Tribunal---Appeal was allowed.

Muhammad Aslam Uns, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 21st August, 2009.

2010 SCMR 306

[Supreme Court of Pakistan]

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

PETROSIN CORPORATION (PVT.) LTD. SINGAPORE and 2 others---Appellants

Versus

OIL AND GAS DEVELOPMENT COMPANY LTD. through Managing Director, Islamabad---Respondent

Civil Appeals Nos.1241 and 1242 of 2007, decided on 24th September, 2008.

(On appeal from the judgment dated 27-9-2006 of the Lahore High Court, Rawalpindi Bench passed in Writ Petitions Nos.2055 and 2056 of 2006).

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Maintainability---Contractual obligation---Vested right---Promissory estoppel, principle of---Applicability---Natural justice, principles of---Scope of applicability---Respondent company invited tenders for setting up a project, appellants furnished performance guarantee equivalent to 10% of contract price but thereafter respondent called for fresh tenders---Plea raised by appellants was that intent to award a contract by itself was a complete contract enforceable at law and that the same operated as promissory estoppel against respondent company---Validity---Final contract had not come into existence although certain steps towards the same had been taken by respondent company---Principle of promissory estoppel or legitimate expectancy were not attracted in facts and circumstances of such cases---Mere letters of intent to award contract would not constitute a concluded contract---There might be cases in which a contract might involve number of documents including exchange of correspondence between parties in process of finalization of award of contract---Principle of natural justice was not attracted in absence of infringement of any vested rights of appellants---Bids of appellants had not been confirmed finally, therefore, contract could not be said to have been completed---Even the lowest bid would not confer an absolute title for award of a contract---In mega projects host of other considerations become relevant to avoid any unnecessary risk---General letter of intent merely implied an intention to enter into a contract and authority to contractor to start work before completion of contract in anticipation of signing of contract with a right to contractor for compensation of work, if any, he had already done---Letter of intent could not be treated to be synonymous to a completed contract---Bid of no other bidder had been accepted and respondent company had decided quite justifiably to re-advertise tenders---Judgment passed by High Court in exercise of constitutional jurisdiction under Art.199 of the Constitution was correct to which no exception could be taken---Appeal was dismissed.

Ramna Engineering Pipelines v. Sui Gas Pipelines Limited 2004 SCMR 1274; British Steel Corporation v. Cleveland (1984) (1 All. ER 504); Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965. Kar. 202; Maj (R.) Ahmed Khan Bhatti v. Mst. Masooda Fatima PLD 1981 Kar. 398; AIR 1933 P.V 29; Michael Richards Properties Ltd. v. Corporation of Wardens of St. Saviour's Parish (1975) 3 All. E.R. 416, Messrs Hotel Summer Retatre, Nathiagali v. Government of N.-W.F.P. 1999 MLD 2418; Messrs Dababhoy Investments (Pvt.). Ltd. Karachi through Abdull Dababhoy v. Federation of Pakistan through Secretary, Ministry of Finance PLD 1995 Kar. 33; Messrs Podder Steel Corporation v. Messrs Ganesh Engineering Works AIR 1991 SC 1579; Dresser Rand S.A. v. M/s. Bindal Agro Chem Ltd. AIR 2006 SC 871; Messrs Bagh Construction Company v. Federation of Pakistan 2001 YLR 2791; City Schools (Pvt.) Ltd. v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150; Lahore Cantonment Co-operative Housing Society Ltd. Lahore Cantt. v. Dr. Nusrat Ullah Chaudhry PLD 2002 SC 1068; The Chandpur Mills Ltd. v. The District Magistrate, Tippera PLD 1958 SC 267; Messrs Momin Motor Company v. The Regional Transport Authority, DACCA PLD 1962 SC 108; Messrs Padmavathi Constructions v. The A.P. Industrial Infrastructure Corporation Ltd. AIR 1997 A.P 1; The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others AIR 1977 SC 2146; State of Gujarat v. Meghji Pethraj Shah (1994) 3 S.C.C. 552; Moulvi Igbal Haider v. Capital Development Authority PLD 2006 SC 394; Administrative Law by Wade 9th Edn.; Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Ittehad Cargo Services v. Syed Tasleem Hussain Naqvi PLD 2001 SC 116; Union of India v. Bhimsen Walaiti Ram AIR 1971 SC 2295.; Babu Parvez v. Settlement Commissioner 1974 SCMR 337 ref.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Mian Gul Hassan Aurangzeb, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant (in both cases).

Waseem Sajjad, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in both cases).

Dates of hearing: 9th, 10th, 12th, 17th, 23rd and 24th September, 2008.

2010 S C M R 312

[Supreme Court of Pakistan]

Present: Ghulam Rabbani, J

ABDUL HAMEED DOGAR---Appellant

Versus

FEDERATION OF PAKISTAN - and others---Respondents

Civil Miscellaneous Appeal No.120 of 2009 in Civil Review Petition No. Nil of 2009 in Constitutional Petitions Nos. 9 and 8 of 2009 and Civil Miscellaneous Appeal No.121 of 2009 in Constitutional Petition No. Nil of 2009, decided on 11th November, 2009.

(Appeals under Order V, Rule 3 of the Supreme Court Rules, 1980 against the order of Institution Officer/Assistant Registrar dated 28-10-2009)

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

----Art.188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Second review petition-Maintainability-Contention of the applicant was that since he had not filed previously any review petition, the one filed by him now, could not be treated a second review petition---Validity---Previous review petition having been dismissed by 14 Members Bench, short order/judgment sought to be reviewed had attained finality, therefore no second review petition was permissible.

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

----Art.188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Limitation---Date which matters for computing the period of limitation viz. 30 days in filing review petition is to be reckoned from the pronouncement of judgment or making of the order---Principles.

(c) Supreme Court Rules, 1980---

----O. I, R. 2(1)---Advocate/Advocate-on-Record---Appearing'---Pleading'--- Acting'---Application for condonation of delay, in the present case, had been filed with signatures of two Advocates and the Advocate-on-Record who had put his stamp on the application, had however, not signed said application---No affidavit in support of said application had been filed---Effect---Both the Advocates fell within the definition of the "Advocate" as provided under O.I, R.2(1), Supreme Court Rules, 1980 meaning "a person entitled to appear and plead before the Supreme Court"---Said Advocates could onlyappear and plead' and were not permitted to act', which was the sole function of Advocate-on-Record---Advocate-on-Record means "an Advocate" who was entitled under the Supreme Court Rules, 1980 toact' and plead for a party in the Supreme Court---Authorised performance of Advocate and Advocate-on-Record was different---Signing and presentation of the petition neither fell within the terminology of "appearing" nor in "pleading such was obviously an "act" which could alone be performed by the Advocate-on-Record.

Abdul Wadud v. The State PLD 1964 Dacca 543 ref.

(d) Supreme Court Rules, 1980---

----O. XVII, R. 5---Scandalous and contemptuous language having been used in the petition against the Chief Justice of Pakistan and Judges of Supreme Court, petition was rightly not entertained under R.5, O.XVII, Supreme Court Rules, 1980---`Scandalous matter'---Meaning.

Black's Law Dictionary Eighth Edition and Webster's Comprehensive Dictionary Encyclopedic Edition ref.

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

----Arts. 184(3) & 188---Supreme Court Rules, 1980, O.XXVI---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court---Maintainability---Side by side the petition under Art.184(3) of the Constitution, the petitioner had also filed a separate review petition---Essentially, the purpose of filing the constitutional petition was an attempt to achieve the same objective as that of review petition i.e. to subvert the judgment of the Supreme Court reviewed against---On dismissal of host of review petitions filed against the said judgment of Supreme Court, the judgment had attained finality and present review petition had not been entertained and rightly so by refusing to receive the same on valid objection by the office of the court---Held, what could not be achieved directly could not be achieved indirectly---Evaluating the question of validity of objections, on the touchstone of the principle that what could not be achieved directly could not be achieved indirectly, petition under Art.184(3) of the Constitution which also contained scandalous and malicious material was not entertainable.

Tikka Iqbal Muhammad Khan's case PLD 2008 SC 615 ref.

Naeem Bukhari, Advocate Supreme Court Assisted by Muhammad Afzal Siddiqui, Advocate Supreme Court, Yousaf Anjum, Ejaz Janjua, Kashif Siddiqui and Hammad Khan for Appellant (in both cases).

Nemo for Respondent.

Dates of hearing: 5th 10th and 11th November, 2009.

2010 S C M R 322

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Jawwad S. Khawaja, JJ

Dr. AGHA IJAZ ALI PATHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision Petitions Nos. 9 of 2008 in Criminal Miscellaneous Application No.181 of 2007 in Criminal Miscellaneous Application No.282 of 2006 in Criminal Petition No.361-L of 2004, decided on 15th October, 2009.

(On review from the order dated 14-1-2008 passed by this Court in Cr.M.A. No.181 of 2007 in Cr.M.A. No.282 of 2006 in Cr.P.L.A. No.361-L of 2004 and on appeal from the judgment dated 17-5-2004 passed by the Lahore High Court, Lahore in Cr.A. No.1749 of 2000).

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Petition had already been converted into appeal and allowed by a short order of Supreme Court acquitting the accused---Said order was subsequently recalled and the case was directed to be fixed for rehearing after notice to the parties---Validity---Short order had been recorded in clear terms and signed by Judges of Supreme Court, whereby the judgments of Trial Court and Appellate Court were set aside, conviction and sentence awarded to accused were also set aside and he was acquitted by the charge-Decision so made and announced through the short order was presumed to be solemn, well considered, conscious, deliberate and a final verdict covering all points arising out of the case, and as such the case ought not to have been fixed for re-hearing---Admittedly, the order for rehearing the case had been passed without hearing the accused--Lis in the matter could not be treated to be pending having already attained finality in the eyes of law---Order recalling the short order with direction to fix the case for rehearing after notice to the parties was, therefore, set aside, as a result the short order stood revived and operative in law.

The State v. Asif Adil and others 1997 SCMR 209 rel.

Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859; Fateh Khan v. Boze Mir PLD 1991 SC 782; Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012 and Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

Syed Iftikahr Hussain Gillani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Abdul Baseer Qureshi, Deputy Prosecutor General NAB and Dr. M. Asghar Rana, Addl. P.G. NAB for the State/NAB.

Date of hearing: 15th October, 2009.

2010 S C M R 328

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

PAKISTAN OILFIELDS LIMITED, RAWALPINDI---Appellant

Versus

PROVINCE OF PUNJAB, through Secretary Finance Department, Lahore and others---Respondents

Civil Appeal No.416 of 2004, decided on 1st October, 2009:

(On appeal from the judgment dated 11-2-2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in ICA No.261 of 2003).

(a) Punjab Finance Act (IX of 1997)---

----S. 7---Tax on Luxury Vehicles Rules, 1997, R.9---Law Reforms Ordinance (XII of 1972), S.3 (2)---Constitution of Pakistan (1973), Art.185(3)---Petroleum Concession Agreement, cl. (13.5)---Leave to appeal was granted by Supreme Court to consider contentions of petitioner that Tax on Luxury Vehicles Rules, 1997, were not applicable to petitioner's case as when petitioner filed constitutional petition in year, 1997, there were no Rules in field and right of Intro-Court Appeal was available; a right which was available at the time of filing of constitutional petition would not cease on publication of Rules or on dismissal of constitutional petition but it persisted from the date of institution of constitutional petition; and imported vehicles were exempted from payment of all duties/tax etc. under clause 13.5 of Petroleum Concession Agreement.

Messrs Raja Industries Ltd. v. Government of Punjab and others 1999 MLD 3141 ref.

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

----S. 3(2), proviso---Tax on Luxury Vehicles Rules, 1997, R.9---Punjab Finance Act (IX of 1997), S. 7---Intro-Court Appeal---Maintainability---Word "brought" used in proviso to S.3 of Law Reforms Ordinance, 1972---Effect---Appellant assailed Levy of tax on luxury vehicles imposed under S.7 of Punjab Finance Act, 1997, during pendency of petition before High Court, Tax on Luxury Vehicles Rules, 1997, were framed and were notified on 6-10-1999---Intra-Court Appeal filed by appellant before Division Bench of High Court, against judgment passed by Single Judge of High Court was dismissed being not maintainable---Validity---Word "brought" used in proviso to S.3 of Law Reforms Ordinance, 1972, had reference to institution of petition and could. be equated with "filing" of petition before High Court---If at the time of bringing / filing of petition before High Court there was a law providing remedy of appeal etc. appeal before Bench of two or more Judges of High Court from the order of Single Judge of that Court would not lie---Petition was filed by appellant under Art.199 of the Constitution before High Court in November, 1997, whereas Rules framed under S. 7(5) of Punjab Finance Act, 1997, which provided remedy of appeal were notified on 6-10-1999, thus when petition was brought before High Court there was no law providing remedy of appeal to appellant---When Constitutional petition was filed by appellant before High Court by then no "original order" had been filed which could be made basis for filing of departmental appeal---Relevance and significance of prayer clause of constitutional petition could also not be lost sight of---Rigours of proviso to S.3(2) of Law Reforms Ordinance, 1972, were not at all attracted to appellant which could denude the appellant of remedy of appeal or had rendered the appeal as non-maintainable-,--View taken by Division Bench of High Court as to maintainability of Intra-Court Appeal was not sustainable in law and judgment passed by Division Bench of High Court was set aside resultantly Intra-Court Appeal would be deemed` to be pending before Division Bench of High Court---Appeal was allowed.

Federation of Pakistan v. Muhammad Siddiq 1980 SCMR 443; Governor N.-W.F.P. and another v. Gul Naras Khan 1987 SCMR 1709 and Muhammad Bashir and 2 others v. Muhammad Firdaus and another PLD 1988 SC 232 ref.

Jurisdiction and Judicial Review, page 63 by Justice (R) Fazal Karim; Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Clearners PLD 1981 SC 553 and Haji Muhammad Ibrahim and 3 others v. Mst. Surrayia-un-Nisa and 9 others PLD 1992 SC 637 rel.

Ali Sibtain Fazli, Advocate Supreme Court for Appellant.

Saeed Yousaf Khan, Addl. A.-G. Punjab for Respondents Nos. 1 to 3.

Date of hearing: 1st October, 2009.

2010 S C M R 334

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Qaim Jan Khan and Syed Zawwar Hussian Jaffery, JJ

Mst. GULSHAN HAMID---Appellant

Versus

Kh. ABDUL REHMAN and others---Respondents

Civil Appeal No.1086 of 1999, decided on 9th June, 2009.

(On appeal from judgment of Lahore High Court, Lahore dated 9-7-1999 passed in R.F.A. No.218 of 1993).

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

----Ss.12 & 22, Illus I---Suit for specific performance of agreement to sell---Signing of such agreement by vendor-defendant, but its non-signing by vendee-plaintiff-Validity-Such agreement created rights and liabilities on both sides---Vendee by not signing agreement had kept himself immune from any future claim of vendor---Had, there been an occasion for vendor to bring such suit, then she should not have succeeded as vendee had not signed agreement so as to accept any liability thereunder---Such case was hit by illustration 1 of S.22 of Specific Relief Act, 1877---Plaintiff was not entitled to exercise of discretion in his favour, who had not accepted any liability, but had claimed all rights under such agreement---Such unilateral agreement not signed by plaintiff-vendee ' was not mutually enforceable, whereupon no decree could be passed---Suit was dismissed in circumstances.

Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 rel.

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

----Ss. 12 & 22---Suit for specific performance of sale agreement property located in Cantonment area---Signing of agreement by vendor-defendant, but its non-signing by vendee-plaintiff-Execution of agreement by vendor lady at place "I", but its attestation in her absence by Oath Commissioner at place "S", where suit-land situated---Agreement containing a term to the effect that vendee had to obtain NOC from GHQ/Cantonment Board and within 15 days of receipt of intimation regarding NOC, vendee was required to get sale-deed registered after payment of balance amount; and on failure of vendee to do so, advance money would stand forfeited and agreement would be considered as cancelled-Non-payment of balance money by plaintiff within fifteen days after defendant obtained NOC---Plea of defendant that time was essence of agreement, thus, same stood cancelled on such failure of defendant---Validity---Vendee by not signing agreement had kept himself immune from any future claim of vendor, thus, same was not' mutually enforceable and no decree of specific performance could pass on its basis---Vendee had not appeared in witness box in order to avoid cross-examination---Restriction of registration within 15 days after intimation to vendee could not be enforced against him as he had not signed agreement and was not bound by any of his liabilities--Vendee after receiving information about issuance of NOC had failed to pay balance amount to vendor---Time was essence of contract and vendee had failed to perform his part of contract---Agreement itself provided that if vendor failed to perform agreement after obtaining NOC, then vendee would receive double the amount of advance money as compensation---When compensation was already provided and consequences of non-performance were already determined in agreement, then aggrieved party would stand well-compensated and same would be a good ground for refusal of specific performance--Issuance of NOC by GHQ was an act of third party, which was not party to suit or contract, thus, its act or omission would remain binding upon parties---GHQ having issued NOC had withdrawn same after institution of suit, thus, court could not direct specific performance of agreement in absence of NOC---Vendee after getting Pay Order in vendor's name had mala fidely withdrawn same after two days---Conduct of vendee had never remained above board---Vendee had forged agreement through Oath Commissioner in absence of vendor---Real owner of suit property was Federal Government, and its ostensible owner at spot was merely lessee---Such unilateral agreement not signed by vendee was not mutually enforceable and no decree could be passed on its basis---Compensation was already provided and consequences of non-performance were already determined in agreement, thus, vendee would stand compensated and same would be a good ground for refusal of specific performance---Suit was dismissed in circumstances.?

Qureshi Muhammad Anwar v. S.A. Qureshi 1994 CLC 733; Muhammad Ishaq v. Mst. Sufia Begum 1992 SCMR 1629; Barkat Ullah v. Wali Muhammad 1994 SCMR 1737 and Muhammad Taj v. Arshad Mahmood 2009 SCMR 114 rel.

Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 distinguished.

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

----S.3S---Time as essence of contract---Determining factors stated.

To hold as to whether time is of essence of the contract, it is always to be determined from the circumstances of each case and of each contract. If it is simply written that some agreement is to be performed within a certain period, this by itself cannot be considered to be of essence of the contract. But when the non-performance within such period entails upon certain consequences and such consequences are also given in the contract, the time becomes of essence.?

In the present case, it was specifically provided that if the contract is not completed within 15 days and balance amount is not paid, the advance money would stand forfeited and above all the contract would stand cancelled. Here the time was, therefore, of the essence of the contract.?

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

Abdul Rehman Ansari, Advocate Supreme Court and Rana Nasrullah Khan, Advocate Supreme Court for Respondents.

Date of hearing: 9th June, 2009:

2010 S C M R 342

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

MUHAMMAD EJAZ and 2 others---Petitioners

Versus

Mst. KHALIDA AWAN and another---Respondents

Civil Petition No.923 of 2009, heard on 30th June, 2009.

(On appeal from the judgment dated 2-4-2009 passed by Lahore High Court, Lahore in Civil-Revision No.368 of 2008).

Per Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Jawwad S. Khawaja, JJ, agreeing--

(a) Islamic Law---

----Gift, making of---Essential conditions---Valid gift can be effected orally, if the prerequisites are complied with---Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registrable under the Registration Act, 1908.

Under the Islamic Law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions:

(a) a declaration of gift by the donor;

(b) acceptance of gift by the donee; and

(c) delivery of possession of corpus.

On the fulfilment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the prerequisites are complied with. Written, instrument is not the requirement under the Muslim Law nor is the same compulsorily registrable under the Registration Act, 1908.?

(b) Islamic Law---

----Gift---Plaintiff claiming to be owner of suit house on basis of unregistered gift deed executed by her deceased father to exclusion of her brother and three sisters---Proof---Failure of plaintiff to depose as witness that she had accepted gift or possession of suit house was given to her---Effect---Onus was on plaintiff to prove gift deed in all three facets i.e. declaration of gift by donor, acceptance of gift by donee and delivery of possession of corpus of gift---No valid gift of property could be made in absence of any such three essential ingredients---Gift deed, in the present case, was executed by donor three months before his death whereafter plaintiff had not got property mutated in her favour---Marginal witnesses and scribe of gift deed had stated that plaintiff was not present at the time of making of gift deed---Plaintiff in her deposition had acknowledged that one room in suit house was under lock and key of her brother even during life time of his father---Nothing on record was available to show as to how plaintiff's brother came into portion of suit house after its gift in her favour---Failure of plaintiff to prove twin requirement of acceptance of gift and delivery of possession was fatal to her claim---Suit was dismissed in circumstances. ?

Umar Bibi v. Bashir Ahmad 1977 SCMR 154; Abdullah v. Abdul Aziz 1987 SCMR 1403 and Ismail v. Commissioner of Karachi 1968 SCMR 509 ref.

Ghulam Haider v. Ghulam Rasool 2003 SCMR 1829; Zafar Muhammad v. Anwar Bibi 2004 SCMR 559; Muhammad Idrees v. Zeenat Bibi 2005 SCMR 1690; Rasheeda Bibi v. Mukhtar Ahmad 2008 SCMR 1384 and Ashiq Hussain v. Ashiq Ali 1972 SCMR 50 rel.

Per Jawwad S. Khawaja J, agreeing with Iftikhar Muhammad Chaudhary, C.J.--

(c) Islamic Law---

----Gift---Proof---Scope---Mere proof of execution of gift deed would not fulfil the essentials of a valid gift.?

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

----S. 123---Registration Act (XVI of 1908), Ss.17 & 49---Gift deed, non-registration of---Effect---Where donee claims transfer of immovable property by way of gift through an instrument purporting to transfer rights in praesenti, the instrument was compulsorily registrable under S.17, of the Registration Act, 1908; failing registration, the provisions of S.49 of Registration Act, 1908 would come into play and as a consequence, the document would not operate to create any right, title or interest, whether vested or contingent in the property.

Under Islamic Law a gift may be made by a Muslim donor through a declaration to this effect, followed by acceptance by the donee and delivery of possession. These are the requisite elements of a valid oral gift under Muslim Law. In the present case, however, there were no witnesses of the acceptance of the gift or delivery of possession. The scribe in clear terms, deposed that the plaintiff was not present at the time of the alleged gift. Statements to the same effect had been made by witnesses who expressly deposed that only three persons were present at the time when the gift deed was made. One witness testified that the plaintiff was not present at the time. From the testimony of these witnesses, the only conclusion which could be drawn was that there was no evidence of acceptance of the gift by the plaintiff even if the gift deed was treated as a declaration of gift.?

As to the question of delivery of possession, the evidence once again did not support the plaintiff. Plaintiff had acknowledged in her own statement that her brother, had one room in the disputed house which was under his lock and key and he resided in the said room when he visited the city. One witness had made a similar statement while the other had stated that said brother of plaintiff had retained two rooms in the disputed property. From these statements and in the absence of any explanation for this material circumstance, it was abundantly clear that possession of the disputed property was not delivered to the plaintiff by her father. On the contrary, the most logical inference to be drawn from this circumstance was that the portion of the disputed property (be it two rooms or one) was in the use and occupation of brother of plaintiff even during his father's lifetime and possession was never handed over to the plaintiff. Had it been otherwise, the plaintiff and her witnesses would have explained in their testimony, the events whereby the brother came into possession of such portion of the property after it had been gifted.

?

Where donee claimed transfer of immovable property by way of gift through an instrument purporting" to transfer rights in praesenti, the instrument was compulsorily registrable under S.17 of the Registration Act, 1908; failing registration, the provisions of S.49 of Registration Act, 1908 would come into play and as a consequence, the document would not operate to create any-right, title or interest, whether vested or contingent in the property.?

Mere proof of execution of' gift deed would not fulfil the requirements of a valid gift.?

(e) Islamic Law---

----Gift---Proof---Gift deed challenged by three legal heirs of donor---Filing of consenting written statement by one legal heir/defendant conceding plaintiff's title to suit property based on gift deed---Consenting defendant was neither a witness to gift deed nor was she produced during trial to testify on oath and submit to cross-?examination---Such conceding written statement could not be taken as proof of disputed gift deed.?

Hassan Raza Pasha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioners.

Naeem-ul-Haq Sherazi, Advocate Supreme Court for Respondents Nos. 1 and 2.

Date of hearing: 30th June, 2009.

2010 S C M R 354

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, J

Criminal Miscellaneous Appeal No.31 of 2009

HASNAT AHMAD KHAN---Appellant

Versus

INSTITUTION OFFICER---Respondent

(Against Order of Institution Officer dated 3-11-2009)

Criminal Miscellaneous Appeal No.32 of 2009

Syed SHABBAR RAZA RIZVI---Appellant

Versus

INSTITUTION OFFICER---Respondent

(Against Order of Institution Officer dated 3-11-2009)

Criminal Miscellaneous Nos.31 and 32 of 2009, decided on 20th November, 2009.

(a) Interpretation of statutes---

---Words used in a statute---Scope---No word used by lawmakers is either redundant or can be subtracted, substituted, added or read in a piece of legislation or a document.

(b) Interpretation of statutes---

----Language of statute-Scope-Where some legislation is made and its language is couched in a particular/calculated manner to meet some extraordinary situation, then it is to be read and interpreted in a more careful and pragmatic manner to ensure that its objective and intent is achieved.

(c) Administration of justice---

----Two wrongs or any number of wrongs do not make one right.

(d) Administration of justice---

----Mere mistake in citation of relevant provision of law does not nullify or vitiate an action or proceedings.

(e) Supreme Court Rules, 1980---

----O. III, Rr. 4 & 5---Registrar, Supreme Court of Pakistan, duties of--Delegation of powers---Institution Officer---Scope---Registrar, in terms of O.III, Rr. 4 & 5 of Supreme Courts Rules, 1980, is fully empowered to delegate and assign such work/task among officers of the Court---Institution Officer is officer of Supreme Court in Basic Pay Scale-18, thus powers so exercised by him cannot be objected to.

(f) Words and phrases---

----Entertainability' and 'maintainability'---Connotation---Wordentertainability' derives its source from word entertain', which means amuse, occupy agreeably, receive or treat as guest, give attention or consideration to an idea, feeling or proposal and it originates its source from French wordentretenir' and ultimately from Latin tenere'. meaning therebyto hold'---On the other hand word maintainability' derives its source from wordmaintain' and it means cause to continue, keep up, preserve, support, assert opinion or statement as true, preserve or provide for preservation (building, machine, record etc.) in good repair, give aid to cause or party etc. and it originates its source from old French word maintenir', ultimately from Latin wordmanu tenere' meaning thereby to `hold in hand'.

Concise Oxford Dictionary, 9th Edn. and Legal Terms and Phrases by M. Ilyas Khan, 2006 Edn., at page 327 ref.

(g) Contempt of Court Act (XXIV of 1976)---

----S. 10(2-A)---Contempt of Court Ordinance (IV of 2003), S.20---Constitution of Pakistan (1973), Art.270-AA---Supreme Court Rules, 1980, O.III, Rr.4, 5 & O. V, R.3---Office objection---Entertainability and maintainability of appeal---Scope---Institution Officer of Supreme Court office raised objection to appeal filed by appellant that the same were not entertainable as the law under which the same were filed had been repealed---Plea raised by appellant was that no such objection could be raised by Institution Officer---Validity---Objections as to entertainability were those which the office could raise and could be decided at some appropriate level as per authorization under some administrative authority and subject to further remedy under Supreme Court Rules, 1980---While objections as to maintainability were those which either raised by office or the Court itself, were to be decided exclusively by the Court---Contempt of Court Act, 1976, stood repealed by specific language of S.20 of Contempt of Court Ordinance, 2003, which remained protected by insertion of Art.270-AA in the Constitution, vide Sevnteenth Amendment---No appeal filed under the provisions of repealed enactment could be entertained by office as rightly done so by Institution Officer---Supreme Court declined to interefere in the Office objection which was sustained---Appeal was dismissed.

Dr. A. Basit, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in both Appeals).

Nemo for Respondent.

Date of hearing: 19th November, 2009.

2010 S C M R 361

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

SUO MOTU CASE NO.10 OF 2005, decided on 31st July, 2009.

(Re: Environmental hazard of the proposed New Murree Project)

New Murree Development Authority Act (I of 2004)---

----S. 3---Constitution of Pakistan (1973), Art.184(3)---Suo Motu proceedings---Disbanding of project---Possibility of revival of project---Authorities dissolved New Murree Development Authority and the project was disbanded---Contention of respondents was that as New Murree Development Authority Act, 2004, was still on statute book, therefore, the project could be revived at any time---Validity---In view of reports submitted by Provincial Government including comprehensive assessment of ecological significance report prepared by World Wildlife Fund, there was no probability of revival of project---At the time when project was started, apprehension of environmental experts was that nearly 4000 trees (one per cent of total tree population of the area) could be affected by the project, which in turn, would adversely affect Patriata Forests, . which were responsible for boosting high average of rainfull anomaly in the country as it was situated in catchment area of Simly and Rawal Dams, which provided drinking water to almost half of the population of Rawalpindi and Islamabad--All over the world national parks were developed to preserve flora and fauna facing threat of extinction in. the wake of modern-day-life development projects including mushroom growth of housing projects, recreational facilities etc.---Need was to sensitize general, public to fundamentals of sustainable development so as to achieve goal of healthy environment, not only for present population but also for future generations---Concerned agencies of Government, including Environmental Protection Agencies at different levels had a heavy onus to discharge in such regard---Provincial Government considering environmental hazard posed by New Murree Development Project, had taken decision in disbanding the same---As the project had been disbanded, therefore, there was no threat of environmental hazard in the area on account of the project, thus no further action was called for in the proceedings---Suo motu proceedings were disposed of.

Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan and Khadim Hussain Qasier, Addl. A.G., Punjab.

Syed Mansoor Ali Shah, Advocate Supreme Court On behalf of WWF (NGO).

Iftikhar Ahmed Rao, Secretary, Environment, Asif Khan, Director General Environment, Dr. Shagufta Shah Jehan, Director General, Environment, Nawaz Malik, DPL & EPA and Farooq Hameed Sheikh, Additional Secretary, Toursim.

Shaukat Hayat Director General Environment and Nasim Syed, DPE, PA.

Date of hearing: 31st July, 3009.

2010 S C M R 374

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

MUHAMMAD SALEEM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.593 of 2006, decided on 14th October, 2009.

(Against judgment, dated 16-4-2003 of the High Court of Balochistan, Quetta, passed in Criminal Jail Appeal No.56 of 2000).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Qatl-e­-amd---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence.

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

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence--Incident had taken place at midnight and there was no source of light at that time---Prosecution witnesses in order to overcome the lacuna of absence of light had improved their statements to strengthen the question of identity of accused and fitting in the circumstances of the case---F.I.R. did not disclose the presence of eye-witnesses at the time of occurrence---Ocular testimony was in conflict with medical evidence---Placing reliance on an unreasonable, improbable and implausible statement of a disinterested witness not fitting in the circumstances of the case, would lead to a very dangerous consequence---Statements of eye-witnesses did not come within the established rule of acceptance of evidence and the same could not be relied upon without any corroboration, which was lacking in the case---Accused was given benefit of doubt and acquitted in circumstances.

Haroon v. State 1995 SCMR 1627 and Muhammad Rafique v. State 1977 SCMR 457 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---General rule---Statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable and prudent person---In the presence of said elements the statement of a worst enemy of the accused can be accepted and relied upon without corroboration, but in absence thereof the statement of a pious man can be rejected without second thought---Acid test of veracity of a witness is the inherent merit of his own statement.

Haroon v. State 1995 SCMR 1627 ref.

Malik Muhammad Kabir, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate Supreme Court for the State (on behalf of Government of Balochistan).

Date of hearing: 14th October, 2009.

2010 S C M R 378

[Supreme Court of Pakistan]

Present: Javed Iqbal and Sarmad Jalal Osmany, JJ

Dr. SHAFI-UR-REHMAN AFRIDI----Petitioner

Versus

C.D.A., ISLAMABAD through Chairman and others----Respondents

Civil Petition No.204 of 2009, decided on 2nd April, 2009.

(On appeal from the order, dated 10-2-2009 passed by the Islamabad High Court, Islamabad in Writ Petition No.1664 of 2008).

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

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Constitutional jurisdiction---Terms and conditions of service---Deputation---Repatriation before time---Civil servant went on deputation but he was returned to his parent department before termination of his period of deputation---Civil servant assailed order of termination of deputation before High Court in Constitutional petition, which petition was dismissed---Validity---In absence of any specific provision of law, deputationist could not ask to serve total period of deputation and he could be repatriated being a deputationist by competent authority in the interest of exigency of service as and when so desired and such order of competent authority could not be questioned---Provisions of Civil Servants Act, 1973, and rules made thereunder, as well as Esta Code were silent about the fact that a deputionist must serve his entire period of deputation and such omission seemed deliberate enabling the competent authority to utilize service of an employee in the manner as it might deem fit and proper---Period of deputation could at the best be equated to that of an expression of maximum period which could be curtailed or extended by competent authority and no legal or vested rights were available to a deputationist to serve his entire period of deputation in borrowing department---Question as to whether any valuable right whatsoever was accrued in favour of petitioner as deputationist did not squarely fall within the jurisdictional domain of competent authority and might be agitated subject to all legal exceptions---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Zain Yar Khan v. Chief Engineer 1998 SCMR 2419; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak.) 82; Sheikh Abdul Rahim's case PLD 1964 Lah. 376, Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839; Government of Pakistan v. Prof. M.A. Saeed C.P.No.427-L of 1991 and Prof. M. Ashraf Khan Niazi v. Chairman Board of Governors, Allama Iqbal Medical College 2003 PLC (C.S.) 243 rel.

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

----Art. 199---Constitutional petition---Scope---Vested right---'Aggrieved person'---Deputation of civil servant---Scope---Civil servant has no vested right to complete deputation period and matter relating to terms and conditions of service---Constitutional jurisdiction as conferred upon High Court under Art.199 of the Constitution cannot be invoked---Deputationist cannot be treated as `aggrieved person' provided he was placed in the same grade and status in borrowing cadre which he was enjoying before his status of deputionist---Such civil servant has no vested might to remain on a post as deputionist forever or for a stipulated period as mentioned in notification and can be repatriated at any time.

Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13; PLD 1964 (W.P.) Lah. 376; Abdul Qayyum v. Nasrullah Khan Draishak and others 1975 SCMR 320; Ala-ud-Din Akhtar v. Government of Punjab and another 1982 CLC 515; Ch. Muhammad Bakhsh v. Government of Punjab PLD 1989 Lah. 175; Ayyaz Anjum v. Government of Punjab and others 1997 PLC (C.S.) 123; 1997 SCMR 169; Rafique; Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 PLC (C.S.) 124; 1997 SCMR 170; Abdul Khaliq Anjum v. Secretary Education 1998 PLC (C.S.) 839 and Muhammad Rafique v. Secretary Wafaqi Mohtasib's Secretariat, Islamabad and 2 others 1998 SCMR 2631 rel.

(c) Words and phrases---

----'Legal right'---Defined.

Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618; Anandrao v. Board of Revenue AIR 1965 Madh. Pra.237; Daniel v. State 1968 AIR Mad 349 and Government of East Pakistan v. Federation of Pakistan PLD 1962 Kar. 353 rel.

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

----S. 10---'Deputation'-Connotation---Deputation can be defined as an administrative arrangement between borrowing and lending authorities for utilizing services of an employee in public interest and exigency of services against a particular post---Deputationist cannot remain on deputation for an indefinite period or stipulated period in accordance with his own whims and wishes.

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

Abdul Karim Khan Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 2nd April, 2009.

2010 S C M R 385

[Supreme Court of Pakistan]

Present: Tasadduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

MUHAMMAD RAFIQUE and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.354 to 356 of 2002 and Criminal Petition No.623-L of 2002, decided on 22nd October, 2009.

(Against judgment, dated 11-6-2002 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.750, 751, 752, 753, 832, 972 and Murder Reference No.332-T of 1999).

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

----Ss. 302(b)/149, 324/149, 460/149, 120-B/149 & 148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan (1973), Art.185(3)---Qatl-i-amd, attempt to Qatl-i-amd, criminal breach of trust, criminal conspiracy and terrorism---Leave to appeal was granted to accused, inter alia, to consider whether they were convicted and sentenced by the Trial Court as well as the High Court by following the principles of safe administration of justice or otherwise.

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

----Ss. 302(6)/149, 324/149, 460/149, 120-B/149 & 148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to Qatl-i-­amd, criminal breach of trust, criminal conspiracy and terrorism---Reappraisal of evidence---Complainant had improved his statement from the one made in the F.I.R. by nominating more persons at the trial, though at the initial stage he was not able to recognize them being unknown to him---Complainant had even belied his own statement recorded in his examination-in-chief and had suppressed the truth by telling lie having no sanctity of oath---Improvement made by complainant had created serious doubt about his veracity and credibility---Complainant had made his supplementary statement after due consultation and deliberation to falsely involve the accused---Other eye-witnesses had also improved their statements in court on various material points---Eye-witnesses had no sufficient time to see the faces of eighteen culprits clearly at the relevant time in the given circumstances---Despite more than 150 bullets having been fired by the accused in indiscriminate firing, none of the eye-witnesses had received any fire-arm injury, although other persons present there had been injured---Presence of eye-witnesses at the place of incident, thus, was doubtful and their evidence could not be safely relied upon---Deceased according to his medical condition could not be in a position to have talked, even otherwise his dying declaration was not proved in accordance with law---Evidence of conspiracy had also been improved at the trial---Prosecution had withheld the most important witness of conspiracy presumably with some sinister motive---Recoveries of weapons of offence in view of the report of Forensic Science Laboratory could not hold the prosecution in any manner---Accused were acquitted in circumstances.

Saeed Muhammad Shah v. State 1993 SCMR 550; Khalid laved v. State 2003 SCMR 1419 and Falak Sher v. State 1995 SCMR 1350 ref.

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

----Ss. 302(6)/149, 324/149, 460/149, 120-B/149 & 148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to Qatl-i­-amd, criminal breach of trust, criminal conspiracy and terrorism---Reappraisal of evidence---Improvement made at trial---Effect---Improvement made by a witness on material aspects of the case is not worthy of reliance and evidence of such witness requires corroboration.

Saeed Muhammad Shah v. State 1993 SCMR 550 ref.

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

----Ss. 302(b)/149, 324/149, 460/149, 120-B/149 & 148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to Qatl-i-­amd, criminal breach of trust, criminal conspiracy and terrorism---Reappraisal of evidence---Improvement made in Court---Effect---Witness making improvement in his statement at the trial is wholly unreliable and it is not advisable to place explicit reliance on his evidence.

Khalid Javed v. State 2003 SCMR 1419 ref.

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

----Ss. 302(b)/149, 324/149, 460/149, 120-B/149 & 148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to Qatl-i-­amd, criminal breach of trust, criminal conspiracy and terrorism---Reappraisal of evidence-- Statement of complainant recorded during investigation---Value---Any statement or further statement of the first informant recorded during investigation by police would neither be equated with F.I.R. nor read as part of it and involvement of additional accused in such statement would be fake improvement making a basis for other eye-witnesses as well for false implication.

Falak Sher v. State 1995 SCMR 1350 and Khalid Javed v. State 2003 SCMR 1419 ref.

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

----Ss. -302(b)/149, 324/149, 460/149, 120-B/149 & 148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to Qatl-i-­amd, criminal breach of trust, criminal conspiracy and terrorism--Reappraisal of evidence---Best evidence withheld---Presumption---If any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it.

M. Akram Sheikh, Senior Advocate Supreme Court assisted by Barrister Ahmed Kamran for Appellants (in Criminal Appeal No.354 of 2002).

Munir Ahmed Bhatti, Advocate Supreme Court and Arshad Ali, Advocate-on-Record for Appellants (in Criminal Appeal No.355 of 2002).

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.356 of 2002).

Asghar Khan Rokhri, Advocate Supreme Court for the Complainant and for Petitioner (in Criminal Appeal No.623-L of 2002).

Raja Shahid Mehmood Abbasi, D.P.-G. for the State (in all cases).

Munk Ahmed Bhatti, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents Nos.1 to 3.

Respondents Nos.7 to 10 in Person.

Date of hearing: 22nd October, 2009.

2010 S C M R 401

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza and Mian Shakirullah Jan, JJ

ZAFAR IQBAL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Petition No.469 of 2009, decided on 16th November, 2009.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench Rawalpindi dated 10-6-2009, passed in Criminal Revision No.45 of 2009).

Penal Code (XLV of 1860)---

----S. 336/34---Constitution of Pakistan (1973), Art.185(3)---Itlaf-i-Salahiyyat-i-Udw---Reappraisal of evidence---Sentence, reduction in---Accused along with his co-accused had allegedly thrown acid on the wife of complainant causing burns on her face, neck and left arm, covering 17 per cent of the body area---F.I.R., no doubt, was delayed, but it had not been indicated as to what benefit the prosecution had derived by such delay---Clothes of the injured lady, even if produced, would have at the most proved the same thing which resultantly was given in her medico-legal report---Victim appeared to have changed her clothes due to damage caused to them---Personal appearance of the victim with marks of occurrence on her body was sufficient to connect the accused with the commission of the offence---Conviction of accused was consequently maintained, as disfigurement was enough to constitute offence under S.336, P. P. C. ---However, facial disfigurement was only to the extent of five per cent, which might be a scar of small size---Sentence awarded to accused, therefore, was a bit on the heavier side---Sentence of Arsh of Rs.5,00,000 was reduced to Rs.3,00,000 and imprisonment for seven years was reduced to five .years in circumstances---Petition after conversion into appeal was partially accepted to the extent of sentence alone in the above terms.

Basharat Ullah Khan, Advocate Supreme Court for Petitioner.

Muhammad Siddique Baloch, D.P.-G. for the State.

Date of hearing: 16th November, 2009.

2010 S C M R 403

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Tariq Parvez, JJ

ABDUL GHANI through L.Rs.----Petitioners

Versus

Rana MUHAMMAD BASHIR----Respondent

C.P.L.A. No.151.3 of 2008, decided on 4th November, 2009.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 10-10-2008 passed in R.S.A. No.194 of 1982).

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

----S. 21---Constitution of Pakistan (1973), Art.185(3)---Right of pre­emption---Custom---Proof---Pre-emptors filed suit with regard' to residential house situated in urban area on the basis of custom prevailing in that locality---Suit decreed in favour of pre-emptors. by Trial Court was concurrently dismissed by Lower Appellate Court and High Court---Validity---Lower Appellate Court while passing its judgment against pre-emptors examined all relevant documents on record in prudent and careful manner and came to the conclusion that pre-emptor had failed to prove existence of custom of pre-emption in the locality (Niya Mohallah, Jhelum City) at the time of promulgation of Punjab Pre-emption Act, 1913 and on that account non-suited the pre-emptors---High Court, in exercise of appellate jurisdiction had given due consideration to all submissions of parties and carefully perused documents produced before him by both parties in respect of their respective claim/ defence---High Court rightly dislodged claim of pre-emptors about prevalence of custom of pre-emption in locality in question at the time of introduction of Punjab Pre-emption Act, 1913---Supreme Court declined to interfere in judgment and decree passed by High Court---Leave to appeal was refused.

Lal Chand and others v. Hans Kumar and others AIR 1926 Lah. 108 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Appellant.

Gulzarin Kiani, Advocate Supreme Court for Respondent.

Date of hearing: 4th November, 2009.

2010 S C M R 407

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUHAMMAD ASHRAF and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.297 and 298 of 2003, decided on 30th July, 2009.

(On appeal from the judgments, dated 3-7-2002 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.1033 and 1034 of 2001).

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

----Ss. 302(b), 324, 353, 392, 412 & 34---Constitution of Pakistan (1973), Art.185(3)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-­amd, attempt to "Qatl-i-amd, assault or criminal force, robbery, dishonestly receiving stolen property and terrorism---Leave to appeal was granted by Supreme Court to consider; whether case required further consideration in the interest of justice.

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

----Ss. 302(6), 324, 353, 392, 412 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to Qatl-i-amd, assault or criminal force, robbery, dishonestly receiving stolen property and terrorism---Reappraisal of evidence---Benefit of doubt---Double murder case---Role attributed to accused persons---Distinctive---During bank dacoity two persons were murdered and both the accused were, convicted by Trial Court under S.302 (b) P.P.C. and were sentenced to death, which sentence was maintained by High Court---Validity---Arrest of the accused had been shown on 28-6-2000, which did not find support from evidence which had cone on record, according to which his arrest was made immediately after the encounter---Recovery memo. was indicative of the fact that the pump action gun was recovered from the accused, however, genuineness and authenticity of the memo. was not above board as name of the accused appeared to have been inserted subsequently with different ink---It was stated by one prosecution witness in the evidence that the accused was carrying bag when he entered bank but no evidence had come on record as to whether it was ever utilized or otherwise because another prosecution witness made it. clear that looted amount was put in a bag by co-accused and no mention was made about the bag carried by the accused---Case of the accused was distinguishable from that of his co-accused against whom convincing and forthright evidence had come on record connecting him with commission of alleged offence---In view of serious doubts, benefit of the same was extended to the accused, his case was distinguishable from that of his co-accused---Supreme Court set aside the conviction and sentence awarded to him by the courts below and he was acquitted of the charge---Appeal was allowed.

Basharat v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199 and Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 rel.

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

----Ss. 302(b), 324, 353, 392, 412 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to Qatl-i-amd, assault or criminal force, robbery, dishonestly receiving stolen property and terrorism---Reappraisal of evidence---Double murder case---Role attributed to accused persons---Distinctive---During bank dacoity two persons were murdered and both the accused were convicted by Trial Court under S.302 (b) P.P.C. and were sentenced to death, which sentence was maintained by High Court---Validity---Prosecution established guilt of the accused to the hilt by producing worthy of credence eye account, factum of recovery, lodging of F.I.R. with promptitude, medical evidence, report of Chemical Examiner, report of Serologist and report of Forensic Science Laboratory---Incriminating evidence was scrutinized properly by Trial Court determination whereof had been upheld by High Court which being unexceptionable did not call for any interference---Supreme Court declined to interfere with the conviction and sentence of death awarded to the accused by Trial Court---Appeal was dismissed.

Abdul Rashid Awan, Advocate Supreme Court for Appellants (in both cases).

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

Date of hearing: 29th April, 2009.

2010 S C M R 416

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Muhammad Sair Ali, JJ

ABDUL KARIM through L.Rs.----Petitioners

Versus

FAZAL MUHAMMAD SHAH through L.Rs.----Respondents

Civil Appeal No.664 of 2002, decided on 8th October, 2009.

(On appeal against the judgment, dated 4-7-2001 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur, in Civil Revision No.161-D of 1984).

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

----S. 21---Transfer of Property Act (IV of 1882), Ss.54 & 118---Leave to appeal was granted by Supreme Court to re-examine question of limitation in a suit for pre-emption in backdrop of a transaction of sale effected through mutation and also to consider question of applicability of Ss.54 & 118 of Transfer of Property Act, 1882, in cases involving questions of ownership through mutation in the light of relevant provision-of law and cases decided earlier.

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

----Ss. 3(5) & 21---Transfer of Property Act (IV of 1882), Ss.54 & 118---Equal right of pre-emption---Scope---All the Courts below concurrently decided the matter in favour of pre-emptor---Vendee claimed to have equal right of pre-emption regarding suit-land--Vendee sought reversal of earlier judgments passed by Supreme Court in which it was held that scope of word `sale' defined in S.3(5) of Punjab Pre-emption Act, 1913, was wider than that mentioned in S.54 of Transfer of Property Act, 1882, according to which even those sales which did not satisfy requirements of S.54 of Transfer of Property Act, 1882, could also be pre-empted---Validity---Supreme Court declined to agree with the contention of vendee to re-visit judgments of Supreme Court referred to as correct proposition of law had been laid down---Supreme Court did not find any scope to re-visit earlier judgments or have a view different from the one already taken by Supreme Court--Vendee also raised pleas with regard to waiver and limitation, which the Courts below had decided against vendee and. no question of law regarding such two issues were agitated except on the questions of facts as to proof or disproof and for which Courts below had arrived at a correct conclusion---Supreme Court declined to differ with the view taken by the Courts below---Appeal was dismissed.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Muhammad Fazal v. Kaura through L.Rs. 1999 SCMR 1870; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 Baghdad-ul-Jadid 42 and Pir Bakhsh v. Budhoo PLD 1978 Baghdad-ul-Jadid 86 ref.

Kh. Muhammad Farooq, Senior Advocate Supreme Court and Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Gulzarin Kiyani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No. 1.

Arshad Ali Ch., Advocate-on-Record for Respondent No.2.

Date of hearing: 8th October, 2009.

2010 S C M R 421

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

STATE BANK OF PAKISTAN and others----Petitioners

Versus

Mst. MUMTAZ SULTANA and others-Respondents

Civil Petitions Nos.123-K and 179-K of 2007, decided on 5th August, 2009.

(Against the order dated 14-11-2006 and 26-1-2007 of the High Court of Sindh, passed in C.P. No.D-969 of 2005 and C.P. No.1683 of 2006 respectively).

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

----Arts. 25, 189, 190 & 185(3)---Civil Service---Voluntary Golden Handshake Scheme (VGHS) floated by State Bank of Pakistan through Circular No.7 of 1997, dated 23-10-1997 for getting voluntary retirement by its employees---Exercise of option for retirement by petitioners under such scheme-Non-payment of pensionary/retirement benefits claimed by petitioners on basis of earlier judgments, passed, by Supreme Court in cases filed against the employees/Bank by other employees---High Court accepted petitioners' constitutional petition---Plea of Bank that petitioners were not party to earlier litigation before Supreme Court; and that petitioners had approached High Court with delay---Validity---State Bank being a statutory public body was obliged to have redressed grievances of its employees instead of relegating them to seek remedy from courts---Declaration of Supreme Court in such judgments about legal status of such scheme was not for one segment of employees, but was for one and all falling within its purview---Benefits accruing from legal position stated in such judgments would be given to those, who were not party before Supreme Court---Bank was party to earlier litigation, thus, was obliged to implement such judgments in letter and spirit and apply to all those falling within such Scheme---Petitioners (non-parties) became entitled to benefits the moment Supreme Court in its earlier judgments interpreted such scheme and laid down principles as to its import and efficacy---Bank had not treated petitioners justly, fairly and in consonance with such judgments of Supreme Court---Judgments of Supreme Court, unless reviewed, would have binding force---Such previous judgments of Supreme Court had remained intact---Petitioners could not be knocked out on principles of laches---Impugned order was just and fair---Supreme Court refused to grant leave to appeal in circumstances. ?

Abdul Qadir Ismail and others v. State Bank of Pakistan 2001 SCMR 884; Khyber Zaman and others v. Governor, State Bank of Pakistan, Karachi and others 2005 SCMR 235; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Muhammad Sohail and 2 others v. Government of N.-W.F.P. and others 1996 SCMR 218; Pir Bakhsh and others v. The Chairman, Allotment Committee and Others PLD 1987 SC 145; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 PLC- (C.S.) 368; Zulfiqar-ul-Husnain and 19 others v. Oil and Gas Development Corporation 2003 SCMR 1115; The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; The Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951; Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division and 2 others PLD 1990 SC 692; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; The Principle, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Juma Khan and others v. Mst. Bibi Zenaba and others PLD 2002 SC 823; Sheikh Mahmud Ahmed v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad PLD 1987 SC (AJ&K) 21; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab & others PLD 1991 SC 691; Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 353; Muhammad Yaqoob v. The Chief Settlement and Rehabilitation Commission, Lahore and others 1988 SCMR 563; Civil Appeal No.558 of 2008; Chief Executive, Progressive Paper Limited/The Chairman, National Press Trust, Islamabad v. Syed Asad Abbas and others 2007 PLC (C.S.) 340 and Aamir Ikram and 10 others v. District Health Officer, Vehari and others 2003. PLC (C. S.) 488 ref.

Chairman Pakistan Railways, Lahore v. Muhammad Latif and others 1984 SCMR 286; Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030; Volume-V of Constitution of India by Dr. Durga Das Basu, Eighth Edition p.5958; Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others PLD 1998 SC 64; Messrs Shiv Shanker Dal Mills and others v. State of Haryana and others and others AIR 1980 SC 1037; Judicial Review of Public Actions Vol. II at pp.521 and 533; Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 and Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 rel.

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

----Art. 199---Civil Procedure Code (V of 1908), O.XX, R.1---Constitutional petition decided by High Court after long time of its hearing---Validity---High Court had duly considered all essential aspects of case---Such delay would not have effect on impairing correctness, legality and efficacy of impugned judgment in circumstances.?

Khalid Anwar, Senior Advocate Supreme Court for Petitioners (in both cases).

Fakhruddin G. Ibrahim, Senior Advocate Supreme Court for Respondents Nos.1-43, 92, 101 (in C.P. No.123-K of 2007).

Abdul Raheem Bhatti, Advocate Supreme Court for Respondents Nos.44-91, 102-104 (in C.P. No.123-K of 2007).

Fakharuddin G. Ibrahim, Senior Advocate Supreme Court for Respondents Nos.1-495 (in C.P. No.179-K of 2007).

Abdul Raheem Bhatti, Advocate Supreme Court for Respondents Nos.496-979 (in C.P. No.179-K of 2007).

Date of hearing: 5th August, 2009.

2010 S C M R 431

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Tariq Parvez Khan, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary, Punjab, Lahore----Appellant

Versus

NASEER AHMAD KHAN through L.Rs. and others----Respondents

Civil Appeal No.1382 of 2002, decided on 30th October, 2009.

(On appeal from the judgment, dated 20-3-2001 of the Lahore High Court, Lahore, passed in I.C.A. No.411 of 1980).

Per Tariq Pervez Khan, J, Anwar Zaheer Jamali, J, agreeing.---

(a) West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance (XXV of 1963)---

----Preamble---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; legal status of West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance, 1963; whether the Ordinance, could fall into the category of law; whether issuance of notice was necessary before proceeding in the matter under the Ordinance; and if at all acquisition was valid then as to whether proper compensation as envisaged in law had been paid.

(b) West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance (XXV of 1963)---

---S. 1 & Sched.---Acquisition of property---Effect---Bungalow in question was allotted to respondent but authorities retained possession on the basis of West Pakistan. Acquisition of Property (Residence of Government Officials) Ordinance, 1963---Validity---Ordinance in question was for individual benefit and not for benefit of public at-large and as the same had taken away fundamental rights of citizen of country was unconstitutional and all acts done thereunder were void ab initio---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Nawabzada Muhammad Umar Khan (represented by his legal heirs) and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Pesh. 1 and Pakistan through Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan now represented by Kh. Muhammad Khan of Hoti and others 1992 SCMR 2450 ref.

Per Khilji Arif Hussain, J, agreeing with Tariq Parvez Khan, J.---

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

----Art. 25---Equality---Principle of reasonable classification-Scope--Doctrine-of equality, as contained in Art. 25 of the Constitution, enshrines golden rules of Islam and states that every citizen, no matter how highsoever, must be accorded equal treatment with similarly situated persons---State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class---In fact all legislations involve some kind of classification whereby some people acquire rights or suffer disabilities whereas others do not---What, however, is prohibited under principle of reasonable classification, is legislation favouring some within a class and unduly burdening others---Basic rule for exercise of such discretion and reasonable classification is that all persons placed in similar circumstances must be treated alike and reasonable classification must be based on, reasonable grounds in given set of circumstances but the same in any case must not offend spirit of Art.25 of the Constitution.

(d) Good governance---

----Executive/Legislative are expected to act like a mother, to provide protection to deprived child/class of persons, rather than to those who enjoy power and privileges---Most of the time those to whom power has been entrusted by common man, use the same to provide more privilege to elite without any just classification.

(e) West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance (XXV of 1963)---

----S. 1 & Sched. ---Constitution of Pakistan (1973), Art. 2-A & Chap.I [Arts.8 to 28]--Fundamental rights---Scope---Acquisition of property---Bungalow in question was allotted to respondent but authorities retained possession on the basis of West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance, 1963---Validity---No law could be made against provisions of Constitution and if any law was unreasonable and it offended any of Fundamental Rights, the same could be struck down---Keeping in view the principle laid down by Supreme Court and fundamental rights guaranteed under the Constitution read with Art. 2-A of the Constitution, authorities had failed to give any valid or cogent reasons as to why West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance, 1963, had been issued in respect of a specified property instead of proceedings, if the property was required for public interest under Land Acquisition Act, 1894, and to pay compensation at prevailing market rate to the owner of the property---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and others PLD 1993 SC 341 and Sh. Liaquat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504 rel.

Muhammad Hanif Khattana, Additional Advocate-General, Punjab for Appellant.

Abid Hassan Minto, Senior Advocate Supreme Court for Respondents Nos.3-5.

Date of hearing: 30th October, 2009.

2010 S C M R 442

[Supreme Court of Pakistan]

Present: Javed Iqbal and Mahmood Akhtar Shahid Siddiqui, JJ

CHIEF EXECUTIVE OFFICER, QUETTA ELECTRIC SUPPLY COMPANY (QESCO) and others----Petitioners

Versus

Rana SHAMIM AKHTAR and another----Respondents

Civil Petition No.26 of 2009, decided on 28th July, 2009.

(On appeal from the judgment, dated 3-11-2008 passed by Federal Service Tribunal, Islamabad, in Appeal No.10(Q)CE of 2004).

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

----S. 4---Appeal---Condonation of delay--Service Tribunal, jurisdiction of---Question of condonation of delay squarely falls within jurisdictional domain of Service Tribunal and no restriction has been imposed by any law---Condonation of delay can be granted in suitable cases and question of suitability is to be assessed by Service Tribunal itself.

1986 SCMR 1086; 1976 SCMR 262; 1976 SCMR 268; 1990 SCMR 1513; 1990 SCMR 1519 and 1990 SCMR 1504 rel.

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

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Petition for leave to appeal---Raising of new plea---Scope--Plea raised by authorities was that Service Tribunal did not have any jurisdiction to decide the matter---Validity---Question of jurisdiction was never agitated before Service Tribunal and it was too late to resolve such academic question which otherwise had no substantial bearing on merits of the case.

(c) Pakistan Water And Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---

----R. 5---Constitution of Pakistan (1973), Art.212(3)---Disciplinary proceedings---Major penalty---Proof---Civil servant was compulsorily retired from service on the allegation of taking illegal gratification, which order was set aside by Service Tribunal---Validity---No incriminating evidence or material could be pointed Pout on the basis whereof major penalty of compulsory retirement could be justified---Heinousness or gravity of accusation carried a little importance unless substantiated by cogent and concrete evidence which was lacking---All proceedings had been conducted in. haphazard, careless and highly irresponsible manner which spoke of mala fides and depicted inefficiency and lack of knowledge of concerned authorities regarding service laws---No infirmity or illegality could be pointed out in judgment passed by Service Tribunal, which being unexceptionable did not warrant interference---Leave to appeal was refused.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioners.

Haider Hussain, Advocate Supreme Court along with M.S. Khattak, Advocate-on-Record for Respondent No.1.

Date of hearing: 28th July, 2009.

2010 S C M R 446

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Khilji Arif Hussain, JJ

PURDIL KHAN----Appellant

Versus

AZIZ-UR-REHMAN and others----Respondents

Civil Appeals Nos.753 and 754 of 2008, decided on 17th November, 2009.

(On appeal from the judgments, dated 7-2-2008 and 4-6-2008 of the Peshawar High Court, Peshawar passed in Writ Petition No.2016 of 2007 and Civil Revision No.8 of 2008).

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

----S. 13--- Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether there was no evidence to show `relationship of landlord and tenant' between the parties and that tenant was in occupation of suit property being father of alleged vendor and not as tenant.

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

----S. 13---Limitation Act (IX of 1908), S.5---Ejectment of tenant---Time-barred appeal---Condonation of delay---Review of judgment passed by High Court---Eviction order passed by Rent Controller was maintained by Lower Appellate Court as well by High Court in exercise of constitutional jurisdiction---Tenant instead of approaching Supreme Court preferred review of the order passed by High Court which review was also dismissed---Validity---Petition for have to appeal against judgment was time-barred and Supreme Court declined to condone the delay---If appeal was not maintainable against original order then no relief could be given by examining the order which had been passed in review proceedings---Supreme Court declined to interfere in eviction order passed by the Courts below---Appeal was dismissed.

Ghulam Nabi and 5 others v. Rashid, PLD 2000 SC 63, Sarwar Khan v. Mehran Bibi and others 2005 SCMR 521; Abdul Majid and other v. Mst. Zubeda Begum and others 2007 SCMR 866; Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another PLD 1980 SC 198 and Pir Muhammad v. Education Town Co-operative Society Ltd., Lahore. 1982 SCMR 995 ref.

Abdul Samad Khan Zaida, Advocate Supreme Court for Appellant.

Gul Zarin Kiani, Senior Advocate Supreme Court for Respondents.

2010 SCMR 450

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

Mrs. RASHIDA ASIF----Petitioner

Versus

Mrs. AASIA GONDAL and others----Respondents

Civil Petition No.1206 of 2008, decided on 19th June, 2009.

(On appeal from the judgment, dated 30-6-2008 passed by the Federal Service Tribunal, Islamabad in Appeal No.43(R)(C.S.) of 2005).

Civil Servants Act (LXXI of 1973)---

-----S. 8---Constitution of Pakistan (1973), Art.212(3)---Seniority---Determination---Grievance of petitioner was that respondent was junior to her but she had been placed senior to her in seniority list---Validity---In provisional seniority list and final seniority list, petitioner was shown as junior to respondent and that position was never objected or challenged---Petitioner got up from deep slumber after so many years for the reason best known to her---Supreme Court found it too late to reverse existing seniority position which was determined in year, 1995---It was not discretion of competent authority to change seniority position assigned to a government employee without any lawful justification---Petitioner failed to raise substantial question of law of public importance and in absence whereof leave to appeal might not be granted---No infirmity or illegality could be pointed out in the judgment passed by Service Tribunal and the same being unexceptionable and well based did not warrant interference---Leave to appeal was refused.

WAPDA v. Abbas Ali Malano 2004 PLC (C.S.) 1; Ikram Bari and 524 others v. National Bank of Pakistan through President and other 2005 SCMR 100; Bashir Ahmad v. Mahmud Ali Khan PLD 1960 SC 195; Syed Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Water and Power Development Authority v. Abdur Rashid Dar 1990 SCMR 1513; Sher Bahadar v. Government N.-W.F.P. 1990 SCMR 1519; Nazakat Ali v. WAPDA 2004 SCMR 145; Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; M.A. Majid v. Government of Pakistan 1976 SCMR 311; Director Food v. Rashid Ahmad 1990 SCMR 1446; 1990 SCMR 560; Province of Punjab through A. I. G. P. , Lahore v. Rao Abdul Jalil Khan 1989 SCMR 330; Sattan v. Rani 1989 SCMR 1677; Government of Punjab v. Khalid Hussain Gill 1989 SCMR 748; Abdul Razaq v. Province of Punjab . 1980 SCMR 876; Muhammad Yaqub Sheikh v. Government of the Punjab through Secretary, Local Government and Rural Development 1987 SCMR 1354 and Babar Gul v. Sohail Ahmad Sheikh 2002 SCMR 581 rel.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Qari Abdul Rashid, Advocate Supreme Court for Respondent No.1.

Safdar Shah (I-Officer) for Respondents Nos.2 to 4.

Date of hearing: 19th June, 2009.

2010 S C M R 464

[Supreme Court of Pakistan]

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

REHMAT ALI through L.Rs. and others----Appellants

Versus

ALLAH DITTA and others----Respondents

Civil Appeals Nos.1857 and 1883 of 2001, decided on 2nd December, 2009.

(On appeal from judgment of Lahore High Court, Lahore, dated 10-4-2001 passed in Civil Revision No.578 of 1987).

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

----S. 21---Qanun-e-Shahadat (10 of 1984), Arts.30, 90 & 100---Right of pre-emption---Collateral---Proof---Presumptions---Applicability---Suit was filed by pre-emptor on the basis of his being collateral of vendee and co-sharer in joint holding---Trial Court decreed the suit in favour of pre-emptor but Lower Appellate Court did not held him collateral and modified the decree only to the extent of his share in joint holding---High Court in exercise of revisional jurisdiction restored the judgment and decree passed by Trial Court---Vendees claimed that father of pre-emptor was an adopted son, therefore, he did not have superior right of pre-emption over the suit-land---Validity---Certified copy of adoption deed regarding father of pre-emptor was admissible under 5.90 of Qanun-e-Shahadat, 1984---Presumption of genuineness was attached to the document and as it was a public document more than 80 years old hence second presumption was available to it under Art.100 of Qanun-e-Shahadat, 1984---Such presumptions though rebuttable, had not only been rebutted but contents thereof were rather been admitted---Relationship between vendor and pre-emptor was fully proved through oral as well as documentary evidence---Pre-emptor being collateral was rightly granted decree of entire land through pre-emption and evidence appreciated by High Court was perfectly correct--Appeal was dismissed.

Farrukh Jabin v. Maqbool Hussain PLD 2004 SC 449 ref.

Khuda Bakhsh v. Amir 1980 SCMR 760 rel.

Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court for Appellants.

Rana Nasrullah Khan, Advocate Supreme Court for Respondent No.1.

Date of hearing: 2nd December, 2009.

2010 S C M R 468

[Supreme Court of Pakistan]

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

DIRECTOR-GENERAL OF CIVIL AVIATION AUTHORITY, KARACHI----Petitioner

Versus

ABDUL TOUHEED KHAN----Respondent

Civil Petition No.1467 of 2008, decided on 5th December, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 19---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Pensionary benefits, claim for---Respondent originally was appointed as Assistant Accounts Officer in the office of Auditor General of Pakistan; he proceeded on leave preparatory to retirement for a period of one year---Before expiry of said leave, he was re-employed by the Civil Aviation Authority as Deputy Manager (Accounts) and after service of about 10 years, he finally was retired---Respondent filed constitutional petition before High Court claiming his pensionary benefits for his said service of about 10 years, which constitutional petition was allowed and authorities were directed to calculate pensionary benefits of respondent/employee in accordance with rules---Authorities filed petition for leave to appeal against order of the High Court and contended that constitutional petition filed by the employee suffered from gross laches as he came forward with the delay of seven years after receiving his gratuity---Validity---Respondent/employee joined the service of petitioner while he was still in the service of Auditor General of Pakistan and his leave preparatory to retirement had not yet expired---In view of the length of his service for about 10 years, High Court was justified on equitable grounds to direct petitioner/authority to grant pensionary benefits to the respondent---Appeal of employee before Service Tribunal remained pending for considerable period, when same stood abated--Question of laches, in circumstances, would not arise in the case---Impugned judgment was just and fair to which no exception could be taken.

Mobeen-us-Salam's case PLD 2006 SC 602 ref.

Ms. Naheeda Mehboob Elahi, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Abdul Rehman Abbasi, Senior Legal Officer (North), CAA, Islamabad.

2010 S C M R 470

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan; Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

JAMEEL AHMAD PARACHA-Appellant

Versus

Mst. SHIREEN GUL----Respondent

Civil Appeal No.1742 of 2003, decided on 18th November, 2009.

(On appeal from the judgment of the High Court of Balochistan dated 3-7-2003 passed in R.F.A. No.49 of 1998).

Specific Relief Act (I of 1877)---

----S. 12---Specific performance of agreement to sell---Authority to sell---Scope---House in question was owned by defendant lady and her husband, on the basis of a power of attorney, executed agreement to sell in favour of plaintiff---Defendant did not own the agreement to sell and claimed that the power of attorney was not executed to sell the house, rather it was executed before construction of house for obtaining loan from House Building Finance Corporation---Judgment and decree passed by Trial Court in favour of plaintiff was set aside by High Court and suit was dismissed---Validity---General power of attorney executed by defendant was with regard to plot and not house, as immediately after execution of power of attorney defendant had mortgaged the plot with House Building Finance Corporation and obtained loan---Agreement to sell entered into between plaintiff and husband of defendant was with regard to house and not a plot---General power of attorney neither made mention of the house in question, nor the house was constructed till then---Agreement to sell showed that husband of defendant had executed the same on his own behalf and not on behalf of his wife---Husband of defendant was neither impleaded as party by plaintiff during trial, nor any effort was made by plaintiff to have him summoned as a witness---Findings recorded by High Court neither reflected any misreading nor non-reading of evidence led by parties and the same was unexceptionable---Appeal was dismissed.

K.S. Vidyanadam and others v. Variavan AIR 1997 SC 1751; Chand Rani v. Kamal Rani (1993) 1 Supreme Court Cases 519; Muhammad Sharif v. Mst. Faji and others 1996 CLC 883; Malik Ellahi Bux v. Muhammad Aslam 2002 CLC 433; Muhammad Sharif v. Mst. Faji and another 1998 SCMR 2485; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 and Bootay Khan v. Muhammad Rafiq PLD 2003 SC 318 ref.

Tariq Mahmood, Advocate Supreme Court and Raja Abdul Rehman, Advocate Supreme Court for Appellant.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondent.

Date of hearing: 18th November, 2009.

2010 S C M R 473

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Khilji Arif Hussain, JJ

SHAMSHAD----Appellant

Versus

ARIF ASHRAF KHAN and others----Respondents

Civil Appeal No.939 of 2009, decided on 19th November, 2009.

(On appeal from the judgment, dated 18-6-2009 of the Peshawar High Court, Peshawar passed in Writ Petition No.1953 of 2006).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Subletting---Leave to appeal was granted by Supreme Court to consider; whether sufficient evidence was available on record to prove "subletting".

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

----Art. 70---Oral evidence cannot be given preference over documentary evidence.

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

----S. 13---Ejectment application---Pleadings---Landlord himself issued notice in respect of premises which was in dispute, therefore, he was bound by pleadings and documentary evidence which had been produced by him.

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

----S. 13---Ejectment of tenant---Subletting of premises---Proof---Pleadings and evidence---Contradictions---Name of sub-tenant mentioned in notice issued by landlord was different than that mentioned in ejectment petition---Effect---There was contradiction in ejectment application itself as well as in oral evidence when landlord entered into witness box orally stating that premises had not been sub-let to the person nominated in ejectment application, therefore, landlord failed to establish issues of subletting against tenant---Supreme Court set aside eviction order and dismissed ejectment application---Appeal was allowed.

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

Muhammad Ullah, Advocate Supreme Court for Respondents.

2010 S C M R 478

[Supreme Court of Pakistan]

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

MUHAMMAD ASHRAF JAVAID----Appellant

Versus

ALLAH RAKHA----Respondent

Civil Appeals Nos.2201 and 2202 of 2006, decided on 19th November, 2009.

(On appeal against the judgment, dated 15-9-2006 passed by Lahore High Court, Lahore in S.A.O. Nos.67 and 82 of 2006).

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

----S. 13---Contract Act (IX of 1872), S.28---Ejectment petition---Bona fide personal need of landlord, ground of---Tenancy agreement containing a stipulation to the effect that landlord on receipt of Rs.80,000 would not eject tenant on ground of personal need--Ejectment petition accepted by Rent Controller and first Appellate Court was dismissed by High Court on the ground that such amount paid by. tenant to landlord was in consideration of such stipulation---Plea of landlord that such stipulation debarring him from seeking eviction of tenant was in violation of statutory provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and Contract Act, 1872, thus, impugned order of High Court was not sustainable---Validity---Tenant had not controverted such plea of landlord---Rent Controller and first Appellate Court on basis of evidence on record had found personal need as bona fide---High Court had not attended to such aspect of the case---Supreme Court set aside order of High Court and restored order of ejectment concurrently passed by Rent Controller and first appellate Court while directing landlord to refund such amount to the tenant.

Ch. Muhammad Anwar Khan, Advocate-on-Record for Appellant.

Sardar Liaqat Ali, Advocate Supreme Court for Respondents.

Date of hearing: 19th November, 2009.

2010 S C M R 480

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Muhammad Sair Ali, JJ

Mst. ASMAT-UN-NISA and another----Appellants

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Industries and others----Respondents

Civil Appeal No.19 of 2001 in Civil Petition No.1191 of 1998, decided on 22nd October, 2009.

(On appeal from the judgment, dated 13-7-1998 passed by the Peshawar High Court, Peshawar in Writ Petition No.190 of 1996).

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

----Ss. 4 & 16---Land Acquisition Circular No. 54, dated 6-12-1912, issued by Government of North-West Frontier Province, para. No. 66---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether by virtue of para. 66 of Land Acquisition Circular No.54, dated 6-12-1912, issued by Government of North-West Frontier Province, the said government was under obligation to return the land to owners / appellants as it was no longer required for the purpose for which it had been acquired earlier; whether by virtue of Notification dated, 16-101995, government of North-West Frontier Province had abandoned the object for which land had been acquired, the appellants were entitled to restitution of land under Land Acquisition Circular No.54; whether the stand of Government of North-West Frontier Province in its parawise comments as well as in written statement was vague inasmuch they had proposed to utilize the land for "some other public purpose" and was not entertainable on two fold grounds that firstly it was patentely mala fide as the property had been given over to North-West Frontier Province Police Welfare Trust and secondly when purpose was sought to be altered it could only be done by a separate Notification with reference to law laid down by superior Courts; and whether object of para 66 (1) of Land Acquisition Circular No. 54, dated 6-12-1912, issued by Government of North-West Frontier Province, would be defeated because classification/character of agricultural and pastoral land had since undergone changes by afflux of time for its utilization for the purpose for which it was acquired.?

Yaqoob Khan and 41 others v. Member (Colonies) Board of Revenue, Punjab Wand others PLD 1979 Lah. 882 and Union of India New Delhi and others v. Nand Kishore and another AIR 1982 Delhi 462 rel.

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

----Ss. 4 & 16---Land Acquisition Circular No. 54, dated 6-12-1912, issued by Government of North-West Frontier Province, para. No. 66---Financial Commissioner's Order No.28, para.100---Land Administration Manual, paras.493 & 495---Land acquisition---Change of purpose---Disposal of land---Scope---Appellants were previous owners of land from whom it was acquired in public interest for establishing a bus stand---Grievance of appellants was that as the purpose for which land was acquired, had been abandoned therefore, it should have been returned to them---Validity---On completion of acquisition process, acquired land absolutely vested in Provincial Government who in bona fide exercise of discretion could put the same to any other "public purpose" on abandonment or frustration or change or non-requirement of the land for the original purpose of acquisition---Acquired land was originally utilized for the object of acquisition and was used for a period of forty years---On dis-investment of transport company, Provincial Government through a notification decided to utilize the acquired land for constructing and setting up a hospital, which hospital was providing health facilities to general public---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.?

Yaqoob Khan and, 41 others v. Member (Colonies) Board of Revenue, Punjab and others PLD 1979 Lah. 882; Union of India New Delhi and others v. Nand Kishore and another AIR 1982 Delhi 462; Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others PLD 1993 SC 455; Government of Sindh and others v. Mst. Sirtaj Bibi and another PLD 2001 Kara 442; Shahbaz and another v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 5 others 1992 MLD 2121; Muhammad Aslam Khan and others v. Province of Punjab and others PLD 1979 Lah. 843 and Syed Nazar Abbas Naqvi v. Commissioner, Sargodha Division, Sargodha and 29 others 1996 SCMR 1277 ref.

Kh. Muhammad Farooq, Advocate Supreme Court for Appellants.??????

M. Bilal, Senior Advocate Supreme Court for Respondents Nos.1 and 2.

Respondent No.3: Ex parte.

Date of hearing: 22nd October, 2009.

2010 S C M R 491

[Supreme Court of Pakistan]

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

J EHANGIR----Petitioner

Versus

AMINULLAH and others----Respondents

Criminal Petition No.18/Q of 2006, decided on 18th May, 2009.

(On appeal from the judgment, dated 4-5-2006 passed by the High Court of Balochistan, Quetta in Criminal Acquittal No.380 of 2005).

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

---S. 324/34---Attempt to Qatl-i-amd---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Appraisal of evidence---Complaint lodged by the complainant petitioner was not only an afterthought, but also appeared to be a counter blast against the F.I.R. already lodged by the accused against him---Statement of the brother of the complainant, recorded as a court-witness, did not appeal to logic and reason and was vague and sketchy, on which no conviction could be based---Statements of "prosecution witnesses recorded after an inordinate delay of two months had suggested about, deliberation, concoction and false involvement of the accused---Order of acquittal would only warrant interference, if the same was absurd, baseless, perverse, arbitrary or capricious---Conclusion of acquittal drawn by the Courts below was strictly in accordance with law, settled norms of justice and well entrenched principles qua appreciation of evidence--Impugned judgment suffering from no error of law, did not call for any interference---Leave to appeal was declined to complainant accordingly.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Muhammad Iqbal v. Sanaullah PLD 1997 SC 569; State v. Farman Hussain PLD 1995 SC 1; Ahmad v. Crown PLD 1951 FC 107; Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426; State v. Bashir PLD 1997 SC 408; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, Shahzado v. State PLD 1977 SC 413; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261 ref.

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

----S. 417---Appeal against acquittal---Interference by appellate Court---Principles detailed.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Muhammad Iqbal v. Sanaullah PLD 1997 SC 569, State v. Farman Hussain PLD 1995 SC 1; Ahmad v. Crown PLD 1951 FC 107; Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426; State v. Bashir PLD 1997 SC 408; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Shahzado v. State PLD 1977 SC 413; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261 ref.

Kamran Murtaza, Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2010 S C M R 501

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

Dr. PAKIZA RAZA HYDER----Petitioner

Versus

MINISTRY OF HEALTH and others----Respondent

Civil Petition No.148 of 2009, decided on 28th September, 2009.

(On appeal against the order, dated 6-1-2009 passed by Federal Service Tribunal, Islamabad in Appeal No.911 (R)(C.S.) of 2007).

Civil Servants Act (LXXI of 1973)---

----S. 9---Civil Procedure Code (V of 1908), O.II, R.2---Constitution of Pakistan (1973), Art.212(3)---Promotion---Relief, omitting of---Effect---Raising of new plea---Petitioner was aggrieved of promotion of respondent and filed appeal before Service Tribunal which appeal was dismissed---Validity---Question of promotion was a matter of determination by relevant authorities / forum / Board on the basis of eligibility of aspirants---Supreme Court abstained from expressing an opinion on suitability of any of the contending parties---Eligibility of respondent for promotion was not subject matter of petitioner's appeal before Service Tribunal, therefore, the same could not be a subject of adjudgment by Supreme Court---Having forsaken her challenge to promotion of respondent and thus his qualification and senior thereof, the petitioner was precluded from challenging promotion of respondent because criterion for eligibility to both BS-18 and 19 was the same---Petitioner in her appeal omitted to sue respondent on the ground of his, purported lack of qualification/eligibility to promotion wherefore she was debarred from suing respondent on the basis of omitted claim under the provisions of O.II, R.2, C.P.C.---Indolence of petitioner and purported unawareness of comparative qualification of respondent did not constitute sufficient ground for earning condonation of delay from Service Tribunal whose exercise of discretion against petitioner was unexceptionable---Leave to appeal was refused.

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

Shah Khawar, D.A.-G. with Abid Hussain Channa, S.O. for Respondent No. l.

Shoaib Shaheen, Advocate Supreme Court for Respondent No.2.

Fawad Saleh, Advocate Supreme Court for Respondent No.3.

Date of hearing: 28th September, 2009.

2010 S C M R 505

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Sardar Muhammad Aslam, JJ

AKBAR KHAN and others----Appellants

Versus

SHER AFZAL and others----Respondents

Civil Appeals Nos.1584 and 1585 of 2003, decided on 2nd July, 2009.

(On appeal from the judgments, dated 24-2-2003 of the Peshawar High Court, Peshawar passed in Civil Revisions Nos.15 of 1996 and 28 of 1996).

North-West Frontier Province Pre-emption Act (XIV of 1950)---

----Ss. 12, 16 & 17(2)---Pre-emption suit---Superior right of pre-emption claimed by plaintiff on basis of contiguity---Acquisition of proprietary rights by vendee-defendant in suit land through inheritance mutation attested much before passing of pre-emption decree in favour of plaintiff---Effect---Plaintiff had to show a superior right of pre-emption at the time of sale, institution of suit and passing of decree--Vendee after acquisition of such rights remained owner in suit land, thus, he had a superior right of pre-emption as against plaintiff---Suit was dismissed in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Muhammad Akram and 3 other v. Muhammad Rashid and 2 others PLD 1994 SC 848 and Ahmad Khan v. Sattar Din PLD 1981 SC 148 ref.

Mir Adam Khan, Advocate Supreme Court for Appellants (in both cases).

Mian Younas Shah, Senior Advocate Supreme Court for Respondents (in both cases).

L.Rs. of Respondent No.4 (in Civil Appeal No.1585 of 2003): Ex parte.

Date of hearing: 2nd July, 2009.

2010 S C M R 511

[Supreme Court of Pakistan]

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

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

Versus

Dr. REHANA HAMEED and others----Respondents

Civil Appeal No.969 of 2009, decided on 29th September, 2009.

(On appeal against the judgment, dated 19-3-2009 passed by the Federal Service Tribunal, Islamabad in Appeal No.815(R)(C.S.) of 2008).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether policy of government was in conflict with fundamental rights or ultra vires or mala fides; whether grant of higher pay scale on the basis of meritorious service was part of terms and conditions of service of a civil servant; whether it was not for the competent authority to determine eligibility of civil servant for grant of higher grade; and whether Service Tribunal was competent to set aside policy framed by government.

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

----S. 24-A---Speaking order---Scope---Public functionaries are obliged to redress grievances of citizens/their subordinates with reasons.

Messrs Airport Services' case 1998 SCMR 2268 rel.

(c) Good governance---

----Public functionaries, duties of---Scope---Pakistan is founded on the basis of religion of Islam, efforts should be made to bring out an egalitarian society based on Islamic concept of fair play and social justice---Public functionaries are expected to act fairly and justly in manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise.

Muhammad Zafar Abbasi's case 2003 PLC (C.S.) 503 rel.

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

----Art. 212(3)---Jurisdiction of Supreme Court---Substituting finding of Service Tribunal---Scope---Supreme Court, while exercising power under Art.212(3) of the Constitution, cannot substitute its own finding in place of finding of Service Tribunal.

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

----S. 9---Promotion---Vested right---Policy framed by government, setting aside of---Jurisdiction of Service Tribunal---Scope---Respondent was not recommended by Central Selection Board for her promotion but Service Tribunal allowed the appeal---Validity---No employee had vested right in promotion but where rules, regulations and policy had been framed for appointment or promotion for mala fide reasons or due to arbitrary act of competent authority, aggrieved person was entitled to challenge the same---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Appeal was dismissed.

I.A. Sherwani's case 1991 SCMR 1041; Messrs Airport Services' case 1998 SCMR 2268; Muhammad Zafar Abbasi's case 2003 PLC (C.S.) 503 and Muhammad Inshaullah's case PLD 1988 SC 155 ref.

Shah Khawar, Deputy Attorney-General and M. S. Khattak, Advocate-on-Record for Appellants.

Afnan Karim Kundi, Advocate Supreme Court for Respondent No.1.

Date of hearing: 29th September, 2009.

2010 S C M R 517

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Anwar Zaheer Jamali, JJ

FLYING BOARD AND PAPER PRODUCTS LTD. and others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Cabinet Division and others----Respondents

Civil Petitions Nos.810 to 813, 829 to 839, 875 to 882, 822-L, 958-L, 959-L, 943 to 953, 1035 to 1037, 928, 936, 1173-L, 1174-L and 1633 to 1638 of 2009, decided on 22nd October; 2009.

(On appeals against the judgments, dated 17-4-2009, 3-2-2009, 12-6-2009 and 30-7-2009 passed by Lahore High Court, Lahore in Writ Petitions Nos.13348, 14349, 14350, 14351, 4948, 10681, 10604, 10605, 14158 of 2008, 1108 of 2009, 14336 of 2008, 1235 of 2009, 13878, 13498,13497, 16631 of 2008, 1950 of 2009, 14337, 10897, 13878 of 2008, 545 of 2009, 14613, 14044 of 2008, 1227 of 2009, 15700 of 2008, 102,. 10955, 1235, 546 of 2009, 13878 of 2008, 3341, 14158 of 2009, 18052, 10901; 14044, 14335, 13879, 13876, 13877 of 2008, 11800 of 2009, 15125, 14044 of 2008, 14378 of 2009, 14145 of 2008 and 15410 of 2009).

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 46 & 47---Constitution of Pakistan (1973), Art. 185 (3)---Electricity tariff---Determination---Petitioner companies assailed tariff before High Court on the ground that there were procedural defects in determination of tariff by National Electric Power Regulatory Authority (NEPRA)---High Court in exercise of constitutional jurisdiction, remanded the matter to NEPRA for fresh determination in view of guidelines and observations made in the judgment---Plea raised by petitioner companies was that their challenge was not only to Distribution Margin but entire tariff did not seem to be correct as if proceeding before NEPRA was taken in different stages, one in respect of Generation Companies (GENCOs), the other in respect of National Transmission and Dispatch Company (NTDC) and the third for Distribution Companies (DISCOs) and petitioners had participated only at last stage of determination of tariff regarding DISCOS---Validity---Even conduct of petitioner companies spoke also against them, as they had not made the former i.e. GENCOs and NTDC, parties in the case who were necessary parties---If petitioners had challenged determination of tariff in respect of two stages regarding GENCOs and NTDC they would have done so (made them as party) in their constitutional petition or before Supreme Court---Conclusion of judgment passed by High Court was remand of case to NEPRA, so petitioners were at liberty to take such objection before NEPRA if such a challenge was available to them at that stage and NEPRA would consider their objection and could dispose it of according to law/ rules---Notification issued by Federal Government in respect of tariff was based on determination of tariff by NEPRA along with subsidy component, if NEPRA arrived at a conclusion different than the one already arrived at, the Federal Government would be free to issue fresh notification and till then the same would remain in field---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.?

Aitizaz Ahsan, Senior Advocate Supreme Court along with Barrister Gohar Ali, Advocate and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps. Nos.810 to 813 of 2009).

Syed Ali Zafar, Advocate Supreme Court for Petitioners (in C.Ps,. Nos.829 to 839, 875 to 882, 943 to 953, 1035 to 1037, 1073-L to 1074-L and 1633 to 1638 of 2009).

Saud Nasrullah Cheema, Advocate Supreme Court for Petitioners (in C.P. No.822-L of 2009).

Omar Alvi, Advocate Supreme Court for Petitioners (in C.Ps. Nos.958-L and 959 of 2009).

Mahmood A. Sheikh, Advocate-on-Record for Petitioners (in C.Ps. Nos.928 and 936 of 2009).

Anwar Kamal, Advocate .Supreme Court for respondents (in all connected petitions).

Syed Ishtiaq Haider, Advocate Supreme Court for Respondents (in C.P. No.810 of 2009).

Ch. Muhammad Akram, Advocate Supreme Court/Advocate-on-Record (only for NEPRA in other connected cases).

Sayyed Mubashar Masood, Legal Director, along with Abid Latif Lodhi, Finance Director for LESCO.

M. Siddique Malik, Manager (Legal) for GEPCO.

Ch. Abdul Razzaq, Manager (Legal) along with Rana Javed, Manager (Commercial) for FESCO.

Dates of hearing: 3rd and 4th September, 2009.

2010 S C M R 522

[Supreme Court of Pakistan]

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

MUHAMMAD ASLAM KHAN----Appellant

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through Chairman----Respondent

Civil Appeal No.526 of 2002, decided on 16th October, 2009.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 2-6-1999, passed in Appeal No.1041(R) of 1998).

Civil Service Regulations---

----Regln. 423---Pensionary benefits---Length of service---Determination---Civil servant was retired from service after completing 31 years, 11 months and 14 days but he was given pension for 31 years---Plea raised by civil servant was that he was entitled to pensionary benefits for 32 years of service, as only 17 days were short towards completion of 32 years---Validity---Shortage of period, under Regln.423(1) of Civil Service Regulations, not exceeding six months had become automatically condoned---Shortage exceeding six months was also condonable by competent authority, provided the conditions under Regln.423(2) of Civil Service Regulations were fulfilled---Shortage of 17 days' relating to civil servant should not have been disputed by authorities, therefore, Supreme Court allowed the appeal with costs throughout---Appeal was allowed.

Muhammad Hayat v. Federation of Pakistan 1997 PLJ (TR) 298 and Federation of Pakistan v. Muhammad Hayat (CP No.2179/1997) ref.

Appellant in person.

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

Date of hearing: 16th October, 2009.

2010 S C M R 524

[Supreme Court of Pakistan]

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

STANDARD CONSTRUCTION COMPANY (PVT.) LIMITED----Petitioner

Versus

PAKISTAN through Secretary M/o Communications and others----Respondents

Civil Petition No.1668 of 2009, decided on 22nd October, 2009.

(On appeal against the order, dated 1-9-2009 passed by High Court of Sindh, Karachi in Suit No.857 of 2008).

(a) Bank guarantee---

----Contents of bank guarantee---Scope---Bank guarantee, generally contains in its contents whereby guarantor undertakes to agree irrevocably and unconditionally to payment to beneficiary---Amount mentioned in bank guarantee and demand of beneficiary is deemed to be conclusive evidence and beneficiary is considered as sole judge to do so regarding failure of principal to have not complied with or fulfilled requirements of brief/agreement---There are certain guarantees, which in their contents without mentioning the demand as conclusive evidence or beneficiary to be the sole judge, prescribe certain eventualities on happening whereof beneficiary is entitled to demand encashment of guarantee.

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

----Ss. 20 & 41---Arbitration---Referring dispute to arbitrator---Stay of encashing of bank guarantees---Dispute between the parties was with regard to encashing of three bank guarantees provided by appellant to respondent authorities---High Court while referring matter to arbitrator, had gone deep and discussed minutely various clauses, terms and conditions of agreement and other relevant documents and their effect for arriving at its conclusion---Appellant sought stay against encashing of three bank guarantees---Validity---After referring dispute to arbitrator it was not appropriate and was uncalled for High Court to discuss the agreement as such findings of High Court would influence proceedings before Arbitrator---Supreme Court, while disproving such observations of High Court, declined to either affirm or not affirm findings of High Court with comments on merits of the case---Without interpreting terms of agreement, definite conclusion would not be possible as to whether conditions as required for encashing of bank guarantees had been fulfilled or not and by not doing so Supreme Court left it to arbitrator to deal with question of encashment of two guarantees relating to Toll collection according to law while making an award---Supreme Court partly allowed the appeal by holding that authorities were entitled to encashment of pre-bid bank guarantee and restrained them from encashment of other two bank guarantees till the finding given by arbitrator in that respect---Appeal was allowed.

Bilal A. Khawaja, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Barrister Ahmed Ata-ur-Rehman, Advocate Supreme Court along with Col. Muhammad Azeem, Departmental Representative, N.H.A. for Respondents Nos.2 and 3.

Date of hearing: 1st October, 2009.

2010 S C M R 532

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

MUHAMMAD SALEEM----Petitioner

Versus

CHIEF EXECUTIVE OFFICER and another----Respondents

Civil Petition No.1585 of 2008, decided on 7th October, 2009.

(On appeal from the judgment, dated 30-9-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No.454(R)CE of 2005).

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

----Ss. 3 & 5---Compulsory retirement---Failure to hold formal inquiry---Scope---Civil servant was issued show cause notice on allegation of acquiring assets beyond known sources of income and he was compulsorily retired from service without holding formal inquiry---Validity---Allegations levelled against civil servant were of the nature which required production of evidence to prove the same---Competent authority, under S. 5 (1) and (4) of Removal from Service (Special Powers) Ordinance, 2000, had to first decide whether to appoint Inquiry Officer or Inquiry Committee to scrutinize conduct of a person in government service or a person in corporation service who was alleged to have committed any acts or omissions specified in S. 3 of Removal from Service (Special Powers) Ordinance, 2000, or that there was no need of holding any inquiry as it was in possession of sufficient documentary evidence against accused to proceed without holding any inquiry---Civil servant had a right to know nature of documentary evidence in possession of competent authority on the basis of which competent authority decided not to hold inquiry anti did not provide opportunity to him, to put his defence---Supreme Court set aside order and judgment passed by authorities and Service Tribunal respectively---Appeal was allowed.

Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez 2009 SCMR 329; Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and another 2009 SCMR 339; Zarar Khan v. Government of Sindh and others PLD 1980 SC 310 and Ghulam Hadi Baloch v. Collector of Customs (Preventive) and others 1987 SCMR 602 ref.

Mian Mehmood Hussain, Advocate Supreme Court for Petitioner.

Aurangzeb Mirza, Advocate Supreme Court for Respondent No.1.

Date of hearing: 7th October, 2009.

2010 S C M R 537

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

MUHAMMAD BAKHSH and another----Petitioners

Versus

SAGHEER AHMAD and another----Respondents

Civil Petition No.2570-L of 2004, decided on 13th July, 2009.

(On appeal from the judgment, dated 24-5-2004 of the Lahore High Court, Lahore passed in Civil Revision No.2332 of 2001).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Specific performance of agreement to sell---Oral sale---New plea, raising of---Concurrent findings of fact by courts below---Suit for specific performance of agreement to sell was decreed by Trial Court, in favour of plaintiff---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court as well as by High Court---Plea raised by defendant was that terms of alleged oral sale agreement including its existence could not be proved by plaintiff and evidence on record was misconstrued and mis-appraised by the courts below---Validity---Ground regarding terms of oral sale agreement was not urged during the course of arguments before High Court---In absence of any evidence to substantiate the same, Supreme Court declined to interfere in concurrent findings of facts recorded by courts below and maintained judgments and decrees passed by the courts below---Judgment passed by High Court did not suffer from any infirmity or impropriety factual or legal---Leave to appeal was refused.

Qazi Misba-ul-Hassan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 13th July, 2009.

2010 S C M R 539

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

KHAN GUL KHAN and others----Appellants

Versus

DARAZ KHAN----Respondent

Civil Appeal No.114-L of 2009, heard on 23rd November, 2009.

(Against the order dated 10-10-2008 passed by Lahore High Court, Lahore in Civil Revision No.328 of 2007).

Per Ch. Ijaz Ahmed, J.---

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

----S. 20---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider true scope and application of provisions of S.20 of Punjab Pre-emption Act, 1991, and as to whether property being subject matter of pre-emption suit was to be divided between pre-emptors and vendees on prorate basis, if all of them were found to have equal right of pre-emption.

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

----Preamble---Law of pre-emption---Purpose, object and concept of law of pre-emption is that a stranger should not be allowed to purchase property in preference to persons who have first right of purchase---Purpose and object of enacting Punjab Pre-emption Act, 1991, is to bring provisions of law in conformity with injunctions of Islam.

Islamic Law in Theory and Practice by Aziz Ahmed and Amir Hasan's case ILR 1897 All. 466 rel.

(c) Interpretation of statutes---

----Preamble of an enactment---Scope---Preamble is key to understand the Act which is always used to understand and interpret provisions of the Act keeping in view the preamble of the statute.

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

----Preamble---Right of pre-emption---Enforceability---Right of pre-emption is a defeasible right as a matter of fact keeping in view the ground realities and historical perspective of law of pre-emption, such right could be defeated by permissible means---Provisions of Pre-emption Act are to be construed strictly and conservatively because law of pre-emption constitutes a draw back on principles of freedom of contract and security of title and as such its provision should be construed and applied strictly against discretion conferred upon the Court by any provision of law and should be exercised with the greatest care---As such it is fundamental distinction of pre-emption law with artier laws of land, it is a special law having specific features, therefore, its provisions by all means to be construed strictly in terms of object of framing pre-emption law as depicted from preamble of Punjab Pre-emption Act, 1991.

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

----O. XX, R. 4(2)---Decision---Basic ingredients.

Following are three basic ingredients of every decision:---

(a) Finding of fact both direct and inferential.

(b) Statement of principles of law applicable to legal terms disclosed by facts.

(c) Judgment passed on combined effect of above ingredients.

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

----Art. 189---Decision of Supreme Court---Binding effect---Scope---Pre-conditions.

Decision of Supreme Court is binding only when it fulfils following three conditions:---

(i) It decides question of law.

(ii) It is passed upon basis of law.

(iii) It enunciates principle of law.

(g) Precedent---

----Mere mentioning precedents in judgment without adverting to ratio laid down in cited judgment raises questions than resolving the same.

(h) Interpretation of statutes---

----Duty of Court---Scope---In the garb of interpretation, Courts have no power to add or omit even a single word from the provisions of law.

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

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

----S. 20---Equal right of pre-emption---Distribution of share---Suit was contested by one pre-emptor and two vendees and all the Courts below concurrently decided to distribute suit property between both the parties equally---Plea raised by vendees was that property should be distributed on prorate basis among all three persons having equal right of pre­emption---Validity---Parties were entitled to share the property on the principle of per capita---Revisional judgment of High Court and judgments and decrees passed by Lower Appellate Court and Trial Court were set aside to the extent of mode, manner and measure of sharing suit property by the parties under S.20 of Punjab Pre-emption Act, 1991---Parties were entitled to share suit property per capita; each would get 1/3rd share---Two vendees and one pre-emptor would each be entitled to 1/3rd share of the property on payment of 1/3rd sale price by everyone---Appeal was allowed.

Muhammad Khan's case 2008 YLR 296; Muhammad Hayat's case 2002 MLD 938; Feroze Khan's case 1992 MLD 1570; Sar Anjam's case 1999 SCMR 2167; Kala Khan's case 1993 SCMR 543; Abdul Hakeem's case 2003 SCMR 1501; Haqnawaz's case 2006 YLR 3024; Muhammad Ali's case 2005 CLC 603; Muhammad Yousaf's case 2002 YLR 3764; Ghulam Muhammad's case 2004 YLR 1260; Muhammad Arif Khan's case 2006 MLD 625 at 628; Abdul Latif's case 2006 MLD 735; Muhammad Nawaz's case 2005 YLR 197; Haq Nawaz's case 2006 YLR 3024; Ladhi Bibi's case AIR (36) 1949 Assam 81 and Muhammad Tariq's case 2009 SCMR 240 ref.

Amir Hasan's case ILR 1897 All. 466 rel.

Per Muhammad Sair Ali, J., agreeing with Ch. Ijaz Ahmed, J---

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

----S.20---Word "equally"---Connotation---Pre-emptors and vendees---Shares---Suit was contested by one pre-emptor and two vendees and all the Courts below concurrently decided to distribute suit property equally between both the parties---Plea raised by vendees was that property should be distributed on prorate basis among all three persons having equal right of pre-emption---Validity---Vendees when fictionally interposed as pre-emptors must possess the same class and equal right of pre-emption that pre-emptor possessed to bring pre-emption suit---Word equal or "equally" as employed in S.20 of Punjab Pre-emption Act, 1991, when literally examined dispelled the impression of meaning two even halves at all time and in all cases; it also meant the same in size, amount or value or alike, uniform on the same level of efficiency, worth, value, amount or rights---Vendees and pre-emptors were entitled to share property equally prorate on per capita basis---Appeal was allowed.

Chambers 21st Century Dictionary; Blacks Law Dictionary 6th Edition; Ladhi Bibi and others v. Masaddar Ali Chaudhry and others AIR (36) 1949 Assam 81; Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570; Muhammad Hayat v. Faiz Ali and another 2002 MLD 938; Ghulam Haider v. Ahmad Khan and another 2004 YLR 1260; Muhammad Nawaz v. Ahmad Khan and another 2005 YLR 197; Abdul Latif v. Shaukat Ali and 2 others 2006 MLD 735; Haq Nawaz and another v. Bashir Ahmad and 2 other 2006 YLR 3024; Muhammad Khan and 9 others v. Ameer Khan Gaddi Balloch 2008 YLR 296; Sar Anjam v. Abdul Raziq 1999 SCMR 2167; Shakirullah v. Aminullah C.P. No. 573 of 1997; Kala Khan v. Ayyub Khan 1993 SCMR 543; Sarfraz Khan v. Niamatullah Khan 2002 SCMR 751; Abdul Hakeem and others v. Khalid Wazir 2003 SCMR 1501 and Muhammad Tariq and 4 others v. Asif Javed and another 2009 SCMR 240 rel.

A.G. Tariq Ch., Advocate Supreme Court for Appellants.

Malik Munsif Awan, Advocate Supreme Court for Respondent.

Date of hearing: 23rd November, 2009.

2010 SCMR 563

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Raja Fayyaz Ahmad and Jawwad S. Khawaja, JJ

NADEEM AHMED, Advocate and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Constitutional Petitions Nos.2, 3 and 4 of 2010, decided on 13th February 2010.

Constitution of Pakistan (1973)---

----Art. 177---Appointment of Supreme Court Judge---Provision of Art.177 of the Constitution provides that a Judge of the Supreme Court shall be appointed by the President after consultation with the Chief Justice of Pakistan---No such consultation by the President having taken place with the Chief Justice of Pakistan regarding the appointment of Chief Justice of a High Court as a Judge of the Supreme Court, notification of appointment of such Judge in the Supreme Court, prima facie, appeared to have been issued in violation of the provisions of the Constitution, particularly, Art.177, hence the same was suspended by the Supreme Court subject to notice to the Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs Division, the Attorney-General for Pakistan and the Advocate-General of the concerned Province---Office of the Chief Justice of the said High Court would not fall vacant, therefore, the notification regarding the appointment of Acting Chief Justice of the High Court, could not be acted upon and same was also suspended, he will also continue to perform his duties as a Judge of the High Court until further orders.

Nemo for Petitioners.

Nemo for Respondents.

Qazi Sajid Mehmood, Additional Registrar on Court's call.

2010 S C M R 566

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui, and Rahmat Hussain Jafferi, JJ

ROHTAS KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Appeal No.461 of 2006, decided on 9th October 2009.

(Against judgment, dated 30-4-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.53/J of 2002).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Qatl-i­-amd---Leave to appeal was granted to accused by Supreme Court to reappraise the entire evidence for safe administration of criminal justice.

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

----S. 302(b)/34---Qatl-i-amd---Appreciation of evidence---Interested witness---Corroboration---Rule of corroboration in case of interested witnesses is not an inflexible rule---Such rule can be dispensed with in appropriate cases---In order to bring the case out of the scope of general rule` the evidence. of an interested witness is to be scrutinized very carefully---Firstly truthfulness of such witness is to be tested on the touchstone of the inherit merit of his statement, and secondly, if his statement is found reasonable, probable or plausible, and reliable then the same can be accepted and relied upon without corroboration, even if he is a worst enemy of the, accused.

Niaz v. State PLD 1960 SC 387; Nazir v. State 1962 SC 269; Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37; Abdul Rashid v. Umid Ali PLD SC 227; Muhammad Ali v. State 1985 SCMR 203; Haroon v. State 1995 SCMR 1627 and Muhammad Rafique v. State 1977 SCMR 457 ref.

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

----S. 302(b)/34---Qatl-i-amd---Appraisal of evidence---Story of following the deceased by eye-witnesses just before the occurrence did not appeal to common sense, being against their natural conduct---Despite indiscriminate firing of about 100 rounds at the place of incident and deceased having sustained 26 fire-arm injuries, no empties of kalashnikov were found on the spot---Motive was against the complainant, but accused did not cause any injury to him despite being within the range of his firing---Ocular witnesses, thus, did not seem to be present at the place of occurrence---Ocular testimony having inherent defects was neither plausible nor reasonable and did not fall within any exception, where the statements of interested witnesses could be accepted without corroboration, which was even lacking in the case---Abscondence of accused though being relevant could not be used as a corroborative piece of evidence, which had to be read along with substantive piece of evidence and not in isolation---Substantive evidence of ocular account had already been disbelieved---Accused was acquitted in circumstances.

Niaz v. State PLD 1960 SC 387; Nazir v. State 1962 SC 269; Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37; Abdul Rashid v. Umid Ali PLD SC 227; Muhammad Ali v. State 1985 SCMR 203; Haroon v. State 1995 SCMR 1627; Muhammad Rafique v. State 1977 SCMR 457; Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182 ref.

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

----S. 302(b)/34--- Qatl-i-amd--- Appreciation of evidence---Abscondence---Principles---Abscondence of accused, no doubt, is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence.

Asadullah v. Muhammad Ali PLD 1971 SC 541 and Muhammad Arshad v. Qasim Ali 1992 SCMR 814 ref.

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

----S. 302(b)/34---Qatl-i-amd--- Appreciation of evidence---Abscondence---Abscondence of accused is only a suspicious circumstance.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 and Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632 ref.

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

----S. 302(b)/34---Qatl-i-amd---Appreciation of evidence---Abscondence---Abscondence of accused itself has no value in the absence of any other evidence.

Muhammad Khan v. State 1999 SCMR 1220 ref.

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

----S. 302(b)/34--- Qatl-i-amd--- Appreciation of evidence---Abscondence---Principle---Abscondence of accused can never remedy the defects in the prosecution case.

Gul Khan v. State 1999 SCMR 304 ref.

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

----S. 302(b)/34--- -Qatl-i-amd--- Appreciation of evidence----Abscondence---Conviction cannot be sustained on abscondence of accused alone.

Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182 ref.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant.

Raja Shahid Mehmood Abbasi, D.P.-G. for the State.

Date of hearing: 9th October, 2009.

2010 S C M R 572

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

KAZIM RAZA----Appellant

Versus

Mst. MOHSANA ZAREEN and another----Respondents

Civil Appeal No.216 of 2002, decided on 16th November, 2009.

(On appeal against the judgment, dated 13-6-2002 passed by Lahore High Court, Lahore in R.F.A. No.94 of 1998).

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Agreement to sell---Proof---Misreading and non-reading of evidence---Judgment and decree passed by Trial Court in favour of plaintiff was set aside by High Court---Validity---Plaintiff failed to show misreading and non-reading of evidence, overlooking of record or misapplication of law by High Court in pronouncing judgment---High Court thoroughly, painstakingly and analytically examined entire evidence including agreement to sell as well as power of attorney, for recording their 'well-reasoned judgment---Plaintiff was unable to answer that his witnesses appearing in Court failed to depose as to execution/signing of agreement by female owners---Witnesses of plaintiff in their examination-in-chief deposed that the agreement was signed and thumb-marked by attorney himself---Supreme Court did not find any ground nor any reason to interfere in judgment passed by High Court---Appeal was dismissed.

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

Raja Abdur Rehman, Advocate Supreme Court for Respondent No.1.

Respondent No.2: Ex parte.

Date of hearing: 16th November, 2009.

2010 S C M R 576

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

DADIO ----Petitioner

Versus

SOBHARO and another----Respondents

Cr.P.L.A. No.108-K of 2009, decided on 29th December, 2009.

(On appeal from order of High Court of Sindh Bench at Sukkur, dated 16-10-2009 passed in Criminal Miscellaneous Application No.183 of 2008).

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

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---High Court had earlier granted bail to accused only on medical grounds on the basis of the medical certificate issued by Medical Officer of the concerned prison---After more than one year when the accused appeared before High Court in pursuance of an application for cancellation of his bail, he was found by High Court to be physically fit having been completely recovered from all the injuries and ailments as shown in the said medical certificate, which fact was neither disputed nor denied by the accused---Earlier medical report, thus, by that time had lost its efficacy---Where accused was involved or stated to be involved in the commission of some heinous crime, not entitled to grant of bail on merits or had not been admitted to bail on merits, but on medical grounds, such special concession granted to him would vanish the moment he was found to have recovered from such injury or ailment, which formed the basis for grant of bail to him on medical ground and it was found that his judicial custody would be no more detrimental to his health---Grant of bail to such an accused was not a State bounty in perpetuity, which once granted could not be withdrawn or cancelled---Accused after his treatment and recovery had lost the sight to avail the concession of bail on medical ground anymore, as the purpose of grant of bail to him had been achieved after his recovery---Observations made by High Court were quite relevant and justified for passing the impugned order cancelling the bail allowed to accused---Petition was dismissed and leave refused accordingly.

Muhammad Yousafullah Khan v. State PLD 1995 SC 58 distinguished.

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

----S. 497(5)---Cancellation of bail granted on medical ground---Principles---Grant of bail to an accused on medical ground is not a State bounty in perpetuity, which once granted cannot be withdrawn or cancelled.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 29th December, 2009.

2010 SCMR 580

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

THE STATE/ANTI-NARCOTIC through Director-General Petitioner

Versus

RAFIQ AHMAD CHANNA----Respondent

Criminal Petition No.117-K of 2009, decided on 24th December, 2009.

(Against the order, dated 24-9-2009 of the High Court of Sindh at Karachi passed in Criminal Bail Application No.1053 of 2009).

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

----S. 497---Bail---Points to be considered by Court while dealing with bail application enumerated.

While granting bail or otherwise, the Court is required to consider the following facts:---

(a) Whether there is or is not a reasonable ground for believing that the accused has committed the offence with which he is charged?

(b) Whether the case requires further enquiry into the guilt of commission of non-bailable offence within the scope of section 497(2), Cr.P.C.?

(c) Whether the accused is minor, woman, sick or infirm person?

(d) The nature and gravity of the charge.

(e) The severity or degree of the punishment which might follow in the circumstances of the case on conviction.

(f) The danger of the accused absconding if he is released on bail.

(g) The danger of witnesses being tampered with.

(h) the danger of the alleged offence being continued or repeated.

(i) The character, the means and standing of the accused.

(j) An opportunity to the accused to prepare his defence.

(k) The accused has already been in jail for a considerable period and the trial is not likely to conclude in near future at least.

(l) Bail should never be withheld as a punishment.

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

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Constitution of Pakistan (1973), Art.185(3)---Possession of narcotic---Cancellation of bail, refusal of---Cocaine weighing only 120 grams having been secured from the possession of accused, the offence would fall under S.9(b) of the Control of Narcotic Substances Act, 1997, entailing -maximum imprisonment for seven years---No Chemical Analyzer's report about the recovered material was available---Neither any allegation of abscondence was made against accused, nor any such plea had been taken in the petition---All the witnesses being officials, prima facie no question of tampering with the evidence would arise---Accused was not stated to be previously involved in a similar offence---High Court had justly and fairly exercised its discretion in granting bail to accused---Impugned order had neither violated any principle for grant of bail, nor the same was patently illegal or erroneous resulting in miscarriage of justice---Petition for cancellation of bail was dismissed and leave to appeal was refused accordingly.?

State v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. State 2007 SCMR 482 ref.

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

----S. 497(5)---Cancellation of bail---Principles---Considerations for cancellation of bail are different from those for grant of bail---Bail can be cancelled, if the order on the face of it is perverse, patently illegal, erroneous, factually incorrect resulting in miscarriage of justice or has been passed in violation of the principles for grant of bail.?

State v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. State 2007 SCMR 482 ref.

Syed Ashfaq Hussain Rizvi, Advocate Supreme Court and Abdul Saeed Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2010 S C M R 583

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

ABDUL KHALID and others----Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

Civil Petition No.32-K of 2010, decided on 4th February, 2010.

(On appeal from the order, dated 11-11-2000 of the High Court Sindh, Circuit Bench, Hyderabad passed in C.P. No.D-174 of 2009).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Impugned order of the High Court had been passed by consent of the parties---Counsel of the petitioners, however, stated that the petitioners or their counsel in the High Court had not consented to the sail order and also referred to an affidavit of the said counsel---Validity,---Held, two Judges of the High Court having noted in the impugned judgment that consent was given by or on behalf of the petitioners, contention of petitioners was repelled---Appeal to Supreme Court was not competent, in circumstances.

Abdul Latif Ansari, Advocate Supreme Court and Qadir Jatoi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2010 S C M R 584

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi JJ

RAHAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.296 of 2007, decided on 19th October, 2009.

(Against judgment, dated 17-5-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No.83/J of 2003).

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

----S. 364---Constitution of Pakistan (1973), Art.185(3)---Kidnapping or abducting in order to murder---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence.

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

----S. 364---Kidnapping or abducting in order to murder---Appraisal of evidence---Silence of the prosecution witness for one month about the abduction of his deceased parents within sight by the accused and his companions armed with deadly weapons, did not appeal to common sense, particularly in the absence of any plausible explanation in this regard---Inordinate delay in reporting the matter to police and recording the statements of witnesses by police had adversely affected the prosecution case---Statement of the said witness was not reliable and after excluding the same no other evidence connecting the accused with the commission of the offence was available on record---Accused was acquitted in circumstances.

Muhammad Sadiq v. The State PLD 1960 SC 223; Sahib Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. State 1984 SCMR 930 and Syed Muhammad Shah v. State 1993 SCMR 550 ref.

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

----S. 161---Delayed examination of witnesses by police---Effect---Delay in recording the statement of a witness by police without furnishing any plausible explanation, is fatal to prosecution case and the statement of such witness is not to be relied upon.

Muhammad Sadiq v. The State PLD 1960 SC 223; Sahib Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. State 1984 SCMR 930 and Syed Muhammad Shah v. State 1993 SCMR 550 ref.

Nemo for Appellant.

Shahid Mehmood Abbasi, D.P.-G. for the State.

Date of hearing: 19th October, 2009.

2010 SCMR 589

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

ABDUL KAREEM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.441 of 2008 out of Criminal Petition No.412 of 2008, decided on 28th October, 2009.

(Against the judgment, dated 25-9-2008 of the Lahore High Court, Lahore passed in Criminal Appeal No.1215 of 2002 and Murder Reference No.514 of 2002).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Qatl-i­-amd---Leave to appeal was granted to accused to consider as to whether defence plea raised by him was properly appreciated by the courts below or not, and to reappriase the evidence in detail for safe administration of justice.

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

----S. 302(b)---Qatl-i-amd---Appraisal of evidence---Ocular evidence was unanimous on all material aspects of the case---Incident having taken place at a public place, eye-witnesses could not be termed as chance witnesses---Accused had admitted the time and place of the incident and even causing fire-arm injury to the deceased in his self-defence, but he did not lead any evidence to prove his assertion---Cross-examination of prosecution witnesses also did not disclose or even suggest the defence plea taken by the accused---Court, thus could presume non-existence of such plea---Entire statement of accused could have been accepted only if prosecution evidence had not supported the case, but when prosecution evidence was relied upon then incriminating part of the statement of accused could be taken into consideration---Mere filing of one case against the deceased, which was the motive of the present case, did not label him a person of questionable character---No mitigating circumstance was available in favour of accused---Conviction and sentence of accused were upheld in circumstances.

Mushtaq Ahmad v. The State PLD 2004 SC 150 distinguished.

Muhammad Ashraf and another v. The State PLD 1977 SC 538; Ameer Umer v. The State 1976 SCMR 338; Muhammad Rafiq v. The State 1971 SCMR 378 and Rehmuddin v. The State 1973 SCMR 327 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Principles---Accused involved in a case is presumed to be innocent unless proved guilty.

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

----S. 302(b)---Qatl-i-amd---Sentence---Interference by Supreme Court---Supreme Court normally does not interfere with the sentence, as it is the function of the Trial Court and the High Court to determine the same.

Amir Umer v. The State 1976 SCMR 338; Muhammad Rafiq v. The State 1971 SCMR 378 and Rehmuddin v. The State 1973 SCMR 327 ref.

Mazhar Iqbal Sindu, Advocate Supreme Court for Appellant.

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

Date of hearing: 28th October, 2009.

2010 S C M R 594

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

KHALID RASHID----Petitioner

Versus

KAMRAN LASHARI, Chairman, C.D.A., Islamabad and others----Respondents

Criminal Original Petition No.32 of 2008 in Civil Appeal No.1637 of 2007, decided on 3rd June, 2009.

(Petition under Articles 204 and 187 of Constitution of Islamic Republic of Pakistan, 1973, read with Contempt of Court Ordinance, 2003 and Order XXVII, Rule 1 of the Supreme Court Rules, 1980 read with all enabling provision for contempt of Court).

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

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---Initiation of contempt proceedings---Principles: (1) Proceedings cannot be initiated at the desire of a litigant party, (ii) Court has to be satisfied as to whether act of respondents comes within the mischief of law or otherwise amounts to interference with the administration of justice, (iii) Very purpose of initiating contempt proceedings is always vindication of dignity and honour of the Court or that of the justice of administration, (iv) Once undertaking is given to the Court by a party or on behalf of his counsel it becomes bound to fulfil the same on the ground that the undertaking has exactly the same force as an order made or an injunction issued by a Court, (v) Supreme Court is not bound to start contempt proceedings unless it is shown that the alleged contemner had acted recklessly and with the open motive to show his disrespect to the authority of the Court, (vi) Supreme Court instead of starting such proceedings would prefer to adopt the principle of "Afwoo" as recognized by Muslim Jurisprudence and (vii) Contempt is always between the contemnor and the Court.?

Mst. Kishwar Sultan Jehan Begum's case PLD 1976 Lah.580; `Khyber Zaman's case 2005 SCMR 235; Shah Alam Khan's case PLD 1993 SC 297; Sarfraz Hussain's case 2005 YLR 337 and Tarit Kanti Biswas' case AIR 1918 Cal. 988 ref.

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

----Arts. 4, 189 & 190---Decisions of Supreme Court binding on the other Courts---All executive and judicial authorities to act in aid of Supreme Court---Judgment of Supreme Court, and a right declared thereunder, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will.?

Ch. Zahur Illahi's case PLD 1975 SC 383; Karachi Development Authority's case PLD 1969 SC 430 and Capt.(Retd.) Abdul Qayyum's case PLD 1992 SC 184 ref.

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

----Art. 204---Contempt of Court---Change of master plan or creation of plots in open area---In view of the concise statement filed by the respondents and the decision of the C.D.A. Board, no case for taking action against the respondents for contempt of Court was made out because the main civil appeal had not been decided on merits, but the same was decided on the undertaking of the respondents as was depicted from the order of Supreme Court and the decision of the Board of C.D.A. did not seem to be violative of the said order of Supreme Court---Petition for contempt of Court was dismissed accordingly.?

Moulvi Iqbal Haider's case PLD 2006 SC 394; Mst. Kishwar Sultan Jehan Begum's case PLD 1976 Lah.580; Khyber Zaman's case 2005 SCMR 235; Shah Alam Khan's case PLD 1993 SC 297; Sarfraz Hussain's case 2005 YLR 337; Tarit Kanti Biswas' case AIR 1918 Cal. 988 Ch. Zahur Illahi's case PLD 1975 SC 383; Karachi Development Authority's case PLD 1969 SC 430; Capt.(Retd.) Abdul Qayyum's case PLD 1992 SC 184; Messrs Nishat Mills Limited v. Government of Pakistan and others 1989 CLC 1692; Imtiaz Ali's case 2001 SCMR 832; Tariq Aziz's case 2000 SCMR 751; Safia Bibi's case PLD 1982 SC 247 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioner.

Afnan Karim Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S Khattak, Advocate-on-Record for Applicants (in Criminal Miscellaneous Application No.432 of 2008).

2010 S C M R 605

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

KAZI TALMIZ alias TANI----Petitioner

Versus

Syed MAQBOOL MUHAMMAD SHAH and others----Respondents

Criminal Petition No.90-K of 2007, decided on 1st December, 2009.

(Against order, dated 25-5-2007 of the High Court of Sindh Circuit Hyderabad, passed in Criminal Bail Application No.S-267 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324---Qatl-i-amd----Cancellation of bail---Curing of ailment---Effect---Complainant sought cancellation of bail on the ground that when accused was granted bail, he had already recovered from the ailment complained of---Validity---Tests conducted on the advice of Medical Board showed no abnormality and all tests appeared to be normal---Medical Board deferred its final opinion for the reason that angiogram was not available, for which reason case had already lingered on---Opinion could be based on the tests conducted on the advice of the Board which were normal---Medical Board had already expressed its observation and there was no reason for further delay in the matter---When bail application was granted accused had overcome whatever problem he was suffering from, therefore, there was no justification for further allowing the accused to remain on bail---Supreme Court set aside the bail granting order and directed the accused to surrender before Trial Court---Appeal was allowed.

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

M. Ashraf Leghari, Advocate Supreme Court for Respondent No.1.

Zafar Ahmed Khan, Addl. P.-G. for the State.

2010 S C M R 608

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

SANAULLAH KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.1116/L of 2009, decided on 23rd November, 2009.

(On appeal from the order of the Lahore High Court, Lahore, dated 27-5-2009 passed in C.M. No.1 of 2008 in Criminal Appeal No.1180 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.316---Suspension of sentence---Qatl Shibh-i-amd---Proof---Accused was convicted under S.316, P.P.C. and sentenced to 20 years of imprisonment by Trial Court and High Court declined to suspend his sentence---Validity---From the testimony of doctor it was not proved either that injuries were caused by accused or that injuries caused death of' deceased---Even other parts of evidence on record and contents of F.I.R. show that deceased did not die of injuries caused by accused---Complainant stated that his father was being taken to Civil Hospital when he fell while outside the gate of hospital and died---Such statement in F.I.R. coupled with evidence given by doctor suggested that accused might not be liable for punishment under S.316, P.P.C.---Accused had been behind bars for more than 3½ years and his conviction under S.316, P.P.C. was prima facie questionable, therefore, his continued incarceration based on such conviction was likely to lead to injustice---Supreme Court suspended sentence of accused and released him on bail---Appeal was allowed.

A.D. Nasim, Advocate Supreme Court for Petitioner.

Amanat Ali Bukhari, Dy.P.-G., Punjab for the State.

2010 S C M R 611

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

LUQMAN ALI----Petitioner

Versus

HAZARO and another----Respondents

Criminal Petition No.104-K of 2009, decided on 29th December, 2009.

(Against order, dated 10-9-2009 of the High Court of Sindh Bench at Sukkur, passed in Criminal Revision No.79 of 2009).

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

----Ss. 497, 498 & 204---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd---Petition for leave to appeal---High Court had, vide impugned order, released the accused on bail in the sum of Rs.1,00,000 without granting him bail, as required under the law and directed him to approach the Trial Court and submit surety---Accused appeared before the Trial Court and offered surety---After surrender of the accused Trial Court remanded him to judicial custody on the ground that he could not be released without granting him bail on an application filed by him, as prima facie he had committed the murder with active role of firing at the deceased---Police after having found the accused innocent in investigation had put his name in Column No.2 of the Challan, but Trial Court had joined him as an accused and this order having not been challenged had attained finality---Accused, therefore, was involved in a case punishable with death or imprisonment for life---On appearance of the accused in pursuance of process issued under S.204, Cr.P.C., either through summons or warrants or bailable warrants or on his own, in a non-bailable offence, the provisions of S.497, Cr.P.C. would be attracted and he would only be released by Court after allowing the bail application moved by him---If no such application was moved by the accused or no bail was granted to him by any competent Court either under S.497, Cr.P.C. or under S.498, Cr.P.C., then he would be required to be remanded to judicial custody, till the passing of a proper order either by the Trial Court or by a superior Court---Sessions Court had passed a well-reasoned order based upon correct interpretation of the relevant provisions of law---Impugned order of High Court releasing the accused without the grant of bail, was unwarranted, illegal and against the provisions of Ss.497 & 498, Cr.P.C. and the same was set aside accordingly---Accused was directed to appear before Trial Court immediately and move a bail application for decision in accordance with law on merits---Petition for leave to appeal was converted into appeal and allowed accordingly.

Noor Nabi v. State 2005 PCr.LJ 505 ref.

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

----S. 204--Issue of process---Purpose and procedure.

The purpose of section 204, Cr.P.C. is to procure the attendance of the accused' by issuing the required process. If the accused is in custody then such process can be issued by issuing production order to the jail authorities and if the accused is absconding then the process can be issued in the shape of warrants. If the accused is absconding or released then the name of accused of both the categories are required to be mentioned in Column No.2 of the Challan with red and blue ink, respectively. Therefore, the process is to be issued to the accused, who is absconding and similar process can also be issued to an accused whose name is in Column No.2 with blue ink after he is made an accused in the case. Warrants are addressed to the Police Officer to arrest the person and produce him before the Court on a particular date. Thereafter the said warrants become ineffective unless extended or re-issued by the Court. Similar is the case with the bailable warrants under which the Police Officer is required not to arrest the accused if he furnishes surety before him for his appearance before the Court on the date mentioned in the warrants. After appearance of the said accused before the Court the said order ceases to exist unless the accused is released in accordance with law.

Muhammad Ilyas Khan, Advocate Supreme Court for Petitioner.

Respondent No.1 in person.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for the State.

Date of hearing: 29th December, 2009.

2010 S C M R 618

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Raja Fayyaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

HAMIDA BEGUM----Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF EDUCATION through Secretary and others----Respondents

Civil Petition No.1587 of 2008, decided on 4th August, 2009.

(On appeal from the judgment, dated 11-11-2008 of the Islamabad High Court, Islamabad passed in I.C.A. No.93 of 2004).

Civil Servants Act (LXXI of 1973)---

----S. 10---Constitution of Pakistan (1973), Arts.185(3)---Deputation---Repatriation to parent department---Civil servant was employee of Provincial Government and was on deputation in Education Department, Government of Pakistan---Authorities issued order for repatriation of civil servant to her parent department but she wanted to be absorbed permanently---Validity---Civil servant held lien in her parent department of the Province and could not be absorbed permanently for want of concurrence of Provincial Government, but such 'concurrence was not conveyed to Federal Government---Civil servant was repatriated to her parent department but no response was shown by her parent department nor concurrence of Provincial Government for permanent absorption of civil servant was conveyed in absence whereof, service of civil servant could not be absorbed in the concerned department of Federal Government even if she held requisite qualification and eligibility for such absorption---Civil servant also did not approach to Provincial Government for the purpose of grant of "No Objection Certificate" and consequently in terms of an earlier order passed by Supreme Court, the office order issued by Federal Government for repatriation of civil servant held the field---Judgment passed by High Court was not open to any exception and Supreme Court declined to interfere in the same---Leave to appeal was refused.

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Shah Khawar, D.A.-G., Arshad Anjum, A.D. (FDE), Hadayatullah, S.O. (Education), Peshawar for Respondents.

Date of hearing: 4th August, 2009.

2010 SCMR 624

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

GHULAM SARWAR ZARDARI----Petitioner

Versus

PIYAR ALI alias PIYARO and another----Respondents

Criminal Petition No.109-K of 2009, decided on 22nd December, 2009.

(Against order dated 23-10-2009 of the High Court of Sindh, Circuit Court, Hyderabad, passed in Criminal Miscellaneous No.S-395 of 2009).

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

----Arts. 4, 113 & 155---Criminal Procedure Code (V of 1898), S.561-A---Misconduct---Punishments---Jurisdiction of High Court--Investigation, interference in---Accused alleged physical torture on him by Investigating Officer---High Court in exercise of jurisdiction under S. 561-A Cr.P.C. passed punitive order against him and directed police authorities to implement the order---Validity---Accused had received injuries from the hands of public, complainant and prosecution witnesses, as the same was specifically mentioned in F.I.R. and memo of arrest of accused---Seat and number of injuries were not mentioned in memo of arrest and the same could be at the most treated as irregularity and for that Police Order, 2002, and Rules could adequately deal with the situation---When any police officer had failed to perform his duties within the scope of Art.4 of Police Order, 2002, for such violation police officer could be punished by Magistrate under Art.155 of Police Order, 2002 or disciplinary action could be taken by competent authority of police department as provided under Art.113 of Police Order, 2002, and appropriate rules---Adequate and alternate remedy was available, therefore, there was no justification for High Court to pass any punitive order in such manner---Order passed by High Court amounted to interference with investigation of case, which High Court did not have any jurisdiction to do so under S.561-A, Cr. P. C. ---High Court exceeded jurisdiction and the order passed by it was an abuse of process of court and law, therefore, the order was set aside---Appeal was allowed.

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

----Art. 199---Constitutional jurisdiction of High Court-Scope-Mala fide investigation---High Court has jurisdiction under Art.199 of the Constitution and is competent to correct such proceedings and pass necessary orders to ensure justice and fair play---Investigating authorities do not have entire and total authority of running investigation to their whims---If investigation is launched mala fide or beyond jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed.

Shahnaz Begum v. Honourable Judge of the High Court of Sindh and Balochistan PLD 1971 SC 677; Anwar Ahmad Khan v. The State 1996 SCMR 24; Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008 at page 2012 and Choudhary Shah Muhammad, Inspector v. Mst. Ramzan Bibi 1998 SCMR 2415 rel.

(c) Investigation---

----Mala fide investigation---Scope---If investigation is launched in bad faith out of personal motives either to hurt accused or to benefit oneself or in colourable exercise of powers not authorized by law under which action is taken or action taken in fraud of law, then it comes within the scope of mala fide---Fraud of law or colourable exercise of power amounts to abuse of process of law.

The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan PLD 1974 SC 151 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Investigation, correction of---Pre-conditions.

Investigation can be corrected and necessary orders can be passed, if aggrieved party alleges and proves one or other of the following conditions:---

(1) Investigation initiated beyond jurisdiction of investigating agencies;

(2) Investigation initiated with mala fide intention;

(i) in bad faith out of personal motives either to hurt the person against whom action is taken or to benefit oneself;

(ii) in colourable exercise of powers;

(iii) not authorized by law under which action is taken;

(iv) action taken in fraud of law; and

(v) abuse of process of law.

Where application against investigation does not show any of the above mentioned facts alleged and proved, then High Court under constitutional jurisdiction has no jurisdiction to interfere with investigation or pass any order.

Muhammad Sadiq Leghari, Advocate Supreme Court and K.A Wahab, Advocate-on-Record for Petitioner.

Abdul Fateh Malik, Additional Advocate-General, Sindh for Respondent No.2.

2010 S C M R 632

[Supreme Court of Pakistan]

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

MUHAMMAD IQBAL and others----Appellants

Versus

LAHORE HIGH COURT through Registrar and others----Respondents

Civil Appeals Nos.338, 339, 340 and 342 of 2006, decided on 1st February, 2010.

(On appeal from the judgment of Lahore High Court, Lahore, dated 11-11-2005 passed in Writ Petitions No.10485, 10767, 10769 and 13972 of 2005 respectively).

Punjab Judicial Service Rules, 1994---

----R. 4---Notification No.SOR-IV(E&AD), dated 3-11-2001 issued by the Government of N.-W.F.P.---Constitution of Pakistan (1973), Arts.192 & 199---Constitutional petition challenging non-selection of petitioner by High Court as Additional and Sessions Judge---Dismissal of such petition by High Court for being not maintainable against impugned order protected under Art.199(5) of the Constitution---Validity---In cases of appointment, both Lahore High Court and Peshawar High Court or the Chief Justice exercise delegated powers of Governor of their respective Provinces as appointing authority---According to Art.192 of the Constitution, Chief Justice along with other Judges would constitute a `High Court'---All judicial orders passed by a High Court could be challenged in accordance with Constitution or law---All non judicial or administrative orders of High Court were protected under Art.199(5) of the Constitution---Ground that aggrieved person had no further remedy could not be pressed, if relief claimed by him was not otherwise tenable---Supreme Court upheld impugned judgment in circumstances---Principles

Kaleem Arshad Khan's case 2004 PLC (C.S.) 1558 overruled.

High Court of Madhya Pradesh v. Mahesh Prakash AIR 1994 SC 2595 and Nusrat Elahi's case 1991 MLD 2546 ref.

Asif Saeed's case PLD 1999 Lah. 350 rel.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellants (in C.A. No.338 of 2006).

Syed Zafar Abbas Naqvi, Advocate-on-Record and Syed Azhar Naveed Shah, Advocate Supreme Court for Appellants (in C.A. No.339 of 2006).

Appellants in person (in C.A. No.340 of 2006).

Shafqat Abbasi, Advocate Supreme Court for Appellants (in C.A. No.342 of 2006).

Saeed Yousaf, Additional Advocate-General, Zahoor Ahmed, Sub-Assistant Registrar (Confdl.) Lahore High Court for Respondents.

Date of hearing: 8th December, 2009.

2010 S C M R 637

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUHAMMAD IBRAHIM----Petitioner

Versus

AHMED ALI and others----Respondents

Criminal Petition No.69-K of 2009, decided on 24th November, 2009.

(Against judgment, dated 27-4-2009 of the High Court of Sindh, Circuit Court Hyderabad, passed in Criminal Appeal No.4 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Dispute as to time of death---Medical evidence and ocular account---Conflict---Prosecution witnesses stated that incident took place at about 11-00 p.m. but according to Medical Officer, who conducted post mortem examination, time between death and injuries was about 10 minutes whereas time between postmortem and death was about 24 hours---Conviction and sentence awarded to accused person by Trial Court was set aside by High Court and they were acquitted of the charge---Validity---Medical Officer admitted during cross-examination that time of death could not be less than 23 hours thus time of death did not commensurate with time given by prosecution witnesses as such there was a conflict between medical and oral evidence on such point---According to ocular testimony deceased had died about 8 hours prior to postmortem examination but as per Medial Officer, deceased had died 23 hours before postmortem examination---Margin of 3/4 hours could be given but there was a margin of 15 hours, therefore, in such situation when there was a conflict between medical and oral evidence, preference was to be given to medical evidence than to oral evidence---Prosecution had failed to prove case against accused beyond reasonable doubt, therefore, they had rightly been acquitted---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Mardan Ali v. Gulistan 1980 SCMR 889 rel.

Muhammad Ilyas Khan, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2010 SCMR 641

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Aril Hussain and Tariq Parvez Khan, JJ

Subedar (Retd.) ABDUL MAJEED and others----Appellants

Versus

MULAZIM HUSSAIN SHAH and another----Respondents

Criminal Appeal No.21 of 2007 out of Criminal Petition No.8 of 2007 and Criminal Petition No.39 of 2007, decided on 3rd November, 2009.

(On appeal from the judgment, dated 13-12-2006 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.256 of 2001).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Qatl-i­-amd---Leave to appeal was granted to complainant to consider the effect of the judgment reported as Nasir Shah v. The State 2006 SCMR 1796 on the present case, wherein on the basis of a single fire shat sentence of death in a murder case was confirmed.

Nasir Shah v. The State 2006 SCMR 1796 ref.

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

----S. 302(b)---Qatl-i-amd---Appraisal of evidence---Sentence, reduction in---Besides the complainant another eye-witness having no kind of enmity against the accused, had supported the charge against him---Ocular testimony furnished by two eye-witnesses was supported by medical evidence as well as by circumstantial evidence---In the case of a single accused and in the absence of any blood feud, substitution of accused was a rare phenomenon---Two days prior to the occurrence deceased had abused the mother of accused---Kind of abuses hurled by a male on a female was not far to imagine---Accused under such impulse must be under constant stress to teach a lesson to the abuser of his mother and ultimately he reacted by firing a single shot at the deceased---Act of accused in such a state of mind did not call for awarding normal punishment of death and High Court had rightly altered the same to imprisonment for life---Appeal was dismissed accordingly.

Nasir Shah v. The State 2006 SCMR 1796; Miss Najiba and another v. Ahmed Sultan alias Sattar 2001 SCMR 988; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Ali Gohar v. State 1996 SCMR 549; Moazam Shah v. Mohsan Shan and another PLD 2001 SC 458; Shahid Ghafoor v. The State 2007 SCMR 1338; Zulfiqar Ali v. The State 2008 SCMR 796 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 distinguished.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.21 of 2007).

Raja Muhammad Ibrahim, Satti, Senior Advocate Supreme Court for the Complainant (in Criminal Petition No.39 of 2007).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Petitioner (in Criminal Petition No.39 of 2007).

Shahid Abbasi, Dy.P.-G. Punjab for the State (in both cases).

Date of hearing: 3rd November, 2009.

2010 SCMR 646

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

SHI RAZ-UL-HAQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.365, 366 and 367 of 2008, decided on 23rd November, 209.

(Against judgment, dated 27-6-2008 of the High Court of Sindh, Karachi, passed in Special A.T.A. No.26 of 2007).

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss.6(1)(b) & 7(e)---Abduction for ransom---Reappraisal of evidence---Sentence, reduction in---Proof---Prosecution witness who witnessed incident of abduction was not examined on such aspect of the case and there was evidence of victim only---Ransom amount was not recovered from accused persons---Prosecution further alleged that accused had used credit and debit cards and lass of Rupees were taken out from the account of victim but no cogent evidence through bank officials had been produced to prove such allegation---Confinement of victim was of two days only with no allegation of torture---Sentence of death awarded to three accused persons by Trial Court was maintained by High Court---Validity---Such was not an extreme case of abduction, therefore, in such case sentence of death to three persons was harsh---Supreme Court maintained the conviction but converted sentence of death awarded to accused into imprisonment for life.

Ansar Ahmed Khan Barki v. State 1993 SCMR 1660; Qasim v. State 1999 SCMR 2841 and State v. Nazir Ahmed 1999 SCMR 610 ref.

Ghulam Qadir Jatoi, Advocate Supreme Court for Appellants (in all cases).

Saleem Akhtar, Prosecutor for the State (in all cases).

Date of hearing: 23rd November, 2009.

2010 SCMR 650

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Sayed Zahid Hussain, JJ

HAJI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.98 of 2005, decided on 9th September, 2009.

(On appeal from the judgment, dated 13-5-2003 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.126, Criminal Revision No.81 and Murder Reference No.166 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appraisal of evidence---Ocular testimony was consistent and reliable on all material particulars and inspired confidence---Minor variations in evidence of eye-witnesses were insignificant---Relationship of ocular witnesses with the deceased, ipso facto, would not reflect adversely against their veracity, in the absence of any motive on their part for false involvement of accused in the case---Occurrence had taken place during the day light at 8-00 a.m.---Presence of prosecution witnesses at the scene of occurrence was not open to any doubt---Non-production of an injured witness by the prosecution, who was related to the other accused persons, by itself would not lead to an adverse inference against it---Medical evidence as well as the recovery of the gun at the instance of accused, found to have matched with the crime empties secured from the spot, had corroborated the ocular evidence---Motive behind the incident stood proved---Case against acquitted co-accused having not been proved on record, the same was distinguishable from that of present accused, which had been proved beyond doubt by convincing and straight forward ocular evidence---No mitigating circumstance had come on record to justify award of lesser sentence of imprisonment for life to accused, who had committed the cold-blooded murder of the deceased---Appeal was dismissed in circumstances.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Appellant.

Raja Shahid Mehmood Abbasi, D.P.-G. for the State.

Date of hearing: 9th September, 2009.

2010 S C M R 660

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

MUHAMMAD AHMAD (MAHMOOD AHMED) and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.860 and 861 of 2006, decided on 1st October, 2009.

(On appeal from the judgment, dated 6-7-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No.895 and Murder Reference No.55-T of 2002).

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

----Ss. 302(b)/149, 324/149 & 148---Appraisal of evidence---Qatl-i­-amd---Accused being not the residents of the village of raid, had no direct involvement in the enmity between the two parties---Explanation of the accused of their presence in the said village at the time of raid and their arrest, was reasonable---Accused were not nominated by the complainant in the list of accused given in the opining part of his application, submitted for registration of the F.I.R.---Although other accused had been attributed specific injuries to the victims, yet no such injuries had been assigned to present accused---Case appeared to be of victim-specific and targeted killing and not of indiscriminate firing---Accused admittedly were travelling in the taxi car, reaching whereof at the place of occurrence while the same was still in progress, was more than doubtful---Accused were acquitted in circumstances.

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

----Ss.302 (b)/149, 324/149 & 148---Reappraisal of evidence---Qatl-i­-amd---Interested witness, assessment of---Principles epitomized: (i) it is a mistaken notion that reliance can never be placed on the uncorroborated testimony of interested witnesses; (ii) looking for corroboration before placing reliance an interested testimony, is only a rule of caution, prescribed by the courts and not a rule of law commanded by the Legislature; (iii) even the said rule was not an inflexible rule; (iv) the crucial test for accepting or rejecting a piece of evidence in its intrinsic worth and not really the source from which the same emanates; and (v) corroboration even if required for the satisfaction of the conscience of the court, did not always have to come from independent sources of unimpeachable character, but can be gathered even from the circumstances available on record.

(c) Penal Code (XLV o f 1860)---

----Ss. 302(b)/149, 324/149 & 148---Qatl-i-amd---Appraisal of evidence---Ocular testimony of the complainant and another. eye-witness could not be thrown out only because of their having a background of some enmity with the accused party---Both the said witnesses had received injuries in the occurrence and thus their presence at the scene of occurrence and having witnessed the same, was not open to any doubt---All the accused and the injured eye-witnesses resided in the same village and being locked up in criminal litigation, they very well knew the accused and could easily identify them---Number of victims and the number of injuries received by them had indicated that the number of accused was not exaggerated---Ocular evidence vis-a-vis the eight accused persons, therefore, was not open to any exception---Two accused, brothers inter se had direct motive to avenge their brothers murder, who had used .12 bore gun in the incident, thirteen crime empties whereof had been recovered from the spot---Participation of the said two accused in the occurrence, as per private witnesses was corroborated by the admitted facts and circumstances available on record---Occurrence was a barbaric, brutal and savage display of a reckless disregard for human lives and the accused did not deserve any mercy or leniency---Convictions and sentences of accused were upheld in circumstances.

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

----Ss. 302(b)/149, 324, 148 & 149-Qatl-i-amd---Appreciation of evidence---Interested witness, credibility of---Principles for determination---Firstly, whether circumstances available on record could establish the presence of interested witness at the place of occurrence at the relevant time and the fact that he could have witnessed the occurrence; secondly, whether he was in a position to identify the culprits and thirdly, whether the number of culprits cited by him could be accepted as dependable.

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

----S. 302(b)---Qatl-i-amd---Sentence as "Tazir"---Lesser punishment when commendable---Lesser of the two penalties prescribed for "qatl-i­-amd" is meant only for situation where the circumstances leading to murder or the manner in which the same had been committed, invoked some sympathy for the accused.

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

----Ss. 155, 156, 157 & 174---Investigation---Extent and scope---Determination of guilt or innocence of accused is the exclusive domain of only the courts of law and this sovereign power of courts can never be permitted to be exercised by police employees or by anyone else---Tendency of allowing the Investigating Officers to creep into the evidence, if not curbed, can lead to disastrous consequences---Sections 155, 156, 157 and 174 Cr.P.C. permit a police officers only to investigate a case, while remaining within the ambit of "investigation" as defined in section 4(1)(e) Cr.P.C.---Job of the Investigating Officer is only to collect evidence and to place the same before the competent court---Any expertise claimed by an Investigating Officer would be vis-a-vis his field of operation, namely collection of evidence--Investigating Officer cannot be an ex part in the matter of determining the guilt or innocence of accused, whose opinion was admissible for the purpose under the law of evidence.

Haji Muhammad Hanif v. The State PLD 1992 Lah. 314 ref.

Sardar Muhammad Ishaq Khan; Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.860 of 2006).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in Criminal Appeal No.861 of 2006).

Raja Abdul Rehman, Advocate Supreme Court for the Complainant.

Syed Ali Imran, D.P.-G. for the State.

Malik Waheed Anjum, Advocate Supreme Court along with Fida Hussain D.S.P. and Ahmad Ali, Inspector (Retd.) on Court's notice.

Dates of hearing: 29th, 30th September, and 1st October, 2009.

2010 S C M R 678

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Muhammad Akhtar Shahid Siddiqui, JJ

Haji ZAHIR ALI and others----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN and others----Respondents

Civil Petition Nos.63-Q, 1241 to 1244, 1269 to 1271 of 2009, decided on 2nd February, 2010.

(Against the judgments, dated 30-3-2009 passed by the High Court of Balochistan, Quetta in C.P. No.137 of 2000 and dated26-5-2009 passed by the High Court in Sindh Karachi, in C.Ps. Nos.D-964, 93, 965, 968, 828, 966 and 962 of 2008).

Constitution of Pakistan (1973)---

----Arts. 2, 2-A, 3, 4, 5(2), 25, 185(3)---Civil service---Termination of service of contract employees by Excise and Customs Departments and non-consideration of their cases under newly enforced regularization policy---Order of High Court dismissing such petition considering petitioners as civil servants while directing authorities to consider them in process of selection---Validity---Plea of petitioners was that initial contract period of 12 months was extended from time to time till termination of their services; that they performed their duties diligently without any complaint from authorities and gained experience in relevant field; that authorities had not considered their cases in such policy, though had regularized service of their other colleagues, which fact was not denied by authority in their comments; that impugned act of authorities was violative of provisions of Arts.2, 2-A, 3, 4, 5(2) and 25 of the Constitution guaranteeing social and economic justice to its citizens and public functionaries were bound to obey commands of the Constitution---Supreme Court granted leave to appeal to consider, inter alia, such contentions of petitioners.

Tariq Mehmood, Senior Advocate Supreme Court for Petitioner (in C.P. No.63/Q of 2009).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.1241 to 1244 and 1269 to 1271 of 2009).

Agha Tariq Mehmood, D.A.-G. and M.S. Khattak, Advocate­-on-Record for Respondents (in all cases).

2010 S C M R 687

[Supreme Court of Pakistan]

Present: Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

Lt.-Col. (R) HAMID TARIQUE HANIF and others----Appellants

Versus

MUHAMMAD SHAHID and others----Respondents

Civil Appeal No.1281 of 2006, decided on 10th July, 2009.

(On appeal from the judgment, dated 12-4-2006 passed by High Court of Sindh, Hyderabad Circuit in R.A. No.48 of 1993).

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

----S. 22---Leave to appeal was granted by Supreme Court to consider the contention that High Court did not advert to vital questions of bar of limitation as well as bar of jurisdiction under S.22 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, in the backdrop , of repeal of evacuee laws with effect from 1-7-1974.

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

----Ss. 42 & 54---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.22 & 25---Declaration of title---Limitation---Evacuee property---Jurisdiction of civil court---Permanent Transfer Deed was issued in 1962, in favour of predecessor-in-interest of defendants and plaintiffs assailed the same in year, 1978, after the death of predecessor-in-interest of both the parties---Suit was concurrently decreed in favour of plaintiffs and such findings of fact by two courts below were maintained by High Court in exercise of revisional jurisdiction---Validity---Jurisdiction of civil court was barred to entertain suit involving disputes of title relating to evacuee property---Civil court was supposed to decide point of jurisdiction before proceeding with the case on merits---High Court had omitted to attend the issue relating to S.25 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, which was no more available to plaintiffs, after repeal of evacuee laws in year, 1974 and thus committed jurisdictional error---Civil court, in view of principles of Settlement Laws, had no jurisdiction to entertain and decide matter whereby it had adjudicated dispute relating to title of property---Orders passed by Settlement Authorities under Displaced Persons (Compensation and Rehabilitation) Act, 1958, had attained finality and civil court had no jurisdiction either to determine character of property under settlement law or entitled a person for allotment due to statutory bar---Permanent Transfer Deed was issued in favour of predecessor-in­interest of defendants exclusively in July, 1962 and none had objected in such regard---Matter stood concluded which was questioned by plaintiffs by filing civil suit in year, 1978 i.e. after eighteen years---Suit filed by plaintiffs was not maintainable and judgments passed by courts below were without lawful authority which were set aside and suit filed by plaintiffs was dismissed---Appeal was allowed.

Muhammad Sarwar and 5 others v. Muhammad Ali and 18others 2002 SCMR 829; Zafarul Hassan and others v. Muhammad Kalim and others 1993 SCMR 2028 and Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413 ref.

Khalid Javed, Advocate Supreme Court for Appellant.

M. Yousaf Leghari, Advocate-General, Sindh for Respondents Nos.13 to 15.

Date of hearing: 30th June, 2009.

2010 S C M R 693

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

ALI ASGHAR ABBASI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.640 of 2006, decided on 13th May, 2009.

(On appeal from the judgment, dated 9-12-2005 passed by the High Court of Sindh at Karachi in Criminal Accountability Appeal No.1 of 2005).

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Appraisal of evidence---Mere deposit of the loan amount in the Bank by the accused or any one else did not absolve the accused of his criminality for misappropriation of the Bank funds obtained by him in the name of the loanee---Accused had misused his authority as Manager of the Bank by misappropriating a sum of Rs.2,70,000 out of the sanctioned loan of Rs. 3,00,000 as overwhelmingly proved on record by evidence---Accused used to commit fraud and misappropriation by devising methodology of obtaining loans in the name of others with object to pocket the same himself---Loanee had categorically stated that he had only received Rs.30,000 and did not receive Rs.2,70,000 and his statement could not be discredited or dislodged by the accused---Cross-­cheque issued in the name of the loanee had been converted into an open or a bearer cheque by the accused by cutting out the parallel lines indicative of crossing with his signatures, and then got encashed on the Bank counter by the holder, who collected Rs.2,70,000, which did not reach the loanee---Although the Sanction Advice required disbursement of the loan only in instalments, yet the accused for his own benefit had obtained the amount of Rs.2,70,000 in lump sum---Appeal of accused was dismissed in circumstances.

Masood Ahmed Chishti, Advocate Supreme Court for Appellant.

Muhammad Aslam Butt, D.P.-G. NAB, Dr. Asghar Rana, D.P.-G. NAB and Saleem Akhtar, Addl. D.P.-G. Sindh for the State.

Date of hearing: 13th May, 2009.

2010 SCMR 697

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

SHOUKAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.12 of 2009, decided on 16th June 2009.

(On appeal from the judgment, dated 11-3-2008 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.209 of 2001 and Murder Reference No.148 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(ii) & 337-L(ii)---Reappraisal of evidence---Concurrent finding of guilt by courts below---Injured prosecution witnesses---Abscondence of accused---Defence version---Scope---Accused was convicted by Trial Court under different offences and was variously sentenced to imprisonment for causing injuries to prosecution witnesses and for committing qatl-e-amd, he was convicted under S.302(b), P.P.C. and was sentenced to death---Validity---Motive was proved by complainant in her statement at trial and the same was consistent to her initial version which accused failed to discredit despite lengthy cross-examination---Ocular account was furnished by injured prosecution witnesses and complainant herself---Version of prosecution witnesses remained firm, consistent, straightforward and worthy of credence on all material particulars---Statements of prosecution witnesses got due corroboration from medical evidence to the extent of nature of injuries, kind of weapon used for causing such injuries and their duration---Prosecution had proved that injuries suffered by deceased on his abdomen were sufficient in ordinary course of nature to cause his death, which accused failed to discredit---Recovery of weapon of offence, Chhuri, was proved through evidence of prosecution witnesses who were subjected to cross-examination by accused which failed to discredit their evidence though subjected to searching cross-examination---Prosecution had substantiated that after commission of offence, accused absconded whose non-bailable warrants of arrest were issued---Defence plea introduced by accused was indicative of the fact that accused did not dispute his presence at given venue of Crime though he claimed that occurrence did not take place in the manner in which it was narrated by ocular witnesses, which stood fully corroborated by other pieces of circumstantial evidence concurrently believed by both the courts below---Finding of guilt recorded by courts below was found to be in accordance with the principles for safe administration of criminal justice, which was not open to any interference---Accused committed qatl-e-amd of deceased and caused injuries on the person of ocular witnesses, who intervened to rescue injured persons who all were empty-handed but successively fell prey to accused one after the other for no fault of theirs---Accused was rightly found guilty on the charge and appropriately punished---Appeal was dismissed.

Arshad Ali Ch., Advocate Supreme Court for Appellant.

Shahid Abbasi, D.P.-G. for the State.

Date of hearing: 16th June, 2009.

2010 S C M R 705

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

MUSHTAQ ALI SHAH----Petitioner

Versus

N.E. D. UNIVERSTY OF EINGINEERING AND TECHNOLOGY, KARACHI through Vice-Chancellor and others----Respondents

Civil Petition No.470-K of 2009, decided on 24th December, 2009.

(On appeal from the judgment/order, dated 11-2-2009 in C.P. No.D-1882 of 2007 passed by the High Court of Sindh Karachi).

NED University of Engineering and Technology Act (III of 1977)---

----Ss. 28(iv) & 46.1(a) (31)(a)(i)---Constitution of Pakistan (1973), Art.212(3)---Order of retirement of employee---Mala fide---Proof---Grievance of petitioner was that he had been retired from service with mala fide intention---Validity---Vice-Chancellor in exercise of powers vested in him under Ss.28(iv), 46.1(a) (31)(a)(i) of NED University of Engineering and Technology Act, 1977, passed order of retirement of petitioner with immediate effect on account of 25 years qualifying service with all pensionary and other retirement benefits---High Court had dealt with the subject extensively and had rightly opined that Vice-Chancellor had the discretion under the law---High Court discussed each and every aspect of the case and after interpretation of relevant provisions of law, decided the same which did not require any interference---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Abdul Lateef Ansari, Advocate Supreme Court, and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

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

Nemo for Respondents Nos.2 to 4.

2010 S C M R 707

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

Messrs HUFFAZ SEAMLESS PIPE IND. LTD.----Appellant

Versus

COLLECTOR OF SALES TAX, HYDERABAD----Respondent

Civil Appeals Nos.1576 and 1577 of 2007, decided on 1st October, 2009.

(On appeal against the order, dated 9-5-2007 passed by High Court of Sindh at Karachi in ITR. No. 100 of 2006).

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

----S. 13---S. R. O.533(I)/94, dated 9-6-1994---Exemption---Burden of proof would lie on person claiming exemption under the S.R.O.

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

----S. 13---S.R.O. 533(I)/94, dated 9-6-1994---Qanun-e-Shahadat (10 of 1984), Art. 86---Exemption from tax---Self-serving certificate issued in favour of assessee by private companies---Evidentiary value---Such certificates would not enjoy any legal presumption or evidentiary veracity to be ipso facto admitted as proof for contents therein.

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

----Art. 185(3)---Sales Tax Act ('VII of 1990), Ss.13 & 46---S.R.O. 533(I)/94, dated 9-6-1994---Exemption from tax---Question of fact duly settled by Tribunal of fact--- Re-decision of such question could not be sought in appeal before Supreme Court.

Mansoorul Arfeen; Advocate Supreme Court for Appellant.

Syed Arshad Hussain, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 1st October, 2009.

2010 S C M R 713

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

Syed ZAHIR SHAH and others----Appellants

Versus

NATIONAL ACCOUNTABILITY BUREAU and others----Respondents

Criminal Appeal No.31 of 2001 and Civil Petitions Nos.751-P of 2003 and 1736 of 2005, decided on 13th July, 2009.

(On appeal from the judgment' and orders, dated 2-1-2001, 11-9-2003 and 9-3-2005 of the Peshawar High Court, Peshawar passed in Ehtesab Appeal No.5 of 2000, Writ Petition No.51 of 2002 and Civil Miscellaneous No.345 of 2003 in Writ Petition No.1119 of 2000).

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(v)(vi) & 10---Re-appraisal of evidence---Assets beyond means---Benamidar owners---Non-issuance of notice to Benamidar--Appearance of Benamidar as defence witness---Effect---Quantum of sentence---Determination---Piece meal trial---Validity and scope---Accused were convicted and sentenced to imprisonment on allegation of acquiring assets beyond known sources of income and owning those in the names of Benamidaran---Trial Court also forfeited properties allegedly owned by accused in the names of Benamidaran---Validity---Notice was not directed to alleged Benamidaran by Trial Court nor they were heard before passing of final judgment---Benamidaran were fully aware and in the knowledge of proceedings before Trial Court which related to assets and properties in which right and interests were claimed by accused before Supreme Court---Out of all Benamidaran, two appeared before Trial Court as defence witnesses but their appearance as defence witnesses for accused was not by itself a valid substitute of notice to Benamidaran affording them opportunity of hearing and leading evidence if so deemed proper by them in support of their claims to be legitimate owners as having rightful interests in such properties---Trial Court was obliged to have issued notice to alleged Benamidaran during proceedings and afforded them opportunity of hearing and to allow them to produce evidence in support of their alleged claims if so deemed proper by them---Trial Court did not follow such course and offended guaranteed right of hearing before passing adverse order against any person or property in which vested right or interest had been claimed or was ostensibly recorded owner or appeared in the names of accused---Such forfeiture of properties was unlawful and unsustainable unless questions relating to Benami transaction in which certain rights and interests claimed by accused were determined by Trial Court in overall perspective of evidence---On determination of the same, criminal liability of accused in the case and extent to which it could actually be found liable could be effectively determined---Appeal could be disposed of on merits but it would not be appropriate and just to decide the same in segments as it would involve deep and serious implications, as well as would carry substantial impact on guilt or innocence of accused and if found guilty on quantum of punishment likely to be awarded twice by Trial Court in. the same case depending upon adjudication of alleged claim of accused besides extent of properties liable to forfeiture---Conviction and sentence awarded to accused were set aside and case was remanded to Trial Court to afford opportunity of hearing to alleged Benamidaran to produce evidence if so deemed proper and likewise authorities would have right of rebuttal and hearing---Appeal was allowed.?

Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Irshad Ahmad Sheikh v. The State 2000 SCMR 814; Mansur-ul-Haq v. Government of Pakistan PLD 2008 SC 166; Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599; Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; 1994 (94) All England Law Reports 323 ;1994 (1) All England Law Reports 447 and Bindra's Interpretation of Statues, 7th Edn. 1984 p.849 ref.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 fol.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.31 of 2001).

Fakhruddin G. Ibrahim, Senior Advocate Supreme Court and Yahya Afridi, Advocate Supreme Court for Petitioner (in C.P. No.751-P of 2003).

Rai Muhammad Nawaz Kharal, Advocate Supreme Court for Petitioner (in C.P. No.1736 of 2005).

Abdul Baseer Qureshi, Additional P.-G. NAB for NAB.

Khan Dil Muhammad Alizai, D.A.-G. on Court Notice.

Dates of hearing: 2nd, 3rd and 4th June, 2009.

2010 S C M R 737

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

Messrs OCEANIC INTERNATIONAL (PVT.) LIMITED----Appellant

Versus

Messrs LALAZAR ENTERPRISES (PVT.) LIMITED and others----Respondents

Civil Appeal No.171-K of 2009, decided on 24th December, 2009.

(Against order, dated 20-4-2009 of the High Court of Sindh at Karachi passed in C.P. No.S-352 of 2008).

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

----S. 8---Fair rent, fixation of---Rise in cost of construction and repair charges---Scope---Such cost would include labour charges, maintenance and renovation etc.

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

----Ss. 8 & 9---Fair rent, increase in---Scope---Fair rent once fixed could be increased after three years from date of its fixation---Such increase would not exceed 10% per annum on existing rent---Provision of S.9 of Sindh Rented Premises Ordinance, 1979 would not apply to rent fixed for first time, but would become applicable on re-fixation or increase in such rent after three years---Principles.

N.C. Motiani, Advocate Supreme Court/Advocate-on-Record for Appellants.

Sayed Amjad Hussain, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 24th December, 2009.

2010 S C M R 739

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Jawwad S. Khawaja and Ghulam Rabbani, JJ

SECRETARY (SCHOOLS), GOVERNMENT OF PUNJAB, EDUCATION DEPARTMENT and others----Petitioners

Versus

YASMEEN BANO----Respondent

Notice to Chief Secretary, Punjab in Civil Petition No.1536 of 2009 issued vide order, dated 28-8-2009.

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

----Rr. 16 & 23---Appointment of Educators in Education Department on contract basis---In pursuance of Notification dated 19-10-2009 issued by Punjab Government, all such employees having crossed upper age limit would stand regularized and those receiving 30% pay above their salary as social security benefit would be entitled to pension from date of regularization.

Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 rel.

Muhammad Hanif Khattana, Advocate-General, Punjab, Khadim Hussain Qaiser, Additional, Advocate-General, Rao M. Yousaf Khan, Advocate-on-Record, Muhammad Aslam Kambo, Secretary Education, Punjab On Court Notice.

Hafiz Aman, Advocate Supreme Court for Advocate-General, N.-W.F.P.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Sajeel Shehryar and Ms. Natalya, Advocates as amicus curaie.

2010 S C M R 745

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

Messrs VICTOR RESTAURANT through Partners----Appellants

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others----Respondents

Civil Appeals Nos.54-K and 55-K of 2009, decided on 23rd December, 2009.

(Against judgment, dated 27-2-2000 of the High Court of Sindh at Karachi, passed in C.Ps. Nos.S-414 of 2007 and S-53 of 2008).

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

----S. 8---Fair rent, increase in, implementation of---Scope---Such rent normally would be enforced from date of application---Rent Controller in his discretion could fix any other date after assigning reasons therefor---Principles.

In Section 8 of Sindh Rented Premises Ordinance, 1979, no date has been fixed for applicability of the enhanced fair rent as such a discretion lies with Rent Controller to take the date of implementation from the date of filing of application or passing of the order or in between them.

In normal circumstances, the fair rent is required to be enforced from the date of application, as the said date is the date from which the fair rent is to be determined after keeping in view the conditions mentioned in section 8 of the Ordinance. However, if Rent Controller fixes any other date, then he can take that date, but for that he must assign reasons to do so.

Olympia Shipping and Weaving Mills Ltd. v. State 2001 SCMR 1103 rel.

R.F. Virjee, Advocate Supreme Court and Abdul Saeed Khan Ghori, Advocate-on-Record for Appellants.

Nemo for Respondents.

Date of hearing: 23rd December, 2009.

2010 S C M R 748

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Muhammad Sair Ali and Mahmood Akhtar Shahid Siddiqui, JJ

ATTIQUE AHMED KAMAL----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.187 and 188 of 2003, decided on 10th September, 2009.

(On appeal from the judgment and order of the Lahore High Court, Lahore passed in Criminal Revision No.334 of 1999 and Criminal Appeal No.660 of 1999).

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

----S. 319---Constitution of Pakistan (1973), Art.185(3)---Qatl-i-­khata---Contention that the situation being fully covered by section 301, P.P.C., the act of accused in causing the death of the deceased, fell squarely within the ambit of qatl-i-amd punishable only under S.302, P.P.C. and that the punishment of six months' R.I. in default of the payment of "Diyat" being illegal offended against the provisions of S.331(2), P.P.C., deserved deeper examination---Leave to appeal was granted by Supreme Court to consider the same.

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

---Ss. 319 & 331---Qatl-i-khata---Appraisal of evidence---High Court setting aside the conviction of accused under S.302(b), P.P.C. had convicted him under S.319, P.P.C. and sentenced him to five years' R.I. and to pay "Diyat" of Rs.1,50,000 to the legal heirs of the deceased or in default to suffer six months' R.I.---Unapprovable ugly act of firing in a marriage procession by the accused had been proved by evidence on record---Bullet had hit the deceased---Source and precise projectile direction of the bullet, was not proved by any independent evidence---Prosecution had also failed to prove any mens rea or enmity of accused to murder the deceased, who like the accused was another participant in the marriage procession and they were apparently unknown to each other---Case, therefore, was justifiably held to fall within the scope of S.318, P.P.C. and conviction of accused under S.319, P.P.C. and the punishment awarded to him thereunder were upheld in circumstances---However, imposition of six months' R.I. on non-payment of Diyat by the accused was set aside being contrary to the provisions of S.331(2), P.P.C. and instead he was directed to be confined in jail as if sentenced to simple imprisonment until payment of Diyat in full---Appeals were disposed of with the said modification.

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

Syed Ali Imran, D.P.-G. for Respondents.

Date of hearing: 10th September, 2009.

2010 S C M R 755

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

ARBAB KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.41-K of 2009, decided on 31st December, 2009.

(Against order, dated 23-7-2009 of the High Court of Sindh, Bench at Sukkur, passed in Criminal Appeal No.D-8 of 2009).

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

----Ss. 21-L & 19(12)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused in respect of his conviction and sentence under S.21-L of the Anti-Terrorism Act, 1997, and to consider that could the Trial Court convict and sentence the accused under S.21-L of the Anti-Terrorism Act, 1997, without framing the charge, recording evidence and discussing the same; that could the Appellate Court non-suit the accused on his appeal on technical grounds without adverting to the above aspect of the matter and that could the Appellate Court without taking into account the pendency of the application of the accused, under S.19(12) of the said Act before the Trial Court, dismiss his appeal.

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

----Ss. 21-L & 10(11-A)---Constitution of Pakistan (1973), Arts.9 & 10(1)---Appraisal of procedure adopted by Trial Court---Accused after having been declared as an absconder had been tried in absentia by the Trial Court---No charge was framed against the accused under S.21-L of the Anti-Terrorism Act, 1997---No evidence was recorded to prove the ingredients of the said S.21-L---No point for determination concerning the said offence was framed---No discussion was made by the Trial Court in the judgment with regard to any evidence available on record---Accused had been convicted and sentenced under S.21-L of the said Act in a cursory manner---Procedure adopted by Trial Court was illegal and not warranted by law---Even otherwise, trial of accused in absentia was violative of Arts.9 & 10(1) of the Constitution and S.10(11-A) of Anti-Terrorism Act, 1997---Accused was acquitted in circumstances.

Gul Zaman Kazi v. State Criminal Appeal No.269 of 2003; Mst. Mubarak Salman v. State PLD 2006 Kar. 678; Noor Muhammad Khatti v. State 2005 PCr.LJ 1889 and Ikhlaq Ahmad v. State 2008 SCMR 951 ref.

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

----Ss. 10(11-A) & 19(10)---Constitution of Pakistan (1973), Arts 9 & 10(1)---Trial in absentia---Violation of fundamental rights and principles of natural justice---Trial of accused in absentia is violative of Arts.9 & 10(1) of the Constitution and S.10(11-A) of the Anti-Terrorism Act, 1997---Condemning of accused without affording an opportunity of hearing is also contrary to the principles of natural justice.

Ikhlaq Ahmad v. State 2008 SCMR 951 ref.

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

Zafar Ahmed Khan, Additional P.-G., Sindh for the State.

Date of hearing: 31st December, 2009.

2010 SCMR 760

[Supreme Court of Pakistan]

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

Mst. FATEH BIBI and others----Appellants

Versus

Mst. FATIMA BIBI and others----Respondents

Civil Appeal No.2193 of 2006, C.M.A. No.976/L of 2005 and C.M.A. No.1520 of 2007, decided on 8th February, 2010.

(On appeal from the judgment of the Lahore High Court, Multan Bench, dated 29-11-2004 passed in Civil Revision No.660-D of 2004).

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

----Ss. 19-A, 20 & 21---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 3---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether the case was governed by the provisions of S.3 of West Pakistan Muslim Personal. Law (Shariat) Application Act, 1962, or Ss. 19-A, 20 and 21 of Colonization of Government Lands (Punjab) Act, 1912; whether proprietary rights to defendant were validly conferred by Colonization of Government Lands (Punjab) Act, 1912; whether defendant was treated as limited owner despite conferment of proprietary rights and she was not empowered to transfer suit land to her husband; whether consequent upon marriage of defendant the suit land would devolve upon the legal heirs of original allottee; and whether plaintiff could also be treated to be a co-tenant along with defendant upon the death of their mother who was widow of original allottee.

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

----S. 20(c)---Specific Relief Act (I of 1877), S.42---Entitlement in legacy of mother---Married daughter, right of---Suit land was owned by mother of parties and at the time of death of their mother, land was transferred to defendant who was an unmarried daughter---Plaintiff was excluded from the legacy of her mother on the ground that she was a married daughter at the time of death---Plaintiff asserted that she was also entitled to inherit land left by their mother as she was also unmarried at the relevant time---Suit and appeal were concurrently dismissed by Trial Court and Lower Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit in favour of plaintiff on the ground that she was entitled to inheritance under Sharia law---Validity---Plaintiff did not claim her share on the basis of inheritance under Sharia law but on the plea that she also was entitled to a share like her sister under S.20 (c) of Colonization of Government Lands (Punjab) Act, 1912, as she was also unmarried when her mother died---Succession of mother of parties was to be regulated under S.20 (c) of Colonization of Government Lands (Punjab) Act, 1912---High Court misdirected itself in proceeding on the premises that dispute between the parties was regarding Sharai share of plaintiff---Limitation would be a hurdle in plaintiff's way in seeking relief, as suit was filed 50 years after attestation of mutation in question---Plaintiff did not claim her share earlier due to her respect for her uncle and by her own statement she demonstrated that she had knowledge of entries in the mutation and she deliberately desisted from claiming her share in suit property---Such was not a ground for condoning delay of suit barred by time having been filed 50 years after the cause of action arose to plaintiff---Judgment and decree passed by High Court was set aside and that of Trial Court was restored and suit was dismissed---Appeal was allowed.

Zil Muhammad v. Mst. Hayat Bibi 1971 SCMR 514; Mst. Rasul Bibi v. Mst. Rehmat Bibi 1987 SCMR 2036; Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; Federation of Pakistan v. Public-at-Large PLD 1988 SC 153; Mst. Jhando v. Muhammad Sharif 2006 SCMR 882; Mst. Janntan v. Mst. Taggi PLD 2006 SC 322; Mst. Kaneezan Bibi v. Muhammad Ramzan 2005 SCMR 1534 and Mst. Began v. Mst. Bai 1983 SCMR 80 ref.

Gul Zarin Kiyani, Advocate Supreme Court for Appellants.

M. Munir Paracha, Advocate Supreme Court for Applicants (in C.M.A. No.976/L of 2009).

Raja Abdul Ghafoor, Advocate Supreme Court for Applicants (in C.M.A. No.1520 of 2009).

Mian Ghulam Hussain, Advocate Supreme Court for Respondent No.1.

Respondent No.2: Ex parte.

Date of hearing: 4th December, 2009.

2010 S C M R 767

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

UNIVERSITY OF HEALTH SCIENCES and others----Appellants

Versus

MUMTAZ AHMAD and another----Respondents

Civil Appeal No.713/L of 2009, decided on 10th February, 2010.

(On appeal from the judgment, dated 6-3-2009 in Writ Petition No.1249 of 2008 passed by the Lahore High Court, Bahawalpur Bench Bahawalpur).

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

----Arts. 199 & 189---Judgment of Single Bench of High Court deciding constitutional petition in violation of judgments of Division Bench of same High Court---Validity---Judgment passed by Division Bench of High Court would be binding on Single Judge of same High Court---Supreme Court set aside impugned judgment for being not sustainable in law.

University of Health Sciences v. Atif Aslam and others C.P.No.247 of 2008 ref.

University of the Health Sciences v. Sh. Nasir Subhani and others PLD 2006 SC 243; All Pakistan Newspapers Society's case PLD 2004 SC 600 and Multiline Associates' case PLD 1995 SC 423 rel.

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

---Arts. 185(3) & 189---Order of Supreme Court granting or refusing leave to appeal---Not a judgment.

Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court for Appellants.

M. Ozair Chughtai, Advocate Supreme Court/Advocate-on-Record for Respondent No.1.

Dr. Umer Farooq, Demonstrator for Respondent No.2.

Date of hearing: 10th February, 2010.

2010 S C M R 771

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

ABDUL GHANI through L.Rs.----Appellants

Versus

Messrs CALTEX OIL PAKISTAN LIMITED----Respondents

Civil Appeal No.1531 of 2005, decided on 21st December, 2009.

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

----S. 17(2)(iii)---Ejectment petition---Business of Petrol Pump being carried on demised premises---Grounds of impairing value, look an, utility of demised premises by tenant and making addition/alteration with written consent of landlord-Validity-According to S.17(2)(iii) of Cantonments Rent Restriction Ordinance, 1963, no written consent of landlord would be required for making addition/alteration in demised premises by tenant---Tenant had made such addition/alteration without approval of Cantonment Board, which had increased value, utility any look of demised premises---Ejectment petition was dismissed in circumstances.

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

----S. 17(2)---Ejectment petition---Ground of default in payment of rent---Proof---Period of default in payment of rent had not been mentioned in ejectment petition---Plea raised by landlord during evidence was non-payment of increased annual rent by tenant---Landlord had not raised such plea in ejectment petition, thus, same was an improvement in course of evidence---Ejectment petition was dismissed in circumstances.

Khalid Anwar, Senior Advocate Supreme Court and K.A Wahab, Advocate-on-Record for Appellants.

Syed Sharif-ud-Din Pirzada, Senior Advocate Supreme Court and A.A. Khan, Advocate-on-Record for Respondents.

Date of hearing: 21st December, 2009.

2010 S C M R 775

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

Mst. BILQUIS QADRI----Appellant

Versus

Mst. NISHAT MUSHTAQ through L.Rs.----Respondents

Civil Appeal No.171 of 2004, decided on 18th January, 2010.

(On appeal from the judgment, dated 15-1-2004 passed by the High Court of Sindh at Karachi, in H.C.A. No.66 of 1991).

Specific Relief Act (I of 1877)---

----S. 42---Karachi Building and Town Planning Regulations, 2002, Reglns.5 & 23---Karachi Development Authority Order (V of 1957), Art.131---Karachi Development Authority (Disposal of Land) Rules, 1971, R.15---Constitution of Pakistan (173), Art.185(2)---Suit for declaration---Open area reserved by KDA for further utilization converted into a plot and its allotment to a defendant on direction of Chief Minister---Dismissal of suit by Trial Court and High Court---Validity---Courts below had not considered documentary evidence and answered certain important questions having substantial bearing on merits of case---Supreme Court set aside impugned judgment and remanded case to Trial Court with formulated questions for decision thereof after affording proper opportunity of hearing to all concerned.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Abdul Qadir Khan, Advocate Supreme Court for Appellant.

Tariq Mehmood, Senior Advocate Supreme Court for Respondent No.1.

Respondents Nos.2 to 4: Ex parte.

Date of hearing: 18th January, 2010.

2010 S C M R 778

[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, 2009.

Sindh Civil Servants (Efficiency and Discipline) Rules, 1990---

----R. 4---Constitution of Pakistan (1973), Art.212(3)---Recovery of loss to government from pension/commutation of petitioner---Imposition of such penalty after retirement of petitioner from service---Plea of respondent that after his dismissal from service, he was reinstated by Chief Minister in review petition with minor penalty imposed on him, but in order of his reinstatement in service issued on 5-9-1997 by government, there was no mention of any minor penalty; that subsequently when he retired from service, government passed an order imposing such penalty of recovery, which could not be done without due notice to him and a proper inquiry under Sindh Civil Servants (Efficiency and Discipline) Rules, 1990, which exercise had not taken place---Dismissal of petitioner's appeals by departmental authority and Service Tribunal---Validity---Petitioner, prima facie, appeared to have been condemned unheard---Supreme Court granted leave to appeal in circumstances.

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

Date of hearing: 4th November, 2009.

2010 SCMR 780

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

AMEER UMAR and another----Appellants

Versus

ADDITIONAL DISTRICT JUDGE, DERA GHAZI KHAN and others----Respondents

Civil Appeal No.858 of 2006, decided on 2nd February, 2010.

(On appeal from the judgment, dated 7-2-2005 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No.5390 of 2003).

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

----S. 6---Civil Procedure Code (V of 1908), O.XXIII, R.1 & O.XLVII, R.1---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit--Collateralship share and co-sharer in suit Khata, grounds of---Passing of consent decree on 4-4-1988 by Trial Court on basis of compromise between parties---Application by defendant for recalling such decree dismissed by Trial Court, but accepted by Revisional Court and High Court---Validity---Supreme Court granted leave to appeal to consider as to whether such decree could be recalled on the ground that collateral's right to pre-empt had been declared to be cm-Islamic by Supreme Court in Said Kamal's case reported as PLD 1986 SC 360.

Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

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

----S. 6---Civil Procedure Code (V of 1908), Ss.12(2), 151, O.XXIII, R.3 & O.XLVII, R.1---Constitution of Pakistan (1973), Art.203-D---Pre-emption suit---Collateralship share and co-sharer in suit Khata, grounds of---Passing of consent decree on 4-4-1988 by Trial Court on basis of compromise---Non-withdrawal of pre-emption money by defendant, but filing of application under O.XLVII, R.1 read with Ss.12(2) & 151, C.P.C., for recalling such decree for being violative of law laid down by Shariat Appellate Bench of Supreme Court in Said Kamal's case reported as PLD 1986 SC 360---Such application dismissed by Trial Court, but accepted by Revisional Court and High Court-Validity-Supreme Court had declared Punjab Pre-emption Act, 1913 repugnant to Inunctions of Islam and had fixed 31-7-1986 as cut-off date for re-enacting pre-emption law according to its dictum laid down in Said Kamal's case---In absence of passing of pre-emption decree by Trial Court or any higher forum before 31-7-1986, no such decree could be passed on the ground that matter was instituted or pending in Court before 31-7-1986---Decree passed after 31-7-1986 regarding right or pre-emption would be void and nullity in eyes of law---Trial Court had erred in law to assume jurisdiction and pass consent decree after 31-7-1986---Decree passed by Trial Court on compromise in absence of any mandatory requirements of Talb would be contrary to law and void---Supreme Court dismissed appeal in circumstances.

Abdul Hamid's case PLD 1995 SC 649; Umar Bakhsh's case 1993 SCMR 374; Muhammad Bibi's case PLD 1973 Kar. 44 and Muhammad Hussain Shah's case 1989 SCMR 1752 ref.

Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Mian Pir Muhammad's case PLD 2007 SC 302 and Sardar Ali's case PLD 1988 SC 287 rel.

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

----Ss. 96(3), 115 & O.XXIII, R.3---Punjab Pre-emption Act (IX of 1991), S.13---Appeal or revision against consent decree---Scope---Such appeal or revision would not be barred, where either Trial Court had no jurisdiction over subject-matter of dispute or strict requirement of O.XXIII, R.3, C.P.C. had not been satisfied or decree was passed on compromise in absence of any mandatory requirements of Talb---Principles.

Muhammad Hussain Shah's case 1989 SCMR 1752 ref.

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

----Art. 185(3)---Petition for leave to appeal to Supreme Court---Concurrent findings by two courts below---Validity---Supreme Court would generally not interfere in such findings.

Abdul Rehman Bajwa's case PLD 1981 SC 522 and Khuda Bakhsh's case 1974 SCMR 279 rel.

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

----Art. 185(3)---Jurisdiction of Supreme Court---Scope---Supreme Court could not substitute its own findings in place of findings recorded by the Courts below.

Syed Azmat Ali's case PLD 1965 SC 260 rel.

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

----Art. 185(3)---Jurisdiction of Supreme Court under Art.185(3) of the Constitution is discretionary in nature keeping in view facts and circumstances of case.

Nawabzada Raunaq Ali's case PLD 1973 SC 236 rel.

S.M. Zameer Zaidi, Advocate Supreme Court for Appellants.

Ch. Mushtaq A. Khan, Senior Advocate Supreme Court for Respondent.

Date of hearing: 2nd February, 2010.

2010 SCMR 786

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui, JJ

Brig. (R) SHER AFGHAN----Appellant

Versus

Mst. SHEEREN TAHIRA and 6 others----Respondents

Civil Appeal No.1383 of 2004, decided on 5th January, 2010.

(On appeal against the judgment, dated 5-5-2004 passed by the Lahore High Court, Lahore in Civil Revision No.1728 of 2002).

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

----S. 115---Re visional jurisdiction---Scope---If finding of first court of appeal is based on no evidence or is arbitrary and fallacious, the revisional court is not denuded of its power to interfere with such finding.

Naziran Begum v. Khurshid Begum 1999 SCMR 1171 rel.

(b) Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O.XXXII, R.12---Joint property---Partition---Minors attaining age of majority---Administration of justice---Suit property was owned by predecessor-in-interest of parties and plaintiffs sought partition of the same---Defendant claimed to possess suit property on the ground that after sale of other properties owned by their predecessor-in-interest he did not get any share, therefore, suit property fell into his share---Out of plaintiffs there were two minor daughters of deceased brother of parties---Trial Court decreed suit only to the extent of minor daughters and directed to partition suit property among defendant and minors and dismissed the suit to the extent of remaining plaintiffs---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court but High Court in exercise of revisional jurisdiction reversed concurrent findings of two courts below---Plea raised by defendant was with regard to O.XXXII, R.12 C.P.C. that both the minors were not properly represented before High Court as they had become major---Validity---Such plea was neither agitated before High Court nor taken in memorandum of appeal before Supreme Court---Both minor plaintiffs who had become major were called by High Court to solicit their opinion with a view to ensure complete justice---By the date when statements of plaintiffs in question were recorded by High Court, both of them had not only attained majority but were students of post-graduate classes and that they never raised any objection with regard to their representation---Having joined in the request to summon two ladies in question, it was unchivalrous of defendant to object to their appearance---Supreme Court declined to interfere in judgment and decree passed by High Court---Appeal was dismissed.

Suleman v. Mst. Zeenat Jan and 2 others PLD 2003 SC 362; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Muhammad Munir and others v. Hafiz Muhammad Rafiq and others 2004 SCMR 1551; Adalat Khan v. Mst. Begum Bibi through Legal Heirs and another 1991 SCMR 1381; Abdul Jabbar and others v. Muhammad Jabbar and others 2002 SCMR 1173; Afzal Begum v. YMCA through its General Secretary PLD 1979 SC 18 and Mst. Muhammadi v. Ghulam Nabi 2007 SCMR 761 ref.

Syed Najamul Hassan Kazmi, Senior Advocate Supreme Court for Appellant.

M. Farooq Qureshi Chishti, Advocate Supreme Court for Respondents Nos.1 to 5.

M. Amjad Hameed Ghouri, Advocate Supreme Court for Respondents Nos.6 to 7.

Date of hearing: 5th January, 2010.

2010 S C M R 795

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

JAVED MASIH and others----Appellants

Versus

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

Civil Appeal No.1517 of 2006, decided on 12th January, 2010.

(Against the judgment, dated 24-4-2006 passed by Lahore High Court, Lahore in Writ Petition No.2981 of 2005).

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

----S. 13---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to re-examine and reappraise evidence on record for determination of relationship of landlord and tenant between the parties.

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

----Art. 185(3)---Supreme Court does not interfere in concurrent findings of fact arrived at by the courts below while exercising power under Art.185(3) of the Constitution.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction is discretionary in nature and he who seeks equity must come with clean hands.

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

----Art. 185(3)---Supreme Court does not have any jurisdiction to substitute its own findings in place of findings of courts below while exercising power under Art.185(3) of the Constitution.

Ata Ullah Malik's case PLD 1964 SC 236 rel.

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

----S. 13---Constitution of Pakistan (1973), Art.185---Ejectment of tenant---Striking off defence---Concurrent findings of fact by courts below---Interference by Supreme Court---Principles---Tenants did not deposit rent as directed by Rent Controller, therefore, their defence was struck off and eviction order was passed against them---Eviction order passed by Rent Controller was maintained by Lower Appellate Court as well by High Court---Validity---Tenants failed to point out any piece of evidence which was misread or non-read by the courts below---Supreme Court would not go behind concurrent finding of fact recorded by courts below, unless it could be shown that the finding was on the face of it against evidence or so patently improbable or perverse that to accept it amounted to perpetuating a grave miscarriage of justice or if there had been any misapplication of principles relating to appreciation of evidence or finally if finding could be demonstrated to be physically impossible---Such being the practice and the rule of Supreme Court in civil appeals, burden lay heavily on appellants to show that concurrent findings recorded by High Court were not sustainable on the record and should be interfered by Supreme Court---Tenants failed to bring the case in such parameters and raise any substantial question of law of public importance-Supreme Court declined to interfere in concurrent eviction order passed by the Courts below---Appeal was dismissed.

Muhammad Sharif's case PLD 1981 SC 246 and Abdul Rehman gajwa's case PLD 1981 SC 522 ref.

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

Respondents: Ex parte.

Date of hearing: 12th January, 2010.

2010 S C M R 799

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

NED UNIVERSITY OF ENGINEERING AND TECHNOLOGY, KARACHI and others----Petitioners

Versus

HAFEEZULLAH KHAWAJA----Respondent

Civil Petition No.404-K of 2009, decided on 11th June, 2009.

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

----S. 11---Sindh Civil Servants (Efficiency and Discipline) Rules, 1990, Rr.4 & 5---Constitution of Pakistan (1973), Arts.185(3) & 199---Removal from service---Initiation of disciplinary proceedings against respondent on 19-6-2004 under Sindh Civil Servants (Efficiency and Discipline) Rules, 1990 after promulgation of Removal from Service (Special Powers) Sindh Ordinance, 2000---High Court set aside such penalty while accepting respondent's constitutional petition---Validity---Supreme Court grunted leave to appeal to consider as to whether High Court was justified in holding that provisions of S.11 of the Ordinance had overriding effect over all laws though S.11 thereof states that provisions of the Ordinance shall have effect notwithstanding anything contrary to Sindh Civil Servants Act, 1973 and rules made thereunder and any other law for the time being in force, whether High Court did not misapply law laid down by Supreme Court in judgments reported as 2007 SCMR 229, 2007 PLC (C.S.) 1288 and 2004 PLC (C.S.) 1187; and whether High Court did not err in law while holding that initiation of disciplinary proceedings against respondent on 19-6-2004 under Sindh Civil Servants (Efficiency and Discipline) Rules, 1990 after promulgation of Removal from Service (Special Powers) Sindh Ordinance, 2000, final order stood vitiated.

Muhammad Tasnim and Ahmadullah Faruqi for Petitioner.

Nemo for Respondent.

2010 SCMR 801

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui, JJ

SHAHAB-UD-DIN and others----Appellants

Versus

COMMISSIONER, LAHORE DIVISION and others----Respondents

Civil Appeals Nos.1143 to 1145 of 2002, decided on 7th January, 2010.

(On appeal from the order of the Lahore High Court, Lahore, dated 21-5-2002 passed in Writ Petitions Nos.7918, 22057 and 22114 of 2001).

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

---Ss. 4, 5, 5-A & 17---Constitution of Pakistan (1973), Art.185(3)---Acquisition of land for a public limited company---Abandoning purpose of acquisition---Land Acquisition Commissioner elaborately discussed material available on record regarding availability of land with the company for establishment of industrial unit---Contention of petitioner was that in presence of such report, reliance on earlier report was neither proper nor just and even otherwise the corporation for which land was being acquired did not exist and new company was formed which had no nexus with the original company, therefore, acquisition should have been abandoned---Validity---Leave to appeal was granted by Supreme Court to consider the contentions of petitioner.

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

----Ss. 4, 5, 5-A & 17---Constitution of Pakistan (1973), Art.185(3)---Acquisition of land for public limited company---Abandoning purpose of acquisition---Land owners objected to acquisition of their land on the ground that land in question was not required by the acquiring corporation---Objection was dismissed by Land Acquisition Collector and the order was maintained by High Court in exercise of constitutional petition---Validity---High Court while dismissing constitutional petitions of land owners had considered both objections with regard to acquisition in question and came to the conclusion that there was nothing in evidence to indicate that change in the name of company had also changed purpose of acquisition---High Court also concluded that no religious institution was being run on any part of land which was acquired for religious purpose---Land Acquisition Commissioner had also dealt with both the objections pursuant to the remand order of High Court in earlier round of litigation---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellants (in all cases).

Umar Mahmood Kasuri, Senior Advocate Supreme Court for Respondent No.5.

Saleem Raza, Revenue Officer, Sultan Ahmed, Naib Tehsildar, Office Land Acquisition Collector Industries Punjab on behalf of D.O.R.

Date of hearing: 7th January, 2010.

2010 S C M R 806

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

MUHAMMAD SULTAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.233-L of 2009 in Criminal Petition No.546-L of 2009, decided on 15th December, 2009.

(Against the judgment, dated 15-5-2009 of the Lahore High Court, Lahore passed in Criminal Revision No.226 of 2009).

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

----S. 489-F---Dishonouring of cheque--Criminal proceedings, initiation of---Pre-conditions.

If following conditions are fulfilled and proved by prosecution, only then provisions of S.489-F, P.P.C. are attracted:

(i) issuance of cheque;

(ii) such issuance was with dishonest intention;

(iii) the purpose of issuance of cheque should be:

(a) to re-pay a loan; or

(b) to fulfil an obligation (which in a wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds a person to some performance).

(iv) on presentation, the cheque is dishonoured.?

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

----S. 489-F---Dishonouring of cheque---Valid defence.

Accused can take a valid defence, if he proves that he had made arrangements with his bank to ensure that cheque would be honoured; and that the bank was at fault in dishonouring the cheque. If accused establishes such two facts through tangible evidence and that too after prosecution proves ingredients of offence, then the accused is absolved from punishment.?

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

----S. 489-F---Reappraisal of evidence---Dishonouring of cheque---Scope---Steeling of cheque---Insufficient balance---Accused did not dispute his signatures on the cheque in question---Plea raised by accused was that his signed cheque was stolen from his cheque book---Validity---It was against natural conduct that a person would keep blank signed cheque in his cheque book---Defence witness stated that when accused filed application for stopping of payment of cheque in question, at that time accused had only a balance of Rs.300, in his account; in the application to stop payment of cheque, accused did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing---Supreme Court declined to interfere in concurrent findings of courts below resultantly conviction and sentence was maintained---Appeal was dismissed.?

Ch. Muhammad Rafique Warraich, Advocate Supreme Court for Appellant.

Syed Ali Imran Shah, D.P.-G. for the State.

Khalid Aseer Chaudhry, Advocate Supreme Court for the Complainant.

Date of hearing: 15th December, 2009.

2010 SCMR 810

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Khilji Arif Hussain, JJ

HASSAN DIN and others-Appellants

Versus

MANZOOR HUSSAIN and others----Respondents

Civil Appeal No.1102 of 2001, decided on 11th February, 2010.

(On appeal from the judgment, dated 4-5-2001 of the Lahore High Court, Lahore passed in R.S.A. No.96 of 1990).

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

----S. 19---Pre-emption suit---Plea of vendee that pre-emptor being legal heir of vendor had waived his right of pre-emption---Proof---Vendee had got possession of suit-land just after five days of registration of sale-deed---Pre-emptor was living with vendor under same roof in same village, where suit-land was situated and knew about its sale---Pre-emptor had not pleaded that he came to know about the sale just before filing of suit---According to statement of pre-emptor's witness, all documents including sale-deed had been prepared under supervision of pre-emptor as vendor was a person of advance age---Such statement on oath of pre-emptor's witness would be binding upon pre-emptor---Pre-emptor during cross-examination admitted that vendor after sale of suit-land had purchased land in another village, which after death of vendor had been inherited by his legal heirs including the pre-emptor---Pre-emptor despite having knowledge about sale had neither asked vendor to sell suit-land to him nor notified vendee about his intention to claim right of pre-emption---Pre-emptor had not claimed right of pre-emption either at the time of registration of sale-deed or immediately thereafter, but had allowed vendee to take possession and develop suit-land---Suit was dismissed in circumstances.?

Naseer Ahmed v. Arshad Ahmad PLD 1984 SC 403; Haji Sultan (deceased) through his legal representatives v. Nasim Raza and 6 others 1996 SCMR 1729; Muhammad Din through Legal Heirs v. Nazir Muhammad through Legal Heirs 2004 SCMR 1394; Nazar Hussain and 2 others v. Mst. Khurshid Bibi and others 2002 SCMR 49 and Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 ref.

Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895 and Abdul Rashid v. Bashiran and another 1996 SCMR 808 rel.

(b) Witness---

----Statement of a witness on oath would be binding upon a party, who produced him as witness---Illustration.?

Gulzarin Kiyani, Senior Advocate Supreme Court and Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Appellants.

Qazi Muhammad Saleem, Advocate Supreme Court and Mian Ghulam Rasool, Advocate Supreme Court for Respondents.

Date of hearing: 11th February, 2010.

2010 S C M R 817

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Moulvi MUHAMMAD AZEEM----Petitioner

Versus

Alhaj MEHMOOD KHAN BANGISH and another----Respondents

Civil Petition No.2170 of 2009, decided on 14th January, 2010.

(Against the judgment, dated 23-11-2009 passed by the Peshawar High Court, Peshawar in Civil Revision No.1155 of 2009).

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

----S. 115---Revisional jurisdiction of High Court---Findings of courts below---Interference---Principles---Findings on questions of fact or law, however, erroneous the same may be, recorded by any court of competent jurisdiction, cannot be interfered with by High Court in its revisional jurisdiction under S.115, C.P.C., unless such findings suffer from jurisdictional defect, illegality or material irregularity.

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

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

----Art. 185---Appellate jurisdiction of Supreme Court---Scope---Findings of facts by courts below---Interference---As ultimate court in land, Supreme Court, as a rule, should give due weight and consideration to opinion of courts below and in particularly to the opinion of court of first instance, which had the advantage of hearing parties, witnesses and watching their demeanor---Generally, Supreme Court does not interfere with findings of fact reached by primary courts or a High Court when it is satisfied that findings of courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---Such would not be, notwithstanding that a different view might also be possible.

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

----Ss. 42 & 54---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Concurrent findings of fact by the courts below---Administration of justice---Suit was concurrently decreed in favour of plaintiff, by Trial Court and Lower Appellate Court---Judgments and decrees passed by both the courts below were maintained by High Court in exercise of revisional jurisdiction---Plea raised by defendant was that High Court had no jurisdiction to constitute committee to probe into the matter regarding misappropriation of funds---Validity---Defendant failed to point out any piece of evidence which was misread or non-read by the courts below---Where substantial justice had been done, Supreme Court did not interfere while exercising power under Art. 185 (3) of the Constitution, which jurisdiction was discretionary in character---He who sought equity must have come to the court with clean hands---Supreme Court declined to exercise of its discretion in favour of defendant---Leave to appeal was refused.

Rana Muhammad Arshad's case 1998 SCMR 1462; Nawabzada Raunaq Ali's case PLD 1973 SC 236; Haji Saifullah's case PLD 1989 SC 166 and G.M. Malik's case 1990 CLC 1783 rel.

Altaf Ellahi Sheikh, Senior Advocate Supreme Court for Petitioner.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Respondents.

2010 SCMR 822

[Supreme Court of Pakistan]

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

BASHIR AHMAD through L.Rs.----Appellants

Versus

MUHAMMAD HUSSAIN and another----Respondents

Civil Appeal No.965 of 2003, decided on 28th October, 2009.

(On appeal from judgment of Lahore High Court, Lahore dated 19-10-1999 passed in R.S.A. No.198 of 1978).

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

----Art. 63---Relationship---Proof---Pedigree-table---Scope---Pedigree-­table alone and by itself is not a proof of relationship unless such relationship is independently proved through witnesses or other independent evidence.

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

----S. 21---Qanun-e-Shahadat (10 of 1984), Arts. 62 & 63---Superior right of pre-emption---Collateral of vendor, plea of:--Prevalence of custom---Proof---Suit filed by pre-emptor was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of pre-emptor---Judgment and decree passed by Lower Appellate Court was upheld by High Court---Validity---Pre-emptor could not produce any relative or any neighbour having relationship with parties, thus knowledge professed by witness produced by pre-emptor was not at all dependable---Statements of plaintiff's witnesses were so discrepant and destructive of each other that no reliance at all could be placed thereon---Supreme Court declined to rely upon any Riwaj because prevalence of a custom was a question of fact and despite such reference in any Riwaj-a-Aam, people of that area and families involved might or might not follow the custom---Supreme Court set aside judgments and decrees passed by High Court and Lower Appellate Court and dismissed the suit---Appeal was allowed.

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

---S. 52 & O.XXII, R.1---Legal heirs, non-impleading of---Effect---Abatement does not take place, if legal representatives of some party are not brought on record---Such legal representatives automatically become party and bound by any decision of court.

(d) Supreme Court Rules, 1980---

----O. XV, R.7---Legal representatives, impleading of---Limitation---Legal representatives of deceased party under O.XV, R. 7 of Supreme Court Rules, 1980, have to be brought on record within 90 days---Such rule is not absolute because court for sufficient cause can extend time.

Gulzarin Kiyani, Advocate Supreme Court for Appellants.

Ch. Muzammil Khan, Advocate Supreme Court for Respondents.

Date of hearing: 28th October, 2009.

2010 S C M R 827

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

MUHAMMAD SHAFI and others----Petitioners

Versus

SULTAN MAHMOOD and others----Respondents

Civil Review Petition No.107 of 2008 in Civil Appeal No.1781 of 2000, decided on 12th February, 2010.

(On review from the judgment of this Court dated 26-2-2008).

Constitution of Pakistan (1973)---

----Arts. 188 & 185(2)(3)---Civil Procedure Code (V of 1908), Ss.96, 100 & O. XLI, R.33---Review of Supreme Court judgment---Impugned judgment of High Court being at variance with that of District Judge---Decision of appeal by Supreme Court without giving independent reasons for agreeing with High Court and disagreeing with District Judge---Petition for review of such decision of Supreme Court---Validity---Appeal in such case could not be disposed of by writing one sentence of approving impugned judgment---Supreme Court seized with matter, either arising out of petition or on direct appeal, would be bound to give judgment on basis of pleadings and available material and record its conclusion with logical reasons while agreeing with High Court or first Appellate Court---Supreme Court accepted review petition, recalled its such decision and fixed appeal for re-hearing.

Madan Gopal and other v. Maran Bepari and others PLD 1969 SC 617 rel.

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

Muhammad Hanif Niazi, Advocate Supreme Court for Respondents.

2010 S C M R 829

[Supreme Court of Pakistan]

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

Messrs KAMRAN CONSTRUCTION (PVT.) LTD.----Petitioner

Versus

NAZIR TALIB----Respondent

Civil Petition No.431-K of 2007, decided on 7th November, 2008.

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

----S. 73---Suit for recovery of damages caused by breach of contract---Proof---Party claiming damages must establish contract, breach thereof and extent of damages---Burden would lie on plaintiff, who without discharging same could not succeed---Principles.

Under section 73 of the Contract Act, 1872, the party claiming damages has 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 breech of contract, such breach entitled the first party to damages and the foremost factor is quantum of damages. A party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it, he cannot succeed. Section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract.

Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991 fol.

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

----S. 73---Specific Relief Act (I of 1877), Ss. 8 & 12---Suit for specific performance of sale agreement, possession and damages---Sale of residential flats by defendant---Booking of one flat by plaintiff and payment of its price---Non-completion of flat by defendant within stipulated period---Claim of plaintiff for specific performance of sale agreement, delivery of possession of flat and monthly rent Rs. 7000 as damages till completion of flat and its delivery by defendant---Trial Court passed decree as prayed for by plaintiff---Defendant's appeal challenging validity of such decree to extent of awarding damages affirmed by Appellate Court---Validity---Plaintiff had not produced any independent evidence except his own affidavit to prove that defendant had committed breach of contract, which entitled plaintiff for damages and to what extent---Terms and conditions attached with allotment application did not find mention that in case of non-completion of flat or non-compliance of terms and conditions, plaintiff would be entitled to claim damages, and if so at what rate---According to such terms and conditions, project was expected to be completed within 36 months, but its progress would depend upon flow of instalments and unforeseen circumstances etc.---Such terms and conditions did not provide any compensation or measure of damages---Plait6niff's application for allotment of flat was dated 3-7-1987, while advertisements relied upon by him were dated 17-6-1990 & 18-6-1990, thus, undertakings/ offers/commitments made therein would not apply retrospectively to preceding agreement executed between parties---Parties would be governed only by terms and conditions attached with plaintiff's application and signed by parties---Assurances and guarantees given in such subsequent advertisements were not part of agreement with plaintiff---Supreme Court set aside impugned decree to extent of awarding damages in shape of such monthly rent at rate of Rs. 7000 and future monthly rent for being not sustainable in law.

Ahmed Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. 1993 SCMR 441; Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991; West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555 and PLD 1998 SC 220 ref.

Shahenshah Hussain, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Khalid Javed, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent.

Date of hearing: 31st October, 2008.

2010 S C M R 837

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

Messrs CAPTAIN PQ CHEMICAL INDUSTRIES (PVT.) LTD.----Appellant

Versus

Mrs. ROMANA AMJAD and another----Respondents

Civil Appeal No.680 of 2008, decided on 2nd February, 2010.

(On appeal from the judgment, dated 26-5-2008 passed by the High Court of Sindh, Karachi in F.R.A. No.7 of 2007).

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

----S. 17(4)(a)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether it was essential requirement of law to disclose in ejectment petition three requirements as provided in S.17(4)(a) of Cantonments Rent Restriction Act, 1963; whether non-disclosure of three requirements mentioned in S.17(4)(a) of Cantonments Rent Restriction Act, 1963, in ejectment petition would be fatal to ejectment petition; whether suppression of fact of occupying any other residential property in cantonment area by landlady would indicate want of good faith; and whether tenant was able to demonstrate that need of landlady was not bona fide and ejectment petition of landlady was liable to be dismissed.

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

----S. 17(4)(a)---Ejectment of tenant---Bona fide personal need of landlady---Unsuitability of other premises, non-disclosure in application---Eviction order passed by Rent Controller against tenant on the ground of bona fide personal need of landlady was maintained by High Court---Plea raised by tenant was that landlady owned another premises and she did not disclose in her ejectment application that as to how other premises was not suitable for her needs---Validity---Requirements of S.17(4)(a) of Cantonments Rent Restriction Act, 1963, were sufficiently complied with by landlady by stating that she was in occupation of a house which was not suitable for her use in future and that no other property was owned by her---Even if landlady or any other member of her family was in occupation of a premises, landlady could file application for ejectment of tenant on the ground of her personal bona fide use in good faith, if she could prove that the premises in her occupation was not suitable for her need and order of ejectment could be passed by Rent Controller---All necessary facts in respect of personal requirement should be sufficiently stated in ejectment application---High Court had properly attended to questions relating to application filed by landlady in the light of evidence---Appeal was rightly dismissed by High Court and conclusion drawn thereon did not suffer from defect of misreading or non-reading of evidence---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Khalid Anwar, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

M. Tasnim, Advocate Supreme Court for Respondent No.1.

Date of hearing: 2nd February. 2010.

2010 S C M R 841

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

Criminal Appeal No.381 of 2009

SHAHZADA----Appellant

Versus

THE STATE----Respondent

(On appeal from the judgment, dated 8-1-2007 of Peshawar High Court, Peshawar passed in Criminal Appeal No.478 of 2005).

Criminal Appeal No.382 of 2009

KARIM KHAN----Appellant

Versus

THE STATE----Respondent

(On appeal from judgment, dated 8-1-2007 of Peshawar High Court, Peshawar, passed in Criminal Appeal No.478 of 2005).

Criminal Appeals Nos.381 and 382 of 2009, decided on 18th January, 2010.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art.122---Recovery of narcotic---Appraisal of evidence---Driver of the car had escaped from the Diggi of which 180 kilograms of "Charas" and one kilogram of opium were secured by police---Accused were simply sitting in the car---No evidence was led by the prosecution to show that the accused had knowledge of the narcotics lying in the car or they had abetted or conspired with the driver in the commission of the crime---Property in question was neither lying open in the car within the view of the accused, nor they knew about the placement of the same therein--Accused, therefore, was not even required to explain their position as required under Art.122 of Qanun-e-Shahadat, 1984, and they could not be held responsible and in joint possession of the narcotics with the Driver---Prosecution case against the accused was highly doubtful and they were acquitted accordingly.?

Nemo for Appellants (in Criminal Appeals Nos.381 and 382 of 2009).

Raja Saeed Akram, Special P.-G. A.N.F. for the State (in Criminal Appeals Nos.381 and 382 of 2009).

Date of hearing: 18th January, 2010.

2010 S C M R 844

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

SALIM KHAN----Petitioner

Versus

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

Civil Petition No.1 of 2010, decided on 8th January, 2010.

(Against the judgment, dated 4-11-2009 passed by Peshawar High Court, Peshawar in Writ Petition No.492 of 2009).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil service--- Selection for post---Experience---Proof---Substituting finding of fact---Petitioner alleged that he had more experience than the respondent who was selected by authorities for the post in question---Validity---High Court had given finding of fact against petitioner and failed to show any document regarding his experience---Supreme Court while exercising power under Art. 185 (3) of the Constitution, had no jurisdiction to substitute its own finding in place of finding recorded by High Court in its judgment---Supreme Court did not find any infirmity or illegality in the judgment passed by High Court and failed to raise any question of public importance--Constitutional jurisdiction was discretionary in nature and Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Ata Ullah Malik's case PLD 1964 SC 236 rel.

Qari Abdul Rasheed, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2010 S C M R 846

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

RIAZ AHMED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.342 of 2009, decided on 11th January, 2010.

(Against judgment, dated 3-11-2008 of the Lahore High Court, Lahore, passed in Criminal Appeal No.18-J of 2003 and Murder Reference No.813 of 2002).

(a) Penal Code (XLV of 1880)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.129, Illus. (g)--Qatl-i-amd---Appraisal of evidence---Prosecution case rested only on the solitary statement of the complainant---One eye-witness of the occurrence had expired and the other eye-witness had been given up by the prosecution being unnecessary---Presumption under illustration (g) of Art.129 of Qanun-e-Shahadat, 1984, could fairly be drawn that had the given up eye-witness been examined in the Court, his evidence would have been unfavorable to the prosecution---Oral evidence was in conflict with medical evidence---Statement of the complainant was neither supported nor corroborated by any piece of evidence--Admission of the complainant about there being no quarrel between the deceased and the accused before the occurrence, had made the 25/26 years old alleged motive highly doubtful---Complainant, according to his further admission, could not possibly see the assailants firing at the deceased from the place where he was standing---Ocular testimony being highly doubtful could not be safely relied upon on the capital charge---Positive Forensic Science Laboratory's report regarding the crime empty secured from the spot having been matched with the gun recovered from the possession of accused, being a corroborative piece of evidence by itself was insufficient to convict the accused in absence of substantive piece of evidence---No case having been made out against the accused, delay of 85 days in filing of the appeal was condoned for safe administration of criminal justice---Accused was acquitted in circumstances.

Ijaz Ahmed v. State 1997 SCMR 1279; Asadullah v. Muhammad Ali PLD 1971 SC 541; Saifullah v. The State 1985 SCMR 410; Riaz Masih v. State 1995 SCMR 1730 and Siraj v. Crown PLD 1956 Federal Court 123 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Corroboration---Corroborative piece of evidence by itself is not sufficient for conviction of accused is absence of substantive piece of evidence.

Ijaz Ahmed v. State 1997 SCMR 1279; Asadullah v. Muhammad Ali PLD 1971 SC 541; Saifullah v. the State 1985 SCMR 410; Riaz Masih v. State 1995 SCMR 1730 and Siraj v. Crown PLD 1956 Federal Court 123 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Corroboration---Corroborative evidence is meant to test the veracity of ocular evidence---Both corroborative and ocular testimony are to be read together and not in isolation.

Asadullah v. Muhammad Ali PLD 1971 SC 541 ref.

Sheikh Muhammad Naeem, Advocate Supreme Court for Appellant.

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

Date of hearing: 11th January, 2010.

2010 S C M R 850

[Supreme Court of Pakistan]

Present: Javed Iqbal and Sayed Zahid Hussain, JJ

MAP RICE MILLS (PVT.) LIMITED----Petitioner

Versus

SHAKEEL AHMED and others----Respondents

Civil Petitions Nos.790 to 793 and 796 of 2008, decided on 6th August, 2009.

(On appeal from the order, dated 7-5-2008 of the Lahore High Court, Lahore passed in L.As. Nos.98, 100, 101, 102, 105 of 2008).

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

----S. 12(3)---Industrial Relations Ordinance (XCI of 2002), S.46---Constitution of Pakistan (1973), Art.185(3)---Termination from service---Verbal orders---New owners of industrial concern in question, on verbal orders,. terminated employees already working---Employees served grievance notice and assailed their termination orders---Labour Court set aside their termination orders and reinstated the employees in service with back-benefits---Judgment passed by Labour Court was maintained by High Court---Validity---No allegation whatsoever was alleged against employees and no evidence could be led to substantiate that employers had no concern with liabilities---Employees were terminated verbally and such order had no legal effect because it would be in violation of relevant provisions as envisaged in S.12 (3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and not in consonance with settled law---No illegality or irregularity could be pointed out either in judgment of Labour Court or of High Court---Entire evidence which had come on record was appreciated in accordance with law and settled norms of justice by Labour Court, determination whereof had been upheld by High Court---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Muhammad Yousaf Khan Khattak v. S.M. Ayub PLD 1973 SC 160; Fida Muhammad v. Muhammad Khan PLD 1985 SC 341 and Neimat Ali Goraya v. Jaffar Abbas, Inspector/Sergeant Traffic 1996 SCMR 826 rel.

Raja Muhammad Bashir, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner (in all cases).

Abdul Rashid Awan, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2 (in all case).

Date of hearing: 6th August, 2009.

2010 S C M R 855

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

Syed LAKHAT-E-HASNAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.731 of 2009, decided on 26th December, 2009.

(On appeal from the order, dated 29-10-2009 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.1275 of 2009).

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

----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss.4, 5, 8(1)/23---Penal Code (XLV of 1860), Ss.409/420/468/471/109---Prevention of Electronic Crimes Ordinance (IV of 2008), Ss.4/7/8/9---Prevention of Corruption Act (11 of 1947), S.5(2)---Constitution of Pakistan (1973), Art. 185(3)---Criminal breach of trust, cheating, forgery and using as genuine a forged document---Bail, refusal of---Certificate of Chartered Accountant relied upon by the accused to show that the allegation of a fuzzed foreign exchange had no basis, could not be relied upon at bail stage before the Supreme Court as the same was neither produced before the investigating agency nor before the Trial Court or the High Court and was presented before Supreme Court for the first time---Court at bail stage had only to see whether accused was connected with the commission of the crime or not by making only tentative assessment of available evidence---Deeper appreciation of evidence and circumstances appearing in the case was neither desirable nor permissible at such stage---Accused were holding a licence from State Bank of Pakistan to deal with the money exchange business and they had not only violated Rules and Regulations of State Bank of Pakistan, but apparently had also acted against the interests of the country by scuffing huge amounts of foreign exchange---Discretion to grant bail, therefore, could not be exercised in favour of accused---Bail was declined to accused and leave to appeal was refused to him accordingly.

Collector of Customs, Collectorate of Customs Rawalpindi v. Khyd-e-Noor and others 2006 SCMR 1609 and Muhammad Ilyas v. Shahid Ullah and other PLD 2009 SC 446 ref.

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

----S. 497---Bail, grant and refusal of---Discretion, exercise of---Discretion of grant or refusal of bail under section 497 Cr.P.C. must be exercised on judicial principles according to the facts and circumstances of each case.

S.M. Zafar, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner.

Azam Nazir Tarar, Advocate Supreme Court/Special Public Prosecutor for Respondent.

Dates of hearing: 22nd, 23rd and 24th December, 2009.

2010 SCMR 861

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Sair Ali, JJ

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT, GOVERNMENT OF PUNJAB, LAHORE and another----Appellants

Versus

AHMAD YAR KHAN----Respondent

Civil Appeal No.2142 of 2006, decided on 2nd November, 2009.

(On appeal from the judgment, dated 8-5-2004 passed by Punjab Service Tribunal, Lahore in Appeal No.4 of 2004).

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

----S. 3(1)(e)---Punjab Local Councils (Audit) Rules, 1981, R.27---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider; whether civil servant could be dealt with under Punjab Local Councils (Audit) Rules, 1981, simultaneously or subsequently to disciplinary proceedings taken under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000; and whether penalty of recovery of Rs.371,836 was justifiable in the facts and circumstances of the case.

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

----Art. 13---Criminal Procedure Code (V of 1898), S.403---Double jeopardy, principle of---Scope---No person can be punished twice for the same offence.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Delay, condonation of---Effect---Sufficiency of cause for condonation of delay being question of fact is within exclusive jurisdictional/domain of Service Tribunal---Once discretion of condoning of delay has been exercised by Service Tribunal, it can neither be interfered with nor disturbed by Supreme Court.

Ali Hassan Rizvi v. Islamic Republic of Pak. 1986 SCMR 1086; Muhammad Azhaar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Yousaf Khan Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 rel.

(d) Civil service---

----Departmental and criminal proceedings---Scope---Simultaneous action under disciplinary rules and criminal law can be initiated, subject to certain legal exceptions.

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

----Ss. 3(1)(e) & 11---Punjab Local Councils (Audit) Rules, 1981, R.27---Constitution of Pakistan (1973), Arts.13 & 212---Double jeopardy, principle of---Applicability---Civil servant was awarded penalty of censure under S.3 (1)(e) of Punjab Removal from Service (Special Powers) Ordinance, 2000, by competent authority---Penalty of censure was not challenged by civil servant but authorities later on imposed recovery of Rs.371,836 against him under R.27 of Punjab Local Councils (Audit) Rules, 1981---Validity---Action against civil servant had already been finalized and penalty imposed under Punjab Removal from Service (Special Powers) Ordinance, 2000, had already attained finality---Recovery could have been made by competent authority but only minor penalty was imposed probably for the reason that civil servant had been exonerated by inquiry officer regarding alleged loss suffered due to Octroi contract allegedly executed by the civil servant---Supreme Court declined to interfere in the judgment passed by Service Tribunal as it had rightly set aside the order passed by the authorities---Appeal was dismissed.

Dr. Mohy-ud-Din Qazi, Advocate Supreme Court for Appellants.

Hafiz Tariq Naseem, Advocate Supreme Court for Respondent.

Date of hearing: 2nd November, 2009.

2010 SCMR 868

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

ASAD MAHMOOD----Appellant

Versus

AKHLAQ AHMED and another----Respondents

Criminal Appeals Nos.282 and Jail Petition No.419 of 2004, decided on 18th January, 2010.

(On appeal from the judgment, dated 5-11-2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.371 of 2001 and Reference No.804 of 2001).

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

----S. 302(b)---Qatl-i-amd---Appraisal of evidence---Accused along with his father and elder brother had caused the premeditated murders of two persons---Three crime empties secured from the spot had matched with the pistol of accused---Ocular testimony was supported by medical evidence---Accused was 19-1/2 years old at the time of occurrence and he had not claimed to have acted under the influence of his father or due to the humiliation caused to his family by the deceased by slapping his father in the presence of many persons---Even if it was so, the same by any logic could not entitle the accused to commit brutal murders of two persons, one on the spot and the other by chasing him---While considering mitigating circumstances the principle of proportionality could not be lost sight of and some semblance proportion must exist between the injury or insult given by the deceased and the reaction---Penalty of death must be imposed if the Court had found the manner and method of incident to be brutal, horrific, heinous or shocking involving terrorism---In the absence of some mitigating circumstances normal sentence in a conviction under section 302(b) P.P.C. was death---Trial Court had rightly convicted and sentenced the accused to death for having committed two brutal murders---Impugned judgment of High Court reducing death sentence of accused to imprisonment for life was consequently set aside and the judgment of Trial Court was restored and confirmed accordingly.

Tariq and 2 others v. The State 1995 SCMR 168; Mst. Hafeezan Bibi v. Muhammad Tufail and others 1995 SCMR 256; Liaquat Ali and others v. The State 2000 SCMR 1455; Sultan and another v. The State 2000 SCMR 1818; Sohail Iqbal v. The State 1993 SCMR 2377; Ghulam Sarwar and others v. Sajid Ullah and others 2005 SCMR 1054; Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502; Khalas Khan and another v. The Crown PLD 1954 Lah. 73; Iftikahar v. The State PLD 1972 Pesh. 27; Moazam Shah v. Mohsan Shah and another PLD 2001 SC 458 and Muhammad Ilyas and another v. Muhammad Sufian and another PLD 2001 SC 465 ref.

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

----S. 302(b)---Qatl-i-amd--- Sentence--- Mitigating circumstance---Principle---While considering mitigating circumstance the principle of proportionality is not lost sight of and there should be some semblance proportion between the injury or insult given by the deceased and the reaction.?

Sardar Muhammad Ishaq, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.282 of 2004).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Petitioner (in Jail Petition No.419 of 2004).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Respondent (in Criminal Appeal No.282 of 2004).

Shahid Mehmood Abbasi, D.P.-G. for the State (in both cases).

Date of hearing: 18th January, 2010.

2010 S C M R 877

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

MUHAMMAD HASEEB----Petitioner

Versus

GENERAL MANAGER, PRODUCTION WEAPONS POF WAH CANTT. and others----Respondents

Civil Petition No.2136 of 2009, decided on 14th January, 2010.

(Against the judgment dated 17-10-2009 passed in the Federal Service Tribunal, Islamabad in Appeal No.979(R)(C.S.) of 2003).

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

---S. 5---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Reinstatement in service---Jurisdiction of Service Tribunal---Right of hearing---Civil servant assailed order of his compulsory retirement before Service Tribunal and sought reinstatement into service along with appeal, civil servant submitted application for temporary injunction seeking orders to restrain authorities from ejecting him from official residential quarter---Service Tribunal disposed of the main appeal with direction to the authorities to allow him pensionary benefits---Plea raised by civil servant was that instead of deciding appeal on merits, Service Tribunal disposed of the same on the ground that his grievance was only that his pensionary benefits were not being paid to him---Validity---No arguments were advanced by both the sides on merits, therefore, for such a reason, it was incumbent upon Service Tribunal to have either confined itself to the extent of disposal of application and at the same time appeal should have been decided on merits which was a due right of a litigant---Person who put in 17 years of service and had been waiting for result of his appeal for more than 6 years before Service Tribunal and was interested for grant of interim injunction against officials not to dispossess him from official residential quarter, such person besides requesting for reinstatement would not alone confine himself to the extent of payment of pensionary benefits alone which otherwise being his right were available to him under the rules---There was no necessity for passing such order nor the same was prayer in appeal or application---If civil servant was interested only to get pensionary benefits, he would have approached department at early stage who were bound to pay the same---It was right of civil servant that he should have been given hearing and after noting his contentions and law on the subject, as well as the precedent judgments, case should have been disposed of---Supreme Court set aside judgment passed by Service Tribunal and remanded the case to Service Tribunal for disposal of the same in accordance with law---Appeal was allowed.

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

----Art. 212(2)---Service Tribunal, duty of---Scope---Service Tribunal is, though a Constitutional Tribunal for the purpose of Art. 212 (2) of the Constitution but it does not mean that it has not to follow the principles of justice--- Service Tribunal is duty bound to dispose of matters judiciously instead of dismissing appeals in the manner which is not recognized under any principle of law.

Haider Hussain, Advocate Supreme Court and M.S Khattak, Advocate-on-Record for Petitioner.

Khadim Hussain, Manager (Legal) POF for Respondents.

2010 S C M R 881

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

NASRULLAH KHAN and 2 others----Petitioners

Versus

THE STATE----Respondent

Criminal Review Petition No.54 of 2009 in Criminal Appeal No.105 of 2005, decided on 30th September, 2009.

(Against the order passed by this Court in Criminal Appeal No.105 of 2005 on 25-5-2009 and on appeal from the judgment dated 17-2-2003 passed by the Lahore High Court, Lahore in Criminal Appeal No.681 of 2002 and Murder Reference No.59/T of 2002).

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

----Ss. 302(b) & 34---Constitution of Pakistan (1973), Art.188---Qatl-e­-amd---Review of Supreme Court judgment---Identification of accused alone had been challenged on the grounds that the identification parade had been held illegally and that on the basis of momentary glimpse accused could not be correctly identified---Held, question of identification of accused had been dealt with in depth by scrutinizing the entire evidence, which had come on record in a comprehensive manner---Magistrate had conducted the identification test wherein the witnesses while identifying the accused had also described the role played by them---Prosecution witnesses had also identified the accused before Trial Court and specified their roles---Contention with regard to non-availability of light at the time of occurrence had no force, as the room in which "Daras" was being given could not be presumed to have no lights---Question whether prosecution witnesses could have identified the culprits involved appreciation of evidence, which could not be done at review stage---Review could not be granted on the ground that certain facts required reappraisal by the Court---Mere desire for rehearing of the matter also would not constitute a valid cause and sufficient ground for grant of review---Review petition had no merit and was dismissed accordingly.

Basharat Khan v. The State 1984 SCMR 1033(1); Muhammad Nazir v. The State 1979 SCMR 89; Kala Khan v. Misri Khan 1979 SCMR 347; Saghir Ali v. Mehar Din 1968 SCMR 729; Saeedur Rehman v. The State 1980 SCMR 271; Ghulam Sarwar v. The State 1979 SCMR 43; Muhammad Hassan v. The State 1979 SCMR 345; Muhammad Suleman v. Muhammad Younis 1988 SCMR 350; Abdul Hameed Saqi v. Service Tribunal of Pakistan 1988 SCMR 1318; Ali Khan v. Shah Zaman 1980 SCMR 332; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504; Maqbool Ahmed Tabassum v. The State 1980 SCMR 907; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Nawab Bibi v. Hamida Begum 1968 SCMR 104; Muhammad Najibullah Khan v. Government of Pakistan 1968 SCMR 768; Muhammad Ghaffar v. The State 1969 SCMR 12; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 5 and Feroze Din v. Allah Ditta 1969 SCMR 10 ref.

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

----Art. 188--- Review of Supreme Court judgment--- Scope---Appreciation of evidence or reappraisal of certain facts cannot be made by Supreme Court at review stage.

Basharat Khan v. The State 1984 SCMR 1033(1); Muhammad Nazir v. The State 1979 SCMR 89; Kala Khan v. Misri Khan 1979 SCMR 347; Saghir Ali v. Mehar Din 1968 SCMR 729; Saeedur Rehman v. The State 1980 SCMR 271; Ghulam Sarwar v. The State 1979 SCMR 43; Muhammad Hassan v. The State 1979 SCMR 345 and Muhammad Suleman v. Muhammad Younis 1988 SCMR 350 ref.

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

----Art. 188---Review of Supreme Court judgment---Scope---Mere desire for rehearing of the matter does not constitute a valid cause and sufficient ground for the grant of review.

Abdul Hameed Saqi v. Service Tribunal of Pakistan 1988 SCMR 1318; Ali Khan v. Shah Zaman 1980 SCMR 332; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 5Q4; Maqbool Ahmed Tabassum v. The State 1980 SCMR 907; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Nawab Bibi v. Hamida Begum 1968 SCMR 104; Muhammad Najibullah Khan v. Government of Pakistan 1968 SCMR 768; Muhammad Ghaffar v. The State 1969 SCMR 12; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 5 and Feroze Din v. Allah Ditta 1969 SCMR 10 ref.

Sardar Ahmad Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 30th September, 2009.

2010 SCMR 885

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Jawwad S. Khawaja and Ghulam Rabbani, JJ

In re: Suo Motu Case No. 10 of 2009, decided on 20th October, 2009.

(Complaint regarding establishment of Makro-Habib Store on playground).

(a) Cantonment Land Administration Rules, 1937---

---General Land Register (GLR), entries in---Evidentiary value---GLR merely maintained a record of transactions between parties (including Government of Pakistan) relating to rights in or in respect of lands situated in cantonment area---GLR would not create or determine questions of title, rather could raise a presumption that its contents were correct record of status and interest of lessees, occupants etc. in cantonment land.

(b) Pleadings---

----Party cannot be allowed to set up a plea, which contradicts his stance in plaint.

(c) Cantonment Land Administration Rules, 1937---

----Allocation of cantonment land by Government of Pakistan---Scope---Government of Pakistan without executing a formal conveyance could allocate or reallocate its assets such as playground towards its legitimate objectives including provision of amenities such as grounds and open spaces for citizens.

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

----Art. 23---Public and private ownership of land---Exercise of powers by State and private owner---Distinction stated.

Land which is privately owned can be dealt with by the owner in any manner he chooses. The owner may, therefore, legitimately decide to grant a lease of the most valuable land owned by him, in consideration of a `peppercorn' rent. Or, he may even decide to make an outright gift of the same on the basis of the unfettered title vested in him. However, where land is owned publicly, that is, by the people of Pakistan, legal title may vest in the Government, but such title, and the exercise of powers based thereon, are to be exercised in the public interest, in accordance with the Constitution and the laws framed thereunder

(e) Cantonment Land Administration Rules, 1937---

----Rr. 1 & 22-Cantonment land proposed to be put to commercial use or transferred to non-Government organization for business purposes or for generating unearned income---Scope---State functionaries responsible for administering cantonment land were not free agents, but were obliged to make sure non-causing of loss to Government., in such transactions---While selling lease of such land by auction, lease premium and rentals must be benchmarked against market value to ensure non-causing of loss to State exchequer--While estimating market value, actual sales of unoccupied land for building purposes in locality, whenever possible, must be used.

Pervaiz Oliver v. St. Gabriel School PLD 1999 SC 26 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.

(f) Trust---

----Army Welfare Trust---Object of---Such private Trust was established for benefit of serving/retired personnel of Armed Forces of Pakistan and their families---Such objectives must be achieved through permissible means and not at the cost of State exchequer or public-at-large---State functionaries must act in furtherance of public interest.

(g) Public functionaries---

----State functionaries must act in furtherance of public interest.

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

----Arts. 2A, 3, 184(3) & Ch.2 of Part II (Arts.29 to 40)---Consti­tutional jurisdiction of Supreme Court---Scope---Such jurisdiction required to be exercised in letter and spirit of the Constitution---Duty of organs of State and their functionaries to act in conformity with guiding spirit provided in the Constitution.

Applicant in person.

Khalid Anwar, Senior Advocate Supreme Court for Makro-Habib.

Wasim Sajjad, Senior Advocate Supreme Court, Fayyaz Ahmad Rana, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for A.W.T.

Sardar M. Latif Khan Khosa, Attorney-General for Pakistan (on 31-8-2009, 2-9-2009, 1-10-2009 and 2-10-2009) Shah Khawar, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Ministry of Defence.

Dr. Muhammad Raza Gardezi for Citizens.

Arshad Ali Chaudhry, Advocate-on-Record/Advocate Supreme Court for K.B.C.A.

Syed Mansoor Ali Shah, Advocate Supreme Court (on 7-7-2009 24-8-2009, 31-8-2009, 1-9-2009, 2-9-2009, 3-9-2009) and M.S. Khattak, Advocate-on-Record for Mehfooz-un-Nabi.

Date of hearing: 20th October, 2009.

2010 S C M R 927

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

MUHAMMAD NOOR and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.398 to 402 of 2009, decided on 19th January, 2010.

(Against judgment, dated 15-1-2009 of High Court of Sindh, Karachi, passed in Criminal Appeal No.124 of 2008).

(a) Criminal trial---

----Mens rea---Presumption---General rule is that there is presumption that mens rea, an evil intention or knowledge of wrongfulness of the act is an essential ingredient in every offence---Such presumption is liable to be displaced by subject-matter with which it deals.

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

----S. 6---Word "possess"---Meaning---"Possess" as mentioned in S.6 of Control of Narcotic Substances Act, 1997, means that it is necessary to show that accused had article which turned out to be narcotic drugs---Prosecution must prove that accused was knowingly in control of something in the circumstances, which showed that he was assenting to be in control of it and it is not necessary to show in fact that accused had actual knowledge of that which he had---Knowledge is an essential ingredient of the offence as word "possess" connotes in the context of S.6 of Control of Narcotic Substances Act, 1997 would be frustrated.

(1969) 2 AC 256 (11.L) rel.

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

----S. 29---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Possession of illicit articles---Presumption---Onus to prove---Duty is caste upon the Court to presume in trial under Control of Narcotic Substances Act, 1997, that accused has committed an offence under the Act, unless contrary is proved---If case is of possession of narcotic drugs than first prosecution has to establish the fact that narcotic drugs were secured from the possession of accused then Court is required to presume that accused is guilty unless accused proves that he was not in possession of such drugs---It is necessary for prosecution to establish that accused has some direct relationship with narcotic drugs or has otherwise dealt with it---If prosecution proves detention of articles or physical custody of it then burden of proving that accused was not knowingly in possession of the article is upon him---Practical difficulty of prosecution to prove something within the exclusive knowledge of accused must have made Legislature think that if onus is placed on prosecution the object of Control of Narcotic Substances Act, 1997, would be frustrated---Prosecution, by virtue of S.29 of Control of Narcotic Substances Act 1997, has only to show by evidence that accused has dealt with narcotic substance or has physical custody of it or directly concerned with it, unless accused proves by preponderance of probability that he did not knowingly or consciously possess the article---Without such proof, accused can be held guilty by virtue of S.29 of Control of Narcotic Substances Act, 1997.

Inder Sain v. State of Punjab AIR 1973 SC 2309 rel.

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

----Ss. 9(c) & 29---Reappraisal of evidence---Recovery of narcotics---Possession of driver---Scope---Charas weighing 268 kilograms was recovered from secret cavities of vehicle---Driver of the vehicle and his co-accused were convicted under S.9(c) of Control of Narcotic Substances Act, 1997, and were sentenced to imprisonment for life---Conviction and sentence awarded by Trial Court was maintained by High Court---Validity---Accused who was driving the vehicle was in possession of the vehicle and also in possession of the articles whatever lying in it---Allegation against co-accused was that on his information secret cavities of vehicle were opened and Charas was secured---Co-accused had knowledge of availability of Charas in secret cavities of the vehicle, therefore, he was also involved in the case along with driver---Supreme Court declined to interfere in the conviction and sentence awarded to both the accused---Appeal was dismissed.

Sherzada v. State 1993 SCMR 149; Adil Ahmed v. Deputy Collector C&CE 1991 SCMR 1951; Rab Nawaz v. The State PLD 1994 SC 858 and Nadir Khan v. State 1988 SCMR 1899 ref.

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

----Ss. 9(c) & 29---Qanun-e-Shahadat (10 of 1984), Art.122---Reappraisal of evidence---Recovery of narcotics---Fact specially within knowledge---Onus to prove---Charas weighing 268 kilograms was recovered from secret cavities of vehicle and accused were arrested from the vehicle---Plea raised by accused was that they were not in knowledge of presence of narcotics in the vehicle---Validity---No evidence was led by prosecution to indicate that accused knew that Charas or narcotic substance was concealed in secret cavities or had knowledge of that place so as to attract the provisions of Art.122 of Qanun-e-Shahadat, 1984---If property was lying open within the view of accused or they knew placement of property then situation would be different in such situation, accused were required to explain their position in terms of Art.122 of Qanun-e-Shahadat, 1984, without such explanation their involvement in the case would be proved---Such knowledge of accused had not been proved through any evidence either oral or documentary, therefore, they were not required to explain anything---Prosecution had simply proved presence of accused in the vehicle and mere presence of accused in vehicle would not involve them in the case conspiracy or abatement of the offence was shown and proved, therefore, prosecution failed to prove the case against the accused--Supreme Court set aside conviction and sentence awarded to accused and they were acquitted of the charge---Appeal was allowed.

Qaisarullah v. State 2009 SCMR 579 ref.

Ch. Muhammad Akram, Advocate Supreme Court for Appellants (in all cases).

Zafar Ahmed Khan, Additional P.-G., Sindh for the State (in all cases).

Date of hearing: 19th January, 2010.

2010 S C M R 937

[Supreme Court of Pakistan]

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

MUHAMMAD GHAUS---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 196-L of 2009, decided on 2nd April, 2009.

(Against the order, dated 10-2-2009, passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 12100/B of 2008).

Penal Code (XLV of 1860)---

----S.302---Constitution of Pakistan (1973), Art.185(3)---High Court had already issued direction to the Trial Court to conclude the trial of the case within a period of three months---Trial Court, however, was to proceed with the trial of the case expeditiously which would meet the ends of justice---Petition for leave to appeal, having no force was dismissed, in circumstances.

Malik Rab Nawaz, Advocate Supreme Court for the Petitioner.

Alamgir, A.P.G. and Zulfiqar Ali, S.-I., Police Station Chiniot for the State.

2010 S C M R 939

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

ZAFAR ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.479 of 2009 out of Jail Petition No.237 of 2009, decided on 29th January, 2010.

(On appeal from the judgment dated 1st April, 2009 of the Lahore High Court, Lahore passed in Criminal Appeal No.291-J 2008 and Capital Sentence Reference No.34-T of 2006).

Per Tariq Pervez, J., Mian Shakirullah Jan, J., agreeing; Rahamat Hussain Jafferi, J., contra.---[Majority view].

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

----Ss.302(b), 377 & 201---Anti-Terrorism Act (XXVII of 1997), Ss.4(a) & 7(a)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--Qatl-e-amd, unnatural offence and causing disappearance of evidence of offence or giving false information to screen offender---Reappraisal of evidence---Extra judicial confession---Last seen evidence---Recovery of Shalwar---Substitution of accused---Sentence of death awarded to accused by Trial Court was altered by High Court into imprisonment for life---Validity---Three independent pieces of evidence comprising of extra judicial confession, last seen evidence and recovery of Shalwar belonging to deceased on the pointation of accused from a place which was in exclusive knowledge of accused only which was witnessed by two prosecution witnesses---Though some foundation was laid down in cross-examination to show that there was some hostility between complainant and accused over non-payment of wages/salaries for which no independent evidence was led---Father who had lost his eight years old son would not bring false charge against innocent person for few hundred rupees---Prosecution witnesses did not have any reason to make false statement against accused---Prosecution had brought on record sufficient and unchallenged evidence which created strong link to connect the criminal with the crime who was none else but the accused---Supreme Court declined to interfere in conviction and sentence awarded to accused by High Court---Appeal was dismissed.

Per Rahmat Hussain Jafferi, J., not agreeing with Tariq Parvez, J.---[Minority view.

(b) Confession---

---Inadmissible confession---Scope---Confession which was obtained after issuing threat and inducement, was not voluntary and was an inadmissible piece of evidence.

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

---Ss.302(b), 377 & 201---Anti-Terrorism Act (XXVII of 1997), Ss.4(a) & 7(a)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-e-amd, unnatural offence and causing disappearance of evidence of offence or giving false information to screen offender---Re-appraisal of evidence--Circumstantial evidence---Giving up of material witness---Presump­tion---Medical evidence---Time of death---Determination---Sentence of death awarded to accused by Trial Court was altered by High Court into imprisonment for life---Validity---One prosecution witness who was present and available in court and his evidence could have been recorded but he was given up on the ground of being unnecessary, without realizing the fact that such was an important witness as the case hinged upon circumstantial evidence only---In such circumstances an adverse inference as required under Art.129, illus (g) of Qanun-e-Shahadat, 1984, could be drawn that had the witness been examined he would have been unfavourable to prosecution---Deceased was a child of 8 years but dead body was not decomposed, there was no discolouration of skin, body was not swollen, all internal organs were normal and there was no foul smell---All such conditions showed that death did not take place about two days back but they showed that body appeared to be fresh---Decomposition of body of a child would start much earlier than the adult---Evidence had been manipulated by prosecution to fit in the circumstances of the case---Prosecution had failed to prove the case against accused beyond reasonable doubt, therefore, conviction and sentence awarded to accused by High Court was set aside and he was acquitted of the charges---Appeal was allowed.

Muhammad Rahim v. Bakht Muhammad 2006 SCMR 1217; Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Muhammad Sadiq v. The State PLD 1960 SC 223; Saeed Muhammad Shah v. State 1993 SCMR 550 and Modi's Medical Jurisprudence ref.

(d) Criminal trial---

----Evidence---Improvements in statement made by witness in court to strengthen prosecution case are not worthy of reliance.

Saeed Muhammad Shah v. State 1993 SCMR 550 rel.

(e) Criminal trial---

----Last seen evidence---Scope---Such evidence without corroboration is weak type of circumstantial evidence to base conviction.

Ghulam Murtaza v. The State PLJ 1991 SC 434; Naqibullah v. State PLD 1978 SC 21 and Karamat Hussain v. State 1972 SCMR 15 rel.

Syed Zafar Abbas Naqvi, Advocate Supreme Court for Appellant.

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

Date of hearing: 27th January, 2010.

2010 SCMR 949

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

NADEEM alias NANHA alias BILLA SHER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.370 of 2008, decided on 9th February, 2010.

(On appeal from the judgment dated 20-5-2008 of the Lahore High Court, Lahore passed in Criminal Appeal No.2152 of 2002, Murder Reference No.136 of 2007).

Per Khilji Arif Hussain, J, Sardar Muhammad Raza Khan, J. agreeing; Anwar Zahir Jamali, J. contra.---[Majority view].

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

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Benefit of doubt---Chance and interested witness---Imposition of sentence---Principles---Death sentence awarded to accused under S.302(b), P.P.C. by Trial Court was maintained by High Court---Validity---Complainant and other eyewitness were chance witnesses as they should not normally be present at the place of occurrence; it was difficult to rely upon statements of such witnesses being chance and interested witnesses---In order to convict accused for murder court must be satisfied first that the murder was committed then it must be satisfied that accused had committed murder---Question of sentence demanded utmost care on the part of court dealing with life and liberties of accused person---Prosecution withheld evidence of an eyewitness and real son of deceased did not make any statement about motive--No independent witness of locality, which was a Bazar, where incident took place, joined and the same had made prosecution case doubtful---Any genuine doubt arising out of circumstances of the case should be extended to accused as of right and not as concession---Prosecution failed to prove case against accused beyond shadow of doubt---Supreme Court set aside conviction and sentence awarded to accused, who was acquitted of the charge---Appeal was allowed.

Anwar Zaheer Jamali, J. contra.---[Minority view].

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

----S.302---Qatl-e-amd---Reappraisal of evidence---Chance witnesses---Motive, absence of---Withholding of one eye-witness---Effect---Death sentence awarded to accused under S.302(b), P.P.C. by Trial Court was maintained by High Court---Plea raised by accused was that complainant and eye-witness were chance witnesses, therefore, reliance could not be placed upon their testimony---Validity---Ocular testimony of both eye-witnesses, despite lengthy cross-examination, remained consistent and un-shattered---Looking at the distance from the place of occurrence and where one prosecution witness was standing and other prosecution witness arrived during occurrence and distance of residence of complainant from place of occurrence, it could not be said that complainant was a chance witness---Both the eyewitnesses of occurrence were natural witnesses as one of them was independent while the other though not independent, being son of deceased but was eye-witness of occurrence, therefore, their evidence could not be rejected for any fanciful reason----Non-examination of third prosecution witness, it was the sole prerogative of prosecution to examine any number of witnesses, it deemed fit---Mere non-appearance of any eyewitness would not justify adverse inference to the case of prosecution on such account---Quality of evidence and not its quantity which mattered more---Mere absence of motive or weakness of motive attributed to accused would not in any manner, adversely affect the case of prosecution, as undoubtedly motive was a thing which in many of the cases remained shrouded in mystery, as it was only in the mind of accused, who had committed crime for that reason---Both the courts below had passed their respective judgments with full application of minds, keeping in view the evidence adduced by prosecution in support of its case against accused---Appeal was dismissed.

Mazhar Iqbal Sidhu, Advocate Supreme Court for Appellant.

Zulfiqar Abbas Naqvi, Advocate Supreme Court for the Complainant.

Shahid Mehmood Abbasi, Dy. P.-G., for the State.

Date of hearing: 20th January, 2010.

2010 SCMR 964

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

MUHAMMAD IBRAHIM---Petitioner

Versus

THE STATE---Respondent

Criminal Review Applications Nos. 1 and 2 of 2007 in Criminal Petitions Nos.42 and 43-Q of 2006, decided on 26th November, 2009.

(From the judgment dated 27-12-2006 passed by this Court in Crl. Ps. Nos.42 and 43-Q of 2006 and on appeal from the judgment dated 16-10-2006 passed by the High Court of Balochistan, Quetta in ATA Cr.As.Nos.277 and 278 of 2005).

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

----Art.188---Review petitions---All the arguments made in the review petitions had already been comprehensively considered and decided in the impugned judgment passed by Supreme Court---Counsel for the petitioner in fact wanted re-examination and re-evaluation of the entire evidence once again, which could not be done while dilating upon the review petition---Review could not be granted on the ground that certain facts required reappraisement---Rearguing a case on merits as well as additional grounds, was beyond the scope of review petition---Review petitions were devoid of merits and the same were dismissed accordingly.

Basharat Khan v. The State 1984 SCMR 1033; Zulfikar Ali Bhutto v. State PLD 1979 SC 741; Muhammad Nazir v. State 1979 SCMR 89; Kala Khan v. Misri Khan 1979 SCMR 347; Saghir Ali v. Mehr Din 1968 SCMR 729; Manzoor Hussain v. Zohra Bibi PLD 1990 SC 924; Haji Muhammad Sarwar v. Mian Asad Hakim and others 1983 SCMR 177 and Jalal v. Nazir Ahmad 1980 SCMR 320 ref.

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

----Art.188---Review of Supreme Court judgments---Scope---Review cannot be granted on the ground that certain facts required re­appraisement or for re-examination of the same arguments---Rearguing a case on merits as well as additional grounds was beyond the scope of review by Supreme Court.

Basharat Khan v. The State 1984 SCMR 1033; Zulfikar Ali Bhutto v. State PLD 1979 SC 741; Muhammad Nazir v. State 1979 SCMR 89; Kala Khan v. Misri Khan 1979 SCMR 347; Saghir Ali v. Mehr Din 1968 SCMR 729; Manzoor Hussain v. Zohra Bibi PLD 1990 SC 924; Haji Muhammad Sarwar v. Mian Asad Hakim and others 1983 SCMR 177 and Jalal v. Nazir Ahmad 1980 SCMR 320 ref.

Kamran Murtaza, Advocate Supreme Court for Petitioner.

Syed Ayaz Zahoor, Senior Advocate Supreme Court for the Complainant/respondent.

2010 SCMR 966

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

SHOUKAT ILAHI---Petitioner

Versus

JAVED IQBAL and others---Respondents

Criminal Petition No.7 of 2010, decided on 1st March, 2010.

(Against order dated 15-12-2009 of Lahore High Court, Lahore, passed in Criminal Miscellaneous No.15102-BC of 2009).

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

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd---Bail, refusal of---Accused was nominated in the F.I.R. with the motive and specific role of having fired with his co-accused at the deceased after raising `Lalkara"---Statements of prosecution witnesses recorded under S.161, Cr.P.C. as well as medical evidence had supported the prosecution version---Prima facie, incident had been committed by more than one person and reasonable grounds existed for believing involvement of accused in the case---Accused having been declared innocent by police during investigation alone was not a valid ground for grant of bail---None of the grounds valid for grant of bail in a case falling under the prohibitory clause of S.497, Cr.P.C., was available to accused---Accused had not raised the plea of alibi at the time of moving his bail before arrest application, meaning thereby that he had no such defence at that time---Even otherwise, accused had relied upon the evidence of a large number of witnesses in support of his plea of alibi, which could not be evaluated at present stage and would be assessed at the trial--Impugned order of High Court did not suffer from any illegality or irregularity---Bail was declined to accused and leave to appeal was refused in circumstances.

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

----S.497---Bail---Grounds for grant of bail in cases falling within the prohibitory clause---Bail can be granted in such cases; firstly if the court finds reasonable grounds for believing that the accused has not committed the offence; secondly, if the accused is sick, infirm or under the age of 16 years and his remaining in jail would be detrimental to his life, or is a woman; and thirdly, if the case requires further inquiry into the guilt of accused that he has not committed a non-bailable offence etc.

Maqbool Elahi Malik, Senior Advocate Supreme Court for Petitioner.

Abdul Qadus Rawal, Advocate Supreme Court for Respondent No.1.

Date of hearing: 1st March, 2010.

2010 SCMR 970

[Supreme Court of Pakistan]

Before Javed Iqbal and Raja Fayyaz Ahmed, JJ

ASAD KHAN MENGAL and others---Appellants

Versus

MUHAMMAD AFZAL SHOUQ and others---Respondents

Civil Appeal No.46-Q of 2009, decided on 8th March, 2010.

(On appeal from the judgment dated 3-5-2007 passed by the Balochistan Service Tribunal, Quetta in S.A. No.59 of 2003).

(a) Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider the contention of civil servant that merely because respondents claimed that they possessed required qualification or that there were vacancies, Service Tribunal had no justification to order retrospective promotion of respondents with effect from 18-10-1992, which order was in excess of jurisdiction and against the promotion policy/rules and Service Tribunal erred in law to treat officiating promotion as regular promotion.

H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd, Karachi and another PLD 1969 SC 65; Government of Pakistan through Secretary Establishment Division v. Bashir Ahmed Khan PLD 1985 SC 309 and Muhammad Iqbal Fraooqi v. Secretary Irrigation and Power Department and others 1987 PLC (C.S.) 25 ref.

(b) Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Necessary party---Non-impleading of---Remedy for party not impleaded---Principles of natural justice---Applicability---Appeals filed by respondents were allowed by Service Tribunal and they were promoted retrospectively---Grievance of appellants was that they were not impleaded in the appeals before Service Tribunal, as they were necessary party to the proceedings---Validity---No fault could be attributed to appellants for non-impleadment, as it was for the respondents to get appellants impleaded being necessary party but they were not arrayed as respondents before Service Tribunal for the reasons known to respondents---Appellants could not be left without remedy especially when they were adversely affected by the judgment of Service Tribunal---Supreme Court set aside judgment passed by Service Tribunal and case was remanded to Service Tribunal for decision afresh---Supreme Court directed Service Tribunal to implead appellants as necessary party and to provide proper opportunity of hearing to all of them.

Sm K. Pannalagu Ammal v. The State of Madras and others AIR 1953 Mad. 485, An Infant 1958 1 Q B 12; J Rustamji of Lahore v. Official Liquidator of the People's and Amritsar Bank Ltd. and another AIR 1919 Lah. 180; Indian Bank Ltd, Madras v. Saith Bansiram Jashmal Firm and another AIR 1934 Mad 360, Al-Kisan Transport Co., Ltd. v. Regional Transport Authority, Lahore PLD 1961 Lah. 723 and H.M. Saya and Co. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record, for Appellants.

Kamran Murtaza, Advocate Supreme Court for Respondents Nos. 1 to 7.

Tariq Ali Tahir, Addl. A.-G. for Respondents Nos.8 to 10.

Date of hearing: 25th November, 2009.

2010 S C M R 973

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Ch. Ijaz Ahmed, J

ANWAR KHAN---Petitioner

Versus

FAZAL MANAN---Respondent

Civil Petition No.676-P of 2006, decided on 2nd March, 2010.

(Against the judgment dated 12-6-2006 passed by the Peshawar High Court, Peshawar in Civil Revision No.1525 of 2005).

(a) Administration of justice---

----Courts, in absence of express provision, normally should not refuse proper relief to a party on technical ground---Principles.

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

----S. 9---Jurisdiction of Civil Court-Scope-Civil Court being court of both law and equity should dispose of cases on merits and not on technical consideration---Principles.

Civil courts are courts of both law and equity and in the absence of special reasons, they should also be inclined to do substantial justice and matters of controversy should also be disposed of on merits and not on technical consideration. This is always more important in cases where there is apprehension that the party concerned shall be seriously prejudiced if the application or suit is not restored.

(c) Administration of justice---

----Legal formalities and procedural provisions---Object stated.

The principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice.

The duty of the court is to do justice between the parties. The procedure prescribed is always for the purpose of doing justice between them and should not come in the way of doing substantial justice.

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

----O. VII, R.2 & O.IX, R. 13---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for recovery of money on basis of agreement---Defendant's denial to have executed such agreement---Non­appearance of defendant on 21-3-2005 fixed for plaintiffs evidence resulted in passing of ex parte decree on 9-4-2005 after examining one marginal witness of agreement---Application by defendant for setting aside such decree filed on 20-6-2005---Defendant's plea that instead of 21-3-2005, he wrongly noted 11-4-2005 as date of hearing, on which date he came to know of passing of ex parte decree---Judgment of Trial Court dismissing such application upheld by Appellate Court and in revision by High Court---Validity---Mistake about date of hearing, if occurred by misapprehension of a party or some times by unintentional wrong communication by clerk of court could not be excluded from scope of bona fide mistake---According to contents of application, misunderstanding was created due to fact that file had been misplaced as informed by official of the court---Defendant seemed to be sufficiently vigilant and was making inquiries about proceedings from all relevant quarters as evident from contents of his application---Defendant's mistake about date of hearing was bona fide as such plea was duly supported by his affidavit and plaintiff could not deny same expressly in reply of application---Possibility of noting down a wrong date could not be ruled out in such circumstances---Such bona fide mistake of defendant would amount to sufficient cause for restoration of suit---Law would favour adjudication on merits, unless there was un-surmounted practical difficulties---Courts below should have exercised discretion in favour of defendant coupled with fact that plaintiff had not proved agreement in terms of Arts.17 & 79 of Qanun-e-Shahadat, 1984---Supreme Court set aside impugned judgments and remanded case to Trial Court for its decision afresh within specified time after affording proper opportunities of hearing to parties.

(e) Administration of justice---

----Law favours adjudication on merits and this principle is to be followed unless there are practical difficulties, which cannot be surmounted.

Saeed Baig, Advocate Supreme Court and M. Ismail Fehmi, Advocate-on-Record for Petitioner.

Muhammad Arif Khan, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Respondent.

2010 SCMR 978

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Khilji Arif Hussain, JJ

ABDUL REHMAN and others---Appellants

Versus

GHULAM MUHAMMAD through L.Rs. and others---Respondents

Civil Appeal No.639 of 2006, decided on 11th February, 2010.

(On appeal against the judgment dated 1-3-2006 passed by Lahore High Court, Lahore in R.S.A. No.81 of 1998).

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

----Ss. 39 & 8---Limitation Act (IX of 1908), Arts.91, 120, 142, 143 & 144---Suit for cancellation of sale-deed and possession of land---Execution of sale-deed in favour of defendant by "B" alleging to be general attorney of plaintiff---Plaintiff's plea that he had not appointed "B" as his general attorney; that general power of attorney in favour of "B" was a forged document, thus, impugned sale-deed and subsequent exchange of suit land by defendant with father of alleged general attorney of plaintiff were void and liable to be cancelled---Impugned sale-deed was executed on 22-7-1972, but suit was filed on 5-12-1984---Proof---After plaintiffs denial to have appointed "B" as his general attorney, onus shifted to defendant to prove that plaintiff had in fact appointed "B" as his general attorney---Defendant neither produced general power of attorney nor examined marginal witnesses thereof nor examined alleged general attorney and his father despite being alive and living in same village and one house---Trial Court dismissed suit as time-barred despite finding that impugned sale-deed and alleged general power of attorney were forged documents; and that defendant with a view to protect his fraud had intentionally not produced general power of attorney in evidence---High Court decreed suit on the ground that defendant had failed to prove execution of alleged general power of attorney, thus, impugned sale-deed and subsequent transactions pursuant thereto were void and did not exist in eyes of law, which matter would be governed by Art.144 of Limitation Act, 1908 and not Art.91 or 120 thereof---Validity---While considering question of limitation in such like suit, court must keep in view distinction between void and voidable documents---As per such findings of Trial Court, impugned sale-deed was a void transaction and relevant Article applicable thereto would be Art.142 or 144 of Limitation Act, 1908---High Court had rightly decided question of limitation---Supreme Court dismissed appeal filed by defendant.

Anwar Zaman v. Bahadar Sher 2000 SCMR 431 and Hamida Begum v. Murad Begum PLD 1975 SC 624 ref.

Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329 and Abdul Majid and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 rel.

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

----S. 39---Limitation Act (IX of 1908), Arts.91, 142, 143 & 144---Suit for cancellation of document---Limitation, question of---Factors requiring consideration by court stated.

While considering the question of limitation in a suit seeking cancellation of certain documents, the court has to keep in view the distinction between the documents, which are void ab initio and nullity in the eyes of law and documents/instruments, which are voidable and require a formal cancellation through a judicial verdict.

Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329 rel.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court for Appellants.

Khizar Ahbas Khan, Advocate Supreme Court for the Respondents.

2010 SCMR 984

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

AHMAD NAWAZ KHAN---Petitioner

Versus

MUHAMMAD JAFFAR KHAN and others---Respondents

Civil Petition No.178 of 2010, decided on 23rd February, 2010.

(Against the judgment dated 7-12-2009 passed by the Peshawar High Court, Abbottabad Bench in C. R. No.453 of 2009).

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

----S. 8---Punjab Tenancy Act (XVI of 1887), S.5---Suit for possession and mesne profits---Plaintiff claimed to be owner of suit land, while alleged defendant to be occupancy tenant and subsequent entry of his name in columns of lagan to be wrong---Denial of plaintiff's claim by defendant---Proof---Revenue Record for year 1953-54 showed suit Khasra to be path, but subsequent change in year 1958-59 in column of cultivation by inserting defendant's name as tenant, and then in year 1967-68, his name was got changed from tenant to Ghair Dakheldar---Validity---Defendant's name existed in column of cultivation followed by subsequent entry of Bila Lagan would change his status to be as owner of suit land---Entries in column of Logan not corroborated by other evidence could not take precedence over column of cultivation or ownership---Defendant had failed to establish himself to be owner of suit-land---Suit was decreed in circumstances.

Thema's case PLD 1990 SC 629 and Shad Muhammad's case PLD 1986 SC 91 rel.

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

----S. 115---Concurrent findings by courts below---Revisional jurisdiction of High Court---Scope---Such jurisdiction to interfere in such findings was very limited.

Hindu Religious Endowments Board, Madras's case PLD 1949 PC 26 rel.

(c) Administration of justice---

----Courts have power to grant an effective or ancillary relief, even if not prayed for.

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

----Art. 185(3)---Concurrent findings by courts below---Jurisdiction of Supreme Court---Scope---Generally Supreme Court would not interfere in such findings.

Muhammad Ashraf Hashmi, Advocate Supreme Court and Mehmood Ahmad Sheikh, Advocate-on-Record for the Petitioner.

Nemo for Respondents.

2010 SCMR 988

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

RASOOL BAKHSH NAICH through L.Rs. and others---Petitioners

Versus

Syed RASOOL BAKHSH SHAH through L.Rs. and others---Respondents

Civil Appeals Nos.709 to 711 of 2006, decided on 23rd February, 2010.

(On appeal against the judgment dated 19-11-2004 passed by Lahore High Court, Bahawalpur Bench in R.S.A. Nos.50 to 52 of 1985).

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

----Ss. 8 & 27(b)---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Two rival suits in field in respect of suit-land, one by prior vendee alleging written agreement to sell in his favour and delivery of its possession, and other by subsequent vendee alleging oral agreement to sell in his favour---Prior vendee in support of written agreement examined vendor, scribe and attesting witnesses thereof and produced Khasra Girdawri regarding his possession over suit-land---Validity---Vendor as witness had affirmed to have entered into written agreement to sell with prior vendee and received sale consideration---Subsequent vendee during cross-examination could not create any dent in credibility of vendor---Prior vendee had proved delivery of possession by producing Khasra Girdawri and examining witnesses---Prior vendee by producing such evidence had discharged initial cries to prove execution of agreement and delivery of possession indicating his lien over suit-land-Subsequent vendee had neither pleaded nor proved in affirmative lack of knowledge or notice of such prior written agreement nor had alleged same to be fake---Nothing on record to show that subsequent vendee had made any enquiry regarding such prior written agreement or lien over suit­-land---Factum of possession of prior vendee over suit-land was sufficient notice to subsequent vendee that there was a prior lien and charge thereon---Suit filed by prior vendee was decreed and that filed by subsequent vendee was dismissed in circumstances.

Surraya Begum v. Subhan Begum 1992 SCMR 652; Rasheeda Bibi v. Mukhtar Ahmad 2008 SCMR 1384 and A. Razzak Adamjee v. Datari Construction Co. (Pvt.) Ltd. 2005 SCMR 142 at 174 ref.

Varden Seth Sam v. Luckpathy Royjee Lallah (9 MIA 307); Bhup Narain Singh v. Gokul Chand Mahton and others AIR 1934 PC 68; Muhammad Ashraf v. Ali Zaman 1992 SCMR 652; Muhammad Bashir v. Iftikhar Ali PLD 2004 SC 465 and Shah Muhammad v. Inayat Ullah PLD 1953 Lah. 87 rel.

Ramakrishna v. Chidambara AIR 1928 Mad. 407; Abdul Haq v. Yehia Khan AIR 1924 Patna 81 and Abdul Haque v. Shaukat Ali 2003 SCMR 74 distinguished.

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

----Ss.8 & 27(b)---Civil Procedure Code (V of 1908), Ss.96, 100, O.XIV, R.1 & O.XX, R.5----Constitution of Pakistan (1973), Art.185(3)----Suit for specific performance of agreement to sell---Contests between prior vendee and subsequent vendee of suit-land---Suit filed by prior vendee decreed by Trial Court upheld by first and second Appellate Courts---Objection of subsequent vendee raised before Supreme Court that Trial Court had not framed issue regarding his pleas with reference to S.27(b) of Specific Relief Act, 1877 and genuineness of written agreement in favour of prior vendee---Validity---Subsequent vendee had not raised such objection either in his written statement or appeals before first and second Appellate Courts---Issue framed by Trial Court as to whether vendor had agreed to sell suit-land to prior vendee in lieu of sale consideration, was substantially relatable to such objection---Supreme Court repelled the objection.

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

----Ss.8 & 27(b)---Suit for specific performance of agreement to sell---Contest between first vendee and second vendee---Second vendee denying having notice of prior agreement in favour of first vendee---Proof---In order to plead exception in terms of S.27(b) of Specific Relief Act, 1877, second vendee had to prove to be a bona fide purchaser for value and without notice of prior agreement---Second vendee, in order to claim relief in equity, had not only to deny notice of any previous agreement, but had to prove same by affirmative evidence.

Virden Seth Sam v. Luckpathy Royjee Lallah (9 MIA 307); Bhup Narain Singh v. Gokul Chand Mahton and others AIR 1934 PC 68; Muhammad Ashraf v. Ali Zaman 1992 SCMR 652; Muhammad Bashir v. Iftikhar Ali PLD 2004 SC 465 and Shah Muhammad v. Inayat Ullah PLD 1953 Lah. 87 rel.

Gulzarin Kiani, Senior Advocate Supreme Court for Appellants (in all cases).

Jaafar Hashmi, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 23rd February, 2010.

2010 SCMR 999

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

Civil Review Petition No. 75 of 2008 in Civil Appeal No. 91 of 2001

MUHAMMAD ALTAF---Petitioner

Versus

PAKISTAN ATOMIC ENERGY COMMISSION and others---Respondents

(For review of judgment of this Court order dated 16-4-2008 passed in

Civil Appeal No. 91 of 2001) Civil Review Petitions Nos.76 and 77 of 2008 in Civil Appeals Nos.92 and 93 of 2001

MUHAMMAD AKBAR BAQIR---Petitioner

Versus

PAKISTAN ATOMIC ENERGY COMMISSION and others---Respondents

(For review of judgment of this Court dated 16-4-2008 passed in Civil Appeal No. 92 of 2001).

Civil Review Petition No.75 of 2008 (in Civil Appeal No. 91 of 2001) and Civil Review Petitions Nos.76 and 77 of 2008 (in Civil Appeals Nos. 92 and 93 of 2001), decided on 1st March, 2010.

Land Acquisition Act (I of 1894)---

----Ss. 23 & 54---Civil Procedure Code (V of 1908), S.110 & O.XLV, R.1---Supreme Court Rules, 1980, O.XII, R.2 & O.XXVI, R.1---Constitution of Pakistan (1973), Arts.188, 185(2)(d) & (3)---Land acquisition---Compensation, determination of---Dismissal of first appeal by High Court---Petition for leave to appeal against impugned judgment instead of filing direct appeal under S.54 of Land Acquisition Act, 1894---Refusal of Supreme Court to convert such petition into appeal due to applicability of statutory provision and while treating same as direct appeal dismissed same as time-barred and on merits---Petition for review of such judgment of Supreme Court on ground of non-taking into consideration question of limitation in its true perspective---Validity---After omission of S.110, C.P.C., rigours thereof applicable to appeals under S.54 of Land Acquisition Act, 1894 had been diluted---Remedy of direct appeal under S.54 of the Act was proper remedy, which had not been availed within time---Period of limitation for direct appeal under S.54 of Act had expired much before 16-10-1998, when petitioner filed petition for leave to appeal against judgment of High Court dated 19-11-1997 after excluding period lawfully consumed in obtaining its certified copy---Question of limitation was discretionary in nature, which Supreme Court had declined to examine in absence of application for condonation of delay by petitioner---Such exercise of discretion by Supreme Court being made judiciously was not open to review---Petitioner had not made out a case for review of impugned judgment made on merits also---Review petition was dismissed in circumstances.

?

Abdur Rauf Khan v. Land Acquisition Collector 1991 SCMR 2164; Chairman, N.-W.F.P. Forest Development Corporation v. Khurshid Anwar Khan 1992 SCMR 1202; Hyderabad Development Authority v. Abdul Majeed PLD 2002 SC 84; Taza Gui v. Fazal Subhan 2006 SCMR 504; Zulfiqar v. Shahadat Khan PLD 2007 SC 582 and Imtiaz Ali v. Atta Muhammad PLD 2008 SC 462 ref.

WAPDA v. Saadullah Khan 1999 SCMR 319 rel.

Malik Noor Muhammad Awan, Advocate Supreme Court for Petitioners.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Respondent No.1.

Date of hearing: Ist March, 2010.

2010 SCMR 1007

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

SAJID alias BABA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.269 of 2009, decided on 4th January, 2010.

(On appeal from judgment dated 26-7-2005 of the High Court of Balochistan, Quetta passed in Criminal Appeal No.272 of 2004).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Possession of narcotic---Leave to appeal was granted to accused to consider the quantum of sentence subject to limitation of 600 days in the case in which huge quantity of "Charas" and opium was secured from a car being driven by him and intercepted by the police.

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

----S. 9(c)---Possession of narcotic---Appraisal of evidence---Contentions raised on behalf of accused had been adequately addressed by the Courts below assessing the evidence on record on the settled principles of law---Property secured from the possession of accused being more than 10 kilograms, sentence of life imprisonment could only be awarded to him, which was the minimum sentence provided for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997-Impugned judgment, thus, did not call for any interference---Plea taken by accused for condonation of delay of 600 days in filing of appeal could not be proved by him---Appeal was consequently dismissed being devoid of merits and barred by time.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate Supreme Court on behalf of Prosecutor-General Balochistan for the State.

Date of hearing: 4th January, 2010.

2010 SCMR 1009

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

Criminal Appeal No.48/Q of 2009

MUHAMMAD SHAH----Appellant

Versus

THE STATE----Respondent

(Against judgment dated 11-5-2009 of Balochistan High Court, Quetta passed in Criminal Appeal No.198 of 2008).

Criminal Petition No.35/Q of 2009

Haji JALAT KHAN----Petitioner

Versus

HABIBULLAH and others----Respondents

(Against judgment, dated 11-5-2009 of Balochistan High Court Quetta passed in Criminal Appeal No.198 of 2008)

Criminal Appeal No.48/Q of 2009 and Criminal Petition No.35/Q of 2009, decided on 25th January, 2010.

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

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Complainant was not the eye-witness of the occurrence---Eye-witnesses had been rightly disbelieved by High Court---Question was as to whether the defence taken in the cross-examination, which was abandoned by the accused in his statement recorded under S.342, Cr.P.C., could be made basis for convicting him---Any stand taken by the accused in the cross-examination was merely in the form of suggestion---Even several defences taken by accused would not improve the prosecution case, which would stand on its own evidence---Had the accused taken such defence in his statement under section 342, Cr.P.C., the same could have been validly taken into consideration---Accused had examined two defence witnesses to the effect that he was being abducted by the deceased and his companions, but they did not state anything about scuffle between the accused and the deceased---Even in cross-examination it had not been specifically suggested or shown as to who was armed with knife and caused injuries to the deceased---Two interpretations of the evidence being possible, one favouring the accused would be adopted---Stand taken by accused in the cross-examination did not show that he had caused injuries to the deceased---Evidence appearing in the cross-examination was not put to the accused in his statement under S.342, Cr.P.C. enabling him to explain the circumstances, particularly when the same had been abandoned by him, and it, therefore, could not be used against him---Accused was acquitted in circumstances.

?

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Stand taken by accused in cross-examination---Value---Any stand taken by accused in cross-examination is merely in the form of suggestion---Accused can take several defences, but that will not improve the prosecution case, which has to stand on its own evidence.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Principle---When two interpretations of evidence are possible, one favouring the accused and the other favouring the prosecution, then the one favourable to the accused is required to be taken into consideration.

?

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

----S.342---Qanun-e-Shahadat (10 of 1984), Arts.132, 2(c) & 71---Examination of accused---All the incrirninating pieces of evidence available on record in examination-in-chief, cross-examination or re-examination of witnesses are required to be put to the accused, if the same are against him, while recording his statement under S.342, Cr. P. P.C. ---Evidence means examination-in-chief, cross-examination and re-examination if any, as provided under Art.132 read with Arts.2(c) & 71, Qanun-e-Shahadat, 1984.?

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

----S. 342---Penal Code (XLV of 1860), 302(b)---Qatl-e-amd---Appreciation of evidence---If any incriminating piece of evidence is not put to accused in his statement under S.342, Cr.P.C. for his explanation, then the same cannot be used against him for his conviction.?

M. Aslam Chishti, Advocate Supreme Court and S.A.M.

Quadri, Advocate-on-Record for Appellant (in Criminal Appeal No.48/Q of 2009).

Raja Abdul Ghafoor, Advocate Supreme Court on behalf of Government of Balochistan for the State (in Criminal Appeal No.48/Q of 2009).

Syed Iftikhar H. Gillani, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioner (in Criminal Petition No.35/Q of 2009).

Raja Abdul Ghafoor, Advocate Supreme Court on behalf of Government of Balochistan for the State (in Criminal Petition No.35/Q of 2009).

Date of hearing: 25th January, 2010.

2010 SCMR 1016

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Tariq Parvez Khan, JJ

MUHAMMAD JANAS and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.9 and 48 of 2009, decided on 12th November, 2009.

(On appeal from the judgment dated 22-10-2008 of the Lahore High Court Lahore, Rawalpindi Bench passed in Criminal Appeal No.213 of 2002).

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

----S. 9(c)---Possession of narcotic---Appraisal of evidence---Huge quantity of "Charas" and opium had been recovered by police from a vehicle parked with two tyres burst---Accused, no doubt, named in the F.I.R., but it was not known as to who had provided their names to the complainant police officer---Police after having received the wireless message about the encounter between the Customs Staff and the assailants, instead of keeping interaction with Customs Staff, had opted to first go to the vehicle, recovered the narcotics, prepared recovery memos and samples etc. and after everything was done only thereafter started search for the accused---Manner in which police had proceeded was neither explainable, nor correct or acceptable---Accused were neither seen while sitting in the said vehicle nor running away from there---Mere apprehension of the accused with Klashnikovs in the absence of any evidence connecting them with the vehicle in question, did not prove the offence alleged against them---Accused were acquitted in circumstances.

Noor Alam, Advocate Supreme Court for Appellants.

Mian Asif Mumtaz, Dy.P.-G., Punjab for Respondent (in both cases).

Date of hearing: 12th November, 2009.

2010 SCMR 1020

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

ALTAF HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.590 of 2006, decided on 23rd February, 2010.

(On appeal from judgment of Lahore High Court, Lahore dated 7-10-2003 passed in Criminal Appeal No.1528 and Criminal Revision No.1048 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-F(c)---Qatl-e-amd and hurt---Appraisal of evidence---Accused had caused both the fatal injuries to the deceased with a "Chhuri" after taking out the same from the fold of his Shalwar in the presence of several persons including the eye-witnesses---Role of accused was not only specified in the F.I.R., but was also proved on record by the confidence inspiring ocular evidence-Non-proof or weakness of the motive behind the occurrence could not dislodge the prosecution case, otherwise proved beyond reasonable doubt---Accused had failed to substantiate his defence plea---Ocular testimony was natural, firm and free from material contradictions---Appeal was dismissed in circumstances.

Muhammad Yaqub v. State PLD 1969 Lah.548; Ashiq Hussain v. State PLD 1994 SC 879; Khan v. State 2006 SCMR 1744 and Zulfiqar Ali v. State 2008 SCMR 796 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 23rd February, 2010.

2010 SCMR 1025

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

FAISAL MEHMOOD and another----Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.20 and 21 of 2004, decided on 29th September, 2009.

(On appeal from the judgment dated 13-11-2002 of the Lahore High Court Lahore, passed in Criminal Appeal No.657 of 2000 and Criminal Revision No.363 of 2000).

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

----S.302(b)---Qatl-e-amd---Appraisal of evidence---Enhancement of sentence---Presence of the two eye-witnesses, closely related to deceased, in his "Baithak" at the time of occurrence was not open to any serious exception---Eye-witnesses who lived near the house of the deceased were independent witnesses of the occurrence and they had no reason or motive to maliciously implicate the accused in the crime after sparing the actual killer of their near and dear one---Mere relationship of the witnesses with the deceased was of no consequence, unless they were established to be inimical to the accused, which was not the situation in the present case---Reliable ocular testimony did not need any corroboration to lose conviction and the conviction of accused was accordingly upheld---Accused had displayed a desperate character and had shown a callous and a reckless disregard for a human life having taken the same on account of a trivial altercation with the deceased without any background of any enmity between them---Accused had come to the place of occurrence after arming himself with a firearm and had fired a shot at the neck of the deceased from a close range---Occurrence was a planned crime committed by the accused---Nothing was available on record to justify a sympathetic, a lenient or a concessional treatment for the accused---Sentence of imprisonment for life awarded to accused was enhanced to one of death in circumstances.

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

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Related witness, credibility of---Principles---Relationship of the witness with the deceased alone is of no consequence, unless he is established to be inimical towards the accused.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Appellant (in Criminal Appeal No.20 of 2004).

Syed Seerat Hussain Naqvi, Advocate Supreme Court for Appellant (in Criminal Appeal No.21 of 2004).

Syed Ali Imran, D.P.-G. for the State.

Date of hearing: 29th September, 2009.

2010 SCMR 1029

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

KHAN MUHAMMAD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.146 of 2009, decided on 17th February, 2010.

(On appeal from the judgment dated 12-4-2006 passed by the High Court Balochistan, Sibbi in Criminal Appeal No(S)32 of 2005 and Murder Reference No.(S)23 of 2005).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Qatl-e-amd, causing disappearance of evidence of murder---Appraisal of evidence--Father of complainant was missing and untraceable---Complainant did not know the accused prior to occurrence and he had lodged the F.I.R. after three months after arrest of one accused simply on suspicion---On pointation of one accused two months old dead body of a trials person was recovered from an abandoned house, which was not in identifiable condition---No one from the family of the deceased or his friends had been examined to depose that how and when he had seen and identified the discovered dead body as of father of the complainant---Neither any mark of injury was found on the dead body, nor the cause of death could be ascertained by the Doctor whether it was a case of unnatural death or otherwise--No postmortem of the dead body was conducted---Statement of co-accused recorded under S.164, Cr.P.C. was not voluntary and to a greater extent was exculpatory and hearsay---Accused were acquitted of the charge under S.302(b), P.P.C. in circumstances---Accused who had got recovered the dead body was proved on record to have concealed its secret burial inside an abandoned house and he was convicted under S.201, P.P.C. and sentenced to seven years' R.I. with fine accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Appellants.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 17th February, 2010.

2010 SCMR 1036

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MEHMOOD HUSSAIN LARK and others----Petitioners

Versus

MUSLIM COMMERCIAL BANK LIMITED and others----Respondents

C. Review Petitions No.2-K, 3-K and 15-K of 2009, heard on 31st December, 2009.

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, OXXVI, R.1---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R. 1---Review---Scope---Review not competent against incorrect conclusion of Court arrived at after a conscious perusal of record---Principles.

Before an error to be a ground of review, it is necessary that it must be one which is apparent on the face of the record, and that it must be so evident, so clear, that no Court could permit such an error to remain on record. Incorrectness of a conclusion arrived at after a conscious perusal of record and an in depth examination of evidence cannot be made a ground for review, because to permit a review on the ground of incorrectness would amount to granting the Court jurisdiction of re-hearing appeals against its own judgments.

Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801 rel.

Petitioners in person.

Mehmood A. Ghani, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents.

2010 SCMR 1039

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

ISHTIAQ MASIH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.122 of 2009, decided on 10th February, 2010.

(On appeal from judgment dated 24-4-2008 of Lahore High Court, Lahore passed in Criminal Appeal No.227/J of 2003).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 427---Qatl-e-amd---Appraisal of evidence---Presence of eye-witnesses at the time and place of incident was highly doubtful and it was very unsafe to rely upon them on capital charge---Recovery of blood stained "Chhuri" on the pointation of accused, being a corroborative piece of evidence, by itself, was insufficient to convict him in the absence of substantive piece of evidence---Accused was acquitted in circumstances.

Noor Muhammad v. State 2010 SCMR 97 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 10-2-2010.

2010 SCMR 1042

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain, Rahmat Hussain Jafferi and Tariq Pervez, JJ

Mehr MANZOOR HUSSAIN and others----Appellants

Versus

MUHAMMMAD NAWAZ and another----Respondents

Civil Appeal No.73 of 2006, decided on 25th March, 2010.

(On appeal from the judgment dated 16-11-2005 of the Lahore High Court Multan Bench passed in R.S.A. No.27 of 1991).

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

----S.39---Limitation Act (IX of 1908), Arts.44 & 120---Contract Act (IX of 1872), S.11---Suit for cancellation of sale-deed---Limitation---Execution of sale agreement on 23-5-1956 and registration of sale-deed on 18-9-1956 by plaintiff during his minority---Filing of suit on 20-7-1972---Plea of defendant that suit was time barred as plaintiff was bound to file same within three years from date of his attaining majority in terms of Art.44 of Limitation Act, 1908---Validity---Where sale agreement was executed by natural guardian or a guardian appointed by Court, then minor could question its validity within three years under Art.44 of Limitation Act, 1908 upon attaining majority---Where sale agreement was executed by minor during his minority, then such transaction being void ab initio could be challenged within a reasonable period when minor on becoming major acquired its knowledge---Plaintiff on date of execution of such documents for being minor was not competent to enter into an agreement, thus, both such documents were void ab initio---Mutation in respect of suit-land was recorded in year, 1972---Plaintiff after becoming major on acquiring knowledge of transfer of his land through such mutation had immediately filed suit on 20-7-1972---Suit was decreed in circumstances.

Buland Khan and 6 others v. Muhammad Rafiq and 6 others PLD 1979 Lah.237 and Yamin Khan and 5 others v. Rais Jhangli Khan and another 1999 CLC 1755 ref.

Chairman District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi PLD 1976 SC 258 and Muhammad Ali through L.Rs. and another v. Manzoor Ahmed 2008 SCMR 103 rel.

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

----S. 39---Limitation Act (IX of 1908), Arts.44 & 120---Contract Act (IX of 1872), S.11---Suit for cancellation of sale agreement---Limitation---Where sale agreement was executed by a natural guardian or guardian appointed by a Court, then minor was bound to question its validity within three years under Art.44 of Limitation Act, 1908 upon attaining majority---Where sale agreement was executed by minor himself, then such transaction being void ab initio could be challenged within a reasonable period, when he on becoming major acquired its knowledge.

Chairman District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi PLD 1976 SC 258 and Muhammad Ali through L.Rs. and another v. Manzoor Ahmed 2008 SCMR 103 rel.

Malik Abdus Sattar Chughtai, Advocate Supreme Court for Appellants.

Malik Muhammad Latif Khokhar, Advocate Supreme Court for Respondent No.1.

Respondent No.2: Ex parte.

Dated of hearing: 25th March, 2010.

2010 SCMR 1047

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD IMRAN alias PAPPU----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.369 of 2008, decided on 12th November, 2009.

(On appeal from judgment of the Lahore High Court, Lahore, dated 16-10-2008 passed in Murder Reference No.615 and Criminal Appeal No.1216 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-­amd---Appraisal of evidence---Complainant and the other eye-witness had no enmity with the accused---Ocular testimony was untainted and did not need any corroboration---Motive had been proved---Postmortem report had supported ocular evidence---"Chhuri" recovered from accused was found to be stained with human blood---Accused had never reacted on the spot, he went to his house and had sufficient time to cool down---Accused did not cool down and returned to the spot while armed with "Chhuri" -Such killing after the lapse of time was a killing in cold blood and he deserved the normal penalty of death---Conviction and sentence of death of accused were upheld in circumstances and leave to appeal was refused to" him accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner:

Shahid Mehmood Abbasi, D.P.-G. for the State.

Date of hearing: 12th November, 2009.

2010 SCMR 1049

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmad and Muhammad Sair Ali, JJ

Haji MUHAMMAD BOOTA and others----Petitioners

Versus

MEMBER (REVENUE) BOR and others----Respondents

C.R.P.No.117-L of 2003 in C.P. No.22-L of 2000 and C.R.P. No.140-L in C.P. No.84-L of 2000, decided on 19th March, 2010.

(From the judgment dated 13-6-2003 passed by this Court in C.Ps. Nos.22-L and 84-L of 2000 and on appeal from the judgment, dated 13-12-1999 of Lahore High Court, Bahawalpur Bench, Bahawalpur passed in R..F.A. No.61 of 1997).

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Supreme Court Rules, 1908, O.XXVI, R.1---Review petition---Prayer for re-examination and re-evaluation of entire evidence having been considered by Supreme Court in the impugned judgment---Validity---Review could not be granted for re­appraisement of certain facts or re-examination of same arguments or re-arguing/rehearing case on merits and additional grounds---Review petition was dismissed in circumstances.

Basharat Khan v. The State 1984 SCMR 1033; Zulfikar Ali Bhutto v. State PLD 1979 SC 741; Muhammad Nazir v. State 1979 SCMR 89; Kala Khan v. Misri Khan 1979 SCMR 347; Saghir Ali v. Mehr Din 1968 SCMR 729; Manzoor Hussain v. Zohra Bibi PLD 1990 SC 924; Haji Muhammad Sarwar v. Mian Asad Hakim and others 1983 SCMR 177; Jalal v. Nazir Ahmad 1980 SCMR 320; Abdul Hamid Saqfi v. Service Tribunal of Pak. 1988 SCMR 1318; Ali Khan v. Shahzaman 1980 SCMR 332; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504; Maqbool Ahmad Tabassam v. State 1980 SCMR 907; Nawab Bibi v. Hamida Begum 1968 SCMR 104; Mohd Hayat v. Government of West Pak. 1968 SCMR 107; Muhammad Najeebullah v. Government of Pakistan 1968 SCMR 768; Muhammad Ghaffar v. State 1969 SCMR 12; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 5; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 247; Feroz Din v. Allah Ditta 1969 SCMR 10; Dewan Jairamadass and others v. Syed Niamat Ali and others 1983 SCMR 330; Akbar Ali Bukhari v. State Bank of Pakistan 1981 SCMR 518; Master Tahilram v. Lilaram 1970 SCMR 622; Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner Pakistan 1968 SCMR 800; Rehmatullah v. Abdul Majid 1968 SCMR 838; Hassan Din v. Claims Commissioner 1969 SCMR 1047; Qamar Din v. Maula Bakhsh 1968 SCMR 1042; Muhammad Akram v. State 1970 SCMR 418; Muhammad Akram v. State 1970 P.Cr.LJ 909; Zulfikar Ali Bhutto v. The State 1979 SCMR 427; Rizwan Co-operative Society Ltd. v.. Custodian of Evacuee Property 1978 SCMR 449; Farzand Ali v. Mohd. Arif 1979 SCMR 281 and Rashiduddin Qureshi v. State 1979 SCMR 99 rel.

S.M. Zafar, Senior Advocate Supreme Court for Petitioners (in C.R.P. No.117-L of 2003 in C.P. No.22-L of 2000).

Khadim Hussain Qaisar, Additional Advocate-General, Aslam Shahid, D.S. and Shabbir Hussain, S.O. for Respondents Nos.1 and 2 (in C.R.P. No.117-L of 2003 in C.P. No.22-L of 2000).

Badar Munir, Advocate Supreme Court for Respondents Nos.3 to 10 (in C.R.P. No.117-L of 2003 in C.P. No.22-L of 2000).

Badar Munir, Advocate Supreme Court for Petitioner (in C.R.P. No.140-L of 2003 in C.P. No.84-L of 2000).

Khadim Hussain Qaisar, Additional Advocate-General, Aslam Shahid, D.S. and Shabbir Hussain, S.O. for Respondents Nos.1 and 2 (in C.R.P. No.140-L of 2003 in C.P. No.84-L of 2000).

S.M. Zafar, Senior Advocate Supreme Court for Respondents Nos.3 to 15 (in C.R.P. No.140-L in C.P. No.84-L of 2000).

Date of hearing: 13th January, 2010.

2010 SCMR 1054

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

MUHAMMAD NAEEM INAYAT----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.434 of 2006, decided on 11th February, 2010.

(Against judgment dated 9-2-2005 of Lahore High Court, Lahore passed in Criminal Appeals Nos.1177, 1390 and Criminal Revision No.784 of 2003).

Penal Code (XLV of 1860)---

----Ss. 302(b), 404 & 379/411---Qatl-e-amd, dishonest misappropriation of the property of the deceased---Appraisal of evidence---Ocular witnesses had improved their statements at the trial by assigning other parts except the part assigned to accused at the initial stage with a view to strengthen the prosecution case---Reason shown by the eye-witnesses for their presence at the scene of incident on the request of the accused was unreliable, unbelievable and against the natural conduct of a person---Eye-witnesses had not seen the occurrence---Serious doubt had been created in the prosecution version qua the involvement of the accused in the commission of the crime---Misreading of evidence by both the Courts below had resulted in miscarriage of justice---Accused was acquitted in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 11th February, 2010.

2010 S C M R 1057

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Anwar Zaheer Jamali and Khilji Arif Hussain JJ

Messrs AHMAD DEVELOPERS----Petitioner

Versus

MUHAMMAD SALEH and others----Respondents

Civil Petition No.358-K of 2008, decided on 2nd February, 2010.

(On appeal from the order of the High Court Sindh, Karachi dated 29-5-2008 passed in C.P. No.1645 of 2007).

Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)---

----S. 3---Constitution of Pakistan (1973), Arts.199 & 185(3)---Constitutional petition before High Court---Allotment of land, cancellation of---Subsequent regularization of allotment in favour of petitioner, and his withdrawal of such petition for having been awarded relief prayed for by Land Utilization Department---Plea of private respondent that petitioner having agreed to sell disputed land to him could not have allowed to withdraw such petition---Validity---Petitioner had contested such sale agreement, thus, private respondent was required to firstly establish his contractual rights against petitioner and only thereafter could have a claim against petitioner for committing breach of such agreement---Said department was privy to such agreement or any dealings with private respondent---Contest on factual controversy could only have been determined through a civil suit and not in constitutional jurisdiction before High Court---Such plea of private respondent was repelled in circumstances---Leave to appeal was declined.

Javaid Iqbal Abbasi and Co. v. Province of Punjab 1996 SCMR 1433 distinguished.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1.

Abdul Fateh Malik, Additional Advocate-General, Sindh for Respondents Nos.2 to 8.

2010 S C M R 1060

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani Mahmood Akhtar Shahid Siddiqui, JJ

OIL AND GAS DEVELOPMENT COMPANY and others----Appellants

Versus

NAZAR HUSSAIN and others

Civil Appeals Nos. 1124 to 1126 of 2009, decided on 18th January, 2010.

(On appeal against the judgment, dated 10-4-20009 passed by Federal Service Tribunal, Islamabad in Appeals Nos.740, 913 and 925(R)CE) of 2004).

Oil and Gas Development Corporation (Re-organization) Ordinance (XXVIII of 2001)---

----S. 5---General Clauses Act (X of 1897), S.24---Service Tribunals Act (LXX of 1973), S.4---Reinstement in service---Principle of consistency---Employee of Oil and Gas Development Company---Status---Non-statutory rules---Effect---Respondent was employee of the Company, who along with some other employees was removed from service on the charge of theft---Service Tribunal allowed the appeal of respondent and reinstated him in service---Plea raised by Company was that it did not have statutory rules, therefore, Service Tribunal had no jurisdiction over the matter---Validity---Employees of Oil and Gas Development Company continued to be governed under Service Regulations framed in year, 1994, unless those were varied and amended or repealed as the case might be---Principal accused who allegedly transported pipes joints in question, was reinstated into service by department---No pecuniary loss was suffered by the company and pipes joints in question were recovered and restored to company---Appellant-company neither raised any question of law of public importance within the meaning of Art. 212 of the Constitution nor raised any illegality to warrant interference---Appeal was dismissed.

State Bank of Pakistan through Board SBP and others v. Agha Muhammad Aurangzeb Khan C.P. No.318 of 2005 ref.

Ch. Naseer Ahmed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondents.

2010 SCMR 1066

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

SARDAR ALI----Petitioner

Versus

Mst. SARDAR BIBI alias SARDARAN through L.Rs.----Respondents

Civil Petition No.1663-L of 2009, decided on 12th November, 2009.

(On appeal from the order, dated 23-6-2009 of the Lahore High Court Bahawalpur Bench passed in R.F.A. No.76 of 1993).

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

----S.182---Qanun-e-Shahadat (10 of 1984), Art.119---General Power of Attorney, execution of---Burden of proof---Duty and obligation of beneficiary of power of attorney to prove its execution.

Mst. Najma v. Rehmat Ali and others 2004 MLD 602 rel.

(b) Power of Attorney---

----Power of attorney has to be construed strictly.

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

----S.3----Contract Act (IX of 1872), S.182---Power of Attorney, attestation of---Scope---Definition of "attestation" contained in S.3 of Transfer of Property Act, 1882 required attestation of an instrument by two or more witnesses---Role of witnesses in attestation of an instrument would be that each of then had seen executant sign or affix his thumb-mark thereto or some other person sign same in presence and under direction of executant.

Abdul Hakeem v. Mst. Jannat Bibi 2005 SCMR 1228 rel.

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

----Ss.58 & 60---Attestation of document by Sub-Registrar was rebuttable.

Atta Muhammad and others v. Mehtab Bibi and another 1985 SCMR 144 rel.

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

----S.12(2)---Qanun-e-Shahadat (10 of 1984), Art.118---Decree, setting aside, application for---Fraud and misrepresentation, grounds of---Burden of proof---Onus would lie on applicant to substantiate such grounds---Illustration.

Zahid Hussain Shah, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 12th November, 2009.

2010 SCMR 1071

[Supreme Court of Pakistan]

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

MUHAMMAD ARSHAD KHOKHAR----Petitioner

Versus

Mrs. ZOHRA KHANUM and others----Respondents

Civil Petition No.889-L of 2007, decided on 15th April, 2009.

(Against judgment dated 15-3-2007 of the Lahore High Court Lahore passed in Writ Petition No.2762 of 2006).

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

----S.13(2)(i)---Rent due, payment of---Absence of documentary evidence in proof of terms of tenancy---Effect---Such tenancy would be deemed to be oral---In absence of specific date for its payment, rent would become due on last date of month and default could be said to have been committed after 60 days of such last date.

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

----S. 13(2)(i)---Ejectment petition---Ground of delay of 2/3 days in deposit of rent for four non-consecutive months in two years---Validity---Rent Controller had discretion either to accept or reject ejectment petition on such ground for word "may" having been used in S.13(2) of West Pakistan Urban Restriction Ordinance, 1959---Tenant had been depositing rent on his own after getting permission from Rent Controller---Record did not show that such default of 2/3 days was either intentional or wilful---Late deposit of rent on a few occasions during all such long period would be inconsequential, moreso when tenant every time had been depositing rent in lump sum for three months---Tenant had not committed default in payment of rent in circumstances---Ejectment petition was dismissed.

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

----S. 13(6)---Order to deposit tentative rent---Default of one day in depositing such rent would be fatal to tenant.

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

----Ss.11 & 13(2)(iv)---Ejectment petition---House rented out and being used by tenant for residential purposes required by landlord for running business therein---Non-obtaining of permission by landlord from Rent Controller to convert residential building into a non-residential building---Effect---Tenant could not be ejected from the disputed house for the use as a non-residential---Ejectment petition was dismissed in circumstances.

Petitioner in person.

S.M. Masood Advocate Supreme Court for Respondent No.1.

Date of hearing: 15th April, 2009.

2010 S C M R 1076

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Muhammad Akhtar Shabbir and Ghulam Rabbani, JJ

SULEMAN and others----Petitioners

Versus

ABDUL MAJEED and others----Respondents

Civil Petition No.3867-L of 2001, decided on 1st June, 2009.

(On appeal against the judgment dated 2-10-2001 passed by Lahore High Court, Lahore in R.S.A. No.83 of 1989).

Specific Relief Act (I of 1877)---

----S. 8---Constitution of Pakistan (1973), Art.185(3)---Suit for possession---Plaintiff claimed to be allottee of suit property on basis of Permanent Transfer Deed issued in his favour---Suit decreed by Trial Court, but dismissed by First Appellate Court on the ground that suit-land being agricultural in nature could not have been allotted to plaintiff under relevant scheme---High Court in second appeal reversed such findings of First Appellate Court for not being based on evidence on record---Defendant's prayer before Supreme Court for issuing direction to Revenue authorities to demarcate land allotted to plaintiff---Validity---Evidence on record showed that suit-land fell within Municipal limit, which had rightly been allotted to plaintiff---Such prayer of defendant at such stage was not tenable and he might, if so advised, take appropriate proceedings in revenue hierarchy---Supreme Court refused leave to appeal in circumstances.

Zahid Hussain Khan, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioners.

Mian Muhammad Nawaz, Advocate Supreme Court for Respondents Nos.1 to 3.

2010 SCMR 1078

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

ANEES AHMED----Petitioner

Versus

SECRETARY MINISTRY OF MINORITIES AND RELIGIOUS AFFAIRS, GOVERNMENT OF PAKISTAN and others----Respondents

Civil Petition No.1207-L of 2007, decided on 5th April, 2010.

(On appeal from the order dated 16-5-2007 passed in Writ Petition No.4666 of 2007).

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

----S.10---Constitution of Pakistan (1973), Art.185(3)---Evacuee Trust property---Determination of status---Jurisdiction of Chairman Evacuee Trust Properties Board---Plea raised by petitioner was that property in question could not be declared as Evacuee Trust Property, as proceedings regarding its allotment were initiated in his favour---Validity---Property in question was declared as Evacuee Trust by Chairman Evacuee Trust Properties Board and revision petition preferred against it was also dismissed by Federal Government---Petitioner could not point out that as to how exercise of power by Chairman Evacuee Trust Properties Board and Federal Government was illegal or ultra vires---Petitioner had no right in property in question, therefore, question of its infringement did not arise---Property in question remained Dharamsala' in old Revenue Record which was subsequently converted into Primary School for Girls and accordingly its nature was changed and it was recorded as land toRafah-i-Aamah'---High Court rightly dismissed the petition filed by petitioner, as the same was frivolous and misconceived---Leave to appeal was refused.

State of Orissa v. Ram Chandra AIR 1964 SC 685; Dineshcharan v. State of M.B. AIR 1953 Madh. B165; Kandaswamy v. Deputy Registrar AIR 1954 Mad.348 and Laxman Singh v. Raj Pramukh, M.B. AIR 1953 Madh-B. 54 rel.

Sh. Naveed Shahryar, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

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

Date of hearing: 5th April, 2010.

2010 S C M R 1081

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

KHURSHEED LATIF and others

Versus

FEDERATION OF PAKISTAN and others

C.P.L.A. No.488-K of 2009, decided on 24th September, 2009.

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Constitutional petition---Pakistan Railways, employee of---Pension, calculation of---Cost of living allowance @ 7% of basic pay and ad hoc relief of Rs.300 per month announced by Government of Pakistan not treated by Authority as part of petitioner's emolument for calculation of his pension---Validity---Government, vide notification 4-9-2001 while introducing revised pay scale w.e.f. 1-12-2001 had withdrawn such allowance and ad hoc relief---According to said notification, such allowance was not liable to be treated as part of emolument for purpose of calculation of pension---Petitioner, after such withdrawal had only perused claim for pensioanry benefits in respect of such ad hoc relief and not such allowance---Petitioner after issuance of such notification and his retirement from service filed constitutional petition on 13-3-2007---Such unexplained inordinate delay on part of petitioner would amount to lathes---Leave to appeal was refused by Supreme Court in circumstances.

Abrar Hassan, Senior Advocate Supreme Court and Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 24th September, 2009.

2010 S C M R 1084

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

ZAFAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.79 of 2009, decided on 26th January, 2010.

(On appeal from the judgment dated 10-5-2006 of the Lahore High Court Lahore passed in Criminal Appeal No.250-J of 2001 and Murder Reference No.428 of 2001).

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

----S. 302(b) Constitution of Pakistan (1973), Art.185(3)---Qatl-e­-amd---Leave to appeal was granted to the accused by Supreme Court to the extent of examination of quantum of sentence.

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

----S. 302(b)---Qatl-e-amd---Sentence of death, validity of---Accused was brother-in-law of the complainant and the only nominated accused in committing the brutal murder of the deceased---No reason was available for false involvement of accused in the case---Accused had caused repeated Hatchet blows on the vital parts i.e. head and fore-head of the deceased, who was a young man of 25 years of age---No mitigating circumstances justifying lesser sentence under section 302(b), P.P.C. appeared on record---Appeal was dismissed in circumstances.

Hafiz Aman, Advocate Supreme Court for Appellant.

Shahid Mehmood Abbasi, D.P.-G. for the State.

Date of hearing: 26th January, 2010.

2010 S C M R 1087

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Mahmood Akhtar Shahid Siddiqui, JJ

ABDUL LATIF alias MUHAMMAD LATIF alias BABU----Appellant

Versus

DIL MIR and others----Respondents

Civil Appeal No.1028 of 2005, decided on 6th August, 2009.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 20-6-2005 passed in Civil Revision No.1776 of 2002).

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

----S.13---Pre-emption suit---Talb-i-Muwathibat, performance of---Sale through mutation attested on 29-8-1996---Plaintiff's plea in plaint was that he made such Talb on 11-9-1996, when he was informed about sale by "A" at his house in evening (SHAM), where he in presence of "H" also made such Talb, whereafter all they went to Patwari for obtaining copy of mutation, which was delivered to plaintiff on following day; that all they went to defendant and made an unsuccessful request for transferring suit-land to plaintiff, resultantly notice of Talb-i-Ishhad was issued to defendant---Proof---Plaintiff during cross-examination mentioned 10/11 O'clock as time he visited house of "A", who stated that plaintiff visited his house after 12 o'clock---Witness "H" stated that plaintiff's visit was at 12½ O'clock, but during cross-examination stated that he could not remember exact time of plaintiff's visit---Validity---Evidence of such witnesses had been recorded 3-1/2 years after taking place of such an event---Such witnesses could not be expected to have noted exact time of plaintiff's visit or recorded same somewhere for preparation of testimony in Court---Times mentioned by plaintiff and his witnesses related to midday rather than midnight---Mention of word "Sham" in plaint would be considered a vague term as its timing might vary according to individual perception---Difference in timings given by such witnesses was natural and would be a factor in support of their truthfulness---Suit was decreed in circumstances.

S.M. Masood, Senior Advocate Supreme Court for Appellant.

Muhammad Farooq Qureshi Chishti, Advocate Supreme Court for Respondents.

Date of hearing: 6th August, 2009.

2010 SCMR 1090

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmad and Muhammad Sair Ali, JJ

KHADIM HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.161 of 2009, decided on 16th November, 2009.

(On appeal from the judgment dated 20-3-2008 passed by the Lahore High Court, Lahore in Criminal Appeal 272/J of 2002).

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

----Ss.302(b) & 452---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd and house trespass---Defence witness being closely related to both the parties and occupant of the house of occurrence had in his statement excluded the presence of the complainant at the time of the incident, making the case of accused for further scrutiny---Leave to appeal was granted to accused to reappraise the evidence.

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

----Ss. 302(b) & 452---Qatl-e-amd and house trespass---Appraisal of evidence---Eye-witnesses were trustworthy and reliable, who had highlighted each and every aspect of the tragic incident without making any glaring contradictions, dishonest exaggeration, omission or concealment in their statements---Inter se relationship of the eye-witnesses could not discard their statements, as it was the intrinsic value of the evidence which was important and not their relationship---No motive on the part of ocular witnesses for false implication of accused was seriously alleged---Medical evidence, recovery of blood-stained "Chhuri" at the instance of accused and the positive report of Chemical Examiner had fully corroborated the ocular version---Barbaric and heinous murder of the lady and her minor daughter had been committed in the broad-daylight---Promptly lodged F.I.R. assigning a specific role to accused had negated the possibility of consultation or deliberation---Strong motive of accused to commit the double murder had been established categorically by the prosecution---Co-accused had been rightly acquitted on benefit of doubt, as no concrete evidence had come on record to substantiate the factum of conspiracy or abetment against them---Doctrine of "falsus in uno falsus in omnibus" was no longer applicable in prevalent system of criminal administration of justice and grain had to be sifted from the Chaff in each case in the light of its own peculiar circumstances---Courts below had rightly discarded the defence version after dilating upon the same---Accused had committed a barbaric and gruesome double murder and he deserved no leniency in matter of sentence---Appeal was dismissed by Supreme Court in circumstances.

Muhammad Mansha v. The State 2001 SCMR 199; Noor Elahi v. Zafarul Haque PLD 1976 SC 557; Samano v. State 1973 SCMR 162 and Riaz Hussain v. The State 2001 SCMR 177 ref.

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

----Ss. 302(b) & 452---Qatl-a-amd and house trespass---Appraisal of evidence---Interested witness, credibility of---Principle---Interested witness is one who has a motive to falsely implicate an accused or has some rancour or enmity against him---Statement of an interested witness can be taken into consideration without corroboration and even his uncorroborated version can be relied upon, if supported by the surrounding circumstances.

Muhammad Mansha v. The State 2001 SCMR 199 ref.

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

----Ss. 302(b) & 452---Qatl-e-amd and house trespass---Appraisal of evidence---Motive---Significance---Motive is a double edged weapon, but its significance and importance cannot be ignored---Motive cannot be "sine qua non" for bringing offence home to accused and yet it is relevant and significant enough to determine the factum of intention and can be considered in view of facts and circumstances of the case.

Noor Elahi v. Zafarul Haque PLD 1976 SC 557 ref.

(e) Maxim---

----Falsus in uno falsus in omnibus---Applicability---Scope---Doctrine of "falsus in uno falsus in omnibus" is not applicable in prevalent system of criminal administration of justice and moreso there is no rule universally applicable that where some accused were not found guilty, the other accused would ipso facto stand acquitted, because the Court has to sift the grain from the Chaff in each case in the light of its own peculiar circumstances---Rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts without reservations and cannot be accepted as one of universal application.

Samano v. State 1973 SCMR 162 and Riaz Hussain v. The State 2001 SCMR 177 ref.

Arshad Ali Chaudhry, Advocate Supreme Court for Appellant.

Shahid Mehmood Abbasi, D.P.-G. for Respondent.

Date of hearing: 16th November, 2009.

2010 SCMR 1097

[Supreme Court of Pakistan]

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

C.P. No.1923 of 2004

LAHORE DEVELOPMENT AUTHORITY---Petitioner

Versus

FIRDOUS STEEL MILLS (PVT.) LTD ---Respondent

(On appeal from the order dated 10-2-2004 passed by Lahore

High Court, Lahore in C.M. No.1 of 2001 and 1 of 2003 in Writ Petition No.1271 of 1995)

C.P. No.366/L of 2004

MUHAMMAD ISMAIL QURESHI---Petitioner

Versus

FIRDOUS STEEL PVT. LTD.---Respondent

(On appeal from the order, dated 10-2-2004 passed by Lahore High Court, Lahore in Criminal Original No.1124/W of 2001 in Writ Petition No.1271 of 1995).

C.P. No.1923-L and Cr.P. Nc.366-L of 2004, decided on 24th October, 2005.

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

----S.12(2)---Decree, setting aside of---Grounds for want of jurisdiction, misrepresentation or fraud---Remedy---Decree on such grounds could be set aside either on application under S.12(2), C.P.C., or through an appeal, a revision or review, if available under law.?

(b) Words and phrases---

----"Fraud"---Definition.?

Blacks Law Dictionary Fifth Edition ref.

(c) Words and phrases---

----"Misrepresentation"---Definition.

Blacks Law Dictionary fifth Edition ref.

(d) Words and phrases---

----"Collusion"---Definition.?

Blacks Law Dictionary fifth Edition ref.

(e) Fraud---

----Fraud not provable by direct evidence, but would be inferred from surrounding circumstances and conduct of parties.?

(f) Fraud---

----Fraud would vitiate most solemn proceedings.?

Talab Hussain and others v. Member Board of Revenue and others 2003 SCMR 549; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 rel.

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

----Arts. 185(3) & 199---Civil Procedure Code (V of 1908), S.12(2)---Constitutional petition before High Court---Maintainability---Land acquisition by Lahore Development Authority (LDA)---Refusal of LDA to exempt plot of 16 Kanals in lieu of acquired land of petitioner, over which Steel Mills existed---Order of High Court accepting constitutional petition in view of consenting report and parawise comments filed by officials of LDA---Application under S.12(2), C.P.C., by LDA for setting aside such order of High Court---Application by LDA for amendment of application under S.12(2), C.P.C.---Dismissal of both such applications by High Court---Validity---Officials of LDA by filing consenting report and parawise comments in violation of ground realities existed at spot and policy of LDA, had colluded with petitioner and secured order from High Court in his favour---Such application under S.12(2), C.P.C., could be decided without framing issues---High Court had erred in law not to allow such application for amendment---Both parties produced all relevant documents before Supreme Court, which proceeded to decide case itself instead of remanding same to High Court---Respondent had placed his case on basis of observation of Town Planner mentioned in award coupled with exemption policy of LDA---Such observation for not being based on any provision of law could not give any right to petitioner---Petitioner for maintaining constitutional petition was bound to show violation of statutory provisions by LDA---Constitutional petition was not maintainable as there was no violation of statutory rules of LDA---Contents of constitutional petition and both such applications, if put in juxtaposition, would bring petitioner's case in area of disputed question of fact, which could not be decided in constitutional jurisdiction---Petitioner could not take benefit of exemption policy of LDA for being applicable only to residential plots--No discriminatory treatment with petitioner was found---Acceptance of petitioner's claim for exempting hint 16 Kanals land would be discriminatory to other inhabitants of area, who had secured only 10 Marlas---Supreme Court dismissed constitutional petition in circumstances.

?

Mst. Izat and others v. Khuda Baldish PLD 1959 Kar.221; Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134; Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184; Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655 and Zafarullah and others v. Dost Muhammad and others PLD 1984 Lah.396 ref.

Rehmat Ali v. Muhammad Younas Haji and others PLD 1963 SC 191; Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Ali Mir's case 1984 SCMR 433; Muhammad Younis's case 1993 SCMR 618 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 rel.

(h) Land Acquisition Act (1 of 1894)--

----S.11---Award of land acquisition, observation in---Validity---Such observation, if not based on provision of law, could not give any right to landowner.?

(i) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition against Development Authority (LDA)---Absence of violation of statutory rules by LDA---Effect---Petitioner was bound to show violation of statutory provisions by LDA as a condition precedent for maintaining such petition---Constitutional petition was not maintainable, in circumstances.?

(j) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Disputed questions of fact---Validity---Such questions could not be decided in constitutional jurisdiction of High Court.?

Muhammad Younis's case 1993 SCMR 618 rel.

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

Muhammad Saleem Sh. Advocate Supreme Court for Respondent (in both petitions).

2010 SCMR 1108

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

GULZAR AHMED----Petitioner

Versus

YAQOOB KHAN and others----Respondents

Civil Petition No.395-P of 2003, decided on 4th March, 2010.

(On appeal from the judgment/order, dated 10-3-2003 of the Peshawar High Court Peshawar passed in Writ Petition No.272 of 2001).

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

----S. 9---Contract Act (IX of 1872), S.188---Suit for possession---Plaintiff's plea that he as tenant was doing business in suit shop through attorney/agent, who in order to satisfy his debt handed over its possession to defendant without plaintiff's consent---Validity---If attorney/agent had no authority to hand over possession of suit shop, then plaintiff had remedy against attorney/agent and not by filing such suit against defendant---Unauthorized act of an agent in excess of his authority in all cases would not be binding upon his principal---Nothing on record to show that attorney was in possession of shop by fraud, misrepresentation or against freewill of plaintiff or that defendant had been informed that attorney/agent had no authority to surrender possession of shop---Suit was dismissed in circumstances.

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

----S.9---Object of S.9 of Specific Relief Act, 1877 being to discourage dispossession without due process of law and consent of person in possession and provide him summary remedy without going into title of property.

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

---Ss. 188 & 196---Unauthorized act of an agent in excess of his authority in all cases would not be binding upon his principal.

Mir Adam Khan, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Astaghfirullah, Advocate Supreme Court for Respondents Nos.1 and 2.

Respondent No.3 in person.

Date of hearing: 4th March, 2010.

2010 SCMR 1110

[Supreme Court of Pakistan]

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

Messrs SHIFA INTERNATIONAL HOSPITAL LTD.----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

Civil Petition No.807 of 2009, decided on 28th August, 2009.

(On appeal from the judgment of the Islamabad High Court Islamabad, dated 3-3-2009 passed in Writ Petition No.3662 of 2004).

Capital Development Authority Ordinance (XXIII of 1960)---

----Ss.15-A, 49 & 51---Capital Development Authority (Imposition of Taxes) Rules, 1981, R.60)---Municipal Administration Ordinance (X of 1960), Ss.33 & 34---Islamabad Land Disposal Regulations, 2005---Islamabad Land Disposal Regulations, 1993---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Establishment of Hospital on an "Institutional Plot" allotted under Islamabad Land Disposal Regulations, 1993---Demand of property tax from petitioner by Capital Development Authority (CDA) at the rate fixed for levy of tax on commercial plots---Validity---Regulations, 1993 replaced by Islamabad Land Disposal Regulations, 2005 were made for purpose of laying down procedure for disposal of different categories of lands in Islamabad Territory by CDA---Object of categorization under Regulations, 1993 and 2005 was to provide different modes for disposal of each category of land and not for purpose of taxation---Capital Development Authority had power to make its own categorization of plots for purpose of taxation, which might be different than classification provided under Regulations, 1993 and 2005---Plot classified as residential in Regulations, 1993 and 2005 might be brought in category of commercial for purpose of taxation---Capital Development Authority for purpose of taxation provided categorization in the impugned notifications issued in exercise of its powers under S.15-A of Capital Development Authority Ordinance, 1960 read with Ss.33 and 34 of Municipal Administration Ordinance, 1960---Petitioner was a profit making concern and located in a non-commercial area--Inclusion of petitioner in tax net for being based on nature of its activities could not be termed unreasonable---Petitioner had been brought at par with other private hospitals located in commercial areas already subjected to tax at commercial rates---Constitutional petition was dismissed in circumstances.

Mrs. Bilquis Anwar Khan v. Pakistan through Secretary, Cabinet Division Government of Pakistan, Islamabad and others 2001 SCMR 809 ref.

Zaheer Bashir Ansari, Advocate Supreme Court for Petitioner.

Afnan Karim Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 28th August, 2009.

2010 S C M R 1116

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

MUHAMMAD ASHRAF KHAN----Petitioner

Versus

KHAN SIDDIQUE and others----Respondents

Civil Petition No.210 of 2005, decided on 1st March, 2010.

(On appeal from the judgment/order dated 29-11-2004 of the Peshawar High Court passed in Civil Revision No.474 of 1996).

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

----S. 12---Suit for specific performance of sale agreement---Denial of defendant (an illiterate lady) to have executed agreement---Proof---Plaintiff had failed to prove execution of agreement---Defendant was an illiterate lady and had no independent advice---Assuming that agreement bore thumb impression of defendant, even then she could not understand nature of transaction contained therein---Suit was dismissed in circumstances.

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

----S.12---Transfer of Property Act (IV of 1882), S.53-A---Suit for specific performance of agreement of sale---Plaintiff's plea that his possession over suit land was protected under S.53-A' of Transfer of Property Act, 1882---Validity---Section 53-A of Transfer of Property Act, 1882 would be enforceable in defence of transferee and not otherwise---Possession delivered only in pursuance of written agreement would be protected under S.53-A---Person not having entered into possession of land under agreement of sale could not claim protection under S.53-A of Transfer of Property Act, 1882---Neither in agreement nor in evidence plaintiff had alleged that his possession over suit land was treated as possession in part performance of agreement of sale---Plaintiff through suit sought performance of agreement of sale to have title document in his favour, thus, factum of delivery of possession had become irrelevant---Such plea of plaintiff was repelled in circumstances.

M. Nasir Mehfooz, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioner.

Syed M. Attique Shah, Advocate Supreme Court for Respondents.

Date of hearing: 1st March, 2010.

2010 SCMR 1119

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain, Rahmat Hussain Jeffery and Tariq Parvez JJ

Mst. SHAHIDA ZAREEN----Appellant

Versus

IQRAR AHMED SIDDIQUI----Respondent

Civil Appeal No.1908 of 2006, decided on 23rd March, 2010.

(On appeal from the judgment dated 30-32006 of the High Court Sindh, Karachi passed in H.C.A. No.353 of 1998).

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

----O.XVII, R.2---Hearing of arguments by court before disposing of case---Necessity---Hearing of arguments by court before disposing of case not absolutely essential under law---Court could not force a party to address arguments, but could at best afford him at his request an opportunity to do so---Principles.

Allah Rakha and another v. Muhammad Yousuf and others PLD 1991 SC 601 rel.

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

----O.XLI, R.23---Remand of case by Appellate Court---Scope---Remand should be ordered in exceptional circumstances, when Appellate Court found determination of question of fact to be essential for a right decision of suit upon merits---Where evidence on record was sufficient for Appellate Court to decide question involved, then order of remand ought not to be passed.

Syed Jamil Ahmad, Advocate Supreme Court for Appellant.

Nemo for Respondent.

Date of hearing: 25th March, 2010.

2010 SCMR 1122

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

MUHAMMAD ARIF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.341 of 2009, decided on 11th January, 2010.

(Against judgment dated 13-10-2006 of Lahore High Court Lahore passed in Criminal Appeal No.811 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appraisal of evidence---Benefit of doubt---Eye-witnesses were interested, hostile and inimical to accused and their evidence required strong and independent corroboration, which was lacking in the case---As soon as the accused came out from the house they started firing and the complainant and other eye-witnesses started running to save their lives-Eye-witnesses, therefore, could not be in a position to distinguish and specify the weapon carried out by each accused---General allegations having been levelled against the accused and other accused persons, it was not known as to whether the shot fired first by accused had hit the deceased---Medical evidence also did not help in specifying the weapons used for causing the injuries---Recovery of crime empty of 8 mm rifle from the spot did not connect the accused with the commission of the crime---Accused was given benefit of doubt and acquitted in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 11th January, 2010.

2010 SCMR 1125

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmad and Muhammad Sair Ali, JJ

WAFI ASSOCIATES (PVT.) LIMITED----Petitioner

Versus

FAROOQ HAMID and others----Respondents

Civil Review Petition No.79-L of 2007 and Civil Miscellaneous Application No.2962-L of 2007 in Civil Petition No.553-L of 2006, decided on 9th April, 2010.

(On appeal from the order, dated 6-8-2007 of Supreme Court passed in Civil Petition No.553-L of 2006).

(a) Judgment---

----Short order passed in open court and signed by the Judges shall be operative in law and in consequence thereof, the case in respect of which the same had been passed shall stand disposed of in law.

State v. Asif Adil 1997 SCMR 209 ref.

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

----Arts. 188 & 184(3)---Lahore Development Authority Act (XXX of 1975), Preamble---Lahore Development Authority Building Regulations, Regln.10---Review of Supreme Court judgment---Construction of high-rise building in violation of law and Regulations---Suo Motu exercise of power by Supreme Court---Order sought for to be reviewed was passed in the larger interest of the general public and for the protection of the lives and properties of the persons occupying the said high-rise building---Cognizance of the matter was taken for the reasons recorded in the judgment sought to be reviewed---Order in question was passed in view of the categoric statement made by the counsel that owner of said high-rise building shall himself cause the demolition of the illegal constructed floor for which purpose reasonable time was allowed to the owner-Counsellor the petitioner had not been able to point out any error or infirmity apparent in the order sought to be reviewed nor any valid ground for review of the order was available to the petitioner in view of the peculiar circumstances of the case, discussed and referred to in the judgment---Review petition, in circumstances, was dismissed.

Razak v. Karachi Building Control Authority and others PLD1994 SC 512 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority KMC, Karachi and 4 others 1999 SCMR 2883 ref.

Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 mentioned.

Hamid Khan, Senior Advocate Supreme Court for Petitioners.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court for Petitioners (in C.M.A. No.2962-L of 2007).

Kh. Haris Ahmed, Advocate Supreme Court and Salman Aslam Butt, Advocate Supreme Court for Respondents.

Date of hearing: 20th January, 2010.

2010 SCMR 1160

[Supreme Court of Pakistan]

Present: Zia Perwez, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

KHUDA BUX----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.13-K of 2009, decided on 11th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan (1973), Art.l85(3)---Possession of narcotics---Bail, grant of---Six separate pieces were recovered---Two pieces weighing about 50 grams were forwarded for Chemical Examination, which prima facie did not appear either to be random or representative sample---Question of imposition of maximum sentence, under circumstances, was to be determined during trial---Accused had already remained under custody for over 9 months---Prima facie case for grant of bail was made out, petition for leave to appeal was converted into appeal and accused was admitted to bail, in circumstances.

Nadir Khan and others v. The State 1988 SCMR 1899 ref.

Mahmood A. Qureshi for Petitioner.

Shahadat Ali Awan, Prosecutor-General, Sindh for Respondent.

2010 SCMR 1162

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mehmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

GULSHAN ARA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.33 of 2006, decided on 7th October, 2009.

(Against judgment, dated 24-1-2005 of the Lahore High Court, Lahore passed in Criminal Appeal No.365-J of 2003).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Possession of narcotics---Leave to appeal was granted to accused to consider the contention that only six grams of "Charas" out of one packet had been sent for chemical examination, whereas according to F.I.R. 17 Kilograms of "Charas" was recovered out of 17 packets.

Per Tassaduq Hussain Jillani, J; Mahmood Akhtar Shahid Siddiqui, J agreeing; Rahmat Hussain Jafferi, J. Contra---[Majority view].

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

----Ss. 9(c) & 9(b)---Possession of narcotics---Appraisal of evidence---Sentence, reduction in---Seventeen packets of one kilogram narcotic each had been recovered by the police from secret boxes of the kitchen of accused---Only six grams of the narcotic was sent for chemical analysis without indicating that a sample was taken from each packet---Admittedly, no sample was taken from any other packet except one which weighed only one kilogram---Case of accused, thus, falls under S.9(b) of the Control of Narcotic Substances, 1997---Conviction of accused was consequently, converted from S.9(c) of Control of Narcotic Substances Act, 1997 to S.9(b) thereof and her sentence was reduced including that of fine to the one already undergone by her.

Muhammad Hashim v. The State PLD 2004 SC 856 and Amanat Ali v. The State 2008 SCMR 991 ref.

Per Rahmat Hussain Jafferi, J---[Contrary view]

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

----S. 9(c)---Possession of narcotics---Appraisal of evidence---Two Judges of Supreme Court had found the accused guilty of possessing 17 Kilograms of "Charas" recovered by the prosecution witnesses from the kitchen of her house, but had made her liable only for being in possession of one kilogram of "Charas" contained in one packet, out of which six grams were taken as sample for chemical analysis and exonerated her from the remaining 16 kilograms of "Charas"---Reliance in this behalf was placed on two judgments of Supreme Court reported as PLD 2004 SC 856 and 2008 SCMR 991---Contrary view in this regard had already been taken by two other Benches of equal number of Judges in the cases reported as 1988 SCMR 1899 and 2003 SCMR 54, holding that taking of samples from every one of the packets was not necessary---In such a situation, apparently, the rule laid down by Supreme Court in the case reported as PLD 1995 SC 423 was required to have been followed, which is that "if a Bench of equal Judges does not agree with the earlier Bench of equal Judges, then the matter should be referred to a Larger Bench"---Because of the conflict of decisions of Supreme Court on the above point, High Courts and subordinate Courts were making pick and choose to apply any of the decisions in the case, which apparently was causing miscarriage of justice---Now it was left at the discretion of the High Courts and subordinate Courts to give benefit or otherwise to any particular accused, which was frustrating the intention of law-makers and diminishing the rigour of law for which it was made---Proviso to S.9(c) of the Control of Narcotic Substances Act, 1997, was being made redundant in cases of recovery of huge quantity of narcotics---Suppose in a case in which thousands of packets are recovered from a container, would it be possible to take sample from each packet, if not, then the accused would not be held responsible for the huge quantity recovered from the container, except for the quantity from which the sample was taken and sent to Chemical Analyzer for report---Intention of law is to cover all the situations of the offence---Control of Narcotic Substances Act, 1997, has been enacted to crush the menace of narcotics, which is not only eroding the society of Pakistan but the world at large---Sample represents the whole property---Accused had never challenged that the recovered substance was not "Charas "---Offence fell under S.9(c) and not under S.9(b) of the Control of Narcotic Substances Act, 1997---Appeal of accused was dismissed accordingly---Matter was directed to be referred to the Chief Justice for constituting a larger Bench to resolve the above controversy.[Minority view].

Muhammad Hashim v. State PLD 2004 SC 856; Amanat Ali v. State 2008 SCMR 991; State v. Qazi Perves Iqbal PLD 1978 SC 64; Nadir Khan v. State 1988 SCMR 1899; Ali Muhammad v. State 2003 SCMR 54; Multiline Associates v. Ardeshir Covasjee PLD 1995 SC 423; Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351.Halsbury's Laws of England, Fourth Edition Vol.26, para. 577-578 and Words and Phrases Permanent Edition Vol. 38 ref.

(c) Words and phrases---

----Judgment per incuriam---Connotation---Decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow, or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision, or when the decision is given in ignorance of the terms of statute or rule having statutory force.

Halsbury's Laws of England Fourth Edition Vol.26 paras.577-578 ref.

(d) Words and phrases---

---Sample---Connotation---"Sample" is a part of anything presented for inspection or shown as evidence of the quality of the whole---Word "sample" both in its legal and popular sense means that which is taken out of a large quantity as a fair representation of the whole, a part shown as a specimen.

Words and phrases Permanent Edition Vol. 38 ref.

Nemo for Appellant.

Raja Shahid Mehmood Abbasi, D.P.-G. for the State.

Nazir Ahmad Rathore, Spl. P.-G. ANF on Court notice.

Date of hearing: 7th October, 2009.

2010 S C M R 1171

[Supreme Court of Pakistan]

Present: Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

MAZHAR IQBAL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Petition No.54-K of 2009, heard on 21st December, 2009.

Penal Code (XLV of 1860)---

----S. 395---Constitution of Pakistan (1973), Art.185(3)---Dacoity---Application for cancellation of bail---Application for cancellation of bail after arrest was dismissed by the Trial Court, but on appeal, the High Court granted bail to accused under the impugned order and petitioner/complainant had filed petition before Supreme Court for cancellation of bail---Name of accused was mentioned in the F.I.R. and he was identified by the complainant on head-light of the vehicle---Accused was already known to the complainant---Accused also made firing with his kalashnikov with the result that two persons lost their lives and one became injured---Specific role, in circumstances had been assigned to accused---Case of prosecution had been fully supported by the injured and witnesses in their statements under S.161, Cr.P.C.---No doubt there was delay in lodging F.I.R., but the complainant had tried to explain such delay---Delay, however, by itself was not sufficient to grant of bail, unless same was supported by other circumstances--Explanation of delay in lodging the F.I. R. furnished by the complainant could be examined by the Trial Court at appropriate stage when the evidence was recorded in the case and the same was also subjected to cross-examination---Peculiar circumstances of the case, required deeper examination of the evidence, which could not be undertaken at bail stage---Reasonable grounds existed to believe that accused was involved in the case---Impugned order of High Court granting bail to accused was set aside---Petition was converted into appeal and was allowed.

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

Zafar Ahmed Khan, Addl. Prosecutor-General, Sindh.

Date of hearing: 21st December, 2009.

2010 SCMR 1173

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

NATIONAL BANK OF PAKISTAN and others----Petitioners

Versus

SHAMOON KHAN and others----Respondents

Civil Petition No.1557-L of 2001, decided on 29th March, 2010.

(On appeal from judgment, dated 28-2-2001 passed by the Federal Service Tribunal, Lahore in Appeal No.533/L of 1998).

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

----S. 4---Limitation Act (IX of 1908), S.5---Appeal---Condonation of delay---Jurisdiction---Sufficiency of cause for condonation of delay being question of fact is within the exclusive jurisdiction of Service Tribunal---Once discretion is exercised regarding question of limitation by Service Tribunal, it is not usually interfered with by Supreme Court.

Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Hussain Bibi v. Mubarak Hussain 1976 SCMR 262; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar and 5 others 1976 SCMR 268; WAPDA v. Abdur Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 rel.

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

----Arts. 185(3) & 212(3)---Petition for leave to appeal---Maintainability---Petition for leave to appeal is only competent where case involves substantial question of law of public importance---Where no question of law of public importance is involved leave to appeal may not be granted.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner 1976 SCMR 268; Muhammad Azhar v. Service Tribunal, Islamabad 1976 SCMR 262; M.A. Majid v. Government of Pakistan 1976 SCMR 311; Director Food v. Rashid Ahmad 1990 SCMR 1446; Muhammad Manzoor Ahmad v. Commissioner Multan Division 1990 SCMR 560; Government of Punjab v. Khalid Hussain Gill 1989 SCMR 748; Abdul Razaq v. Province of Punjab 1980 SCMR 876 and Muhammad Yaqub Sheikh v. Government of the Punjab 1987 SCMR 1354 rel.

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Reinstatement---De novo inquiry---Service Tribunal reinstated employee in service with option to bank employer to initiate de novo inquiry---Validity---Inquiry was not got conducted against employee in accordance with relevant provisions of law and it was found in flagrant violation of the principles enunciated in cases already decided by Supreme Court---Service Tribunal had given fair opportunity to bank to initiate inquiry proceedings de novo within a period of three months but nothing could be done for the reasons best known to it---Judgment passed by Service Tribunal was free from any illegality or infirmity and did not call for interference---Leave to appeal was refused.

Shakeel Ahmad v. Commandant 502 Central Workshop E.M.E. 1998 SCMR 1970; Basharat Ali v. Director; Excise and Taxation 1997 SCMR 1543; Land Reforms Commission; Punjab Lahore and another v. Mst. Azra Parveen and 2 others 1995 SCMR 890 and Jan Muhammad v. General Manager, Karachi 1993 SCMR 1440 rel.

Muhammad Qamar-uz-Zaman, Advocate Supreme Court for Petitioners.

Ch. Muhammad Khalid Farooq, Advocate Supreme Court for Respondents.

Date of hearing: 29th March, 2010.

2010 SCMR 1178

[Supreme Court of Pakistan]

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

DILMURAD----Petitioner

Versus

THE STATE----Respondent

Cr.P.L.A. No.85-K of 2008, heard on 9th April, 2009.

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd---Bail, grant of---Further inquiry---Issue of common intention, was normally one of further inquiry, unless other compelling reasons existed and there were circumstances to reach a different conclusion---Deceased had only received three/four bullet injuries, while per the F.I.R. all accused used their automatic weapons and so also the fact that four empties of 7.62 M.M. rifle were recovered from the spot and no kalashinkov which had cast doubt in the matter, which must be resolved in favour of accused---Sufficient evidence was available with the prosecution to establish the common intention of all the three with each other, though it had not been pointed out in the F.I.R. as to which of accused had used what weapon---Petition had been converted into appeal and allowed and petitioner / accused was granted bail.

Abdul Ghaffar v. Munir 1981 SCMR 504 and Shah Zaman v. State PLD 1994 SC 65 ref.

Muhammad Ashraf Kazi, Advocate Supreme Court for Petitioner.

Shahadat Awan, Prosecutor-General, Sindh.

Mehmood. A. Qureshi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent.

Date of hearing: 9th April, 2009.

2010 SCMR 1181

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmad and Jawwad S. Khawaja, JJ

ALLAH DITTA----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.461 of 2009, decided on 12th February, 2010.

(On appeal from the judgment of Lahore High Court Lahore dated 3-6-2009 passed in Criminal Appeal No.674 of 2009).

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

----S. 74, Proviso---Any private individual'---Meaning and scope ---Phrase "any private individual" is to be read ejusdem generis with the preceding specific words, "accused, or his associate or relative' ---By application of the rule the "private individual" mentioned in the proviso refers to such anindividual who has some nexus with the offender or the offence-I-Innocent owner of the vehicle used in the commission of the crime having no nexus whatsoever, either with the accused or the crime, would not fall within the scope of the phrase "private individual".

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

----Ss.74 & 9(c)---Criminal Procedure Code (V of 1898), S.516-A---Constitution of Pakistan (1973), Act.185(3)---Possession of narcotics---Release of the vehicle on "Superdari" ---Proviso of S.74 of the Control of Narcotic Substances Act, 1997, did not prohibit the release of the vehicle involved in the trafficking of narcotics to its owner, who was not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime---Record did not show that the petitioner was aware that his vehicle was used for the transportation of "Charas "---Documents produced by the petitioner before the Courts below showed that his car was leased to a firm of "Rent a Car", which had rented it out to the accused---In the absence of any rebuttal by the prosecution of these documents, findings of High Court that the same might have been fabricated, could not be agreed ---No rival claimant of the vehicle came forward---Petitioner was entitled to the temporary custody of the vehicle, which was ordered to be released to him on "Superdari" in circumstances.

Abdul Salam v. The State 2003 SCMR 246; The State v. Rashid PLD 2003 Pesh. 870 and Askari Leasing limited v. The State 2004 PCr.LJ 755 ref.

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

----S. 74, Proviso---Scope---Proviso of S.74 of the Control of Narcotic Substances Act, 1997, does not prohibit the release of vehicle involved in the trafficking of narcotics to its owners, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime.

Abdul Salam v. The State 2003 SCMR 246 ref.

Saeedul Haq Butt, Advocate Supreme Court for Petitioner.

Syed Ali Imran Shah, D.P.-G. and Ashraf, S.-I. Police Station Mureedkay for the State.

Date of hearing: 12th February, 2010.

2010 SCMR 1186

[Supreme Court of Pakistan]

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

CITY DISTRICT GOVERNMENT, KARACHI----Petitioner

Versus

MUHAMMAD IRFAN and others----Respondents

Civil Petition No.429-K of 2004, heard on 28th June, 2004.

Interpretation of statutes---

----Fiscal enactment--Rights of parties would be governed/decided as per law prevailing at the time when cause of action had accrued, particularly in the matters pertaining to fiscal disputes, unless manifestly intention of law was otherwise---Instrument dealing with fiscal matters was to be construed strictly because it imposed burden in terms of money upon the person who claimed relief under said law---Petition for leave to appeal was dismissed.

Mehran Associates Ltd. v. Commissioner of Income Tax 1993 SCMR 274 and Mirpurkhas Sugar Mills Ltd. v. Government of Sindh 1993 SCMR 920 ref.

Syed Jamil Ahmed, Advocate Supreme Court for Petitioner.

Akhlaq Ahmed Siddiqui, Advocate-on-Record.

Mansoor-ul-Arfeen, Advocate Supreme Court.

M. S. Ghaury, Advocate-on-Record.

2010 SCMR 1189

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

Criminal Appeal No.324 of 2009 out of Jail Petition No.16 of 2009

BACHA ZEB----Appellant

Versus

THE STATE----Respondent

(On appeal from the judgment dated 25-11-2008 of the Lahore High Court Rawalpindi Bench passed in Criminal Appeal No.377 of 2002 and Murder Reference No.921 of 2002).

Criminal Appeal No.325 of 2009 out of Jail Petition No.86 of 2009

GHULAM JAN----Appellant

Versus

THE STAE----Respondent

(On appeal from the judgment, dated 25-11-2008 of Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No.419 of 2002 and Murder Reference No.921 of 2002).

Criminal Appeal No.324 of 2009 out of Jail Petition No. 16 of 2009 and Criminal Appeal No.325 of 2009 out of Jail Petition No.86 of 2009, decided on 7th January, 2010.

Per Tariq Pervez, J Mian Shakirullah Jan, J, agreeing; Rahmat Hussain Jafferi, J. Contra-[Majority view]---

Penal Code (XLV of 1860)----

---Ss. 302(b) of 460---Qatl-e-amd, lurking house trespass by night---Appraisal of evidence---Deceased had been killed in his own house at night time---Presence of eye-witnesses in the house at the relevant time was natural, but the question was as to whether they were in a position to identify the accused after ten months of the occurrence in the identification parade---Complainant party was in the room and as soon as they opened the door two strangers armed with pistols rushed in, made fire shots and decamped---Time was a winter night and even if there was tube-light at the spot, eye-witnesses had very limited time to see assailants, who were seen by them for the first time in their life--Identification parade had been held after 8/9 days of the arrest of accused in the case---Both the accused were put to identification simultaneously in one identification parade against the rule of law ---Number and description of the dummies placed for each accused at the time of identification were not given by the Magistrate in his report--Non-assignment of any role to both the accused by the prosecution witnesses during the identification parade, had damaged its evidentiary value---Two rows of the persons including both the accused having been made by the Jail Authorities and not by the Magistrate himself, was a procedural defect in conducting the identification parade, which had made the authenticity of the identification doubtful---Objections raised by the accused at time of conducting identification parade admittedly were not recorded by the Magistrate---Ocular testimony qua the assailants being not at all convincing because of multiple procedural and factual deficiencies in the identification parade, no other corroborative evidence was available on record to connect the accused in any manner with the commission of the offence---Accused were acquitted in circumstances.

?

Lal Pasand v. The State PLD 1981 SC 142; Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Khadim Hussain v. The State 1985 SCMR 721; Alim v. The State PLD 1967 SC 307 and Mehmood Ahmed and 3 others v. The State 1995 SCMR 127 ref.

Per Rahmat Hussain Jafferi, J. Contra. [Minority view].?

Lal Pasand v. State PLD 1981 SC 142; Khadim Hussain v. State 1985 SCMR 721; State v. Farman Hussain PLD 1995 SC 1; Saeedur Rahman v. The State 1980 SCMR 271; Yaqoob Khan v. State PLD 1996 SC 97; Solat Ali v. State 2002 SCMR 820; Muhammad Zaman v. State 2007 SCMR 813; Lal Singh v. State 2003 INC 506; Vikram Singh v. Raj Singh (1973) 3 SCC (Crl.) 578; Ali Muhammad v. Stae1985 SCMR 1834 and Murid Abbas v. State 1992 SCMR 338 ref.

Arshad Ali Ch. Advocate Supreme Court for Appellant (in both cases).

Syed Ali Imran, Dy. P.-G. Punjab for the State (in both cases).

Date of hearing: 7th January, 2010.

2010 SCMR 1205

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

SHARAFAT ALI KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.46 of 2005, decided on 30th June, 2009.

(On appeal from the judgment dated 9-1-2003 of the Lahore High Court, Lahore passed in Criminal Appeal No.4/J of 1999).

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

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to consider only the question of sentence awarded under S.302(b), P.P.C. on the ground of minority, who was stated to be 16 years of age at the time of commission of offence.

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

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appraisal of evidence---Sentence, reduction in---Accused with premeditation had committed the murder of the deceased in day time, which was supported by eye-witnesses---Appeal was rightly not pressed on merits and only death sentence of accused was sought to be converted into imprisonment for life on the ground of his minority at the time of incident---While recording statement of accused under S.342, Cr.P.C. his age was mentioned as twenty years and, thus, he was about 16 years when occurrence took place---Ground of minority despite having been urged before Trial Court and High Court did not receive any serious consideration---Accused had also pleaded his tender age before Supreme Court in his defence in his jail petition---Accused having been found 16 years of age at the time of occurrence, his sentence of death was altered to imprisonment for life under S.302(b), P.P.C.---Conviction and sentence of accused under S.324, P.P.C. were, however, kept intact---Appeal was disposed of accordingly.

Muhammad Afzal v. State 1999 SCMR 2851; Sohail Iqbal v. The State 1993 SCMR 2377; 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; Abdus Salam v. State 2000 SCMR 338; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence---Discretion---In the case of "Tazir" court may exercise its discretion to award punishment of death or imprisonment for life to accused for qatl-e-amd, keeping in view the facts and circumstances of the case.

Muhammad Afzal v. State 1999 SCMR 2851; Sohail Iqbal v. The State 1993 SCMR 2377; 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; Abdus Salam v. State 2000 SCMR 338; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

Muhammad Masood Chishti, Advocate Supreme Court for Appellant.

Sahibzada M.A. Amin Mian, Addl. D.P.-G. Punjab for the State.

Date of hearing: 15th May, 2009.

2010 S C M R 1210

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Rahmat Hussain Jafferi, JJ

BASHARAT ALI and others----Appellants

Versus

MUHAMMAD ANWAR and others----Respondents

Civil Appeal No.1790 of 2003, decided on 13th April, 2010.

(Against judgment, dated 7-3-2003 of the Lahore High Court, Lahore passed in Civil Revision No.2408 of 1996).

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

----S. 42---Civil Procedure Code (V of 1908), S.115, 151, O.I, R, 10 & O.XLI, Rr.4, 20, 33---Constitution of Pakistan (1973), Art. 185(2)(d)(e)---Suit for declaration ---Prayer in plaint for declaring suit mutation made in favour of defendant by deceased predecessor of plaintiffs to be void, without consideration and ineffective on plaintiffs' right of inheritance---Dismissal of suit by Trial Court---Filing of appeal by seven plaintiffs out of eight plaintiffs---Suit decreed by Appellate Court in terms of such prayer---Filing of revision petition by defendant against seven plaintiffs--- Application by plaintiffs before High Court under O.I, R.19, O. XLI, R. 20 read with S.151, C.P.C. for impleading such eighth plaintiff as party in revision---Plea of defendant that such eighth plaintiff was not necessary party in revision as judgment of Trial Court had become final against him---High Court dismissed such application for being time-barred as well as revision petition without discussing merits of the case---Validity--- Dispute was common as suit mutation was affecting all plaintiffs-- Appellate Court had allowed such prayer in to without any exception, which could be done under O.XLI, Rr.4, 20 & 33, C.P.C., resultantly suit mutation stood cancelled and property reverted back to deceased predecessor and all plaintiffs as his legal heirs inherited same---Such eighth plaintiff had also benefited from decree of Appellate Court and became rightful owner in property to extent of his share due to cancellation of suit mutation---Defendant should have joined such eighth plaintiff as party in revision petition---Defendant due to such bona fide mistake or misunderstanding had not joined such eight plaintiff in revision---Revision could not have been properly and effectively decided in absence of such eighth plaintiff---Provisions of O.XLI, R.20, O.I, R.10 & S.151, C.P.C., for being part of procedural law would be construed liberally in order to advance cause of doing substantial justice instead of gagging cause---Re visional/ Appellate Court by exercising suo motu jurisdiction could accept such time-barred application---Supreme Court set aside impugned judgment of High Court for having caused miscarriage of justice impleaded such eighth plaintiff as party in revision and remanded case to High Court for its decision afresh in accordance with law after giving opportunity of hearing to all parties. ?

PRTB v. Abdul Ghafoor PLD 1989 SC 541 ref.

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

----Ss. 115, 151, O.I. Rr.9, 10 & O. XLI, R.20---Limitation Act (IX of 1908), Art.181---Appeal or revision---Impleading of necessary party, application for---Expiry of period of limitation ---Effect---Provisions of O.XLI, R.20, O. I. R.10 & S. 151, C.P.C. for being part of procedural law would be construed liberally in order to advance cause of doing substantial justice instead of gagging cause---Court could accept such time-barred application by exercising suo motu jurisdiction---Principles.

Provisional of Order XLI, Rule 20, Order I, Rule 10 and section 151, C.P.C. are part of procedural law, therefore, they are to be liberally construed in order to advance the cause of doing substantial justice instead of gagging cause. General law with regard to impleading the necessary party and the effect of Order I, Rule 9, C.P.C., is that no suit shall be defeated by reason of misjoinder or non-joinder of the parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. However, under Order XLI, Rule 20 read with section 151, C.P.C. there is inherit power with the Appellate Court to overcome such difficulty even after the expiry of period of limitation by exercising suo motu jurisdiction.?

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellants.

Kh. Azhar Rasheed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1 and 2.

Date of hearing: 13th April, 2010.

2010 S C M R 1215

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Zawar Hussain Jaffery and Sarmad Jalal Osmany, JJ

MUHAMMAD-Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY and others----Respondents

Civil Petition No.243/K of 2008, heard on 25th September, 2008.

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Unauthorized and illegal building---Demolition of---Submission of counsel for the petitioner was that in the impugned order of High Court it was directed that unauthorized and illegal building should be demolished by the Authority; and all concerned departments as well as Town Police Officer of the Town were further directed to provide necessary assistance, so that there should be no hindrance towards demolishing of the building---According to counsel instead of complying with the orders of High Court, Authority had started sending notices to the petitioner as to why the alleged illegal construction, in which he lived, should not be demolished in accordance with the rules and regulations---Counsel for the petitioner had submitted that Authority had treated the petitioner malafidely and maliciously---Counsel for the Authority had stated that the Fourth floor of the building in question having been constructed unlawfully without any approved building plan, the authority had issued notices to the occupants of the Fourth floor to show-cause as to why the same should not be demolished---No one could object if a particular government agency was doing any action in accordance with law---While refusing leave to appeal, Authority was directed to act strictly in accordance with rules and regulations while dealing with the petitioner and others who stood on the same footing.

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

Izhar Mian Farooq, Advocate-on-Record and Shahid Jameel, Legal Advisor for K.B.C.A.

Suleman Habibullah, Advocate-on-Record for Respondent No.3.

Date of hearing: 25th September, 2008.

2010 S C M R 1217

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

ATLAS KHAN and others----Petitioners

Versus

MUHAMMAD NAWAZ KHAN through L.Rs. and others----Respondents

Civil Petition No.732-P of 2006, decided on 18th March, 2010.

(On appeal from the judgment dated 4-10-2000 of the Peshawar High Court, Peshawar in Civil Revision No.26 of 2004).

Specific Relief Act (I of 1877)---

----Ss. 12, 19 & 22---Suit for specific performance of an agreement---Agreement proved---Effect---Court not bound to decree such suit, but instead could consider the grant of compensation--- Principles.

The court of equity is not bound to grant a decree for specific performance of an agreement, even though the agreement is proved, and the court has to take into consideration the circumstances surrounding the transaction to decide whether equitable relief of specific performance should be granted or not and while granting or refusing relief of specific performance to decide whether or not grant compensation as may be assessed by the court.

Wasimuddin Khattak, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th March, 2010.

2010 SCMR 1219

[Supreme Court of Pakistan]

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

HAMZA ALI HAMZA and others----Petitioners

Versus

THE STATE----Respondent

Cr.P.L.A. No.18-K of 2009, heard on 9th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860) S. 324---Attempt to commit qatl­-e-amd---Pre-arrest bail, grant of---Free fight between parties using hatchets and Lathis resulting into lodging of cross cases against each other---Injury caused to persons on complainant side being grievous, while injuries caused to persons on accused side being minor---Difficult to ascertain at such stage as to who was the aggressor---All persons involved in incident from complainant side being on bail---Accused was granted bail, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq PLD 1996 SC 845; Muhammad Shahzad Siddique v. State PLD 2009 SC 58 and Arif Din v. Amil Khan 2005 SCMR 1402 ref.

Mehmood A. Qureshi and Suleman Habibullah for Petitioner.

Muhammad Iqbal Kolhoro for the State.

M. Ashraf Leghari for the Complainant.

Date of hearing: 9th April, 2009.

2010 SCMR 1221

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

SHAHZAD AHMED----Petitioner

Versus

THE STATE through F.I.A. Islamabad----Respondent

Criminal Petition No.773 of 2009, decided on 13th April, 2010.

(Against the order dated 16-11-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal M. No.1087-B of 2009).

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

----S. 497---Penal Code (XLV of 1860), Ss.420/468/109---Prevention of Corruption Act, (II of 1947), S.5(2)---Prevention of Electronic Crimes Ordinance (LXXII of 2007), Ss. 3/4/5/6/7/8/9/10/18/19---Electronic Transactions Ordinance (LI of 2002), S.37---Constitution of Pakistan (1973), Art.185(3)---Cheating forgery, using as genuine a forged document abetment and criminal misconduct---Bail, refusal of----No work order had been issued to accused by any competent authority of the Department--- Accused had supplied tender items to the Ministry of Interior, prima facie fraudulently, having misappropriated a huge amount belonging to public exchequer--- Report submitted by the D.G., F.I.A., had clearly connected the accused with the commission of the offence, which was duly supported by the relevant documents and statements--- To grant or refuse bail was discretion of the courts---Both the courts below had refused to exercise discretion in favour of accused with cogent reasons without violating the settled principles laid down by Supreme Court---Accused seeking equity must come to constitutional court with clean hands---Conduct of the accused as depicted from the material on record was a hindrance in exercise of discretion by Supreme Court in his favour, who apparently was linked with the commission of the crime---Principle of consistency would not help the accused in such circumstances---Bail was declined to accused accordingly and leave to appeal was refused.

Chaudhry Shujahat Hussain v. The State 1995 SCMR 1249; Government of Sindh through Chief Secretary and others v. Raeesa Farooq and others 1994 SCMR 1283 and Dr. Mubashir Hassan's case PLD 2010 SC 265 ref.

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

----S. 497---Bail---Discretionary relief---Principles---Release of accused on bail is not as a matter of right, but is a privilege to be granted at the discretion of the court to be exercised in accordance with the well established sound judicial principles---Consideration of all the facts and circumstances of the case and proper appreciation of the questions involved therein, would constitute proper exercise of discretion, which would not be interfered by Supreme Court---Court in case of a bail matter, is not required to probe into the matter, but has to make tentative assessment of the material produced to ascertain whether reasonable grounds exist to believe that the accused has committed the crime.

Chaudhry Shujahat Hussain v. The State 1995 SCMR 1249 and Government of Sindh through Chief Secretary and others v. Raeesa Farooq and others 1994 SCMR 1283 ref.

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

----S. 497---Bail---Material to be considered by court---While deciding bail application, court should consider, allegations made in the F.I.R., contents of the F.I.R. and statements recorded under S.161 Cr.P.C.; other incriminating material against accused; nature and gravity of the charge, and plea raised by the accused.

Tariq Mehmood, Senior Advocate Supreme Court for Petitioner.

Ansar Nawaz Mirza Advocate Supreme Court Special P.P., FIA for the State.

Raja Alleem Abbasi, D.A.-G., Zafarullah Khan, D.O., FIA and Azam Khan, Dr.(L) FIA on Court Notice.

2010 S C M R 1228

[Supreme Court of Pakistan]

Present: Zia Pervaiz and Syed Zawwar Hussain Jafery, JJ

FAHIM AHMAD ZAIDI----Appellant

Versus

HINA HOUSING PROJECT (PVT.) LTD.---- Respondent

Civil Appeal No.1308 of 2008, heard on 2nd July, 2009.

Specific Relief Act (1 of 1877)---

----S.12---Sindh Building Control Ordinance (V of 1979), S.13(3)---Constitution of Pakistan (1973), Art.4---Suit for specific performance of sale agreement and damages---Non-delivery of possession of shop to plaintiff within stipulated period after booking same in project of defendant and its completion---Passing of decree in plaintiff's favour by Trial Court to extent of delivery of possession of shop to him subject to payment of balance sale price, but its refusal to award hint damages sustained by him on account of delay in handing over its possession---Dismissal of plaintiff's appeal by High Court---Validity---Plaintiff had specifically claimed damages in addition to performance and there was no alternate relief in the plaint---Plaintiff had suffered a lot and remained in mental agony after booking of shop when its possession was not handed over to him within stipulated period---Plaintiff after endorsing notice to defendant had filed suit---Defendant had lingered on proceedings to avoid handing over possession of shop---Plaintiff was entitled to claim damages under S.13(3) of Sindh Building Control Ordinance, 1979---Refusal to allow plaintiff such damages would be in violation of Art.4 of the Constitution---Supreme Court accepted plaintiff's appeal with cost throughout.

S. Shahenshah Hussain for Appellant.

Mazhar Ali B. Chohan for Respondent.

2010 S C M R 1231

[Supreme Court of Pakistan]

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

ABDUL JABBAR and another---Petitioners

Versus

THE STATE----Respondent

Criminal Petitions Nos.67 and 68-K of 2008, heard on 29th October, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-amd---Compromise between the parties---Conversion of petition for leave to appeal into appeal---During pendency of appeal, parties having entered into compromise, accused filed application under S.345(2), Cr. P. C. for grant of permission to the parties to enter into compromise---Trial Court on High Court's directions, after observing all the legal formalities and recording statements of the legal heirs of the deceased, reported that compromise arrived at between the parties was genuine---Legal heirs of deceased also appeared before the High Court and affirmed the contents of the compromise ---Despite all that, the High Court dismissed said applications holding that case was not fit for compromise---All legal requirements for accepting the compromise, were fulfilled and there was no legal impediment in accepting the compromise, but High Court without assigning any cogent reason, dismissed said application---Such types of orders could not be approved by Supreme Court and deserved to be set aside---Petitions were converted into appeal and were allowed and impugned orders were set aside ---Applications filed for acceptance of compromise would be deemed to be pending before the High Court which would decide the same within specified period, accordingly.

Ghulam Qadir Jatoi for Petitioners.

Shahadat Awan for the State.

Date of haring: 29th October, 2008.

2010 SCMR 1234

[Supreme Court of Pakistan]

Present: Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

WISRAM DAS----Petitioner

Versus

SGS PAKISTAN (PVT.) LTD. and another----Respondents

Civil Petition No.78-K of 2008, decided on 29th June, 2009.

(a) Industrial Relations Ordinance (XXIII of 1969)---

----S. 2(xxviii)---Workman---Definition---Rice/Cotton Inspector in Agricultural Division of a private company---Posting of such employee at godown of company for drawing samples, checking weights, sealing samples and transmitting same to company for onward action---Validity---Nature of such duties discharged by employee was that of a Inspector involving application of mind and making of decisions on subject based on rational approach---Such duties were not merely clerical in nature---Such employee would not fall within definition of a workman.

(b) Judgment---

----Short order signed by Presiding Judge would operate as final order or judgment, if he for some reasons could not record reasons.

The State v. Asif Adil and others 1997 SCMR 209 rel.

M.S. Ghaury for Petitioner.

Nemo for Respondents.

2010 SCMR 1236

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

UCH POWER (PVT.) LTD. and others----Appellants

Versus

INCOME TAX APPELLATE TRIBUNAL and others----Respondents

Civil Appeals Nos.2652-2654 of 2006, 1328-1336 of 2009, Civil Petitions Nos.1462, 1482, 1718-1724 and 1772-1774 of 2009, decided on 29th January, 2010.

(On appeal from the judgment dated 19-5-2005 passed by the Islamabad High Court, Islamabad in T.R. Nos.26, 27 and 51 of 2005. 1 and 2 of 2006, 58, 59, 60 and 61 of 2007 and 1, 2, 3, 63, 161, 162, 163 and 164 of 2008 and 17, 19, 21 and 22 of 2009 and judgment dated 27-7-2009 passed in T.R. No.3 of 2009 and judgment, dated 13-3-2006 passed by the Lahore High Court, Lahore in T.R. Nos.87 and 88 of 2002 and 457 of 2003).

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

----Ss. 23(1)(vii), 34 & Second Sched. Part-I, Cl.176 [as inserted through S.R.O. No.1046(I)88, dated 21-11-1988]---Income Tax Ordinance (XLIX of 2001), Second Sched. Part-I, Cl.132---Assessee company engaged in Private Sector Power Generation Project---Profit/interest earned by company on Bank account maintained solely for such project---Set off of business losses of company against their such interest income or any other income---Scope---Set off of losses covered by S. 34 of Income Tax Ordinance, 1979 were not restricted to any particular head of income, rather same were adjustable against income of company under any other head.

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

----Ss. 23((1)(vii), 30(2)(b), 31(1)(6), 34 & Second Sched., Part-I, Cl.176 [as inserted through S.R.O. No.1046(I)/88, dated 21-11-1988]--Income Tax Ordinance (XLIX of 2001), Second Sched. Part-I, Cl.132---Assessee-Company engaged in Private Sector Power Generation Project---Profit/interest earned by company on Bank account maintained solely for such project---Interest paid in respect of capital borrowed by company---Exemption from tax on such interest income of the company---Deduction of such paid interest while computing such interest income of company under S.31(1)(b) of Income Tax Ordinance, 1979---Scope---Use of words "profits and gains" under Cl.176 of Part-I of Second Schedule of Income Tax Ordinance, 1979 was only with reference to income generated by company covered by S.22 thereof---Such interest income of company for being a separate income covered by S.30 of Income Tax Ordinance, 1979 was not entitled to exemption under Cl.176 of Part-1 of Second Schedule thereof.

Genertech Pakistan Ltd. and others v. Income Tax Appellate Tribunal of Pakistan, Lahore and others 2004 SCMR 1319; AES Pak. Gen (Pvt.) Ltd. v. Commissioner Income Tax C.Ps. Nos.2211 and 2212-L of 2005; Black's Law Dictionary; Genertech Pakistan Ltd: and others v. Income Tax Appellate Tribunal of Pakistan, Lahore and others 2004 SCMR 1319; AES Pak. Gen (Pvt.) Ltd. v. Commissioner Income Tax C.Ps No.2211 and 2212-L of 2005; Pakistan 'v. Messrs Lucky Cement 2007 PTD 1656; C.I.T./W.T. v. Surraya Zafar 2008 PTD 202; Federation of Pakistan v. Muhammad Sadiq 2007 PTD 67; Facto Belarus Tractors Ltd. v. Pakistan 2001 PTD 1829; Packages Ltd. v. Commissioner of Income Tax 1993 SCMR 1224; Sanam Progetti S.P.A. v. Addl. C.I.T. (Delhi) (1981 (132) ITR 70; (1995 (216) ITR 535; A&B Food Industries Ltd. v. Commissioner of Income Tax/Sales 1992 SCMR 663; State v. Qaim Ali Shah 1992 SCMR 2192; B.P. Biscuit Factory Ltd. v. Wealth Tax Officer 1996 SCMR 1470; Muhammad Rafique Goreja v. Islamic Republic of Pakistan 2006 SCMR 1317 Messrs AES PAK GEN (Pvt.) Company. Lahore v. Income Tax Appellate Tribunal, Lahore and another 2006 PTD 1; Commissioner of Income Tax, East Pakistan v. Liquidator, Khulna Bogerhat Railway Company Ltd. PLD 1962 SC 128; Genertech Pakistan Ltd. v. Income Tax Appellate Tribunal of Pakistan 2004 SCMR 1319; AES Pak. Gen. (Pvt.) Ltd. v. Commissioner of Income Tax (in Civil Petitions No.2211 and 2212-L of 2005 and Tuticorin Alkali Chemical and Fertilizer Ltd., v. Commissioner of Income Tax 1993 PTD 900 ref.

Genertech Pakistan Ltd. v. Income Tax Appellate Tribunal of Pakistan 2004 SCMR 1319 and the judgment dated 16-6-2006 (AES Pak. Gen. (Pvt.) Ltd. v. Commissioner of Income Tax) rel.

(c) Words and phrases---

---"Profit"---Definition.

Black's Law Dictionary ref.

(d) Words and phrases---

----"Gain"---Definition.

Black's Law Dictionary ref.

Wasim Sajjad, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record assisted by Mustafa Ramday for Appellants (in C.As. Nos. 1328-1336) and for Respondent No 1 (in C.P.S. Nos. 1465, 1466, 1477, 1482 of 2009).

Shahid Hamid, Senior Advocate Supreme Court and Ikram-ul-Haq, Advocate Supreme Court for Appellants (in C.As. Nos.2652-2654 of 2006).

Hafiz Muhammad Idris, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1718-1724, 1772-1774 of 2009) and for Respondents (in C.Ps. Nos.1462-1464, 1467-1470 of 2009).

M. Iqbal Vehniwal, Advocate Supreme Court for Respondents (in C.As. Nos.2652-2654 of 2006).

Shahid Raza, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for F.B.R. (in C.As. No.1328-1336, 1718-1724.

Raja Abdul Ghafoor, Advocate Supreme Court for F.B.R. (in C.Ps. Nos. 1462-1468 of 2009 only).

Dates of hearing: 28th 29th January, 2010.

2010 SCMR 1254

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUMTAZ HUSSAIN---Appellant

Versus

Dr. NASIR KHAN and others---Respondents

Criminal Appeal No.423 of 2008, decided on 2nd December, 2009.

(Against order dated 28-1-2008 of High Court of Sindh, Karachi, passed in Criminal Revision No.73 of 2007).

Per Rahmat Hussain Jafferi; Anwar Zaheer Jamali and Khilji Arif Hussain, JJ agreeing---

(a) Illegal Dispossession Act (XI of 2005)---

----S.4---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether a court exercising jurisdiction under Illegal Dispossession Act, 2005, was empowered to examine question of title as to property or whether its jurisdiction was premised only upon act of illegal dispossession of person in possession; and whether complaint under Illegal Dispossession Act, 2005, could only be filed against land grabbers and a person claiming bona fide title of property was not amenable to jurisdiction of court under Illegal Dispossession Act, 2005, despite having dispossessed an occupant forcibly and without following due process of law.

(b) Interpretation of statutes---

----Preamble---Scope---Preamble of an Act does not govern provisions of that Act, if those are unambiguous and clear---Preamble can be taken into consideration in discovering purpose of the statute and aid can be taken in interpreting provisions of the Act, if they are ambiguous.

(c) Words and phrases---

----"No one "---Meaning: No person; nobody.

Concise Oxford Dictionary rel.

(d) Words and phrases---

----"Whoever"---Meaning: Any person or persons.

Concise Oxford Dictionary rel.

(e) Illegal Dispossession Act (XI of 2005)---

----S. 3 & Preamble---Prevention of illegal possession of property'---Scope---Provision of S.3 of Illegal Dispossession Act, 2005, is very clear and unambiguous and its scope is wide enough to cover the class of persons mentioned in the Preamble---Preamble of Illegal Dispossession Act, 2005, cannot restrict its meaning and the Act is applicable to dispossession of a person from property by any person including land grabber, Qabza group or land mafia.

(f) Illegal Dispossession Act (XI of 2005)---

----S.3---Prevention of illegal possession of property---Words dispossess',grab', control' andoccupy'---Connotation---Cognizance by court---Pre-conditions---For the purposes of attracting provisions of S.3 of Illegal Dispossession Act, 2005, court is required to examine as to whether property was an immovable property; secondly that the person was owner or the property was in his lawful possession; thirdly that accused entered into or upon the property unlawfully; fourthly that such entry was with intention to dispossess i.e. ouster, evict or deriving out of possession against the will of person in actual possession or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise power or influence over regulate or govern or relates to authority over what is not in one's physical possession or to occupy i.e. holding possession, reside in or something---Meaning of the words clearly demonstrate that if anybody controls or holds unlawful or illegal possession of the property at the time of enactment then he would come within the ambit of Illegal Dispossession Act, 2005---Complaint can validly be filed against such person by the occupier or owner of the property---If act of accused comes within the meaning of any of the words viz. dispossess, grab, control or occupy on the date when Illegal Dispossession Act, 2005, was promulgated then action can be initiated as provided under S.4 of Illegal Dispossession Act, 2005.

Concise Oxford Dictionary; Merritt's Estate, 46 N.Y.S.2d, 497, 505; Black's Law Dictionary and People v. Wilkinson, 56 Cal. Rptr.261, 264., 246 C.A. 2d. Supp.906 rel.

(g) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.145---Illegal dispossession---Criminal proceedings---Question of title---Jurisdiction of court---For the purpose of examining question of title in respect of property, court has to simply form opinion as to whether prima facie any party is coming within the ambit of definition mentioned in S. 3 of Illegal Dispossession Act, 2005---If court forms such opinion from material placed before it, then it can proceed with matter or otherwise, as the case may be---Similar procedure is adopted by Magistrate, while exercising powers conferred upon him under S.145 Cr. P. C., which is normally required to be adopted in such proceedings.

Shah Muhammad v. Haq Nawaz PLD 1970 SC 470 rel.

(h) Illegal Dispossession Act (XI of 2005)---

----Ss 3 & 4---Penal Code (XLV of 1860), S.441---Illegal dispossession---Restoration---Pendency of civil litigation---Effect---Appellant claimed to be the owner of plot in question and alleged that respondents had dispossessed him from the plot---Before filing of application under S. 4 of Illegal Dispossession Act, 2005, there was civil litigation between the parties in which their titles were questioned and status quo order was passed by the court---During pendency of civil litigation, proceedings under S. 4 of Illegal Dispossession Act, 2005, were initiated---Validity---Offence of illegal dispossession as provided under S.3 of Illegal Dispossession Act, 2005, was aggravated form of offence under S.441 P.P.C., therefore, it could not be said that act of dispossession was a new offence under Illegal Dispossession Act, 2005---As question of title of property was already pending before competent court of civil jurisdiction before filing of the complaint, therefore, Supreme Court declined to interfere in the matter---After decision of civil suit in favour of appellant, he could approach the court under S.4 of Illegal Dispossession Act, 2005---Appeal was dismissed.

Zahoor Ahmed v. State PLD 2007 Lah.231; Noor Zada v. Muhammad Khalid 2007 PCr.LJ 891; A.G. v. H.R.H. Prince Augustus 1957-1 All England Law Reporters page 49; Pakistan Railway v. Abdul Haqique 1991 SCMR 657; Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; Rahim Tahir v. Ahmed Jan PLD 2007 SC 423; Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404; Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

Rahim Tahir v. Ahmed Jan PLD 2007 SC 423 and Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404 rel.

Per Khilji Arif Hussain, J:-

(i) Interpretation of statutes---

----Preamble---Scope---Preamble of an Act does not control or govern the Act and is not an enacting part of the Act but may recite the ground and cause of making that statute, if provisions of the Act are clear and unambiguous.

(j) Interpretation of statutes---

----Intention of Legislature---Scope---While interpreting an Act, the intent of Legislature is of supreme importance---Cardinal rule of construction of Acts of Parliament is that the words of the Act should be construed according to intention expressed in the Acts themselves---Word "intent" essentially include two concepts: That of purpose and that of meaning---In many cases the court endeavours to ascertain legislative purpose but only as a step in process of discovering legislative intent and it is possible that legislative intent and legislative purpose may coincide---Law maker may have several purposes in mind when they enact a given law and the fact which can be taken into account in ascertaining intention of Legislature is history of the Act, reason which led to passing of the Act, mischief which had to be cured, as well as cure proposed and also other provisions of the statute---Legislative intent can always be gathered either from express language of Statute or by necessary implications---If words of Statute are themselves clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of Legislature---Objects made Reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of Statute by its ordinary language is obscure or ambiguous---If words used in a Statute are clear and unambiguous and Statute itself describes intention of Legislature then in such case, it would not be permissible for court to interpret Statute by examining Object and Reasons of Statute.

Pepper Inspector of Taxes v. Hart (1993)1 All ER 42 and AIR 1952 SC 369 ref.

(k) Interpretation of statutes---

----Construction of statute---Principle---Method of construction of statute is not to take particular words and give them a preconceived meaning, which one may have to displace or modify---Statute is to be read as a whole and ask oneself the question, in this statute, in this context, relating to the subject matter, what is the true meaning of the word---Statute is not open to construct as a matter of course, it is open only where language used in Statute requires interpretation i.e. where the Statute is ambiguous or bears two or more constructions or is of such doubtful obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.

(l) Illegal Dispossession Act (XI of 2005)---

----S.3---Specific Relief Act (I of 1877), S.9.,--Illegal dispossession---Remedy---Qabza group' andland grabbers'---Scope---Remedy under S. 9, Specific Relief Act, 1877, is admissible to any person (whether owner or otherwise), who has been dispossessed from premises in his possession without due process of law---Remedy under Illegal Dispossession Act, 2005, cannot be restricted only against Qabza group'---If it is accepted that remedy under Illegal Dispossession Act, 2005, is available only against professional land grabbers, though Statute has not defined what is meant byland grabbers' or `Qabza group' then a person, who illegally and unlawfully grabs or dispossesses or occupies property from a lawful owner for the first time, cannot be prosecuted under Illegal Dispossession Act, 2005, merely because there is no such previous history of him to call him a man professionally engaged in the activity of land grabbing.

Nemo for Appellant.

Nemo for Respondents Nos. 1 and 2.

Shahadat Awan, P.G. Sindh for Respondent No.3.

Abid S. Zuberi, Advocate Supreme Court and Sumaiya Zaidi, Advocate Supreme Court as Amici Curiae

Date of hearing: 2nd December, 2009.

2010 SCMR 1271

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

EHSANULLAH REKI---Appellant

Versus

Lt. General (R) ABDUL QADIR BALOCH and others---Respondents

Civil Appeal No.26 of 2010, decided on 22nd April, 2010.

(On appeal from the judgment dated 25-1-2010 passed by the Election Tribunal, Balochistan in Election Petition No. 30 of 2008).

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

-----Ss. 46(1)(2), proviso, (3) & 78--- Allegation of malpractices---Order of production of documents---Appointment of Commission by Election Tribunal---Powers---Scope---Election Tribunal can appoint a Commission and direct opening of packets of counterfoils and certificates or the inspection of any counted ballot papers with a rider that in carrying into effect an order for inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Election Tribunal to be invalid---Production of a document by the Commission appointed by the Election Tribunal in terms of S.46(1), Representation of the People Act, 1976 shall be conclusive evidence that the document relates to the election specified in the order and any endorsement on any ballot paper or packet of ballot paper or documents so produced shall be prima facie, that the ballot papers or documents are what the endorsement states them to be---Commission so appointed thus has the power not only to carry out the exercise as specified in S.46 of the Act but further the endorsement made on the ballot papers or the connected documents by the said Commission shall have, prima facie, evidentiary value---Commission appointed by the Election Tribunal can carry out the inspection of counted ballot papers and it shall report the same to the Election Tribunal, but shall not disclose the invalidity of the counted votes till the Election Tribunal having examined the report of the Commission and other material, if any, brought in evidence so holds.

Mian Ejaz Shafi v. Syed Ali Ashraf Shah PLD 1995 SC 43; Ch. Muhammad Abdullah v. Ch. Abdul Wakil PLD 1986 SC 487; Munshi Muhammad v. Election Commission of Pakistan 1991 SCMR 2033; Sheela B Charles v. Qaiser Ifraeem Soraya 1996 SCMR 1455; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 284 distinguished.

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

---Ss. 78 & 68(2)---Allegation of malpractices---In the present case, allegation of malpractices at some polling stations were such that it was difficult to identify the culprits, however, there were in all 220 polling stations and the dispute, subject matter of appeal before Supreme Court, related to 11 polling stations only and with regard to four polling stations the appellants had alleged that in the recount carried out by the person on the direction of the Election Commission of Pakistan, interpolated in the record, but the same could not be proved---Objection of the appellant with regard to the report submitted by court witness to the Provincial Election Commissioner after the recount was duly addressed to by the Supreme Court in remanding the case to the Election Tribunal---Parties were allowed to cross examine the person who submitted the said report, however nothing adverse was brought in evidence which could discredit the testimony of the said person and no mala fide was either alleged or could be inferred--Notwithstanding such a position, if all the rejected votes in all the eleven polling stations (although appellant had specific objection with regard to four only) were cast in favour of the appellant, the respondent still won by a margin of 188 votes as was borne out from the break up---Supreme Court, in circumstances, did not deem it proper to annul entire election and instead, concurred with the finding of the Election Tribunal to declare the respondent as a returned candidate--Principles.?

State Bank of Pakistan v. Franklin Credit and Investment Company Ltd. 2010 SCMR 121 ref.

Mir Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Muhammad Riaz Ahmad, Advocate Supreme Court and Sikandar Bashir Mohmand; Advocate Supreme Court for Appellant.

M. Akram Sheikh, Senior Advocate Supreme Court, Barrister Sajeel Shehryar, Barrister Ahmad Kamran and Hafiz M. Naeem, Advocate Supreme Court for Respondent No. 1.

Dates of hearing: 14th, 15th, 16th, 20th, 21st and 22nd April, 2010.

2010 S C M R 1301

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

TARIQ AZIZ-UD-DIN and others: in re

Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P & 14306-G to 143309-G of 2009, decided on 28th April, 2010.

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

---S.9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Notification S.R.O. 1047(I)/1993, dated 23-10-1993---Promotion---Selection Grade---Basic Scales-21 to 22---Procedure---Use of discretion---Principles---Provisions of S.9 of Civil Servants Act, 1973, mainly deal with promotions up to Basic Scale-21 procedure whereof has been laid under Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Presently rules are not available for promotion to selection grade i.e. from Basic Scale-21 to Basic Scale-22, although in year, 1993 vide Notification S.R.O. 1047 (I)/1993, dated 23-10-1993, such rules were framed but those were rescinded on 4-4-1998---In absence of any rules for promotion to Basic Scale-22, reliance has to be placed on S. 9(2)(a)(b) Of Civil Servants Act, 1973, according to which in case of selection post, selection has to be made on the basis of merit and in case of non-selection post on the basis of seniority-cum- fitness---Promotion to posts in Basic Scales-20 and 21 and equivalent, under S.9 (2) of Civil Servants Act, 1973, has to be made on the recommendations of Selection Board---For promotions from Basic Scales- 21 to 22 no other criterion has to be taken into consideration except merit---There are no rules for promotion to selection post of Grade-22, meaning thereby that competent authority may exercise discretion which has to be structured in view of the principles laid down in judge made law by full application of mind.

Chairman RTA v. Pak. Mutual Insurance Co. PLD 1991 SC 14; Director Food, N.-W.F.P. v. Madina Flour and General Mills (Pvt.) Ltd. PLD 2001 SC 1; Chief Secretary Punjab v. Abdul Raoof Dasti 2006 SCMR 1876; Adbul Wahab v. Secretary, Government of Balochistan 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101 rel.

(b) Discretion---

---Fair and transparent discretion, exercise of---Principles---Action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion---Arbitrariness in any manner is to be avoided to ensure that action based on discretion is fair and transparent---Discretion is to be exercised according to rational reasons which means that; there be finding of primary facts based on good evidence; and decisions about facts be made for reasons which serve the purpose of statute in an intelligible and reasonable manner---Actions which do not meet these threshold requirements are considered arbitrary and misuse of power---Discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions required for exercise of such power with the scope of law---All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and instruments regarding exercise of discretion---Obligation to act fairly on the part of administrative authority has been evolved to ensure rule of law and to prevent failure of justice.

Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Mansuklilal Vithaldas Chauhan v. State of Gujarat 1997(7) SCC 622 rel.

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

---S.9---Rules of Business, 1973, Rule. 15 (2) ---Constitution of Pakistan (1973), Art. 184 (3) ---Human rights---Promotion front Basic Scale-21 to 22---Arbitrary procedure---Exercise of discretion by competend authority---Principle of transparency---Summary to Prime Minister----Procedure---Petitioners were civil servants working under Basic Scale-21 and were aggrieved of promotions of respondents from Basic Scale-21 to 22---Validity---It was mandatory under R. 15 (2) of Rules of Business, 1973, that a case should be submitted to Prime Minister for his orders based on self contained, concise and objective sum/nary stating relevant facts or points for decision prepared on the same lines as those prescribed in the rules for summary of Establishment etc. ---Secretary Establishment pointed out to Supreme Court that there was no practice prevailing for the last about 60 years for forwarding cases of promotion from Basic Scale-21 to 22 and subject to availability of vacancies, Prime Minister could call for the files for promoting officers and notification was issued of his / their promotion on receipt of directions front Prime Minister by Establishment Division, ,such past practice was followed in the promotion of respondents i.e. mandate of relevant rules was ignored---There was admitted non-adherence to Rules of Business, 1973, and Secretary Establishment sent files without any forwarding letter and cases of all officers totaling 267 were not sent in terms of R.15(2) of Rules of Business, 1973---Due weight was required to be given to Rules of Business, 1973, which had constitutional sanction, whereas while promoting respondents, mandate of law was uncondonably violated---Adopting such arbitrary procedure, not only injustice had been caused to officers who were otherwise senior and also had better case on merits but they had been deprived because there was nothing in black and white before competent authority---Such fact had brought case of petitioners in the area where discretion so exercised by competent authority could not be said to be in consonance with well known principle of fair play as cases of those officers who were not promoted their files were not before him, along with self-contained note by Secretary Establishment in terms of R. 15(2) of Rules of Business, 1973---To ensure justice and openness in view of rule of law, it was obligatory upon the competent authority to decide each case on merit taking into consideration the service record of the officers in Basic Scale-21 who were eligible for promotion to Basic Scale-22---Such aspect of the matter required application of mind based ort consideration and determination of merit in the light of material explicitly showing as to why officers who had been left out were not found to be competent / below in merit in comparison to those promoted to Basic Scale-22---Such consideration of case and determination of merit for parity of treatment had become all the more necessary and in absence of considering candidature of left out officers, it would alone be tantamount to pick and choose and there was no transparency in exercise of discretion by competent authority---Manner in which promotions in civil service had been made, might tend to adversely affect existence of such organ---Honesty, efficiency and incorruptibility were sterling qualities in all fields of life including Administration of Services and such criteria ought to have been followed---Respondents were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of services which was likely to destroy service structure---Although petitioners had no right to be promoted yet in accordance with S. 9 of Civil Servants Act, 1973, they were, at least, entitled to be considered for promotion---Right contemplated under S.9 of Civil Servants Act, 1973, was neither illusionary nor a perfunctory ritual and withholding of promotion of an officer was a major penalty in accordance with Civil Servants (Efficiency and Discipline) Rules, 1973, therefore, consideration of an officer for promotion was to be based not only on relevant law and rules but also to be based on some tangible material relating to merit and eligibility which could be lawfully taken note of---Supreme Court set aside notifications of promotion of respondents and declared those of no legal consequences---Supreme Court directed competent authority to 'consider cases of all officers holding posts in Basic Scale-21 afresh in view of the observations made by Supreme Court---Respondents were not entitled for benefits, perks and privileges---Supreme Court recommended to ensure fairness, justness and the rules rescinded on 4-4-1998 to be re-enacted---Petition was allowed.

Lahore Development Authority v. Shamim Akhtar 2003 MLD 1549; Adil Hamid v. Azad Jammu and Kashmir Government 1991 PLC (CS) 1195; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Fazali Rehmani v. Chief Minister, N.-W.F.P. PLD 2008 SC 769; Tanvir Shaukat v. District and Sessions Judge, Narowal 2009 SCMR 764; Zia Ullah Khan v. Government of Punjab PLD 1989 Lah. 554; Zubai Ahmad v. Shahid Mirza 2004 SCMR 1747; Muhammad Zafeer Abbasi v. Government of Pakistan 2003 PLC (CS) 503; Civil Service Unions (CCSU) v. Minister for the Civil Service (1984) 3 All ER 935; R. v. Secretary of State [1985] 1 All ER 40; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Sajjad Ahmed Javed Bhatti v. Secretary, Establishment Division 2009 PC (CS) 981; Fundamental Law of Pakistan by A.K. Brohi; Muhammad Yousaf v. Abdul Rashid 1996 SCMR 1297; Ghuman Singh v. State of Rajasthan (1971) 2 SCC 452; Union of India and others v. Lt.-Gen. Rajendra Singh Kadyan and another (2006) 6 SCC 698; R (ProLife Alliance) v. BBC (2003) 2 All ER 977; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530; Federation of Pakistan through Secretary, Planning and Development Division, Islamabad v. Muhammad Akram and others 1995 SCMR 1647 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622 ref.

Chairman RTA v. Pakistan Mutual Insurance Co. PLD 1991 SC 14; Aman Ullah Khan V. Federal Government of Pakistan PLD 1990 SC 1092 and Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705 rel.

(d) Civil service---

---Promotion---Principle---Promotion is not a right but an officer deserves that his case should be considered for promotion in accordance with law.

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

---S. 9(2)(a)---'Merit'---Applicability--Interpretation of word `merit' includes eligibility as well as academic qualifications---Merit includes limitation prescribed under law.

Miss Abida Shabqadar v. Selection Committee 1989 SCMR 1585 rel.

(f) Civil Servants Act (LXXXI of 1973)---

---S. 9(2)(a)---Promotion to selection post---Procedure---When promotion is to be made to a selection post, it needs to be purely on merit---In case there is a tie regarding meritorious past record, credibility and confidence among the officers then seniority plays its role.

State of West Bengal v. Manas Kumar Chakrabarti AIR 2003 SC 524 rel.

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

---S.9---Constitution of Pakistan (1973), Arts. 4 & 25---Promotion of junior officers---Effect---Grievance of petitioners was that respondents who were junior to them were promoted to Basic Scale-22, and they were not even considered for promotion---Validity---If left out officers .were eligible for promotion, yet not promoted and juniors were promoted, the same amounted to glaring violation of command of Art.4 of the Constitution according to which it was an inalienable right of individual to be dealt with in accordance with law---If officers were considered for promotion having equal merit and eligibility, then seniority was to play a decisive role and ought to have been adhered---Such principle had not been followed and cases of both types of officers were not measured in the same scale to follow dictates of Art.4 of the Constitution, rule of law as well as due process of law.

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

---Art. 25---Equality of citizens---Reasonable classification---Principle of intelligible differentia---Applicability---Provision of Art.25 of the Constitution has guaranteed equality of citizens---Denying such protection in peculiar circumstances of ease on the basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out---Intelligible differentia must have rational nexus to the object sought to be achieved by such classification.

Dr. Mobashir Hassan v. Federation of Pakistan and others PLD 2010 SC 265 rel.

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

---R.8-B---Appointment on acting charge basis---Object and scope---Vested right---Appointment on acting charge basis does not confer any vested right for regular promotion, as is evident from R.8-B of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---In case where appointing authority is satisfied that no suitable officer is available to fill the post and it is expedient to fill the same, it may appoint to that post, on acting charge basis, the most senior officer otherwise eligible for promotion in the cadre or service as the case may be.

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

---S.9---Promotion---Ignoring senior officer---Principle of good governance---Posting a junior officer to hold charge of senior post, ignoring seniors who were eligible for promotion, does not advance object of achieving good governance.

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

----Arts. 4, 5 & 25---Good governance---Object of good governance, achieving of---Principle---Object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind---Such objective can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution enshrined in different articles including Arts. 4 and 25 of the Constitution---Once it is accepted that the Constitution is supreme law of country, no room is left to allow any authority to make departure from any of the provisions of law and rules made thereunder---By virtue of Arts. 4 and 5 (2) of the Constitution, even Chief Executive of the country is bound to obey command of the Constitution and to act in accordance with law and decide issues after application of mind with reasons.

Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada 1999 SCMR 2744 and Ch. Zahur Ilahi v. Mr. Zulfikar Ali Bhutto PLD 1975 SC 383 rel.

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

---S. 9(2)(a)---Promotion to selection post---Competent authority, obligation of-Competent authority was duty bound and obliged to consider merit of all eligible candidates while putting them in juxta­position to find out meritorious amongst them otherwise one of the organs of the State i.e. Executive could not survive as an independent organ which is command of the Constitution.

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

---Preamble---Role of Executive (Bureaucracy)---Scope---Under trichotomy of powers, the Executive (Bureaucracy) has to play the most important role for well being of general public---Although, bureaucrats are not representing any class of masses but whole structure of government depends upon efficient and competent officers who matter in making policies which are ultimately approved by ministers etc. and if for such purpose selection of officer is made following the principle to determine merit are not employed, running of government on the basis of good policies would ultimately affect general public.

(n) Constitution of Pakistan (1973)---

---Art. 184 (3) ---Human rights case---Maintainability---Petitioners were aggrieved of promotion of respondent from Basic Scale-21 to 22---Such promotions were assailed before Supreme Court in exercise of powers under Art. 184(3) of the Constitution---Plea raised by government was that few persons had approached Supreme Court by sending miscellaneous applications which have been treated as petitions under Art. 184(3) of the Constitution, whereas majority of the officers had accepted the decision, therefore, petitions be dismissed directing aggrieved party to avail legal remedy permissible under law, instead of invoking constitutional jurisdiction of Supreme Court---Validity---Exercise of discretion contrary to settled principles had not only affected the left out officers but had left a far reaching adverse effect upon the structure of civil servants; be in the employment of Federal or Provincial Governments, autonomous and semi-autonomous bodies etc.---If the decision of competent authority under challenge was not examined keeping in view the constitutional provisions and law as well as judgments on the subject, the competent and efficient officers who had served honestly during their service career, would have no guarantee of their future service prospects---Consequently such actions were also likely to affect good governance as well as framing of policies in welfare of public and State---To assure public at large, more particularly the civil servants their fundamental rights would be protected---Supreme Court exercised jurisdiction under Art. 184 (3) of the Constitution in circumstances.

All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 distinguished.

(o) Civil service---

---Promotion---Principle of merit---Effect---Good governance is largely dependent upon upright, holiest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to bureaucracy---Civil service is backbone of administration and purity of administration to a large extent depends upon purity of services---Such purity can be obtained only if promotions are made on merit in accordance with law and Constitution, without favouritism or nepotism---Institution is destroyed if promotions / appointments are made in violation of law.

(p) Constitution of Pakistan (1973)---

---Art.4---Word law'---Scope---Wordlaw' is of wider import and in itself mandatorily cast duty upon every public functionary to act in the matter justly, fairly and without arbitrariness.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Syed Sajeel Sheharyar, Advocate; M. Ikram Chaudhry, Advocate Supreme Court; Dr. Muhammad Aslam Khaki, Advocate Supreme Court (in HRC 9504-G & 13936-G of 2009); Afnan Karim Kundi, Advocate Supreme Court; Haider Hussain, Advocate Supreme Court; Saleemullah Khan (in HRC No. 14309-G 2009) for Applicants.

Nemo for Applicants (in HRC No. 14306-7/G of 2009).

Anwar Mansoor Khan, AGP on Court notice.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Mian Hassan Aurangzeb, Advocate Supreme Court, M.S. Khattak, Advocate on-Record, Ismail Qureshi, Secretary, Munir Ahmed, Senior JS., and Syed Mubashar Raza, JS. for the Established Division.

Ishtiaq H. Andrabi, Additional Secretary (A), Shair Bahadur Khan, Legal Advisor for Foreign Office.

Athar Tahir, Naguibullah Malik, Abdul Ghafar Soomro, Maj. (Retd.) Qamar Zaman, Imtiaz Hussain Qazi, Ishtiaq Ahmed Khan, Shahid Rashid, Nasir Mahmood Khan Khosa, Javed Iqbal, Nazar Hussain Mahar, Junaid Iqbal, M. Sami Saeed, Imtiaz Inayat Elahi, Javed Mehmood, Ghulam Ali Pasha, Khawaja Khalid Farooq, Syed Shabbir Ahmed, Tariq Masood Khan Khosa, Dr. Wasim Kausar, Tariq Saleem Dogar, Syed Jawed Ali Shah Bukhari, Muhammad Zafeer Abbasi, Jaweed Akhtar, Dr. Inamullah Khan, Khalid Idrees, Neelam S. Ali, Abdul Shafiq, Ahmed Mehmood Zahid, Batool Iqbal Qureshi, Ghulam Rasool Ahpan, Gul Muhammad Rind, Anisul Hassnain Musavi, Agha Sarwar Qizalbash, Ghalibuddin, Ayub Tarin, Asif Usman Khan, Mansoor Sohail and Haroon Shaukat Promoted Officer on Court notice.

Dates of hearing: 10th and 26th November, 2009, 7th, 20th, 26th, 28th 29th January, 2010 and 15th February, 2010.

2010 S C M R 1344

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Ghulam Rabbani, JJ

ABDUL REHMAN and others---Appellants

Versus

RABOO and others---Respondents

Civil Appeal No. 44-K of 2009, decided on 9th April, 2010.

(On appeal from the order dated 7-2-2009 passed by the Sindh High Court, Karachi in IInd Appeal No. 17 of 2007).

Constitution of Pakistan (1973)---

----Art. 185(3)---Appeal to Supreme Court---Scope---Supreme Court does not embark upon a fresh factual inquiry in exercise of the jurisdiction under Art. 185(3) of the Constitution, particularly when the reasoning in the impugned judgment is neither fanciful nor arbitrary.

Anwar Hussain, Advocate Supreme Court and Ali Akbar, Advocate-on-Record for Appellants.

Syed Shaheenshah Hussain, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents Nos.1 - 3.

Ansari Abdul Latif, Advocate Supreme Court for Respondents Nos.4-9.

Date of hearing: 9th April, 2010.

2010 S C M R 1345

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez, JJ

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

Versus

ASIF IQBAL---Respondents

Civil Appeal No. 1101 of 2006, decided on 19th February 2010.

(On appeal from the judgment dated 17-3-2005 passed by the N.-W.F.P. Service Tribunal, Peshawar in Service Appeal No. 250 of 2004).

(a) Civil Service---

----Inquiry Committee, recommendations of---Validity---Such recommendations would not be binding upon competent authority, who could take any reasoned action subject to law.

Abdul Rashid v. C.S.C. 1989 SCMR 1417 rel.

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

----Art. 212(3)---Petition for leave to appeal---Delay in filing appeal condoned by Service Tribunal---Validity---Sufficiency of cause for condonation of delay being question of fact was within exclusive jurisdiction of Service Tribunal---Discretion exercised by Tribunal to condone delay could not be reversed or disturbed by Supreme Court without sufficient lawful justification---Supreme Court declined to grant leave to appeal.

Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262; Yousaf Hussain Siddiq v. Additional Settlement and Rehabilitation Commissioners, Peshawar 1976 SCMR 268; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 rel.

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

----Art. 212(3)---Decision of Service Tribunal based on report of Inquiry Officer after having taken into consideration all factors---Effect---Supreme Court refused to grant leave to appeal.

Capt. Dr. Munawar Tahir Hussain v. Government of the Punjab through Secretary Health Department 1990 SCMR 1470 rel.

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

----Art. 212(3)---Petition for leave to appeal---Maintainability---Such petition, If involved substantial question of law of public importance, would be competent, otherwise not.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262; M.A. Majid v. Government of Pakistan 1976 SCMR 311; Director Food v. Rashid Ahmad 1990 SCMR 1446; Muhammad Manzoor Ahmad v. Commissioner, Multan Division 1990 SCMR 560; Mst. Sattan v. Mst. Rani 1989 SCMR 1677; Abdul Razaq v. Province of Punjab 1980 SCMR 876 and Muhammad Yaqub Sheikh, District Engineer District Council, Toba Tek Singh v. Government of the Punjab through Secretary Local Government and Rural Development Department, Lahore 1987 SCMR 1354 rel.

Zahid Yousaf, Additional Advocate-General N.-W.F.P: and Muhammad Jan, S.M.O. for Appellants.

Nemo for Respondents.

Date of hearing: 19th February, 2010.

2010 SCMR 1351

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

KHAN MUHAMMAD---Appellant

Versus

MUHAMMAD DIN through LRs---Respondents

Civil Appeal No. 1278 of 2006, decided on 9th March, 2010.

(On appeal from the judgment dated 31-5-2004, passed by the High Court of Sindh, Bench at Sukkur in Civil Revision No. 21 of 1991).

(a) Maxim---

----Secundum allegata et probata---Meaning---Who lodges a fact must prove it---Applicability.

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

----Arts. 117 & 120---Fraudulent document---Onus to prove---Shifting of onus, principle of---Applicability---Duty and obligation of beneficiary of document to prove the same in accordance with the provisions of Qanun-e-Shahadat, 1984---Initial burden to prove execution of document is on the party which is relying on the document---Once such onus is discharged, burden to prove factum of fraud or undue influence or genuineness of documents shifts to party which alleges fraud.

Akhtar Ali v. University of the Punjab 1979 SCMR 549 and Haji Muhammad Khan and others v. Islamic Republic of Pakistan 1992 SCMR 2439 rel.

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

----Art. 185---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Declaration of title---Concurrent findings of fact by two Courts below---Appellate jurisdiction of Supreme Court---Scope---Findings of fact---Miscarriage of justice---Onus to prove---Scope---Suit filed by plaintiff was decreed in his favour but Lower Appellate Court allowed the appeal and dismissed the suit---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court---Validity---Supreme Court normally could not go behind finding of fact by High Court, unless it was shown that the findings on the face of it amounted to perpetuating a grave miscarriage of justice or if there had been misapplication of principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible---Such being the practice and rule of Supreme Court in civil appeals, burden lay heavily on appellant to show that findings recorded by High Court were not sustainable on record and should be interfered with by Supreme Court---Defendant failed to bring the case within the parameters prescribed by Supreme Court in various pronouncements---Supreme Court declined to interfere in concurrent conclusions arrived at by the courts below, Trial Court as well as High Court, while exercising power under Art.185 of the Constitution---Appeal was dismissed.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Mst. Sughra Bibi v. Khushi Muhammad 1989 CLC 2465; Arshad Amin v. Messer Swiss Bakery and others 1993 SCMR 216 and Abdul Qadir and others v. Settlement Commissioner and others PLD 1991 SC 1029 ref.

Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767; Muhammad Sharif and another v. Muhammad Afzal Sohail and PLD 1981 SC 246; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Khuda Bakhsh v. Muhammad Sharif and another 1974 SCMR 279 rel.

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

----Arts. 184 & 185---Constitutional jurisdiction of Supreme Court is discretionary in character.

Rana Muhammad Arshad's case 1998 SCMR 1462; Nawabzada Raunak Ali's case PLD 1973 SC 236 and Haji Saif Ullah's case PLD 1989 SC 166 rel.

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

Manzoor Hussain Basra, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.

Date of hearing: 9th March, 2010.

2010 S C M R 1358

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

MUHAMMAD SAEE---Petitioner

Versus

Mst. SHARAF ELAHI and another---Respondents

Civil Petition No. 1565-L of 2007, decided on 7th April 2010.

(Against the judgment dated 13-9-2007 passed by the Lahore High Court, Lahore in C.R. No. 1696 of 2007).

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Constitution of Pakistan (1973), Art.185(3)---Transaction of exchange and gift-Onus to prove---Illiterate, Pardahnashin lady---Effect---Plaintiff was an illiterate and Paradahnashin lady who assailed mutation of exchange and gift attested in favour of defendant on the ground of fraud---Trial Court decreed the suit in favour of plaintiff and judgment and decree was maintained by Lower Appellate Court as well as by High Court---Validity---On the time and day of attestation of mutations in question, plaintiff was alone with defendant and when she went to bank, she was again alone with defendant---Plaintiff did not have any advice from any male member as depicted from evidence on record---Defendant was beneficiary of transaction in question, therefore, it was his duty and obligations to prove beyond any shadow of doubt that transactions were executed in accordance with law---Defendant failed to prove that consideration was passed on to plaintiff and also failed to prove the case in terms of dictum laid down with regard to illiterate ladies in judgments passed by Supreme Court---Defendant wanted to deprive poor illiterate and old lady from her valuable land, therefore, Supreme Court declined to exercise its discretion in his favour--- Leave to appeal was refused.

Ghulam Ali's case PLD 1990 SC 1 and Muhammad Shafi's case PLD 1986 SC 519 rel.

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

----Art. 185 (3)---Jurisdiction of Supreme Court---Scope--Interference in judgments passed by Courts below---Principle---As ultimate Court in the land, Supreme Court, as a rule, should give due weight and consideration to opinion of courts below and in particular to opinion of court of first instance' which had the advantage of hearing the parties, witnesses and watching their demeanour---Generally, Supreme Court does not interfere with findings of fact recorded by primary courts or a High Court when it is satisfied that findings of courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence--Jurisdiction is not maintainable against concurrent findings of fact recorded by courts below while exercising power under Art.185(3) of the Constitution---Such jurisdiction is always discretionary in character and he who seeks equity must come with clean hands.

Jahangir A. Jhoja, Senior Advocate Supreme Court for Petitioner.

Shahzad Shaukat, Advocate Supreme Court and Ghulam Farid Sanotra, Advocate Supreme Court for impleaded Respondents.

Nemo for Respondents 1 - 4.

2010 SCMR 1362

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Jawwad S. Khawaja, JJ

Haji LIBAS KHAN---Petitioner

Versus

Mst. NASEEM AKHTAR and another---Respondents

Civil Petition No.409-P of 2005, decided on 4th March, 2010.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 27-6-2005 passed in Civil Revision No. 1597 of 2004).

Specific Relief Act (I of 1872)---

----S. 42---Contract Act (IX of 1872), Ss.186 & 187---Suit for declaration---Dispute between parties over passage owned by plaintiff---Sale of (1/2) half of suit passage by husband in jirga settlement of defendant without having. written authority on behalf of wife to do so---Denial of wife, to have sold suit passage---Proof---Non-appearance of plaintiff and her husband as witness to deny on oath suit sale and rebut statements of defendant and Jirga members to the effect that sale document was executed by plaintiff's husband after receipt of sale price with her full knowledge and concurrence---Statement of plaintiff's special attorney that in Pathan Society, women never sit in Jirga, rather her brother/father/husband used to sit on her behalf---Validity---Plaintiff's special attorney in cross-examination had deposed that husband bore all expenses of household; that husband and wife lived in the same house and they acted in consultation with each other in respect of their domestic issues; and that plaintiff while filing suit had good relations with her husband---Evidence on record suggested existence of an implied agency in favour of husband authorizing him to deal with defendant in respect of suit land and participate in Jirga on behalf of plaintiff---Suit was dismissed in circumstances.

Saadullah Janduli, Advocate Supreme Court for Petitioner.

Adbullah Sani, Advocate Supreme Court, M. Zahoor Qureshi, Advocate-on-Record, Qaiser Naz, Tehsildar, Peshawar along with Ghafoor Khan, Patwari for Respondents.

Date of hearing: 4th March, 2010.

2010 SCMR 1370

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

KHALIQDAD KHAN and others---Appellants

Versus

Mst. ZEENAT KHATOON and others---Respondents

Civil Appeal No. 1381-L of 2006, decided on 9th April, 2010.

(Against the judgment dated 20-2-2006 passed by the Lahore High Court, Lahore in C.R.893 of 2005).

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

----S. 42---Suit for declaration---Gift of suit land through mutation in favour of four sons (defendants) by deceased father alleged by his daughters (plaintiffs) to be result of fraud---Proof---Onus of proof of transaction embodied in mutation would essentially lie upon its beneficiary to establish that same was result of conscious application of mind of donor and not under influence or fraud played with him---Duty of beneficiary of mutation was to prove same by producing evidence in accordance with accepted principles and in terms of Qanun-e-Shahadat, 1984---According to suit mutation, all donees-defendants were not present at time of its sanctioning--- Nothing on record was available to justify as to why one donee received less property than his other brothers-donees--- Deceased donor was 90 years old--- According to Lambardar (relative of both parties) that only at the time of his statement, he came to know that deceased had deprived daughters of their shares---Such statement of Lambardar could not be taken as proof that deceased had made gift only in favour of his sons and not daughters---Suit was decreed in circumstances.

Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267 and Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309 ref.

Bridget Antony's. case PLD 1953 PC 77; Ghulam Ali's case PLD 1990 SC 1; Mst. Hussain Jan's case PLD 1964 SC 173; Hakim Ali's case 1994 SCMR 193; Walayat's case 1994 MLD 1955; Muhammad Ali's case PLD 1993 Lah. 33; Haji Ghulam Ali's case PLD 1971 SC 376; Hakim Khan's case 1992 SCMR 1832; Mst. Nazeeran's case 1990 SCMR 400 and Mst. Noor Fatima's case 1990 SCMR 629 rel.

Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 distinguished.

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

----S. 96 & O. XLI, R. 33---First Appellate Court, powers of---Scope---First Appellate Court while deciding appeal had powers similar to that of Trial Court---Appellate Court could reverse findings of Trial Court only after analyzing evidence on record by pointing out any misreading or non-reading or misappreciation of evidence by Trial Court in violation of settled principles of law or any provision of law.

(c) Islamic Law---

----Gift through mutation---Burden of proof---Onus of proof of transaction embodied in mutation would essentially lay upon its beneficiary to establish that same was result of conscious application of mind of donor and not under influence of fraud played with him---Beneficiary must prove mutation by producing evidence in accordance with accepted principles and in terms of Qanun-e-Shahadat, 1984.

Bridget Antony's case PLD 1953 PC 77; Ghulam Ali's case PLD 1990 SC 1; Mst. Hussain Jan's case PLD 1964 SC 173; Hakim Ali's case 1994 SCMR 193; Walayat's case 1994 MLD 1955; Muhammad Ali's case PLD 1993 Lah. 33; Haji Ghulam Ali's case PLD 1971 SC 376; Hakim Khan's case 1992 SCMR 1832; Mst. Nazeeran's case 1990 SCMR 400 and Mst. Noor Fatima's case 1990 SCMR 629 rel.

Malik Noor Muhammad Awan, Advocate Supreme Court for Appellants.

Rab Nawaz Khan Niazi, Advocate Supreme Court for Respondents Nos. 1, 2, 3 and 5.

2010 SCMR 1375

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

MANZOOR HUSSAIN---Petitioner

Versus

SHAHADAT KHAN---Respondent

Civil Petition No. 1631-L of 2007, decided on 9th April 2010.

(Against the judgment dated 4-10-2007 passed by the Lahore High Court, Lahore in CR No.1845 of 2007).

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of---Plea of pre-emptor that he came to know about sale on 18-6-2003 at 11 a.m. in Patwarkhana--- Proof--- Suit mutation showed its attestation on 17-6-2003 in a huge crowd (Majlis-e-Aam)---As per deposition of Patwari, pre-emptor secured knowledge of sale in his office on 17-6-2003---Pre-emptor had failed to prove Talb-i-Muwathibat---Suit was dismissed in circumstances.

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

----Art. 185---Concurrent findings of fact by Courts below--Interference in such finding by Supreme court---Scope---Such jurisdiction being discretionary, Supreme Court generally would not interfere in such findings.

Muhammad Hussain Awan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2010 S C M R 1377

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Ch. Ijaz Ahmed, J

Syed KAMAL SHAH---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary and others---Respondents

Civil Petition No.201-P of 2009, decided on 1st March, 2010.

(Against the judgment dated 23-1-2009 passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeal No.33 of 2008).

(a) North-West Frontier Province Revised Leave Rules---

---Rr.3 & 5---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Absence without leave---Concurrent findings of fact---Jurisdiction of Supreme Court---Civil servant absented himself from the office and did not join in spite of best efforts of department, due to which he was removed from service---Order passed by competent authority was upheld by appellate authority while dismissing his appeal, which was also affirmed by Service Tribunal---Validity---Findings were recorded by three authorities after analyzing evidence on record--Supreme Court did not find any infirmity or illegality committed by all forums while rendering findings of fact recorded against civil servant--Findings of fact recorded by authorities below could not be interfered by Supreme Court while exercising power under Article 212(3) of the Constitution---Civil servant failed to raise any question of law as contemplated under Article 212(3) of the Constitution---Leave to appeal was refused.

Naseeb Khan's case 2008 SCMR 1369 disting.

Ch. Muhammad Azim's case 1991 SCMR 255; Khawaja Shahid Nazeer's case 2006 PLC (C.S.) 1261 and Khyber Zaman's case 2004 SCMR 1426 rel.

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

---Arts.185(3) & 212(3)---Discretionary power---Scope---Constitutional jurisdiction is always discretionary and equitable---Supreme Court, while exercising discretionary power has to look into the conduct of petitioner on the principle that he who seeks equity must come with clean hands.

Rana Muhammad Arshad's case 1998 SCMR 1462 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 rel.

Waqar Ahmed Seth, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2010 SCMR 1381

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Khalil-ur-Rehman Ramday JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others---Petitioners

Versus

Syed HASSAN ALI SHAH and others---Respondents

Civil Petitions Nos.2094 to 2102 of 2005, decided on 18-3-2010.

(On appeal from the judgment dated 16-6-2005 passed by the Federal Service Tribunal, Karachi in Appeals Nos. 1420, 1421, 1422, 1423, 1424, 1425, 1426, 1427 of 2001).

State Life Employees' Service Regulations (1973)---

----Regln. 4(ii)(c)(1)(2)---Termination of service---Performance of employees---Commercial organization---Business targets---Respondents were employees of Insurance Corporation and their services were terminated on account of their poor performance, as they failed to achieve requisite targets of business---Service Tribunal allowed appeals filed by employees and reinstated them in service---Validity---Performance standard was in fact the condition prescribed under Regln.4(ii)(c)(1)(2) of State Life Employees' Service Regulations, 1973---Insurance Corporation was a 'commercial organization, therefore, its employees were bound to show performance, otherwise it would be difficult for the organization to continue its existence---Where commercial activity was the basis for running of the same, relevant rules/regulations were to be construed/applied and incorporated strictly---Judgment passed by Service Tribunal was set aside by Supreme Court---Appeal was allowed.

Chairman, State Life Insurance Corporation of Pakistan and another v. Ali Muhammad Bangash 2002 SCMR 936 distinguished.

Mazullah Khan v. Zonal Head, State Life Insurance Corporation, Peshawar and others, 2008 SCMR 617 rel.

Mr. Sher Zaman Khan for Petitioners.

Mr. Khalil Abbas, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondents (with Respondent in person).

Date of hearing: 18th March, 2010.

2010 SCMR 1386

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani JJ

ANWAR-UL-HAQ---Petitioner

Versus

SECRETARY, MINISTRY OF INDUSTRIES AND PRODUCTION, GOVERNMENT OF PAKISTAN, ISLAMABAD and others---Respondents

Civil Petition No. 577 of 2010, decided on 19th April of 2010.

(Against the judgment dated 29-1-2010 passed by the Federal Service Tribunal, Islamabad, in Appeal No.9(R) CS of 2007).

Estacode (2000 edition)---

----Page 448---Constitution of Pakistan (1973), Art. 212(3)---Resignation, tendering of-Effect-Absent without leave---Civil Servant after tendering his resignation remained absent without leave from his duty---Authorities initiated departmental inquiry and imposed major penalty of dismissal from service--- Validity--- Mere endering/submitting of resignation, the services of government/civil servant would not come to an end and the same had to be accepted for its effectiveness by competent authority---Till such time as the resignation was accepted by competent authority, the civil/government servant would continue to be in government service and was under obligation to perform his duties---If civil servant failed or omitted to perform his duties without prior authorization or leave, he would be deemed to be an absentee rendering himself liable for disciplinary proceedings under appropriate law and rules---Civil servant failed to raise any question of public importance as contemplated in Art. 212(3) of the Constitution, which was condition precedent to entertain the petition filed under Art. 212(3) of the Constitution---When condition precedent was missing then petition was liable to be dismissed---Supreme Court declined to interfere in the order of dismissal passed by the authorities and maintained by Service Tribunal---Leave to appeal was refused.

Corpus Juris Secundum Volume LXXVII at page 77; Black's Law Dictionary; Estacode; Province of West Pakistan and another v. Ch. Din Muhammad and others PLD 1964 SC 21; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests and others PLD 1988 SC 155; Chairman, Pakistan Space and Upper Atmosphere Research Commission (SPARCO), Karachi and another v. Ahmad Mumtaz Mustehsan and another 2000 SCMR 890; Moti Ram v. Param Dev and another 1993 SCMR 2137; Union of India v. Copal Chandra AIR 1978 694 at 699; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Ch. Muhammad Azim v. The Chief Engineer, Irrigation and others 1991 SCMR 255 and Mansab Ali v. Amir and 3 others PLD 1971 SC 124 ref.

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2010 SCMR 1392

[Supreme Court of Pakistan]

Before Javed Iqbal, Raja Fayyaz Ahmad and Muhammad Sair Ali, JJ

REGISTRAR, LAHORE HIGH COURT, LAHORE---Appellant

Versus

MUHAMMAD NAVEED HASHMI and another---Respondents

Civil Appeals No. 1676 of 2003, decided on 26th January, 2010.

(On appeal from the judgment dated 24-1-2003 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore in S.A. No.16/1992).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider the impact of evidence adduced in the course of inquiry proceedings and further to ascertain as to whether order passed by Service Tribunal was justified on the record.

(b) Civil Service---

----Reputation---Proof---Persistent reputation of being corrupt can be proved conveniently on the basis of Annual Confidential Reports.

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

----Art. 212(3)---Civil Service---Reinstatment---Reputation of being corrupt---Proof---Judicial officer was dismissed from service on the allegation of his being corrupt---Service Tribunal allowed the appeal filed by judicial officer and reinstated him in service---Validity---If the judicial officer was having persistent reputation of being corrupt, the same could not be decided in vacuum and scrutiny of Annual Confidential Reports were the only device to assess the persistent reputation of being corrupt or otherwise---Annual Confidential Reports during the posting of judicial officer at place in question were silent in that regard---If there had been some complaint, the position would have been different and some remarks could have been made in Annual Confidential Reports---No advice was ever tendered to the judicial officer for improvement in that sphere---Authorized officer did not agree with the recommendations of Inquiry Officer by whom judicial officer was exonerated but reasoning whereof was academic, Authorized officer might be correct logically but not legally---Some proof to substantiate the allegation of persistent reputation of being corrupt had to be there--:Authorities failed to bring on record anything whereof such a serious charge could have been substantiated--Inquiry Officer had examined the entire evidence produced in support of allegation of corruption and exonerated the judicial officer by giving convincing and cogent reasoning which could not be brushed aside and was rightly taken into consideration and relied upon by Service Tribunal---Prosecution failed to substantiate the accusation of corruption against the judicial officer---Service Tribunal had scrutinized the entire evidence with diligent application of mind and conclusion arrived at was in consonance with law and evidence which could not be reversed without any lawful justification and the same was lacking in the case---Judgment passed by Service Tribunal was well-based and did not warrant interference---Appeal was dismissed.

Saeed Yousaf Khan, Additional Advocate-General and Abdul Sattar Asghar, Registrar High Court for Appellant.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 26th January, 2010.

2010 S C M R 1399

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, C.J Ch. Ijaz Ahmed and Khalil-ur-Rehman Ramday, JJ

CHAIRMAN, CENTRAL BOARD OF REVENUE and others---Appellants

Versus

NAWAB KHAN and others---Respondents

Civil Appeals No. 537 and 538 of 2006, decided on 16th March, 2010.

(On appeal from the judgment dated 7-2-2004 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 660(R)(C.S.) of 2002).

(a) Fundamental Rules---

----R. 22(a)---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider; whether civil servant was entitled to have protection of previous service in another organization for the purposes of fixation and counting of previous service for pension.

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

----Arts. 189 & 190---Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 and 190 of the Constitution.

(c) Fundamental Rules---

----R. 22(a)---Hand Book for Drawing and Disbursing Officers, Chapter, IX, R. 9.6(v)---Constitution of Pakistan (1973), Art.212(2) & (3)---Pay and pensionary benefits---Previous service, counting of--Absence of lien on previous post---Findings of fact---Interference by Supreme Court---Scope---Appellant was appointed by another government organization and his grievance was that his previous service in earlier government organization was to be counted for fixation of pay and pensionary benefits---Service Tribunal partially allowed the appeal and did not grant any protection of his pay drawn during previous appointment---Validity---Finding of fact recorded by Service Tribunal was in consonance with rules on the subject and law laid down by Supreme Court---Service Tribunal had rightly refused second relief to appellant in terms of R.22(a) of Fundamental Rules---Parties failed to point out any infirmity or illegality in the judgment passed by Service Tribunal and no question of public importance as contemplated under Art.212(2) of the Constitution was raised---Finding of Service Tribunal was finding of fact and could not call for any interference by Supreme Court while exercising power under Art.212(3) of the Constitution---Constitutional jurisdiction was always discretionary in character as the Service Tribunal had decided the case within the parameters and rules on the subject and law laid down by Supreme Court, therefore, Supreme Court declined to exercise its discretion under Art.212(3) of the Constitution in favour of appellants---Appeal was dismissed.

Nafees Ahmad's case 2000 SCMR 1864 and Ch. Muhammad Azim's case 1991 SCMR 255 rel.

Dil Muhammad Khan Alizai, D.A.-G., Raja Abdul Ghafoor, Advocate-on-Record (in C.A. No.537 of 2006) and Hafiz S.A. Rehman, Senior Advocate Supreme Court (in C.A. 538 of 2006) for Appellants.

Hafiz S.A. Rehmand, Senior Advocate Supreme Court (in C.A. No.537 of 2006), Dil Muhammad Khan Alizai, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record (in C.A. No.538 of 2006) for Respondents.

Date of hearing: 16th March 2010.

2010 S C M R 1403

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

TAYYABA YUNUS---Petitioner

Versus

MUHAMMAD EHSAN and others---Respondents

Civil Petition No. 71 of 2010, decided on 12th February, 2010.

(On appeal from the judgment dated 19-11-2009 in W.P. No.297 of 2009 passed by the Peshawar High Court, Abbottabad Bench).

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

----S. 5, Sched & S. 14---Suit for dissolution of marriage on ground of Khula' and recovery of dower amount---Family Court granted decree for dissolution of marriage, but refused to grant relief of dower---Decree for dower granted by Appellate Court was set aside by High Court on the ground that findings of Family Court for not granting dower could not be reversed without disturbing ground of Khula', which would tantamount to an appeal against dissolution, which was barred by law---Validity---Bar contained in S. 14(2)(b) of West Pakistan Family Courts Act, 1964 would come in way only when decree passed for dower did not exceed Rs.30,000---Family Court, in the present case, had not granted any amount of dower to plaintiff, thus, she was not precluded from preferring an appeal for an appropriate relief of dower, which being a condition sine qua non for a valid marriage---Appeal was a continuity of original proceedings of a suit---Question needing resolution by Appellate Court would be whether plaintiff was entitled to dower amount on basis of material available on record---Bar contained in S. 14(2) of West Pakistan Family Courts Act, 1964 would not come in way of plaintiff---Supreme Court set aside impugned judgment and remanded case to High Court for its fresh decision on merits after hearing both parties.

(b) Appeal (Civil)---

----Appeal is a continuity of original proceedings of a suit.

Abdul Shakoor Khan, Advocate Supreme Court for Petitioner.

Syed Arshad Hussain Shah, Advocate Supreme Court and G.N. Gohar, Advocate-on-record for Respondent.

Date of hearing: 12th February, 2010.

2010 S C M R 1408

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

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

Versus

AKBAR SHAH and others---Respondents

Civil Appeal No.1383 of 2009, decided on 1st February, 2010.

(On appeal from the judgment dated 3-8-2006 passed by the Peshawar High Court, Peshawar, in C.R. No. 406 of 1999).

(a) Administration of justice---

----Duty of Courts to apply correct law---Failure of counsel to properly advise would not be a complete excuse---Judge must wear all laws of country on sleeve of his rob.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

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

----S. 3---Duty of Court to look into point of limitation without there being objection of any party in terms of S. 3 of Limitation Act, 1908.

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

---Ss. 11, 12-A, 18, 31 & 31(2)---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Limitation Act (IX of 1908), S. 3---Land acquisition---Suit for declaration, permanent injunction and possession---Plaintiff's plea was that Government had encroached upon suit land being in excess of acquired share of land---Defendant's plea that plaintiff's entire land including suit land was acquired in year 1951 and compensation thereof, announced vide Award dated 11-6-1966 had been received without protest, thus, suit filed by him in year 1993 i.e. after 42 years was time barred---Suit decreed by Trial Court upheld by Appellate Court and in revision by High Court---Validity---Trial Court had framed issue regarding limitation on basis of specific objection raised by defendant in written statement---Defendant has raised such objection in appeal and then in revision, but Courts below had not rendered any finding thereon---Defendant had taken possession of suit land in year 1951---Award showed that defendant had acquired entire plaintiff's land including suit land---Documents exhibited by Trial Court showed that amount of compensation received by plaintiff was exactly same, which Land Acquisition Collector had determined for entire land including suit land---Award had become final in terms of Ss. 11 and 12-A of Land Acquisition Act, 1894---Plaintiff, after having received awarded compensation without protest had no lawful right even to file reference under S. 18 read with Ss. 30 and 31(2) of Land Acquisition Act, 1894---Courts below had decided suit without applying mind to such documentary evidence and provisions of Land Acquisition Act, 1894---Findings of Courts below suffered from serious errors of law and fact, which unless set aside would result in miscarriage of justice---Supreme Court dismissed suit in circumstances.

G.M. Sikdar's case PLD 1970 SC 158; Mollah Ejahar Ali's case PLD 1970 SC 173; Ghulam Muhammad's case PLD 1967 SC 191 and Malik Muhammad Ishaque's case PLD 1997 SC 109 rel.

(d) Act of Court---

----Any act of Court shall prejudice no man.

Kedar Nath's case AIR 1922 PC 269 fol.

(e) Administration of justice---

----Primary duty of Courts and other adjudicating forums would be to decide lis before them in accordance with law---Courts/forums would not be relieved of such duty on account of fact or mean of litigation or of a lawyer.

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

----Art. 185(3)---Concurrent findings of Courts below---Interference in such findings by Supreme Court---Scope---Supreme Court generally would not interfere in such findings, if same being reasonable and not arrived at by disregarding any provision of law or accepted principle concerning appreciation of evidence.

Qaiser Rasheed, Additional Advocate-General, N.-W.F.P., Zahoor Ahmed Khalil, Secretary Forest, N.-W.F.P. Najibullah, Deputy Collector, Mardan, and Aqil Khan, Sub-Divisional Forest Officer for Appellants.

Abdul Kabir, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-record for Respondents.

Date of hearing: 1st February, 2010.

2010 S C M R 1415

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Sayed Zahid Hussain and Mahmood Akhtar Shahid Siddiqui, JJ

Rai RIASAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 914-L of 2009, decided on 21st August, 2009.

(Against the order of the Lahore High Court, Lahore dated 6-7-2009 passed in Crl. Misc. No.6660-B of 2009).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.406---Constitution of Pakistan (1973), Art. 185(3)---Criminal breach of trust---Pre-arrest bail, grant of---Suit for recovery filed against the complainant by the Bank, was much prior to the registration of criminal case; and it was not denied that complainant got the case registered after filing of written reply in the recovery suit pending before the Banking Court---Investigation in the case having remained inconclusive and Bank had filed a recovery suit with regard to the amount subject-matter of the F.I.R. against the complainant much prior to registration of case; petition for leave to appeal was converted into appeal by the Supreme Court and was allowed and pre-arrest bail was granted---If accused would misuse the concession of bail, it would be open to the prosecution to move for cancellation of bail.

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

Complainant in person.

Amanat Ali Bukhari, D.P.G. and Mumtaz S.-I. Police Station Baraghar, Nankana Sahib for Respondent.

2010 SCMR 1417

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

ISA KHAN and others---Petitioners

Versus

INAYATULLAH through Legal Heirs and others---Respondents

Civil Petitions Nos.1520-L, 1575-L, 1586-L and 1587-L of 2007, decided on 6th April, 2010.

(Against the consolidated judgments dated 11-9-2007 passed by the Lahore High Court Lahore in W.Ps. Nos.7562 and 7657 of 2001).

(a) Administration of Justice---

----Each and every case is to be decided on its own peculiar facts and circumstances.

Trusties of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

(b) Pre-emption---

----Eligibility of per-emptor---Joint Khata---Principle---Land having been sold from joint Khata, eligibility of pre-emptors is to be determined vis-a-vis the share of land sold.

Muhammad Ali's case 1989 SCMR 796 rel.

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

----Art. 185(3)---Jurisdiction of Supreme Court---Scope---Supreme Court, while exercising power under Art. 185 (3) of the Constitution, does not interfere in findings of fact recorded by High Court---Constitutional jurisdiction of Supreme Court is always discretionary in character.

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

----S.21---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption right---Factual controversy---Jurisdiction of Supreme Court---Scope---Land in question was sold by original owner vide original sale mutation---Pre-emption suits, initially, were filed before Civil Court, which were decreed to favour of predecessor-in-interest of petitioners in equal shares---Predecessor-in-interest of petitioners filed suits on the basis of occupancy tenant, therefore, cases were remanded by Lower Appellate Court by setting aside judgment and decree passed by Civil Court with direction to transfer the same to revenue authorities---Litigation remained pending adjudication before different forums since 1974---Effect---Substantial justice had been done, therefore, Supreme Court declined to interfere in the conclusions arrived at by High Court---Supreme Court declined to exercise its discretion in favour of either of the parties---Leave to appeal was refused.

Muhammad Taj's case 1997 SCMR 796; Lal Khan's case 1986 SCMR 1962 and Fateh Khan's case 1983 SCMR 293 distinguished.

Nawabzada Raunaq Ali's case PLD 1973 SC 236 ref.

Malik Noor Muhammad Awan, Advocate Supreme Court (in C.Ps. 1520 and 1575-L of 2007) and Ramzan Ch. Advocate Supreme Court (in C.Ps. Nos.1586 and 1587-L of 2007) for Petitioners.

Ramzan Ch., Advocate Supreme Court (in C.P. No. 1520-L of 2007) for Respondent No. 1.

Nemo for other Respondents.

Date of hearing: 6th April, 2010.

2010 S C M R 1422

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

TASLEEM KHAN---Petitioner

Versus

SHER GHULAM and others---Respondents

Civil Petition No.228-P of 2006, decided on 2nd March, 2010.

(On appeal from the judgment/order dated 31-1-2006 of the Peshawar High Court, Peshawar passed in Criminal Revision No.50 of 2003).

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

----O. XVII, R. 3---Non-production of further evidence by plaintiff on date fixed due to absence of his counsel---Closure of plaintiff's evidence and dismissal of suit by Trial Court upheld by Appellate Court and in revision by High Court---Validity---Plaintiff had completed evidence of official witness with extraordinary delay of six years---Trial Court had granted plaintiff further adjournment of a period of more than two months with clear indication that entire evidence must be produced, otherwise his evidence would be closed under O. XVII, R. 3, C.P.C.---Absence of plaintiff's counsel on relevant date could not excuse absence of his witnesses---Plaintiff had been provided last opportunity, but still his evidence was not available, thus, Trial Court was left with no alternative but to proceed in accordance with law---Trial Court had dismissed suit on basis of evidence on record---Supreme Court refused to grant leave to appeal to plaintiff.

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

---- O. XVII, R. 3---Absence of counsel could not excuse absence of plaintiff's witnesses on date fixed for recording his evidence.

Waseem-ud-Din Kattak, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd March, 2010.

2010 S C M R 1425

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

SECTION OFFICER, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT and others---Appellants

Versus

GHULAM SHABBIR---Respondent

Civil Appeal No.381-L of 2009, decided on 5th April, 2010.

(Against the judgment dated 24-11-2008 passed by the Lahore High Court, Bahawalpur Bench in Writ Petition No.3300 of 2008).

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

----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider the contentions of employer/bank that High Court had erred in law in allowing employee's Constitutional petition as he could not have withdrawn his request for retirement after availing leave preparatory to retirement and that if order passed by High Court would be allowed to remain in field it would be taken as precedent and entire fabric of service would be punctured, while the employee contended that petition was barred by time and before completion of leave preparatory to retirement, he had lawfully withdrawn his request for retirement.

(b) Punjab Civil Services Pension Rules, 1995---

----R.3.5, Note-I---ESTACODE, 2003 Edition (Punjab), page 690---Leave preparatory to retirement---Withdrawal---Respondent was employee of bank, who applied for voluntary retirement and had availed leave preparatory to retirement---After availing almost full period of leave preparatory to retirement, employee withdrew his option of retirement-Bank did not allow the employee to withdraw his option of retirement but High Court in exercise of Constitutional jurisdiction directed the bank to let the employee withdraw his option of retirement---Validity---Employee availed leave preparatory to retirement for almost 365 days in view of his acceptance of retirement by bank vide order dated 16-6-2006 coupled with the fact that employee had submitted application for withdrawal of his voluntary retirement just five days before his actual retirement on 30-6-2007---Employee had taken benefit of order dated 16-6-2006 and had mentioned his intended date of retirement as 30-6-2007---On 19-5-2008, competent authority dismissed his application for withdrawal of his resignation with cogent reasons in terms of law on the subject---Employee had failed to point out any illegality in the order passed by bank---High Court accepted Constitutional petition filed by employee, without adverting to relevant rules on the subject---Judgment passed by High Court was set aside by Supreme Court while the order dated 19-5-2008, passed by authorities was upheld---Appeal was allowed.

(c) Administration of justice---

----Judge must wear all laws of the country on the sleeves of his robe and failure of counsel to properly advise is not a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 and Shamoon Bahadur's case PLD 1979 SC 835 rel.

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

----Arts. 189 & 190---Judgment of Supreme Court---Binding effect---Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 and 190 of the Constitution.

Muhammad Iqbal's case 1984 SCMR 334 rel.

Muhammad Hanif Khattana, Additional Advocate-General for Appellants.

Mian Shah Abbas, Advocate Supreme Court for Respondent.

Date of hearing: 5th April, 2010.

2010 SCMR 1429

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

NAZAR and others---Petitioners

Versus

MEMBER (JUDICIAL-II) BOR---Respondents

Civil Petition No.1579-L of 2007, decided on 7th April, 2010.

(Against the judgment dated 4-6-2007 passed by the Lahore High Court, Lahore in Writ Petition No.18201 of 2004).

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

----Arts. 189 & 190---Judgment of Supreme Court---Scope---Executive order---Effect---Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 and 190 of the Constitution---Once matter has been finally adjudicated by Supreme Court then it is binding between the parties---Judgment of Supreme Court cannot be overridden or nullified by any executive order, rule or a dispensation short of legislative will.

Pir Bakhsh's case PLD 1987 SC 145; Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430; Capt. (Retd) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184; Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 and Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 rel.

(b) Administration Justice---

----Judgment of Civil Court has to be given due weight as compared to the order of revenue authorities.

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

----S.42---Civil Procedure Code (V of 1908), S.11----Constitution of Pakistan (1973), Arts. 185(3), 189 & 201---Gift transaction---Proof---Judgment of Supreme Court---Ground not raised---Effect---Petitioners assailed mutation of gift in favour of respondents, Civil Court dismissed the suit and judgment passed by Civil Court was maintained upto the Supreme Court---During the proceedings before Civil Court, petitioners also assailed the mutation of gift before revenue authorities---High Court, in exercise of Constitutional jurisdiction, maintained the decision of Supreme Court, which was in favour of respondents---Validity---Decisions of Supreme Court were binding and must be valid by all Courts and authorities---Courts should not allow a judgment of Supreme Court to be challenged even on the ground which was not 'taken before Supreme Court---Civil Court or any other authority had no jurisdiction to entertain any application or any civil suit regarding the subject-matter which had already been set at right by Supreme Court---Petitioners failed to point out any illegality or infirmity in the judgment passed by High Court---Leave to appeal was refused.

State v. Mujibur Rehman Shami and 2 others PLD 1973 Lah. 1 and Abdul Majid's case PLD 1992 SC 146 rel.

Mian Muhammad Waheed Akhtar Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2010 S C M R 1433

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain, Rahmat Hussain Jafferi and Ghulam Rabbani JJ

MUMTAZ AHMED through LRs and others---Appellants

Versus

SAEED AHMED alias KHALID and others---Respondents

Civil Appeal No. 1648 of 2006, decided on 30th March, 2010.

(Against judgment dated 29-4-2005 of High Court of Sindh, Hyderabad Circuit, passed in Civil Revision No.178 of 1990)

Specific Relief Act (I of 1877)---

----S 42---Qanun-e-Shahadat (10 of 1984), Art. 115---Declaration of title---Estoppel of tenant---Land in question was owned by local government, and plaintiffs had constructed shops over it with permission of the authorities---Defendants were in possession of suit property as tenants of plaintiff, who stopped payment of rent to plaintiffs and also denied their title---Suit filed by plaintiffs was decreed in their favour by Trial Court and appeal filed by only defendants was allowed and suit was dismissed---High Court in exercise of revisional jurisdiction restored the judgment and decree, passed by Trial Court---Plea raised by defendants was that in presence of actual owner of property, provision of Art.115 of Qanun-e-Shahadat, 1984, was not applicable---Validity---Statutory bar was created against tenant to challenge title of landlord---Decision arrived at by Trial Court in respect of title of suit property was decided against authorities who did not challenge judgment and decree of Trial Court, as such they had accepted the same---It was not alleged that local government ever threatened eviction of defendants---Ordinarily tenant was not entitled to set up title of third person---There was nothing on record to show that bar created under Art.115 of Qanun-e-Shahadat, 1984, had been removed as such defendants could not challenge title of plaintiffs---Supreme Court declined to interfere in judgment and decree passed by High Court---Appeal was dismissed.

Azimuddin v. Dilshad Hussain PLD 1973 Kar. 284. distinguished.

N.C. Motiani, Advocate Supreme Court for Appellants.

Anwar Hussain, Advocate Supreme Court for Respondents Nos.12 to 14.

Date of hearing: 30th March, 2010.

2010 S C M R 1437

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmad and Ch. Ijaz Ahmed JJ

TEHSIL NAZIM TMA, OKARA---Petitioner

Versus

ABBAS ALI and 2 others---Respondents

Civil Petitions Nos. 1421-L to 1423-L of 2007, decided on 5th April, 2010.

(Against the judgments dated 28-2-2007 passed by the Lahore High Court Lahore in W.Ps. Nos.9356, 9360 and 9362 of 2005 respectively)

(a) Payment of Wages Act (IV of 1936)---

----Ss. 15(2) & 17(1)(a) proviso---Constitution of Pakistan (1973), Art. 185(3)---Appeal---Pre-conditions---Claim of workman, recovery of---Appellate jurisdiction of Supreme Court---Scope---Valid order---Interference---Authority under Payment of Wages Act, 1936, directed the employer to pay amount claimed by workmen---Feeling aggrieved of such orders, employer filed appeals before Labour Court which were dismissed for non-compliance of proviso to S. 17(1)(a) of Payment of Wages Act, 1936---Orders passed by Labour Court were maintained by High Court in exercise of Constitutional jurisdiction---Validity---It was condition precedent that employer had to file certificate along with certificate of payment, which was mandatory in nature---Without compliance of parameters and conditions prescribed in proviso to S.17(1)(a) of Payment of Wages Act, 1936, appeals filed by employer were not competent/maintainable which were rightly dismissed by Labour Court and approved by High Court---Order of Authority was proper and valid on merits, therefore, Supreme Court declined to interfere to set aside the same only for the reason that the Authority had no jurisdiction to take the cognizance of the matter---Employer had accepted the claim of workmen before the Authority even otherwise pension and other dues earned by workmen were no more bounty of the State---As the employer had accepted the claim of workmen, therefore, Supreme Court declined to exercise of its discretion in favour of employer-Leave to appeal was refused.

Town Committee Ghakharmandi v. Authority under Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452 ref.

Syed Match Company Ltd. v. Authority under Payment of Wages Act and others 2003 SCMR 1493; Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590; Haji Sheikh Noor Din and sons v. Muhammad Fayyaz and 2 others 2006 PLC 623; Mansab Ali's case PLD 1971 SC 124; Muhammad Said Khan's case PLD 1973 SC 514; Nawabzada Raunaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462; Wali Muhammad's case PLD 1974 SC 106; Khawaja Muhammad Sharif's case PLD 1988 Lah. 725 and Haji Muhammad Saifullah Khan's case PLD 1989 SC 166 rel.

(b) Administration of justice---

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

Atta Muhammad Qureshi's case PLD 1971 SC 61 and Mughal Surgical's case 2005 PLC 634 rel.

(c) Interpretation of statues---

----Amendment through notification has prospective effect and not retrospective.

Messrs Army Welfare Sugar Mills Ltd's case 1992 SCMR 1652 rel.

(d) Jurisdiction---

----Wrong decision---Scope---Wrong decision does not mean that it is necessarily without jurisdiction.

A. Habib Ahmed's case PLD 1992 SC 353 rel.

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

----Arts. 4, 5(2), 9 & 187--- Supreme Court has to provide justice to all parties in view of Arts. 4, 5(2), 9 and 187 of the Constitution.

Muhammad Saleem's case NLR 1992 Service 128. rel.

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

----Arts. 184 & 185---Supreme Court, jurisdiction of---Scope---Technicalities---Where substantial justice has been done, it is not necessary to interfere in Constitutional jurisdiction on the basis of technicalities alone---Constitutional jurisdiction is discretionary in character and where Courts below have given concurrent conclusions, Supreme Court generally does not interfere in the conclusions arrived at by High Court and Tribunals below.

Khuda Bukhsh's case 1974 SCMR 279; Abdul Rehman Bajwa's case PLD 1981 SC 522 and Muhammad Sharif's case PLD 1981 SC 246 rel.

Ch. Riasat Ali, Advocate Supreme Court and M.A. Qureshi Advocate-on-Record (in all cases) for Petitioners.

Ch. M. Anwar Ghuman Advocate Supreme Court (in all cases) for Respondent No.1.

Date of hearing: 5th April, 2010.

2010 SCMR 1443

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Lt. General (Retd) MUHAMMAD AFZAL NAJEEB---Petitioner

Versus

JAVED SADIQ MALIK---Respondent

Civil Petition No.2145 of 2009, decided on 9th March, 2010.

(Against the judgment dated 2-12-2009 in FAO No.312 of 2008 passed by the Lahore High Court, Lahore)

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

----S. 17---Ejectment petition---Direct deposit of rent in court by tenant without first tendering same to landlord---Plea of landlord that such deposit would constitute default according to provisions of S. 17(2)(i) of Cantonments Rent Restriction Act, 1963 read with Explanation thereto---Plea of tenant denying to be defaulter that firstly he deposited rent in name of deceased landlord and thereafter in name of his heirs as he was not aware of death of landlord and petitioner had not intimated him with regard to death of deceased landlord, and subsequently in petitioner's name with direction of Rent Controller---Order of Rent Controller accepting ejectment petition on basis of judgment reported as 2006 SCMR 1501 upheld by High Court---Validity---Tenant had been non-suited on basis of such judgment having no bearing qua issue involved in the present case---Courts below had erred in law to accept ejectment petition without framing issue on divergent pleadings of parties---Rent Controller while passing impugned order had adopted shorter procedure other than prescribed under Cantonments Rent Restriction Act, 1963---Default had yet to be proved by landlord---Supreme Court set aside impugned orders and remanded case to Rent Controller for its decision afresh in accordance with law.

Mst. Yasmeen Khan's case 2006 SCMR 1501 distinguished.

(bc) Cantonments Rent Restriction Act (XI of 1963)---

----Preamble &. S. 17 ---Civil Procedure Code (V of 1908), Preamble---Proceedings before Rent Controller --- Provisions of C.P.C., applicability of --- Scope --- Such proceedings being summary in nature provisions of C.P.C. would not apply to such proceedings in stricto senso, but principles of C.P.C. would apply thereto.?

(c) Practice and procedure---

----Each and every case is to be decided on its own peculiar circumstances.

Board of Trustees' case 1994 SCMR 2123 rel.

Tariq Mehmood, Advocate Supreme Court for Petitioner.

Saleem Abdul Rehman, Advocate Supreme Court for Respondent.

Date of hearing: 12th February, 2010.

2010 SCMR 1450

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui JJ

NADIR KHAN and another---Appellants

Versus

SECRETARY, M/o. COMMUNICATIONS, GOVERNMENT OF PAKISTAN & IGP NATIONAL HIGHWAY AND MOTORWAYS POLICE ISLAMABAD---Respondent

Civil Appeals Nos. 1206 and 1207 of 2009, decided on 22nd January, 2010.

(On appeal against the judgment dated 26-5-2009 passed by Federal Service Tribunal, Islamabad in Appeals Nos. 426(P)CS of 2008 and 882(R)CS of 2008).

Civil service---

----Promotion---Scope---Promotion on officiating basis is promotion.

Shoaib Shaheen, Advocate Supreme Court for Appellants.

Shah Khawar, D.A.-G., Ch. Akhtar Ali, AOR and Ch. M. Yaqoob, SP Legal NH&MP for Respondent.

2010 SCMR 1458

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Dr. MUHAMMAD AMIN---Petitioner

Versus

PRESIDENT ZARAI TARAQIATI BANK LIMTED---Respondent

Civil Petition No.2726 of 2004, decided on 17th February, 2010.

(Against the judgment, dated 20-9-2004 passed by the Federal Service Tribunal, Islamabad in Appeal No.439(L) of 1999).

(a) Interpretation of statutes---

----Non-framing of rules under new Act or Ordinance---Effect---Till framing of new rules, old rules would be deemed to be operative despite their implied repeal.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 rel.

(b) Agricultural Development Bank Ordinance (IV of 1961)---

----S. 39(2)(e)(f)---Agricultural Development Bank (Staff) Service Regulations, 1961---Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002), Ss.9 & 12---ESTACODE, Vol.1, Ed.2007, Study Leave Rules prescribed By President (Fundamental Rule 84), Para-7---Service Tribunals Act (LXX of 1973), S.2-A---Constitution of Pakistan (1973), Art.212(3)---Deputy Director in Agricultural Development Bank---Application for grant of ex-Pakistan study leave on half pay for one year w.e.f. 26-9-1992 to 25-9-1993---Granting of such leave by Bank on half pay w.e.f. 26-9-1992 to 15-8-1993 and extraordinary leave without pay w.e.f. 16-8-1993 to 25-9-1993 for appellant had not completed five years of service on date of making such application---Non-deciding of appellant's representation by Chairman of Bank for treating period of his leave from 26-9-1992 to 21-1-1996 as study leave---Dismissal of appeal by Service Tribunal for Bank not having statutory rules---Validity---Agricultural Development Bank (Staff) Service Regulations, 1961 did not have any provision for grant or refuse of study leave---Use of word "ordinarily" would mean usual, normal, common and reasonable---Bank had erred in law to rely upon Para-7 of ESTACODE---Appellant was appointed on 26-11-1987 and his leave was sanctioned on 22-8-1992, thus, there were four months less from five years while serving with Bank--- Supreme Court set aside impugned judgment of Service Tribunal and order of Bank while directing Bank to grant such leave to appellant from 26-9-1992 to 15-8-1993 on full pay in accordance with law and rules on subject.

Muhammad Mobeen-us-Salam's case PLD 2006 SC 602; Muhammad Idrees's case PLD 2007 SC 681; Anwar Hussain's case 1992 SCMR 1112; Sheikh Muhammad Amin's case PLD 1966 Lah.473; Abdul Wahid's case PLD 1994 Quetta 89; Ziaullah Khan's case 1992 SCMR 602; Aziz Khan's case PLD 1980 Pesh. 227; Taza Khan's case 1992 SCMR 1371; Kemal Sharif Rana's case PLD 1985 Lah. 135; Blacks' Law Dictionary and Messrs Gadoon Gadoon Textile Mills' case 1997 SCMR 641 ref.

Petitioner in Person.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Ms. Huma Bokhari, V.P. (Law) for Respondent.

Date of hearing: 17th February, 2010.

2010 SCMR 1466

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

Dr. MUHAMMAD AMJAD and another---Appellants

Versus

Dr. ISRAR AHMED and others---Respondents

Civil Appeals Nos.384 and 385 of 2003, decided on 14th April, 2010.

(On appeal from the judgment of the Service Tribunal dated 15-10-2001 passed in Appeal No.775 of 1999).

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

----S.8---Promotion---Delay---Legitimate expectancy, principle of---Civil servant was not promoted despite availability of vacancy---Service Tribunal allowed the appeal filed by civil servant and directed the authorities to consider him for promotion from the date when he became eligible for the post as there was vacancy available then---Validity,---State functionaries were mandated to act with certain amount of reasonableness---Such canon of due process of law was not observed in processing civil servant's promotion matter---Having acquired requisite experience and having authored number of articles required for post in question, the civil servant had legitimate expectancy for the post in question---Judgment passed by Service Tribunal was neither against the rules nor the law declared---Civil servant was eligible to be considered for promotion when substantive vacancy in promotion quota was available---Judgment passed by Service Tribunal directing the authorities to consider case of civil servant's promotion to post in question from the date when vacancy in his quota was available was unexceptionable--- Supreme Court declined to interfere in the judgment passed by Service Tribunal--- Appeal was dismissed.

Government of N.-W.F.P. v. Buner Khan 1985 SCMR 1158; Government of Punjab v. Rana Ghulam Sarwar Khan 1997 SCMR 515; Muhammad Iqbal V. Executive District Officer(R) Lodhran 2007 SCMR 682; Sarwar Ali Khan v. Chief Secretary to Government of Sindh 1994 PLC (C.S.) 411; Luqman Zareen v. Secretary Education N.-W.F.P. 2006 SCMR 1938; Ch. Muhammad Siddique v. Director, Special Education 1988 SCMR 88 and Idrees Ahmad v. Hafiz Fida Khan PLD 1985 SC 376 ref.

Dr. A. Basit, Advocate Supreme Court for Appellants (in Civil Appeal No.384 of 2003).

Saeed Yousaf Khan, Additional Advocate-General for Appellants (in Civil Appeal No.385 of 2003).

Shoaib Shaheen, Advocate Supreme Court for Respondents.

Date of hearing: 14th April, 2010.

2010 SCMR 1475

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Messrs UNITED WOOLLEN MILLS LTD'. WORKERS' UNION---Appellant

Versus

Messrs UNITED WOOLLEN MILLS LTD.---Respondent

C.A. No.968 of 2006, decided on 11th March, 2010.

(On appeal from the judgment, dated 14-2-2006, passed by the High Court of Sindh, Karachi, in Labour Appeal No.412 of 2004).

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

----Arts. 189 & 190---Judgment of Supreme Court---Decision of High Court in violation of dictum laid down by Supreme Court---Effect---By virtue of Arts. 189 and 190 of the Constitution, judgment of Supreme Court is binding on each and every organ of the State---When High Court disturbs findings bf fact in violation of dictum laid down by Supreme Court, such judgment of High Court is not sustainable in the eyes of law.

Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of West Pakistan and others PLD 1970 SC 173 rel.

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

----S. 24-A---Speaking order---Scope---Under S.24-A, General Clauses Act, 1897, even public functionaries are duty bound to decide the case after application of mind.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 rel.

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

----Ss. 11-A, 12, 13 & 14---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Restoration in service---Retrenchment---Administration of justice---Workmen aggrieved of their termination from service assailed the order before Labour Court on the ground that they were not made party to proceedings under S.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Labour Court allowed grievance petition of workmen with the observation that their termination in process of retrenchment would be open to interference as orders of termination did not give exp; 'cit reason as was shown to have been passed mala fide or in colourable exercise of powers under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, thus reinstated workmen in service but High Court in exercise of appellate jurisdiction reversed findings passed by Labour Court and maintained the order of termination from service---Validity---Labour Court rendered such finding after proper appreciation of evidence keeping in view the mandate of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which was reversed without adverting to documentary as well as mandatory provisions of law by High Court in its judgment---Termination orders of workmen/ retrenchment orders was colourable exercise of Authority and far from being bona fide, therefore, termination/retrenchment orders were unwarranted and Labour Court was justified to set aside the same with cogent reasons and reinstated them with back-benefits which was reversed without considering the mandatory provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, by High Court through its judgment---Supreme Court did not accept the suggestion of employer with regard to remanding of case to High Court for fresh adjudication of appeal only for re-writing a judgment, as the same would serve no useful purpose and would be proved an exercise in futility---Supreme Court set aside the judgment passed by High Court and restored that of Labour Court---Appeal was allowed.

Mst. Sughra Bibi v. Khushi Muhammad 1989 CLC 2465; Arshad Amin v. Messrs Swiss Bakery and others 1993 SCMR 216 and Abdul Qadir and others v. Settlement Commissioner and others PLD 1991 SC 1029 rel.

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

----Art. 185---Appellate jurisdiction of Supreme Court---Findings of fact recorded by Trial Court---Effect---As ultimate court in the land, Supreme Court has a rule to give due weight and consideration to opinions of the courts below and particular to the opinion of court of first instance which had the advantage of hearing the parties, witnessing and watching the demeanour---Generally, Supreme Court does not interfere with findings of fact reached by primary courts or High Court, when it is satisfied that finding of courts below are on the whole reasonable and are not arrived at by disregarding any provisions of law or any accepted principle concerning the appreciation of evidence.

Zia Makhdoom, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

Syed Qamaruddin Hassan, Advocate Supreme Court and M.S. Ghori, Advocate-on-Record with Ms. Shazia Khan, M.D. for Respondent.

Date of hearing: 11th March, 2010.

2010 SCMR 1484

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Civil Petition No.1863 of 2009

EXECUTIVE COUNCIL, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD through Chairman and another---Petitioners

Versus

M. TUFAIL HASHMI---Respondent

(On appeal from the judgment dated 28-7-2009, passed by Federal Service Tribunal, Islamabad in Service Appeal No.1385(R)(CE) of 2004).

Civil Petition No.2191 of 2005

S.M.E. BANK LIMITED through Chief Executive Officer---Petitioner

Versus

Mst. FARHAT ZAFAR acct another---Respondents

(On appeal from the judgment dated 18-6-2005, passed by Federal Service Tribunal, Islamabad in Service Appeal No. 35(L)(CE) of 2004).

Civil Petition No.804-K of 2009

IMAM BUX---Petitioner

Versus

CHAIRMAN, PAKISTAN STEEL BIN QASIM, KARACHI and another---Respondents

(On appeal from the judgment dated 8-9-2009, passed by Federal Service Tribunal, Karachi in Service Appeal No. 802(K)(CE) of 2002).

Civil Petition No.1247 of 2009

LIAQAT ALI ABBASI---Petitioner

Versus

SECRETARY MINISTRY OF FINANCE, ISLAMABAD and another---Respondents

(On appeal from the judgment dated 18-5-2009, passed by Federal Service Tribunal, Islamabad in Service Appeal No.908(R)(CE) of 2004).

Civil Petitions Nos.12-K and 13-K of 2010

ZAHEER AHMED KHAN---Petitioner

Versus

PAKISTAN STEEL BIN QASIM, KARACHI through Chairman and others---Respondents

(On appeal from the judgment dated 28-9-2009, passed by Federal Service Tribunal, Karachi in Service Appeal No.7(K)(CE) of 2002).

Civil Petitions Nos.62 and 64 of 2010

EXECUTIVE COUNCIL, ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD and another---Petitioners

Versus

Mrs. ZAMURAT MEHMOOD and others---Respondents

(On appeal from the judgment dated 14-11-2009, passed by Federal Service Tribunal, Islamabad, in Service Appeal No.108(R)CE to 110(R)CE of 2003)).

Civil Petitions Nos.1863 of 2009, 2191 of 2005, 804-K of 2009, 1247 of 2009, 12-K of 2010, 13-K of 2010, 62 and 64 of 2010, decided on 13th April, 2010.

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

----S.4---Expression "civil servant"---Scope---Except the employees whose services are governed by statutory rules, others do not fall within the definition of `civil servant'.?

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 rel.

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

----Ss. 2 (c), 2 (d), 9 & 10--- Service Tribunals Act (LXX of 1973), S.4---Appeal before Service Tribunal---Maintainability---Employees of non-statutory corporation---Master and servant principle of--Applicability---Major penalties imposed on respondents under the provisions of Removal from Service (Special Powers) Ordinance, 2000, were set aside by Service Tribunal in exercise of jurisdiction under S.4 of Service Tribunals Act, 1973---Plea raised by authorities was that as respondents were not civil servants, therefore, Service Tribunal had no jurisdiction to decide the appeal---Validity---Persons in corporation service' or persons ingovernment service', as defined in S.2(c) and (d) of Removal from Service (Special Powers) Ordinance, 2000, could be subjected to the provisions of the Ordinance---Only those employees could approach Service Tribunal, who fell within the definition of civil servant', holding posts in connection with the affairs of Federation---Remaining categories of employees, including contractual ones, if they were aggrieved of any adverse action, Service Tribunal was not the appropriate forum for redressal of their grievance---Service Tribunal was the forum constituted under Art. 212 of the Constitution for redressal of grievance of those employees, whose terms and conditions were settled under Art. 212 (1) (a) of the Constitution---Any action taken against persons not falling within the definition of civil servant, would not be questionable before Service Tribunal as it was not meant to provide a forum to employees, whose services were governed by non-statutory rules or who did no: jai within the definition of person ingovernment service' as defined in S.2 (d) of Removal from Service (Special Powers) Ordinance, 2000---Employees of non-statutory corporations, who approached Service Tribunal for redressal of their grievance were not enjoying the protection of statutory rules, therefore, Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of Master and Servant---' Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal---Appeal was allowed.?

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681; Pakistan Telecommunication Company Ltd. v. Muhammad Zahid 2010 SCMR 253 and Pakistan International Airline Corporation v. Tanweer-ur-Rehman Civil Appeal No.172-K of 2009 rel.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioners (in Civil Petitions Nos.1863 of 2009, 62 and 63 of 2010).

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners (in Civil Petition No.1247 of 2009).

Nemo for Petitioners (in Civil Petitions Nos.804-K of 2009, 12-K and 13-K of 2010).

Abdur Rahim Bhatti, Advocate Supreme Court for Respondents (in Civil Petition No1863 of 2009).

Tariq Mehmood, Senior Advocate Supreme Court and M. Shoaib Shaheen, Advocate Supreme Court for Respondents (in Civil Petitions Nos.1247 of 2009, 62 and 64 of 2010).

Anwar Mansoor Khan, Attorney-General for Pakistan on Court Notice.

Dates of hearing: 8th and 9th February, 2010.

2010 S C M R 1495

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Khalil-ur-Rehman Ramday, JJ

CHAIRMAN, STATE LIFE INSURANCE CORPORATION and others---Appellants

Versus

HAMAYUN IRFAN and 2 others---Respondents

Civil Appeals Nos.2139 to 2141 of 2004, decided on 18th March, 2010.

(On appeal from the judgments dated 16-9-2004, 27-10-2004 and 18-10-2004 passed by the Federal Service Tribunal, Lahore, in Appeals Nos.720(L)(CE), 135(L)(CE) of 2000 and 454(L)(CE) of 2001).

(a) State Life Employees Service Regulations, 1973---

----Regln. 4 (ii) (c) (2)---Constitution of Pakistan (1973), Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether competent authority had jurisdiction to review performance of employees after a period of one year or their performance should have been reviewed after three years in view of the judgment passed by Supreme Court; whether performance of employees was rightly adjudged on the closing of period of one year as it was mentioned in the appointment letter; and whether employees in view of the facts and circumstances of the case were entitled for back benefits.

Chairman, State Life Insurance Corporation of Pakistan and another v. Ali Muhammad Bangash 2002 SCMR 936 and The Chairman, State Life Insurance Corporation of Pakistan and others v. Muhammad Siddique (Civil Petition Nos. 1213 to 1215 and 131 to 1315 of 2003) ref.

(b) State Life Insurance (Nationalisation) Order (I of 1972)---

----Art.49--- State Life Employees Service Regulations, 1973, Regln.4(ii)(c)(2)---Statutory regulations---Pre-conditions---State Life Insurance Corporation has an authority to frame regulations with regard to terms and conditions of their employees with previous approval of Federal Government---State Life Employees Service Regulations, 1973, were framed with previous approval of Federal Government vide notification duly published in official gazette---Article 49 of State Life Insurance (Nationalisation) Order, 1972, mandated the ingredients to be complied with while framing the regulations that previous approval of Federal Government was to be obtained; regulations to be notified in the official gazette and regulations must not be inconsistent with State Life Insurance (Nationalisation) Order, 1972---All such ingredients have been fulfilled and complied with by competent authority, therefore, State Life Employees Service Regulations, 1973, had the status of statutory regulations.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Anwar Hussain v. Agriculture Development Bank of Pakistan and others PLD 1984 SC 194 and Chairman WAPDA and others v. Syed Jamil Ahmed 1993 SCMR 346 distinguished.

(c) Interpretation of statutes---

----Statutory regulations---Scope---Statutory regulations mean regulations which are legislative (as opposed to executive) made by a rule making authority in exercise of statutory power with the approval of Federal Government or Provincial Government; it is the exercise of delegated legislative power by rule making authority---Making and promulgation of rule should be attended by certain formalities e.g. publication in government gazette---Regulations framed under statutory power after completing all legal formalities are within the ambit of relevant status is of statutory regulations.

Principle Cadet College Kohat v. Muhammad Shohaib Qureshi PLD 1984 SC 170; Subedar Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435; Mr. S.M. Zafar in his book `Understanding Statutes'; National Bank of Pakistan and another y. Punjab Labour Appellate Tribunal and others 1993 SCMR 105 and Chief Manager, State Bank of Pakistan Lahore and another v. Muhammad Shafi C.P. No.1188-L of 2004 ref.

(d) Precedent---

----Conflict in judgments---Principle---In case of conflict between judgments of Supreme Court, the judgment of larger Bench prevails.

Multilines Associate's case PLD 1995 SC 423 rel.

(e) State Life Employees Service Regulations, 1973---

----Regln.4 (ii)(c)(2)--- General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Arts. 4 & 5 (2)---Reinstatment in service---Evaluation of performance---Criteria---Public functionaries---Decision of cases of employees by employer/functionaries---Principle---Respondents were employees of appellant corporation and their services were terminated on the basis of average poor performance for previous years---Service Tribunal reinstated respondents in service with back benefits and allowed appellant corporation to re-evaluate performance of respondents according to the criteria fixed by Supreme Court---Validity---It was duty and obligation of public functionaries to decide cases of their subordinates after application of mind in view of Arts. 4 and 5 (2) of the Constitution---Duty and obligation of competent authority under S. 24-A, General Clauses Act, 1897 to decide cases of subordinates after application of mind with reasons---Substantial justice was done by Service Tribunal through its judgments and Supreme Court declined to exercise its discretion in favour of appellant corporation as the corporation failed to raise any question of public importance as contemplated in Art. 212 (3) of the Constitution---Appeal was dismissed.

Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education Rawalpindi and others 2004 SCMR 35; Asad Bashir v. Chairman Board of Intermediate and Secondary Education Lahore and others 2006 PLC (C.S.) 110; Anwar Hussain v. Agriculture Development Bank of Pakistan and others 1992 SCMR 1112; Dr. Muhammad Amin v. President Zari Taraqiati Bank Limited C.P. No.2726 of 2004; Yar Muhammad v. Water and Power Development Authority through Chairman and 2 others 1995 SCMR 46; Multilines Assocte's case PLD 1995 SC 423; Mazullah Khan v. Zonal Head, State Life Insurance Corporation of Pakistan, Peshawar and others 2008 SCMR 617 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

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

----Art. 212 (3)---Supreme Court, jurisdiction of---Finding of fact---Scope---Supreme Court generally does not interfere with finding of fact recorded by Service Tribunal while exercising power under Art.212 (3) of the Constitution.

Ch. Muhammad Azim v. Chief Engineer, Irrigation and others 1991 SCMR 255 rel.

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

----Art. 212 (3)---Jurisdiction of Supreme Court under Art. 212(3) of the Constitution is always discretionary in character.

Sher Zaman Khan, Advocate Supreme Court for Appellants (in all cases).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent (in Civil Appeal No.2139 of 2004).

Arshad Ali Ch. Advocate-on-Record for Respondent (in Civil Appeal No.2140 of 2004).

Respondent in person (in Civil Appeal No.2141 of 2004).

Date of hearing: 18th March, 2010.

2010 SCMR 1507

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

SHAKEEL AHMED---Appellant

Versus

Mst. SHAHEEN KOUSAR---Respondent

Civil Appeal No. 233 of 2005, decided on 21st May, 2010.

(On appeal from the judgment dated 27-1-2005 of the Lahore High Court, Rawalpindi Bench passed in RFA No. 318 of 1993).

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

----S.22---Specific performance of agreement---Discretion of court, exercise of---Principle---Discretion under S.22 of Specific Relief Act, 1877, has been given to court to grant specific performance of contract arrived at between the parties---Such discretion must be exercised on sound judicial principles of equity, fairness and good conscious and not on erroneous assumption or presumption---Court is not bound to grant relief merely because it is lawful to do so irrespective of the conduct of contracting parties and no unfair advantage to be given to a party or to the other in the suit for specific performance---Relief can be refused though there may not be any fraud or misrepresentation on the part of plaintiff.

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

----S.22---Specific performance of agreement to sell---Refusal---Discretion of Court---Devaluation of currency---Effect---Defendant cancelled agreement to sell her house and forfeited earnest money paid to her by plaintiff---Suit was decreed in favour of plaintiff by Trial Court but High Court dismissed the suit---Validity---Supreme Court, keeping in view the principles of justice, equity, good conscious and fairness, did not find plaintiff to be entitled to discretionary relief of specific performance of agreement to sell as envisaged by S.22 of Specific Relief Act, 1877---Plaintiff was not entitled to specific enforcement of contract as a matter of right---Plaintiff had been found entitled to, since date of execution of agreement i.e., 23-8-1987 but defendant utilized the earnest money of Rs.200,000 for her benefit and converted to her own use by forfeiting the same on baseless plea till date, therefore, she was also liable, in view of devaluation of currency and constant trend of rising dearness, to make payment of Rs.20,00,000 inclusive of the earnest money to plaintiff, failing which the judgment and decree passed by Trial Court would be restored---Supreme Court modified the judgment and decree passed by High Court---Appeal was dismissed.

Seth Essabhoy v. Saboor Ahmed PLD 1973 SC 39; Alloo v. Sher Khan and others PLD 1985 SC 382; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Kanish Ram v. Om Ram Prakash Jawal and others AIR 1996 SC 2150; Mst. Amina Bibi v. Mudassar Aziz and others PLD 2003 SC 430; Syed Arif Shah v. Abdul Karim Qureshi PLD 1991 SC 905, Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Abdul Rashid v. Water and Power Development Authority (WAPDA) through Chairman and 2 others 2003 CLC 471; Anwar Ahmed v. Nafeez Bano through legal Heirs 2005 SCMR 152; State Life Insurance Corporation of Pakistan through its Chairman and another v. Director-General, Military Lands and Cantonments, Rawalpindi and 4 others 2005 SCMR 177; Abdul Hameed and others v. Muzamil Haq and other 2005 SCMR 895; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and Madan Gopal and others v. Maran Beprai and others PLD 1969 SC 617 ref.

Gul Zarin Kiayani, Advocate Supreme Court and M.S. Khattak, Advocate-on-record for Appellant.

S. Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Respondent.

Date of hearing: 28th January, 2010.

2010 S C M R 1523

[Supreme Court of Pakistan]

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

ABDUL SATTAR---Petitioner

Versus

LAND ACQUISITION COLLECTOR HIGHWAYS DEPARTMENT and others---Respondent

Civil Petition No.1230-L of 2005, decided on 22nd June, 2010.

(On appeal from the judgment dated 9-5-2005 passed by the Lahore High Court, Lahore in RFA No.933 of 2001.)

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

----S. 23---Land acquisition ---Land owner's claim for higher rate of compensation---Proof---Burden to prove such claim would lie on owner---Mere statement of owner without supportive evidence would be inconsequential.

Collector of Karachi v. M.N.E. Dinshaw PLD 1965 Kar. 557 and Water and Sanitation Authority v. Niaz Muhammad 1994 SCMR 1648 ref.

Government of India and others v. Muhammad Usman and others 1984 CLC 3406 rel.

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

----Art. 24---Person deprived of property under authority of law by adopting prescribed procedure could not complain thereagainst---Principles.

Before the state can deprive a person of his property, it has first to arm itself with a "law". Even where the law authorizes the Executive to deprive a person of his property under certain circumstances, the Executive is bound to strictly follow the procedure, which is laid down by the "law" for the taking of the property. Where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution.

Shankarlal v. Additional Deputy Commr., Nagpur AIR 1951 .Nag. 22; Amar Singh v. Custodian, E.P. AIR 1957 SC 599 and Basti Sugar Mills Ltd. v. State of U.P. AIR 1954 All. 538 rel.

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

----S. 23---Land acquisition---Higher rate of compensation claimed by owner on ground that brick-kiln was constructed over his land, thus, same was commercial---Proof---Nothing on record to show that land owned by petitioner was superior as compared to other land in vicinity--- Petitioner had failed to prove exact location between his land and that of road---Petitioner's claim was rejected in circumstances.

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

----S. 23---Civil Procedure Code (V of 1908), O. XIII, R.4---Land acquisition---Compensation, determination of---Aks Shajra Kishtwar available on record, but not exhibited in evidence---Effect---No evidentiary value could be attached to such Aks.

Syed Muhammad Kaleem Ahmed Khurshid, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-record for Petitioner.

Fauzi Zafar, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-record for Respondent.

Date of hearing: 29th March, 2010.

2010 SCMR 1530

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

JUMMA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 126 of 2009, decided on 19th November, 2009.

(On appeal from the judgment dated 2-7-2008 of the Lahore High Court at Bahawalpur passed in Criminal Appeal No. 106-J and M.R. No. 19 of 2003).

Penal Code (XLV of 1860)---

---Ss. 302(b), 324, 337-A(ii) & 337-A(i)---Qatl-e-amd, attempt to commit qatl-e-amd and causing of hurt "Shajjah "---Appraisal of evidence---Occurrence had taken place during the odd hours of the night inside the house, in which the complainant had also been injured by the accused---Complainant had no reason for false implication of accused---Ocular account of incident given by the complainant as well as his presence in the adjoining room was quite natural and in line with the prosecution story---Straightforward ocular testimony of complainant was corroborated by medical evidence and recovery of weapon of offence from the accused found to have been stained with human blood by the Serologist---Convictions and sentences of accused were upheld in circumstances and his appeal was dismissed accordingly.

Ansar Ahmed Khan Bark v. The State and another 1993 SCMR 1660 distinguished.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Shahid Mehmobd Abbasi, DPG for State.

Date of hearing: 19th November, 2009.

2010 S C M R 1537

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ghulam Rabbani, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Housing and Works, Islamabad and another---Petitioners

Versus

ABRAR AHMED and others---Respondents

Civil Petition No.1090 of 2009, decided on 3rd August, 2009.

(On appeal from the judgment, dated 13-4-2009 passed by the Islamabad High Court in Writ Petition No.1623 of 2008).

Accommodation Allocation Rules, 2002---

----Rr. 6 & 15(2)---Civil Servants Act (LXXI of 1973), S.25---Fundamental Rules, 45 & 45-A---Constitution of Pakistan (1973), Arts.4 & 185(3)---General Clauses Act (X of 1877), S.24-A---Constitutional petition---Cases of allotment of government accommodations to serving children or spouses of deceased or retired government servants---Letter dated 5-6-2008 issued by Ministry of Housing & Works directing Estate Officer to hold such cases in abeyance till further order---Validity---Authority had not given any reason for holding in abeyance R.15(2) of Accommodation Allocation Rules, 2002---Authority was bound to substantiate its direction reasonably, fairly and justly for advancement of purposes of enactment---Serving widow or children, if eligible or otherwise become eligible within a period of one year, would be entitled to allotment of same accommodation, if they were entitled for same class and, in case accommodation was of a category higher than their entitlement, they would be entitled to get allotment of first available accommodation of their class or category, but they would not be entitled to retain accommodation for More than one in any case according to proviso in R.15(2) of Accommodation Allocation Rules, 2002---In case serving spouse or children of retired servant, if eligible and otherwise become entitled for accommodation within a period of six months, could retain same accommodation and in case accommodation was higher than their entitlement, they might apply in writing for allotment in accordance with their eligibility in lieu of occupied accommodation, but would not be entitled to retain accommodation of higher category than their entitlement after six months of retirement of their predecessor---High Court rightly declared impugned order to be without lawful authority and against guarantees envisaged in Art. 4 of the Constitution and S.24-A of General Clauses Act, 1897 while directing authority to maintain general waiting list in accordance with R. 6 of Rules, 2002 and dispose of cases of petitioners in light of R. 15 thereof within specified time.

Shah Khawar, D.A.-G. for Petitioners.

Abdur Raheem Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 3rd August, 2009.

2010 S C M R 1546

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Khilji Arif Hussain, JJ

MUHAMMAD ABDUL MOIED---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Housing and Works and others---Respondents

Civil Appeal No.1854 of 2008 and Civil Petition No.719 of 2010, decided on 9th July, 2010.

(On appeal against the judgment dated 10-9-2008 passed by Federal Service Tribunal, Islamabad in Appeal No.405(R)(CS) of 2006 and against the order dated 3-3-2010 passed by Lahore High Court, Rawalpindi Bench in Civil Revision No.154-D of 2010).

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

---Ss. 3 & 5---Reinstating in service---Major penalty---Regular inquiry, dispensation of---Principle---Civil servant remained absent due to his illness and authorities without holding regular inquiry, dismissed him from service---Service Tribunal converted penalty of dismissal from service into removal from service---Validity---In view of allegations levelled against civil servant and several applications for leave on medical grounds as also medical certificates submitted by him before competent authority in department and realization of department itself that he needed to be examined by a Board regarding his health, it was imperative and in the interest of justice that a regular inquiry should have been conducted---For awarding a major penalty of dismissal from service and in case where documentary evidence was lacking, a regular inquiry was called for---Supreme Court set aside the judgment passed by Service Tribunal and reinstated the civil servant in service---Appeal was allowed.

Alamgir v. Divisional Forest Officer 1993 SCMR 603; Province of Punjab v. Muhammad Siddique Khan 2000 SCMR 1321; Zahoor Ahmed v. WAPDA 2001 SCMR 1566 and Rashid Mehmood v. Additional Inspector-General of Police 2002 SCMR 57 ref.

Appellant in person.

Abid Saqi, D.A.-G. for Respondents (in both cases).

Muhammad Ashraf, Joint Estate Officer, Estate Office, Islamabad for Respondents (in C.P. No.719 of 2010).

Date of hearing: 9th July, 2010.

2010 SCMR 1551

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Khalil-ur-Rehman Ramday, JJ

SUO MOTU CASE NO.9 OF 2010

Suo Motu Case No.9 of 2010, decided on 23rd July, 2010.

(Suo Motu Action regarding Non-Payment of Benevolent Grant to the applicant Mst. Bushra widow of Syed Yousaf Shah).

West Pakistan Railways Servants Benevolent Fund Ordinance (V of 1969)---

----S.4 (a) (1)---Federal Government Employees Benevolent Fund and Group Insurance Rules, 1972---Notification No. 16/1/2005-E-I, dated 21-7-2010---Constitution of Pakistan (1973), Art. 184 (3)---Suo motu jurisdiction of Supreme Court---Benevolent Fund---Petitioner was widow of railway employee and her grievance was that Federal Government had revised the rate of Benevolent fund but Railway had not increased the same---Validity---Ministry of Railways and its attached departments and subordinate officers had adopted the rates of disbursement of benevolent fund grants applicable in Federal Government Employees Benevolent Fund and Group Insurance Rules, 1972, with effect from 1-12-2003---Any increase in the rate of benevolent grants in future by Federal Government would also be adopted in Railway Department---In pursuance of notification No.16/1/2005-E-I, dated 21-7-2010, families of retired Railway employees for the purpose of payment of benevolent fund and group insurance had been brought at par with retrospective effect and apparently discrimination pointed out by petitioner in her suo motu case stood removed---Petitioner along with other widows would also receive benevolent fund at the same rate which was being paid to the employees of Federal Government---Suo motu petition was disposed of.

Nemo for Applicant.

Abdul Hafeez Amjad, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Sami-ul-Haq Khilji, Secretary Railways on Court's Notice.

2010 S C M R 1554

[Supreme Court of Pakistan]

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

MUHAMMAD ZAHEER KHAN---Appellant

Versus

GOVERNMENT OF PAKISAN through Secretary, Establishment and others---Respondents

Civil Appeal No.762 of 2002, decided on 9th October, 2009.

(On appeal from the judgment, dated 6-11-2000 of the Federal Service Tribunal, Islamabad passed in Appeal No.1142(R) of 1998).

Fundamental Rules---

----R. 54-A---ESTACODE, R. 6(3)---Disciplinary proceedings---Attaining the age of superannuation---Effect---Principle of audi alteram partem---Applicability---Civil servant was dismissed from service on the charge of misconduct and dismissal order was maintained by Service Tribunal---Plea raised by civil servant was that during departmental inquiry he was condemned unheard as he was not provided any opportunity to cross-examine the witnesses who appeared against him---Validity---Whether Estacode provided to an officer under inquiry any opportunity of hearing or not, was altogether immaterial because even if not provided (which it had), the principle of audi alteram partem was to be read as a part of every statute, Rule or Regulation---Pending disciplinary proceedings against civil servant abated if the latter had attained the age of superannuation---Such civil servant was entitled under Fundamental Rule, 54-A to retire with full pensionary benefits and period of suspension was bound to be treated as period spent on duty---Civil servant was condemned unheard and the order of his dismissal from service suffered from mala fides of law--Supreme Court declined to send the matter back to department for holding de novo inquiry and set aside the judgment and order passed by Service Tribunal and authorities respectively---Appeal was allowed.

Tulsi Ram Patel's case AIR 1985 SC 1416; National Bank of Pakistan v. Muhammad Iqbal 1986 SCMR 234; Rana Muhammad Sarwar v. Government of Punjab 1990 SCMR 999; Deputy Director Food v. Akhtar Ali 1997 SCMR 343; Secretary to Government of N.-W.F.P. v. Saifur Rehman 1997 SCMR 1073; Syed Sajjad Haider Kazmi's case 2007 SCMR 1643; Bilquis Nargis' case 1983 PLC (C.S.) 1141; Abdul Wali's case 2004 SCMR 678 and Muhammad Akhtar's case 2007 PLC (C.S.) 400 rel.

Abdul Rahim Bhatti, Advocate Supreme Court for Appellant.

Agha Tariq Mehmood, D.A.-G. for Respondents.

Date of hearing: 9th October, 2009.

2010 SCMR 1559

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui, JJ

OIL AND GAS DEVELOPMENT COMPANY and others---Appellants

Versus

NAZAR HUSSAIN and 2 others---Respondents

Civil Appeals Nos.1124 to 1126 of 2009, decided on 18th January, 2010.

(On appeal against the judgment, dated 10-4-2009 passed by Federal Service Tribunal, Islamabad in Appeals Nos.740, 913 and 925(R)(C.E.) of 2004).

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

----S. 5---Oil and Gas Development Corporation (Re-organization) Ordinance (XXVIII of 2001), S.5---Oil and Gas Development Corporation Service Regulations, 1994---Constitution of Pakistan (1973), Art.212---Reinstatement in service---Employees of Oil and Gas Development Corporation---Status of civil servant---Respondents were dismissed from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000 but Service Tribunal reinstated them in service---Plea raised by authorities was that assumption of jurisdiction by Service Tribunal was not tenable as the Corporation was not being governed by statutory rules---Validity---Employees of Oil and Gas Development Company continued to be governed under Service Regulations framed in the year, 1994, unless those were varied and amended or repealed as the case could be---Principal accused who allegedly transported joint pipes in question, was reinstated into service by authorities who were not able to point out pecuniary loss suffered by the company---Alleged pipes had been recovered and were restored to company---Supreme Court declined to interfere in the judgment passed by Service Tribunal as no question of law of public importance within the meaning of Art. 212 of the Constitution was raised---Authorities failed to point out any illegality to warrant interference by Supreme Court---Appeal was dismissed.

State Bank of Pakistan through Board SBP and others v. Agha Muhammad Aurangzeb Khan C.P. 318 of 2005 and C.Ps. Nos.1359 to 1361 of 2009 ref.

Ch. Naseer Ahmed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondents.

2010 SCMR 1564

[Supreme Court of Pakistan]

Present: Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

Mst. ROQIAZA AKBAR and others---Petitioners

Versus

SECRETARY, EDUCATION (S&L), N.-W.F.P. and others---Respondents

C.P.L.As. Nos.480-P to 483-P, decided on 1st April, 2009.

(On appeal from the order/judgment, dated 6-7-2007 passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeals Nos.729, 731 to 733 of 2006).

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

----S. 4---Appeal---Termination of service---Dismissal of departmental appeal for being barred by time--- Effect--- Utilization of departmental remedy was condition precedent towards maintainability of appeal before Service Tribunal---Where appeal before departmental authority was barred by time, then appeal before Tribunal would also be incompetent---Tribunal dismissed appeal as not maintainable.

Muhammad Alsam v. WAPDA and others 2007 SCMR 513; Muhammad Ramzan v. Inspector-General of Police 2007 SCMR 346; Chairman, Evacuee Trust Property Board and other v. Khawaja Shahid Nazir 2006 SCMR 1862; N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCMR 453; S.M. Afzal-­ur-Rehmat v. Federation of Pakistan and others 2005 SCMR 1322 and The Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951 rel.

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

Nemo for Respondents (in all cases).

Date of hearing: 1st April, 2009.

2010 S C M R 1567

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Ghulam Rabbani, J

Messrs HASHMI CAN COMPANY LTD.---Appellant

Versus

LIAQUAT MUHAMMAD and others---Respondents

Civil Appeals Nos.1725 to 1856, 1887 to 1943 of 2007, 35 to 40 of 2008 and Civil Petitions Nos.633-K to 640-K of 2007, decided on 18th May, 2010.

(On appeals from the judgment dated 12-9-2007 passed by the High Court of Sindh of Karachi in Labour Appeals Nos.337 to 341, 473 to 633 of 2003, 6 to 201 of 2004).

(a) Industrial Relations Ordinance (XXIII of 1969)---

---S. 25-A ---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.11-A & S.O. 12(1)(3)---Grievance petition---Termination of service of workers in pursuance of retrenchment order passed by Labour Court---Employer's plea that petitioners were entitled to one month's notice pay and not reinstatement in service---Validity--Provisions of S.O.12(1) & (3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were independent from each other---Removal from service on basis of retrenchment order would not stop petitioner from agitating their grievance against termination before Labour Court following procedure laid down under S.25-A of Industrial Relations Ordinance, 1969---Worker having attained status of a permanent workman would be free to express his grievance against illegal termination --- Petitioners were reinstated in service in circumstances.

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

---Art. 185(3)---Factual question could not be reconsidered or agitated in exercise of constitutional jurisdiction of Supreme Court.

Syed Haider Ali Pirzada, Senior Advocate Supreme Court, Ahmedullah Farooqi, Advocate-on-Record, Munawar A. Malik, Chairman, Asif A. Mufti, Director Finance for Petitioners.

Khawaja Mubashir Zubair Shaheen Qaiser for Workers.

Date of hearing: 18th May, 2010.

2010 S C M R 1573

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

Messrs BOLAN MINING ENTERPRISES---Appellant

Versus

BOARD OF TRUSTEES, EOBI and others---Respondents

Civil Appeal No.1379 of 2003, decided on 11th January, 2010.

(On appeal from the judgment, dated 20-5-2003 passed by the High Court of Sindh at Karachi in Constitutional Petition No.D203 of 2000).

(a) Employees' Old Age Benefits Act (XIV of 1976)---

---Ss. 2(bb)(c)(d) & 9---Industrial Relations Ordinance (XCI of 2002), S.2(x)(f)---Constitution of Pakistan (1973), Art.185(3)---Person employed through contractor in an establishment or industry---Denial of employer to pay contribution in terms of S.9 of Employees' Old Age Benefits Act, 1976 qua such person---Validity---Supreme Court granted leave to appeal to consider as to whether such person was covered by Employees' Old Age Benefits Act, 1976.

(b) Employees' Old Age Benefits Act (XIV of 1976)---

----Ss. 2(bb)(c)(d) & 9---Person employed through contractor---Denial of employer to pay contribution qua such person on ground that contractor by whom such person was recruited was liable to pay the same---Validity---Language employed to define "employee" in S.2(bb) of Employees' Old Age Benefits Act, 1976 was free from any ambiguity---As per exhaustive definition of "employer" given in S.2(c) of Employees' Old Age Benefits Act, 1976, question requiring consideration would be that with whom such person was performing his duties, but not that by whom he was got employed---Such person was performing duties under administrative and financial control of employer/appellant and not with contractor, who had just managed his employment with appellant---Contractor had acted just an agent or a middle man by whom services of such person were secured---Such person could not be deprived of benefits conferred under the Act, which being a beneficial legislation---Legal and mandatory obligation of employer/appellant was to contribute towards relevant funds in respect of such person---Employer/appellant had made a futile attempt to frustrate beneficial provision of law with a view to evade statutory liability by exploiting certain legal provisions of law---Appeal was dismissed in circumstances.

Sindh Employees' S.S.I. v. Consolidated Sugar Mills Ltd. 1989 SCMR 887 rel.

Muhammad Humayoon, Advocate Supreme Court for Appellant.

Nemo for Respondents Nos.1 to 3.

Date of hearing: 11th January, 2010.

2010 S C M R 1579

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui

and Mian Saqib Nisar, JJ

GHULAM RASOOL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.217 of 2009, decided on 28th May, 2010.

(On appeal from the judgment dated 9-4-2008 passed by the Lahore High Court, Lahore, in Criminal Appeal No.278-J of 2002 and Murder Reference No.411 of 2002).

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

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-amd and attempt to commit qatl-e-amd---Leave to appeal was granted by Supreme Court to accused to scrutinize the evidence in the light of the contentions that the venue of the occurrence was different from the one found during investigation, that the dead body was lying in the room while blood stained earth was taken from the courtyard; that there was a delay of 26 hours in conducting the postmortem examination of the deceased and that the F.I.R. had been registered after due deliberation and consultation to falsely implicate the accused.

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

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appraisal of evidence---F.I.R. had been registered without any delay within one and a half hours of the occurrence---Complainant and the injured eye-witness of the occurrence were the natural witnesses of the incident, who had unequivocally deposed against the accused---Blood had been collected from the courtyard and also from the room---Ocular testimony was corroborated by the Forensic Science Laboratory Report, post mortem and medical reports---Guilt of accused had been conclusively established beyond doubt---Appeal was dismissed in circumstances.

Muhammad Zaman, Advocate Supreme Court for Appellant.

Syed Ali Imran Shah, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 28th May, 2010.

2010 S C M R 1582

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

ITTEHAD CHEMICALS LIMITED---Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, KARACHI (SOUTH) and 2 others---Respondents

Civil Petition No.850-K of 2009, decided on 2nd February, 2010.

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

----Ss. 8 & 21---Constitution of Pakistan (1973), Art.185(3)---Fixation of fair rent--- Landlord sought enhancement of rent of the premises from Rs.8,178 P.M. to Rs.96,000---Rent Controller after considering the evidences, fixed the fair rent at the rate of Rs.80,000 P.M.---Appeal filed by the tenant against the judgment of Rent Controller having been dismissed by the Appellate Court, tenant had filed constitutional petition, which also having been dismissed by the High Court, tenant had filed petition for leave to appeal before the Supreme Court---Controversy before the Rent Controller was entirely of a factual nature---Evidence produced on record had pointed to the prevailing rent of the vicinity of the premises in question---Both Rent Controller and Appellate Court had fully considered evidence on record while fixing rent at Rs.80,000 P.M. which had been affirmed by the High Court---Supreme Court would not embark upon reappraisal of evidence and substitute its on findings for those of Rent Controller and Appellate Court---Counsel for the tenant had requested that the enhancement of rent should be fixed from the date of the order of the Rent Controller and not from the date of the application filed by the landlords--Supreme Court declined the request of the tenant---No justification being available for interfering in the concurrent judgments of the two courts as affirmed by the High Court, petition for leave to appeal was refused.

Zia-ul-Haq Makhdoom, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Petitioner.

Naveed-ul-Haq, Advocate Supreme Court and Izhar Alam Farooqi, Advocate-on-Record for Respondent No.3.

2010 S C M R 1584

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

FAZAL AHMED and another---Petitioners

Versus

ARIF ANWAR SAEED and another---Respondents

Criminal P.L.A. No.92-K of 2009, decided on 2nd December, 2009.

(On appeal from order of High Court of Sindh, Bench at Sukkar dated 27-7-2009 passed in Criminal Revision Application No.45 of 2009)

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 5, 7 & 8---Criminal Procedure Code (V of 1898), S.75---Constitution of Pakistan (1973), Art.185(3)---Illegal dispossession--Issuance of non-bailable warrants---Conversion of petition for leave to appeal into appeal---Counsel for the petitioners had submitted that without taking into consideration the claim of the petitioners as regarded their lawful possession over the disputed property, on the basis of Police report, non-bailable warrants of the petitioners had been issued in the case; as a result of which their liberty was at stake---Petitioner's counsel further submitted that even if a prima facie case was made out on the basis of complaint by the complainant against them, the action of issuance of non-bailable warrants, in the first instance, was extremely harsh; and it had caused serious prejudice to the interest of the petitioners, out of whom one was aged over eighty years---Counsel had added that the petitioners were ready to face proceedings before the Trial Court in connection with the complaint under Illegal Dispossession Act, 2005 filed by complainant, but they had been seriously handicaped in doing so due to the fear of their arrest as the Trial Court had issued non-bailable warrants against them---Counsel submitted that in case non-bailable warrants issued against the petitioners were converted into bailable warrants, the petitioners would be satisfied as they were willing to surrender before the Trial Court to seek further remedy according to law---Complainant, present in the court, had not disputed said facts of the case---Petition for leave to appeal was converted into criminal appeal by Supreme Court and disposed of in the terms that impugned order of the High Court was set aside and order of the Trial Court issuing non-bailable warrants was modified in the terms that non-bailable warrants issued by the Trial Court against the petitioners were converted into bailable warrants, so as to enable them to surrender themselves before the Trial Court, seek bail through proper applications and join further proceedings in the case.

M. Akram Siddiqui, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-record for Petitioners.

Zafar Ahmed Khan, Additional Prosecutor-General Sindh for Respondents.

Date of hearing: 2nd December, 2009.

2010 S C M R 1587

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

NAEEM TARIQ SANGHERA and others---Petitioners

Versus

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

Civil Petitions Nos. 2123, 2134, 2142, 2161 to 2169, 2194 to 2211, 2213 to 2216, 2219, 2221 to 2223, 2235, 2237 to 2242, 2244 to 2249 of 2009, 2 to 4 and 6 to 13 of 2010, decided on 8th January, 2010.

(Against the judgment dated 4-12-2009 passed by the Lahore High Court, Lahore in Writ Petitions Nos.9398, 1079, 1075, 1945, 2397, 3939, 3984, 9725, 9521, 9537, 1097, 1098, 1075, 9547, 9397, 9461, 9543, 9536, 1938, 3983, 1962, 9764, 9677, 9400, 9394, 9410, 1940, 10129, 9422, 9567, 1944, 3992, 9437, 9467, 1067, 9478, 9416, 1939, 9638, 9643, 9440, 9396, 9610, 9534, 9421, 4047, 9465, 9693, 9409, 3941, 9468, 9654, 9464, 3982, 9702, 9752, 9683, 9746, 9699, 1961 and 9755 of 2008).

Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S.8(4)---Constitution of Pakistan (1973), Art. 185(3)---Direct recruitment---Parties had contended that petitions for leave to appeal be disposed of in the terms that the Government of the Punjab through Prosecutor General be directed to manage examination of all the prosecutors presently functioning in the Province in terms of subsection (4) of S.8 of the Punjab Criminal Prosecution Service (Constitution, Functions and powers) Act, 2006, in two phases that there should not be any discrimination between the candidates, either belonging to the first batch or the second batch and they should be treated at par before the Punjab Public Service Commission that said arrangement had been made without prejudice to the impugned judgment which would remain intact with its full force as a result whereof the Prosecution Branch was not alleged to entrust work to the petitioners during the stipulated period---Said arrangement between the parties was accepted and petition was disposed of accordingly by the Supreme Court.

Tariq Mehmood, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.2123 and 2248 of 2009).

Sardar Abdul Raziq Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos.2134, 2194, 2196 of 2009).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 2166 to 2169 and 2142 of 2009).

Shafqat Mehmood Chohan, Advocate Supreme Court for Petitioners (in C.P. No. 2237 of 2009).

Raja Muhammad Akram, Senior Advocate Supreme Court for Petitioners (in C.P. 2221 of 2009).

Mian Subah Sadiq, Advocate Supreme Court 'for Petitioners (in C.Ps. Nos. 2222 to 2223 of 2009).

Farooq Amjad Meer, Advocate Supreme Court for Petitioners (in C.P. 2198, 2201, 2203, 2209, 2235 of 2009).

Mian Jaffer Hussain, Advocate Supreme Court (Absent) for Petitioners (in C.Ps. Nos. 2161 to 2165, 2196 to 2197, 2200, 2202, 2204, 2205 to 2208, 2211, 2214 to 2216, 2219, 2238 to 2242, 2244 to 2247 and 2249 of 2009, C.Ps. 2, 3, 4, 6 to 13 of 2010).

Amanat Ali Bukhari in person (in C.P. 2213 of 2009).

Syed Zahid Hussain Bukhari, P.G. Punjab and Ch. Khadim Hussain Qaiser, Addl. A.-G. for Respondents.

2010 SCMR 1590

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

ALEEQ SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.209 of 2009, decided on 27th May, 2010.

(On appeal from the judgment dated 1-12-2008 passed by Lahore High Court, Rawalpindi Bench in Criminal Appeal No.200-J of 2002 in Murder Reference No.268 of 2002).

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e­-amd---Leave to appeal was granted by Supreme Court to consider as to whether the old age of accused could be considered as a mitigating circumstance for the conversion of his death sentence to a lesser sentence.

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

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Accused was 59/60 years of age at the time of commission of offence---Nothing was available on record about the infirmity or serious sickness of the accused which along with his age could be taken as a mitigating circumstance so as to commute his sentence of death to a lesser punishment---Appeal was dismissed accordingly.

Muhammad Ibrahim v. The State 1974 PCr.LJ 275 and Muhammad Aslam Shah v. The State 1993 PCr.LJ 704 distinguished.

Muhammad Sher alias Malang v. The State PLD 2001 SC 90 and Amir Gul v. The State 1981 SCMR 182 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence---Mitigating circumstance---Age of accused "by itself" cannot be considered as a mitigating circumstance for reduction of his sentence.

Muhammad Sher alias Malang v. The State PLD 2001 SC 90 and Amir Gul v. The State 1981 SCMR 182 ref.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Syed Ali Imran Shah, Deputy Prosecutor-General for the State.

Sadaqat Ali Khan, Advocate Supreme Court for Complainant.

2010 SCMR 1592

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ

QURBAN HUSSAIN alias ASHIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 176 of 2008, decided on 13th May, 2010.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 15-6-2005 passed in Criminal Appeal No.440 of 2000 and M.R. No.728 of 2000).

Per Nasir-ul-Mulk, J, Jawwad S. Khawaja, J, agreeing; Rahmat Hussain Jafferi, J, contra. [Majority view].

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e­-amd---Leave to appeal was granted to accused by Supreme Court to reappraise the entire evidence.

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

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---Deceased as well as the two lady eye-witnesses had engaged in some scuffle with the accused at the time of occurrence---On account of the injuries suffered by one lady eye-witness, her having witnessed the incident could not be doubted---Other lady eye-witness although had not suffered any injury, yet being an inmate of the same house, her presence in the house at about midnight was not open to doubt---Complainant, who had died before the commencement of the trial, had also received injuries during the occurrence---Manhandling of the complainant by the accused and putting up resistance by the lady eye-witnesses and the deceased during the occurrence, had been corroborated by the injuries sustained by them---Murder, no doubt, had been committed in the street just outside the house of the deceased, but the house of the witnesses being adjacent to the house of deceased, both the eye-witnesses had statedly come out of their house into the street when deceased had tried to get hold of one of the accused and he was shot by the present accused---Finding of guilt of accused by the two courts below did not warrant any interference by Supreme Court---No mitigating circumstance was available on record for modifying the death sentence awarded to accused---Appeal was dismissed accordingly.

Per Rahmat Hussain Jafferi, J. Contra. [Minority view]

Muhammad Asghar @ Nannah and Miraj Khalid @ Khalid v. The State (Criminal Appeal No.44 of 2006); Ashiq Hussain v. State 1993 SCMR 417; Noorul Haq v. State 1992 SCMR 1451; Muhammad Fazlul Karim v. State PLD 1964 SC 792; Mardan Ali v. Gulistan and others 1980 SCMR 889; Wali Muhammad v. Nawab and others 1984 SCMR 914 and Abdul Jamil and Kazi others v. The State PLD 1958 SC 12 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Burden of proof---Principle---Onus rests upon the prosecution to prove the case beyond a reasonable doubt and it never shifts upon the accused, except in the cases falling under Art. 121 of the Qanun-e-Shahadat, 1984, and during the entire proceedings the accused is presumed to be innocent--- Both the expressions viz. "proof beyond a reasonable doubt" and "presumption of innocence" are to be read together as a unit.

Muhammad Asghar @ Nannah and Miraj Khalid @ Khalid v. The State (Criminal Appeal No.44 of 2006) ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Burden of proof---Principle---Prosecution cannot take benefit of the weaknesses of the defence, as it is duty bound to prove its case on the evidence produced before the court beyond a reasonable doubt.

Ashiq Hussain v. State 1993 SCMR 417; Noorul Haq v. State 1992 SCMR 1451; and Muhammad Fazlul Karim v. State PLD 1964 SC 792 ref.

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

----S.302(b)--- Qatl-e-amd--- Appreciation of evidence--- Two interpretations possible---Principle---When from the evidence two interpretations are possible, one favouring the prosecution and the other favouring the accused then the interpretation or theory favourable to the accused is to be accepted.

Wali Muhammad v. Nawab and others 1984 SCMR 914 and Kazi Abdul Jamil and others v. The State PLD 1958 SC 12 ref.

Malik Waheed Anjum, Advocate Supreme Court for Appellant.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for the Complainant.

S. Ali Imran, D.P.-G. for the State.

Date of hearing: 13th May, 2010.

2010 S C M R 1604

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

Mst. ASKAR JAN and others---Appellants

Versus

MUHAMMAD DAUD and others---Respondents

Criminal Appeals Nos.251 and 252 of 2005, decided on 8th July, 2010.

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

----Ss. 364 & 302(b)---Abduction for qatl-e-amd and qatl-e-amd---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to examine as to whether acquitted accused had rightly been acquitted of the charge and evidence available against him had been disbelieved for the reasons recognized under the law; that the facts and circumstances of the case and the evidence produced by the prosecution was sufficient to justify the convictions of the accused in the light of the principles laid down by Supreme Court for appreciation of evidence in criminal administration of justice; and that the amount of compensation imposed upon the convict was contrary to the settled law qua accusation against him of causing the murder of the deceased.

Wazir Muhammad v. The State 2005 SCMR 277 and Inayatullah v. State PLD 2007 SC 237 ref.

Per Anwar Zaheer Jamali, J [Minority View].

Per Rahmat Hussain Jafferi, J. Mian Shakirullah Jan, J. agreeing. [Majority View].

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

----Art. 40---How much of information received from accused may be proved---Essentials: Firstly there should be an information or statement of the accused whether it may be confession or otherwise and that too when he was in police custody and secondly on the basis of such information or statement of some fact is discovered---If there is no statement of the accused or information given to the police, which is an essential requirement of Article 40 of the Qanun-e-Shahadat, 1984, then the subsequent discovery would become inconsequential---Further, such information either oral or recorded by the police is required to be proved by the prosecution through evidence.

Bhimappa v. State of Karnataka AIR. 1993 SC 1469 ref.

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

----Art.40---Application of Art. 40, Qanun-e-Shahadat, 1984---Scope---Prosecution in order to apply Article 40 of Qanun-e-Shahadat, 1984, must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused.

Jaffer Husain y. State of Maharashtra AIR 1970 SC 1934 ref.

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

----Art. 40---Recovery---When no 'discovery'-Recovery of articles cannot be described as a discovery under Article 40 of the Qanun-e-Shahadat 1984, when the same are not recovered from any hidden place and if in the normal course of investigation the Investigation Agency is bound to see them and take into possession without the accused making any statement of pointing them out.

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

----Ss. 364 & 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Abduction for qatl-e-amd and qatl-e-amd---Appraisal of evidence---Prosecution case mainly hinged upon the testimony of the driver of the vehicle used by the accused for moving from one place to another along with the deceased---Place of incident and the place where the dead body of the deceased was buried were known to the police even before the arrest of the main accused, who had simply confirmed the said facts already disclosed by other prosecution witnesses after his arrest during his interrogation on such facts---Evidence of the prosecution witness qua the presence of accused in the police station on the specified night where he gave the required information, had been falsified by the Investigating Officer---As regards the recovery of blood-stained "Bailchas", statement of accused to the extent that "he could lead to the recovery of Bailchas", was admissible under Article 40 of the Qanun-e-Shahadat, 1984, but his subsequent statement regarding "weapon of offence" was inadmissible---Such statement was neither corroborated nor supported by Investigating Officer---It was very unsafe to rely upon such contradictory statements---However, the evidence regarding leading to the house and producing the "Bailcha" therefrom by the accused was admissible, as such place was not known to anybody except the accused---Said piece of recovery evidence by itself was not sufficient to convict the accused in the absence of any substantive piece of evidence, which could only corroborate other evidence--- Both the courts below had convicted the accused on the basis of inadmissible evidence--- Accused was acquitted in circumstances.

Wazir Muhammad v. State 2005 SCMR 277; Inayatullah v. State PLD 2007 SC 237; Bhimappa v. State of Karnataka AIR 1993 SC 1469; State of Karnataka v. David Razario AIR 2002 SC 3272; Pulukuri Kotayya v. Emperor AIR 1947 PC 67; State of Maharashtra v. Danu Gopinath Shirde and others 2000 Cri.LJ 2301; Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217; Krishna v. State (1999) 8 SCC 552; State v. M.V. Mehesh (2003) 3 SCC 353; Jaffer Husain v. State of Maharashtra AIR 1970 SC 1934 and Noor Muhammad v. State 2010 SCMR 97 ref.

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

----Ss. 364 & 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Abduction for qatl-e-amd and qatl-e-amd---Appeal against acquittal by High Court---Evidence of the driver of the vehicle with regard to witnessing the incident and his subsequent conduct was highly doubtful---Said evidence did not appeal to common sense that after having witnessed the incident said witness, driver of the vehicle, would have left his vehicle, which he was driving and was in start position, at the scene of occurrence and would have covered about 10/12 kilometers by walking to reach his house without having informed about the incident to any body---Evidence of this prosecution witness qua the time of occurrence was not supported by medical evidence---Even the presence of jungle in between the place of parking of vehicle and incident had not been supported by the site plan---Ocular account furnished by the driver of the vehicle, therefore, could not be safely relied upon and the same had been rightly discarded by High Court after having appreciated the same on the well settled principles of law---Finding of High Court in acquitting the accused was maintained in circumstances and the appeal against his acquittal was dismissed accordingly.

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

----S. 417---Appeal against acquittal---Principles---Considerations for deciding the appeal against acquittal and conviction are different---Judgment of acquittal cannot be upset if a different opinion can be formed on appreciation of evidence on record.

M. Bilal Khan, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No. 251 of 2005).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No. 252 of 2005) and for Respondent No.1 and 2 (in Criminal Appeal No. 251 of 2005).

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

Date of hearing: 25th February, 2010.

2010 S C M R 1630

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ

SULTAN MUHAMMAD and another---Appellants

Versus

MUHAMMAD QASIM and others---Respondents

Civil Appeals Nos. 1668 and 1669 of 2002, decided on 21st July, 2010.

(On appeal from judgment of Balochistan High Court, Quetta dated 17-7-1998 passed in Civil Revisions Nos.160 and 161 of 1996).

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

----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Concurrent findings of fact by courts below---Interference in such findings by revisional court under S. 115, C.P.C., or Supreme Court under Art. 185(3) of the Constitution---Scope stated.

The concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity affecting the merits of the case, are not open to question at the revisional stage, but where on record the position is contrary to it, then the revisional court in exercise of its jurisdiction under section 115, C.P.C. or Supreme Court in exercise of jurisdiction under Article 185(3) of the Constitution, are not denuded of their respective powers to interfere and upset such findings.

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

----Ss. 42 & 54---Displaced Persons (Compensation and Rehabilitation) Act (XLVII of 1958), Ss. 22, 25 & 35---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 3---Permanent Transfer Rules, 1961, Rr. 3, 5, 6 & 7---Settlement Scheme No. VII---General Clauses Act (X of 1897), S. 6---Limitation Act (IX of 1908), S.22 & Art. 14---Civil Procedure Code (V of 1908), O. VI, R. 17---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for declaration and permanent injunction---Transfer of evacuee property under Settlement Scheme No. VII---Grievance of plaintiff against cancellation of PTD in his favour and transfer of property to private defendant without notice to him---Suit against official defendants instituted on 6-2-1986 for cancellation of Transfer Order in favour of private defendant, who was impleaded in suit on 21-3-1990 by filing amended plaint in compliance of order dated 13-2-1990---Plaintiff's plea that both such orders were ab initio void, whereagainst no limitation would run---Validity---Declaratory relief sought against both such orders passed by official defendants had become time-barred in year 1973/1974 as one year period of limitation provided under Art. 14 of Limitation Act, 1908 was computable from date of action or order and not from date of knowledge---Plaintiff's plea about ignorance of both such orders was devoid of any force as he had not given relevant details thereof either in plaint or evidence, thus, failed to discharge burden to prove such plea---Period of limitation against private defendant would be computed from 13-2-1990, when he was impleaded in suit as defendant---If period of limitation for filing such suit against private defendant was to be computed from date of plaintiff's knowledge, then too suit filed after more than four years was hopelessly time-barred---Plaintiff had claimed whole relief against private defendant, who was earlier not party to suit, thus, no relief against him could be granted in his absence---Proper remedy to challenge such orders under Ss. 19 to 21 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not availed by plaintiff enabling such orders to attain finality---Official respondents had exclusive jurisdiction to cancel PTD in favour of plaintiff procured by him through fraud and misrepresentation, thus, such order was not ab initio void so as to overcome question of limitation or invoke jurisdiction of civil court by ignoring barring provisions of Ss. 22 & 25 of Act, 1958---Plaintiff in suit had not sought relief as regards restoration of his own PT13, thus, his suit was not maintainable under S. 42 of Specific Relief Act, 1877---Defendant's father was recorded tenant of Custodian Department in respect of suit property being in its possession since pre partition days through its evacuee owner and had paid rent to Custodian Department till his death in year 1955---Defendant had produced several rent receipts, whereas plaintiff solely relied on a photo copy of receipt dated 23-9-1957 lacking several material particulars---Such doubtful receipt produced by plaintiff was not legal proof of fact that he was in possession of suit property before target date i.e. 1-1-1961---Plaintiff had neither proved to be in possession of original PTD nor produced same in evidence except photocopy thereof nor did summon original record thereof and original payment receipts from Settlement Department---Plaintiff had failed to prove that he had any lawful claim under Settlement Scheme No. VII for transfer of suit property to him---Presumption of correction was attached to all functions performed by Government functionaries having jurisdiction in a matter, thus, mere bald statement or "ipse dixit" of plaintiff about his lack of knowledge would be of no consequence--- Suit was dismissed in circumstances.

Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698; Anwar Hussain v. Sarfraz Ahmad PLD 1971 SC 669; Zafarul Hassan v. Muhammad Kalim 1993 SCMR 2028; Muhammad Ramzan v. Bashir Ahmad PLD 1981 SC 340; Sher Afzal Khan v. Razi Abdullah 1984 SCMR 228; Ghulam Rasul v. Jannat Bibi 1990 SCMR 744; Settlement and Rehabilitation Commissioner, Hyderabad v. Mannu Khan 1973 SCMR 62; Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali 1914 SCMR 8; Sh. Fazal Karim v. Settlement and Rehabilitation Commissioner and 3 others 1981 SCMR 628 and Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063 ref.

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

----S. 9---Jurisdiction of Civil Court---Scope---Distinction is to be drawn between an order passed by a Tribunal having jurisdiction in the matter, though it may be, for other reasons, erroneous or illegal, and an order without jurisdiction---Only in the latter case the jurisdiction of the Civil Court can be invoked on the ground of lack of jurisdiction of the Tribunal in passing such order, but not in the former case.

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

----Art. 117---Burden of proof, failure to discharge---Effect---Party approaching court for grant of relief would have to discharge his own burden and stand on his own legs to succeed and could not avail benefit of any weakness in case of opposite party.

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

----Ss. 42, 8 & 54 --- West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13---Suit for declaration, possession and permanent injunction-.-Denial of relationship of landlord and tenant by defendant in ejectment petition filed by plaintiff---Dismissal of ejectment petition by Rent Controller and withdrawal of appeal by plaintiff and subsequent filing of such suit on basis of title---Maintainability---Rent Controller had decided in favour of defendant only issue of non-existence of relationship of landlord and tenant between parties, but not title of suit property for lacking jurisdiction---Withdrawal of rent appeal by plaintiff against such order of Rent Controller would have no adverse effect on maintainability of his such suit.

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

----S. 8---Limitation Act (IX of 1908), Art. 120---Suit for recovery of possession of property---Limitation---Such suit would be governed by Art. 120 of Limitation Act, 1908 prescribing six years period computable from date of accrual of right to sue to owner of property.

Basharatullah, Senior Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Appellants.

S.A.M. Quadri, Advocate Supreme Court/Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos.2 and 4 (in C.A. No. 1668 of 2002).

Nemo for Respondent No. 2 (in C.A. No. 1669 of 2002).

Date of hearing: 17th March, 2010.

2010 S C M R 1659

[Supreme Court of Pakistan]

Present; Anwar Zahir Jamali, Khilji Arif Hussain and Rahmat Hussain Jaffri, JJ

The CITIZENS FOUNDATION and another----Appellants

Versus

DIRECTOR, SESSI and others----Respondents

Civil Appeals Nos.1313 and 1314 of 2008, decided on 16th June, 2010.

(On appeal from judgment dated, 25-4-2008 of High Court of Sindh, Karachi passed in Constitutional Petitions Nos.D-165 of 2006, D-1478 of 2003 and D-2108 of 1996).

(a) Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss. 1(3) & 2(11)---Educational institution---Issuance of notification by Provincial Government including such institution in list of Establishments liable to pay social security contribution---Plea that such institution functioning on charitable basis and rendering great service to nation to educate poor people would not fall within ambit of word "establishment" defined in S.2(11) of Provincial Employees Social Security Ordinance, 1965---Validity---Use of words "or otherwise" in S. 2(11) of the Ordinance after words "industrial ", "commercial" and "agricultural" made same an open ended definition to cover so many fields not being industrial, commercial or agricultural in nature, but otherwise falling within ambit of the Ordinance---Charitable nature of an educational institution had nothing to do with additional benefits offered/extended to their employees under the Ordinance--- Proverb "charity begins at home" would squarely apply to such institution, for which not proper to resist to contribute under the Ordinance to extend their quality of charity and benevolence in favour of their own employees---Educational institution either being run on commercial or charitable basis could be subjected to regime of the Ordinance in view of definition of word "establishment" under S. 2(11) thereof---Principles.

Don Basco High School Empress Road Lahore v. Director Social Security 2005 PLC 110; K.G. Old v. Presiding Officer, Punjab Labour Court 1976 PLC 675; Employees Union v. Registrar of Trade Unions 1981 PLC 403; Board of Governors Aitchison College v. Punjab Labour Appellate Tribunal 2001 SCMR 1928 and University of Delhi and others v. Ram Nath and others AIR 1963 SC 1873 ref.

Sakina Bibi v. Crescent Textile Mills Ltd. PLD 1984 SC 241; Shaheen Airport Services v. Sindh Employees Social Security Institution 1994 SCMR 881; Holy Family Hospital v. Government of Sindh 1985 SCMR 593; MacDonald Layton Constain Ltd. V. Punjab Employees S.S.I. PLD 1991 SC 1055; Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738; Don Basco High School v. Assistant Director EOBI PLD 1989 SC 128; Lila Vati Bai v. Bombay State AIR 1957 SC 521; National Association of Local Government Officers v. Bolton Corporation (1942) 2 All England Reporter 425 (HL); Adamjee Foundation v. First Sind Labour Court PLD 1979 Kar. 510; St. Bonaventure's Boys High Schools v. Province of Sindh 2004 PLC 381; Liaquat National Hospital Association v. Government of Sindh 2006 PLC 364; Muslim Educational Society v. Government of Sindh 2006 PLD 263; Sacred Heart High School v. Director, Social Security, 1997 PLC 729; Al-Baqai Foundation v. Province of Sindh (Constitutional Petition No.D-758 of 2006); Kohinoor Chemical Co. Ltd. v. Sindh Employees' Social Security PLD 1977 SC 197 and Standard Printing Press v. Sindh Employees' Social Security Institute 1988 SCMR 91 rel.

(b) Discretion---

----Authority having discretion in a matter must exercise the same in a judicious, transparent, impartial and non-discriminatory manner---Principles.

When an authority is conferred with the power of exercise of discretion in any matter, such power is to be exercised in a judicious, transparent and impartial manner, keeping in view the fundamental principle of non-discrimination qua reasonable classification, and not in an arbitrary or capricious manner and without any sound criteria for doing so.

(c) Provincial Employees Social Security Ordinance (X of 1965)---

----Ss. 1(3) & 2(11)---Issuance of notifications by Government in terms of S. 1(3) of Provincial Employees Social Security Ordinance, 1965 on the basis of pick and choose policy---Validity---Supreme Court directed concerned officials and Government to abandon forthwith such policy, rather draw a scheme based on sound and un-discriminatory criteria either on territorial basis or nature of establishments---Guidelines stated.

Arshad Tayabaly, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Appellants (in Civil Appeal No. 1313 of 2008).

Khalid Javed, Advocate Supreme Court and Mrs. Shiraz Iqbal, Advocate-on-Record for Appellant (in Civil Appeal No.1314 of 2008).

S.A. Sarwana Advocate Supreme Court and K.A. Wahab Advocate-on-Record for Respondent No.3 (in Civil Appeal No. 1313 of 2008) and for Respondent No.1 (in Civil appeal No. 1314 of 2008).

Respondents Nos. 1, 2, and 4 in Civil Appeal No.1313 of 2008 and Respondents Nos. 2 and 3 in Civil Appeal No.1314 of 2008: Ex parte.

Dates of hearing: 15th and 16th June, 2010.

2010 SCMR 1680

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Raja Fayyaz Ahmad and Tariq Parvez Khan, JJ

MUSHTAQ AHMAD KHOKHAR

Versus

PAKISTAN POST OFFICE through Director-General, Islamabad and another

Civil Petition No.818 of 2010, decided on 23rd July, 2010.

(On appeal from the judgment dated 8-3-2010 passed by the Federal Service Tribunal, Islamabad in Appeal No.1065(R)(C.S.) of 2006).

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

----S. 10 & proviso---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Appeal---Limitation---Reminders to department---Representation to departmental authority submitted by civil servant on 16-9-2001, remained not responded by department within 60 days from the submission of representation--- Civil servant was to prefer appeal to Service Tribunal within next 30 days of the expiry of the period of 60 days, which he did not avail, therefore, his appeal was dismissed by Service Tribunal being barred by limitation---Validity---Appeal preferred before Service Tribunal was barred by time and civil servant did not submit even application seeking for condonation of delay---After submission of departmental representation, followed by reminders dated, 30-9-2001, 3-7-2006 and 6-7-2006, made by civil servant, authorities vide letter dated 29-11-2006, addressed to civil servant, informed that his representation dated 16-9-2001, earlier submitted by him, was rejected by competent authority as barred by limitation, would not per se enlarge limitation period for filing appeal before Service Tribunal---In view of period of limitation for filing of appeal as envisaged by proviso to S.10 of Removal From Service (Special Powers) Ordinance, 2000, civil servant failed to raise any question of law of public importance--Supreme Court declined to interfere in judgment passed by Service Tribunal---Leave to appeal was refused.

Central Board of Revenue v. Chairman/Secretary, Revenue Division, Islamabad v. Shafiq Muhammad and another 2008 SCMR 1666 distinguished.

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioner.

Mazhar Ali Ch. D.A.-G. for Respondents.

Muhammad Shakoor, Assistant Post Master-General, Rawalpindi Circle, Hameed Ullah, Assistant Superintendent Court Circle Office, Rawalpindi (on Court's Notice).

Date of hearing: 23rd July, 2010.

2010 S C M R 1688

[Supreme Court of Pakistan]

Present; Javed Iqbal and Asif Saeed Khan Khosa, JJ

ABDUL MAJEED----Petitioner

Versus

PROVINCIAL POLICE OFFICER and 2 others----Respondents

Civil Petition No.180-Q of 2009, decided on 11th May, 2010.

(On Appeal from the judgment, dated 30-10-2009 passed by the Balochistan Service Tribunal, Quetta in Service Appeal No.28 of 2009).

Police Rules, 1934---

----R. 9.7(2)---Baluchistan Civil Servants Rules, 1979, R.12-A---Constitution of Pakistan (1973), Art. 212(3)---Date of birth, alteration in---Age relaxation given by Chief Minister to civil servant after 35 years of his joining service---Dismissal of civil servant's appeal by Service Tribunal---Validity---Alteration . in date of birth could be sought within two years of service---Civil servant could not furnish any explanation regarding his silence for such long period---Chief Minister had not exercised his discretion in accordance with law and settled norms of .justice---Supreme Court dismissed petition for leave to appeal in circumstances.

Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Nisar Ahmad Khawaja V. Muhammad Usman Muhammad Khan Wasan 1980 SCMR 722; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; Director Food v. Rashid Ahmad 1990 SCMR 1446; Province of Punjab v. Rao Abdul Jalil Khan 1989 SCMR 330; Abdul Razaq v. Province of Punjab 1980 SCMR 876; Muhammad Yaquh Sheikh, District Engineer, District Council, Toba Tek Sing v. Government of Punjab through Secretary Local Government and Rural Development Department, Lahore and others 1987 SCMR 1354 and Director Food, Punjab, Lahore v. Muhammad Yasin Bhatti 1988 SCMR 496 ref.

M.W.N. Kohli, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date, of hearing 11th May, 2010.

2010 S C M R 1691

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

CHIEF LAND COMMISSIONER and others---Appellants

Versus

Sardar NABIL WALI and others---Respondents

Civil Appeals Nos.1461 to 1465 of 2005, decided on 8th June, 2010.

(On appeal from the judgment dated 21-7-2005 passed by Lahore High Court, Lahore in Writ Petitions Nos.772,1139 of 1998 and Writ Petition No.9231 of 2002).

Land Reforms Act (II of 1977)---

----Ss. 7 & 24---Land Reforms Rules, 1977, Rr. 12 & 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of Land through oral gift by declarant to his son---Earlier order of Deputy Land Commissioner dated 18-1-1982 declaring such gift to be valid---Subsequent review of such earlier order and resumption of land by Deputy Land Commissioner vide order dated 25-6-1989 on directive of Land Commissioner---Validity---Cumulative effect of S. 24 of Land Reforms Act, 1977 and Rr. 12 and 13 of Land Reforms Rules, 1977 would be that Land Commission could review its decided case, if directed by Federal Government, or correct an arithmetical or clerical mistake or accidental slip or omission apparent on face of record of its own order---Impugned order resuming land was in contrast to what Deputy Land Commissioner had decided earlier declaring gift valid---Land Commissioner in exercise of powers under R.13(3) of Land Reforms Rules, 1977 could not accord permission to Deputy Land Commissioner to review his order---Impugned order was set aside in circumstances.

Qazilbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 ref.

Mudassar Khalid Abbasi, Assistant Advocate-General, Punjab for Appellants (in Civil Appeal No.1461 of 2005).

Gul Zarin Kiani, Senior Advocate Supreme Court for Respondents Nos. 1 to 7 (in Civil Appeal No.1461 of 2005).

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Respondents Nos. 8 to 9 (in Civil Appeal No.1461 of 2005).

Noor Muhammad Chandio, Advocate Supreme Court for Legal Heirs of Respondent No. 10 (in Civil Appeal No.1461 of 2005).

Muddasar Khalid Abbasi, Assistant Advocate-General, Punjab for Appellants (in Civil Appeal No.1462 of 2005).

Nemo for Respondents Nos. 1 and 2 (in Civil Appeal No.1462 of 2005).

Gul Zarin Kiani, Senior Advocate Supreme Court for Respondents Nos.3 to 10 (in Civil Appeal No.1462 of 2005).

Mirza Naseer Ahmed, Advocate Supreme Court for Appellants (in Civil Appeal No.1463 of 2005).

Muddasar Khalid Abbasi, Assistant Advocate-General, Punjab for Respondents Nos. l to 5 (in Civil Appeal No.1463 of 2005).

Nemo for Respondents Nos.6 and 7 (in Civil Appeal No.1463 of 2005).

Gul Zarin Kiani, Senior Advocate Supreme Court for Respondents Nos.8 to 16 (in Civil Appeal No.1463 of 2005).

Mirza Naseer Ahmed, Advocate Supreme Court for Appellants (in Civil Appeal No.1464 of 2005).

Muddasar Khalid Abbasi, Assistant Advocate-General, Punjab for Respondents Nos.1 to 3 (in Civil Appeal No.1464 of 2005).

Nemo for Respondents Nos.4 and 5 (in Civil Appeal No.1464 of 2005).

Gul Zarin Kiani, Senior Advocate Supreme Court for Respondents Nos.6 to 12 (in Civil Appeal No.1464 of 2005).

Mirza Naseer Ahmed, Advocate Supreme Court for Appellants (in Civil Appeal No.1465 of 2005).

Muddasar Khalid Abbasi, Assistant Advocate-General, Punjab for Respondents Nos. 1 to 3 (in Civil Appeal No.1465 of 2005).

Gul Zarin Kiani, Senior Advocate Supreme Court for Respondents Nos.4 to 10 (in Civil Appeal No.1465 of 2005).

Nemo for Respondents Nos.11 and 12 (in Civil Appeal No.1465 of 2005).

Date of hearing: 8th June, 2010.

2010 S CM R 1697

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

MUHAMMAD HASHIM BABAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.216-L of 2005, decided on 30th April, 2010.

(Against the judgment dated 3-2-2005 passed by the Lahore High Court, Lahore, in Criminal Appeal No.1629 of 2000).

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(v)---Assets beyond known sources of income---Proof---Necessary ingredients---In order- to prove the case, it was the duty and obligation of prosecution to prove ingredients of the offence, which were that it must establish that accused was holder of a public office; nature and extent of pecuniary resources of property which were found in his possession; that it must be proved as to what were his known sources of income; and that prosecution must prove, quite objectively, that such resources or property found in possession of accused were disproportionate to his known sources of income---If such ingredients were proved then the offence as defined under S.9 (a)(v) of National Accountability Ordinance, 1999, was complete, unless accused was able to account for such resources or property.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v) & 14(c)---Assets beyond known sources of income---Presumption---Mere possession of any pecuniary resources of property is by itself not an offence but failure to satisfactorily account for such possession of pecuniary resources or property makes the possession objectionable and constitutes offence but if accused cannot explain, presumption under S. 14(c) of National Accountability Ordinance, 1999 that accused is guilty of corruption and corrupt practice is required to be drawn.

Biswa Bhushan Naik v. State (AIR 1954 SC 350) rel.

(c) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v) & 14---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Assets beyond known sources of income---Onus to prove---Principle of shifting of onus--,Applicability---Initial burden of proof is on prosecution to establish possession of properties by accused disproportionate to his known sources of income to prove charge of corruption and corrupt practices under National Accountability Ordinance, 1999---Once such burden is satisfactorily discharged, onus is shifted to accused to prove the contrary and give satisfactory account of holding properties---In case of failure of accused, court may raise presumption of guilt.

(d) National Accountability Ordinance (XVIII of 1999)---

----S. 9 (a) (v)---Constitution of Pakistan (1973), Art. 185(3)---Re­appraisal of evidence---Assets beyond known sources of income---Concurrent findings of fact by the courts below---Accused was holder of public office who was convicted and sentenced for holding assets beyond known sources of his income---Validity---Factual controversy was concluded by concurrent findings of two courts below and the same could not be reopened before Supreme Court---Supreme Court declined to lay its hand in case of concurrent findings based on proper appraisal of evidence unless serious question of law had arisen or the findings were found improper, perverse or untenable in law---High Court while following principles laid down by Supreme Court had drawn the conclusion that accused was holding assets amounting to Rs. 14 lac disproportionate to his known sources of income and was guilty of offence when he was charged---Scope of petition under Art. 185(3) of the Constitution was confined to the extent of substantial question of law and no such question of law had been raised to maintain the petition---Supreme Court declined to interfere in the conviction and sentence awarded to accused by the courts below---Leave to appeal was refused.

Mubashar Hassan v. Federation of Pakistan PLD 2010 SC 1 ref.

Hamid Khan, Senior Advocate Supreme Court for Petitioner.

Dr. Asghar Rana, Additional Prosecutor-General, NAB.

Date of hearing: 15th April, 2010.

2010 S C M R 1706

[Supreme Court of Pakistan]

Present: Nasir-ul-Malik, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ

MUHAMMAD ASGHAR alias NANNAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.44 of 2006, decided on 11th May, 2010.

(Against judgment dated 5-6-2002 of Lahore High Court, Lahore, passed in Criminal Appeal No.1892, Criminal Appeal No. 35-J of 2002 and Murder Reference No.57-T of 2001).

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

----Ss. 302(b)/34---Qanun-e-Shahadat (10 of 1984), Art. 22---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to reappraise and re-examine the contentions that names of accused were not mentioned in F.I.R. and they were already in custody in other cases but they were not put to identification test though all witnesses were police officials and that both the courts below did not give any cogent reasons about such lacuna.

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

----Arts. 121 & 122---Criminal trial---Proof beyond a reasonable doubt---Presumption of innocence---Onus to prove---Onus rests on prosecution to prove guilt of accused beyond a reasonable doubt throughout the trial and it never shifts to accused except in cases falling under Art. 121 of Qanun-e-Shahadat, 1984, but it is inextricably linked to presumption of innocence of accused---Presumption of innocence 'remains throughout the case until such time, the prosecution on the evidence satisfies the Court/Judge beyond a reasonable doubt that the accused is guilty---Two concepts i.e., "proof beyond reasonable doubt" and "presumption of innocence" are so closely linked together that the same must be presented as a unit---Presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is silver and these two threads are forever interwined in the fabric of criminal justice---As such the expression "proof beyond reasonable doubt" is of fundamental importance to criminal justice system; it is one of the principles, which seeks to ensure that no innocent person is convicted---There cannot be a fair trial, which is the goal of criminal justice, if Judges have not clearly understood the basic and fundamentally important concept of standard of proof that prosecution must meet in order to obtain a conviction.

R. v. Lifchus, [1997] 3 S.C.R. 320 rel.

(c) Words and phrases---

----Reasonable doubt---Connotation---Meaning of reasonable doubt can be arrived at by emphasizing the word `reasonable', as the same is not a surmise, a guess or mere conjecture; it is not a doubt raised by anyone simply for the sake of raising a doubt, it is such a doubt as in serious affairs that concern anyone and that such a doubt would cause reasonable men and women to hesitate to act in matters of importance, it is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by the decision---Reasonable doubt is real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence, it is the doubt that is honestly entertained and is reasonable in the light of evidence after a fair comparison and careful examination of entire evidence.

State v. Griffin, 253 Conn. 195, 206 (2000); State v. Morant, 242 Conn. 666, 688 (1997); State v. Velasco, 253 Conn. 210, 249 (2000); State v. Torres, 82 Conn. App. 823, 836-37 (2004); R. v. Girard (1996), 109 C.C.C. (3d)545 and R.v. Bergeron (1996), 109 C.C.C. (3d) 571 (Que. C.A.) at page 576 rel.

(d) Criminal trial---

----Burden of proof---Scope---When liberty of subject is at stake, it is of fundamental importance that court fully understands nature of burden of proof that the law requires to apply.

(1996), 107 C.C.C. (3d) 226 at pages 234 & 235 rel.

(e) Criminal trial---

----Moral certainty---Scope---Proof beyond reasonable doubt cannot be described as proof to a moral certainty'---Moral certainty' cannot be equated by jurors with evidentiary certainty'---If standard of proof is equivalent tomoral certainty' without more, the jurors may think that he is entitled to convict if he feels `certain' even though the State has failed to prove its case beyond reasonable doubt.

Victor v. Nebraska, 127 L Ed 2d 583 (1994 and Boucher v. The Queen, [1995] S.C.R. 16 rel.

(f) Criminal trial---

----Reasonable doubt, proof beyond---Scope---Such proof should be based on reasons and common sense, which must be logically based upon the evidence or lack of evidence---Proof beyond reasonable doubt cannot be based on sympathy or prejudice or be imaginary or frivolous---Prosecution is not required to prove its case to an absolute certainty since such an unrealistically high standard can seldom be achieved---Proof beyond reasonable doubt does not mean proof beyond all doubts---Law does not require absolute certainty on the path of court before it returns a verdict of guilty---Law requires that after hearing all evidence, if there is something in evidence or lack of evidence that leaves in the minds of Judges, as reasonable men, a reasonable doubt as to the guilt of accused, then accused must be given the benefit of that doubt and acquitted, even if the court/Judge believes that the accused is probably guilty or likely to be guilty, that is not sufficient---Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.

State v. Ryerson, 201 Conn. 333, 342 (1986); State v. Hires, 243 Conn 796, 820 (1998) and State v. Denson, 67 Conn. App 803, 802-22 (2002) rel.

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

----Ss.302(b)/34---Qanun-e-Shahadat (10 of 1984), Art. 22---Re­appraisal of evidence---Benefit of doubt---Identification of accused in court---Ocular and medical account---Tattooing marks on wounds---Conviction and sentence of death awarded to accused persons by Trial Court was maintained by High Court---Validity---Accused were not known to prosecution witness therefore, in such circumstances identification of accused was essential but no such identification test was held---Identification of accused in Court only through such witness carried no weight---Firing was made from a distance but medical officer found tattooing marks on the injuries, out of them three were entry wounds and three were exit wounds---All the three entry wounds were found to be with tattooing marks, therefore, such marks could occur when firearm shot was fired from a close range of less than 3 feet---Ocular testimony was not supported or corroborated by medical evidence, which also created a reasonable doubt in prosecution evidence---Ocular evidence was insufficient to convict the accused persons---Investigation was not conducted honestly, false improvements had been made in order to involve the accused and with particular object the evidence was manipulated so as to strengthen the prosecution case---Supreme Court being not convinced with evidence of recovery of weapons from the possession of accused, prosecution's case was doubtful and had not been proved beyond reasonable doubt---Accused were entitled to the benefit of doubt, which was given to them and conviction and sentence awarded to accused was set aside---Appeal was allowed.

Muhammad Rafique v. State 2010 SCMR 385; Khalid Javed v. State 2003 SCMR 1419; Falak Sher v. State 1995 SCMR 1350; R. v. Bergeron (1996), 109 C.C.C. (3d) 571 (Que. C.A.) at page 576; Shadeo Gosain.v. Emperor 46 Cr.LJ 1945; Asghar Ali v. The State 1992 SCMR 2088; Tayyab v. The State 1995 SCMR 412 and Modi's Medical Jurisprudence rel.

M. Zaman Bhatti, Advocate Supreme Court for Appellants.

Syed Ali Imran, Deputy Prosecutor-General for the State.

Date of hearing: 11th May, 2010.

2010 S C M R 1720

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez, JJ

KHADIM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.87 of 2006, decided on 14th April, 2010.

(On appeal from the judgment dated 30-7-2003 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No.136 of 1999 and Murder Reference No.259 of 1999).

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-­amd---Leave to appeal was granted to accused by Supreme Court to consider the quantum of sentence only for safe administration of criminal justice.

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

----S. 302(b)---Qatl-e-amd---Appraisal of evidence---No previous enmity existed between the parties---Accused had admitted the occurrence by taking the plea that on seeing has wife being dragged with her torn clothes, he lost self-control and to save the life of his wife he had acted in his self-defence and committed the crime---Accused had set up the said plea at the tail end of the trial, but had not substantiated the same either by producing his wife in evidence to support him or even by availing the legal opportunity to appear as his own witness under S.340(2), Cr.P.C.---Prosecution evidence had gone unchallenged---Accused had acted in a brutal manner, who had fired two shots at the deceased and did not stop and continued firing injuring three prosecution witnesses---Accused had come to the spot duly armed with predetermination for committing the offence of qatl-e­-amd---No mitigating circumstance was available in favour of accused for reducing his sentence of death---Appeal was dismissed accordingly.

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

---S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.121---Qatl-e-amd---Burden of proof on accused that his case fell within exception of Art.121, Qanun-e-Shahadat, 1984---Accused is under the statutory obligation to prove the special defence plea taken by him by some cogent, reasonable and prima facie acceptable evidence.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

M. Siddique Khan' Baloch, Deputy Prosecutor-General for the State.

Afshan Ghazaffar, Advocate Supreme Court for the Complainant.

Date of hearing.: 14th April, 2010.

2010 S C M R 1725

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain, Rehmat Hussain Jafferi and Ghulam Rabbani, JJ

Mian PEER MUHAMMAD---Appellant

Versus

HAMEER SAFFAR and others---Respondents

Civil Appeal No.143-K of 2009, decided on 31st March, 2010.

(On appeal from the order dated 3-4-2009 passed by High Court of Sindh Hyderabad Circuit, in Civil Petition No.D-415 of 2006).

Forest Act (XVI of 1927)---

----S. 5(32)---Sindh Agro Forestry Lease Policy, 2004, paragraphs 8(5) & 10---Lease rights---Auction, assailing of-Vested right---Deposit of lease money---Effect---Respondents assailed fresh auction for lease of land in question on the ground that in earlier auction they were the highest bidders and had deposited lease money for one year---Validity---No concluded contract could be construed in favour of respondents by deposit of lease money for one year---Such deposit of money not create any vested right in respondents, to be heard before ordering re-auction of disputed land as there was no approval of their bids and no agreement of lease as per paragraph 10 of Sindh Agro Forestry Lease Policy, 2004, was executed in their favour---Appellant came out to be a successful bidder; his bid was approved by competent authority; a lease dead creating rights inter se was executed in his favour; he being Mohegedar undeniably was entitled to be preferred for grant of lease as per paragraph 8(5) of Sindh Agro Forestry Lease Policy, 2004; lease was granted to appellant at the rate higher to that on which it was earlier auctioned in favour of respondents and period of lease which commenced from Kharif 2006-2007, ending Rabi 2010-2011, was enjoyed by appellant with only small portion thereof then remaining---Supreme Court set aside the judgment passed by Division Bench of High Court---Appeal was allowed.

2009 SCMR 1055 distinguished.

Muhammad Sadiq Leghari, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Appellant.

Syed Shahenshah Hussain, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record for Respondents Nos.1 and 2.

Abdul Fateh Malik, Additional Advocate-General Sindh for Respondent No.5.

Respondents Nos. 3, 4 and 6: Ex parte.

Date of hearing: 31st March, 2010.

2010 S C M R 1729

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

MUHAMMAD NADEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 454 of 2007, decided on 6th May, 2010.

(On appeal against the order dated 16-1-2007 passed by Lahore High Court, Lahore in Criminal Appeal No. 362 of 2002 and Murder Reference No. 181 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appraisal of evidence--Sentence, reduction in---Mitigating circumstance---Credibility of ocular account furnished by two natural witnesses living in the house of occurrence and a neighbour living in the adjacent house, was unexceptionable being' consistent on all material particulars and unshaky---Recovery of blood-stained clothes and weapon of offence had rightly been believed by the two courts below---Conviction of accused, thus required no interference---Admittedly accused had married daughter of the deceased against the wishes of her parents and the deceased was preventing the wife of accused to join him---Infatuation of accused for his wife was so intense that he used to write letters to her in his own blood---Accused was not only in a state of emotional dejection, but he was also living a lonely life without his wife taking care of the house-hold affairs and was being deprived of the emotional satisfaction of her companionship---Such features were sufficient to make out a case for mitigation in favour of accused---Death sentence of accused was converted into imprisonment for life in circumstances.

Muhammad Iqbal v. The State PLD 2Q01 SC 222 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, Deputy Prosecutor-General for the State.

2010 S C M R 1733

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

PERVAIZ AHMED alias PEEJA---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 81 of 2009, decided 10th November, 2009.

(On appeal against the judgment dated 25-11-2008 passed by Lahore High Court, Lahore, in Criminal Appeal No. 2085 of 2002 and Murder Reference No. 888 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-­amd---Case was of triple murder---Accused had been given effective role of firing at the three deceased---Ocular version had furnished sufficient evidence to bring home guilt to the accused---Complainant party had no blood feud enmity to provide a ground for creating a doubt in the statements of eye-witnesses or for false implication of accused---Accused had the motive to commit the crime---Concurrent finding of the two courts below did not warrant any interference by Supreme Court---Leave to appeal was refused to accused in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

M. Siddique Khan Baloch, Deputy Prosecutor-General for the State.

Date of hearing: 10th November, 2009.

2010 S C M R 1735

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Nasir-ul-Mulk and Tariq Parvez, JJ

ASIF AYUB---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 246 of 2010, decided on 2nd July, 2010.

(On appeal from the judgment dated 13-5-2010 passed by the Lahore High Court, Rawalpindi Bench in Criminal Miscellaneous No.658-B of 2010).

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

----S. 497---Penal Code (XLV of 1860), Ss. 420/467/468/471/409/109---Prevention of Corruption Act (II of 1947), S. 5---Constitution of Pakistan (1973), Art. 185(3)---Cheating, forgery, forgery for cheating, using as genuine a forged document, criminal breach of trust, abetment and criminal misconduct---Bail, refusal of---Co-accused, Doctor after leaving his contractual job with the Hospital had no right to receive any emolument from the Hospital, but accused, Assistant Accounts Officer of the Hospital, prima facie, after preparing the pay slip made payment to the co-accused, knowing well that he was no more performing his duties in the Hospital---Said fact was mentioned in the F.I.R., which was based on inquiry report---Co-accused (doctor), after. having refunded the amount had been released on bail---Case of accused being distinguishable on facts, principle of consistency did not apply and the same could not be pressed in his case---Superior courts under S. 497 read with S. 498, Cr.P.C. had right to form independent opinion in respect of involvement of an accused, notwithstanding the fact that one of the co-accused had been released on bail---Action of accused in preparing a document i.e., pay-slip on the basis of which salary was drawn by co-accused, prima facie, seemed to be more serious than an action of a person who had received the money--Contention that involvement of accused in regularization of three allegedly unqualified persons was not sustainable, as he being an Assistant Accounts Officer had no authority to do so, though plausible, could not be considered at bail stage, as the same required appreciation of facts in depth---Court at bail stage had to look into the material available on record to prima facie determine the involvement of accused in the commission of the offence or otherwise---Bail was declined to accused in circumstances.

Jehanzeb alias Bhobi v. State 2002 SCMR 1380; Syed Maqbool Muhammad v. State 2005 SCMR 635 and Syed Lakhat-e-Hasnain v. State 2010 SCMR 855 ref.

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

---Ss. 497/498---Bail---Principle of consistency---Superior courts under S. 497 read with S. 498, Cr.P.C. have right to form independent opinion in respect of involvement of an accused, notwithstanding the fact that one of the co-accused has been released on bail---Provision relating to the grant of bail on the principle of consistency does not apply stricto senso when accused are more than one.

Jehanzeb alias Bhobi v. State 2002 SCMR 1380 ref.

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

---Ss. 497 & 498---Bail---Assessment of evidence---Principle---Tentative assessment of the facts and circumstances has to be undertaken for the purpose of disposal of the bail application, but the same are not to be appreciated in depth at that stage.

Syed Maqbool Muhammad v. State 2005 SCMR 635 and syed Lakhat-e-Hasnain v. State 2010 SCMR 855 ref.

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

----S. 497---Bail---Assessment of material on record---Court at bail stage as per the provision of S. 497, Cr.P.C. has to look into the material available on record to prima facie determine the involvement of accused in the commission of offence or otherwise.

Syed Zafar Ali Shah, Advocate Supreme Court for Petitioner.

M. Irfan Malik, Additional Prosecutor-General, Punjab with Muhammad Ishaque Hinjra, Dy. Director, Anti-Corruption and Asif Iqbal Bhatti, Circle Officer for the State.

2010 S C M R 1741

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Rahmat Hussain Jafferi, JJ

NAZIR AHMED alias JEERA---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.989 of 2009, decided on 4th June, 2010.

(On appeal from the judgment of the Lahore High Court, Multan Bench dated 7-10-2009 in Criminal Appeal No.5 of 2004 and Murder Reference No.8 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e­-amd---Contentions were, that crime was unseen, eye-witnesses were closely related to the deceased, medical report was contradicted by site plan, prosecution had attributed contradictory motive for the crime and that in any case the accused ought not to have been awarded sentence of death---Leave to appeal was granted to accused by Supreme Court to re-examine the evidence and the quantum of sentence.

Malik Abdul Haq, Advocate Supreme Court for Petitioner.

Muhammad Siddique Baloch, D.P.-G. for the State.

2010 S C M R 1742

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

NASRULLAH KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.178 of 2005, decided on 4th June, 2010.

(On appeal against the judgment dated 7-8-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.281 of 2001).

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-A(v), 337-A(ii), 337-F(i) & 148---Qatl-e-amd, causing of hurts "shajjah" and "ghayr jaifah" and rioting---Appraisal of evidence---High Court had rightly held that case was one of free fight between the parties and each accused had played his individual role in the occurrence---Both the accused had not caused any injury to the deceased, nor they were accused in the murder case which was the motive for the prosecution---Four persons from accused side had also been injured, whose injuries had been suppressed in the F.I.R.---Accused who had allegedly caused injuries to the deceased were still absconders---Accused were, consequently, acquitted of the charge under S. 302(b), P.P.C.---Remaining convictions of accused were maintained, but their sentences thereunder being excessive and not in accord with the canons of safe administration of justice, were reduced to the imprisonment already undergone by each of them in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellants.

M. Siddique Khan Baloch, D.P.-G. for Respondent.

2010 S C M R 1744

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

JAVID-UR-REHMAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.206 of 2009, decided on 15th June, 2009.

(On appeal from the judgment dated 3-4-2009 passed by Peshawar High Court in Criminal Miscellaneous/Bail Application No.147 of 2009).

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)---Possessing narcotic drug---Bail, refusal of---Accused were allegedly found possessing huge quantity of heroin---Although on one date prosecution witnesses were present in court, but counsel of accused did not appear for recording of their evidence---Since trial had commenced and progress was being made in the case, therefore without dilating upon the merits of the case petition was dismissed, with direction to Trial Court to expedite the proceedings and conclude the same within six weeks---Defence counsel was also directed to cooperate with the court for expeditious disposal of the case.

Ghufran Khurshid Imtiaz, Advocate Supreme Court for Petitioners.

Niaz Ahmed Rathore, Special Prosecutor ANG and Mumtaz Hussain, Investigation Officer with record for the State.

Date of hearing: 15th June, 2009.

2010 SCMR 1746

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Pervaiz, JJ

DIRECTOR-GENERAL, INTELLIGENCE AND INVESTIGATION-FBR through Director, Intelligence and Investigation-FBR---Appellant

Versus

SHER ANDAZ and others---Respondents

Civil Appeals Nos. 768 to 788 of 2009, decided on 15th July, 2010.

(On appeal from the judgment dated 19-3-2009 passed by the Lahore High Court, Rawalpindi Bench in T.R. Nos. 10 to 30 of 2007).

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

----S. 196---Finance Act (IV of 2007), S.8(25)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether Director-General, Intelligence and Investigation, Federal Board of Revenue was covered by expression "aggrieved person" under S. 196 of Customs Act, 1969, prior to its amendment vide S. 8(25) of Finance Act, 2007 made applicable from 1-7-2007.

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

----S. 196---Finance Act (IV of 2007), S. 8(25)---Reference applications before High Court---Scope---Reference applications filed by Director-General Intelligence and Investigation were dismissed by High Court as incompetently filed---Validity---Reference applications were filed in March/April, 2007, i.e. prior to 1-7-2007, when section 196 of Customs Act, 1969 was amended by Finance Act, 2007 with effect from 1-7-2007, authorizing appellants etc. to file Reference applications before High Court---Prior to the amendment, Director and Directorate-General of Intelligence and Investigation etc. had no power to institute Reference applications in S. 196 of Customs Act, 1969---Supreme Court declined to interfere in the judgment passed by High Court, whereby appeals of appellants were dismissed as incompetently and invalidly filed---Appeal was dismissed.

Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (PVT.) Limited and others 2006 SCMR 129 and Director, Directorate-General of Intelligence and Investigation, Customs and Excise, Karachi v. Messrs Al-Faiz Industries (PVT) LTD., Karachi and others 2004 PTD 2987 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in all cases).

Muhammad Nacem Qazi, Advocate Supreme Court and Sajjad Hussain, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 11th March, 2010.

2010 S C M R 1752

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

NIZAMUDDIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 744 of 2006, decided on 4th May, 2010.

(On appeal from the judgment/order dated 7-8-2006 in Criminal Appeal No. S-60 of 2004 passed by the High Court of Sindh, Bench at Sukkur).

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

----S. 302(c)--- Constitution of Pakistan (1973), Art. 185(3)--- Qatl-­e-amd---Leave to appeal was granted to accused by Supreme Court to consider certain important aspects overlooked by the courts below, which were necessary for a just and fair decision of the case.

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

----S. 302(c)---Qatl-e-amd---Appraisal of evidence---Medical evidence had corroborated the date and time of the incident as well as the seat of injury, as given by the eye-witnesses---Relationship of the eye-witnesses with the deceased alone was not sufficient to hold them as interested witnesses---Ocular evidence was unbiased, consistent in material aspects and reliable---Delay in sending the crime weapon and empties to Ballistic Expert could not overweigh the ocular testimony found in line and supported by medical evidence---Failure of prosecution to prove the motive was not fatal to its case---Impugned judgment did not suffer from any illegality or irregularity---Appeal was dismissed in circumstances.

2005 SCMR 427 ref.

Habib Ahmed, Advocate Supreme Court and Mazhar Ali B.Chohan, Advocate-on-Record for Appellant.

Shahadat Awan, Prosecutor-General, Sindh for the State.

Date of hearing: 8th March, 2010.

2010 SCMR 1756

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain, Asif Saeed Khan Khosa, JJ

ABDUL JABBAR---Appellant

Versus

HAQ NAWAZ and others---Respondents

Criminal Appeal No. 536 of 2000, decided on 6th May, 2010.

(On appeal against the judgment dated 31-5-1999 passed by Lahore High Court, Lahore in M.R. No.307 of 1993 and Criminal Appeal No. 73 of 1993).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e­-amd---Appeal against acquittal by High Court---Complainant, widow of the deceased, had named real brothers of the deceased as accused alleging that they wanted the deceased to share the property gifted to him by his uncle who was issueless---When two male accused had caught hold of the deceased, there was no occasion for the female accused to catch the deceased with his legs with a view to facilitate the other accused to cause the murder---Story alleged and the evidence led in the case was not free from doubt--Impugned judgment of acquittal was neither arbitrary nor conjectural warranting interference by Supreme Court---Appeal was dismissed accordingly.

Abdul Sadiq Chaudhry, Advocate Supreme Court and M.A. Zafar, Advocate-on-Record for Appellant.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court along with Respondent No. 1 to 4.

Mian Asif Mumtaz, Deputy Prosecutor-General for the State.

2010 S C M R 1758

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez, JJ

ABDUL REHMAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.11 of 2006 out of Jail Petition No.422 of 2004, Criminal Appeal No.12 of 2006 out of Jail Petition No.423 of 2004 and Criminal Appeal No.13 of 2006 out of Jail Petition No.449 of 2004, decided on 8th May, 2010.

(On appeal from the judgment dated 22-9-2004 and 23-9-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.301-J of 2002, Criminal Appeal No. 1237 of 2002 and Murder Reference No.72-T of 2002).

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

----Ss. 302(6)/34, 324/34, 392/224, 225 & 353/34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(c)---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, robbery, resistance to lawful apprehension, assault or use of criminal force to deter public servant from discharge of his duty, causing death or grievous injury in act of terrorism---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence in order to ascertain the quantum of sentence.

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

----Ss. 302(b)/34, 324/34, 353/34 & 225---Qatl-e-amd, attempt to commit qatl-e-amd, assault or use of criminal force to deter public servant from discharge of his duty, and resistance or obstruction to lawful apprehension of another person---Appraisal of evidence---Benefit of doubt---Medical evidence had not supported the allegation that accused had provided chillies powder to be used by the under-trial prisoners to facilitate their escape---Investigating Officer had not recorded in his inspection note to have found chillies powder lying on the seats or floor of the police van---Supply of chillies attributed to accused, thus, had negated his role of facilitation---Use of fire-arm by the under-trial prisoners in the commission of the crime could not be denied, but it was not established on record that it was the accused who had supplied the fire-arms---Section 34, P.P.C. was not applicable to the case of accused, nor there was any unimpeachable evidence against him---Accused was acquitted on benefit of doubt in circumstances.

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

----Ss. 302(6)/34, 324/34, 224 & 353/34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(c)---Qatl-e-amd, attempt to commit qatl-e-amd, resistance to lawful apprehension, assault or use of criminal force to deter public servant from discharge of his duty, causing death or grievous injury in act of terrorism---Appraisal of evidence---Sentence, reduction in---Mitigating circumstance---Accused was one of the under-trial prisoner travelling along with others in the police van and the act of throwing chillies powder on the guards for escape was attributed to him---Four disinterested witnesses including the three injured eye-witnesses having no enmity with the accused, had attributed the overt act to the accused---Accused was definitely sharing common intention with other accused persons and had acted in the predetermined plan for escape of prisoners---However, accused was neither armed with any fire-arm, nor assigned that role of firing---Evidence did not show that. the accused had the knowledge that his co-accused while escaping from police custody would cause death of two police constables and injure three others---Role played by accused in the commission of crime was secondary and minor, which had entitled him to mitigation in sentence---Convictions and sentences of accused were upheld, except that death sentence awarded to him under S. 302(6), P.P.C. was converted into imprisonment for life, in circumstances.

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

----Ss. 302(6)/34, 324/34, 392, 224 & 353/34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(c)---Qatl-e-amd, attempt to commit qatl-­e-amd, robbery, resistance to lawful apprehension, assault or use of criminal force to deter public servant from discharge of his duty, causing death or grievous injury in act of terrorism---Appraisal of evidence---All the four eye-witnesses including the three injured constables and the driver of the police van had specially charged the accused for causing death of a constable and injuring a prosecution witness by firing with a pistol---Said police officials had no reason to implicate the accused falsely in the case---Handcuffs and a rifle snatched from police had been recovered at the instance of the accused---Accused being an under-trial prisoner having equipped himself with fire-arm had caused the death of a police constable and injured prosecution witness with firing acting in a desperate and brutal manner and he deserved no leniency in sentence---Convictions and sentences of accused were maintained in circumstances and his appeal was dismissed accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants (in all cases).

M. Siddique Khan Baloch, Deputy Prosecutor-General, Punjab for the State (in all cases).

Date of hearing: 12th April, 2010.

2010 S C M R 1770

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Khilji Arif Hussain, JJ

ABDUL NASIR and another---Petitioners

Versus

Haji SAID AKBAR---Respondent

Civil Petitions No. 1074 of 2008, decided on 15th April, 2010.

(On appeal from the judgment dated 4-6-2008 of the Peshawar High Court, Peshawar passed in W.P. No. 918 of 2006).

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

----Ss. 2(d), 5, 6, 13 & 31---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---Limitation---In the present case, it had expressly been stipulated that sale-deed would be executed after payment of balance consideration amount, which would mean that agreement to sell between the parties, had not been concluded---Such was so notwithstanding the fact that possession of suit property apparently had been delivered to vendees/defendants in anticipation of the sale---Clause (c) of S.31 of North-West Frontier Province Pre-emption Act, 1987, though had provided that period of limitation would start from the date a vendee would take physical possession, but that clause had also provided that `sale had taken place'---Parties as well as the courts below were not justified treating agreement between the parties as a conveyance, rather than an agreement to sell which envisaged a conveyance at a future date, after payment of the balance consideration, which date had not yet occurred---Suit filed by the plaintiff was pre-mature---Plaintiff could enforce his right, if any, by way of pre-emption subject to law, as and when the sale was completed in terms of S.5 of North-West Frontier Province Pre-emption Act, 1987---Plaint was rejected as no cause of action had arisen in favour of the plaintiff as yet.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioners.

Reehan-ud-Din Khan, Advocate Supreme Court for Respondent.

Date of hearing: 15th April, 2010.

2010 SCMR 1772

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Anwar Zaheer Jamali, JJ

SHERAZ KHAN---Appellant/Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 148 of 2007 and Criminal Petition No. 462-L of 2006, decided on 29th April, 2010.

(On appeal from the judgment dated 26-4-2006 passed by the Lahore High Court, Lahore in Criminal Applications 1684 and 1995 of 2600 and M.R. No.737 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Reappraisal of evidence---Phenomenon of substitution---Scope---Related witnesses---Discrepancies in evidence---Effect---Accused was convicted by Trial Court under S. 302(b), P.P.C. and was sentenced to death---Plea raised by accused was that complainant party had substituted the real culprit with him---Validity---Real father and brother of deceased could not have substituted the real culprit with that of the accused as substitution was a rare phenomenon---Besides forthright and confidence inspiring eye account furnished by prosecution witnesses duly supported by medical evidence and motive could not be brushed aside as suggested time and again merely on the ground of inter se relationship which did not matter---Minor contradictions in evidence crept in with the passage of time could be safely ignored---In absence of mitigating circumstances the judgment passed by Trial Court was well based and did not warrant interference as the prosecution had established the guilt of accused to the hilt by producing cogent and concrete evidence furnished by eye-witnesses and their version found corroboration by medical evidence, motive and was free from any inconsistency could be relied upon and conviction and sentence could have been awarded safely on the basis of such forthright evidence---Conviction and sentence awarded by Trial Court was maintained by Supreme Court---Appeal was dismissed.

Iqbal v. The State 1994 SCMR 1; Iqbal alias Bhala v. State 1994 SCMR 1; Nazir v. State PLD 1962 SC 269; Khalil Ahmed v. State 1976 SCMR 161; Alla Ditta v. State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274; Shehruddin v. Allah Rakhia 1989 SCMR 1461 and Din Muhammad v. Crown 1969 SCMR 777 rel.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant (in Criminal Appeal No. 148 of 2007).

Syed Ali Imran Shah, Deputy Prosecutor-General for the State (in Criminal Appeal No. 148 of 2007).

Nemo for Petitioner (in Criminal Petition No. 462-L of 2006).

Syed Ali Imran Shah, Deputy Prosecutor-General for the State (in Criminal Petition No. 462-L of 2006)

Date of hearing: 29th April, 2010.

2010 SCMR 1778

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

FASIH-UD-DIN KHAN and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Petition No. 266-L of 2004, decided on 1st December, 2009.

(On appeal from the judgment dated 12-11-2003 passed by the Lahore High Court, Lahore in W.P. No. 93 of 2003).

(a) Words and phrases---

---- 'Observation '---Defined.

Muhammad Ismael Zafar's case PLD 1967 Kar. 22 rel.

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

----S.10---General Clauses Act (X of 1897), S. 24-A---Proprietary rights, grant of---Order without application of mind---In earlier round of litigation, question before Board of Revenue was with regard to resumption of land but in subsequent proceedings appellants sought grant of proprietary rights---Revenue authorities declined to grant proprietary rights to appellants and High Court maintained the orders passed by revenue authorities---Validity---In earlier round of litigation, Board of Revenue had given `observation' without application of mind, therefore, such observation particularly in the case of resumption, did not create hindrance in the way to authority to decide application of appellants regarding proprietary rights---High Court also erred in law to observe that appellants filed constitutional petition before High Court after considerable delay without . analyzing the relevant facts---In the earlier round of litigation the issue was with regard to resumption of land in question from appellants or their predecessor-in-­interest, whereas subsequently the controversy related to proprietary rights-All orders of revenue authorities upto Board of Revenue and judgment passed by High Court were set aside---Supreme Court remanded the matter to Collector for deciding afresh the application for grant of proprietary rights filed by appellants---Appeal was allowed.

Ahmed Shaikh v. The State 2000 SCMR 814; Khawaja Auto Cars Limited v. Haji Sharif Khan 1996 CLC 1337; Abdul Razzak v. The Collector of Customs and another 1995 CLC 1453; Noorwar Jan v. Senior Member B.R. N.-W.F.P. PLD 1991 SC 531; Sultan Ali v. Khushi Muhammad PLD 1983 SC 243; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Muhammad Ismael Zafar's case PLD 1967 Kar. 22 ref.

(c) Public functionary---

----Each and every public functionary is duty bound to decide cases in accordance with law.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 rel.

(d) Words and phrases---

----`Per incuriam'---Meaning---Word "per incuriam" means carelessness.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 rel.

(e) Judge---

----Law of land must be in sleeves of the Judge.

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

----S.24-A---Speaking orders---Applicability---Public functionaries and judicial officers are duty bound to decide cases after application of mind.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 rel.

(g) Decision---

----Basic ingredients---Three basic ingredients of every decision are findings of fact both direct and inferential; Statement of principles of law applicable to legal terms disclosed by facts and judgment passed on combined effect of the above ingredients.

Amir Alam Khan, Senior Advocate Supreme Court for Petitioners.

Malik Azeem, Additional Advocate-General and Qamar Abbas Sultan, Assistant Director BOR, Punjab for Respondents.

2010 S C M R 1785

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmood and Allama Rashid Ahmed Jullundhari, JJ

NAWAIZISH ALI and another---Petitioners

Versus

THE STATE and others---Respondents

Criminal Shariat Petitions Nos. 38 and 39 of 2007, decided on 31st March, 2009.

(On appeal from the judgment dated 26-1-2007 of the Federal Shariat Court, Islamabad passed in Criminal Revision No. 114/L of 2005).

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

----Ss. 235 & 239---Constitution of Pakistan (1973), Art. 203F(2B)---Single charge with three heads was framed to stand joint trial with respect to the respective offences committed by the accused according to their individual roles---Validity---Different acts committed by the accused in the case had, prima facie, made out a series of events linked - in a manner so as to constitute a single transaction commencing with the abduction of the complainant---Question as to whether the abduction had taken place with knowledge or connivance of co-accused and whether the motive for abduction was to remove the kidney of the abductee were relevant and were to be examined on the basis of evidence recorded by the Trial Court in support of the charge--Provisions of Ss. 235 and 239, Cr. P. C. were attracted to such cases, which provided that if a single act or series of acts is of such a nature that it is doubtful about each of the several offences, the facts which could be proved would render the accused liable to conviction for having committed all or any of such offences---Mere fact that the role of one or more accused persons did not cover the entire series of events had to be considered by Trial Court in the evidence at the trial, where each individual link's of the chain of evidence had to be considered, but it would not make out a ground for framing a separate charge---When two offences were obviously linked together, the second having been committed to cover to first, both were complementary to each other and therefore, fell in the same series of acts which constituted two different offences---Same principle was attracted to the facts of the present case involving trial for a charge with three distinct heads---Petition for leave to appeal was dismissed in circumstances.

Shah Nawaz v. The State 1968 SCMR 1379 rel.

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

---Ss. 265-K & 561-A--- Constitution of Pakistan (1973), Art.203F(2B)---Appeal against acquittal of accused under S. 265-K, Cr.P.C. by Federal Shariat Court---Evidence, both oral and documentary, was available on record with respect to the allegation of removal of kidney of the complainant after her abduction---Prima facie case, thus, was made out against the accused and in the presence of such evidence powers to prevent abuse of law might not be exercised as to throttle the process of justice---Mere availability of defence to a party would not call for exercise of such powers, that call for exercise of judicial discretion---Prosecution evidence was not to be sifted at the outset---Powers under S. 265-K, Cr. P. C. were similar and could be equated to the proceedings under S. 561-A, Cr.P.C.---Petition for leave to appeal was consequently converted into appeal and allowed---Acquittal order of Federal Shariat Court was set aside and the order of Trial Court was restored in circumstances.

Mst. Kalsoom v. Bashir Ahmed and 2 others PCr.LJ 2000 SC 1054; Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.) PLD 1997 SC 275; Mian Munir Ahmed v. The State 1985 SCMR 257; Sheikh Mahmood and others v. Amir Nawaz Khan and another 1996 SCMR 839; Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317; Yasin Siddiqui v. The State 2001 PCr.LJ 1337; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; and Muhammad Aslam v. The State 1991 SCMR 600 ref.

Mian Allah Nawaz, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Petitioner (in Criminal Shariat Petition No.38 of 2007).

Zulfiqar Khalid Malooka, Advocate Supreme Court for Petitioner (in Criminal Shariat Petition No. 39 of 2007).

Mian Asif Mumtaz, Deputy Prosecutor-General, Punjab for the State (in Criminal Shariat Petitions Nos. 38 and 39 of 2007).

Mian Allah Nawaz, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondent No.1 to 4 (in Criminal Shariat Petition No. 39 of 2007).

Date of hearing: 31st March, 2009.

2010 SCMR 1791

[Supreme Court of Pakistan]

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

ANWAR SHAMIM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petitions Nos. 828 and 847-L of 2009, decided on 1st September, 2009.

(Against the judgment dated 3-6-2009 passed by the Lahore High Court, Lahore in Criminal Appeal No. 354 of 2003 with M.R. No. 103 of 2003).

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

---Ss. 302, 109 & 148/149---Qatl-e-amd---Reappraisal of evidence---Chance witness---If chance witness reasonably explains his presence at the spot and his narration of occurrence inspires confidence then he is not a chance witness and his testimony can be considered along with other evidence.

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

----Ss. 302, 109 & 148/149---Qatl-e-amd---Reappraisal of evidence---Minor contradictions or improvements in statement of witnesses are to be over-looked, however only material contradictions are to be considered.

Ranjha v. The State 2007 SCMR 455 rel.

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

----Ss. 302, 109 & 148/149---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd---Reappraisal of evidence---Double murder---Related witnesses---Corroboration of evidence---Scope---Trial Court convicted both the accused under S.302 (b) P.P.C. and sentenced them to death on two counts---Plea raised by accused was that eye-witnesses were related to deceased and were chance witnesses---Validity---Mere relationship between witnesses and deceased was not enough to discard their evidence---It was duty and obligation of court for corroboration of interested witnesses, to have first ascertained whether such witness had seen the occurrence and was in a position to identify accused and whether he should be believed without corroboration---Prosecution witnesses faced lengthy cross-examination but their veracity could not be shaken by defence counsel---Both the courts below came to the conclusion that statements of eye-witnesses were of such a nature that their testimony should be given due weight and were believed---If Court was satisfied about truthfulness of direct evidence then requirement of corroborative evidence was not of much significance---Corroboration was not a rule of law but was that of prudence---Accused failed to make out any justification for interference by Supreme Court while exercising constitutional jurisdiction and also failed to raise any question of law of public importance---Constitutional jurisdiction was discretionary in character and Supreme Court, keeping in view the circumstances in which two persons were murdered by accused in very cruel manner, declined to exercise discretion in their favour---Conviction and sentence awarded by two courts below was maintained by Supreme Court---Leave to appeal was refused.'

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

----Art.121---Criminal trial---Specific plea---Proof---It is duty and obligation of accused to prove the plea taken by him in his defence in terms of Art. 121 of Qanun-e-Shahadat, 1984.

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

----S. 173---Finding of police---Scope--Finding of police is not binding on court and investigating agency has the only duty under law to collect evidence---Investigating agency has no authority whatsoever to give finding of guilt or innocence regarding accused persons under the provisions of Criminal Procedure Code, 1898, Police Act, 1861, or Police Order, 2002/Rules framed thereunder---It is only the prerogative of court to give finding, after recording evidence and statements of accused regarding guilt or innocence of accused---Deciding cases on finding of police tentamounts to delegate powers of court to investigating agency which is not permissible under the law, Constitution and conventions.

Ch. M. Ashraf Wahlah, Advocate Supreme Court for Petitioner (in Criminal Petition No. 828-L of 2009).

Kh. Basit Waheed, Advocate Supreme Court for Petitioner (in Criminal Petition No. 847-L of 2009).

Alamgir, Additional Prosecutor-General for the State.

2010 S C M R 1796

[Supreme Court of Pakistan]

Present: Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

JAMSHED KHAN---Petitioner

Versus

MUHAMMAD SAEED and others---Respondents

C.P.L.A. No. 574-P of 2004, decided on 17th April, 2009.

(On appeal from the judgment dated 13-5-2004 in C. R. No. 233 of 2003 passed by the Peshawar High Court, Peshawar).

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

----S.13---Constitution of Pakistan (1973), Art. 185 (3)---Right of pre-emption, exercise of---Non-mentioning of place, date and time in plaint---Suit filed by pre-emptor was dismissed by High Court in exercise of revisional jurisdiction on the ground that neither date, time and place when Talb-e-Muwathibat was made was mentioned in plaint nor name of informer was disclosed therein---Validity---Non­-mentioning of place, date and time of Talb-e-Muwathibat and date of issuing of notice of Talb-e-Ishhad in terms of S.13 of Pre-emption Act, 1987, was fatal towards maintainability of suit for pre-emption---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Shaibar v. Babu 2003 CLC 1439; Mst. Shamim Akhtar v. Kh. Maqsood Ahmad 1998 SCMR 2227; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2008 SCMR 404; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 and Haq Nawaz v. Muhammad Kabir C.A. No. 1259 of 2008 rel.

Tasleem Hussain, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Abdul Samad Khan, Advocate Supreme Court/Advocate-on-Record for Respondent No. 1.

Date of hearing: 17th April, 2009.

2010 S C M R 1800

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

JERRY PRINCE---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 488 of 2009, decided on 3rd August, 2009.

(Against the judgment dated 8-4-2009 passed by the Peshawar High Court, Peshawar, in Criminal Appeal No. 279 of 2008).

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

----S. 9(c)-Constitution of Pakistan (1973), Art. 185(3)--Possession of narcotics-Reappraisal of evidence---Recovery of 3 kilogram of heroin-Concurrent findings of guilt by two courts below-Both the courts below had given concurrent findings of fact that huge quantity of heroin was recovered from suit-case of accused in his presence-Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and sentenced to 8 years of imprisonment, which sentence was maintained by High Court-Validity---Finding of guilt recorded by courts below did not suffer from any infirmity or illegality Accused failed to point out any piece of evidence which was misread or non-read by courts below while rendering finding of guilt against accused--Supreme Court declined to go behind concurrent findings of guilt recorded by courts below unless it could be shown that finding was on the face of it against evidence or so patently improbable or perverse that to accept the same could amount to perpetuating a grave miscarriage of justice or there had been any misapplication of principle relating to appreciation of evidence or finally, of finding of guilt could be demonstrated to be physically impossible---Burden was heavy on accused to show that concurrent findings of guilt recorded by High Court were not sustainable on record and should be interfered with by Supreme Court---Accused failed to bring his case within the parameters prescribed by Supreme Court on the subject---Supreme Court in exercise of power under Art. 185(3) of the Constitution, declined to interfere in concurrent conclusions arrived at the courts below--Accused failed to raise any substantial question of law and keeping in view the concurrent findings of courts below, Supreme Court declined to exercise its discretion in favour of accused---Leave to appeal was refused.

Norra's case PLD 1973 SC 463 rel.

Khanzada Ajmal Zeb, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2010 SCMR 1804

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

(SUO MOTU CASE FOR RECOVERY OF MINOR KIDS OF MST. TAHIRA JABEEN)

Suo Motu Case No. 19 of 2009 in Criminal Petition No. 686 of 2009, decided on 30th July, 2010.

Guardians and Wards Act (VIII of 1890)---

----Ss.12 & 2S---Constitution of Pakistan (1973), Art. 184 (3)---Suo motu jurisdiction---Recovery of minor children---During the pendency of proceedings before Guardian Court, father of minor children misused the concession of visitation rights and removed the minors to foreign country---Despite registration of F.I.R., against father of minors and three others, minors could not be recovered---Supreme Court, while hearing bail application of co-accused took suo motu notice of removal of minors and directed the authorities to recover the minors---Authorities had recovered the minors from abroad and handed them over to their mother, who was entitled to retain their custody subject to the decision of Guardian Judge---Supreme Court appreciated the Provincial Police Officer for taking personal interest in tracing out the property of wife of father of minors and observed that he should also take like steps to ensure that with the cooperation and coordination of Federal Investigating Agency, the culprits would be brought back whosoever were involved in the cases so that they could face trial, which would send a loud and clear message that no one was above the law, whosoever he might be and should be dealt with sternly, if he had violated the law of the State---Minor children were handed over to their mother in the court and she was allowed to take them to her city---Supreme Court directed the police to provide protection to mother of minors, if need be, against any mischief---Case was disposed of accordingly.

Applicant in Person.

Azam Khan, Director (Law), F.I.A, Hussain Asghar, Director, NCB (Interpol) along with Minors Sameen and Nooran, Saeed Yousaf, Additional Prosecutor-General, Punjab, Ejaz Shafi Dogar, S.P. Investigation, Lahore and Zaheer-ud-Din, Babar, S.I. (Investigation) on Court's Notice.

2010 SCMR 1811

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., 'Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

Dr. AYESHA SABIR---Petitioner

Versus

FIDA UL HAQ and others---Respondents

Civil Petition No. 1189 of 2009, decided on 18th August, 2009.

(Against the judgment dated 10-4-2009 passed by the Lahore High Court, Rawalpindi Bench, in W.P. No. 1997 of 2008).

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

----Art. 185 (3)---Petition for leave to appeal---Concurrent findings of fact by courts below---Scope---Supreme Court generally does not interfere in concurrent conclusions of courts below while exercising jurisdiction under Art.185 (3) of the Constitution.

Khuda Bakhsh's case 1974 SCMR 279; Muhammad Sharif's case PLD 1981 SC 246 and Abdul Rehman Bajwa's case PLD 1981 SC 522 rel.

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

----Arts. 185 (3) & 199--Constitutional jurisdiction---Scope---Constitutional jurisdiction is discretionary in character---He who seeks equity must come with clean hands.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 185 (3)---Recovery of dowry articles---Concurrent finding of fact by courts below---Raising of new plea---Suit for recovery of gold ornaments as dowry articles was filed by plaintiff, relying upon a judgment passed by foreign court---Family Court did not consider the judgment in evidence and dismissed the suit---Judgment and decree passed by Family Court was maintained by Lower Appellate Court as well by High Court---Validity---Family Court excluded judgment of foreign country from evidence and such finding of Family Court was not challenged by plaintiff before Lower Appellate Court as well as before High Court, therefore, plaintiff had no legal right to agitate the same before Supreme Court---No substantial question of law of public importance was raised by plaintiff---Leave to appeal was refused.

Wali Muhammad's case PLD 1974 SC 106; Raunaq Ali case PLD 1973 SC 236; Haji Muhammad Saifullah Khan's case PLD 1989 SC 166; Ashfaqur Rehman Khan's case PLD 1971 SC 766 and John E. Brownlee case AIR 1940 P.C. 219 rel.

Mir Muhammad Ghufran Khurshid, Advocate Supreme Court for Petitioner.

Ibadur Rehman Lodhi, Advocate Supreme Court for Respondents Nos.1 and 2.

2010 SCMR 1816

[Supreme Court of Pakistan]

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

ZAFAR and others---Petitioners

Versus

UMER HAYAT and others---Respondents

Criminal Petition No. 732-L of 2009, decided on 14th October, 2009.

(Against the judgment dated 9-6-2009 passed by Lahore High Court, Lahore, in Criminal Revision No. 441 of 2009).

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

----Ss. 202, 203 & 204---Procedure to be adopted and considerations to be kept in mind in dealing with complaint---Trial Court must scrutinize the contents of the complaint, nature of allegations made therein, supporting material in support of accusation, object intended to be achieved, possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are levelled should suffer the ordeal of protracted, time consuming and cumbersome process of law.

Abdul Wahab Khan's case 2000 SCMR 1904 ref.

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

----Ss. 202, 203 & 204---Expressions "if any" and "sufficient grounds for any", as used in S. 203 Cr.P.C.---Significance---Provisions as contained in Ss. 202, 203 and 204, Cr.P.C., if read together, would show that a proper safeguard has been provided by the legislature showing its intention in this regard by using the words "if any" and "sufficient grounds for any" in S. 203, Cr.P.C. and accordingly the frivolous and vexatious complaints must be buried at their inception, where no prima facie case is made out.

Abdul Wahab Khan's case 2000 SCMR 1904 ref.

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

----S. 204---Penal Code (XLV of 1860), Ss. 302/148/149---Accused summoned by Trial Court in complaint containing counter version---Validity---Nominated accused in the F.I.R. lodged more than seven months earlier under Ss. 302, 148 and 149, P.P.C. had filed the private complaint with a counter version about the same incident and this fact was not considered by Trial Court at the time of issuing summonses to the petitioners/respondents, which was countersigned by High Court without application of mind---Although no limitation is prescribed in criminal prosecution, yet the longer the complaint is delayed the lesser would become the chance of believing in its truth, particularly when the same was based entirely on oral evidence---No sufficient ground existed for issuance of process in the complaint case---Judgments of both the courts below were consequently set aside and the complaint filed by the respondent was dismissed accordingly by Supreme Court.

Abdul Wahab Khan's case 2000 SCMR 1904; Muhammad Salim's case 2001 SCMR 1738; G.M. Sikdar's case PLD 1970 SC 158; Messrs Airport Services' case 1998 SCMR 2268; Ghulam Mohi-ud-Din's case PLD 1964 SC 829; Noor Muhammad's case PLD 2007 SC 9 and Muhammad Saleem's case 1994 SCMR 2213 ref.

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

----S. 200---Complaint---Limitation---No limitation is prescribed in criminal prosecutions, but the longer a complaint is delayed the lesser becomes the chance of believing in its truth, particularly when it is based entirely upon oral evidence.

M. Aftab Iqbal Chaudhry, Advocate Supreme Court for Petitioners.

Syed Ali Imran Shah, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 14th October, 2009.

2010 SCMR 1821

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

ANSAR ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 463 of 2006, decided on 25th November, 2010.

(On appeal from the judgment dated 13-10-2005 of the Lahore High Court, Lahore passed in Crl. A. No.2175 of 2003).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e­-amd---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence so as to ensure the presence of the eye-witnesses at the place of occurrence.

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

----S. 302(b)/34---Qatl-e-amd---Appraisal of evidence---Presence of both the eye-witnesses on the spot at the time of occurrence had not been established---Eye-witnesses had made improvements in their statements which inspired least confidence---Ocular testimony having already been disbelieved by Trial Court to the extent of two co-accused, could not be believed qua the present accused as well---Guns recovered from the accused were not shown to have been used in the commission of the crime---Possibility of false involvement of accused in the case could not be ruled out---Accused were acquitted in circumstances.

Zahid Hussain Khan, Advocate Supreme Court for Appellants.

Shabbir Ahmed Lali, Additional Prosecutor-General, Punjab for the State.

2010 S C M R 1825

[Supreme Court of Pakistan]

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

MUHAMMAD SHEHZAD MALIK---Petitioner

Versus

MUHAMMAD SUHAIL and another---Respondents

Criminal Petition No. 1137-L of 2009, decided on 19th October, 2009.

(Against the order dated 27-7-2009 passed by Lahore High Court, Lahore, in Criminal Original No. 409-W of 2009).

(a) Administration of justice---

----Judge must wear all laws of land on his sleeves.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

(b) Administration of justice-.--

----Court has to decide controversy between parties after judicial application of mind.

G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173 rel.

(c) Administration of justice---

----Subsequent events---Scope---Superior courts have ample jurisdiction to look into subsequent events at the time of deciding of case.

(d) Contempt of Court---

----Contempt is always between contemnor and court.

(e) Contempt of Court Act (XXIV of 1976)---

----S. 3---Contempt of court---Absence of finding of guilt---Effect--High Court accepted contempt application filed by respondent with certain directions to appellant---Validity---Contempt petition was accepted without giving any finding regarding guilt of appellant or by discharging appellant without securing reply from appellant, therefore, order passed by High Court was not sustainable in the eyes of law on any canon of justice---Supreme Court declined to take action against appellant---Appeal was allowed.

Mehdi Hassan's case PLD 1960 Lah. 751 rel.

Ch. Ali Muhammad, Advocate Supreme Court for Petitioners.

Mian Abdul Qadus, Advocate Supreme Court for Respondent.

Saeed Iqbal Wahla, DCO, Faisalabad, Mubashir Ali Shah, DOR, Faisalabad, Saeed Anwar, TMO, Faisalabad and Muhammad Arshad, Litigation Officer on Court Notice.

Date of hearing: 19th October, 2009.

2010 S C M R 1835

[Supreme Court of Pakistan]

Present: Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

AKHLAQ HUSSAIN KAYANI---Petitioner

Versus

ZAFAR IQBAL KIYANI and others---Respondents

Cr.P.L.A. No. 125-P of 2007 and Criminal Appeal No. 22 of 2009, decided on 14th April, 2009.

(On appeal from the judgment dated 28-9-2007 passed by the Peshawar High Court, Peshawar in Cr. Misc. Quashment No. 109 of 2007).

(a) Administration of justice---

----Civil and criminal. proceedings---Same subject---Stay of criminal proceedings---Principles---No invariable rule exists to the effect that pending decision of a civil suit criminal proceedings regarding the same subject must be stayed---Matter is purely of discretion---Guiding principle for exercise of such discretion should be to see as to whether the accused is likely to be prejudiced, if criminal proceedings are not stayed---Criminal proceedings must be stayed when criminal liability depends on the result of civil litigation, particularly when title of the property is in dispute.

Muhammad Akbar v. The State and others PLD 1968 SC 281; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Sheraz Ahmad and others v. Fayyaz-ud-Din and others 2005 SCMR 1599; Riaz-ul-Haq v. Muhammad Ashiq Jorah and others 2000 SCMR 991; A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353; Abdul Haleem v. The State and others 1982 SCMR 988 and Muhammad Tufail v. The State and another 1979 SCMR 437 ref.

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

----S. 417/418/420/465/466/467/468/471/474-Constitution of Pakistan (1973), Art. 185(3)---Cheating, forgery and using as genuine a forged document---F.I.R. got registered by the complainant petitioner against the accused respondents had been quashed by High Court with all subsequent proceedings---Validity---Complainant had himself sought a declaration from Civil Court that transfer letter regarding the sale of the car in question was bogus, forged and fictitious and was ineffective against his rights, and as an alternate relief he had prayed for a decree to the extent of his share in the sale proceeds of the said car---Eligibility of the complainant to file the complaint, thus, itself was dependent upon the outcome of the civil suit---High Court, therefore, instead of quashing the F.I.R., should have stayed the proceedings in the criminal case till the decision of the civil suit---Petition for leave to appeal was consequently converted into appeal and partly allowed, impugned order of quashing of F.I.R. was set aside and the proceedings in the criminal case were stayed till the decision of the civil suit.

Muhammad Akbar v. The State and others PLD 1968 SC 281; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Sheraz Ahmad and others v. Fayyaz-ud-Din and others 2005 SCMR 1599; Riaz-ul-Haq v. Muhammad Ashiq Jorah and others 2000 SCMR 991; A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353; Abdul Haleem v. The State and others 1982 SCMR 988 and Muhammad Tufail v. The State and another 1979 SCMR 437 ref.

Abdul Sattar Khan, Advocate Supreme Court and M.Z. Qureshi, Advocate-on-Record for Petitioner.

Shahzad Akbar Khan, Advocate Supreme Court for Respondents Nos. 1 and 2.

M. Tariq Javed, Advocate Supreme Court for the State.

Date of hearing: 14th April, 2009.

2010 SCMR 1840

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Rahmat Hussain Jafferi, JJ

Sayed ABBAS TAQI MEHDI---Appellant

Versus

Mst. Sayeda SABAHAT BATOOL and others---Respondents

Civil Appeals Nos. 955 and 956 of 2006, decided on 3rd November, 2009.

(On appeal from the order dated 19-1-2005 passed by the Peshawar High Court, Peshawar, in W.P. Nos. 44 and 45 of 2005).

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

----S.5 & Sched.---Ex parte decree, setting aside of---Scope---Suit for recovery of dowry articles and maintenance allowance was filed by wife in which process was served against husband who refused to accept the same---Two years after passing of ex parte decree by Family Court, husband filed application for setting aside of the decree which was dismissed by Family Court---Judgment and decree passed by Family Court was maintained by Lower Appellate Court and High Court---Validity---Address of husband was mentioned by wife in her plaint which was in consonance with the address of husband mentioned in Column No.10 of Nikahnama---Same address was also mentioned by husband himself before High Court as well as before Supreme Court, even otherwise wife along with her son filed another suit against the husband with the same address---Service of husband had been effected in the case on the same address, therefore, remarks on registered acknowledgement due with regard to refusal of husband showed that he was not misled in view of address mentioned by wife in her plaint---Trial Court was justified to pass ex parte decree against husband---Supreme Court declined to interfere in concurrent judgments and decrees passed by the courts below---Appeal was dismissed.

Ghulam Murtaza's case 1999 CLC 81; Mahboob Ahmad's case PLD 1976 Kar. 978; Bibi anwar Khatoon's case PLD 1988 Kar. 602; Muhammad Iqbal's case PLD 2005 SC 22; Mst. Zubaida Bibi's case 1994 SCMR 1978 and Mst. Ismat Khanum Toor's case 1978 SCMR 335 ref.

Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another 1988 SCMR 747 distinguished.

(b) Pleadings---

----Parties are bound by their pleadings.

Murad Begum's case PLD 1974 SC 322 rel.

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

----Art. 185 (3)---Raising of fresh points / pleas---Scope---Supreme Court generally does not allow any party to raise fresh points or pleas which were not raised before the courts below.

Ashfaqur Rehman Khan's case PLD 1971 SC 766; John E. Brownlee's case AIR 1940 P.C. 219; Sardar Muhammad Ayub's case 1969 SCMR 96(2) and Ghulam Muhammad's case 1980 SCMR 933 rel.

(d) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances and facts:

Trustees of the Port of Karachi's case 1994 SCMR 2213 and Gulzar Khan's case 1982 SCMR 843 rel.

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

----Arts. 185 (3) & 199---Constitutional jurisdiction---Scope---Constitutional petition is not maintainable regarding finding of facts recorded by the courts below---Constitutional jurisdiction is discretionary in nature and he who seeks equity must come to court with clean hands.

Khuda Bukhsh's case 1974 SCMR 279; Muhammad Sharif's case PLD 1981 SC 246; Sultan's case PLD 1981 SC 522; Wali Muhammad's case PLD 1974 SC 106; Nawab. Syed Raunaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and G.M. Malik's case 1990 CLC 1783 rel.

Syed Zafar Abbas Zaidi, Advocate Supreme Court for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 3rd November, 2009.

2010 SCMR 1849

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. and Khalil-ur-Rehman Ramday, J

Dr. SHAHID MASOOD and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions No. 46 and 47 of 2010, decided on 13th August, 2010.

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

----Arts. 19 & 19-A---Right to speech, expression and information---Electronic media---Role---Weight attached to electronic media stems out of the fundamental rights of freedom of speech, expression and of press as guaranteed by Art. 19 of the Constitution---Equally important, if not more, the right of every citizen to have access to information in all matters of public importance as guaranteed by provisions of Art.19-A of the Constitution.

(b) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----Ss.20, 24, 27 & 28---Constitution of Pakistan (1973), Art. 184 (3)---Freedom of speech and expression---Electronic media---Obstructing the transmission---Effect---Grievance of petitioners was that Pakistan Electronic Media Regulatory Authority (PEMRA) and cable operators suspended telecasting and transmission of their networks---Validity---Act of operators of cable TV networks, blocking / obstructing transmission of petitioners and consequent denial of distribution service to the channels in question and to the viewers who were paying the operators for the services, prima facie, was a gross violation of terms and conditions of licences granted to them under Ss. 20 and 24 read with the provisions of Ss. 27 and 28 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and thus attracted penal provisions of Ss. 30 and 33 of the Ordinance, in respect of not only the ones committing such violations but also those abetting the same---Supreme Court after examining the factual, legal and even constitutional aspects of the' matter directed as under that Chairman PEMRA would ensure immediate distribution of broadcast services of its licensed channels, even if the same involved strict legal action against delinquent cable TV operators, if any; that Chairman PEMRA would personally monitor and ensure that transmission of broadcast of petitioner channels was continued to be aired without any hindrance or obstruction of whatever kind and was to submit a report in such behalf on the next date of hearing under his own signatures; that Provincial Police Officers of all Provinces including Sindh and Punjab were directed to ensure that if at all, any law and order situation would be created, which could hinder the transmission of petitioner channels then they should take immediate correctional steps including strict action, in accordance with law against any person found causing such hindrance.

(c) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----Ss. 19, 27 & 33---Broadcast media or distribution service, licence---Object, purpose and scope---PEMRA must realize that licence issued by it to a TV Cable operator is a certification by it for all concerned that such an operator had committed and consequently stood obligated to offer un-disturbed distribution service to broadcasters as also to viewers; it is on the basis of such certification by PEMRA that on the one hand, the broadcasters entrust the transmission of their broadcasts to the operators and on the other, the hundreds and thousands of viewers/subscribers pay their hard-earned money to the operators to receive such service---Besides being a legal, it is also a moral obligation of PEMRA, through its Chairman, to ensure that the promised and legally obligated services are provided by the operators not only to the broadcasters but also to hundreds and thousands of the public who are paying money to the operators for such service---Any dereliction of duty on the part of official of PEMRA including its Chairman, could fall within the purview of abetment of penal offences and the consequent punishment in terms of section 33 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioners.

Maulvi Anwar-ul-Haq, Attorney-General and Agha Tariq Mehmood, Deputy Attorney-General, Ch. Qamar Zaman, Secy. M/o Interior, Mansoor Sohail, Actg. Secy. Information, Mushtaq Malik, Chairman, PEMRA, Nayyar Nasir Hayat, Legal Advisor and Irfan. D.G. (Licence) on Court's Notice.

2010 S C M R 1861

[Supreme Court of Pakistan]

Present; Iftikhar Muhammad Chaudhry, C. J. Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

MUDASSAR ALTAF and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No. 400 of 2009, decided on 23rd July, 2009.

(Against the order dated 19-5-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Misc. Nos. 483-B, 422-B and 618-B of 2009).

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

----S.497(1)---Bail, grant of---Offences falling under prohibitory clause of S. 497, Cr. P. C. ---Factors to be considered---Scope.

Courts have to consider following factors while deciding bail applications in cases of offences punishable with death, imprisonment for life or imprisonment for ten years:-

(i) Benefit of reasonable doubt.

(ii) Identity of accused.

(iii) Role attributed to each of accused and part allegedly played by accused in occurrence.

(iv) His presence at spot.

(v) Question of vicarious liability.

(vi) Allegations mentioned in F.I.R.

(vii) Statements of prosecution witnesses recorded under S.161, Cr.P.C.

(viii) Other incriminating material collected by prosecution.

(ix) Any plea raised by accused.

Tariq Bashir's case PLD 1995 SC 34 and Muhammad Nawaz Khan's case 1994 SCMR 1064 rel.

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

----Art. 185 (3)---Bail---Supreme Court, jurisdiction of---Scope---Supreme Court is Constitutional Court and normally does not interfere with matters concerning grant of bail or refusal of bail by High Court.

Muhammad Ismail's case PLD 1989 SC 585, Sultan Khan's case PLD 1997 SC 642 and Haji Gulu Khan's case 995 SCMR 1765 rel.

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

----S.497---Bail---Observations of superior court---Opinion of police---Name of accused in column No.2 of Challan---Observations made by superior courts while dealing with question of bail, are intended only for limited purpose---Mere mentioning of name of accused in column No.2 while submitting challan by police does not debar courts to evaluate material on record---Finding of police is not binding on court and while granting or refusing bail, courts can take into consideration such aspect of the matter---Observation of Supreme Court or courts below while deciding bail applications are tentative in nature which are not binding upon Trial Court which is duty bound to decide case on the basis of evidence adduced by parties before it without being influenced by any observation of Supreme Court or High Court.

Haji Inayat-ul-Haq's case 1988 SCMR 1743; Iqbalur Rehman's case PLD 1974 SC 83 and Gul Ahmed's case 1997 SCMR 27 rel.

(d) Administration of justice---

----Each and every criminal case is to be decided on its own peculiar circumstances and facts.

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

----Art. 185(3)---Penal Code (XLV of 1860), Ss. 302/324/148/149---Qatl-e-amd and attempt to commit qatl-e-amd----Bail, grant of---Double murder---Specific role---Placing accused in column No. 2 of challan---Accused was involved in case after one day through supplementary statement of injured complainant---In the incident two persons were persons were murdered and specific role was attributed to accused---Prosecution witnesses also supported version of complainant by implicating him in commission of offence---Plea raised by accused was that his name was placed in column No. 2 of Challan submitted by investigating officer---Validity---Trial Court as well as High Court refused to exercise discretion in favour of accused with cogent reasons---Ipse dixit of police was not binding on the court and court was well within its right to evaluate all material which was placed before it---Supreme Court declined to exercise discretion in favour of accused---Leave to appeal was refused.

(f) Words and phrases---

'Opinion'-Meaning.

(g) Equity---

----He who seeks equity must come with clean hands.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioners.

Chaudhry Muhammad Tariq, Additional Prosecutor-General, Punjab for the State.

Malik Anwarul Haq, Advocate Supreme Court and Sanaullah Zahid, Advocate Supreme Court for the Complainant.

2010 S C M R 1868

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Tariq Parvez Khan, JJ

MUHAMMAD IFTIKHAR---Petitioner

Versus

NAZAKAT ALI---Respondent

Civil Petition No. 1195 of 2010, decided on 28th July, 2010.

(On appeal from the judgment dated 9-3-2010 of the High Court of Sindh, Karachi passed in IInd Appeal No. 9 of 2008).

Specific Relief Act (I of 1877)---

---S.12---Civil Procedure Code (V of 1908), O. XLI, R. 31---Constitution of Pakistan (1973), Art. 185 (3)---Specific performance of agreement to sell--- Judgment of appellate Court--- Issue-wise judgment---Principle---Suit and appeals filed by plaintiff were concurrently dismissed by all the Courts below--Plea raised by plaintiff was that in its judgment, Lower Appellate Court did not adhere to the provisions of O. XLI, R.31, C. P. C.---Validity---Appellate Court was not always required to deal with each of the issue and to resolve the same separately in the light of evidence available on record unless the same had caused any serious violation of law or resulted into a grave miscarriage of justice to any of the parties to the suit--Findings of facts recorded by Trial Court on the issues were maintained by lower Appellate Court, therefore, unless findings were reversed by lower Appellate Court, which was not so, decision on each issue might not be distinctly and essentially recorded, provided in substance compliance of the provisions of O. XLI, R. 31, C.P.C. had been made---Judgment passed by High Court did not suffer from any impropriety or illegality, so as to call for any interference by Supreme Court---Leave to appeal was refused.

Muhammad Sharif v. Mst. Fajji alias Phaji Begum through LRs and another 1998 SCMR 2485 distinguished.

Raja Mahfooz Satti, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2010 S C M R 1871

[Supreme Court of Pakistan]

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

ABDUL RASHID---Appellant

Versus

MUHAMMAD YASEEN and another---Respondents

Civil Appeal No. 1826 of 2005, decided on 2nd October, 2009.

(On appeal from the judgment dated 5-10-2005 passed by the Lahore High Court Multan Bench, Multan, in Civil Revision No. 424-D of 1994).

(a) Sale deed---

----Registered sale deed prior in time must be given due weight over later sale deed.

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

----S. 41--- Sale by ostensible owner--- Protection--- Principles---If transferee after taking reasonable care to ascertain that transferor has acted in good faith, then his rights are protected.

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

---S.8---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908), S.115---Recovery of possession---Transfer by ostensible owner, principle of---Applicability---Registered sale deed prior in time---Effect---Plaintiffs sought recovery of possession of suit land on the basis of sale deed registered in their favour prior in time than the sale deed executed in favour of defendant, registered later in time---Suit and appeal filed by plaintiffs were concurrently dismissed by Trial Court and Lower Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit in favour of plaintiffs---Validity---Provisions of S. 41 of Transfer of Property Act, 1882, could protect a transferee provided he had acted in good faith and took reasonable care to ascertain that transferor had power to make transfer and in such exercise inquiry into valid title was involved---Defendant was not vigilant to make any inquiry regarding status of land in question---Rights of plaintiffs were, therefore, rightly held to have been protected under the provisions of S.41 of Transfer of Property Act, 1882---Where two Courts below, while giving their findings on question of law had committed material irregularity or acted to read evidence on point which resulted in miscarriage of justice, therefore, High Court had the occasion to re-examine the question and to give its findings on that question in exercise of revisional jurisdiction---High Court was obliged to interfere in findings recorded by courts below while exercising power under S.115 C.P.C.---No infirmity or illegality in the judgment passed by High Court, having been found, Supreme Court declined to interfere in the same---Appeal was dismissed.

Abdul Qahir's case PLD 2002 SC 321 and Muhammad Bashir's case 2003 SCMR 774 ref.

Maulana Riazul Hassan's case 1991 SCMR 2513; Mst. Noor-un-Nisa's case 1984 SCMR 2087; Muhammad Bashir's case 2003 SCMR 774; Shaukat Nawaz's case 1988 SCMR 851; G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173 rel.

Khadim Nadeem Malik, Advocate Supreme Court for Appellant.

Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Respondents.

Date of hearing: 2nd October, 2009.

2010 SCMR 1877

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Ghulam Rabbani, Khalil-ur-Rehman Ramday, JJ

Moulvi ABDUL QADIR and others---Appellants

Versus

Moulvi ABDUL WASSAY and others---Respondents

Civil Appeals Nos. 79-Q, 1401 of 2009 and 1 of 2010, decided on 30th July, 2010.

(On appeal from the judgments dated 8-5-2009, 16-11-2009 and 14-12-2009 passed by the Election Tribunal Balochistan in Election Petitions Nos. 16/08, 8/2008, 13/2008).

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

----S.55 (3)---Civil Procedure Code (V of 1908), O. VI, R.15---Constitution of Pakistan (1973), Art. 189---Election petition---Verification of petition and documents---Principle---Judgment of Supreme Court---Binding effect---Extent---Election petitions filed by appellants were dismissed by Election Tribunal for the reason that neither petitions nor documents annexed with the petitions were verified in accordance with law---Plea raised by appellants was that the matter had already been settled by Supreme Court in its earlier judgments---Validity---Question of law pronounced or declared by Supreme Court in terms of Art. 189 of the Constitution, had binding effect on all functionaries, both executive and particularly judicial authorities---Superior Courts and Tribunals had obligation to implement and adhere to judgment of Supreme Court---Election Tribunal perhaps on account of non-availablity of proper assistance, proceeded to decide the cases against appellants---Supreme Court had already settled the question with regard to verifying pleadings notwithstanding numbered paragraphs or pleadings, what they verified of their own knowledge and what they verified upon information received and believed to be true---Such provision of law could not be considered to be mandatory as one could verify the paras in pleadings on his own knowledge without verifying any para upon receipt of information, same were believed to be true---Supreme Court set aside the judgments passed against appellants and election petitions were remanded to Election Tribunals for decision afresh.

Iqbal Zafar Jhgra v. Khalilur Rehman 2000 SCMR 250; Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur PLD 2004 SC 570; Sardarzada Zafar Abbas v. Syed Hassan Murtaza PLD 2005 SC 600; Amar Lal v. Ishwar Das 2007 SCMR 1776; Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 and S.M. Ayub v. Yousaf Shah PLD 1967 SC 486 rel.

Nemo for Appellants (in Civil Appeal No. 79-Q of 2009).

Tariq Mehmood, Senior Advocate Supreme Court for Appellants (in Civil Appeals Nos. 1401 of 2009 and 1 of 2010).

Nemo/Ex parte for Respondents (in Civil Appeal No. 79-Q of 2001).

Ch. Ali Muhammad, Advocate Supreme Court for Respondents (in Civil Appeal No. 1401 of 2009).

Amanullah Kanrani, Advocate Supreme Court for Respondents (in Civil Appeal No.1 of 2010).

2010 S C M R 1883

[Supreme Court of Pakistan]

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

GHULAM MURTAZA---Petitioner

Versus

ABDUL SALAM SHAH and others---Respondents

C.R. Petition No.58 of 2007 in Civil Appeal No. 798 of 2003, decided on 1st October, 2009.

(On review against the judgment dated 13-2-2007 passed by this Court in Civil Appeal No. 798 of 2003).

(a) Pleadings---

----Parties are bound by their pleadings.

Murad Begum's case PLD 1974 SC 322 rel.

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Fresh plea---Scope---Fresh point/plea is generally not allowed by Supreme Court to be raised during arguments of petition and appeal---Fresh pleas cannot be allowed to be raised during arguments of review petition.

Ishfaqur Rehman's case PLD 1971 SC 766 and John E. Brownlee's case AIR 1940 P.C. 219 rel.

(c) Supreme Court Rules, 1980---

----O.XXVI---Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---Scope---Re-hearing of case on merits---Scope---Petitioner filed review application wherein judgment passed by Supreme Court was sought to be reviewed---Validity---If Court had taken a conscious and deliberate decision on a point of fact or law, a review petition would not be competent---Review petition was not competent where neither new and important evident error had been described nor any error apparent on the face of record---Such error might be error of question of law or fact but condition precedent was that it must be self evident floating on the surface and not requiring elaborate discussion or process of ratio cination---Review was not meant for re-hearing of the matter and scope of review was always very .limited and confined to basic aspect of the case referred to at review stage which was considered in judgment---If grounds taken in support of .review petition were considered in the judgment and decided on merits, the same was not available for review in the form of re-examination of the case on merits---In the interest of justice and fair-play, Supreme Court re-examined the case keeping in view the principles with regard to review of judgment of Supreme Court under Art. 188 of the Constitution---Petitioner failed to bring the case within the parameters prescribed by Supreme Court in its judgments---Supreme Court did not find any infirmity or illegality in the judgment, therefore, declined to review the judgment---Petition was dismissed.

Abdul Majeed's case 1980 SCMR 504; Mst. Kalsoom Malik's case 1996 SCMR 710; Noor Hassan Awan's case 2001 SCMR 367; Ayyaz Baig's case 2002 SCMR 380; Daewoo Corporation's case 2004 SCMR 1213; Muhammad Afzal's case 2004 SCMR 1348; Messrs PIA's case 2004 SCMR 1737; Sh. Muhammad Amjad's case PLD 2004 SC 32 and Syed Wajihul Hassan Zaidi's case PLD 2004 SC 801 rel.

Malik Saeed Hassan, Advocate Supreme Court for Petitioner.

M. Saleem Shahnazi, Advocate Supreme Court for Respondents Nos.2 to 7.

2010 SCMR 1886

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi and Tariq Parvez Khan, JJ

MUHAMMAD AZAM DAVI and others---Appellants

Versus

SPEAKER BALOCHISTAN PROVINCIAL ASSEMBLY and others---Respondents

Civil Appeals Nos. 1513 of 1996, 844 of 1997, 1187 of 1997, 96 of 2009, 23 and 24 of 2010.

(On appeal from the judgments of the Balochistan High Court dated 20-12-1995 passed in C.P. 328 of 1995, Lahore High Court dated 15-5-1997 in W.P. 1616 of 1996, dated 23-7-1997 in W.P.1569 of 1997, Federal Service Tribunal dated 2-10-2006 in Appeal No.569 (R)CS of 2004 and dated 6-10-2009 in Appeal No. 521(R)CS of 2006).

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

----Arts. 87, 127, 208 & 212(3)---Leave to appeal was granted by Supreme Court to determine whether or not, the petitioner being an employee of Provincial Assembly, fell within the scope of the definition of `civil servant'.

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

----Arts. 87, 127, 208, 221 & 240---Service Tribunals Act (LXX of 1973), S. 4---Employees of Constitutional bodies---Parliament/ (Provincial Assembly)---Status---Civil servants---Service Tribunal, jurisdiction of---Dispute was with regard to invoking of jurisdiction of Service Tribunal by employees of Constitutional bodies---Validity---Status of employees of Constitutional bodies as to whether or not they were civil servants for the purpose of being amenable to jurisdiction of Service Tribunal depended upon whether or not the Parliament had been conferred power to regulate the terms and conditions of service of such employees---In case the Parliament had been bestowed with such power, either specifically, like in Arts. 87 and 221 of the Constitution or generally as in Art. 240 of the Constitution, whether or not exercised, the employees of such a body would be civil servants---Applying such principle, Art. 87 read with Art. 127 of the Constitution expressly enabled the Parliament and Provincial Assemblies, as the case might be, to make laws for regulation of the terms and conditions of service of the employees of respective establishments---Employees of such bodies were, therefore, civil servants---Judgment of Service Tribunal, declining to exercise jurisdiction was set aside and appeal filed by appellant was deemed to be pending before Service Tribunal---Appeal was allowed.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Shaukat Ali Bokhari v. Secretary, National Assembly Secretariat PLD 1997 SC 877; Shahid Iqbal v. Government of Pakistan 1995 SCMR 660; Hadi Bux v. Government of Sindh and another PLD 1994 SC 532; Shahid Iqbal v. Government of Pakistan and another 1995 SCMR 660; Government of the Punjab v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Registrar Supreme Court of Pakistan v. Qazi Wali Muhammad 1997 SCMR 141; Abbas v. The Hon'ble Chief Justice 1993 SCMR 715; Manzoor Hussain v. Province of the Punjab 1989 PLC (CS) 42; Mubarak Ali Khan v. government of the Punjab 1990 CLC 136 and Chief Election Commissioner of Pakistan v. Miss Nasreen Pervez 2009 SCMR 329 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in Civil Appeal No.1513 of 1996).

Nemo for Appellants (in Civil Appeal No.844 of 1997).

Zahid Farani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in Civil Appeal No.1187 of 1997).

Appellants in person (in Civil Appeal No.96 of 2009).

Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in Civil Appeal No.23 of 2010).

Abdul Rehman Siddiqui, Advocate Supreme Court for Appellants (in Civil Appeal No.24 of 2010).

Raja M. Afsar, Advocate Supreme Court for Respondent No.1 and 2 (in Civil Appeal No.1513 of 1996).

Respondent No. 3 ex parte (in Civil Appeal No.1513 of 1996).

Raja Abdul Ghafoor, Advocate-on-Record for the Federation (in Civil Appeal No.844 of 1997).

Kh. M. Haris AG, Punjab, Saeed Yousaf, Additional Advocate-General and M. Akram DR, Lahore High Court for the Government of Punjab (in Civil Appeal No.1187 of 1997).

Raja Abdul Ghafoor, Advocate-on-Record and Saadat H. Khan, Litigation Officer for Respondents (in Civil Appeal No.96 of 2009).

Nemo for others (in Civil Appeal No. 96 of 2009).

Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No. 2 (in Civil Appeal No. 23 of 2010).

Nemo for others (in Civil Appeal No.23 of 2010).

Haider Hussain Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No. 2 (in Civil Appeal No.24 of 2010).

Raja Abdul Ghafoor, Advocate-on-Record for the Federation (in CA 24 of 2010).

Abid Saqi, Deputy Advocate-General and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos.1 and 2 (in Civil Appeal No.24 of 2010).

Kh. Haris Ahmed, Advocate-General, Punjab and M. Akram Dy, R. (Lahore HC) for Respondent No. 3 (in Civil Appeal No.24 of 2010).

Date of hearing: 27th May, 2010.

2010 S C M R 1899

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

FOOD DEPARTMENT, GUJRANWALA through its Deputy Director and others---Petitioners

Versus

GHULAM FARID AWAN---Respondent

Civil Petition No. 1878-L of 2009, decided on 23rd December, 2009.

(Against the order dated 14-5-2009 passed by the Lahore High Court, Lahore in W.P. No. 98 of 2009).

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

----Art. 185 (3)---Limitation Act (IX of 1908), S.5---Delay, condonation of---Principle---Administrative delay---Petition for leave to appeal filed by government agency was barred by 39 days---Plea raised by authorities was that delay was caused due to seeking of permissions from different officers---Validity---Number of cases filed by government agencies were time-barred and it was possible that such petitions were filed either to oblige litigants or to conceal illegality, inaction and negligence of the officers / authorities concerned-In such cases burden of decision was shifted on Court system and Supreme Court neither appreciated such manoeuvre nor approved the same--Government functionaries were equal before the courts and no preferential treatment could be shown to government agencies---Stock explanation of administrative delays was normally pleaded in condonation applications, which explanation did not constitute sufficient cause or reasonable ground to be attached any weight or credibility---Such explanation in fact constituted an admission of guilt and neglect of concerned and thus compounded ever existing managemental inefficiency and lack of decision making in government offices---Those seeking condonation of delay were under legal duty to explain each day's delay and to show their vigilance to avoid such delays which fatally obviated valuable remedy---Grounds mentioned in application for condonation of delay did not disclose any plausible explanation as to the cause of delay, therefore, Supreme Court declined to condone the delay---Supreme Court directed Attorney General and Advocate Generals and law officers under them to act appropriately to ensure avoidance of loss to respective governments---Leave to appeal was refused.

East Pakistan v. Abdul Hamid Darfi and others 1970 SCMR 558; Federation of Pakistan v. Niaz Ahmad 1997 SCMR 959; Commissioner of Income Tax v. Rias. Pir Ahmad Khan 1981 SCMR 37; Muhammad Sharif Javaid Warsi's case PLD 2003 SC 6; PLD 2003 Journal 95; Ch. Zahur Ilahi's case PLD 1975 SC 383; Zahid Akhtar's case PLD 1995 SC 530 and Ghulam Mohyuddin's case PLD 1964 SC 829 rel.

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

----Art. 4---Applicability of law---Scope---Each and every authority under Art. 4 of the Constitution are mandated to act in accordance with law---Constitution also obliges every citizen to obey the command of Constitution.

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

Faisal Zaman Khan, Additional Advocate-General, Punjab along with Muhammad Ikram Qureshi, Deputy Director Food, Gujranwala for Petitioners.

Nemo for Respondent.

2010 SCMR 1904

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi and Tariq Parvez Khan, JJ

MUHAMMAD MUBEEN US SALAM and 24 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secy. M/o Defence Government of Pakistan and others---Respondents

Civil Appeals Nos. 792 to 816 of 2005, decided on 15th July, 2010.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 27-11-2004 passed in Appeals Nos.1021(R)CS, 1023(R)CS to 1025(R)CS, 1027(R)CS to 1029(R)CS, 1031(R)CS to 1034(R)CS, 1038(R)CS, 1087(R)CS to 1092(R)CS, 1094(R)CS to 1099(R)CS and 1101(R)CS of 2003).

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

----S. 2(1)(b)---Service Tribunals Act (LXX of 1973), Ss. 2-A & 4---Constitution of Pakistan (1973), Art. 212---Air Force Manual (A. F. M. 54-2, dated 17-5-1992), Chaps. I, VI, VII & X---Appeal to Service Tribunal---Teachers of Pakistan Air Force (PAF) Inter-College, Islamabad---Prayer of such teachers for grant of benefits and facilities admissible to civil servants---Dismissal of such appeal---Validity---Supreme Court granted leave to appeal to examine questions as to whether or not teachers/employees of PAF Educational Institutions managed by Managing Committee or Bodies were civil servants under S. 2(1)(b) of Civil Servants Act, 1973 or for purpose of S. 2-A of Service Tribunals Act, 1973; whether such employees/teachers could invoke jurisdiction of Tribunal as well as of Supreme Court under Art.212(2) of the Constitution; and question of validity and vires of S.2-A of Service Tribunals Act, 1973 on touchstone of Art. 211 and other provisions of the Constitution.

Managing Committee P.A.F. Model Inter-College Sargodha v. Malik Muhammad Pervaiz Akhtar 1997 SCMR 1957 and Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 rel.

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

----S. 2(1)(b)---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan (1973), Art. 212(3)---Air Force Manual (A. F. M. 54-2, dated 17-5-1992), Chaps. I, VI, VII & X---Appeal---Teachers of Pakistan Air Force Inter-College---Prayer of such teachers for declaring them to be civil servants and granting them benefits and facilities admissible to civil servants---Dismissal of such appeal by Service Tribunal---Validity---Such College being one of similar other educational institutions set up by PAF initially for providing education to children of its personnel and later opening same to civilians---Declared object of Air Force Manual (A. F. M. 54-2), dated 17-5-1992 was to standardize functions of such Institutions while acknowledging their independence---Such Manual covered all aspects of running of such Institutions including administration, academics and terms and conditions of service of their employees---Each school or college of PAF had a Board of Governors---Air Force Manual conferred functions and administrative control of every Institution on a Managing Committee, which amongst Air Force Officers included representatives of parents of students---Said Manual declared each Institution to be a self-financing institution dependent upon funds collected as tuition fees and allied charges---Funds of such Institutions were non-public funds for purpose of accounting---Chairman of Managing Committee was responsible for all financial organizations and administrative matters of such Institution---Managing Committee had power to appoint, confirm, promote, dismiss and discharge employees of such Institution--According to said Manual, each Institution was a separate and distinct employer and there was no provision for transfer of employees from one P.A.F. Institution to another---PAF Manual as well as Statement of College Funds showed that they did not receive any public grants or contributions from Pakistan Air Force or Federal Government---Pakistan Air Force had no power either to appoint or remove employees of such Institution---Federal Government had not been assigned any role in functioning of such Institution---Regulations contained in the Manual were not-statutory and in nature of administrative instructions for running and functioning such Institution---Letters of appointments of teachers showed that they had furnished undertaking to follow regulations in the Manual in letter and spirit---Such Institution was a private institution and not part of Pakistan Air Force or Federal Government, notwithstanding that personnel of PAF were included in their Managing Committee---Relationship of teachers being employees of such institution was that of `master and servant'---Posts held by the teachers were created under such Institutions' own Regulations, but not in manner posts in Government Departments were created---Posts held by such teachers were not "civil posts ", thus, they were not civil servants within meaning of S. 2(1)(b) of Act, 1973 as they were not connected with Defence or Federal Government---Appeals of such teachers before Tribunal were not maintainable---Supreme Court dismissed the appeals of such teachers.

Yusaf Ali Khan v. the Province of Punjab PLD 1949 Lah. 219; Federation of Pakistan v. Shamsul Huda PLD 1957. Decca 148; S. Mohan Singh v. Patiala and East Punjab States Union AIR 1954 Pepsu 136; R. Christopher v. Executive Engineer AIR 1966 Allahbad 97; State of Uttar Pradesh v. Audh Narain Singh AIR 1965 SC 360 and Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676 ref.

Managing Committee P.A.F. Model Inter-College Sargodha v. Malik Muhammad Pervaiz Akhtar 1997 SCMR 1957; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD. 2007 SC 681 and M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 rel.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants.

Moulvi Anwar-ul-Haq, AGP and Raja Abdul Ghafoor, Advocate-on-Record for the Federation.

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

Date of hearing: 15th July, 2010.

2010 S C M R 1915

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez Khan, JJ

MUHAMMAD BASHIR and others---Appellants

Versus

Mst. LATIFA BIBI through LRs---Respondent

Civil Appeal No. 719 of 2006, decided on 4th August, 2010.

(On appeal from the judgment dated 19-4-2006 passed by the Lahore High Court, Lahore in R.S.A. No.92 of 1989).

(a) Islamic law---

----Sect---Determination---Principle---No principle of universal application is available to determine faith of a person---Determination of faith depends on surrounding circumstances, way of life, parental faith and faith of kiths and kins---Question of sect of a person cannot be determined by opinion of parties but can be inferred from facts creating presumption of one way or the other.

Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Zohran Mai v. Siftan 1983 CLC 2559 and Amir Ali v. Gul Shaker PLD 1985 Kar. 365 rel.

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

---S. 8---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Islamic law---Will---Unregistered will---Sect---Determining factors---Namaz-e-Janaza (Funeral prayers)---Effect---Failure to produce witnesses---Dispute was with regard to faith of predecessor-in-interest of parties and plaintiffs who were collaterals to the extent of 3/4th share and had assailed mutation of inheritance on the plea that deceased was Sunni by sect and not Shia---Defendants relied upon a Will stated to have been executed by the deceased---Validity---Will was written on. a blank paper and could not be substantiated by producing any reliable evidence--Scribe of the will was not produced and one of the witnesses by whom Will was attested was not worthy of credence as name of petition writer who reduced in writing the will was in negation of record---Will relied upon by defendants was never got registered and thus could not be considered to determine faith of the deceased---Will was a fictitious and manoeuvred document prepared to get the property of the deceased and only object to reduce will in writing appeared to remove any doubt that the deceased was Shia by faith---Such doubt could not be removed as the Will could not be proved in accordance with relevant provisions of Qanun-e-Shahadat, 1984---Deceased was Sunni by faith and no concrete evidence could be led showing that he was Shia by faith---Statement of Imam Masjid of village mild not be disbelieved where the deceased used to say his prayer under his Imamat---Ordinarily a person who was Shia by faith usua' did not offer prayer in Imamat of a person who was Sunni by faith---Entire evidence led by defendants was silent that Namaz-e-Janaza of deceased was performed by any Shia Imam in village---Such factor could be taken as additional consideration for determining the question as to whether the deceased predecessor-in-interest of parties was Sunni or Shia by faith---If the deceased was Shia by faith, his relatives would have not allowed to perform his Namaz-e-Janaza by an Imam who was Sunni by faith---Supreme Court declared the deceased as Sunni by faith and his property was ordered to be distributed in accordance with Hanafi law among his legal heirs---Judgment and decree passed by High Court was set aside and that of Lower Appellate Court was restored---Appeal was allowed.

Mst. Iqbal Begum v. Mst. Syed Begum AIR 1933 Lah. 80; Hayat-un-Nisa v. Muhammad Ali Khan ILR 122 All 390; Monies Law of Evidence 1969 Edn. P. 494; Halsbury's Law of England, III Ed., Vol. 15; para.801 and C.B. Fields's Law of Evidence Vol. 5 11th Ed.para.10 p.4'7'73; Mst. Nazeer Begum v. Abdul Sattar (PLD 1963 Kar. 465; Qasim and others v. The State PLD 1967 Kar. 233; Syed Iqbal Hussian v. Mst. Sarwari Begum PLD 1967 Lah. 1138; Muhammad Mujibur Rehman Siddiqi v. Abdul Bari and 3 others PLD 1981 Kar. 537; Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111; Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110; Muhammad Ibrahim v. Haji Raza Hussain 1987 MLD 515; Karimuddin Shad v. Mst. Fatima Mian Ahmed 1989 CLC 545; Qamruddin through his legal heirs v. Hakim Mehmood Khan 1988 SCMR 819; AEG Carapiet v. A.Y. Darderian AIR 1961 Cal. 359; Tradets Syndicate v. Union of India AIR 1983 Cal. 337 and Nur Jehan Begum v. Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

(c) Affidavit---

----Contents of affidavit---Proof:--Deponent, non-appearing before court---Effect---Where deponent could not be cross-examined regarding Contents of affidavit, it cannot be equated to that of evidence and such affidavit swron in would have no substantial bearing on merits of the case having little evidentiary value.

Mst. Khairunisa and 6 others v. Malik Muhammad Ishaq and 2 others PLD 1972 SC 25; Nazeer Ahmed Khan and 2 others v. Muhammad Ashraf Khan and 3 others PLD 1975 Kar. 598; Malik Muhammad Ishaq v. Messrs Erose Theatre and others PLD 1977 SC 109; Messrs Shalimar Ltd. Karachi v. Raeesuddin Siddiqui and 3 others 1979 CLC 338; Muhammad Yousaf Ishaq v. Abdul Majid Khan and 5 others 1984 CLC 243; Abdul Karim Qureshi v. Abdul Khaliq 1984 CLC 259; Mst. Sakina and another v. Hussain and 5 others 1986 CLC 288; Ataullah Khan Malik v. The Custodian, Evacuee Property (West) Pakistan and 5 others PLD 1964 SC 236; The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585; Rehmatullah v. Tufail Hussain and others 1987 CLC 792 and Zafar Mirza v, Naushina Amir Ali PLD 1993 Kar. 775 rel.

Ch. Khurshid Ahmed, Advocate Supreme Court for Appellants.

Mian Allah Nawaz, Senior Advocate Supreme Court and Tariq Mehmood, Senior Advocate Supreme Court for Respondents Nos. 5, 6, 8 and 9.

Nemo for Respondents Nos. 2, 4 and 7.

Date of hearing: 17th February, 2010.

2010 S C M R 1925

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

SHAKEEL AHMED and another---Appellants

Versus

MUHAMMAD TARIQ FAROGH and others---Respondents

Civil Appeal No. 62-K of 2010, decided on 9th September, 2010.

(On appeal from judgment of Sindh High Court, Karachi dated 8-2-2010, passed in Constitutional Petition No.S-446 of 2006).

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

----S. 15 --- Ejectment petition --- Bona fide personal need of demised shop by landlord---Clearing and forwarding licence of landlord remained suspended while filing such petition, but restored during its pendency---Tenant's plea that landlord was doing his earlier business of clearing and forwarding in his office, thus, such claim was not bona fide---Validity---Landlord's statement about his such claim had remained unshattered in cross-examination and unrebutted in tenant's evidence---Landlord during cross-examination had unfolded further details about genuineness of his claim and such event taken place during rent proceedings---If landlord decided to change his business from clearing and forwarding to hardware business and needed demised shop for such purpose, then mere restoration of such licence during rent proceedings would not bar him from pressing such claim--Selection of business in rented shop, if more than one, being prerogative of landlord, thus, no restriction could be imposed upon him---Law never required that landlord, in order to prove his claim would keep himself either idle or away from all sorts of income generating ventures till final decision, of petition---Landlord having re-engaged himself in business of clearing and forwarding during rent proceedings would not militate his bona fides---Petition was accepted in circumstances.

Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCMR 593; Hassan Khan v. Munawar Begum PLD 1976 Kar. 832 and Fazal Azim v. Tariq Mahmood PLD 1982 SC 218 rel.

(b) Evidence---

---Appreciation of --- Principles.

The evidence adduced by the parties is to be read, evaluated and assessed as a whole, and the impact of the evidence of an individual witness is also to be gauged in the same manner.?

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

----S. 15---Ejectment petition---Bona fide personal need of landlord---Proof---Selection of business and rented shop by landlord---Scope.

Selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one, therefore, no restriction can be imposed upon landlord.?

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

----S. 15---Ejectment petition---Bona fide personal need of demised shop by landlord---Proof---Principles.

For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit-in-evidence as prescribed by law, if it remains unshattered in cross-examination and un?rebutted in the evidence adduced by the opposite party.?

It is not the requirement of law that the landlord, in order to prove bona fides of his personal need, shall keep himself away from all sorts of income generating ventures or to keep himself idles as long as the fate of his ejectment case, which may consume year and years together, is finally decided by the court.?

Mst. Teheed Khanum v. Muhammad Shamshad 1980 SCMR 593; Hassan Khan v. Munawar Begum PLD 1976 Kar. 832 and Fazal Azim v. Tariq Mahmood PLD 1982 SC 218 rel.

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

----S. 15---Constitution of Pakistan (1973), Art. 199 --Constitutional petition against order of Appellate Court---Scope---Appellate Court was final authority under Sindh Rented Premises Ordinance, 1979---Constitutional jurisdiction could not' be invoked as-substitute to another appeal against such order---Mere fact that upon perusal of evidence High Court came to another conclusion would not furnish a valid ground for interference in such order.?

Khawaja Naveed Ahmed, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Appellants.

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

Date of hearing: 9th September, 2010.

2010 S C M R 1931

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

SHAUKAT HAYAT---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.1325-L of 2009, decided on 24th December, 2009.

(On appeal against the judgment dated 21-10-2009 passed by Lahore High Court Lahore in Criminal Miscellaneous No. 12981-B of 2009).

Criminal Procedure Code (V of 1898)---

---S. 497(5)-Penal Code (XLV of 1860), S. 409---Constitution of Pakistan (1973), Art. 185(3)---Criminal breach of trust---Bail, cancellation of---High Court had granted bail before arrest to accused in violation of the parameters prescribed and the dictum laid down by Supreme Court in this regard---Allegation of mala fides against the police was important---Investigating Officer had declared the accused to be innocent without recording the statements of the aggrieved persons and the complainant---Investigating Agency had not conducted the investigation in the case in accordance with law---Supreme Court would recall the bail when allegation of mala fides against the police appeared to be unreasonable---Accused was specifically named in the F.I.R. and his name was not deleted by the complainant in his supplementary statement recorded later---Examinee students had, prima facie, been defrauded and their examination fees had been embezzled by the accused---Bail granted to accused by High Court was recalled in circumstances.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 ref.

Imtiaz A. Shaukat, Advocate Supreme Court along with Petitioner.

Alamgir, Additional Advocate-General, Punjab along with Altaf Hussain, A.S.-I. Police Station City, Narowal for the State.

2010 S C M R 1933

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

Qazi ABDUL JALIL---Appellant

Versus

N.-W.F.P. FOREST DEVELOPMENT CORPORATION through Chairman and others---Respondents

Civil Appeal No.288 of 2008, decided on 1st February, 2010.

(On appeal from the judgment dated 10-6-2004 of the Peshawar High Court, Peshawar, passed in Writ Petition No.1773 of 1999).

(a) Natural justice, principles of---

----Applicability---Scope---Principles of natural justice must be observed in all judicial, quasi-judicial and administrative proceedings affecting person, property or other rights of parties concerned---Principles stated.

In all proceedings by whomsoever held, whether judicial, quasi-judicial or administrative, the principles of natural justice have to be observed, if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. In the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case.

Ghulam Mustafa v. Islamic Republic of Pakistan 1982 CLC 1665; Khawaj Din v. Rationing Controller Food, Faisalabad PLD 1980 Lah. 15; Mushtaq Ahmad v Ghulam Muhammad 1984 CLC 3451; Abdus Saboor Khan v. Karachi University PLD 1966 SC 536 and University of Dacca v. Zakir Ahmed PLD 1965 SC 90 rel.

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

----Art. 25-- Equality before law--- Scope--- Law should be equal and equally administered among equals---Like should be treated alike.

Shirin Munir v. Government of Punjab PLD 1990 SC 295 rel.

Raja Muhammad Bashir, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant.

Qaiser Rasheed, Additional Advocate-General, N.-W.F.P. and A.Q. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 1st February, 2010.

2010 S C M R 1940

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ. Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

TOWN COMMITTEE, ALIPUR---Petitioner

Versus

ALLAUDDIN and others---Respondents

C.R.P. No.152 of 2008 in Civil Appeal No. 1758 of 2003, decided on 10th February, 2010.

(Against the judgment dated 26-6-2008 passed by this Court in C.A. No. 1758 of 2003).

Constitution of Pakistan (1973)---

----Art. 188---Review of Supreme Court judgment---High Court had non-suited respondent on the point of limitation, but that fact was not properly attended to in the impugned judgment---Prima facie, the petitioner/Town Committee as well could not be allowed to take over the disputed property without valid entitlement in respect thereto as per the law notwithstanding the fact whether there was a dispute between the private parties in respect of the validity or otherwise of the agreement in question---Review petition was allowed and impugned order was recalled and civil appeal arising out of the judgment of the High Court, was restored to its original number and it was ordered to be fixed after three weeks.

Altaf Ibrahim Qureshi, Advocate Supreme Court with Muhammad Saleem Amir, TMO, Town Committee, Alipur, Muhammad Kalim Akhtar, Accounts Officer, TMA, Alipur for Petitioners.

Respondent No.1 in person.

Mehmood Ashraf, Advocate Supreme Court for Respondents Nos. 2 and 3.

Nemo for Respondents Nos. 4, 5 and 6.

2010 S C M R 1942

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Jawwad S. Khawaja, JJ

MEMBER, BOARD OF REV ENUE/CHIEF SETTLEMENT COMMISSIONER, LAHORE and 2 others---Petitioners

Versus

Mst. SAJIDA PARVEEN and others---Respondents

Civil Petition No. 1012-L of 2007, decided on 2nd April, 2010.

(On appeal from the judgment of the Lahore High Court, Lahore dated 27-3-2007 passed in I.C.A. No.125 of 2006).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XLVII of 1958)---

----S. 35---Permanent Transfer Rides, 1961, Rr. 3 & 6---Constitution of Pakistan (1973), Arts. 185(3) & 199---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Mutation of transfer of evacuee properly attested by petitioner after 31 years of issuance of PTD in his favour---Title of petitioner-transferee challenged by District Administration, Settlement Department and Board of Revenue on ground that no PTD was available with mutation---Constitutional petition filed by transferee was dismissed by single Bench of High Court, but accepted by Division Bench of High Court---Validity---Title in evacuee property would stand transferred and vested in its transferee on making a record of transfer by competent Deputy Settlement Commissioner in prescribed register maintained by Settlement Department (CSC-4)---Such conveyance by itself would be complete regardless of whether transferee obtained an attested copy of such record or not---Original record of permanent transfer always remained with Settlement Department and transferee was entitled to an attested copy thereof---Document purporting to be a copy of original record issued to petitioner would be a copy of original record lying with Settlement Department, wherefrom his title could be verified---Calling petitioner to prove his title would disclose either gross negligence of law or absence of good faith on the part of respondent (Settlement Department)---Respondents had not undertaken any exec se in terms of R. 6(1) Permanent Transfer Rules, 1961 even after repeal of Evacuee Laws---Verification Committee established for such purpose; had thrice confirmed and verified petitioner's title from record of Settlement Department without notice to him-Chief Settlement Commissioner was a party in a constitutional petition filed earlier by owner of adjoining property claiming right of passage over property transferred to petitioner---Reports of Additional Settlement Commissioner and Chief Settlement Commissioner filed in such earlier petition had confirmed that transfer of property to petitioner was genuine and had been validly made by competent Settlement authorities on basis of proceedings undertaken by them between years 1960 and 1963---Original record of Settlement Department did not show any tampering, interpolation or rubbing of entries in respect of disputed property as conceded by respondents---Respondents had suspected title of petitioner on basis of revenue record, which did not create title, but merely recorded its transfer having taken place in accordance with law---Title in disputed property came to vest in petitioner by virtue of entries made in record of permanent transfer, which had unjustifiably been ignored or deliberately concealed by respondents---Long intervening period of 31 years between date of permanent transfer and date of attestation of mutation revenue record had evoked a suspicion in respondents, which could have been easily resolved by examining record of Chief Settlement Commissioner (respondent herein) or inspecting file of High Court in such earlier petition---Supreme Court upheld impugned judgment with costs.?

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

----S. 42---Mutation---Evidentiary value---Mutation did not create title, but merely recorded its transfer having taken place in accordance with law.?

Mahmood A. Sheikh, Advocate Supreme Court for Petitioners.

Najam-ul-Hassan Kazmi, Advocate Supreme Court for Respondents.

Kamran Rasool, Ex-Chief Secretary, Punjab and Khalid Sultan, Chief Secretary, Azad Jammu & Kashmir on Court's notice.

Date of hearing: 30th March and 2nd April, 2010.

2010 S C M R 1956

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

KAUSAR PARVEEN and another---Petitioners

Versus

KASB BANK LIMITED and others---Respondents

Civil Petitions Nos. 1171-L and 1172-L of 2009, decided on 4th February, 2010.

Civil Procedure Code (V of 1908)---

----O. XXI, R.85---Constitution of Pakistan (1973), Art.185(3)---Execution of decree---Sale of mortgaged property---Failure to pay purchase money into the court within stipulated time---For satisfaction of decretal amount, property in question was put to auction under the order of the Executing Court---Auction purchasers had failed to deposit balance amount of the auction within specified period of 15 days, but despite that Executing Court approved the sale made through auction against the mandatory provisions of O. XXI, R.85, C.P.C.---Possession of the property in question had not yet been delivered to the auction purchasers---Auction purchasers were directed by Supreme Court to deposit Rs.15,00,000 (Rupees fifteen lac) with the Registrar of the Supreme Court within 15 days, in the meanwhile, the warrant for delivering the possession of the property in question to the purchasers, was stayed and status quo in respect of property in question was ordered to be maintained.

Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmd and another AIR 1954 SC 349; Balram son of Bhasaram v. Main Singh and others AIR 1996 SC 2781 and Afzal Maqsood Butt v. Banking Court No. II, Lahore and others PLD 2005 SC 470 ref.

Sajid Mahmood Sheikh, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2010 SCMR 1959

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUHAMMAD BUX---Appellant

Versus

ABDUL AZIZ and others---Respondents

Criminal Appeal No. 671 of 2006, decided on 29th December, 2009.

(Against judgment dated 30-5-2006 of the High Court of Sindh, Circuit Court, Hyderabad, passed in Criminal Appeal No.83 of 2004).

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Appeal against acquittal---Reappraisal of evidence---Report of Forensic Science Laboratory was in negative in respect of gun allegedly recovered from the possession of accused---Statements of two eye-witnesses were recorded after 3/4 days of the incident---Both eye-witnesses who were not present at the scene of incident, had made improvements in their statements recorded in the court---Statement of the complainant, was unreliable for the reason that he disclosed the motive, which had not been proved in accordance with law---Motive was an important fact, but the prosecution had failed to establish the same---Presence of the complainant at the scene. of incident had not been established from the other evidence available on record, except his own version, which was not enough to be relied upon---High Court had examined the entire evidence and rightly concluded that the witnesses were not present and the case was not free from doubt---In absence of reason to disagree with the High Court, appeal against its judgment was dismissed.

Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432 and Ammenullah v. State PLD 1976 SC 629 ref.

Mehmood A. Qureshi, Advocate Supreme Court for Appellant.

Izhar Alam Faruqi, Advocate-on-Record for Respondent No.1 to 3.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for the State.

Date of hearing. 29th December, 2009.

2010 SCMR 1962

[Supreme Court of Pakistan]

Present: Javed Iqbal and Asif Saeed Khan Khosa, JJ

SALAH-UD-DIN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 7-Q of 2010, decided on 11th May, 2010.

(On appeal from the judgment dated 1-2-2010 passed by the High Court of Balochistan, Quetta in Criminal Appeal No.46 of 2008).

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

----Ss. 9(c) & 29---Criminal Procedure Code (V of 1898), S.103---Constitution of Pakistan (1973), Art. 185(3)---Re-appraisal of evidence---Recovery of narcotics---Official witnesses, evidence of---Charas weighing 20 kilograms was recovered from accused and he was convicted and sentenced to imprisonment for life by Trial Court---Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by accused was that no private witness was associated in recovery proceedings---Validity---Accused was apprehended at the spot from a vehicle on whose search 20 kilogram Charas was found for which F.I.R. was got lodged with promptitude and samples from recovered material were sent to Chemical Expert without any loss of time which were found "Charts" as a result of chemical examination---No enmity was alleged against prosecution witnesses and there was no possibility for false implication without having any ulterior motive which was never alleged---Defence version was rightly discarded which was denial simplciter and did not appeal to logic and reason---Reluctance of general public to become witness in such like cases had become judicially recognized fact and there was no way out but to consider statement of official witness, as no legal bar or restriction had been imposed in such regard---Police officials were as good witnesses and could be relied upon, if their testimony remained un-shattered during cross examination---Provisions of S. 29 of Control of Narcotic Substances Act, 1997 had provided exclusion of S.103, Cr.P.C. during recovery proceedings---Trial Court had appreciated the entire evidence and conclusion arrived at was affirmed by High Court which judgment was well based and did not warrant interference---Leave to appeal was refused.

Hayat Bibi v. Muhammad Khan 1976 SCMR 128; Yaqoob Shah v. The State PLD 1976 SC 53; Muhammad Hanif v. State 2003 SCMR 1237; Muhammad Naeem v. State 1992 SCMR 1617 and Muhammad v. State PLD 1981 SC 635 rel.

Kamran Murtaza, Advocate Supreme Court and Mehta W.N. Kohli, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 11th May, 2010.

2010 S C M R 1965

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

Haji SARDAR MUHAMMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.40-K of 2009, heard on 23'rd November, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-­amd---Trial Court convicted accused and sentenced him to suffer imprisonment for life with fine---High Court, on appeal, set aside judgment of the Trial Court---Complainant was not an eye-witness and prosecution witnesses had supported the incident only, but they did not implicate accused---Evidence of prosecution witnesses revealed that on hearing cries they reached the place of incident and found the deceased lying dead, but they did not see the culprits---Both the eye-witnesses were not declared hostile by the prosecution, meaning thereby that their evidence was accepted---No other ocular testimony was available to connect accused with the commission of the crime---High Court, in circumstances, had rightly held that in absence of ocular testimony the conviction could not be based---No misreading or non-reading of evidence was found by the Supreme Court in the impugned judgment, the same in circumstances did not require any interference---Petition for leave to appeal was dismissed.

Ghulam Qadir Jatoi, for the Petitioner.

Nemo for Respondents.

2010 S C M R 1967

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

MUHAMMAD FEROZ and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Petition No. 1011-L of 2009 and J.P. No.833 of 2009, decided on 3rd December, 2009.

(On appeal from the judgment dated 14-7-2009 passed by the Lahore High Court, Lahore in Criminal Revision No. 614 of 2004, Criminal Appeal No. 727 of 2004 and M.R. No. 423 of 2004).

Penal Code (XLV of 1860)---

----S.302(b)---Constitution of Pakistan (1973), Arts.9 & 18513)---Qatl-e­-amd---Re-appraisal of evidence---Sentence, reduction in---Benefit of doubt---Accused inflicted Sota blow on vital part of deceased who survived for some time---Occurrence took place at 7:30 a.m. and deceased was taken from the place of occurrence to hospital in injured condition, which was situated at seven miles away from the spot---On recommendation of doctor, deceased in injured condition was shifted to District Headquarter Hospital from where he was further shifted to teaching Hospital but he died during the journey---Trial Court convicted the accused and sentenced him to death but High Court converted the sentence into imprisonment for life---Validity---During the journey blood had been oozing from his injury due to which possibility could not be ruled out that deceased died due to extensive bleeding---Reasoning given by High Court in judgment was valid---Each and every case was to be decided on its peculiar circumstances of facts---Judgment passed by High Court reducing sentence of death was in consonance with law laid down by Supreme Court keeping in view Art. 9 of the Constitution---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Kala v. The State PLD 1983 SC 88 and PLD 1983 SC 883 ref.

PLD 1983 SC 883; Muhammad Yaqoob v. The State 2009 SCMR 1273; Dilbar Masih v. The State 2006 SCMR 1801 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 rel.

Sardar Khurram Latif Khan Khosa, Senior Advocate Supreme Court (in Criminal Petition No. 1011-L of 2009) and Nemo for Petitioners (in J.P. No.833 of 2009).

Sardar Khurram Latif Khan Khosa, Senior Advocate Supreme Court for the Complainant (in J.P. No. 833 of 2009).

Alamgir, Additional Prosecutor-General for the State.

2010 S C M R 1970

[Supreme Court of Pakistan]

Present: Zia Perwez and Sarmad Jalal Osmany, JJ

NATIONAL LOGISTIC CELL (N.L.C.)---Petitioner

Versus

HAZRAT ALI and others---Respondents

C.P.L.A. Nos. 125-K, 126-K and 127-K of 2009, decided on 28th April, 2009.

(On appeal from order of High Court of Sindh, Karachi dated 20-11-2008 passed in H.C.As. Nos. 336, 337 and 338 of 2005).

(a) Fatal Accidents Act (XIII of 1855)---

----S. 1---Constitution of Pakistan (1973), Art.185(3)---Fatal accident---Suit for compensation---Suits filed by the plaintiffs were decreed and High Court appeals filed by the defendants were also dismissed---Defendants had raised objection with regard to pecuniary jurisdiction of High Court and contended that one suit was filed for. recovery of Rs.13,30,000 and other suit was filed for recovery of Rs.27,31,600 and both were much below the pecuniary jurisdiction of High Court, which jurisdiction started at Rs.30,00,000; that third suit was filed for recovery of Rs. 68,14,000; that since no order of consolidation of three suits was passed, first two . suits were beyond pecuniary jurisdiction of High Court---Validity---When suits were filed in 1997, High Court had the jurisdiction, which subsequently was amended by Sindh Civil Courts (Amendment) Ordinance, 2002, whereby the pecuniary jurisdiction of civil courts was increased upto Rs.30,00,000; and all proceedings not exceeding such amount pending in the High Court, stood immediately transferred to the District Court for disposal---As all the civil suits arose from the same cause of action, Supreme Court ordered that suit which was filed for recovery of Rs.68,14,000 pending in High Court after promulgation of Ordinance, 2002 was directed to be tagged along with other two suits to avoid conflict of decisions.

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

----O. VIII, R.10---Written statement, non filing of---Contention of Counsel for defendants, that he was not allowed to file written statement, was repelled as sufficient time was given to him to file written statement and on his failure to do so his side was closed---Even otherwise he did examine witnesses of the plaintiffs and also led evidence---No interference being called for in the impugned judgment, leave was refused.

Saalim Salam Ansari, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 28th April, 2009.

2010 SCMR 1972

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ., Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

BASAR---Petitioner

Versus

ZULFIQAR ALI and others---Respondents

Criminal Petition No.86-K of 2009, decided on 1st February, 2010.

(On appeal from order dated 14-7-2009 of High Court of Sindh at Karachi, passed in Criminal Appeal No.220 of 2008).

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

----S. 302(6)/34---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-­amd---Appeal against acquittal---Medical evidence had contradicted rather falsified the ocular testimony---Presence of eye-witnesses at the scene of incident just after the occurrence seemed to be highly doubtful---Torches in the light of which complainant and other eye-witnesses had allegedly identified the accused, were not produced before the police immediately, but after ten days of the incident--Impugned short order passed by High Court had been treated by Supreme Court as final order, because Judge of the High Court had ceased to be the Judge of said court before recording the reasons for acquittal of accused in the case---Petition had no merits and leave to appeal was declined to complainant accordingly.

State v. Asif Adil 1997 SCMR 209; Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859; Fateh Khan v. Boze Mir PLD 1991 SC 782; Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012 and Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

(b) Administration of justice---

----Short orders passed by High Court---Validity---Short orders duly signed and pronounced by Judges of High Court, for all intents and purposes in view of the situation obtaining, are final orders---Party should not be made to suffer on account of an act or omission on the part of court or other State functionaries.

State v. Asif Adil 1997 SCMR 209 ref.

Muhammad Kassim Mirjat, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Mehmood A. Qureshi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondents Nos.1 and 3.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for Respondent No. 2.

2010 S C M R 1976

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

CHIRAGH (decd) through LRs.---Appellant

Versus

IBRAHIM and others---Respondents

Civil Appeal No.809 of 2002, decided on 1st December, 2009.

(Against the judgment dated 23-11-1998 passed by the Lahore High Court, in C.R. No.1723 of 1992).

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

----Ss.12 & 27 (b)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider the contentions of petitioner that respondent utterly failed to prove agreement dated 7-6-1984, as well as subsequent agreements, inasmuch as, he did not place agreements on record and agreement dated 24-12-1985 was produced in evidence by petitioner---Petitioner further contended that respondent never agreed to sell his land measuring 15 Kanal 3 Marla to respondent and suit was illegally decreed in favour of respondent---Petitioner also contended that he was a bona fide purchaser for consideration through registered sale deed and land purchased by him could not, in law, be decreed in favour of respondent, who miserably failed to prove any transaction relating to piece of land in question.

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

----Arts. 185 (3) & 199---Constitutional jurisdiction is discretionary in character.

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

----Art. 185 (3)---Jurisdiction of Supreme Court---Concurrent findings of fact by the courts below---Scope---Supreme Court normally does not interfere in concurrent conclusions arrived at by the courts below, in exercise of power under Art.185 (3) of the Constitution.

(d) Administration of justice---

----Each and every case is to be decided on its own peculiar facts and circumstances.

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

----Ss.12 & 27 (b)---Specific performance of agreement to sell---Principle of bona fide purchaser for valuable consideration without notice---Suit filed by plaintiff was decreed by Trial Court in his favour only to the extent of alternate relief of recovery of money but Lower Appellate Court decreed the same regarding main relief---Judgment and decree passed by Lower Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---Supreme Court could not find any infirmity or illegality in judgment passed by High Court---Admitted facts between the parties were not to be proved--Agreement in favour of plaintiff was clearly indicating intention of parties which was termed as complete sale in all respects between the parties, therefore, owners of suit land had no authority to execute sale deed in favour of predecessor-in-interest of defendants---Agreement to sell in favour of plaintiff by owners was in knowledge of predecessor-in-interest of defendants as it was evident from his own evidence---Lower Appellate Court exercised discretion in favour of plaintiff with cogent reasons after properly re-examining evidence on record which were rightly affirmed by High Court---Appeal was dismissed.

Sana Ullah's case PLD 1996 SC 256; Mian Muhammad Saleem's case 1987 SCMR 624; Mst. Saeeda Akhtar's case PLD 1981 Lah. 623; Khan's case 2005 SCMR 1135; Abdul Aziz's case 2007 SCMR 336 and Nawabzada Raunaq Ali's case PLD 1973 SC 236 ref.

Ch. Ali Muhammad, Advocate Supreme Court for Appellant.

Ghulam Farid Sanotra, Advocate Supreme Court for Respondent No.1.

Date of hearing: 1st December, 2009.

2010 SCMR 1982

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Sair Ali and Anwar Zaheer Jamali, JJ

MUNIR AHMAD---Petitioner

Versus

CHAIRMAN, WAPDA---Respondent

Civil Petition No. 497 of 2010, decided on 22nd July, 2010.

(On appeal from the judgment dated 2142-2009 passed by Federal Service Tribunal, Islamabad in Appeals No.710-712 (R)CS/2006).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Appeal---Limitation---Promotion---Grievance of civil servant was with regard to promotion on the basis of Water and Power Development Authority (Water Wing) Subordinate Scientific Staff Service Rules, 1982, which were acted upon in year, 1983, whereas civil servant assailed the promotion in year, 2006---Validity---Civil servant remained in deep slumber for more than 20 years and it was too late in the day to question the legality of additional note---No plausible justification could be furnished by civil servant for the delay, except that question of limitation was nothing more but a technicality which was an incorrect approach---Question of limitation could not be taken lightly, as in service matters such question should be considered seriously and applied strictly---Civil servant failed to point out any illegality or irregularity in the judgment passed by Service Tribunal and besides that no question of public importance was involved which was sine qua non for invocation of the provisions enumerated in Art. 212 of the Constitution---Leave to appeal was refused.

Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another 1978 SCMR 367; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC Pak 104; Punjab Province v. The Federation of Pakistan PLD 1956 FC 72; Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Chief Kwame Asante v. Chief Kwame Tawia PLD 1949 PC 45; Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and other PLD 1975 SC 331; WAPDA v. Abdul Rashid Bhatti 1989 SCMR 467; Federation of Pakistan v. Muhammad Azim Khan 1949 SCMR 1271; Inspector-General of Police, Balochistan v. Jawad Haider and another 1987 SCMR 1606; WAPDA v. Aurangzeb 1988 SCMR 1354; Muhammad Naseem Sipra v. Secretary, Government of Punjab 1989 SCMR 1149; Muhammad Ismail Memon v. Government of Sindh and another 1981 SCMR 244; Qazi Sardar Bahadar v. Secretary, Ministry of Health, Islamabad and others 1984 SCMR 177; Smith v. East Elloe Rural District Council and others 1956 AC 736; Province of East Pakistan and others v. Muhammad Abdu Miah PLD 1959 SC (Pak), 276; Mehr Muhammad Nawaz and others v. Government of the Punjab and others 1977 PLC (C.S.T.) 165 and Fazal Elahi Siddiqi v. Pakistan PLD 1990 SC 692 rel.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 22nd July, 2010.

2010 SCMR 1986

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Muhammad Sair Ali, JJ

FARHAT HUSSAIN SHAH and another---Petitioners

Versus

THE STATE and others---Respondents

Civil Petition No. 1390-L and 1391-L of 2009, decided on 4th December, 2009.

(Against the order dated 30-10-2009 passed by the Lahore High Court Lahore in Criminal Miscellaneous 13195/B/09).

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, grant of---Principles---Case of further inquiry---Prohibitory clause of S.497, Cr.P.C.---Scope---Pre-arrest bail granted to accused persons was cancelled by High Court and they were taken into custody---Validity---Mere heinousness of allegations should not stand in the way of grant of pre-arrest bail to any accused if he was otherwise qualified to grant of the same---It was' not established beyond reasonable doubt that accused were guilty of offence punishable with death or imprisonment for life, therefore, they were entitled to grant of bail---Provisions of S.498 Cr.P.C. were intended to be used very sparingly in exceptional cases where mala fide was patent or even latent---Mala fide against accused persons was found on surface and prima facie the case of accused did not fall within the category of further inquiry---Order passed by High Court was set aside by Supreme Court---Bail was allowed.

Jamaluddin's case 1985 SCMR 1949 rel.

Raja Zulqarnain, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Petitioners.

Syed Zulfiqar Ali Bukhari, Advocate Supreme Court and Haji M. Rafi Siddiqui for the Complainant.

Alamgir, Additional Prosecutor-General and Zafar Ahmed S.-I., Police Station Gulberg, Lahore for the State.

2010 SCMR 1989

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

THE STATE---Petitioner

Versus

JAVED KHAN---Respondent

Criminal Petition No. 74-K of 2010, decided on 9th September, 2010.

(On appeal from order of Sindh High Court, Karachi dated 1-6-2010, passed in Criminal Bail Application No. 519 of 2010).

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

---S. 497(5)---Control of Narcotic Substances Act (XXV of 1997)---Ss.9(c) & 51(1)---Recovery of narcotic substances---Bail, cancellation of---Death sentence---Narcotic substance weighing 5-1/2 kilograms was recovered from accused who was granted bail by High Court---Validity---Case of accused did not fall within prohibitory clause of S. 497 Cr.P.C., as the offence was covered by section 9 (c) of Control of Narcotic Substances Act, 1997, providing for various sentences, which not only fell within prohibitory clause of S. 497 Cr.P.C. but also attracted the bar contained in section SI(1) of Control of Narcotic Substances Act, 1997, which was specifically made applicable to those offences which provided for punishment of death sentence---Approach of High Court releasing accused on bail was arbitrary, without application of mind and contrary to settled principles of law thus unsustainable---Supreme Court converted petition for leave to appeal into appeal and order admitting accused on bail was set aside and bail application before High Court was dismissed---Appeal was allowed.

Ghulam Murtaza v. State PLD 2009 Lah. 362 ref.

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

----S. S1(1)---Bail---Special provision---Scope---When law makers have provided some special provision in statute to bar the jurisdiction of Special Court established under such enactment, due weight is to be given to such special provisions of law as against general principles governing such cases, when accused approaches Special Court or High Court for grant of bail.

Zafar Ahmed Khan, Additional Prosecutor-General and Mazhar Ali, Chohan, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 9th September, 2010.

2010 SCMR 1994

[Supreme Court of Pakistan]

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

CHIEF MANAGER, STATE BANK OF PAKISTAN, LAHORE and another---Petitioners

Versus

MUHAMMAD SHAFI---Respondent

Civil Petition No.1188-L of 2004, decided on 6th October, 2009.

(Against the judgment dated 19-1-2004 passed by the Federal Service Tribunal, Lahore in Appeal No.421(L)(C.E.)/2000).

State Bank of Pakistan Act (XXXIII of 1956)---

----S. 54---State Bank of Pakistan Staff Regulations, 1999---Constitution of Pakistan (1973), Art.212 (3)---Non-statutory rules---Abating of proceedings---Employee after tendering his resignation, filed application to withdraw the same---Authorities did not allow the employee to withdraw his resignation but Service Tribunal allowed the appeal and permitted him to withdraw his resignation---Validity---Rules framed by Central Board of Directors did not require approval of Government, therefore, State Bank of Pakistan Regulations, 1999 could be termed as internal instructions or domestic rules/regulations having no status of statutory rules/regulations---Case of employee fell within the category of cases which stood abated with the result that proceedings and judgment rendered by Service Tribunal also stood nullified, therefore, petition for leave to appeal and judgment of Service Tribunal stood abated---Supreme Court allowed a period of 90 days to the employee to have recourse to available remedies before competent forum---Petition was disposed of accordingly.

Muhammad Mobeen-us-Salam's case PLD 2006 SC 602; State Bank of Pakistan v. Agha Aurangzeb Civil Petition No.318 of 2005; Cadet College Kohat's case PLD 1984 SC 170; Zia Ghafoor Paracha's case 2004 SCMR 35 and Muhammad Idrees's case PLD 2007 SC 681 rel.

Noor Muhammad Khan Chandio, Advocate Supreme Court and Rehan Nawaz, Advocate Supreme Court, Senior Legal Advisor, State Bank for Petitioner.

Muhammad Ahmed Hasan Khan, Advocate Supreme Court and Respondent in person.

Date of hearing: 30th September, 2009.