YLR 2000 Judgments - Pakistan Legal Archive

Courts in this Volume

Bar Council Tribunal Nwfp
Board Of Revenue Punjab
Federal Shariat Court
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Punjab Bar Council
Quetta High Court Balochistan
Shariat Court Azad Kashmir
Special Appellate Court Sindh
Supreme Court Azad Kashmir

Bar Council Tribunal Nwfp

YLR 2000 BAR COUNCIL TRIBUNAL NWFP 2924 #

2000 Y L R 2924

[N.W.F.P. Bar Council Tribunal]

2000 Y L R 2968

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez Member (Judicial‑1)

MUHAMMAD NAZIR---Petitioner

versus

ANSAR MEHMOOD.---Respondent

R.O.R. No. 313 of 996, decided on 9th May, 2000.

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

‑‑‑‑Ss. 36 & 164‑‑‑Appointment of Lambardar‑‑‑Deputy Commissioner/Collector appointed respondent as Lambardar taking into consideration extent of his holdings in the locality, his educational qualification and freedom from debt or any other liability‑‑Petitioner who was not only a man of 53 years and had only primary educational qualification, but was a defaulter was ignored‑‑‑Order passed by Deputy Commissioner/Collector was upheld by the Commissioner in appeal‑‑‑Validity‑‑‑Unless decision taken by Collector was perverse, against principles of natural justice or was patently bad, Collector's order ought not to be interfered with on basis of slight variation in qualification of candidate‑‑‑Petitioner, who had poorer academic qualification and being defaulter, was rightly not appointed as Lambardar‑‑Concurrent findings of fact of Authorities below based on evidence on record could not be interfered with by Board of Revenue in revision.

PLD 1963 W.P. (Rev PLD 1959 W.P. (Rev 21 and PLD 1962 W. P. (Rev.) 112 ref.

Naveed Anwar and Ch. Muhammad Hussain Gondal for Petitioner.

Khadim Hussar Qasar Respondent.

Federal Shariat Court

YLR 2000 FEDERAL SHARIAT COURT 951 #

2000 Y L R 951

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, J

JUMA KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Criminal Miscellaneous No. 94/Q of 1999, decided on 13th January, 2000.

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

‑‑‑‑S.397‑‑‑Award of concurrent sentence‑‑Validity‑‑‑Court, though was competent under S. 397, Cr. P. C. to direct that in case a person was already undergoing sentence of imprisonment, any sentence passed subsequent thereto would run concurrently with previous sentence, but power so vested had to be exercised by Court sparingly only where imposition of subsequent sentence either would offend any Constitutional or legal provision or direction to make sentences concurrent was necessary to secure ends of justice.

Hasan Shah v. Ghulam Murtaza and another PLD 1970 SC 335; Khawaja Fazal Karim v. The State PLD 1976 SC 461 and Ghulam Muhammad v. Muzammal Khan and another PLD 1967 SC 317 ref.

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

‑‑‑‑Ss. 397 & 561‑A‑‑‑Penal Code (XLV of 1860), 5.397‑‑‑West Pakistan Arms Ordinance (IOC of 1965), S.13‑E‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Award of concurrent sentence‑‑‑Accused had been convicted and sentenced separately in two different cases registered under different enactments at different times committed at different places which had no nexus with each other‑‑‑Trial Courts having already taken lenient view in matter of awarding sentences no impropriety or illegality appeared on basis whereof, a direction to make sentences awarded to accused to run concurrent be made.

Zareen Shah v. Superintendent, Central Jail, Mach 1997 PCr.LJ 1185; Niaz Ali v. The State PLD 1961 (W.P.) Lah. 269; Khan Zaman and others v. The State 1987 SCMR 1382; Juma Khan and another v. The State 1986 SCMR 1573 and Muhammad Ittifaq v. The State 1986 SCMR 1627 ref.

‑‑‑‑S.561‑A‑‑‑Inherent powers of Court‑‑Exercise of‑‑‑Inherent power of the Court can be exercised only for doing complete and substitution justice keeping in view merits of each case.

Hasan Shah v. Ghulam Murtaza and another PLD 1970 SC 335; Khawaja FazalKarim v. The State PLD 1976 SC 461 and Ghulam Muhammad v. Muzammal Khan and another PLD 1967 SC 317 ref.

Qari Abdur Rashid for the State.

YLR 2000 FEDERAL SHARIAT COURT 960 #

2000 Y L R 960

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, J

AFZAAL AHMAD and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 174/I and 182/1 of 1998, decided on 31st January, 2000.

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

‑‑‑‑S.10(3)‑‑‑Appreciation of evidence‑‑Maxim 'falsus in uno falsus in omnibus"‑‑Applicability‑‑‑Maxim 'falsus in uno falsus in omnibus" has no universal application and often the grain has to be sifted from the chaff.

Syed Ali Bepari v. Nibaran‑Mollah and others PLD 1962 SC 502; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Duty of accused‑‑‑Accused is duty bound to place before the Trial Court the true facts of the case if he considers that the version of the occurrence as given by the prosecution witnesses is incorrect.

Hari Narayan Chandra and others v. Emperor AIR 1928 Cal. 27; Leda Bhaget v. Emperor AIR 1931 Pat. 384; Ghanshyam Singh and others v. Emperor AIR 1928 Pat.100; The Public Prosecutor v. Budipiti Devasikamani 106 IC 559; Ashraf Ali v. Emperor 43 IC 241 and Muhammad Nabi Khan and another v. Emperor AIR 1934 Oudh 251 ref.

‑‑‑‑S.10(3)‑‑‑Appreciation of evidence‑‑Accused having raised a special plea in defence of having married with the prosecutrix validly, onus had shifted upon him to prove the same and omission by him to prove the factum of Nikah was fatal to his defence ‑‑‑Prosecutrix had not only fully supported the prosecution case as regards commission of Zina‑bil‑Jabr by the accused time and again in a straightforward manner, but had also denied her Nikah with him‑‑‑Statement of the prosecutrix was fully corroborated by medical evidence and the Chemical Examiner's Report showing her vaginal swabs being stained with semen‑‑‑No enmity or motive had been alleged against the prosecutrix for false implication of accused in the case‑‑‑Conviction and ‑sentence of accused were upheld in circumstances.

Syed Ali Bepari v. Nibaran‑Mollah and others PLD 1962 SC 502; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Hari Narayan Chandra and others v. Emperor AIR 1928 Cal. 27; Leda Bhaget v. Emperor AIR 1931 Pat. 384; Ghanshyam Singh and others v. Emperor AIR 1928 Pat. 100; The Public Prosecutor v. Budipiti Devasikamani 106 IC 559; Ashraf Ala v. Emperor 43. IC 241; Muhammad Nabi Khan and another v. Emperor AIR 1934 Oudh 251; Hukam Zad v. The State 1996 Cr.LJ SC 1548 and Kotan Khan v. The State 1992 MLD 1944 ref.

(d) Criminal trial‑‑‑

‑‑‑‑ Defence plea taken by accused to be proved‑‑‑Special plea raised by accused in his

defence must be established by him by producing evidence in the case.

Hukam Zad v. The State 1996 Cr.LJ SC 1548 and Kotan Khan v. The State 1992 MLD 1944 ref.

(e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.10(3)‑‑‑Appreciation of evidence‑‑Number of witnesses‑‑‑Not the number of witnesses but the quality and credibility of the evidence which is to be considered.

(f) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.10(3)‑‑‑Appreciation of evidence‑‑Victim's testimony‑‑‑Sole testimony of the victim is sufficient to base conviction if the same inspires confidence.

Malik Rab Nawaz Noon for Appellant (in Criminal Appeal No.174/1 of 1998).

Malik Shaukat Hussain ‑ with Mrs. Rukhsani Malik, A.A.‑G. for the State (in Criminal Appeal No. 174/1 of 1998).

Muhammad Munir Paracha for Appellant (in Criminal Appeal No. 182/1 of 1998).

Date of hearing 19th November, 1999

YLR 2000 FEDERAL SHARIAT COURT 1871 #

2000 Y L R 1871

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

LAL BAKHSH alias LALOO‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 3/K of 1999, decided on 9th June, 2000.

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

‑‑‑‑S.2 (a)‑‑‑Adult‑‑‑Proof‑‑‑Proof of a female being adult is either reaching the age of 16 years or having reached puberty‑‑‑Puberty is achieved by girl when she menstruates.

Urdu Book (EHKAM-E-BALOOGHAT) by Mahmood Ahmad Ghazi and Chap. IV by Abdur Raheem Ashraf published by Idara‑I-Tahqeeqat Islami Bainul Qawami Islami University, Islamasbad ref.

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

‑‑‑‑Ss.2(a) & 10(2)‑‑‑Appreciation of evidence‑‑‑Allegation of Zina‑‑‑Plea of valid marriage‑‑‑Age of prosecutrix‑‑‑Proof‑‑-Prosecutrix was alleged to be 13 years of age, whereas according to medical certificate she had attained puberty‑‑‑Trial Court not considering the point of puberty proved by the medical certificate, relied on the oral deposition qua the age of the prosecutrix and convicted the accused to suffer ten years' imprisonment‑‑‑Validity‑‑‑Contents of medical certificate was a relevant evidence which showed that the prosecutrix had attained age of puberty at relevant time ‑‑‑Prosecutrix had married the accused of her free will and when she was brought to the police station and saw her father, she changed her story to please her father and to save the family honour and her life‑‑‑Trial Court had not noticed the provisions of S.2(a) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and had missed the expression "or has attained puberty" appearing after words "sixteen years "‑‑‑Judgment passed by the Trial Court, as result of misreading of law rind evidence therefore, the same was erroneous and wrong and could not be sustained‑‑‑Benefit of doubt was extended to the .accused and the conviction and sentence passed by the Trial Court were set aside, in circumstances.

‑‑‑‑‑ Karo Kari "‑‑‑Meaning‑‑‑ "Karo Kari " is a Vernacular word used for causing death under custom.

Umar Din Qureshi for Appellant.

Suleman Habibullah for the State.

Date of hearing: 11th January, 1999.

YLR 2000 FEDERAL SHARIAT COURT 1897 #

2000 Y L R 1897

[Federal Shariat Court]

Before Ch. Ejaz Yousaf and

Ali Muhammad Baloch, JJ

ZAFAR IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No. 52/K of 1999, decided on 26th May, 2000.

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

‑‑‑‑S.382‑B‑‑‑Benefit of S.382‑B, Cr. P. C.‑‑Grant of‑‑‑Conduct of accused during trial‑‑Relevance‑‑‑In absence of special circumstances disentitling the accused to‑have his sentence, of imprisonment reduced by the period already spent in‑ jail during trial, it is obligatory for the Trial Court to afford benefit of S.382‑B, Cr.P.C. to the accused‑‑Conduct of accused, at trial, can by no stretch of imagination be taken apropos for the grant or refusal of the benefit of S.382‑B, Cr. P. C.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art.3/4‑‑‑Criminal Procedure Code (V of 1898), 5.382‑B‑‑‑Period of detention during trial‑‑‑Failure to give benefit of S.382‑B, Cr.P.C.‑‑‑Accused absconded during trial and Trial Court, while awarding sentence, did not give benefit of S.382‑B, Cr.P.C. Validity ‑‑‑Import of S.382‑B, Cr. P. C., was that the period of detention suffered by an accused as an under trial prisoner had to be treated as a part of substantive sentence and the same could not be withheld unless it was proved on record that the delay in trial was the result of the tactics of the accused‑‑Where there was nothing on record and it had not been proved that abscondence of the accused during trial was for the specific purpose of delaying the proceedings, the accused could not have been deprived of the benefit of S.382‑B, Cr.P.C.‑‑‑Benefit of S.382‑B, Cr.P.C., was awarded to the accused in circumstances.

Ghulam Murtaza v. The State PLD 1998 SC 152; Ali Sher v. The State PLD 1980 SC 317; Muhammad Younus v. The State 1982 SCMR 1022; Muhammad Aslam v. The State 1997 PCr.LJ 307; Akbar Khan v. The State 1991 PCr.LJ 845; Khan Aga v. The State 1991 PCr.LJ 839; Muhammad Asif alias Aasoo Bills v. The State 1999 SCMR 2489; Javed Iqbal v. The State 1998 SCMR 1539 and Bashir alias Bashira v. The State 1998 SCMR 1794 ref.

‑‑S.342‑‑‑Statement of accused‑‑Abscondence‑‑Incriminating piece of evidence‑‑‑Failure to put any question under S.342, Cr.P.C. regarding abscondence‑‑Effect‑‑‑Where abscondence was taken as incriminating piece of evidence the accused should have been questioned with that regard in course of his statement recorded under S.342, Cr. P. C., thereby enabling him to explain his position.

Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983 and Spin Bacha and others v. The State PLD 1990 FSC 57 ref.

(d) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Arts.3 & 4‑‑‑Sentence‑‑‑Where accused was repentant, the sentence and fine recorded against him were reduced in the hope that the indulgence shown to him would bring out in him a law‑abiding and respectable citizen.

Ch. Muhammad Akram for Appellant.

Miss Qamar‑un‑Nisa for the State.

Date of hearing: 26th May, 2000.

YLR 2000 FEDERAL SHARIAT COURT 1973 #

2000 Y L R 1973

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

GHAZI and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.37/L of 2000, decided on 6th April, 2000.

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

‑‑‑‑Ss.10(3) & 16‑‑‑Appreciation of evidence‑Medical evidence did not corroborate allegation of commission of rape on the prosecutrix‑‑‑Prosecution witnesses were not eye‑witnesses and they had neither witnessed the forcible abduction by accused nor the commission of Zina‑‑‑Solitary word on the point of Zina was of prosecutrix, which was not reliable as same had no support from circumstances of the case‑‑‑Complainant had not challenged the finding of Trial Court acquitting the accused from charge of Zina‑‑No evidence of eye‑witness was available with regard to abduction except that of prosecutrix which did not inspire confidence of truth‑‑‑Evidence on record having failed to prove case of abduction and Zina against accused without reasonable doubt, accused were acquitted on benefit of doubt.

Aftab Ahmad Bajwa for Appellants

Mian Abdul Qayyum Anjum for the

Date of hearing: 6th April, 2000.

YLR 2000 FEDERAL SHARIAT COURT 2330 #

2000 Y L R 2330

[Federal Shariat Court]

Before Ch. Ejaz Yousaf and

Ali Muhammad Baloch, JJ

HIDAYATULLAH and another. Appellants

versus

THE STATE‑ ‑Respondent

Criminal Appeal No. 2, of 2000, decided on 16th February, 2000.

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

‑‑‑‑S. 512‑‑‑Evidence recorded in absence of accused‑‑‑Using of such evidence against the accused‑‑‑Scope‑‑‑Where the deponent was dead or was incapable of giving evidence‑ or his attendance could not be procured without any amount of delay, expense or inconvenience, only then depositions recorded under S.512, Cr. P. C. could be used against the accused/absconders on their arrest or as per S.512(2), Cr. P. C. thereof against the person or persons who may subsequently be accused of the offence.

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

‑‑‑‑S. 512(2)‑‑‑Recording of evidence in absence of accused‑‑‑Provisions of S.512, Cr. P. C.‑‑‑Applicability‑‑‑Procedure prescribed under S.512, Cr.P. C. could be applied only to cases of great gravity and could be put in force only under an order of High Court‑‑‑Mere delay, expense or inconvenience in obtaining the presence of the deponent was not a sufficient ground for accepting such deposition as evidence against the person subsequently accused‑‑‑Statement recorded under S.512, Cr. P. C. could not be used against such person who before recording of the same had neither absconded nor were the persons unknown.

‑‑‑‑S. 353‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 133‑‑‑Evidence, recording of‑‑‑Right of cross‑examination of the accused ‑‑‑Scope‑‑The evidence of witnesses in criminal cases had to be recorded in presence of accused as the same had been provided under S.353, Cr. P. C. and the accused had a right of crossexamination under Art. 133, Qanun‑eShahadat, 1984.

(d) Criminal trial‑‑‑

‑‑‑‑ Requirement of law was that conviction or acquittal could only be passed when all mandatory provisions of law were complied with.

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

‑‑‑‑Ss.353 & 512‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 133‑‑‑Recording of evidence in absence of accused‑‑‑Object was to procure and preserve evidence in connection with an offence so that when accused is subsequently apprehended or found and put on trial, such accused may not be able to take advantage of his abscondence or the evidence by lapse of time is not lost or disappeared‑‑‑Recording of such evidence neither facilitates the Court to bypass or ignore the mandatory provisions of law contained in S.353, Cr. P. C. nor the same empowers the Court to devise its own procedure qua examination of witnesses in disregard of the provision of Art. 133 of Qanun‑e‑Shahadat, 1984.

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

‑‑‑‑S. 537‑‑‑Curable defect in trial‑‑Jurisdiction of Trial Court‑‑‑Scope‑‑‑Defects of mere formal character arising from inadvertence can be cured under the provision of S.537, Cr. P. C. and it is never intended to allow a Court to contravene or disobey express provisions of law.

(g) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Penal Code (XLV of 1860), S.458‑‑‑Criminal Procedure Code (V of 1898), S.512‑‑‑Appreciation of evidence‑‑Recording of examination‑in‑chief in absence of accused‑‑‑Trial Court read over the statements of the witnesses in presence of accused, treating the same as examination‑in-chief‑‑‑Validity‑‑‑Such examination‑in‑chief must have had actually taken place in presence of the accused‑‑‑Procedure adopted by the Trial Court was materially different from that prescribed by law and the same could not be approved‑‑‑Where the Trial Court had not adopted the correct procedure in recording the statements of the witnesses, judgment of the Trial Court was not sustainable and the same was set aside‑‑‑Case was remanded to the Trial Court for decision afresh.

Sher Muhammad alias Sher v. The State 1997 PCr.IJ 259; Muhammad Younis v. The Crown PLD 1953 Lah. 321; State of Hyderabad v. Bhimaraya AIR 1953 Hyd. 63; State of Mysore v. Sanjeeva AIR 1956 Mys.l; Kesar Singh and another v. The State AIR 1954 Punj. 286; Chhota Singh Hira Singh v. The State AIR 1964 Punj. 120; Sadeppa Gireppa Mutgi and others v. Emperor AIR 1942 Bom. 37; Manzurul Haque and others v. State of Bihar AIR 1958 Pat. 422 and Zafar Ali and another v. The State and another PLD 1996 Lah. 391 ref.

(h) Oaths Act (X of 1873)‑‑‑

‑‑‑‑S.13‑‑‑Criminal trial‑‑‑Failure to administer oath‑‑‑Effect‑‑‑Mere non-administration of oath to., witnesses can neither invalidate any proceedings nor can it render inadmissible any evidence‑‑‑Such omission does not vitiate the trial.

Sajjad Ahmad and another v. State 1992 SCMR 408; Zaibul Haram v. The State PLD 1991 FSC 1; Shahnawaz v. State PLD 1986 FSC 242 and Haji Hamal and others v. State 1986 PCr.LJ 1121 ref.

Muhammad Aslam Chishti for Appellants.

Qari Abdul Rashid for the State.

Date of hearing: 16th February, 2000.

JUDGMENT

CH. EJAZ YOUSAF, J.‑‑‑This appeal is directed against the judgment, dated 13‑12‑1999 passed by learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali whereby the appellants have been convicted and sentenced as follows:‑‑‑

(i) Under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) to undergo R.I. for four years each and to suffer thirty stripes each.

(ii) Under section 11 of the said Ordinance to life imprisonment each, to pay a tine of Rs.5,000 each or in default thereof to further undergo S.I. for thirty days each plus fifteen stripes each.

(iii) Under section 458, P.P.C. to undergo R.I. for three years each and to pay a fine of Rs.3,000 each or in default thereof to further undergo S.I. for five months each.

Benefit of section 382‑B, Cr.P.C. has, however, been extended to the appellants. All the sentences of imprisonment were ordered to run concurrently.

The case of the prosecution, briefly is that on 5‑5‑1998 complainant Shakar Khan lodged report Exh.P/2‑A with Levies Station Tamboo, wherein, it was alleged that four days ago five persons including the present appellants and one Imdad alias Dago, armed with fire‑arms, forced their entry in his house and on gun point, abducted his wife Mst. Tajo. It was further alleged that the culprits had left behind a brown coloured bag containing a loaded magazine of Kalashnikov and a pair of Chappals (shoes). In the end, it was further alleged in the complaint that since, as per knowledge of the complainant, his abducted wife was taken to the house of one Haji Khuda Bakhsh Umrani, therefore, she be recovered there from.
On the stated allegations a formal F.I.R. bearing No.44 of 1998, was registered under section 10(3)/11 of the said Ordinance on 5‑5‑1998 at Levies Police Station, Tamboo, District Nasirabad and investigation was carried out in pursuance thereof. Record reveals that in the course of Investigation, on 3‑6‑1998, the present appellants were arrested by Tehsildar Tamboo, the Investigating Officer but they were later on released under section 169, Cr.P.C., for want of evidence. However, in the incomplete challan Exh.P/7A/1 both were placed in column No.2 whereas, Imdad and other two culprits, whose particulars were not possible to be ascertained, where shown as absconders.
That on cognizance, case was registered in Court and was proceeded against the absconder accused. On 12‑2‑1999, statement of prosecutrix was recorded and on the same day, in the light of her statement, bail-able warrants against the appellants were issued.
Record reveals that on 21‑4‑1999 both the appellants appeared before the Court and they were released on bail. On 12‑8‑1999 charge was framed to which the accused/appellants pleaded not guilty and claimed trial.
At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused/appellants, produced nine witnesses, in all, where after the appellants were examined under section 342, Cr.P.C., In their statements they denied the charge and pleaded innocence. They did not opt to appear as their own witnesses in terms of section 340(2), Cr.P.C. however, produced two witnesses, namely Ghulam Muhammad son of Haji Faiz and Allah Dina son of Raees Dhani Bakhsh, in their defence.
After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellants and sentenced them to the punishment as mentioned in the opening para. hereof.
We have heard M/s. Muhammad Alam Chishti, Advocate, learned counsel for the appellants, Qari Abdul Rashid, Advocate for the State and have also perused the entire record with their help.
Mr. Muhammad Aslam Chishti, Advocate, learned counsel for the appellants, at the very outset, has contended that two of the material witnesses namely P.W.1 Mst. Tajal, i.e. the complainant and P.W.3 Shakar Khan were examined under section 512, Cr.P.C. in absence of the appellants when proceedings against absconded accused Imdad alias Dagu were being carried out. Subsequently then the appellants were summoned and they appeared in Court, both the afore named witnesses were not examined afresh and were simply tendered for crossexamination, thus, the statements of both P. Ws. 1 and 2, having been recorded in disregard of the settled principles of law, could not have been read in evidence. Learned counsel for the appellants maintained that since statements recorded under section 512, Cr.P.C. can be used against absconders only, therefore, were inadmissible against the present appellants. He submitted that the case in hand even otherwise was not covered by the provision of Article 46 of the Qanun‑e‑Shahadat Order, 1984 because there under too, the statements of those witnesses who have become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense etc. were relevant. It is further grievance of the learned counsel for the appellants that since the above said witnesses, when tendered for crossexamination, were not administered fresh oath, therefore, the omission had vitiated the whole trial. In order to supplement his contentions he has placed reliance on the following reported judgments:‑‑

(1) Sher Muhammad alias Sher v. The State (1997 PCr.LJ 259) wherein a Division Bench of Quetta High Court was pleased to hold that though, Court is empowered to believe evidence of a witness recorded in the absence of accused provided, on the arrest of accused, such witness is dead or incapable of giving evidence or his attendance could not have been procured without an amount of delay or expense which in the circumstances of the case would be unreasonable yet, when after arrest of the accused, attendance of prosecution witnesses was procured and accused was allowed to cross‑examine them on the basis of their examination‑in‑chief, which they had already recorded in first round of the trial, it was held that procedure adopted by trial Court was not recognized by law and it had caused serious prejudice to the accused. Conviction and sentences recorded against the accused in the circumstances, were set aside and the case was remanded.

(2) Muhammad Younis v. The Crown (PLD 1953 Lahore 321) wherein it was held that as certain witnesses were common to all the three cases and when one of those witnesses appeared in the box, and his statement was recorded in one case and then a verbatim copy of his statement was placed on the records of the other two cases, with the addition of such matter brought out in cross‑examination for the special purpose of that particular case and the witnesses were not examined in full in each case, it was held that the procedure adopted was illegal, it vitiated the trial.

(3) State of Hyderabad v. Bhimaraya (AIR 1953 Hyderabad 63) wherein it was held that the evidence recorded in the case of the trial of co‑accused of the absconder or other persons cannot be "ex post facto operation" be treated as evidence recorded under section 512 for the purpose of utilising it at the trial of the absconder when he is apprehended and tried subsequently.

(4) State of Mysore v. Sanjeeva (AIR 1956 Mysore 1) wherein it was held that section 512, Cr.P.C. represents an exception to the provisions of section 33, of the Evidence Act, which itself is an exception to the general rule that only evidence recorded in the proceedings in question and in the presence of the parties can be made use of. Hence the conditions which are required to be fulfilled under section 512, Cr.P.C. have to be strictly construed.

(5) Kesar Singh and another v. The State (AIR 1954 Punjab 286) wherein it was held that witnesses cannot be tendered for cross‑examination without their being examined‑in-chief.

(6) Chhota Singh Hira Singh v. The State (AIR 1964 Punjab 120) wherein it was held that there is no meaning in tendering a witness for cross‑examination by Public Prosecutor in a criminal trial for the simple reason that when a witness has not given statement in examination‑in‑chief, there is nothing in relation to which he is to be cross‑examined, and thus, tendering a witness for cross‑examination almost tantamounts to giving up a witness.

(7) Sadeppa Gireppa Mutgi and others v. Emperor (AIR 1942 Bombay 37) wherein it was held that the practice of tendering for cross‑examination should only be adopted in cases of witnesses of secondary importance.

(8) Manzurul Haque and others v. State of Bihar (AIR 1958 Patna 422) wherein it was held that a material witness should not be merely tendered but should be sworn and asked to give evidence by the prosecution and tendering, if at all, should be confined to witnesses of secondary importance

(9) Zafar Ali and another v. The State and another (PLD 1996 Lahore 391) wherein it was held that after amendment in section 6 of the Oaths Act, 1873 by Federal Laws Revision and Declaration Ordinance, 1981, it was compulsory for Muslim witness to depose on oath.

Qari Abdul Rashid, Advocate, learned counsel for the State having been confronted with the above proposition candidly conceded and submitted that since earlier, statements of P.Ws. 1 and 2 were recorded by the trial Court in the absence of appellants when they were neither declared as absconders nor were present, therefore, on summoning the appellants it was obligatory for the trial Court to record examination‑in-chief of the aforementioned witnesses and thereafter had asked the appellants to cross-examine them. He, however, submitted that non‑administering of oath has not vitiated the trial.
Notwithstanding the fact that learned counsel for the State has not controverted the above contentions, we have given our anxious consideration to the contentions raised by the learned counsel for the appellants. In order to ascertain as to whether or not the statements of P.Ws. 2 and 3 recorded under section 512, Cr.P.C. could have been, in the instant case, taken on‑record, it would be advantageous to have a glance at section 512, Cr.P.C. which reads as follows: ‑‑‑

Section 512. Record of evidence in absence of accused.‑‑‑(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or send for trial to the Court of Session or High Court such person for the offence complained of may, in his absence, examined the witness (if any) produced on behalf of the prosecution, and recorded their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into or trial for, the offence with which he is charged, if the deponent is dead or incapable, of giving evidence or his attendance cannot be recovered without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) Record of evidence when offender unknown.‑‑‑If it appears that an offence punishable with death or imprisonment for life, has been committed by some person or persons unknown, the High Court may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan."

A bare perusal of above provision would show that depositions recorded under section 512, Cr.P.C. can only be used against A the absconders on their arrest or as per sub-clause (2) thereof, against the person or persons who may subsequently be accused of the offence, provided the deponent is dead or is incapable of giving evidence or his attendance cannot be procured without any amount of delay, expense or inconvenience) which, in the circumstances of the case, would be unreasonable. Needless to point out that the procedure provided for under section 512 (2), Cr.P.C. apply only to cases of great gravity and can be put in force only under an order of High Court and that mere delay, expense or inconvenience in obtaining the presence of the deponent is not a 13 sufficient ground for accepting the deposition, evidence against the person subsequently accused. It, thus, proceeds that the statements recorded under section 512, Cr.P.C. cannot be used against those persons who before recording of the same had neither absconded nor were the persons unknown.

Notwithstanding the above it may be pointed out here that in criminal cases, the evidence of witnesses; has to be recorded in the presence of the accused as provided under section 353, Cr.P.C. and the accused has a right of cross‑examination under Article 133 of the Qanun‑e‑Shahadat Order,, 1984. Both section 353, Cr.P.C. as well as Article 133 of 11 the Qanun‑e‑Shahadat Order, 1984 are reproduced below for ready reference and convenience: ‑‑‑‑

"Section 353. Evidence to be taken in presence of accused. ‑‑‑Except as otherwise expressly provided, all evidence taken under Chapters XX,XXI, XXII, and XXII‑A shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.

Art. 133. Order of examination.‑‑(1) Witnesses shall be first examined‑in‑chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re‑examined.

(2) The examination and crossexaminatio6 must relate to relevant facts but the cross‑examination need not be confined to the facts to which the witness testified on his examination‑in-chief.

(3) The re‑examination shall be directed to the explanation of matters referred to in cross‑examination and, if new matter is, by permission of the Court, introduced in re‑examination, the adverse party may further cross‑examine that matter."

It is a requirement of law that conviction or acquittal can only be passed when all mandatory provisions of law are complied with.

Record reveals that in the incomplete challan Imdad Hussain alias Dago alongwith two unknown persons were shown as absconders, whereas, the present appellants were placed in column No.2. Since said Imdad Hussain did not appear before the trial Court, therefore, he was declared a proclaimed offender and was proceeded against. Accordingly, witnesses were summoned for 28‑12‑1998 vide order, dated 12‑12‑1998. Since none of the witnesses was present on the said date, therefore, process was repeated for 12‑1‑1999 and on the said date it was also ordered that notice to the present appellants as well as their sureties be also issued. The case was then adjourned to 3‑2‑1999, however, the statements of the witnesses could not be recorded on that date, as well. On 12‑2‑1999, however, witnesses including the complainant, were examined and it was ordered that since the prosecutrix has implicated the present appellants, therefore, bail-able warrants in the sum of Rs.50,000 against each of them be issued. On summoning the appellants, attendance of the witnesses was procured and appellants were asked to cross‑examine them on the basis of their statements which they had already got recorded. It is not explicit on record as to why the learned trial Judge, instead of following the procedure prescribed by Article 133 of the Qanun‑e‑Shahadat Order, 1984 took on record the statements of P.Ws.2 and 3 recorded by him under section 512, Cr.P.C. and directed the appellants to cross-examine them and that too, without formally re‑administering oath to the said P.Ws. The fact cannot be lost sight of that basically object of section 512, Cr.P.C. is to procure and preserve evidence in connection with an offence so that when accused is subsequently apprehended or found and put on trial he may not be able to take advantage of his absconsion or the evidence by lapse of time is not lost or disappear. It neither facilitates the Court to bypass or ignore the mandatory provision of law contained in section 353, Cr.P.C. nor it empowers the Court to device its own procedure qua examination of witnesses in disregard of the provision of Article 133 of the Qanun‑e‑Shahadat Order 1984. It may be mentioned here that since, the provisions of the Qanun‑e‑Shahadat Order, 1984 (hereinafter referred to as the Order) as per section 1(2) thereof apply to all judicial proceedings in or before any Court, including a Court‑martial, a Tribunal or other Authority exercising judicial or quasi‑judicial powers or jurisdiction except. an arbitrator, therefore, the Court was not at liberty to substitute for the procedure of the "Order". Needless to point out that under section 537, Cr.P.C. too, the defects of mere formal character arising from inadvertence can be cured and it is never intended to allow a Court to contravene or disobey express provisions of law. What to speak of taking on record the earlier depositions, in order to satisfy the requirement of law, in our view, it was not enough for the Court to read over the statements of the witnesses in the presence of the accused, treating it as examination‑in-chief. Such examination must had actually taken place in the presence of the appellants. The procedure, adopted by the trial Court therefore, being materially different from that prescribed by law, cannot be approved.
As regards the next contention of the learned counsel for the appellants that no administration of oath to the afore-named witnesses, before their cross‑examination, has vitiated the trial, it may be mentioned here, that though there is no need to attend the contention because we have already observed that the statements of P.Ws. 1 and 2 were not recorded in accordance with law by the learned trial Court yet, it may be pointed out here, that after amendment brought in section 6 of the Oaths Act, 1873, .by the Federal Laws (Revision and Declaration) 11 Ordinance (XXVII of 1981), though all Courts are now bound to administer oath to the witnesses, in the form of oath prescribed by the High Courts yet, having regard to the express provision of section 13 of the Oaths Act it may be mentioned here that mere non-administration of oath to the witnesses can neither invalidate any proceedings nor can it render inadmissible any evidence and would, thus, not vitiate the trial. In this view we are fortified by the following reported judgments: -‑‑

(1) Sajjad Ahmad and another v. State (1992 SCMR 408), (2) Zaibul Haram v The State (PLD 1991 FSC 1), (3) Shahnawaz v. State (PLD 1986 FSC 242) and

(4) Haji Hamal and others v. State (1986 PCr.LJ (Quetta) 1121).

Since in the instant case the trial Judge has not adopted the correct procedure in recording the statements of the witnesses, therefore, the impugned judgment to our mind, is not sustainable. Consequently the impugned judgment, dated 13‑12‑1999 passed by the learned Additional Sessions Judge, Dera Murad Jamali is set aside and the case with consent of the parties is remanded to the trial Court for its decision afresh in accordance with law within a period of six months from the receipt of this order/judgment, with the direction that P.Ws.1 and 2 namely Mst. Tajal and Shakar Khan be recalled and re‑examined. Thereafter, appellants may also be re-examined under section 342, Cr.P.C. and they be confronted with all the incriminating circumstances/evidence which may come on record through the statements of afore-named witnesses. The appellants shall also be permitted to lead evidence in their defence, with regard thereto or to get recorded their statements within the purview of section 340(2), Cr.P.C., if they choose to do so.

These are the reasons for our short order of the even date.

Q.M.H./M.A.K./21/SC

Case remanded,

YLR 2000 FEDERAL SHARIAT COURT 2785 #

2000 Y L R 2785

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

MAQSOOD AHMED ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No. 75/K of 1999, decided on 25th February, 2000.

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑‑

‑‑‑‑Art. 4‑‑‑Appreciation of evidence‑‑Chemical Examiner's Report being not available at the time of the examination of prosecution witnesses, accused had been deprived of an opportunity of questioning the witnesses about the same‑‑‑Contraband material allegedly recovered from tire accused was sent to Chemical Examiner after more than three weeks and the same was not even shown to have been kept in safe custody for such a long period‑‑‑Investigating Officer had made no efforts, whatsoever, to find out any public witness to join the recovery proceedings in obstinate violation of the law laid down by superior Courts‑‑‑Trial Court had not appreciated the points actually involved in the case and had simply ignored to follow the law for the purpose of deciding it in a just tnanner‑‑Accused was acquitted in circumstances.

Aziz Ahmed v. The State 1995 MLD 1114; Mirza Shah v. The State 1992 SCMR 1475; Gulab v. The State 1992 SCMR 1502; Mst. Meraj v. The State 1994 PCr.LJ 482; Pomi v. The State 1995 MLD 927 and 1992 SCMR 1502 ref.

Mehmood Akhtar Warraich for Appellant.

Prof. Abdul Waheed Siddiqui for the State.

Date of hearing: 25th February, 2000.

YLR 2000 FEDERAL SHARIAT COURT 2807 #

2000 Y L R 2807

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, J

BARKAT‑‑‑Appellant

versus

THE STATE ‑Respondent

Jail Criminal Appeal No. 42/Q of 1999, decided on 5th November, 1999.

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Arts. 3 & 4‑‑‑Criminal Procedure Code (V of 1898), S. 435‑‑‑Benefit of an acquittal to non‑appealing accused, when can be extended‑‑‑Benefit of an acquittal, no doubt, could be extended to the non‑appealing accused as well, but such benefit could not automatically extend to him irrespective of the direction made by the Court‑‑Notwithstanding the legality or illegality of the proceedings, conviction recorded against each of the accused by a Court of competent jurisdiction, unless set aside, would hold the field and an accused could not be released unless a specific direction in such regard was made‑‑‑Convictions and sentences recorded against the accused persons having already been set aside by the Federal Shariat Court, accused who had not filed the appeal earlier was also directed to be released forthwith in that case‑‑‑Appeal was disposed of accordingly.

Mohabbat Ali and another v. The State 1995 SCMR 662; Muhammad Aslam and 5 others v. The State 1997 SCMR 194; The State v. Ghandal PLD 1960 (W.P.) Pesh. 137; Raza Muhammad and another v. The State PLD 1965 (W.P.) Kar. 637; Talib Hussain and another v. The State PLD 1958 (W.P.) Kar. 383; Aurangzeb alias Ranga v. The State 1991 PCr. LJ 1299 and Mst. Ram Piyari v. Emperor 1931 Cr.LJ 731 and AIR 1931 Lah. 199 ref.

Miss Uzma Akhtar Chughtai for Appellant.

Qari Abdur Rashid for the State.

Date of hearing: 5th November, 1999.

YLR 2000 FEDERAL SHARIAT COURT 3024 #

2000 Y L R 3024

[Federal Shariat Court]

Before Ch. Ejaz Yousuf and Ali Muhammad Baloch, JJ

THE STATE through Advocate‑General, N.‑W‑F.P., Peshawar‑‑‑Petitioner

versus

GUL AFZAL‑‑‑Respondent

Criminal Appeal No.44/P of 1997, decided on 20th January, 2000.

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Arts.3/4‑‑‑Criminal Procedure Code (V of 1898), Ss.417(l) & 537‑‑‑Appeal against acquittal‑‑‑Trial Court acquitted the accused on the sole ground that the complainant Police Officer had also investigated the case‑‑‑Such finding by the Trial Court was disapproved by the High Court‑‑‑Trial Court while deciding the case was under obligation to decide the question as to whether or not prejudice was caused to the accused on account of the investigation carried out by the complainant‑‑‑Approach of the Courts in narcotics cases, should be dynamic and technicalities should be overlooked in the larger interest of the country and the public at large and while deciding the case Court should consider the entire evidence as a whole and if it was convinced that the case was proved then conviction should be recorded notwithstanding such procedural defects‑‑‑Illegality or material irregularity in trial would not entitle the accused to acquittal when huge quantity of narcotic was recovered and the offence was heinous‑‑‑Order of acquittal was consequently set aside and the case was remanded to Trial Court for its decision afresh in accordance with law.

1996 PCr. L J 1811; State through Advocate‑General, Sindh v. Bashir and another PLD 1997 SC 408; Munawar Hussain and another v. State 1993 SCMR 789 and Muhammad Mumtaz v. State 1997 SCMR 1011 ref.

Rana Fazal‑ur‑Rehman for Appellant.

Respondent in person.

Date of hearing: 20th January, 2000.

Karachi High Court Sindh

YLR 2000 KARACHI HIGH COURT SINDH 1 #

2000 Y L R 1

[Karachi]

Before Abdul Hameed Dogar and Zahid Kurban Alavi JJ

SAMUEL TENNENT‑‑‑Applicant

Versus

THE STATE through Assistant Director, F.I.A. (C.B.C.), Karachi‑‑‑Respondent

Criminal Bail Application No. 1017 of 1998, decided on 12th November, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860) S. 420/ 468/ 471/ 109‑‑‑ Prevention of Corruption Act. (11 of 1947), S. 5(2)‑‑‑Bail, grant of‑‑‑Belated registration of the case was not plausibly explained by the prosecution‑‑ Final challan had not .so far been produced in convincing incriminating, evidence had presently been collected against the accused‑‑‑Accusations levelled against the accused were not hit by the prohibitory clause of S. 497(I), Cr. P. C. ‑‑‑Accused was an Agent of an International reputed firm and had many business assignments in Pakistan‑‑‑No reasonable grounds for the present were available to believe the accused guilty of the alleged offences which required further inquiry as contemplated under S.497(2). Cr.P.C.‑‑‑Accused was admitted to bail in circumstances.

1983 PCr.LJ 2010; 1995 SCMR 170; 1996 PCr.LJ 1279 and PLD 1988 Kar. 50'2 ref.

Rana M. Shamim for Applicant.

Mubarak Hussain Siddiqui, Deputy Attorney‑General.

YLR 2000 KARACHI HIGH COURT SINDH 23 #

2000 Y L R 23

[Karachi]

Before Muhammad Ashraf Leghari, J

RAM ZAN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1 of 1998, decided on 28th October, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Incident had taken place in the courtyard of deceased's house which was witnessed by members of family of deceased ‑‑‑eye-witnesses whose house was adjacent to the house of deceased were natural witnesses and their testimonies which retrained unrebutted in lengthy cross‑examination, could not be discredited merely because they were related to the deceased especially when no enmity had been suggested by the defence to said eye‑witnesses‑‑‑Motive had been proved‑‑Empty was though not recovered front place of Vardat but recover, of unlicensed gun possessed by accused had been supported by Mashir‑‑‑Two co‑accused were acquitted extending them benefit of doubt as they were though armed with hatchets, but had no committed any overt act and did not use their weapons‑‑‑Case against accused having been fully proved, judgment of Trial Court awarding sentence to accused could not be interfered with.

Muhammad lqbal v. State 1992PCr. LJ 2092; Ghulam Ali v. State 1992 P Cr. LJ 2033; Iqbal Ahmed v. State 1971 P Cr. L J 127; Iqbal alias Bhala and 2 others v. State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Muhammad Ahmed and another v. The State 1997 SCMR 89 and Khairu and another v. The State 1981 SCMR 1 176 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Grain was to be sifted from the chaff and the Court had to find out the truth.

Ghulamullah Mahoto for Appellants.

Rashid Ali .G. Shaikh for the State.

Date of hearing: 14th October, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 26 #

2000 Y L R 26

[Karachi]

Before Muhammad Ashraf Leghari, J

NOOK MUHAMMAD alias NOORAL‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑210 of 1999, decided on 7th October, 1999.

Criminal Procedure Code (V of /898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.377 & 511 ‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). S.18‑‑ Bail, grant of ‑‑‑F.I.R. was belated by about ten days and no explanation was given by complainant for such an inordinate delay‑‑ Place where complainant was informed about incident was situated away about half kilometre from scene of offence‑‑‑No other circumstantial or corroborative piece of evidence was available on record except father and brother of the victim‑‑Mashirnama of Vardat did not reveal any narks of violence on body of victim‑‑‑Offence under S.511, P. P. C., did not come under purview of prohibitory clause contained under S. 497(1), Cr. P. C.‑‑‑Case against accused required further inquiry and prima facie accused being not guilty of any non bailable offence, bail was granted to accused.

Muhammad Hashim Chandio for Applicant.

Altaf Hussain Surahio for the State.

YLR 2000 KARACHI HIGH COURT SINDH 31 #

2000 Y L R 31

[Karachi]

Before Muhammad Roshan Essani, J

Mrs. MUMTAZ BIBI‑‑‑Petitioner

Versus

THE SECRETARY, HOME DEPARTMENT, GOVERNMENT OF SINDH and another‑‑‑Respondents

Civil Petition No. S‑233 of 1999, decided on 20th August, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑Nature and scope‑‑‑Constitutional jurisdiction was purely discretionary and discretion: could not be exercised as a matter of course, but was to be exercised with great care and caution‑‑‑Power under Art. 199 of Constitution of Pakistan (1973) was not intended for deciding disputed question of fact and to thwart the procedural law‑‑‑When no other adequate and efficacious remedy was provided under law, High Court could issue directions for performing anything required law and restrain from doing anything which was not permitted or was contrary to law and also could declare any act as of no legal 'effect which had been done or performed unlawfully‑‑‑Constitutional jurisdiction could not be invoked as a matter of routine, but very sparingly.

Hasan Din Chishti v. Chief Engineer, WAPDA 1970 SCMR 58; Wasimul Ilaque v. Government of Sindh PLD 1975 Kar. 1 and Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600 ref.

Abdul Hameed Lakhani for Petitioner.

Muhammad Iqbal Raad, A. G., Sindh for Respondents.

YLR 2000 KARACHI HIGH COURT SINDH 40 #

2000 Y L R 40

[Karachi]

Before Muhammad Roshan Essani, J

Mst. RUQIA TUFAIL‑‑‑Applicant

Versus

SOHAIL RANA and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No. 402 of 1999, decided on 22nd November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.491 & 561‑A‑‑‑Custody of minor‑‑Relationship between applicant mother and father of minor girl aged three years, were highly strained and suits for dissolution of marriage and restitution of conjugal rights filed by them against each other were pending adjudication before Courts‑‑‑Nothing was alleged about welfare of minor presently in custody of mother and nothing was also alleged about character of mother who was an educated woman‑‑‑Applicant mother, ire circumstances, was best of all persons to keep custody of her minor daughter‑‑‑High Court competent under S. 491, Cr. P. C. to entertain application and pass order thereon, ordered that applicant mother of minor girl was entitled to retain custody of minor.

Nisar Ahmed v. Sultan Zari PLD 1997 SC 852; Mst. Sarwar Kalhoro v. Mukhtiar Ali Kalhoro 1999 PCr.LJ 1711;

Mrs. Shakila Khatoon v. Syed Muhammad Ali Jafery and others 1999 MLD 2264 and Ahmed Jawad Sarwar v. Mst. Zenia 1996 SCMR 1907 ref.

Ashiq Rana for Applicant.

Qamar Muhammad Khan for Respondents.

Muhammad Saleh Panhwar on behalf of A. G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 50 #

2000 Y L R 50

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD IMRAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 128 of 1993, decided on 11th August, 1999.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S.13‑D‑‑‑Appreciation of evidence‑‑‑One sten‑gun alongwith one magazine and six cartridges were recovered from accused for which he could not produce any licence‑‑Recovery was witnessed by two Mashirs who were from Army and had absolutely no reason to implicate accused‑‑‑Said witnesses were independent as they were not subordinate to Investigating Officer‑‑‑Evidence of the witnesses could not be discarded merely for the reason that they were in Government service‑‑‑Situation being such that probability of encounter with police could not be overruled, no one from public would take risk to join police in the process of investigation ‑‑‑Mashirnama of recovery could not be said to have been signed by independent persons‑‑‑Evidence of witnesses did not suffer from any legal or factual infirmity so as to cause any injustice or prejudice to accused‑‑‑Judgment of Trial Court awarding conviction and punishment to accused based on sound judicial principles of administration of criminal justice, and not suffering from any illegality, irregularity and infirmity, could not be interfered with in appeal.

Sadoon Khan v. The State 1997 PCr.LJ 577; Shehbaz Ahmed v. The State 1992 PCr.LJ 1335; Suhrab v. The State 1995 MLD 607 and Zaman Iqbal v. The State 1992 MLD 90 ref.

Shahadat Awan for Appellant.

S. Jalil Hashmi, A.A.‑G. for the State.

Date of hearing: 11th August, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 53 #

2000 Y LR 53

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

Mst. HAJRA‑‑‑Applicant/Accused

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.362 and Miscellaneous Application No. 522 of 1999, decided on 30th August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.8 & 9‑‑‑Bail, grant of‑‑‑Record had not shown that alleged narcotic substance was despatched for chemical analyses and it was nowhere mentioned that any sample of narcotic substance was taken for purpose of sending same to Chemical Analyser‑‑‑Narcotic allegedly recovered from accused was not weighed, but approximate weight had been given‑‑‑Offence with which accused was charged was punishable with imprisonment for seven years‑‑‑Accused was a woman and her case had not proceeded‑‑‑Accused was granted bail, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

M. Iqbal Ahmed for Applicant.

Habib Ahmed, A.A.G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 84 #

2000 Y L R 84

[Karachi]

Before Saiyed Saeed Ashhad, J

WASEEM AHMED alias PASHA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.978 of 1999, decided on 8th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497 Penal Code (XLV of 1860), 5.302/324434‑‑‑Bail‑‑‑Case of accused was at part with that of acquitted co‑accused‑‑Neither the fatal shot was assigned to the accused, nor any specific injury to the prosecution witnesses had been attributed to him by the complainant in the F.I.R.‑‑Accused, prima facie, was not connected with the commission of the offence and his case required further inquiry‑‑‑Mere abscondence of accused, in such circumstances, was not sufficient to disentitle him from claiming the benefit of bail‑‑‑Accused was enlarged on bail accordingly.

Shahadat Awan for Applicant.

Dilawar Hussain for the State.

YLR 2000 KARACHI HIGH COURT SINDH 135 #

2000 Y L R 135

[Karachi]

Before Dr. Ghous Muhammad

and Abdul Ghani Shaikh, JJ

SHAH JAHAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.277 of 1999, decided on 19th April, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4‑‑‑Bail‑‑‑No contraband had been recovered from the possession of accused and it was yet to be established that he had associated himself with co‑accused in trafficking "Charas "‑‑Case against accused, thus, required further inquiry‑‑‑Offence with which the accused was charged was not hit by the prohibition contained in S. 497(1), Cr. P. C. ‑‑‑Accused was granted bail in circumstances.

Shahdat Awan for Applicant.

Habib Ahmed, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 137 #

2000 Y L R 137

[Karachi]

Before Ghulam Nabi Soomro and

Wahid Bux Brohi, JJ

LAL BUX‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 127 of 1999, decided on 10th October, 1999.

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

‑‑‑‑S.9(c)‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4‑‑Constitution of Pakistan (1973), Art.12‑‑Conviction and sentence‑‑‑Competence‑‑‑Case against accused was registered in 1992 under Art. 314 of Prohibition (Enforcement of Hadd) Order, 1979 and he was challaned for said offence on completion of investigation, but was charged, convicted and sentenced under S.9(c) of Control of Narcotic Substances Act, 1997 which Act was not in force at the time of 997 registration of the case‑‑‑None of the provisions of the said Act had retrospective effect‑‑‑No punishment could be awarded for an act not punishable under a law which was non‑existent at the time of alleged commission of offence nor any charge under said enactment be proved‑‑‑Conviction and sentence passed against accused were set aside and case was remanded for trial of same in accordance with law in force at relevant time by a competent Court.

Tariq Cotton Mills Ltd. v. Joint Registrar 1989 CLC 2103 and Abdul Rehman v. The State 1978 SCMR 292 ref.

Sardar Muhammad Ishaque for Appellant.

Habib Ahmed, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 145 #

2000 Y L R 145

[Karachi]

Before Zahid Kurban Alavi, J

BEGOO and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Bail Application No.236 of 1999, decided on 25th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), 5.302/ 337‑H(ii)l 114/ 147/ 148/ 149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail‑‑‑Mostly more than one person used to be involved in the ultimate humiliation and degradation of a woman where individuals were accused as "Kayo and Kari "‑‑‑Fatal shot or final blow of the hatchet at the time of actual incident was always the act of an individual, but all others who had accompanied the said person and were instrumental in killing the deceased, had also shared the collective responsibility‑‑Trial Court, therefore, was duty bound to decide after recording evidence as to who in fact was guilty out of the accused persons charged for the offence‑‑‑No case for bail having been made out at such stage, bail application was dismissed.

PLD 1965 W. P. (Kar.) 76; 1993 SCMR 550; 1996 SCMR 1125; PLD 1996 SC 241; PLD 1989 SC 347; 1999 PCr.LJ 1 and 1996 SCMR 555 ref.

Safdar Ali Bhutto for Applicants.

Rashid Ali G. Shaikh for the State.

YLR 2000 KARACHI HIGH COURT SINDH 152 #

2000 Y L R 152

[Karachi]

Before Muhammad Ashraf Leghari, J

HAKIM ALI and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.26 of 1998, heard on 18th October, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Case against accused had been fully supported by complainant and his son who were both injured in the occurrence‑‑Testimony of witnesses got support from medical evidence, motive and attending circumstances‑‑‑Evidence of such eyewitnesses who were worthy of credence, could not be disbelieved on account of their relationship with deceased because despite being relatives of deceased, they had not been proved having any animosity with accused party so that they could be substituted for the real culprits‑‑‑Case of co‑accused, however, was distinguishable from said accused‑‑Names of said co‑accused did not figure in F.LR. and part assigned to them was that they caused Lathi blows to injured eyewitness‑‑‑Accused, who were found guilty of causing injuries to deceased as well as complainant by independent and reliable ocular evidence, were rightly convicted and sentenced, whereas sentence awarded to co-accused, was set aside giving them benefit of doubt.

Ahmed Khan and 4 others v. The State 1972 PCr.LJ 877; Janan and 3 others v. The State 1971 PCr. LJ 921; Muhammad Ayyub and 3 others v. The State 1974 PCr.LJ 501; Fareed v. The State 1999 SCMR 40; Taj Muhammad and another v. The State 1998 PCr.LJ 1834; Fazal Elahi v. The State 1975 PCr.LJ 310; Abdul Aziz and another v. The State 1993 SCMR 544; Muhammad Ahmed v. The State and others 1997 SCMR 89; Sardar Khan v. The State 1998 SCMR 1823 and Khairu v. The State 1981 SCMR 1176 ref.

Nisar Ahmed Bhatti for Appellants.

Ali Azhar Tunio, Asstt. A.‑G. for the State.

Date of hearing: 18th October, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 157 #

2000 Y L R 157

[Karachi]

Before Rasheed Ahmed Razvi and

Muhammad Ashraf Leghari, JJ

MUHAMMAD AZIM BROHI‑‑‑Applicant

versus

MUHAMMAD and another‑‑‑Respondents

Criminal Miscellaneous Applications Nos.D‑88 and D‑89 of 1999, decided on 27th October, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497(5) & 265‑J‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, cancellation of‑‑‑One of the accused persons who was granted pre-arrest bail had never appeared before police and was all along absconding‑‑‑Police after completing investigation, submitted challan wherein said accused was shown as absconder‑‑‑Absconding accused being fugitive from law, did not deserve any concession for seeking pre‑arrest bail‑‑‑Other accused on very next day of his arrest was put to identification parade where he was perfectly identified by all witnesses including the injured‑‑‑One man died at the spot whereas other sustained serious fire‑arm injuries due to firing of accused persons‑‑Statements of prosecution witnesses recorded under S.164, Cr. P. C. before Magistrate had disclosed that some persons from accused, party had contacted prosecution witnesses, wherein accused confessed their guilt and that accused offered to compensate the complainant party‑‑‑Such statements recorded in presence of accused, could be used as substantive piece of evidence under S.265‑J, Cr.P.C.‑‑‑Main ground‑for grant of bail to accused, which found favour with Trial Court, was that identification parade was held after one month and nineteen days of the occurrence‑‑‑Validity‑‑‑Identification could not be thrown away at bail stage on ground favoured by Trial Court as that would amount to final decision of the case‑‑‑Trial Court otherwise had not taken into consideration that identification parade was held on very next day of arrest of accused‑‑‑Ocular evidence against accused was available‑‑Complainant and prosecution witnesses had no enmity with the accused to implicate them‑‑‑Offence being heinous punishment for the same was death‑‑‑Trial Court, in circumstances, was not justified in allowing pre‑arrest bail to fugitive and post‑arrest bail to other accused‑‑‑Bail granted by Trial Court was recalled and accused who were admitted to bail, were directed to be taken into custody.

Pir Bux v. The State Criminal Bail Application No.10 of 1997; Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380; Shafi Muhammad and others v. The State 1990 PCr.LJ 1157; Muhammad Waryam v. Mahmood alias Mooda and another 1998 PCr.LJ 1304; Riaz v. The State 1998 PCr.LJ 1687; Nabi Bux alias Nabu v. State 1989 PCr.LJ 1123; Muhammad Suleman Dahri v. The State 1993 PCr.LJ 726; Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82; Mst. Reshman Jan v. Abdur Rehman 1991 SCMR 1849; Photo and 2 others v. The State 1986 PCr.LJ 1543 and Shahzaman and 2 others v. The State and another PLD 1994 SC 65 ref.

Muhammad Afzal Soomro for Applicant/Complainant.

Altaf Hussain Surahio for the State.

Muhammad Ayaz Soomro for‑ the Accused..

YLR 2000 KARACHI HIGH COURT SINDH 197 #

2000 Y L R 197

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDULLAH MAGSI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.708 and Miscellaneous Application No. 930 of 1999, decided on 28th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), 5.392/353/324/34‑‑‑Bail, grant of‑‑‑Case of further inquiry ‑‑‑Co‑accused was released on bail by Trial Court‑‑‑Rule of consistency‑‑Applicability‑‑‑Accused was caught red-handed while committing offence of robbery‑‑‑Complainant and other prosecution witnesses had fully implicated the accused in the offence and as such there was no reason for false implication ‑‑‑Name of the accused was mentioned in the promptly lodged F.1.R.‑‑‑Accused had fired at the police and was apprehended after an encounter with police‑‑‑Weapon of offence was recovered from the accused and he was facing a separate trial under S.13‑D, West Pakistan Arms Ordinance, 1965‑‑‑Accused was identified by the complainant in identification parade ‑‑‑Co‑accused was neither caught at the spot nor he was identified by the complainant in identification parade and as such co‑accused was implicated on the statement of the accused‑‑‑Case of co-accused, therefore, was distinguishable from that of the accused‑‑‑Reasonable grounds to believe that accused was guilty of offence charged with and was fully involved in the case‑‑‑Case of accused being not of further inquiry, bail was refused in circumstances.

Faizanul Haque for Applicant.

Arshad Lodhi, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 224 #

2000 Y L R 224

[Karachi]

Before Muhammad Ashraf Leghari, J

AMJAD ALI ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 763 of 1999, decided on 2nd August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497(2)-Penal Code (XLV of 1860), S.392/34‑‑Bail, grant of Case of further inquiry‑‑Principle of consistency‑‑Applicability‑Co‑accused had been released on bail 17 months ago‑Accused was in continuous custody but trial was not concluded‑Robbed property was not recovered from accused and complainant did not identify accused in the Court‑‑‑Accused was not named in the F.I.R. and he was arrested by police on statement of the co-accused released on bail‑‑‑Denial of bail to accused amounted to discrimination and he was to be treated equally with co‑accused‑‑Case of accused thus required further inquiry and as such was entitled to bail on the principle of consistency‑‑‑Bail was allowed to the accused in circumstances.

Muhammad Hanif Kashmiri for Applicant.

Arshad Lodhi, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 231 #

2000 Y L R 231

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

MUHAMMAD JAMIL and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No. 119 and Criminal Appeals Nos. 124 and 140 of 1993, decided on 6th November, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.365‑A/34‑‑‑Sindh Children Act (XII of 1955), Ss. 5, 10 & 68‑‑‑"Children "‑‑Definition‑‑‑Trial of accused having been found to be illegal case was remanded‑‑Accused were children within the meaning of S.5 of the Sindh Children Act, 1955 at the time of incident and they had been sentenced to death in violation of S.68(1) of the said Act‑‑‑Joint trial of accused with adult co-accused was illegal and without jurisdiction in view of S.10 of the Act ‑‑‑Sindh Children Act, 1955 was applicable to cases triable under the Suppression of Terrorist Activities (Special Courts) Act, 1975‑‑‑Convictions and sentences of accused were set aside in circumstances and the case was remanded to Trial Court for fresh trials in accordance with law.

1992 MLD 582; 1985 PCr.LJ 428; 1993 SCMR 1551; 1984 PCr.LJ 2825; 1981 PCr. LJ 299; 1990 PCr. LJ 1756; Punjab Province v. L. Sita Ram and others PLD 1956 FC 157; Ahmed Saeed Kirmani v. Ch.Fazal Illahi and others PLD 1956 (W.P.) Lah. 807; Abdur Rashid v. The State PLD 1957 (W.P.) Lah. 400; Bashir alias Bashir Ahmad and another v. The State 1998 SCMR 1794 and The State v. Syed Qaim Ali Shah 1992 SCMR 2192 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Repeal of a statute by a subsequent statute‑‑‑Principle‑‑‑Subsequent statute in general terms was not to be construed to repeal a previous particular statute unless express words were available to indicate that such was the intention or unless such intention appeared by necessary implication.

Punjab Province v. L. Sita Ram and others PLD 1956 FC 157; Ahmed Saeed Kirmani v. Ch. Fazal Illahi and others PLD 1956 (W.P.) Lah. 807 and Abdur Rashid v. The State PLD 1957 (W.P.) Lah. 400 ref.

‑‑‑‑Statute on criminal law susceptible to two interpretations‑‑‑Principles‑‑‑Where provision of a statute on criminal law is susceptible to two interpretations, the interpretation favourable to accused should be preferred.

Bashir alias Bashir Ahmad and another v. The State 1998 SCMR 1794 ref.

(d) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)‑‑‑

‑‑‑S.4‑‑‑Sindh Children Act (XII of 1955), Preamble‑‑‑Applicability of Sindh Children Act, 1955‑‑‑Scope‑‑‑Sindh Children Act, 1955 is applicable to cases triable by or under the Suppression of Terrorist Activities (Special Courts) Act, 1975.

Nuruddin Sarki, M. R. Syed and Khawaja Naveed Ahmed for Appellants.

Syed Mahmood Alam Rizvi for the Complainant.

Syed Jalil A. Hashmi, Asstt. A.‑G for the State.

Date of hearing: 1st October, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 245 #

2000 Y L R 245

[Karachi]

Before Muhammad Roshan Essani

and S.A. Rabbani, JJ

MUHAMMAD SIDDIQUE‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.53(SAC) of 1993, 98 of 1994 (Sukkur) and 46 of 1995, decided on 13th October, 1999.

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

‑‑‑‑S.11/19(2)‑‑‑Delayed FI.R.‑‑‑Effect‑‑F.LR. which is the foundation of a case, if delayed, is viewed with grave suspicion and in the absence of a plausible explanation of convincing nature is considered to be fatal and is presumed to be a manipulation of prosecution story.

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

‑‑‑‑S.I1/19(2)‑‑‑Appreciation of evidence‑‑Factum of the complainant party despite having known the accused keeping mum for 3/1‑2 months had reflected adversely upon the credentials of the prosecution case and led to the inference of the incident having not occurred as alleged by the prosecution‑‑Statements of prosecution witnesses having been recorded after undue delay and they being highly interested, their testimony did not inspire confidence‑‑‑Mere fact that prosecution witnesses had no apparent reason to falsely implicate the accused did not render their evidence unassailable‑‑‑Statement of the abductee under S.164, Cr. P. C. was not recorded in accordance with law‑‑‑Abductee after her recovery was not got medically examined and the charge of forcible sexual intercourse was not substantiated‑‑‑Case of accused was at par with that of the acquitted co‑accused‑‑‑Accused was extended benefit of doubt and acquitted in circumstances.

Muhammad Nawaz and others v. The State PLD 1983 FSC 508; Nazir Muhammad alias Nazir Ahmed v. The State PLD 1974 Kar. 274; Rasool Bux and 8 others v. The State 1980 SCMR 225; Ijaz Ahmed v. The State 1980 SCMR 892; Muhammad Luqman v. The State PLD 1970 SC 10 and Muhammad Usman v. The State 1992 PCr.LJ 588 ref.

Abdul Haleem Pirzada for Appellant.

Habib Ahmed, Asstt. A.‑G. Sindh for the State.

Date of hearing: 19th May, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 269 #

2000 Y L R 269

[Karachi]

Before Abdul Hameed Dogar and Wahid Bux Brohi, JJ

MUHAMMAD ASHRAF and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No. 20 of 1999, decided on 6th October, 1999.

Anti‑Terrorism (Amendment) Ordinance (IV of 1999)‑‑‑

‑‑‑‑S. 7B‑‑ Appreciation of evidence‑‑‑Threat to put a person in fear of physical injury in order to extort money was sufficient to constitute the offence of "Bhatta "‑‑‑Accused had demanded Rupees ten lacs as "Bhatta " from complainant through a letter handed over to his Chowkidar and by making repeated telephone calls with threats to face the consequences in default of payment‑‑‑Said prosecution version had been fully supported by the prosecution witnesses‑‑‑Said letter delivered to the Chowkidar of the complainant was found to have been written by the accused by the Handwriting Expert‑‑ Accused had been arrested by the police at one and the same time while engaged in making telephone call to the complainant from telephone booth‑‑‑None of the accused was suggested to have any particular enmity either with the complainant or with the police‑‑‑Anti‑Terrorism (Amendment) Ordinance, 1999 having been made effective from 24‑2‑1999, Trial Court was competent to try the case‑‑‑Prosecution witnesses were natural and disinterested witnesses‑--‑Identification parade did not suffer from any defect‑‑‑Conviction and sentence of accused were upheld in circumstances.

Sheikh Liaquat Hussain and others v. The Federation of Pakistan and others PLD 1999 SC 504 ref.

Nishan Ali Baig for Appellants.

Syed Jalil A. Hashmi, Asstt. A.‑G. for the State.

Date of hearing; 29th September, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 289 #

2000 Y L R 289

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

INAMUL HAQUE‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos. 1184 and 1194 of 1999, decided on 24th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (1d,V of 1860), S. 409/420/ 468/471/4681471/477/477‑AI34 ‑‑‑ Bail, grant of‑‑‑Only serious aspect of the case was that a huge amount had been embezzled and loss caused to Bank fell to tune of over rupees 32 Million‑‑‑Gravity of offence looked from the point of view of the quantum of amount embezzled, was not the sole determining factor for deciding bail plea‑‑‑Tentative assessment was to be made by Court while examining bail plea without probing into merits of the case restricting itself to material placed before it by the prosecution, to see whether some tangible evidence was available against accused which, if left unrebutted, could lead to inference of his guilt‑‑‑No evidence had been discovered to indicate that accused was beneficiary of embezzled money and cheques did not bear signatures of accused in any capacity‑‑‑Investigating Agency had not been able to collect tangible evidence direct in nature to involve accused in drawing those cheques and disbursing the amount or receiving same‑‑‑Role assigned to accused was that he being President/Chief Executive of Bank, delegated powers to co-accused, allegedly involved directly in commission of offences‑‑‑Prosecution was not able to state firmly that documentary evidence collected against co‑accused had disclosed direct participation of the accused‑‑‑No progress was made in trial despite interim challan was submitted long before‑‑‑Role of accused towards commission of offence calling for further inquiry, accused was granted bail.

Manzoor and 4 others v. The State PLD 1972 SC 81; Brig. (Retd.) Sahib Dad Khan v. The State and 2 others 1977 PCr.LJ 676; Abid Rashid and others v. The State 1995 MLD 1829; Ch. Shujat Hussain v. The State 1995 SCMR 1249; Government of Sindh v. Raisa Farooq 1994 SCMR 1283 and Saeed Ahmed's case 1996 SCMR 1132 ref.

Khawaja Naveed ‑Ahmed for Applicant.

S. Tariq Ali, Standing Counsel alongwith Ghulam Farooq, Acting Deputy Director, F.I.A. and Israr Ali, Law Officer, F.I.A. (Banking Circle) for the State.

YLR 2000 KARACHI HIGH COURT SINDH 334 #

2000 Y L R 334

[Karachi]

Before Muhammad Ashraf Leghari

and Muhammad Roshan Essani, JJ

THE STATE through Advocate‑General, Sindh‑‑‑Appellant

versus

DILDAR and 2 others‑‑‑Respondents

Criminal Acquittal Appeal No. 157 of 1999, decided on 12th November, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.365‑A/392‑‑‑Criminal Procedure Code (V of 1898), S.417(1)‑‑‑Appeal against acquittal ‑‑‑Abductees had not supported the prosecution case and had refused to identify the accused‑‑‑Remaining witnesses were not material and the circumstantial evidence was not sufficient to convert the judgment of acquittal of accused unto that of conviction‑‑Impugned judgment was neither perverse or illegal, nor the evidence on record led to the guilt of accused‑‑‑Trial Court had given sound and cogent reasons based on principles governing the safe administration of criminal justice in support of acquittal of accused‑‑Appeal against acquittal of accused was dismissed in limine accordingly.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Yar Muhammad and 3 others v. The State 1992 SCMR 96; Imran Hussain v. Amar, Arshad and 2 others 1997 SCMR 438 and State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

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

‑‑‑‑S.417‑‑‑Appeal against acquittal‑‑‑Principles to deal with the appeals against acquittal of accused enumerated.

Following are the principles to deal with the appeal against acquittal:

(i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;

(ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence, it may be tempted to come to a different conclusion;

(iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;

(iv) that unless the judgment of acquittal is perverse and the reasons, therefor, are artificial and ridiculous, the Supreme Court would not interfere; and

(v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 ref.

S. Jalil A. Hashmi, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 338 #

2000 Y L R 338

[Karachi]

Before Muhammad Ashraf Leghari, J

ISMAIL ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 198 of 1999, decided on 7th October, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11116‑‑Bail ‑‑‑Initial version of abduction as narrated by the complainant in the F.I.R. was materially contradicted by the prosecutrix in her statement recorded under S.164, Cr.P.C.‑‑‑Incident did not appear to have taken place in the manner as stated in the F. I. R. ‑‑‑Record had shown the prosecutrix to be a consenting party‑‑‑No reasonable grounds were available to believe the accused to be guilty of any non‑bailable offence and his case needed further inquiry‑‑‑Accused was admitted to bail in circumstances.

Muhammad Raheem and another v. Baita Gul and another PLD 1994 SC 86 and Muhammad Jaffer v. The State 1987 PCr.LJ 1339 ref.

Muhammad Ayaz Soomro for Applicant.

Altaf Hussain Surahio for the State.

YLR 2000 KARACHI HIGH COURT SINDH 360 #

2000 Y L R 360

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD AKRAM alais BHOLA‑‑‑Petitioner

versus

GOVERNMENT OF SINDH through Secretary Home Department, Tughlaq

House, Karachi and 2 others‑‑‑Respondents

Constitutional Petition No.S‑526 of 1999, decided on 15th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.154‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Registration of F.I.R.‑‑‑On refusal to give "Bhatta" police took the complainant to police station, got his head, beard and moustaches shaved, abused and maltreated him as a result ‑ of which he received injuries on different parts of his body and confined him in police lockup‑‑‑Complainant was, however, released on the approach of his sister to the Court of Magistrate who referred him to Civil Hospital for medical examination and also directed him to lodge a report against the accused police officials ‑‑‑Complainant submitted his complaint to the S.H.O. concerned and also made applications to higher Authorities including the 1.‑G. Police, but no action had been taken by them on the same‑‑‑Medical Certificate issued by the Medico‑legal Officer, Civil Hospital, showing injuries sustained by the complainant was available on record‑‑‑F.I.R. proposed to be filed by the complainant, prima facie, had revealed the commission of a cognizable offence‑‑‑S. H. O. was consequently directed to register the case with the direction to S.S.P. to ensure that the investigation was handled by an impartial and unbiased person as the conduct of police officials was involved in the case.

Mohabat Khan v. Atta Muhammad and others 1985 PCr.LJ 360; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 and Jamshed Khan and another v. Government of Sindh and others 1999 PCr.LJ 512 ref.

S.A. Ghaffar for Petitioner.

Muhammad Sarwar Khan, Addl A.‑G., Sindh for Respondents.

YLR 2000 KARACHI HIGH COURT SINDH 393 #

2000 Y L R 393

[Karachi]

Before Muhammad Roshan Essani, J

RAFIQ NASIR‑‑‑Petitioner

versus

THE STATE and 4 others‑‑‑Respondents

Criminal Miscellaneous No.311 of 1999, decided on 15th November, 1999.

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

‑‑‑‑Ss.561‑A & 133‑‑‑Quashing of orders‑‑Causing of nuisance by installation of machines creating tremors and vibrations resulting in cracks in the walls of the residential houses adjacent to the workshop‑‑Contention that since the applicant was carrying on trade under a licence, proceedings against him under S.133, Cr. P. C. were not maintainable, was repelled‑‑‑Issuance of licence did not authorise the licensee to cause nuisance and trouble to the public‑‑‑Magistrate under S.133, Cr. P. C. had the jurisdiction to regulate the manner in which a trade was to be conducted in such a way as not to be nuisance to the community‑‑‑Applicant had carried on trade not only in .violation of the conditions of the licence issued to him, but had also caused nuisance by installing hammer machines which were causing heavy tremors and vibrations resulting in cracks in the walls of the residential houses adjacent to the workshop‑‑‑Operation of such machines was injurious to human life and also for the environment‑‑‑Impugned concurrent orders of the two Courts below did not suffer from any legal or factual infirmity and the same were upheld accordingly.

Haji Abdul Aziz and others v. Haji Dost Muhammad and 5 others 1999 PCr.LJ 31; Salamat Ali v. Deputy Commissioner 1997 MLD 2122; Ghulam Rasool v. Haji Allah Wasaya 1995 PCr.LJ 385; Rajagopala Chettiar v. Samdum Begum AIR 1943 Mad. 357; Muhammad Shafique v. Abdul Hayee 1987 SCMR 1371; Naik Muhammad v. Yar Muhammad 1971 PCr.LJ 927; Muhammad Afzaluddin Beswas v. Diwi Jandra Nath Das PLD 1965 Dacca 366; The State v. Muhammad Jamil and others PLD 1960 (W.P.) Kar. 555; Inayatullah v. Abdul Majid 1969 PCr.LJ 300 and C.V. Multhuvelappan v. K.K. Narayan Yanan Nair AIR 1964 Ker. 252 ref.

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

‑‑‑‑S. 561‑A‑‑‑Inherent powers of High Court‑‑‑Concurrent findings of lower Courts, quashing of‑‑‑Concurrent findings of the Courts below can be set aside very sparingly on having been found to have caused gross injustice.

Mehmood Ahmed Khan for petitioner.

Muhammad Jamil for Respondents Nos.2 to 4.

Arshad Lodhi, A.A.‑G. for the State,

YLR 2000 KARACHI HIGH COURT SINDH 488 #

2000 Y L R 488

[Karachi]

Before Muhammad Roshan Essani, J

Mrs. ARIFA AMJAD and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 51, Miscellaneous Applications Nos. 155 and 156 of 1999, decided on 21st August, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.494/495‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(1)‑‑‑Criminal Procedure Code (V of 1898), 5.561‑A‑‑‑Quashing of proceedings‑‑Female accused being major and sui juris had contracted marriage with co‑accused without any duress coercion or compulsion against the wish and to the annoyance of her parents‑‑‑Inordinate delay of about 1‑3/4 months in lodging the F.I.R. was not plausibly explained‑‑‑Female accused initially had been shown and treated as a prosecution witness, but on her refusal to support the prosecution she was made a co‑accused in the case‑‑‑Sections 494 & 495, P. P. C. were non-cognizable and S. 10(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had been wrongly applied to the circumstances of the case‑‑‑No offence whatsoever was made out against the accused and the charge against them was not substantiated‑‑‑Courts could not be privy to the ipse dixit of the persons still believing in the false notions of the pre‑Islamic days and could not act in aid of those who were acting contrary to the Injunctions of Holy Qur'an and Sunnah‑‑‑Where the spouses were pubert and sui juris and their act was not in defiance of the commands ordained by God, they could not be victimized due to family pride‑‑Continuance of proceedings against the accused in the case amounted to abuse of the process of Court in circumstances and the same were ordered to be quashed accordingly.

(b) Muhammadan Law‑‑‑

‑‑‑‑Marriage‑‑‑Islam enjoins that when a male or a female attains puberty/majority, they are free to contract marriage according to the rites/canons of Islam and there is no prohibition on solemnization of marriage.

Abdul Waheed Katpar for the Applicant.

Syed Jalil Ahmed Hashmi, A.A.‑G, for the State.

YLR 2000 KARACHI HIGH COURT SINDH 503 #

2000 Y L R 503

[Karachi]

Before Rasheed Ahmed Razvi, J

Messrs EASTERN SERVICES (PVT)

LTD. COMPANY‑‑‑Plaintiff

versus

DIRECTOR‑GENERAL, FEDERAL

GOVERNMENT EMPLOYEES HOUSING

FOUNDATION and another‑‑‑Defendants

Suit No 677 and Civil Miscellaneous Application No. 4609 of 1996, decided on 3rd November, 1999.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.14(1) & 14(2)‑‑‑Sindh Chief Court Rules (O.S.), R.282‑‑‑Filing of award without depositions and other documents‑‑‑Objection to arbitration proceedings was raised to the effect that one of the parties was condemned unheard‑‑‑Non‑suiting one of the parties on the basis of single default in appearance‑‑Validity‑‑‑Where one of the parties to the proceedings had raised such an objection, then in order to resolve such controversy, it was necessary that a reference be made to the case file of the arbitration proceedings‑‑‑Was not just and fair on the part of the Arbitrator to non‑suit the plaintiff for its single default in appearance, when it had forwarded reasons through telegram for its inability to reach within time, and thereafter dismissing the claim of the plaintiff‑‑‑Errors were apparent on the face of record which fully warranted interference by Court‑‑‑Award was set aside and remanded back to the Arbitrator to conduct the proceedings in accordance with the provisions of Arbitration Act, 1940.

Messrs Overseas Cotton Company v. Messrs S.M. Fuzail & Company PLD 1958 (W.P.) Kar. 27; Messrs M.A. Rashid & Company v. The Punjab Small Industries Corporation and another PLD 1986 Lah. 254; Progressive Methods (Pvt.) Limited v. Shaheen Air Port Services and others 1998 CLC 1638 and Halsbury's Laws of England, 4th Edn., Vol. II, p.306, para. 590 ref.

S. Irtiza Hussain Zaidi for Plaintiff.

Defendants (absent).

Date of hearing: 3rd November, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 509 #

2000 Y L R 509

[Karachi]

Before Muhammad Roshan Essani

and Muhammad Ashraf Leghari, JJ

ABDUL HADI‑‑‑Appellant

versus

WALI MUHAMMAD and 3

others‑‑‑Respondents

Criminal Acquittal Appeal No. 99 of 1998, decided on 25th August, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑ Eye‑witnesses were brothers inter se and closely related to the deceased‑‑‑Ocular evidence militated against medical evidence‑‑ No independent witness had been examined by the prosecution from neighbourhood to support its case‑‑‑No crime empty having been recovered by the police from the scene of offence recovery of guns from the accused was of no consequence which had not been even sent to Ballistic Expert‑‑‑No illegality, irregularity or perversity causing injustice or miscarriage of justice had been pointed out in the impugned judgment acquitting the accused which was based on sound judicial principles of administration of criminal justice and needed no interference‑‑‑Appeal against acquittal of accused was dismissed accordingly app.

Yar Muhammad and 3 others v. The State 1992 SCMR 96 ref.

Shoukat Hussain Zubedi for Appellant.

Ainuddin, A. A. ‑G. for the State.

Date of hearing: 18th August, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 549 #

2000 Y L R 549

[Karachi]

Before Rasheed Ahmed Razvi, J

A. MEREDITH JONES & CO. LTD ‑‑‑Plaintiff

versus

USMAN TEXTILE MILLS

LIMITED‑‑‑Defendant

Judicial Miscellaneous No. 22 of 1997 and Civil Miscellaneous Application No. 31.17 of 1998, decided on 31st August, 1998.

(a) Arbitration (Protocol and Convention) Act (VI of 1937)‑‑‑

‑‑‑‑Ss.--5 & 6‑‑‑Sindh Chief Court Rules (O.S.), R.294‑‑‑Application to make award rule of the Court‑‑‑Nature‑‑‑Application for making the award rule of Court to be treated as suit‑‑‑Objection was raised by respondent that proceedings had been wrongly numbered as "Judicial Miscellaneous Application" instead of a suit‑‑‑Validity‑‑‑Such proceedings were in the nature of suit under S.5(2) of Arbitration (Protocol and Convention) Act, 1937‑‑‑Any application so filed would be in writing and would 6e numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants‑‑Decree would follow under S.6(2) of Arbitration (Protocol and Convention) Act, 1937 upon pronouncement of judgment in such proceedings‑‑‑Petition or application filed for enforcement of an award was also to be treated as a "suit".

Messrs Continental Grains Co. v. Messrs Naz Brothers 1982 C L C 2301; Ralli Broihers & Company Ltd. v. Muhammad Amin Muhammad Bashir Ltd. 1987 C L C 83; Nan Fung Textiles Ltd., Hong Kong v. H. Pir Muhammad Shamsuddin P L D 1979 Kar. 762; Marines Limited v. Aegus Shipping Co. Ltd. and 4 others 1987 C L C 1299; Arbitration between Dampskibsseiskabet Nordon Aktieselskale v. Ahmad, Shipping Lines Limited, Wallace Road, Karachi PLD 1983 Kar. 247; Messrs European Grain and Shipping Ltd. v. Messrs Polychem Company Ltd. PLD 1990 Kar. 254; Pir Ghulam Rasul Shah, and another v. Chief Land Commissioner, Lahore and others PLD 1967 Kar. 618; S. Muhammad Din & Sons Ltd. v. Assistant Director, Labour Welfare (Conciliation), Lahore Region, Lahore and others PLD 1968 Lah. 1012; Haji Hashmatullah and 9 others v. Karachi Municipal Corporation' and 3 others PLD 1971 Kar. 514; Hirjina Salt & Chemicals (Pak.) Ltd., Karachi v. The Union Council, Gharo and another PLD 1972 Kar. 145; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 and Hirjina Salt Chemicals (Pak.) Ltd. v. Union Council, Gharo and others 1982 SCMR 522 ref.

(b) Arbitration (Protocol and Convention) Act (VI of 1937)‑‑‑

‑‑‑‑S.3‑‑‑Sindh Chief Court Rules (O.S.), 8.294‑‑‑Award, making rule of Court‑‑Application seeking stay of proceedings‑‑Nature‑‑‑Any such application filed under S.3 of Arbitration (Protocol and Convention) Act, 1937, was to be treated as "Judicial Miscellaneous Application".

Muhammad Arif Khan for Plaintiff.

Naraindas C. Motiani for Defendant.

YLR 2000 KARACHI HIGH COURT SINDH 556 #

2000 Y L R 556

[Karachi]

Before Muhammad Roshan Essani, J

Khawaja SOHAIL‑‑‑Appellant

versus

Mst. KHATOON HADI‑‑‑Respondent

First Rent Appeal No. 271 of 1995 and Civil Miscellaneous Application No. 359 of 1998, decided on 23rd August, 1999.

Limitation ‑‑‑

‑‑‑‑Delay‑‑‑Condonation of‑‑‑Bar of limitation would create valuable right in favour of parties‑‑‑Delay of each day was to be explained for condonation of delay‑‑Whoever would sleep over his right, was not entitled to relief beyond period prescribed by law.

S. Mahmood Hyder v. M/s. Alliance Enterprises PLD 1985 Kar. 691; Rehmatullah and 2 others v. Lal Muhammad PLD 1986 Quetta 121; Mst. Zubaida Mumtaz Begum and others v. Mst. Ikram Jan and another 1990 SCMR 1025 and Muhammad Ibrahim and another v. Taslimul Hassan 1982 CLC 264 ref.

Khawaja Naveed Ahmed for Appellant.

Aziz A. Shaikh and Miss Tayyaba Jabeen for Respondent.

YLR 2000 KARACHI HIGH COURT SINDH 584 #

2000 Y L R 584

[Karachi]

Before Ata‑ur‑Rehman, J

PARYALDAS and others‑‑‑Petitioners

versus

MUHAMMAD.BUX and others‑‑‑Respondents

Civil Revision No. 6 of 1994, decided on 30th August, 1999.

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

‑‑‑‑O. VII, R. 7‑‑‑Relief, grant of‑‑‑Court is empowered to grant such relief as justice of case demands‑‑‑Whole of the plaint must be looked into for determining the relief asked for, so that substance rather than the form should be examined.

Iqbal Qureshi v. Daibakalal Bask PLD 1965 Dacca 439 ref.

(b) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.39‑‑‑Civil Procedure Code (V of 1908), O. VII, R. 7‑‑‑Hindu Law‑‑‑Cancellation of sale‑deed‑‑‑Suit property was a joint Hindu property and the respondents/vendees having knowledge of the same purchased same from the respondent/head of family (Karta)‑‑Execution of such sale‑deed had deprived the petitioner of their lawful rights to the suit property‑‑‑Suit for cancellation of sale deed and for possession of the suit property was filed‑‑‑Petitioners in their plaint failed to ask for the relief of cancellation of sale deed‑‑Effect‑‑‑Non‑granting a relief of cancellation of the sale‑deed, though the same had not been specifically prayed for was not appropriate‑‑‑Finding of Lower Appellate Court was based on misreading of evidence and Court had misapplied and misinterpreted the law‑‑‑Finding of the Lower Appellate Court was set aside in addition to the relief granted by the Trial Court, the sale‑deed was cancelled under S. 39, Specific Relief Act, 1877‑‑‑Petitioners were directed to deposit required court fees accordingly.

Noorunisa v. Abdul Salam and others 1983 SCMR 1012; Ram Narain Kaul v. Mst. Bishan Rani AIR 1938 Lah. 321; Asa Ram and others v. Jagan Nath and others AIR 1934 Lah. 563; Asif Husain v. Mushtaq Ahmed and others AIR 1942 Lah. 209; Taj Muhammad and others v. Muhammad Iqbal and others 1986 SCMR 276; Mst. Amna's case, v. 1990 CLC 1492; Nisar Muhammad Khan v. Abdullah Khan and others PLD 1965 SC 690; Summer Gul v. Central Government and others PLD 1986 SC 35; Iqbal Qureshi v. Daibakalal Bask PLD 1965 Dacca 439; Syed Hussain Shah v. Shamshad Ali Shah PLD 1964 SC 143; Usman and others v. Haji Noor Muhammad Jamot PLD 1993 Kar.23; .Mian Jamal Shah v. Member, Election Commission PLD 1966 SC 1; Chaman Ara Begum v. Jamal Ali PLD 1968 Dacca 190; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Moolchand and others v. Muhammad Yousuf PLD 1994 SC 462; Nasiruddin v. Provinces of Pakistan PLD 1969 Dacca 363; Syed Ali Hussain Shah v. Improvement Trust, Multan PLD 1973 Note 152 at p.232; Muhammad Mushtaque and others v. Arif Hussain and others 1989 MLD 3495; Sardara Bibi and others v. Muhammad Amin 1987 CLC 1653; Muhammad Nazir v. Mst. Nasir Sultana 1995 CLC 1745; Dr. Faqir Muhammad v. Major Ameer Muhammad 1982 SCMR 1178; Binyameen and 3 others v. Choudhry Hakim and others 1996 SCMR 336; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Sudhangshu Bimal Niswas v. Chaudhry MD. Mustafa 1968 SCMR 213; Mian Iqbal Mahmood Banday v. Muhammad Saddiq PLD 1995 SC 351; Dhani Bux v. Mst. Mahmoodunisa PLD 1981 Kar. 650; Sharafat Khan and others v. Hussain Shah and others 1998 CLC 1869; Waris Khan and 2 others v. Mst. Zainab Nisa and others 1999 SCMR 526; Habibullah v. Abdul Hakim and 11 others 1997 SCMR 1139; Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar.202; Ilamuddin v. Syed Sarfraz Hussain and 5 others 1999 CLC 312; Secretary to Government West Pakistan (now N.W.F.P.), Department of Agricultural and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242 ref.

Lachhmandas G Rajput for Petitioners.

Rehmat Ali Rajput for Respondents.

YLR 2000 KARACHI HIGH COURT SINDH 597 #

2000 Y L R 597

[Karachi]

Before Muhammad Roshan Essani, J

ABDUL SAEED‑‑‑Petitioner

versus

S.H.O., POLICE STATION, PIRABAD

WEST and 2 others‑‑‑Respondents

Civil Petition No. S‑315 of 1999, decided on 25th November, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Disputed question of fact‑‑Recovery of possession of house from a Government Department‑‑‑Petitioner claimed to be the owner of a house which was under illegal possession of Police Department‑‑Such fact was denied by the Department‑‑Effect‑‑‑Constitutional jurisdiction was purely discretionary and discretion could not be exercised as a matter of course but the same was to be exercised with great care and caution‑‑‑Power under Art. 199 of the Constitution was not intended for deciding the disputed questions of fact and thwart the procedural law‑‑‑Where adequate and efficacious remedy by way of appropriate proceedings before a forum provided under law was available to the petitioner, Constitutional jurisdiction could not be invoked in the case‑‑‑Petition being not maintainable was dismissed in circumstances.

Hassan Din Chishti v. Chief Engineer, WAPDA 1997 SCMR 51; Wasimul Haque v. Government of Sindh PLD 1975 Kar. 1 and Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑No other adequate and efficacious remedy available‑‑‑Effect‑‑‑Where High Court was satisfied that no such remedy was available then an appropriate writ could be issued, directing performance of anything which was required by law and pass orders restraining a person from doing anything which was not permitted by law or was contrary to law and High Court in exercise of jurisdiction under Art. 199 of the Constitution could also declare any act to be of no legal effect being unlawful.

Imdad Hussain Kazi for Petitioner.

S. Muzaffar Imam for Respondent No.5.

Muhammad Saleh Panhwar on behalf of A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 637 #

2000 Y L R 637

[Karachi]

Before Rasheed Ahmad Razvi, J

MUHAMMAD HASSAN ‑‑‑Applicant

versus

DHARAMDAS and others‑‑‑Respondents

Civil Revisions Nos.44 of 1978, 108 of 1987 (Hyd.) and 26 of 1994, decided on 15th November, 1999.

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

‑‑‑‑O.XLI, R.22 & S.115‑‑‑Failure to file cross‑objections in appeal‑‑‑Judgment of Trial Court was against both the parties and none of the parties was able to prove its title‑‑‑Plaintiffs filed appeal and the same was accepted by the Lower Appellate Court decreeing the suit‑‑‑Defendant neither filed appeal nor any cross‑objection before Lower Appellate Court for asserting his right of ownership in the suit land ‑‑‑Effect‑‑Defendant filed the revision petition when the findings of the Lower Appellate Court went against him and the suit was so decreed‑‑Where the defendant abandoned his right by neither filing any appeal nor by challenging the same by filing cross‑objections in the first appeal, defendant could not assert his right of ownership in revision proceedings‑‑‑Lower Appellate Court had exhaustively discussed the ocular and documentary evidence‑‑Defendant who was in possession of the suit property was a trespasser/encroacher and was not entitled to resist his dispossession/eviction initiated by the plaintiff‑‑‑Revision was dismissed accordingly.

Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others 1999 CLC 312; Government of N.W.F.P. through Chief Secretary and others v. Muhammad Zaman and others 1996 SCMR 1864; Khairati and 4 others v. Aleem-ud‑Din and another PLD 1973 SC 295; Hakam Ali v. Fazla 1986 CLC 1183; Muhammad Ibrahim and another v. Group Captain Salehuddin and others 1987 SCMR 218; Allahyar Khan v. Mst. Sardar Bibi 1986 SCMR 1957; Liaquat Khan and others v. Ghulam Muhammad PLD 1987 Pesh. 53; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Gulstan Textile Mills v. Member, (Consolidation), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 13 others 1997 MLD 449; Supercon Limited v. Eastern Construction Limited and 2 others 1987 CLC 1566; Kasim Kambar and others v. Chanderbhan Wadhumal and another PLD 1962 (W.P.) Kar. 253 and Sardar Muhammad and 4 others v. Municipal Committee, Jehlum City PLD 1970 SC 497 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Scope‑‑‑Jurisdictional errors‑‑‑Civil revision is limited to question of such errors.

Venkatagiri v. H.R.E. Board, Madras PLD 1949 PC 26 and Umar Daraz Khan v. Mulla Muhammad Khan PLD 1970 SC 288 ref.

(e) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑Ss.8 & 9‑‑‑Possession of immovable property‑‑‑Provisions of Ss.8 & 9 of Specific Relief Act, 1877‑‑‑Distinction‑‑‑Person who had been illegally and un-authorisedly dispossessed relief of reinstatement/possession to such person is provided in S. 9 of Specific Relief Act, 1877, and such person is not required to prove his title‑‑Remedy is provided to a person who is entitled to possession of immovable property tinder S. 8, Specific Relief Act, 1877.

Ghulam Rasool v. Muhammad Waris 1994 MLD 527; Govind Dutta v. Jagnarain Dutta and others AIR 1952 Pat. 314; Baba Kartar Singh Bedi v. Dayal Das and others AIR 1939 PC 201; Rais Khair Muhammad and others v. Imdadullah Shah 1981 CLC 1411; Muhammad Sher and others v. Mst. Tajmeena and others PLD 1996 Pesh. 6 and Muhammad Amin v. Mian Muhammad PLD 1970 BJ 5 ref.

(d) Words and phrases‑‑‑

‑‑‑‑ "Pari delicto "‑‑‑Meaning‑‑‑In equal fault‑‑‑Where both the parties are equally at fault, law will help that party which is in physical possession.

(e) Maxim‑‑‑

‑‑‑‑ "Bona vacantia", principle of‑‑Meaning‑‑‑Principle means that things and goods and unclaimed property found without any apparent owner, passes to the State as an incident of sovereignty.

Warton's Law Lexicon ref.

Rehmat Ally Rajput for Applicant.

Kanayalal P. Nagdev for Respondents.

Dates of hearing: 14th, 15th, 21st, 25th and 30th October, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 696 #

2000 Y L R 696

[Karachi]

Before Muhammad Ashraf Leghari, J

RASHID RAZZAK‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail No.771 of 1999, decided on 6th August, 1999.

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

‑‑‑‑S.497(1)‑‑‑Emigration Ordinance (XVIII of 1979), S.22‑‑‑Bail, grant of‑‑‑penalty under provisions of S.22 of Emigration Ordinance, 1979 was fourteen years imprisonment or fine‑‑‑Falling of the offence out of embargo put by S. 497(1), Cr, p. C because of fine‑‑‑Effect‑‑‑Fine was no consideration under the proviso to S.497, Cr. P. C. even if the offence could be punished for fine alone, still the quantum of imprisonment would remain intact‑‑‑Quantum of imprisonment alone being the basis for application of embargo, where the quantum of imprisonment was fourteen years, embargo under S. 497(1) of Cr. p. C was fully attracted.

M. Akhter v. The State 1984 PCr.LJ 2341 and Arshad Mahmood v. The State 1985 PCr.LJ 2048 distinguished.

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

‑‑‑‑S.497‑‑‑Emigration Ordinance (XVIII of 1979), S.22‑‑‑Bail, grant of‑‑‑Accused was convicted with the offence by direct evidence of the victim‑‑‑Accused personally received the major portion of payment and played a vital role in the offence‑‑‑Accused was implicated in the initial complaint, during preliminary inquiry and in the F 1. R. ‑‑‑No reason existed for the false implication of the accused by the sufferer‑‑‑Bail was refused in circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 342 distinguished

Javed Akhtar Junejo v. The State 1996 PCr.LJ 1563 and Bashir Ahmed v. The State through F.I.A. 1998 Cr.LJ 549 ref.

Kh. Naveed Ahmed for Applicant.

State. Mamnoon Hassan, Dy. A.‑G. for the

YLR 2000 KARACHI HIGH COURT SINDH 709 #

2000 Y L R 709

[Karachi]

Before Dr. Ghous Muhammad, J

Mian MUHAMMAD SALEEM‑‑‑Appellant

versus

MUHAMMAD HUSSAIN KHAN‑‑‑Respondent

First Rent Appeal No.313 of 1997, decided on 1st February, 1999.

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

‑‑‑‑S.14‑‑‑Ejectment of tenant on ground of attaining age of sixty years by the landlord‑‑Landlord filed ejectment application against tenant at the age of seventy‑five years and at the time of letting out premises to tenant age of landlord was nearly sixty years‑‑‑Landlord who remained silent for about fifteen years from the date when right under S.14, Sindh Rented Premises Ordinance, 1979 for ejectment of tenant had accrued to him, was not entitled to avail benefit under said section ‑‑‑Ejectment application, in circumstances, was rightly dismissed by Rent Controller.

Hafiz Abdul Malik v. Muhammad Ilyas 1987 CLC 419 and Bakhsh Illahi v. Qazi Wasif Ali 1985 SCMR 291 ref.

Z. A. Mubashir for Appellant.

Raja Muhammad Sabir for Respondent.

Date of hearing: 12th January, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 711 #

2000 Y L R 711

[Karachi]

Before Ata‑ur‑Rehman, J

NABBAN Appellant, versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 15 of 1998, decided on 28th April, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 133‑‑‑Appreciation of evidence‑‑Failure to cross‑examine a witness ‑‑‑Effect‑‑Prosecution had produced a doctor as a witness who had conducted post‑mortem on the body of the deceased and medically examined the injured witness‑‑‑Where such witness was not cross‑examined and. his evidence had not been questioned by any one, depositions of such witness were proved in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art.59‑‑‑Criminal Procedure Code (V of 1898), 5.103‑‑‑Appreciation of evidence‑‑Expert opinion‑‑‑Unexplained delay in opinion of expert‑‑‑Effect‑‑‑Crime weapon was sent to the Chemical Examiner after a lapse of more than one year without any explanation by the prosecution‑‑‑Opinion of expert which had been given after unexplained delay was not safe to be relied upon‑‑‑Recovery of such weapon, thus, could not be relied upon in circumstances.

Allahando v. The State 1969 SCMR 714 ref.

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Evidence of prosecution witnesses suffered from contradictions, inconsistent statements and had suffered from various defects‑‑.Presence of eye‑witnesses at the place of occurrence could not be proved by prosecution‑‑‑Effect‑‑‑Putting prosecution version and defence version in juxtaposition, probable story which could be relied upon was that of the defence‑‑‑Appeal was allowed in circumstances.

Khalid Iqbal Memon for Appellant.

Inayatullah Morio for A.A.‑G. for the State.

Dates of hearing: 14th, 15th, 21st and 28th April, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 734 #

2000 Y L R 734

[Karachi]

Before Zahid Kurban Alavi, J

Messrs MERCURY CORPORATION‑‑‑Plaintiff

versus

Messrs PAKISTAN STEEL MILLS

CORPORATION (PRIVATE) LIMITED

through Chairman and another ‑‑‑ Respondents

Suit No.678 and Civil Miscellaneous Application Nos. 3841 of 1996 and 9000 of 1999, decided on 20th November, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.56‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. l & 2‑‑‑Interim injunction, grant of‑‑‑Suit for mandatory injunction‑‑Contractual obligation‑‑‑Restraining defendants from encashing Bank guarantees‑ Demand for encashing Bank guarantees, though could be made, yet such demand was to be made on commission of default under the contract‑‑‑Such guarantee was based upon performance and hence could only be encashed if through evidence it was proved that a default had indeed occurred which was the fault of the person on whose behalf such guarantee was issued‑‑‑Where plaintiff had made out an arguable case, stay had to be granted‑‑‑Plaintiff having committed no breach of contract, interim injunction was granted in circumstances.

Farogh Naseem for Plaintiff

M. G. Dastagir for Defendant No. 1.

Tariq Qureshi holds brief for Iqbal Bawanv for Defendant No.2.

YLR 2000 KARACHI HIGH COURT SINDH 749 #

2000 Y L R 749

[Karachi]

Before Muhammad Ashraf Leghari, J

KAKA SAYAL‑‑‑Applicant

versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No.341 of 1999, decided on 10th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, cancellation of‑‑‑Grounds which prevailed with Trial Court for grant of bail to accused were; alleged conflict between ocular and medical evidence; delay of five hours in lodging of F.I.R; and enmity between the parties‑‑‑Nature of alleged conflict between ocular and medical evidence, was not explained by Trial Court, even otherwise the 'conflict could not be a sole ground for grant of bail in heinous offence‑‑Delay of five hours in lodging of F.I.R. was fully explained in F.I.R. itself and enmity alleged therein was strong motive for committing offence‑‑‑Police statements also showed strong motive of accused persons‑‑Accused had caused a cold‑blooded murder and strong ocular evidence was available against them‑‑‑Prosecution witnesses were natural witnesses and names of accused were found in F.I.R. wherein they were assigned specific role of firing‑‑‑Bail was granted to accused after five months of the incident on flimsy grounds‑‑‑Accused remained absconded for some period and on their arrest pistol allegedly used in crime were recovered from them‑‑‑Accused after being released on bail had extended threats to complainant party and had misused concession of bail by threatening the witnesses‑‑‑Accused, in circumstances, were not entitled to concession of bail‑‑‑Bail granted to accused, was cancelled.

Abdul Hai and others v. The State 1996 SCMR 555; Ram Mohsin Qazilbash and others v. Muhammad Usman Malik and another 1999 SCMR 1794 and Mst. Reham Jan v. Abdur Rehman 1991 SCMR 1849 ref.

Mrs. Salima Nasiruddin for Applicant.

M. M. Kazi for Respondents Nos.2

Sharafat Ali Khan for the State.

Date of hearing: 10th December,

YLR 2000 KARACHI HIGH COURT SINDH 770 #

2000 Y L R 770

[Karachi]

Before Dr. Ghous Muhammad, J

Capt. MUHAMMAD TAHIR CHOUDHRY

TI(M), PAKISTAN NAVY‑‑‑Petitioner

versus

THE DISTRICT JUDGE, KARACHI SOUTH and 2 others‑‑‑Respondents

Constitutional Petition No. S‑70 of 1999, decided on 2nd April, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Provisions of Art.199 of Constitution of Pakistan (1973) cast an obligation on High Court to act in aid of law‑‑‑Constitutional jurisdiction is intended to faster justice and strike down orders passed in contravention of express provisions of law.

Suhail H. K. Rana for Petitioner.

Akhtar A. Channar for Respondent No.3

Date of hearing: 2nd April, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 778 #

2000 Y L R 778

[Karachi]

Before Dr. Ghous Muhammad, J

NAZER MOORAJ through Legal

Heirs‑‑‑Applicant

versus

IFTIKHAR HUSSAIN KHAN through

Legal Heirs‑‑‑Respondent

Civil Revision Application No. 263 of 1987, decided on 22nd December, 1998.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.11 S‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent finding of Courts below based on relevant material and sound reasoning not suffering from any misreading or non‑reading of evidence on record, could not be interfered with by High Court in exercise of revisional jurisdiction especially when Courts below, in arriving at said finding had not committed any illegality or irregularity.

Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others PLD 1963 (W.P.) Lah. 418; Abdullah Bhai and others v. Ahmed Din PLD 1964 SC 106; Aziz Khan. v. Ajab Khan and 3 others 1976 SCMR 333; Faiz Muhammad and others v. Mukhtiarkar, Kandiaro etc. 1979 SCMR 365; Haji Abdul Karim v. The Chief Settlement Commissioner and others PLD 1961 (W.P.) Lah. 394; Soobaidar Muhammad Afzal v. Syed Hafeez Ahmed and others PLD 1962 (W.P) Lah. 45; Allah Diwaya and others v. Bangul and others 1995 MLD 918; Arbab Jamshed Ahmed and another v. Ghazan Khan and others 1995 CLC 695; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Malik Faiz Alam v. Malik Muhammad Arshad Khan and others PLD 1986 SC (AJ&K) 65; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Shad Muhammad v. Khan Poor PLD 1986 SC 91; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Narayan Bhagwantro Goasvi Balajiwala v. Gopal Vinayak Gosavi and others AIR 1960 SC 100 ref.

Iqbal Kazi for Applicant.

M.G. Dastgir for Respondent.

Date of hearing: 21st December, 1998

YLR 2000 KARACHI HIGH COURT SINDH 803 #

2000 Y L R 803

[Karachi]

Before Hamid Ali Mirza and

Abdul Hameed Dogar, J

MUSHTAQ HUSSAIN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeals Nos.74 and 75 and Confirmation Reference No. 21 of 1999, decided on 1st September, 1999.

Penal Code (XLV of 1860).

‑‑‑‑Ss.302(b)/34 & 365/34‑‑‑Anti‑Terrorism Act (JXVII of 1997), S. 7‑‑ Appreciation of evidence‑‑‑Entire prosecution case hinged upon the statement of the sole lady witness of the last seen evidence who had been constantly changing the names of the culprits and from her statement as well as from the statement of the Investigating Officer it was not certain as to who were the real accused in the case‑‑‑Said witness admittedly did not know the names of the accused even at the time of holding identification parade‑‑‑Occurrence was unseen and the conviction of accused had been based on the aforesaid testimony of impeachable character‑‑ Accused were acquitted in circumstances.

Akhtar Jamal for Appellants.

Habib Ahmed, Asstt. A.‑G. for the State.

Date of hearing: 1st September, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 816 #

2000 Y L R 816

[Karachi]

Before Muhammad Ashraf Leghari, J

MUMTAZ ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 41 of 1999, decided on 24th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Nothing incriminating, including the crime empties or blood, had been secured by the police from the scene of offence‑‑‑Cots where the witnesses and the deceased were allegedly sleeping were not seen by the police‑‑Complainant having died could not be examined in Trial Court‑‑‑Eye‑witnesses who were related to the complainant did not belong to the village of incident and were chance witnesses having no reason to be present on the spot at the relevant time ‑‑‑Eyewitnesses had changed their versions at various stages making dishonest departure from their previous statements and they were basically dishonest‑‑‑No empty having been found from the place of occurrence, licensed gun recovered in the case could not provide any corroboration to the prosecution version‑‑‑Evidence of motive having been furnished by the same dishonest witnesses was not credible‑‑‑Accused was acquitted in circumstances.

1995 SCMR 599; 1995 SCMR 733; 1997 SCMR 254; PLD 1971 SC 541; PLD 1977 SC 413; PLD 1980 SC 649; 1971 SC MR 126; Abdul Rehman v. Fateh Sher and others 1996 SCMR 176; Haroon alias; Harooni v. The State and another 1995 SCAR 1627; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR, ask and Rasool Bux and another v. The State 1980 SCMR 225 ref.

Azizullah K. Sheikh for Appellant.

Javeed Akhtar for the State.

Dates of hearing: 17th November and 9th December, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 878 #

2000 Y L R 878

[Karachi]

Before Hamid Ali Mirza and Abdul Hamid Dogar, J

AZIZUL HASAN and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No. 19 of 1999, decided on 17th August, 1999.

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

‑‑‑‑S.103‑‑‑Search to be made in presence of witnesses‑‑‑Exception‑‑‑Association of two respectable inhabitants .of the locality is not required in the case where accused himself leads the police to a particular place and gets the article recovered.

Mir Muhammad v. The State 1985 SCMR 614 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.365‑Al34‑‑‑Appreciation of evidence‑‑Abduction of the minor boy by the accused had been established‑‑‑Accused had been arrested while making telephone call for demand of ransom amount for the release of the abductee at the telephone booth and a chit having the telephone number of the complainant was also recovered from them‑‑Demand of ransom amount by the accused, thus, was also proved‑‑‑Accused had led to the recovery of the abductee from their house in presence of witnesses with whom they did not suggest any enmity ‑‑‑Co‑accused had been acquitted by Trial Court as he had not been implicated in the commission of the offence by any prosecution witness but the benefit of his acquittal could not be extended to the accused‑‑‑Appeal of accused was dismissed in circumstances.

Mehram Ali's case PLD 1988 SC 1445; 1997 SCMR 617; PLD 1996 SC 576; 1997 MLD 1729; Mir Muhammad v. The State 1995 SCMR 614 and 1985 SCMR 614 ref.

‑‑‑‑S.365‑A/34‑‑‑Appreciation of evidence‑‑Record did not show that the accused had either committed the offence of abduction or even abetted the same‑‑‑Alleged sitting of the abducted child with the accused in the house did not show his knowledge that the child had been abducted and was confined in the house by other accused‑‑‑Evidence was also not available on record to show that the accused was guarding the abducted child and the door of the house was closed by him at the time of his recovery‑‑‑Accused was extended the benefit of doubt and acquitted in circumstances.

Gul Bahar Korai for Appellants.

Habib Ahmed, Asstt. A.‑G. for the State.

Date of hearing: 17th August, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 902 #

2000 Y L R 902

[Karachi]

Before Muhammad Ashraf Leghari and

Muhammad Roshan Essani, JJ

THE STATE through Advocate‑General, Sindh/Public Prosecutor, Karachi‑‑‑Applicant

versus

SHAMSHUR‑REHMAN alias SHAMOO

DAKOO alias KHALID‑‑‑Respondent

Criminal Anti‑Terrorism Revision Application No.26 of 1999, decided on 11th November, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/353/324‑‑‑West Pakistan Arms Ordinance (IOC of 1965), S.13‑D‑‑‑AntiTerrorism Act (XXVII of 1997), Ss.6, 7, 25, 31 & 32‑‑‑Criminal Procedure Code (V of 1898), 5.435/439‑‑‑Case transferred by Special Court to Sessions Court‑‑‑Revision petition, maintainability of‑‑‑Weapons required under the Anti‑Terrorism Act, 1997 to attract the jurisdiction of Special Court were not used in the commission of the offence‑‑‑Main ingredients of S.7 of the said Act were also not attracted in the case as the occurrence had taken place due to previous incident of slapping the father of accused without any intention to cause terror or create sense of fear and insecurity among the people‑‑‑Reasons of vindication of family enmity and the motive had been given in the F.LR. and initial intention of the accused was to take revenge from the deceased‑‑‑No revision was provided in the Anti‑Terrorism Act, 1997 for challenging the impugned order of Special Court transferring the case to the Sessions Court and the provisions of Ss‑25, 31 & 32 of the said Act when read in conjunction with each other, did not permit the same‑‑‑Criminal revision, thus, was not maintainable and was dismissed in limine accordingly.

Moharram Ali's case PLD 1998 SC 1445 ref.

S. Jalil A. Hashmi, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 941 #

2000 Y L R 941

[Karachi]

Before Zahid Kurban Alavi, J

ZAKIR HUSSAIN SHAIKH ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.201 and 219 of 1999, decided on 29th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/ 324/ 148/ 149/ 337‑A(i)l 337‑F(i)‑‑‑Bail‑‑Procession had been taken out by some persons to commemorate the great sacrifice made by Hazrat Imam Hussain and his family to uphold the tenets of Islam‑‑‑Such persons had no knowledge that they would be fired upon‑‑‑Action of accused seemed to be premeditated on the face of it with common intention to disrupt the procession and create panic‑‑‑Bail was declined to accused in circumstances.

1996 SCMR 1125; 1982 SCMR 955; 1992 PCr. LJ 172; 1994 SCMR 1680; 1982 SCMR 909; 1993 PCr.LJ 924; 1986 SCMR 1681; 1991 SCMR 61; 1989 SCMR 238; 1989 PCr.LJ 618; PLD 1972 SC 81; PLD 1992 Pesh. 125; 1978 PCr.LJ 300 and 1983 PCr.LJ 214 ref.

Ghulam Hyder Baloch and Khalid Iqbal Memon for Applicants.

Altaf Hussain Surahiyo for the Complainant.

Abdul Fatah Mughal for the State:

YLR 2000 KARACHI HIGH COURT SINDH 994 #

2000 Y L R 994

[Karachi]

Before Rasheed Ahmed Razvi, J BAGO‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 254 of 1999, decided on 28th October, 1999.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S. 302/324/451 /34‑‑‑Bail, grant of‑‑‑No material was available on record to connect the accused with the commission of the alleged offence except the simple statements of three co‑accused recorded under S. 161, Cr. P. C. ‑‑‑Statement of accomplice involving co‑accused for bail purpose was not material of that strength which might disentitle the accused to the privilege of bail against whom the only material was the allegation levelled by his accomplice which required corroboration in material particulars‑‑‑More convincing material including strong circumstantial evidence corroborating the statement of the accomplice had to be present for the purpose of denying bail to accused; which was lacking in the case‑‑‑Case of accused for bail, even otherwise, was on better footing than that of co‑accused already admitted to bail by High Court and he was also entitled to bail on the ground of consistency i.e., maintaining equality of treatment amongst several accused placed in similar and identical circumstances‑‑Accused was allowed bail in circumstances.

Munawar Hussain alias Bobi v. The State 1993 SCMR 785; Mumtaz Ali Shar and another v. The State 1993 PCr.LJ 1919; Noor Hassan v. The State 1994 PCr.LJ 661; Mir Murtaza Bhutto v. The State 1995 PCr.LJ 1416; Shabbir‑ul‑Hessan v. The State PLD 1991 SC 898; Hyder Hussain and others v. Government of Pakistan and others PLD 1991 FSC 139; Asif Ali Zardari and another v. The State 1992 PCr.LJ 171; Federation of Pakistan and others v. Gul Hassan Khan PLD 1989 SC 633; Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others 1994 SCMR 932; Bhuboni Sahu v. The King AIR 1949 PC 257; Abdul Khaliq v. The State 1970 SCMR 307; Ghulam Qadir v. The State PLD 1959 SC 377; Muhammad Karim and 3 others v. The State 1988 PCr.LJ 1543; Abdul Qadir v. The State PLD 1956 SC 407 and PLD 1991 FSC 53 ref.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Abdul Salam v. The State 1980 SCMR 142 and Walayat and another v. The State 1984 SCMR 530 rel.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 16 & 129, illus. (b)‑‑‑Accomplice, evidence of‑‑‑Admissibility‑‑‑Evidence of an accomplice is not admissible in case of an offence punishable with Hadd and Qisas, but in case of an offence entailing punishment of Tazir his testimony is admissible furnishing basis for conviction, provided the same is corroborated in material particulars-Testimony of accomplice may be acted upon as sufficient for warranting recording of conviction in exceptional cases, for the reasons to be recorded by the Court.

Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others 1994 SCMR 932 ref.

Azizullah M. Buriro for Applicant.

Ali Azher Tunio, Assistant Advocate‑General for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1022 #

2000 Y L R 1022

[Karachi]

Before Muhammad Roshan Essani, J

ZAHOOR ALAM‑‑‑Applicant

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.77 of 1999, decided on 21st August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Bail, cancellation of‑‑Complainant had sought cancellation of bail granted to accused alleging that accused persons had misused their liberty and had issued threats of dire consequences to complainant and prosecution witnesses‑‑‑No date, time and place where such alleged threats were given or fighting took place between accused persons and prosecution witnesses, was mentioned by complainant in his affidavit‑‑‑Allegation levelled by complainant against accused were of general nature which were controverter by accused through counter‑affidavit‑‑‑Record had shown that prosecution witness was on inimical terms and was locked in litigation with accused‑‑‑Application of complainant for cancellation of bail, was dismissed, in circumstances.

Ghulam Shabbir Memon for Appellant.

2000 Y L R 1063

[Karachi]

Before Abdul Hameed Dogar, J

MOINUDDIN alias MOIN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Jail Appeal No.90 of 1999, decided on 28th October, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 (a), 324, 452, 396, 397 & 398‑‑Anti‑Terrorism Act (XXVII of 1997), S.7: West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Appreciation of evidence‑‑‑Accused had pre-planned the commission of the offence‑‑‑Ocular testimony was corroborated by recovery of pistols from the accused as well as by medical evidence‑‑‑Accused while committing the offence had not only created sense of fear and insecurity in the public, but had struck terror by causing death of the deceased and inflicting injuries on the prosecution witness while committing robbery in the house of the complainant‑‑‑Convictions and sentences awarded to accused by Trial Court were upheld in circumstances.

1999 MLD 2947 and 1994 SCMR 1345 ref.

Miss Akhtar Rehana for Appellant.

Jalil Hashmi, A.A.‑G. for the State, Date of hearing: 26th October, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1067 #

2000 Y L R 1067

[Karachi]

Before Nazim Hussain Siddiqui, C J

MUHAMMAD USMAN FARUQI‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Transfer Applications Nos.24 to 30 and 34 of 1999, decided on 27th September, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.526‑‑‑Transfer of case‑‑‑Cases were sought to be transferred on grounds, firstly, that bail granted to accused on medical ground, was cancelled; secondly, that facility of 'B' Class granted to accused during proceedings of the case had been withdrawn; and thirdly that Trial Court was showing undue haste for disposal of cases against accused‑‑‑Validity‑‑‑Bail granted to accused on medical ground was cancelled on subsequent report of Medical Board wherein Medical Board found accused not entitled to bail on medical ground‑‑‑Even otherwise cancellation of bail by itself was not sufficient for transfer of case‑‑‑Facility of 'B' Class granted to accused was withdrawn to admonish him to be serious during trial and for mending his ways because accused who was interested in prolonging proceedings and did not want disposal of cases against him on merits used to interrupt proceedings of the Court by passing ugly remarks loudly against prosecutor and police officials‑‑‑Facility of 'B' Class was subsequently restored to accused when he improved his behaviour‑‑Such circumstance 6ould also not be a valid ground for transfer of cases‑‑‑Duty of Court being to dispose of matters expeditiously, cases against accused could not be transferred on ground that Court was showing haste for disposal of cases against him‑‑‑Accused having not said a single word about integrity of Trial Court, but being fully satisfied, cases against accused, could not be transferred on basis of mere speculations and unfounded presumptions.

Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327 and Gulzar Ahmad and others v. The State 1994 PCr.LJ 634 ref.

I. A. Hashmi for Applicant.

Sarwar Khan, Additional Advocate-General for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1086 #

2000 Y L R 1086

[Karachi]

Before Muhammad Ashraf Leghari, J

FJAZ. AHMED‑‑‑Applicant

versus

THE STATE--‑Respondent

Criminal, Bail Application No. 765 and Miscellaneous, Application No. 1018 of 1999, heard on 29th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

---‑S.49.7(1), third proviso---Penal Code (XLV of 1860, S.302‑7‑Rail on ground of statutory, delay :after remand of case by High Court‑‑‑Accused was in, custody beyond the statutory period which. had expired since long and the delay was not attributable to him‑‑,Detention of accused in jail without any prospects of trial after remand of his case by High Court and keeping him to rat in jail, till conclusion of his fresh trial teas prejudicial to his rights guaranteed to him by the third proviso to 8.4970), Cr.P.C.‑‑‑Right of grant of bail under the said proviso to S:497, Cr. P. C. was not discretionary and the accused teas entitled to same if available to him under the law‑‑Accused was admitted to bail in circumstances.

Shahadat Awan for Applicant.

Arshad Lodhi, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1096 #

2000 Y L R 1096

[Karachi]

Before Hamid Ali Mirza and

Abdul Hameed Dogar, JJ

ISHAQUE and 7 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Criminal Appeal No.7 of 1998, heard on 24th August, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 365/34‑‑‑Appreciation of evidence‑‑Two contrary versions had been put forth by alleged abductees and complainant with regard to identity of accused‑‑‑Alleged abductee had deposed that accused who resided in the same village were their neighbours, whereas complainant, who was father of alleged abductees and other prosecution witnesses had totally denied that they knew the accused prior to the incident‑‑Credibility of complainant, in circumstances, had become highly doubtful and he being a false witness could not be believed‑‑Credibility of other prosecution witness who was also alleged to be abductee, was also shrouded in mystery and could not be relied upon for the reason that he had deposed that he knew the accused prior to the incident, buy did not disclose their names before Police and accused were not nominated in the F.I.R.‑‑Highly unsafe to rely upon evidence of such a false witness‑‑‑Only evidence against co-accused was identification test which was doubtful for the reason that identifying witnesses had not assigned any role to accused in commission of offence‑‑Prosecution having failed to prove case against accused, they were acquitted extending them benefit of doubt.

Din Muhammad v. The State 1969 SCMR 777; Issa Khan v. The State PLD 1987 Quetta 174 and Muhammad Khan v. The State 1995 PCr.LJ 1516 ref.

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

‑‑‑‑S.367‑‑‑Where Trial Court had not complied with the mandatory provisions of S.367, Criminal Procedure Code, conviction and sentences of accused awarded by it could not be sustained.

Rasool Bux Palijo and Raja Mir Muhammad for Appellants.

Habib Ahmed, Asstt. A.‑G. for the

Date of hearing: 24th August, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1102 #

2000 Y L R 1102

[Karachi]

Before Rasheed Ahmed Razvi, J

MUHAMMAD AHSAN and 5 others‑‑‑Applicants

versus

ALTAF HUSSAIN and 7 others‑‑‑Respondents

Judicial Miscellaneous Application No.53 of 1996, decided on 1st November, 1999.

(a) Legal Practitioners and Bar Councils Rules, 1976‑‑‑

‑‑‑‑R.146‑‑‑Cannons of professional conduct and etiquette of advocates‑‑‑Council and client, relationship of‑‑‑Nature‑‑‑Two Advocates sharing the same premises or the same law firms and appearing for two different parties having conflicting interest‑‑Validity‑‑‑Clients should have the fullest confidence in their legal advisors and should not be deterred or hampered in disclosing the strength and weakness of their cases by fear that their instructions might at some future time be used against them by their legal Advisors‑‑‑Duty of legal practitioners to avoid even the suspicion that they might possibly use information which they received in their professional capacity against the clients from whom they received them‑‑‑If two advocates appearing for different parties having conflicting interest, shared the same premises or same law firm, neither such confidence could be achieved nor confidentiality of information given by the clients could be guaranteed.

Veerappa Chettiar and others v. P.G. Sundaresa Sastrigail AIR 1925 Mad. 1201 rel.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss.41 & 54‑‑‑Legal Practitioners and Bar Councils Rules, 1976, 8.134‑‑‑Misconduct of counsel‑‑‑Show‑cause notice issued by High Court‑‑‑Two advocates sharing the same premises or the same law firm and appearing for two different parties having conflicting interest‑‑‑Professional propriety‑‑‑Accused counsel filed a written statement on behalf of the defendants in a suit for specific performance of an agreement to sell and as such the suit was decreed‑‑‑Defendants were residents of another city and had migrated to a foreign country‑‑‑Such written statement was obtained by misrepresentation and by forgery‑‑‑Instead of referring the case to the Bar. Council, High Court issued a show‑cause notice to the accused counsel‑‑‑Validity‑‑Statement of witness was not accepted by High Court as it appeared that such statement was made by witness to save his skin and attempted to involve the accused counsel‑‑‑No specific rule existed in Legal Practitioners and Bar Councils Rules, 1976 in describing conduct of partners of same law firm, or of Advocates sharing the same office‑‑‑High Court observed that it was high time that there should be such rules governing the conduct of such Advocates in such a situation‑‑‑High Court desired that the Provincial Bar Council and Pakistan Bar Council should make serious and genuine efforts to update the cannon of professional conduct and etiquette of Advocates and to bring within its scope such conduct of Advocates‑‑‑Strict warning, however, was issued to the accused counsel and show-cause notice was re‑called in circumstances.

Sri A. Gurubasappa, Advocate AIR 1964 Andh. Pra. 261; Veerappa Chettiar and others v. P.G. Sundaresa Sastrigail AIR 1925 Mad. 1201; AIR 1946 Pat. 357 and Raza Hussan and others v. Muhammad Khan and others 1999 CLC 1057 ref.

‑‑‑‑ Relationship of‑‑‑Disclosure by counsel to client about his relationship with other party or with the counsel appearing for the adverse party‑‑‑Necessity‑‑‑Client who comes to an advocate is not aware of such relationship, if any‑‑‑Duty of the Advocate to inform the client about such relationship in order to maintain confidence of his client.

Muhammad Humayun for Applicants.

Arif Hussain Khilji, Advocate Supreme Court and Member, Pakistan Bar Council alongwith Mirza Adil Baig, Advocate and Member, Sindh Bar Council on Court Notices.

Raja Mir Muhammad, Advocate.

YLR 2000 KARACHI HIGH COURT SINDH 1111 #

2000 Y L R 1111

[Karachi]

Before Zahid Kurban Alavi, J

Messrs BULK HANDLING

COMPANY, KARACHI‑‑‑Plaintiff

versus

M.V. CEMRE‑II, KARACHI and another‑‑‑Defendants

Admiralty Suit No. 15 of 1999, decided on 14th September, 1999.

Admiralty Jurisdiction of High Court Ordinance (XLII of 1980)‑‑‑

‑‑‑‑S..3‑‑‑Suit for recovery‑‑‑Admiralty jurisdiction of High Court‑‑‑Failure to furnish security as directed by the Court‑‑Order of arrest was issued by the Court against the vessel‑‑‑Vessel sought time and moved an application under O. VII, R.II, CP.C and objection to the admiralty jurisdiction of the Court was raised by the defendant‑‑‑Validity‑‑‑Where the defendant vessel was satisfied that the claim of the plaintiff did not fall within jurisdiction of the Court and was truly aggrieved by order of arrest, then such an objection should have been raised immediately and/or appeal should have been filed against that order‑‑‑Having acknowledged the claim and the liability, it would be futile to raise objections at such state, so as to defeat the possibility of recovery of the amount of the plaintiff‑‑Where amount had been admitted by the master of the vessel, objections at such a stage would tantamount to thwart the ends of justice‑‑‑Defendant vessel was directed to furnish security and objections raised were dismissed accordingly.

Cap. Yousuf Kazi and another v. S.S. Phoenix and 3 others PLD 1978 Kar. 1052 ref.

Shakil Ahmed for Plaintiff.

Agha Faqir Muhammad for Defendant No. 1.

Defendant No.2: Ex parte.

YLR 2000 KARACHI HIGH COURT SINDH 1117 #

2000 Y L R 1117

[Karachi]

Before Dr. Ghous Muhammad, J

NAIMUDDIN‑‑‑Appellant

versus

GHULAM RASOOL through Legal Heirs‑‑‑Respondents

First Rent Appeal No.683 of 1988, decided on 24th December, 1998.

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

‑‑‑‑S.15(2)(iv)‑‑‑Ejectment of tenant on ground of impairing material value or utility of premises by tenant‑‑‑Allegation about material change made in premises by tenant had specifically been pleaded by landlord and tenant had failed to challenge said point‑‑Plea of landlord stood proved as tenant himself in his affidavit‑in‑evidence did not deny allegation of Making material changes in premises.

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

‑‑‑‑S.15(2)(iv)‑‑‑Ejectment on ground of reconstruction of premises‑‑‑Plea of reconstruction of premises taken by landlord was resisted by tenant contending that approved plan having not been got renewed by landlord from Competent Authority, it had become ineffective which had falsified plea of landlord regarding reconstruction of premises‑‑‑No specific period of reconstruction had been mentioned in the approved plan‑‑‑Renewal of approved plan otherwise being just a formality, it was not necessary for landlord to get sanction renewed every year during pendency of ejectment proceedings‑‑Disclosure of landlord about funds for reconstruction of premises, was not essential and its non‑disclosure was not fatal to plea of reconstruction.

Rashid Brothers, Faisalabad v. Ch. Muhammad Anwar Khan 1981 SCMR 782 ref.

Malik M. Said & Co. for Appellant.

Muhammad Ishaque Shams for Respondents.

Date of hearing: 26th November,

YLR 2000 KARACHI HIGH COURT SINDH 1123 #

2000 Y L R 1123

[Karachi]

Before Zahid Kurban Alavi, J

LAND ACQUISITION OFFICER &

COLLECTOR, L.B.O.D., WAPDA, HYDERABAD and another‑‑‑Appellants

versus

MUHAMMAD JUMAN and another‑‑‑Respondents

First Appeal No. 12 of 1999, decided on 15th November, 1999.

(a) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss.4, 18 & 23‑‑‑Acquisition of land‑‑Award of compensation‑‑‑Market value, determination of‑‑‑Factors to be considered‑‑Where long period had elapsed between notification and announcement of award and during that period prices of land had risen sharply, the Court, while determining the market value, had to take into account circumstances, such as potential value i.e. the benefits, advantages arising from the present use and future use, the inflationary trend and depreciation in currency while assessing the compensation.

PLD 1988 SC 32 and 1993 CLC 179 ref.

(b) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑S.28‑‑‑Acquisition of land‑‑‑Interest on amount of compensation awarded‑‑Obligatory‑‑‑Where amount awarded qua compensation of acquired land was neither paid nor deposited on or before taking possession of the land, Authority was bound to pay interest to the owners of the acquired land from the date of possession of such land.

1990 CLC 718 ref.

‑‑‑‑Ss.23(2) & 54‑‑‑Court Fees Act (VII of 1870), Sched. I,Art. 1‑‑‑Statutory compensation‑‑‑Affixing of court fee‑--Validity‑‑‑Statutory compensation allowed under S.23(2) of Land Acquisition Act, 1894, does not form part of compensation awarded and where an appeal is filed under S.54 of Land Acquisition Act, 1894, against the award, no court fee is payable on the amount of statutory compensation.

AIR 1972 Pat. 294 ref.

(d) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.28, 34 & 51‑‑‑Interest payable on enhanced compensation award‑‑‑Payment of court fee on such interest‑‑‑Such an interest under S.28 of Land Acquisition Act, 1894, was like the interest payable under‑434 of Land Acquisition Act, 1894, and the same was not a part of compensation for the acquisition of the land in the sense that it was a quid pro quo for the value of the land taken‑‑‑No court fee was payable under S.51 of Land Acquisition Act, 1894, on the interest payable on enhanced compensation award, in circumstances.

AIR 1972 Mad. 158 ref.

(e) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.4, 18, 23, 28 & 54‑‑‑Acquisition of land‑‑‑Award of compensation‑‑‑Reference to Court against such award‑‑‑Trial Court enhanced the compensation as per market value, 15 % compulsory acquisition charges, additional compensation at the rate of 15 % per annum and simple interest at the rate of 6% per annum on the excess amount were also awarded under S.28, Land Acquisition Act, 1894, by Trial Court to the respondent‑‑‑Order of Trial Court being according to the facts and law, was maintained.

PLD 1996 SC 77; PLD 1982 Kar. 147; PLD 1986 Kar. 164; PLD 1969 Azad J&K 46; PLD 1976 Pesh. 50; PLD 1963 Azad J&K 10; PLD 1954 Lah. 265; 1991 MLD 90; 1996 CLC 1193; 1997 SCMR 1692; 1996 SCMR 1820; 1992 CLC 1775; 1991 MLD 90; PLD 1992 SC 472; 1999 MLD 2922; 1993 CLC 179 and PLD 1968 Lah. 148 ref.

Kazi Munawar for Appellants.

Ghulam Rasool Qureshi for Respondents.

Date of hearing 10th September, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1133 #

2000 Y L R 1133

[Karachi]

Before Muhammad Ashraf Leghari, J

ZAMAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.607 of 1999, decided on 8th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.452/302/324/34‑‑‑Bail‑‑‑Accused was nominated in the F.I.R. with a motive against the deceased and he allegedly, while armed with a hatchet, had criminally trespassed into the house of the complainant and caused hatchet injuries to the deceased and a baby‑‑Even otherwise accused could be held vicariously liable for the commission of the offence as he, while armed with a deadly weapon, had attacked unarmed victims‑‑‑Bail was refused to accused in circumstances.

1996 PCr.LJ 1973; 1997 PCr.LJ 862; PLD 1996 Kac. 517 and PLD 1997 Kar. 494 distinguished.

Shahzaman and 2 others v. The State and another PLD 1994 SC 65 and Ghulam Nabi v. The State 1996 SCMR 1023 ref.

Ali Ahmad Jan Bangish for Applicant.

Arshad Lodhi, Addl. A‑G. Sindh alongwith Sharafat Ali for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1147 #

2000 Y L R 1147

[Karachi]

Before Rana Bhagwan Das and

Mushir Alam, JJ

GUL SHER and others‑‑‑Petitioners

versus

ADDITIONAL DISTRICT JUDGE, MIRPUR MATHELO and others‑‑‑Respondents

Constitutional Petition No.D‑935 of 1998, heard on 16th September, 1999.

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

‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Constitutional petition‑‑‑Stay of proceedings in subsequent suit‑‑‑"Matter in issue" and "subject‑matter of suit"‑‑Distinction‑‑‑Earlier suit was filed against the official defendants wherein the vires of an order was challenged, while in the subsequent suit delivery of vacant possession, mesne profits and permanent injunction was prayed‑‑‑Both the suits were filed by the respondent and no relief was claimed against the official defendants in the subsequent suit‑‑‑Trial Court considering the subject‑matter of both the suits as same stayed the subsequent suit while the Lower Appellate Court allowed the revision and reversed the decision of the Trial Court‑‑‑Validity‑‑‑Matter in issue ought to be directly and substantially in issue in a previously instituted suit between the same parties and not the subject‑matter of the suit‑‑‑Judgment of the Lower Appellate Court did not suffer from any patent error of law nor did the same run counter to the settled principles for stay of subsequent suit‑‑‑Constitutional petition being without substance was dismissed in limine.

Dr. Haider Ali Mithani v. Ishrat Swaleh PLD 1999 Kar. 81; Abdullah Shah v. Abdul Ghaffar PLD 1988 Quetta 60; Wazir Begum v Additional District Judge 1997 CLC 1654; Khalif Dad v. Muhammad Gul 1997 CLC 1684; Muhammad Khan v. Ghulam Fatima 1991 SCMR 970; Riaz Hussain v. Board of Revenue 1991 SCMR 2307 and Habib Bank v. Ali Mohtaram Naqvi PLD 1987 Kar. 102 ref.

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

‑‑‑‑Ss.10 & 151‑‑‑Stay of subsequent suit‑‑Essential conditions of S.10, C. P. C. ‑‑‑Where all such conditions are fulfilled it is incumbent upon the Court to stay the proceedings of the subsequent suit‑‑‑Such proceedings may not be stayed under the provisions of S.10, C. P. C. if all the conditions are not strictly fulfilled‑‑‑Recourse may be had to inherent powers of the Court under 5.151, C. P. C. in appropriate cases.

Abdul Rasheed Kalwar for Petitioners.

Zawar Hussain Jaffri, Addl. A.‑G. for Respondents Nos. l and 7.

Lachhmandas G, Rajput for Respondents Nos.2 to 5

Nemo for Respondent No.6.

YLR 2000 KARACHI HIGH COURT SINDH 1156 #

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YLR 2000 KARACHI HIGH COURT SINDH 1161 #

2000 Y L R 1161

[Karachi]

Before S. A. Sarwana, J

FAYAZUDDIN and 5 others‑‑‑Plaintiffs

versus

KARACHI BUILDING CONTROL

AUTHORITY through The Chief

Controller of Building and others‑‑‑Defendants

Suit No. 389 and Civil Miscellaneous Application No‑2446 of 1999, decided on 4th January, 2000.

(a) Qanun‑e‑Shahadat Order (10 of 1984)‑‑‑

‑‑‑‑Art.129‑‑‑Words "may presume" occurring in Art.129, Qanun‑e‑Shahadat, 1984‑‑Connotation‑‑‑Expression "may presume" grants to the Court wide discretion to make or not to make a presumption according to the circumstances of the case ‑‑‑Principles‑‑Any such presumption is not final but rebut-able ‑‑‑Provisions of Art. 129 of Qanune‑Shahadat, 1984 are discretionary and not mandatory in nature.

(b) Qanun‑e‑Shahadat Order (10 of 1984)‑‑‑

‑‑‑‑Art.129, illus. (e)‑‑‑Term "official acts"‑‑Definition ‑‑‑Expression "official acts" has been used in the sense that prima facie there is a presumption that official orders have been issued in exercise of the powers vested in the Government Officers or that Officers are exercising their powers in accordance with the provisions of the relevant law.

(e) Qanun‑e‑Shahadat Order (10 of 1984)‑‑‑

‑‑‑‑Art.129, illus. (t)‑‑‑‑Term" common course"‑‑‑Meaning‑‑‑"Common course " means the most common in experience of the Court which has to decide the point.

Secretary of State v. Nandla1 AIR 1928 Nag. 52 ref.

(d) Sindh Buildings Control Ordinance (V of 1979)‑‑‑

‑‑‑‑S.6(2)‑‑‑Term "any person "Applicability‑‑‑Word "any" used in S.6(2) of Sindh Buildings Control Ordinance, 1979 excludes limitation and means "one indiscriminately of whatever kind "‑‑‑In context of S.6(2) of the Ordinance "any person" refers to any person in the world who occupies or intends to occupy a newly constructed building ".

Zubair Ahmed v. Sindh Labour Appellate Tribunal PLD 1985 Kar. 760 ref.

(e) Words and phrases‑‑‑

‑‑‑‑"Caveat emptor"‑‑‑Meaning‑‑‑Buyer of a property should act prudently and make reasonable inquiry before purchase.

(f) Sindh Buildings Control Ordinance (V of 1979)‑‑‑

‑‑‑‑S.6‑‑‑Specific Relief Act (I of 1877), S.52‑‑‑Lis pendens, principle of‑‑Applicability‑‑‑Where the major portion of a building was constructed during the pendency of proceedings before the Civil Courts and High Court, under the cover of a status quo order, any title or interest in such premises was subject to the judgment of the Court in respect of that unauthorized construction of the building‑‑‑Rule of lis pendens was applicable in such case.

Asghar Ali alias Sajid v. Fazal Karim 1989 SCMR 1781 and Ardeshir Cowasjee v. K.B.C.A. and others 1999 SCMR 2883 ref.

(g) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.56‑‑‑Sindh Buildings Control Ordinance (V of 1979), S.6‑‑‑Suit for injunction‑‑Restraining any Competent Authority from doing its statutory duty‑‑‑Validity‑‑‑Court could not stop any such authority from doing its statutory duty for which that authority had been created‑‑‑Such suit was not maintainable.

(h) Sindh Buildings Control Ordinance (V of 1979)‑‑‑

‑‑‑‑S.6‑‑‑Specific Relief Act (I of 1877), S.56‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Suit for injunction‑‑‑Plaint, rejection of‑‑‑Plaintiff purchased a fiat in a building which was constructed under the cover and in spite of status quo order during the proceedings before the Court‑‑‑Disputed building was constructed in violation of approved site plan‑‑‑High Court had already decided the case against builder‑‑‑Contention raised by the plaintiff was that he was a bona fide purchaser for valuable consideration without knowledge of any violation of rules committed by the builder‑‑‑Validity‑‑‑During the proceedings of the suit filed by the builder, a report of Local Commissioner was filed wherein it was mentioned that disputed building was vacant‑‑‑Plaintiff did not have a prima facie case for injunction and he had come to the Court with unclean hands‑‑Plaintiff had made a false statement on oath with regard to obtaining possession of disputed building‑‑‑Suit of plaintiff was mala fide as the fiats had been constructed in gross violation of law abusing the process of the Court‑‑‑Relief claimed by plaintiff could not be granted under provisions of Specific Relief Act, 1877‑‑Plaintiff having filed the suit knowing fully well that such suit was not maintainable and vexatious to his knowledge plaint was rejected under O. VII R.11, C.P.C. with costs in circumstances.

Datari Construction (Pvt.) Ltd. v. A. Razzak Adamjee 1995 CLC 846; Multilines Limited v. Ardeshir Cowasjee and others 1995 SCMR 362; Abdul Razzak v. K.B.C.A. PLD 1994 SC 512; Mst. Zubaida A. Sattar and others v. K.B.C.A. 1999 SCMR 243; Mst. Feroza Hajiani v. Abdul Razaak 1992 MLD 527 and Afzal Khan v. K.D.A. PLD 1998 Kar. 283 ref.

Bashir Ahmed Shaikh for Plaintiffs.

M. Ikram Siddiqui for Defendants.

YLR 2000 KARACHI HIGH COURT SINDH 1176 #

2000 Y L R 1176

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

FAZAL KARIM and others‑‑‑Petitioners

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑720 of 1992, heard on 17th November, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑Findings of fact, interference with‑‑‑Exercise of Constitutional jurisdiction by High Court‑‑‑Scope‑‑‑High Court does not ordinarily interfere with the findings of fact recorded by a Court of law or a Tribunal created under a provision of law, unless such findings be completely arbitrary, perverse or based on misreading of evidence‑‑‑High Court under its Constitutional jurisdiction does not sit in appeal over the findings of a forum of law.

(b) Administration of justice‑‑‑

‑‑‑‑Public functionaries, and more particularly functionaries vested with quasi-judicial authority are expected to exercise the jurisdiction honestly, fairly, reasonably and within the sphere of authority vested in them.

‑‑‑‑Art.199‑‑‑West Pakistan Board of Revenue Act (XI of 1957), S.8‑‑‑Constitutional petition‑‑‑Review of order passed by Board of Revenue‑‑‑Petitioners contended that the land in their possession was less than the one allotted to them‑‑‑Proceedings were initiated before Revenue Authorities and finally the Board of Revenue found that the petitioners were entitled to such piece of land which was already in their possession ‑‑‑Validity‑‑Nothing on the record was available to suggest that the order of Board of Revenue suffered from any inherent legal infirmity or want of jurisdiction warranting interference by High Court in exercise of Constitutional jurisdiction‑‑‑Constitutional jurisdiction of High Court was always exercised in order to foster the ends of justice, to right a wrong and to suppress the mischief rather than to perpetuate an illegal act‑‑‑Where order of Board of Revenue, on the face of it, did not appear to have caused miscarriage of justice, such order was not to be struck down‑‑Petition was dismissed in circumstances.

Abdul Fattah Malik for Petitioners.

Zawar Hussain Jaffri, Addl, for Respondents.

A. M. Mobeen Khan for the Remaining Respondents.

Date of hearing: 17th November, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1185 #

2000 Y L R 1185

[Karachi]

Before Zahid Kurban Alavi, J

Haji MUHAMMAD YUNUS‑‑‑Appellant

versus

LAND ACQUISITION OFFICER

AND ASSISTANT COMMISSIONER, SHAHDADPUR‑‑‑Respondent

First Appeals Nos.22, 23, 24 and 25 of 1992, decided on 6th November, 1999.

(a) Maxim‑‑

‑‑‑‑ "A communi observantia non est recedendum"‑‑‑Meaning‑‑‑Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not done so, it would not be lawful.

1998 CLC 1520 and PLD 1964. SC 536 ref.

(b) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss.4, 6, 18 & 54‑‑ Acquisition of land‑‑Reference, filing of‑‑‑Limitation‑‑‑Jurisdiction of Court to entertain reference ‑‑‑Scope‑‑Lands of the appellants were acquired and references against the compensation award were sent to the Additional District Judge beyond a period of six weeks ‑‑‑Validity‑‑Period prescribed for filing of such reference was six weeks as provided by S.18, Land Acquisition Act, 1894, and the same could only be made to the District Judge‑‑‑Court was under a duty to show awareness of the law to apply same, irrespective of the fact whether parties or their counsel invoked the law or not‑‑‑Reference ought not to have been sent and if sent, ought to have been rejected by the Additional District Judge on the legal position‑‑‑Additional District Judge had no jurisdiction to entertain and to adjudicate on such references as the same were illegal and did not confer jurisdiction on him‑‑Judgments passed by Additional District Judge having no legal sanctity the same were void and were set aside in circumstances.

Province of Punjab through Project Director, Housing and Physical Planning Department v. Sher Muhammad and another PLD 1983 Lah. 578; 1994 SCMR 107; Assistant Commissioner, Mianwali and another v. Muhammad Amir and 4 others 1987 CLC 2095; Nazar Muhammad Khan v. Collector NLR 1980 Revenue Lah. 36; Muhammad Mustafa v. Excise and Taxation Officer and another PLD 1992 SC 398; Sardar Abdus Samad Khan v. Land Acquisition Collector 1990 MLD 972; Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others 1996 SCMR 1361; Land Acquisition Officer, L.B.O.D. WAPDA, Hussainabad, Hyderabad v. Abdul Hamid Ali and 2 others 1999 MLD 2922; Syed Saadi Jafri Zainabi v. Land Acquisition Collector' and Assistant Commissioner PLD 1992 SC 472; Water and Sanitation Authority and another v. Niaz Muhammad and 5 others 1994 SCMR 1648; Haji Muhammad and others v. Deputy Commissioner, Karachi (East) 1990 MLD 923 and Falak Sher v. ‑Ali Ahmad Noor and others 1999 CLC 1297 ref.

‑‑‑S.18‑‑Acquisition of land‑‑‑Award of compensation‑‑‑Reference to Court‑‑Conditions for such reference enumerated.

The Land Acquisition Officer has power to make reference subject to certain conditions i.e.:

(a) There should be a written application by the person interested, who has not accepted the award.

(b) Nature of objections must be given, (c) The time, within which, the application shall be made. The Land Acquisition Officer is bound to satisfy itself that the references made by him comply with the specified conditions so as to give the Court, jurisdiction to hear the references and if the references do not comply with the terms of the Act, then the Court cannot entertain them. If the applications under section 18 of Land Acquisition Act are made after the maximum period of six months to the Land Acquisition Officer, the Land Acquisition Officer shall reject such applications and even if he makes the references on such applications, the Court shall reject the same and shall not have the jurisdiction to entertain such references and to adjudicate them.

In the present cases the Additional District Judge has given the judgment without any jurisdiction as such the judgment passed by him suffers from total want of jurisdiction and is void.

1996 CLC 1943; 1997 MLD 2359; PLD 1983 Lah. 578; AIR 1963 Ker. 3; AIR 1965 Andh. Pra. 25; AIR 1962 J&K 59; AIR 1959 Al1.576 and State of Jammu and Kashmir v. Muhammad Shafi PLD 1971 Azad J&K 33 ref.

(d) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑S.4‑‑‑Limitation Act (IX of 1908), Preamble‑‑ Acquisition of land‑‑‑Proceedings under Land Acquisition Act, 1894‑‑Provisions of Limitation Act, 1908‑‑Applicability‑‑‑Provisions of Limitation Act, 1908, are not applicable to proceedings under Land Acquisition Act, 1894.

Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191 and State of Jammu and Kashmir v. Muhammad Shafi PLD 1971 Azad J&K 33 ref.

(e) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss.28(A) & 34‑‑‑Acquisition of land‑‑Award of compensation‑‑‑Additional compensation charges and interest, payment of‑‑‑Land Acquisition Officer failed to include additional compensation charges and interest in the amount.. of compensation in the award‑‑‑Validity‑‑‑Mandatory on such officer to award relief which he had omitted ‑‑‑Reliefs under Ss.28(A) & 34, Land Acquisition Act, 1894 were allowed on the compensation already awarded by the Land Acquisition Officer, up to the date the compensation was paid to the appellants in circumstances.

Vijayee Kumar for Appellant.

Mian Khan Malik Addl. A.‑G. for the State‑.

Ghulam Rasool Qureshi: Amicus curiae.

Date of hearing: 27th September, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1198 #

2000 Y L R 1198

[Karachi]

Before Rana Bhagwan Das and

Sabihuddin Ahmed, JJ

STATE BANK OF PAKISTAN‑‑‑Appellant

versus

CHIRAGH SUN ENGINEERING LTD.

and another‑‑‑Respondents

High Court Appeal No. 163 of 1998, decided on 8th April, 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

‑‑‑‑S.2(b)‑‑‑Banking Court, jurisdiction of‑‑Cases falling within the jurisdiction of Banking Court‑‑‑Scope‑‑‑Damages on account of cancelled contracts; damages on account of inability to do business, specific performance of contract; mandatory injunction for refund of specific amount, declaration that the levy of penalty was illegal; direction to render accounts and different injunctions seeking to restrain the defendants from recovering moneys; claiming interest and instituting legal proceedings are the matters within the exclusive jurisdiction of a Banking Court.

Nasimuddin v. United Bank Ltd. 1998 CLC 1718 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

‑‑‑‑Preamble & S.9‑‑‑Banking Court, jurisdiction of‑‑‑Adding a claim in nature of ort‑‑‑Whether acts as ouster of jurisdiction of Banking Court‑‑‑Principle‑‑‑Jurisdiction of an exclusive forum established by law could not be ousted by merely adding a claim in the nature of a tort arising out of legal relationship constituted by a contract for finance facilities under provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Ouster of jurisdiction would obviate one of the main objects of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 namely to constitute a special forum for adjudication of disputes between the Banks and borrowers/customers.

‑‑‑‑S.5‑‑‑Suit for recovery of Bank loans‑‑High Court, jurisdiction of‑‑‑Nature‑‑Jurisdiction conferred on High Court under the Ordinance is a special jurisdiction and while exercising the same, High Court bears fictional character of a Special Court as defined in the statute.

Muhammad Ayub Butt v. Allied Bank Ltd. PLD 1981 SC 359 and Bolan Bank Limited v. Capricorn Enterprises (Pvt.) Ltd. 1998 SCMR 1961 ref.

(d) Jurisdiction‑--

‑‑‑‑ Creation of a new jurisdiction ‑‑‑Scope‑‑Where an enactment creates a new jurisdiction and prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved by an order made in exercise of such jurisdiction must seek only such remedy and not others.

(e) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S.21(5)‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑Maintainability‑‑‑Decision on preliminary issues‑‑‑Appeal against‑‑‑Where Single Judge of High Court decided the preliminary issues while exercising jurisdiction under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, appeal against such order was patently barred.

National and Grindlays Bank Ltd. v. N.P. Miranda and‑2 others 1984 CLC 2106; United Bank Ltd. v. Mian Abdul Rashid and another 1987 CLC 331 and Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109 ref.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 5‑‑‑Jurisdiction of High Court‑‑Scope‑‑‑Judge of High Court acting as Banking Court is not a persona designata on whom the jurisdiction vested by law is conferred.

Abrar Hassan for Appellant.

Qazi Faiz Essa for Responddnt No. 1

A. 1. Chundrigar for Respondent No.2.

Date of hearing: 7th April, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1219 #

2000 Y L R 1219

[Karachi]

Before Shabbir Ahmed, J

PHILIPPINE AIRLINES‑‑‑Plaintiff

versus

PARAMOUNT AVIATION (PVT.) LTD. ‑‑‑Defendant

Suit No. 1246 of 1997 and Civil Miscellaneous Application No. 165 of 1998, decided on 17th May, 1999.

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

‑‑‑‑O.XXV, R.1‑‑‑Security for costs‑‑‑Suit for recovery of money‑‑‑If plaintiff is a foreigner having no immovable property in Pakistan, his case comes within the terms under O.XXV, R.1, C.P.C. which provides that the Court, in such circumstances, may order the plaintiff to give security for costs.

(b) Civil Procedure Code. (V of 1908)‑‑

‑‑‑‑O.XXV, R.1‑‑‑Sindh Chief Court Rules (O.S.), R.108‑‑‑Security for costs‑‑‑Quantum of such costs‑‑‑Jurisdiction of Court‑‑Provisions of O.XXV, R.1, C.P.C. provides the grounds for exercising powers for security by plaintiff for the costs, whereas, R.108, Sindh Chief Court Rules (O.S.), quantifies the amount of bond in normal course.

‑‑‑‑O.XXV, R.1‑‑‑Security for costs‑‑‑Suit for recovery of money‑‑‑Plaintiff, a foreign company, had no assets in Pakistan and the claim of the plaintiff was admitted by the defendant subject to plea of limitation set off and to counterclaim‑‑‑Defendant/applicant filed such application for deposit of security for costs‑‑‑Validity‑‑‑On account of counterclaim, the position of the plaintiff had become dual i.e. defendant as well qua the counterclaim of the defendant/applicant‑‑Facts stated by defendant/applicant could not be considered without notice to the plaintiff‑‑Circumstances of the case did not warrant fob the exercise of discretionary power in favour of the defendant/applicant directing the plaintiff to furnish security as to the costs‑‑Application was dismissed in circumstances.

Qazi Faez Isa for Plaintiff.

Ahmed Saeed for Defendant.

YLR 2000 KARACHI HIGH COURT SINDH 1243 #

2000 Y L R 1243

[Karachi]

Before Abdul Hameed Dogar, J.

ZAMIR HUSSAIN MIRANI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.244 of 1999, decided on 1st November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/395/397/34‑‑‑Bail, grant of‑‑‑Accused was not nominated in the FLR., but had been subsequently involved in the case by the witnesses in their statements recorded under Ss.161 & 164, Cr. P. C.‑‑‑Accused appeared to have been shown to the prosecution witnesses prior to holding of identification test. Co‑accused had already been released on bail‑‑‑Case against accused, in circumstances, needed further inquiry as contemplated by S. 497(2), Cr. P. C. and he was allowed bail accordingly.

Muhammad Ayaz Soomro for Applicant.

Inayatullah Morio for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1258 #

2000 Y L R 1258

[Karachi]

Before Zahid Kurban Alavi, J

MUMTAZ ALI ‑‑‑Petitioner

versus

Dr. GULNAZ and another‑‑‑Respondents

Constitutional Petition No.51 of 1999, decided on 4th November, 1999.

(a) Muhammadan Law‑

‑‑‑‑ "Khula' "‑‑‑Meaning and applicability‑‑Khula' in its primitive sense, means to draw off or dig up ‑‑‑Khula' signifies an agreement entered into for the purpose of dissolving a connubial connection, in lieu of compensation paid by wife to her husband out of her property.

Jama Ramooz ref, (b) Muhammadan Law‑‑‑

‑‑‑‑ Khula'‑‑‑Exercise of right of Khula' by wife‑‑‑Applicability‑‑‑Wife was not entitled to claim such right as a matter of right, without satisfying Court that relations between parties were so strained that they could not live within limits prescribed by God‑‑‑Right of Khula' was not unconditional right, but the same would be granted by a Court upon satisfying itself that there was such discord, hatred, intense, dislike and incurable aversion on the part of the wife that it was impossible for the spouses to live together and perform their marital obligations within the limits prescribed by God‑‑‑Wife claiming Khula' was obliged to return the articles or compensation in respect thereof, received by her from her husband; on account of the marriage and also to refund the cash amount received by her but there was no legal obligation to pay compensation in addition to such items. (pp. 1266, 12671 B & C

‑‑‑‑ Divorce on basis of Khula'‑‑‑Exercise of Constitutional jurisdiction by High Court‑‑ Suit for dissolution of marriage filed by wife was decreed by the Family Court on the basis of Khula'‑‑‑Contention raised by the husband was that right of Khula' was not absolute right of wife but was a controlled one and the same was not to be allowed frequently on mere asking of the wife unless Court was satisfied‑‑‑Validity‑‑‑Right of Khula' was not contingent on the consent of the husband but was dependent upon reaching a conclusion on the part of Court that spouses could no longer live within the limits of God‑‑‑High Court in exercise of Constitutional jurisdiction would only interfere when Court or Tribunal had acted without jurisdiction or in violation of relevant statute or law‑‑Judgment and decree of the Family Court having attained, finality, mere fact that on reappraisal of evidence High Court might have come to a different conclusion would not make decision of Family Court without jurisdiction‑‑‑Constitutional petition was dismissed in circumstances‑‑‑Constitution of Pakistan (1973), Art. 199.

Fatwa‑i‑Kazee, 1977 Edn. Khan, Vol. II, para.2619; 1987 MLD 2336; 1984 CLC 822; 1988 MLD 2169; Abdul Majid and another v. Qazi Abbas Hussan Shah .1995 SCMR 429; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Umdatul Qari; Tafsir Kabeer and Khula'; Fathul Bari; Abdul Raheem v. Shahida Khan PLD 1984 SC 329; Amina Bibi v. Mehmood Hussain 1998 CLC 1711; Lal Muhammad v. Gul Bibi PLD 1986 Quetta 159 and Aalia v. Additional District Judge, Quetta 1986 CLC 27 ref.

(d) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑

‑‑‑‑S.2‑‑‑Khula'‑‑‑Dissolution of marriage‑‑Grounds‑‑‑Dissolution on the ground of aversion against the husband‑‑‑Validity‑‑Grounds mentioned in S.2, Dissolution of Muslim Marriages Act, 1939, could be taken by a wife, besides the ground of aversion against the husband‑‑‑Where wife failed to substantiate the other grounds, still her plea of aversion could not be brushed aside‑‑Court on such score alone had to arrive at conclusion whether, as per facts on record, husband and wife could or could not live together in harmony or in conformity with their obligations and as such within limits of God‑‑‑Where the answer was negative, Court could order separation of spouses by Khula' in circumstances.

Mansoor‑ul‑Haq Ansari for Petitioner.

Naimatullah Soomro for Respondent No,

YLR 2000 KARACHI HIGH COURT SINDH 1277 #

2000 Y L R 1277

[Karachi]

Before Dr. Ghous Muhammad, Messrs AIRPORT LIMOUSINE SERVICES‑‑‑Appellant

versus

THE AIRPORT MANAGER, CIVIL

AVIATION AUTHORITY, QUAID‑E

AZAM INTERNATIONAL AIRPORT, KARACHI and another‑‑‑Respondents

Civil Miscellaneous Appeal No. 10 of 1998, decided on 2nd February, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Applicant was only a licensee and licence given to him had expired‑‑‑Being only licensee applicant had no vested right to continue licensed work under cover of interim injunction and he would not suffer irreparable loss if his request for interim injunction was declined‑‑‑Application for grant of injunction, was rightly dismissed by Trial Court, in circumstances.

M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83; Messrs Muhammad Ishaq & Sons v. Government of Pakistan through Secretary, Ministry of Railways, Federal Secretariat, Islamabad and another 1992 CLC 1515; Mian Muhammad Altaf v. The Secretary Health, Government of Punjab, Lahore and another PLD 1992 Lah. 199; Messrs Kohinoor Trading (Pvt.) Ltd. v. Mangrani Trading Co. and others 1992 CLC 1559; Civil Aviation Authority Karachi v. Messrs Data International (Data Baggage House), Karachi and 2 others PLD 1993 Kar.700 and Saeed Ahmed Malik v. Naval Estate Officer 1989 CLC 1056 ref.

Muhammad Tariq for Appellant.

Umer Qureshi for Respondents.

Date of hearing: 2nd February, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1288 #

2000 Y L R 1288

[Karachi]

Before Hamid Ali Mirza, J

MIR ZAMAN and another‑‑‑Plaintiffs

versus

KARACHI ELECTRIC SUPPLY

CORPORATION through its Chairman

Managing Director or Secretary and another‑‑‑Defendants

Suit No. 1085 of 1991 decided on 1st March, 1999.

Fatal Accidents Act (X111 of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for damages‑‑Evidence on record had fully proved that deceased met with unnatural death because of falling of live electric wire upon him‑‑ Nothing was on record to show that electric wire fell down upon deceased because of any of his act or omission‑‑‑Defendants failed to show that there had been some misuse or interference of any subscriber ‑‑‑ Defendants had themselves admitted that it was their responsibility to instal and maintain poles and wires periodically for which necessary record was to be maintained‑‑‑No record had been produced by defendants certifying that wires so fell/broken were properly installed and were found fit periodically‑‑‑Fact that deceased had died due to negligence on part of defendants was proved and death of deceased could not be said to have occurred as a result of accident‑‑‑Defendant, in circumstances, were liable to compensation to plaintiffs/heirs of deceased jointly and severally‑‑‑Amount of compensation was determined keeping in view, age, status and earning capacity of deceased.

S. Iqbal Hussain Jaffery v. Karachi Electric Supply Company 1994 CLC 1903 and Mst. Bibi Surat Jan v. Mir Azam Khan and two others PLD 1993 Kar. 168 ref.

Nasir Maqsood for Plaintiff, Abdul Saeed Khan Ghori for Defendants.

Date of hearing: 1st February, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1303 #

2000 Y L R 1303

[Karachi]

Before Anwar Zaheer Jamali, J

PUNHOO alias HALIM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 608 of 1999, decided on 15th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497 & 498‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)‑‑‑Bail, grant of‑‑‑Accused was not named in F.LR.‑‑Complainant and other passengers of bus driven by complainant, had claimed that they would identify accused on seeing him, but no identification parade was held‑‑‑No recovery was effected from accused‑‑‑Foot prints test of accused which was only piece of evidence against accused having been held after more than twenty‑three days of occurrence, had no evidentiary, value being not in accordance with law‑‑‑Reasonable grounds existed to believe that accused was not guilty of offence with which he was charged and case against accused needed further inquiry‑‑Bail was allowed to accused in circumstances.

Lakhmir and others v. The State PLD 1964 (W. P.) Kar.197; Shafu alias Shafi Muhammad v. The Crown 1971 SCMR 200 and Shafi Muhammad v. The State PLD 1971 Kar. 721 ref.

Ghullam Hyder Baloch for Applicant.

Muhammad Azeem Panhwar for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1311 #

2000 Y L R 1311

[Karachi]

Before Saiyed Saeed Ashhad, J

IFTIKHARUDDIN‑‑‑Petitioner

versus

Mst. ASHRAFUN NISA and another by Legal Heirs‑‑‑Respondents

Civil Revisions Nos. 119 and 120 of 1992, decided on 8th December, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.10‑‑‑Return of appeal‑‑‑Appeal was dismissed by Lower Appellate Court on the ground of lack of pecuniary jurisdiction‑‑Validity‑‑‑Where the subject‑matter exceeded the pecuniary jurisdiction, the proper course for the Lower Appellate Court was to return the memo of appeal to the appellant for prosecution in competent Court having jurisdiction to proceed with the appeal‑‑Dismissal of such appeal by the Lower Appellate Court was not proper and valid‑‑Judgment and decree passed by Lower Appellate Court was set aside in circumstances.

Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Kar. 277; Twaha v. The Master M. V. Asian Queen and 2 others PLD 1982 Kar. 749; Mst. Sharaf Khatoon v. Abdul Majeed PLD 1985 Quetta 54 and Salman Ashraf v. Begum Asmatunnisa 1991 MLD 1510 ref.

Muhammad Akram Siddiqui for Petitioner.

Muhammad Yaqoob and Thawar Ali Khan for respondents.

Date of hearing: 8th December, 1999,

YLR 2000 KARACHI HIGH COURT SINDH 1320 #

2000 Y L R 1320

[Karachi]

Before Rana Bhagwan Das and Mashir Alam, JJ

Mian ABDUL RASHEED and others‑‑Petitioners

versus

DEPUTY COMMISSIONER and others‑‑‑Respondents

Civil Petition No. D‑375 : and Civil Miscellaneous Application .No.810 °of4999, decided on 25th November, 1999.

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

‑‑‑‑Paras. 30 & 31‑‑Complaint, filing of‑‑Delegation of authority to various functionaries‑‑‑Scope‑‑‑Deputy Land Commissioner could authorise the filing of a complaint in writing against a person who contravened the provisions of Land Reforms Regulation, 1972 or, the rules and orders made there under.

Nafees‑ud‑Din Khan v State 1979 PCr. LJ 389 distinguished.

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

‑‑‑‑Paras. 13 & 16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Restoring the possession of surrendered land to the persons to whom such land was allotted after surrender‑‑‑Authority restrained the petitioners from interfering into the _ possession of such allottees‑‑‑Validity‑‑‑Order as passed by the Authority in an administrative capacity and not in judicial capacity‑‑‑Findings recorded by Authority were subject to judicial review and the petitioners had ample opportunity to agitate all relevant grounds before the Court of law that might be available to them‑‑‑Where the petitioners had nothing to do with surrendered land, their interference into such land was uncalled for‑‑‑Order of the Authority did not suffer from inherent lack of jurisdiction and was not passed without any lawful authority‑‑‑Petition was dismissed in circumstances.

M.A. Rasheed for Petitioners

Zawar Hussain Jafferi, Addl. A; G, for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1327 #

2000 Y R 1327

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

JALILUR‑REHMAN Petitioner

versus

THE DEPUTY COLONIZATION OFFICER‑‑‑Respondent

Constitutional Petition No.D‑283 heard on 15th December, 1999.

Land Grant Policy, 1969

‑‑‑‑Guddu Barrage‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Grant of Guddu Barrage land was initially made in favour of petitioner which was subsequently cancelled‑‑‑Petitioner failed to get the order of such cancellation set aside by the Authorities but both the Courts below decided the matter concurrently in favour of the petitioner‑‑‑Respondent preferred revision petition which was pending in High Court‑‑During the pendency of petitioner's case in the Trial Court, respondent managed to get the grant of same piece of land in his favour‑‑‑Such fact was suppressed by respondent in proceedings before the Trial Court‑‑‑Despite the fact that both the Courts below had concurrently decide the matter in favour of petitioner, the Authorities refused to cancel the grant of land in favour of the respondent‑‑‑Validity‑‑‑Grant in favour of the petitioner having been validated by the decree of the Civil Court had rendered the grant in favour of the respondent ineffective and of no legal effect‑‑‑By not disclosing the grant of disputed land in his favour, the respondent was guilty of suppression of material facts from the Court‑‑‑Orders passed by the Authorities suffered from serious inherent defect and were passed without lawful authority‑‑‑Such orders being of no legal effect were set aside in circumstances.

Lachmandas Rai Petitioner

Nemo for Respondents.

Date of hearing; 5th December 1999

YLR 2000 KARACHI HIGH COURT SINDH 1336 #

2000 Y L R 1336

[Karachi]

Before Rana Bhagwan Das and

Mashir Alam, JJ

CHIEF ADMINISTRATOR, AUQAF‑‑‑Petitioner

versus

PROVINCE OF SINDH and another‑‑‑Respondents

Constitutional Petition No.D-461 of 1991, heard on 8th September, 1999.

West Pakistan Waqf Properties Ordinance (XXI of 1959)‑‑‑

‑‑‑‑Ss.6 & 16‑‑‑Sindh Katchi Abadis Act (11 of 1987), S.19‑‑‑Sindh Katchi Abadis (Regularisation and Development) Order, 1982 [M.L.O. 183, Zone C J, para.3(2) & (3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Declaring an area as Katchi Abadi‑‑‑Such declaration was made with regard to the properties which had already been notified as Waqf properties‑‑‑Issuance of such notification under para. 3(2) & (3) of Sindh Katchi Abadis (Regularization and Development) Order, 1982 [M.L.0.183, Zone C] while Sindh Katchi Abadis Act, 1987 was still in field‑‑Validity‑‑‑Provincial Government did not hold an inquiry with regard to the unauthorised occupation of the area by respective persons before the target date and declared such area as Katchi Abadi‑‑Provincial Government had neither placed any material on the record, nor parawise comments were submitted despite the pendency of the petition for nine years‑‑‑Chief Administrator, Auqaf had already issued notifications under S.6 of West Pakistan Waqf Properties Ordinance, 1959, in the years 1960 and 1961 declaring the same properties as "Waqf" properties under his administration‑‑‑Provisions of S.16 of West Pakistan Waqf Properties Ordinance, 1959 had overriding effect and the same could not be overlooked‑‑‑Notification issued by the Provincial Government was not sustainable as the same was issued without any lawful authority and was of no legal effect.

Ahmed Ali Memon for Petitioner.

Syed Zawar Hussain Jafri, Addl. A.‑G. for Respondent Nos. l and 2.

Abdul Sattar Chohan for Respondent No.3.

Date of hearing: 8th September, ! 999.

YLR 2000 KARACHI HIGH COURT SINDH 1352 #

2000 Y L R 1352

[Karachi]

Before Dr. Ghous Muhammad, J

Mst. AISHA BIBI‑‑‑Appellant

versus

Mst. ANWER SULTANA‑‑‑Respondent

First Rent Appeal No.20 of 1999, decided on 4th March, 1999.

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

‑‑‑‑S. 16(1)(2)‑‑‑Striking off defence of tenant‑‑‑Rent Controller having been satisfied that tenant had deposited disputed rent in miscellaneous case, directed tenant to deposit future monthly rent, but without giving clear direction that instead of depositing future monthly rent in miscellaneous case it should have been deposited in the ejectment case and tenant under bona fide mistake continued depositing rent in miscellaneous case‑‑Effect‑‑‑If tenant had failed to deposit rent in the ejectment case, that default would be treated as a technical default‑‑‑Tentative rent order passed under S. 16(l) of Sindh Rented Premises Ordinance, 1979 should be specific and clear without having room for any vagueness or doubt‑‑‑Order striking off defence of tenant for non‑compliance of tentative rent order was set aside in circumstances.

Abdullah Ghanghre and another v. Mst. Tahira Begum and others 1988 SCMR 970; Muhammad Naeem and another v. M/s. Karim Bidi Works through Partners 1992 CLC 2499 and Muhammad Hanif v. Muhammad Muslim 1997 CLC 1491 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Principles‑‑‑Penal provision‑‑‑Rule of interpretation in applying penal clauses is that interpretation favourable to the incumbent should be taken into consideration where question of imposing penalties would arise.

Muhammad Amin Khan for Appellant.

Shamdas B. Chhangani for Respondent.

Date of hearing: 4th March, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1363 #

2000 Y L R 1363

[Karachi]

Before Rana Bhagwan Das and Sabihuddin Ahmed, JJ

Messrs LEVER BROTHERS PAKISTAN

LIMITED‑‑‑Appellant

versus

The FEDERATION OF PAKISTAN and others‑‑‑Respondents

High Court Appeal No.215 and Civil Miscellaneous Application No. 1258 of 1998, decided on 23rd April, 1999.

(a) Central Excises Act (1 of 1944)‑‑‑

‑‑‑‑Ss.14 & 40‑‑‑Civil, Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Interim injunction‑‑‑Claiming of exemption from payment of excise duty‑‑‑Appellant company was selling tea packed in filter paper bags (tea bags)‑‑‑Respondents‑Authorities asked for information about such tea bags as excise duty was to be levied on such bags‑‑‑Suit was filed against such action of the respondents‑Authorities and interim injunction was sought‑‑‑High Court in its original jurisdiction refused such injunction‑‑Contention of the appellant‑company in High Court Appeal was that filter papers were exempted from excise duty whereas the plea raised by the Authorities was that the bags made of such filter papers were separately classified under separate heading and were separate goods distinguished from filter papers‑‑‑Validity‑‑‑Question whether such filter bags were prepared as consequence of a manufacturing process was indeed one which the Authorities were competent to determine for the purpose of deciding whether any duty was leviable‑‑‑Such order of the Authorities could not be said to be plainly ultra vires the powers of Central Excise Authorities‑‑Company having failed to make out any case for grant of temporary injunction particularly when only information was obtained and no substantial prejudice was being caused to the appellant‑company, such orders of the Authorities were unexceptionable and appeal was dismissed in limine.

Civil and Military Process Ltd. and others v. Pakistan 1985 CLC 1021; Trust Ceramic Industries v. Deputy Collector‑I1, Central Excise 1991: CLC 1923 and Assistant Collector of Central Excise v. Orient Straw Board and Paper Mills PLD 1991 SC 992 ref.

(b) Central Excises Act (I of 1944)‑‑‑

‑‑‑‑S.40‑‑‑Jurisdiction of Civil Courts‑‑Scope‑‑‑Modifying or setting aside any order passed under Central Excises Act, 1944‑‑Scope‑‑‑Provision of S.4D of Central Excises Act, 1944 bars jurisdiction of Civil Courts‑‑Where the actions of Central Excise Authorities were mala fide or ultra vires the powers conferred by Central Excises Act, 1944, jurisdiction of Civil Courts to entertain suit was not ousted.

Makhdoom Ali Khan for Appellant.

Mushir Alam, Standing Counsel for Respondents.

Date of hearing: 1st April, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1376 #

2000 Y L R 1376

[Karachi]

Before Syed Haider Ali Pirzada, J

THE WELLCOME FOUNDATION LIMITED‑‑‑Plaintiff

versus

Messrs KARACHI CHEMICAL

INDUSTRIES (PRIVATE) LIMITED‑‑‑Defendant

Suit No. 393 and Civil Miscellaneous Application No.2900 of 1988. decided on 21st September. 1988.

(a) Trade Marks Act (V of 1940)‑‑‑

‑‑‑‑Ss.21 & 73‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Trade mark, infringement of and passing off‑‑‑Interim injunction, grant of‑‑‑Exclusive right of user of registered trade mark ‑‑‑Exceptions‑‑ Scope‑‑‑Registration of a trade mark had given to the person an exclusive right to use the mark and such right was to be deemed to be infringed by any person who, not being the proprietor of that trade mark or registered user thereof, used a mark identical with the same or so nearly resembling it as it was, likely to deceive or cause confusion in the course of trade, in relation to any goods ii respect of which such mark was registered Provision of S.21, Trade Marks Act. 194, pointed out two exceptions against the exclusive right of user‑‑‑One exception was in favour of the proprietor of that trade mark while the other in respect of a registered user using such mark by way of permitted use‑‑Defendant had failed to set up any such case‑‑‑Where the bottles, paper boxes/cartons of the defendants were very similar to that of the plaintiff, the same were likely to cause deception and confusion in the minds of the unwary purchasers‑‑‑Defendants were prima facie guilty both of infringement of the trade mark and passing off‑‑‑Interim injunction was granted to plaintiff in circumstances.

(b) Trade Marks Act (V of 1940)‑‑‑

‑‑‑‑Ss. 21 & 79‑‑‑Trade mark, infringement of‑‑‑Trade usage, proof of‑‑‑Scope‑‑‑Where the defendants did not provide the figures of sale of their product, it could not be said that the defendants' product had acquired any appreciable market‑‑‑Defendants could not take advantage of exception mentioned in S.21 of Trade Marks Act, 1940‑‑‑Defendants, thus, failed to establish that they were the proprietors of the disputed trade mark in circumstances.

‑‑‑‑Ss.6 & 21‑‑‑Similarity between two trade marks‑‑‑Point to be considered‑‑‑In order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered‑‑‑Such trade marks should not be placed side by side to find out if there are any differences in the design and if so, whether the same are of such character as to prevent one design from, being mistaken for the other ‑‑‑Where‑the impugned mark bears such an overall similarity to the registered trade mark as would be likely to mislead a person usually dealing with one to accept the other if offered to that person, the same is enough to cause deception in circumstances.

(d) Trade Marks Act (V of 1940)‑‑‑

‑‑‑‑S. 21‑‑‑Trade mark, infringement of‑‑Registration of a product with Ministry of Health under the provisions of Drugs Act, 1976‑‑‑Effect‑‑‑Mere such registration could not immunise the defendants against claims of the plaintiffs under the provisions of Trade Marks Act, 1940.

Farrukhk Irfan Khan for Plaintiff.

Latifur Rehman for Defendant.

YLR 2000 KARACHI HIGH COURT SINDH 1385 #

2000 Y L R 1385

[Karachi]

Before Rana Bhagwan Das and

Shabbir Ahmad, JJ

Messrs SUPER BUILDERS‑‑Plaintiff

versus

GULSHAN‑E‑FAISAL COOPERATIVE

SOCIETY and others‑‑‑Defendants

Suit No.834 of 1998, decided on 18th May, 1999.

(a) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑Ss.5 & 70‑‑‑Notice to Registrar, Cooperative Societies‑‑‑Object‑‑‑Concept of making such notice compulsory is to afford opportunity to the cooperative society itself to make amends, but the same would be necessary only if such notice touches its business which in terms of S.5 of Cooperative Societies Act, 1925, can possibly be the promotion of economic interests of the members of that Society.

(b) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S.70‑‑‑Notice to Registrar, Cooperative Societies‑‑‑Object‑‑‑Such notice is required to provide an opportunity to the Registrar to examine the claims of non‑members against the societies and to settle the disputes between the parties before going into litigation.

‑‑‑‑S.70‑‑‑Notice‑‑‑Sending of such notice to Deputy Registrar, Cooperative Societies‑‑Validity‑‑‑Sending of notice to Deputy Registrar, instead of Registrar did not fulfil the requirement of law.

(d) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S.2(f)‑‑‑Expression "Registrar" in S.2(f), Cooperative Societies Act, 1925‑‑‑Definition‑‑‑Registrar has been defined as a person appointed to perform the duties of Registrar of Cooperative Societies‑‑‑Such interpretation clearly excludes the Deputy Registrar from the definition of Registrar.

(e) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S.70‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Suit for specific performance of an agreement to sell‑‑‑Application under O. VII, R. 11, C. P. C. ‑‑‑Dispute related to a private transaction between the plaintiff and private defendants‑‑‑Plaintiff filed suit against Cooperative Societies also, for the execution of contract‑‑‑Validity‑‑‑Defendant Society was not bound by the private transactions and, thus, could not be compelled to perform execution of such contract‑‑‑Where suit was filed only after two days of the despatch of notice by registered post as against the Registrar of Cooperative Societies, the same was barred by provision contained in S.70 of Cooperative Societies Act, 1925‑‑‑Suit was dismissed in circumstances.

(f) Karachi Development Authority Order (5 of 1957)‑‑‑

‑‑‑‑Art. 131‑‑‑Statutory notice ‑‑‑Requirement‑‑‑Where no such notice was served upon the Authority, suit was barred in law.

(g) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R. 7‑‑‑Pleadings, departure from‑‑Improving upon the case, without requisite averments in the plaint‑‑‑Validity‑‑‑Plaintiff, in absence of such averments, could not be permitted to improve upon his case at a subsequent stage.

S. Amjad Hussain for Plaintiff.

Abdul Aziz Khan for Defendant No. 1.

Amir Raza Naqvi for Defendant No.2.

Muhammad Iqbal Memon for Defendant No. 18.

Date of hearing: 17th May, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1395 #

2000 Y L R 1395

[Karachi]

Before Rana Bhagwan Mushir Alam, JJ

MUHAMMAD AFZAL‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑54 of 1990. heard on 15th December, 1999.

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

‑‑‑‑Para.l0(1)‑‑‑Holding of land‑‑‑Acquisition by retired civil servant‑‑ Restrictions‑‑‑Scope‑‑‑If retired civil servant acquired land or any right or interest there in within two years of his ceasing to be a civil servant, a restriction was imposed under para. 10(1) of Land Reforms Regulation, 1972 that such holding of land was not to exceed one hundred acres.

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

‑‑‑‑Para.10(1)‑‑‑Expression "any right or interest" was used in para. 10(1) disjunctively and not conjunctively to the expression "acquired any land".

‑‑‑‑Para.10‑‑‑Constitutuion of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Withdrawal of excess land‑‑‑Land allotted to the petitioner was found to be in excess under the provisions of Land Reforms Regulation, 1972 and such excess land was resumed by the Authorities‑‑‑Contention raised by the petitioner was that he was condemned unheard‑‑‑Validity‑‑‑Title of the order of recovery of excess land showed that there was a reference to notices issued at two different dates in the name of the petitioner‑‑‑Official acts on the face of record were presumed to be correctly and regularly performed and the presumption of correctness was always attached to official acts, more particularly to quasi judicial acts‑‑‑Such presumption was reputable but the petitioner failed to do so by no: taking such plea in express words in the memo. of the petition‑‑‑If petitioner himself did not assert such fact in the grounds of the petition, he was debarred from raising such question of fact at the hearing of the petition‑‑‑Petition being without merit was dismissed in circumstances.

(d) Land Reforms Regulation, 11,972 (M. L. R.115)‑‑‑

‑‑‑‑Para.10‑‑‑Constitution of Pakistan (19?;), Art.203‑F‑‑‑Supreme Court declaration that para.10 of Land Reforms Regulation, 1972 was repugnant to Injunctions of Islam was not retrospective in operation.

Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99; Ali Hussain v. Mir Zaman 1987 CLC 127; Muhammad Ibrahim v. Mir Muhammad 1995 MLD 1962 and Farmanullah Hashim v. Government of Pakistan 1998 MLD 1883 ref.

(e) Administration of justice‑‑‑

‑‑‑‑Past and closed transaction‑‑‑Case of the petitioner was decided as far back as June, 1974‑‑‑Petitioner tried to seek shelter behind a verdict of Supreme Court given in year 1990‑‑‑Case of the petitioner was a past and closed transaction and the same could not be reopened at such inordinately belated stage.

(f) Qanun‑e‑Shahadat Order (10 of 1984)‑‑‑

‑‑‑‑Art.129(e)‑‑‑Official acts‑‑‑Presumption‑‑Official acts on the face of record are presumed to be correctly and regularly performed and presumption of correctness was always attached to official acts more particularly to quasi judicial acts.

M. A. Rasheed for Petitioner.

S. Zawar Hussain Jafri, Addl. A.‑G. for Respondents.

Date of hearing: 15th December, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1414 #

2000 Y L R 1414

[Karachi]

Before Mushir Alam, J

ILLAHI BUX and another‑‑‑Appellants

versus

NISAR AHMAD ‑‑‑ Respondent

First Rent Appeal No. 108 of 1998, heard on 19th November, 1999.

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

‑‑‑‑Ss.2(j) & 15‑‑‑Landlord and tenant, relationship of‑‑‑Person in occupation of a premises of which he was not the owner; took defence in ejectment proceedings claiming hostile title or interest in the property or tenancy under some other person‑‑‑Effect‑‑Where such defence did not succeed, then conversely the claim of the landlord/owner seeking ejectment of ,such occupant would succeed‑‑‑Relationship of landlord and tenant under the Sindh Rented Premises Ordinance, 1979, would be deemed to, exist in circumstances.

Mohammad ‑Shabbir and another v. Mst. Hamida Begum 1992 MLD 323 ref.

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

‑‑‑‑Ss. 15 & 18‑‑‑Ejectment of tenant‑‑Landlord and tenant, relationship of‑‑‑Notice of change of ownership‑‑‑Tenant denied existence of any such relationship and claimed himself to be the tenant of Evacuee Trust Property Board‑‑‑Such claim of the tenant had been refuted by the Evacuee Trust Property Board some 19 years ago and the same had attained finality‑‑‑Validity‑‑‑Tenant himself initiated legal proceedings before the Evacuee Trust Property Authorities against the landlord in which proceedings he failed and the landlord was held to be the owner of the premises‑‑‑Claim of the tenant could not be justified and he had knowledge that landlord was the owner of the premises and he was bound to pay rent for his occupation at least from the date of determination by the Evacuee Trust Property Authorities‑‑‑Finding of Rent Controller on the issue of relationship was not sustainable and the same was set aside‑‑‑Appeal was allowed accordingly.

‑‑‑‑S. 15‑‑‑Default in payment of monthly rent‑‑‑Denial of relationship of landlord and tenant‑‑‑Effect‑‑‑Where such relationship had been denied, the tenant had not paid the rent to the landlord which he was liable to pay and tenant failed to prove his case, the default was automatically established‑‑Ejectment application was allowed in circumstances.

Guraldas for Appellants.

Ahmed Ali Memon for Respondent.

Date of hearing: 19th November, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1530 #

2000 Y L R 1530

[Karachi]

Before Amanullah Abbasi, J

Haji NOOR AHMED CONSTRUCTION

CO., KARACHI‑‑‑Plaintiff

versus

PROVINCE OF SINDH through

Secretary to Government of Sindh, Home Department, Karachi and another‑‑‑Defendants

Suit No. 771 of 1991, decided on 20th April, 1999.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.14‑‑‑Award, objection to‑‑‑Claims abandoned by plaintiff were made part of award by arbitrator ‑‑‑Validity‑‑‑Plaintiff had abandoned certain claims as not pressed and such fact was not rebutted by the other party, the award was modified to the extent of abandoned claims and the same were excluded from the award‑‑‑Where rest of the award was based on reasons and evidence, High Court could not substitute its findings in place of the award‑‑‑Except the claims dropped by the plaintiff, remaining award was made rule of the Court accordingly.

Bilal A. Khawaja for Plaintiff.

Muhammad Umer Qureshi for Defendants.

Date of hearing: 31st October, 1997.

YLR 2000 KARACHI HIGH COURT SINDH 1564 #

2000 Y L R 1564

[Karachi]

Before Muhammad Ashraf Leghari, J

NOOR ALI and 3 others‑‑‑Applicant;

versus

MUHAMMAD URIS and 11 others‑‑‑Respondents

Civil Revision Application No. 237 and Civil Miscellaneous Application No.548 of 1999, decided on 27th March, 2000.

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

‑‑‑‑S.96 & O.XLI, R.1‑‑‑First appeal‑‑‑Filing of appeal after decree was prepared‑‑Objection to filing of appeal was raised on the ground that the same was time‑barred‑‑Validity‑‑‑Appeal could only be filed under S. 96, C. P. C. and O.XLI, R.1, C. P. C., against decree and not against judgment‑‑Where decree was passed on 24‑2‑1999 and the appeal was filed on 10‑3‑1999, appeal so filed was not barred by time.

Habib Sultan v. Allahditta 1981 CLC 1715: Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; Muhammad Riaz and another v. Allahyar NLR 1983 UC 404; Mst. Farida Malik v. Dr. Khalida Malik 1998 SCMR 816; Mst. Fatima Bibi and others v. Noor and another 1994 SCMR 62 and Fateh Muhammad v. A. Ghani NLR 1981 Civil 512 distinguished.

(b) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑Ss.7(IV‑A) & 7(11‑CC)‑‑‑Ad valorem court fee, affixing of‑‑‑Suit for declaration was filed to the effect that the plaintiffs/respondents be declared as legal and lawful owners of suit land‑‑‑Contention by plaintiffs was that declaration sought was in regard to any lease relationship between the parties and provisions of S.7(11‑CC) of Court Fees Act, 1870 was applicable‑‑Validity‑‑‑Prayer clause of the plaint was contrary to the contentions raised by the plaintiffs and as such they were liable under the law to pay ad valorem court fee on the plaint as well as on the appeal pending in Lower Appellate Court.

Muhammad Ismail Memon for Applicants.

Jhamat Jhethanand for Respondents.

YLR 2000 KARACHI HIGH COURT SINDH 1575 #

2000 Y L R 1575

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDUL RAZAK‑‑‑Appellant

versus

MUHAMMAD SHAM and 4 others‑‑‑Respondents

First Rent Appeal No. 9 of 1998, heard on 10th March, 2000.

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

‑‑S.IS‑‑‑Ejectment proceedings‑‑‑Non payment of rent‑‑‑Onus to prove‑‑‑Scope‑‑ Burden to prove non‑payment of rent initially lies upon the landlord‑‑‑Where fact of non-payment is stated by landlord on oath and the same gets support from the evidence produced by him, then the burden is sufficiently discharged and it shifts on the tenant to prove the same affirmatively that the rent has been paid.

Allah Din v. Habib PLD 1982 SC 465; Mursaleen v. Ghulam Sarwar through its heirs and another 1991 SCMR 2042; Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs PLD 1994 Kar. 106; Feroz Khan v. Syed Soha 1996 CLC 949 and Saeedur Rehman Khan v. Islam Bari Siddiqui 1998 MLD 982 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑_

‑‑‑‑S.15‑‑‑Bona fide personal need of landlord‑‑‑Landlord was a businessman and was running his business in a rented shop‑‑No other shop, except the one which was tinder dispute, was owned by the landlord‑‑Testimony of witnesses produced by landlord was not shattered and the same inspired confidence ‑‑‑Ejectment order was passed by the Rent Controller as the landlord had proved his bona fide personal need‑‑Validity‑‑‑Where the tenant failed to prove That the landlord owned any other premises in the vicinity, such fact alone was sufficient attract the factum of personal bona fide need‑‑‑Rent Controller had rightly found that shop to question was required by landlord for personal bona fide use‑‑Judgment of Rent Controller was neither perverse nor illegal and did not call for interference.

Ghulam Akbar v. Abdul Rashid 1991 CI.C 951: Fasih Hashmi. v. Muhammad Rafiq 1990 CLC 1218:Rahimuddin v. Munny Khan 1989 CLC 994: Fazal Hussain v. Mst. Bundu Hajjan 1991 MLD 651; Mansoorul Haq v. Akbar Ali 1994 CLC 48: Noor Muhammad v. Zamir Ahmed Qidwai 1994 CLC 1751; Muhammad Hussain v. Saleh Muhammad 1998 MLD 1115; Abdul Aziz v. Muhammad Ibrahim PLD 1977 SC 44: Muhammad Jameel etc. v. Zahoor Ahmed 1986 SCMR 1088; Mumtaz Hussain v. Muhammad Iqbal 1984 SCMR 576 and Dr. Major Abdul Hadi Khan v. Soofi Muhammad Yasin & Brothers PLD 1984 SC 200 ref.

Jhamat Jhethanand for Appellant.

Raja Khan for Respondents.

Date of hearing: 10th March, 2000

YLR 2000 KARACHI HIGH COURT SINDH 1593 #

2000 Y L R 1593

[Karachi]

Before Sabihuddin Ahmed and Wahid Bux Brohi, JJ

ALLAH DINO ‑‑‑Petitioner

versus

MIR KHAN and 5 others‑‑‑Respondents

Civil Petitions Nos. 185‑D. 18.7‑D of 1999; Civil Revisions Nos. 31 and 32 of 1998, decided on 12th May, 1999.

(a) Jurisdiction‑‑‑

‑‑‑‑ Citing a wrong provision of law in title of application is no 'ground for refusing to exercise jurisdiction vested by law.

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

‑‑‑‑O. VI. R.17‑‑‑Amendment in pleadings‑‑Exercise of jurisdiction by Court ‑‑‑Scope‑‑Power to allow amendment in pleadings ought to be liberally exercised‑‑‑Delay in making application for amendment‑‑Validity‑‑‑Amendments in pleadings had been allowed even at appellate stage up to the level of Supreme Court itself‑‑‑Delay per se in making an application for amendment of pleadings was not relevant.

Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345 rel.

‑‑‑‑O. VI, R.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Amendment in pleadings‑‑‑Clerical error. rectification of‑‑‑Trial Court allowed the amendment sought by the plaintiff but the Lower Appellate Court refused the same merely because issues had been framed, though no evidence had been recorded or that by a mere change in description of the property, character of the suit would be changed‑‑‑Validity‑‑‑Once amended plaint. had been filed, the defendant was always given opportunity to file an amended written statement‑‑‑No prejudice would be caused to the respondents by such amendment in pleadings‑‑‑Order of Lower Appellate Court was without lawful authority and was of no legal effect‑‑‑Constitutional petition was allowed in circumstances.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Court exercising revisions powers ‑‑‑ Scope ‑‑‑ Provision of S.115, Cr. P. C. confers a limited jurisdiction upon a Court exercising revisional powers‑‑Court exercising revisional powers has to show how the order of Trial Court suffers from defect of the jurisdiction or that the discretion has been exercised with material irregularity‑‑‑Courts exercising revisional powers need to be cautious while interfering with discretionary orders passed by subordinate Courts and must keep in view the constraint upon their own jurisdiction.

Noor Ahmed Memon for Petitioners.

Muhammad Iqbal Qassar for Respondents.

Date of hearing: 12th May, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1603 #

2000 Y L R 1603

[Karachi]

Before Muhammad Roshan Essani, J

ABDUL HUSSAIN and another‑‑‑Applicants

versus

MUHAMMAD SHABBIR and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No. 145 of 1998, decided on 22nd November, 1999.

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

‑‑‑‑Ss. 200, 202 & 204‑‑‑Object and purpose of Ss. 200, 202 & 204, Cr. P. C. ‑‑Proceedings on complaint‑‑‑Magistrate upon taking cognizance of offence on complaint, was required to examine complainant upon oath at once and substance of examination had to be reduced to writing and signed by complainant and also by Magistrate‑‑‑Object of S. 200, Cr. P. C. was to ascertain facts constituting offence and to save wastage of time of the Court and also to enable Magistrate to arrive at a conclusion as to whether he should proceed further with the case or not‑‑‑Provisions of S. 202, Cr. P. C. postulated that the Court on receiving complaint of offence of which it was authorised to take cognizance, could, if it thought fit, for reasons to be recorded, postpone issues of process for compelling attendance of the person complained against and inquire into case itself for the purpose of ascertaining truth or ‑ falsehood of the complaint‑‑‑Object of S.202, Cr. P. C. was that Magistrate had to ensure that no person was vexed or compelled unnecessarily to face crime charge‑‑‑Intention of S.202, Cr.P.C. was to find out whether any prima facie case for proceedings was made out or not‑‑‑If Magistrate was satisfied that a prima facie case was made out, it was his bounden duty to issue process as contemplated under S.204, Cr.P.C.‑‑‑No time limit was provided under Criminal Procedure Code, 1898 for recording statement of complainant, holding preliminary enquiry and issuing process‑‑Justice delayed would mean justice denied‑‑No illegality was committed by Magistrate in promptly proceeding with complaint before issue of process under S. 204, Cr. P. C.

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

‑‑‑‑S. 202‑‑‑Preliminary inquiry‑‑‑Preliminary inquiry could not be equated with a regular trial for adjudicating guilt or otherwise of person complained against‑‑‑Court could not weigh/assess or evaluate evidence adduced by prosecution in the manner as was done upon conclusion of trial‑‑‑Preliminary inquiry was intended to find out whether any prima facie case was made out to put accused on trial‑‑‑If there were any material contradictions, those could be put to witnesses at the time of recording of evidence at the stage of trial and Court could consider same upon final evaluation of evidence in the light of peculiar facts and circumstances of any case.

‑‑‑‑ Two versions of incident‑‑‑Where there were two versions of incident, one version put forward by one party and counter‑version by its adversary, Trial Court while assessing evidence brought on record by the parties, had to keep both versions in juxtaposition and then arrive at a final conclusion‑‑‑Court, doing so could not consider evidence of one case in another case.

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

‑‑‑S.561 A-‑‑Quashing of order or proceedings‑‑‑Jurisdiction of High Court‑‑Scope and nature‑‑‑High Court, in exercise of its power under S.561‑A, Cr. P. C. would be chary and normally would refrain from interfering in normal course of trial of subordinate Courts, particularly where evidence had not been recorded‑‑‑Inherent jurisdiction of High Court could not be invoked merely because accused considered allegations levelled against them to be false‑‑Jurisdiction under S. 561‑A, Cr.P.C. was not additional or alternate but such powers were to be exercised sparingly to correct errors of law in exceptional cases‑‑‑Extraordinary jurisdiction of High Court could not be invoked as an instrument in hands of parties to start criminal proceedings.

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

‑‑‑‑Ss. 200, 202, 204 & 561‑A‑‑‑Penal Code (XLV of 1860), Ss. 337‑A(i), 337‑F(i), 109, 114, 147 & 149‑‑‑Complaint case‑‑‑Holding of preliminary inquiry‑‑‑Magistrate, after holding preliminary inquiry in case and finding that a prima facie case was established, brought complaint on file and issued process‑‑‑Accused had yet to prove their defence given by them by way of counter‑version‑‑‑Mere allegations in application for quashing order/proceedings, could not lead to a conclusion that complaint was false.

Pir Tariq F. Siddiqui for Applicant.

Respondent No. 1 in person:

M. Saleh Panhwar for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1609 #

2000 Y L R 1669

[Karachi]

Before Ata‑ur‑Rahman, J

Mirza MUHAMMAD QASIM BAIL and another‑‑‑Plaintiffs

versus

GOVERNMENT OF SINDH through

Secretary, Ministry of Local Self

Government and 2 others‑‑‑Defendants

Suit No.792 of 1987, decided on 30th November, 1999.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Arts.70 & 72‑‑‑Documentary evidence‑‑Rebuttal of‑‑‑Mere oral assertion was not sufficient to rebut documentary evidence.

Syed Akhtar Zaidi v. Muhammad Yaquinuddin 1988 SCMR 758 ref.

(b) Fatal Accidents Act (XIII of 1855)‑‑‑

-----S.I‑‑Fatal accident-----Suit for compensation----Determination of amount of compensation‑‑‑Accident having not been denied by defendant (driver of truck), it was responsibility/duty of defendant to show that accident had taken place due to the fault of deceased or that deceased was negligent in driving his motor‑cycle‑‑‑Defendant had also failed to produce any witness to prove that in fact it was due to fault of deceased that accident had taken place‑‑‑Allegation regarding negligence against defendant (driver of truck) causing death of deceased had constituted facts which were exclusively within knowledge and possession of defendant who failed to dislodge presumption of negligence raised against him by adducing cogent evidence‑‑‑No independent evidence had been produced by defendant to rebut evidence of plaintiffs and nothing was on record to disprove that defendant (driver of truck) was not rash and negligent in driving truck on relevant day when he caused accidental death of deceased‑‑‑Fact had been fully proved that deceased had died as a result of wrongful act, negligence and default committed by defendant driver of truck and it had not been denied by defendant which owned said truck that defendant driver was not in their employment and that he was not performing his official duties on date of accident‑‑‑Both defendants were jointly and severally liable to pay compensation to plaintiffs for loss of their son‑‑‑Court determined amount of compensation taking into consideration age, ability and earning capacity of deceased and decreed that suit accordingly.

Mrs. Gul Bano v. Muhammad Ramzan 1982 CLC 1120; Zebunnisa v. Sindh Road Transport Corporation 1982 CLC 1228; Mrs. Nimi Francis v. Muhammad Saeed Qureshi 1982 CLC 1703; Abdul Haque v. Pakistan Railways Telecommunication Department 1987 MLD 898; Spin Gul v. Ikramul Haq 1987 MLD 2402;Hayat Services (Pakistan) Ltd. v. Kandan 1989 CLC 2153; Kezi Arifuddin v. Government of Sindh PLD 1991 Kar. 291; Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848; Mst. Sakina v. National Logistic Cell 1995 MLD 633; Anisur Rehman v. Government of Sindh 1997 CLC 615; Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. 253; Ehsan Ali v. K.R.T.C. and others PLD 1968 Kar. 464; Roshan Bai v. Pakistan Steel Mills and others Suit No.697 of 1988 (unreported); Muhammad Bux v. Emperor AIR 1935 Nag. 200; Provincial Automobiles Co.‑ v. Narayan Krishnarao Deshpande AIR 1943 Nag. 252; Indian Trade and General Insurance Co. Ltd. v. Madhukar Govind Rao Bhagade AIR 1967 MP 110; The General Manager, Banglore Transport Services v. N. Narasima Haiah and others AIR 1977 Karnataka 7; Delhi Transport Corporation v. Sint. Harban Kuwar and others AIR 1983 Delhi 265; Kulsoom v. Jalil Ahmad PLD 1964 Kar. 72; Jalil Ahmad Khan v. Kulsoom 1968 SCMR 448; Civil Appeal No.K‑44 of 1969 (unreported); Mst. Rabeya Begum v. Abdul Latif 1987 CLC 412; Farrukh Hamid Rizvi v. The Managing Director 1989 MLD 3533; Mst. Nafisa Begum v. Muhammad Ismail 1989 CLC 2218; Nisar Ahmad v. Uroos Fatima 1996 MLD 1913; Nisar v. Hospital Supply Corporation 1998 MLD 13; Abdul Haque v. The State and others PLD 1996 SC 1; Badar Zaman v. Sultan 1996 CLC 202 and Dost Muhammad v. Pakistan Steel Mills and another 1996 CLC 530 ref.

Nasir Maqsood for Plaintiffs.

Abdul Karim Khan for Defendants.

Date of hearing: 30th November, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1612 #

2000 Y L R 1612

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Soomro, JJ

GHULAM MURTAZA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 162 and confirmation Case No.7 of 1988, decided on 14th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Ocular testimony of eye‑witnesses was corroborated by testimony of first informant who came to the scene of offence upon information given to him by one of the eye‑witnesses‑‑‑F.I. R. was promptly lodged‑‑‑Evidence of eye‑witnesses and first informant was supported by recovery of hatchet on pointation of accused‑‑‑Hatchet was found blood‑stained by Chemical Analyst‑‑‑Case being of single accused, substitution of culprit would be rare‑‑‑Even if evidence of recovery of hatchet was ignored, testimony of eye‑witnesses and corroborated testimony of prosecution witness was sufficient to prove that accused did cause hatchet blow to the deceased‑‑‑Case against accused was of single blow as accused did not repeat the blow with his hatchet‑‑Encounter was sudden as accused saw deceased by chance at the hotel and there was no premeditation on the part of accused‑‑Motive suggested by prosecution was such which could be a reason for accused to cause hatchet blow to deceased with intention to kill him‑‑‑F.I.R. was initially lodged under S.307, P. P. C. and deceased died in hospital on the next day‑‑‑Knowledge and not intention could be imputed to the assailant, in circumstances‑‑‑In absence of intention of accused to cause death of deceased, he could be burdened with knowledge only‑‑Conviction and sentence awarded to accused under S. 302, P. P. C. was substituted by S. 304(11), P. P. C. and death sentence was converted into sentence of ten years' rigorous imprisonment.

1985 PCr. LJ 1580; Rasool Muhammad v. Asal Muhammad and others 1995 SCMR 1373; Sheral alias Sher Muhammad v. State 1999 SCMR 697 and Emmanuel Bahadur Joseph v. Paul Jackson and another 1981 SCMR 663 ref.

A.Q. Halepota for Appellant.

Khalid Shah for the Complainant.

Date of hearing: 9th December, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1618 #

2000 Y L R 1618

[Karachi]

Before Saiyed Saeed Ashhad, J

ABDUL AZIZ MEMON and 6 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 83 of 1999, decided on 21st December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.190, 249‑A, 265‑K & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.391, 395, 427, 451, 147, 144 & 149‑‑‑Addition of offence in charge‑sheet‑‑‑Jurisdiction of Magistrate‑‑Quashing of proceedings‑‑‑Complainant during pendency of application filed by accused under S.249‑A, Cr. P. C. filed application for adding offence under S.395, P. P. C: ‑ in the charge‑sheet which allegedly was wrongly not included earlier‑‑‑Judicial Magistrate ordered inclusion of said offence in charge‑sheet and sent the case to Sessions Court to try same as newly‑added offence was exclusively triable by Court of Session‑‑Accused filed revision against said order of Judicial Magistrate before Sessions Judge, but before the disposal of revision, accused had filed application for quashing the said order‑‑‑Application was attacked by prosecution on the ground that before approaching Court for quashing of proceedings under S.561 A, Cr.P.C. accused ‑should have taken recourse to provisions of S.265‑K, Cr.P.C. which was an essential requirement‑‑‑Judicial Magistrate to ordering addition of offence punishable under S.395, P.P.C. had not applied his judicial mind and had made general and routine observation without specifying circumstances and material available on basis of which he had opined that prima facie said offence was made out against accused/applicant‑‑Applicant/accused, on account of addition of offence punishable under S. 395, P. P. C. in the charge‑sheet had been made to suffer trial for a much more grave and severe offence which they originally were not to suffer‑‑Magistrate did not pass a legal and valid order in directing inclusion of S.395, P. P. C. in charge‑sheet as he did not refer to any material, evidence and circumstances which were taken into consideration by him for the said order‑‑‑High Court ordered that inclusion of S. 395, P. P. C. should be deleted from charge‑sheet and that the case be returned to the Judicial Magistrate for trial of accused.

State through Advocate‑General, N.W.F.P., Peshawar and others v. Gulzar Muhammad and others 1998 SCMR 873; Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; Mian Munir Ahmed v. The State 1985 SCMR 257; Nasir Ali v. Munshi Mehar Khan PLD 1981 SC 607; Khushi Muhammad and 4 others v. The State 1979 SCMR 94; Inayatullah and 4 others v. The State and 4 others 1999 PCr.LJ 731 and Ghulam Qasim v. Nazir Ahmad and 3 others 1996 PCr.LJ 1187 ref.

Khawaja Naveed Ahmed and Nooruddin Sarki for Applicants.

S. Amjid Ali Shah, Ch. Iftikhar Ahmed and Shahnawaz Awan for the Complainants.

Dilawar Hussain for the State.

YLR 2000 KARACHI HIGH COURT SINDH 1629 #

2000 Y L R 1629

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD ALI and 3 others‑‑‑Applicants

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No. 321 of 1994, decided on 14th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 249‑A & 561‑A‑‑‑Penal Code (XLV of 1860), S. 342/354/ 355/356/ 323/504/34‑‑Quashing of order‑‑‑Trial Magistrate after considering all aspects of the case of prosecution and examination of as many as eight material witnesses having come to the conclusion that no probability of accused being convicted existed, acquitted accused of the charges levelled against them, but Appellate Court, on revision filed against order of Trial Magistrate, ordered retrial of accused solely opt the ground that six witnesses were yet to be examined‑‑‑Appellate Court otherwise did not find any fault with order of acquittal passed by Trial Magistrate‑‑‑Validity‑‑‑Examination of remaining police witnesses would not advance case of prosecution any further‑‑‑Evidence of lady doctor in case as prosecution witness too, even if recorded, would not carry case of prosecution ‑ any further in view of medical certificate issued by her which had shown that no males of violence were noticed on person of the alleged victims‑‑‑Chemical Analyst's Report was also negative‑‑‑No useful purpose would, in circumstances, be served if lady doctor was examined‑‑‑More than seventeen years had passed, but trial had not yet been concluded and accused had undergone ordeal of trial for all these years‑‑Order of retrial of accused was not warranted by law in circumstances and order of acquittal passed by Trial Court which was just and proper did not call for any interference.

Hamida v. The State PLD 1973 Kar. 478; Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399; Abdul Latif v. Bagga Khan and another PLD 1996 SC 152; Muhammad Khaltd and 2 others v. Muhammad Ashfaq and another 1986 PCr.LJ 115 and Janab Gul v. Aslam Khan PLD 1965 M.P.) Pesh. 193 ref.

A.Q. Halepota for Applicants.

M. Saleh Panhwar for A.‑G. for Respondent No. 1 /State.

I.A. Hashmi for the Complainant/ Respondent No.2.

Date of hearing: 28th February,

YLR 2000 KARACHI HIGH COURT SINDH 1656 #

2000 Y L R 1656

[Karachi]

Before M. Shaiq Usmani, J

ASGHARI BEGUM‑‑‑Plaintiff

versus

PAKISTAN INTERNATIONAL AIRLINES

CORPORAITON through Managing

Director‑‑‑Defendant

Suit No.601 of 1987, decided on 7th May, 1999.

Fatal Accidents Act (X111 of 1855)‑‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for damages‑‑Damages, determination of‑‑‑Deceased who was travelling by Air collapsed due to heart attack during the flight‑‑‑Captain of flight though passed a message to the Airport for necessary medical assistance, but after landing of aircraft about 30 to 40 minutes had passed before the doctor examined the deceased‑‑‑Ambulance also arrived late and the driver of the ambulance refused to carry the deceased to the Cardio Vascular Institute as relatives of deceased could not pay the amount demanded by the driver of the ambulance‑‑‑Airline thus had failed to provide necessary medical aid to the deceased‑‑‑Acts and omissions of the Airline that was proximate cause of death of deceased was, therefore, established and plaintiffs who were dependents of the deceased were entitled to claim compensation in circumstances‑‑‑Court taking into consideration the age, education, earning capacity and certain other things determined, the amount of compensation and decreed the suit accordingly.

Nasir Maqsood for Plaintiff.

Muhammad Naeem for Defendant.

Dates of hearing: 17th November; 3rd December, 1998 and 15th February, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 1693 #

2000 Y L R 1693

[Karachi]

Before Muhammad Ashraf Leghari, J

GHULAM RASOOL‑‑‑Applicant/Accused

versus

THE STATE-‑‑Respondent

Criminal Bail Application No.S‑167 of 2000, heard on 16th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324/504‑‑‑Bail‑‑‑Complainant and the injured lady who were the eye‑witnesses of the incident had fully implicated the accused in he F.I.R. as well as in the statement recorded under S.161, Cr.P.C.‑‑‑Accused had fired shots with a revolver one after the other on his real sister who had received seven fire‑arm injuries on various parts of her body‑‑‑Revolver had been recovered from the possession of accused‑‑‑Strong motive had been given in the F.LR. against the accused for the commission of crime ‑‑‑F.I.R. assigning specific role to accused was promptly lodged‑‑‑Occurrence had taken place at day time wherein the accused had made an attempt on the life of his own sister‑‑‑Section 324, P. P. C. was fully attracted in the matter‑‑‑Affidavits sworn by some of the witnesses exonerating the accused carried no weight in the presence of direct evidence of the complainant and the injured lady‑‑‑Bail was declined to accused in circumstances.

Muhammad Nawaz alias Najja v. The State 1991 SCMR 111; Jan Muhammad v. Haji Noor Jamal and another 1998 SCMR 500; Asghar Ali v. The State 1997 PCr.LJ 1306; Saleem Khan v. The State 1999 PCr.LJ 140 and Aurangzeb v. The State 1999 PCr.LJ 230 ref.

Muhammad Ashique Dhamraho for Applicant.

Ali Azhar Tunio, A.A.‑G. for the State.

Date of hearing: 16th May, 2000.

YLR 2000 KARACHI HIGH COURT SINDH 1709 #

2000 Y L R 1709

[Karachi]

Before Muhammad Ashraf Leghari, J

ZAMEER HUSSAIN and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑168 of 2000. decided on 9th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11116‑‑Bail ‑‑‑Accused were named in the FLR. with a specific role‑‑‑Accused duly armed with fire‑arms had abducted the married girl on the force of weapons and also taken away household articles of the complainant‑‑‑Delay of 16 hours in lodging the F.LR. was of no consequence in abduction matters on account of the honour of the family being at stake‑‑Abductee and the robbed property were not recovered so far‑‑‑No reasonable grounds in the circumstances appeared to believe that the accused were not guilty of the offence with which they were charged‑‑‑Offence alleged against the accused was hit by the prohibitory clause contained in S.497(1), Cr.P.C.‑‑‑Bail was declined to accused accordingly.

Wali Muhammad and another v. The State 1994 PCr. LJ 2133 and Muhammad Saleem Akhtar v. The State 1993 PCr.LJ 1545 ref.

Muhammad Ashique Dhamraho for Applicants.

Ali Azhar Tunio, Asstt. A.‑G. for the State.

Date of hearing: 9th May, 2000.

YLR 2000 KARACHI HIGH COURT SINDH 1743 #

2000 Y L R 1743

[Karachi]

Before Ghulam Nabi Soomro, J

RASHID MEHMOOD and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail No. 1189 of 1999, decided on 24th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.367/342/504/506/109/324/337/34‑‑‑Bail‑‑Contention of delay in lodging F.I.R. was not tenable‑‑‑Persons being busy in their own affairs could hardly feel concerned about other people's business in busy peak hours of the day and non‑availability of independent prosecution witnesses, therefore, was understandable‑‑‑Statements of the complainant, and that of the abductee were supported by medical evidence‑‑‑Conduct of accused before the Courts was also desecrating nature‑‑‑Offence allegedly committed by the accused fell, within the prohibitory clause of S.497(1), Cr. P. C.‑‑Bail was refused to accused in circumstances.

PLD 1972 SC 272; 1976 SCMR 168; 1982 SCMR 1113(2); 1982 SCMR 1141 and 1998 SD 32 ref.

Shaukat H. Zubedi for Applicants.

M. Ilyas Khan for the Complainant, Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 17th May, 2000,

YLR 2000 KARACHI HIGH COURT SINDH 1772 #

2000 Y L R 1772

[Karachi]

Before Muhammad Roshan Essani, J

ZULFIQAR AHMAD‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.532 and Miscellaneous Application No. 1614 of 1999, decided on 17th April, 2000.

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

‑‑‑‑S.249‑A‑‑‑Application for acquittal under S.249‑A, Cr.P.C.‑‑‑Maintainability‑‑‑Where there was no probability of the accused being convicted for any offence and the charge was groundless, an application under S.249‑A, Cr. P. C. could be moved at any stage of the proceedings before the Trial Court.

PLD 1993 SC 399 ref.

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

‑‑‑‑Ss.249‑A & 561‑A‑‑‑Penal Code (XLV of 1860), Ss. 409, 109 & 34‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Quashing of proceedings ‑‑‑Abatement‑‑Acquittal of accused during pendency of trial ‑‑‑F.I.R., charge‑sheet and note sheets which had been produced before the High Court did not make out the case of abetment against the accused‑‑‑No evidence was led by the prosecution to the effect that there was any conspiracy, common design or common intention of the accused with other co-accused‑‑‑Other two co‑accused in the present case had been acquitted by Trial Court‑‑Validity‑‑‑Even if the entire evidence adduced by the prosecution was considered to be true, still the applicant could not be convicted of any offence‑‑‑Charge was groundless and there was no probability of the accused being convicted of any offence‑‑‑If the case, was bound to end in acquittal, it would amount to abuse of process of Court to allow such prosecution to continue‑‑‑Proceedings pending against the accused were quashed in circumstances.

Mst. Hamida v. State PLD 1973 Kar. 478 ref.

‑‑‑‑S.6‑‑‑Penal Code (XLV of 1860), Preamble‑‑‑Over‑charging‑‑‑Scope‑‑‑Overcharging is an offence only for an item which is included in the Price Control and Prevention of Profiteering and Hoarding Act, 1977, and the same is not an offence under the provisions of Penal Code, 1860.

A.Q. Halepota and Muhammad Ilyas Khan for Applicant.

Ch. Muhammad Iqbal on behalf of the State.

YLR 2000 KARACHI HIGH COURT SINDH 1787 #

2000 Y L R 1787

[Karachi]

Before Shabbir Ahmed, J

Syed KHURSHID ALI and 3 others‑‑‑Plaintiffs

versus

Syed ABI ALI and 5 others‑‑‑Defendants

Suit No.123 of 1999, decided on 7th May. 2000.

(a) Muhammadan Law‑‑‑‑

‑‑‑‑Gift‑‑‑Delivery of possession is a condition precedent to the validity of gift.

Principle of Mohomedan Law by Mulla edited by Dr. M.A. Mannan, Pakistan Edn., para. 138 and Hedaya, Vol. III. Second Edn. p.482 ref.

(b) Muhammadan Law‑‑‑‑

‑Gift‑ Delivery of possession‑‑‑Proof‑----Plaintiff assailed the gift deed on the ground of non‑delivery of possession of the gifted property to the donees‑‑‑Gifted property was in possession of the tenant ‑‑‑Validity‑‑Donees did not produce any evidence to prove that the donor had ever asked the tenant to attorn the donees as landlords in respect of the gifted property‑‑‑Registration of gift deed did not cure the want of delivery of possession‑‑‑Where the delivery of possession to the donee, condition precedent of a validity of gift, was missing, such gift was not valid and the declaration of gift was void for want of delivery of possession.

Ghulam Hassan and others v. Sarfraz Khan and other PLD 1956 SC 309; Baillie's Digest of Muhammadan Law, p.204 and Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 ref.

‑‑‑‑ Gift‑‑‑Marzul Maut, doctrine of‑‑Consideration‑‑‑Scope‑‑‑Where plea that donor was suffering from Marzul Maut was raised the facts to be considered were that donor was suffering at the time of gift from a disease which was the immediate cause of his death; that disease was of such a nature or character as to induce in the persons so suffering the belief that death would be caused thereby, or to engender in him the apprehension of death; that the illness was such as to incapacitate him from the pursuit of his ordinary avocations a circumstance which might create in the mind of sufferer an apprehension of death and as against this it has also to be considered that the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady.

(d) Muhammadan Law‑‑‑‑

‑‑‑‑ Gift‑‑‑Marzul Maut, doctrine of‑‑Applicability where the gift was made under the pressure of the sense of the imminence of death, the doctrine was applicable.

(e) Plea‑‑‑‑

‑‑‑‑ In absence of a specific plea taken in pleadings, same cannot be raised.

Muhammad Aqil for Plaintiffs.

Jamilur Rehman for Defendants Nos. l to 4.

Hamid Ali for Defendant No.5.

Date of hearing: 26th April. 2000.

YLR 2000 KARACHI HIGH COURT SINDH 1813 #

2000 Y L R 1813

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDUL KHALIQUE‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.71 of 2000, decided on 2nd March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑S.497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11 /16‑‑‑Bail‑‑‑Incident was not witnessed by anybody‑‑‑F.I.R. was belated by one month and seven days‑‑‑Abductee in her first two statements recorded under S.164, Cr.P.C. had not charged the accused either for her abduction or for committing sexual intercourse with her ‑‑‑Abductee, however, in her third statement recorded under S.164, Cr.P.C. had implicated the accused for the first time which could not be believed in to at such stage‑‑‑No reasonable grounds, thus prima facie existed to believe the accused being guilty of the offence charged against him‑‑‑Accused was admitted to bail in circumstances.

Abbas Ali v. The State 1976 SCMR 157 and Risaldar Miran Bux v. Nazar Karim and others 1978 PCr.L1519 ref.

Abdul Haq Solangi for Applicant.

Ali Azhar Tunio, Assistant A.‑G. for the State.

2000 Y L R 2001

[Karachi]

Before Muhammad Roshan Essani and

Muhammad Ashraf Leghari, JJ

SHAUKAT and another Appellants

versus

THE STATE‑‑‑Respondent

Special Criminal Anti‑terrorism Appeal No. 113 of 1999, decided on 16th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 391/34 & 324‑‑‑Anti‑Terrorism Act (XXVII of 1997), S. 7(1) (b)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑1)‑‑Appreciation of evidence‑‑‑Robbery‑‑‑Accused was not previously known to the complainants‑‑‑Complainants had fully supported their case and had implicated both the accused persons in the robbery of car and both of them had identified the accused in identification test as well as in the Trial Court‑‑‑Prosecution witnesses and police had no reason to implicate the accused in false case‑-‑Prosecution was able to bring home the guilt of accused and there was no discrepancy in the testimonies of witnesses‑‑Sentence of life imprisonment awarded by Trial Court under S. 7(l) (b) of Anti-Terrorism Act, 1997, being too harsh in the case of robbery, same was reduced to imprisonment for fourteen years.

PLD. 1995 SC 1; PLD 1962 Kar. 800; PLD 1964 Lah. 2; PLD 1976 SC 578; PLD 1964 Kar. 428 and 1999 MLD 3236 distinguished.

M.M. Kazi for Appellants.

S. Jalil A. l4:;shmi, A.A.‑G. for the State.

Date of hearing: 24th November, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 2021 #

2000 Y L R 2021

[Karachi]

Before Wahid Bux Brohi, J

S. ALTAF HUSSAIN ‑‑‑Plaintiff

versus

DUTY FREE SHOPS (PVT.)

LIMITED‑‑‑Defendant

Suit No. 653 of 1999, decided on 18th May 2000.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.l4 & 17‑‑‑Making award rule of Court‑‑‑Mode of proceeding‑‑‑Validity of award to be carefully examined within a limited scope and from contents of award itself, without going deeply through evidence recorded by arbitrator or undertaking reappraisal thereof to discover any error or infirmity in the award‑‑‑If it was intended to ascertain whether any error was apparent on the face of record or that any intentional disregard of law had taken place, every reasonable and lucid intendment should be rendered as far as possible, in favour of the award rather than in vitiating the same‑‑Arbitrator being forum of first instance to appraise evidence, his finding need not be upset simply on basis of meritless formal objection.

Joint Venture KG/Rist. v. Federation of Pakistan PLD 1996 SC 108; Pakistan v. OMR Export Consultants PLD 1990 SC 800; Ghulam Abbas v. Trustees of Port of Karachi PLD 1987 Kar. 393; Ashfaq Ali Qureshi v. Municipal Corporation 1984 SCMR 597; Jaffar Brothers Limited v. Islamic Republic of Pakistan PLD 1978 Kar. 585; Trustees of the Port of Karachi v. Iftikhar Brothers 1993 CLC 1491; AIR 1923 PC 66; PLD 1965 SC 505; GMK Enterprises v. Shaheen Builder 1999 CLC 1698 and Chief Administrator Aouqaf v. Manzoor Fatima 1998 MLD 176 ref.

Shehanshah Hussain for Plaintiff, Imran Ahmed for Defendant

Date of hearing: 3rd February 2000

YLR 2000 KARACHI HIGH COURT SINDH 2114 #

2000 Y L R 2114

[Karachi]

Before Hamid Ali Mirza and Mushir Alam, JJ

Mrs. RAZIA BEGUM‑--Petitioner

versus

CANTONMENT BOARD, CLIFTON

through Executive Officer, having

office at 2‑B, East Street, Defence

Housing Authority, Karachi and

another‑‑‑Respondents

Constitutional Petition No. D‑799 of 1989, heard on 4th May, 1999.

(a) Cantonments Act (11 of 1924)‑‑‑

‑‑‑‑Ss.68, 84 & 277‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Assessment of property‑‑‑Appeal filed against assessment order having been dismissed by Appellate Authority, petitioner/owner of property filed Constitutional petition praying that assessment order passed by Authority and upheld by Appellate Authority be declared excessive, null and void and against the principles of natural justice‑‑‑Constitutional petition was resisted on ground that same was not maintainable as petitioner had other adequate remedy of revision under S.277 of Cantonments Act, 1924 and that assessment made in respect of property of petitioner was just and proper as same was made keeping in view the market rental value, of properties situated in the same locality‑‑‑Question of excessive assessment in comparison to other properties of locality, was a disputed question of fact and High Court, in exercise of Constitutional jurisdiction, could not go into said question of fact which required taking and recording of evidence‑‑‑Constitutional jurisdiction, primarily was intended for providing expeditious remedy in a case where impugned action of Executive Authority could be established without any elaborate enquiry into complicated or disputed facts‑‑‑Nothing was on record from where it could be said that assessment made by Authorities was mala fide act considering that provisions of law had empowered the Authorities to make assessment in respect of properties keeping in view gross annual rent which could reasonably be earned in respect of property in question during financial year and other properties in the same locality‑‑‑Assessment made by Authorities could not be said to be void or discriminatory in circumstances as no material had been brought on record to show as to how same was void and discriminatory‑‑‑Assessment made by Authorities in accordance with provisions of relevant law after hearing the assessee could not be declared excessive, void or against the principles of natural justice‑‑Contention of Authorities that Constitutional petition was not maintainable as petitioner had other adequate remedy of revision under S.277 of Cantonments Act, 1924, was repelled because remedy by way of revision could not be claimed as a matter of right and same could not be treated as alternate adequate remedy‑‑‑Mere fact that a revision was competent would not prevent High Court from exercising Constitutional jurisdiction if impugned orders were without jurisdiction or were in violation of some law.

Mst. Zahida Begum v. Wing Commander Ziauddin Ahmad and 5 others 1983 CLC 187 and Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑Object and scope‑‑‑Constitutional jurisdiction was primarily intended for providing expeditious remedy in a case when impugned action of Executive Authority could be established without any elaborate enquiry into complicated or disputed facts.

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908)‑‑‑Constitutional jurisdiction‑‑Revisional jurisdiction‑‑‑Availability of revisional jurisdiction when no bar to exercise of Constitutional jurisdiction‑‑‑Mere fact that a revision was competent would not prevent High Court from exercising Constitutional jurisdiction if impugned orders were without jurisdiction or violative of some law.

Raja Sher Muhammad for Petitioner.

Nemo for Respondent No. 1.

Ainuddin Khan, Addl. A.‑G., Sindh for Respondent No. 2.

Date of hearing: 4th May, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 2128 #

2000 Y L R 2128

[Karachi]

Before Syed Deedar Hussain Shah

and Ghulam Rabbani, JJ

BASIT RASOOL QUADIR and another‑‑‑Petitioners

versus

Messrs FIRST GENERAL LEASING

MODARABA, A MODARABA

REGISTERED UNDER (FLOATATION

AND CONTROL) ORDINANCE, 1980

MANAGED BY GENERAL, MODARABA

SERVICES PRIVATE LTD. having

its registered office at 1116, 11th Floor, Park Avenue, 24‑A, Block‑6, PECHS, Sharah‑e‑Faisal, Karachi

and another‑‑‑Respondents

Constitutional Petition No. 164 of 2000, decided on 14th March, 2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XY of 1997)‑‑‑

‑‑‑‑Ss.9, 10 & 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Suit for recovery of loan‑‑Leave to defend suit‑‑‑Execution of decree‑‑Defendant filed application to defend suit which was, allowed on the condition to deposit specified amount in the Court‑‑Defendants having failed to deposit said amount in compliance with order of Court, suit filed by plaintiff was decreed and plaintiff filed execution application before Trial Court‑‑‑Defendants, instead of filing appeal against judgment and decree passed by Trial Courts as provided under law, fled Constitutional petition against judgment and decree of Trial Court‑‑‑Defendants having failed to exhaust remedies available to them under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, Constitutional petition which was misconceived and was filed simply to frustrate execution proceedings pending before Court of competent jurisdiction, was not maintainable‑‑‑Petition being frivolous and misconceived was dismissed with heavy costs.

Anwar Muhammad for Petitioners.

G. H. Baloch for Respondent No. 1.

YLR 2000 KARACHI HIGH COURT SINDH 2215 #

2000 Y L R 2215

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDULLAH and others------Applicants

THE STATE Respondent

Criminal Bail Applications Nos. 134 and 35 of 2000, decided on 15th May, 2000.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Fatal injury was attributed to co-accused who had allegedly taken out a pistol from the fold of his Shalwar all of a sudden and fired at the deceased‑‑‑Ocular evidence had fully implicated the accused in the crime‑‑‑Bail was refused to accused in circumstances.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑ Accused though armed with a hatchet and a Lathi did not use the same at the time of occurrence‑‑‑Principal co-accused, according to prosecution, after taking out a pistol at the spur of the moment from the fold of his Shalwar had fired at the deceased causing his death‑‑‑Whether accused had the knowledge that main co-accused was armed with a pistol and was going to commit the murder of the deceased was yet to be determined at the trial‑‑‑One co‑accused having already been granted bail by Trial Court an similar situation, accused also deserved to be released on bail on the principle of consistency‑‑‑No overt act and motive had bean attributed to accused‑‑‑Bail was allowed to accused in circumstances.

Abdul Hayee and 2 others v. The State 1996 SCMR 555 and Hiddu alias Hidayatuilah v. The State 1982 PCr.LJ 30 ref.

Awan Rahmatullah Nadeem for Applicants.

Muhammad Iqbal Mahar for the Complainant.

Ali Azher Tunio, Asstt. A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 2217 #

2000 Y L R 2217

[Karachi]

Before Muhammad Ashraf Leghari and Mushir Alam, JJ

GULZAR-----Applicant

verse

THE STATE‑--‑‑Respondent

Criminal Bail Application No.D‑119 and Miscellaneous Application No.135 of 2000, decided on 12th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497.‑‑Penal Code (XLV of 1860), S.324/353/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, grant of‑‑‑Accused was not apprehended at the spot and his name was disclosed .by the co-accused‑‑‑Identification test had not been held in the case‑‑‑Case was one of ineffective firing in which nobody was injured‑‑‑Offence alleged against the accused was not covered by the prohibitory clause contained in S.497(1), Cr. P. C.‑‑‑Reasonable grounds did not exist at such stage to connect the accused with the commission of the offence charged against him‑‑‑Accused was granted bail in circumstances.

Rab Nawaz v. The State 1990 SCMR 185 ref

Miss Faiz‑un‑Nissa Channa for Applicant.

Ali Azhar Tunio Asstt A.‑G for tote State.

YLR 2000 KARACHI HIGH COURT SINDH 2338 #

2000 Y L R 2338

[Karachi]

Before Hamid Ali Mirza and

Mushir Alam, JJ

Messrs CHAS A. MENDOZA

PHARMACEUTICAL LABORATORIES, also TRADING AS MARIANA

INTERNATIONAL, A REGISTERED

PARTNERSHIP FIRM, KARACHI‑‑‑Appellant

versus

ENGLISH LABORATORIES PVT. LTD.

and another‑‑‑Respondents

High Court Appeal No. 253 and Civil Miscellaneous Applications Nos. 1455 and 1456 of 1998, decided on 21st May, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. IX, R.13‑‑‑Law Reforms Ordinance (XII of ‑1972), S.3‑‑‑Ex parse judgment‑‑ Setting aside of ‑‑‑Intra‑Court appeal‑‑ Application filed by appellant under O. IX, R.13, C. P. C. for setting aside ex parte judgment having been dismissed by High Court, appellant had field Intra‑Court appeal against the said order‑‑‑Ex parte judgment was not passed against appellant, but was passed against respondent and appellant had sought. setting aside of the said judgment alleging that certain observations had been made against the interest of appellant by the High Court in the judgment‑‑‑Observations allegedly detrimental to the interest of appellant were not sought by appellant to be expunged, but appellant had only prayed for setting aside of the impugned order which otherwise was decided in favour of the appellant‑‑‑No prayer was made by appellant even in Intra‑Court appeal for expungement of said observations alleged to be detrimental or prejudicial to the interest of appellant‑‑Intra‑Court appeal having no merit was dismissed, appellant, however, could pursue his remedy before Single Judge for expungement of said‑ observations in accordance with law.

Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949 and Atul Chandra Das and others v. Bhagbati Das and others PLD 1967 Dacca 27 ref.

Badar Alam for Appellants.

Sultan Ahmad Sheikh for Respondents.

YLR 2000 KARACHI HIGH COURT SINDH 2345 #

2000 Y L R 2345

[Karachi]

Before Wahid Bux Brohi, J

Haji BAGH ALI and others‑‑‑Appellants

versus

LAND ACQUISITION, L.B.O.D, WAPDA‑‑‑Respondent

First Appeals Nos. 17 and 22 of 1984, decided on 9th May, 2000.

(a) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss. 4, 18, 23 & 28‑A‑‑‑Acquisition of land‑‑‑Additional compensation award of‑‑ Referee Court allowed compulsory, charges to owners of acquired land as contemplated under S. 23(ii) of Land Acquisition Act, 1894, but no additional compensation as directed under S.28‑A of said Act was awarded to them for which they were entitled‑‑‑Non compliance bf mandatory provisions under S.28‑A of Land Acquisition Act, 1894, frustrated the purpose for which award was made, besides resulting in violation of legal provision‑‑‑Court was bound to grant additional compensation under the mandatory provision of law and failure of Court to grant the same was a mistake and decree was liable to correction.

Sadiq Jafri, Zainabi v. Land Acquisition Officer PLD 1992 SC 472 ref.

(b) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss. 4, 18 & 23‑‑‑Acquisition of land‑‑Determination of compensation‑‑‑Points to be considered‑‑‑Referee Court had to examine issue of compensation keeping in view principles enjoined in S.23 of Land Acquisition Act, 1894 together with date of possession of land as well as date of announcement of award, price paid for comparable property in neighbourhood, with reference to its present market price and potential value of land coupled with rise in prices, inflationary trend and depreciation in value of money/currency.

Malik Amin and others v. Land Acquisition Collector PLD 1988 SC 32; Abdul Qayyum v. Pakistan 1996 SCMR 1820; Province of Punjab v. Abdul Majeed 1997 SCMR 1692; Province of Punjab v. Malik Altaf Ahmed 1993 CLC 179 and Land Acquisition Collector, Abbottabad v. Muhammad Iqbal.199Z SCMR 1245 ref.

Jhamat Jethanand for Appellants.

Hamid Hussain for Respondent.

Date of hearing: 18th February, 2000.

YLR 2000 KARACHI HIGH COURT SINDH 2377 #

2000 Y L R 2377

[Karachi]

Before Syed Deedar Hussain Shah, CJ

FEDERAL GOVERNMENT through the

Collector of Customs‑‑‑Appellant

versus

DAWOOD alias DAWOOD

JAT‑‑‑Respondent

Special Criminal Acquittal Appeal No. 13 of 1996, decided on 22nd March, 2000.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 185‑F‑‑‑Central Law Officers (Amendment) Act (XVII of 1985), S. 4‑‑Appeal against acquittal‑‑‑Competence to file‑‑‑Contention that appeal against acquittal could be filed by any person under the provision of S.185‑F; Customs Act, 1969 was repelled asunder S.4‑A, Central Law Officers (Amendment) Act, )985 appeal could not be filed by "any person " but only by a competent person.

Liaquat Ali and 11 others v. The State 1992 SCMR 372; The State through Public Prosecutor v. Shoukat Ali 1998 PCr.LJ 1503; Christopher Rollins Kelly and 2 others v. State 1997 PCr.LJ 51 and State through Advocate‑General, Sindh v. Hanif Ahmad and others 1994 SCMR 749 rel.

Farrukh Zia Shaikh for Applicant.

Date of hearing: 22nd March, 2000.

YLR 2000 KARACHI HIGH COURT SINDH 2396 #

2000 Y L R 2396

[Karachi]

Before Muhammad Roshan Essani, J

UMAR alias LAILI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 374 of 2000, 4 decided on 1st May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497 & 498‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 21(2)‑‑‑Penal Code (XLV of 1860), S. 216‑A‑‑‑Bail, grant of‑‑‑Allegations in F.LR., general in nature‑-‑Nothing incriminating was recovered from the accused‑‑‑Effect‑‑‑Where allegations in the F.I.R. were General in nature and nothing incriminating was recovered from the possession of the accused, case of the accused necessitated further inquiry as contemplated under S. 497(2), Cr. P. C. ‑Offence under S. 216‑A, P. P. C. being bailable, accused was granted bail in circumstances.

Mehboob Ali Jawahery for Applicant.

Dilawar Hussain for the State.

YLR 2000 KARACHI HIGH COURT SINDH 2407 #

2000 Y L R 2407

[Karachi]

Before Sarmad Jalal Osmany, J

AVARI HOTELS LIMITED and others‑‑‑Plaintiffs

versus

INVESTMENT CORPORATION OF PAKISTAN and 6 others‑‑‑Defendants

Suit No. 1204 of 1999, decided on 20th August, 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑‑

‑‑‑‑Preamble‑‑‑Object of Banking Companies (Recovery of Loans, Advances, Credits and Finances), Act, 1997‑‑‑Act has been enacted for the purpose of recovery of loans, advances, credits and finances and prescribes a summary procedure for the same except in cases where leave to defend the suit has been given to the defendant.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 7(4) & 9(I)‑‑‑Banking Court, jurisdiction of‑‑‑Scope‑‑‑Jurisdiction of Banking Court is attracted only where a borrower/customer or a Bank commits a default in fulfilling any obligation with regard to any loan for finance‑‑‑Plaintiff can institute a suit only, when the plaint is duly supported by statement of account etc.‑‑‑In order that a Banking Court may assume jurisdiction in any particular matter, it must be established that relationship of borrower/ customer and banker existed between the parties and some default had been committed by either party with regard to any loan or finance, obtained by the borrower/customer from the Bank as a consequence of such relationship.

‑‑‑‑S. 2 (e) & (0‑‑‑Terms 'finance " and "loan "‑‑‑Scope and applicability‑‑‑Terms "finance" and "loan" as given in S.2 (e) & (f) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 are very wide and include not only an outright loan of money but involve numerous financial instruments as well, including bills of exchange, promissory notes etc., purpose of which is to. cover all possible forms of banking and financial transactions.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑‑

‑‑‑‑Ss.7(4) & 9(1)‑‑‑Suit for redeeming securities deposited with Bank‑‑‑Jurisdiction of Banking Court‑‑‑Scope‑‑‑Since the entire debts of the plaintiff had been satisfied, neither there was any relationship of borrower/customer and banker between the parties, nor any default had been committed by either party with regard to any loan or finance obtained by the plaintiff from the Bank as a consequence of such relationshipSuit for redemption of the securities deposited with the Bank as consideration for the loans extended by the Bank to the plaintiff, was not a banking suit within the meaning of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Such suit was to proceed on the original side of High Court.

Mst. Parveen Jaffer v. Bankers Equity Ltd. NLR 1998 (U.C.) 567;Nasimuddin Siddiqui and another v. U.B.L. and another 1998 CLC 1718; Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877; Messrs Conforce Limited v. Messrs Rafique Ind. Ltd. PLD 1989 SC 136 and Muhammad Rafique v. Messrs H.B.L. 1994 SCMR 1012 ref.

Muhammad Ali Sayeed alongwith nr.Farogh Naseem for Plaintiff.

Mehmood Mandviwala alongwith Ejaz Ahmed for Defendants Nos.2 to 7.

Date of hearing: 20th August, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 2417 #

2000 Y L R 2417

[Karachi]

Before Mushir Alam, J

Mst. MANNA Applicant

versus

MUHAMMAD AKHTAR and 3 others‑‑‑Respondents

Civil Revision No 77 of 1996, decided on 3rd April, 1999.

(a) Contract Act (IX of 1872)‑‑‑‑

‑‑‑‑S. 196‑‑‑Power of Attorney‑‑‑Authority of an agent‑‑‑Ratification of the acts of agent‑‑Such authority may be express or implied‑‑Where an act was purported to be done under express authority, then the agent or the beneficiary of a purported act seeking ratification of said act must establish that such authority in fact existed and was fairly and validly exercised.

(b) Muhammadan Law‑

‑‑‑‑Gift‑‑‑Essential ingredients‑‑‑Three essential ingredients must be proved; an unequivocal declaration of gift by the donor; acceptance of gift express or implied and delivery of possession of the subject gift by the donor to the donee.

Raees Muhammad Mushtaq v. Hyder Bux PLD 1975 Kar. 416 and Ali Ahmed Khan Talpur v. Government of Sindh PLD 1976 Kar. 316 ref.

‑‑‑‑Gift‑‑‑Delivery of possession‑‑‑Onus to prove‑‑‑Delivery of possession of subjectmatter of gift susceptible to delivery‑‑Effect‑‑‑Imperative that the actual or constructive possession must be delivered by the donor to the donee ‑‑‑Onus to prove delivery of possession was always on the donee.

(d) Muhammadan Law.---

‑‑‑‑Gift‑‑‑Proof‑‑‑Alienation of suit property by attorney in favour of his son without the consent of the principal‑‑‑Pleading and evidence of the plaintiff/donee were al variance‑‑‑Gift was pleaded but presence of plaintiff‑donee and witness at the time of alleged gift was not proved ‑‑‑Validity‑‑Where delivery of possession had neither been pleaded nor proved and nothing was mentioned about handing over the possession, the suit , was wrongly decreed‑‑‑Both the Courts below failed to appreciate the evidence in its proper perspective resulting in gross miscarriage of justice‑‑‑Judgment and decree passed by the Trial Court and affirmed by the Lower Appellate Court were set aside.

1994 SCMR 818; 1997 SCMR 1811; 1996 SCMR 336; PLD 1978 Kar. 612; 1999 MLD 1206; Muhammadan Law by Mulla and Pakistan v. Haji Muhammad PLD 1976 SC 469 ref.

(e) Contract Act (IX of 1872)‑‑‑‑

‑‑‑‑S. 188‑‑‑General Power of Attorney‑‑Scope‑‑‑Power to alienate‑‑‑Power of agent under general power of attorney does not extend to alienate/dispose of property of principal unless such power was given in separate clause in clear terms.

Fida Muhammad v Muhammad Khan PLD 1985 SC 341 rel

Qalander Bux Phulpoto for Petitioner.

S. Zaheer Hasan for Respondent

Date of hearing: 1st November, 1999

YLR 2000 KARACHI HIGH COURT SINDH 2428 #

2000 Y L R 2428

[Karachi]

Before Abdul Ghani Shaikh and Muhammad Roshan Essani, JJ

MOHARRAM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 10 of 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S. 9‑‑‑Bail‑‑‑ "Bhang " (hemp) weighing 500 grams was allegedly recovered from the possession of accused‑‑Substance recovered from the accused, although had been specifically mentioned as narcotic substance in the Prohibition (Enforcement of Hadd) Order, 1979, yet the same had not been so mentioned in the Control of Narcotic Substances Act, 1997‑‑Accused was no more required for the purpose of investigation‑‑‑Trial of accused had not yet commenced‑‑‑Offence with which the accused was charged was not hit by the prohibition contained in S.497(1), Cr.P.C.‑‑Bail was allowed to accused in circumstances.

Husn Din and another v. The State PLD 1998 Kar. 187 and Tariq Bashir and others v. The State PLD 1995 SC 34 rel.

Ghalib Hussain Mir for Applicant.

Mukhtar Ahmad Khanzada for the State.

YLR 2000 KARACHI HIGH COURT SINDH 2537 #

2000 Y L R 2537

[Karachi]

Before Syed Deedar Hussain Shah, J

SANAULLAH‑‑‑Petitioner

versus

HOME SECRETARY, GOVERNMENT OF SINDH, KARACHI and 3 others‑‑‑Respondents

Constitutional Petition No. S‑1013 of 1998. decided on 10th November, 1998.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.154‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Registration of case‑‑‑Suppressing material facts from the Court‑‑‑Effect‑‑‑Municipal Authorities aided by Local Administration had erased the unauthorised construction made by the petitioner on the Government/Municipal land‑‑‑Petitioner had obtained the licence through underhand methods to raise such construction‑‑‑Intention of the petitioner was that the officials responsible for the removal of the construction were made to face criminal prosecution‑‑‑Effect‑‑‑Petitioner had knowingly suppressed material facts and, therefore, could not get discretionary relief from the High Court in Constitutional jurisdiction‑‑‑Petition was dismissed in circumstances.

Muhammad Ilyas v. Senior Superintendent of Police and another 1989 PCr.LJ 1129; Miandad Ghangro v. S.H.O., Police Station, Kandhfe and others 1989 PCr.LJ 1945; Wazir Ahmed v. S.H.O., Police Station, Mehboob Palhoro and others 1990 PCr.LJ 2006; Province of Punjab through Collector District Rahim Yar Khan and 2 others v. Abdul Bari 1998 MLD 1672 and Dr. Kashif Rahim v. S.P., Multan and others 1998 MLD 495 ref.

Gul Bahar Korai, Imdad Ali Awan and Shaft Muhammad Chandio for Petitioner.

Qalander Bux Phulpoto for Administrator and Chief Officer, Municipal Committee, Khairpur, Zawar Hussain Jafri, Addl. A.G., Dr. Saeed Ahmed Mangnejo, S.D.M., Khairpur, Ghulam Yaseen Shaikh, Administrator and Anwar Baloch, Chief Officer, Municipal Committee, Khairpur present in person.

YLR 2000 KARACHI HIGH COURT SINDH 2655 #

2000 Y L R 2655

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

MEHRAN SECURITY SERVICE (PVT.) LTD. and 2 others‑‑‑Petitioners

versus

PAKISTAN through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 3 others‑‑‑Respondents

Constitutional Petition No. 610‑D of 1996, decided on 22nd September, 1999, (a) Private Military Organisations (Abolition and Prohibition) Act (IV of 1974)‑‑‑

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art. 256‑‑‑Private military organisation‑‑Establishing such organisation with permission of Government or Authority‑‑Validity‑7‑Prohibition contained in Art. 256 of the Constitution is exhaustive and absolute and leaves no scope for existence of any (private), military organisation with "No Objection Certificate or permission of the Government or any Authority‑‑‑Any such permission or "No‑Objection Certificate" issued by Government to establish such an organisation would, be in violation of Art. 256 of the Constitution.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 256‑‑‑Private Military Organisations (Abolition and Prohibition) Act (IV of 1974), S. 2‑‑‑Constitutional petition‑‑(Private) security services, business of‑‑Treatment of such business as (Private) Military Organisation‑‑‑ "No‑Objection Certificate" or permission of Government for such business‑‑‑Requirement‑‑‑Business premises of the petitioner were sealed by the Government for the reason that the petitioner did not have any permission of the Government for such business‑‑‑Action of the Government was taken on the basis of letter D. O. No. 7/33/87‑Anns, dated 5‑9‑1988 by Ministry of Interior, Government of Pakistan‑‑‑Validity‑‑‑Where the (private) security agencies were treated as (private) military organisations, no "No‑Objection Certificate" or permission issued by the Government or any other Authority could legalise their existence‑‑‑Permission or "No Objection Certificate" issued by Government to many other such agencies, meant that either such "No‑Objection Certificates" and permissions were issued in violation of the Constitutional prohibition, or such agencies were not covered by the definition of (Private) Military Organisation‑‑‑Where the permission to other security organisations had been issued by the Government, as such the organisations were not treated as (Private) Military Organisations and the provisions of S.2 of (Private) Military Organisations (Abolition and Prohibition) Act, 1974 was not applicable‑‑‑Decision and instructions contained in Letter D.O. No. 7/33/87‑Anns, dated 5‑9‑1988 by the Government and the action taken against the petitioner on the basis of that letter was illegal, without lawful authority and of no legal effect.

Humera Satwal Yousuf v. Government. of Punjab PLD 1971 Lah. 641 and Anjum Jawia Tohedia (Regd.), Sheikhupura v. Deputy Commissioner/D.M., Sheikhupura 1990 MLD 1468 ref.

‑‑‑‑ Plenary powers of Government‑‑Concept ‑‑‑Official powers and authority emerge from the Constitution and there is no concept of "plenary powers of Governments" therein.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 2A‑‑‑Objectives Resolution, a substantive part of Constitution‑‑‑Authority of the State, exercising of‑‑‑Mode‑‑‑Inherent powers of Executive‑‑‑Scope‑‑‑State, under the provisions of Objectives Resolution, exercises its powers and authority through the chosen representatives of the people‑‑‑Mode of exercise of these powers and authority, under the scheme of the Constitution, is lawmaking‑‑‑Every organ of the Government and the functionaries have only those powers which the chosen representatives of the people delegated to them by way of legislation‑‑Executive has no inherent power, except that what has been vested in it by law and that the law is source of all powers and duties.

Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607 and Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156 ref.

(e) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 5‑‑‑Loyalty to State and obedience to Constitution and law‑‑‑Basic .duty and obligation of every citizen‑‑‑Scope‑‑‑Loyalty to the State has been described by An. 5 of the Constitution as basic duty of every citizen and it enjoins obedience to the Constitution and law.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 18‑‑‑Freedom of trade, business or profession‑‑‑Expression "lawful trade or business "‑‑‑Meaning and scope‑‑‑Profession or business‑is lawful unless law forbids the same or declares it unlawful‑‑‑Choice of a citizen to any profession or business is subject to qualifications, if any, prescribed by law‑‑Regulation of any trade or profession, by licensing system, or regulation of trade, commerce or industry in the interest of free competition, is permitted by Art. 18 of the Constitution‑‑‑Such regulation of trade, commerce or ' industry needs a law to determine the authority, mode, extent etc. ‑‑No Authority, body of department can arbitrarily assume such functions and powers without such law.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 99‑‑‑Conduct of business of Federal Government‑‑‑Rules of business‑‑‑Object and scope‑‑‑Substituting an Act of Parliament or law by the Rules‑‑‑Validity‑‑‑Rules of Business framed under the provisions of Art. l99 of the Constitution have a higher status than an ordinary delegated legislation, as the same have been made on the authority of the Constitution‑‑‑Such rules cannot substitute an act of Parliament or law to determine or affect the rights and duties of citizens ‑‑‑Whereas law assigns a function or confers a power on the Federal Government, the Rules of Business merely prescribe as to which of the Ministries or Divisions has to perform those functions and exercise those powers and in what manner.

Messrs Murree Brewery Co. Ltd. v. D.G. Excise and Taxation and others 1981 MLD 267 ref.

Yousuf Molvi for Petitioners Nos. 2and3.

S. Tariq Ali for Respondent No. l

Ainuddin Khan, Addl. A.‑G for Respondents Nos. 2, 3 and 4.

Dates of hearing 21st and 22nd September, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 2668 #

2000 Y L R 2668

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

THE STATE through Advocate‑General, Sindh, Karachi‑‑‑Applicant

versus

Dr. KHALID MOIN and 3 others ‑‑‑ Respondents

Anti‑Terrorism Revision No. 5 of 2000, decided on 23rd May, 2000.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 25, 31 & 32‑‑‑Criminal Procedure Code (V of 1898), 5.435/439‑‑‑Penal Code (XLV of 1860), S.365‑A1386/387/34‑‑Revision against the order passed under AntiTerrorisrn Act, 1997, whether maintainable‑‑Sections 435 & 439, Cr. P. C. being repugnant to the provisions of the Anti-Terrorism Act, 1997, the same could not be invoked for filing a revision petition against an order passed under the said Act‑‑Provisions of Ss.25, 31 & 32 of the Anti-Terrorism Act, 1997 when read in conjunction did not permit that the order passed by Special Court could be challenged in revision.

Syed Jalil A. Hashmi, A.A.‑G. for the State.

YLR 2000 KARACHI HIGH COURT SINDH 2692 #

2000 Y L R 2692

[Karachi]

Before Dr. Ghous Muhammad, J

ABDUL REHMAN‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No. S‑75 of 1 decided on 31st March, 1999.

Displaced Persons (Land Settlement) Act (XL VII of 1958)‑‑‑

S.16‑‑‑Displaced Persons Rules, 1959, R.7‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Scrutiny of Claims (Evacuee Property Regulation, 1961 (M.L.R. 89)‑‑Constitutional petition‑‑‑Cancellation of notation‑‑‑Dispute qua possession of snit property‑‑‑Authority in view of the provisions of Scrutiny of Claims (Evacuee Property) Regulation, 1961 (M.L.R. 89) cancelled mutation of land allotted in favour of the petitioner‑‑‑Validity‑‑‑Where the entitlement of the petitioner had become absolute in view of S.16 of Displaced Persons (Land Settlement) Act, 1958, his case was not affected by Scrutiny of Claims (Evacuee Property) Regulation, 1961 (M.L.R. 89)‑‑Mutation in favour of the petitioner was cancelled in violation of R.7‑A of Displaced Persons Rides, 1959‑‑‑Action of the Authority was without lawful authority and the same was set aside in circumstances.

Mst. Umar Bibi and others v. O.S.D. Central Record Office, Lahore and others PLD 1986 Lah. 109 ref.

S. Qaseem Ahmed for Petitioner.

Riaz Ahmad Shaikh for Respondents Nos. 5 to 17.

Date of hearing: 4th March, 1999.

YLR 2000 KARACHI HIGH COURT SINDH 2724 #

2000 Y L R 2724

[Karachi]

Before Dr. Ghous Muhammad and Zahid Kurban Alavi, JJ

PHILIPS ELECTRICAL INDUSTRIES OF PAKISTAN LTD. ‑‑‑Petitioner

Versus

PAKISTAN and others‑‑‑Respondents

Civil Petition No. D‑1901 of 1999, heard on 22nd December, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 184(3)‑‑‑Public interest litigation‑‑Scope‑‑‑Public interest litigation is inquisitorial in nature where the Court may even delve into fact finding so as to promote public interest.

People's Union for Democratic Right v. Union of India AIR 1982 SC 1473; S.P. Gupta and others v. President of India and others AIR 1982 SC 149; Supreme Court Bar Association v. State of U.P. 1995 Supp.(3) SCC 602; Dr. V.L. Wadehra v. Union of India (1996) 2 SCC 594; Delhi Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14; Dr. Upendra Bakhsi v. State of U.P. (1983) 2 SCC 308; Dr: Nalla Thampy Thera v. Union of India AIR 1984 SC 74; Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. AIR 1985 SC 652; Subhash Kumar v. State of Behar AIR 1991 SC 420; Indian Council for Enviro‑Legal Action v. Union of India (1996) 3 SCC 212; M.C. Mehta v. Union of India (1996) 4 SCC 750; Buffalo Traders Welfare Association v. Manika Gandhi (1996) 11 SCC 35; Attorney‑General v. Independent Broadcasting Authority (1973) 1 All ER 689; R. v. GLC (1976) 3 All ER 184; Gouriet v. Union of Post Office Workers (1977) 3 All ER 70; Cooks v. Southend Borough Council (1990) 2 WLR 61; R. v. Bar Council Ex parte Persival (1990) 3 All ER 137 (QBD); R. v. Secretary of State for Foreign Affairs, The World Development Improvement Ltd. (1995) 1 WLR 386; Dr. Moinuddin Farooque v. Bangladesh and others (1997) 15 BLD 1; Muntizma Committee v. Director Katchi Abadis, Sindh PLD 1992 Kar. 54; Mian Fazal Din v. The Lahore Improvement Trust 21 DLR (SC) 225 = PLD 1969 SC 223; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 184(3) & 199‑‑‑Public interest litigation‑‑‑Pre‑conditions of‑‑‑Judicial activism‑‑‑Object and scope‑‑‑Pre‑condition of public interest litigation and effective enforcement of rights and obligations of parties, whether the individual or the State, is to be found in judicial activism‑‑‑Judicial activism is nothing but to keep abreast with the times and offering an interpretation of law which makes the law workable rather than render the same obsolete‑‑‑Where a law of the past does not fit in the present context, the Court should evolve a new law‑‑‑Need to offer a dynamic interpretation in keeping with the needs of the time was stressed.

State v. Ziaur Rehman PLD 1973 SC 49; Bandhu Mukhti Morcha v. Union of India AIR 1984 SC 802; Mukesh Advani v. State of Madhya Preadesh AIR 1985 SC 1368; Union of India v. Raghubir Singh AIR 1989 SC 1933; Pomal Kanji v. Karsandas Purohit AIR 1989 SC 436; Central Inland Water Transport Corporation v. Brojonath Ganguly AIR 1986 SC 1571; M.C. Mehta v. Union of India AIR 1987 SC 1086; Muhammad Nawas‑Ai‑Sharif v. Pakistan PLD 1993 SC 4'73; Qalandro v. The State 1997.MLD 1632 and Duport Steel Ltd. v. Sirs (1980) 1 All ER 529 ref.

Philosophy of law favours a dynamic interpretation rather than stagnation.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Preamble‑‑‑Law as enshrined in the Constitution expresses a trichotomy of power where the Judges are the guardians of the Constitution and thus are under a legal and Constitutional obligation to monitor the entire legal order of the State.

State v. Ziaur Rehman PLD 1973 SC 49 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.3 & 4‑‑‑Judicial review, concept of‑‑Scope‑‑‑Due process clause contained in Arts. 3 & 4 of the Constitution‑‑‑Meaning and applicability‑‑‑Judicial review has always been a dynamic concept and each generation has enormous power to shape its own laws‑‑Progressive growth of the concept of judicial review with passage of time brings into its fold newer subjects and enrich its armoury with bolder concepts‑‑‑Such is the mandate of Arts.3 & 4 of the Constitution which prescribe due process clause.

Al‑Jehad Trust PLD 1996 SC 324 and Abdul Rahim v. U13L PLD 1997 Kar. 62 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 184(3)‑‑‑Public interest litigation‑‑Original Constitutional jurisdiction of Supreme Court, exercise of‑‑‑Scope‑‑‑Where matter concerns a question of public importance having reference to the enforcement of fundamental rights, provision of Art. 184(3) of the Constitution empowers Supreme Court to exercise original Constitutional jurisdiction‑‑‑Provision of Art.184(3) of the Constitution does not provide any clog against maintaining a petition by a person who is not directly aggrieved.

Darshan Masih v. State PLD 1990 SC 513 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Locus standi ‑‑‑ Term "sufficient interest "‑‑‑interpretation‑‑‑Scope‑‑‑To maintain a Constitutional petition in High Court it s not necessary for the petitioner to have a right in strict sense but it is enough if the petitioner discloses sufficient or personal interest for the performance of some legal duty‑‑‑Concept of locus standi has been whittled down and accordingly, the term "sufficient interest" has to be given a generous interpretation.

Mushtaq Ali v. Government of Sindh PLD 1998 Kar. 416 and Ardeshir Cowasjee v. KBCA 1999 SC 2883 ref.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Locus standi to file Constitutional petition‑‑‑Petitioner was aggrieved by the delayed disposal of cases by Customs, Excise and Sales Tax Appellate Tribunal‑‑‑Contention of the petitioner wets that the Tribunal was causing unnecessary delays in disposal of appeals pending before the same‑‑‑Validity‑‑‑Petitioner had filed appeal before the Tribunal and as such had the personal and sufficient interest to be dispensed with expeditious justice in accordance with law by that forum‑‑Constitutional petition was maintainable in circumstances.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Preamble, Arts. 2‑A, 37(d) & 199‑‑Constitutional petition‑‑‑Inexpensive and expeditious justice, providing of‑‑‑Directing Customs, Excise and Sales Tax Tribunal to decide the appeals expeditiously‑‑‑Validity‑‑Preamble of the Constitution alongwith the Objectives Resolution guaranteed expeditious dispensation of justice‑‑‑Objectives Resolution was substantive part of the Constitution through Art. 2A of the same‑‑‑Where Art.37(d) of the Constitution had guaranteed citizens inexpensive and expeditious justice, any direction in the form of ameliorating the working of the Tribunals would be in the nature of enforcing the provisions contained in the Constitution‑‑‑High Court directed the Tribunal for efficient and expeditious disposal of the appeals of petitioner accordingly.

Al‑Jehad Trust's case PLD 1996 SC 324 and Abdul Rahim v. UBL PLD 1997 Kar.62 ref.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Adverse working oil subordinate's judicial, quasi judicial and administrative forum or Tribunal ‑‑‑Effect‑‑‑ Where working of such forum becomes the issue, same is justiciable under Art. 199 of the Constitution.

(k) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 203‑‑‑Supervisory jurisdiction of High Court over Customs, Excise and Sales Tax Appellate Tribunal‑‑‑Scope‑‑‑No Tribunal established under Statute was immune from the superintendence of High Court under Art.203 of the Constitution, as the same empowered the High Court to supervise and control all Courts subordinate to it‑‑‑Such Tribunal for the purposes of Art. 203 of the Constitution was a Court and the powers of its superintendence and control vested with the High Court‑‑‑Appeal against the orders and judgments of the Tribunals, under the relevant statutes lay with the High Court‑‑Customs, Excise and Sales Tax Appellate Tribunal fell within the superintendence and control of the High Court under which the Tribunal was territorially situated.

Khadija Bibi v. Abdul Wahid 1980 CLC 2145 and Iftikhar Ahmed v. M.C.B. PLD 1984 Lah. 69 ref.

(1) Court‑‑‑

‑‑‑‑ Construing ‑a ‑forum ‑as "Court"‑‑Preconditions.

Before a forum is spelt out to be a Court, the following preconditions are to be fulfilled;

(1) That such persons are entrusted with judicial functions i.e., of deciding litigated questions according to law;

(2) that they derive their powers to decide such question from the State;

(3) that they exercise the judicial powers of the State;

(4) that there is a plaintiff who ;complains to such person of an injury done;

(5) that there is a defendant who is called upon by such persons to make satisfaction for the injury done;

(6) that they are empowered to pronounce a definitive judgment which is binding and authoritative;

(7) that such persons are appointed by the Government and should receive payments for their services exclusively out of Government funds and they should not be liable to removal by any authority other than Government.

Afsaruddin Bhuiya v. Wazed Ali Khan PLD 1953 Dacca 209; Malik Fateh Khan v. Najeebullah Khan PLD 1957 Lah.631; Shell Co. of Australia Ltd. v.Federation Commission of Taxation 1931 AC 275; Huddart, Parker & Co. Moorehead 8 CLR 330; Nirman Singh v. Thakur Lai Budra Partabl Narain Singh AIR 1926 PC 100; Muhammad Saeed v. Election Petition Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91; Muliji Manilal Karadar v. State of Maharashtra 1963 PTD 811; Jamal Din v. Haji Muhammad Aslam PLD 1965 Lah. 503 and Mst. Gaman v.Taj Din PLD 1968 Lah. 987 ref.

Sahibzada Masood Ahmed v. Mian Muhammad Saeed Sehgal PLD 1958 Lah.153 rel.

(m) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S194‑C(8)‑‑‑Criminal Procedure Code (V of 1898), Ss. 480 & 482‑‑Court, meaning of‑‑‑Proceedings before Customs, Excise and Sales Tax Appellate Tribunal‑‑‑Nature and scope‑‑‑Court is a forum which is created by the authority of the State and has the judicial powers to decide the matters which are in the nature of authoritative and binding decisions upon parties‑‑‑Court follows the law in terms of Statute and case‑law rather than policies; has the power to receive and examine evidence and conducts itself by giving hearing to parties and by following the accepted Judicial Procedures and Conventions‑‑‑Mere use of expression "Tribunal " in its nomenclature does not deprive a forum from the powers and attributes of a "Court of Law "‑‑‑Where the Tribunal has similar attributes under S. 194‑C (8) of Customs Act, 1969, proceedings before the Tribunal are deemed to be judicial proceedings and the Tribunal is deemed to be a Court for the purposes of Ss. 480 & 482, Cr. P. C.

R.M. Seshadri v. Second Additional Income Tax Officer (1954) 25 ITR 400 and D.H. Satyana Raya Numurti v. ITAT, Madras (1958) 33 ITR 123 distinguished.

(n) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 203‑‑‑Expression "Court "‑‑‑Scope‑‑Judicial or quasi judicial forums or .administrative tribunals are included in the purview of Art. 203 of the Constitution.

(o) Qanun‑e‑Shahadat Order (10 of 1984)‑‑‑

‑‑‑‑Art. 2(a)‑‑‑Expression "Court "‑‑‑Scope ‑‑Except arbitrators, all forums legally empowered to record evidence have been defined under Art. 2(a) of Qanun‑e‑Shahadat Order, 1984, to be "Courts".

(p) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 175‑‑‑Trichotomy of powers‑‑Principle of separation of power‑‑Applicability‑‑‑Matters of taxation ‑‑‑Scope‑‑Concept of separation of power was applicable in matters of taxation‑‑‑Where the principle as enshrined in the Constitution was made applicable to the matters of taxation, the heirarchies of the judicial forums culminating in the Appellate Tribunals should function under the umbrella of the judicature.

State v. Ziaur Rehman PLD 1973 SC 49; Corpus Juris Secundum, Vol. 16, p.503; Government of Balochistan v. Azizullah Memon PLD 1993 SC 31; Government of Sindh v. Sharaf Faridi PLD 1994 SC 107 and Dias on Jurisprudence, 5th Edn., p.102 ref.

(q) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 175, 203 & 212‑‑‑Separation of power‑‑‑Working of Tribunals under judicature‑‑‑Where the appointments to the Appellate Tribunals were also regulated and supervised by the Judicial organ, the same would also be in keeping with Art. 203 of the Constitution‑‑‑Nigh Court recommended to the Federal Government to consider and device schemes or amendments to the relevant laws.

Following were the recommendations given by the High Court for consideration of Federal Government‑‑‑

(a) All existing appointments of members in all the Appellate Tribunals created under Article 212 of the Constitution would be placed before the Chief Justice of the Province in which the incumbents were performing their duties. The‑ Chief Justice himself or any other Judge authorised by or committee appointed by him might look into such appointments to approve or disapprove the same, which would be binding upon the Federal Government;

(b) all future appointments would be screened by the judicial organ of the State.

(r) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212‑‑‑Administrative Tribunals, establishment of‑‑‑Purpose‑‑‑Appointing members of Tribunal on political basis or persons having doubtful integrity ‑‑‑Effect‑‑Raison de'etre of establishing Administrative Tribunals was to dispense a better quality of justice where people better trained in particular fields and disciplines could provide quality decisions and resolution of disputes‑‑Creation of such Tribunals was to relieve the ever‑escalating burden on the Courts‑‑Appointing members to such Tribunals on political basis or who were otherwise incompetent or had doubtful integrity, would prove completely counter productive, since firstly the quality of judgments as intended or aspired could not be delivered and secondly aggrieved against the actions and inactions of the Appellate Tribunals, a flood‑gate of litigation could be experienced by the High Court.

Dr. Muhammad Farogh Naseem for Petitioner.

S. Tariq Ali, Arshad Malik and Mir Fawad for Respondents.

YLR 2000 KARACHI HIGH COURT SINDH 2850 #

2000 Y L R 2850

[Karachi]

Before Abdul Hameed Dogar, J

NOORAUHAMMAD ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent .

Bail Application No. 590 of 1999, decided on 17th June,1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497‑‑‑Penal Code (XLV. of 1860), 5.324/353/34‑‑‑Bail, grant of‑‑‑No crime empty having been recovered from the .place of incident, factum of encounter was contended to be one of .further inquiry‑‑Motorcycle on which the accused was riding at the time of occurrence, though according to the complainant was a stolen one, yet no F.I.R. in that regard had been registered against him‑‑‑Prosecution did not contest the bail application and conceded to the grant of bail‑‑‑Accused was admitted‑ to bail in circumstances.

Qadir Khan for Applicant.

Arshad Lodhi for the State.

YLR 2000 KARACHI HIGH COURT SINDH 2940 #

2000 Y L R 2940

[Karachi]

Before Hamid Ali Mirza and Shabbir Ahmed, JJ

Khawaja HABIBULLAH‑‑‑Plaintiff

versus

KARACHI BUILDING CONTROL AUTHORITY and others‑‑‑Respondents

Constitutional Petition No. 447 of 1998, dismissed on 29th February, 2000.

Karachi Building and Town Planning Regulations, 1979‑‑‑

‑‑‑‑Regln. 16 ‑‑‑Constitution of Pakistan (1973), Art. 199Constitution petition--Raising of unauthorised construction‑‑ Petitioner who was owner of the adjoining plot in dispute had raised objections against such construction‑‑‑Petitioner had contended that owners of disputed plot were raising unauthorised construction over that plot on basis of illegally approved building plan; that height of building raised on said plot was above that of podium level of Quaid‑e‑Azam's Mazar; that right to light and air of petitioner would be disturbed by the construction; that raising of such construction would create nuisance and that no compulsory minimum open space on all sides of the built‑up area had been left‑‑‑Petitioner had failed to show specifically that there were violations in the building plan in respect of any sanctioned site development scheme or construction so raised by respondents would obstruct any future road widening scheme or that height of building in dispute or number of its storeys exceeded permissible limit under Regulations or the building extended beyond the property limits‑‑‑In absence of such material on record it could not be said that construction so raised would disturb rights of petitioner in respect of light and air‑.‑No material/ evidence had been brought on record to show that raising of the building would be a nuisance to petitioner‑‑‑Petitioner could not point out from reliable ‑material on record that final approved building plan was in contravention of Rules and Regulations‑‑Petitioner having failed to prove his pleas/objections with regard to construction on plot, his Constitutional petition was dismissed.

Ardeshir Cowasjee and 10 others v. Karachi Buildings, Control Authority (K.M.C.), Karachi and 4 others 1999 SCMR 2883; Muhammad Khurshid Abbasi v. Administrator/Assistant Commissioner Municipal Committee, Murree and another 1999 SCMR 2224 and Abdul Razak v. Karachi Buildings Control Authority and others PLD 1994 SC 512 ref.

A Chundrigar for Petitioner, Shahid Jamil Ahmad Khan and Raja Sikandar Khan Yasir for Respondent No. 1.

S. Muzaffar Imam for Respondent No.2

Ainuddin Khan, Addl, A.‑G for Respondents.

Nemo for Respondent No.5.

Kamaluddin for Respondents Nos. 6 to 9.

Date of hearing: 29th February,

YLR 2000 KARACHI HIGH COURT SINDH 3007 #

2000 Y L R 3007

[Karachi]

Before Abdul Ghani Sheikh, J

NASIR HAYAT‑ Applicant

versus

THE STATE‑ Respondent

Criminal Bail Application No. 309 of 2000, decided on 10th April, 2000. , Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Local police in the first instance had taken the accused into custody and telephonic message' was conveyed to the F.I.A. Police‑‑‑It was not known whether the private persons whose passports were seized by the Police, had made any, complaint against the accused‑‑‑ Maximum accusation against the accused according to the investigation was that he had demanded Rs.17, 000 front a person for providing employment to hint‑‑‑Record, however, did not indicate whether said employment, was within the country or abroad and whether the payment was actually made‑‑‑Case against accused, in circumstances, required further probe and he was released, on bail accordingly.

Shahadat Awan for Applicant.

Ch. Muhammad Iqbal Standing Counsel for the. State.

Date of hearing: 10th April, 2000.

YLR 2000 KARACHI HIGH COURT SINDH 3008 #

2000 Y L R 3008

[Karachi]

Before Wahid Bux Brohi, J

KAMRAN ALI and another‑ Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1349 of 1999. decided on 31st December, 1999, Criminal Procedure Code (V of 1898)‑‑‑

S.497‑‑‑Penal Code(XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑No identification test was held in the case after the arrest of accused through the eye‑witnesses‑‑‑Only evidence against the accused was the version of co‑accused admissibility of which was questionable‑‑‑Main consideration before the Court, in matter of grant or refusal of bail, could not be the allegation of abscondence of accused alone, but such abscondence should have some nexus with the allegation against him in respect of the commission of the offence‑‑‑Mere abscondence of accused was not enough to decline him bail, if he had otherwise a good case for bail on merits‑‑Accused was admitted to bail in circumstances.

The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Pir Mazharul Haque v. The State 1992 PCr.LJ 1910 and Moula Bux and others 1997 SCMR 292 ref.

Mahmood A. Qureshi for Applicants.

Dillwar Hussain for the State.

YLR 2000 KARACHI HIGH COURT SINDH 3010 #

2000 Y L R 3010

[Karachi]

Before Ghulam Rabbani, J

MUHAMMAD NASIM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 428 of 1999, decided on 17th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), 5.392/397/34‑‑‑Bail, grant of‑‑‑No evidence was available against the accused excepting the statement of the co‑accused disclosing his name as one of the culprits‑‑‑Accused had not been put to any identification test‑‑Motorcycle allegedly recovered from the accused had not been got identified and only co‑accused had stated before the police that the same was used in the commission of the crime‑‑‑Accused was in jail for over one year without any progress in the case, for which he or anybody acting on his behalf was not responsible‑‑‑Bail was granted to accused in circumstances.

Pir Mazharul Haq v. The State 1992 PCr.LJ 1910; Mrs. Saeeda Ahsan v. Province of Punjab 1992 MLD 1322; Muhammad Asif v. The State 1998 MLD 1549; PLD 1996 Kar. 534 and PLD 1991 FSC 53 ref.

Rizwan Hussain v. The State 1997 SCMR 131 distinguished.

Mehmood Akhtar Qureshi for Applicant.

Sharafat Ali Khan for the State.

Lahore High Court Lahore

YLR 2000 LAHORE HIGH COURT LAHORE 4 #

2000 Y L R 4

[Lahore]

Before Ch. Ijaz Ahmad, J

MUKHTAR AHMAD GONDAL---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary Health, Civil Secretariat, Lahore and 2 others---Respondents

Writ Petition No. 22469 of 1996, decided on 3001 September, 1999.

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

----Arts.' 4, 18 & 199---Constitutional petition---Irregular appointment ---Appointment of Homoeopathic Doctor on the recommendation of Member of National Assembly---Validity---Such an appointment being not in accordance with law, could trot be protected to remain in the field as same was repugnant to Arts.4 & 18 of Constitution.

Munawar Khan's case 1993 SCMR 1287; 1995 SCMR 999; 1996 SCMR 1349; Zahid Akhtar's case PLD 1995 SC 530; Ghulam Mohy-ud-Din's case PLD 1964 SC 829; Muhammad Iqbal Khokhar's case PLD 1991 SC 35 and PLD 1992 SC 184 rel.

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

----Art.4---Chief Executive of country is duty bound to act in accordance with law and Constitution.

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

----Art.189---Judgment of Supreme Court--Binding nature---By virtue of Art. 189 of the Constitution judgment of Supreme Court is binding on each and every organ of the State:

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

----Art. 199--- Constitutional petition--Maintainability---Conduct of the petitioner--Relevance---Petitioner applied for the post of Homoeopathic Doctor and was declared as a successful candidate---No appointment was made against the vacancy and the vacancies were advertised for the second time--Petitioner also appeared for the second time before Recruitment Committee but respondent was appointed--Validity---Any person who had acquiesced in erroneous order or irregular proceedings even defective jurisdiction was not entitled to question the same subsequently ,by invoking a high prerogative jurisdiction---Petitioner was not entitled to any discretionary relief on account of his own conduct in circumstances.

Suleman's case 1970 SCMR 574 and Malik Muhammad Din's case PLD 1968 Lah. 544 rel.

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

----Art. l99---Constitutional jurisdiction, exercise of---Negligent petitioner--Consequence---Constitutional jurisdiction being an equitable jurisdiction, cannot be exercised in favour of a person who has come to the Court with gross negligence.

Mohsin Khan's case 1969 SCMR 306; Suleman's case 1970 SCMR 574 and Khiali Khan's case PLD 1997 SC 304 rel.

(f) Constitution of Pakistan (/973)---

----Art. 199--- Constitutional petition --imposition of ban on appointments--Petitioner was a candidate for a vacancy of Homoeopathic Doctor---Although the petitioner stood first out of 73 candidates yet he was not appointed and the respondent/candidate was appointed on the recommendation of Member of National Assembly---Authority stated that there were still 6 posts vacant but due to ban imposed by the Government, petitioner could not be adjusted---Validity---When the petitioner appeared before the Recruitment Committee there was no ban at that time---Such ban, in circumstances, did not hinder in the way of the Authorities to consider the petitioner against one of the vacancies.

13LD 1997 SC 304 and PLD 1964 SC 829 ref.

Ch. Muhammad Sadiq for Petitioner.

Ahmad Waheed Khan for Respondent No.3.

Muhammad Nawaz Bhatti, Addl. A. G.

YLR 2000 LAHORE HIGH COURT LAHORE 8 #

2000 Y L R 8

[Lahore]

Before Sheikh Abdur Razzaq, J

TARIQ MAHMOOD‑‑‑Petitioner

Versus

CANTONMENT BOARD, RAWALPINDI ‑‑‑Respondent

Writ Petition No. 750 of 1999, decided on 7th July, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Contractual obligation‑‑Determination‑‑‑Cantonment Board cancelled the bid/contract in favour of the petitioners and invited fresh bids ‑‑‑Validity‑‑‑Where the matter involved was a question arising out of contractual obligation, High Court in exercise of its Constitutional jurisdiction would not interfere in such a matter‑‑‑Inviting of fresh bid did not suffer front any illegality.

Messrs Momin Motor Company v. The Regional Transport Authority, Dacca and others PLD 1962 SC 108: The Chandpur Mills Ltd. v. The District Magistrate. Tippera and another PLD 1958 SC (Pak.) 267; Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan Road Transport Board and others PLD 1963 (W.P) Lah. 418; A.F.M. Abul Fateh v Province of East Pakistan and another PLD 1966 Dacca 178 and Ghulam Mohy-ud-Din v. Secretary, Industries, Punjab and others 1996 CLC 2041 ref.

Ibad‑ur‑Rehman Lodhi for Petitioner.

Sardar Muhammad Ghazi for Respondent.

YLR 2000 LAHORE HIGH COURT LAHORE 18 #

2000 Y L R 18

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL WAHEED and others‑‑‑Appellants

Versus

MUHAMMAD ANWAR KHAN and others‑‑‑Respondents

Second Appeal from Order No. 153 of 1999, decided on 30th November, 1999.

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

‑‑‑‑S.13‑‑‑Bona fide personal need of landlord‑‑‑More than one non‑residential properties owned by landlord ‑‑‑Effect‑‑Where all of such properties were rented out, the choice was with the landlord to seek eviction of tenant froth any of such properties‑‑‑Landlord was not required to make a disclosure in ejectment petition with regard to the other properties owned by hint or to give any explanation for his choice of a particular property for his possession.

Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala and others 1968 SCMR 804; Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi PLD 1971 Kar. 505 and Muhammad Mirza v. Muhammad Hussain Ghani PLD 1983 Kar. 162 ref.

Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 442 rel.

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

‑‑‑‑S‑13‑‑‑Bona fide personal need of landlord‑‑‑Determination of requirement‑‑‑Proof‑‑‑Most important piece of evidence in determination of bona fide personal requirement is the statement of landlord himself‑‑‑Where statement of landlord is not shattered in cross‑examination and is trot otherwise rebutted by the tenant, such statement by itself is sufficient to sustain the positive findings on the issue of bona fide personal requirement.

S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119 rel.

‑‑‑‑S.13‑‑‑Bona fide personal need of landlord and impairing the value of utility of property by tenant‑‑‑Landlord successfully proved both the grounds mentioned in ejectment petition‑‑‑Rent Controller ordered the ejectment of the tenant and appeal before the Lower Appellate Court was also dismissed‑‑‑Effect‑‑‑Where orders of both the Courts below were based on the evidence on record it could not be said that Courts had misread such evidence.

Ch. Muzammil Khan for Appellants.

YLR 2000 LAHORE HIGH COURT LAHORE 20 #

2000 Y L R 20

[Lahore]

Before Muhammad Naseem Chaudhri, J

Mst. NAZEERAN BIBI‑‑‑Petitioner

Versus

S.H.O., POLICE STATION FACTORY AREA, SHEIKHUPURA and others‑‑‑Respondents

Criminal Miscellaneous No. 1546‑H of 1999, heard on 28th September, 1999.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Recovery of detenu‑‑‑Detenu was husband of the petitioner who was taken by Assistant Sub-Inspector of Police‑‑‑Bailiff was deputed for recovery of detenu‑‑‑Bailiff reported that arrest of the detenu seas not shown in the Daily Diary of the Police Station and an Assistant Sub‑Inspector of the police station had taken the detenu to place 'M' in connection with abduction of two girls‑‑Report of the bailiff was verified by the Station House Officer of police station who appeared before the Court‑‑‑Station House Officer was directed to produce the detenu alongwith Assistant Sub‑Inspector‑‑‑Police having failed to produce detenu before the Court order of registration of F. I. R. against concerned Assistant Sub‑Inspector of Police was passed by High Court‑‑‑Station House Officer was ordered to be transferred from the police station to Police Lines for four months‑‑‑Superintendent of Police was directed by High Court to recover the detenu and would appear personally before the Court alongwith the detenu.

Ch. Ihsan‑ul‑Haque for Petitioner.

Syed Zulfiqar Ali Bokhari, Asstt. A. G

Shah Hussain, A.I.G. (Legal) Punjab, Lahore and Muhammad Ashraf D.S.P. (Legal), Sheikhupura.

Syed Riaz Ali Shah, Inspector/S.H.O., P. S. Factory Area, Sheikhupura and Ibad Ali, A.S. I., Police Station, Factory Area, Sheikhupura for Respondents.

Date of hearing: 28th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 28 #

2000 Y L R 28

[Lahore]

Before Syed Zahid Hussain, J

GHULAM HUSSAIN and 7 others‑‑‑Petitioners

Versus

Mst. PAIDI and 3 others‑‑‑Respondents/Plaintiffs

Civil Revision No. 192 of 1987, decided on 26th November, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Agreement to sell suit land was executed by the defendant and full consideration amount was paid by the plaintiffs‑‑‑Possession of the suit land was handed over to the plaintiffs‑‑‑Suit for declaration was filed instead of suit for specific performance of agreement‑‑‑Trial Court dismissed the suit whereas the Lower Appellate Court reversed the findings of the Trial Court and decreed the suit‑‑‑Contention of plaintiffs was that the agreement to sell be treated as an outright sale ‑‑‑Validity‑‑Contention was repelled as no declaratory decree could be granted in favour of plaintiffs in circumstances of the case as they were required to file suit for specific performance of agreement arid not suit for declaration of their title to suit land‑‑‑Judgment of Lower Appellate Court was set aside and that of Trial Court was restored.

Dr. Faqir Muhammad v. Haji Amir Muhammad and others 1982 SCMR 1178; Muhammad Nawaz v. Mian Muhammad Anwar Abbasi and others PLD 1982 BJ 33 and Zafar Ahmed v. Mst. Hajran Bibi PLD 1986 Lab. 399 ref.

Sajjad Hussain for Petitioners/Defendants.

Sh. Naseem Shaukat for Respondents/Plaintiffs.

Date of hearing: 23rd November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 33 #

2000 Y L R 33

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. RAB NAWAZ‑‑‑Petitioner

Versus

Mst. NASREEN and others‑‑‑Respondents

Civil Revision No. 1530 of 1999, decided on 5th October, 1999.

(a) Maxim‑‑‑

‑‑‑‑ "Secundum allegata at probata "‑‑Meaning‑‑‑No party is allowed to lead evidence in respect of a plea not taken in the pleadings‑‑‑Party has first to plead and then to prove that plea.

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

‑‑‑‑O. VIII, R.5‑‑‑Specific denial‑‑Applicability‑‑‑Defendant was required to specifically deny the contents of the plaint‑‑Where defendant failed to make such denial Court was justified in assuming that such contents of the plaint were admitted.

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Revision petition ‑‑‑Condonation of delay‑‑‑Delay caused due to wrong forum‑‑Plea raised by petitioner was that value of the suit fur purpose of court fee was not mentioned in the plaint and due to that fact earlier revision petition was filed before the Lower Appellate Court, hence the revision in question was delayed‑‑‑Validity‑‑‑Right on the face of the plaint, the amount to be recovered was mentioned‑‑‑Case was such that the plaint was to bear the fixed amount of court fee and there was no need to mention the value of the suit for the purpose of court‑fee ‑‑‑Such being a case of extreme negligence there was no ground for condonation of delay‑‑‑Revision was dismissed in limine.

Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Raja Karamatullah v: Sardar Muhammad Aslam Sukhera 1999 SCMR 1892 rel.

Dost Muhammad Bhatti for Petitioner.

2000 Y L R 43

[Lahore]

Before Iftikhar Hussain Chaudhry and Dr. Munir Ahmad Mughal, JJ

SHAHID MAHMOOD‑‑‑Appellant

Versus

STATION HOUSE OFFICER, POLICE STATION KOTWALI, FAISALABAD and 2 others‑‑‑Respondents

Intra‑Court Appeal No. 763 of 1999, decided on 2nd September, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 154, 156 & 561‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Quashing of F.I.R., pending a civil suit‑‑‑Where a criminal case was at the investigation stage and had not yet come before a competent Court, accused should place all his cards before the Investigating Officer, and if the case was not cancelled and the matter went for trial, the accused might move for staying the proceedings till the decision of the civil matter and till then Constitutional petition of the accused was without merit.

1968 PCr.LJ 764; Muhammad Azam v. Muhammad lqbal PLD 1984 SC 95; Yaqoob Khan v. The State and 3 others 1971 P Cr. LJ 266; The King‑Emperor v. Khawaja Nazir Ahmad 217 Ind. Cas. 1; Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 and Muhammad Azam v. Muhammad lqbal and others PLD 1984 SC 95 ref.

Kh. Abdul Sami for Appellant.

YLR 2000 LAHORE HIGH COURT LAHORE 47 #

2000 Y L R 47

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. NASEEM BIBI---Petitioner

Versus

SUB-REGISTRAR/M.I.C., LAHORE and others---Respondents

Writ Petition No.2112 of 1997, decided on 2nd February, 2000.

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

----S. 154---Registration of F. I. R. --Registration of a criminal case is a statutory duty of the police under 5.154, Cr. P. C. whenever commission of a cognizable offence is reported to it---Such duty of the police cannot be circumscribed due to the pendency of a civil suit in respect of the same matter at the relevant time.

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

----Art.199---Criminal Procedure Code (V of 1898), S.156---Constitutional jurisdiction--Scope---Criminal investigation ---Constitutional jurisdiction of High Court cannot be utilized for restraining a person from doing something which he is statutorily required to do---Such jurisdiction being essentially civil in nature, an injunction is generally not granted by High Court for staying proceedings of a criminal investigation--Proceedings pending before a Criminal Court are stayed only in appropriate cases during the pendency of the same matter before a Civil Court, but the same principle cannot be applied regarding stay of criminal investigation-- Police being statutorily duty bound to investigate a crime reported to it, High Court as generally does not scuttle or stifle the said statutory duty of the police.

----S.420/468/471---Criminal Procedure Code (V of 1898), S.156---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Investigation of the case had already been completed and the challan was about to be submitted before the Court and, therefore, the matters of registration of the F.I.R. and pendency of civil suit had become irrelevant at such stage---Civil suit, even otherwise, had already been dismissed for non prosecution about two years ago---Record did not show that the criminal case was an outcome of mala fides on the part of the complainant--Nature of the disputed document and the intention of parties could best be decided by the Trial Court after recording evidence--Constitutional petition was dismissed in circumstances. ---(Muhammad Siddiq v. Rashid Ahmad Ch. and another 1998 MLD 686 dissented from).

Muhammad Siddiq v. Rashid Ahmad Ch. and another 1998 MLD 686 dissented from.

Pir S. A. Rashid for Petitioner.

M. Bilal Khan, Addl. A.-G. for Respondents Nos. l and 2.

YLR 2000 LAHORE HIGH COURT LAHORE 54 #

2000 Y L R 54

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RIAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 188 of 1998, heard on 11th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑Matter was reported to police with a delay of about 6/7 hours and no explanation was given for the delay‑‑‑Three co‑accused were acquitted by Trial Court‑‑‑Deceased, according to prosecution, dragged into house of accused by co‑accused, but post-mortem report showed no marks of dragging on the body of deceased‑‑‑If plea taken by accused in his statement under S.342, Cr.P.C. and that of prosecution was put in juxtaposition, story put forth by accused could be termed as truthful and confidence inspiring‑‑‑Cycle on which deceased was going on at the time of occurrence, was not taken into possession by Investigating Officer‑‑‑Material discrepancies were found in statements of both eye‑witnesses on important points‑‑‑Prosecution, in circumstances, had failed to prove its case against accused and accused had been successful in creating dents in the prosecution story‑‑‑Conviction and sentence awarded ‑ to accused by Trial Court, were set aside extending benefit of doubt to the accused and he was acquitted from charge of murder.

Mehboob Alam for Appellant.

Saleem Nawaz Abbasi, Asstt. A.‑G. for the State.

Date of hearing: 11th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 57 #

2000 Y L R 57

[Lahore]

Before Khawaja Muhammad Sharif, J

MURID HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.66 of 1995, heard on 11th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 34‑‑‑Appreciation of evidence ‑‑‑Occurrence having taken place in full winter season at night, presence of prosecution witnesses at the spot, was highly doubtful‑‑‑F. I. R. was lodged with delay of ten hours and said delay was not explained though distance from place of occurrence to police station was six kilometres‑‑‑Defence plea taken by accused and story as put forward by prosecution if put in juxtaposition, story put forward by accused, seemed to be more plausible and convincing‑‑‑Prosecution having failed to prove case against accused through unimpeachable evidence, conviction and sentence awarded to accused by Trial Court, were set aside and they were ordered to be released forthwith.

Malik Farrukh Mahmood with M. H. Bazmi for Appellant.

Saleem Nawaz Abbasi, A.A.‑G. for the State.

Date of hearing; 11th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 60 #

2000 Y L R 60

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD ISMAIL ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.693‑B of 1999, decided on 21st April, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (AL V of 1860), S.302/324/109/34‑‑‑Bait‑‑‑Accused had been named in the F.LR. with a specific role in the occurrence‑‑‑Ocular testimony and medical evidence had supported each other in respect of the nature and seat of injury on the person of the deceased‑‑‑Incident being of broad daylight, question of identification or substitution could not arise‑‑‑Offence was punishable with death and the statutory period required for grant of bail had not vet expired‑‑‑Bail was declined to accused it circumstances.

Arshad Ali Chohan for Petitioner.

Mian Fazal Rauf Joiya for the Complainant.

Anwaar‑‑ul‑Haq for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 62 #

2000 Y L R 62

[Lahore]

Before Sheikh Abdur Razzaq, J

ISHFAQ SADIQ---Petitioner

Versus

STATE---Respondent

Criminal Miscellaneous No.798-B of 1999, decided on 22nd September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (X.V of 1860), S.324---Bail, grant of---Incident was admitted by accused---Contention raised by accused was that the complainant and others tried to outrage the modesty of his wife so he had to resort to firing---No force having been found in the contention raised by the accused, he was not entitled to relief of bail which was refused in circumstances.

Shaukat Aziz Siddiqui for Petitioner.

Aftab Ahmad Khan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 63 #

20CO Y L R 63

[Lahore]

Before Sheikh Abdur Razzaq, J

MEHRBAN KHAN alias BANI---Petitioner

Versus

THE STATE ---Respondent

Criminal Miscellaneous No.785-B of 1999, decided on 21st September, 1999.

Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 1860), S.302/201---Bail, grant of---Case of further inquiry---Prosecution story was not supported by three prosecution witnesses, before the police---Deputy Superintendent of Police had recommended the discharge of the accused--Although an investigation was pending with the Range Crimes, yet no evidence connecting the accused with the offence had so far come on record---Prosecution failed to connect the accused with the commission of offence--Case of the accused was one of further inquiry---Accused was admitted to bail in circumstances.

Muhammad Fazil Butt for Petitioner.

Ch. Zahoor Hussain for the Complainant.

Mobeen Ahmad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 80 #

2000 Y L R 80

[Lahore]

Before Muhammad Naseem Chaudhri, J

TARIQ MAHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4918-B of 1999, decided on 28th September, 1999.

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

----S.497(2)---Penal Code (XLV of 1860), S.392---Bail, grant of---Accused was not named in the F. I. R.---Supplementary statement of the complainant was recorded about 25 days after the registration of F.I.R.---Such statement was recorded on the information provided by respectables of the area---Neither names of the respectables were mentioned in the supplementary statement, nor their statements under S.161, Cr.P.C. were recorded by Investigating Officer--Accused was arrested on the basis of such supplementary statements---Neither anything was recovered from the accused nor identification parade was conducted--General allegation contained in the supplementary statement could not be termed to be sacrosanct so as to connect the accused with the occurrence---Involvement of the accused was a question of further inquiry--Accused was admitted to bail in circumstances.

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

----Ss.154 & 156---Police Rules, 1934, S.245---First Information Report and subsequent statement made by first informant are two different things --- Value---F.I.R. is the document which is entered into a book register maintained at police station under S.245 of Police Rules, 1934, and the statement of the complainant is entered therein under S.154, Cr.P.C. on the basis of which the law is set into motion--Investigation is started by the police under S.156, Cr. P. C. ---Any further statement of the first, informant/complainant recorded during the investigation by the police would neither be equated with F.I.R. nor read as a part of the same, so as to be treated as a corroborative piece of evidence.

----S.103---Joint recovery---Any such recovery from one room of one house and attributed to two co-accused persons had not to play any legal role against the accused from whom nothing was recovered.

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

----Art.22---Identification parade ---Scope--Where names of the culprits were not mentioned in the F.LR. identification parade was necessary---Holding of such test was not only a check against false implication, but was also a good piece of evidence against genuine culprits.

Muhammad Aslam Sheharyar and Ch. Iftikhar Ahmad for Petitioner.

Maqbool Ahmad Qureshi for the state.

Date of hearing: 28th September,

YLR 2000 LAHORE HIGH COURT LAHORE 85 #

2000 Y L R 85

[Lahore]

Before Muhammad Naseem Chaudhri, J

NOOR MUHAMMAD ---Petitioner

Versus

S.H.O., POLICE STATION KLUR KOT, DISTRICT BHAKKAR and 4 others---Respondents

Writ Petition No. 1915 of 1998, decided on 3rd November, 1999.

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

----S.216---Constitution of Pakistan (1973)--Art.199---Constitutional petition-- Allegation of harbouring a proclaimed offender--Harassment of the petitioner and his family by the police---Father of such proclaimed offender had prayed for a direction to the police to act in accordance with law, not to harass him and his family members by launching illegal raids through trespassing his house, making their movements limited by making them sit in the police station, to humiliate them and penalize them by interfering in their privacy or to injure their dignity in any manner whatsoever for the alleged misdeeds of his son for which he and his family members were not responsible--Father, according to police (respondents), was an accused in a case registered under S.216, P. P. C: for having harboured and concealed his son who was a proclaimed offender in a murder case and that police had the authority to proceed in the matter--Allegation against father was that his son (absconder) was seen taking meals with him at a- "Chap " of "Abadi "---Father could not be expected to have provided meals openly to his son about whom he had got published a notice of disinheritment in a daily newspaper---Such type of allegation against the petitioner did not come within the ambit of the words "harbour" or "conceal" as used in S. 216, P. P. C. ---Police, thus, was out to harass the father and his family members to put pressure for the surrender of the absconding accused and in this regard the taking of the father and his family members to police station and adopting third degree methods could not be ruled out---Police were consequently restrained from harassing and insulting the father and his family members in any manner with respect to the offences/misdeeds committed by the son, the absconder---Constitutional petition was accepted accordingly.

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

----Ss.47 & 48---Search of place and procedure where ingress not obtainable--Permission is to be obtained to enter a house properly and according to the situation and it is after the refusal of the occupants to let the police enter the premises for the arrest of the absconding accused that the authority is notified, demand for admittance is made and thereafter in case of refusal doors and windows of the house can be broken open and even at that time the females of the house have to be provided the opportunity to withdraw before the doors, windows are broken open to arrest the accused.

Khutba-tul-Hajja-tul-Wida; Al-Qur'an: Surah Al-Noor, Verses 27, 28; Sahee-Al-Bokhari, Vols. VIII, IX by Dr. Muhammad Mohsin Khan and Riaz Hussain v. S.H.O., Police Station City, Jhang PLD 1998 Lah. 35 ref.

----Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all---Other methods of performance are necessarily forbidden.

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

----S.216---Constitution of Pakistan (1973), Arts.4, 9, 14 & 25---Equality of citizens--Offender alone being responsible for the offence, police was not competent to enter the house of a fugitive from law wherein he was not present/living while his nears and dears were putting up who had no concern with the occurrence and not liable for the occurrence.

All citizens are equal before the law and are entitled to equal protection of the law. If some member of the family has shown disrespect to the rule of law by committing any offence of ordinary, sensational or heinous nature that does not mean that other family members can be put to the ordeal of facing dishonour, disrespect and harassment in the alleged manner. In this regard the kind words of the Holy Prophet (p.b.u.h.) contained in the last Sermon (Khutba-tul-Hajja-tul-Wida) have to be referred to that "henceforth, the offender himself will be responsible for the offence; no son will be charged for the father's crime and no father will be punished for the crimes committed by the son". Consequently the police is not competent to enter the house of a fugitive from law wherein he is not present/living while his nears and dears are putting up who have no concern with the occurrence and not liable for the occurrence.

Last Sermon (Khutba-tul-Hajja-tul-Wida) ref.

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

----Art.4---Right of individuals to be dealt with in accordance with law---Police has no authority to humiliate the citizens---To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen---Police officers have not been given unbridled authority to humiliate and ridicule the citizens without any iota of evidence against them---To call a person to police station without factual and legal justification, make him to sit there against his will, prima facie, amounts to wrongful confinement and action needs to be taken against the police.

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

----S.216---Criminal Procedure Code (V of 1898), S.54---Allegation of harbouring a proclaimed offender---Police has no unfettered powers to arrest any person without warrant and to enter any premises for such purpose---General impression to the contrary is not well founded.

The general impression amongst the Police Officers is that any person can be arrested by them without warrant. It is generally expressed by some of the autocratic Police Officers that they can arrest any person under section 54 of the Code of Criminal Procedure without warrant and fir that matter they can enter/get ingress in any premises. Legally it is not so, which stands projected by the aforesaid statutory provisions. Some times the male, female, old, young relatives of the absconding accused are arrested, removed under section 54 of the Code of Criminal Procedure whose arrest is not shown in the Daily Diary and out of them some are even crippled or eliminated. The habeas petitions are filed and unnecessary expenses of imposed litigation have to be borne. To maintain the balance in the social set-up and in the larger interest of the citizens the unfettered powers cannot be allowed to be used by the Police or the Executive/Political Authorities at whose command also they have to proceed in the aforesaid illegal and unauthorized manner.

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

----Ss.76, 77, 78, 79, 80 to 88, 92, 100 & 103---Homicide, its classification and categories detailed.

Homicide is the killing of human being by a human being. Homicide is of three categories; it may be premeditated, involuntary, or voluntary.

Homicide is either lawful or unlawful.

Lawful homicide or simple homicide includes several cases falling under the General Exceptions contained in Chapter .IV of the Pakistan Penal Code. Lawful homicide may be divided, for the sake of convenience, into (1) excusable homicide and (2) justifiable homicide. "Excusable homicide" includes the following cases:--

(a) Where the death is caused by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution (section 80, P.P.C.).

(b) When the death is caused by a child or a person of unsound mind or an intoxicated person (sections 82, 83, 84 and 85 of P.P.C.).

(c) Where the death is caused intentionally by an act done in good faith, for the benefit of the person killed when (i) he, or if a minor or lunatic, his guardian, has expressly or impliedly consented to such an Act (sections 87 and 88, P.P.C.) or (ii) where it is impossible for the person killed to signify his consent, or where he is capable of giving consent and has no guardian from whom it is possible to obtain consent in time for the thing to be done with benefit (section 92, P.P.C.).

"Justifiable homicide" includes the cases where the death is caused--

(a) by a person who is bound, or by a mistake of fact, in good faith, believes himself bound by law (section 76, P.P.C.);

(b) by a judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be given to him by law (section 77, P.P.C .);

(c) by a person acting in pursuance of the judgment or order of a Court of Justice (section 78, P.P.C.). The execution of a lawful sentence of death do not constitute a legal offence;

(d) by a person who is justified or who by reason of a mistake of fact, in good faith, believes himself to be justified by law (section 79, P.P.C.);

(e) by a person acting without any criminal intention to cause harm, and in good faith, for the purpose of preventing or avoiding other harm to person or property (section 81, P.P.C.);

(f) where the death is caused in exercising the right of private defence of person or property (sections 100 and 103, P. P. C.).

"Unlawful homicide" is also known as "culpable homicide". Culpable homicide under the provisions of Pakistan Penal Code would be murder if the act by which the death is caused is done with the intention of causing death, or secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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

----Art.9---Security of person---Extra judicial killing---Law cannot be illegally stretched to eliminate the persons without trial.

God has bestowed life to a person as a trust (Amanat) and breach of trust (Khianat) has not been allowed by Him. This is the reason that suicide through any form, viz. self-immolation, taking of poison, hanging, firing etc. etc. has strictly been prohibited and declared as "Haraam". Suicide is a sin. If one cannot murder himself i.e. is not allowed to commit breach of trust regarding his own life by committing suicide, how he can commit "Khianat" in other's life through murder/extra judicial killing while no policeman is injured or receives any scratch. Law cannot be illegally stretched to eliminate the persons without trial. Rather the law can be used for the betterment of the mankind and not to eliminate the citizens and eclipse the moral, legal values.

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

----S.167---Police Rules, 1934, Appendix No.25.58(1)---Remands to police custody--Instructions quoted.

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

----Art.9---Security of person---Extra judicial killings---Strategy employed by police in eliminating persons without trial discussed.

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

----Art.9---Police Act (V of 1861), S.4--Extra judicial killings---Duty of District Magistrate---District Magistrate who has the control of the administration of Police throughout the local jurisdiction of the District, has also to play his positive role to maintain the check and balance, who can pass the order for holding of judicial inquiry or registration of murder case with respect to extra judicial killings and thereafter the law can be set in motion and the investigation can be conducted under 5.156, Cr. P. C. Aziz Ahmad Malik for Petitioner.

Syed Zulfiqar Ali Bokhari, Asstt. A.-G., Punjab for Respondents.

Date of hearing: 2nd November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 133 #

2000 Y L R 133

[Lahore]

Before Muhammad Naseem Chaudhri, J

NOOR MUHAMMAD ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Suo Motu in Writ Petition No. 1915 of 1998, heard on 16th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.216‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Allegation against the accused (petitioner) was that he was taking meals with his absconding son under the shadow of a tree in front of his house and that he had helped his son financially as well‑‑‑Such allegation could not be held to be harbouring or concealing the absconding accused as envisaged by S. 216, P. P. C. and had been made to put pressure on the petitioner for the arrest of his absconding son involved in a murder case with whom he had no concern and had already disinherited him‑‑‑Case had been registered against the petitioner in order to humiliate him and his family members which also suffered from a delay of three days‑‑‑Case against the petitioner being an outcome of mala fides of the police and the complainant F.I.R. was ordered to be quashed in circumstances.

Ahmad Nawaz Chadhar, A.S.I., Police Station Klur Kot, District Bhakkar with Police File.

Ms. Roshan Ara, Assistant Advocate‑General for the State.

Date of hearing: 16th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 139 #

2000 Y L R 139

[Lahore]

Before Ghulam Mahmood Qureshi, J

FAQIR HUSSAIN and 3 others‑‑‑Petitioners

versus

MEMBER, BOARD OF REVENUE

(SETTLEMENT WING) FARIDKOT

HOUSE, LAHORE and another‑‑‑Respondents

Writ Petition No.4739 of 1984, heard on 23rd December, 1999.

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

‑‑‑‑Para.3, proviso‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Right to purchase land at particular price by the occupants of land‑‑Enforcing of such right by Constitutional petition‑‑‑Validity‑‑‑Person occupying the lands whose holding was less than the subsistence holding, had an absolute right to purchase such lands‑‑‑Board of Revenue was only to frame policy to enforce such right and right to purchase such land at a particular price could be enforced by High Court in Constitutional petition.

Abdul Majid v. Deputy Settlement Commissioner and others PLD 1978 Lah. 912 ref.

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

‑‑‑‑Para.3, proviso‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑Right to purchase land at particular price‑‑Petitioners were occupants of lands having their holdings less than the subsistence holdings‑‑‑Petitioners submitted their option before 31‑12‑1974 for the purchase of such lands at the rate of Rs.10 per produce index unit (P. L U.)‑‑‑Respondent Authorities did not decide the applications of the petitioners for a long time and in year 1984 directed the petitioners to deposit the purchase price at the rate of Rs.100 per Produce Index Unit (P. I. U.)‑‑‑Validity‑‑‑When the petitioners had applied before the target date i.e. 30‑12‑1974, but somehow their application was not decided by the Chief Settlement Commissioner, petitioners could not be refused the right to purchase the land at the rate of Rs.10 per Produce Index Unit (P. 1. U.)‑‑‑Orders of the Authorities were without lawful authority, of no legal consequence and were set aside.

Abdul Majid v. Deputy Settlement Commissioner and others PLD 1978 Lah. 912 fol.

A.K. Dogar for Petitioners.

M. Z. Khalil and Naseem Sabir, Addl. A.‑G., Punjab for Respondents.

Date of hearing: 23rd December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 142 #

2000 Y L R 142

[Lahore]

Before Tassaduq Hussain Jilani, J

Sh. MUHAMMAD TUFAIL and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.479 of 1998, decided on 9th December, 1998.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409/420/467/468/471 /109‑‑‑Prevention of Corruption Act (11 of 1947), S.5‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑Impugned order dismissing the application of the accused moved under S.265‑K, Cr.P.C. had been challenged on the ground that in the absence of sanction for prosecution granted by the Competent Authority trial of accused could not proceed as admittedly they were public servants when the offence was committed‑‑‑Fresh charge was framed after the re‑submission of challan when the accused were no longer public servants and as such no sanction was required for their prosecution‑‑‑High Court relying on a Supreme Court's judgment reported as PLD 1965 SC 139 had already dismissed a revision petition filed by accused‑‑‑Present Irshad Ali Qureshi for Petitioners.

Khurshid Anwar Bhinder, Addl. A.‑G. for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 143 #

2000 Y L R 143

[Lahore]

Before Nasim Sikandar, J

ABDUL JABBAR‑‑‑Petitioner versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.95‑B of 2000, decided on 1st February, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.337‑F(iii)l 337‑F(i)l 337‑L (ii)l 452‑‑‑Bail, grant of‑‑‑None of the offences with which the accused was charged fell within the prohibitory clause of S. 497(1), Cr. P. C and, thus, he was entitled to the concession of bail‑‑‑Accused was released on bail accordingly.

Mian Fazal Rauf Joya for Petitioner.

Agha Khuram for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 144 #

2000 Y L R 144

[Lahore]

Before Riaz Kayani, J

NAUSHER and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6208‑B of 1999, decided on 17th Jaruary, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Accused had admittedly caused blunt weapon injuries to the prosecution witnesses and were in continuous incarceration for the last more than six months‑‑‑No injury had been caused by the accused to the deceased‑‑‑How far the acts of accused would amount to facilitation of commission of murder of the deceased by the co‑accused was yet to be determined by the Trial Court after recording evidence‑‑‑Case against accused, therefore, was one of further inquiry‑‑‑Accused were admitted to bail in circumstances.

Shah Ahmad Khan Baloch for Petitioners.

Muhammad Arshad Ramay for the Complainant.

Manzoor‑ul‑Haq for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 148 #

2000 Y L R 148

[Lahore]

Before Maulvi Anwarul Haq, J

HUMAYUN MALIK ‑‑‑Petitioner

versus

TAIMOOR MALIK and 3 others‑‑‑Respondents

Civil Revision No.862 of 1999, decided on 7th October, 1999.

Civil Procedure Code (V of 1908)‑

‑‑‑‑O.XVIII, R.2‑‑‑Production of evidence of defendants‑‑‑Defendants were divided into two groups, one supporting the plaintiff while the other opposing him‑‑‑Recording of evidence‑‑‑Procedure‑‑‑Trial Court directed the contesting defendants to produce their evidence prior to that of the conceding defendants‑‑‑Validity‑‑‑Just and proper course was that the conceding defendants should have been called upon to lead the evidence first in point of time and only thereafter the contesting defendants could be called upon to lead the evidence‑‑‑Order of trial Court which suffered from material irregularity was set aside in circumstances.

Shah Hiralal Himatlal and others v. M.G. Pathak and others AIR 1964 Guj. 26 fol.

Nanak Chand v. Durga Pershad Brinja and others AIR 1953 Punj. 102 and Juma Bewa and others v. Sahadeb Rout and others AIR 1987 Orissa 209 ref.

Syed Abid Mumtaz Tirmizi for Petitioner.

Taqi Ahmad Khan for Respondents Nos. 3 and 4.

Nemo for the Remaining Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 150 #

2000 Y L R 150

[Lahore]

Before Raja Muhammad Khurshid, J

SHAHIDA PARVEEN‑‑‑Petitioner

versus

MANZOOR AHMED and another‑‑‑Respondents

Criminal Miscellaneous No.2093‑B/C of 1999, decided on 6th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.354‑Al 337‑A (i)l 337‑F(i)134‑‑Cancellation of bail‑‑‑Complainant in the FLR. had clearly alleged that the accused after tearing off her apparel had exposed her private parts to the public and as such s.354‑A, P.P.C. was attracted which entailed punishment with death or imprisonment for life‑‑‑Torn clothes of the complainant had been recovered by the police‑‑‑No good ground was, therefore, available for admitting the accused to post‑arrest bail only a few days after the rejection of his pre‑arrest bail by the same Court‑‑‑Bail granted to accused by Trial Court was cancelled in circumstances.

Khan Muhammad Vehniwal for Petitioner.

Ch. Tahir Nasrullah Waraich for Respondent No. 1.

Farrukh Humayun for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 163 #

2000 Y L R 163

[Lahore]

Before Dr. Munir Ahmad Mughal, J

KHALID MAHMOOD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1 of 1998 in Criminal Appeal No.231 of 1996, decided on 9th September, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426(1‑A)(c)‑‑‑Penal Code (XLV of 1860), S.302(b)‑‑‑Suspension of sentence on ground of statutory delay‑‑‑Accused was continuously in jail for the last more than two years after his conviction by Trial Court and as per office report his appeal was not likely to be fixed for hearing for a couple of years‑‑Case of accused as such was covered under S.426(1‑A) (c), Cr. P. C.‑‑‑Sentence of accused was accordingly suspended and he was released on bail.

Muhammad Yaqoob and others v. The State 1991 SCMR 1459 ref.

Altaf Ibrahim Qrueshi for Petitioner.

Qazi Yaqoob Ayaz for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 164 #

2000 Y L R 164

[Lahore]

Before Sheikh Abdur Razzaq, J

Malik MUMTAZ AHMAD‑‑‑Petitioner

versus

S.H. 0. ‑‑‑Respondent

Writ Petition No. 1781 of 1999, decided on 29th September, 1999.

Penal Code (XLV of 1860) ‑‑‑

‑‑‑‑Ss.489‑C & 489‑D‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Machine allegedly recovered from accused/petitioner, had neither been found to be used for preparing forged/counterfeit currency notes or Bank notes, nor forged/counterfeit or Bank notes were found at the time of raid‑‑Effect‑‑‑Provisions of S. 489‑C, P. P. C. would come into play only when accused was found in possession of any counterfeit note or Bank note‑‑‑Offence under S. 489‑D, P. P. C. would be made out if it was found that somebody had made or performed any part in process of making or buying or selling or disposing of any instrument or material for forging or counterfeiting currency notes or Bank notes‑‑Ingredients of said offences absolutely being missing in the case, to allow continuation of proceedings in case, would amount to abuse of process of law‑‑‑F.I.R. lodged against accused/petitioner, was quashed in circumstances.

Muhammad Haroon and another v. Federation of Pakistan and others 1991 MLD 397 ref.

Sardar Muhammad Aslam for Petitioner.

Raja Saeed Akram, A.A.‑G.

YLR 2000 LAHORE HIGH COURT LAHORE 166 #

2000 Y L R 166

[Lahore]

Before Sheikh Abdur Razzaq, J

ASIF ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.720-B of 1999, decided on 23rd September, 1999.

Criminal Procedure Code (V of 1898)---

----S:497---Penal Code (XLV of 1860), Ss.337-A(i)l 337-A(iv)l 337-L(i)134---Bail, grant of---Injury attributed to accused did not fall in the prohibitory clause of S.497, Cr. P. C. ---Co-accused was already released on bail and challan was also submitted in the Trial Court---Accused had been in the judicial lock-up for more than four months and there was no need to further detain him am, more in the judicial lock-up---Accused was admitted to bail in circumstances.

Zulfiqar v. The State 1994 PCr.LJ 2285 ref.

Syed Hamed Ali Bokhari for Petitioner.

Malik Shaukat Hussain Awan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 177 #

2000 Y L R 177

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD TARIQ‑‑‑Petitioner

versus

MUHAMMAD SHAFI and another‑‑‑Respondents

Civil Revision No. 1765 of 1990, heard on 4th November, 1999.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.54‑‑‑Suit for mandatory injunction‑‑Plaintiff filed such suit against operation of power looms installed in the house of defendant, which was adjacent to that of plaintiff‑‑‑Evidence on record showed that somehow the residential area stood converted into an industrial area as every third house in the locality was operating power looms and other machines‑‑‑No case for actionable nuisance was made out by the plaintiff in circumstances.

Muhammad Ashiq v. Rafiq 1993 CLC 1846; Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Muhammad Akhtar v. Haji Allah Bakhsh 1968 PCr.LJ 225 and Mst. Nasreen Rashid v. Mst. Asghari Begum Qureshi and others PLD 1982 SC 453 distinguished.

S.M. Masood for Petitioner.

Asghar Ali for Respondents.

Date of hearing: 4th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 181 #

2000 Y L R 181

[Lahore]

Before Ghulam Mahmood Qureshi, J

Sheikh MUNIR AHMAD‑‑‑Petitioner

versus

RENT CONTROLLER, KASUR DISTRICT, KASUR and another‑‑‑Respondents

Writ Petition No. 23940 of 1999, decided on 22nd December, 1999.

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

‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), OS.XVI & XVII‑‑‑Ejectment petitions‑‑rocedure laid down under Os. XVI & XVII, C.P.C.‑‑‑Applicability‑‑‑Civil Procedure Code stricto senso is not applicable to the ejectment proceeding, but the procedure laid own under Os. XVI & XVII, C. P. C. is very much applicable‑‑‑Rent Controller is not precluded from taking any action to preserve the decorum of the Court‑‑‑Rent Controller being persona designata had got inherent jurisdiction to pass any such order, which he deemed fit to regulate the proceedings in the interest of justice.

Jameel v. Rent Controller, Shahdadpur 1983 CLC 2994 ref.

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

‑‑‑‑S.13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Ejectment proceedings‑‑‑Rent Controller allowed the adjournment against a cost of Rs.1, 000 as the witnesses of the landlord (respondent) were present and the tenant (petitioner) tried to seek adjournment on a false plea and the counsel of the tenant refused to cross‑examine the witnesses‑‑‑Validity‑‑‑Parties were supposed to be fair with the Court or Tribunal before whom they were appearing‑‑Where the application for adjournment was false and vexatious, High Court refused to interfere with the order passed by the Rent Controller.

‑‑‑‑Art. 199‑‑‑Order in the nature of writ of certiorari or mandamus is a discretionary order, object of such order is to foster justice and right a wrong‑‑‑Before a person can be permitted to invoke such discretionary power of a Court, it must be shown that the order sought to be set aside has occasioned some injustice to the parties‑‑‑Where any such order does not work any injustice to any party, rather same cures a manifest illegality then the extraordinary jurisdiction of High Court ought not to be allowed to be invoked.

Ronaq Ali and others v. Nawab Saeed Ahmad and others PLD 1973 SC 236 ref.

Sardar Abdul Majeed Dogar for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 183 #

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YLR 2000 LAHORE HIGH COURT LAHORE 190 #

2000 Y L R 190

[Lahore]

Before Iftikhar Ahmad Cheema and

Syed Zahid Hussain, JJ

KHUSHI MUHAMMAD ‑‑‑Appellant

versus

MUHAMMAD RAFIQUE and others‑‑‑Respondents

Criminal Appeal No.124 of 1999/BWP, heard on 1st December, 1999.

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

‑‑‑‑S.417‑‑‑Appeal against acquittal‑‑Principles‑‑‑Appreciation of evidence made by Trial Court must always be given due weight and importance‑‑‑Presumption of innocence of accused is made stronger by his acquittal which is not to be lightly rebutted‑‑‑Finding of fact arrived at by Trial Court is not to be lightly disturbed which had the advantage of seeing the witnesses‑‑‑Where two reasonable conclusions could be drawn from the evidence on record, High Court as a matter of judicial caution should refrain from interfering with the order of acquittal recorded by the Trial Court‑‑‑Trial Court's judgment must be shown by the Appellate Court to be unreasonable or manifestly wrong before interfering with the same‑‑‑Right of accused to benefit of any doubt must not be ignored.

Sheo Swarp v. Emperor AIR 1934 PC 227; PLD 1979 SC 956; 1968 SCMR 1168; PLD 1951 FC 107 and 1972 SCMR 672 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S. 417(2‑A)‑‑‑Appeal against acquittal‑‑‑Eye‑witnesses were closely related to the deceased‑‑‑Contradictions and discrepancies in the ocular testimony being very important and vital and going to the root of the matter had demolished the whole prosecution case‑‑‑Accused had been found innocent during the investigation and their presence on the spot at the relevant time was categorically denied by their co‑accused who had taken upon himself the entire blame of the murder‑‑‑Trial Court's judgment acquitting the accused having been based on reasonable and plausible grounds, required no interference by High Court‑‑‑Appeal was dismissed accordingly.

Sheo Swarp v. Emperor AIR 1934 PC 227; PLD 1979 SC 956; 1968 SCMR 1168; PLD 1951 FC 107 and 1972 SCMR 672 ref.

Abdul Sattar Zafar for Appellant.

Date of hearing: 1st December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 195 #

2000 Y L R 195

[Lahore]

Before Zafar Pasha Chaudhry, J

ABDUL AZIZ‑‑‑Petitioner

versus

NASIR IQBAL and others‑‑‑Respondents

P.S.L.A. No.4 of 1998, heard on 15th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.249‑A‑‑‑Object and purpose of S.249‑A, Cr. P. C. ‑‑‑Power of Magistrate to acquit accused at any stage‑‑‑Section 249‑A, Cr. P. C. conferring power on Magistrate to acquit accused at any stage had been included and incorporated in Criminal Procedure Code, 1898 in order to save accused persons from agony and ordeal of a mock trial‑‑‑If Court, after taking into account relevant material, bona fidely considered that even if possible evidence was brought on the record by prosecution, same would not be sufficient to warrant conviction, exercise of jurisdiction under S.249‑A, Cr. P. C. could be valid‑‑‑Very purpose and idea behind incorporation of S.249‑A, Cr. P. C. was that power could be exercised by Trial Court at any time and if it was found that continuation with trial would amount to wastage of time or it would be just a futile exercise, then order under S.249‑A, Cr.P.C. acquitting accused could justifiably be passed and power should be exercised in aid of justice‑‑‑Such power, however, had to be exercised with care and caution and in. case there was possibility of receipt of evidence sufficient to warrant conviction, then the power was not to be exercised merely on artificial presumption‑‑‑Insertion of 5.249‑A, Cr.P.C. had become necessary because warrant case procedure had been dispensed with and now all criminal cases were to be tried under summons.‑ case procedure.

Abdul Sattar v. State 1992 PCr.LJ 2054; Ali Gohar Khan v. State 1989 PCr.LJ 1965 and Syed Maqbool Hussain v. Syed Fayyaz Muhammad 1995 PCr.LJ 1257 ref.

Muhammad Alamgir Khan Amjad for Petitioner.

Muhammad Ramzan Khalid for Respondents.

Date of hearing: 15th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 199 #

2000 Y L R 199

[Lahore]

Before Khawaja Muhammad Sharif, J

AKHTAR HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 112 of 1996/BWP, heard on 11th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Doctor who conducted post‑mortem examination of dead body, found twenty‑four injuries on the body of deceased and neck of deceased was also found cut‑‑‑Single person could not cause so many injuries on a person (deceased) who was also a young man‑‑Evidence of last seen had already been disbelieved by Trial Court‑‑‑Evidence of extra judicial confession of accused was not believed by Trial Court‑‑‑Merely on recovery of knife allegedly recovered on pointation of accused and motive furnished by complainant, one could not be convicted and sentenced in case under 5.302, P.P.C.‑‑Court had to see quality of evidence and not quantity thereof and where evidence could not be brought on record through unimpeachable sources, conviction and sentence could not be awarded‑‑‑Doubts having been created in prosecution case, conviction and sentence awarded to accused by Trial Court were set aside, and they were ordered to be released forthwith.

A.K. Tayyab for Appellant.

Saleem Nawaz Abbasi, A.A.‑G. for the State.

Uman Mahsin for the Complainant.

Date of hearing: 11th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 202 #

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YLR 2000 LAHORE HIGH COURT LAHORE 206 #

2000 Y L R 206

[Lahore]

Before Mian Allah Nawaz and Ch. Ijaz Ahmad, JJ

Malik MUHAMMAD SHAM‑‑‑Appellant

versus

SECRETARY EDUCATION, PUNJAB and others‑‑‑Respondents

Intra‑Court Appeal No. 138 of 1998, decided on 3rd August, 1999.

(a) Words and phrases‑‑‑

‑‑‑ "Education"‑‑‑Connotation‑‑‑ "Education connoted not only instructions received at college, but whole course of training, moral, religious, vocational and intellectual being imparted in an educational institution.

(b) Punjab Board of Intermediate and Secondary Education Act (X111 of 1976)‑‑‑

‑‑‑‑Ss.2(ix) & 10‑‑‑Powers and functions of the Board‑‑‑ "Educationalist "‑‑‑Meaning and qualification‑‑‑Educationalist must be a person who must have acquired a remarkable expertise in teaching and imparting education to Intermediate and Secondary sector of education‑‑‑Board occupied a pivotal position in area of imparting of Intermediate and Secondary Education and Fine Arts and other disciplines‑‑‑Expression "educationalist" as implied in S.2(ix), Punjab Board of Intermediate and Secondary Education Act, 1976 had nexus with the functions and powers of Board‑‑‑Expression "educationalist" was to be interpreted and applied by reference to the purposes, powers and functions and formation of the Board.

PLD 1968 SC 313 and 1983 CLC 2734 ref.

‑‑‑‑Art.199‑‑‑Writ of quo warranto, issuance of‑‑‑If a person occupied a public office and was not qualified to occupy same High Court had power to issue a writ of quo warranto.

PLD 1963 SC 203 ref.

Amjad Hameed Ghauri for Appellant.

Raja Saeed Akram Khan, A.A.‑G. and Muhammad Nawaz Bhatti, A.A.‑G. for Respondent No. 1.

S.A. Rehman for Respondent No. 2.

Mian Abdul Qayyum for Respondent No. 3.

Date of hearing: 3rd August, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 211 #

2000 Y L R 211

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASIF and others‑ Petitioners

versus

THE STATE ‑Respondent

Criminal Miscellaneous No.6409‑B of 1999. decided on 10th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497 & 498‑‑‑Telegraphs Act (XLV of 1885), S.25‑D‑‑‑Penal Code (XLV of 1860), S.387/506‑‑‑Bail, grant of‑‑‑Accused in two earlier investigations were found innocent, though in the third investigation conducted by D. S. P., they had been found guilty ‑‑‑Challan of case had already been submitted in the Court‑‑‑Accused were behind the bars since long whereas offence against them did not fall within prohibitory clause of S.497(1), Cr. P. C. ‑‑‑Even if offence under S. 387/506, P. P. C. were also made out against accused, still their case did not fall within prohibitory clause of S.497(I), Cr.P.C.‑‑‑Grant of bail being a rule and refusal being exception, bail was granted to accused.

PLD 1995 SC 34 ref.

Ch. Muhammad Younas for Petitioners.

Mumtaz Ahmad Niazi for the State.

Jalees Ahmad Meer for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 212 #

2000 Y L R 212

[Lahore]

Before Ghulam Mahmood Qureshi, J

Messrs ORIENT OCCIDENT PRIVATE

LTD. through Wazir Ahmad, Director

of the Company and Chairman of Al‑Din

Rice Mills Private Limited, Lahore‑‑‑Petitioner

versus

Messrs UPAZA COMMERCIAL

ENTERPRISES, GRAIN MARKET, HAFIZABAD through Lt.‑Col. (Rtd.) Umar Khalid as Sole Proprietor/ Plaintiff Decree‑Holder and 4 others‑‑‑Respondents

Civil Revision No. 1621 of 1998, decided on 13th October, 1999.

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

‑‑‑‑S.12(2)‑‑‑Setting aside of ex parte decree‑‑‑Application on the basis of fraud and misrepresentation was filed to get such decree set aside‑‑‑Validity‑‑‑Where the petitioner had all along been taking part in the proceedings conducted by the Trial Court, no fraud and misrepresentation could be alleged to have been committed by the respondents.

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

‑‑‑‑S. 12(2) & O. IX, R.13‑‑‑Setting aside of ex parte decree‑‑‑Application under S.12(2), C. P. C. was filed instead of application under O. IX, R.13, C. P. C.‑‑‑Effect‑‑‑Such an application filed by defendant did not disclose any fraud allegedly committed by the plaintiff‑‑‑Trial Court was perfectly justified in dismissing the application and finding recorded by Trial Court about maintainability of application filed by the defendant under S.12 (2), C. P. C. was eminently just and correct and the same suffered from no illegality or infirmity.

Javed Akhtar v. III Additional District Judge (South Karachi) and others 1996 CLC 1300 and Riaz Qasim v. A.M.A. (Pvt.) Limited and others 1999 CLC 445 rel.

PLD 1963 (W.P.) Kar. 551 and 1993 SCMR 662 distinguished.

Rana Abdur Rahim Khan for Petitioner.

Ch. Saeed Sabir for Respondents

Date of hearing: 24th September 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 215 #

2000 Y L R 215

[Lahore]

Before Raja Muhammad Sabir, J

ABDUL RAZZAQ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.938‑B of 1998, decided on 30th June, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail, grant of‑‑‑Eight accused had been named in the F.I.R. with separate roles‑‑‑Accused was assigned only the role of Lalkara which was a common feature of the society‑‑‑Although accused, according to the complainant, was armed with a fire‑arm at the time of occurrence yet he had not used the same‑‑‑Involvement of accused in the case required further probe in circumstances and he was admitted to bail accordingly.

Altaf Ibrahim Qureshi for Petitioner.

Mujeeb‑ur‑Rehman for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 216 #

2000 Y L R 216(1)

[Lahore]

Before Iftikhar Hussain Chaudhary, J

SAIFULLAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4300‑B of 1999, decided on 2nd September, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497 ‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Accused was not named in the F.I.R.‑‑‑Complainant had subsequently involved the accused in the case on the basis of his own inquiry as being a third person accompanying the co‑accused at the time of incident, which was not the way of picking up the unknown accused in a criminal case‑‑Accused had been implicated in the case for extraneous reasons‑‑‑Bail was allowed to accused in circumstances.

Shahid Hussain Qadri for Petitioner.

Syed Mukhtar Sherazi for the State,

YLR 2000 LAHORE HIGH COURT LAHORE 217 #

2000 Y L R 217

[Lahore]

Before Raja Muhammad Sabir, J

SHAUKAT ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.751‑B of 1998, decided on 16th June, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/109/34‑‑‑Bail‑‑‑Statements of the prosecution witnesses implicating the accused after one and a half years of the occurrence in the murder case suffered from serious doubts and could not be given due weight‑‑Accused who was in jail for about eight months could not be kept there for an indefinite period without trial as the same had not so far commenced‑‑‑Prosecution evidence against accused did not justify keeping him in jail till conclusion of the trial‑‑‑Accused was admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Sh. Naseem Rashid for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 219 #

2000 Y L R 219

[Lahore]

Before Maulvi Anwarul Haq, J

CONSORTIUM OF PROGRESSIVE

CONSULTANTS IZHAR LTD. and 2 others‑‑‑Petitioners

versus

THE PROVINCE OF PUNJAB

through Secretary, Government of the Punjab, Housing and Physical

Planning Department, Lahore and another‑‑‑Respondents

Civil Revision No. 1490 of 1984, heard on 26th November, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑S.8(1)(b)‑‑Appointment of new arbitrator‑‑Conditions‑‑Powers of Court‑Scope‑‑‑Court may appoint an arbitrator who shall have like powers to act in the reference and to make an award as if such new arbitrator has been appointed by consent of parties‑‑‑Such a new arbitrator may be appointed when the appointed arbitrator refuses to act and arbitration agreement shows that it is intended that the vacancy should be filled and parties do not fill the vacancy.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 8(1)(b)‑‑‑Appointment of new arbitrator‑‑‑Existing arbitrator refused to act as an arbitrator‑‑‑Appointment of the new arbitrator‑‑‑Trial Court dismissed application filed under S.8(1)(b), Arbitration Act, 1940, for appointment of new arbitrator‑‑Validity‑‑‑Dominant intention evident from the agreement between the parties was that the dispute between the parties would be settled by resorting to arbitration‑‑‑Nothing was available in the agreement or the reference to show intention of the parties was not to supply the vacancy in case the arbitrator refused to act‑‑‑Order of Trial Court dismissing application for appointment of new arbitrator was set aside by High Court.

Yar Muhammad and another v. Ghulam Sarwar and others PLD 1952 Lah. 563; University of the Punjab v. Perfect Electric Concern PLD 1980 Lah. 305; Secretary of State v. Balwant Singh AIR 1933 Lah.18; Rajani Kanta Karati and another v. Panchanan Karati AIR 1937 Cal. 388; Vishwas Balwant Davare v. Bhalchandra Ganesh Thakar AIR 1931 Bom. 529; Design Group of Pakistan v. Clifton Cantonment Board 1990 MLD 2010; Messrs Middle East Contractors, Mirpur v. Project Director, Resettlement Organization, Mangla Dam Project (WAPDA) and 2 others PLD 1980 Azad J&K 12; District Cooperative Federation Ltd. v. Khub Chand AIR 1961 Hima. Pra. 35 and Chief Engineer, Buildings and Roads, Jaipur and another v. Harbans Singh AIR 1955 Raj. 30 ref.

‑‑‑‑S.115‑‑‑Limitation Act (IX of 1908), S.14‑‑‑Revision‑‑‑Proceedings before a wrong forum‑‑‑Laches‑‑‑Applicability‑‑‑Original revision petition was filed before the Appellate Court on 25‑10‑1981 against the order of Trial Court dated 4‑10‑1981‑‑‑Such revision petition remained pending till 13‑8‑1984, when the same was returned by orders of High Court and was refilled in High Court on 20‑8‑1984‑‑‑Excluding the period before wrong forum out of available period of limitation of 90 days, the revision petition was within time‑‑‑Revision petition pertained to period when there was no statutory period of limitation prescribed for filing of such petition, therefore, case did not suffer from !aches and was within time in circumstances.

A.K. Dogar for Petitioners.

Muhammad Akram Khawaja for Respondents.

Date of hearing: 26th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 225 #

2000 Y L R 225

[Lahore]

Before Asif Saeed Khan Khosa, J

NASIR ALI ‑‑‑Petitioner

versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 8 others‑‑‑Respondents

Writ Petition No. 1798 of .2000, decided on 4th February, 2000

Penal Code (XLY of 1860)‑‑‑

‑‑‑‑S.420/468/506‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Interference with police investigation‑‑Complainant of the F.I.R. had sought a declaration through a Constitutional petition that the findings and conclusions of the investigation conducted by the Superintendent of Police were against the facts and illegal, with a direction to the respondents to get a fair and impartial investigation of the case conducted through an independent and honest police officer‑‑‑Constitutional petition was diabolically misconceived‑‑‑High Court, under its Constitutional jurisdiction could not sit in judgment over the findings or conclusions of the Investigating Officers of criminal cases who had performed their statutory duty and their operational and investigational independence was worthy of as much sanctity and respect as the independence of the Judiciary in its ad judicatory domain‑‑‑High Court, therefore, was generally slow in interfering with police investigation‑‑‑No exceptional circumstances had been pointed out in the case so as to warrant a departure from the said beaten track‑‑‑Constitutional petition was dismissed in limine in circumstances.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 ref.

Syed Tayyab Mahmood Jafri for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 227 #

2000 Y L R 227

[Lahore]

Before Maulvi Anwarul Haq, J

TARIQ MEHMOOD---Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition Nos. 18156 and Civil Miscellaneous Nos. 1, 2 of 1999, decided on 30th September, 1999.

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

----S.13---Civil Procedure Code (V of 1908), S.12(2) & O.M, R.100 --- Ejectment of tenant---Recovery of possession from a person not party to ejectment proceedings- Remedy--Procedure--Application for restoration of possession--Maintainability- Application under S.12 (2), C. P. C. was not maintainable and as such it was a case covered under the provision of O.XXI, 8.100, C. P. C. for restoration of possession.

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

----S.13---Civil Procedure Code (V of 1908), O.XXI, S.103---Specific Relief Act (1 of 1877), S.9--Constitution of Pakistan (1973), Art. 199--Constitutional petition ---Ejectment of tenant---Recovery of possession from a person not party to ejectment proceedings-- Restoration of possession Petitioner/landlord recovered the possession of rented premises from the respondent who was not a party to ejectment proceedings-- Application for restoration of such possession was allowed by the Executing Court and appeal filed by the petitioner/landlord was dismissed by Lower Appellate Court-- Contention of petitioner/landlord was that remedy for restoration of such possession was filing of a suit under S.9, Specific Relief Act, 1877---Validity---Held, in view of bar contained under O.XXI, 8.103, C.P.C. suit under S.9 of Specific Relief Act, 1877, was not at all an efficacious remedy.

Haji Ghulam Hassan and 13 others v. Muhammad Siddique and 3 others 1992 MLD 2318; Bahadur Kamal v. Muhammad Ashraf 1993 CLC 1236 and Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696 ref.

Agha Abul Hassan Arif for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 229 #

2000 Y L R 229

[Lahore]

Before Raja Muhammad Khurshid, J

NOOR KHAN and 2 others‑‑‑Petitioners

versus

THE STATE-‑‑Respondent

Criminal Miscellaneous No.2824‑B of 1999. decided on 14th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

S.497(1), third proviso‑Penal Code (XLV of 1860), S.324/452/337‑A(vi)/337‑A(ii)l34‑‑Bail on ground of statutory delay‑‑‑Accused although were behind the bars for the last more than one year, yet their trial had not so far started‑‑‑Accused were not responsible for the delay in the trial, rather the same could be gravely attributed to the prosecution which had failed to produce the accused in Court from Jail‑‑‑Statutory right having accrued to the accused, they were admitted to bail.

Imran Aziz Qureshi for Petitioners.

Miss Nosheen Taskeen for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 239 #

2000 Y L R 239

[Lahore]

Before Raja Muhammad Khurshid, J

MEHWISH MAQBOOL‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.145‑Q of 1999, decided on 21st July, 1999.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 379/448/147/148‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Question of possession of the house being involved in the civil case as well as in criminal case and the proceedings having altogether different connotation, civil case and the criminal case could proceed independently of each other‑‑‑Magistrate had taken cognizance of the case on police report made under S.173, Cr.P.C. based on investigation by the Investigating Agency showing a prima facie case of criminal trespass having been made out against the accused‑‑‑As such, there being no abuse of process of the Court, no interference by High Court under S.561‑A, Cr. P. C. was called for‑‑‑Petition being misconceived was dismissed in limine accordingly.

Haji Abdul Khaliq and 8 others v. The State and another PLJ 1979 Cr.C. (Lahore) 354; Muhammad Amjad Ghori and another v. The State 1977 PCr.LJ 490; Abdul Haleem v. The State and others 1982 SCMR 988 and Gulzar Ahmed Shaikh v. M.N. Salar and another 1999 PCr.LJ 1154 ref.

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

‑‑‑‑S.561‑A‑‑‑Inherent powers of High Court‑‑‑Powers of High Court under S.561A, Cr.P.C. being extraordinary in nature are to be sparingly exercised with utmost caution and not as a matter of routine‑‑‑Such powers are to be invoked when gross injustice on the face of it is done to a party and no other efficacious or alternative remedy is provided to the aggrieved party under the law.

Jahangir A. Jhoja for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 241 #

2000 Y L R 241

[Lahore]

Before Zafar Pasha Chaudhry, J

GHULAM FAREED---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1170-B of 1998, decided on 3rd August, 1998.

Criminal Procedure Code (V of 1898)---

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4 --- Bail, grant of---Accused who was allegedly found in possession of two litres of illicit liquor was in judicial confinement for the last about five months and the challan had not yet been submitted in the Court---Offence with which the accused was charged was not hit by the prohibitory clause of S.497(1), Cr.P.C.--Accused was not required in any other criminal case---Bail was allowed to accused in circumstances.

Altaf Ibrahim for Petitioner.

Habib Ahmed Ansari for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 242 #

2000 Y L R 242

[Lahore]

Before Ghulam Mahmood Qureshi, J

NAWAB ALI and 2 others‑‑‑Petitioners

versus

MUHAMMAD SHARIF and 5 others‑‑‑Respondents

Civil Revision No.26‑D of 1989, heard on 3rd December, 1999.

(a) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Estoppel‑‑‑Suit for possession through inheritance‑‑‑Predecessor‑in‑interest of the parties was grandfather of the plaintiffs and father of the defendants‑‑‑During the lifetime of the predecessor‑in‑interest of the parties 1/4th share of his property was transferred in favour of the plaintiffs by way of gift and a mutation to that effect was sanctioned‑‑‑After the death of the predecessor‑in‑interest of the parties mutation of inheritance was sanctioned in favour of the defendants excluding the plaintiffs‑‑‑Trial Court dismissed the suit on the basis of estoppel and the appeal before the Lower Appellate Court also met the same fate‑‑Validity‑‑‑Where 1/4th share of the property was transferred to the plaintiffs and the mutation was also sanctioned, such gift was valid and complete in all respects, as the same was not challenged by the defendant and the same attained finality‑‑‑Plaintiffs could not be deprived of their legal shares, which they were entitled to inherit from the estate left by their predecessor‑in‑interest‑‑No estoppel against statute‑‑‑Findings of both the Courts below on the issue of estoppel were not sustainable and the judgments and decrees passed by both the Courts below were set aside.

Aftab Alam Khan v. The Settlement Commissioner and 3 others PLD 1972 Quetta 97; Ch. Rehmat Ali and others v. Custodian, Evacuee Property, Lahore and others PLD 1966 (W.P.) Kar. 31 and Ocean Industries Limited and another v. Industrial Development Bank PLD 1966 SC 738 ref.

(b) Muhammadan Law‑‑‑

‑‑‑‑Succession‑‑‑Succession always opens on the death of the predecessor/right‑holder and the legal heirs claiming inheritance, could be entitled to inherit from the property left by the deceased at the time of his death.

‑‑‑‑ Succession‑‑‑ Relinquishment‑‑‑ Relinquishment by any heir who has no interest in the lifetime of his ancestor is invalid and void‑‑‑Any deed executed by an heir renouncing his share before the opening of succession cannot be operative so as to divert rights in inheritance when succession opens.

Farman Ali Khan and others v. Yousaf Ali Khan 1980 CLC 1544 ref.

(d) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Death‑bed gift and acknowledgment‑‑‑Alienation of property‑‑‑Only restraint imposed by Muslim Laws upon a Muslim relates to will and gifts on death‑bed.

(e) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Validity‑‑‑Depriving other heirs of their shares‑‑‑Impious for a Muslim to deprive some or all of his children from property by alienating same in his lifetime and it will be so in all good sense if done without just cause‑‑‑Islamic law does not forbid such gift when made by a person not suffering from "Marz‑ul‑Maut"‑‑‑Gift may not become invalid only because it may have the effect of depriving the others of their share.

AI‑Qur'an: Al‑Nisa, Surah IV ref.

(f) Muhammadan Law.

‑‑‑‑Succession‑‑‑No estoppel against any statute‑‑‑Law of inheritance does not recognize any such estoppel as the succession opens at the death of predecessor.

(g) Muhammadan Law‑‑‑

‑‑‑‑Inheritance‑‑‑Limitation‑‑‑No limitation in inheritance cases and person claiming inheritance cannot be non‑suited merely on the point of limitation.

Ch. Muhammad Anwar Bhinder for Petitioners.

Naseer Ahmad Sindhu and Abdul Aziz Qureshi for the State.

Date of hearing: 3rd December, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 253 #

2000 Y L R 253

[Lahore]

Before Maulvi Anwarul Haq, J

GHEE CORPORATION OF PAKISTAN

LTD. and others‑‑‑Appellants

versus

MULTAN CHEMICALS LTD. and others‑‑‑Respondents

First Appeal from Order No. 22 of 1993, heard on 15th November, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 21 & 23‑‑‑Reference to arbitrator‑‑Decision on question of law by arbitrator‑‑Clear agreement existed between the parties that arbitrators would have full authority to decide all the questions of law and facts raised before them by the par‑ties ‑‑‑Effect‑‑Objection raised by one of the parties that question of law could not have been decided by the arbitrators, was frivolous which was rejected accordingly.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 30 & 32‑‑‑Re‑deciding of issue decided by the arbitrators‑‑‑Validity‑‑‑Where it was not pointed out that the award of arbitrators suffered from an error apparent on the face of record or that the arbitrators were guilty of misconduct while deciding the question, such issue could not have been opened and re-decided by the Court.

‑‑‑‑S. 28‑‑‑Extending time for filing of award‑‑‑Non‑filing of award in time specified by the Trial Court‑‑‑Time was extended at the express request of the Chairman of the panel of arbitrators‑‑‑Validity‑‑‑Where request for such extension was found to be genuine by the Court, time was rightly extended.

(d) Arbitration Act (X of 1940)‑‑

‑‑‑‑S.30‑‑‑Setting aside of award ‑‑‑Scope‑‑ Award could be set aside only within four corners of S. 30, Arbitration Act, 1940.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.30‑‑‑Award‑‑‑Validity‑‑‑Examination of validity of award by Court ‑‑‑Procedure‑‑Trial Court while examining the award does not act as a Court of appeal and cannot undertake re‑appraisal of evidence recorded by the arbitrators in an attempt to discover the error or infirmity in the award.

Messrs Joint Venture KG/Rist through D.P. Giesler G.M., Bongard Strasse 3,4000, Dusseldorf‑30 Federal Republic of Germany, C/o. 15‑Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan through Secretary Food, Agricultural and Coop. and another PLD 1996 SC 108 fol.

Ch. Muhammad Hussain Jehania for Appellants.

Ch. Imdad Ali Khan for Respondent No. 1

Nemo for Respondent No. 2

Date of hearing: 15th November, 1999

YLR 2000 LAHORE HIGH COURT LAHORE 258 #

2000 Y L R 258

[Lahore]

Before Muhammad Naseem Chaudhri, J

GHULAM MUSTAFA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 4956‑B of 1999, heard on 1st October, 1999.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Accused after having been joined in investigation earlier had been released‑‑‑Extra‑judicial confession allegedly made by accused afterwards was contradictory to the initial recitals of the F.I.R. and the same was to be viewed with caution and doubt even at bail stage‑‑Solitary extra judicial confession even if taken into account in to was not enough to refuse bail to accused which could be used only as a corroborative piece of evidence to other circumstantial evidence against him‑‑Involvement of accused in the case, thus, was a matter of further inquiry and he was admitted to bail accordingly.

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

‑‑‑‑S.497‑‑‑Bail‑‑‑Bail application has to be disposed of within the framework of 5.497, Cr.P.C. keeping in view the judicial propriety and requirements of justice‑‑‑Concession of bail cannot be denied in routine and accused cannot be detained in judicial lock‑up as a punishment.

Tanvir Ahmad Sheikh‑I for Petitioner.

Miss Nosheen Taskeen for the State.

Date of hearing: 1st October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 263 #

2000 Y L R 263

[Lahore]

Before Khawaja Muhammad Sharif, J

SHARAM MAI and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 62 of 1989, heard on 10th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Delay of three months in lodging F.I.R. without any plausible explanation‑‑Occurrence was unwitnessed as there was no eye‑witness on record‑‑‑Alleged confession of accused had been proved to have been extracted under pressure and after maltreating the accused by police‑‑‑Confession extracted without complying with legal formalities could not be made basis for conviction of accused ‑‑‑Chhurri, allegedly used in occurrence, had been kept by accused for three months, which was most unnatural as there was no need of keeping the same for such a long period‑‑‑Nothing incriminatory was recovered at the instance of accused‑‑Prosecution, in circumstances, had failed to prove case against accused‑‑‑Conviction and sentence awarded to accused were set aside.

A.R. Tayyab for Appellants.

M. Saleem Nawaz Abbasi, A.A.‑G. with Muhammad Akhtar Qureshi for the State.

Date o! hearing 10th February 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 268 #

2000 Y L R 268

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

BASHIR AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 620‑B of 1999, decided on 15th April, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑Bail ‑‑‑No allegation of Zina had been made against the accused‑‑‑During investigation accused did not lead to the recovery of the alleged abductee‑‑‑Challan according to the Investigating Officer could not possibly be submitted in the Court before the recovery of the abductee‑‑‑No useful purpose could be served by keeping the accused in jail for indefinite period‑‑‑Bail was allowed to accused in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Shaukat Hussain Kharal for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 275 #

2000 Y L R 275

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. SAKINA BIBI

versus

SHERBAZ and others‑‑‑Respondent

Writ Petition No. 1720 of 1997, heard on 30th September, 1999.

(a) Evacuee Trust Properties (Management and Disposal) Act (X111 of 1975)‑‑

‑‑‑‑S. 17‑‑‑ Revision‑‑‑ Jurisdiction of Revisional Court‑‑‑Summoning of record‑‑Scope‑‑‑Such a Court for the purpose of satisfying itself, as to correctness, legality or its propriety has power to summon record and scan the same.

(b) Evacuee Trust Properties (Management and Disposal) Act (X111 of 1975)‑‑‑

‑‑‑‑S.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Revisional jurisdiction, exercise of‑‑‑Auction of agriculture land owned by the Evacuee Trust Properties was held wherein the same was confirmed in the names of the petitioners‑‑Respondents assailed the auction proceedings before the Administrator, Evacuee Trust Properties in an appeal which was dismissed‑‑‑Federal Government reversed the findings of the Administrator in revision and ordered for the re‑auction of the property‑‑Validity‑‑‑Order of the Administrator could only be interfered with if the same suffered from any illegality, impropriety and incorrectness‑‑‑Where no such defect ,was highlighted by the Government while setting aside the order of the Administrator, such jurisdiction vested in Federal Government was not exercised in accordance with law‑‑Order passed in exercise of revisional jurisdiction by the Federal Government was illegal, void and inoperative against the rights of the petitioners.

Ch. Noor Ahmad Fazil for Petitioner.

Hafiz Saeed Ahmad Sheikh for Respondents.

Ch. Afrasiab Khan, Standing Counsel for the Federation.

Date of hearing: 30th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 280 #

2000 Y L R 280

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi

and Mian Saqib Nisar, JJ

Chaudhry MUHAMMAD SAEED

MAJHEANA, ADVOCATE‑‑‑Appellant

versus

MUHAMMAD ANWAR‑UL‑HAQ and others‑‑‑Respondents

Regular First Appeal No.7 of 1994, decided on 23rd December, 1999.

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

‑‑‑‑Ss.9 & 54‑‑‑Oral sale‑‑‑Scope‑‑‑Practice of transferring the property through oral sale is not unknown in the society and it is common knowledge that in the matter of agricultural property, people do transact through oral sale‑‑‑Word "sale" has been defined as transfer of ownership in exchange of price paid or promised to be paid or partly paid and partly promised under the provisions of S.54 of Transfer of Property Act, 1882.

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

‑‑‑‑S.54‑‑‑Easements Act (V of 1882), S.52‑‑Licence or sale‑‑‑Where transfer of possession took place with the understanding that market value of land would be paid within 12 years, such transfer was an intention of sale of the property and not creation of a licence.

‑‑‑‑S.53‑A‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Suit for recovery of possession‑‑Principle of estoppel or acquiescence‑‑Applicability‑‑‑Possession of the suit land was delivered by the vendor in consideration of payment of sale price, and the same was agreed to be paid within 12 years ‑‑‑Vendee raised construction over the suit land in year 1972 and no proceedings were initiated for more than 12 years to either stop construction, removal of construction or to recover possession‑‑‑Where the construction was raised with authority and consent, even if there was no registered sale‑deed, still the vendor could be denied the relief of possession on the ground of estoppel acquiescence.

Niaz Ali and 16 others v. Muhammad Din and 13 others PLD 1‑993 Lah.33; Arif v. Jadu Nath Majumdar 58 Cal. 1234; Pir Bukhsh v. Muhammad Tahir 58 Bom. 650; Habib‑ur‑Rehman and others v. Mst. Wahdania and others PLD 1984 SC 424 and Mst. Akhtar Begum v. Mian Aziz and others 1975 SCMR 1617 ref.

(d) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.8‑‑‑Transfer of Property Act (IV of 1882), Ss. 53‑A & 54‑‑‑Easements Act (V of 1882), S.52‑‑‑Suit for possession of immovable property‑‑‑Possession of suit land was delivered by vendor in consideration of payment of sale price to be paid within 12 years‑‑‑Vendor filed suit for recovery of possession after the failure of vendee to make payment within the period of 12 years‑‑‑Trial Court holding such transaction as a licence decreed the suit‑‑‑Validity‑‑‑Real intent of the parties was to make sale in consideration of payment of market price of the suit land‑‑Such transaction was kept intact even after the expiry of the period of 12 years by demanding payment of price‑‑‑Findings of the Trial Court were based on misreading and non‑reading of evidence and the same were suffering from legal infirmity.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R. 7‑‑‑Relief‑‑‑Jurisdiction of Court‑‑‑Court is competent to mould the relief and also to grant the relief to a party to which the party is found entitled, keeping in view the substance of plaint and also evidence on record, no matter such relief is not specifically asked for.

Samar Gul v. Central Government and others PLD 1986 SC 35 and Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref.

(f) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.51‑‑‑Improvements on property in good faith‑‑‑Compensation for such improvements‑Scope‑‑‑Where transferee of an immovable property had made such improvements and that transferee was evicted from the property by a person having better title, such evictee was entitled for compensation‑‑‑Two courses were open to the Court for such compensation, one for the assessment of the value of the improvements and payment of compensation thereof to the evictee, and the other, payment of the value of interest in law to the person having better title, to allow continuation of possession.

(g) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.51‑‑‑Mesne Profits and Improvements Act (XI of 1855), S.2‑‑‑Improvement on property in good faith‑‑‑Compensation for such improvements‑‑‑Where transferee of a property is evicted from the property, such person can press for the payment of compensation for the improvements/construction made over that property.

Muhammad Siddique v. Mst. Aziz Begum and others 1991 SCMR 2407 ref.

Ch. Khurshid Ahmad for Appellant

Ch. Imdad Ali for Respondents.

Date of hearing: 23rd November, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 295 #

2000 Y L R 295

[Lahore]

Before Maulvi Anwarul Haq, J

ISMAIL ‑‑‑Applicant

versus

MEMBER. BOARD OF REVENUE, PUNJAB, LAHORE and 13 others‑‑‑Respondents

Writ Petition No.7155 of 1999, decided on 21st October, 1999.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.161‑‑‑West Pakistan Land Revenue Rules, 1968, R.6‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Case, remanding of‑‑‑Power of Appellate Court/Authority‑‑‑Case of petitioner was remanded by Commissioner‑‑‑Contention of petitioner was that such Authority had no powers of remanding the case in view of R.6‑A of West Pakistan Land Revenue Rules, .1968‑‑‑Validity‑‑‑Provision of R.6‑A of West Pakistan Land Revenue Rules, 1968, was derogatory to the powers of an Appellate Court/Authority authorised under S.161 of West Pakistan Land Revenue Act, 1967, to hear the appeals and as such the same was ultra vires of the provision of the Act‑‑‑Order of Commissioner did not suffer from any jurisdictional or legal defect‑‑‑Constitutional petition was dismissed with cost in circumstances.

PLD 1990 Punjab Statutes 28 and Ghulam Mustafa Khan v. Member, Board of Revenue and others 1996 MLD 954 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Date of enforcement of statute‑‑‑Act, Rule or other instrument takes effect from the date of its publication in the official Gazette.

Ch. Muhammad Ashraf for Petitioner.

Khadim Nadim Malik, Addl. A.‑G. for Respondents Nos. 1 to 3.

Syed Muhammad Ali Gillani for Respondents Nos.4 to 11 and 13.

Muhammad Siddique Kamyana for Respondent No. 14.

Date of hearing: 21st October, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 300 #

2000 Y L R 300

[Lahore]

Before Muhammad Naseem Chaudhri, J

KANIZ BIBI‑‑‑Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION CITY, CHINIOT, DISTRICT JHANG and another‑‑‑Respondents

Writ Petition No.20361 of 1999, heard on 14th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.420, 468 & 471‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of F.LR.‑‑‑Suit for specific performance of agreement of sale filed against respondent was decreed ex parte‑‑‑Respondent instead of filing application for setting aside ex parte judgment and decree before Civil Court, got registered criminal case against petitioner under Ss. 420, 468 & 471, P. P. C.‑‑‑Validity‑Held, was a case of transgression of authority on part of S.H.0., Police Station concerned who, in presence of judgment and decree passed by Civil Court of competent jurisdiction, had questioned same through registration of criminal case‑‑‑Law had to take its course‑‑‑High Court accepted Constitutional petition and quashed the FI.R. registered against petitioner/decree-holder.

Sh. Umardraz for Petitioner.

Ms. Roshan Ara, Asstt. A.‑G. and Abid Saqi for Respondents.

Date of hearing: 14th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 324 #

2000 Y L R 324

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD ASGHAR and 3 others‑‑‑Petitioners

versus

THE STATE Respondent

Criminal Miscellaneous No. 5528‑B of 1999, decided on 6th October, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑High Court (Lahore.) Rules and Orders, Vol.1ll. Chap. 10, R.14 ‑‑‑ Office of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Pre‑arrest bail, grant of‑‑‑Accused filed application for pre‑arrest bail direct in the High Court without first moving Court of original jurisdiction/lowest grade which in case of accused was Court of Session‑‑‑Accused could move Sessions Court concerned during Court hours and during that period they would not be arrested and thereafter risk would be entirely at the shoulders of accused.

Ch. Hamayun Imtiaz 6ujjar for Petitioners.

YLR 2000 LAHORE HIGH COURT LAHORE 325 #

2000 Y R 325

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD ASHRAF Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.380 of 1996, decided on 26th May, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.337‑A(ii), 337‑A(i) & 337‑F(i)‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Appreciation of evidence‑‑Concurrent findings of facts by the Courts below oat which conviction of accused was based for causing injuries to the prosecution witness, did not call for any interference‑‑Accused however, was a young boy of less than 20 years of age with no criminal history and had remained behind the bars for about six months, his sentence of one year's R.I. was reduced to imprisonment already undergone by him in circumstances‑‑Sentence of Arsh and Daman awarded to accused by the Courts below was, however maintained‑‑‑Revision petition was disposed of accordingly.

Malik Muhammad Akram Khan Awan for Petitioner.

Mian Abdul Qayyum Anjum for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 326 #

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YLR 2000 LAHORE HIGH COURT LAHORE 340 #

2000 Y L R 340

[Lahore]

Before Khawaja Muhammad Sharif, J

HASSAN alias HASSNI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 156 of 1998, heard on 10th February, 2000.

Penal Code (XLV of 1860)---

----S.302/337-F(ii)---Appreciation Of evidence---Investigating Officer in his statement before Trial Court had submitted that complainant party had launched assault to dispossess accused persons from disputed land and that both parties made fire shots upon party-men of each other, one of the fire shots hit deceased and that he could not arrive at conclusion as to by whose firing deceased was injured and resultantly died-- Nobody having injured from the side of accused, it could be concluded that accused had exceeded their right of self-defence-- Conviction and sentence awarded by Trial Court to accused under S.302(6), P. P. C. were converted to S.302 (c), P. P. C. and their sentences were reduced accordingly in circumstances.

A. R. Tayyab for Appellants.

Mirza Nadeem for the State.

Date of hearing: 10th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 343 #

2000 Y L R 343

[Lahore]

Before Sheikh Abdur Razzaq, J

Pirzada RIFFAT MEHMOOD‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.23‑Q of 1999, heard on 12th October, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.196 & 561‑A‑‑‑Penal Code (XLV of 1860), S. 452/454/295/295‑Al427/144/149‑‑Quashing of order‑‑‑Private complaint under Ss.452, 454, 295, 295‑A, 427, 148 & 149, P. P. C. ‑‑‑Judicial Magistrate after recording preliminary evidence summoned respondents‑Appellate Court set aside said order of Judicial Magistrate on appeal‑‑‑Complainant filed petition under S.561‑A, Cr.P.C. for quashing order of Appellate Court‑‑‑Sanction as required by S.196, Cr. P. C. was not obtained by complainant before lodging complaint nor same was attached with the complaint‑‑‑Mandatory provisions of S.196, Cr. P. C. having not been complied with, order passed by Judicial Magistrate whereby, respondents were summoned, suffered from jurisdictional defect and was rightly reversed by Appellate Court‑‑‑Petition for quashing of order of Appellate Court, being devoid of any substance was dismissed.

Gulab Khan v. Fazal Husain and another 1968 PCr.LJ 730 and Dhirendra Nath Bera v. Nurul Huda and others AIR (38) 1951 Cul. 133 ref.

Syed Zulfqar Abbas Naqvi for Petitioner.

Aftab Ahmad for the State.

Ch. Zahoor Husain for Respondent No.2.

Sardar Muhammad Ishaque Khan for Respondents Nos. 3 to 8.

Date of hearing: 12th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 348 #

2000 Y L R 348

[Lahore]

Before Sheikh Abdur Razzaq, J

Malik AZHAR HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6‑Q of 1999, decided on 14th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑Penal Code (ALV of 1860), Ss. 420 & 506‑‑‑Quashing of proceedings‑‑After usual investigation, case went up for trial, charge was framed but during nine years only two prosecution witnesses were examined‑‑‑Case was adjourned for one hundred and thirty‑one times for recording prosecution witnesses‑‑‑On about eighteen times bailable warrants had been issued for summoning prosecution witnesses, coercive measures had been adopted to secure attendance of witnesses, but prosecution had failed to produce them despite the case had been lingering on for about nine years‑‑‑Not only complainant had failed to examine himself to support his stand, but one of the witnesses who was examined so far had been declared hostile and second one had not involved accused in the case‑‑‑Accused despite absence of any evidence against them were being subjected to face rigour of trial which amounted to harassment of accused and an abuse of process of Court, which could not be allowed to continue‑‑Proceedings against accused, were quashed in circumstances.

Gul Jamal Khan and others v. Shah Jahan Khan 1971 PCr.LJ 943, State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; Lal v. Ghullan and others 1988 PCr. LJ 990 and Abdul Sattar and others v. The State 1992 PCr.LJ 2054 ref.

Sh. Muhammad Suleman for Petitioner.

Muhammad Din Bhatti for the Complainant.

Raja M. Ayub Kayani for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 351 #

2000 Y L R 351

[Lahore]

Before Khalil‑ur‑Rehman Ramday

and Asif Saeed Khan Khosa, JJ

MUHAMMAD KHALIL ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.539 and Murder Reference No. 239 of 1994, heard on 8th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 302(c) ‑‑‑ Appreciation Of evidence‑‑‑No background of serious ill‑will or bitterness between the parties existing, false implication of accused on a capital charge was not possible‑‑‑Ocular account of occurrence was corroborated by the medical evidence and recovery of blood‑stained "Chhuri " from the possession of accused‑‑ Accused, thus, was proved to have perpetrated the murder of the deceased‑‑Motive set. up by the prosecution was, however, not proved‑‑‑Prosecution had also not , explained the injuries sustained by the accused during the incident which was imperative for it to do so‑‑‑Locale of the said injuries and their dimensions showed that the accused had suffered the same while warding off an assault launched upon him by the deceased in exercise of his right of private defence‑‑‑Accused, however, in retaliation for his injuries sustained on non‑vital parts of his body, had given forceful "Chhuri " blows on the most vital parts of the body of the deceased causing his instant death which were quite excessive and manifestly disproportionate to the injury sustained by him and thus he had exceeded the right of private defence which was available to him‑‑Conviction of accused under S.302(b), P. P. C. was consequently altered to S. 302 (c), P. P. C. and he was sentenced to ten years' R.1. thereunder.

Mukhtar Ahmad Butt for Appellant.

Muhammad Taqi Khan for the Complainant.

Khawaja Shaukat Ali for the State.

Date of hearing: 8th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 356 #

2000 Y L R 356

[Lahore]

Before Maulvi Anivarltd Hag. J

GHULAM SARWAR‑‑‑Petitioner

versus

ABDUL GHAFOOR and others‑‑‑Respondents

Civil Revision No.561‑D and Civil Miscellaneous No. l of 1999, decided on 18th October, 1999.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑Ss.8 & 9‑‑‑Suit for possession‑‑‑Plaintiff claimed title in land contending that defendant had forcibly occupied the same‑‑Defendant proved that initially plaintiff had agreed to sell the land to him, but illegally sold the same to another person and that he (defendant) purchased the land from the said other person ‑‑‑Validity‑‑‑Appellate Court, in circumstances, had rightly found that defendant was vested with title in land in his occupation‑‑‑Had the plaintiff, considered himself to have been dispossessed from land, he should have filed suit against such dispossession under S.9, Specific Relief Act, 1877 within six months from alleged dispossession, which he failed to do‑‑Judgment and decree of Appellate Court below not suffering from any defect, could not be interfered with by High Court.

Muhammad Shafi and others v. Collector and others NLR 1980 AC 243 ref.

Mian Abbas Ahmed for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 359 #

2000 Y L R 359

[Lahore]

Before Sheikh Abdur Razzaq, J

KARIM. Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.949‑B of 1999 decided on 16th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.382/392‑‑‑Bail, grant of‑‑‑Accused was not named in the F.I.R.‑‑‑Complainant in his later application providing the names of actual culprits also did not nominate the accused for committing dacoity in his house‑‑‑Accused was even not put to identification test‑‑‑No robbed articles had been recovered from the accused‑‑‑Accused had simply been involved in the case at the behest of co‑accused‑‑‑Case of accused, in circumstances, needed further probe and he was admitted to bail accordingly.

Ghufran Khurshid Imtiazai for Petitioner.

Mirza Farooq Ahmad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 368 #

2000 Y L R 368

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

MUHAMMAD BASHIR and 5 others‑‑‑Petitioners

versus

HAKIM ALI and another‑‑‑Respondents

Civil Revision No. 1840‑D of 1984, decided on 29th November, 1999.

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

‑‑‑‑O.XXIII, R. 1‑‑‑Withdrawal of suit‑‑‑Fresh suit already instituted and pending at time of withdrawal of earlier suit‑‑‑Effect‑‑‑Where suit was withdrawn without permission to bring a fresh one, subsequent suit on the same cause of action was barred‑‑‑Bar contained in O.XXI11, R. l, C.P.C., however, was not attracted where the subsequent suit was filed during tendency of earlier suit and earlier suit was withdrawn later on.

Ghulam Nabi and others v. Seth Muhammad Yaqoob PLD 1983 SC 344 ref.

(b) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Limitation Act (IX of 1908), Art.113‑‑‑Suit for specific performance of agreement to sell‑‑‑Limitation‑‑‑Date fixed in the agreement, effect of‑‑‑Such date will be material under provision of Art.l13 (J Limitation Act, 1908, if the vendor is capable of performing the agreement or is vested with the complete title to transfer the property or interest in favour of the purchaser‑‑‑Where the vendor was not in a position to execute the sale‑deed or had to fulfil certain preconditions for the complete transfer of title or where there was impediment in transfer of title free of charge, then the case was not covered by the first part of Art. 113, Limitation Act, 1908, and the vendee was entitled to file a suit within three years from the notice of refusal to perform the agreement or from the date when the title matured and the vendor was in a position to perform the agreement ‑‑‑Vendee was not expected to pay the price if the vendor had to take certain steps as a prerequisite to arm himself with a title free from encumbrances, for conveyance to vendee.

Said Muhammad v. Abdur Rehman 1996 MLD 60 ref.

‑‑‑‑Ss.12 & 22‑‑‑Specific performance of agreement to sell land‑‑‑Concurrent findings of fact‑‑‑Suit was filed by the plaintiffs for the enforcement of agreement to sell‑‑‑Both the Courts below concurrently found the plaintiffs entitled to enforcement of such agreement‑‑‑Validity‑‑‑Sufficient evidence was led by plaintiffs to prove their readiness and willingness to perform their part of the agreement and it stood proved that they were entitled to the decree for specific performance of agreement in exercise of discretionary jurisdiction of the Court‑‑‑Findings recorded by Courts below did not, in any way, suffer from misreading of record or error of law‑‑‑High Court declined interference.

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

‑‑‑‑Ss.100 & 115‑‑‑Revision, converting into second appeal‑‑‑Scope‑‑‑Where it was held that the findings recorded by the Courts below did not suffer from misreading of evidence or error of law, the petitioner would not be able to get any benefit even if the revision was treated as appeal‑‑‑Revision was not converted into second appeal in circumstances.

Muhammad Zainul Abidin for Petitioners.

Nizam Din for Respondents.

Dates of hearing: 15th and 16th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 376 #

2000 Y L R 376

[Lahore]

Before Muhammad Naseem Chaudhri, J

MURAD ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.222‑Q of 1999, heard on 20th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.561‑A & 169‑‑‑Penal Code (XLV of 1860), S.182‑‑‑Quashing of proceedings‑‑Petitioner got recorded F.LR. against accused for offence of theft under S.380/457, P. P. C. ‑‑‑Police, after investigation of case, declared accused innocent and preferred report for cancellation of F.I.R.‑‑‑Police without placing matter before Area Magistrate under S.169, Cr. P. C. for formal discharge of accused, submitted "Kalandra" before Assistant Commissioner for holding trial against petitioner under S.182, P. P. C. for giving false information to police and proceedings were initiated against petitioner which proceedings were sought to be quashed‑‑‑Contention of petitioner was that no formal order for discharge of accused from the case registered at his instance was procured and issued by Area Magistrate under law‑‑‑Validity‑‑‑Proceedings under S.182, P. P. C. without appropriate order of the Area Magistrate about discharge of accused, could not be initiated by police on the ground that petitioner had given false information to use lawful power of police to cause injury to accused‑‑‑Supervisory jurisdiction of Area Magistrate could not be brushed aside and violated by police on set law in motion against petitioner to initiate proceedings under S.182, P. P. C.‑‑Submission of "Kalandra " before Assistant Commissioner by police to initiate criminal proceedings against petitioner under S.182, P. P. C. was abuse of process of law and criminal proceedings conducted by Assistant Commissioner were exercised in futility‑‑Proceedings pending against petitioner, were ordered to be quashed in circumstances.

Malik Amin Ullah for Petitioner.

Muhammad Mazhar Sher Awan, Asstt. A.‑G. and Naeem Sadiq for the State.

Date of hearing: 20th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 378 #

2000 Y L R 378

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ANWAR and 8 others‑‑‑Petitioners

versus

BAHAN and another‑‑‑Respondents

Civil Revision No.2052 of 1984, heard on 8th December, 1999.

(a) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Suit for specific performance of an agreement to sell‑‑‑Limitation period, commencing of‑‑‑Scope‑‑‑Provisions of Art.113, Limitation Act, 1908, provided a period of three years for specific performance of a contract and the period commenced from the date fixed for the performance of the agreement or where no date was fixed, when the plaintiff had noticed that performance was refused‑‑‑If agreement did not specify any date for its performance, second part of Art. 113 of Limitation Act, 1908, would apply and such suit could be found barred by limitation on any score‑‑‑Where there was no evidence to show that the performance of agreements were demanded and refused at a point of time exceeding three years from the date of the suits, and the date of refusal mentioned in the plaints was 8‑6‑1970, suits fled by the plaintiff on 14‑12‑1970 were within time.

Malik Imam Bakhsh's case 1995 CLC 309; Suleman Zulfiqar Mehdi's case 1991 CLC Note 88 at p.71; Haji Sh. Ijaz Ahmad's case 1995 CLC 101; Muhammad Kabir‑ud‑Din's case 1993 CLC 747 and Hoshang and other's case PLD 1968 Kar. 723 ref.

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

‑‑‑‑Ss.12 & 22‑‑‑Suit for specific performance of agreement to sell‑‑‑Refusal to perform contract‑‑‑Scope‑‑‑Apart from being proved strictly, the refusal of the defendant to perform contract, must be clear, unequivocal and unconditional.

AIR 1932 Lah. 36 ref.

‑‑‑‑Ss.12 & 22‑‑‑Contract Act (IX of 1870, S.55‑‑‑Sale of immovable property‑‑‑Time as essence of contract‑‑‑Applicability‑‑‑Time in respect of agreement of sale qua immovable property is not of the essence of the contract, even though mentioned in the agreement itself, unless written notice is addressed by one party to the other.

Bashir Ahmad's case 1992 CLC 1069; Ghulam Hussain's case PLD 1985 Kar.674; Muhammad Safdar Ansari's case PLD 1988 Lah. 216 and Mst. Nazir Rauf's case PLD 1988 Lah. 390 ref.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.12 & 22‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Specific performance of agreement to sell‑‑‑Such suit was filed by the plaintiff after the defendants refused to perform the contract‑‑‑Agreement in question did not mention any date for the completion of mutation by the parties or for execution of sale‑deed of the suit land‑‑‑Both the Courts below had concurrently dismissed the suit of the plaintiff as being time‑barred ‑‑‑Validity‑‑ Where the agreement did not specify any date for its performance, second part of Art. 113 of Limitation Act, 1908, would apply‑‑‑Both the Courts below had committed material irregularity to decide the issue of limitation in violation of mandatory provisions of Art. 113 of Limitation Act, 1908‑‑‑High Court in exercise of the revisional jurisdiction had ample power to disturb the findings of facts of Courts below in such situation‑‑‑Judgments of both the Courts below were set aside and the case was remanded to the Lower Appellate Court.

PLD 1978 SC 213; AIR 1928 Cal. 754; PLD 1968 Kar. 723 and Shaukat Nawaz's case 1988 SCMR 851 ref.

PLD 1964 Kar: 149; 1992 SCMR 46; PLD 1980 SC 228; PLD 1990 SC 1; PLD 1991 SC 1140; AIR 1935 PC 85 and 1974 SCMR 393 distinguished.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Limitation Act (IX of 1908), S.3‑‑ Revision‑‑‑Question of limitation‑‑--- Concurrent findings of both the Courts below‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑ Where the question of limitation was not a pure question of fact and the same was mixed question of law and fact, High Court had jurisdiction to disturb the concurrent findings of fact on such issue.

PLD 1990 SC 1; PLD 1991 SC 1140 and AIR 1935 PC 85 ref.

Haji Sheikh Ijaz Ahmad's case PLD 1995 SC 314 fol.

Malik Muhammad Arshad for Petitioners.

Hassan Ahmad Khan Kanwar for Respondents.

Date of hearing. 8th December. 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 384 #

2000 Y L R 384

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD RAFIQUE---Petitioner

versus

S.H.O., POLICE STATION

MOTRA, TEHSIL DASKA, DISTRICT

SIALKOT and 2 others---Respondents

Writ Petition No.7277 of 1999, decided on 28th April, 1999.

Penal Code (XLV of 1860)---

----S.337-H(ii)506/148/149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Framing of charge---Points to be considered---Only requirement at the time of framing of charge was to find out whether or not there was prima facie case worthy of judicial test---Courts below had given a concurrent finding that the contents of the F.I.R. supported by the eye-witnesses and the complainant had apparently linked the accused with the occurrence and as such the charge was not groundless and had decided to proceed with the trial---Such finding of the Courts below was not open to any exception---No misuse of the judicial process having been shown, Constitutional petition was misconceived and the same was dismissed in limine.

Ch. Nasir Ahmad Bajwa for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 386 #

2000 Y L R 386

[Lahore]

Before Ch. Ijaz Ahmad, J

Syed NAEEM NAQI‑ Appellant

versus

Syed ZAMEER HAIDER and 2 others‑‑‑Respondents

First Appeal from Order No. 107 of 1989, heard on 7th December, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.14‑‑‑Limitation Act (IX of 1908), S.5‑‑Condonation of delay‑‑‑Proceedings for making award rule of Court‑‑‑Appellant filed appeal‑before Lower Appellate Court against order of the Trial Court‑‑‑After admitting the appeal for regular hearing same was returned to the appellant to be filed before High Court‑‑‑Contention by respondent was that appeal be dismissed as barred by time‑‑Validity‑‑‑Limitation law should be liberally construed without giving violence to intention of Legislature and the same must be applied for benefit of plaintiff (appellant).

1988 CLC 332 and Muhammad Masi‑uz‑Zaman's case PLD 1992 SC 825 ref.

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

‑‑‑‑First Sched.‑‑‑Technicalities should not be hindrance in the way of justice‑‑‑Rules framed in the Code of Civil Procedure are rules for the advancement of justice and such rules should not, as far as possible, be allowed to defeat the ends of justice.

Muhammad Sarwar's case 1980 CLC 946; Khuda Yar's case PLD 1975 SC 678; 1999 MLD 2164 and Alim Din's case 1999 MLD 2202 rel.

‑‑‑‑S.17‑‑‑Judgment, pronouncing of‑‑Jurisdiction of Court‑‑‑Scope‑‑‑Provision of S.17, Arbitration Act, 1940 had cast duty on the Court to see if there was no cause to remit award or any of the matter referred to the arbitration for reconsideration or to set aside the award‑‑‑Apart from the application which a party could make for either remission of the award or for its reversion Court could exercise such powers suo motu‑‑‑Where award was nullity because of the invalidity of the arbitration agreement or for any of the reasons or such award was prima facie illegal and was not fit to be maintained, Court had ample power to set aside the same without waiting for any objection to such award being filed or without considering any application for setting aside the same.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.14, 17 & 26‑‑‑Award, making rule of Court‑‑‑Unregistered award, creating rights regarding immovable property‑‑‑Effect‑‑‑Ex parte decision was taken by Trial Court against the appellant and made the award rule of Court‑‑‑Application to set aside such order of the Trial Court was dismissed‑‑Validity‑‑‑Contents of award revealed that same created rights regarding immovable properties but the award was not registered‑‑Such award was ineffective to convey the rights in the properties in favour of respective parties‑‑‑Trial Court failed to find out if the award did or did not suffer from any infirmity or any invalidity or had offended provisions of law and further failed to examine the award to see whether the requirement of S.26, Arbitration Act, 1940 was fulfilled in the case or not‑‑‑Trial Court also did not notice, if the award was against the provisions of the arbitration agreement or the same was based on the arbitration agreement‑‑‑Trial Court made the award rule of Court without applying its independent mind in accordance with the declared law and in accordance with the provisions of Arbitration Act, 1940‑‑‑Order of the Trial Court making the award rule of Court was not sustainable, as the same suffered from material illegality and jurisdictional error‑‑Such order of the Trial Court was set aside and the case was remanded to the Trial Court for decision on merits in circumstances.

1995 SCMR 585; 1998 SCMR 2296; PLD 1971 Quetta 30; 1989 SCMR 1407; PLD 1986 Lah. 254; PLD 1970 Lah. 840; PLD 1965 Kar. 326; PLD 1993 Lah. 11; 1995 SCMR 73 and Mst. Sardaran's case 199.3 SCMR 363 ref.

Mst. Faridan Malik's case 1998 SCMR 816; Nawabdin's case 1988 SCMR 1623; Lachman Dass's case 1990 PSC 809 and Pakistan through General Manager, P.R. v. Q.M.R. Experts Consultants PLD 1990 SC 800 fol.

S. M. Mohsin Zaidi for Appellant.

Abdul Waheed Khan for Respondents.

Date of hearing: 7th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 398 #

2000 Y L R 398

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAMZAN‑‑‑Appellant

versus

ABDULLAH and others‑‑‑Respondents

Regular Second Appeal No. 127 of 1986, heard on 20th October, 1999.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Contract Act (1X of 1872), Ss. 46 & 55‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Suit for specific performance of agreement of sale‑‑‑Time as an essence of contract‑‑‑Terms of agreement arrived at between the parties on 24‑5‑1979 showed that vendor who had received earnest money had agreed to get the sale‑deed registered by 31‑12‑1979 and in case of violation of terms of agreement parties agreed to pay penalties‑‑‑Prior to date fixed for registration of sale‑deed, vendor filed suit for damages against vendee and vendee only after ten days from date fixed for registration of sale‑deed filed suit for specific performance of agreement‑‑‑Trial Court decreed the suit for specific performance of agreement filed by vendee and dismissed suit for damages filed by vendor, but Appellate Court dismissed the suit for specific performance of agreement holding that time was the essence of the contract" and that vendee was guilty of breach of contract‑‑‑Validity‑‑‑Agreement arrived at between the parties was not different from any other agreement for transfer of immovable property as no special conditions were provided therein‑‑‑Agreement was a promise to sell the land and a promise by vendee to pay for the same‑‑‑Mere fact that date was fixed for registration of sale‑deed and some penalty was proposed, would not make the time essence of the contract, but that would not mean that period of completion of contract could be prolonged ad infinitum‑‑‑Rule applicable would be rule of reason that in case contract was not performed within time stipulated in the agreement same should be performed within a reasonable time‑‑‑Vendee having approached Court within ten days of date stipulated in the agreement, it could not be said that it was not a reasonable time within which contract could be performed.

Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39 ref.

Mirza Manzoor Ahmad for Appellant.

Kanwar Intizar Ahmad Khan for Respondents.

Date of hearing: 20th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 401 #

2000 Y L R 401

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD ANWAR ‑‑‑Petitioner

versus

SARDAR KHAN and 15 others‑‑‑Respondents

Civil Revision No.1632 of 1984, heard on 23rd July, 1999.

(a) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.8‑‑‑Civil Procedure Code (V of 1908), S. 115‑Adverse possession‑‑‑Suit for, possession of land in dispute was objected to by defendants firstly contending that they had been occupying land in dispute in their capacity as "Ghair Dakheel Karan " and had not been paying any rent produced either to predecessor of plaintiffs or thereafter to plaintiff‑‑‑Defendants had also contended that they had acquired proprietary rights in respect of land in dispute being in adverse possession as they had been in possession of the same for the last more than thirty years‑‑ Validity‑‑‑Revenue Record showed that the land' belonged to predecessor of plaintiffs and predecessor‑in‑interest of defendants was in possession of land in capacity of "Ghair Dakheel Karan Ba Sharah Bila Legan "‑‑ Record also showed that after the death of predecessor of plaintiffs, suit land was mutated in name of plaintiffs being legal heirs of deceased owner but predecessor‑in‑interest of defendants and subsequently defendants themselves had never objected to the said mutation of inheritance‑‑‑Defendants having been occupying suit land with prior approval of plaintiffs, possession of defendants over suit land, thus, was permissive one which had defeated claim of ownership of defendants‑‑ Mere non‑payment of rent or Batai by defendants would not mean that defendants had become owner on account of adverse possession as their possession on suit land was permissive from its inception.

Fazal Ghani and others v. Khitab Gul and others 1968 SCMR 1040(2) and Lala and another v. Mst. Jante 1968 SCMR 131 ref.

(b) Punjab Tenancy Act (XVI of 1887)‑‑‑

-‑‑‑Ss.5 & 6‑‑‑Nature of tenancy‑‑Determination‑‑‑Mere non‑payment of rent or Batai by tenant to landlord, would not alter nature of tenancy‑‑‑Tenant denying title of landlord in respect of tenanted land, must show that he had done something more to deny landlord's title, because law assumed that a tenancy of land once entered upon, would continue until determined in one Of ways provided for by statute.

Mirza Hafeez‑ur‑Rehman for Petitioner.

Ch. Muhammad Anwar Bhindar for Respondents.

Date of hearing: 23rd July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 405 #

2000 Y L R 405

[Lahore]

Before Ahmad Nawaz Malik, J

SAKHAWAT‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.235‑B of 1998, decided on 24th March, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.337A(ii)1337‑A(i)1337‑G(i)l337‑L(ii)134‑‑‑All the injuries sustained by the prosecution witness were simple in nature except one grievous injury on his head which was attributed to accused‑‑‑Offences charged against the accused were not hit by the prohibitory clause of S. 497(1), Cr. P. C.‑‑‑Accused was in judicial confinement for the last about six months‑‑‑Accused was admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Sh. Attiqe‑ur‑Rehman for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 406 #

2000 Y L R 406

[Lahore]

Before Sheikh Abdur Razzaq, J

SHAHNAWAZ and others‑‑‑Petitioners

versus

MUMRAIZ KHAN and others‑‑‑Respondents

Criminal Miscellaneous No.43‑Q of 1999, decided on 21st September, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S..561‑A‑‑‑Penal Code (XLV of 1860), S.337‑A(ii)‑‑‑Quashing of proceedings‑‑‑Bail before arrest granted to accused was confirmed on affidavit of complainant wherein he had effected a compromise with accused and stated that he had no objection if bail was confirmed‑‑‑Accused on basis of said affidavit and statement of complainant filed application under S.249‑A, Cr.P.C. for his acquittal which was dismissed and thereafter he had filed petition under S.561‑A, Cr.P.C. for quashing of proceedings pending against him‑‑‑Statement of complainant recorded in Court had clearly revealed that he had effected compromise to the extent of confirmation of bail and it did not reveal that complainant had effected compromise with regard to final disposal of case against accused‑‑‑Petition for quashing proceedings against accused was dismissed with direction to trial Court to summon complainant and to decide case in accordance with law.

Syed Sabir Husain Shah and another v. Syed Iftikhar Husain Shah and another 1995 MLD 563 and Syed Iftikhar Husain Shah v. Syed Sabir Husain Shah and 2 others 1998 SCMR 466 ref.

Khalid Mahmood Mughal for Petitioners.

Raja Muhammad Ayyub Kayani for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 407 #

2000 Y L R 407

[Lahore]

Before Ahmad Nawaz Malik, J

AHMAD YAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1 of 1997 in Criminal Appeal No.399 of 1997, decided on 19th February, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426‑‑‑Penal Code (XLV of 1860), S.302(c)‑‑‑Suspension of sentence pending appeal‑‑‑Accused had been sentenced to five years R.I. under S.302 (c), P. P. C. with benefit of S. 382‑B, Cr. P. C. and he was in jail for the last one year and eight months‑‑‑Appeal of accused was not going to be taken up for hearing in the near future‑‑Sentence of accused was suspended in circumstances and he was admitted to bail accordingly.

Altaf Ibrahim Qureshi for Petitioner.

S.M. Rashid for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 408 #

2000 Y L R 408

[Lahore]

Before Sheikh Abdur Razzaq, J

Sheikh MUHAMMAD ASHRAF‑‑‑Petitioner

versus

Mst. BILQEES AKHTAR and 4 others‑‑‑Respondents

Civil Revision No.2137 of 1988, heard on 16th July, 1999.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Suit for declaration and grant of injunction‑‑‑Plaintiff filed suit for declaration and grant of injunction to the effect that he was owner in possession in his own right of property in dispute purchased by him vide sale‑deed and that defendants be permanently restrained from interfering with his possession over the said property‑‑‑Suit was contested by defendants contending that they were rightful owners of property in dispute and that plaintiff had purchased the said property with defective title fully knowing that person selling the property had no title to pass on same to plaintiff‑‑Evidence on record had fully proved that plaintiff had never been in possession of property in dispute in his own right which had stood transferred in names of defendants by Settlement Department‑‑‑Courts below, in circumstances, had rightly dismissed suit of plaintiff, which otherwise was patently time-barred‑‑‑Findings of Courts below, based on evidence on record, were unexceptionable and could not be interfered with.

Ch. Inayat Ullah Khan for Petitioner.

Abdul Wahid Chaudhry for Respondents Nos. 1 to 3.

Amjad Hussain Syed for Respondent No.4.

Date of hearing: 16th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 412 #

2000 Y L R 412

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi

and Mian Saqib Nisar, JJ

ANSW ENTERPRISES and 2 others‑‑‑Appellants

versus

ASKARI COMMERCIAL BANK LIMITED‑‑‑Respondent

Regular First Appeal No.493 of 1999, decided on 23rd December, 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S.96(3)‑‑‑Appeal against consent decree‑‑Maintainability‑‑‑Despite the absence of a bar, like S.96(3), C. P. C. in S.21, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, order or decree, passed with consent of the parties is not appeal-able ‑‑‑Provisions of S.21, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 only permits filing of appeal by an aggrieved person and not by a person who, being an instrumental to the decree and having given consent through duly appointed counsel, is left with no grievance to assail such decree.

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

‑‑‑‑S.12(2)‑‑‑Setting aside of decree‑‑‑No allegations in the application under S.12(2), C. P. C. against the counsel, giving remote suggestion that consent of the counsel was based on fraud and that counsel had colluded in any manner with the opposite party to give his consent for the compromise‑‑‑Provisions of S.12 (2), C. P. C. were not attracted in circumstances.

Mobile Eye Service of Pakistan, Karachi v. Director, Social Welfare/ Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 and Muhammad Saeed v. Indico Paint Colour Varnish Co. PLD 1995 Kar. 25 ref.

‑‑‑‑O.III, Rr.1 & 3‑‑‑Counsel and client‑‑Power of counsel to compromise on behalf of his client‑‑‑Implied power ‑‑‑Scope‑‑‑Effect‑‑ In absence of any specific provision, in the power of attorney, preventing the counsel from entering into a compromise on behalf of his client or declining authority to enter into lawful compromise in the suit/counsel is deemed to have implied power to compromise in the suit on behalf of his client‑‑‑Any decree, so passed is deemed to have been lawfully passed, if no injustice has been caused by such decree.

Noor Muhammad v. Muhammad Kamil and another 1991 CLC 92; Kulsoombai and 5 others v. Mst. Shirinbai and 6 others 1989 CLC 234; Manzoor Ahmad and another v. Sardar and 6 others 1990 MLD 1744; Dr. Ansar Hassan Rizvi v. Sayed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634 and Noor Muhammad and others v. Muhammad Siddique and others 1994 SCMR 1248 ref.

(d) Counsel and client‑‑‑

‑‑‑‑ Act of counsel, remedy against‑‑‑Where the counsel was appointed by the client and power was given to sign compromise and doing all acts necessary for the disposal of the suit, such client could not object to any decree passed in compromise signed by counsel‑‑‑Such client had only remedy of damages against the agent.

Muhammad Humayon Khan v. Akbar Jan 1972 SCMR 567 ref.

(e) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1977)‑--

‑‑‑‑S.21‑‑‑Appeal against consent decree‑‑‑No extraneous matter or collateral issue was settled or compromised and as such the compromise was with regard to subject matter of the suit‑‑‑Appellant/defendant without making any allegation of fraud, collusion and misrepresentation against the counsel assailed such compromise decree‑‑Validity‑‑‑Such decree could not be objected to as the allegation of fraud, collusion and misrepresentation were missing‑‑‑Appeal was dismissed accordingly.

Mst. boor Jahan v. Azmat Hussain Farooqi and another 1992 SCMR 876 distinguished.

Sh. Muhammad Ismail for Appellants.

Zahid Hamid for Respondent.

Date of hearing: 21st December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 418 #

2000 Y L R 418

[Lahore]

Before Ahmad Nawaz Malik, J

ABDUL MAJEED---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.385 of 1996, decided on 14th May, 1999.

Penal Code (XLV of 1860)---

----Ss.331 & 311---Bail---Accused had served the substantive sentence of imprisonment awarded to him by Trial Court under S.311, P.P.C, but he was in Jail due to non-payment of Diyat amount to the parents of the deceased who had not forgiven him---Accused was unable to pay the Diyat as he was in Jail---Accused was released on bail under 5.331, P. P. C. in circumstances subject to his furnishing security equivalent to the amount of Diyat to the satisfaction of the Trial Court.

Altaf Ibrahim Qureshi for Appellant

Sh. Muhammad Rahim for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 419 #

2000 Y L R 419

[Lahore]

Before Maulvi Anwarul Haq, J

NASREEN ZAHRA‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Writ Petitions Nos. 11480 of 1998 and 1439 of 1999, decided on 25th October, 1999.

Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss.3(c), 4, 11, 12 & 12‑A‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.163‑‑ Acquisition of land‑‑‑Award of compensation ‑‑‑Powers of Land Acquisition Collector to review award of compensation‑‑‑Land Acquisition Collector who assessed compensation of acquired land and gave award in that respect, proceeded to review said award and reduced compensation earlier awarded by him considering himself to be empowered under S.163, West Pakistan Land Revenue Act, 1967 to do the same‑‑ Validity‑‑‑Award made under S.I1, Land Acquisition Act, 1894 would be final by virtue of S.12 of the said Act and Land Acquisition Collector had power only to correct any clerical or arithmetical mistake and that too arising from any accidental slip or omission‑‑‑In absence of any provision in Land Acquisition Act, 1894 conferring right of review, Land Acquisition Collector had no power to review the award‑‑‑Review was a substantive right which had to be conferred on a party by express letters of the law‑‑‑West Pakistan Land Revenue Act, 1967, was a Code itself which defined powers and jurisdiction of Authorities which were its creatures i.e. the Revenue Officers ‑‑‑ Land Acquisition Collector not creation of the said Act, but was a creature of Land Acquisition Act, 1894‑‑‑Mere fact that Land 'Acquisition Collector also happened to hold office of Collector under West Pakistan Land Revenue Act, 1967, would not authorise him to invoke powers conferred on him as a Revenue Officer under said Act, .1967.

Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1 ref.

Syed Muhammad Ali Gilani for Petitioner.

Khadim Nadeem Malik, A.A.‑G. for Respondents Nos. 1, 3 and 4.

Muhammad Ameen Malik for Respondent No. 2.

Dates of hearing: 18th and 21st October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 425 #

2000 Y L R 425

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman

and Asif Saeed Khan Khosa, JJ

KHAWAR FAREED‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1107‑B of 1998, decided on 8th October, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/452/109/148/149‑‑‑Bail‑‑‑Accused had been declared innocent during investigation and his case was recommended for discharge‑‑‑Injury attributed to accused was on the lower part of the thigh of a prosecution witness which was punishable with three years R.I.‑‑‑Question of sharing common intention by the accused with his co-accused could only be determined by Trial Court after recording evidence‑‑‑Case of accused, prima facie, did not fall within the prohibitory clause of S. 497(1), Cr. P. C. and grant of bail in such‑like cases was a rule and its refusal an exception‑‑‑Accused was admitted to bail in circumstances.

Altaf Ibraheem Qureshi for Petitioner.

Qamar‑ul‑Hassan for Respondent

YLR 2000 LAHORE HIGH COURT LAHORE 426 #

2000 Y L R 426

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD TUFAIL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 5966‑B of 1999, heard on 18th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34/109‑‑‑Bail, grant of ‑‑‑Co‑accused were alleged to have fired at deceased lying on the cot at midnight‑‑‑Role attributed to accused was that he caught hold of deceased from his legs when deceased was sleeping on the cot‑‑‑Role attributed to accused did not appeal to common sense especially when deceased was sleeping on cot when he was surprised by accused persons who fired at the deceased‑‑‑Natural conduct of accused would have been either to have fired at deceased from safe place or to have stood close to him alongwith his co‑accused‑‑‑Involvement of accused which could safely be said to be question of further inquiry, he was entitled to grant of bail.

Azam Nazeer Tarar for Petitioner.

Nadeem Mahmood Mian for the State.

Date of hearing: 18th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 428 #

2000 Y L R 428

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AYUB alias AYUBA and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.31 and Criminal Revision No. 113 of 1996, heard on 20th July, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.316 & 302(c)‑‑‑ Appreciation Of evidence‑‑‑Occurrence had taken place on the spur of the moment without use of any lethal weapon‑‑‑Parties had not disclosed the roles played by them in the incident‑‑‑Prosecution had suppressed the injuries sustained by the accused and the accused also in their statements under S.342, Cr. P. C. did not say anything about the deceased and the injured prosecution witness‑‑‑Conviction of accused under S. 316, P. P. C. was altered to S.302 (c), P. P. C. in circumstances and his sentence of 14 years R.I. was reduced to the imprisonment already undergone by him which was three years and six months and was sufficient in the interest of justice.

Masood Mirza for Appellants.

Tariq Ahmad Farooqi for the State.

Muhammad Akram Awan for the Complainant.

Date of hearing: 20th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 433 #

2000 Y L R 433

[Lahore]

Before Syed Zahid Hussain, J

SARDAR MUHAMMAD through Legal

Heirs‑‑‑Appellant

versus

SARDAR MUHAMMAD and 3 others‑‑‑Respondents

Regular Second Appeal No. 767 of 1977, decided on 29th November, 1999.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑-Art.14‑‑‑Setting aside an order of Officer of Government passed in his official capacity‑‑‑Filing of declaratory suit and failure to ask for specific relief for setting aside such order of officer ‑‑‑Effect‑‑7Such suit should be deemed to be one to set aside the order falling within the ambit of Art. 14, Limitation Act, 1908.

Gangu and others v. Mahanraj Chand and others AIR 1934 Lah. 384 ref.

(b) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑

‑‑‑‑S. 3‑‑‑Limitation Act (IX of 1908), Art. 14‑‑‑Setting aside an order of Officer of Government passed in his official capacity‑‑Revenue Authorities passed order of redemption of mortgaged property in favour of respondent‑‑‑Appellant instead of assailing the order of the Revenue Authorities, filed simple suit for possession and that too after period of limitation as prescribed by Art. 14, Limitation Act, 1908‑‑‑Both the Courts below dismissed the suit and appeal respectively filed by the appellant, on the ground that provisions of Art. 14 of Limitation Act, 1908 were applicable and suit filed was time-barred‑‑‑Validity‑‑‑Where suit for possession was filed to bypass the application of Art. 14 of Limitation Act, 1908, both the Courts below were fully justified in dismissing the suit as time‑barred‑‑‑Judgment of lower Appellate Court was amply supported by the facts and circumstances of the case and the law applicable thereto.

Punjab Province v. Nisar Ahmad PLD 1960 (W.P.) Lah. 801; Hamed Ali and another v. Rahela Khatun and others PLD 1963 Dacca 634; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367 and Messrs Capital Farms, Islamabad v. National Development Finance Corporation PLD 1996 Lah. 99 ref.

A. Karim Malik for Appellant.

Mehar Allah Ditta for Respondent No. 1.

Hashmat Ali Raza for Respondents Nos. 2 and 3.

Dates of hearing: 3rd, 16th, 25th and 26th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 436 #

2000 Y L R 436

[Lahore]

Before Syed Zahid Hussain, J

2000 Y L R 458

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD RAMZAN. Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.54-Q of 1999, heard on 26th October, 1999.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.447/134 & 506---Quashing of proceedings ---F.I.R. against accused was lodged after about one year from alleged occurrence and no explanation was given for such inordinate delay---Allegation against accused was that he alongwith his co-accused had encroached upon land belonging to complainant---Contents of F.1. R. and statements of complainant and his witness did not show that accused had entered into the lands of complainant with some criminal intention---Criminal intention of accused being missing, case against accused fell within ambit of civil trespass and criminal proceedings apparently had been resorted to pressurise accused which was misuse of process of law---Proceedings against accused, were quashed, in .circumstances.

Kazi Taj Muhammad v The State and another PLD 1962 (W.P.) Kar. 330; Muhammad Anwar and others v The State 1976 PCr.LJ 1325; Shaukat Ali v. The State PLD 1987 Lah. 116; Jane Alam v. The State PLD 1965 SC 640; Ibrahim and 3 others v. The State 1971 SCMR 25 and Sunnasamy Selvanayagam v. The King 61 Cr.LJ 173 ref.

Sardar Muhammad Ishaque Khan for Petitioner.

Ch. Muhammad Iqbal for Respondent No. 3.

Mubeen Ahmad for the State.

Date of hearing: 26th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 460 #

2000 Y L R 460

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD SIDDIQUE‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.83 and Murder Reference No.7‑T of 1999, heard on 19th May, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence Matter was reported to the police within hal; an hour of the occurrence‑‑‑Murder having taken place in broad daylight and the parties being known to each other, no question o substitution or false implication could arise‑Eye witnesses although were close relatives o the deceased, yet no enmity existed between the parties‑‑‑Ocular testimony was corroborated by medical evidence ‑‑‑Defence evidence was an afterthought having no credibility in view of the prosecution, evidence‑‑‑Conviction of accused was upheld circumstances.

1985 SCMR 836 and PLD 198 Pesh. 136 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Sentence‑‑‑Mitigating circumstance ‑‑‑Complainant having died before the commencement of trial, F.I.R. could not be read as evidence‑‑‑Prosecution had failed to prove the motive which remained shrouded in mystery and immediate cause of occurrence was not known‑‑‑Sentence of death of accused was commuted to imprisonment for life in circumstances.

Syed lhtisham Qadir Shah for Appellant.

Imtiaz. Ahmad Kaifi, A.A. ‑G. for the State.

Date of hearing: 19th May, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 464 #

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YLR 2000 LAHORE HIGH COURT LAHORE 467 #

2000 Y L R 467

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. RUKHSAR FATIMA ‑‑‑Appellant

versus

MUHAMMAD TUFAIL and others‑‑‑Respondents

Criminal Appeal No.714 of 1999, heard on 13th October, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.324/34‑‑‑Criminal Procedure Code (V of 1898), S. 417(2‑A)‑‑‑Appeal against acquittal‑‑‑Compromise affected between the parties was up to the extent of bail application of accused so that he might be released on bail‑‑‑Acquittal of accused in the case by Trial Court on the basis of said compromise was, therefore, wrong‑‑‑Order of acquittal passed by Magistrate was consequently set aside and the case was remanded to Trial Court for fresh decision in accordance with law.

1995 MLD 563 distinguished.

M. Iqbal Cheema for Appellant.

Tahir Naeem for Respondents.

Abdul Rashid Momin for the State.

Date of hearing: 13th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 469 #

2000 Y L R 469

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD HANIF and 5 others‑‑‑Appellants

versus

LAL KHAN and 7 others‑-‑Respondents

Regular Second Appeal No.87 of 1978 decided on 4th October, 1999.

(a) West Pakistan Land Reforms Regulation, 1959 (M. L. R. 64)‑‑‑

‑‑‑‑Paras. 25 & 27‑‑‑Attestation of a mutation‑‑‑Mutation was attested by Assistant Commissioner in terms of registered sale-deed‑‑‑No objection was raised to such sale-deed that it was in violation of any of the provisions of the Regulation‑‑‑High Court declined interference in circumstances.

Ghulam Mehr's case PLD 1974 Lah 520 fol

Jhanandas's case PLD 1966 SC 229; Sadiq Ali's case PLD 1992 Lah. 158 and Nasir Ahmad Khan's case 1968 SCMR 667 distinguished.

Zulfiqar Ali Khan's case PLD 1975 Lah. 158 rel.

(b) Appeal‑‑‑

‑‑‑‑Locus standi to file‑‑‑Even a stranger can file appeal.

H. .N. Saya & Company's case PLD 1969 SC 65 rel.

‑‑‑‑S.12(2)‑‑‑Setting aside of decree‑‑‑Decree challenged on the basis of fraud‑‑‑Filing of separate suit‑‑‑Validity‑‑‑Challenge to such decree could be made by filing a separate suit before the insertion of subsection (2) of S.12, C. P. C.

Muhammad Siddique's case PLI 1981 Lah. 301 rel.

(d) Fraud‑‑‑

‑‑‑‑Where a basic order is result of fraud and misrepresentation, the superstructure on such order shall have to fall on the ground automatically.

PLD 1982 Lah, and PLD 1960 SC 13 rel.

Jari Ullah Khan for Appellants.

Ghulam Sabir for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 474 #

2000 Y L R 474

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

NAZAR MUHAMMAD and 3 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.608 of 1999, heard on 10th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.439‑‑‑Penal Code (XLV of 1860), S.307/325/34‑‑‑Revisional jurisdiction, exercise of‑‑‑Orders of Court below awarding conviction and sentence to accused had been challenged by accused in revision petition‑‑Accused had failed to point out any illegality or perversity in orders of Courts below calling interference of High Court under its revisional jurisdiction‑‑‑Accused, however, having faced agony of trial since 1988, quantum of sentence could be considered‑‑Accused had already undergone rigors of trial thrice and had faced Appellate Court thrice and they also had undergone a substantive period of their sentence‑‑‑High Court, taking lenient view with regard to quantum of sentence, maintained sentence of fine, but reduced sentence of imprisonment to the period already undergone by accused.

Muhammad Akram Javed for Petitioners.

Mian Ghulam Hussain for the State.

Date of hearing: 10th December, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 476 #

2000 Y L R 476

[Lahore]

Before Khawaja Muhammad Sharif, J

GHULAM SARWAR alias BHOLI---Appellant

versus

TIDE STATE---Respondent

Criminal Appeal No. 102-J of 1992, heard on 21st April, 1999.

Penal Code (XLV of 1860)---

----Ss. 302 & 304---Appreciation of evidence---Self-defence, plea of---Accused was also injured in the occurrence which had taken place in the year 1986 and the accused since then was behind the bars---Conviction of accused under S. 302, P. P. C. was altered to one under S.304, P. P. C. and his sentence of imprisonment for life was reduced to the imprisonment already undergone by him in circumstances---Case being one of self-defence, sentence of fine and direction to pay compensation to the legal heirs of the deceased were set aside.

Muhammad Danishmand for Appellant (at State expenses).

S.D. Qureshi for the State.

Date of hearing: 21st April, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 478 #

2000 Y L R 478

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AFZAL‑‑‑Petitioner

versus

MUHAMMAD AZAM and 8 others‑‑‑Respondents

Criminal Revision No.221 of 1998, heard on 4th November, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/324/452/148/149/109‑‑‑Appreciation of evidence‑‑‑Un-witnessed occurrence‑‑Case was thoroughly investigated in three investigations and the accused persons were found innocent‑‑‑Occurrence took place at the dark hours in the morning‑‑‑Prosecution eyewitnesses were involved in the murder of the father of two accused persons‑‑‑Trial Court acquitted the accused persons‑‑‑Judgment of the Trial Court had no ground for interference by High Court.

1988 PCr.LJ 964; 1995 PCr.LJ 530; 1995 PCr.LJ 1900 and PLD 1976 Kar. 653 ref.

Sajjad Sarwar Jillani for Appellant.

Nemo for the State.

Tariq Shamim for Respondents Nos. l to 8.

Date of hearing: 4th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 479 #

2000 Y L R 479

[Lahore]

Before Khawaja Muhammad Sharif, J

ALAM KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 116‑J of 199$, heard on 18th May, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(c) & 311‑‑‑Appreciation of evidence‑‑‑Complainant was an independent witness of the occurrence‑‑‑Other eye‑witness being wife of the deceased was a natural. and star witness of the prosecution as the occurrence had taken place in her house‑‑Ocular testimony was corroborated, by medical evidence and motive furnished by prosecution‑‑‑Accused had remained fugitive from law for one year and seven months after the occurrence‑‑‑Mother of the deceased who was also the mother of accused had ‑waived her right of Qisas and had pardoned the accused‑‑‑Conviction and sentence‑‑of accused under S. 302 (c), P. P. C. were 'set aside in circumstances and he was convicted under S.311, P.P.C. and sentenced to undergo 14 years' R.1. as Tazir there under.

Muhammad Anwar Khokhar for Appellant (at State expenses).

Kh. Muhammad Iqbal Butt for the

Date of hearing: 18th May, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 481 #

2000 Y L R 481

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUR RAUF‑‑‑Petitioner

versus

AKHTAR ALI and others‑‑‑Respondents

Civil Revision No. 1878 of 1999, heard on 8th December, 1999.

Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑S.18‑‑‑Award‑‑‑Reference to Court‑‑Amount of award due to the petitioner was not released by the Authorities and the account was frozen by the Trial Court‑‑Contention raised by petitioner was that the amount of award pertaining to the other persons be retained and his amount be released‑‑‑Validity‑‑‑In spite of service, other persons did not enter appearance, thus, they were proceeded ex parte‑‑‑Claim of other persons was admitted by the Authorities‑‑Order of Trial Court freezing the total account was modified to the extent of admitted amount of the other persons‑‑Petitioner was well within his right to file application for release of his amount and Authority was duty‑bound to decide the same strictly in accordance with law‑‑‑Remaining amount in the frozen account was ordered to be released in favour of the petitioner in circumstances.

Abdul Latif Chaudhry for Appellant.

Najam‑ul‑Hassan, Law Officer alongwith Muhammad Zubair XEN, Muhammad Wasim and Muhammad Anwarul‑Haq for the State.

Date of hearing: 8th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 483 #

2000 Y L R 483

[Lahore]

Before Muhammad Naseem Chaudhri, J

IKRAM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2703-B of 1999, heard on 21 st June, 1999.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34/109---Bail---Cause of occurrence was shrouded in mystery and the complainant appeared to have been introduced in the case for the purpose of the registration of the F.I.R.---Place where the accused and co-accused had chalked out the conspiracy was not specified in the F.I.R., first Zimni of the case diary and the inquest report pertaining to the deceased---Name of accused had been added subsequently in the initial statements of the prosecution witnesses which was visible to the naked eye---Deliberations were made before the registration of the F.I.R. and the entries in the Daily Diary of the police station were stopped---Accused admittedly had not practically taken any part in the occurrence--Bail was allowed to accused in circumstances.

Sajjad Sarwar Gillani for Petitioner.

Sh. Mujahid Ahmad for the State.

Date of hearing: 21st June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 485 #

2000 Y L R 485

[Lahore]

Before Maulvi Anwarul Haq, J

PATHANA and 10 others‑‑‑Appellants

versus

NOORA and 32 others‑‑‑Respondents

Regular Second Appeal No.827 of 1978, heard on 13th October, 1999.

(a) West Pakistan Land Disposition (Saving of Shamilat) Ordinance (1 of 1959)‑‑‑

‑‑‑‑‑S.3(1)‑‑‑Suit for possession of land included in Shamilat‑‑‑Predecessors---in-interest of plaintiffs sold land without the share of Shamilat‑‑‑Portion of Shamilat was allocated to defendants alongwith the land sold during the consolidation proceedings‑‑Plaintiff filed suit for possession of such portion of Shamilat‑‑‑Trial Court dismissed the suit on the ground that the names of the predecessors‑in‑interest of the plaintiffs stood removed from the Revenue Records and no Shamilat land was mutated in favour of their successors, so there was no share in Shamilat and the share was rightly alienated to the defendants‑‑‑Lower Appellate Court dismissed appeal of the plaintiffs-‑‑Validity‑‑Transaction could not be said to include Shamilat, under the provisions of S.3(1) of West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 unless and until the same had been specifically mentioned as the subject‑matter of the disposition‑‑‑Where the case of the defendants was that the suit land formed part of share of Shamilat, Lower Appellate Court wrongly found that the predecessor‑in‑interest of the plaintiffs did not have any share in Shamilat‑‑‑Trial Court had committed a serious error inasmuch as the wordings of 5.3(1) of West Pakistan Land Disposition (Saving of Shamilat) Ordinance, 1959 were concerned‑‑‑Finding of both the Courts below were reversed and the sale mutation was held to be without Shamilat rights by the High Court‑‑‑Judgments and decrees of both the Courts below were set aside.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art.144‑‑‑Limitation‑‑‑Suit for possession of Shamilat‑‑‑Shamilat was partitioned and me in possession of defendants in the year 1958 and the suit for possession was filed on 4‑7‑1964‑‑‑Effect‑‑‑Suit was well within time prescribed by Art. 144 of Limitation Act, 1908.

Ghulam Hussain and others v. Allah Bakhsh and others 1991 SCMR 1386 ref.

‑‑‑‑O.I, R.9‑‑‑Misjoinder of any of the parties ‑‑‑Effect‑‑‑Misjoinder of any of the parties is not fatal to the suit at all.

Allah Wasaya Malik for Appellants.

Altaf‑ur‑Rehman for Respondents.

Date of hearing: 13th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 494 #

2000 Y L R 494

[Lahore]

Before M. Javed Buttar and Syed Zahid Hussain, JJ

DIRECTOR---GENERAL, NATIONAL

GUARDS and 2, others---Appellants

versus

MUJAHID MAJOR ABDUL MAJID BHATTI---Respondent

Intra-Court Appeal No. 135 of 1996 in Writ Petition No. 7766 of 1994, decided on 16th November, 1999.

(a) National Guards Act (LXI of 1973)---

----S.7---Pakistan Army Act (XXXIX of 1952), S.8(1)---Term "active service"---Scope--- Federal Government, under the provisions of S.7, National Guards Act, 1973, was empowered to declare by notification any person subject to National Guards Act, 1973, to be deemed on "active service" within the meaning of the Act---Operation against the enemy pr military operation against a foreign country was not necessary for the application of term "active service".

Allah Ditta v. The State PLD 1976 Lah. 823 fol.

(b) National Guards Act (LXI of 1973)---

----Ss.9 & 16---National Guards Rules, 1973, R.13---Constitution of Pakistan (1973), Art.l99(3)---Intra-Court appeal---Transfer of the petitioners without obtaining their consent---Objection to the maintainability of the Constitutional petition was raised in view of Art.199(3) of the Constitution as the petitioners were personnels of Disciplined Force and were subject to Pakistan Army Act, 1952---High Court repelled the objection and declared the transfers of the petitioners as illegal and the Constitutional petitions were allowed---Validity--- Petitioners were personnels of Disciplined Force and representations against their transfers had been dismissed by the Chief of Army Staff as such the petitioners were subject to Pakistan Army Act, 1952 at the relevant time and Constitutional petition was not maintainable in view of Art.199(3) of the Constitution--Despite S.9, National Guards Act, 1973, the petitioners could be transferred without obtaining their consent in view of S.16 of National Guards Act, 1973---Allegation of mala fides had no factual or legal force--Order of High Court entertaining the Constitutional petition was not upheld and Constitutional petitions were dismissed accepting Intra-Court Appeal in circumstances.

The Federation of Pakistan and 2 others v. Khurshid Ahmed and others 1999 SCMR 664; Mrs. Naheed Maqsood v. The Federation of Pakistan 1999 SCMR 2078 and Muhammad Khursheed Butt v. The Government of Pakistan PLD 1983 SC 92 ref.

Sher Zaman Khan, Dy. Attorney-General for Appellants.

Mian Khan Bhatti for Respondents.

Date of hearing: 19th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 507 #

2000 Y L R 507

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH BAKHSH and others‑‑‑Petitioners

versus

Raja ABDULLAH and others‑‑‑Respondents

Civil Revision No. 316 of 1991, heard on 22nd October, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXVl, R.9‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Suit for specific performance of agreement‑‑‑Application for appointment of Local Commissioner‑‑‑Plaintiffs had fled suit for specific performance of agreement to sell in year 1992 against agreement arrived at between the parties in 1989‑‑‑Evidence was produced by plaintiff in 1996 and application for appointment of Local Commissioner was filed by defendants in 1997 praying therein that question of possession be got resolved through Local Commissioner‑‑‑Validity‑‑‑Suit did not involve question of possession‑‑‑Even if plaintiffs were not in possession of suit property if they succeeded in their suit, Court as a corollary to the main relief of specific performance, would grant all ancillary reliefs including relief of possession‑‑‑Application for appointment of Local Commissioner, was rightly dismissed by Courts below, in circumstances.

Pir Muhammad Asif Rafi Shah for Petitioners.

Chaudhry Ghulam Din Aslam for Respondents.

Date of hearing: 22nd October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 511 #

2000 Y L R 511

[Lahore]

Before Ihsan‑ul‑Haq Chaudhry

and Syed Zahid Hussain, JJ

NIGHAT SULTANA‑‑‑Appellant

versus

UNIVERSITY OF PUNJAB through

Vice‑Chancellor, Punjab University, Lahore and 2 others‑‑‑Respondents

Intra‑Court Appeals Nos. 575 and 576 of 1998 and Writ Petitions Nos. 12202 and 12203 of 1998, decided on 11th November, 1999.

(a) Medical Council Ordinance (XXXII of 1962)‑‑‑

‑‑‑‑Preamble & S.3‑‑‑Constitution of Pakistan Medical and Dental Council‑‑‑Purpose and scope‑‑‑Such council had authority to lay down standards of study and proficiency for the purposes of granting qualifications.

(b) Educational institution‑‑‑

‑‑‑‑ Examination of First Professional of M. B. B. S. ‑‑‑Failure of candidate to clear said examination in four available chances‑‑Counting of one missed chance in the four available chances for candidate ‑‑‑Validity‑‑For counting four chances a chance missed or not availed by the candidate was not to be excluded‑‑‑ Where four chances were made available to the candidate to clear the examination and if such candidate failed to clear the same, he lost his right to continue the study in a professional college‑‑‑Open at the will of a student to avail as many chances as a student might like to have‑‑‑Regulations/ Rules fixing the duration and number of chances were neither regarded as harsh or unreasonable nor same could be said about any action taken in pursuance of such Regulations/Rules.

Akhtar Ali Javed v. Principal, Quaid‑i‑Azam, Medical College, Bahawalpur 1994 SCMR 532 rel.

Muhammad Hamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101 ref.

Shamim Ahmed for Appellant.

Muhammad Raza Farooq and Rehman Bashir for Respondents.

Date of hearing: 11th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 514 #

2000 Y L R 514

[Lahore]

Before Raja Muhammad Khurshid, J

FATEH SHER ---Petitioner

versus

TAE STATE and another---Respondents

Criminal Miscellaneous No.2867-C-B of 1999, decided on 26th May, 1999.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860). S.302/109---Cancellation of bail---Accused was not present at the place of occurrence--Story about abetment of offence by the accused actually needed further inquiry as nobody could take such a secret decision in a manner that it should be known to someone else as had been allegedly known to prosecution witnesses---Accused was not alleged to have misused the concession of bail---Petition for cancellation of bail allowed to accused by Sessions Court was dismissed in limine in circumstances.

Syed Iqbal Hussain Shah Gillani for Petitioners.

YLR 2000 LAHORE HIGH COURT LAHORE 523 #

2000 Y L R 523

[Lahore]

Before Sheikh Abdur Razzaq, J

SOHRAB HYDER---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.804-B of 1999, decided on 22nd September, 1999.

Crimial Procedure Code (V of 1898)---

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Penal Code (XLV of 1860), S.392/397/394---Bail, grant of---Case of further inquiry---Accused was not identified by the other inmates of the house during identification parade---Nothing was recovered from the accused during investigation---Case of accused being one of further inquiry, he was admitted to bail accordingly.

Tariq Parvaiz Janjua for Petitioner.

Aftab Ahmad Khan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 524 #

2000 Y L R 524

[Lahore]

Before Dr. Munir Ahmad Mughal, J

ASIA PARVEEN‑‑‑Petitioner

versus

THE STATE----RESPONDENT

Criminal Miscellaneous No. 788-B of 1998, decided on 12th May, 1999.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑‑Penal Code (XLV of 1860), S.420/468/ 471 / 494/ 495‑‑‑Bail‑‑Nikahnama showing the marriage of accused with her husband was denied by her and the said Nikahnama appeared to be an afterthought story‑‑‑Accused had a suckling baby with her in the Jail‑‑‑Investigation in the case having been completed, nothing was to be recovered from the accused‑‑‑Both the Nikahnamas were found by the Finger Print Bureau to have been signed by the accused‑‑Further inquiry was, thus, required into the guilt of accused and she was allowed bail in circumstances.

Mst. Afshan Bibi v. The State 1998 SCMR 6 ref.

Altaf Ibrahim Qureshi for Petitioner.

Mher Zauq Muhammad Sipra for the Complainant.

Muhammad Anwar‑ul‑Haq for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 526 #

2000 Y L R 526

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD ANWAR ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1774‑B of 1998, decided on 8th October, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)(3)‑‑‑Bail‑‑‑F.I.R. had been lodged with a delay of two days and that too not by the husband of the victim‑‑ Accused had allegedly committed Zina with the woman while her husband was sleeping on the adjoining cot and the noise was heard by the complainant‑‑ ‑Medical report of the woman who was a married lady had left much to be inquired into‑‑‑Accused was allowed bail in circumstances.

Falak Sher v. The State 1979 SCMR 103_ ref.

Altaf Ibrahim Qureshi for Petitioner.

Sh. Gul Muhammad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 527 #

2000 Y L R 527

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR AHMAD and others‑‑‑Appellants

versus

SULEMAN and others‑‑‑Respondents

Regular Second Appeal No. 898 of 1979, decided on 27th September, 1999.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.202‑‑‑Revoking of power of attorney‑‑Plaintiff executed sale agreement qua the suit land‑‑‑Proprietary rights of suit land were yet not transferred in the name of the plaintiff‑‑Whole consideration amount was received by plaintiff and a general power of attorney was issued in favour of defendant with regard to the suit land‑‑‑Contention by plaintiff was that despite cancellation of general power of attorney, the defendant used the power of attorney in favour of his son‑‑‑Trial Court decreed the suit and declared the act of the defendant to be void but the Lower Appellate Court reversed the findings and dismissed the suit‑‑‑Validity‑‑‑Where almost the entire consideration for the suit land stood paid by the defendant, the general power of attorney which was coupled with interest could not be revoked by the plaintiff‑‑‑Any such agreement made by the defendant as a general attorney was not void but was enforceable at law‑‑Judgment and decree of the Lower Appellate Court being in accordance with law was based upon facts established on record through evidence‑‑‑High Court declined interference.

Muhammad Din and 9 others v. Mst. Absar Fatima and others 1996 C L C 1979; Said Ali Shah v. Muhammad Shafi 1989 SCMR 1594; Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 and Muhammad Yaqoob v. Muhammad Arif 1991 SCMR 1783 ref.

(b) Contract Act (IX of 1872)‑‑

‑‑‑‑S.202‑‑‑General power of attorney coupled with interest‑‑‑Revoking of such power of attorney‑‑‑Validity‑‑‑Where the general power of attorney issued in favour of the attorney was coupled with interest of the attorney, principal had no authority to revoke the same.

Muhammad Din and 9 others v. Mst. Absar Fatima and others 1996 CLC 1979 rel.

Hafiz Khalil Ahmad for Appellants.

Nemo for Respondents.

Date of hearing: 27th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 529 #

2000 Y L R 529

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHZAD AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 49 7 of 1998, heard on 16th April, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.306/308‑‑‑Appreciation of evidence‑‑Eye‑witness though related to the deceased and the other being an employee of the factory of the deceased, were natural witnesses of the occurrence and had no enmity against the accused‑‑‑Reports of Chemical Examiner and Serologist regarding the blood‑stained Chhuri and clothes recovered from the accused were positive‑‑Ocular testimony was corroborated by medical evidence and evidence of incrimianting recoveries‑‑‑Accused had remained in abscondence for two months after the occurrence‑‑‑Prosecution, thus, had proved its case against accused beyond any doubt‑‑‑Conviction of ‑accused was maintained in circumstances‑‑‑Accused, being minor at the time of occurrence, his sentence was, however, reduced from 14 years' R.I. to 10 years R.I.

Malik Abdul Islam for Appellant (at State expenses).

S. D. Qureshi for the State.

Date of hearing: 16th April, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 534 #

2000 Y L R 534(1)

[Lahore]

Before Ahmad Nawaz Malik, J

RIAZ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 1998 in Criminal Appeal No. 53 of 1996, decided on 15th April, 1998.

Criminal Procedure Code (V of 1898)---

----S.426(1-A)(c)---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence on ground of statutory delay---Accused was in judicial confinement for the last about four and a half years and the statutory period of two years for decision of his appeal by High Court had since expired---Accused had earned the right of bail being granted to him which could not be refused in the absence of any valid ground to do so--Sentence of accused was consequently suspended and he was admitted to bail accordingly.

Liaquat v. State 1995 SCMR 1819 rel.

Altaf Ibrahim Qureshi for Petitioner.

Yaqoob Ayyaz Siddique for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 537 #

2000 Y L R 537

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. ANITA RANI‑‑‑Petitioner

versus

ADDITIONAL DISTRICT

JUDGE‑‑‑Respondent

Writ Petition No. 8084 of 1999, heard on 9th December, 1999.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.6(5)‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Recovery of deferred dower ‑‑‑Contracting of second marriage without the permission of Arbitration Council‑‑‑Petitioner/wife filed a suit for recovery and the same was decreed by the Trial Court whereas in appeal the Lower Appellate Court reversed the finding of the Trial Court and dismissed the suit‑‑-Validity‑‑‑Where a man had contracted another marriage without permission of the Arbitration Council such person under the provisions of S.6(5) of Muslim Family Laws Ordinance, 1961 was liable to pay immediately the entire amount of dower whether prompt or deferred due, to the existing wife and such amount if not so paid would be recoverable as arrears of land revenue‑‑‑Where it was not pleaded that the subsequent Nikah had been contracted with the permission of the Arbitration Council, the husband had become liable to pay the entire amount of dower forthwith‑‑‑Judgment and decree of the Lower Appellate Court was without lawful authority and the same was set aside.

Qari Abdul Karim Shahab for Petitioner.

Tariq Zulfiqar Chaudhry for Respondent No. 2.

Date of hearing: 9th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 539 #

2000 Y L R 539

[Lahore]

Before Muhammad Naseem Chaudhri, J

Raja PERVAIZ AKHTAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 615‑B of 1999, heard on 4th August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.--420, 468 & 471‑‑‑Bail, grant of‑‑‑Accused was not a beneficiary of the matter and had only identified the attorney before Sub-Registrar at the time of registration of power of attorney‑‑‑Offences under Ss.--468 & 471 of P.P.C. were not cognizable and the police did not obtain any warrants or permission from the Area Magistrate to register or investigate the case under such sections, whereas the offence under 5.420 of P.P.C. was bailable ‑‑‑Held. there was no alternative but to accept the bail application of the accused‑‑‑Bail was allowed in circumstances.

Ghulam Qasim alias Muhammad

Qasim and another v. The State 1991 PCr.LJ 2418 and Muhammad Azam v. The State 1995 MLD 1837 rel.

Raja Muhammad Varooq, for Petitioner.

Malik Shaukat Hussain for the State.

Date of hearing: 4th August, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 541 #

2000 Y L R 541

[Lahore]

Before Iftikhar Ahmad Cheema, J

LIAQUAT ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.938 and Criminal Revision No.719 of 1988, heard on 18th November, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Motive alleged by the prosecution that illicit relations of the deceased with the sister of accused had actuated the accused to kill the deceased stood proved‑‑‑Extra judicial confession made by accused was true and voluntary which was fully corroborated by medical evidence and incriminating recoveries including the weapon of offence (Kassi) found to have been stained with human blood, effected from the house of accused at his instance and the same was not even denied by him categorically in his statement recorded under S. 342, Cr. P. C. ‑‑Defence plea of accused about his false implication in the case had no foundation whatsoever‑‑‑Conviction and sentence of accused were upheld in circumstances.

PLD 1964 SC 813 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Extra‑judicial confession‑‑‑Reliable, trustworthy and beyond reproach extra judicial confession made by accused can be relied upon and conviction can be founded threron.

PLD 1964 SC 813 ref.

M. Iqbal Bhatti for Appellant.

Ch. Asghar Ali for the Complainant.

Mian Muhammad Bashir for the State.

Date of hearing: 18th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 552 #

2000 Y L R 552

[Lahore]

Before Maulvi Anwarul Haq, J

CANTONMENT BOARD, MULTAN

through Executive Officer---Petitioner

versus

Messrs NISARUL HAQ---Respondent

Civil Revision No. 47-D of 1996, heard on 14th December, 1999.

(a) Cantonments Act (11 of 1924)---

----S.265(1)---Arbitration Act (X of 1940), Ss.--10 & 14---Award---Decision of Committee of Arbitration not in accordance with the majority of votes---Validity---Award given in such arbitration proceedings, apart from being in violation of general terms pertaining to arbitration in Arbitration Act, 1940, was also violative of the statutory provisions contained in S.265(1) of Cantonments Act, 1924---Such provision dealt with the constitution .and conduct of a Committee of arbitration and as such provided that the decision of every such Committee would be in accordance with the majority of votes taken at a meeting at which the Chairman and at least three of the other members were present--Where the award was not given by the majority of the members, such award fell short of the requirements of the provisions of law and was not sustainable in circumstances.

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

----S.39---Appeal against an order refusing to set aside award---Court fee, value of---Fixing of ad valorem court-fee ---Validity---Appeal against such an order is filed under S.39, Arbitration Act, 1940 and the same has to bear prescribed court fee and no ad valorem court fee.

----S.14---Cantonments Act (II of 1924), S.265(1)---Making of award, as rule of Court---No proceedings were conducted by the Arbitration Committee and neither the Committee had arrived at any conclusion nor the matter had ended---Years after constitution of Arbitration Committee, both the respondents colluded with each other and fabricated the award to cause wrongful loss to the petitioners---Trial Court, on an application filed under S.14 of Arbitration Act, 1940 made such award as rule of Court---Lower Appellate Court upheld the decision of the Trial Court and dismissed appeal---Validity---Pleadings and the evidence on record had been deliberately misread by both the Courts below and the orders passed by them was not sustainable--Orders of both the Courts below and the award were set aside.

Syed M. Ali Gillani for Petitioner.

Kanwar Akhtar Ali for Respondent No. 1

Mian Arshad Ali for Respondent No.2.

Date of hearing: 14th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 558 #

2000 Y L R 558

[Lahore]

Before Syed Jamshed Ali, J

NOOR AHMAD by Legal Heirs and

another‑‑‑Appellants

versus

MUHAMMAD HUSSAIN and 13 others‑‑‑Respondents

Regular Second Appeal No. 11 of 1976, decided on 18th November, 1999.

(a) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑Ss.--l5 & 21‑‑‑Pre‑emption suit‑‑‑Superior right of pre‑emption on the basis of being collateral‑‑‑Proof‑‑‑Production of pedigree-table‑‑‑Evidentiary value‑‑‑Contention of vendee that mere production of pedigree‑table did not establish that the pre‑emptor was a collateral of the vendor was repelled‑‑Pedigree‑table was rightly relied upon by Lower Appellate Court to establish superior right of pre‑emption.

Rehman v. Noora through his Legal Heirs 1996 SCMR 300 ref.

(b) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑Ss.---4 & 15‑‑‑Re‑sale in recognition of superior right of pre‑emption ‑‑‑Validity‑‑Such transaction is not only a valid sale but the same is a genuine transaction and opposed to a sham transaction.

Chandra Kumar Maladas v. Abdul Motaleb and others P L D 1967 SC 28; Khurshid Alam and 2 others v. Muhammad Shah Nawaz and 12 others 1985 C L C 1286 and Mst. Ayesha Abdul Rehman v. Nawazish Malik 1993 C L C 1715 ref.

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S. 100‑‑‑Second appeal‑‑‑Time‑barred appeal‑‑‑Failure to file any application for condonation of delay‑‑‑Effect‑‑‑Copy of judgment of the Trial Court was placed on record after a delay of more than five months‑‑‑Application seeking permission to place the judgment on record had not explained the delay in filing of the appeal nor the delay in producing the same on the record after obtaining certified copy‑‑‑Effect‑‑‑Where condonation of such delay had not been sought, such case was fully covered by the dictum of Supreme Court in the case of Jumma and another reported in 1988 SCMR 1958‑‑‑Vendees having been negligent and appeal being barred by time same was dismissed.

Jumma and another v Manzoor 1988 SCMR 1958 fol.

Akbar Khan v. Muhammad Razzaq alias Abdur Razzaq PLD 1979 SC 830; Muhammad Hussain and 2 others v. Walayat Hussain and 22 others PLD 1987 Lah. 615; Abdul Rashid and another v. Muhammad Yusuf 1987 C L C 242; Arshad Khan v. Nawab and another 1987 C L C 955; Sardar v. Ali Muhammad PLD 1988 Lah. 706; Federation of Pakistan v. Muhammad Sadiq 1987 C L C 1429 and Agricultural Development Bank v. Sh. Muhammad Ayub 1984 C L C 1696 ref.

Khursheed Ahmad Ch for Appellants.

Shahzad Shaukat for Respondents Nos. to 10.

Date of hearing 2nd November: 1999

YLR 2000 LAHORE HIGH COURT LAHORE 562 #

2000 Y L R 562

[Lahore]

Before Iftikhar Hussain Chaudhry

and Ali Nawaz Chohan, JJ

IFTIKHAR AHMED

and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 79, 80, 81, 94 and Murder Reference No. 17 of 1995, heard on 24th August, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss--.302/34, 449/34 & 337‑F(v)‑‑Appreciation of evidence‑‑‑Motive as alleged by the prosecution was found to be true‑‑F. I. R. in the case was promptly lodged ‑‑‑Eyewitnestes had every opportunity for not only having seen the accused but also to have identified them and they had no reason to depose falsely against the accused‑‑‑Spent cartridges recovered from the spot had matched with the guns recovered from the accused‑‑‑Medical evidence had also supported the prosecution version‑‑‑Accused, thus, were connected with the commission o; the offence and their convictions ant sentences were upheld in circumstances‑Sentence of death of one accused who had not immediate motive to attack the deceased was however, altered to imprisonment for life.

Khurshid v. The State PLD 1996 SC 305 ref.

Syed Ehsan Qadir Shah for Appellant.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Yasmin Sahgil A.A.‑G, with Kh. Shaukat Ali for the State.

Date of hearing: 24th August, 1999

YLR 2000 LAHORE HIGH COURT LAHORE 572 #

2000 Y L R 572

[Lahore]

Before Ahmad Nawaz Malik, J

IFTIKHAR HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2166‑B of 1997, decided on 25th February, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324/ 337‑A(ii)/337‑F(i)/109/34‑‑‑ Bail‑‑‑ Sharpedged weapon injury sustained by complainant on his right hand which was attributed to accused, was not on any vital part of the body and the same was not repeated‑‑‑Offence was not covered by the prohibition contained in S.497(1), Cr.P.C.‑‑Accused according to his school leaving certificate was 15 years and 3 months old at the time of occurrence and was entitled to bail under first proviso to S.497(1), Cr. P. C. ‑‑‑Accused was in judicial lock‑up for the last five months‑‑‑Bail was granted to accused in circumstances.

Muhammad Anwar v. The State 1983 SCMR 1001 rel.

Altaf Ibrahim Qureshi for Petitioner.

Anwar‑ul‑Haq for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 573 #

2000 Y L R 573

[Lahore]

Before Ch. Ijaz Ahmad, J

AAMIR ALI ‑‑‑Petitioner

versus

FEDERAL PUBLIC SERVICE COMMISSION‑‑‑Respondent

Writ Petition No.6635 of 1999, decided on 30th September, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.199, 25 & 2A‑‑‑Rules for Federal Service Competitive Examination ‑‑‑Validity‑‑Principle of estoppel or waiver‑‑Applicability‑‑‑Petitioner, who appeared in Central Superior Services Examination, had challenged Rules of Federal Public Service Commission whereby technical and non-technical subjects were combined through Central Superior Services Examination‑‑Petitioner had contended that the Rules were very harsh and unreasonable and non-existence in modern age‑‑‑Petitioner had prayed that said Rules being in violation of Fundamental Rights guaranteed by Constitution of Pakistan (1973) be struck down‑‑‑Petitioner who himself had accepted Rules and Regulations before filing application for appearance in the examination and had undertaken to abide by said Rules and Regulations, was estoppel to challenge the Rules and Regulations‑‑‑Even otherwise said Rules which were framed by Competent Authority, could not be changed through verdict of High Court by substitution or legislating new Rules in place of said Rules‑‑‑High Court under its Constitutional jurisdiction had only power to interpret law and had no power to take role of policy maker‑‑‑Policy makers had the prerogative to make policy and frame Rules and High Court had no jurisdiction to substitute its own decision in place of decision of policy makers.

AIR 1981 SC 537; AIR 1993 SC 477; 1991 CLC 13; AIR 1974 SC 2009; 1997 SCMR 641; PLD 1996 Kar. 1; 1995 MLD 15; Shabha Chandra Verma and others v. State of Bihar and others AIR 1995 SC 904; Ansar Ahmad v. State of Bihar AIR (1994) 1 SCC 150; Lala Dar v. State of Ragistan AIR 1981 SC 1777; Durgachuran v. State of Orissa 1987 UJSC 657; Zia‑ur‑Rehman's case PLD 1973 SC 49; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Zameer Ahmad Khan's case 1978 SCMR 327; PLD 1975 SC 667; M. D. Tahir, Advocate v. Chief Secretary, Government of the Punjab 1995 CLC 1687; Zaheer Aslam's case 1995 CLC,1152; Muhammad Mansha's case 1995 CLC 1222 and Maharashtra State Board High Secondary Education and another v. Paritosh Bhubeshkumar Sheth and others (1984) 4 SCC 27 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑Principle of approbation and reprobation‑‑Applicability‑‑‑Petitioner earlier appeared in Central Superior Services Examination under the Rules framed by Federal Public Service Commission, whereby technical and non-technical subjects were combined through Central Superior Services Examination without disputing their validity‑‑‑Petitioner, therefore, was estopped to challenge the Rules subsequently on principle of approbate and reprobate.

PLD 1971 SC 376 ref.

Anjum Jawaid Khan for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 577 #

2000 Y L R 577

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. KAUSAR PERVEEN‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, CHICHAWATNI, DISTRICT SAHIWAL and another‑‑‑Respondents

Writ Petition No. 9966 of 1997, heard on 3rd December, 1999.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 5‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 85(5)‑‑‑Registered Nikahnama, when to be treated as a public document‑‑‑Registered document was a public document under Art.85(5) of Qanun‑e‑Shahadat, 1984 provided execution of same was not disputed‑‑‑Where execution of Nikahnama was disputed same could not be treated as a public document.

(b) Muhammadan Law‑‑‑

‑‑‑‑Marriage‑‑‑Proof‑‑‑Declaration by a man and woman that they were married and were husband and wife was enough to support the plea of a valid marriage.

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Suit for jactitation of marriage‑‑‑Onus to prove‑‑‑Such suit was filed by the female against the man‑‑‑Trial Court decreed the suit, while the Lower Appellate Court allowed the appeal and dismissed the suit‑‑‑Validity‑‑Lower Appellate Court misread the evidence on record in oblivion of the fact that onus to prove that the female was his legally wedded wife was on the person claiming to be her husband and as such misdirected itself while reversing the judgment and decree of the Trial Court‑‑‑Judgment and decree of the Lower Appellate Court was without lawful authority and the same was set aside.

Petitioner in person.

Wajahat Hussain Langah for Respondent No. 2.

Date of hearing: 3rd December, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 579 #

2000 Y L R 579

[Lahore]

Before Bashir A. Mujahid, J

MARKET COMMITTEE---Appellant

versus

KOHINOOR SUGAR MILLS and others---Respondents

Criminal Appeal No. 75 of 1997, heard on 10th August, 1999.

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

----S.417(2)---Appeal against acquittal in a complaint case---Maintainability---Appeal against acquittal in such Cases was competent before High Court through petition under S. 417(2), Cr. P. C.

Sardar Muhammad v. Muhammad Siddiq and others 1988 PCr.LJ 1628 fol.

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

----S.417(1)---Appeal against acquittal ordered by Appellate Court ---Competency--State, in such case, had to file an appeal under direction of the Government through Public Prosecutor under S. 417(1), Cr. P. C. ---Complainant had been conferred a right of appeal under provision 2(a) of S.417, Cr. P. C.

----Rr. 36 & 75---Penalty imposed by Trial Court---Violation of Rr. 36 & 75 of Punjab Agricultural Produce Markets (General) Rules, 1979 by a Company---Penalty---Only fine could be imposed by the Trial Court and no punishment could be awarded to the representative of the company.

(d) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S.19---Punjab Agricultural Produce Markets (General) Rules, 1979, Rr. 36, 37 & 75---Criminal Procedure Code (V of 1898), S. 417(2)---Appeal against acquittal--Violation of Rr. 36, 37 & 75, Punjab Agricultural Produce Markets (General) Rules, 1979---Market Committee was competent to impose the fee on goods manufactured within its jurisdiction/limits from the produce purchased from outside the notified area---Accused-company paid no fee to the Market Committee---Trial Court awarded sentence of imprisonment to the representative of the accused-company--Validity---Representative of the accused company could not be held guilty of the offence or violation of the Rules, only fine could be imposed and not the sentence under the provisions of R. 75 of Punjab Agricultural Produce Markets (General) Rules, 1979--Sentence awarded to the representative of the accused-company by Trial Court was not maintainable---Order of acquittal awarded by Appellate Court was amended accordingly.

Bawany Sugar Mills Ltd. v. Market Committee, Badin and another PLD 1983 Karl 1; Hyesons Sugar Mills Ltd., Karachi v. Market Committee, Khanpur and another PLD 1976 Lah. 1334; Rafhan Maize Products Co. Ltd., Lyallpur v. Market Committee, Lyallpur and two others PL D 1976 Lah. 1089; Noor Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449; Mian Rashid Ahmad v. Syed Azeem Shah and another 1999 SCMR 94 and Sardar Muhammad v. Muhammad Siddiq and others 1988 PCr.LJ 1628 ref.

Malik Muhammad Akram Awan and Zahid Khan for Appellants.

Fazaie Mian Chauhan for Respondents.

Date of hearing: 10th August, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 590 #

2000 Y L R 590

[Lahore]

Before Ch. Ijaz Ahmad, J

Rana MUHAMMAD RAZIQ and 2 others‑‑‑Petitioners

versus

NAJEEB ULLAH and 2 others‑‑‑Respondents

Writ Petition No. 4667 of 1998, heard on 19th November, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.420/406/403‑‑‑Frontier Crimes Regulation (III of 1901), S.I1‑‑‑Constitution of Pakistan (1973), Arts. 1(2) (a) (b) & (c), 247(7) & 199(1)(a)(ii)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Respondent had filed complaint before Political Agent, North Wazirastan under S. 420/406/403, P. P. C. read with S.11 of the Frontier Crimes Regulation, 1901‑‑‑Assistant Political Agent had issued notice to the petitioners in the said complaint at their Lahore address ‑‑‑Effect‑‑ High Court had no jurisdiction to quash the impugned notice issued by the Assistant Political Agent, North Waziristan‑‑Jurisdiction of Supreme Court and High Court was exclusively barred by virtue of Art.247(7) of the Constitution in relation to the Tribal Areas‑‑‑Constitutional petition was consequently dismissed as being not maintainable‑‑‑Petitioners (accused) were, however, granted protective bail for one month to enable them ,to move the competent Court to redress their grievance.

PLD 1968 SC 131; PLD 1991 Pesh. 10; PLD 1999 Kar. 39; 1998 SCMR 2389; PLD 1998 Lah. 394; 1997 MLD 2770; PLD 1997 SC 334; 1997 CLC 574; 1997 SCMR 1368; 1985 SCMR 758; PLD 1968 SC 387; 1991 SCMR 494; 1994 MLD 831; Ch. Manzoor Elahi's case PLD 1975 SC 66; Muhammad Siddique's case 1981 SCMR 1022; Said Jamal's case 1992 MLD 2043 and Qaim Bakhsh's case 1991 SCMR 2400 ref.

Mirza Hafeez‑ur‑Rehman for Petitioners.

Rana Muhammad Arshad Khan for Respondent No. 1.

Sher Zaman, Deputy Attorney General for the State.

Date of hearing, 19th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 594 #

2000 Y L R 594

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD TUFAIL and others‑‑‑Petitioners

versus

KARAT ULLAH and others‑‑‑Respondents

Civil Revision No. 1085 of 1985, heard on 29th September, 1999.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 140‑‑‑Admissibility or otherwise of a previous statement‑‑‑Previous statement not confronted with‑‑‑Effect‑‑‑Where a witness was in the witness‑box and his attention was not drawn to the previous statement, such piece of evidence could not be used against that person.

Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730; Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Rama and others AIR 1946 Lah. 65; Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65 and Atta Muhammad and others v. Matloob Alam Khan 1996 SCMR 601 ref.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of pleadings‑‑Powers of Court‑‑‑Provisions of O. VI, R.17, C. P. C. authorise Court to order such amendments as are necessary for the decision of the controversy.

Topan Dass and another v. Tharia Ram and others AIR 1934 Lah. 412 and Muhammad Iqbal v. Mirza Begum and 2 others 1992 MLD 1257 ref.

‑‑‑‑S.21‑‑‑Superior right of pre‑emption‑‑Vendee was a tenant in the suit land at the time of sale whereas the pre‑emptors were claiming to be the collaterals of the vendor‑‑Document in favour of pre‑emptor could not be relied upon by both the Courts below in view of clear provisions of Art. 140 of Qanun‑e‑Shahadat, 1984 such attention of petitioner was not drawn to such document when he was in the witness‑box ‑‑‑Vendee had a superior right of pre‑emption as against the pre‑emptors and as such the judgments and decrees of both the Courts below were set aside.

Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730; Firm Malik Des Raj Faqir Chand v. Firm Piara Lai Aya Rama and others AIR 1946 Lah. 65; Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65 and Atta Muhammad and others v. Matloob Alain Khan 1996 SCMR 601 ref.

Muhammad Anwar Bhindar for Petitioners.

S.M. Rashid for Respondents.

Date of hearing: 29th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 600 #

2000 Y L R 600

[Lahore]

Before Muhammad Naseem Chaudhri, J

PERVAIZ IQBAL alias GOGI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 658‑B of 1999, heard on 29th July, 1999.

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

‑‑‑‑S.497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑‑Penal Code (1tLV of 1860), V5.382/34‑‑‑Bail, grant of‑‑‑Accused was implicated on the statement of co‑accused recorded during investigation‑‑‑Accused was neither named in the F.I.R. nor his particulars were mentioned‑‑‑Identification parade was conducted at the police station‑‑Case of the accused was one of further inquiry and further detention of accused would be punishment without trial‑‑Accused was admitted to bail accordingly.

Farman Ali v. The State 1997 SCMR 971 and Ghulam Rasool and 3 others v. The State 1988 SCMR 557 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Art. 43‑‑‑Confession of accused during trial‑‑‑Value‑‑‑Any such confession made by accused implicating himself and his co-accused would be circumstantial evidence against the co‑accused.

‑‑‑‑Art. 38‑‑‑Confession before police‑‑Value‑‑Any such confession during investigation is inadmissible in evidence in view of mandatory provisions of Art. 38 of Qanun‑e‑Shahadat, 1984.

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

‑‑‑‑Ss. 87/88 & 497 ‑‑‑ Bail ‑‑‑ Ascendance of co‑accused‑‑‑Initiation of proceedings under S. 87/88, Cr. P. C. against such an accused was not a ground for refusal of bail to accused‑‑‑Sometimes accused persons hide and leave the place being scared of coercion applied by police‑‑‑Such facts of prosecution case were not enough to deny the concession of bail to accused.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 22‑‑‑High Court (Lahore) Rules and Orders, Vol. III ‑‑‑Identification parade‑‑ Procedure‑‑‑Identification parade of an accused cannot be conducted by a police officer in police station.

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

‑‑‑‑S.497‑‑‑Bail‑‑‑Mere involving of accused in a case falling under propitiatory clause of S. 497, Cr. P. C. whether a ground for refusal of bail‑‑‑Such involvement of accused was not sufficient for rejection of plea of bail‑‑‑Where case of the accused was that of further inquiry or was covered by any other provisions mentioned in S. 497, Cr.P.C. accused was entitled to be admitted to bail.

Syed Muharnmad Tayyab for Petitioner.

Aftab Ahmad Gujjar for the State.

Date of hearing: 29th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 603 #

2000 Y L R 603

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman, J

MUMTAZ NUSSAIN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.621‑B of 1999, decided on 3rd May, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16/10‑‑‑Bail‑‑‑Abductee during investigation had also been arrayed as an accused in the case and she had been released on bail by Sessions Court‑‑‑Both the accused had claimed themselves to be legally wedded husband and wife‑‑‑Genuineness of Nikah of the spouses could only be determined by t) Trial Court after appropriate assessment, the prosecution evidence‑‑‑Case of accuse being one of further inquiry, he was entitle to the concession of bail‑‑ Accused was, allowed bail accordingly.

Altaf Ibraheem Qureshi for Petitioner.

State. Abdul Hameed Khokhar for the

YLR 2000 LAHORE HIGH COURT LAHORE 604 #

2000 Y L R 604

[Lahore]

Before Ch. Ijaz Ahmad, J

NADEEM KHURSHID---Petitioner

versus

MUHAMMAD SALEEM BHATTI and another---Respondents

Writ Petition No.20362 of 1999, heard or, 25th November, 1999.

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

----S. 15---Appeal against interim order coup not be allowed for such appeals were likely to result in fragmentary decisions which tend to delay the administration of justice.

Ibrahim's case PLD 1975 SC 45, rel.

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

----S.13(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Maintainability---Tentative rent orderInterlocutory in nature---Denial of relationship of landlord and tenant ---Effect-- Generally a Constitutional petition was not competent against interlocutory order passed under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Where, however, the relationship of landlord and tenant was specifically denied, Constitutional petition was competent.

PLD 1963 Lah. 390; PLD 1978 Lah. 1459; 1982 CLC 343; PLD 1983 SC 21 and Muhammad Saleem's case 1998 CLC 1883 ref.

----Judge must wear all the laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 and Salma Feroze's case PLD 1992 SC 263 ref.

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

----S.13(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Maintainability---Tentative rent order-- Relationship of landlord and tenant denied-- Rent Controller passed tentative rent order without deciding the assumption of jurisdiction in the matter---Validity---Rent Controller acted in a wholly fanciful and arbitrary manner---Such a conduct could not evidently be approved of, as the same would not advance ends of justice and might work 1tn1neense hardship and cause irretrievable injury to a party to the litigation--Constitutional petition being maintainable, tentative rent order was set aside in circumstances.

PLD 1967 Kar. 71; 1981 CLC 689; 1982 CLC 2455; 1995 CLC 66; 1987 SCMR 1607; PLD 1995 Lah. 392; 1998 CLC 460 and Muhammad Tufail's case 1993 CLC 655 ref.

Mian lqbal Hussain Kalanuri for Petitioner.

Khalid lqbal Qazi for Respondents.

Date of hearing: 25th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 608 #

2000 Y L R 608

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD MUNIR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1645‑B of 1999, decided on 22nd September, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497 & 561‑A‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11‑‑‑Bail application converted into quashment petition‑‑‑Alleged abducted was admittedly residing with the accused, her husband and two children were born in wedlock‑‑ Case had not been registered at the instance of the blood relations of the abducted‑‑‑Complainant who claimed himself to be the father‑in‑law of the abducted was not related to her‑‑‑Case under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 after the birth of two children could create complications regarding their paternity‑‑‑Keeping the matter pending was not only abuse of the process of the Court, but also against the spirit of Ordinance and Injunctions of Islam‑‑‑Bail application was consequently converted into quashment petition and the F.1.R. and the proceedings in pursuance thereof were quashed being illegal, violative of the Constitution and abuse of process of law/Court‑‑‑Accused was directed to be released forthwith accordingly.

1995 SCMR 1005 rel, Muhammad Ashraf Qureshi for Petitioner.

Muhammad Saleem for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 610 #

2000 Y L R 610

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ANWAR through

Legal Heirs‑‑‑Petitioner

versus

SHEHZAD BASHIR and another‑‑‑Respondents

Regular Second Appeal No.37 of 1986, heard on 13th December, 1999.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.44‑‑‑Entry in Revenue Record‑‑Subsistence‑‑‑Entries made in the Revenue Record would subsist till a new one was lawfully substituted for the same.

Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245 and Azam Khan v. Azad Khan and others PLD 1986 Lah. 275 ref.

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

‑‑‑‑Ss.4 & 21‑‑‑Pre‑emption suit ‑‑‑Pre‑emptor being collateral of the vendor filed suit‑‑Trial Court dismissed suit while Lower Appellate Court decreed the same‑‑Validity‑‑No plea or evidence was available on record on behalf of the vendees to the effect that entries in the Revenue Record were lawfully changed‑‑‑When pre‑emptors proved to be collateral of the vendor of the suit property, their superior right of pre‑emption was proved ‑‑‑Vendees failed to establish themselves to he tenants in the suit land‑‑Judgment and decree of the Lower Appellate Court was not interfered by the High Court in circumstances.

‑‑‑‑S.7(v) &. (vi)‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.18‑‑‑Civil Procedure Code (V of 1908), S:.96‑‑‑Appeal‑‑Maintainability‑‑‑Pecuniary jurisdiction of District Judge ‑‑‑Pre‑emption suit‑‑Agricultural land‑‑‑Suit was valued on the basis of land revenue‑‑‑Value in the plaint was fixed at Rs. 4,052 being 30 times of the Land Revenue assessed‑‑‑Validity‑‑‑District Judge was competent to entertain such appeal and to decide the same accordingly.

Ilahi Bakhsh and others v.

Mst. Bilqees Begum PLD 1985 SC 393 ref.

Syed Muhammad Ali Gillani for Petitioner.

Ch. Imdad Ali Khan for Respondents.

Date of hearing: 13th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 613 #

2000 Y L R 613

[Lahore]

Before Maulvi Anwarul Haq and

Nasim Sikandar, JJ

ALLAH DIWAYA and 15 others‑‑‑Petitioners

versus

CUSTODIAN OF EVACUEE PROPERTY

PUNJAB, LAHORE and 11 others‑‑‑Respondents

Writ Petition No. 13‑R of 1990, heard on 26th October, 1999.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑S.4‑‑‑Notification under S.4, Displaced Persons (Land Settlement) Act, 1958‑‑Mortgaged property was owned by non-evacuees‑‑‑Effect‑‑‑Notification under S.4 of Displaced Persons (Land Settlement) Act, 1958, in no way destroyed the rights of no evacuees in the land in which the evacuees had some rights under mortgage.

Muhammad Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1962 SC 284 ref.

(b) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑

‑‑‑‑S.3‑‑‑Limitation Act (IX of 1908), Art. 148‑‑‑Constitution of Pakistan (1973), Art.‑199 ‑‑‑Constitutional petitionRedemption of mortgage‑‑‑Mortgaged property was owned by non‑evacuees‑‑‑Land was mortgaged in the year 1920 to evacuees and application for redemption was filed in year 1963‑‑‑Settlement Authorities refused to redeem the land on the ground that such application was time‑barred ‑‑‑Validity‑‑ Period prescribed for redemption of mortgaged property was 60 years under Art.148 of Limitation Act, 1908 and the application filed by petitioner being within limitation, the land did not vest in the Federal Government.

Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

Sardar Shah Bokhari for Petitioners

Khadim Nadim Malik, Addl. A.‑G. for Respondents Nos. l to 4.

Ch. Abdul Ghani for Respondents Nos.5 to 11.

Mirza Aziz Akbar Baig for Respondent No.5.

Nemo for Respondent No. 12.

Date of hearing: 26th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 617 #

2000 Y L R 617

[Lahore]

Before Khawaja Muhammad Sharif, J

LIAQUAT ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.387 of 1988, heard on 8th September, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302 & 304, Part ‑‑‑Appreciation of evidence‑‑‑Ocular account of occurrence furnished by the eye‑witnesses did not inspire confidence‑‑‑Both the parties had suppressed their roles in the occurrence and had approached the Court with unclean hands‑‑Accused had not even taken any plea in his defence in Trial Court, but the perusal of record showed that he might have committed the murders of both the deceased under grave and sudden provocation after having seen them in an objectionable condition, one of whom was his sister‑‑‑Conviction of accused under 5.302, P. P. C. was altered to one under S.304, Part 1, P. P. C. in circumstances and his sentence of imprisonment for life was reduced to imprisonment already undergone by him which was more than 6‑1 /4 years.

Haji Muhammad Ashraf Butt for Appellant.

Syed Ali Raza for the State.

Date of hearing: 8th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 621 #

2000 Y L R 621

[Lahore]

Before Maulvi Anwarul Haq, J

NAWAB KHAN and others‑‑‑Petitioners

versus

R£HMAT BIBI and others‑‑‑Respondents

Civil Revision No. 1188 of 1996, heard on 21st September, 1999.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 45‑‑‑‑Mutation of inheritance‑‑Validity‑‑‑Plaintiffs were excluded from mutation of inheritance and the same was attested only in the names of the defendants‑‑Said mutation was assailed 33 years after its attestation‑‑‑Trial Court dismissed the suit being time‑barred, whereas the Lower Appellate Court, after holding the mutation as void and illegal, dismissed the appeal on the point of limitation‑‑‑Validity‑‑‑After satisfying the shares of the defendants, the residue had to go to the plaintiffs‑‑‑Revenue Officer, in circumstances, had no authority to exclude the plaintiffs from inheritance‑‑Judgments and decrees of both the Courts below suffered from material irregularity for Courts below refused to exercise the jurisdiction vesting in them on a wrong decision of the questions of law involved in the suit and as such the same were not sustainable.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 3‑‑‑Dismissal of suit as barred by time‑‑‑Principles‑‑‑Suit filed beyond the period of limitation prescribed in the Schedule to Limitation Act, 1908, shall be dismissed.

‑‑‑‑Inheritance‑‑‑Requirement of mutation‑‑Necessity‑‑‑When a Muslim owner dies, his estate passes on to the legal heirs in accordance with the Quranic Injunctions‑‑No mutation or any other act of the State or individual is required for acquisition of the proprietary rights by inheritance.

Ghulam Ali and 2 others v.

Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

(d) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.45‑‑‑Void mutation‑‑‑Suit against such mutation‑‑‑Limitation‑‑‑No limitation was prescribed for filing suit in respect of a void mutation.

Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462 and Haji through his Legal Heirs and others v. Khuda Yar through his Legal Heirs PLD 1987 SC 453 rel.

(e) Document‑

‑‑‑‑ Contents of document‑‑‑Knowledge of contents of document cannot be attributed to a person attesting the same as witness.

Ashiq Hussain and others v. Nisar Ali and others 1969 SCMR 341 rel.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 ref.

(f) Co‑sharer‑‑‑

‑‑‑‑Joint possession‑‑‑Filing of suit‑‑‑Scope‑‑Where co‑sharers of a property are in the joint possession with the other co‑sharers, option lay with such co‑sharers to file suit as and when they feel threatened by adverse entries in the Revenue Record.

Shamas‑ud‑Din v. Mst. Jewan and others 1986 MLD 764 ref.

Maqsood‑us‑Salam Khan Joyia for Petitioners.

Sh. Naveed Sheharyar for Respondents.

Date of hearing: 21st September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 625 #

2000 Y L R 625

[Lahore]

Before Maulvi Anwarul Haq, J

MOONDA and another‑‑‑Petitioners

versus

IMAM and 5 others‑‑‑Respondents

Civil Revision No. 2048‑D of 1986, heard on 29th July, 1999.

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.45‑‑‑Change in entries in Revenue Record‑‑‑Validity‑‑‑Entries in the record were changed and the plaintiffs were dispossessed of their land‑‑‑Suit for possession was filed by the plaintiffs, the Trial Court partially decreed the suit and appeal filed before the Lower Appellate Court was dismissed‑‑Manner and circumstances in which the entries could be changed were fully detailed in S.45, West Pakistan Land Revenue Act, 1967‑‑‑Where none of the circumstances as mentioned in S.45, West Pakistan Land Revenue Act, 1967, existed, or even alleged to have existed, the entries appearing in Revenue Record in favour of plaintiffs would be deemed to be continuing and any entry to the contrary in favour of defendants would be of no legal effect.

Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245 and Azam Khan v. Azad Khan and others PLD 1986 Lah. 275 ref.

Mrs. Farzana Shehzad Khan for Petitioners.

Abdul Majid Khan for Respondents.

Date of hearing: 29th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 628 #

2000 Y L R 628

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman, J

GHULAM MURTAZA alias KALA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1202‑B of 1999, decided on 6th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S. 458/ 380/ 109‑‑‑ Bail‑‑‑ Supplementary statement of complainant recorded by police during investigation had entirely changed the prosecution story narrated in the F.I.R., which by itself was sufficient to bring the case of accused within the ambit of further inquiry ‑‑‑Co‑accused had already been released on bail by High Court and case of accused being at par with their case, he also deserved concession of bail on the rule of consistency‑‑ Accused was enlarged on bail in circumstances.

Altaf Ibraheem Qureshi for Petitioner.

Kamran Bin Lateef for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 629 #

2000 Y L R 629

[Lahore]

Before Zafar Pasha Chaudhry. J

LIAQAT ALI ---Petitioner

versus

MUHAMMAD SALEEM SHAHZAD

and another---Respondents

Writ Petition No.2383 of 1996, heard on 31st January, 2000.

Criminal Procedure Code (V of 1898)---

----Ss.249-A, 417(2-A), 439 & 439-A---Penal Code (XLV of 1860), S.435---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal against acquittal--- Petitioner/accused was acquitted by Magistrate during course of proceedings, on application filed by him under 5.249-A, Cr. P. C --Appellate Court accepting revision filed by complainant against acquittal remanded case to decide the same afresh after hearing the parties---Validity---proper course for complainant, if aggrieved by order of acquittal was to file appeal against said order provided under S. 417, Cr. P. C ---Revision filed by complainant in presence of remedy of appeal, against order of acquittal, was not competent---Order of Appellate Court accepting revision of complainant against order of acquittal passed by Magistrate, was set aside in circumstances.

Rana Muhammad Arif for Petitioner.

Nemo for Respondent No. 1.

M. Bilal Khan, Addl. A.-G. with Malik Muhammad Aslam for the State.

Date of hearing: 31st January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 631 #

2000 Y L R 631

[Lahore]

Before Iftikhar Ahmad Cheema and

Asif Saeed Khan Khosa, JJ

ZAHEER AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.5971-B of 1999, decided on 8th November, 1999.

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

----S.497(1)---Bail, grant of---Statutory delay in conclusion of trial---Concession of bail on the ground of statutory delay was subject to the conditions provided in S.497(1), third proviso namely that such delay in the trial of the case should not have been occasioned by any act or omission of the accused or any other person acting on his behalf.

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

----S.497(l), third proviso---Penal Code (XLV of 1860), S.302/ 324/ 148/ 149---Bail, grant of---Statutory delay in trial---Delay caused by accused---Accused consumed 17 months to engage a counsel---Prosecution did not obtain even a single adjournment ---Effect--Where the accused was chiefly responsible for inordinate delay in the disposal of the case, such accused could not be allowed to take benefit under S.497(1), third proviso, Cr.P.C. whereby accused was entitled to bail as a matter of right---Bail was refused in circumstances.

Akhtar Abbas v. The State PLD 1982 SC 424 rel.

Ch. Nazir Muhammad for Petitioner.

Ghulamullah Khan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 633 #

2000 Y L R 633

[Lahore]

Before Maulvi Anwarul Haq and

Nasim Sikandar, JJ

RIAZ HUSSAIN SHAH by Legal

Heirs‑‑‑Petitioner

versus

CHIEF LAND COMMISSIONER, PUNJAB, LAHORE and others‑‑‑Respondents

Writ Petitions Nos. 1024 and 1025 of 1985, heard on 6th December, 1999.

(a) Muhammadan Law‑‑‑

‑‑‑‑Inheritance‑‑‑Devolution of estate of a Muslim deceased‑‑‑Scope‑‑‑Estate of the last male owner comes to vest in his heirs, the moment he breaths his last‑‑‑Under the Islamic jurisprudence no State or individual intervention is required or is necessary for such devolution upon the heirs of the deceased defined in the Holy Quran in accordance with the shares allocated to them.

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

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petitionMuhammadan Law ‑‑‑Inheritance‑‑Petitioners, he daughters of the deceased were excluded from the inheritance of their father, by the respondent‑Authorities on the ground that the petitioners approached the Court after the date stipulated in the Land Reforms Legislation‑‑‑Validity‑‑‑Such orders of the respondent‑Authorities excluding the petitioners from the estate of their deceased father was illegal, without lawful authority and perverse‑‑‑Orders of the respondent Authorities were set aside accordingly.

Muhammad Alamgir Amjad for Petitioners.

Muhammad Ashfaq Ahmad for Respondents Nos.5, 6 and 9.

Tahir Wasti, A.A.‑G. for the Official Respondents.

Nemo for the Remaining Respondents.

Date of hearing: 6th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 635 #

2000 Y L R 635

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUSAF and 7 others‑‑‑Petitioners

versus

PROVINCE OF THE PUNJAB through

DISTRICT COLLECTOR, SAHIWAL

and others‑‑‑Respondents

Civil Revision No.574 of 1999, heard on 2nd December, 1999.

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

‑‑‑‑Preamble‑‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2‑‑‑Custom (Punjab)‑‑‑Limited estate‑‑‑Scope‑‑‑Limited estate under Colonization of Government Lands (Punjab) Act, 1912, is at par with a customary limited estate and subject to provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

The Federation of Pakistan v. Muhammad Ishaque and another PLD 1983 SC 273 rel.

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

‑‑‑‑S.2‑‑‑Civil Procedure Code (V of 1908), O.XXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Vendor of the suit land was widow of the deceased and being a limited owner in the estate transferred the suit property in favour of the petitioners/plaintiffs‑‑‑Both the Courts below declined to grant interim injunction to the petitioners/plaintiffs‑‑Validity‑‑‑Limited estate of the vendor stood terminated on 31‑12‑1962 by virtue of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962‑‑‑By operation of law, the vendor ceased to be a limited owner as her estate stood terminated‑‑‑Initial alienation made by the vendor beyond her share in the estate of the deceased was void‑‑Respondents/defendants did not contest the prima facie claim of the petitioners/plaintiffs to the extent of the vendor's share in the suit land‑‑‑Interim injunction was granted to the extent of the share of the vendor in the estate ,accordingly.

Muhammad Naveed Hashmi for Petitioners.

Muhammad Siddique Kamyana for Respondents Nos.2 to 5.

Nemo for the Remaining Respondents.

Date of hearing: 2nd December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 646 #

2000 Y L R 646

[Lahore]

Before Ch. Ijaz Ahmad, J

UNIVERSITY OF THE PUNJAB, OLD CAMPUS, LAHORE through

the Controller of Examinations and another‑‑‑Petitioners

versus

KHUDA BAKHSH and 3 others‑‑‑Respondents

Civil Revision No. 394/13 of 1988, heard on 14th October, 1999

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

‑‑‑‑S.115‑‑‑Educational institution‑‑‑Revision petition‑‑‑Award list in conduct of examination‑‑‑Cutting in result sheet was a basic document and its authenticity could not be doubted‑‑‑Award list was not relied upon by Courts below who had given benefit regarding cutting in result sheet to the candidate who was beneficiary thereof‑‑‑Such finding of the Courts was not in accordance with law‑‑‑Both Courts below had also given benefit to the candidate without adverting to principle of law that nobody should be entitled to get benefit of his own misdeed‑‑Judgments of Courts below were set aside by High Court in exercise of its Revisional jurisdiction.

Akhtar Ali's case 1979 SCMR 549; PLD 1992 SC 324; PLD 1973 SC 326 and 1984 CLC 3316 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Person seeking justice equity must come to Court with clean hands and must be ready to do justice.

PLD 1992 SC 324 and PLD 1973 SC 326 ref.

‑‑‑‑Duty and conduct of Court‑‑‑Court must wear all the laws of the country on the sleeves of its robe and failure of counsel to properly advise the Court was not complete excuse in the matter.

PLD 1969 SC 278 and PLD 1992 SC 263 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 72, 73 & 74‑‑‑Primary evidence‑‑Primary evidence must be given weight over secondary evidence.

(e) Illegal order‑‑

‑‑‑‑Effect‑‑‑If order was illegal, perpetual rights could not be gained on basis of said illegal order.

Jalal‑ud‑Din's case PLD 1992 SC 207 ref.

Shahid Saeed for the Petitioners.

Atif Amin for Respondent No. 1.

Date of hearing: 14th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 652 #

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YLR 2000 LAHORE HIGH COURT LAHORE 658 #

2000 Y L R 658

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 113 of 1993, heard on f2th April, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149 & 148‑‑‑Appreciation of evidence‑‑‑Delay of four days in lodging the F.I.R. was not fully explained by the prosecution‑‑‑Matter had been reported to the police after due deliberation and consultation‑‑‑Long‑standing enmity between the parties was admitted‑‑‑Accused had also received fire‑arm injuries at the hands of complainant party in. cross firing‑‑‑No empty cartridge having been secured by the police from the spot during the course of investigation, alleged recovery of gun from the accused was of no consequence‑‑‑False implication of accused, in circumstances, could not be ruled out‑‑‑Accused were acquitted accordingly.

Muhammad Zafarullah Cheema for Appellants.

A.H. Masood for the State.

Mian Sikandar Hayat ifor the Complainant.

Date of hearing: 12th April, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 666 #

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YLR 2000 LAHORE HIGH COURT LAHORE 683 #

2000 Y L R 683

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD BOOTA

alias KARAMAT‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 635 and Criminal Revisions Nos. 531 and 538 of 1993, heard on 21st July, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Ocular account of occurrence and evidence of recovery had been disbelieved by Trial Court‑‑‑Medical evidence did not support the prosecution, rather had made its case further doubtful‑‑‑Enmity existed between the parties and motive appeared to have been concocted to implicate the accused in the case falsely, which did neither ring true nor appealed to reason‑‑‑Prosecution, thus, had failed to prove its case beyond doubt‑‑‑Accused was acquitted accordingly.

Muhammad Ashraf and others v. The State 1998 SCMR 279, Ismail and others v. The State 1987 PCr.LJ 1390; Habib‑ur-?Rehman and others v. The State 1996 PCr.LJ 870; The State v. Muhammad Sharif and 3 others 1995 SCMR 635 and Mst. Hajul v. The State PLD 1962 (W.P.) Kar. 532 ref.

Hafiz Khalil Ahmad and Lal Khan Baloch for Appellant.

Muhammad Yaqoob Pannu for the Complainant.

Abdul Rauf Farooqi for the State.

Date of hearing: 21st July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 688 #

2000 Y L R 688

[Lahore]

Before Sheikh Abdur Razzaq and

Mian Saqib Nisar, JJ

SHAHID IQBAL and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.34 .of 1995, heard on 18th May, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/ 34/ 109‑‑‑Appreciation of evidence‑‑‑Accused had not been attribute any role in the occurrence except that they had instigated their co‑accused (absconder) who had committed the murder of five persons‑‑‑Said co‑accused according to evidence on record had already committed murder of nine persons and he did not require airy instigation to commit the murder of some other, persons‑‑‑Assigning the role of instigation to the accused, therefore, was nothing but fabrication and concoction of some evidence to involve them in the case who had claimed themselves to be fast friends of the aforesaid co‑accused‑‑‑No reliable, cogent and convincing evidence had been produced by the prosecution showing involvement of accused in the commission of the offence‑‑‑Accused were acquitted in circumstances.

Sh. Zamir Hussain for Appellants.

Ehsan‑ul‑Haq Chaudhry for the Complainant.

Zaka Farooq Sheikh for the State.

Date of hearing: 18th May, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 692 #

2000 Y L R 692

[Lahore]

Before Asif Saeed Khan Khosa, J

ABDUL HAMEED‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.9 and Criminal Miscellaneous Application No. 1 of 2000, decided on 13th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.514 & 515‑‑‑Forefeiture of bail bond and imposition of penalty on surety‑‑Petitioner stood surety for accused who was granted pre‑arrest interim bail‑‑‑Accused appeared before Court on the next date of hearing‑‑‑Accused having not appeared on subsequent date of hearing due to his illness, case was adjourned on his request, but thereafter accused did not appear before the, Court‑‑‑Accused who absented from Court, his pre‑arrest bail was dismissed and notice was issued to petitioner/surety‑‑‑Court being dissatisfied with reply of surety, forfeited bail bond and imposed penalty upon petitioner/surety‑‑‑Petitioner/surety assailed order of Court, contending that bail bond submitted by him was only in respect of accusers appearance before Court on very next date fixed for appearance after granting interim pre‑arrest bail and not beyond that and that on that very date accused having appeared before Court, surety could not be penalised for non‑appearance of accused on any date after the said date‑‑‑Wording of bail bond submitted by surety had clearly provided that surety had undertaken to produce accused before Court not only on said date, but also on every date of hearing till decision of case‑‑‑Order forfeiting bail bond and imposing penalty on surety passed by Court below not suffering from any jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Abdul Hafeez v. The State 1993 MLD 541 and Sardar Muhammad v. The State 1998 PCr.LJ 236 ref.

Muhammad Hussain Awan for Appellant.

YLR 2000 LAHORE HIGH COURT LAHORE 695 #

2000 Y L R 695

[Lahore]

Before Raja Muhammad Khurshid, J

TARIQ MALIK ---Petitioner

versus

MUHAMMAD SARFRAZ and 2 others---Respondents

Criminal Miscellaneous Application No.6458-CB of 1998, decided on 27th May, Criminal Procedure Code (V of 1898)---

---S.497(5)---Penal Code (XLV of 1860), 452/380/337-A(ii)---Cancellation of pre-arrest bail---Accused were closely related to e complainant party---Civil litigation over property was going on between the parties accused had already joined police investigation and the case had been sent to E Court for trial---Accused were not previous convicts and they had not misused concession of bail granted to them by pl Court---No case for cancellation of bailing been made out against accused, the 'lion was dismissed.

Manzoor Qadir for Petitioner.

Z. H. Raja for Respondents.

Ch. Nizam-ud-Din Arif for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 698 #

2000 Y L R 698

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

KHALID MEHMOOD and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.628 of 1994, heard on 20th April, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Accused had a strong motive to kill the deceased persons‑‑‑Presence of eye‑witnesses on the spot was natural ‑‑‑Ocular account was corroborated by the report of Fire‑arm Expert‑‑‑Fire‑arms recovered from the accused had matched with the crime empties secured from the place of occurrence ‑‑‑Eyewitnesses had no grudge against the accused so as to implicate them falsely in the case‑‑Prosecution had established its case against the accused beyond any shadow of doubt‑‑Accused had murdered three innocent persons and they deserved pro leniency‑‑‑Conviction and sentence of death awarded to accused by Trial Court were upheld in circumstances.

Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 ref.

M. A. Zafar for Appellants.

Ch. Muhammad Bashir, A.A.‑G. with A.H. Masood for the State.

Rai Muhammad Hayat Kharal for the Complainant.

Date of hearing: 20th April, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 703 #

2000 Y L R 703

[Lahore]

Before Ch. Ijaz Ahmad, J

NASRULLAH‑‑‑Petitioner

versus

THE DISTRICT JUDGE, KHUSHAB and another‑‑‑Respondents

Writ Petition No.4729 of 1999, heard on 16th November, 1999.

(a) Muhammadan Law‑‑‑

‑‑‑‑ Marriage (Nikah)‑‑‑Proof‑‑‑Admission of marriage by the parties‑‑‑Non‑appearance of witnesses in Court‑‑‑Effect‑‑‑Even if it was disclosed that the marriage was contracted in presence of witnesses, qualified as such, unless such witnesses appeared in the Court and testified in support of marriage, decree could not be passed merely on admission of such marriage by the parties.

Hedaya Vol. I, p.26 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.59‑‑‑Opinion of expert‑‑‑Failure to produce Finger Prints Expert in witness‑box and mere filing of report of such expert‑‑Validity‑‑‑Report of Finger Prints Expert was inadmissible unless he was called as a witness and subjected to cross‑examination.

Wadhawa's case AIR 1928 Lah. 427; Allah Dino's case 1974 SCMR 411 and Muhammad Hussain's case 1970 SCMR 506 ref.

‑‑‑‑Legitimacy‑‑‑Courts would be reluctant to stigmatize a child as illegitimate.

Shah Nawaz's case PLD 1976 SC 767; Hameedan Begum's case PLD 1975 SC 624 and Manzoor Hussain's case 1992 SCMR 1191 ref.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Suit for jactitation of marriage and restitution of conjugal rights‑‑‑Petitioner filed the latter suit while the respondent filed the former‑‑Respondent denied the factum of marriage with the petitioner, rather she claimed to be the wife of some other person and in that wedlock a child was born‑‑‑Both the Courts below dismissed the suit filed by the petitioner‑‑‑Validity‑‑‑Where such petition was accepted then the child was to be declared as illegitimate and the same was not in accordance with the Injunctions of Islam‑‑Lower Appellate Court had given findings of fact against the petitioner and High Court had no jurisdiction to substitute its decision in place of the decision of the Tribunal below while exercising Constitutional jurisdiction‑‑‑Petition was dismissed in circumstances.

Shah Nawaz's case PLD 1976 SC 767; Hameedan Begum's case PLD 1975 SC 624; Manzoor Hussain's case 1992 SCMR 1191; Handbood of Muhammadan Law by Tayyab Jee, 1996 Edn.; Mussaduq's case PLD 1973 Lah.600 and PLD 1949 PC 261 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.2A‑‑‑Injunctions of Islam‑‑Applicability‑‑‑Duty and obligation of Courts to decide the cases in accordance with Injunctions of Islam after the addition of Art. 2A of the Constitution.

(f) Muhammadan Law‑‑‑

‑‑‑‑Marriage‑‑‑Presumption of‑‑‑In the absence of direct evidence on the point, Muslim law presumes in favour of marriage provided other evidence existed to .show that they have lived together as a man and wife for long time.

Handbook of Muhammadan Law by Tayyab Jee, 1996 Edn. ref.

Shabbir Hassain Dhilloon for Petitioner.

Malik Muhammad Imtiaz Mahl for Respondents

Date of hearing; 16th November, 1999

YLR 2000 LAHORE HIGH COURT LAHORE 718 #

2000 Y L R 718

[Lahore]

Before Ch: Ijaz Ahmad, J

ABDUR RASHID NADIR‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB through Chief

Secretary Government of Punjab, Civil Secretariat, Lahore and 8 others‑‑‑Respondents

Writ Petition No.12996 of 1999, heard on 14th October, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.l3‑‑‑Expression "prosecution" as appearing in Art. 13 of the Constitution is not synonymous with the word "investigation".

(b) Words and phrases‑‑‑

‑‑‑ "Prosecution "‑‑‑Meaning.

Webster's New International Dictionary and Muhammad Abbas's case PLD 1981 SC 642 ref.

‑‑‑‑Arts.l3 & 199‑‑‑Constitutional petition‑‑Quashing of show‑cause notice‑‑‑Successive investigations‑‑‑Validity‑‑‑Petitioner was awarded punishment under Efficiency and Discipline Rules‑‑‑ Anti‑Corruption. Authorities issued show‑cause notice to the petitioner‑‑‑Validity‑‑‑Departmental and criminal proceedings could be initiated independently of each other‑‑‑Provisions of Art.13 of the Constitution were not attracted in the case‑‑‑Constitutional petition being not maintainable against show‑cause notice was dismissed in circumstances.

Syed Alamdar Hussain Shah's case PLD 1978 SC 121; PLD 1990 Kar. 286; 1993 SCMR 2177 and Shugufta Begum's case PLD 1989 SC 360 ref.

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

‑‑‑‑S.154‑‑‑ Investigation‑‑‑ PurposePrerogative of Investigating Authorities to investigate the matter‑‑‑Matter is not only investigated to connect the accused with the commission of offence, but it is the duty of the Investigating Officer to collect the evidence to bring out truth to save the innocent persons from the agony of endless investigation and trial.

Shahnaz Begums case PLD 171 SC 677 rel, Muhammad Riaz Lone for Petitioner.

Naveed Anwar Naveed for Respondents.

Date of hearing: 14th October, 1999

YLR 2000 LAHORE HIGH COURT LAHORE 721 #

2000 Y L R 721

[Lahore]

Before Iftikhar Hussain Chaudhry and

Mian Muhammad Najam‑uz‑Zaman, JJ

SHER ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.363 and Murder Reference No. 182 of 1998, heard on 1st November, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/ 148/ 149/ 337‑A(i)/ 149/ 337‑L (ii)/149‑‑‑Sentence‑‑‑Appreciation of evidence‑‑‑Parties belonged to one brotherhood and were co‑sharers in disputed land‑‑‑No history of family feud existed between the parties‑‑Fight between parties was sudden in character and was not premeditated one‑‑‑Accused had fired at the deceased, but circumstances in which he had done so, did not warrant awarding of maximum sentence of death to him‑‑‑One of the co‑accused, injured during the incident, was not named in F. L R., but was made accused at a subsequent stage‑‑‑Other co-accused was not ascribed any injury to any of the victims and his involvement in the case appeared to be result of deliberation and premeditation by the complainant party‑‑Remaining co‑accused had caused insignificant injuries to the injured prosecution witness‑‑‑Since fight between the parties was sudden, there was no justification for convicting accused persons for‑ offence under S.149, P. P. C. ‑‑‑Death sentence awarded to principal accused by Trial Court was converted into imprisonment for life‑‑Co‑accused who was injured during incident and was not named in the F.I.R. and the other who was not ascribed any injury to any of the victims were acquitted of the charge and remaining co‑accused who were convicted under S.337‑A(i)/337‑L(ii), P.P.C., were sentenced to period already served.

Ijaz Hussain Batalvi for Appellant, Shahid Hussain Qadri for Respondents.

S.D. Qureshi for the State.

Date of hearing; 1st November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 728 #

2000 Y L R 728

[Lahore]

Before Maulvi Anwarul Haq and

Nasim Sikandar, JJ

ALLAH YAR---Petitioner

versus

CUSTODIAN OF EVACUEE

PROPERTIES, PUNJAB, LAHORE and others---Respondents

Writ Petitions Nos.293 and 295 of 1984, heard on 1st December, 1999.

(a) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----S.3---Limitation Act (IX of 1908), S.13--Property mortgaged with non-Muslim evacuees, redemption of---Limitation---Where the period of 60 years had not expired in the year 1947 when the said evacuees left the country, the principle underlying S.13 of Limitation Act, 1908 would be applicable.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S.4---West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S.3---Property mortgaged with non Muslim evacuees---Effect---Right or interest of the Muslim owners in property mortgaged with non-Muslim evacuees was never intended to be destroyed under the provisions of Displaced Persons (Land Settlement) Act, 1958 and other laws governing evacuee property---Where the property was so mortgaged with the evacuees, it was only the interest of the evacuee that was acquired and not that of the non-evacuees Muslim owners.

Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384 and Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

----S.3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Redemption of property mortgaged with non Muslim evacuees---Disputed properties were mortgaged with non-Muslim evacuees in the years 1890 and 1894 respectively---Petitioners filed applications for redemption of such properties but the same were allotted to the respondents and the applications of the petitioners were dismissed by the Authorities- Validity---Authorities failed to decide the question of limitation in accordance with law and its settled interpretation---Orders of the Authorities were set aside accordingly.

Muhammad Shafi v. Ghulam Qadir and others PLD 1978 Lah. 71; Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384 and Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

Sardar Tariq Sher Khan for Petitioner.

Nemo for Respondents

Date of hearing. 1st December

YLR 2000 LAHORE HIGH COURT LAHORE 730 #

2000 Y L R 730

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

TAHIR alias KAKA and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.727 of 1995, heard on 26th May, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.436/149‑‑‑Appreciation of evidence‑‑Delay of one month and seven days in making the F. I. R. had not been fully explained by the complainant either before the police or before the Trial Court and the same was fatal to the prosecution case‑‑‑No independent witness from the village was cited or produced by the prosecution before the Trial Court ‑‑‑Eyewitnesses were closely related inter se and were inimical towards the accused‑‑‑Conduct of prosecution witnesses at the time of occurrence was most unnatural‑‑‑Prosecution evidence had material contradictions and improvements‑‑‑Complainant had implicated all the close relatives of the accused in the case‑‑‑Recoveries effected in the case at the instance of accused being joint were inadmissible in evidence‑‑‑Complainant had the motive for false implication of accused in the case‑‑‑Ocular testimony was not corroborated by any independent circumstance‑‑‑Accused were acquitted in circumstances.

Ch. 1jaz Ahmad for Appellants.

Imtiaz Ahmad Kaifi, A.A.‑G. for the State, Rana 1jaz Ahmad Khan for the Complainant.

Date of hearing: 26th May, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 737 #

2000 Y L R 737

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.435 of 1993, heard on 15th April, 1999.

Penal Code (XLV of 1860)---

----Ss. 302 & 304---Appreciation of evidence---Eye-witnesses examined in the complaint were close relatives of the deceased---Two versions regarding the occurrence had come on record, one in the F.I.R. lodged by the complainant about the accidental death of the deceased and the other in the complaint also filed by him about his intentional murder by the accused--Version given in the F.I.R. was supported b%, the statement of accused recorded under S.342, Cr. P. C. and also by the Court witnesses who had no grudge or ill-will against the complainant party---Version put forward by the accused, when put in juxtaposition with the other version, appeared to be more plausible and believable and the same was to be given preference---Conviction of accused under S. 302, P. P. C. was consequently altered to S. 304, P. P. C. the case being of accidental firing, and his sentence of imprisonment for life was reduced to 10 years' R.I. in circumstances.

Malik Riaz Khalid Awan for Plaintiff.

Ch. Haider Bukhsh for the Complainant.

Farrukh Humayun for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 756 #

2000 Y L R 756

[Lahore]

Before Asif Saeed Khan Khosa, J

NADEEM SARWAR‑‑‑Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION SADAR, HAFIZABAD and 2 others‑‑‑Respondents

Writ Petition No.261 and Civil Miscellaneous Applications Nos. 1 and 2 of 2000, decided on 13th January, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.279/322‑‑‑Criminal Procedure Code (V of 1898), Ss. 154 & 156‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Deletion of charging section of P. P. C. from F. 1. R. ‑‑‑Exercise of‑‑Accused/petitioner against whom F.I.R. under S.279/322, P. P. C. was registered had prayed through Constitutional petition that S.322, P. P. C. be ordered to be deleted from F. 1. R. as said section was not attracted to the facts alleged in FI.R.‑‑‑Validity‑‑Controlling the insertion or deletion of a section of a penal statute in Column No. 3 of F.I.R. was not function of High Court while exercising its Constitutional jurisdiction under Art. 199 of Constitution of Pakistan (1973)‑‑‑All that was required in such‑like situation was that accused was to convince Investigating Officer that a certain provision invoked in F.I.R. could not be pressed against him as same was not attracted to allegations contained in narrative part of F. I. R. ‑‑‑Real F. I. R. was the narrative part of FI.R. and not Columns Nos. 1 to 5 thereof which were to be filled in by a Moharrir or other police official‑‑‑Similar objection could surely be raised by accused not only before Investigating Officer, but also before Court dealing with his bail application. or holding his trial‑‑‑Constitutional petition would not lie in High Court to interfere in the mutter at such stage.

(b) Criminal Procedure Code (V of 1898)

‑‑‑‑S. 156‑‑‑Investigation case‑‑‑Association of accused ‑‑‑Statutory duty of every Investigating Officer of a criminal case to associate accused person with investigation and also to record his version of incident in question.

Tariq Shamim for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 763 #

2000 Y L R 763

[Lahore]

Before Ch. Ijaz Ahmad, J

REHMAT ALI ‑‑‑Appellant

versus

NABI AHMAD and 2 others by

Legal Heir‑‑‑Respondents

Regular Second Appeal No. 665 of 1977 heard on 9th December, 1999.

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

‑‑‑‑S.22‑‑‑Pre‑emption suit‑‑‑Extension of time for deposit of pre‑emption amount‑‑High Court had ample powers to extend the time while deciding the appeal‑‑‑Where Appellate Court was to dismiss the appeal, it should allow reasonable time to make deposit of pre‑emption money.

Bhai Khan's case 1986 SCMR 849; 1984 SCMR 325; 1982 SCMR 824; 1976 SCMR 420; AIR 1970 SC 750; PLD 1982 SC 282 and 1981 SCMR 433 rel.

(b) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑Ss.21 & 22‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑Failure to deposit enhanced pre‑emption money ‑‑‑Pre-emptor filed pre‑emption suit which was decreed by Trial Court ‑‑‑Pre‑emptor deposited pre‑emption money in time fixed by the Trial Court ‑‑‑Vendee filed appeal before Lower Appellate Court and prayed for enhancement of pre‑emption money‑‑‑Lower Appellate Court enhanced the pre‑emption money in ex parte proceedings in absence of pre‑emptor ‑‑‑Appeal was filed in time but enhanced pre‑emption money was not deposited by pre‑emptor in time ‑‑‑Effect‑‑ Pre‑emptor when filed application for obtaining certified copy of judgment and decree of Lower Appellate Court, date fixed for deposit of such amount had already expired‑‑‑High Court was competent to extend time fixed by Lower Appellate Court for depositing the money‑‑‑Where failure on part of the pre‑emptor to deposit the enhanced amount was not due to any negligence on his part, nor such default was intentional, High Court was justified in granting further time for deposit of the money.

1976 SCMR 502 and PLD 1966 SC 893 distinguished.

PLD 1990 SC 813; PLD 1989 SC 583; PLD 1979 SC 917 and Khan Shah Muhammad Khan's case PLD 1961 SC 743 ref.

Masood Mirza for Appellant.

Taki Ahmad Khan for Respondents.

Date of hearing: 9th December, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 793 #

2000 Y L R 793

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

ABID HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 128, Murder Reference No. 19 of 1996 and Criminal Miscellaneous No. 1 of. 1999, heard on 31st January, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 311‑‑‑Partial compromise‑‑Accused had been sentenced to death under S. 302(b), P. P. C. by the Trial Court for the murder of the deceased‑‑‑All the legal heirs of the deceased except his widow had pardoned the accused and waived their right of "Qisas" and. it was a partial compromise‑‑‑Conviction of accused under S. 302 (b), P. P. C. was altered to one under 5.311, P. P. C. in circumstances and he was sentenced to undergo 14 years' R.1. there under with the benefit of S. 382‑B, Cr. P. C.

Noor Muhammad Chishti for Appellant.

Ghazanfar Ali Khan for the Complainant.

Tariq Hassan Khan for the State.

Date of hearing: 31st January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 799 #

2000 Y L R 799

[Lahore]

Before Maulvi Anwarul Haq, J

KHARAIT ULLAH and 6 others--Appellants

versus

MUHAMMAD NASEEB---Respondent

Regular Second Appeal No. 443 of 1980. heard on 17th May, 1999.

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

----S.15---Suits Valuation Act (VII of 1877), S.3---Civil Procedure Code (V of 1908), S.100---Act of Court---Consequences---Suit for pre-emption ---Appeal---Limitation---Trial Court wrongly assessed value of pre-emption suit which became beyond appellate jurisdiction of the District Judge---Plaintiff affixed court fee accordingly---Plaintiff, on dismissal of suit, filed appeal in the High Court but by that time pecuniary jurisdiction of District Judge had increased and appeal was returned for its filing before District Judge---Contention was that vlaue of the suit in fact according to law was within the jurisdiction of District Judge, appeal should have been filed in that Court and when appeal was filed before District Judge after its return from High Court same had become time-barred---Validity---Appellant field appeal in High Court on account of wrong assessment of value of suit by the Trial Court and as such act of Court would cause no wrong to a party---Appeal, in circumstances, was held to have been filed within time.

(b) Administration of justice---

----Act of Court---A party cannot be made to suffer for the wrong committed by Court. Ellahi Bukhsh v. Bilquees Begum PLD 1985 SC 393; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; East Suffolk Rivers Catchment Board v. Kent and another 941 AC 74 and Rodger v. The Comptoir d' Escompte de Paris (1871) 3 PC 465 ref.

Ch. Hamid-ud-Din for Appellants.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 17th May, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 809 #

2000 Y L R 809

[Lahore]

Before Khalil-ur-Rehman Ramday

and Asif Saeed Khan Khosa, JJ

SADIQ HUSSAIN SHAH---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No. 149 and Murder Reference No. 76 of 1993, heard on 16th October, 1999.

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

----Ss.302, 307 & 353---Appreciation of evidence---Occurrence had taken place in daylight ---F.I.R. had been promptly lodged wherein accused had been specifically nominated as the principal perpetrator of the crime---Eye-witnesses including an injured witness whose presence at the place of occurrence during the incident could not be doubted, had absolutely no animus against the accused for his false implication in the case---Ocular evidence was consistent regarding the main incident especially the role played by the accused therein---Minor improvements or contradictions found in the statements of witnesses were negligible and the same did not detract from the veracity of their statements who were responsible police officials---Medical evidence had confirmed the time of occurrence, weapon used by -the culprit and the locale of injuries sustained by the deceased and had provided sufficient support to the ocular occurrence---Eye witnesses were not only independent and disinterested but also worthy of implicit reliance and their failure to explain one of the injuries sustained by the deceased had not impaired their credibility---Mounting an assault on the police amounted to mounting an assault on the State and its authority--Accused had killed the deceased by firing while he was performing his official duties regarding avoidance of breach of peace and neither he nor police had shown any highhandedness to the accused-- Accused, thus, did not deserve any leniency in the matter of sentence and such leniency, if extended to him, could amount to giving a licence to the citizens to assault or kill functionaries of the State whenever exercise of jurisdiction by them was perceived by the citizens to be unjustified---Convictions and sentences of accused including the death sentence were upheld in circumstances.

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

----Ss. 302, 307 & 353---Appreciation of evidence---Motive---Absence of motive when not fatal to case of prosecution---Evidence of motive serves as a pointer to the culprit and helps to locate and identify a possible assailant in a case requiring corroboration to the ocular account, but where the ocular account is furnished by completely independent witnesses found by the Court to be entirely reliable, then absence of an ongoing or pre-existing motive is not necessarily fatal or detrimental to the prosecution's case.

----Ss. 302, 307 & 353---Appreciation of evidence---Corroboration by evidence of recovery of weapon of offence lacking--Effect---Where the statements of eye-witnesses in a criminal case commend themselves for whole-hearted reliance on account of their disinterestedness as well as consistency, then lack of corroboration from the evidence of recovery of weapon of offence does not impair or affect the prosecution's case against the culprit with any degree of seriousness.

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

----Ss. 302, 307 & 353---Appreciation of evidence---Principle---Appreciation of evidence in criminal cases depend entirely on the perceptions of the Court regarding veracity of the witnesses produced during the trial.

Mian Aftab Farrukh for Appellant.

A. H. Masood for the State.

Date of hearing: 26th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 822 #

2000 Y L R 822

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. PARVEEN AKHTAR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 4140-B of 1999, decided on 16th September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/324/34---Bail, grant of---Case of further inquiry---Accused was a female having suckling baby---Accused neither caused any injury to any prosecution witness nor to the deceased and she was in jail for the last about nine months ---Co-accused, who was attributed dagger blow to the deceased, was let off by the police---Case of the accused was of further inquiry---Bail was allowed in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973; Mst. Nasreen v. The State 1998 MLD 1350 and Mst. Balqees v. The State PLJ 1999 Cr.C. (Lah.) 1 ref.

Mazhar Iqbal Sindhu for Petitioner.

Naseer-ud-Din Khan Nayyar for the Complainant.

Suleman Qamar for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 823 #

2000 Y L R 823

[Lahore]

Before Raja Muhammad Khurshid, J

NASEER AHMAD alias MUHAMMAD

IQBAL alias BALOO‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1012‑B of 1999, decided on 4th May, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑Bail ‑‑‑Prosecution had collected sufficient evidence against the accused on the basis of which he had been challaned to face ‑the trial‑‑‑Statement of the complainant was corroborated by the report of the Chemical Examiner and nothing was available to disbelieve her at such stage‑‑‑Contentions raised on behalf of accused deeply concerned the merits of the case which could only be settled at the trial‑‑‑Accused was refused bail in circumstances.

Zahid Hussain Khan for Petitioner.

Ijaz Anwar for the Complainant.

Farrukh Humayun for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 825 #

2000 Y L R 825

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ABDULLAH BAJWA‑‑‑Appellant

versus

Mst. NAEEMA KHANAM‑‑‑Respondent

Regular Second Appeal No. 15 of 1980, heard on 7th June, 1999.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑Ss.2(6) & 30‑‑‑Recovery of rent from statutory tenant‑‑‑Scope‑‑‑Person who was in occupation/possession of suit property within the meaning of S.2(6) of Displaced Persons (Compensation and Rehabilitation) Act, 1958 was entitled to protection of S. 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958.

(b) Displaced Persons (Compensation and Rehabilitation Act (XXVIII of 1958)‑‑‑

‑‑‑‑Ss. 2 (c) & 30‑‑‑Recovery of rent‑‑Respondent/plaintiff was a transferee of suit premises and appellant/defendant was a statutory tenant‑‑‑Respondent/plaintiff filed suit for recovery of rent from appellant/ defendant‑‑‑Ground that suit premises was occupied by appellant/defendant after the same was transferred in favour of respondent/plaintiff was not taken by appellant/tenant in his written statement‑‑Plea that the appellant/defendant was not bound to pay rent or he was not a statutory tenant was taken in the reply‑‑‑Suit of respondent/plaintiff was dismissed by Trial Court whereas Lower Appellate Court decreed the same‑‑‑Validity‑‑‑Factual plea that premises was occupied after the same was transferred to the respondent/plaintiff was missing from the written statement of the appellant/defendant‑‑‑No evidence was available on record to support such plea as the same was a plea of fact‑‑‑Conclusion drawn by the Lower Appellate Court was upheld in second appeal.

The Bank of Bahawalpur Ltd. through its Manager v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another PLD 1977 SC 164; PLD 1966 Lah. 515; Haji Abdul Karim v. The Chief Settlement Commissioner and others PLD 1961 Lah. 394; Subedar Muhammad Afzal v. Syed Nafis Ahmad and others PLD 1962 Lah. 45 and Dr. Cowas C. Mehta v. Additional Settlement and Rehabilitation Commissioner and others PLD 1963 Kar. 938 ref.

‑‑‑‑ Plea not taken in the pleadings cannot be allowed to be proved and no evidence can be led or looked into in support of a plea which has not been so taken.

Binyamin and 3 others v. Ch. Hakim and others 1996 SCMR 336 rel.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 114‑‑‑No estoppel against law but when applicability of law is subject to existence of certain facts, then a party cannot be allowed to take refuge behind the principle of estoppel on his failure to plead and prove such facts.

C.A. Rahman for Appellant.

Ahmad Hassan Khan for Respondent.

Date of hearing: 7th June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 830 #

2000 Y L R 830

[Lahore]

Before Dr. Munir Ahmad Mughal, J

WALAYAT---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 4683-B of 1999, decided on 2nd September, 1999.

Criminal Procedure Code (V of 1898)---

----S.497(1), third proviso---Penal Code (XLV of 1860), S.324/334/148/149/109---Bail on ground of statutory delay---None of the offences with which the accused was charged was punishable with death---Accused was detained for a continuous period exceeding one year for such offences---Trial of accused had not so far concluded and even the charge had not yet been framed in the case---Accused had no previous record of being a hardened, desperate or dangerous criminal or being involved in terrorism---Bail was allowed to accused on the ground of statutory delay in circumstances.

Gul Zaman v. The State 1999 SCMR 1271; Zahid Hussain v. The State PLD 1995 SC 49; Ghulam Sarwar v. The State 1990 SCMR 1045; Abdul Rashid v. The State 1998 SCMR 897; Riasat Ali v. Ghulam Muhammad and another PLD 1968 SC 353; Ahrar Muhammad and others v. The State PLD 1974 SC 224; Malik Ghulam Jilani v. Station House Officer and 2 others PLD 1975 Lah. 210; Tariq Bashir v. The State PLD 1995 SC 34; Amir v. The State PLD 1972 SC 277; Khalid Saigol v. State PLD 1962 SC 495; Nadra v. Jamat Khan and others PLD 1968 SC 310; Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC 1003 and Abdul Rashid v. The State 1998 SCMR 897 ref.

Rafiq Ahmad Bajwa and Javaid Safdar Kahlon for Petitioner.

Tariq Mahmood Kamboh for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 835 #

2000 Y L R 835

[Lahore]

Before Maulvi Anwarul Haq, J

TAJ DIN and others‑‑‑Appellants

versus

BOOTA‑‑‑Respondent

Regular Second Appeal No. 771 of 1977, heard on 16th June, 1999.

(a) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑Ss.4 & 19‑‑‑Right of pre‑emption‑‑Waiver‑‑‑Applicability‑‑‑Presence of the pre-emptor at the time of sale as well as at negotiation proceedings of sale ‑‑‑Effect‑‑Such presence would not constitute waiver of right of pre‑emption.

Abdul Rashid v. Bashir and another 1998 SCMR 808; Jampari v. Muhammad Abdullah 1992 SCMR 786 and Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 rel.

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

‑‑‑‑S.4‑‑‑Right of pre‑emption ‑‑‑ Presence Of pre‑emptor at the time when bargain of sale was struck‑‑‑Waiver, question of‑‑‑Such presence was not enough to draw an inference of acquiescence in sale.

Binyameen and 3 others v. Ch. Hakim and another 1996 SCMR 336; Abdul Rashid v. Bashir and another 1998 SCMR 808; Jampari v. Muhammad Abdullah 1992 SCMR 786 and Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 ref.

Jahangir A. Jhoja for Appellants.

Ch. Muhammad Ishaque for Respondent.

Date of hearing: 16th June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 837 #

2000 Y L R 837

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL WAHEED‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1324 of 1991, heard on 13th July, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Principles‑‑‑Safest rule in appraisal of evidence is the rule of "careful analysis" by sifting the grain from the chaff accepting what is true and rejecting what is untrue, on an overall appreciation of entire evidence adduced in the case.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Promptness in registration of F.LR. had ruled out the possibility of false involvement of accused‑‑‑Eye‑witnesses although were related to the deceased, yet their presence on the spot was natural and was established and none of them had any animosity to depose falsely against the accused‑‑‑Real brother and brother‑in‑law of the deceased could not be expected to leave the real culprit and falsely substitute another person for his murder‑‑Discrepanices appearing in, the ocular evidence were not of such magnitude as to make the same untrustworthy‑‑‑Conviction and sentence of accused were upheld in circumstances.

Muhammad Iqbal and another v. The State 1978 PCr.LJ 670; Muhammad Hassan v. The State PLD 1982 Lah. 577; Nawaz Ali and another v. The State 1981 SCMR 132; Mahboob-ur-Rehman v. The State 1996 PCr.LJ 238 and Shamas Ejaz v. The State 1997 PCr.LJ 2144 ref.

Muhammad Akram Qureshi for Appellant.

Munib Iqbal for the Complainant.

Muhammad Aslam for the State.

Date of hearing: 13th July, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 841 #

URDU

2000 Y L R 841

[Lahore]

Before Ch. Ijaz Ahmad, J

GHAZANFAR ABBAS ‑‑‑Appellant

versus

ASIFA BOKHARI‑‑‑Respondent

First Appeal from Order No. 238 of 1999, heard on 12th October, 1999.

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

‑‑‑‑O.IX, R.13, second proviso‑‑‑Ex parte decree, setting aside of‑‑‑Irregularity in service of summons‑‑‑Intentional non-appearance of parties in the Court ‑‑‑Effect‑‑Provision of second proviso to O.IX, R.13, C. P. C. was added to prevent the misuse of process of Court‑‑‑Where parties, despite full knowledge of the proceedings did not intentionally appear in the Court, ex parte decree passed against such party could not be set aside.

(b) Practice and procedure‑

‑‑‑‑ Procedure adopted by Court‑‑‑Once the Court has adopted a particular method then it is the duty and obligation of the Trial Court to take the same to its logical end.

‑‑‑‑O. IX, R. 6(1)‑‑‑Words "and pass decree without recording evidence" occurring in Off, R. 6 (1), C. P. C. ‑‑‑Connotation‑‑Expression did not mean that the question was left to the discretion of the Court, nor did it mean that it was incumbent upon Courts to decree a suit without recording evidence.

Shamroz Khan v. Muhammad Amin PLD 1978 SC 189 rel.

(d) Act of Court‑‑‑

‑‑‑‑ No body should be penalised by the Act of Court. [p. 847] D

PLD 1975 Lah. 7 rel.

(e) Administration of justice‑‑‑

‑‑‑‑Technicalities‑‑‑Technicalities not to be a hindrance in the way of justice.

Khuda Yar's case PLD 1975 SC 678; Imtiaz Ahmad's case PLD 1963 SC 382; PLD 1989 SC 532; 1993 SCMR 363; M/s. Akam Ji Construction Company Ltd. v. Government of Punjab 1999 MLD 2202 and Alam Din and 14 others v. Muhammad Din and 35 others 1999 MLD 2146 rel.

(J) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. IX, R.13 & O.XLIII, R.1 ‑‑‑ Setting aside of ex parte decree‑‑‑Appellant/defendant did not join the proceedings before Trial Court in post‑remand stage‑‑‑Trial Court, instead of proceeding on the first date of non-appearance of the appellant/defendant, preferred to issue summons for appellant/ defendant‑‑‑Summons were not received by the appellant/defendant and the suit was decreed ex parte‑‑‑Trial Court dismissed the application for setting aside ex parse decree‑‑‑Validity‑‑‑Technicalities should not be a hindrance in the way of justice‑‑‑Ex parte decree and order was set aside in circumstances.

1983 CLC 1398; 1973 SCMR 107; 1987 SCMR 733; PLD 1981 Lah. 339; PLD 1971 Lah. 746; 1992 SCMR 707; AIR 1979 Pat. 341; AIR 1985 Raj. 53; PLD 1980 Lah. 668; PLD 1978 SC 89; 1981 CLC 2033; 1987 CLC 218; S. Irshad Hussain and another v. Aziz Ullah Khan and others 1987 SCMR 150; Sharafat Ali v. Muhammad Boota and another 1985 CLC 1063; Thal Engineering Industries Ltd. v. Bank of Bahawalpur Ltd. and another 1979 SCMR 32; Province of Punjab v. Lt.‑Gen. (Retd.) Wajid Ali Burki PLD 1990 SC 813 and Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Punjab Small Industries Corporation, Lahore PLD 1981 SC 21 ref.

1987 SCMR 150; PLD 1952 Lah. 82; PLD 1982 Lah. 1041 and 1978 SCMR 150 distinguished.

Ch. Ali Muhammad for Petitioner.

Ch. Imdad Khan for Respondent.

Date of hearing: 12th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 848 #

2000 Y L R 848

[Lahore]

Before Khawaja Muhammad Sharif, J

KHAN MUHAMMAD ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 4‑Q to 7‑Q of 1993, decided on 26th October, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑Quashing of proceedings‑‑Complainant in the, case had only been examined as a witness in the Court of the Magistrate and three other witnesses were still to be examined‑‑‑Application moved by the accused under S. 249‑A, Cr. P. C. had been dismissed by the Trial Court and a revision petition against that order had also been dismissed by Sessions Court‑‑‑Orders passed by the Courts below did not suffer from any infirmity or illegality‑‑‑Points raised on behalf of accused could only be gone into after recording of evidence and same needed deeper appreciation of evidence which was not possible in the present petition for quashing of proceedings‑‑‑Petition was dismissed in circumstances.

Mujeeb‑ur‑Rehman v. Federal Government PLD 1985 FSC 8 and 1993 SCMR 1718 ref.

Mubashir Latif Ahmad Petitioner.

Sh. Gul Muhammad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 854 #

2000 Y R 854

[Lahore]

Before Khawaja Muhammad Sharif, J

GHULAM HUSSAIN alias KALA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.63 of 1.996, heard on 10th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 302(c)‑‑‑Appreciation of evidence‑‑‑Grave and sudden provocation‑‑Eye‑witnesses who were closely related to the male deceased and lived 15/16 kilometres away from the place of occurrence had no business to be present at the spot at the relevant time ‑‑‑Post‑mortem reports and the reports of the Chemical Examiner had proved on record that male deceased had illicit relations with the wife of accused (female deceased) and on the night of incident he had come there to meet her and the accused after having seen them in compromising position killed both of them, under grave and sudden provocation‑‑‑Accused although had not said any such thing before the Trial Court in his statement under S.342, Cr. P: C., yet Court was duty bound to look into all the material on record which reflected the same situation‑‑‑Conviction of accused under S.302(b), P. P. C. was consequently converted into S. 302 (c), P. P. C. and he was sentenced to imprisonment already undergone by him in the circumstances which was about six years.

Muhammad Akhtar Qureshi Appellant.

Saleem Nawaz Abbasi for the State.

Date of hearing; 10th February 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 857 #

2000 Y L R 857

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. KANIZ BEGUM‑‑‑Petitioner

versus

Mst. SUGHRA BEGUM and 2 others‑‑‑Respondents

Writ Petition No.5143 of 1983, heard on 26th July, 1999.

(a) West Pakistan Land Reforms Regulation, 1959 (M.L.R. No.64)‑‑‑

‑‑‑‑Para.25‑‑‑Transfer of land through gift‑‑Violation of West Pakistan Land Reforms Regulation, 1959‑‑‑Donor who gifted away his entire land to his son, got a report entered with Patwari that he had transferred his entire land to the donee ‑‑‑Officer concerned had also reported that entire land had been gifted away by donor to the donee ‑‑‑Few Kanals of land so gifted were not mentioned in the mutation in. the first instance inadvertently by the Revenue Officer‑‑Effect‑‑‑If few Kanals were later found to have been left out, it was not an intentional violation on part of donor, but was an omission by Officer who entered the mutation of gift and said omission could never be said to constitute violation of the Regulation‑‑Authorities concerned were duty bound to correct mutation and also enter remaining few Kanals of land which were not mentioned in mutation in the first instance.

(b) West Pakistan Land Reforms Regulation, 1959 (M. L. R. No. 64)‑‑‑

‑‑‑‑Para.25‑‑‑Violation of Regulation‑‑Jurisdiction‑‑‑ ‑Power to declare any transaction as offending the provisions of West Pakistan Land Reforms Regulation, 1959 vested in Land Commission or Land Commissioner‑‑‑Jurisdiction of Civil Court as well as other Tribunals/Authorities, was expressly excluded.

Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1035 ref.

Hassan Ahmad Khan Kanwar for Petitioner.

Khawaja Haris Ahmad for Respondent No. 1.

M. A. Ghaffarul Haq for Respondent No. 15.

Date of hearing: 26th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 860 #

2000 Y L R 860

[Lahore]

Before Khawaja Muhammad Sharif, J

MUKHTAR AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 164/J of 1999, heard on 8th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 308 & 302 (c)‑‑‑Appreciation of evidence‑‑‑Grave and sudden provocation‑‑Prosecution had failed to prove the motive against the accused‑‑‑Presence of eyewitnesses was not shown in the site plan‑‑Eye‑witnesses had not explained their presence in the house of the deceased at midnight‑‑‑None of the nine children of the deceased had been cited as a witness in the case by the prosecution‑‑‑Both the parties had suppressed the truth‑‑‑Accused seemed to have killed his wife in the heat of passion under grave and sudden provocation given to him by the deceased‑‑‑Accused during investigation had taken the defence that the deceased was a lady of bad character‑‑Conviction of accused under S.308, P.P.C. was consequently converted into S.302(c), P.P.C. and his sentence of 14 years' R.1. was reduced to the term of imprisonment already undergone by him in circumstances which was sufficient to meet the ends of justice.

Ch. Riaz Ahmad for Appellant.

Saleem Nawaz Abbasi, A.A.‑G. for the State

Date of hearing: 8th February, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 862 #

2000 Y L R 862

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD YOUSAF alias KAKA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.552 of 1994, heard on 8th December, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/ 324/ 34‑‑‑Appreciation of evidence‑‑‑Complainant who was wife of deceased was a chance witness and she had herself admitted that she had not attested inquest report‑‑‑Other prosecution witness though was not related to the deceased, but he was a resident of complainant's village and. his presence with deceased at the relevant time spoke of his close association with deceased‑‑‑Said prosecution witness was also a chance witness whose visit to other village had also remained unsubstantiated on the record through any independent evidence and he had not attested memorandum regarding recovery of blood‑stained earth from place of occurrence and had also not signed inquest report‑‑‑Eye‑witnesses produced by prosecution had failed to receive corroboration from motive set out by it‑‑‑Bald statement of complainant in respect of alleged motive had remained completely unsubstantiated or supported by any other piece of evidence on record‑‑‑Motive set up by prosecution in circumstances remained far from being proved‑‑‑Alleged recovery of a carbine from accused's possession during investigation was legally inconsequential as no crime empty had been recovered from place of occurrence so as to connect said carbine or the accused with occurrence‑‑Medical evidence did not provide requisite support to eye‑witnesses produced by prosecution, rather it had contradicted ocular account‑‑‑Prosecution having failed to prove its case against accused beyond reasonable doubt, he was acquitted extending him benefit of doubt.

(b) Criminal trial‑‑‑

‑‑‑‑ Benefit of dobut‑‑‑Benefit of doubt is to be extended to accused person in a criminal case as a matter of right and not by way of grace or concession.

Shahid Hussain Qadri for Appellant.

Waqar Hassan Mir for the Complainant.

Nemo for the State.

Date of hearing: 8th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 867 #

2000 Y L R 867

[Lahore]

Before Muhammad Naseem Chaudhri, J

AMEER BUX‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1032‑B of 1999, heard on 19th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Accused had no motive to commit the murder of his wife, but on having seen her committing adultery with a stranger in his house he killed both of them‑‑‑If "Ghairat " was not prompted and given due weight, the apprehension could not be ruled out that the close relations would become "Be‑Ghairat " due to the fear of heavy punishment‑‑‑Accused even if convicted could not be liable for the maximum punishment‑‑Bail was allowed to accused in circumstances.

Liaqat Ali v. State 1994 PCr.LJ 2012 ref.

Sardar Dost Muhammad Khan Chandia for Petitioner.

Sh. Gul Muhammad for the State.

Date of hearing: 19th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 877 #

2000 Y L R 877

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD LATIF and others---Petitioners versus

THE STATE---Respondent

Criminal Miscellaneous No.3501-B of 1999, decided on 13th July, 1999.

Criminal Procedure Code (V of 1898)

----S.497---Penal Code (XLV of 1860), S.302/34---Bail---Accused were named in the F. I. R. with a specific role assigned to each of them of having caused the murder of the deceased---Plea of alibi raised by accused, no doubt, was accepted at one stage of investigation, but later on subsequent Investigating Officer believing the ocular account of occurrence had found them real culprits and had sent their case for trial--Reasonable grounds, thus, were available to believe that the accused were guilty of the offence with which, they were charged---Bail was disallowed to accused in circumstances.

Muhammad Hussain. Awan for Petitioners.

Usman Subhani for the State.

2000 Y L R 915

[Lahore]

Before Ch. IjaZ Ahmad J

GHULAM YASIN BUTT and 2 others‑‑‑Appellants

versus

MANZOOR HUSSAIN and 3 others‑‑‑Respondents

Regular Second Appeal No.517 of 1979, heard on 2nd November, 1999.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.79‑‑‑Document required by law to be attested‑‑‑Execution of such document‑‑Proof‑‑‑Such document cannot be used in evidence until two attesting witnesses have been called for such purpose‑‑‑Such witnesses are subject to conditions viz. the attesting witnesses are alive; are subject to the process of Court and they are capable of giving evidence.

Abdul Khaliq's case PLD 1966 Lah. 367 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.17‑‑‑Document creating financial liability‑‑‑Such document has to be attested by two witnesses.

Muhammad Yaqoob's case PLD 1995 Lah. 395 and Abdul Khaliq's cae PLD 1966 Lah. 367 ref.

‑‑‑‑Rights‑‑‑Trespasser has no vested right in the property.

PLD 1982 SC 308 ref.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.23‑‑‑Nominee or assignment, principle of‑‑‑where agreement in question did not reveal that the possession of the suit property was delivered, principle of nomination or assignment would not be attracted.

Muhammad Farooq Dosa's case 1990 MLD 2016 and Khurshid Ali's case PLD 1990 Lah. 211 ref.

(e) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.53‑A‑‑‑Transfer of possession in part performance of agreement to sell immovable property‑‑‑Defendants failed to establish on record that possession of the suit land was so taken over by them‑‑‑Trial Court decreed the suit filed by the plaintiff whereas Lower Appellate Court dismissed the same‑‑‑Validity‑‑‑Case of the defendant did not fall under provision of S.53‑A of Transfer of Property Act, 1882‑‑ Lower Appellate Court reversed the finding of Trial court without adverting to reasoning of Trial Court‑‑‑Where Lower Appellate Court had decided the case in violation of settled law and there was misreading of record, Lower Court had committed material irregularity and judgment passed by that Court was set aside in second appeal.

PLD 1964 SC 456; PLD 1966 SC 328; PLD 1984 SC 424; PLD 1966 Lah. 953; PLD 1967 Lah. 1138; 1991 SCMR 2300 and AIR 1930 PC 57(1) ref.

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

‑‑‑‑S.100‑‑‑Second appeal‑‑‑Interference in order of First Appellate Court ‑‑‑Scope‑‑Where Lower Appellate Court had decided he case in violation of settled law and by misreading of record and had committed material irregularity, such judgment was liable to be set aside in second appeal.

PLD 1964 SC 456; PDL 1966 SC 328; PLD 1984 SC 424; PLD 1966 Lah. 953; PLD 1967 Lah. 1138; 1991 SCMR 2300 and AIR 1930 PC 57(1) ref.

Mian Nisar Ahmad for Appellants.

Muhammad Jehangir A. Jhoja for Respondents.

Date of hearing: 2nd November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 921 #

2000 Y L R 921

[Lahore]

Before Sheikh Abdur Razzaq and

Asif Saeed Khan Khosa, JJ

ILYAS MASIH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.359 of 1992 and Murder Reference No. 209 of 1993, heard on 12th July, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Complainant's stand was falsified by medical evidence‑‑‑Prosecution had not explained some of the injuries caused to the deceased by a sharp‑edged weapon‑‑‑Injuries received by deceased had not been caused by one weapon alone as asserted by prosecution‑‑‑Recovery of the weapon of offence (Datar) was highly doubtful which had been allegedly thrown by the accused after the occurrence Bar seem crop, but the same was recovered from his house‑‑‑Such contradiction in the prosecution version had given a fatal blow to the ocular evidence, which by itself, was full of contradictions‑‑‑Motive attributed for the occurrence was far‑fetched and did not inspire confidence‑‑ Accused was acquitted in circumstances.

Naveed Rasool Mirza and Bilal Khan for Appellant.

S. D. Qureshi for the State.

Date of hearing: 12th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 935 #

2000 Y L R 935

[Lahore]

Before Syed Zahid Hussain, J

BASHIR AHMAD and 3 others‑‑‑Appellants

versus

MUHAMMAD HUSSAIN and

6 others by Legal Heirs‑‑‑Respondents

Regular Second Appeal No. 198 of 1978 treated as Civil Revision No. 1863 of 1999, decided on 19th October, 1999.

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

‑‑‑‑Ss.100 & 115‑‑‑Converting of appeal into revision‑‑‑Verbal request by appellant‑‑Scope‑‑‑Where appellant made such request verbally, appeal could be converted into revision on verbal request.

Muhammad Yusuf v. Mst. Khairan Bibi 1995 SCMR 784 ref.

(b) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑Ss. 4 & 15‑‑‑Right of pre‑emption ‑‑‑Pre-emptor had a reasonable chance of succession as against the vendee ‑‑‑Effect‑‑‑Where the pre‑emptor had such a chance, the same would entitle him to a decree in a pre-emption suit‑‑‑Case of the pre‑emptor was supported by evidence on record and law applicable thereto‑‑‑Discrepancies in the statements of the witnesses, referred to by the vendee would not destroy the overall impact of preponderance of evidence on the issue‑‑‑Appellate Court found the pre‑emptor to be having superior right of pre‑emption‑Judgment and decree of Appellate Court did not call for interference in circumstances.

Ghulam Muhammad and another v. Allah Yar and others PLD 1965 (W.P.) Lah. 482; Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767; Rokkam Lakshmi Reddi and another v. Rokkam Venkata Reddi and others AIR 1937 PC 201; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Ghulam Ali v. Qutab Din AIR 1936 Lah. 477; Muhammad Ali Khan v. Mt. Zewar Nisa and another AIR 1942 Pesh. 22; Nargis Begum and others v. Muhammad Ibrahim and others 1983 CLC 2923; Jalal Din's case PLD 1979 SC 879; Allah Din and another v. Prabh Dayal and others AIR 1938 Lah. 646; Muhammad Hayat and others v. Ghulam Murtaza PLD 1949 Lah. 53 and Haji Muhammad Yousaf Khan v. Abdul AM Khan and 5 others PLD 1983 SC (AJ&K) 188 ref.

Mubashar Latif Ahmed and Mirza Naseer Ahmed for Appellant.

Muzammil Khan Chaudhry for Respondent.

Dates of hearing: 7th and 12th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 940 #

2000 Y L R 940

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Mst. SHAHNAZ BIBI and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1724‑B of 1998, decided on 8th October, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11‑‑Bail, grant of‑‑‑Both the accused had claimed themselves to be husband and wife vide registered Nikahnama which showed that they had married one month prior to registration of the F. I. R.‑‑‑Male accused according to the complainant himself had already asked for the hand of female accused which fact had made the case one of further inquiry‑‑ Accused were admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Sh. Gul Muhammad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 944 #

2000 Y L R 944

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD ARSHAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.843-B of 1999, decided on 20th May, 1999.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)-- Bail, grant of---Accused was 18 years and I5 days old on the day of occurrence and was in jail for the last more than nine months--Investigation in the case was over---No marks of violence had been found on the body of the victim girl who according to her medico-legal report was used to sexual intercourse--- Co accused who had been assigned the similar role in the occurrence had already been released on bail by High Court---Cumulative effect of all these circumstances had made the case against accused one of further inquiry--Bail was allowed to accused accordingly.

Khadim Hussain v. The State 1983 SCMR 124 and Abdul Sattar v. The State 1982 SCMR 909 ref.

Altaf Ibrahim Qureshi for Petitioner.

Muhammad Salim Shakoor for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 946 #

2000 Y L R 946

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL LATIF‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE/

ELECTION TRIBUNAL/M.C., ARIFWALA

and others‑‑‑Respondents

Writ Petition No.6831 of 1999, decided on 12th August, 1999.

(a) Punjab Local Councils (Election Petitions) Rules, 1979‑‑

‑‑‑‑Rr.3, 4 & 5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Unsigned and unverified election petition ‑‑Effect‑‑‑Petitioner/returned candidate filed objections on the election petition filed by the respondent/candidate that election petition was not verified in the manner prescribed, advance copy of petition was not delivered and the same was filed without statutory deposit‑‑‑Election Tribunal dismissed the objection petition‑‑‑Validity‑‑‑Record had established that advance copy was delivered and the statutory deposit was made by candidate and the signing or verifying of the pleadings was not such as would effect the merits of the case‑‑‑Order of Tribunal was not without jurisdiction in circumstances and the same was not to be interfered with.

Abdul Aziz Khan v. Abdur Rehman and others PLD 1985 Lah. 203 and Ch. Riffat Hussain v. Asif Khan PLD 1980 Lah. 626 ref.

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

‑‑‑‑O. VI, Rr. 14 & 15‑‑‑Pleadings‑‑‑Nonsigning or non‑verifying the pleadings is not such an omission as to affect the merits of case and the same can be signed or verified subsequently.

Ch. Riffat Hussain v. Asif Khan PLD 1980 Lah. 626 ref.

Muhammad Arif Alvi for Petitioner.

Khadim Nadeem Malik, Addl. A.‑G. (on Court's call).

Arshad Ali Chohan for Respondent No.2.

YLR 2000 LAHORE HIGH COURT LAHORE 948 #

2000 Y L R 948

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD AFZAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.56 and Murder Reference No. 10 of 1997, heard on 3rd February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Ocular account of occurrence although had been furnished by the real brother and real nephew of the deceased, but they had no enmity whatsoever against the accused ‑‑‑Eye witnesses had stated during investigation and also before the Trial Court that the accused had fired a shot with his pistol at the deceased which hit on the back side of his neck and proved fatal‑‑‑Accused had also led to the recovery of the said pistol‑‑‑Conviction of accused was upheld in circumstances‑‑Motive for the occurrence was, however, shrouded in mystery which was a mitigating circumstance in favour of accused‑‑‑Sentence of death awarded to accused by Trial Court was reduced to imprisonment for life accordingly.

Sardar Ahmad Khan for Appellant.

Malik Sajid Feroz for the Complainant.

Tariq Javed for the State.

Date of hearing: 3rd February,

YLR 2000 LAHORE HIGH COURT LAHORE 954 #

2000 Y L R 954

[Lahore]

Before Raja Muhammad Khurshid, J

SAJID and 3 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1958/11 of 1999, decided on 14th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), 5.452/ 337‑F(v)/337‑F(vi)l 337‑H(ii)/379/ 148/149‑‑‑Pre‑arrest bail‑‑‑Accused were named in the F.I.R. and had been assigned specific role of having caused injuries to the prosecution witnesses along with their co-accused‑‑‑Accused had also misused the concession of earlier bail granted to them by the lower Court‑‑‑Interim pre‑arrest bail granted to accused was recalled in circumstances and their bail application was dismissed.

Khawaja Muhammad Fazil Butt .for Petitioners.

Syed Mukhtar Ahmad Sherazi for the State.

Rao Munawar Khan for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 969 #

2000 Y L R 969

2000 Y L R 982

[Lahore]

Before Maulvi Anwarul Haq, J

WAHID BAKHSH‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN and others‑‑‑Respondents

Writ Petition No. 1388 of 1988, decided on 25th August, 1999.

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

‑‑‑‑O.I, R.10 & O. VI, R. 17 ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Plaintiff filed application for impleading the petitioner as a party to the suit and for amendment of the pleadings‑‑‑Trial Court dismissed application whereas Lower Appellate Court allowed the same in a revision filed by plaintiff‑‑Validity ‑‑‑Amendent sought to be taken was in respect of a document which saw the light of the day after the completion of pleadings, issues and somewhere during the course of recording of evidence of the arties‑‑‑Plaintiff having sought to add a plea against the person who was already party to the suit, no case was made out for interference by High Court in exercise of Constitutional jurisdiction.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of pleadings‑‑Delay in filing application for amendment‑‑Effect‑‑‑Where provision of O. VI, R.17, C. P. C. stands fulfilled, any amount of delay will he of no consequence in allowing any application for amendment of pleadings.

Muhammad Arshad and another v.

Mst. Firdausia Begum and 4 others 1994 CLC 1967 ref.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Semco Salvage Pvt. Limited v. Kaptan Yusuf Kalkavan and another 1993 SCMR 593 rel.

‑‑‑‑Art. 199‑‑‑Constitutional petition against inerlocutory order ‑‑‑Maintainability‑‑ Assailing of an interlocutory order passed in civil proceedings‑‑‑Constitutional petition was not maintainable against such order.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 rel.

Abdul Qadir Hashmi for Petitioner.

Shamsul Haq Ansari for Respondent No.2.

Nemo for the Remaining Respondents.

Date of hearing: 25th August, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 985 #

2000 Y R 985

[Lahore]

Before Raja Muhammad Khurshid, MANZOOR HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2371‑B of 1999, decided on 27th May, 1999.

Criminal. Procedure Code (V of 1898)‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/148/149‑‑‑Bail‑‑‑Accused had actively participated in the murder of the deceased by giving him "Danda" blows after he had fallen on the ground on receiving the fatal injury at the hands of co‑accused‑‑‑Accused as such, prima facie, was vicariously liable with the principal accused for causing the murder of the deceased‑‑‑Questions regarding premeditation, sudden flare up and aggression could be more appropriately gone into at the time of trial‑‑‑Police opinion could not be pressed into service at such stage, particularly when eye‑witnesses in their statements under S.161, Cr. P. C. had given clear version about the occurrence‑‑‑Bail was declined to accused in circumstances.

Ibrahim and another v. The State 1997 PCr.U 762; Ali Hasan v. The State 1997 PCr.U 767 and Soofi Baqa Muhammad and another v. The State PLD 1985 Sh.C. (AJ&K) 10 ref.

Ch. Anwar‑ul‑Haq Pannu for Petitioner.

Mian Bilal Hussain for the State.

Zia‑ud‑Din Ansari for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 987 #

2000 Y L R 987

[Lahore]

Before Ali Nawaz Chawhan, J

Malik MOLAZIM HUSSAIN ---Petitioner

versus

THE INSPECTOR-GENERAL OF

POLICE, PUNJAB, LAHORE and 3 others---Respondents

Criminal Miscellaneous No. 134/Q of 1999, decided on 26th October, 1999.

Criminal Procedure Code (V of 1898)---

----Ss. 195 & 561-A---Penal Code (XLV of 1860), S.182---Quashing of proceedings--Accused moved complaint through an application before Inspector-General of Police against certain persons---Deputy Superintendent of Police after holding confidential inquiry concluded that complaint by accused was false, baseless and mala fide---Sub-Inspector Police sent a "Kalandara " to Court of Magistrate for taking action against accused under S.182, P.P.C.---Accused had filed petition under S.561-A, Cr.P.C. for quashing proceedings against him contending that "Kalandara " sent to the Court of Magistrate had offended provisions of S.195, Cr. P. C.---Validity---Complainant/accused having not been made accused by Inspector-General of Police to whom alleged false application/complaint was made nor by any officer above the said Inspector-General, provisions of S.195, Cr. P. C. had placed embargo on proceedings against accused under S.182, P. P. C. --Proceedings which could not be continued, were ordered to be quashed.

Malik Muhammad Sadiq v. The State 1977 PCr.LJ 445 and Muhammad Afzal and others v. The State 1989 PCr.LJ 1252 ref.

Ch. Hamayun Imtiaz for Petitioner.

Ch. Ijaz Ahmad Standing Counsel, Date of hearing: 14th September,

YLR 2000 LAHORE HIGH COURT LAHORE 991 #

2000 Y L R 991

[Lahore]

Before Raja Muhammad Khurshid, J

NASIR ABBAS ‑‑‑Petitioner

versus

Mian MUHAMMAD BAKHSH and 3 others‑‑‑Respondents

Criminal Miscellaneous No. 513/H of 1999, decided on 21st April, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus petition ‑‑‑Detenue when produced in Court stated that she was never married with the petitioner and she was not his wife and that she would like to go with her father with whom she was living‑‑Such repeated statement of the alleged detenue showed that she was wrongly shown as a detenue in the house of her father by moving the present petition apparently with some ulterior motive in order to humiliate her and her family‑‑‑If there was any Nikah between the petitioner and the detenue and the petitioner wanted her to live with him as his wife, legal remedy for him was elsewhere, but habeas petition was hardly a remedy under the given situation‑‑‑Petition being totally misconceived was dismissed with costs of Rs. 5,000‑‑‑Detenue was at liberty to accompany her father according to her option.

Munir Ahmad Khan for Petitioner.

Syed Shabahat Hussain Tirmazi for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 992 #

2000 Y L R 992

[Lahore]

Before Ghulam Mahmood Qureshi, J

SHAKEEL AHMED ‑‑‑Petitioner

versus

MUSTHAQ AHMED ‑‑‑Respondent

Second Appeal from the Order No. 106 of 1997, decided on 21st April, 1999.

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

‑‑‑‑Ss. 2 (c) (i), 13 (2) (i), (3) (ii) & 15 ‑‑‑Default in payment of rent‑‑‑Bona fide personal need of landlord‑‑‑Relationship of landlord and tenant‑‑‑Tenant denied relationship of landlord and tenant between him and the landlord‑‑‑Landlord by producing oral as well as documentary evidence on record successfully proved his case before Rent Controller about his title in respect of premises in dispute and about wilful default committed by tenant and also about his bona fide personal need‑‑‑Finding of Rent Controller was upheld by Appellate forum and no illegality or infirmity had been proved to have been committed by forums below‑‑Both the forums after appreciating evidence oral as well as documentary had come to the conclusion that relationship of landlord and tenant existed between the parties‑‑‑Such finding based on record and not suffering from any illegality and infirmity could not be interfered with by High Court.

Syed Munir Hussain Naqvi for Petitioner.

Ch. Abdul Majid Raghib for Respondent.

Date of hearing: 5th April, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1008 #

2000 Y L R 1008

[Lahore]

Before Maulvi Anwarul Haq, J

CLIMAX ENGINEERING CO. LTD. ‑‑‑Petitioner

versus

MUHAMMAD ANWAR and others‑‑‑Respondents

Civil Revision No. 1198 of 1999, heard on 24th September, 1999.

Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑S.15‑‑‑West Pakistan Consolidation Of Holdings Ordinance (VI of 1960), S.16‑‑‑Preemption suit‑‑‑Consolidation proceedings‑‑Effect ‑‑‑Pre‑emptor had a superior right over the suit land purchased by the vendee‑‑Consolidation proceedings started in the revenue estate and some changes were effected as a result thereof after filing of the plaint‑‑‑Trial Court decreed the suit and appeal fled by the vendee was dismissed by Lower Appellate Court ‑‑‑Validity‑‑‑Pre-emptor having paid the price determined by Trial Court, was entitled to whatever land was acquired by the vendee ‑‑‑Pre‑emptor was to substitute the vendee in the land given to vendee as a result of consolidation process to the extent of suit land.

Muhammad Akmal v. Muhammad Bashir 1981 CLC 279 ref.

Mushtaq Mehdi Akhtar for Petitioner.

Ch. Ikram‑ul‑Haq Naseem for Respondents Nos. 25 to 30.

Nemo for the Remaining Respondents.

Date of hearing: 24th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1015 #

2000 Y L R 1015

[Lahore]

Before Khawaja Muhammad Sharif, J

KHADIM HUSSAIN ‑‑‑Petitioner

versus

THE STATE ‑Respondent

Criminal Appeal No.35 of 1996, heard on 10th February, 2000.

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art.4‑‑‑Reduction in sentence‑‑‑Accused did not dispute conviction awarded to him by Trial Court, but had prayed that sentence of four years and four months already undergone by him be treated sufficient‑‑Prosecution had not opposed request of the accused‑‑‑Conviction of accused was maintained and sentence awarded to accused was reduced to one already undergone, to meet ends of justice‑‑‑Punishment of thirty strips and fine, was also reduced accordingly.

M. Akhtar Qureshi for Petitioner

Saleem Nawaz Abbasi, A.A.‑G. for the State, Date of hearing 10th February. 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1031 #

2000 Y L R 1031

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD.KRAM --- Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Nos.5367-B and of 1999, decided on 9th December, 1999.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.161/165 A---Prevention of Corruption Act (11 of 1947), S.5 (2)---Bail, grant of---Accused initially was not implicated by the complainant in the F.LR. as an accused, but subsequently he had been so implicated on the basis of his own statement allegedly made in another case before the Anti-Corruption Establishment which he had denied--Principal accused in the case had already been admitted to bail and the accused who was alleged to have abetted the said principal accused also deserved the same treatment--Offences allegedly committed by the accused were not hit by the prohibitory clause of S.497(1), Cr. P. C. ---Challan having been submitted in the Court, continued custody of accused was not likely to serve any beneficial purpose---Case against accused called for further inquiry into his guilt within the purview of S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Pir S. A. Rashid for Petitioner.

Miss Nausheen Taskeen for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1033 #

2000 Y R 1033

[Lahore]

Before Khawaja Muhammad Sharif, J

WAZIR ALI and others---Petitioners

versus

THE STATE Respondent

Criminal Appeal No.139 of 1998, heard on l0th February, 2000.

Penal Code (XLV of 1860)---

----S.302(b) 34---Appreciation of evidence--Motive of occurrence which was attributed to co-accused who was declared innocent and was acquitted by Trial Court, was not plausible---No independent witness had been produced by prosecution despite occurrence had taken place in bazar in the early hours of the day---Only eye-witnesses in case were real brother and uncle of deceased and their presence at the spot had not been proved--Doctor who had conducted post-mortem examination of deceased had admitted that injuries found on body of deceased, could be received by deceased while falling on the ground---Possibility of false implication of co-accused, could not be ruled out---Recovery of offence weapon on alleged pointation of co-accused, was not witnessed by any independent witness from the locality, but was witnessed only by complainant and other close relatives of the deceased---Prosecution having failed to prove case against co-accused, they were acquitted of the charge, but accused who had been proved to have caused numerous injuries on person of deceased, having himself admitted his guilt during course of trial, no leniency could be shown to him---Conviction and sentence awarded to accused by Trial Court, were maintained, in circumstances.

Syed Munawar Hussain Naqvi for Petitioners.

Saleem Nawaz Abbasi, A.A.-G. for the State, Date of hearing: l0th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1043 #

2000 Y L R 1043

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AZIM and 9 others‑‑‑Appellants

versus

MUHAMMAD ASLAM‑‑‑Respondent

Regular Second Appeal No.21 of 1977, decided on 7th June, 1999.

(a) Counsel and client‑‑‑

‑‑‑‑ Any concession given by. a. counsel on question of law was neither binding on his client nor on the Court.

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

‑‑‑‑Ss.148 & 149‑‑‑Making up of deficiency in court‑fee‑‑‑Time allowed by Trial Court for making up of such deficiency‑‑‑Neither any material was available on record nor any finding by Trial Court given to the effect that suit was incorrectly valued for the purpose of court fee or there was some deficiency in the court fee which was to be made up‑‑‑Trial Court throughout the suit did not determine the court fee payable‑‑‑Court fee was paid within ten days allowed by the Trial Court for making up of such deficiency‑‑‑Judgment and decree of lower Appellate Court, reversing the order of Trial Court which had allowed the making up of deficiency in court fee within 10 days, was set aside and that of Trial Court was restored.

Malik Allah Dad v. Yasin 1990 SCMR 1638 and Siddique Khan's case PLD 1984 SC 289 ref.

Alamgir for Appellants.

Rab Nawaz Niazi for the State.

Date of hearing: 7th June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1048 #

2000 Y L R 1048

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMAD YAR and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 126 of 1997, heard on 11th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Matter was reported to police after two days of occurrence without any proper explanation for the delay‑‑‑Extra judicial confession being joint one, was not admissible in evidence‑‑Alleged recovery of Chhurri effected about one month after the occurrence and which was received in office of Serologist one month after its recovery, could not be believed when no plausible explanation was given for such inordinate delay‑‑‑All witnesses produced by prosecution were closely related inter se‑‑Dead body was not recovered on the pointation of accused from the place where he had allegedly killed the deceased‑‑Occurrence was un-witnessed one and accused was named in FLR. on account, of suspicion‑‑‑FLR. was delayed‑‑‑Court, in case of circumstantial evidence, had to see that all chains were connected and linked with each other in such a manner that they could prove case against accused beyond any shadow of doubt which was lacking in he case‑‑‑Extending benefit of doubt, conviction and sentence awarded to accused by Trial Court were set aside and they were ordered to be released forthwith.

A.R. Tayyeb for Petitioners.

Saleem Nawaz Abbasi, A.A.‑G. for the State.

Date of hearing: 11th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1054 #

2000 Y L R 1054

[Lahore]

Before Tanvir Ahmad Khan and

Ch. Ijaz Ahmad, JJ

MUHAMMAD SALEEM and 3 others‑‑‑Plaintiffs

versus

BARKAT ALI and another‑‑‑Respondents

Regular First Appeal No.106 of 1989, heard on 11th October, 1999.

(a) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑S.21‑‑‑Pre‑emption suit‑‑‑Passing of decree after target date i.e. 31‑7‑1986 fixed by Supreme Court in Said Kamal's case reported in PLD 1986 SC 360‑‑‑Validity‑‑Where Trial Court passed a decree in pre-emption suit on 31‑1‑1988, such decree was nullity in the eyes of law and patently illegal and was non‑existent and thus was set aside.

Said. Kamal's case PLD 1986 SC 360; Ch. Bashir Ahmad v. Ghulam Rasool PLD 1994 Lah. 13; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Ghulam Qadir v. Nawab Din PLD 1988 SC 701; Sher Muhammad and another v. Allah Ditta and 2 others PLD 1988 SC 412; Malik Muhammad alias Malkoo v. Jan Muhammad 1989 CLC 776; Messrs L.M. Start Fort v. Syed Amjad Hussain and 9 others PLD 1992 SC 51; Agricultural Development Bank of Pakistan v. Noor Muhammad and 2 others‑ PLD 1985 Quetta 74; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119; Province of Punjab v. Dr. S. Muhammad Zafar Bokhari PLD 1997 SC ‑351; Pakistan Defence Officers Housing Authority v. Mst. Khadeja Bibi 1991 SCMR 1399 Mst. Aziz Begum v. Federation of Pakistan PLD 1990 SC 899; Khush Hall Khan v. Rao Nawaz and others 1994 SCMR 814; Sair Ameer Khan v. Mst. Shahzadi Khatoon and others 1993 SCMR 2050; Muhammad Nawaz v. 'Sher Muhammad PLD 1987 SC 284; Sherin v. Fazal Muhammad 1995 SCMR 584 and Syed Haji Abdul Waheed's case 1998 SCMR 2296 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Cases must be decided on merits instead of technicalities and the technicalities should not be a hindrance in the way of justice.

Sheri Muhammad's case PLD 1989 .SC 532; Mst. Sarearan's case 1993 SCMR 363; Khuda Yar's case PLD 1975 SC 678; Alim Din and 14 others v. Muhammad Ali and 35 others 1999 MLD 2146 and Messrs Adam Jee Construction Company Ltd. v. Government of Punjab 1999 MLD 2202 ref.

Law of Limitation should be liberally construed without giving violence to intention of Legislature‑‑‑Law must be applied for benefit of plaintiff.

1988 CLC 332 ref.

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

‑‑‑‑Preamble‑‑‑Rules framed under C: P. C.‑Object‑‑‑Such rules were made for the advancement of justice and should not, as far as possible, be allotted to defeat the ends of justice.

Muhammad Sarwar's case 1980 CLC 946 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 96‑‑‑Appeal‑‑‑Void decree‑‑‑Limitation‑‑Dismissal of appeal on the ground of limitation‑‑‑Validity‑‑‑Where decree of Trial Court was void, such appeal could not be dismissed on the ground of limitation.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and Muhammad Masi‑uz‑Zaman v. Federation of Pakistan PLD 1992 SC 825 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.189‑‑‑Judgments of Supreme Court are binding on each and every organ of the State.

Mst. Aziz Begum's case PLD 1990 SC 899 ref.

Khurshid Ahmed Ch. for Appellants.

Naveed Shaheryar Sheikh for Respondents.

Date of hearing: 11th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1061 #

2000 Y L R 1061

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ISHAQ and another‑‑‑Appellants

versus

MUHAMMAD HAYAT and another‑‑‑Respondents

Regular Second Appeal No.73 of 1999, decided on 12th October, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XX, R.6 & Ss.151 & 100‑‑‑Second appeal‑‑‑Two cross suits filed by parties against each other were consolidated and after framing consolidated issues, evidence of parties was recorded and Trial Court dismissed suit filed by appellants and decreed that of respondents‑‑‑Appellants filed appeal before Appellate Court below against judgment and decree of Trial Court‑‑‑Appellants alongwith appeal appended both decrees i.e. dismissing suit of appellants and decreeing of respondents, praying that both the decrees be set aside‑‑ Appellate Court below dismissed the appeal on sole ground that one single appeal could not proceed against two decrees‑‑‑Validity‑‑‑Reasoning given by Appellate Court below for dismissing appeal was preposterous because it was not intelligible as to how Appellate Court below came to find as to which of the two decrees, appeal related to‑‑‑Judgment and decree of Appellate Court below being contrary to law was set aside by High Court in second appeal.

Siraj Din and 11 others v Rajada 1992 SCMR 979 ref.

Ch Muhammad Din Ansari for Appellants.

Abdur Razzaq Kamboh for Respondents.

Date of hearing: 12th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1074 #

2000 Y L R 1074

[Lahore]

Before Ihsan-ul‑Haq Chaudhry

and Maulvi Anwarul Haq, JJ

MUHAMMAD ISHAQ and another‑‑‑Appellants.

versus

COLLECTOR, LAHORE DISTRICT

LAHORE and others‑‑‑Respondents

Intra‑Court Appeal No.257 of 1993 in Writ Petition No.5972 of 1989 and also Intra-Court Appeals Nos.354, 475, 476; 477 and 642 of 1993, decided on 28th May, 1999.

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.4----Acquisition of land‑‑‑Public purpose‑‑‑Private housing scheme, whether a public purpose-‑‑Setting up of a private housing scheme included in public purpose ".

Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. through the Secretary Fortress Stadium, Lahore Cantt. and 2 others PLD 1983 Lah:352 and Federation of Pakistan v. Province of Punjab 1993 SCMR 1673 ref:

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.4 Constitution of Pakistan (1973); Art. 24 Acquisition of land‑-‑Constitutional protection‑‑‑Purpose such protection is not a process for depriving a citizen of his property, compulsorily for personal benefit of any group.

‑‑‑‑Malice in law and malice in fact‑‑Distinction‑‑‑Mala fides or malice is not an abstract phenomena and, the same is to be specifically alleged and proved‑‑‑Distinction between malice in law and malice in fact‑‑Whatever is done in violation of law, the same cannot be said to be done in good faith and what ‑is not done in, good faith is mala fide.

Malik, Ghulam. Mustafa Khar and others. Pakistan and others PLD 1988 Lah. 49 rel.

(d) Land Acquisition Act (1 of 1894)‑‑

‑‑‑‑Ss.4, 5 & 17‑‑‑Punjab Land Acquisition Rules, 1983, R.10‑‑‑Acquisition of land‑‑‑No inquiry was held by Commissioner before issuance of notice for land acquisition which was mandatory under provisions of R.10; Punjab Land Acquisition Rules, 1983‑‑‑No explanation was on record for such lapse‑‑Notifications of land acquisition were without lawful authority.

Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others PLD 1983 Lah. 178; Mullah Ghulam Ali and others v. Commissioner of Karachi and 2 others PLD 1983 Kar. 602 and Ratilal Shankara Bhai v. State of Gujarat and others AIR 1970 SC`984 distinguished.

Muhammad Akbar and 7 others v. The Commissioner Rawalpindi, Division and 2 others PLD 1976, Lah. 747:and Collector Customs, Excise, and Sales: Tax, Peshawar and 3 others v. M/s. Flying, Kraft Paper Mills (Pvt.) Ltd., Charsadda 1999, SCMR 709 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction, exercise of Power of judicial, review Scope‑‑‑Under .the provision, of Art 199. Constitution of Pakistan, power of judicial review of administrative actions extends to see whether or not the same has been exercised by the public functionaries in a manner which does not contravene the fundamental rights of Constitutional guarantees.

Syed Mansoor; Ali Shah and Muhammad Rafiq Shah for Appellants.

Rana Muhammad Arif; Addl. A.‑G, for Respondents Nos. 1 to 4:

Sh. Zia Ullah for Respondent No. 5.

Date of hearing: 25th May, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1092 #

2000 Y L R 1092

[Lahore]

Before Ghulam Mahmood Qureshi, J

Malik SHER MUHAMMAD ‑‑‑Petitioner

versus

ASSISTANT COMMISSIONER/

COLLECTOR and 2 others‑‑‑Respondents

Writ Petition No. 1851 of 1984, heard on 4th November, 1999.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Authority for grant of proprietary rights of State land‑‑Petitioner, a non‑Gazetted Government servant was owner of less than four acres of land‑‑‑Disputed land was allowed to the petitioner under 15 years' lease scheme‑‑Petitioner applied for grant of proprietary rights of that land and the same was refused by the Collector on the ground that the land was reserved for Jammu and Kashmir refugees‑‑‑Contention of the petitioner was that the power for grant of such rights vested in District Collector and the Collector had no jurisdiction to reject the application of the petitioner‑‑‑Validity‑‑‑Neither findings about the jurisdiction of the authority to grant such rights, nor any finding about the competency of the Authority rejecting the application of the petitioner, were recorded by the Courts below‑‑‑Order of the Member (Colonies), Board of Revenue, rejecting the revision petition of the petitioner was set aside and the case was remanded for a decision afresh.

Sardar Khalid Mehmood for Petitioner.

Nemo for Respondents Nos. 2 and 3, Date of hearing; 4th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1094 #

2000 Y L R 1094

[Lahore]

Before Ghulam Mahmood Qureshi, J

KHADIM HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 964‑B of 1999, heard on 24th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.380‑‑‑Pre‑arrest bail‑‑‑Litigation between the parties was going on in Civil Court about the same cause of action which was subject-matter of the present F.I.R. and the accused had also levelled allegations against the S.H.O. of the Police Station‑‑‑F.LR. had been lodged after an unexplained delay of four months and the same appeared to have been based on mala fides‑‑‑Interim pre‑arrest bail already granted to accused was confirmed in circumstances.

Muhammad Taj v. Muhammad Akhtar and another 1997 SCMR 1336 and Mir Khan v. The State 1999 SCMR 790 ref.

Altaf Ibrahim Qureshi for Petitioner.

Iftikhar‑ur‑Rashid, Asstt. A.‑G.

Raja Sultan Khuram for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1108 #

2000 Y L R 1108

[Lahore]

Before Sheikh Abdur Razzaq, J

QURBAN ALI and others‑‑‑Petitioners

versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Writ Petition No. 1165 of 1994, heard on 27th September, 1999.

Customs Act (IV of 1969)

‑‑‑‑S.156(1)(89)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Quashing of orders‑‑‑Accused were in possession of receipts regarding the import of art silk cloth recovered from their possession at the relevant time‑‑‑Said receipts had not been got adjudged and verified to be un-genuine‑‑‑Action of the Customs Department in seizing the goods and thereafter confiscating the same was, therefore, illegal and void‑‑‑Impugned orders were consequently set aside and the Constitutional petition was accepted accordingly with the direction to Customs Department to release the cloth to the accused (petitioners) immediately.

M. Naeem Qazi for Petitioners.

Farhat Nawaz Lodhi for Respondents Nos.2 to 4.

Date of hearing: 27th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1113 #

2000 Y L R 1113

[Lahore]

Before Khawaja Muhammad Sharif, J

BABAR ZAFAR and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.605 of 1999, heard on 17th December, 1999.

Offence of Zina (Enforcement of Hudood) Ordinance. (VII of 1979)‑‑‑

‑‑‑‑S.11‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑Neither driver of the wagon from which the abductee was forcibly abducted by the accused nor any of the girls accompanying the abductee in the wagon were examined by the prosecution‑‑‑Despite the incident having taken place in a thickly populated area no independent witness from the locality was produced in the Court‑‑‑Eye‑witnesses were related to the complainant and although they claimed to be residents of the place of occurrence, but actually they did not reside there and were not believable‑‑‑No identification parade was held after apprehension of accused‑‑‑Abductee admittedly was not maltreated by the accused in any way although she remained with them for five days and she also did not raise any alarm at the time of her abduction‑‑‑Love letters and photographs exhibited on record showed a love affair between the abductee and the principal accused‑‑‑Abductee appeared to have implicated the accused in the case at the behest of her father and other relatives‑‑‑Investigation conducted in the case was not up to the mark‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Akhtar Masood Khan, Shamim Abbas Bukhari and Malik Abdul Majid for Appellants.

Kh. Muhammad Iqbal Butt and Abdul Rashid Monin for the State.

Ch. Haider Bukhsh for the Complainant.

Date of hearing: 17th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1119 #

2000 Y L R 1119

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD MASOOD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 128 of 1991, heard on 11th October, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Nobody had seen the accused committing the murder of the deceased‑‑‑Prosecution case was simply based on the confessional statement allegedly made by the accused from which he had resiled while making his statement under S.342, Cr.P.C. stating the same to be the result of torture, undue influence and coercion on the pan of the Investigating Officer whose mala fides were apparent on the record‑‑‑Confessional statement of accused, if taken out of consideration, nothing remained on record to connect him with the commission of the offence‑‑‑Accused was acquitted in circumstances.

Raja Abdul Ghafoor for Appellant.

Aftab Ahmad for the State.

Date of hearing: 11th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1121 #

2000 Y L R 1211

[Lahore]

Before Asif Saeed Khan Khosa, J

GHULAM SHABBIR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 501-B of 1999, decided on 31st March, 1999.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (A,V of 1860), S.302/337-A(ii)134 --- Bail --- Accused was not attributed any injury to the deceased and he had allegedly caused a solitary injury to a prosecution witness which did not attract the prohibitory clause of S.497(I), Cr.P.C.- Accused had no serious motive against the deceased or the complainant party-- Occurrence according to the F.LR. itself appeared to be a sudden fight without premeditation---Accused was not armed with any conventional weapon and he did not repeat the blow given to the prosecution witness---Co-accused who was instrumental in he murder of the deceased had already been admitted to bail---Question of vicarious liability of accused for the offence of murder committed by his co-accused could be gone into at the trial---Challan lord already been submitted in the Court and physical custody of accused was no longer required for investigation---Bail could not be withheld by way premature punishment---Case of co-accused needed further probe into his guilt within the purview of S. 497(2), Cr. P. C. -- Accused was admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Malik Kaleem Ullah for the Complainant.

Mian Kamran Bin Latif for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1130 #

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YLR 2000 LAHORE HIGH COURT LAHORE 1137 #

2000 Y L R 1137

[Lahore]

Before Raja Muhammad Khurshid, J

NOOR AHMAD‑‑‑Petitioner

versus

I.‑G., PUNJAB, LAHORE‑‑‑Respondent

Writ Petition No. 12432 of 1999, decided on 20th July, 1999.

(a) Administration of justice‑‑‑

‑‑‑‑Criminal trial‑‑‑Each case has its own peculiar facts for taking decision in the best interest of administration of criminal justice and no clog or closure can be applied so as to stifle the provision of justice to the parties‑‑‑Always open for a Court to see that the best possible order may be made to further and advance the interest of justice keeping in view the facts of each case.

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

‑‑‑‑S.1.56‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Transfer of investigation‑‑‑Petitioner's son was involved in a criminal case and earlier Constitutional petition as well as Intra‑Court appeal for transfer of investigation were dismissed‑‑Making of any further order directing the police officials to enter into re‑investigation or to make any fresh investigation or to dispose of any pending petition in that respect, would be against the interest of justice‑‑‑Constitutional petition being misconceived was dismissed accordingly.

Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13; Safia Begum v. S.H.O., Police Station, Garh Maharaja and 3 others 1993 PCr.LJ 97; Riaz Hussain and others v. The State 1986 SCMR 1934 and Muhammad Yousaf v. Inspector‑General of Police, Punjab, Lahore and 4 others PLD 1997 Lah. 135 ref.

Ch. Muhammad Amin Javed for Petitioner.

Waqar Saleem for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 1138 #

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YLR 2000 LAHORE HIGH COURT LAHORE 1142 #

2000 Y L R 1142

[Lahore]

Before Khawaja Muhammad Sharif, J

ZULFIQAR ALI ---Petitioner

versus

JUDICIAL MAGISTRATE FIRST

CLASS, MODEL TOWN, LAHORE and 6 others---Respondents

Writ Petitions Nos.20118 and 22606 of 1999, heard on 16th December, 1999.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bail, grant of---Magistrate granted bail to accused who were police officials when Investigating Officer appeared before Magistrate and requested that he had to recover fire-arms on pointation of accused---Bail was granted by Magistrate simply on ground that according to opinion of Deputy Superintendent of Police (Legal) no case under S.302, P. P. C. was made out against accused and instead case under S.319, P.P.C. was made out which was bail-able---Magistrate, who granted bail to accused persons in exercise of his suo motu powers, and that too without bail application on behalf of accused, was not authorised to grant bail as case against accused was exclusively triable by Sessions Court ---F.I.R. in which specific allegations were levelled against accused, was prompt in nature--Statements of witnesses recorded under S.161, Cr.P.C. had implicated the accused--Opinion of Deputy Superintendent of Police (Legal) in circumstances was mala fide and based on ulterior motive and no case under S. 319, P. P. C. was made out against accused---Order granting bail based on mala fide, without jurisdiction and passed for some extraneous considerations, was set aside by High Court in exercise of its Constitutional jurisdiction.

PLD 1986 Lah. 680; 1997 PCr.LJ 56 and PLD 1997 Quetta 69 ref.

Qadeer Ahmad Siddiqui for Petitioner.

Fauzi Zafar, A.A.-G. with Usman Anwar, A.S.P. for the State.

Muhammad Iqbal Cheema for Respondents Nos.3 to 7.

Date of hearing: 16th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1150 #

2000 Y L R 1150

[Lahore]

Before Mian Muhammad Najum-uz-Zaman

and Asif Saeed Khan Khosa, JJ

MUHAMMAD AMIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.36 and Murder Reference No.50 of 1994, heard on 14th September, 1998.

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

----S.302---Appreciation of evidence---Onus of proof---Defence plea, consideration of--Scope---Stage---Prosecution is bound to prove its case beyond reasonable doubt irrespective of any plea raised by the accused in his defence---Failure of prosecution to prove its case against accused entitles the accused to acquittal---Prosecution cannot fall back on the plea of accused to prove its case--Where the prosecution succeeds in proving its case against the accused beyond doubt, then the stage arrives for the consideration of plea of the accused in his defence and the question of burden of proof becomes relevant---Question of burden of proof on the accused to establish his plea in defence does not arise till the case is established against him by the prosecution.

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

----S.302(a)---Criminal Procedure Code (V of 1898), S.342---Prosecution case---Burden of proof---Conviction based upon statement of accused recorded under S.342, Cr. P. C.--Defence statement partly admitted and partly discarded by Trial Court---Validity--Prosecution failed to establish its case beyond reasonable doubt---Trial Court acquitted three co-accused and sentenced accused to death, solely on the basis of his statement recorded under 5.342, Cr. P. C.---Part of such statement in which the accused made the admission of the murder was admitted whereas part of grave and sudden provocation of having seen the deceased making love with his sister was discarded by Trial Court---Effect---Trial Court could either accept whole of the statement or reject the same and it was not open to the, Trial Court to take exception to any part of defence statement---Trial Court by disbelieving the prosecution story, had acquitted all the co-accused persons by giving them the benefit of doubt---Case of accused being not distinguishable from co-accused, as such accused was also entitled to the benefit of doubt---Conviction and sentence of accused awarded by Trial Court were set aside.

Altaf Ibrahim Qureshi for Appellant.

Mahar Muhammad Saleem for the State.

Mahar Khizar Hayat Sanpal for the Complainant.

Date of hearing: 14th September, 1998.

YLR 2000 LAHORE HIGH COURT LAHORE 1160 #

2000 Y L R 1160

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD JAVAID---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.874-B of 1999, decided on 1st June, 1999.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/337-A(ii)134 --- Bail --- Accused was empty-handed at the time of occurrence and he had not caused any injury to the deceased or the injured witness---Accused according to F.I.R. had held an arm of the deceased when his co-accused had given the first dagger blow to the deceased---Question of participation of accused in the occurrence, his common intention and vicarious liability for the offence allegedly committed by his co accused could be determined at the trial-- Investigation had been finalized and the challan had been submitted in the Court-- Accused had already spent a year in jail---No useful purpose could be served for keeping the accused behind the bars at such stage---Case of accused also called for further inquiry into his guilt within the meaning of S.497(2), Cr. P. C. ---Accused was allowed bail accordingly.

Altaf Ibrahim Qureshi for Petitioner.

Muhammad Rafique Rajput for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1171 #

2000 Y L R 1171

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Mst. AISHA BIBI‑‑‑Petitioner

versus

NAEEM UMAR QADRI‑‑‑Respondent

Criminal Miscellaneous No. 1302‑H of 1999, decided on 30th August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Custody of minor daughter‑‑‑Minor was removed from the lawful custody of the petitioner/mother by the respondent/father‑‑‑Wedlock of parties ended into divorce‑‑‑Respondent/father should have moved the Court of Guardian Judge for custody of the minor which was the proper forum‑‑‑Petitioner/mother being entitled to interim custody of the minor, Constitutional petition was allowed accordingly.

Muhammad Javaid Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Mst. Aisha Bibi v. Nazir and 2 others 1981 SCMR 301; Ahmad Sami and 2 others v. Saadia Ahmad and another 1996 SCMR 268; Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 and Miss Hina Jilani, Director of A.G.H.S. Legal Aid Cell v. Sohail Butt PLD 1995 Lah. 151 ref.

Jahangir A. Jhojha for Petitioner.

Mian Abdul Quddus for Respondent.

Mian Abdul Qayyum Anjum for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1180 #

2000 Y L R 1180

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD IQBAL SAJID‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1328 of 1991 and Criminal Revision No.249 of 1992, heard on 12th July, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/379/201/34‑‑‑Appreciation of evidence‑‑‑No ocular evidence of commission of offence was available except the last seen evidence of prosecution witnesses‑‑Prosecution witnesses who deposed that they had last seen deceased with accused, their evidence did not deserve any credence as their statements were recorded long time after the occurrence‑‑‑Presence of prosecution witnesses at relevant place, was neither proved from record nor their presence was natural as both prosecution witnesses were residents of 2‑1 /2 miles from place where accused hired taxi of the deceased‑‑‑Out of two prosecution witnesses before whom accused had allegedly made extra judicial confession, one had been declared hostile for not supporting prosecution version which fact had given fatal blow to prosecution version‑‑‑Statements of prosecution witnesses had not been believed by Trial Court with regard to co‑accused who had been acquitted‑‑‑In absence of any independent evidence to corroborate statements of said prosecution witnesses, conviction of accused could not be sustained‑‑‑Prosecution having failed to prove case against accused, he was acquitted of the charge.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/379/201 /34‑‑‑Appreciation of evidence‑‑‑Evidence of a witness which had not been believed to the extent of one accused, should not be believed against other accused, unless and until corroborated by some independent evidence.

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

‑‑‑‑ Appreciation of evidence‑‑‑Evidence of a witness which had not been believed to the extent of one accused, should not be believed against other accused, unless and until corroborated by some independent evidence.

Ch. Muhammad Jehangir Wahlah for Appellant.

Talat Farooq Sheikh for the Complainant.

Date of hearing: 12th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1184 #

2000 Y L R 1184

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman, J

MAQSOOD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.235‑B of 1999, heard on 23rd February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (3fLV of 1860), S.302/34/109‑‑‑Bail‑‑‑Two Investigating Officers during investigation had found the accused innocent‑‑‑One arm of the accused according to police record was not in working condition‑‑‑No recovery was effected from the accused‑‑‑Participation of accused in the occurrence in such circumstances could only be determined by the Trial Court after proper assessment of prosecution evidence‑‑Case of accused, prima facie, needed further inquiry and he was admitted to bail accordingly.

Altaf Ibrahim Qureshi for Petitioners.

Raht Raza Malik for the State.

2000 Y L R 1207

[Lahore]

Before Ch. Ijaz Ahmad, J

1JAZ HUSSAIN SHAH and 12 others‑‑‑Petitioners

versus

GHULAM AKBAR SHAH‑‑‑Respondent

Civil Revision No. 1010 and Writ Petition No. 11588 of 1999, heard on 25th November, 1999.

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

‑‑‑‑S. 151‑‑‑Inherent powers of Court‑‑‑Suit, consolidation of‑‑‑Scope‑‑‑Civil Court has ample jurisdiction to consolidate two suits which are inter‑dependent upon each other to avoid multiplicity, conflicting judgments and to prevent abuse of powers to secure the ends of justice.

Abdul Razzaq's case PLD 1997 Lah.l and 1981 CLC 443 ref.

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

‑‑‑‑S.13‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Ejectment petition and suit for specific performance of agreement to sell‑‑Consolidation of both the cases‑‑‑Trial Court consolidated the ejectment petition filed by the respondent/landlord with the suit for specific performance of an agreement to sell filed by the petitioner/tenant‑‑‑Former was rejected while the latter was decreed in favour of the petitioner/tenant‑‑‑Appellate Court accepted both the appeals filed by the respondent/landlord and set aside the decision of the Trial Court‑‑‑Validity‑‑‑No procedure having been provided in West Pakistan Urban Rent Restriction Ordinance, 1959, it was just and convenient to apply the principle laid down by C. P. C. for the conduct of such proceedings‑‑‑Respondent/landlord failed to point out that by consolidating both the proceedings, the Trial Court violated any provisions of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Rent Controller had discretion to follow and apply the provisions of C.P.C. where he considered necessary but was not to overlook express provisions of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Where the parties adduced their evidence after consolidation of both the cases the respondent/landlord had accepted the jurisdiction of the Trial Court and was estopped to resile from such situation when the case had been finally decided against him‑‑‑Judgments of Lower Appellate Court were set aside and the cases were remanded to the First Appellate Court for decision afresh.

Liaqat Ali's case 1983 CLC 1637; Maj. Retd. Afzal Muhammad Khan's case PLD 1980 Lah. 33; 1982 SCMR 33; PLD 1976 SC 422 and PLD 1983 SC 155 ref.

‑‑‑‑S.13‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Civil Procedure Code (V of 1908), S.151‑‑‑Ejectment petition and suit for specific performance of agreement to sell‑‑ Consolidation of cases ‑‑‑Approbate and reprobate, principle of‑‑‑Applicability‑‑ Where the landlord did not object the consolidation of both the cases by the Rent Controller, he was estopped to raise objection regarding such consolidation on the principle of approbate and reprobate.

Ghulam Rasul's case PLD 1971 SC 376 rel.

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

‑‑‑‑O. XLI, R. 23‑‑‑Remand of case by Appellate Court‑‑‑Scope‑‑‑Court should not remand the case in a mechanical way, without conscious application of mind.

Manzoor Hussain's case PLD 1998 Lah. 72 rel.

(e) Administration of justice‑‑‑

‑‑‑‑Technicalities should not be hindrance in the way of justice.

Alam Din's case 1999 MLD 2140; 1999 MLD 2202; Khuda Yar's case PLD 1975 SC 678 and Sher Muhammad's case PLD 1989 SC 532 ref.

Khan Khizar Abbas Khan for Petitioners.

Khalid Ikram Khatana for Respondent.

Date of hearing: 25th November, 1999

YLR 2000 LAHORE HIGH COURT LAHORE 1213 #

2000 Y L R 1213

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ZIKRIA‑‑‑Petitioner

2000 Y L R 1231

[Lahore]

Before Sheikh Abdur Razzay, J

EHSAN AHMED and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3982‑B of 1999, decided on 2nd August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1), third proviso‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail, grant of‑‑‑Delay in conclusion of trial‑‑‑Trial was not concluded because of pendency of a Constitutional petition filed by accused persons in the High Court‑‑‑Effect‑‑‑No doubt third proviso to S.497(1) of Cr.P.C. provide(, release of the accused on bail, where the trim was not concluded within specified time giver therein but where delay was due to pendent) of Constitutional petition filed by accused themselves, they were not entitled for bail---Bail was refused accordingly.

Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228; Mounder end others v. The State 1988 SCMR 1113 and Zehid Hussain Shah v. The State PLD 1995 SC 49 ref.

Shaikh Liaqat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 rel.

Masood Mirror for Petitioners.

Akbar Ali Shad for Petitioner No.3.

Shabbir Ahmad Lali for the Complainant.

Miss Shagufta Jabeen for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1234 #

2000 Y L R 1234

[Lahore]

Before Karamat Nazir Bhandari, J

Messrs KANKUN (PVT.) LTD. through

Chief Executive‑‑‑Petitioner

versus

APPROPRIATE GOVERNMENT/

PROVINCE OF PUNJAB through

Chief Secretary and 3 others‑‑‑Respondents

Writ Petition No. 16031 of 1998, decided on 13th January, 2000.

(a) Regulation of Mines and Oilfields and Mineral Development (Federal Control) Act (XXIV of 1948)‑‑‑

‑‑‑‑Ss. 2, 3, 5 & 6 (as amended by Central Adaptation of Laws Order (1 of 1964))‑‑‑Coal and coal mines, control of‑‑‑Jurisdiction of Provincial Government‑‑‑Coal and coal mines having become Provincial subject could only be dealt with by the Provincial Government.

(b) Regulation of Mines and Oilfields and Mineral Development (Federal Control) Act (XXIV of 1948)‑‑

‑‑‑‑Ss. 2, 3, 5 & 6 (as amended by Central Adaptation of Laws Order (1 of 19'64))‑‑Pakistan Mining Concession Rules, 1960, R.77‑‑‑Punjab Mining Concession Rules, 1986, Rr. 90 & 98‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Coal and coal mines‑‑‑Dispute related to the amount of royalty demanded by Provincial Government‑‑‑Notice for such demand had been issued by the Provincial Government‑‑Petitioner preferred an appeal against such notice and during the pendency of the appeal an application for decision of the matter by arbitration under R.77 of Pakistan Mining Concession Rules, 1960 was filed by the petitioner‑‑‑Contention by the Provincial Government was that the provision of arbitration was available under R.77 ‑ of Pakistan Mining Concession Rules, 1960, and such concession was not available to the petitioner, as the matter was a Provincial subject‑‑‑Validity‑‑‑Provision of R.77 of Pakistan Mining Concession Rules, 1960 envisaged arbitration by the Federal Government in the appropriate ministry‑‑Petitioner wanted the Secretary to Provincial Government to arbitrate that matter and Secretary to Provincial Government could not exercise jurisdiction conferred upon the Central Government‑‑‑Punjab Mining Concession Rules, 1986 were applicable with effect from 10‑9‑1986 and the Pakistan Mining Concession Rules, 1960 had no application in the Province of Punjab, in respect of mines not mentioned in S.6 of Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948‑‑‑Plea of petitioner was devoid of force, contradictory and the same could not be accepted.

‑‑‑‑S.3‑‑‑Punjab Mining Concession Rules, 1986, R.52(2)‑‑‑Compliance of Rules ‑‑‑Vires of R.52(2), Punjab Mining Concession Rules, 1986‑‑‑Prohibition against provisions of other measures could not be called from S.3 of Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948‑‑‑Provision of S.52(1), Punjab Mining Concession Rules, 1986, was intra vires to the present statute.

Farooq Amjad Mir for Petitioner.

Muhammad Amin Lone, Asstt. A.‑G. Punjab for Respondents.

Dates of hearing: 24th November; 6th, 7th, 13th and 14th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1239 #

2000 Y L R 1239

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3454‑B of 1999, decided on 6th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail‑‑‑Role of accused was not identical to that of co‑accused who had been granted bail by High Court‑‑‑Accused had fired twice upon the prosecution witnesses with his gun and he was the principal accused in the case‑‑‑Trial of accused was being delayed due to the non‑appearance of aforesaid co‑accused in the Court who was on bail‑‑‑Bail was not allowed to accused in circumstances.

Ch. Gulzar Ali Chohan for Petitioner.

Saleem Akram Chaudhry for the Complainant.

Muhammad Rafique for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1240 #

2000 Y L R 1240

[Lahore]

Before Maulvi Anwarul Haq, J

SALEHOON and 2 others‑‑-Petitioners

versus

SARDARA‑‑‑Respondent

Civil Revision No.2113‑D of 1986, heard on ,5th May, 1999.

Transfer of Property Ad (IV of 1882)‑‑‑

‑‑‑‑S. 119‑‑‑Transfer of property in exchange‑‑‑Transferees did not receive land which they were entitled to receive in exchange‑‑‑Grant of relief to such transferees‑‑‑Where land of such transferees was available with the transferor, option lay with the transferees to claim compensation .or to seek delivery of the said land.

M. K. Ranganathan and others v. The Calcutta Tramays Co. Ltd. and others AIR 1956 Mad. 285 and Muhammad Hussain and others v. Muhammad Nawaz and others PLD 1991 Lah. 262 rel.

Ch. Rizwan Mushtaq for Petitioners.

Nemo for Respondent.

Date of heating: 5th May, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1245 #

2000 Y L R 1245

[Lahore]

Before Raja Muhammad Khurshid, J

JAVED IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2037‑B of 1999, decided on 14th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑Penal Code (XLV of 1860), S.377‑‑‑Bail Fact that police had obtained signatures of complainant on some plain paper after the registration of the case was immaterial and was not helpful for grant of bail to accused‑‑Affidavit of other eye‑witness exonerating the accused was also of no value‑‑Victim was still supporting the prosecution case‑‑‑Accused, thus, was prima facie involved in the offence which fell within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Muhammad Akbar v. The State 1987 MLD 3096; Yaseen v. The State 1988 MLD 1959; Muhammad Ibrahim v. State 1986 PCr.LJ 1782 and Naseer Ahmed v. The State PLD 1997 SC 347 ref.

Nadeem Shabli for Petitioner.

Ghulam Haider Al‑Ghazali, Addl. A.‑G. with Shahzad Saleem for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1246 #

2000 Y L R 1246

[Lahore]

Before Khawaja Muhammad Sharif, J

WALI MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 13 of 1995, heard on 10th February, 2000.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence--Occurrence though had taken place in front of house of accused, but it was not possible that accused could know that deceased had to pass through his house at the time of occurrence--As to what transpired between deceased and accused prior to occurrence was not proved on record---Trial Court had remarked in his judgment that both the parties did not approach Court with clean hands---Stand taken by prosecution in F.I.R. with regard to weapon of offence had been changed by prosecution, after getting medico-legal report---Motive as alleged by prosecution was not worthy of credence---Injury on head of deceased proved fatal while rest of the injuries were not grievous---Possibility of provocation given by deceased to accused at time of occurrence, could not be ruled out as occurrence had taken place in front of house of accused---Conviction arid sentence awarded to accused were altered from S. 302 (b), P. P. C. to one under S. 302 (c), P.P.C. and period of seven years for which accused had remained behind the bar, was considered to be sufficient to meet ends of justice---Sentence of compensation awarded to accused by Trial Court was also set aside and accused was ordered to be released forthwith.

Syed Munawwar Hussain Naqvi for Appellant.

Saleem Nawaz Abbasi, A.A.-G. for the State.

Date of hearing: 10th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1249 #

2000 Y L R 1249

[Lahore]

Before Maulvi Anwarul Haq, J

KHALID MEHMOOD‑‑‑Petitioner

versus

ABDUR RASHEED and another‑‑‑Respondents

Civil Revision No.813 of 1999, heard on 12th October, 1999.

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

‑‑‑‑S.24‑‑‑Deposit of 1/3rd amount‑‑‑No order was passed by Trial Court fixing time for deposit of 1/3rd amount‑‑‑Effect‑‑‑Where no such order was passed by Trial Court, dismissal of suit was not justified as terms of penalty clause did not stand fulfilled‑‑‑Suit could be dismissed only if the plaintiff failed to make the deposit within the time so fixed by the Court.

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

‑‑‑‑Ss.13 & 24‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Pre‑emption suit‑‑‑No order passed by Trial Court fixing time for deposit of 1/3rd amount‑‑‑Suit of pre‑emptor ‑was dismissed by Trial Court for non‑deposit of 1/3rd amount and appeal before Lower Appellate Court also met the same fate‑‑-Validity‑‑‑Trial Court had failed in its duty prescribed by law as after 30 days of filing of the suit Trial Court did not ask the pre emptor to make any deposit‑‑‑Act of Court was not to prejudice any party to his‑‑‑Courts of law were required to act with diligence and in case they failed to perform their duty, party could not be penalized for such failure‑‑‑Judgments and. decrees of both the Courts below were set aside by High Court.

Mehboob Khan v. Sher Baz Khan and another 1993 CLC 1939 distinguished.

Awwal Noor v. District Judge, Karak and 8 others 1992 SCMR 746 fol.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Rodger v. The Comptoir d' Escompte de Paris (1871) 3‑ PC 465 and East Suffolk Rivers Catchment Board v. Kent and another 1941 AC 74 ref.

N.A. Butt for Petitioner.

Ch. Zahoorul Haq for Respondents.

Date of hearing: 12th October, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 1252 #

2000 Y L R 1252

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD YOUSAF and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.495‑B of 1999, decided on 25th March, 1999.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/324/148/149/109‑‑‑Bail‑‑‑Accused had not been named in the FI.R. as the perpetrators of the offences‑‑‑Injured prosecution witnesses had not implicated the accused in the crime‑‑‑Extra judicial confessions allegedly made by accused appeared to have been made jointly which were not admissible in evidence and the same, even otherwise, was a very weak type of 'evidence having no specific details about the incident‑‑ Last seen evidence by itself was never sufficient to positively connect the accused with the alleged offence‑‑‑Worth and evidentiary value of the said evidence collected by the prosecution, could only be determined at the trial‑‑Presently prosecution having no direct evidence positively implicating the accused in the offence, their case required further inquiry as contemplated by S.497(2), Cr. P. C. ‑‑‑Bail was allowed to accused in circumstances.

Altaf Ibrahim Qureshi and Sardar Riaz Karim for Petitioners.

Ibrahim Farooq for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1254 #

2000 Y L R 1254

[Lahore]

Before Maulvi Anwarul Haq, J

FEROZE DIN‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE

and others‑‑‑Respondents

Writ Petition No.605 of 1986, heard on 13th September, 1999.

(a) Punjab Tenancy Act (XVI of 1887)‑‑‑

‑‑‑‑S.114‑‑‑Evacuee property‑‑‑Deposit of compensation‑‑‑Provisions of S.114, Punjab Tenancy Act, 1887 do not apply to evacuee properties on its own terms.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑S.14‑B (as amended by Displaced Persons (Land Settlement) (Amendment) Act (XXXVI of 1974))‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Failure to deposit of compensation by tenant ‑‑‑Effect‑‑Authority burdened with responsibility to pay compensation‑‑‑Where the proprietary rights in the land vested in the local Muslim owners and the occupancy rights therein were settled under the provisions of Displaced Persons (Land Settlement) Act, 1958, compensation was payable to landlord by the Chief Settlement Commissioner from the compensation pool‑‑‑Tenant was under no obligation whatsoever to pay any compensation.

Ashraf and others v. Additional Deputy Commissioner(C)/Additional Settlement Commissioner (L) and others NLR 1984 SCJ 179 ref.

Hassan Ahmad Khan Kanwar for Petitioner.

Nemo for Respondents.

Date of hearing: 13th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1255 #

2000 Y L R 1255

[Lahore]

Before Sheikh Abdur Razzaq, J

YASEEN ANWAR ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.67 of 1999, heard on 5th October, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.409‑‑‑Prevenxon of Corruption Act (11 of 1947), S.S(2)‑‑‑Criminal Procedure Code (V of 1898), Ss. 342 & 364‑‑‑Appreciation of evidence ‑‑‑Entrustment of the amount in question had not been controverted or denied by the accused while cross‑examining the prosecution witness who was a member of the Committee which had conducted verification of the account maintained by him‑‑‑Local Police was not debarred by any specific provision of law from registering the case against accused; even otherwise such point was not agitated by the accused before the Trial Court and after registration of the case by local police the challan had been submitted in the Court of competent jurisdiction‑‑‑Statement of accused recorded under S. 342, Cr. P. C. was bearing a certificate in the form of a seal having the signature of the Presiding Officer which showed that the said statement had been recorded according to the provisions of 5.364, Cr. P.C.‑‑‑Conviction.! of accused we‑ upheld in circumstances‑‑‑In view of the agony of the protracted trial extending over a period of more than a decade sentence of imprisonment of accused was substantially reduced.

Malik Waheed Anjum for Appellant.

Qazi Ahmad Naeem Qureshi for Respondent.

Date of hearing: 5th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1271 #

2000 Y L R 1271

[Lahore]

Before Raja Muhammad Khurshid, J

SAJID ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 692‑B of 1999, decided on 30th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/34‑‑‑Bail‑‑‑Police investigation had linked the accused with the murder of the deceased on the basis of evidence collected so far‑‑‑Such evidence could not be discarded at random, lest it might prejudice the trial‑‑Sufficient material was available on record to show that reasonable grounds existed for believing the accused guilty of an offence falling within the prohibitory clause of S. 497(1), Cr. P. C. ‑‑‑Accused was refused bail in circumstances.

Raja Abdur Rehman for Petitioner.

Farrukh Humayun for the State,

YLR 2000 LAHORE HIGH COURT LAHORE 1273 #

2000 Y L R 1273

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

GHULAM AKBAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 113 and Murder Reference No. 15 of 1998, decided on 9th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.295‑C‑‑‑Appreciation of evidence‑‑Allegation of using derogatory remarks against Holy Prophet (p.b.u.h.)‑‑‑Accused claiming himself to be a Muslim had taken the plea before Trial Court during the trial that he did not utter such abusive language as had been alleged by the complainant and other prosecution witnesses, Court should not insist on accused that he had used the abusive language against the Holy Prophet Hazrat Muhammad (p.b.u.h.) whose teaching was always forgiveness and mercy‑‑‑Star witness in the case had not been produced by the prosecution‑‑‑FLR. had been lodged after a delay of 21 days‑‑‑Prosecution evidence was not corroborated by any independent source‑‑‑Prosecution had, thus, failed to prove its case against the accused beyond any shadow of doubt‑‑ Accused was acquitted in circumstances.

Hidaya 1410, p. 625 of Book authored by Imam Wali‑ud‑Din Muhammad p.137 and P. 619 ref.

Shaheen Masood Rizvi for Appellant.

Saleem Nawaz Abbasi, A.A.‑G. for the State.

Date of hearing: 9th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1280 #

2000 Y L R 1280

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD ASHRAF and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 228 of 1998, heard on 2nd August, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (c)‑‑‑Appreciation of evidence‑‑Nobody having seen the accused committing the murder of the deceased, no ocular evidence was available in the case‑‑‑Dead body was not identifiable according to the Doctor who had conducted the post‑mortem of the deceased‑‑‑Identification of the dead body on the basis of his teeth, nails and Salooka was not worth reliance‑‑‑Evidence of last seeing the deceased in the company of the accused being replete with contradictions, discrepancies and improvements, was not trustworthy‑‑‑Accused on having been found innocent, had also been discharged in the case by 1llaqa Magistrate‑‑‑Accused were acquitted in circumstances.

Muhammad Inayatullah Cheema for Appellants.

Ijaz Ahmad Bajwa for the State.

Date of hearing: 2nd August, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1284 #

2000 Y L R 1284

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

UMAR HAYAT‑‑‑Appellant

versus

THE STATE ‑Respondent

Criminal Appeal No. 16 and Murder Reference No.4 of 1997, heard on 3rd February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑No background of enmity existed between the parties‑‑‑Accused had admitted that he and his parents had been working as labourers with the complainant party‑‑‑Eye‑witnesses were found to have been present on the spot at the time of occurrence and to have seen the same‑‑‑Ocular testimony was corroborated by medical evidence‑‑‑Accused, therefore, was proved on record to have committed the murder of the deceased‑‑‑Nobody, however, knew or stated before the Trial Court as to what had transpired between the deceased and the accused before the actual occurrence‑‑‑Prosecution had failed to prove the motive in the case‑‑‑Conviction of accused was maintained, but his sentence of dedth was altered to imprisonment for life in circumstances.

Muhammad Hussain Naqvi for Appellant (at the State expenses).

Saleem Nawaz Abbasi, A.A.‑G. for the State, Muhammad Ashraf Mahandara for the Complainant.

Date of hearing: 3rd February, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 1293 #

2000 Y L R 1293

[Lahore]

Before Ch. Ijaz Ahmad, J

MOHAYUDDIN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 205‑B of 1999, decided on 2nd February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324/452/380/427/ 148/149‑‑‑Bail‑‑‑Interim bail granted to accused earlier had become ineffective when his bail application had been dismissed for non prosecution by the Sessions Court‑‑‑Court was duty bound and obliged to decide the bail application on merits instead of dismissing the same for non prosecution in view of the principle laid down in Fateh Muhammad's case (PLD 1973 Lah. 847)‑‑Order of Sessions Court dismissing the bail application of accused for non prosecution was consequently set aside making the same still pending before the same Court for adjudication where the accused was directed to appear on a specified date.

Fateh Muhammad's case PLD 1973 Lah. 874 ref.

Altaf Ibrahim Qureshi for Petitioner.

Khadim Nadeem Malik, A.A.‑G. for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1294 #

2000 Y L R 1294

[Lahore]

Before Muhammad Naseem Chaudhri, J

KHALID MAHMOOD and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 745‑B of 1999, heard/on 23rd February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 163‑‑‑Penal Code (XLV of 1860), S. 302/ 324/148/149/109‑‑‑Bail‑‑‑Accused were not initially named as accused in the F.I.R. by the complainant‑‑‑Accused had not caused any injury either to the deceased or to the prosecution witness‑‑‑Role of ineffective firing was even not attributed to accused at the time of occurrence‑‑‑Investigation based on special oath involving the accused in the case could not be given any weight as Criminal Procedure Code, 1898 did not provide for such procedure and Art.l63 of Qanun‑e-Shahadat, 1984 had barred the settlement of criminal cases on special oath‑‑‑Involvement of accused in the case, thus, was a matter of further inquiry‑‑‑Accused were admitted to bail in circumstances.

Mst. Bashiran Bibi v. Nisar Ahmad and others PLD 1990 SC 83 and Hussain Ahmad alias Madni v: The State 1996 PCr.LJ 130 ref.

Laal Khan Baluch for Petitioners.

A.H. Masud for the State.

Date of hearing: 23rd February, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1296 #

2000 Y L R 1296

[Lahore]

Before Maulvi Anwarul Haq, J

BAHAWAL and 5 others‑‑‑Petitioners

versus

AKBAR ALI and 17 others‑‑‑Respondents

Civil Revision No. 272‑D of 1991, heard on 6th October, 1999.

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

‑‑‑‑S.11‑‑‑Res judicata‑‑‑Applicability‑‑Proceedings in appeal‑‑‑Failure of a party to file appeal against one of the decrees passed on the basis of a consolidated judgment‑‑Effect‑‑‑Principle of res judicata or for that matter the provisions of S. 11, C.P.C. were not applicable to the proceedings in appeals‑‑‑Failure on the part of a party to file an appeal would not bar the hearing of the other appeal filed by the other party against one of the decrees passed on the basis of a consolidated judgment.

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

‑‑‑‑S.96 & O.XLI, R.1‑‑‑Appeal‑‑‑Appeal against two decrees based on one consolidated judgment‑‑‑One appeal is permissible against such decrees.

‑‑‑‑O.XXIII, R.1‑‑‑Withdrawal of suit with permission to file fresh one‑‑‑Suit was withdrawn during the pendency of appeal before the Lower Appellate Court‑‑‑Appeal was filed against two decrees based on one consolidated judgment passed in two suits‑‑Whether such withdrawal of appeal as well as the suit would affect the decree of the other party‑‑‑Other decree passed in favour of respondent in the suit filed against the petitioners and other beneficiaries stood set aside or effaced by the order of the Lower Appellate Court permitting the withdrawal of suit filed by the petitioners‑‑‑Overall effect of such proceedings and the order passed therein was that the appeal of the petitioners stood dismissed as withdrawn and resultantly both the decrees remained intact.

Abdullah v. Faqirullah and others 1981 SCMR 585; Khushi Ram Karamw Chand v. Commissioner of Income‑tax, Punjab AIR 1927 Lah. 288; Manzoor Ahmed v. Additional District Judge‑II, Rahimyar Khan and another 1988 CLC 436; Lal Din and 2 others v. Mst. Zeenat Bibi and 4 others 1987 CLC 587; Becharam Choudhuri and others v. Puma Chandra Chatterji and others AIR 1925 Ca1.845; Sashi Bhusan Basuri v. Moti Bala Dassi and others AIR 1945 Ca1.317 and Allah Ditta v. Abdul Ghafoor 1992 MLD 1301 ref.

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

‑‑‑‑Ss. 96 & 100‑‑‑First appeal‑‑‑Second appeal‑‑‑Nature‑‑‑First appeal is filed not against the judgment but against the decree of Trial Court, while a second appeal is also filed against the decree passed by a Court of appeal on an appeal against the decree of the Court of first instance.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑S.11‑‑‑Res judicata, principle of‑‑‑Object‑Section 11, C. P. C. has been enacted to confer finality upon a decision given after a fair trial and it is the intent of law that where a matter has been tried once it ought not be reagitated.

Ch. Muhammad Anwar Bhindar for Petitioners.

Khan Muhammad Virk for Respondents Nos. 15 to 18.

Nemo for the Remaining Respondents.

Date of hearing: 6th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1300 #

2000 Y L R 1300

[Lahore]

Before Khawaja Muhammad Sharif, J

NAZIR AHMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 96-J of 1998, heard on 15th April, 1999.

Penal Code (XLV of 1860)---

---S.302(c)---Appreciation of evidence--Occurrence appeared to have taken place on the spur of the moment in which accused, on having received some provocation at the hands of the deceased, had given two or three blows to him by a wooden plank which was not a lethal weapon to be used for murder Motive for the occurrence and the recovery of weapon of offence had been disbelieved by the Trial Court---Both the parties had not come to Court with clean hands and true facts of the case---Conviction of accused was maintained, but his sentence of imprisonment for life was reduced to ten years' R.1. in circumstances.

Kh. Muhammad Iqbal Butt for Appellant (at State expenses).

Masood Sadiq Mirza for the State:

Date of hearing: 15th April, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1302 #

2000 Y L R 1302

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SALEEM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1947‑B of 1998, decided on 4th November, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail‑‑‑No motive was attributed to accused in the F.I.R. for causing injuries to the servant of the complainant‑‑‑Accused had been declared innocent by police in two investigations‑‑‑No weapon was recovered from the accused during his physical remand‑‑‑Accused about one year prior to the occurrence had named the complainant as one of the accused for having abetted the murder of his brother‑‑‑Case against accused, in circumstances, called for further inquiry into his guilt‑‑‑Bail was granted to accused in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Ch. Muhammad Aslam for Respondents.

Qamar-ul-Hassan Theem for the

YLR 2000 LAHORE HIGH COURT LAHORE 1306 #

2000 Y L R 1306

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUR RASHID ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 523 of 1999, heard on 30th August, 1999.

Penal Code (XLV of 1860)‑‑‑

----Ss. 295‑A & 188‑‑‑Criminal Procedure Code (V of 1898), S. 196‑‑‑Prosecution for offences against the State‑‑‑Court was not competent to take cognizance of the offence under S. 295‑A, P. P. C. unless a complaint was made by order of or under authority from the Central Government or the Provincial Government concerned or some officer empowered in this behalf by either of the two Governments, as contemplated by S.196, Cr.P.C.‑‑‑F.I.R. in the case had been filed by a police constable who was not competent to do so under the law‑‑‑Conviction and sentences passed upon accused by Trial Court were consequently set aside and he was directed to be released forthwith.

1997 PCr.LJ 758 and 1976 PCr.LJ 184 ref.

Mian Muzaffar Ahmad for Appellant.

Mian Shahid Iqbal, A.A.‑G. for the State.

Date of hearing: 30th August, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1307 #

2000 Y L R 1307

[Lahore]

Before Khawaja Muhammad Sharif, J

SAEED AHMAD and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 911 of 1998, heard on 6th October, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Accused who was attributed fatal injury to the deceased was a proclaimed offender‑‑‑Two accused had not caused any injury to the deceased or to any prosecution witness‑‑‑One accused appeared to have been falsely implicated in the case being the father of the principal accused who had absconded‑‑‑Third accused who was a practising Advocate and was also closely related to other co‑accused, was allegedly armed with a pistol, but he did not use the same and the story put forth by the prosecution of his causing an injury to a prosecution witness after snatching a rifle from another accused, was unnatural and improbable‑‑‑Said accused being an Advocate seemed to have been roped in the case by the complainant in order to prevent him from pursuing the case of his related co‑accused‑‑Motive set up by the prosecution was neither plausible nor believable‑‑‑Crime empties recovered from the spot had falsified the prosecution story‑‑ Accused were acquitted on benefit of doubt in‑ circumstances.

Taqi Ahmad Khan for Appellants Nos. l and 3.

S.M. Latif Khosa for Appellant No.2.

Imtiaz Ahmed Kaifi, Asstt.A.‑G. with Ata Masood for the State.

Mansoor Alamgir Qazi for the Complainant.

Dates of hearing: 5th and 6th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1313 #

2000 Y L R 1313

[Lahore]

Before 10awaja Muhammad Sharif, J

SAEED ZAFAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.2314‑B and 1313‑M of 1999, decided on 30th July, 1999.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.497(2)‑‑‑Prevention of Corruption Act (11 of 1947), S.5 (2)‑‑‑Penal Code (XLV of 1860), S.409‑‑‑Bail, grant of‑‑ Accused, who was a C. S. P. Officer was behind the bars for the last more than five months‑‑‑Investigation was still incomplete and the same could not proceed without the arrest of five co‑accused who were at large‑‑‑Accused could not be detained for indefinite period‑‑‑No plausible evidence had been shown by the Investigating Officer for believing that the accused in course of his official duty had allotted land to bogus persons for his personal wrongful gain‑‑‑Accused was not likely to abscond or tamper with the prosecution evidence and his detention in jail could not serve any useful purpose‑‑‑Earlier inquiry started against the accused in the case was recommended to be dropped by the Anti‑Corruption Authorities including the complainant‑‑‑Case of the accused in circumstances needed further inquiry as contemplated by S.497(2), Cr.P.C. and he was admitted to bail accordingly.

Mian Shahid Maqbool Sheikh for Petitioner.

Mian Shahid Iqbal, A.A.‑G. for the State,

YLR 2000 LAHORE HIGH COURT LAHORE 1315 #

2000 Y L R 1315

[Lahore]

Before Khalil-ur-Rehman Ramday

and Asif Saeed Khan Khosa, JJ

MURID HUSSAIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 509 and Murder Reference No. 193 of 1994, heard on 15th December, 1999.

Penal Code (XLV of 1860)---

----Ss. 302(a) & 302(b)7--Appreciation of evidence---Sentence---Occurrence had taken place in the daylight---F. I. R. had been lodged with sufficient promptitude specifically nominating the accused as the sole perpetrator of the offence---Eye-witnesses including the complainant were related to the accused as well as to the deceased and could not be termed as interested or inimical witnesses---Such witnesses, although were chance witnesses yet their explanation for their presence at the place of occurrence at the relevant time was quite plausible---Ocular testimony was consistent regarding the main occurrence and was amply corroborated by the motive and the medical evidence--Licensed rifle secured from the possession of accused, though remained unconnected with the offers- due to lack of recovery of any crime empty from the spot, yet such a legally inconsequential recovery of the weapon of offence did not destroy the prosecution case as a whole or rendered it doubtful merley on such account---Accused had displayed ingratitude and demonstrated unashamed highhandedness in committing the murder of the deceased and deserved no concession in the matter of sentence---Sentence of death awarded to accused as Qisas under S.302(a), P. P. C. by Trial Court was not maintainable for lack of evidence contemplated by S.304, P. P. C. ---Accused was consequently sentenced to death as Tazir under S.302(b), P.P.C.

Ch. Muhammad Ibrahim for the Appellant.

M. Iqbal Butt for the State.

Date of hearing: 15th December, 1999.

2000 Y L R 1334

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD KHAN and 4 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.838‑B and 1 of 1999, decided on 10th May, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.337‑A(ii)/337‑L(ii)l34‑‑‑Protective bail‑‑Application of accused for pre‑arrest bail had been dismissed by Sessions Court on account of their absence‑‑‑Plea of accused was that they had appeared before the Sessions Court in the earlier part of the day, but at the time of announcement of the order they were busy in offering "Zohar prayers" and their absence before the Court at the relevant time was not wilful and to such effect they had filed an affidavit in the High Court‑‑‑Accused, in circumstances, were granted protective pre-arrest bail for a specified period to approach the Sessions Court for bail before arrest.

Altaf Ibrahim Qureshi for Petitioners.

YLR 2000 LAHORE HIGH COURT LAHORE 1335 #

2000 Y L R 1335

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ILYAS and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No. 930-B of 1999, decided on 7th June, 1999.

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

----S.497---Penal Code (XLV of 1860) S.399/402 --- Bail --- Dacoity --- Presence Of certain armed persons with muffled faces at night time, per se, is not sufficient to attract the provisions of Ss.399 & 402, P. P. C. because the basic ingredient in both these provisions is preparation for committing a dacoity---Evidence so far collected by the prosecution did not show any such preparation on the part of accused---Case against accused having called for further inquiry in circumstances, they were admitted to bail.

Muhammad Ayyub Memon v. The State 1990 PCr.LJ 41; Ameer Ali Khan v. The State 1994 PCr.LJ 576; Muhammad Asif and another v. The State 1995 MLD 359 and Hameer and others v. The State 1992 P Cr L J 2030 ref.

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

----Ss.399 & 402---Making preparation or assembling for committing dacoity---Mere presence of accused persons together after having armed themselves with deadly weapons is not per se sufficient to make out a case of preparation to commit dacoity.

Altaf Ibrahim Qureshi for Petitioners.

Abdur Razzaq Raja for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1341 #

2000 Y L R 1341

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 390‑B of 1999, decided on 11th March, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.337A(i), (ii), (iii)1337‑F(iii), (v)134 ‑‑‑ Pre‑arrest bail‑‑‑Bitterness admittedly existed between the accused and the complainant who were real brothers ‑‑‑Mala fide implication of accused in the case by the complainant by spreading the net wide could not be ruled out‑‑‑Occurrence was a sudden affair without any premeditation on the part of accused party‑‑‑Different Investigating Officers had given divergent findings in the case regarding innocence of accused‑‑‑Accused had a very good case for post‑arrest bail and to send him behind the bars for a few days by dismissing his application for pre‑arrest bail seemed to be ludicrous‑‑‑Interim pre‑arrest bail granted to accused was confirmed in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Jamil Chohan for the State.

Malik Muntazir Mehdi for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 1343 #

2000 Y L R 1343

[Lahore]

Before Ch. Ijaz Ahmad, J

INAM ELAHI‑‑‑Appellant

versus

MUHAMMAD JAVED and 5 others‑‑‑Respondents

Second Appeal No. 129 and Second Appeal from Order No. 130 of 1999, heard on 11th October, 1999.

(a) Approbate and reprobate...

‑‑‑‑Principle‑‑‑Nobody is allowed to approbate and reprobate.

Ghulam Rasul's case PLD 19712 SC 376 rel

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

‑‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), Preamble ‑‑‑Ejectment proceedings‑‑‑ Applicability of C.P.C.‑‑‑Recording of evidence by Rent Controller‑‑‑Provisions of Code of Civil Procedure, 1908 are not applicable in stricto senso‑‑‑Rent Controller is well within his right to ad6pt any method for recording evidence to decide the matter as quickly as possible.

Khadim Mohy‑ud‑Din's case PLD 1965 SC 459 and Sh. Abdul Sattar's case PLD 1985 SC 148 rel.

‑‑‑‑S.13‑‑‑Ejectment proceedings‑‑ Relationship of landlord and tenant‑‑ Principle of estoppel and waiver‑‑ Applicability‑‑‑Where the tenant got the premises in question on rent from the predecessor‑in‑interest of the landlord, the tenant was estopped to agitate that relationship of landlord and tenant did not exist.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss.13 & 15(6)‑‑‑Bona fide personal need of landlord‑‑‑Second appeal‑‑‑Concurrent findings of facts by both the Courts below‑‑Ejectment petition of respondent/landlord was accepted by Rent Controller on the ground of personal need and order of Rent Controller was maintained by Lower Appellate Court‑‑Appellant/tenant assailed the ejectment orders of both the Courts below in second appeal before High Court‑‑‑ Validity‑‑Appellant/tenant failed to point out any piece of evidence which was misread or non‑read by both the Courts below qua personal need‑‑‑Interference in concurrent findings of fact could be made by the High Court only when the evidence was misread and findings were based on surmises and conjectures, or were based on inadmissible evidence, or there existed an error or defect in procedure which might possibly had introduced an error or defect in the decision on merits‑‑‑Appeal being without merit was dismissed in circumstances.

1990 CLC 908; 1989 CLC 2285; Abdul Majeed v. Khalid Ahmed PLD 1959 PC 38 and Ayub Khan and another v. Fazale‑Haq and others PLD 1976 SC 422 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 2A‑‑‑Decision of cases‑‑Technicalities‑‑‑Applicability‑‑‑Technicalities should not be hindrance in the way of justice‑‑‑It was a consistent view of Supreme Court that technicalities should be avoided and cases must be decided on merits.

Khuda Yar's case PLD 1975 SC 678; Imtiaz Ahmed's case PLD 1963 SC 382 and PLD 1989 SC 532 ref.

Malik Muhammad Akram Khan for Petitioner.

S. M. Masud for Respondents.

Date of hearing: 11th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1347 #

2000 Y L R 1347

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

MUHAMMAD MURAD and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 13 and Murder Reference No.4 of 1998, decided on 7th February, 2000.

Penal Code (XLV of 1860)---

----S.302(b)34---Appreciation of evidence--Prosecution had failed to prove the motive in the case and the possibility of false implication of accused on the basis of the motive set up by it could not be ruled out--Ocular testimony was not corroborated by medical evidence---No weapon of offence was recovered from the accused---Despite 5/6 shots having allegedly been fired by the accused, no crime empty was recovered from the spot---Evidence warranting award of capital punishment must come on record through an unimpeachable source, which was lacking in the case---Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

1980 SCMR 225 and 1995 SCMR 599 ref.

Malik Farrukh Mehmood alongwith M. Umair Mohsin for Appellants.

Sardar Ahmad Khan for the Complainant.

Saleem Nawaz Abbasi, A.A.-G. for the State.

Date of hearing: 7th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1351 #

2000 Y L R 1351

[Lahore]

Before Khawaja Muhammad Sharif, J

SAJID ALI and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No. 6162-B of 1999, decided on 12th November, 1999.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.337F(iii)l 337-F(v)337-A (ii)l 337-L(ii)---Pre-arrest bail ---F.I.R. had been lodged after an unexplained delay of eight days--- No motive had been furnished in the F.I.R. ---Accused seemed to be respectable persons---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Yousaf Kazmi for Petitioners.

Khalid Naveed Dar, A.A.-G.

YLR 2000 LAHORE HIGH COURT LAHORE 1355 #

2000 Y L R 1355

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

MUHAMMAD ASLAM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.28 of 1995/BWP, heard on 8th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34 & 324‑‑‑Appreciation of evidence‑‑‑Complainant, who was the son of the deceased, was the most natural witness of the occurrence and he had also described the motive in the F.I.R. as well as in the Trial Court‑‑‑Other eye‑witness also lived near the place of occurrence‑‑‑FI.R. had been promptly lodged‑‑‑No question of substitution could arise in the case‑‑‑Parties had no previous background of enmity‑‑‑Ocular account was corroborated by medical evidence‑‑‑Motive for the occurrence was supported by long abscondence of accused‑‑Conviction of accused under S.302/34, P. P. C. and sentence of death awarded to him by Trial Court were confirmed in circumstances‑‑‑Accused was, however, acquitted of the charge under S.324, P. P. C. as the injured was not examined by the prosecution.

A. R. Tayyab for Appellant.

M. A. Farrazi for the State.

Suhail Mahmood Qureshi for, the Complainant.

Date of hearing: 8th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1358 #

2000 Y L R 1358

[Lahore]

Before Dr. Munir Ahmad Mughal, J

BASHIR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 4723-B of 1999, decided on 7th September, 1999.

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

----S. 497(2)---Bail---Further inquiry--Scope---Case would fall within the scope of further inquiry under S.497(2), Cr.P.C. only if the Court reached the conclusion that on the material before Court there were no reasonable grounds to believe that the accused was guilty of a non-bail-able offence or an offence punishable with death, imprisonment for life or imprisonment for ten years---In the absence of a finding to this effect, there would be no occasion for the Court to hold that the case was one of further inquiry.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 ref.

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

----S.497(2)---Penal Code (XLV of 1860), S.337-F(i)/337-F(v)34---Bail, grant of---All the accused had allegedly caused injuries to the victims and their vicarious liability at such stage could not be determined, as to who had inflicted grievous injuries was to be seen at the trial---Offence under S.337-F(i), P. P. C. was bail-able and the one under S.337-F(v), P.P.C. was not hit by the prohibitory clause of S.497(1), Cr.P.C.--Mere addition of S.324, P. P. C. by the police not made out from the contents of the F. I. R. or from the material on record, could not bring the case within the prohibition contained in S. 497(1), Cr. P. C. ---Co-accused with the similar role already having been released on bail, rule of consistency was attracted to the case of accused---Case against accused also needed further inquiry into his guilt---Accused was admitted to bail in circumstances.

Karim Haider and others v. The State 1986 SCMR 938; Haii Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Shahzaman and 2 others v. The State and another PLD 1994 SC 65; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Ghulam Abbas v. The State 1996 SCMR 978 ref.

----S.497(1)---Bail---Prohibitory clause in S.497(I), Cr.P.C.---Addition by police of an offence falling within the prohibitory clause of S. 497, Cr. P. C. in F.I.R. ---Effect---Mere addition of an offence falling within the prohibitory clause of S.497(1), Cr. P. C. by the police which was not made out from the contents of the F.I.R. or from the material on record, could not bring a case within the mischief of prohibitory clause contained in S. 497(1), Cr. P. C.

Rai Muhammad Tufail Khan Kharal for Petitioner.

Mian Abdul Qayyum Anjum for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1368 #

2000 Y L R 1368

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman

and Asif Saeed Khan Khosa, JJ

ABDUL MAJEED alias BHOLA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2189‑B of 1998, decided on 3rd December, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324/436/148/149‑‑‑Bail‑‑‑No specific role had been assigned to accused in the FI.R. and he was only alleged to have made indiscriminate firing at the time of occurrence alongwith other co‑accused‑‑‑Accused was behind the bars for the last more than a year and his trial had not yet concluded‑‑‑Bail was allowed to accused in circumstances.

Altaf Ibraheem‑ Qureshi for Petitioner.

Zafar Ullah Khakwani for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1369 #

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YLR 2000 LAHORE HIGH COURT LAHORE 1375 #

2000 Y L R 1735

[Lahore]

Before Mian Nazir Akhtar, J

NAGHMANA SUBHAN‑‑‑Petitioner

versus

ISLAMIA UNIVERSITY, BAHAWALPUR

through Vice‑Chancellor and 3 others‑‑‑Respondents

Writ Petition No.5626 of 1997/BWP, decided on 20th July, 2000.

(a) Calendar of Islamia University Bahawalpur (1981‑82)‑

‑‑‑‑Vol. I, Chap. 5, Regln. 12‑‑‑Duties of examiners‑‑‑Power of Head Examiner to reduce marks himself‑‑‑Difference of opinion between Head‑Examiner and Sub‑Examiner‑‑Tentative marking by Head‑Examiner and then returning the paper to Sub‑Examiner‑‑Validity‑‑‑Head‑Examiner, under the provisions of Reign. 12 of Calendar of Islamia University Bahawalpur, 1981‑82 could not make even tentative marking and send the; papers back to Sub‑Examiner thereafter‑‑‑Where Head‑Examiner made tentative marking, the same became final as under the later part of Regln. 12 of Calendar of Islamia University Bahwalpur, 1981‑82, in case of difference of opinion between Head-Examiner and Sub‑Examiner, decision of Head‑Examiner was to prevail ‑‑‑Head-Examiner on checking the prescribed percentage of answer books could arrive at a decision whether there was over‑marking or under‑marking qua each answer and could send the answer book back to Sub‑Examiner for his decision/marking for increasing or decreasing the marks suitably ‑‑‑Head-Examiner could neither make tentative marking nor could change the marks himself.

(b) Calendar of Islamia University of Bahawalpur (1981‑82)‑‑‑

‑‑‑‑Vo1.3, Chap. 5, Regln. 12‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Reduction of marks by Head‑Examiner himself ‑‑‑Head Examiner on re‑checking reduced the marks of the candidate himself and returned the answer book to Sub‑Examiner who agreed to reductions of marks and University reduced the marks of the candidate ‑‑‑Validity‑‑‑Sub Examiner was influenced by the marking done by the head‑Examiner and agreed to reduction of marks as he was conscious that his difference of opinion would be futile under the provision of later part of Regln. 12 of Chap.5 of Vol. 1 of Calendar of Islamia University of Bahawalpur, 1981‑82‑‑‑Where the, Sub‑Examiner did not independently consider the reasonableness of the award or marks qua each answer, action of Head‑Examiner and the Sub‑Examiner in re marking the candidate's paper was without lawful authority and of no legal effect‑‑‑University was directed by High Court to send the paper of the candidate for re‑marking to Sub‑Examiner.

Ch. Abdul Subhan for Petitioner.

Muhammad Mahmood Bhatti alongwith Riasat Hussain, Assistant Controller for Respondents.

Dates of hearing: 22nd June, 3rd and 5th July, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1383 #

2000 Y L R 1383

[Lahore]

Before Sheikh Abdur Razzaq, J

ABID MAHMOOD BUTT‑‑‑Petitioner

versus

MANAGER, S.B.F.C: and others‑‑‑Respondents

Criminal Miscellaneous Application No. 45‑H of 1999, decided on 23rd June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.81 & 82‑‑‑Habeas corpus petition‑‑‑Alleged detenu (defaulter) had been issued notice under S.81 of the West Pakistan Land Revenue Act, 1967 not only once but many times and on his refusal to accept the notice proceedings under S.82(1) of the said Act were initiated against him by issuing his warrant of arrest‑‑‑Since the detenu had failed to pay the arrears of loan obtained by him from Small Business Corporation, he was produced before the Collector who sent him to jail as required by S.82(5) of the Act‑‑Action taken by respondents in arresting the detenu and sending him to judicial lock‑up did not suffer from any illegality and his detention could not be declared illegal‑‑Habeas corpus petition was consequently dismissed.

Pehalwan v. Manager, Agricultural Development Bank of Pakistan, Faisalabad and another PLD 1993 Lah. 525 distinguished.

Malik Waheed Anjum for Petitioner.

Sardar Asmatullah Khan and Syed Safdar Husain Kazmi for Respondents.

Muhammad Nawaz, Manager and Zafar Iqbal, Tehsildar in person.

YLR 2000 LAHORE HIGH COURT LAHORE 1401 #

2000 Y L R 1401

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD RAFIQUE and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 4600‑B of 1999, decided on 16th September, 1999.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/109/34/148/149‑‑‑Bail, grant of‑‑Accused were closely related to principal co-accused to whom firing of pistol and gun shots were attributed‑‑‑Accused admittedly were not present on the spot‑‑‑Enmity between the parties was admitted in the F.LR.‑‑‑No witnesses were mentioned in the F.I.R. in whose presence the conspiracy attributed to accused was hatched ‑‑‑Co accused charged with the role of conspiracy had already been admitted to bail by High Court and rule of consistency applied to the case of accused whose case even otherwise required further probe‑‑‑Accused were admitted to bail in circumstances.

Syed Amanullah Shah v. The State and another PLD 1996 SC 241 ref.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.302/109/34/148/149‑‑‑Cancellation of bail‑‑‑Contention that the accused after having been released on bail were threatening the prosecution witnesses was of no help in the instant case as they were not mentioned in the FI.R. as witnesses of the occurrence‑‑Allegation was of vague and casual in nature and no report had been lodged with the police with respect to the alleged threats to the complainant or the deponents‑‑‑Petition for cancellation of bail was dismissed in circumstances.

Mehar Din v. Nazar Hussain and 3 others 1979 SCMR 351 ref.

M. A. Zafar for Petitioners.

Mian Abdul Qaddus for the Complainant.

Saifullah Khan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1406 #

2000 Y L R 1406

[Lahore]

Before Dr. Munir Ahmad Mughal, J

KHALID PERVAIZ and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.129, 223 and Criminal Revision No.150 of 1994, decided on 31st August, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302/201 /34‑‑‑Appreciation of evidence‑‑Last seen story as narrated by prosecution witnesses, who were relatives of deceased and also were in same profession (Taxi drivers), appeared to be genuine and natural‑‑Recovery of blood‑stained crime string with which deceased was allegedly strangulated had been proved through evidence of reliable witnesses‑‑‑No link was missing as to the seeing of accused with deceased in car of deceased by the witnesses‑‑‑Recovery of car from accused; pointing out the place of commission of offence of murder by accused; recovery of articles from accused belonging to the deceased and recovery of blood‑stained string were factors which linked the accused with the crime‑‑‑Place of disposal of dead body of deceased by throwing into a canal was an additional circumstance of destroying the evidence‑‑‑Prosecution case having fully been proved, Trial Court was justified in passing conviction and sentence against accused.

Sardar Ali and others v. The .State PLD 1967 SC 217 and Allah Ditto v. The State 1968 SCMR 378 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Burden of proof‑‑‑Prosecution had to stand on its own legs and the accused had to create dent in the prosecution case and they: were not bound to produce evidence‑‑‑ Where a suggestion was made and denied that would become a defence version for which onus to prove would shift on the accused.

Dr. Asghar Ahmad Rana for Appellant No. 1.

Kh. Basat Waheed for Appellant No.2.

Ras Tariq Ch. for the Complainant.

Syed Ali Raza for the State, Dates of hearing: 22nd and 23rd June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1417 #

2000 Y L R 1417

[Lahore]

Before Sheikh Abdur Razzaq, J

MUBEEN ILYAS‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 424‑B of 1999, decided on 1st July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1), third proviso‑‑‑Penal Code (ALV of 1860), S.324/337‑F(v)‑‑‑Bail on ground of statutory delay‑‑‑Counsel for the accused had obtained fifteen adjournments as per order sheet of Trial Court and case could not proceed‑‑‑Delay in conclusion of trial was mainly attributable to the accused and he was not entitled to avail the benefit of third proviso to S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228; Qaiser Mehmood v. The State 1996 MLD 157; Nazir Husain v. Ziaul Haq and others 1983 SCMR 72; Muhammad Ishaque v. The State 1996 PCr.LJ 1269; Ehsan Ali v. The State 1992 PCr.LJ 1511 and Abdur Rashid v. The State 1998 SCMR 897 ref.

Dr. Z. Muhammad Babar Awan for Petitioner.

Muhammad Ilyas Siddiqui for the Complainant.

Aftab Ahmad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1420 #

2000 Y L R 1420

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD IJAZ QURESHI. Petitioner

versus

CHANGEZ KHAN, M.I.C. and others‑‑‑Respondents

Writ Petition No.2006 of 1999, decided on 23rd September, 1999.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑S.6‑‑Constitution of Pakistan (1973), Arts.199 & 203‑D‑‑Constitutional petition‑Maintainability‑‑Polygamy‑‑‑Trial Court summoned husband to appear and answer allegations levelled against him by wife in a complaint‑‑‑Husband, in his Constitutional petition, had prayed that S.6, Muslim Family Laws Ordinance, 1961 being repugnant to Injunctions of Quran and Sunnah, be declared as a bad law‑‑‑Relief claimed by husband could only be obtained from Federal Shariat Court as provided under Art. 203‑D of Constitution of Pakistan (1973), and same could not be claimed from High Court in its Constitutional jurisdiction.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.6‑‑‑Criminal Procedure Code (V of 1898), Ss. 200, 202, 203, 204 & 356‑‑‑ Constitution of Pakistan (1973), Art.199 Constitutional petition‑‑‑Polygamy‑‑ Recording of evidence‑‑‑Husband was proceeded under S.6(5) of Muslim Family Laws Ordinance, 1961 on a complaint by wife and Trial Court finding him guilty of offence, summoned him to appear before Court‑‑‑Husband had assailed order of Trial Court alleging that order of Trial Court was based on evidence recorded by Reader of Court which had violated mandatory provisions of 5.356, Cr. P. C.‑‑‑Order passed by Trial Court was not covered by provisions of S. 356, Cr. P. C. because said provisions pertained to record in trial before Courts of Sessions and in enquiry under Chap. XII, Cr. P. C. whereas complaint against husband had been filed under 5.200. Cr. P. C. and subsequent proceedings had been initiated under Ss. 202, 203 & 204, Cr. P. C.‑‑ Provisions of S. 356, Cr.P.C., which pertained to dispute as to immovable property, were not applicable to the case of husband‑‑‑Nothing was available on record to prove that statement of complainant recorded under S. 200, Cr. P. C. by Magistrate/Trial Court was not recorded by Court in its own handwriting‑‑‑Constitutional petition filed by husband being misconceived, was dismissed, in circumstances.

Muhammad Ali Qazi and another v. The State and 3 others 1994 PCr. LJ 430; Ghulam Abbas v. Inayat Ullah and another PLD 1976 Lah. 1555; Abdul Rehman and others v. The State PLD 1983 SC 73; Muhammad Sarwar v. Khuda Bakhsh PLD 1950 Lah. 274: Abdur Rahman v. Allah Diwaya PLD 1950 BJ 96; Rehmat Khan and another v. The Crown PLD 1951 Lah. 228; Abdul Hameed v. The State 1982 PCr.LJ 949; Shaukat Hussain v. Mst. Rubina and others PLD 1989 Kar. 513 and Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169 ref.

Malik Rabnawaz Noon for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 1427 #

2000 Y L R 1427

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD AKHTAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.259‑B of 2000, decided on 15th February, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code OMV of 1860), S.324/337‑A(i)/337‑A(ii)‑‑‑Bail, grant of‑‑Question whether 5.324, P. P. C. was attracted in the circumstances of the case was a matter of further inquiry‑‑‑Offences under Ss.337‑A(i) & 337‑A(ii), P.P.C. having entailed sentence up to 7 years R.1. did not come within the ambit of the prohibitory clause of S. 497(1), Cr. P. C. ‑‑‑Co‑accused had already been released on bail by Sessions Court‑‑‑Bail was allowed to accused in circumstances.

Mian Fazal Rauf Joiya for Petitioner.

Muhammad Ibrahim Farooq for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1428 #

2000 Y L R 1428

[Lahore]

Before Muhammad Naseem Chaudhri, J

NIGHAT PARVEEN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.618‑B of 2000, heard on 28th March, 2000.

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

‑‑‑‑S.497‑‑‑Bail‑‑‑Application for bail has to be disposed of within the framework of S.497. Cr.P.C. and extraneous considerations need not be given legal force.

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

‑‑‑‑S.164‑‑‑Judicial confession before registration of case‑‑‑Validity‑‑‑Such judicial confession should have to be seen with caution.

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Case of further inquiry‑‑‑Case against accused was registered on the allegation of administering poison to her husband whereby he died‑‑‑Report of Chemical Examiners negative and as such did not support the version of prosecution‑‑Accused being a female her case was covered under S. 497(1), first proviso, Cr.P.C.‑‑Case of the accused was one of further inquiry‑‑‑Bail was allowed in circumstances.

Ch. Shafqat Ali Sulehria for Petitioner.

Syed Saeed Ahmad Tirmazi for the State.

Date of hearing: 28th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1430 #

2000 Y L R 1430

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

ZULFIQAR ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.24 and Murder Reference No.9/BWP of 1999, heard on 31st January, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 393/397 & 398‑‑‑Appreciation of evidence‑‑‑Ocular account of occurrence was incompatible with medical evidence‑‑Gun allegedly used in the occurrence was produced before the Investigating Officer by the complainant and not by the accused‑‑Accused was ‑neither related to the co‑accused nor had any community of interest with them‑‑‑Defence version when put in juxtaposition with the prosecution story seemed to be more plausible‑‑‑Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

1996 SCMR 1411 ref.

Malik Farrukh Mehmood with Muhammad Umair Mohsin for Appellant.

Saleem Abbasi, A.A.‑G. for the State.

A.R. Tayyib for the Complainant.

Date of hearing: 31st January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1436 #

2000 Y L R 1436

[Lahore]

Before Syed Zahid Hussain, J

RIASAT ALI ‑‑‑Petitioner

versus

KHALID NASEEM and 2 others‑-‑Respondents

Writ Petition No.13110 of 1998, heard on 22nd February, 2000.

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

‑‑‑‑S.133‑‑‑Nuisance, removal of‑‑‑Working of saw mill in residential area‑‑‑Jurisdiction of Magistrate‑‑‑Scope‑‑‑Where complaint was lodged by number of residents of the area where the saw mill was operating, jurisdiction and power to proceed in accordance with S.133, Cr. P. C. was available and it was not a matter of civil nature.

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

‑‑‑‑S.133‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Removal of nuisance‑‑‑Factual controversy‑‑‑Dispute was with regard to running of a saw mill in residential‑ area‑‑‑Respondent was directed by Magistrate to close the mill‑‑‑Additional Sessions Judge was of the view that mill was operating in factory area and not in the residential area‑‑‑Effect‑‑‑High Court could not, in exercise of Constitutional jurisdiction, record a finding on disputed questions of fact‑‑‑Authority concerned on due appraisal of evidence and keeping in view the ambient circumstances could form a view while deciding a dispute of such nature‑‑‑Both the Courts below had a different approach to the matter, one took the view on one side of evidence, while ignoring the other side whereas the other Court had taken a different view but without appreciating the entire evidence‑‑‑Orders of both the Courts below being illegal were set aside‑‑‑Case was remanded to the court of Magistrate for passing an order afresh.

Muhammad Asif Ranjah for Petitioner.

M. A. Zafar for Respondent No. 1.

Dates of hearing: 21st and 22nd February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1439 #

2000 Y L R 1439

[Lahore]

Before Raja Muhammad Sabir, J

WASEEM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1333‑B of 1999, decided on 18th August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)l11‑‑‑Bail, grant of‑‑‑Accused by bolting the room from outside had only facilitated the ‑commission of Zina by the co‑, accused with the prosecutrix and he himself dad not commit Zina with her‑‑‑Role of accused was minor in the occurrence and he was less than 18 years of age‑‑‑Accused was admitted to bail in circumstances.

Abdul Aziz Khan Niazi for Petitioner.

Muhammad Sarwar for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1440 #

2000 Y L R 1440

[Lahore]

Before Ch. Ijaz Ahmad, HABIB ISMAEEL‑‑‑Appellant

versus

MUHAMMAD AYYUB and 4 others‑‑‑Respondents

Second Appeals against from Orders Nos. 126, 127 and 128 of 1999, heard on 28th January, 2000.

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

‑‑‑‑S.13(6)‑‑‑Ejectment proceedings‑‑Tentative rent order‑‑‑Objection about assumption of jurisdiction of Rent Controller‑‑‑Effect‑‑‑Where such objection was raised by tenant it was duty and obligation of Rent Controller to decide point of jurisdiction as a preliminary issue before passing tentative rent order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959.

PLD 1964 Lah. 648; Muhammad Salim's case 1998 CLC 1883; Imam Din's case PLD 1991 SC 317; 1983 CLC 380; PLD 1961 Lah. 601 and 1983 CLC 2865 ref.

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

‑‑‑‑S.13(6)‑‑‑Ejectment of tenant‑‑Relationship of landlord and tenant, denied‑‑Objection about assumption of jurisdiction of Rent Controller‑‑‑Rent Controller directed the tenant under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 to deposit rent without deciding question of jurisdiction‑‑‑Rent Controller on non-compliance by the tenant of such order passed an order of eviction which was upheld by Lower Appellate Court‑‑‑Validity‑‑‑Where order of deposit of rent was passed without deciding question of jurisdiction, such order of Rent Controller was without lawful authority‑‑‑Order of eviction passed against the tenant on ground of default in compliance of order for deposit of rent was liable to be quashed‑‑‑Eviction order passed by Rent Controller was set aside in circumstances.

Abdul Khaliq's case 1979 CLC 118; Ghulam Hussain's case PLD 1982 Lah. 519 and Muhammad Salim's case 1998 CLC 1883 ref.

‑‑‑‑Basic order without lawful authority‑‑Where basic order was without lawful authority, then superstructure built on it shall have to fall automatically.

PLD 1982 Lah. 1; PLD 1958 SC 104; Ghulam Hussain's case PLD 1982 Lah. 519 and PLD 1967 Lah. 1025 ref.

Kamil Hussain Naqvi for Appellant.

Naveed Anwar Naveed for Respondents.

Date of hearing: 28th January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1444 #

2000 Y L R 1444

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

MUHAMMAD SABIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.49, 50 and Murder Reference No. 16 of 1999, heard on 2nd February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.392/34, 302/34 & 411‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses had made many improvements in their statements before the Trial Court‑‑‑Neither blood‑stained earth nor any crime empty was taken into possession by the police from the spot meaning thereby that the occurrence had not taken place in the manner as stated by the prosecution witnesses‑‑‑No description of the accused was given in the FLR. for their identification‑‑Report of Fire‑arm Expert was not present on record‑‑‑Medical evidence was in conflict with ocular testimony‑‑‑Prosecution, thus, had not proved its case against the accused beyond any shadow of doubt‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Rana S. Ahmad for Appellant.

S. M. Yousaf Khan for the State.

Date of hearing: 2nd February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1449 #

2000 Y L R 1449

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ALAM---Petitioner

versus

Mst. ZARINA BIBI and 2 others---Respondents

Writ Petition No.23754 of 1999, decided on 7th February, 2000.

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

--Art.199--Findings of fact--Constitutional jurisdiction of High Court---Scope---Findings of fact cannot be disturbed by High Court in exercise of its Constitutional jurisdiction.

PLD 1981 SC 522; PLD 1981 SC 246; 1974 SCMR 530 and PLD 1973 SC 24 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Substituting decision of Tribunals---Validity---High Court in exercise of its Constitutional jurisdiction cannot, substitute its own decision in place of the Tribunals below.

Masaddaq's case PLD 1973 Lah. 600 ref.

---- Principle of approbate and reprobate--Scope---No body should be allowed to approbate and reprobate.

Ghulam Rasul's case PLD 1971 SC 376 ref.

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

----Art. 31---Admission--- Meaning ---Acknowledgment and an act of conceding--Applicability---Where admission is clearly and unequivocally made, such is the best evidence against party making the same.

Chamber's 20th Century Dictionary; S. A. Shah's case PLD 1988 Kar. 393 and Anwar Shah's case 1987 MLD 1376 ref.

(e) Muhammadan Law---

---- Maintenance of minor child--Responsibility---Distinguishing factor between Western society and Pakistani society discussed---Duty and obligation of the father to maintain his minor child in Pakistan.

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

----S.5---Maintenance of minor child---Duty and obligation of Family Court---Scope--Duty and obligation of Family Court to decide controversy of the parties in family matters in accordance with Injunctions of Islam---Under Islamic law father is obliged to maintain his son until he has attained the age of puberty.

1997 MLD 2655; Muhammadan Law by Mullah, Sec. 352 and Ghulam Nabi's case PLD 1991 SC 543 ref.

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

----S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Maintenance of minor child---Quantum of maintenance allowance---Father raised objection to the amount of Rs. 1,000 per month fixed by Family Court on the ground that the same was beyond his means---High Court directed the father to deposit a sum of Rs.15, 000 within ten days and operation of decree was suspended subject to deposit of such amount---Father failed to deposit the suit amount---Effect---Failure to deposit such amount established that the father did not approach the High Court with clean hands-- He who seeks equity must come with clean hands---Where the father did not approach the Court with clean hands, High Court declined to exercise discretion in his favour.

Nawabzada Ronaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and G.M's. case 1990 CLC 1783 ref.

Abdul Hameed Butt for Petitioner.

Azam Sher Khan Jatoi for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 1453 #

2000 Y L R 1453

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. PERVEEN AKHTAR and 6 others‑‑‑Petitioners

versus

Agha KAMRAN ZAMAN KHAN and another‑‑‑Respondents

Writ Petition No. 1722 of 1999, decided on 8th November, 1999.

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

‑‑‑‑S.13(6)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Dispute with regard to tentative rent order passed by the Rent Controller went up to Supreme Court‑‑‑Rent Controller ordered for the ejectment of the tenant on the ground that tentative rent was not deposited in the Court in due time fixed by the Rent Controller‑‑‑Contention by tenant for such failure was pendency of proceedings before High Court and Supreme Court‑ Validity‑‑Matter being still pending before superior Courts, ejectment order was set aside and the case was remanded to Rent Controller for decision on merits.

PLD 1975 Lah. 7 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.2A‑‑‑After addition of Art.2A in the Constitution, the Supreme Court insisted that case must be decided on merits instead of technicalities.

PLD 1989 SC 532 ref.

Muhammad Aqil Chughtai for Petitioners.

Yousaf Kazmi for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 1455 #

2000 Y L R 1455

[Lahore]

Before Asif Saeed Khan Khosa, J

ZAHID ANWAR ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.181‑B of 2000, decided on 2nd February, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Case was of an un-witnessed occurrence‑‑‑Accused was, not named in the F.I.R.‑‑‑Prosecution had only circumstantial evidence against the accused in the nature of last seen evidence and extra judicial confession, worth and evidentiary value of which could be determined by the Trial Court after regarding evidence‑‑ Weapon allegedly recovered from the accused was not stained with blood‑‑‑Challan had been submitted in the Court after completion of investigation‑‑‑Accused was in jail for more than nine months and his continued custody in jail was not likely to serve any useful purpose‑‑‑Concession of bail could not . be withheld by way of premature punishment‑‑‑Co‑accused, no doubt, was still an absconder in the case but the accused could not be held as a hostage for the arrest of co‑accused‑‑‑Case against accused warranted further inquiry into his guilt within the purview of ; S.497(2), Cr. P. C. and he was enlarged on bail accordingly.

YLR 2000 LAHORE HIGH COURT LAHORE 1456 #

2000 Y L R 1456

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD NAWAZ SHAH---Petitioner

versus

IMAM BAKHSH and 4 others---Respondents

Civil Revision No.217-D of 1998, heard on 18th January, 2000.

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

----O.XX Rr.1 to 7 & O.XLI, R.31--Judgments and decrees whether by Trim Court or Appellate Court are to be given it accordance with periphery prescribed by Civil Procedure Code and if that is not followed, the judgments and decrees become illegal.

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

----O.XX1 ---Judgment, writing of---Methodology---provisions of O.XX; C.P.C. speak of the manner in which a judgment has to be attested and signed and the way Court has to express how it has appreciated evidence adduced by the parties and has come to a conclusion oh a logical basis.

----S. 2.(9)---"Judgment"---Connotation-"Judgment is statement given by Judge on the grounds of a decree or order---Judgment may not. necessarily deal with all the matters in issue in a suit but it has to determine those issues,, the decision whereof will have the effect of adjudicating all the matters of controversy or will result in final disposal of suit.

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

---S.2(9)---"Judgment"---Essential elements--One of the essential elements of a judgment is a statement of the grounds for decision and is also said to be an expression of the opinion of -the court arrived at after due consideration of evidence and all arguments.

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

S. 2 (9) & (14)--- "Judgment" and "order "---Meaning--Terms 'judgment- and "order" in their widest sense may be said to include any decision given by a Court on a question or questions at issue between the parties to, be proceedings properly before the Court.

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

2(9)--judgment-Determination of principal matter in question---Judgment in personam--Scope---Final judgment deter mines the principal matter in question conclusively so that if it is given for the plaintiff it is conclusive against the defendant and if it is given for the defendant, it is conclusive against the plaintiff ---Such judgment being judgment in personam should fully determine their rights and Court is required to have used all his skills in highlighting each and every point under controversy and his own reasons for agreeing with either of the parties on those points.

Standard Discount Co. v. La Grange (1877) 3 CPC 67 ref.

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

----O.XY, R.5---Judgment---Finding of Judge on all issues---Scope---Judgment should contain a. finding on all issues separately unless the parties do not rely on any issue.

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

----O.XLI, R. 31(a)---Expression "points for determination referred to in O.XLI, R.31(a), C. P. C. ---Scope---Such expression referred to in O. XLI, R. 31(a), C P. C. relates to important questions involved in the case and does not include issues which have been abandoned and not pressed---Appellate Court is required to record the points of determination and focus on these points for coming to a conclusion whether the Court below had dealt with or not all those points---Decision on each point should be given by Appellate Court which should be self-explanatory, self-contained, throwing light on the controversy crud simply stated in the nature of a speaking order.

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

----O.XX, Rr. 1 to 7---Judgment---Reasons have to be given in judgment for the decision arrived at so that the parties, after reading those reasons, may decide whether to prefer further an appeal or go for a revision or leave the matter as it is because of the persuasive value of the judgment---Even in case of an affirmative judgment reasons are to be given.

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

----O.XX, R.5---Judgment---Decision on each issue---Object---Object of O. XX, R. 5, C. P. C. is to keep various points arrived at for purpose of decision distinct, and brought separately, instead of lumping them together to the shape of judgment, which may only lead to confusion.

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

----O. XX, R. 4(2)---Judgment---Where judgment offends the provisions of Civil Procedure Code, 1908, it is not acceptable in law and has to be set aside.

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

---S.115---Revisional jurisdiction---Applicability---Non-adherence to the procedural law ---Effect---Non-adherence to the; procedural , law constitutes a material irregularity and the same calls for interference by High Court through its visitorial jurisdiction.

Pik Carpet Industries Ltd. v. Government of Sindh and 2 others 1993 CLC 334; Muhammad Ibrahim v. Mst. Mehmooda 1991 CLC 1795; Rafiq Abbas Zaidi and 3 others v. Mst. Shahida Begum and 3 others 1983 CLC 2036; Nisar Ahmad v. Presiding Officer. Punjab Labour Court No.2, Lahore and another PLD 1976 Lah. 1162 and Rahim Shah and another v. Ishaq and others PLD 1954 Pesh. 92 ref.

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

----O.XX R.5, O.XLI, R.3 & S.115--Revision---Failure to give finding on each issue by Trial Court and failure to determine points by Lower Appellate Court in their judgments---Concurrent findings of both the Courts below---Effect---Civil Courts were. to strictly follow the provisions of Civil Procedure Code, 1908, both in letter and in spirit and were to save wastage of time which took place on account of their aberration--Concurrent findings of both the Courts below were set aside as their judgments were not in accordance with the provisions of Civil Procedure Code, 1908---Revision was allowed in circumstances.

Messrs Caltex Oil (Pakistan) Ltd., Karachi v. Sheikh Rehan-ud-Din PLD 1958 M.P.) Lah. 63; Dr. Syed Ali Sajjad Bukhari and 6 others v. Sabir Ali Shah and 4 others 1987 CLC 229 and Abdul Karim v. Hoshiar Khan and 2 others 1983 CLC 1450 ref.

Mian Abbas Ahmad for Petitioner.

Ch. Abdul Hakim for Respondents.

Date of hearing: 18th January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1463 #

2000 Y L R 1463

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

BASHIR AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.81, 82, Murder Reference No. 15 and Criminal Revision No.38 of 1997, heard on 3rd February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Neither the complainant nor his brother was an eye‑witness in the case‑‑‑Accused according to the prosecution case itself had muffled their faces at the time of occurrence and they could not be identified on the spot‑‑No identification parade was held. in the case‑‑‑ Complainant admittedly had lodged the F.I.R. after inquiries and yet no motive for the murder was given in the F. I. R. and he had created a false motive by making an improvement in his statement at the trial‑‑Prosecution witness supporting the complainant could not be relied upon being his first cousin whose statement had been recorded by the police two days after the occurrence‑‑‑Evidence regarding the extra-judicial confession allegedly made by accused was highly discrepant and the witness before whom the same was made being neither a Lambardar nor a Councillor could not help the accused in any manner‑‑‑Recovery of incriminating articles affected in the case being in clear violation of S.103. Cr. P. C. was not trustworthy‑‑‑Site plan had been subsequently interpolated‑‑Accused were acquitted in circumstances.

Malik Farrukh Mehmood and Mian Anwar Nabi for Appellant.

Mumtaz Mustafa and Abdur Rashid for the Complainant.

Nadeem Iqbal Chaudhry for the State.

Date of hearing: 3rd February, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 1468 #

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YLR 2000 LAHORE HIGH COURT LAHORE 1477 #

2000 Y L R 1477

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD NAVEED and another---Petitioners

versus

RIAZ AHMAD and 2 others---Respondents

Criminal Miscellaneous Nos. 282-Q and 283-Q of 1998, heard on 7th February, 2000.

Penal Code (XLV of 1860)--

----S.216---Police Rules, 1934, Rr.22.48 & 22.49---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.Rs.--Police Officer, while conducting raid on the houses of accused, had neither made the entry of his arrival in the police station nor that of his departure there from in the Daily Diary and having acted in violation of Rr.22.48 & 22.49 of the Police Rules, 1934 had proceeded illegally and without jurisdiction in order to wreak vengeance----Absconding accused being a disobedient member of the family was a source of insult, degradation and inconvenience to the family---Islam ordained that offender alone would be responsible for the offence and no son would be charged for the father's crime and no father would be punished for the crime committed by the son---Police Officer had raided two houses with many police officials and still the absconding accused succeeded in making good his escape, which was not believable---Raid allegedly conducted by the police officer was, therefore, false having no legal force and the allegations of harbouring and concealing the absconding accused made against the accused were without substance F.I.Rs. registered against the accused under S.216, P.P.C. were quashed accordingly.

Khutba-tul-Hajja-tul-Wida by Holy Prophet Muhammad (p.b.u.h.) ref.

M. Ishaq Wahlah for Petitioners.

Ms. Roshan Ara, A.A.-G. for the State.

Date of hearing: 7th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1482 #

2000 Y L R 1482

[Lahore]

Before Ch. Ijaz Ahmad. J

Syed GHAZANFAR ABBAS RIZVI‑‑‑Petitioner

versus

Syed HAIDER ABBAS and another‑‑‑Respondents

Writ Petition No.23243 of 1999, decided on 15th December, 1999.

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

‑‑‑‑S.17‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑ Proceedings before Family Court‑‑‑Applicability of provisions of C. P. C. ‑‑‑Provisions of C. P. C. are not applicable in stricta senso in proceedings before Family Court‑‑‑Special provisions of West Pakistan Family Courts Act, 1964 exclude the general provisions of C.P.C.‑‑‑Family Court is competent to regulate its own proceedings as West Pakistan Family Courts Act, 1964, does not make provisions for every conceivable eventuality and unforeseen circumstances.

1999 CLC 81; 1964 CLC 890 and Zia‑ur‑Rehman's case PLD 1973 SC 49 rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Application for enhancement of amount of maintenance‑‑‑Family Court dismissed the application without framing any issue‑‑ Lower Appellate Court accepted the appeal and remanded the case for decision on merits after framing of issues and recording of evidence‑‑‑Validity‑‑‑Judgment of the Lower Appellate Court was in accordance with law.

1985 MLD 98 ref.

M. Shahid Rana for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 1484 #

2000 Y L R 1484

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi and Mian Saqib Nisar, JJ

Messrs ISMAN DRUG HOUSE (PVT.)

LTD. and 2 others‑‑‑Appellants

versus

Messrs HABIB CREDIT AND EXCHANGE

BANK LIMITED and 4 others‑‑‑Respondents

Regular First Appeals Nos.336 of 1997 and 588 of 1996, decided on 29th November, 1999.

(a) Banking Tribunals Ordinance (LVIII of 1984)___

‑‑‑‑Ss.4 & 6(6) [as amended by Finance Act (VII of 1990)]‑‑‑Constitution of. Pakistan (1973), Arts.2A, 4, 8, 25 & 175‑‑‑Vires of provisions of Ss.4 & 6(6) of Banking Tribunals Ordinance, 1984‑‑‑Provisions of Ss.4 & 6(6) of Banking Tribunals Ordinance, 1984 were unconstitutional as the same eroded the independence of judiciary and were hit by Art. 175 read with Arts. 2A, 4, 8 & 25 of the Constitution of Pakistan (1973).

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. PLD 1996 Lah. 672 rel.

(b) Banking Tribunals Ordinance (LVIII of 1984)‑‑‑

‑‑‑‑Ss.6(6) & 9‑‑‑Appeal‑‑‑Judgment and decree of Banking Tribunal was declared invalid and inoperative by High Court in exercise of its Constitutional jurisdiction‑‑Where the decree in itself was assailed in a Constitutional petition and such petition had already been accepted, and the decree had been declared invalid and inoperative, the proceedings in the suit stood revived and transferred to the respective Banking Court‑‑Execution petition could not continue as the decree dirt not exist any longer.

Shahid Ikram Siddiqui for Appellants.

Muhammad Ismaeel Qureshy and Waqar Saleem for the Purchasers.

Khalid Mehmood on behalf of Bank

Sh. Zial Ullah for Respondent No.3.

Date of hearing: 17th November, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 1488 #

2000 Y L R 1488

[Lahore]

Before Falak Sher, J

KHURRAM ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7248‑B of 1999, decided on 19th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/201/34‑‑‑Bail on the ground of consistency‑‑‑Co‑accused had already been released on bail by High Court on merits‑‑Accused had sought bail urging rule of consistency which remained un-refuted by the prosecution‑‑‑Bail was granted to accused in circumstances.

Syed Qarab Hussain Rizvi for Petitioner.

Muhammad Attique Khan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1490 #

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YLR 2000 LAHORE HIGH COURT LAHORE 1496 #

2000 Y L R 1496

[Lahore]

Before Jawwad S. Khawaja, J

ALLAH BAKHSH and 6 others‑‑‑Appellants

versus

Mst. AIMNA and 2 others‑‑‑Respondents

Regular Second Appeal No.246 of 1972, heard on 15th December, 1999.

Muhammadan Law‑‑‑

‑‑‑‑Inheritance‑‑‑Appellants asserted that respondent was not daughter of the deceased and had been wrongly included in the legal heirs of the deceased‑‑‑Validity‑‑‑Evidence led by parties preponderantly showed that respondent, although daughter of the widow, yet was not daughter of the deceased‑‑Judgment and decree passed by Court, in favour of the respondent were set aside.

Islam Ali Qureshi for Petitioners.

Malik Muhammad Ali for Respondents.

Date of hearing: 15th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1498 #

2000 Y L R 1498

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD HAFEEZ through Legal

Heirs‑‑‑Petitioner

versus

MUHAMMAD YOUSAF through Legal

Heirs‑‑‑Respondent

Writ Petition No.313‑R of 1987, heard on 11th February, 2000.

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

‑‑S.2(2)‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑Jurisdiction of Settlement Authorities after repeal of settlement laws‑‑‑Correction of transfer order by the Settlement Authorities after 30‑6‑1974‑‑‑Grievance of petitioner was that the Settlement Authorities refused to interfere in the Transfer Order having printing mistake and the same was not corrected‑‑‑Validity‑‑‑Settlement Authorities, after repeal of the Settlement Laws, had no jurisdiction to entertain any such application after 30‑6‑1974, except in the cases saved by S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Cases saved by the statute were those cases which were pending on the cut‑off date or remanded by the High Court and Supreme Court‑‑ Settlement Authorities were justified in refusing to interfere in the transfer order for want of jurisdiction.

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

‑‑‑‑S.2(2)‑‑‑Jurisdiction of Settlement Authorities after repeal of settlement laws‑‑ determining status of property after 30‑6‑1974, which had gone out of compensation pool‑‑‑Validity‑‑‑Chief Settlement Commissioner or any Authority subordinate to him had no jurisdiction to set aside or re-determine the status of such property in view of the provisions of Evacuee. Property and Displaced Persons Laws (Repeal) Act, 1975.

Muhammad Siddique v. Mst. Hawabai and 5 others 1986 CLC 54; Haji Habib v. Haji Muhammad and another 1981 CLC 543; Noor Begum v. Mahmood Ahmed Khan and others 1982 CLC 2500; Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCMR 228; Headmaster, Muslim High School No.1. Rawalpindi v. Mst. Asghari Khanam and 2 others 1984 SCMR 332; Muhammad Younus and 2 others v. Muhammad Younus Khan and others 1981 SCMR 899; Raja Hassan Akhtar and others v. Akbar Khan and others 1981 SCMR 503; Mst. Iqbal .Siddiqui v. Assistant Settlement Commissioner (Urban) and others PLD 1984 Lah. 291 and Mst. Asghari Khanum v. Maj. Iqbal Cheema and 3 others PLD 1982 Lah. 569 ref.

‑‑‑‑S.2(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Interference with findings of facts‑‑‑Correction of transfer order by Settlement Authorities after 30‑6‑1974‑‑Dispute was with regard to number of a property transferred in the name of the respondent‑‑‑Contention by petitioner was that there was tampering with the transfer order‑‑‑Both the Courts below and the Settlement Authorities did not find any tampering‑‑‑Validity‑‑‑Findings of fact given by the Courts below as well as by the Settlement Authorities were based on proper appraisal of evidence on record and the same could not be interfered with by the High Court in the Constitutional jurisdiction‑‑Petitioner failed to show any illegality in issuance of transfer order in favour of the respondent‑‑‑Petition was dismissed accordingly.

Sh. Anwaar‑ul‑Haq and Abdul Wahid Chaudhry for Petitioners.

Arshad Mehmood Chaudhry for Respondent No.2.

L. Hs. of Respondent No. 1: Ex parte.

Mazhar Sher Awan, A.A.‑G. for Respondents Nos.3 and 4.

Date of hearing: 11th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1503 #

2000 Y L R 1503

[Lahore]

Before Falak Sher, J

ABDUL AZIZ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.767-B of 1999, decided on 5th May, 1999.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail---Extra judicial confession made by accused before the Investigating Officer was inadmissible in evidence---Last seen evidence allegedly furnished by the maternal uncles of the deceased against the accused lacked credence as their presence in the vicinity was purely a matter of chance who hailed from a distant area and had kept mum for four days after having seen the deceased accompanying the accused---No incriminating article had been recovered from the accused---Motive for the occurrence was not alleged against the accused---Accused had already served eight months internment and was no more required by the Investigating Agency as the challan had been submitted in the Court---Commencement of the trial in the case was yet out of sight--Contentions urged on behalf of accused could not be dislodged by the prosecution---Accused was allowed bail in circumstances.

Mian Muhammad Raft Mughal for Petitioner.

Mian Abdul Qayyum Anjum for the State.

Mian Saeed Hassan for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 1504 #

2000 Y L R 1504

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. AKHTAR PARVEEN---Petitioner

versus

THE METROPOLITAN CORPORATION

and another---Respondents

Civil Revision No.1085-D of 1995, heard on 25th November, 1999.

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

----Ss.42 & 56---Civil Procedure Code (V of 1908), S.115---Suit for declaration and permanent injunction--Concurrent findings of fact by both the Courts below---Boundaries of property mentioned in registered sale deed---Value---Dispute was regarding issuance of notice by the respondent/ defendant whereby the petitioner/plaintiff was directed to remove her superstructure raised on the plot owned by her---Both the Courts below dismissed the suit of the petitioner/plaintiff on the ground that she had excess area in her possession and had encroached on municipal land---Contention by petitioner plaintiff was that such plea of encroachment was neither mentioned in the notice nor it was stated in the written reply filed by the respondents/defendants--Validity---Where there was nothing on record to suggest that the boundaries stated in the sale-deed were not correct, such findings of both the Courts below could not be sustained---Both the Courts below having not only allowed the respondent defendant to walk out of their pleadings contained in their written statement but placed reliance on evidence which by all means was inadmissible, judgments and decrees of both the Courts below were set aside in revision.

(b) Maxim---

---- "Secondum allegata adprobeta---Meaning and applicability---Party could not be allowed to lead evidence in respect of plea not taken in the pleadings and even if such evidence was brought on record, the same could not be looked into---Where the defendant did not mention in his written reply anything about encroachment by the plaintiff but such plea was raised during evidence led by the defendant, admission of such evidence was in violation of the rule of "seeondum allegate adprobeta" in circumstances.

Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala and others 1968 SCMR 804 ref.

----Boundaries of immovable property--Value---Where there was inconsistency between the area and the boundaries in a document and if the boundaries were definite then it were the boundaries which were to prevail.

Fazal Hussain and another v. Abdul Hamid PLD 1971 Lah. 89 and Mundar Lal Sahu and others v. Jiwan Ram Marwari AIR 1944 Pat. 254 ref.

Ahmad Waheed Khan for Petitioner.

Faiz Muhammad Bhatti for Respondents.

Date of hearing: 25th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1508 #

2000 Y L R 1508

[Lahore]

Before Ihsan‑ul‑Haq Chaudhry, J

KHUSHI MUHAMMAD‑ Petitioner

versus

ABDUL GHAFOOR‑‑‑Respondent

Civil Revision No.1 of 2000 decided on 4th January, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17‑‑‑Amendment of written statement‑‑‑Defendant wanted to add explanations to the legal objections taken by him in the written reply‑‑‑Trial Court allowed such amendment on the ground that the same would not change the nature of the suit‑‑‑Validity‑‑‑Amendment had been allowed properly and in a way the defendant had done a favour to the plaintiff by forewarning him of his detailed plea in defence.

Muhammad lqbal v. Muhammad Ramzan and others PLD 1987 Azad J&K 170; Ijaz Mahmood and others v. Manzoor Hussain and others 1988 SCMR 34 and m.v. Kaptan Yousuf Kalkavan v. Semco Salvage . PTD Ltd. 1992 CLC 143 distinguished.

Saif‑ul‑Haq Ziay for Petitioner

YLR 2000 LAHORE HIGH COURT LAHORE 1510 #

2000 Y L R 1510

[Lahore]

Before Malik Muhammad Qayyum

and Ghulam Mahmood Qureshi, JJ

MUHAMMAD AZAM ISHTIAQ‑‑‑Appellant

versus

MANAGING DIRECTOR, SUI

NORTHERN GAS PIPELINES LTD., 21 KASHMIR ROAD, LAHORE and

2 others‑‑‑Respondents

Intra‑Court Appeal No.633 of 1997 in Writ Petition No.23319 of 1996, heard on 2nd February, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court appeal‑‑Constitutional petition‑‑‑Maintainability‑‑Constitutional petition was dismissed by High Court holding that company being a limited company by shares, Constitutional petition could not be maintained against such company‑‑‑Validity‑‑‑Company which was performing function in connection with affairs of Federation, was amenable to Constitutional jurisdiction of High Court‑‑Mere fact that company was a limited company by shares, was not sufficient to hold that Constitutional petition could . not be maintained against it.

‑ Messrs Sandal Fibres Limited v. Government of Pakistan and others PLD 1992 Lah. 400 and Javed Iqbal and others v. Federal Investigation Agency and others PLD 1986 Lah. 424 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑Art.l99‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Contractual service‑‑Enforcement by Constitutional petition‑‑Service of appellant being contractual in nature, such contract could not be enforced through Constitutional petition, especially when relationship was not governed by statutory Rules.

Muhammad Azam Suhail v. Government of Pakistan 1998 SCMR 1549 ref.

Muhammad Shehzad Shaukat for Appellant.

Saleem Baig for Respondents.

Date of hearing: 2nd February, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 1511 #

2000 Y L R 1511

[Lahore]

Before Ali Nawaz Chowhan, J

Hakeem B.A., SHAD and 2 others‑‑‑Appellants

versus

FAKHRA ASHFAQ and another‑‑‑Respondents

First Appeal from Order No.27 of 1998, heard on 1st July, 1999.

Copyrights Ordinance (XXXIV of 1962)‑‑‑

‑‑‑‑Ss.10, 11 & 14‑‑‑Civil Procedure Code (V of 1908), O.XX, R.16 & O.XXXIX, Rr.1, 2‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑Intellectual property‑‑‑Suit for declaration and permanent injunction‑‑‑Interim relief, grant of‑‑‑Plaintiffs/applicants had claimed that they were co‑authors of disputed books whereas objection of defendants/respondents was that applicants were not the co‑authors‑‑Case being of intellectual property, a statement under S.10, Copyright Ordinance, 1962 was necessitated permitting parties to cross‑examine each other for ascertaining not only the intellectual calibre for authoring said books, but also about special relationship which plaintiffs/applicants were having besides checking manuscript alongwith exception of respondent regarding custody of manuscript with applicants as well as past relationship between authors of the books‑‑‑Case was remanded to record statements of parties for disposal of application under O.XXXIX, Rr.1 & 2, C. P. C. with consent of parties.

Muhammad Ajmal Khan for Appellants.

Muhammad Jehangir Asif for Respondents.

Date of hearing: 1st July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1513 #

2000 Y L R 1513

[Lahore]

Before Muhammad Akhtar Shabbir, J

RASOOL BAKHSH---Petitioner

versus

DISTRICT JUDGE, DERA GHAZI KHAN

and 15 others---Respondents

Writ Petition No.562 of 1981, heard on, 18th January, 2000.

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

----S.54---Oral contract of sale---Registration of---Scope---Where the contract was not reduced into writing, it was not necessary to register the same.

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

----S.54---Punjab Municipal Act (111 of 1911), S.214---Notification No. 3007-78/1511 /LRI dated 22-11-1978---Document not to be compulsorily registered---Applicability-- Requirements of compulsory registration under S.54 of Transfer of Property Act, 1882, has been dispensed with vide Notification No. 3007-78/1511 /LRI, dated 22-I1-1978, whereby application for such provision of compulsory registration has been restricted only to Municipalities and Notified Aras as declared and notified under S.214, Punjab Municipal Act, 1911.

Nazar Hussain Shah v. Noor Shah and others 1986 MLD 2856 ref.

----Ss.10 & 12---Oral agreement to sell--Validity---Writing was not necessary to constitute valid agreement to sell---Oral agreement to sell could also be valid and legal and was binding on parties, when the same were made by the free consent of the parties competent to contract for a lawful object and was not expressly declared to be void.

Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170 ref.

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

----S.22---Decree for specific performance of agreement to sell immovable property--Jurisdiction of Court---Grant of such decree is a matter of discretion of Trial Court and capable for correction by Appellate Court.

(e) Specific Relief Act (1 of 1877)---

----Ss.12 & 22---Oral agreement .to sell immovable property---Suit for specific performance of such agreement--Maintainability---Civil Court was competent to entertain and hear the suit for specific performance of contract on the basis of oral agreement to sell---Such suit was not barred by any law.

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

----Ss.12 & 22---Civil Procedure Code (V of 1908), OVII, R.11---Suit for specific performance of oral agreement to sell immovable property---Suit was filed by plaintiff and defendant moved application under O. VII, R.11, C. P. C. on the ground that filing of suit was barred by law and same required rejection---Trial Court dismissed the application while it was allowed by Lower Appellate Court in exercise of its revisional jurisdiction---Validity---Course adopted by Lower Appellate Court was not proper on the ground that if the suit was not competent, the issue of law should have been treated as preliminary issue and decided accordingly--Where neither such course was adopted by the Lower Appellate Court, nor the defendant had raised objection in his written statement which was pleaded in the application under O. VII, R.11, C. P. C., judgment and decree of the Lower Appellate Court was passed without lawful authority and of no legal effect.

Muhammad Iqbal and 3 others v. Mst. Rehmat Bibi through Legal Heirs 1998 CLC 11 ref.

Islam Ali Qureshi for Petitioner.

Muhammad Anwar Awan for Respondents Nos.3 to 13.

Date of hearing: 18th January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1517 #

2000 Y L R 1517

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD KHALID and 4 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 623 of 1998, decided on 25th April, 2000.

Penal Code (XLV of 1860)---

----S.302/324/337(1) (a) (t)/148/149---Appreciation of evidence---Prosecution could not prove motive of occurrence as alleged by complainant---Delay of 03-55 hours in lodging F.I.R. was without any plausible explanation---Parties were involved in the case due to previous enmity---Complainant had himself admitted that criminal case was got registered against him by father of one of the accused persons---Case was that of a free fight without any premeditation---Except the injured and complainant, other prosecution witnesses having been given up, adverse inference could be drawn against prosecution---Injuries attributed to two of the co-accused having proved to be simple, their conviction could not be maintained under S.302(c), P.P.C.---Conviction of said co-accused was altered to S.337(1) (a), P. P. C. as Shujjah-i-Khafifah and were sentenced accordingly---Injuries attributed to other two co-accused having been declared fatal, their conviction under S.302(c), P. P. C. was justified and conviction and sentence awarded to said accused were maintained---Accused who had caused injury on persons of deceased by blunt weapon like Sota, his sentence was altered to S. 337-T, P.P.C. and he was also made liable to pay substantial amount to victim---Benefit of S.382-B, Cr.P.C. also given to all accused.

Nisar Ahmad v. The State 1977 SCMR 175; Syed Ali Beqari v. Nibaran Mollah and others PLD 1962 SC 502; Ghulam Nabi alias Kala v. The State 1998 PCr.LJ 1568; Amjad Farooq and others v. The State 1998 PCr.LJ 1590; Maqsood Ahmad and others v. State 2000 PCr.LJ 862; Inayatur Rehman v. The State 1998 MLD 1033; Muhammad Khalid alias Goga v. The State 1997 MLD 1868 and Muhammad Nawaz and 4 others v. The State 1998 PCr.LJ 2029 ref.

Ch. Mushtaq Ahmad Khan and Ch. Zafar Iqbal for Appellants.

Miss Aliya Neelam for the State.

Date of hearing: 7th April, 2000.

2000 Y L R 1596

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD AHSAN---Petitioner

versus

GOVERNMENT OF PUNJAB through

Secretary Education, Civil Secretariat, Lahore and 4 others---Respondents

Writ Petition No. 1532 of 2000, decided on 4th May, 2000.

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

-------Art.199-Constitutional----petition-Maintainability---Educational-----institution-- petitioner-candidate had failed to point out any violation of relevant Rules and Regulations committed by Authorities in cancelling certificate earlier issued to him--Candidate did not allege any specific allegation of mala fides against the Authorities---High Court had no jurisdiction to substitute its own decision in place of decision of Tribunal below---Constitutional petition filed by petitioner was not maintainable in circumstances.

Samar Pervaiz v. Board of Intermediate and others PLD 1971 SC 838; PLD 1966 Kar. 481; Mian Kovits Kumari v. Board of Intermediate PLD 1987 Kar. 688; The Controller of Examination, University of the Punjab, Lahore and 3 others v. Shamim Akbar 1986 SCMR 1526; Muhammad Zahur v. Vice-Chancellor, University of the Punjab and others 1988 MLD 700; Shahid Saleed v. Board of Intermediate and others 1987 MLD 3053; Munir Ahmad v. University of Baluchistan through the Controller of Examination and others PLD 1979 Quetta 131; Muazzam Nasir Chanda v. Board of Intermediate and Secondary Education, Lahore through Chairman 1998 CLC 627; Farukh Din and others v. Government of Sindh and others PLD 2000 Kar. 154; Muhammad Yasin v. The Board of Intermediate and Secondary Education, Multan through Chairman 1997 CLC 587; Muhammad .Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Sakhi Ahmad Khan v. Board of Intermediate and Secondary Education, Faisalabad 1999 MLD 3410; Saeed Nawaz's case. PLD 1981 Lah. 371; Akhtar Mir's case 1984 SCMR433 and Massaduq's case PLD 1973 Lah 600 ref.

(b) Educational institution---

----Using of unfair means in examination--Cancellation of certificate---Candidate appeared only in one paper at examination centre allotted to him for taking examination and remained absent in other papers from examination centre and by using, unfair means managed to send his answer books of remaining papers through a different examination centre and passed that examination obtaining highest marks and certificate was issued to him---Authority on detection of said unfair means through notification cancelled, certificate issued to petitioner---Action of Authorities based on unrebutted evidence on record and not based on surmises and conjectures, was correct and could not be interfered with.

----Applicability---If any order was illegal then perpetual rights could not be gained on basis of said illegal order and principle of locus poenitentiae would not be attracted.

Zafar Ullah v. Board of Intermediate and Secondary ' Education PLD '1981 Lah.244; Zafar Ullah v. Board of Intermediate and Secondary Education and another 1982 SCMR 571; Jalal-ud-Din's case PLD 1992 SC 207; Rahat Siddiqui's case PLD 1975 Lah. 257; Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore and another 1977 SCMR 213 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 ref.

Rana Farman Ali Sabir for Petitioner.

Dr. Mohi-ud-Din Qazi for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 1601 #

2000 Y L R 1601

[Lahore]

Before Tassaduq Hussain Jilani, J

Messrs GHULAM MUHAMMAD DOSAL

& COMPANY through

Proprietor‑‑‑Appellant

versus

Sufi SHAHID HASSAN ‑‑‑Respondent

Second Appeal from Order 27 of 2000, decided on 21st March, 2000.

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

‑‑‑‑Ss. 13 & 15‑‑‑Bona fide personal need of landlord‑‑‑Second appeal‑‑‑Rent Controller and Appellate Authority below concurrently ordered ejectment of tenant on ground of personal bona fide need o/' landlord‑‑‑Tenant filed appeal against concurrent order of ejectment ‑‑‑Appellant/tenant conceded during hearing of appeal that he would not press appeal provided some reasonable time was given to appellant/tenant to vacate the premises‑‑‑Respondent/landlord agreed to grant reasonable time to tenant to make alternate arrangement, but thereafter appellant/tenant took altogether different stand that tenant did not want any time but wanted the appeal to be decided on merits‑‑Tenant being bound by his earlier undertaking appeal of tenant merited dismissal on that ground.

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

‑‑‑‑S. 13(3)‑‑‑Bona hide personal need of landlord‑‑‑Plea of landlord with regard to his personal bona fide need in respect of premises in dispute was objected to by tenant contending that landlord had other property which could be utilized for his personal need‑‑Contention of tenant was repelled because it was for landlord to decide and work out details for his personal need and tenant had no right to put any clog on that‑‑If landlord would use premises for purpose other than personal bona fide need, tenant had a remedy in law.

A. Karim Malik for Petitioner.

Anwar Ullah Sheikh the Respondent.

YLR 2000 LAHORE HIGH COURT LAHORE 1607 #

2000 Y L R 1607

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD SAEED (RANA SAEED AHMED)‑‑‑Petitioner

versus

HOME SECRETARY, PROVINCE:

OF PUNJAB and 7 others ‑‑‑ Respondents

Amended, Writ Petition No. 22228 of 1999, heard on 25th April, 2000.

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

‑‑‑‑Ss. 156, 176, 561‑A do 551‑‑‑Penal Code (W of 1860), S.302/324/353/186/148/149‑Constitution of Pakistan (1973), Art. 199‑Constitutional petition‑‑‑Investigation of case‑‑‑Transfer of inquiry on direction of Chief Minister‑‑‑Quashing of order and proceedings‑‑‑One police constable from police side and four from other side were killed in an encounter‑‑‑Case was registered at police station concerned in the District but with direction of Chief Minister an Inquiry Committee was constituted at other District comprising members belonging to that District ‑‑‑Committee, so constituted conducted inquiry/investigation, prepared detailed report and submitted recommendations for proceedings against police officers for murder of civilians and one Army Havaldar‑‑‑Constitution of said Inquiry Committee on direction of the Chief Minister was assailed on ground that Chief Minister's Secretariat was not possessed of jurisdiction to appoint Inquiry Committee ‑‑‑Validity‑‑Chief Minister, no doubt, was Executive Head being Chief Political Authority, but he could not be allowed to usurp powers of competent officers mentioned in Criminal Procedure Code, 1898, as in whole of the scheme of said Code, Chief Minister did not figure anywhere to pass order for transfer of investigation and that too from concerned District ‑to another District‑‑‑Fundamental Rules of Business were that law could be set in motion if there was substantive jurisdiction conferred upon persons exercising same‑‑‑Chief Minister had no jurisdiction to issue direction and inquiry/investigation could not be sent by him out of one District to another as that would be transgression of authority on his part‑‑Chief Minister's direction for transfer of inquiry/investigation was without jurisdiction, illegal and inoperative and proceedings conducted by such Inquiry Committee was also coram non judice‑‑‑Proceedings and recommendations made by Inquiry Committee were ordered to be quashed in circumstances.

Masti Khan v. Ahmad Nawaz Khan Niazi, Superintendent of Police, Kasur and 3 others 1987 PCr.LJ 391; Haji Ahmad v. S.S.P., Rahimyar Khan and others 1997 PCr. LJ 2069 and Muhammad Aslam v. S.H.O. and others PLJ 1997 Lahore 453

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

‑‑‑‑Ss. 154 & 176‑‑‑Second F I. R. ‑‑Registration of‑‑‑Holding of judicial inquiry under S. 176, Cr. P. C. was no bar for registration of second F.I.R. under S. 154, Cr. P. C.

Ch. Mushtaq Ahmad Khan and M.M. Arshad for Petitioner.

Ms. Roshan Are Addl A.‑G. for Respondents Nos. 1 to 7.

Abdul Razzaq for Respondent.

Date of hearing: 25th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1623 #

2000 Y L R 1623

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

MUHAMMAD GHAZAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 159 and' Murder Reference No. 98 of 1995, heard on 12th April, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Reduction in‑‑‑Accused and the complainant party belonged to one village and same brotherhood, and at a point of time fraternal relations existed between them‑‑Deceased alongwith others had been convicted for murder of brother of the accused‑‑‑When deceased arrived in the village on parole to attend marriage party of his sisters, accused, who had a score to settle with the deceased, found opportunity to kill him‑‑‑Time and place of occurrence was not denied by accused‑‑‑Occurrence which had taken place during broad daylight was witnessed by prosecution witnesses alongwith other villagers and presence of prosecution witnesses had fully been proved‑‑‑Prosecution witnesses who were natural witnesses and also believable, their testimony was fairly consistent and accused had failed to shatter prosecution case in any manner‑‑‑Ocular account was supported by explanatory evidence such as site plan and no contradiction had been found in ocular account of incident and medical evidence‑‑Accused had failed to prove that deceased was killed by police firing‑‑‑Incident took place in view of village, but none had come forward to support defence version and any evidence or circumstance or inference deducible from record also did not support defence version‑‑‑Recovery of offensive weapon had further corroborated prosecution case‑‑‑Case against accused having fully been established on strength of evidence of motive and ocular account, which was supported by other corroborative material explanatory and investigating evidence, he was rightly convicted under S.302(b), P.P.C, but in view of mitigating circumstances, his death sentence was converted into sentence of imprisonment for life.

Ijaz Hussain Batalvi for Applicant.

Ch. Mumtaz Ahmad Balwana for the Complainant.

A.H. Masood for the State.

Date of hearing: 12th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1634 #

2000 Y L R 1634

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Asif Saeed Khan Khosa, JJ

THE STATE‑‑‑Appellant

versus

BASHIR AHMAD and 6 others‑‑‑Respondents

Criminal Appeal No. 192 of 1998, heard or. 18th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S. 417(1)‑‑‑Anti‑Terrorism Act (XXVII 1997), S.25(4) ‑‑‑ Sections 302(b)/149, 324/149 & 148‑‑‑Appeal against acquittal, F.I.R. in the attending circumstances was not a belated one‑‑‑Defence version of the occurrence was neither reasonable nor plausible‑‑‑Testimony offered by Court witness was not believable‑‑‑Admissions made by Investigating Officer comprising hear, evidence being inadmissible evidence were no help to the defence‑‑‑Report of Forensic Science Laboratory could not assist the accused‑‑‑Eye‑witness account offered by the prosecution was reliable and generally inspired confidence and was the kind of testimony where one did not even have to look for corroboration‑‑‑Six persons from the complainant side and one passerby had received fire‑arm injuries in the occurrence and 82 crime empties of different weapons had been found at the spot‑‑‑.Number of shots fired in the occurrence had corresponded with the number of accused persons who were alleged by the prosecution to have participated in the crime‑‑‑Accused had been proved by the prosecution beyond all reasonable doubts to have caused Qatl‑e‑Amd of four persons and fire‑arm injuries to two prosecution witnesses after having formed an unlawful assembly while being armed with fire‑arms‑‑‑Each one of the six accused was consequently convicted under S.302(b)1149, P. P. C. on four counts‑‑‑Three accused who bore ascribed fatal injuries were sentenced to death each on the said charge as they had fired a large number of shots on the unarmed victims showing extreme disregard for human lives and had stopped only after they had felled six persons of the complainant party on the ground and a seventh passerby‑‑‑Said accused deserved death penalty even if immediate cause leading to the occurrence was not too clear‑‑‑Other accused, who were not burdened with fatal injuries, were sentenced to imprisonment for life each under S.302(b)l149, P.P.C. on four counts‑‑‑Accused were also awarded eight years R.I. each with fine and two years R.1. each under Ss. 324/149, P. P. C. and 148, P. P. C. respectively‑‑‑Sentences of imprisonment were ordered to run concurrently‑‑‑Appeal against acquittal of accused by Trial Court was accepted accordingly.

Muhammad Akbar Tarar, A.A.‑G. with S.D. Qureshi for the State.

Munir Ahmad Bhatti assisted by Muhammad Afzal Lone, Raja Muhammad Anwar, Senior Advocate assisted by Hashim Sabir Raja and Raja Shafqat Abbasi for the Complainant.

Dates of hearing: 14th, 15th, 16th, 21st February; 10th, filth, 17th, 19th, 24th, 25th, 27th April; Ist. 2nd, 3rd, 4th, 10th. 15th, 16th, 17th and 18th May. 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1651 #

2000 Y L R 1651

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD AQIL AFRIDI‑‑‑Petitioner

versus

RENT CONTROLLER, LAHORE and 9 others‑‑‑Respondents

Writ Petition No. 10530 of 2000, heard on 7th July, 2000.

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

‑‑‑‑S. 13‑‑‑Ejectment proceedings‑‑Applicability of provision of Civil Procedure Code, 1908‑‑‑Extent‑‑‑Provisions of C P. C. do not apply to proceedings under West Pakistan Urban Rent Restriction Ordinance. 1959 stricto senso but equitable principles laid down in C. P. C. could be applied by Rent Controller to advance ends of justice.

Sh. Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SMCR 542; Khadim Mohayuddin and another v. Ch Rehmat Ali Nagra and another PLD 1965 SC 459; Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 and H.M. Saya & Company. Karachi v. Wazir Ali Industries Limited PLD 1969 SC 05 ref.

(b) Civil Procedure Code (V of 1908)‑

‑‑‑‑O.I, R.10‑‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Addition or deletion of a party to proceedings‑‑‑Powers of Court‑‑‑Scope‑‑Court is empowered under O.I, R.10, C. P. C. to add or delete a party on oral request or on a specific application by a party‑‑‑Court can also do so suo motu without any application‑‑‑Provision of O.I, R.10(2), C. P. C. is based on general principles of natural justice.

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Subletting of premises‑‑‑Recalling of earlier order passed by Rent Controller regarding deletion of one of the necessary parties to the proceedings‑‑‑Landlords raised the plea of subletting of the premises‑‑‑Original tenant was deleted from the list of parties by the Refit Controller by his earlier order but such order was recalled by the Rent Controller and the original tenant was impleaded as a necessary party to the proceedings‑-Validity‑‑‑Without the presence of the original tenant, Rent Controller could not have decided the .issue "effectively" and "fairly" and absence .of the original tenant would have adversely affected the case of the landlords‑‑‑Where the original tenant continued to be a party to the proceedings the same would not have precluded the subsequent tenant to take up any defence‑‑Subsequent tenant having not filed his written statement, case of such tenant was not adversely affected before the Rent Controller.

Messrs Shah Jewana Textile Mills Limited, Lahore through Representative v. United Bank Limited through Attorneys PLD 2000 Lah. 162; Messrs Vulcan Co. (Pvt.) Limited v. Collector Customs PLD 2000 Lah. 253 and Sh. Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SCMR 542 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition against interim order‑‑‑Maintainability‑‑‑Constitutional petition against an interim order, was not competent.

Shaukat Haroon for Petitioner.

Iftikhar Ahmad Cheema for Respondent No. 2.

Date of hearing: 7th July, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1660 #

2000 Y L R 1660

[Lahore]

Before Syed Jamshed Ali, J

MUZAFFAR KHAN and 2 others‑‑‑Petitioners

versus

MEMBER (REVENUE), BOARD OF

REVENUE, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No.3193 of 1985, heard on 22nd June, 2000.

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

‑‑‑‑S.21‑‑‑Pre‑emption right‑‑‑Scope and extent‑‑‑Suit was filed by the pre‑emptor on the basis of tenancy on the suit land‑‑‑Suit was decreed in favour of the pre‑emptor‑‑Vendee raised an objection to the extent of right of pre‑emption vested in the pre emptor‑‑‑Plea raised by the vendee was that the pre‑emptor was tenant on some portion of the suit land, therefore, right of pre‑emption available to the pre‑emptor should be in proportion to the land under his tenancy‑‑Validity‑‑‑Pre‑emptor on the basis of the entries in Khasra Girdawari was entitled to the share of land comprised in his tenancy on the date of the suit‑‑‑Decree in favour of the pre‑emptor was amended accordingly.

Walayat Khatoon v. Khalil Khan and others PLD 1979 SC 821; Fateh Khan v. Abdur Rehman 1983 SCMR 293; Noor Muhammad v. M.B.R. and 3 others 1985 CLC 571 and Malik Pir Bakhsh and others v. Ali Muhammad 1992 SCMR 1031 ref.

Muhammad Taj and another v. Member, Board of Revenue and 3 others 1997 SCMR 1113 and Khuda Bakhsh v. A.C. and others 1985 CLC 788 distinguished.

(b) Land Reforms Regulation, 1972 (MLR 115)‑--

‑‑‑‑Para.26‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Bar contained in para.26 of Land Reforms Regulation, 1972‑‑Applicability‑‑‑Sub‑Constitutional legislation could not take away or abridge the Constitutional jurisdiction‑‑‑Such bar, therefore, was not applicable against exercise of Constitutional jurisdiction by High Court.

Sh. Abdul Aziz for Petitioners.

Ras Tariq Chaudhry for Respondents.

Date of hearing: 22nd June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1663 #

2000 Y L R 1663

[Lahore]

Before Syed Jamshed Ali, J

M. SADDIQUE through Legal

Heirs‑‑‑Petitioner

versus

M. SALEEM‑‑‑Respondent

Civil Revision No.1752 of 1986, decided on 21st October, 1999.

Specific Relief Act (I of 1877)---

‑‑‑‑Ss. 12, 16, 17, 20 & 27‑‑‑Suit for specific performance of agreement‑‑‑Discretion to refuse specific performance of agreement of sale validly executed between the parties, had been exercised by Courts below against vendee/plaintiff on the grounds that the agreement had contemplated a penalty equal to amount of earnest money and that was so claimed by plaintiff/vendee in the suit as alternate relief and that subsequent vendee of property in dispute was a bona fide purchaser for value without notice of prior agreement of sale in favour of plaintiff‑‑‑Validity‑‑‑Court had failed to take into consideration the Explanation to S.12 of Specific Relief Act, 1877 to the effect that unless and until contrary was proved, Court would presume that breach of contract to transfer immovable property could not be adequately relieved by compensation in money‑‑‑Provisions of S.20 of the Act, also escaped consideration of Courts below which had provided that a contract, otherwise proper to be specifically enforced, could be enforced, though a sum was named in it as the amount to be paid in case of its breach and party in default was willing to pay the same‑-‑Vendee/plaintiff who very earnestly had taken all steps to perform his part towards agreement by paying earnest money and showing his willingness to pay remaining money, it could not be said that equities favouring vendors/defendants would disentitle plaintiff to seek specific performance of agreement‑‑ Grant or refusal of specific performance of agreement though was discretionary, but discretion must be exercised on sound judicial principles‑‑‑Refusal to grant specific performance on ground that agreement provided for penalty, was not sustainable, in circumstances‑‑‑Courts by concluding that plaintiff was to prove that subsequent vendee of property in dispute had knowledge of prior agreement had kept out of consideration that in fact it was for the subsequent vendee to show that he acted in good faith by making a diligent inquiry before purchasing land in dispute‑‑Courts had not taken into consideration that land was being cultivated by plaintiff/vendee for the last 5/6 years and subsequent vendee had himself admitted that plaintiff was paying the "Batai "‑‑‑Casual inquiry by subsequent vendee would have posted him with knowledge of prior agreement of sale‑‑‑Assertion of subsequent vendee that he was a bona fide purchaser for value without notice of prior agreement, was not sufficient to non‑suit the plaintiff‑‑‑ Judgments and decrees of Courts below were set aside and suit filed by plaintiff was decreed accordingly.

Abdul Karim v. Muhammad Shafi and another 1973 SCMR 225; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others PLD 1974 BJ 25; Muhammad Safdar Ansari and another v. Abdul Majeed PLD 1988 Lah. 216; Muhammad Shafi v. Muhammad Sarwar and others 1997 CLC 1231; Mummidi Reddi Papannaagari Yella Reddy v. Salla Subbi Reddy and another AIR 1954 Andh. Pra. 20 and Shah Muhammad v. Inayat Ullah and others PLD 1953 Lah. 87 ref.

Qamar Riaz Hussain for Petitioner.

Sahibzada Anwar Hamid for Respondent.

Date of hearing: 21st October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1678 #

2000 Y L R 1678

[Lahore]

Before M. Javed Buttar, J

Mst. MERAJ BEGUM‑‑‑Petitioner

versus

Mst. SHAMSHAD AKHTAR and another‑‑‑Respondents

Civil Revision No. 1650 of 1995, heard on 19th April, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 117 & 120‑‑‑Execution of document by old, illiterate and Pardahnashin lady‑‑Proof‑‑‑Onus‑‑‑Burden to prove such document affecting rights or interests in immovable property was on the person claiming the right or interest under the document and it was for that person to establish affirmatively that the document was substantially understood by the lady‑‑‑Such person had further to prove that the execution of the document was really free and intelligent act of the lady‑‑‑If the lady executing the document was illiterate, such document must had been read over to her‑‑Rule of burden of proof on the beneficiary was generally applicable where the executants was a Pardahnashin lady and the same rule was extended to ignorant and illiterate women as well.

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.

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

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 120‑‑‑Cancellation of document‑‑ Document executed by old, illiterate and Pardahnashin lady ‑‑‑Proof‑‑‑Onus‑‑ Execution of a registered sale‑deed was disputed and the plaintiff, denied its execution in favour of the defendant‑‑Plaintiff was old, illiterate and Pardahnashin lady and the defendant was her real daughter‑‑‑Both the Courts below had dismissed the suit of the plaintiff for the reason that the disputed sale‑deed was registered document and the plaintiff admitted her thumb‑impression‑‑‑Validity‑‑‑Plaintiff never consciously executed the disputed sale-deed and the defendant, the beneficiary of the document, failed to establish through affirmative evidence that the sale consideration was ever paid to the plaintiff‑‑‑Defendant, the beneficiary, also failed to establish that she or her husband had the means to purchase the property in dispute‑‑‑Where the plaintiff was an old, ignorant and totally illiterate lady, burden was upon the defendant beneficiary throughout to prove and establish through unimpeachable convincing evidence that the sale transaction was genuine and was for valid consideration‑‑‑Defendant alongwith her husband having tried to deprive the plaintiff (her mother) of the valuable property through fraud and misrepresentation judgments and decrees of both the Courts below were set aside and the sale‑deed in question was cancelled.

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Muhammad Shaft and others v. Allah Dad Khan PLD 1986 SC 519; Irshad Hussain v. Ijaz Hussain and 9 others PLD 1994 SC 326 and Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 ref.

‑‑‑‑S. 34‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Execution of sale‑deed‑‑Registration‑‑‑Failure to read over or explain contents of sale‑deed to the vendor who was an old, illiterate and Pardahnashin lady and had appeared before the Sub‑Registrar at the time of execution of the disputed sale‑deed‑‑Effect‑‑‑Where the contents of the sale‑deed were not read over or explained to the vendor, mere appearance of the vendor before the Sub‑Registrar would not lead to a conclusion that the vendor had consciously executed the sale‑deed for the purposes of conveyance of her property to the vendee.

Irshad Hussain v. Ijaz Hussain and 9 others PLD 1994 SC 326 ref.

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

‑‑‑‑S. 54‑‑‑Registration Act (XVI of 1908), S.17‑‑‑Sale‑deed, registration of‑‑‑Proof of title‑‑‑No proof of transfer of possession of the property or delivery of sale‑deed or of payment of consideration to the vendor was available‑‑‑Mdse registration of sale‑deed would not operate to pass the title to the vendees or to pass any interest in the property purported to have been sold by the vendor‑‑Provision of S.54 of Transfer of Property Act, 1882, was of no avail in circumstances.

(e) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Cancellation of document‑‑Limitation‑‑‑Disputed sale‑deed was result of fraud and misrepresentation‑‑‑Plaintiff assailed the sale‑deed in the year 1988 which was allegedly executed in the year 1982‑‑Contention by defendant was that suit was time‑barred‑‑‑Validity‑‑‑Fraud vitiated everything‑‑‑Where it was not proved that the plaintiff was vested with the knowledge of the sale‑deed and its contents prior to the year 1988, the suit was not barred by time in circumstances.

Mian Bashir Zafar for Petitioner.

Malik Sanaullah for Respondents.

Date of hearing: 19th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1700 #

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YLR 2000 LAHORE HIGH COURT LAHORE 1711 #

2000 Y L R 1711

[Lahore]

Before Muhammad Nawaz Abbasi, J

GHULSHAN HUSSAIN and another‑‑‑Petitioners

versus

COMMISSIONER (REVENUE), ISLAMABAD/DEPUTY COMMISSIONER

DISTRICT COLLECTOR I.C.TJ

ASSISTANT COMMISSIONER, SADDAR, ISLAMABAD and another‑‑‑Respondents

Writ Petition No.338 of 1999, heard on 8th November, 1999.

(a) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art.24‑‑‑Protection of property rights‑‑Acquisition of private property‑‑‑Scope‑‑Public purpose‑‑‑Acquisition of private property is not allowed under Art.24 of the Constitution except for "public purpose".

(b) Land Acquisition Act (1 of 1894)‑‑‑‑

‑‑‑‑S.40‑‑‑Constitution of Pakistan (1973), Art.24‑‑‑Acquisition for public purpose by a company‑‑‑Existence of public purpose, open to judicial review‑‑‑Scope‑‑‑Public purpose was different from a private purpose and the latter was restricted to individual interest‑‑Where a company required land for a purpose other than those mentioned in S.40 of Land Acquisition Act, 1894, such company could not request for acquisition through the machinery of law for compulsory acquisition under Land Acquisition Act, 1894‑‑Procedure provided for compulsory acquisition could not be invoked except in public interest ‑‑‑Power of acquisition of land being restricted to public purpose, under the provision of Art.24 of the Constitution, existence of a public purpose was open to judicial review‑‑‑Acquisition for personal benefit of a person or class of persons is ultra vires the Constitution.

‑‑‑‑‑‑ Public purpose"‑‑‑Definition.

AIR 1963 SC 151 ref.

(d) Land Acquisition Act (I of 1894)‑‑‑‑

‑‑‑‑S.4‑‑‑Acquisition of private property‑‑Scope‑‑Government or an Agency could acquire private property and land of the people only for a public purpose‑‑‑.Not possible tinder provisions of Land Acquisition Act, 1894, to take land of one to give it to another, in private interest.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

(e) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Maintainability‑‑‑Land was acquired for a Housing Foundation which was a registered company‑‑‑Petitioners were the landowners whose land was acquired for a housing scheme planned by the said Foundation‑‑ Petitioners had assailed the notification for acquisition issued by the Land Acquisition Collector‑‑‑Constitutional petition was competent in circumstances.

(f) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Arts.23 & 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Public interest litigation‑‑Acquisition of land‑‑‑Private Housing Foundation, while assuming the role of an official agency, acquired the land on the pretext of public interest‑‑‑Benefit of acquired land was restricted to a limited class of civil servants of Federal Government and common persons were deprived to acquire the property through the Development Authority‑‑Validity‑‑‑Such deprivation was in violation of Art. 23 of the Constitution‑‑‑High Court, in public interest, could extend its jurisdiction under Art. 199 of the Constitution, to examine the validity of such acquisition and purpose of the same.

Fauji Foundation v Shamimur Rehman PLD 1983 SC 457 ref.

(g) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss.4 & 17(4)‑‑‑Capital Development Authority Ordinance (XXIII of 1960), Ss.11, 12, 13 & 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Acquisition of land‑‑‑Establishing housing scheme by a private organization in a sector other than the one specific for such scheme‑‑ Housing Foundation was a registered company having senior Federal Government Officials as ex‑officio office‑bearers of the Foundation‑‑‑Foundation acquired lands owned by the petitioners in public interest and notification under S.s.4 & 17(4) of Land Acquisition Act, 1894, was issued by the Government‑‑‑Land so acquired was to be allotted only to the employees of Federal Government on ownership basis ‑‑‑Validity‑‑ Housing Foundation like such other companies could establish a housing scheme in the specified zone for its members but could not establish such scheme in the area of remaining residential sector ‑‑‑ Housing Foundation could not be allowed to establish a private scheme in regular sectors for individuals interests of civil servants m violation of general policy as a special case and privilege‑‑‑Housing Foundation without enlarging the purpose of acquisition of 11cuid to the general use for benefit of public‑at large, could neither establish such scheme our of the specified zone nor could use the machinery of law and Government for such purpose‑‑‑Where acquisition of land for a housing Scheme introduced by the respondent‑Foundation was executed for benefit of public‑at‑large and was not confined to a limited class of persons, such scheme would definitely advance the spirit of the Constitution‑‑‑High Court directed the Housing Foundation to include certain categories of persons who could also be benefited from the scheme‑‑‑When all categories of persons referred by High Court could be benefited from the acquisition of the land by the Housing Foundation, the acquisition could be for public purpose and the same would not be in violation of Art. 24 of the Constitution as the same did not prevent establishment of housing colonies in public interest.

Muhammad Aslam Khaki for Petitioner.

Mansoor Ahmed with Naveed Asghar Qureshi, Zafar Iqbal, Law Officer and Jawad Panl, A.C. Saddar/Collector for Respondents.

Date of hearing: 8th November, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 1756 #

2000 Y R 1756

[Lahore]

Before Riaz Kayani, and Khawaja Muhammad Sharif, JJ

WAHEED AHMAD‑ Appellant

versus

THE STATE Respondent

Criminals Appeals Nos.652, 653 and Murder Reference No.242 of 1995, heard on 15th May, 2000

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/109‑‑‑Appreciation of evidence‑‑Motive regarding the long‑standing dispute about the management of the factory between the deceased and the accused was not proved by the prosecution‑‑‑Accused could not be expected to have made an extra judicial confession before the prosecution witness in the presence of a stranger‑‑‑Non‑appearance of a witness named in the F.I.R. in the Court who was closely related to the complainant, showed that he did not want to tell a lie implicating the accused in a case where the evidence was so weak and scanty that no person of reasonable and ordinary prudence would give any credence to such manipulated prosecution evidence‑‑‑Identification parade held in the case was not genuine‑‑‑None of the ingredients constituting abetment of murder had been proved by the prosecution through its witnesses‑‑‑Proposition that identification of accused in Court was sufficient substitute for an identification parade of an unknown culprit was not acceptable in the case where the witnesses did not at all know anything about the perpetrator of the crime and had witnessed him for the first time during, the crime‑‑‑Accused were acquitted in circumstances.

Allah Dad v. The State PLD 1965 (W.P.) Lah. 288; Muhammad Hassan v. Zakir Hussain 1994 PSC 131 and Zia‑ul-Rehman v. The State 2000 SCMR 528 ref.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Extra judicial confession‑‑Extra‑judicial confession by itself is not sufficient to sustain conviction.

Zia‑ul‑Rehman v. The State 2000 SCMR 528 ref.

‑‑‑‑S.302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.22‑‑‑Appreciation of evidence‑‑Identification in Court‑‑‑Identification of accused in Court has always been treated as a corroborative piece of evidence, but not at all as the substitute for an identification parade.

Ijaz Hussain Batalvi, Akhtar Ali Qureshi for Appellant (in Cr.A. No 653 of 1995).

Sardar Muhammad Lateef Khosa for Appellants (in Cr. Appeal No. 652 of 1995).

Rafiq Ahmed Bajwa and Rana Altaf Hussain Khan for Respondents (in both Appeals).

Aamer Feroze Sh. for the State.

Date of hearing: 15th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1769 #

2000 Y L R 1769

[Lahore]

Before Malik Muhammad Qayyum, J

NATIONAL DEVELOPMENT LEASING

CORPORATION LTD. ‑‑‑Petitioner

versus

CHAIRMAN, BANKING TRIBUNAL/

COURT‑II, FAISALABAD and 5 others‑‑‑Respondents

Writ Petition No.11146 of 1997, heard on 12th June, 2000.

Arbitration Act (X of 1940)‑‑‑‑

‑‑‑‑S.34‑‑‑Banking Tribunals Ordinance (LVIII of 1984), S.5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for recovery of Bank loan‑‑Parties to suit different from the parties to arbitration agreement‑‑‑Four other defendants were impleaded as guarantors in the suit in addition to parties to the agreement‑‑Stay of proceedings under S.34, Arbitration Act, 1940 by the Banking Tribunal‑‑‑Validity‑‑‑Where parties to the suit were different from the parties to the arbitration agreement, the Banking Tribunal had acted illegally in staying the proceedings‑‑‑Banking Tribunal was exercising special jurisdiction vested in it by the Banking Tribunals Ordinance, 1984, and as such the proceedings could not be stayed‑‑Order of the Banking Tribunal was without lawful authority and was of no legal effect and the same was set aside ire circumstances.

Hidayatullah and 10 others v. Shamimuddin and 14 others 1993 MLD 993; Gulf Iran Co. and another v. Pakistan

1060 and Orix Leasing Pakistan Ltd. v. Colony Thal Textile Mills Ltd. PLD 1997 Lah. 443 ref.

Asad Munir for Petitioner.

Nemo for Respondents.

Date of hearing: 12th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1793 #

2000 Y L R 1793

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SARWAR and another‑‑‑Petitioners

versus

KHAN MUHAMMAD and another‑‑‑Respondents

Civil Revision No.296 of 1999, heard on 9th May, 2000.

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

‑‑‑‑S.24‑‑‑Pre‑emption suit‑‑‑Determination of value of the suit property‑‑‑Condition precedent to such determination‑‑Principles ‑‑‑Jurisdiction of Trial Court‑Scope‑‑‑Where no sale price was mentioned in the sale‑deed or in the mutation or the price so mentioned appeared to be inflated, Trial Court under the provisions of S.24 of Punjab Pre‑emption Act, 1997, could determine the value of suit property.

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

‑‑‑‑Ss.13 & 24‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Pre‑emption suit‑‑Rejection of plaint‑‑‑Wrong determination of value of suit property for the purpose of deposit of Zare‑e‑Soem‑‑‑Pre‑emptors neither attached copy of the mutation nor mentioned the contents of the mutation in the plaint resultantly wrong value was fixed by the Trial Court for deposit of Zar‑e‑Soem‑‑‑Vendee filed application under O.VIl, R.11, C. P. C. for rejection of plaint on the ground that less amount was deposited as Zar‑eSoem‑‑‑Trial Court dismissed the application of the vendee on the ground that order for the deposit of Zar‑e‑Soem could not be reviewed by the Trial Court‑‑‑Validity‑‑‑Where it was brought to‑the notice of the Trial Court that the price mentioned in the plaint was contrary to the price mentioned in the mutation in question, it was the duty of the Trial Court to pass fresh order‑‑‑High Court directed the Trial Court to review its earlier order and directed the pre‑emptor to deposit additional amount calculated on the basis of the value of the property in question mentioned in mutation.

Abdul Wahid and 8 others v. Sardar Ali and others PLD 2000 Lah. 190; Sher Bahadur Khan and another v. Haji Wali Batkhan 1992 MLD 46; Muhammad Ismael v. Jameel‑ur‑Rehman and 6 others 1995 MLD 1011; Awal Noor v. District Judge, Karak 1.992 SCMR 746; Habib Ullah Khan v. Amir Zaman 1995 SCMR 135 and Haji Ghulam Nabi v. Shoaib Jameela and 8 others 1994 SCNIR 845 ref.

‑‑‑‑Ss.13 &. 24‑‑‑Civil Procedure Code (V of 1908), S.107 & O.XLI, Rr. 32 & 33‑‑‑Preemption suit‑‑‑Deposit of Zar‑e‑Soem‑‑Extending time for such, deposit‑‑‑Jurisdiction of Trial Court and the Appellate Court to extend such time‑‑‑Denial of jurisdiction by Appellate Court to extend the time would amount to curtailing the power of the Appellate Court as laid down in the provisions of S.107, C.P.C. and O.XLI, Rr.32 & 33, C. P. C. as it was inherent in the appellate power to pass such order as would tend to do complete justice between the parties.

Abdul Wahid and 8 others v. Sardar Ali and others PLD 2000 Lah. 190; Sher Bahadur Khan and another v. Haji Wali Batkhan 1992 MLD 46; Muhammad Ismael v. Jameel‑ur‑Rehman and 6 others 1995 MLD 1011; Awal Noor v. District Judge, Karak 1992 SCIVIR 746; Habib Ullah Khan v. Amir Zaman 1995 SCMR 135; Haji Ghulam Nabi v. Shoaib Jameela and 8 others 1994 SCMR 845 and Abdul Wahid and others v. Sardar Ali 2000 SCMR 650 ref.

(d) Act of Court‑‑

‑‑‑‑Nobody should be penalized by the act of the Court.

Muhammad Hanif's case PLD 1990 SC 859; Malik Hayat Ullah's case PLD 1972 SC 69 and Bhai Khan's Case 1986 SCMR 849 ref.

Altaf‑ur‑Rehman Khan for Petitioners.

Rana M. Sarwar for Respondents

Date of hearing: 9th May, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 1805 #

2000 Y L R 1805

[Lahore]

Before Muhammad Javed Buttar, J

Raja MUHAMMAD GUL‑‑‑Petitioner

versus

MUHAMMAD ASHRAF and 6 others‑‑‑Respondents

Civil Revision No.249 of. 1994, heard on 24th November, 1999.

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

‑‑‑‑S.12‑‑‑Specific performance of agreement to sell‑‑‑Imperfect title of vendor at the time of execution of agreement to sell‑‑‑Duty of vendor‑‑‑Person entering into agreement of sale of property is bound to make good the contract on subsequently acquiring interest in such property.

Shamoon and others v. Ahmad and others 1986 SCMR 888 and Muhammad Ramzan v. Mst. Yaqoob Begum and others 1991 SCMR 819 ref.

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

‑‑‑‑Ss.12 & 27‑‑‑Specific performance of agreement to sell‑‑‑Concurrent findings of both the Courts below‑‑‑Plaintiff entered into an agreement to sell with the allottee of disputed property‑‑‑Possession of the property was with the plaintiff prior to is, lance of Permanent Transfer Deed in favour of the allottee‑‑‑Allottee later on entered into an agreement of association with defendant‑‑Both the Courts below dismissed the suit and appeal of the plaintiff respectively‑‑Validity‑‑‑Where the defendant had deliberately entered into an agreement of association with the allottee in. mala fide manner knowing fully well that an agreement of sale had already been executed in favour of the plaintiff, defendant was not a bona fide purchaser without notice‑‑‑Plaintiff was throughout in possession of the property and such fact was in the knowledge of the defendant who was required to make an honest inquiry‑‑‑Where the defendant did not make an honest inquiry, he was not entitled to the protection under S.27 of Specific Relief Act, 1877‑‑‑Judgments and decrees of both the Courts below were set aside and the suit was decreed in circumstances.

Mian Muhammad Ismail v. Manzoor Ahmad and others 1990 CLC 1112; Mian Zafar lqbal and others v. Bashir Ahmad and others PLD 1989 Lah. 152 and Mahmooda Sultana v. Nasim Mumtaz and another 1990 MLD 1028 ref.

‑‑‑‑S.27(b)‑‑‑Suit for specific performance of agreement to sell‑‑ Expression "without notice"‑‑Applicability‑‑‑Disputed property was in possession of the person having entered into an earlier agreement to sell in his favour‑‑‑Subsequent vendee was required to make honest inquiry before entering into an agreement with the vendor‑‑‑Possession of the suit property constituted a notice to the subsequent vendee ‑‑‑Subsequent vendee was not entitled to protection under S.27 of Specific Relief Act, 1877, in circumstances.

Misbah‑ul‑Hassan Abidi for Petitioner

Samod. Mehmood for Respondent

Date of hearing: 24th November, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 1815 #

2000 Y L R 1815

[Lahore]

Before Sheikh Abdur Razzaq, J

Lt.‑Col. (Retd.) MUHAMMAD

ASHRAF KHAN‑‑‑Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY

through Chairman and another‑‑‑Respondents

Writ Petition No. 1714 of 1997, heard on 2nd June, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Payment of delayed charges‑‑‑Failure to deposit auction money within stipulated period‑‑‑Petitioner was auction purchaser of a plot and after being successful in the auction, a sum of Rs.8, 60,000 was deposited as an advance payment whereas the remaining amount of Rs. 25, 79, 979 was to be paid in four equal instalments, with an interval of three months each‑‑‑Petitioner failed to deposit the instalments and the first instalment was deposited on 15‑1‑1996 instead of 20‑7‑1991‑‑‑Authority calculated the delayed charges for a sum of Rs.16, 96, 921‑‑Petitioner contended that Authority could only burden him for payment of delayed charges only for two months as was contemplated in the lease agreement‑‑Validity‑‑‑Delay of 4/5 years had occurred in the payment of instalments and as such petitioner was liable to make the payment of delayed charges from the original date of payment till the final instalment was paid‑‑Authority had calculated the delayed charges ‑from the time when the last instalment was deposited‑‑‑Amount of delayed charges having been determined in accordance with law and the terms and conditions of lease agreement, petition had no merits.

Malik Qamar Afzal Khan for Petitioner.

Sardar Muhammad Aslam for Respondents.

Date of hearing: 2nd June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1822 #

2000 Y L R 1822

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL LATIF and another---Petitioners

versus

ARSHAD HUSSAIN SHAH and 4 others---Respondents

Writ Petition No.594 of 2000, decided on 31st May, 2000.

West Pakistan Pure Food Ordinance (VII of 1960)----

----Ss.6/23, 17 & 18---Penal Code (XLV of 1860), S.420---Constitution of Pakistan (1973), Art.199---Constitutional petition--Quashing of proceedings---Only Inspectors appointed under the Ordinance were authorised to conduct raid and obtain sample of food suspected to be adulterated or injurious to health in view of Ss. 17 & 18 of the Pure Food Ordinance, 1960---Raid in the case had been effected by C.I.A. Staff without associating even Inspector appointed under the Ordinance---Respondents had made a crude effort tainted with mala fide to bring the case within the cognizance of police by registering -the case against the accused under S.420, P. P. C. read with S. 6/23 of the Pure' Food Ordinance, 1960---Raid having been conducted neither by the Inspector appointed under the Pure Food Ordinance, 1960, nor authorized in that behalf by the District Health Officer, entire said proceedings were unlawful and without any authority--Registration of the case and- taking of cognizance by Court in pursuance thereof were also declared to be of no legal effect--Impugned observation made by the Magistrate authorising Food Inspector for initiating any proceedings on the basis of samples obtained by the C.I.A. Staff was also quashed---Constitutional petition was accepted accordingly.

Dildar Muhammad and others v. Hafiz Sher Ali and another 1990 ALD 429 ref.

Abdul Rashid Shaikh for Petitioner.

Syed Sajjad Hussain Shah, A.A.-G.

Respondent No.4 in person.

YLR 2000 LAHORE HIGH COURT LAHORE 1824 #

2000 Y L R 1824

[Lahore]

Before Syed Jamshed Ali, J

SARDAR MUHAMMAD. Petitioner

versus

MUHAMMAD AKRAM and others‑‑‑Respondents

Civil Revision No. 117 of 1993, decided on 16th November, 1999.

(a) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.8‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for possession‑‑‑Suit of plaintiff was that defendants had illegally occupied room over the shop transferred to plaintiff after purchasing adjoining property from its original owner‑‑‑Vendor/original owner of adjoining property appearing as witnesses had stated that stairs opened in the shop of plaintiff and that if shop of plaintiff was closed, stairs could not be used‑‑‑Deputy Settlement Commissioner who had issued the Permanent Transfer Deed in respect of the properties had stated that property transferred to plaintiff as well as to the original owner/vendor was a shop‑‑‑Deputy Settlement Commissioner, however, did not refer to a "Chobara "on the shop of plaintiff‑‑‑Suit was decreed by Trial Court in favour of petitioner but judgment and decree passed by Trial Court were set aside by Appellate Court‑‑‑Validity‑‑‑Contention of defendants that matter which stood concluded by a finding of fact by Appellate Court, though at variance with Trial Court should not be interfered with in revision, was repelled, because Appellate Court in reaching the conclusion that room over the shop of plaintiff was owned by defendant, had misread evidence produced on record.

Nazir and others v. Syed Israr

Ahmad and others 1981 SCMR 829 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Arts.30 & 36‑‑‑Admission‑‑‑Proof‑‑Admission had to be viewed in the context of overall facts and circumstances of the case and evidence produced on record by parties‑‑Admission which was made in ignorance of one's right or made on account of a mistaken fact, could be shown to be wrong.

N.A. Butt for Petitioner.

Malik Abdul Wahid for Respondents Nos to 5.

Date of hearing: 14th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1831 #

2000 Y L R 1831

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

MUHAMMAD SHAFFI through

Legal Heirs‑‑‑Appellant

versus

Major MXJHAMMAD AKRAM through

Legal Heirs and 5 others‑‑‑Respondents

Regular Second Appeal No.70 of 1988. decided on 9th June,.2000.

Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S.100 & O.XLI, R.27‑‑‑Second Appeal‑‑‑ Additional evidence, admissibility‑‑‑Belated application‑‑‑Effect‑‑‑Suit was filed in, the year 1975 and the same was decreed by Trial Court in favour of the, pre‑emptor on 2‑10‑1986‑‑‑Appeal against the decree was allowed by the Lower Appellate Court on the ground that no Talbs were made by pre-emptors resultantly the suit of the pre‑emptor was dismissed‑‑‑Pre‑emptor during the pendency of second appeal, filed application for producing additional evidence‑‑-Validity‑‑‑Such application was given after 25 years which was neither moved before the Trial Court nor before the Lower Appellate Court, nor same was filed with the appeal‑ Where such application was filed after the vendee had moved application for rejection o the appeal on the basis of Said Kamal's case (PLD 1986 SC 360), equity would not c me to the aid of, a person who was dormant a d indolent regarding his own rights‑‑--Suit of the pre‑emptor, having been decreed by Tria Court on 2‑10‑1986 i.e. after the target date 31‑.7‑ 1986, was liable to be dismissed.

Government of N.W.F.P. through Secretary. Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Sardar Alt and others v. Muhammad Ali and others PLD 1988 SC 287; Mst. Ayesha Bibi v. Muhammad Sajid and others 1995 SCMR 294; Muhammad Aziz and others v. Syed Haider Ali Shah PLD 1991 SC 1080; PLD 1990 SC 865; Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870; Muhammad Arif v. Mst. Amina Begum PLD 1990 SC 288; Mst. Aziz Begum v. Federation of Pakistan and others PLD 1990 SC 899; Muhammad Yasin v. Khan Muhammad and others PLD 1990 SC 1060; Barkat Ali v. Nazir Ahmed 1999 CLC 373 and Ali Muhammad v. Shera and another 1987 SCMR 207 ref.

S.M. Masud and sardar Muhammad Akram for Appellants.

Sh. Abdul Aziz and Ch, Din Muhammad for Respondents.

Date of hearing: 31st May, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 1833 #

2000 Y L R 1833

[Lahore]

Before Muhammad Nawaz Abbasi, J

BRITISH HIGH COMMISSION

DIPLOMATIC ENCLAVE, RAMNA, 5, P.O. BOX 1122, ISLAMABAD‑‑‑Petitioner

versus

Syed SAJJAD ANWAR ‑‑‑Respondent

Civil Revision No‑348 of 1999, heard on 20th March, 2000.

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

‑‑‑‑S.86‑A‑‑‑Diplomatic and Consular Privileges Act (IX of 1972), S.4 & Sched. I, Art. 31‑‑‑State Immunity Ordinance (VI of 1981), Ss. 6(1) & 17‑‑‑Suit against diplomatic agents‑‑‑Plea of exemption from general provision of law‑‑‑Justifiability‑‑‑Scope‑‑‑No such suit can be brought against a Diplomatic Mission on the plea of exemption unless the requirement of S.86‑A, C.P.C: was fulfilled in such case.

(b) Diplomatic and Consular Privileges Act (IX of 1972)---

--S.4 & Sched. 1 Art. 31-----Civil Procedure Code (V of 1908) S.86-A----Suit against Diplomatic Mission---Breach of contract of service--- Jurisdiction of Courts in Pakistan--- Scope----Plaintiff was a member of staff of British High Commissioner, a Mission defined under Diplomatic and Counselor privileges Act 1972---Suit against the Mission could not be adjudicated by the Courts in Pakistan an account of immunity to the Mission from civil criminal and administrative jurisdiction of Courts in Pakistan as provided under S. 4 and Sched. 1, Art,31 of Diplomatic and Consular Privileges Act 1972.

Ghulam Ahmad v. USA 1986 SCMR 907 ref.

----S.86A & O VII, R.II---Diplomatic and Consular Privileges Act. (IX of 1972) , S. 4 & Shed. 1, Art. 31---State Immunity Ordinance (VI of 1981), Ss.6 (1) &17 ----Suit against Diplomatic Mission----Recovery of damages-----Filling of written reply of employee of the Mission was not a voluntary step in proceedings---Plaintiff was an employee of British High Commissioner who filed the suit against his allegedly illegal dismissal from service---Mission before filling of written reply filed application under O VII RII C.P.C. but later on under the direction of Trial Court written reply was also filedMission raised the plea of Diplomatic Immunity in application under OVII, RII C.,P.C. as well as in the written reply----Trial Court dismissed the application of the Mission----Validity------Filling of the written statement which contained preliminary objection regarding the maintainability of the suit under the provisions of State Immunity Ordinance 1981, and Diplomatic and Consular Privileges Act, 1972 was neither intervened in the proceedings nor the same could be deemed to be submission to the jurisdiction of Courts in Pakistan Submission of written statement under the direction of the Trial Court after filing of application under O.VII, R. II, C.P.C. would not be considered to take a step in the proceedings voluntarily---Case was not covered by the provisions of S 4 (3) (A0 and (B) of State Immunity Ordinance 1981 read with subsection (4) of the same section Application of defendant under O.VII, R. II, C.P.C. was allowed and the suit was rejected in circumstances.

Ghulam Ahmad v. USA 1986 SCMR 907 rel.

Zahid Hamid for Petitioner.

Mujtaba Haider Sherazi for Respondents.

Date of hearing: 20th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1840 #

2000 Y L R 1840

[Lahore]

Before Ch. Ijaz Ahmad, J

NAWASH SHOAIB‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB through

Secretary Health, Lahore and another‑‑‑Respondents

Writ Petition No.9015 of 2000, heard on 28th June. 2000.

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Preamble‑‑‑Scheme of Constitution is based on trichotomy.

Zia‑ur‑Rehman's case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 ref.

(b) Prospectus of Medical Colleges in Punjab (1999‑2000)‑‑‑

‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Educational institution Principle of estoppel Applicability Admission in medical college‑‑‑Abolition of quota for children of medical practitioners‑‑‑Candidate appeared in the entry test for admission in medical college and failed to get admission‑‑Contention raised by candidates was that quota was illegally abolished in the Prospectus‑‑‑Validity‑‑‑High Court had power only to interpret the law and had no power whatsoever to take the role of the policy maker‑‑‑Prospectus could not be changed through verdict of the High Court‑‑‑Where the candidate appeared in the entry ,test in terms of the prospectus published by the Competent Authority and the vires of the same was not challenged by the candidate before appearing the entry test, candidate was estopped to file the Constitutional petition on the principle of estoppel and waiver.

Zaheer Aslam's case 1995 CLC 1152; Rifaqat Javaid's case 1995 CLC 1155; Zameer Ahmad's case PLD 1975 SC 667; 1978 SCMR 327; Saeed Nawaz's case PLD 1981 Lah. 371 and Ghulam Rasool's case PLD 1971 SC 376 ref.

‑‑‑‑Rule of law‑‑‑Existence of rule of law is paramount consideration.

Rifaqat Javaid's case 1995 CLC 1155 ref.

(d) Prospectus of Medical Colleges in Punjab (1999‑2000)

‑‑‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Deletion of 5% doctors" children quota for admission in medical colleges front the prospectus by the Authorities‑‑‑Validity‑‑‑Quota of doctors' children having been deleted by Competent Authority within the realm of policy‑making, High Court had no jurisdiction to take the role of policy‑maker and interfere hi the matter.

Zameer Ahmad's case PLD 1975 SC 667 and Zameer Ahmad's case 1978 SCMR 327 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑Maintainability‑‑‑Malice, failure to point out‑‑‑Effect‑‑‑Where no malice was pointed out, Constitutional petition was not maintainable.

Saeed Nawaz's case PLD 1981 Lah. 371 ref.

(f) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art.201‑‑‑Decision of Division Bench of High Court is binding on Single Bench of High Court.

(g) Constitution of Pakistan (1973)‑‑.

‑‑‑‑Art.185(3)‑‑ Leave granting order of Supreme Court is not a judgment.

Khair‑Ullah's case 1997 SCMR 906 refs

Shahid Zaheer for Appellant.

Akhtar Hussain Awan, Addl. A.‑G. with Abdul Hameed, Admn. Officer, K.E.M.C. for Respondent.

Date of hearing: 28th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1845 #

2000 Y L R 1845

[Lahore]

Before M. Naeemullah Khan Sherwani. J

SHAH MUHAMMAD ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1740/B of 1999. decided on 13th October, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.337‑ F(i)/337‑F(v)‑‑‑Bail, grant of‑‑Offence with which accused was charged being punishable with five years, did not fall within prohibitory clause of S. 497, Cr. P.C. ‑‑‑Accused was behind the bars for the last about three months and was no longer required for investigation and his further detention in jail was not likely to serve any useful purpose to the prosecution in any manner‑‑‑Conclusion of trial was likely to consume a pretty long time‑‑‑Accused having made out a case for grant of bail, he was admitted to bail.

Altaf Ibrahim Qureshi for Petitioner.

Muhammad Sarfraz for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1850 #

2000 Y L R 1850

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD BASHIR Appellant

versus

THE STATE Respondent

Criminal Appeal No. 36 and Murder Reference No. 7 of 1998, decided on 2nd February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑ Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Eye‑witnesses having failed to state about number and seat of injuries on person of deceased either in F.I.R. or before Trial Court their presence at the spot at the time of occurrence was doubtful‑‑‑No crime empty was recovered from the spot ‑‑‑F.I.R. was lodged about thirteen hours after the occurrence and post‑mortem of deceased was conducted after twelve hours‑‑‑Defence version as compared to prosecution version was more plausible, convincing and near to reason‑‑‑Both prosecution witnesses were nearest relations of deceased‑‑‑Prosecution, in circumstances, had failed to prove case against accused beyond any shadow of doubt‑‑‑Accused was acquitted after giving him benefit of doubt.

S. Hussain Amin Lodhi for Appellant.

Saleem Nawaz Abbasi, A.A.‑G. for the State.

Mian M Tayyab Wattoo for the Complainant.

Date of hearing: 21st February, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 1856 #

2000 Y L R 1856

[Lahore]

Before Zafar Pasha Chaudhry, J

Mst. RUBINA PERVEEN---Petitioner

versus

THE STATE---Respondent

Civil Miscellaneous No. 707-B of 1999. decided on 16th December, 1999.

----S.498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11--Pre-arrest interim bail---Confirmation--Accused who was granted interim pre-arrest bail, had sought confirmation thereof on ground that she being on interim pre-arrest bail for the last eight months had not misused concession of bail in any manner---It was yet to be decided whether accused was wife of "G" or "I"---Accused though was bound to join and associate with investigation, but she being a woman, it would not be in the interest of justice to keep her in confinement just as a matter of punishment---Case against accused being of further inquiry, interim bail already granted to accused, was confirmed.

Arshad Ali Chohan for Petitioner.

Muhammad Saleem Shakoor for the State.

Tahir Mehmood for the Complainant.

Date of hearing: 16th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1861 #

2000 Y L R 1861

[Lahore]

Before Maulvi Anwarul Haq, J

DILDAR AHMAD‑‑‑Petitioner

versus

SUPERINTENDENT, NEW CENTRAL

JAIL, MULTAN‑‑‑Respondent

Writ Petition No. 4766 of 2000, decided on 17th May, 2000.

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

‑‑‑‑S.9‑B‑‑‑Criminal Procedure Code (V of 1898), Ss. 397, 382‑B & 561 A‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Power of High Court to order sentences to run concurrently‑‑Accused, who was charged in two cases had pleaded guilty and prayed for taking lenient view‑‑‑Trial Court in pursuance to confession made by accused sentenced him in two cases giving benefit of S.382‑B, Cr.P.C. in each case, but judgments of Trial Court were silent as to whether sentences were to run consecutively or concurrently‑‑‑Accused had contended that as benefit of S. 382‑B, Cr. P. C. was granted separately in both cases, sentences in both cases were to run concurrently despite the omission of that fact in the judgment of Trial Court‑‑‑Prosecution had refused to accept said interpretation and insisted that sentences were to run consecutively‑‑‑Validity‑‑‑Conviction and sentences though were recorded in both cases on same date, but one case was registered and sent for trial earlier in time. And proceeding in the first case also commenced earlier than the second case‑‑‑Sentences awarded to accused no doubt were to run consecutively unless otherwise provided in the judgment of Trial Court, as provided under S.397, Cr. P. C., but High Court was vested with power under S. 561‑A, Cr.P.C. in exercise of its inherent jurisdiction to direct that subsequent sentence to run concurrently when previous punishment already was undergone by the accused‑‑‑Each individual case was to be examined on its own merits in the interest of justice‑‑‑Case of accused being fit for exercise of powers under S.561‑A, Cr. P. C., High Court accepting Constitutional petition, declared that accused having been ranted benefit of S.382‑B, Cr. P. C. in both cases separately, it would being the interest of justice that both sentences awarded to accused should run concurrently.

Zareen Shah v. Superintendent, Central Jail, Macch and another 1997 PCr.LJ 1185 and Muhammad Suleman v. Superintendent of Central Jail, Mianwali and another PLD 199 Lah. 591 ref.

Sardar Mehboob for the Petitioner.

Malik Ghulam Murtaza for A.A.‑G. (on Court's call).

YLR 2000 LAHORE HIGH COURT LAHORE 1867 #

2000 Y L R 1867

[Lahore]

Before Malik Muhammad Qayyum and

Ghulam Mahmood Qureshi, JJ

Messrs O.K. AGENCIES‑‑‑Petitioner

versus

CHIEF CONROLLER and others‑‑‑Respondents

Intra‑Court Appeal No. 780 of 1998, decided on 29th November, 1999.

Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 10 & 37‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Law Reforms Ordinance (X11 of 1972), S.3‑‑‑Breach of contract‑‑Tender offered by appellant to supply certain goods to the respondents was accepted through a letter to appellant‑‑‑Acceptance of offer was subsequently withdrawn by respondents without assigning any reason‑‑Validity‑‑‑Once an offer had been accepted, a concluded contract had come into being and it was not open to person who accepted the offer to retract from the same‑‑‑Order withdrawing acceptance otherwise suffered from illegality as same was passed without granting opportunity to appellant of showing cause of said withdrawal or of hearing him before passing the order and respondents could not prove that agreement arrived at between the parties was procured by appellant by fraud or misrepresentation‑‑Constitutional petition though was not maintainable wherein rights arriving out of contract were sought to be enforced, but no universal rule existed that in all cases of breach of contract Constitutional petition could not be maintained‑‑‑Performance of contractual obligation of State or an instrumental of State being involved in the case, Constitutional petition could be maintained provided, there were no disputed facts‑‑‑High Court, in absence of any disputed facts was not justified to dismiss Constitutional petition filed against order of withdrawal of acceptance passed by respondents in violation of principles of natural justice.

Agricultural Development Bank Pakistan and others v. Hamida Begum and another v. People's Municipality, Sukkur and 2 others PLD 1975 Kar. 878; Messrs Wokotent Power & Light Ltd., Gulberg‑III, Lahore v. Government of Pakistan, Ministry of Water and Power through its Secretary PLJ 1988 Lah. 665 and Mahmood Ali Butt v. Inspector‑General of Police, Punjab and others PLD 1997 SC 823 ref.

Ashtar Ausaf Ali and Muhammad Sadiq for Appellant.

Muhammad Aslam Sindhu for Respondents.

Date of hearing: 29th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1869 #

2000 Y L R 1869

[Lahore]

Before Ghulam Mahmood Qureshi, J

MUHAMMAD AKRAM---Petitioner

versus

DEPUTY INSPECTOR-GENERAL

OF POLICE, GUJRANWALA

RANGE, GUJRANWALA and 3 others---Respondents

Writ Petition No. 9705 of 2000, decided on 30th May, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 156 & 173---Offence of Zina (Enforcement of Hudood) Ordinance (VI of 1979), S.10(4) 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Re-investigation---Challan had been submitted in the Trial Court and the case was fixed for evidence--Affidavits attached by the accused with the petition had no evidentiary value and the same were of no help to him--Accused was at liberty to produce his defence before the Trial Court---Case against accused having already been investigated more than thrice, reinvestigation of the same at such stage could not serve any purpose.

Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Khan and others v. Inspector-General Police, Punjab and others PLD 1976 Lah. 574 and Syed Waqar Hussain Shah v. The State PLD 1998 Lah. 666 ref.

Muhammad Anwar v. Muhammad Younas Butt, Inspector/S.H.O. PLD 1997 Lah. 15 and Anwar Ahmad Khan v. The State and another 1996 SCMR 24 distinguished.

Khurshid Ahmad Sodhi for Petitioner.

Naseem Sabir, Addl. A.-G.

Date of hearing: 30th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1881 #

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YLR 2000 LAHORE HIGH COURT LAHORE 1890 #

2000 Y L R 1890

[Lahore]

Before Nasim Sikandar, J

MEER MUHAMMAD alias AMIR

BAKHSH and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2398/13 of 1999, decided on 22nd December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑ Bail, grant of‑‑‑Complaint against accused was lodged after a period of three months and the delay had not been explained‑‑‑Alleged abductee was not recovered from the accused and circle incharge of police had already found accused to be innocent‑‑‑Whether alleged abductee was a lawful wife of brother of accused was to be seen and determined by competent forum at trial and accused could not be kept in confinement till such determination‑‑‑Bail could not be refused to accused in circumstances.

Muhammad Mansha v. The State 1986 PCr.LJ 758 and Ghulam Hussain v.

State 1983 PCr.LJ 2181 ref.

Altaf Ibrahim Qureshi for Petitioner.

Mirza Waheed‑ud‑Din alongwith Muhammad Siddique for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1893 #

2000 Y L R 1893

[Lahore]

Before Muhammad Javed Buttar, J

MUHAMMAD BAKHSH and 2 others‑‑‑Appellants

versus

Syed GHULAM SHABIR ALI SHAH alias

Syed GHULAM SHABBIR AKHTAR

through Legal Heirs and 2 others‑‑‑Respondents

Regular Second Appeal No. 26 of 1981, decided on 29th May, 2000.

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

‑‑‑‑S.2‑A (as added by West Pakistan Muslim Personal law (Shariat) Application (Amendment) Ordinance (XIII of 1983)]‑‑-Specific Relief Act (1 of 1877), S.42‑‑Custom ‑‑‑Suit for declaration‑‑‑Transfer of land‑‑‑Original owner of the land in dispute alienated the land through exchange and person who obtained the land in exchange, transferred the same in the year 1962 in favour of defendants/appellants through duly attested mutation‑‑‑Nephews of transferor filed suit for declaration, under custom in the year 1967 to the effect that transfer of land made in favour of defendants/appellants, was illegal without consideration, against Zimindara Custom and without legal necessity‑‑‑Plaintiffs claimed that the transfer would not effect upon their reversionary rights after the death of transferor as transferor having acquired land under custom, was bound by customary law and could not alienate the land without consideration and legal necessity‑-‑Suit having concurrently been decreed by Courts below defendants filed second appeal‑‑During pendency of suit, S.2‑A was added in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 whereby custom had been totally abrogated‑‑‑All questions regarding succession, rule of decision would be Muslim Personal Law after abrogation of custom and no restriction as visualized by custom would annul alienation of property made by a Muslim‑‑‑Transfer by transferor in favour of defendants/appellants which was complete and final, would not be subject to any reversionary rights of plaintiffs/respondents being nephews of transferor ‑‑‑Concurrent declaratory decree passed on basis of custom in favour of plaintiffs/respondents, being contrary to Muslim Personal Law, was declared to be void, in executable and of no legal effect by High Court‑‑‑Suit filed by plaintiffs/ respondents was dismissed as having been abated.

Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Sultan Ali and others v. Mst. Mehro and others 1996 CLC 483; Haider Shah and 5 others v. Mst. Roshanaee and 9 others 1996 SCMR 901; Ghulam Muhammad v. Ghulam Qadir and 2 others 1995 SCMR 1830; Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others 1995 SCMR 868; Khuda Bakhsh through his Legal Heirs v. Mst. Niaz Bibi and, another PLD 1994 SC 298 and Zahid and 6 others v. Muhammad Akram 1994 CLC 453 ref.

S.M. Almas Ali for Appellants.

Nemo for Respondents.

Date of hearing: 26th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1904 #

2000 Y L R 1904

[Lahore]

Before M. Naeemullah Khan Sherwani, J

DOST MUHAMMAD alias DOSA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1888/B of 1999, decided on 21st January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑-‑Penal Code (XLV of 1860), S.302/379/149‑‑‑Bail, grant of‑‑‑Accused was behind the bars for the last about four years and accused was in no way responsible for causing the inordinate delay in conclusion of the trial‑‑-Accused was granted bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

State. Malik Abdul Hamid Khokhar for the

YLR 2000 LAHORE HIGH COURT LAHORE 1907 #

2000 Y L R 1907

[Lahore]

Before Asif Saeed Khan Khosa, J

Syed MATLOOB HUSSAIN

SHAH‑‑‑Petitioner

versus

S.H.O. and 2 others‑‑‑Respondents

Writ Petition No. 10650 of 2000, decided on 8th June, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Wrongful confinement‑‑‑Detenue after having been recovered and produced in Court by the Bailiff stated her age to be 19 years and categorically acknowledged the petitioner to be her legally wedded husband with whom she had willingly contracted marriage and wished to rejoin him and that she was being wrongfully confined by the respondents‑‑Criminal case regarding the alleged abduction of the detenue as well as a case regarding restitution of conjugal rights, no doubt, were pending before the relevant Courts, but at the same time High Court could not forget that the primary object of a petition filed in the nature of habeas corpus was to secure the liberty of a citizen found to be under an unjustifiable restraint‑‑‑Detenue having been wrongfully confined by the respondents against her wishes and in total disregard of her Constitutional and legal rights was set at liberty by High Court to rejoin the petitioner as desired by her‑‑Constitutional petition was accepted accordingly.

Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661 ref.

Asif Mehmood Chughtai and Shah Jahan Pitafi for Petitioner.

Mian Ishfaq Ahmad for Respondents Nos. 2 and 3.

YLR 2000 LAHORE HIGH COURT LAHORE 1913 #

2000 Y L R 1913

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AMIR and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 409 of 1989, heard on 20th April, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149 & 148‑‑‑Appreciation of evidence‑‑‑Motive could not be proved by the prosecution against any of the accused ‑‑‑Eyewitnesses were close relations of' the deceased having no business to be present at the spot at the relevant time and even if they were chance witnesses their presence at the place of occurrence was not proved‑‑‑Incident was an unwitnessed one and the accused had been named in the FI.R., due to suspicion‑‑‑None of the recovered weapons of offence was found blood‑stained‑‑Ocular account of occurrence was neither corroborated by medical evidence nor supported by recovery of weapons‑‑‑Accused were acquitted in circumstances.

1999 SCMR 2722 ref.

Inayatullah Cheema for Appellants.

A.H. Masood for the State.

Kharrum Latif Khosa for Complainant.

Date of hearing: 20th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1923 #

2000 Y L R 1923

[Lahore]

Before Khawaja Muhammad Sharif, BASHIR AHMAD----Appellant

versus

THE STATE--‑Respondent

Criminal Appeal No. 1217 of 1998, heard on 31st March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(c)‑‑‑Appreciation of evidence‑‑Accused and his co‑accused had suffered sixteen injuries on vital parts of their bodies in the occurrence which had been suppressed by the prosecution‑‑‑Version put forward by the accused at the trial was that when the deceased tried to attack him he made an effort to snatch the rifle from him which went off and hit the deceased on his thigh‑‑‑Such plea of the accused seemed to be more plausible and correct and he had not exceeded his right of self‑defence‑‑‑Accused was acquitted in circumstances.

Rai Zameer‑ul‑Hassan Khan Kharal for Appellant.

Muhammad Siddique Minhas for the State, Date of hearing: 31st March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1928 #

2000 Y L R 1928

[Lahore]

Before Nasim Sikandar, J

ALLAH BAKHSH‑‑‑Appellant

versus

Mst. ZUBAIDA BEGUM and 8 others‑‑‑Respondents

Regular Second Appeal No. 19 of 1994 decided on 5th May, 2000.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S: 100‑‑‑Suit for specific performance of agreement‑‑‑Plaintiff had claimed that agreement of sale in respect of suit property was arrived at between him and original owner thereof and that he had paid amount to the vendor as earnest money and that vendor had undertaken to transfer property to plaintiff‑‑‑Plaintiff had also claimed that after death of original owner he had paid amount to one of the legal heirs of deceased vendor‑‑Defendants in their written statement denied existence of alleged agreement of sale and receipt of any money from the plaintiff and alleged that agreement of sale was a forged and fabricated document‑‑‑Defendants resisted the suit on ground of limitation also‑‑‑Both Courts below on basis of evidence on record had concurrently concluded that alleged agreement of sale was forged which was fabricated by plaintiff who was a tenant, only to perpetuate his possession over the land and that suit filed by plaintiff after seventeen years from the alleged execution of agreement of sale without explaining the inordinate delay, was liable to be dismissed on ground of limitation‑‑Concurrent findings of Courts below based on evidence on record not suffering from any misreading or non‑reading of evidence by Courts below could not be interfered with in second appeal‑‑‑High Court dismissed appeal taking serious note of forgery and fabrication committed by plaintiff/appellant.

Mst. Khair‑un‑Nisa v. Muhammad Ishaque PLD 1972 SC 25; Dil Murad Akbar Shah 1986 SCMR 306; Sughra Bibi v. Asghar Khan and others 1988 SCMR 4; Sahib Dad v. Imam PLD 1985 Quetta 69; Abdul Ghani v. Mst. Hamida Bano 1998 CLC 2070 and Yameen Khan v. Raees Jhangli Khan 1999 CLC 1755 ref.

Mian Arshad Latif for Appellant.

M.R. Khalid Malik for Respondents.

Dates of hearing: 4th and 5th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1933 #

2000 Y L R 1933

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD NAWAZ ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2889/B of 2000, decided on 28th June, 2000.

Criminal Procedure Code (V of 1898,)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance MI of 1979), S.11‑‑ Bail, grant of‑‑‑FLR. was lodged with delay of more than one month‑‑‑Alleged abductee had never been recovered from custody of the accused‑‑‑Challan had already been submitted after completion of investigation‑‑Accused had already spent more than four months in jail and his continued custody in jail was not likely to serve any beneficial purpose‑‑‑Case against accused called for further inquiry into his guilt within purview of S.497(2), Cr.P.C.‑‑‑When gilt of accused called for further inquiry, he was to be admitted to bail as a matter of right and not by way of any grace or concession‑‑‑Matter of abscondence of accused pertained only to an element of propriety in matter of bail and whenever element of propriety was confronted with question of right, latter (right) must prevail‑‑‑One accused could not be held as a hostage for arrest of another or even for recovery of alleged abductee‑‑‑Bail was allowed to accused in circumstances.

Muhammad Yousuf v. The State l982 PCr.LJ 914; Ghulam Ali v. The State 1989 PCr.LJ 667; Ghulam Yasin and another v. The State 1987 PCr.LJ 837 and Mukhtar alias Makha v. The State NLR 1994 Shariat Decisions 624 ref.

Ch. Muhammad Gulzar for Petitioner.

Sadaqat Mehmood Butt for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1934 #

2000 Y L R 1934

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ALLAH DIWAYA Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 18 of 1999, heard on 4th May, 2000.

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Penal Code (XLV of 1860), Ss.337‑D & 392‑‑‑Appreciation of evidence‑‑‑Ocular account corroborated by medical evidence‑‑‑Prosecution witnesses were disinterested and independent‑‑‑Case property was recovered from place which was in the exclusive knowledge of the accused‑‑Statement of the victim as well as other eyewitnesses not only inspired confidence but were also corroborated by the evidence of recovery, last seen and the medical report‑‑Ocular account could be relied upon for upholding the conviction of the accused in circumstances.

Syed Masood Ahmad Gillani for Appellant.

M.A. Farazi assisted by Syed Masood Ahmed Gillani for the State.

Date of hearing: 4th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1939 #

2000 Y L R 1939

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

ABDUL MAJID and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1412/13 of 2000, decided on 5th April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑Penal Code (XLV of 1860), Ss.448/511, 395, 427, 380 &, 337‑H(ii)/ 148/149‑‑‑Bail, grant of‑‑‑Accused were not named in the F.LR. but were named in supplementary statement for the first time which was recorded after delay of nine months of registration of case without disclosing source of knowledge regarding the culpability of accused‑‑‑Habeas corpus petition was filed for release of accused contending that they were in illegal and improper detention‑‑‑Accused having made out case of further inquiry and probe, bail was granted to them.

Hasnat Ahmad Khan for Petitioners.

Syed Mukhtar Sherazi for the State, Zafar Iqbal Chohan for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 1940 #

2000 Y L R 1940

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH DITTA and 21 others‑‑‑Appellants

versus

Malik AMIR MUHAMMAD KHAN

and 11 others‑‑‑Respondents

Regular Second Appeal No. 35 of 1990, heard on 10th April, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12 & 22‑‑‑Specific performance of agreement to sell‑‑Agreement on which the plaintiffs relied was not proved during the trial‑‑‑Trial Court dismissed the suit whereas the lower appellate Court decreed the same‑‑Validity‑‑‑Nothing was available on record to prove that the owner of the suit property had validly appointed an attorney who was authorised to enter into an agreement to sell the suit land in favour of the plaintiffs‑‑‑When the execution of the agreement was not proved the judgment of the lower appellate Court was contrary to law and could not be sustained‑‑‑Judgment and decree of the lower appellate Court was set aside and that of the Trial Court was restored in circumstances.

Ch. Imdad Ali Khan for Appellants, Kh. Muhammad Asghar for Respondents Nos: l to 10.

Nemo for the other Respondents.

Date of hearing: 10th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1948 #

2000 Y L R 1948

[Lahore]

Before Ali Nawaz Chohan, .l

ZAWAR and another----petitioners

verso

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1871/B of 1999, decided on 21st October, 199%

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/148/149‑‑‑Bail, grant of‑‑‑One of tire injured eye‑witnesses had exonerated accused by filing affidavit‑‑‑One of the accused was an old and infirm person‑‑‑Accused were behind the bars since long and no progress towards trial had taken place‑‑‑Case against accused being of further inquiry, they ordered to be released on bail.

Altaf Ibrahim Quraishi of Petitioner‑---

Syed Masood Sabir for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1949 #

2000 Y L R 1949

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif JJ

ALI ANWAR ---Petitioner

versus

THE STATE and others---Respondents

Criminal Revision No.332 of 1998 and Criminal Appeal No. 129/J of 1999, heard. on 29th March, 2000.

(a) Penal Code (XPV of 1880)---

----S.100---Qanun-e-Shahadat (10 of 1984), Art. 121--Self-defence, right of---Plea---Onus to prove---Scope---Where accused raised, plea of self-defence, and wants to bring his case in any of the exceptions of S.100, P. P. C. under the provision of Art. 121 of Qanun-e-Shahadat, 1984 the onus lies upon the accused to prove the plea.

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

----S. 302---Appreciation of evidence---Case of cross-firing---Recovery of empties from the place of occurrence---Value---Seven crime empties were recovered from the spot---Report of Fire-arm Expert and Forensic Science Laboratory showed that empties matched with the rifle of the accused---Where there were no empties of other fire-arms except that of the accused, it was not a case of cross-firing.

---S. 302---Criminal Procedure Code (V of 1898), S.439---Sentence, enhancement of--Double murder---Plea of self-defence by the accused---Daylight occurrence---Promptly lodged F.LR.---No defence evidence was produced by the accused to establish his plea of self-defence---Trial Court awarded imprisonment for ten years on the ground that the prosecution witnesses had not specified the exact date and time of the occurrence in their statements---Validity---Accused while armed with .222 rifle committed murder of two young persons---Evidence brought on record was misread and not construed in a proper manner---Judgment passed by the Trial Court was set aside and the case was remanded for retrial.

Ch. Muhammad Hussain Chhachhar for Petitioner.

Malik Muhammad Aslam for the

Mushtaq Ahmad Qureshi for Respondent No.2.

Date of hearing: 29th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1955 #

2000 Y L R 1955

[Lahore]

Before Maulvi Anwarul Haq, J

TAJ and 8 others‑‑‑Appellants

versus

REHMAT MASIH and another‑‑‑Respondents

Regular Second Appeal No.63 of 1989, decided on 24th May, 2000.

(a) Christian Marriage Act (XV of 1872)‑‑‑

‑‑‑‑S. 60‑‑‑Monogamy‑‑‑Christian law‑‑Applicability‑‑‑Christian law strictly enforces monogamy and according to the Christian Canons, there can be no marriage where the former husband or wife of either party is living at the time of the wedding and marriage with such former husband or wife is still' in force and has not been dissolved.

Halsbury's Law of England, 4th Edn. Vol 2,para. 907, p.570 ref.

(b) Christian Marriage Act (XV of 1872)‑‑‑

‑‑‑‑S.60‑‑‑Inheritance‑‑‑Christian marriage‑‑‑Polygamy;‑‑Mutation of inheritance‑‑Plaintiff claimed to be the son of the first wife of the deceased and the defendants were from the wedlock of the second wife‑‑‑Contention of the plaintiff was that under. the Christian law second marriage, was a void marriage and defendants were not entitled to inherit the estate of the: deceased‑‑‑Trial Court decreed the suit whereas lower Appellate Court, after holding the defendants as legal heirs of the deceased found them entitled to the inheritance‑‑‑Validity‑‑‑Plaintiff was the only lawful legal heir of the deceased and was his sole surviving child and as such was entitled to inherit the suit land to the exclusion of all else including the defendants in the suit‑‑‑Judgment and decree of the lower Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Mirza Manzoor Ahmad for Appellants.

Ahsan Hafeez for Respondents.

Dates of hearing: 3rd and 17th May 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1959 #

2000 Y R 1959

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AFZAL-- Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2931/13 of 1999, decided on 22nd July, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Accused, according to school leaving certificate was aged about fourteen years and six months at the time of occurrence---Case of accused being covered by first proviso of S.497(1), Cr.P.C, he was entitled to concession of bail.

Hasnat Ahmad Khan for Petitioner.

Mian Muhammad Bashir for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 1960 #

2000 Y L R 1960

[Lahore]

Before Khalil‑ur‑Rehman Ramday, J

MUHAMMAD ARIF‑‑‑Petitioner

versus

I. G. POLICE and 3 others‑‑‑Respondents

Writ Petition No.24091 of 1998, heard on 25th October, 1999.

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

-‑‑‑‑S.156‑‑‑‑Investigation and re‑investigation into cognizable cases‑‑Purpose detailed‑‑Reasons for mala fide repeated investigations and their effect highlighted.

While the Investigating Officers have powers to investigate cases and while the officers incharge of police stations including the superior police officers, who are also S.H.Os. by virtue of section 551 of the Cr.P.C. have powers to withdraw investigations from one Police Officer and to entrust the same to another Police Officer and also to order further investigation in a matter, the sole purpose of such‑like transfer of investigations and directing of further investigations is to be the collection of evidence and nothing more. These powers vesting in the S.H.Os. and the superior police officers can, therefore, be exercised only and only where it is found that the required evidence had either not been collected or that further evidence was required to be collected in a given case

Of late, frequent situations have started coming to the notice of the Courts where repeated investigations are ordered and where investigations are repeatedly transferred from one Police Officer to another without disclosing any reason for such orders which leads to an inference that such‑like orders were passed not for the purposes for which the requisite powers had been conferred on the police officers but to: purposes other than legal and bona fide. Needless to add that such‑like repeated investigations and such‑like transfers of investigations do not only complicate issues making the task of the Courts of law more arduous but also result in wastage of time and inordinate delays towards the final conch of cases.

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

‑‑‑‑Ss. 173 & 156‑‑‑Penal Code (XLV 1860), S.302/149/148‑‑‑Constitution Pakistan (1973), Art. 199‑‑‑Constitutional, petition‑‑‑ Re‑investigation‑‑‑Inspectors-General of Police had passed the impugn: order transferring the investigation in, case more than two months after the chalk had reached the Trial Court and only four days after High Court had passed orders the arrest of the absconding accused persons‑‑‑Impugned order also did disclose any reason as to why a fresh investigation had been directed at such a stage and in the aforesaid circumstances‑‑Impugned order, thus, was violative of settled law and the directions passed by the Inspector‑General of Police himself to the same effect‑‑‑Order passed by the Inspector-General of Police directing further investigation of the case was consequently declared to be a nullity in the eyes of law and of no legal effect.

Riaz Hussain and others v. The State 1986 SCMR 1934: Muhammad Younas and others v. I. ‑G. Police and others 1999 PCr.LJ 163; Haq Nawaz and others v. Superintendent of Police and others 1999 PCr.LJ 1144 and Abdul Aziz v. S.P. (C.I.A.). Sargodha and 2 others PLD 1997 Lah. 24 ref.

‑‑‑‑S.156‑‑‑Repeated investigations and repeated transfers of investigations‑‑Directions and warning to Police Officers.

Repeated investigations and repeated transfer of investigations was a menace which was attaining alarming dimensions and unless this system was checked with an iron hand, the same might erode the very system of investigations and the administration of justice. It is, therefore, again directed that all officers incharge of police stations, including the superior Police Officers, shall strictly follow the above‑quoted observations of the Honourable Supreme Court and the above‑referred directions of this Court especially the ones passed in Muhammad Younas case. All the concerned officers are warned that in future if any case comes to the notice of any Court where an order is passed which is in violation of the observations and the directions aforesaid then the same will be treated as disobedience of the orders passed by the Superior Courts and will be dealt with accordingly.

Muhammad Younas and others v. L‑G. Police and others 1999 PCr.LJ 163 ref.

Muhammad Akbar Tarar for Petitioner.

Khalid Naveed Dar. A.A.‑G for Respondent.

Ch. Muhammad Hussain Chhachhar for Inayat (Accused).

Date of hearing: 25th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 1965 #

2000 Y L R 1965

[Lahore]

Before Zafar Pasha Chaudhry, J

ZAHOOR AHMAD and 9 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.96 and Criminal Miscellaneous No.665‑M of 1998, heard on 8th May, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337, 148, 149 & 411‑‑‑Crossversion‑‑‑ Aggressor party‑‑‑Determination of ‑‑Points to be taken into consideration‑‑Where both the parties blamed each other to be aggressors in such a situation, in order to determine as to which of the version was true or more plausible, both the versions had to be placed in juxtaposition‑‑‑Salient features to be taken. into consideration were the place of occurrence, motive, number of injuries and also the number of participants and in some cases the fact whether they were males or females.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑A(ii), 337‑A(iv), 337‑F(i), 337F(vi), 148, 149 & , 411‑‑‑Appreciation of evidence‑‑‑Case bf cross‑version‑‑‑Putting the version of both the parties in juxtaposition to ascertain as to which of the party was aggressor‑‑‑Injuries received by the., accused side remained unexplained by the prosecution during the trial‑‑‑Grievance of the complainant party was that one of the accused had illicit relations with one of their, women and the same would naturally infuriate the complainant party against the accused‑‑‑Version of the complainant party was supported by the fact that the occurrence took place in front of the house of the accused and one of the members of the complainant party was armed with gun as well‑‑‑Six persons from the accused side received injuries but none of the prosecution witnesses explained the injuries sustained by them‑‑Both the Courts below did not advert to such aspect as to how and. in what manner the injuries were received by the accused side‑‑Prosecution was not able to prove its case against the accused persons beyond doubt‑‑Benefit of doubt was extended to the accused persons and judgment and conviction of both the Courts below were set aside.

‑‑‑‑S. 408‑‑‑Appeal‑‑‑Scope‑‑‑Conviction by Court of Magistrate‑‑‑Accused persons who were convicted by Magistrate First Class had a right to file appeal against their conviction under S.408, Cr. P. C.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 338‑‑‑Sentence of Qisas‑‑Confirmation‑‑‑Scope‑‑‑Where the sentence of Qisas was subject to appeal, the appeal would be preferred before the Sessions Court in the first instance and .if the same was upheld arid maintained, the sentence would be submitted to High Court for confirmation‑‑‑If the sentence of Qisas was modified then there was no need of confirmation of the same by the High Court.

Qayyum Nizami for Petitioner.

M. Bilal Khan, Addl. A.‑G. assisted by Mansoor Ahmad Mian for the State.

Ch. Naseer Ahmad Sindhu alongwith Syed Iftikhar Hussain, Shah for the Complainant.

Cate of hearing: 8th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1971 #

2000 Y L R 1971

[Lahore]

Before Syed Zahid Hussain, J

GHULAM ZOHRA and 6 others‑‑Petitioners

versus

FAISAL FAROOQ and 5 others‑‑‑Respondents.

Civil Revision No. 1589 of 1999, heard on 1st June, 2000.

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

‑‑‑‑Ss. 2 & 2‑A‑‑‑Inheritance‑‑‑Depriving one of legal heirs from the estate of their deceased predecessor‑‑‑Widow of the deceased acting as a limited owner in the estate alienated the same to one daughter and the other daughter vii the plaintiff was excluded‑‑‑Mutation of gift in favour of one daughter was assailed in civil suit‑‑‑Trial Court dismissed the suit whereas appeal filed by the plaintiff was allowed by the Lower Appellate Court and the suit was decreed‑‑‑Validity‑‑‑Rule of limited owner came to an end with the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, and thus, disposition of the suit land by the widow to the deprivation of successors of other daughters of the deceased could not be made‑‑‑Mutation of gift to the extent of share of the plaintiff was illegal and inoperative qua her rights in the property‑‑‑Where the approach of the Lower Appellate Court in the matter was consistent with the factual and legal position, High Court refused to interfere with the same.

(b) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Suit for declaration ‑‑‑Maintain-ability‑‑‑Illegal deprivation of right‑‑Remedy‑‑‑Plaintiff was deprived of a legal right illegally by a collusive decree‑‑Contention by defendant was that suit was not maintainable and remedy was to file an. application under S.12 (2), C. P. C. for setting aside the decree‑‑‑Validity‑‑‑Both the remedies were independently available to the plaintiff in circumstances.

Ch. Habib Ahmad‑I for Petitioners.

Nemo for Respondents, Date of hearing: 1st June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1976 #

2000 Y L R 1976

[Lahore]

Before Muhammad Nawaz Abbasi

and Sheikh Abdur Razzaq, JJ

ULFAT HUSSAIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.31. and Murder Reference No.50 of 1997, heard on 3rd April, 2000.

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

----S. 302---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence--Recovery of crime weapon---Failure to identify the crime weapon by recovery witness---Non-associating the natural witnesses to the recovery of the weapon--Effect---Crime weapon was recovered from a place at .a distance of about nine kilometres from the place of occurrence---None from the area was associated in the recovery proceedings---Recovery witness was closely related to the deceased and. belonged to another village---If the recovery witness was not able to identify the crime weapon, the positive result of crime empties recovered from the place of occurrence and despatched to Forensic Science Laboratory before recovery of the crime weapon was not helpful to the prosecution---Evidence of recovery only had the corroborative value and where the eye-witness account was not believable the corroborative evidence would be of no use to the prosecution.

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

----S. 302---Appreciation of evidence--Medical evidence did not support the time of occurrence---Evidence of prosecution witnesses was not confidence inspiring--Identification of the accused was doubtful--Crime weapon was not identified by the recovery witness during the trial---Trial Court after the conclusion of the trial awarded death penalty to the accused ---Validity--Where time of occurrence was Maghrabwella (dusk time), the possibility of misidentification could not be ruled out--Place of occurrence was a Kassi about 400/500 yards from village and presence of eye-witnesses was not beyond doubt as the witnesses did- not usually go for a walk to that side---Prosecution witness who accompanied the deceased and was cited as a witness, was not produced in the Trial Court ---Non-production of such natural witness was not meaningless---Circumstances under which the occurrence took place and made the prosecution story cloudy and the evidence of the prosecution was shaky---When the prosecution evidence was not confidence inspiring to sustain conviction, benefit of doubt was to be given to the accused--Conviction and sentence awarded to the accused by the Trial Court were set aside.

Sardar Muhammad Ishaq Khan for Appellant.

Aftab Ahmad Gujjar for the State, Date of hearing: 3rd April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 1983 #

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YLR 2000 LAHORE HIGH COURT LAHORE 2005 #

2000 Y L R 2005

[Lahore]

Before Mian Nazir Akhtar, J

IRSHAD ALI and 2 others---Appellants

versus

ASHIQ ALI- --Respondent

Regular Second Appeal No. 12 of 1990, decided on 22nd May, 2000.

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

----Art. 91---Suit for cancellation or setting aside of an instrument ---Limitation--Provision of Art.91, Limitation Act, 1908--Applicability---Period of three years has been provided by Art. 91 of Limitation` Act, 1908, from the date of knowledge of the facts for filing of such suit entitling the plaintiff to have the instrument cancelled or set aside--Article 91. Limitation Act. 1908 is restricted in its application to the suits between the parties to an instrument or document or their successors-in-interests and applies to voidable instruments which can be declared so at the option of a party to the transaction---Article 91 does not apply to suits qua a void or a sham transaction--Where the main relief sought by the plaintiff was declaration or possession of the property and cancellation of instrument was merely incidental or ancillary to the substantial relief, provision of Art. 91 was not applicable.

----O. VII, R. 7--Relief, determination of---Scope---Title of a suit alone does not finally determine the nature of the suit---Trial Court can competently grant appropriate relief after going through the entire plaint.

Samar Gul v. Central Governmi and others PLD 1986 SC 35 ref.

----S.42---Limitation Act (IX of 1908): Art. 142---Suit for declaration---Plaintiff before claiming possession whether bound to seek a declaration first---Where the disputed mutation was void ab initio, plaintiff was not bound to seek the declaration first---Such suit was governed by Art. 142, Limitation Act, 1908.

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

----O.XX R.S---Re-cast issue not decided by Trial Court---Effect---Both the parties had led the Trial Court to decide the issue framed originally and did not press for a decision of the re-cast issue---Where both the parties had full opportunity to produce their evidence in order to prove their respective claims, burden to prove the issue had lost its efficacy--Parties could not be allowed to complain that Courts below did not decide the re-cast issue in circumstances.

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

----S.42---Mutation---Nature and status---Mutation is not a document of title and the purchasers in their own interest have to be careful to verify the factum of sale of the properly from the owner.

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

----S.42---Suit for declaration---Defendants claimed to be a bona fide purchaser of the suit property for valuable consideration without notice of defect in the vendor's title--Trial Court dismissed the suit whereas the Appellate Court decreed the same--Validity---Defendants had neither asked the vendor as to from whom and when they had purchased the suit land, nor did they see any receipt with the vendor regarding the payment of sale price to the previous owner---Such facts militate against the claim of the defendants of being bona fide purchasers for valuable consideration without notice of defect in the vendor's title---Defendants were guilty of negligence and failed to ascertain the validity of title of the vendor before purchasing the suit property from him--Findings of the Appellate Court were maintained in circumstances.

Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Habibullah and others v. Mst. Aziz Bibi 1986 CLC 2126; Wahid Bakhsh and another v. Ghulam Muhammad PLD 1990 Lah. 193; Langar and others v. Ch. Muhammad Shafi and others 1994 MLD 2169; Muhammad Umar v. Muqarab Khan and others 1968 SCMR 983; Sakhi Muhammad and others v. Muhammad Yar and others KLR 1985 Civil Cases 681; United Bank Ltd. v. Messrs Sartaj Industries PLD 1990 Lah. 99; Niaz Muhammad Khan v. Settlement Commissioner (Lands) and others 1982 CLC 2202; Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53; Abdul Majeed and others v. Muhammad Subhan and others 1999 SCMR 1245 and Muhammad Nawaz and others v. Mst. Ismat Jan 1986 SCMR 1236 ref.

Maqbool Sadiq for Appellants

Rana Muhammad Sarwar for Respondent:

2000 Y L R 2046

[Lahore]

Before Maulvi Anwarul Haq, J

TALIB HUSSAIN‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, ARIFWALA and 2 others‑‑‑Respondents

Writ Petition No. 7834 of 1995, heard on 4th July, 2000.

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

‑‑‑‑S.11‑‑‑Res judicata, principle of‑‑Applicability‑‑‑Judgment not finally deciding a lis between the parties by adjudication, is not a 'judgment" within the meaning of S.11, C. P.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.17‑‑‑Proceedings under West Pakistan Family Courts Act, 1964‑‑‑Withdrawal of earlier suit‑‑‑Bar to filing of fresh suit‑‑Validity‑‑‑Provisions of C. P. C. and Qanun‑e-Shahadat, 1984‑‑‑Applicability‑‑‑Rigours of C. P. C. and Qanun‑e‑Shahadat, 1984 are not applicable to the proceedings, except to the extent provided in S.17, West Pakistan Family Courts Act, 1964‑‑‑Withdrawal of suit does not constitute bar to the filing of afresh suit.

‑‑‑‑S.5‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dower, recovery of‑‑‑Wife in an earlier suit made a statement to withdraw the same but the Family Court dismissed the same on merits‑‑Another suit for recovery of dower was filed subsequently‑‑‑Husband filed application under S.11, C.P.C.‑‑‑Family Court dismissed the application and appeal before the Lower Appellate Court met the same fate‑‑‑Validity‑‑‑Family Court, in the earlier suit had committed an error of jurisdiction while proceeding to decide the suit on its merits while the wife had made a prayer for the withdrawal of the same‑‑‑Neither the wife was allowed in the earlier suit to enter the witness‑box nor the husband was provided any opportunity to lead evidence in rebuttal‑‑Adjudication meant the adjudication on the respective pleas of the parties‑‑‑High Court in exercise of Constitutional jurisdiction declined to stifle the suit filed by the wife.

Syed Muhammad Ali Gillani for Petitioner.

Muhammad Arshad Munir for Respondents.

Date of hearing: 4th July, 2000.

2000 Y L R 2068

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

MUHAMMAD RAFIQUE alias

SAHIB‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1179 of 1998, heard on 27th April, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Appreciation of evidence‑‑Nobody was named in the F.l.R. as accused which had been lodged against unknown persons for the murder of the deceased‑Names of accused also did not appear in the inquest report, injury statement of the deceased and the site plan‑‑‑No identification parade was held in the case‑‑‑Eye‑witnesses, who were closely related to the deceased, were not found present at the spot at the relevant time‑‑‑Occurrence was not seen by anybody and later on due to ulterior motive accused and co‑accused had been implicated in the case‑‑‑No motive was even given in the F.I.R. for the murder of the deceased‑‑Supplementary statement made by the complainant being alien to the procedural law enshrined in the Code of Criminal Procedure, was doubtful and, therefore, not believable‑‑‑Accused were acquitted in circumstances‑‑‑Co‑accused who had not filed any appeal against his conviction and sentence was also acquitted by High Court in the circumstances in exercise of its powers under S. 561‑A, Cr. P. C.

1968 PCr. LJ .1118 and 1980 PCr. LJ 264 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Co‑accused who had not filed any appeal against his conviction and sentence was acquitted by High Court in, the circumstances in exercise of its powers under S.561‑A, Cr. P. C.

Khawaja Mahmood Ahmad with Malik Waseem Mumtaz for Appellant.

Ijaz Ahmad Bajwa for the State.

Date of hearing: 27th April, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 2077 #

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YLR 2000 LAHORE HIGH COURT LAHORE 2080 #

2000 Y L R 2080

[Lahore]

Before Khalil‑ur‑Rehman Ramday, J

JAHANGIR KHAN and 4 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3875‑B of 2000, decided on 20th July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail, grant of‑‑‑Accused were not saddled with any injury to any one in the occurrence‑‑‑Despite the allegation of general firing by the accused not a single crime empty was found at the spot‑‑Accused were close relatives of the co-accused who had allegedly caused injuries to the deceased and a prosecution witness‑‑Accused were admitted to bail in circumstances.

M.A. Zafar for Petitioners.

Muhammad Azam for the State.

Ghulam Hussain Malik for the Complainant.

YLR 2000 LAHORE HIGH COURT LAHORE 2081 #

2000 Y L R 2081

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. RUKHSANA YASMEEN‑‑‑Petitioner

versus

Malik MUHAMMAD DIN and 6 others‑‑‑Respondents

Criminal Revision No.317 of 2000, heard on 6th July, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 354‑A1452/337‑A(ii)/337‑L(ii)/337‑F(i)i 337‑H(ii)/148/149‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Transfer of case by Sessions Court to Magistrate for trial‑‑Propriety of the order‑‑‑Sessions Court had transferred the case for trial to the Magistrate on the application of the accused on the ground that the provisions of S.354‑A, P.P.C. were not attracted to the facts of the case and the remaining offences were triable by a Magistrate‑‑‑Narration of the incident contained in the private complaint as well as in the preliminary evidence brought on record by the complainant through the statements of eye‑witnesses had disclosed that the necessary ingredients of S.354‑A, P. P. C. were prima facie, available so as to warrant a trial of the accused for the said offence apart from the other offences alleged in the private complaint‑‑‑Once the Sessions Court had summoned the accused to face the trial in the complainant case it was not proper for it to hold a trial before a trial on their application to assess at the premature stage whether the evidence available at the stage had disclosed or not commission of one of the offences regarding which process had already been issued against the accused party‑‑Sessions Court while passing the impugned order had no basis available to it to review its earlier order especially in the absence of any fresh material on the record in that regard‑‑‑Impugned order passed by Sessions Court was consequently set aside being illegal, incorrect and improper‑‑Revision petition was allowed accordingly.

Muhammad Ashraf v. The State 1989 PCr.LJ 1453 ref.

Mirza Maqsood Baig for Petitioner.

Malik Tauseef Ejaz for Respondents Nos. l to 6.

Muhammad Shan Gul for the State.

Date of hearing: 6th July, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 2084 #

2000 Y L R 2084

[Lahore]

Before Ch. Ijaz Ahmad, J

LIAQAT ALI ‑‑‑ Petitioner

versus

THE ADDITIONAL DISTRICT JUDGL

and 3 others‑‑‑Respondents

Writ Petition No.24269 of 1996, decided 11th May, 2000.

(a) West Pakistan Family Courts (XXXV of 1964)‑‑‑

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Past maintenance of wife‑‑‑Reading of evidence recorded in some other case‑‑‑Legality Concurrent findings of facts by both Courts below‑‑‑Effect‑‑‑Relationship ended divorce on the basis of Khula‑‑‑Entitlement of past maintenance of wife‑‑‑Both the Courts below had given concurrent findings of fact against the husband‑‑‑Husband instead of pointing out any piece of evidence which was misread by both the Courts below, relied upon the evidence recorded in connected suit for conjugal rights‑‑‑Validity‑‑‑Where the evidence in a connected suit was not part and parcel of the controversy the same was not relevant to resolve the controversy between the parties in the case‑‑‑Courts below had concurrently found that the husband neglected to maintain his wife and thus violated his duty which a Muslim husband was under obligation to perform‑‑‑Husband having neglected his wife in her past maintenance, wife was entitled to past maintenance allowance.

Mst. Rashim Bibi's case PLD 1967 Azad J&K 32; Syed Hamid Ali Shah's case 1991 CLC 766; Mst. Ghulam Fatima's case PLD 1958 Lah. 596; Mst. Maryam Bibi and others' case PLD 1976 Azad J&K 9; Nazir Ahmad's case 1991 MLD 1154; Said Rasula Khan's case 1991 MLD 1732; Mst. Parveen Bibi's case 1993 MLD 433 and Mst. Hafeezan Bibi's case 1995 MLD 136 distinguished.

Dost Muhammad's case PLD 1985 Lah. 340; Mst. Tahira Begum's case PLD 1971 Lah. 866; Ghulam Nabi's case PLD 1991 SC 443; Mst. Bibi Musarat's case 1990 CLC 1908; Said Rasool Khan's case 1991 MLD 1732; Iftikhar Ahmad's case 1988 CLC 2355 and Muhammad Nawaz's case PLD 1972 SC 302 ref.

(b) Muhammadan Law‑‑‑

‑‑‑‑Maintenance‑‑‑Past maintenance of wife after obtaining divorce on the ground of Khula‑‑‑Scope‑‑‑Maintenance to wife by husband was not ex gratia grant‑‑‑Husband was obliged to maintain his wife and she was entitled to past maintenance even after obtaining decree for dissolution of marriage on the basis of Khula.

Iftikhar Ahmad's case 1988 CLC 2355 ref.

‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑Maintainability‑‑‑Concurrent findings of facts by Tribunal below‑‑‑Effect‑‑‑Constitutional petition was maintainable against such findings.

Khuda Bakhsh's case 1974 SCMR 279 and Muhammad Rehman Bajwa's case PLD 1981 SC 522 rel.

Raja Dilshad A. Khan for Petitioner.

Muhammad Iqbal Ghaznavi for Respondents.

2000 Y L R 2096

[Lahore]

Before Maulvi Anwarul Haq

IMRAN BHATTI

versus

THE STATE------Respondent

Criminal Miscellaneous No. 1042/B of 1999, decided on 4th August, 1999:

Criminal Procedure Code (V of 1898)

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑Bail, grant of‑‑‑Offence against accused under S.377, P. P. C. had been deleted from the F.I.R.‑‑‑Accused was a student of class 6th and his age was 15 years‑‑‑Medical report showed that no internal or external injury was found on the relevant part of body of alleged victim‑‑‑Accused was in judicial lock‑up since last more than three months‑‑No case under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 prima facie having been made out against the accused, he was allowed bail in view of his age.

Altaf Ibrahim Qureshi for Petitioner

Yaqoob Ayyaz Siddiqui for the State

YLR 2000 LAHORE HIGH COURT LAHORE 2097 #

2000 Y L R 2097

[Lahore]

Before Tassaduq Hussain Jilani, J

Mst. MUQADDAS INAYAT‑‑‑Petitioner

versus

GUARDIAN JUDGE, DASKA, DISTRICT

SIALKOT (MR. NASIR AHMAD AWAN)

and another‑‑‑Respondents

Writ Petition No. 6289 of 2000, decided on 9h June, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199, 9 & 13‑‑‑Guardians and Wards Act (VIII of 1890), Ss. 29 & 31‑‑Constitutional petition ‑‑‑Maintainability‑‑Principle that petitioner must exhaust other remedies available to him before invoking Constitutional jurisdiction under Art. 199 of Constitution of Pakistan (1973), was not an inflexible rule, rather same was a norm of propriety‑‑‑Constitutional petition against respondents who were real mother and husband of the petitioner contained serious allegations against them and propriety demanded that petition be entertained and decided on merits‑‑‑Matter brought to the notice of High Court in Constitutional petition had reflected that Fundamental Rights of minor were likely to be violated‑‑High Court, in view of serious threats of violation of Fundamental Rights to life and property of petitioner, could entertain Constitutional petition.

Hafiz Noor Muhammad and others v. Ghulam Rasool 1999 SCMR 705; Ardeshir Cowasjee and 10 others v. Karachi Buildings Control Authority (K.M.C.), Karachi and 4 others 1999 SCMR 2883; Pakistan telecommunication Corporation and others v. Riaz Ahmad and 6 others PLD 1996 SC 222; Messrs Pioneer Cement Limited v. Province of the Punjab 2000 CLC 54; Abdul Rehman v. Haji Mir Ahmed Khan and another ,PLD 1983 SC 21; Adamjee Insurance Company Ltd. v. Pakistan 1993 SCMR 1798; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge and 20 others PLD 1996 SC 246; Baz Muhammad and others v. Mst. Zelekha and others PLD 1997 SC 300; Archibald Campbel Mackilop v. Tobacco Manufacturers (India) Ltd. PLD 1951 Sindh 22 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 ref.

Taki Ahmad Khan for Petitioner.

Ch. Mushtaq Ahmad Khan and Irsh‑ad Ullah Chatha for Respondents.

M. Bilal Khan, Addl. A.‑G. (on Court's call).

Dates of hearing: 6th and 7th Junc_ 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2109 #

2000 Y L R 2109

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

MUHAMMAD ASLAM and others‑‑‑Appellants

versus

THE STATE Respondent

Criminal Appeal No. 666 of 1997 and Murder Reference No. 262 of 1997 heard on 9th May, 2000.

Penal Code (XLV of 1860)‑--

‑‑‑‑Ss.302/149 & 148‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in a dark night‑‑‑Prosecution had not examined any independent witness‑‑‑Eye‑witnesses were closely related to the deceased and the reasons advanced by them for their being present with the deceased at the time of occurrence were not plausible and they were not found to be present at the spot‑‑‑Medical evidence was in conflict with ocular version‑‑Previous enmity existed between the parties‑‑‑Crime empties secured from the place of incident did not match with the weapons of offence recovered from the accused and the report of Fire‑arm Expert, therefore, did not advance the prosecution case‑‑‑Eye‑witnesses had also acted as recovery witnesses‑‑Accused were acquitted in circumstances.

S.M. Latif Khan Khosa for Appellants.

A.H. Masood for the State.

Masood Mirza and M. Asif Ranjha for the Compalinant.

Date of hearing: 9th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2123 #

URDU

2000 Y L R 2123

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AFZAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal. Appeals Nos. 268 and 347 of 1998, heard on 6th July, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302/34/109‑‑‑Appreciation of evidence‑‑Matter was reported to police with a delay of two and a half hours after occurrence despite police station was opposite to place of occurrence ‑‑‑F.I.R., in circumstances, was proved too have been recorded after deliberation and consultation‑‑‑Both eyewitnesses produced by prosecution were closely related to the deceased and complainant and one of the witnesses who was brother of the complainant was a retired Captain and was Secretary to Ex‑Minister who must have prevailed upon Local Administration‑‑‑Version with regard to occurrence as put forward by the accused was more plausible and convincing than the version of prosecution‑‑‑Story of prosecution as given in F.I.R., showed that co‑accused who came at the spot, had fired with his rifle .222 and then accused fired a shot with his pistol which hit abdomen of deceased, but no empty was recovered from the spot though it had come on record that 4/5 shots were fired‑‑‑No corroboration could be sought from alleged recovery on pointation of accused in absence of report of Fire‑Arm Expert‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and accused were acquitted of charge giving them benefit of doubt‑‑‑Conspiracy alleged against co‑accused having not been proved, co-accused was also acquitted of the charge on benefit of doubt.

Syed Seerat Hussain Naqvi for Appellant.

Ajaz Ahmad Bajwa for the State.

Kh. Mehmood Ahmad for the Complainant:

Date of hearing: 6th July, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2163 #

2000 Y L R 2163

[Lahore]

Before Syed Jamshed Ali and Mian Saqib Nisar, JJ

SHAUKAT IQBAL‑‑‑Appellant

versus

MUSSARAT AFZA and 4 others‑‑‑Respondents

Intra‑Court Appeal No.912 of 1997 in Writ Petition No. 9794 of 1997, heard on 23rd May, 2000.

Constitution of Pakistan (1973)‑‑--

‑‑‑ Art. 199‑‑ Law Reforms Ordinance (XII of 1972), S.3‑‑‑Constitutional petition‑‑Dispossession from residential house‑‑Authority dispossessed the petitioner from her residential house on the ground that said house was built by the father of the petitioner as community centre, out of the funds provided by the Provincial Government‑‑Constitutional petition was filed by the petitioner against the act of the Authority‑‑High Court allowed the petition and the act of taking over of the possession of the house was declared without lawful authority‑‑Authority relied on a note written over copy of Jamabandi for year 1992‑93 evincing that a community centre had been constructed, furthermore, two affidavits were produced by the Authority to justify its act of dispossession‑‑‑Validity‑‑‑Merely because the scheme of community centre was sanctioned, in the name of the father of the petitioner did not mean that any amount from public fund was spent on the construction of the house‑‑Copy of Jamabandi produced by the Authority was countered by the copy of Jamabandi produced by the petitioner and the same did not contain any such note‑‑‑Affidavit also did not establish the case of the Authority‑‑‑Authority had failed to demonstrate Mgt the land of the petitioner in writ petition was utilized for the community centre with her consent‑‑‑Constitutional petition against the action of the Authority was rightly accepted in circumstances.

Malik Israr Elahi for Appellant.

Dr. M. Mohy‑ud‑Din Qazi and Ch. Ijaz Ahmad, Addl. A.‑G. for Respondents.

Date of hearing: 23rd May, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 2165 #

2000 Y L R 2165

[Lahore]

Before M. Naeemullah Khan Sherwani, J

BASHARAT ALI and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.873/B of 2000, decided on 31st May, 2000.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.324/506/353/186/285/34‑‑‑Pre‑arrest bail‑‑‑Complainant had received six injuries on his person during the occurrence which showed violence on the part of accused‑‑Firing made by accused at the complainant, however, did not cause any harm to him‑‑Accused was specifically named in the FI.R. with an assignment of serious role in the occurrence‑‑‑Extraordinary relief of bail before arrest was declined to accused in circumstances.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.324/506/353/186/285/34‑‑‑Pre‑arrest bail‑‑‑Neither the name nor the necessary data for identification of co‑accused was furnished by the complainant and other witnesses in the F.I.R. in their statements recorded under S.161, Cr. P. C. ‑‑‑Case of co-accused, thus, fell within the ambit of further inquiry‑‑‑Interim anticipatory bail already allowed to co‑accused was confirmed in circumstances.

Mian fazal Rauf Joya for petitioners.

Mehmood‑ul‑Hassan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2166 #

2000 Y L R 2166

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM FARID and 2 others‑‑‑Petitioners

versus

MUHAMMAD ASHRAF and 8 others‑‑‑Respondents

Writ Petition No.368 of 1989, heard on 11th May, 2000.

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

‑‑‑‑O. XXII, R.1‑‑‑Withdrawal of suit on oral request‑‑‑Validity‑‑‑Suit can be withdrawn on oral request with permission to file fresh suit.

Ismael v. Fida Ali and others PLD 1965 SC 634 rel.

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

‑‑‑‑O. XXIII, R. 1‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Withdrawal of suit on oral request‑‑‑Plaintiff on account of subsequent events which took place after filing of the suit, withdrew the same on oral request, whit permission to file fresh one‑‑‑Trial Court allowed the permission and fresh suit was filed‑‑Defendant assailed the said order of withdrawal before lower Appellate Court in revisional jurisdiction---Revision was dismissed on the ground that the suit of the plaintiff could not proceed on account of subsequent events as the defendant had taken over the possession from the plaintiff‑‑Validity‑‑‑Judgments of both the Courts below were in accordance with law‑‑‑Plaintiff having withdrawn the suit after five years on account of subsequent event, High Court awarded a sum of Rs. 5,000 as cost on the plaintiff to be paid to the defendant.

Muhammad Mansha v, Sabir Ali 1999 SCMR 1782 fol.

AIR 1925 PC 55; 1984 CLC 2886; PLD 1959 SC 287; Mst. Fatima v. Sardara PLD 1956 Lah. 474; Muhammad Musa Ansari v. Gul Shahab Jan and 5 others 1993 CLC 1776; Nazir Moarja v. Muhammad Sultan Khan PLD 1966 Kar. 356; Town Committee, Dipalpur v. Ahmad Din PLD 1972 Lah. 290; Gurpret Singh's case AIR

1946 Lah. 429 and Abdul Wakeel's case PLD 1994 Lah. 294 ref.

Ch, Naseer Ahmad Sin1hu for Petitioner.

M.D. Tahir for Respondents Nos. l to 7, Date of hearing: 11th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2170 #

2000 Y L R 2170

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

BARKAT HUSSAIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.204 of 1991/LHR. of 1991 and Criminal Appeal No.21 of 1994/Rwp., heard on 7th June, 2000.

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

----S. 13---Sentence, reduction in---Appeal was not pressed on merits---Reduction in sentence to the imprisonment already undergone by the accused was prayed for which was not opposed by the prosecution--Period which the accused had already undergone in jail was treated to be sufficient sentence to meet the ends of justice alongwith the sentence of fine imposed upon him-- Appeal was disposed of accordingly.

M. A. Zafar and Shaukat Rafiq Bajwa for Appellant.

Najmul Hassan Gill for the State.

Date of hearing: 7th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2171 #

2000 Y L R 2171

[Lahore]

Before Jawwad S. Khawaja, J

ABDUL MAJEED. Petitioner

versus

THE SHOPS RAILWAY

MULTAN‑‑‑Respondent

Writ Petition No.2188 of 2000, heard on 6th April, 2000.

Pakistan Railways Police Act (VII of 1977)‑‑

‑‑‑‑Ss. 3(c) & 2(j)‑‑‑Railways Act (IX of 1890), S.3(4)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Quashing of FI.R.‑‑‑Case had been registered against the accused of Police Station (Railway) on the allegation that he had procured employment as a railway servant by submitting false particulars/degrees‑‑‑Word "Railway" had a specific meaning as specified in Pakistan Railways Police Act, 1977 and Railways Act, 1890 which related to the physical and tangible assets owned by the Railway Company‑‑‑Section 3 of the Pakistan Railways Police Act, 1977 and particularly its subsection (c) related to the maintenance of law and order on the Railways and taking cognizance of offences committed on them which in the context of the statutory definitions would relate to the physical assets of the Railway‑‑‑Offence allegedly committed by the accused did not constitute an offence committed on the Railways nor it related to the general maintenance of law and order on the Railways and evidently, therefore, it did not fall within the purview of Railway Police‑‑‑F.I.R. registered against the accused at Police Station Railway was consequently ordered to be quashed.

Kaleem Ullah Buzdar for Petitioner.

Ch. Sagheer Ahmed Standing Counsel for Respondent

Date of hearing: 6th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2173 #

2000 Y L R 2173

[Lahore]

Before Malik Muhammad Qayyum

and Ghulam Mahmood Qureshi, JJ

SABIR Petitioner

versus

THE STATE ‑Respondent

Criminal Miscellaneous No.135/Q of 1999, decided on 11th October, 1999.

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

‑‑‑‑Ss. 403 & 561‑A‑‑‑Customs Act (IV of 1969), Ss.156 (1) (89), 157 & 178‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9. 9‑C, 14 & 15‑‑‑General Clauses Act (X of 1897), S.26‑‑‑Constitution of Pakistan (1973), Art.13‑‑‑Quashing of case‑‑‑More than one trial for same offence ‑‑‑Validity‑‑Test‑‑‑Case against accused was registered under Ss.156(1)(89), 157 & 178, Customs Act, 1969 and under Ss.6, 7, 8, 9‑C,.14 & 15 of Control of Narcotic Substances Act, 1997‑‑‑On completion of investigation one challan was presented in the Court of Special Judge (Customs and Anti‑Smuggling) while the other was submitted to Special Judge (Anti‑Narcotics)‑‑‑Accused was tried and sentenced by Special Judge, Customs‑‑Accused, thereafter, was summoned by Special Judge, Anti‑Narcotics for trial for offence punishable under Ss.8 & 9‑C of Control of Narcotic. Substances Act, 1997‑‑Validity‑‑‑Accused was being tried for same offence twice as act by which accused had violated two laws, Customs Act, 1969 and Control of Narcotic Substances Act, 1997 was the same‑‑‑Accused could not be tried twice for same act even though he by his action had violated two laws‑‑‑Second trial was forbidden by Art. 13 of Constitution of Pakistan (1973) as also under S.26 of General Clauses Act, 1897 and S.403, Cr. P. C. ‑‑‑Main test in such cases was as to whether same evidence would sustain conviction under both laws and words "same offence" would mean an offence ingredients of which were the same‑‑‑Case against accused was for smuggling of narcotics for which he was tried and convicted by Special Judge (Customs) and if his trial was to take place under Control of Narcotic Substances Act, 1997, same evidence would have to be led before the Special Judge, Anti‑Narcotics and ingredients of both offences would be the same‑‑‑Second trial of accused which was nullity in the eyes of law was ordered to be quashed.

State of Bombay v. S.L. Apte (1968) 3 SCR 107; Om Parkash Gupta v. State of U.P. AIR 1957 SC 458; Mark Mifsud Mrs. Rosemarie Morley v. Investigating Officer Customs; Karachi and 2 others PLD 1999 Kar. 336; The State v. Anwar Khamosh and others PLD 1990 FSC 62 and Jonathen Newhouse v. The State and another 1994 PCr.LJ 1433 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.15‑‑‑Criminal Procedure Code (V of 1898), S. 403‑‑‑ "Autre fois convict and autre fois acquit"‑‑‑Applicability‑‑‑No provision like Art.13 of Constitution of Pakistan (1973), existed in the earlier Constitutions of 1956 and 1962‑‑‑Article 13 in cl. (a) thereof had given Constitutional status to principle "autre fois convict and autre fois acquit" which was earlier embodied in S.403, Cr. P. C. and Art.15 of Qanun‑e‑Shahadat, 1984‑‑‑Scope of Art.13(a) of Constitution of Pakistan (1973) was wide‑‑‑Article 13 of Constitution of Pakistan (1973) had forbidden not only double punishment but also prosecution for second time.

YLR 2000 LAHORE HIGH COURT LAHORE 2178 #

2000 Y L R 2178

[Lahore]

Before Mian Saqib Nisar, J

Chaudhry MUHAMMAD YUSUF‑‑‑Appellant

versus

GHULAM MUHAMMAD and 3 others‑‑‑Respondents

Regular Second Appeal No.81 of 1995, heard on 30th May, 2000.

(a) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Superior right of pre-emption‑‑‑Concurrent findings of fact by Courts below‑‑‑Suit for pre‑emption was filed on the basis of owner in the estate‑‑‑Courts below concurrently decreed the suit in favour of the pre‑emptor‑ Validity‑‑‑Both the Courts below had concurrently found that neither the sale was completed, as claimed by the vendee, nor the possession was delivered to the vendee during the specified year‑‑‑Where the vendee failed to point out any error of misreading or non‑reading of the evidence, calling for interference in the appellate jurisdiction, High Court declined to upset such factual findings of the two forums below.

(b) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Limitation Act (1X of 1908), Art.l0‑‑‑Suit for pre‑emption‑‑‑Limitation‑‑‑ Vendee raised the plea that the possession of the suit land was delivered one year prior to the registration of the sale‑deed, hence the suit was time‑barred‑‑‑Proof‑‑‑Where the physical possession was not proved to have been delivered earlier, the period of limitation was to commence from the day of the registration of the sale‑deed under the provision of Art. 10 of Limitation Act, 1908‑‑Vendee had failed to prove the possession having been delivered to him under the sale either one-year prior to the execution of the sale‑deed or on the date when the sale‑deed was executed‑‑‑Suit filed by the pre‑emptor was covered by the later part of Art. 10 of Limitation Act, 1908 and was within time from the date of registration of the sale‑deed in circumstances.

Nazir Ahmad v. Asghar 1992 SCMR 2300; Thakur Singh v. Karam Singh AIR 1925 Lah. 165 and Qazi Muhammad Daud and another v. Muhammad Ayub and others 1985 SCMR 1966 ref.

Ch. Khurshid Ahmad for Appellant.

Nabi Ahmed Cheema and Muhammad Ashraf Wahla for Respondents.

Date of hearing: 30th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2182 #

2000 Y L R 2182

[Lahore]

Before Faqir Muhammad Khokhar, J

ABDULLAH‑‑‑Petitioner

versus

S.H.O.‑‑‑Respondent

Criminal Miscellaneous No.740/H. of 1999, decided on 1st June, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑Habeas corpus petition‑‑‑Detenu was stated by the Police Officer to have been arrested in a case registered under S.379, P.P.C., but he was not named in the FI.R. and his arrest was shown after the habeas corpus petition had been entertained by the High Court and after the Bailiff had visited the police station‑‑‑No record of the arrest and confinement of the detenu was shown to the bailiff at the relevant time‑‑‑Arrest and detention of the detenu, prima facie, being illegal, he was granted bail in the aforesaid case allegedly registered against him for three weeks in order to enable him to move the appropriate Court‑‑‑Senior Superintendent of Police concerned was directed to take disciplinary as well as penal action against the said Police Officer for wrongful arrest and confinement of the detenu‑‑‑Petition was allowed accordingly.

M.A. Zafar for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 2184 #

2000 Y L R 2184

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD KASHIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3375/B of 1999, decided on 7th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860, S.302/34‑‑‑,Bail, grant of‑‑‑Principle of consistency‑‑‑Applicability‑‑ Accused was declared innocent by the first investigation‑‑Co‑accused, who was attributed similar role, was bailed out by High Court as the occurrence qua the co‑accused required further inquiry‑‑‑Accused was son of the principal accused who was attributed fatal blow to the deceased and the question that accused was required to assist the principal accused to cause the fatal blow to the deceased was that of Further inquiry‑‑Accused, who was below sixteen years of age at the time of occurrence, was granted bail in circumstances.

M.A. Zafar for Petitioner.

Mian Liaqat Ali for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2185 #

2000 Y L R 2185

[Lahore]

Before Jawwad S. Khawaja, J

NOOR‑UL‑HASSAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.808/B of 2000, decided on 9th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.420/ 468/471 / 379/406/413‑‑‑Bail‑‑‑Fortysix trucks belonging to accused which were used for transporting the P.O.L. products did not reach their destinations and the accused was alleged in the F.LR. to have committed criminal breach of trust by misappropriating or by converting to his own use the products entrusted to him for carriage‑‑‑Large number of missing consignments and the extent of short delivery indicated the knowledge of accused in the matter and his criminal liability in that regard‑‑‑Proper and efficient delivery of POL products to various destinations in the country constituted an important activity necessary for sustaining the national economy and the general well‑being of the public at large‑‑‑Where such economic activity and well‑being was systematically undermined on such a large scale it was not proper for the Court to grant bail to the accused even though the offence with which he was charged was punishable with imprisonment of less than ten years‑‑‑Bail was declined to accused in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

Chief Commercial Manager v. The General Manager, Ranco Trading Corporation 1976 PCr.LJ 22; Muhammad Yaqoob Gorowara v. Mir Muhammad Hassan and others PLD 1962 Kar. 742 and Shahid Ali v. The State 1986 PCr.LJ 400 distinguished.

Malik Muhammad Nawaz for Petitioner.

Malik Faiz Rasool Rajwana for the Complainant.

Syed Tahir Haider Wasti, A.A.‑G. assisted by Yaqoob Ayyaz Siddiqui for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2188 #

2000 Y L R 2188

[Lahore]

Before Maulvi Anwarul Haq, J

AMIR HUSSAIN SHAH and 5 others‑‑‑Appellants

versus

RANJHA and others‑‑‑Respondents

Regular Second Appeal No.25 of 1982, decided on 6th June, 2000.

Punjab Tenancy Act (XVI of 1887)‑‑‑

‑‑‑‑S. 5‑‑‑Occupancy rights ‑‑‑Proof‑‑Occupancy rights, basis of ownership‑‑Plaintiffs asserted that occupancy of the suit land by their predecessor‑in‑interest started in the year 1898 and they or their predecessors had not been paying any, rent other than the Government dues‑‑‑Both the Courts below dismissed the suit ‑‑‑Validity‑‑Any person claiming right of occupancy under the provisions of S.5, Punjab Tenancy Act, 1887, had to prove that he had been in possession for a period of 30 years prior to the date of commencement of the Punjab Tenancy Act, 1887, i.e. 1‑11‑1887 only then the presumption would be that such person was so in possession for two generations in the male line of descent through a grandfather or grand‑uncle‑‑‑No person by ,simply alleging and proving that he was in possession of the land for 30 years could be held to be a holder of occupancy rights in the suit land‑‑‑Plaintiff had to prove that on 1‑11‑1887 the suit land was in occupation of the person whose successors in interest he claimed to be‑‑‑Provisions of Punjab Tenancy Act, 1887, were not intended to allow acquisition of the rights after passing of that Act.

Muhammad Khalid Alvi for Appellants. .

Ch. Muhammad Jamal for Respondent No.1.

Mushtaq Ahmad Hashmi for

Respondents Nos. 1 to 5.

Khyzar Hayat for Respondents Nos.6, 8 and 10 to 15.

Date of hearing: 30th May; 2000

YLR 2000 LAHORE HIGH COURT LAHORE 2190 #

2000 Y L R 2190

[Lahore]

Before Muhammad Nawaz Abbasi

and Sheikh Abdur Razzaq, JJ

MUHAMMAD JAVAID and 4 others ---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 182 and Murder Reference No.294 of 1996, heard on 20th April, 2000.

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

----Ss. 302(b), 337A(i), 334, 337-F(v), 337-L(2) & 337-F(i)---Appreciation of evidence---Accused having prepared themselves had reached the spot to dispossess the complainant from land and as a result of resistance of the complainant both the sides sustained injuries and the deceased lost his life---Accused party being responsible for inviting trouble on the plea of possession over the land in dispute could not raise either plea of self-defence or of free fight --- Case was not even one of vicarious liability as the accused in fact wanted to establish their possession on the land and in the struggle they picked up a quarrel with the complainant party during which the principal accused fired at the deceased---No plea of self-defence, therefore was available to accused---Essential element of vicarious liability to kill being not available and in the light of the circumstances in which the occurrence took place the principal accused deserved lesser penalty which was sufficient to meet the ends of justice---Conviction of principal accused under S.302(b), P. P. C. was consequently maintained but his sentence of death was reduced to imprisonment for life in circumstances---Conviction of other co-accused was also upheld with reduction in their sentence.

Ali Bepari's case PLD 1962 SC 502 ref.

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

----S. 302(a), (b) & (c)---Punishment of Qatl-e-Amd---Murder as a result of sudden fight and free fight---Distinction---Offence in case of involuntary homicide, falls within the category of cases which are not punishable under S.302(a) or 302(b). P.P.C.---Murder as a result of sudden fight is distinguishable to a murder as a result of free fight---Case of sudden fight may attract an exception to an intentional or voluntary murder and can be covered by the category of case falling under S.302(c), P.P.C. for the purpose of punishment---Homicide as a result of free fight is voluntary murder and ordinarily if it is not a case or S.302(a), P. P. C. will be Punishable under S.302 (b), P.P.C.

Sardar Muhammad Ishaq Khan, Sh. Zamir Hussain and Ch. Muhammad Iqbal for Appellants.

Raja M. Ayub Khan for the State.

Ch. Afrasiab Khan for the Complainant.

Date of hearing: 20th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2200 #

2000 Y L R 2200

[Lahore]

Before Nasim Sikandar. J

Mst. RASOOL BIBI and 9 others‑‑‑Petitioners

versus

Ch. MUHAMMAD TUFAIL‑‑‑Respondent

Civil Revision No.489 of 1989, heard on 25th February, 2000.

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

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), O. VII, R.17 & O.XXI, R.10‑‑‑Suit for pre emption ‑‑‑Deficiency in court‑fee ‑‑‑Making good of such deficiency‑‑‑Execution of decree‑‑‑Earlier suit was decreed on the condition to deposit decretal amount and to make good deficiency in court fee up to the specified date‑‑‑Plaintiff dissatisfied with decretal amount filed appeal against judgment and decree of Trial Court which was dismissed by Appellate Court for non affixation of proper court fee on memo. of appeal‑‑‑Second appeal filed by plaintiff was accepted by remanding the case with direction to determine exact amount of court fee payable and to allow the plaintiff to make good deficiency in court-fee‑‑‑Appellate Court. on remand, re-determined not only decretal amount but also court fee payable. and directed plaintiff to deposit decretal amount and make good deficiency in court‑fee up to a specified date‑‑‑Plaintiff deposited decretal amount and made good deficiency in court fee not on the specified date, but about one month after the said date‑‑‑Application filed by plaintiff/decree‑holder for execution of decree was dismissed by Executing Court for non‑compliance of direction of Appellate Court‑‑‑Validity‑‑‑In absence of any specific order for extension in time for making good deficiency in court fee, application for execution of decree was rightly dismissed by Executing Court‑‑‑Amendment in decree to allow a relief claimed in plaint, but inadvertently not mentioned, could not be equated with extending time for deposit of court fee ex post facto.

Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD 1984 SC 289; Khurshid Akbar v. Mian Manzoor Ahmad and another 1982 SCMR 824; Haji Ishtiaq Ahmad and 2 others v. Rakshaya and 7‑others 1976 SCMR 420; Mst. Rooh Afza v. Sher Aman Khan and others PLD 1993 Pesh. 49; AIR 1952 SC 409; Messrs Gampat Rai Hiralal and another v. The Aggrawal Chamber of Commerce Ltd. AIR 1951 Pepsu 39; Mst. Ghulam Fatima and 3 others v. Talib Hussain and 3 others 1990 MLD 1782; Tepri Mai Bewa v. Farey Mahmud and others PLD 1970 Dacca 475; Muhammad Ayub v. Muhammad Afzal and 4 others 1989 CLC 2043; PLD 1990 SC 865 and Shariat Review Petition No. l/R of 1989 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Relief either not claimed or not allowed in judgment and decree, could not be allowed unless dictates of law or requirements of justice so demanded.

Abdul Sattar Wajdani for Petitioners.

Mian Arshad Ali for Respondent.

Date of hearing: 25th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2205 #

2000 Y L R 2205

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AYUB‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.824 of 1997, heard on 25th April, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑Accused had been attributed only ineffective firing according to the F.I.R. and the statements of prosecution witnesses recorded at the trial‑‑‑Fatal shots were attributed to co‑accused, real brother of accused, who had been acquitted by Trial Court‑‑‑Prosecution evidence had been disbelieved by the Trial Court, but it had convicted and sentenced the accused .on his own statement recorded under S.342, Cr.P.C. in which he had taken the plea of self‑defence‑‑‑Trial Court after having disbelieved the prosecution evidence had no other option under the law but to believe the defence version in to‑‑‑Accused was acquitted in circumstances.

S.M. Latif Khan Khosa for Appellant.

M. Hanif Khatana, Addl. A.‑G. with Kh. Muhammad Iqbal Butt for the State.

Date of hearing: 25th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2208 #

2000 Y R 2208

[Lahore]

Before Tanvir Ahmad Khan, J

Messrs AMMAR TEXTILE MILLS

(PVT.) LIMITED-‑‑Petitioner.

versus

FEDERATION OF PAKISTAN through

Secretary, Ministry of Commerce, Federal Secretariat, Islamabad

and others‑‑‑Respondents

Writ Petitions Nos.7692, 10025 and 10026 of 1999 heard on 7th July, 1999.

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

‑‑‑‑S. 3‑‑‑Notifications No. S.R.O. 166(1)/92, dated 7‑3‑1992 and No. S. R. O. 228(1)/94, dated 8‑3‑1994‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Allocation of export quota‑‑‑Withdrawal of‑‑Petitioners/exporters were granted export quota under Notification No.166(1)l92, dated 7‑3‑1992 for period effective from 1‑1‑1992 to 31‑12-1996‑‑‑While process for export of quota pertaining to year 1994 was underway, said allocation of export was withdrawn by subsequent Notification NO.S.R.0.228(1)l94, dated 8‑3‑1994‑‑‑Validity‑‑‑Petitioners acting upon earlier notification had invested huge amount and had secured orders for export of respective goods‑‑‑Vested rights, in circumstances, had accrued in favour of petitioners‑‑‑Respective quotas as for the year 1994 were allocated to petitioners and were so recorded in their Quota Category Pass Books‑‑‑Subsequent Notification where under allocations were withdrawn could not have retrospective effect and valuable right which had already accrued to petitioners could not have been taken away by a subsequent notification as earlier notification where under quota of export was allocated to petitioners was time bound notification which could not have been withdrawn till 31‑12‑1996‑‑‑‑High Court directed that quota recorded in petitioner's Quota Category Pass Book for the year 1994, could not be interfered with on basis of subsequent notification.

Export Promotion Bureau and others v. Qaiser Shah 1994 SCMR 859; Ameer Hamza v. Chairman, Railways Board and others 1999 MLD 2346; Messrs M.Y. Electronics Industries Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404; Messrs Diamond Industries (Pvt.) Ltd. v. Government of Pakistan NLR 1995 Tax 127 and Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 470 ref.

Syed Mansoor Ali Shah for Petitioner.

Khawaja Saeed‑uz‑Zafar, Dy A.‑G. and S.Abid Mumtaz Tirmizi for Respondents.

Date of hearing: 7th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2211 #

2000 Y L R 2211

[Lahore]

Before Khawaja Muhammad Sharif, J

ASAD HAROON and 2 others Appellants

versus

THE STATE---Respondent

Criminal Appeal No.738 of 1999, heard on 4th October, 1999.

Penal Code (XLV of 1860)---

----Ss. 365/34 & 452/34---Appreciation of evidence---Nobody from inmates of the house, even the real son of the complainant abductee, went to police station to lodge F.I.R.---Prosecution witnesses did not state as to why police was not informed about abduction of complainant by the accused--Complainant although had been allegedly taken to different people in different houses and places but none of them was examined by the prosecution---Even the person who had rescued the complainant was neither cited as a witness nor produced at the trial--Complainant though was recovered on the same night, but she did not lodge any F.I.R. in this regard---Accused did not cause any injury nor did any harm to the complainant during the period she remained with them--Recovery of taxi car being a joint one was not admissible in evidence---Rifle recovered in the case was a licensed one---Motive for the occurrence was not proved---Accused were acquitted on benefit of doubt in circumstances.

Bashir Ali Bhatti for Appellant.

Kh. Muhammad Iqbal Butt for the State.

Date of hearing: 4th October, 1999,

YLR 2000 LAHORE HIGH COURT LAHORE 2213 #

2000 Y L R 2213

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

GULZAR AHMAD‑‑‑Appellant

versus

Mst. ZAHIDA PARVEEN. Respondent

Second Appeal from Order No.87 of 1999, heard on 10th June, 1999.

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

‑‑‑‑Ss. 13(2)(i)(ii)(a) & 15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Default in payment of rent and subletting of premises‑‑Tenant who allegedly had sublet premises had claimed that he had vacated premises long ago and was no longer in possession of the premises while the alleged sub‑tenant claimed that he had obtained premises on rent from husband of the landlady‑‑‑Husband of landlady was not owner of premises in question at time when alleged sub‑tenant had claimed to have acquired premises on rent from husband of landlady‑‑‑If tenant had claimed that he had vacated premises and after his vacation it was rented out to alleged sub‑tenant by husband of landlady, onus would shift upon the tenant to prove that vacant possession was delivered to landlady and that after tenancy had come to an end premises was rented out to alleged subtenant‑‑‑Tenant neither summoned husband of landlady who allegedly rented out premises to sub‑tenant nor had produced any evidence to prove that possession was restored to the landlady‑‑‑Tenancy between landlady and tenant having been admitted, return of possession of premises to landlady having not been proved, in absence of any evidence to prove renting out premises in question to subtenant by husband of landlady, allegation of subletting stood proved‑‑‑Default in payment of rent having also been proved, Rent Controller and Appellate Authority below had rightly ordered ejectment of tenant on ground of subletting and default in payment of rent.

Ejaz Ahmad Awan for Appellant.

Mian Muhammad Ashraf Tanvir for Writ‑Petitioner.

Iftikhar Ullah Malik for Respondent.

Date of hearing: 10th June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2219 #

2000 Y L R 2219

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif, JJ

GULFRAZ and 7 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.202 of 1991, heard on 7th June, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Ocular account of occurrence was not corroborated by medical evidence or any other material available on record‑‑Kalashnikov allegedly recovered at the instance of accused and the crime empties secured from the spot were not sent to Firearm Expert for matching----‑Injured prosecution witness had not uttered a single word against the accused and about his role in the incident‑‑‑Grievous injuries including one fire‑arm injury sustained by the accused had been suppressed by the prosecution‑‑Accused were acquitted on benefit of doubt in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑Ss.302/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Prosecution had suppressed in the F.LR. as well as at the trial the injuries sustained by one accused during the occurrence despite his having been medically examined on the same day when the injured prosecution witnesses were examined‑‑‑Free fight had actually taken place between the parties on a sudden flare up in which injuries had been caused to the deceased and the injured prosecution witnesses‑‑‑Three persons had been killed in the occurrence which had happened at the spur of the moment without any premeditation in which the accused had participated‑‑‑Conviction of accused under S. 302 (b), P. P. C. was converted to S. 302 (c), P. P. C. in circumstances and they were sentenced there under to imprisonment for life each on three counts which were to run concurrently‑‑‑Conviction and sentence awarded to accused under S.324/34, P.P.C. for causing injuries to the lady prosecution witness were, however, set aside as she was not examined by the prosecution at the trial.

M.A. Zafar and Shaukat Rafiq Bajwa for Appellants.

Najam‑ul‑Hassan Gill for the State.

Malik Saeed Hassan and Raja Hashim Sabir for the Complainant.

Date of hearing: 7th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2231 #

URDU

2000 Y L R 2231

[Lahore]

Before Muhammad Akhtar Shabbir, J

CHINA PETROLEUM AND

CONSTRUCTION CORPORATION, TAUNSA, DISTRICT D.G. KHAN

through Project Director‑‑‑Petitioner

versus

DISTRICT COLLECTOR, D.G.

KHAN and 5 others‑‑‑Respondents

Civil Revisions Nos.509‑D and 510‑D of 1998, heard on 29th March, 2000.

(a) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑‑S.137 & Sched. 11, Part 1, Item 12‑‑Import tax, levy of‑‑‑Jurisdiction of Union Council‑‑‑Scope‑‑‑Union Council having been empowered under Sched. II, Part 1, Item 12 of the Punjab Local Government Ordinance, 1979 to levy the import tax on any kind of goods which were imported into the limits of the Union Council, such goods were subject to imposition of import tax by the Union Council.

(b) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S.141‑‑‑Pakistan Mining Concession Rules, 1960‑‑‑"Mining tax", recovery of‑‑Recovery as arrears of land revenue through contractor appointed by ‑Union Council‑‑District Collector in his notification for such recovery, used the word "Mining tax" instead of "import tax"‑‑‑Validity‑‑‑Contractors were leased out the rights for collection of the import tax by Union Council‑‑‑Neither the contractors were allowed by the Mining Department under Pakistan Mining Concession Rules, 1960, or under statutory rules by the Government, nor they had obtained any licence from the concerned Authority‑‑‑Where no such lease had been granted to the contractors, they had no authority to recover the "Mining tax".

‑‑‑‑Ss. 137, 141 & Sched. II, Part 1, Item 12‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.80‑‑‑Import tax, recovery of‑‑‑Recovery as arrears of land revenue through contractor appointed by Union Council‑‑‑Import of stones and crush stones within the limits of the Union Council by the petitioner for use and consumption on the road‑‑‑Taxability‑‑‑Petitioner, held was liable to make the payment of "Import tax" to the Union Council.

(d) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑S.80‑‑‑Recovery of lease money as arrears of land revenue‑‑‑Validity‑‑‑Lease money is a contractual amount unless the liability is ascertained in proper manner, the same cannot be recovered as arrears of land revenue‑‑‑Such money may be recovered through process of civil suit.

Javed Alam v. District Collector/Deputy Commissioner, Rawalpindi and 2 others 1997 CLC 1450; Ali Ahmad & Company v. Municipal Committee, Pasrur through its Chairman and others 1986 MLD 628 and Haji Syed Habibullah and another v. The Municipal Committee, Quetta through the Administrator, Municipal Committee. Quetta and another PLD 1977 Quetta 71 ref.

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

‑‑‑‑S.80‑‑‑‑Recovery as arrears of land revenue‑‑‑Liability of the taxpayer was to be determined before recovery of the amount as arrears of land revenue.

(f) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 137, 141 & Sched. 11, Part 1, Item 12‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.80‑‑‑Import tax, recovery of‑‑‑Recovery as arrears of land revenue through contractor appointed by Union Council‑‑‑Validity‑‑‑Contractors were entitled to receive or recover the _ import tax in circumstances.

(g) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 137, 141 & Sched. 11, Part 1, Item 12‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.80‑‑‑Import tax, recovery of‑‑‑Recovery as arrears of land revenue‑‑Failure to issue notice of demand by the Revenue Officer‑‑‑Validity‑‑‑Mode of recovery, under S.80 of West Pakistan Land Revenue Act, 1967, was that a notice of demand had to be issued by the Revenue Officer on or after the dates on which the arrears of land revenue occurred‑‑‑Where the Collector had not issued any notice of demand, the requirement of law had not been met by the Collector, while passing the order for the recovery‑‑‑Such proceedings of recovery and the order of the Collector were without lawful authority and of no legal effect‑‑‑Order of the Collector for the recovery of amount due was set aside in circumstances.

Malik Abdullah Karim v. West Pakistan Province through Collector, Rehimyar Khan and another PLD 1978 BJ 22; Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67; Syed Inayat Ali Shah v. Province of the Punjab PLD 1978 Lah. 859; Muhammad Zafar Iqbal v. Imam Ali and 2 others 1992 CLC 109; Muhammad Tufail v. Mst. Sardar Bibi and others 1998 CLC 1969; Manzoor‑ul‑Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Haji Muhammad Yousaf v. Province of Punjab PLD 1997 Lah. 674 ref.

(h) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑‑High Court, jurisdiction of‑‑‑Scope‑‑‑High Court does not interfere in the concurrent findings of facts of the Courts below, but when High Court is satisfied that the findings of both the Courts below are based on misreading or non-reading of evidence, High Court in its revisional jurisdiction sets at naught such findings of both the Courts‑‑‑Concurrent findings do not always stand in the way of High Court to set aside such findings in appropriate cases.

Naveed Hashmi for Petitioners.

Muhammad Ali Gillani for Respondents Nos.5 and 6.

Date of hearing: 29th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2242 #

2000 Y L R 2242

[Lahore]

Before Dr. Munir Ahmad Mughal, J

SHAHNAZ AKHTAR alias RANG

and another‑‑‑Petitioners

versus

STATION HOUSE OFFICER, POLICE STATION, A‑DIVISION, DISTRICT SHEIKHUPURA

and 2 others‑‑‑Respondents

Writ Petition No. 10369 of 2000, heard on 20th June, 2000.

(a) Offence of Zina. (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Female accused being between 15 arid 16 years of age had attained puberty and she had admitted her Nikah having been performed with her free consent with the co-accused which fact was also supported by her statement made under S.164, Cr.P.C.‑‑Impugned F.I.R. registered against the accused tantamounted to their humiliation and harassment and also violation of their fundamental rights of marrying according to their choice with their own free will‑‑‑F.I.R. was quashed in circumstances and the Constitutional petition was accepted accordingly.

Mst. Sabai and another v. The State 1988 PCr.LJ 1429; Muhammad Salim and others v. The State 1990 PCr.LJ 971; Banaras y. S.H.O. and others 1995 PCr.LJ 94; Mst. Bushra Bibi v. S.H.O. 1995 PCr.LJ 401; Mst. Dilshad Akhtar and another v. The State PLD 1996 Lah. 145; Mst. Nadia Siddique v. S.H.O. and others 1997 PCr.LJ 594; Muhammad Tariq Mahmood and others v. Station House Officer, Police Station Millat Park, Lahore 1997 PCr.LJ 758; Muhammad Riaz and others v. The State 1997 PCr.LJ 991; Wamiq Mumtaz and another v. The Station House Officer, Police Station, Gowalmandi, Lahore and others 1997 SD 215; Mst. Saima Syed and another v. The S.H.O., Shahdara, Lahore and another 1997 MLD 1573 and Mst. Sajida Bibi v. S.H.O. 1997 PCr.LJ 788 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), S.156‑‑‑Constitutional jurisdiction‑‑Interference with criminal inquiry or investigation‑‑‑Investigation in the case, no doubt, is the right of the police, which should come to its natural conclusion with interference, but proceedings under Art. 199 of the Constitution are competent against, criminal inquiry or investigation if the same encroaches upon any fundamental guaranteed by the Constitution or viola: some other law or is motivated by some m4 fide reasons.

Syed Ahsan Mehboob Petitioners.

Malik Amir Hussain for Respondent No.1.

Date of hearing: 20th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2246 #

2000 Y L R 2246

[Lahore]

Before Riaz Kayani

and Khawaja Muhammad Sharif, JJ

FAYYAZ AKBAR and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.674 and Murder Reference No.269 of 1997, heard on 3rd July, 2000.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Principles‑‑‑Where prosecution case is not to be given credence, defence version has to be accepted in toto.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.96, 97, 99 & 100‑‑‑Right of self defence extended to a stranger ‑‑‑Validity‑‑‑ Reading of Ss.96, 97, 99 & 100, P.P.C. in juxtaposition leads to the convulsion that even a stranger can exercise right of self‑defence on behalf of the victim if the said victim apprehends danger at the hands of the assailant of the nature of death or grievous injury.

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Deceased had fired at the accused which missed him and soon thereafter, a melee ensued between the two for overpowering each other in order to get possession of the pistol which caused danger to each other‑‑ Use of pistol and prevention of its further use by the deceased had equipped the companion of the accused with the right of self‑defence which he could exercise on behalf of accused‑‑‑Prosecution case having been disbelieved, defence evidence had to be taken into consideration which had shattered the prosecution version‑‑‑Co‑accused who had allegedly stabbed the deceased had already been acquitted on the basis of same evidence‑‑‑Accused were acquitted circumstances.

Sardar M. Latif Khosa and A7 Hussain Shah Bokhari for Appellants.

Syed Ehsan Qadir Shah for the complainant.

Akram Nasir for the State.

Date of hearing: 3rd July, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 2256 #

2000 Y L R 2256

[Lahore]

Before Dr. Munir Ahmad Mughal, J

KHADIM RASUL‑‑‑Petitioner

versus

MUHAMMAD HUSSAIN

and 2 others‑‑‑Respondents

Civil Revision No. 1022‑D of 1999, decided on 14th June, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Arts. 72 & 76‑‑‑Document, proof of‑‑Secondary evidence‑‑‑Contents of power of attorney‑‑‑Proof‑‑‑Original power of attorney was in the custody of the attorney and‑after' his death the same went into the custody of his legal heirs‑‑‑Defendants/legal heirs denied possession of the original power of attorney and failed to produce the same in that Trial Court‑‑‑Effect‑‑‑Where original power of attorney was not produced, such document could be proved by secondary evidence under the provisions of Arts. 72 & 76 of Qanun-e-Shahadat, 1984.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 72‑‑‑Document, poof of ‑‑‑Allegation of fraud‑‑‑Rebutting contents of document by oral evidence‑‑‑Validity‑‑‑Where there was allegation of fraud, contents of document be rebutted by oral evidence.

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑tower o attorney, misuse of‑‑‑Concurrent finding of both the Courts below‑‑‑Suit property owned by plaintiff was transferred by the attorney favour of his sons‑‑‑ Contention raised by the plaintiff was that the attorney was not authorised to transfer the property but by forgery authority of alienation of suit property was entered in the disputed power of, attorney‑‑‑Both the Courts below concurrently decreed the suit of the plaintiff‑ Validity‑Alienation of the property by attorney in favour of his sons on the basis of the power of attorney executed in his favour was not sustainable at law‑‑‑Concurrent findings of both the Courts below were well‑ reasoned and High Court refused to interfere with such findings.

Fida Muhammad v. Pir Muhammad Khan through Legal Heirs and others PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 fol.

Malik Saeed Hassan for Appellant.

Ch. Riyasat Ali for Respondent No. 1.

Date of hearing: 9th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2271 #

2000 Y L R 2271

[Lahore]

Before Riaz Kayani, J

Mian INA M-UL-HAQ---Petitioner

versus

Mst. SAFIA REHMAT

and 6 others---Respondents

Writ Petition No.6551 of 1997, heard on 18th May, 2000.

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

----Ss. 145 &c 146---Attachment of Property---Exercise of jurisdiction by Magistrate---Civil suit regarding disputed property pending in Civil Court--If the parties in an attempt to secure possession of the disputed property were so strong, that peace and tranquillity by ally faulty step might explode, it was appropriate to allow the Magistrate to step in and exercise his power under S.145, Cr. P. C. and thereafter shift the ball in the Court of Civil Court already seized of the dispute--Recourse could be made to S.145, Cr. P. C. during pendency of proceedings before the Civil Court.

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

----Ss. 145 & 146---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Attachment ;of property- under provisions of S.146, Cr.P.C.---Pendency of civil suit qua disputed property before Civil Court--Order by Magistrate under 5.146, Cr. P. C. for the attachment of the property was set aside by the Appellate Court in exercise of its revisional jurisdiction---Validity---Material, as the same appeared before the Magistrate on the date when the attachment order was passed, was in conformity with the provisions of S.146, Cr.P.C.---Magistrate failed to determine as to who was in possession of the property and by attaching the same, Magistrate referred further exercise of coming to the conclusion to the Civil Court who had already seized the matter---Magistrate, therefore, acted in accordance with the provisions of S.146, Cr.P.C.---Where both the parties were at loggerheads with each other claiming possession on the basis of title, in such-like cases of urgency law would lean in favour of exercise of jurisdiction by the Magistrate under S. 145, Cr. P. C. by going ahead with the attachment of the property---Magistrate might refer the case for decision to the Civil Court particularly when he was unable to conclude as to who was in possession of the subject-matter of the dispute or who was forcibly dispossessed two months prior to the passing of the preliminary order---Order passed by the Appellate Court was set aside in circumstances.

Dilbaz Khan v. The State PLD 1959 (W.P.) Lah. 264; Abdul Aziz and others v. Mian Rali-ud-Din through his Legal Heirs 1983 SCMR 928; Ghulam Murtaza and others v. The Sessions Judge; Leiah and others 1987 SCMR 622; Haji Muhammad Ashraf v. The State and 3 others 1988 PCr.LJ 2268; Mst. Nasim Akhtar v. The State 1996 PCr.LJ 560; Mirza Abdul Razzaq v. Barkat Ali and others 1985 SCMR 1235; Shah Muhammad v. Haq Nawaz PLD 1970 SC 470; Mehr Muhammad Sarwar and others v. The State and others YLD 1985 SC 240; Lal Muhammad and others v. Suhail Akhtar and others 1997 SCMR 1358 and Abdul Aziz v. S.H.O. 1993 MLD 374 ref.

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

----Ss. 107/151 & 146---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 de 2--Attachment of property under S.146, Cr. P. C. ---Scope---Attachment is a step, to avoid bloodshed and frustrate any attempt to breach the peace which cannot be achieved by temporary stay granted by the Civil Court with respect to the part of the property where the other part of the property is also attempted to be usurped by muscle power--Action under S.107/l51, Cr. P. C. cannot be a substitute to attachment, as the basic bone of contention remains the property in question.

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

----S. 146(2)---Attachment of property under S.146, Cr. P. C. by Magistrate---Receiver, appointment of---Jurisdiction of Magistrate--Where no Receiver has been appointed by Civil Court, such powers have been conferred under S.146(2), Cr: P. C. upon the Magistrate who attaches the property in circumstances.

Muhammad Shahzad Shaukat for Petitioner.

Muhammad Khalid Sajjad Khan for Respondents.

M. Aslam Malik for the State.

Date of hearing: 18th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2278 #

2000 Y L R 2278

[Lahore]

Before Iftikhar Hussain Chaudhry, J

GHULAM SHABBIR and others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.5297/B. of 1999, decided on 2nd November, 1999.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/148/149/109---Bail, grant of---Further inquiry---Medical evidence had belied the prosecution version--- -enmity between the parties was admitted by the complainant--Fire shot attributed to the accused was turned out to be exit wound at the time of post-mortem examination---Where bad blood existed between the parties for quite some time on account of enmity of murders, the possibility of throwing net wider could not be ruled out---Case of the accused was thus of further inquiry---Bail was allowed in circumstances.

M. A. Zafar for Petitioners.

A. Amin Javed for the Complainant.

Abdul Khalid Khan for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2284 #

2000 Y L R 2284

[Lahore]

Before Maulvi Anwarul Haq, J

RASHID AHMED ‑‑‑Petitioner

versus

MANZOOR MAT‑‑‑Respondent

Writ Petition No.4042 and Civil Miscellaneous Nos.1 and 2 of 2000, decided on 3rd May, 2000.

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

‑‑‑‑S. 5‑‑‑Oaths Act (X of 1873), S.10‑‑‑. Constitution of Pakistan (1973); Art. 199‑‑Constitutional petition‑‑‑Dower, recovery of‑‑‑Wife on the offer of the husband took special oath on the Holy Quran qua giving up of the claim of dower‑‑‑Family Court decreed the suit of the wife in accordance with the oath‑‑‑Validity‑‑‑Husband had not denied that he did make the offer of his own free will or that it was not accepted or that the oath was not taken in accordance with the offer made by him‑‑‑High Court declined interference.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Oaths Act (X of 1873), S. 10‑‑Proceedings before Family Court‑‑Applicability of provisions of Oaths Act, 1873‑‑‑Provisions of Oaths Act, 1873 were applicable to the proceedings under Family Courts Act, 1964.

Janat Bibi v Maula Bakhsh 1984 CLC 368 ref.

Syed Javaid Ali Bukhari for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 2286 #

2000 Y L R 2286

[Lahore]

Before Maulvi Anwarul Haq, J

FAQIR MUHAMMAD

and another‑‑‑Appellants

versus

SARDAR BEGUM

and others‑‑‑Respondents

Regular Second Appeal No.640 of 1970, heard on 24th May, 2000.

(a) Easements Act (V of 1882)‑‑‑

‑‑‑‑S. 9‑‑‑Easement, right of‑‑‑Claim of such right‑‑‑Scope‑‑‑Right of easement is always claimed over the servient tenement which is owned by a person other than the claimant who owns the dominant tenement.

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

‑‑‑‑S, 5‑‑‑Transfer of properties‑‑‑Transfer of a premises means the transfer from bottom to the sky unless otherwise mentioned or ordered.

Nazir and others v. Syed Israr Ahmad and others 1981 SCMR 829 and Muhammad Rafique v. Malik Sikander and others 1994 CLC 2300 ref.

‑‑‑‑S. 9‑‑‑Right of easement‑‑‑Plaintiff filed suit to restrain defendants from using the roof of the rooms allocated to the plaintiff‑‑‑Prior to the allotment, the suit property was owned by Federal Government and the same was free of all encumbrances and defendants had no right of easement over the roofs of the rooms allotted to the plaintiff‑‑‑Both the Courts below concurrently decreed the suit of the plaintiff‑‑‑No misreading or non‑reading of evidence on record by the Courts below was pointed out while recording their respective judgments and decrees‑‑‑Interference was declined by the High Court.

Ch. Saghir Ahmad and Ch. Nazir Ahmad for Appellants.

Ch. Asghar Ali and Ahsan Hafeez for Respondents.

Date of hearing: 24th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2291 #

2000 Y L R 2291

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR AHMAD---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, D.G. KHAN and another---Respondents

Writ Petition No.6695 of 1997, heard on 18th April, 2000.

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

----S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dower, recovery of---Principle of ---As---Sumat-- Applicability---Husband asserted that dower as fixed in "Nikahnama " was not the actual dower ---Validity---Nikahnama duly filled up and registered in accordance with law was a public document and the parties were bound by the recitals contained therein--Where there was no plea or evidence that any amount was privately fixed as dower other than the dower mentioned in the Nikahnama, principle laid down by the Supreme Court in the case of Nazir Ahmad PLD 1969 SC 194 was fully applicable.

Nasir Ahmad Khan v. Asmat jehan Begum PLD 1969 SC 194 fol.

Zahid Khan for Petitioner.

Tariq Usman Joyia for Respondent No. 2.

Date of hearing: 18th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2293 #

2000 Y L R 2293

[Lahore]

Before Maulvi Anwarul Haq, J

IJAZ HUSSAIN

and 3 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 1344/13 and 155‑B of 1999, decided on 19th August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.337‑L(ii)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10/16‑‑Bail, grant of‑‑‑Accused had claimed that alleged abductee was his wedded wife as their Nikah was performed and they were living as husband and wife‑‑‑Accused had further claimed that Nikahnama whereby alleged abductee was married to other person as claimed by complainant in F.LR. was forged and fabricated document‑‑‑Alleged abductee had been stated to be living with her in-laws‑‑‑No case under S. 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, prima facie was made out against the accused‑‑‑Offence under S.337‑L(ii), P. P. C. being punishable with imprisonment for two years and bail-able question as to whether accused was guilty of offence under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was a matter of further inquiry‑‑‑Bail was granted to accused in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Anwarul Haq for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2294 #

2000 Y L R 2294

[Lahore]

Before M. Naeemullah Khan Sherwani

and Bashir A. Mujahid, JJ

MUHAMMAD ANEES and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.308 and Criminal Revision No. 153 of 1998, heard on 9th March, 2000.

(a) Medical jurisprudence‑‑‑

Fire‑arms and Ballistics‑‑‑Blackening of fire‑arm wound‑‑‑Reason and range‑‑Blackening of wound, is result of deposit from dirty powder gases and is really akin to scorching‑‑‑Blackening range begins from where the scorching range ends‑‑‑Blackening with a high power rifle like .222, Kalashnikov or 7‑MM can occur up to about 9 inches and with a revolver or pistol up to 6 inches‑‑‑Extreme limit of the blackening range can be well within any normal person's arm length and not beyond that.

Identification of Fire‑arms and Forensic Ballistics, by Major Sir Gerald Burrard ref.

(b) Penal Code (XLY of 1860)‑---

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑Ocular evidence was belied by the medical evidence‑‑‑If patent inconsistency was found between the two, then ocular evidence shall not be believed.

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), S. 103‑‑‑Recovery of crime empties and weapon of offence separately and sending the both together to Fire‑arm Expert after a considerable delay‑‑‑Failure to associate any witness from the locality during recovery proceedings‑‑‑Effect‑‑Crime empties and weapon of offence having been recovered separately on different dates and were sent together to the Fire‑arm Expert after a considerable delay, as such the same had made the evidence of recovery extremely doubtful‑‑‑Non‑association of any witness from the locality or where no such witness was either called to associate the investigation, such recovery proceedings were sham proceedings.

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

‑‑‑‑S. 154‑‑FLR., registration of‑‑‑Prompt FI.R. whether a substantive, piece of evidence‑‑‑Procedure of registration of F.LR.‑‑‑Entries in daily diary of police station‑‑‑Prompt F.I.R. does not always guarantee that innocent persons have not been implicated‑‑FI.R. even though lodged with due haste cannot, by itself, acquire higher value in law as to its weight as a substantive piece of evidence or correctness of the facts mentioned in the same.

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

‑‑‑‑S. 154‑‑‑First Information Report‑‑Registration‑‑‑Procedure‑‑‑Prior to registration of FI.R. a report in daily diary of the police station was recorded‑‑‑Number, time and date of such report was specifically mentioned in Column No.1 of the F. I. R.‑‑Another report was entered by the officer concerned after the said F.I.R. was recorded to the ,effect that the F.I.R. had been registered and this report was also allocated an independent number in the register‑‑Inference.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Motive, non‑adherence to‑‑Effect‑‑‑Non‑adherence to motive alleged in F.I.R. during trial proceedings, reflects upon shaky stand of the prosecution.

(g) Criminal trial----

‑‑‑‑ Accused in a criminal case is to be declared guilty only when his guilt has been clearly established beyond doubt.

Tirmizai Sharif and Masood Abi Hanifia ref.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑F. I. R. was recorded after consultation and deliberations----Ocular evidence was not supported by the medical evidence‑‑‑Recovery of crime empties and weapon of offence was doubtful‑‑‑Prosecution witnesses were false eye‑witnesses and were interested‑‑‑Motive set up in the F.I.R. by the complainant was not adhered to during the trial and new motive was set up before the Trial Court‑‑‑Effect‑‑‑If the prosecution witnesses were highly interested and of partisan character, doubts with regard to participation of the accused in the occurrence had arisen in abundance‑‑Ocular statements of prosecution witnesses were not corroborated by the medical evidence or recoveries‑‑‑Occurrence was of the night time and did not appear to have been witnessed by any one‑‑‑Placing of explicit reliance upon voucher of such witnesses was not safe‑‑‑Where the prosecution witnesses had sufficient evil motive to wish maximum harm to the accused by deposing falsely, evidence of such witnesses was wholly unreliable and as such was to be discarded‑‑‑Conviction and sentence passed by the Trial Court were set aside.

Sabz Ali v. Yusuf Shah and others 1980 SCMR 126 ref.

Sahibzada Farooq Ali Khan and Rana. Muhammad Arshad for Appellants.

Sh. Muhammad Rahim for the State.

Muhammad Bashir Khan and Malik Muntizar Mehdi, Advocates.

Date of hearing: 9th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2311 #

2000 Y L R 2311

[Lahore]

Before Riaz Kayani and

Khawaja Muhammad Sharif J

SAIFULLAH KHAN

and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.455, 101, Criminal Revision No. 452 and Murder Reference No.225 of 1994, heard on 26th April, 2000.

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

----S. 302(2)/34---Appreciation of evidence--Ocular account corroborated by medical evidence and the same had coincided with the time given by prosecution---Number of injuries on the person of the deceased also matched with the number of accused persons---Prosecution having proved its case against the accused beyond any shadow of doubt, conviction and sentence of death awarded by the Trial Court was maintained.

NLR 1996 Criminal Cases 544; 1990 PCr.LJ 1607; PLD 1994 FSC 34; PLD 2000 Lah. 216 and PLJ 1980 Criminal Cases 372 ref.

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

----S.173---Supplementary challan, submission of ---Challan having been submitted by the police at the time when evidence in the Trial Court was being recorded was deprecated---Fair opportunity was to be given to the Trial Court to decide the case on merits.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal Appreciation of evidence---Ocular account was corroborated by medical evidence--Accused was alleged to have "Datars" (sickles) with them at, the time of occurrence---Such "Datars" (sickles) were recovered from the accused and the same were blood-stained---Injuries attributed to the accused were established 6y medical evidence---Trial Court acquitted the accused persons of the charge---Validity---Where the "Datars" (sickle) were recovered on the pointation of the accused and the same were found to be stained with human blood, ,,as such the prosecution had proved its case against the accused beyond any shadow of doubt---Acquittal recorded by the Trial Court; was set aside and the accused were sentenced; to death in circumstances.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal-Appreciation of evidence---Injuries attributed to the accused were not found on the body of the deceased---Prosecution witness did -not name the accused in his examination-in-chief---Effect---Acquittal recorded by the Trial Court was maintained in circumstances.

Muhammad Asif Ranjha and Maj. (R.) Akhtar Shah for Appellants.

Sardar Khurram Latif Khosa :for the Complainant.

Masood Sadiq Mirza for the State, Date of hearing: 26th April; 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2317 #

2000 Y L R 2317

[Lahore]

Before Syed Zahid Hussain, J

ARIF MANSOOR AHMED ‑‑‑Petitioner

versus

FAYYAZ ALI and 5 others‑‑‑Respondents

Civil Revision No.538 of 1994, heard on 12th June, 2000.

(a) Muhammadan Law‑‑‑

‑‑‑‑ Adoption‑‑‑No concept of adoption in Islam.

(b) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑Ss. 372 & 373‑‑‑Succession Certificate‑‑ Proceedings‑‑‑Determination of disputed question of fact in the proceedings‑‑ Petitioner claimed to be joint account holder of a Bank account of the deceased and filed an application before the Trial Court to impaled him as a party to the proceedings‑‑Trial Court dismissed the application‑‑ Validity‑‑‑Question involved related to the interest and entitlement of the petitioner and as such was a disputed question of fact‑‑‑Such question could not be gone into 6y the Trial Court in the proceedings for grant of Succession Certificate ‑‑‑Petitioner could not be imp leaded in the proceedings and might have his remedy for determination of his interest or right in proper proceedings‑‑Order .of Trial Court did not suffer from any illegality in circumstances.

Mst. Charjo and another v. Dina Nath and others AIR 1937 Lah. 196 rel.

Ch. Rashid Ahmad for Petitioner.

Mansoor A.. Malik for Respondents.

Date of hearing; 12th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2318 #

2000 Y L R 2318

[Lahore]

Before Zafar Pasha Chaudhry, J

KHALIL AHMAD‑‑‑Petitioner

versus

Mst. SHAHNAZ AKHTAR

and another‑‑‑Respondents

Criminal Miscellaneous No.260/Q of 1995, heard on 17th May, 2000.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 6(5)‑‑‑Criminal Procedure Code (V of 1898), S. 561‑A‑‑‑Quashing of proceedings‑‑Contention was that the petitioner having contracted second marriage at Muzaffargarh and the same having been registered within the limits of District Muzaffargarh, complaint filed by the first wife of the petitioner at Lahore for polygamy was not triable and maintainable at Lahore but at Muzaffargarh where the offence had been committed‑‑Validity‑‑‑Offence under S.6(5) of the Muslim Family Laws Ordinance, 1961 was refusal by the existing wife or the contract of second marriage without her permission‑‑Non‑grant of permission by first wife had made the offence for which the trial was being held‑‑‑Offence having occurred at Lahore, Criminal Court at Lahore had the jurisdiction to try the same‑‑‑‑Petition for quashing the said proceedings was, therefore, misconceived and the same was dismissed accordingly.

Shaukat Ali v. Kalsoom Akhtar and another PLD 1991 Lah. 247 ref.

Masood Arshad for Petitioner.

Rai Bashir Ahmad for Respondents.

Date of hearing: 17th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2321 #

2000 Y L R 2321

[Lahore]

Before Zafar Pasha Chaudhry, J

GHULAM AKBAR SHAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.2078/B and 2479‑B of 1999, decided on 22nd December, 1999.

Criminal Procedure Code of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/16‑‑Bail, grant of‑‑‑Allegation of Zina‑‑‑Accused had contended that they being sui juris had voluntarily married with each other‑‑Prosecution alleged that Nikahnama was false‑‑‑Investigation though had been completed, but challan had not been submitted in the Court‑‑‑Question whether accused who were sui juris and had contracted marriage, had committed ant offence, was a question which needed further inquiry‑‑‑Accused were admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mehr Muhammad Saleem for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2322 #

2000 Y L R 2322

[Lahore]

Before Muhammad Akhtar Shabbir, J

GHULAM YASEEN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.898/B of 2000, heard on 17th May, 2000.

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

----S.497---Penal Code (XLV of 1860), S.302/ 148/149---Bail, grant of---Opinion of Investigating Officer--- Weight could be attached to the result of investigation and bail was not to be withheld as a punishment.

Akbar Masih v. State 1995 PCr.LJ 1082 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/148/149---Bail, grant of---Case of further inquiry---Accused was declared innocent during the investigation and no weapon of offence was recovered from him---No specific injury caused on the person of the deceased had been attributed to the accused and all the accused persons armed with Sotas were alleged to have caused injuries to the deceased and the guilt of the accused was yet to be determined by the Trial Court after recording of prosecution evidence---Case of the accused being that of further inquiry, bail was granted to him in circumstances.

Syed Masood Ahmed Gillani for Petitioner.

Aslam Sumro for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2324 #

2000 Y L R 2324

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD USMAN‑‑‑Petitioner

versus

PEHLWAN and 4 others‑‑‑Respondents

Writ Petitions Nos.375 and 376 of 1993, heard on 9th June, 2000.

Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), S. 12(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Pre-emption decree, setting aside of‑‑‑Suit was decreed and execution proceedings were pending against the vendee when application under S.12(2), C.P.C. was filed by the vendee on the ground that decree in question was passed by the Trial Court on 31‑I‑1988 after the judgment in the case of Said Kamal PLD 1986 SC 360 had taken effect and for that reason decree passed was a nullity in the eye of law and liable to be declared to be without jurisdiction‑‑‑Validity‑‑‑Right of appeal though was available to the vendee but no appeal was filed against the decree passed by the Trial Court and vendee allowed the pre‑emptors to execute the decree and get the possession‑‑‑Case was though not decided before the dead line fixed by the Supreme Court in Said Kamal's case and requirement of Talabs were not fulfilled, yet the case proceeded‑‑‑Trial Court assumed that the vendee had opted to give up the objection of Talabs and the proceedings were carried out even after the judgment in Said Kamal's case had taken effect‑‑Case having proceeded on such assumption, judgment passed by Trial Court did not suffer from any infirmity‑‑Orders of both the Courts below, dismissing the application under S.12(2), C. P. C. did not suffer from any jurisdictional or legal defect in circumstances.

Said Kamal's case PLD 1986 SC 360 and Aurangzeb v. Hassan and others NLR 1995 Civil 120 ref.

Muhammad Khan v. Massan 1999 SCMR 2464 and Mst. Kharo and 2 others Sher Afzal alias Sheray 1992 SCMR 1844 fol.

Khawaja Muhammad Asghar for Petitioner.

Syed Muhammad Ali Gilani for Private Respondents Nos. l and 2.

Dates of hearing: 8th and 9th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2343 #

2000 Y L R 2343

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD ZAMAN KHAN and 2

others‑‑‑Petitioners

versus

SPECIAL JUDGE (A.C.), MULTAN

and others‑‑‑Respondents

Writ Petition No. 1374 of 1995, decided on 8th March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.409/420/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Criminal proceedings against accused persons had been initiated at the instance of unsuccessful bidder in auction for leasing out collection of Export Tax‑‑‑No documentary evidence had been attached with challan to justify charges against the accused‑‑‑Total amount of lease money was collected from the contractors and had been deposited in account of District Council‑‑Trial had not been concluded despite the case was pending for the last about more than twelve years‑‑‑One of the accused person stood retired and had not been allowed to enjoy fruit of pension benefit‑‑‑Further processing of case was nothing but an abuse of process of law‑‑‑Sword of criminal litigation could not be allowed to remain hanging on heads of accused persons‑‑‑High Court ordered quashing of F.I.R. registered against accused in circumstances.

Ali Ahmad Awan and Muhammad Ali for Petitioners.

Tahir Haider Wasti, Asstt. A.‑G. for the State.

Date of hearing: 8th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2353 #

2000 Y L R 2353

[Lahore]

Before Bashir A. Mujahid and

M. Naeemullah Khan Sherwani, JJ

SHAFQAT RASOOL and 3

others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 135 and Murder Reference No. 310 of 1997, heard on 15th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/324/337‑F(v)/148/149‑‑‑Appreciation of evidence‑‑‑Complainant and two others sustained injuries in the incident and deceased laid his life at the spot due to bullet injury fired at him by one of the accused persons‑‑‑Occurrence did not take place due to litigation pending between some members of both the sides, but it took place due to an anxious act of dog of the accused‑‑‑Defence version of accused that deceased tried to abduct sister of accused appeared to be absurd, ridiculous and illusionary ‑‑‑No counter‑case was ever filed by accused and counter‑version was also not pressed into service before Police‑‑‑No application was ever made by accused to get a cross‑case registered or to demonstrate that prosecution case was false or had been got registered in absolutely on incorrect premises‑‑Prosecution evidence was wholly reliable and Trial Court had not misinterpreted the evidence‑‑‑Accused, in absence of perversity of reasoning had rightly been convicted and sentenced‑-‑No deep‑rooted enmity was established between parties and occurrence had taken place per chance in the heat of moment and accused had fired only one shot at the deceased‑‑‑High Court, for safe administration of justice and out of abundant caution, reduced sentence of death to imprisonment for life and sentences awarded to other accused were also reduced accordingly.

Sahibzada Farooq Ali Khan assisted by Altaf Ibrahim Qureshi for Appellants.

Mehr Muhammad Saleem Akhtar for th;: State.

Ch. Muhammad Anwar Khan (for Ghulam Murtaza).

Date of hearing: 15th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2382 #

2000 Y L R 2382

[Lahore]

Before Malik Muhammad Qayyum, J

MUSLIM COMMERCIAL BANK

LTD. ‑‑‑Petitioner

versus

ITTEFAQ TEXTILE MILLS LTD. ‑‑‑Respondent

Civil Miscellaneous No. 178‑B of 2000 in Civil Original Suit No. 2 of 2000, decided on

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)----

‑‑‑‑S. 9‑‑‑Issuance of process simultaneously through more than one modes ‑‑‑Validity‑‑Even if the word "simultaneously" has not been used by the Legislature in S.9 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, yet it was clear from the underlying object that the modes prescribed therein could be resorted to simultaneously and not one after the other.

United Bank Ltd., Karachi v. M/s. Mohib Ali Tennery Ltd., Karachi and others PLD 1994 Kar. 275 distinguished.

Messrs United Bank Limited, Karachi v. Messrs Mohib Ali Tannery Limited Karachi and others PLD 1994 Kar. 275; United Bank Limited, Karachi v. Messrs Union Agencies Limited, Lahore and others PLD 1994 Kar. 303 and Messrs Qureshi Slat and Spices Industries, Khushab and others v. Muslim Commercial Bank Ltd. Karachi through President and others 1999 SCMR 2353 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

‑‑‑‑S.12‑‑‑Setting aside of ex parte decree‑‑Non‑receipt of notices by the defendants‑‑ Registered notices were issued to all the defendants but only notice of one defendant was received back undelivered while the other envelops were not received either delivered or undelivered‑‑‑Effect‑‑‑Presumption was that the registered notices must have been delivered to the defendants‑‑‑Ex parte decree was not set aside in circumstances.

Ahmad Autos v. Allied Bank of Pakistan PLD 1997 SC 497; Messrs Allied Bank of Pakistan Limited v. Messrs Tahir Traders and 9 others PLD 1986 Kar. 369 and Messrs Union Bank of Middle East Limited v. Messrs Zubna Limited and 3 others PLD 1987 Kar. 206 ref.

A.K. Dogar for Petitioners.

Salman Akram Raja for Respondent

Date of hearing: 29th May, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 2391 #

2000 Y L R 2391

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABID HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2162/1 of 1999, decided on 17th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4(4)‑‑‑Bail, grant of‑‑‑Accused was behind the bars for the last about nine months and though challan of the case had been sent to the Court, but trial of case had not yet commenced ‑‑‑Co‑accused had been released on bail‑‑‑Alleged recovery had been effected from admiral of house which was locked by co‑accused‑‑‑Guilt of accused was yet to be determined by Court after recording evidence‑‑‑No useful purpose would be served in detaining accused in jail‑‑‑Offence against accused being not punishable with death or life imprisonment, same did not fall within ambit of prohibitory clause of S.497, Cr. P. C. ‑‑‑Case against accused being of further inquiry, accused was ordered to be released on bail.

Altaf Ibrahim Qureshi for Petitioner

Raja Sultan Khurram for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2398 #

2000 Y L R 2398

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD IRFAN BUTT and

another---Petitioners

versus

COMMISSIONER, GUJRANWALA

DIVISION, GUJRANWALA and 4

others---Respondents

Writ Petition No. 20193 of 1999, heard on 26th May, 2000.

Punjab Local Government Ordinance (VI of 1979)----

----Ss. 154, 156 to 166---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Auction of lease right to hold cattle market---Cancellation of lease right---Petitioner participated in auction and being highest bidder, his offer was accepted by the Zila Council---Petitioner according to conditions of auction deposited the amount and a requisite valid contract was executed between the parties---Petitioner was issued work order by Zila Council and he commenced the job and was regularly making the payment of monthly instalment---Rival bidder in the said auction, during currency of the contract between the parties offered higher bid and Commissioner accepted the said offer of rival bidder and nullified the subsisting contract simply on ground that by so doing Zila Council would fetch handsome additional amount which was in "public interest"- --Validity ---Existing lease holder had not violated any teen and condition of contract nor he had procured the contract through fraud or misrepresentation---No legal justification thus existed for Commissioner to put an end to a valid contract simply on basis that in the midst of a subsisting contract a rival competitor had made a higher offer--Commissioner while exercising powers under S.156 of Punjab Local Government ordinance, 1979 had no authority in law to cancel or rescind contract in case of validly concluded contract which had been acted upon--- "Public interest" undoubtedly required due consideration while exercising powers under S.156 of the Ordinance but vested right of citizen could not be trampled and sacrificed at the altar of that touchstone---Not right to assume that if an offer of higher bid was trade during currency of a contract, it should be accepted by nullifying a subsisting contract on reasoning of public interest Such kind of attitude was bound to shake and ode the confidence of public in entering into a contract with a Local Council on a valid apprehension of insecurity to complete tenure of contract and that would be snore dangerous and against over all interest of public and the Local Council---High Court set aside order of Commissioner whereby contract was nullified, in exercise of its Constitutional jurisdiction allowing petitioner to complete his term of lease under the contract.

Abdul Hamid v. D.C./ Administrator, Zila Council, Mandi Bahauddin and 4 others 1997 CLC 540 ref.

Rizwan Mushtaq for Petitioners.

Ch. Ijaz Ahmad, Addl. A.-G. for Respondents Nos. 1 to 4.

Irfan Qadir for Respondent No.5.

Date of hearing: 26th May, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 2404 #

2000 Y L R 2404

[Lahore]

Before Maulvi Anwarul Hay, J

IJAZUL HASSAN and 21 others‑‑‑Appellants

versus

WAZIR MUHAMMAD ‑‑‑Respondent

Regular Second Appeal No. 30 of 1984, heard on 20th March, 2000.

Punjab Pre‑emption Act (1 of 1913)‑‑‑‑

‑‑‑‑Ss. 15, 21, 25 & 27‑‑‑Court Fees Act (VII of 1870), S.7 (v) & (vi)‑‑‑Suits Valuation Act (VII of 1887), S.3‑‑‑Suit for pre‑emption‑‑Determination of court‑fee ‑‑‑Plaintiff claimed superior right of pre‑emption on ground of being co‑sharer in suit land; owner of estate and collateral of the vendor‑‑‑Plaintiff had alleged that amount of Rs. 90, 000 mentioned in the mutation by vendees was fictitious and that actually a sum of Rs. 28, 000 was paid by vendees as sale price ‑‑‑Vendees in their statements had objected that value for purposes of court fee was incorrect and proper court fee had not been paid by plaintiff and that sum of Rs. 90, 000 was fixed in good faith and was actually paid as price of the suit land‑‑‑Trial Court accepted claim of plaintiff with regard to his superior right of pre‑emption and payment of sale price as claimed by vendees, but dismissed suit on ground that court fee had not been properly assessed and paid by plaintiff‑‑‑Appellate Court below decreed the suit subject to payment of Rs. 90, 000 to vendees‑‑‑Appeal filed by plaintiff before Appellate Court against judgment of Trial Court was resisted on ground that Appellate Court did not possess pecuniary jurisdiction to‑ hear and decide appeal because market ‑value of suit land had been fixed Rs. 90, 000 by Trial Court which was beyond pecuniary jurisdiction of Appellate Court‑‑‑Suit, as a whole was dismissed by Trial Court and decree of Trial Court in its entirety was challenged before Appellate Court‑‑‑Appellate Court had found as a. fact that as suit land which formed a definite share of estate was assessed to land revenue of Rs. 2, jurisdictional value of same would be thirty times of said land revenue and Appellate Court in circumstances, was possessed of the pecuniary jurisdiction to hear and to decide appeal.

Elahi Bakhsh and others v. Mst. Bilqees and, others PLD 1985 SC 393 and Naeem Shahid and 2 others v. Muhammad Hanif and another PLD 1986 Lah. 373 ref.

Muhammad Jehangir Arshad for Appellant.

Mian Muhammad Ashraf Salimi for Respondent.

Date of hearing: 20th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2411 #

2000 Y L R 2411

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD ARIF---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 1207 and Murder Reference No. 491-T of 1999, heard on 18th May, 2000.

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

----Ss. 10(4) & 7---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence--- Accused had committed gang rape with a nine years' old girl in a brutal manner in broad daylight who had fully implicated both of them and her statement was corroborated by medical evidence and the positive Chemical Examiner's Report---Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 being subject to and subservient to its S. 7, both the accused being not adult could not be convicted under 5.10(4) of the said Ordinance and their conviction thereunder was consequently converted to S.7 of the said Ordinance and they were sentenced to five years' R.I. each with fine etc. ---Victim girl having not suffered death in the incident, accused were also not liable to be convicted under S. 7(a) of the Anti-Terrorism Act, 1997 and they were instead convicted under S. 7(b) of the said Act and sentenced to undergo imprisonment for life each with fine thereunder---Both the sentences were ordered to run concurrently with benefit of S. 382-B, Cr. P. C.

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

----Ss. 10(4) & 7---Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is subject to and subservient to S. 7 of the said Ordinance.

Ghulam Nabi Bhatti for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 18th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2429 #

2000 Y L R 2429

[Lahore]

Before Mumtaz Ali Mirza, J

IMRAN ALIM SIDDIQI‑‑‑Petitioner

versus

ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD and another‑‑‑Respondents

Writ Petition No. 507 of 2000, heard on 12th June, 2000.

Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Study centre of Open University‑‑‑Refusal to approve college of the petitioner as a study centre;‑Petitioner was running a private college and applied to the University for approval of his college as study centre‑‑ Committee was appointed to inspect the facilities of laboratory provided for the students interested in courses of Management and Computer Sciences‑‑‑Inspection Committee did not recommend the college of the petitioner as laboratory facilities, provided therein were found to be insufficient ‑‑‑Students who sought admission in the college which applied for the approval were, however, directed by the University to join the other approved college if they intended to undertake the courses ‑‑‑Validity‑‑Members of the Committee were scholars of high repute in their own right and had no animus against the petitioner‑‑‑Members were not expected to submit a report favourable to the petitioner, no matter the requisite facilities were not available in the petitioner's college‑‑‑Where the University had shifted the students to another college with a view to save their educational and academic year, the respondent University had committed no illegality in transferring of the students‑‑High Court, keeping in view the report of the Committee refused to take any exception and declined to issue any direction to the University for approving the petitioner's college as a study centre‑‑‑Order of the University allocating the students to another college was not struck down in circumstance.

M. Kowkab Iqbal for Petitioner.

S.A. Mehmood Khan Saddozai for Respondents.

Date of hearing: 12th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2438 #

2000 Y L R 2438

[Lahore]

Before Mumtaz Ali Mirza, J

Syeda RAFIA NAZISH ABBAS QAZI‑‑‑Petitioner

versus

ADNAN YAQOOB and 3 others‑‑‑Respondents

Civil Revision No. 152‑D' of 2000, decided on 15th June, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr. I & 2‑‑‑Interim injunction, grant of‑‑‑Concurrent findings of fact by both the Courts below‑‑‑Petitioner was using her residential house for a commercial purpose‑‑Notice was issued by the respondents for the non‑conforming use of the premises‑‑‑ Petitioner assailed the notice before Civil Court and filed application under O.XXXIX, Rr. 1 & 2, C. P. C. ‑‑‑Both the Courts below refused to grant interim injunction on the ground that non‑conforming use of the premises was violative of the Building and Zoning Regulations of the Development Authority‑‑‑Interim injunction sought by the petitioner was on the ground that since several other persons were also running suchlike commercial enterprises in the other sectors of the city, therefore, the petitioner be granted interim injunction ‑‑‑Validity‑‑Running of such‑like commercial enterprises in other sectors would not confer any right on the petitioner‑‑‑Illegalities would not legalize yet another illegality‑‑‑Petitioner could not on the strength of those cases plead immunity from legal act against herself‑‑Both the Courts below had concurrently recorded a finding of fact that the petitioner did not have a prima facie case in her favour‑‑‑Interim injunction was declined in circumstances.

Sh. Zamir Hussain for Petitioner.

Tariq Mahmood for Respondents Nos, and 2.

Malik Muhammad Nawaz for Respondents Nos. 3 and 4.

YLR 2000 LAHORE HIGH COURT LAHORE 2440 #

2000 Y L R 2440

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Asif Saeed Khan Khosa, JJ

GULLOO‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 63/J and Murder Reference No. 148 of 1993, heard on 14th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(6)‑‑‑Appreciation of evidence ‑‑‑Eyewitnesses were not only chance witnesses of the occurrence without any reasonable explanation of their presence at the spot, but were also interested and inimical witnesses‑‑No unimpeachable corroboration of the testimony of the said eye‑witnesses was available on record‑‑‑Accused was acquitted in circumstances.

Zahid Hussain Khan for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 14th December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2448 #

2000 Y L R 2448

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Zafar Yasin, JJ

Haji MAHMOOD AMJAD RATHORE

and another‑‑‑Appellants

versus

GOVERNMENT OF PUNJAB through Secretary, Housing and Physical Planning Environmental Planning Department, Government of the Punjab, Lahore and 19 others‑‑‑Respondents

Intra‑Court Appeal No. 7 of 1996, heard on 20th June, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Law Reforms Ordinance (Xlh of 1972), S.3‑‑‑Intra‑Court Appeal‑‑Constitutional jurisdiction of High Court‑‑Assailing of order passed in earlier Constitutional petition‑‑‑Instead of filing appeal against such order matter was agitated before High Court in a second Constitutional petition‑‑‑Second Constitutional petition was dismissed on the ground that the Court had no lawful authority to set aside the order passed in the earlier petition‑‑‑Validity‑‑‑Appellants were well within their rights to file Intra‑Court Appeal against the earlier order passed by the High Court‑‑‑Where no illegality or irregularity was pointed out by the appellant in the order of the High Court, Court was justified in dismissing the Constitutional petition‑‑Appeal _ was dismissed in circumstances.

H.M. Saya & Co., Karachi's case PLD 1969 SC 65 ref.

(b) Mala fides‑‑‑

‑‑‑‑ General allegation of mala fides was not sustainable in tile eyes of law.

Saeed Ahmad Khan's case PLD 1974 SC 151 ref.

Shamim Iqbal Butt for Appellant.

Ijaz Ahmad Chaudhary, Addl. Advocate‑General for Respondents Nos.l to. 4.

Syed Zafar Ali for Respondents Nos.5 to 19.

Ch. Aamar Rehman for Respondent No.20.

Date of hearing: 20th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2456 #

2000 Y L R 2456

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

MUJEEBUR REHMAN KHAN‑‑‑Appellant

versus

Syed HANEEF AHMED‑‑-Respondent

First Appeal from Order No. 10 of 1997/BWP, decided on 17th June, 1999.

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

‑‑‑‑O. VII, R.10, O. XXXVII, Rr. I , 2 & O.XLIIl, R.I‑‑‑Suit for recovery of amount‑‑Application for leave to appear and defend the suit‑‑‑Return of plaint‑‑‑Trial Court instead of deciding the application, directed return of plaint for presentation before Court of competent jurisdiction holding that suit could not be tried under O. XXXVII, C. P. C. as the same was not based on promissory note, but was result of some settlement‑‑ Validity‑‑‑Perusal of the plaint indicated that relief claimed was based on Promissory Note‑‑‑Court at the initial stage was expected to look into the contents of plaint and if from averments made therein Court gained an impression that suit was summary in nature and was based on negotiable instrument, then no extraneous material could be looked into to non‑suit the plaintiff or to issue direction for the return of the plaint‑‑‑Court in absence of any request for return of the plaint, should have confined itself to the application for leave to appear and defend the suit.

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

‑‑‑‑O. XLI, R. 33‑‑‑Power of Court of appeal‑‑‑Appellate Court under O.XLI, R.33, C.P.C. could pass an order which, as a matter of fact, should have been passed by the Court below‑‑‑If Court below had omitted to pass appropriate order or failed to exercise its jurisdiction in accordance with law, Appellate Court was not denuded of its power to pass an order which should have been passed by the Court below.

WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Co. PLD 1990 SC 359 ref.

‑‑‑‑O. XXXVII, Rr. I, 2 & 3‑‑‑Suit for recovery of amount‑‑‑Application for leave to appear and defend the suit‑‑‑Where triable issues were raised and plausible defence was made out, permission for leave to appear and defend suit could not be refused outright‑‑Condition could be imposed only if there was an apprehension of causing delay on part of defendant.

Abdullah Qureshi for Appellant.

Shamsher Iqbal Chughtai for Respondent.

Date of hearing: 17th June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2459 #

2000 Y L R 2459

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM HUSSAIN and 5 others---Petitioners

versus

COMMISSIONER, DERA GHAZI KHAN and 3 others---Respondents

Writ Petition No. 3070 of 1994 and Civil Miscellaneous No.935 of 1998, heard on 20th October, 1999

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)--- ----S.2---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition --- Auction of evacuee land--- Unauthorised occupancy of evacuee land---After finalization of auction and deposit of 1/4th of the total bid by auction-purchaser, the petitioners who were unauthorised occupants of the land were allowed to deposit the auction price of the land and that of the auction purchaser was ordered to be refunded---Cancellation of auction proceedings by the Commissioner-- Validity---Commissioner did not figure anywhere in the scheme of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and various schemes and memos. issued thereunder---Order of the Commissioner was without lawful authority and the same was set aside---Matter was, however, remanded to Notified Officer.

Malik Muhammad Shabbir Langriyal for Petitioners.

Malik Muhammad Ramzan Khalid for Applicants (in C.M. No. 935 of 1998).

Khadim Nadeem Malik, A.A.-G. for Respondents Nos. l and 2.

Zafar Ullah, Assistant Commissioner Office, D.G. Khan and Ghulam Ahmad Bucha, Tehsildar, Muzaffargarh.

Date of hearing: 20th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2461 #

2000 Y L R 2461

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

ZAHOOR HUSSAIN SHAH and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 66 and Murder Reference No.20 of 1997, decided on 4th February, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 324/149 & 337‑F(I)‑‑Appreciation of evidence‑‑‑Possibility could not be ruled out that the injuries received by the injured prosecution witnesses were the result of the shot fired from the 12 bore shot pistol recovered at the instance of co‑accused‑‑‑Version put forward by the accused was more plausible and narrate the truth than the prosecution version and the same was also corroborated by medical evidence‑‑‑Court, while awarding death penalty to accused, had to be very careful and to seek corroboration of prosecution evidence from an unimpeachable source which was lacking in the case‑‑‑Accused were acquitted on benefit of doubt in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 324/149 & 337‑F(i)‑‑Appreciation of evidence‑‑‑Case of two versions‑‑‑Principle‑‑‑Where prosecution has put its own version and the accused have a different version regarding the same incident, the version which is more plausible and nearer to realities and common sense is to be accepted.

‑‑‑‑Ss. 302/149, 324/149 & 337‑F(i)‑‑Appreciation of evidence‑‑‑Accused had fired at the time of occurrence with a carbine with which he was armed‑‑‑Crime empty recovered front the spot had snatched with the said carbine‑‑‑Medical evidence had supported the prosecution version‑‑‑Convictions and sentences awarded to accused by Trial Court were upheld in circumstances.

1990 SCMR 1272 and 1996 SCMR 908 ref.

Sardar Muhammad Latif Khan Khosa and Haji Sharif Muhammad Bhedera for Appellants.

Atta Muhammad Baloch for the State.

Mian Nazar Hussain Bhatti and Mian M. Afzal Wattoo for the Complainant.

Date of hearing: 4th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2471 #

2000 Y L R 2471

[Lahore]

Before Ch. Ijaz Ahmad,J

MUHAMMAD SIDDIQUE.‑ Petitioner

versus

MUHAMMAD ASHRAF Respondent

Civil Revision No. 1939 of 1999, decided on 8th December, 1999

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

‑‑‑‑O.XXXVII, R.3‑‑‑Limitation Act (IX of 1908), Art. 159‑‑‑Application for leave to defend‑‑‑Limitation‑‑‑Notice on the prescribed pro forma was personally served on the defendant‑‑‑Application for leave to defend the suit was filed after more than 1‑1 /2 months of such service‑‑‑Effect‑‑‑Defendant by virtue of O.XXXVII, R. 3, C. P. C. and Art. 159 of Limitation Act, 1908 had to file such application within ten days from the date of his service but he did not file the same within the prescribed period‑‑‑Trial Court was justified to dismiss such application as time‑barred in circumstances.

993 SCMR 931 rel

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

‑‑‑‑O.XXXVII, R.3‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Application for leave to defend ‑‑‑Condonation of delay‑‑‑Application was filed by defendant after more than 1‑1/2 months of service of notice‑‑‑Plea raised by the defendant for such delay was negotiations between the parties for settling the dispute outside the Court‑‑‑No application for condonation of delay was filed by the defendant alongwith the application for leave to defend‑‑‑Effect‑‑‑Trial Court had rightly dismissed application and no material irregularity was committed by the said Court, in circumstances.

1982 SCMR 673; PLD 1964 SC 236; PLD 1955 FC 38 and PLD 1949 PC 26 ref.

Muhammad Saeed Ansari for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 2473 #

2000 Y L R 2473

[Lahore]

Before Maulvi Anwarul Haq, J

KALOO and 3 others‑‑‑Appellants

versus

HASSAB BAKHSH and 3 others‑‑‑Respondents

Regular Second Appeal No. 76 of 1977 and Civil Revisions Nos.459 and 460 of 1990, heard on 2nd December, 1999.

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

‑‑‑‑S.21‑‑‑Pre‑emption decree not put into execution‑‑‑Effect‑‑‑Creation of title‑‑‑Even if a pre‑emption decree is not put into execution, the same does not create title and Revenue Authorities are bound to incorporate the same in Revenue Record, if so insisted upon by the decree‑holder.

Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lah. 207 and Ali Ahmad and another .v. Muhammad Fazal and another 1972 SCMR 322 ref.

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

‑‑‑‑Ss. 17 & 21‑‑‑Rival claim of right of pre-emption ‑‑‑Three pre‑emption suits were filed and all were decreed in order of preference‑‑Failure on the part of one decree‑holder to deposit pre‑emption money, tight of second decree‑holder was to hold the field and so on‑‑‑First decree‑holder deposited the money in stipulated time and during pendency of execution proceedings surrendered the possession in favour of the appellant‑‑Validity‑‑‑First decree‑holder and the appellant had acquired title in the suit land having trade deposit within the time prescribed by Trial Court and any withdrawal or adjustment trade thereafter could accrue only to the benefit of the vendee.

Molvi Abdul Qayyum v. Syed Ali Asghar Shah and others 1992 SCMR 241; Lachhman Singh v. Natha Singh and another AIR 1930 Lah. 273; Sultan and 2 others v. Muhammad Nawaz and another 1996 SCMR 65 and Haji Muhammad Suleman v. Muhammad Akram Khan and others PLD 1956 FC 97 ref.

‑‑‑‑O. VI, Rr. 2, 4, 7 & 10‑‑‑Non‑mentioning of particulars of collusion or fraud in detail in pleadings‑‑‑Effect‑‑‑Where collusion was alleged between the defendants and no particulars of such allegation had been stated in detail in pleadings, Trial Court could not have presumed that there was collusion between the defendants.

Mst. Sahib Noor v Haji Ahmad 1988 SCMR 1703 ref.

Mian Shamsul Haq Ansari and Mian Arshad Latif for Appellants.

Mirza Manzoor Ahmad, Khalid Alvi, Chaudhry Afzal and Naveed Hashmi for Respondents.

Date of hearing: 2nd December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2477 #

2000 Y L R 2477

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHAFI through Legal Heirs and others‑‑‑Appellants

versus

Mst. AISHA BIBI and 2 others‑‑‑Respondents

Regular Second Appeal No.63 3f 1975 heard on 22nd November, 1999.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 90‑‑‑Attested copy of public document‑‑‑Admissibility‑‑‑Attested copy of public document is per se admissible in evidence.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.45‑‑‑Document tendered in evidence and exhibited‑‑‑Ruling out such document from consideration‑‑‑Validity‑‑‑Where no objection was raised by opposite party regarding admissibility of document tendered in evidence, nor genuineness of such document was disputed, Courts below could not have ruled out such documents of consideration on surmises and conjectures.

‑‑‑‑Art. l29(e)‑‑‑Register maintained by public servant in discharge of his official duty‑‑Entries in the register of birth and death‑‑Value‑‑‑Scope‑‑‑Date of death‑‑‑Proof‑‑‑Copy of such register was a relevant proof of the date of death of a person‑‑‑Entries in the register‑of births and deaths were, prima facie, evidence of what was stated ,therein‑‑Death register which was a public document must be accepted as almost conclusive in ordinary circumstances.

Ahmad Bakhsh's case PLD 1955 ah 8' andAIR 1925 Mad. 1005 ref.

(d) Civil Procedure Code of 1908)‑‑‑

‑‑‑‑Ss.100 & 115‑‑‑Second appeal revision Jurisdiction of High Court‑‑‑Scope‑‑‑Decision of both the Courts below based on a wrong proposition of law‑‑‑Effect‑‑‑High Court in its revisional jurisdiction or in second appeal under 5.100, C. P. C. could interfere in such decision of the Courts below.

Sahib Khan's case PLD 1994 SC 162 ref

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.100‑‑‑Thirty years' old document‑‑Concurrent‑ findings of fact by both the Courts below‑‑‑Exercise of jurisdiction by High Court ‑‑‑Respondent/plaintiff assailed a death entry in year 1971 made in the register of death in year 1923‑‑‑Both the Courts below without considering the factor of entry being more than thirty years old, declared the same to be illegal‑‑‑Validity‑‑‑Both the Courts below having committed material irregularity to reject such documentary evidence without considering S.90 of Evidence Act (I of 1872) = Art. 100 of Qanun‑e‑Shahadat, 1984) High Court had ample jurisdiction to disturb such findings of fact‑‑‑Judgments and decrees of both the Courts below were set aside.

PLD 1955 FC 38; Muhammad Ali's case PLD 1994 SC 245 and Shaukat Nawaz's case 1988 SCMR 851 ref.

Naveed Shehryar Sheikh for Appellants.

Ch. M. Hassan Responder.

Date of hearing 22nd November.

YLR 2000 LAHORE HIGH COURT LAHORE 2481 #

2000 Y L R 2481

[Lahore]

Before Iftikhar Hussain Chaudhry

MUHAMMAD NAEEM alias NAEEMOO‑‑‑Petitioner

versus

THE STATE Respondent

Criminal Miscellaneous No.4601‑B of 1998 decided on 15th September, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Accused admittedly had not caused any injury to the deceased‑‑‑Vicarious liability, if any, of the accused could be determined by the Trial Court after evidence was led by the parties at the trial‑‑‑Case of accused at present called for further inquiry‑‑‑Accused was admitted to bail in circumstances.

Mirza Shahid Baig for Petitioner.

Muhammad Hanif Saleemi for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2482 #

2000 Y L R 2482

[Lahore]

Before Nasim Sikandar

MUHAMMAD GULZAR FAROOQ‑‑‑Petitioner

versus

SHAUKAT ALI and 4 others‑‑‑Respondents

Writ Petition No.4772 of 1997, heard on 7th March, 2000.

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

‑‑‑‑O.IX, R.7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Discretion of Trial Court in setting aside ex parse proceedings‑‑‑Such discretion cannot be questioned in Constitutional jurisdiction.

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

‑‑‑‑O.IX, R.6‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Particular nature of proceedings contemplated on the date fixed for hearing ex parte proceedings could not be described as jurisdictional fact to by interfered with in Constitutional jurisdiction.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Discretionary relief‑‑‑Directly or indirectly misusing process of law or procedure, disentitles the person to discretionary relief in Constitutional jurisdiction.

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

‑‑‑‑O.IX, R.7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Setting aside of ex parte proceedings‑‑‑ Petitioner was proceeded ex parse thrice during trial‑‑‑Trial Court refused to set aside ex parte proceedings initiated for third time, so did Lower Appellate Court ‑‑‑Validity‑‑Petitioner failed to give any explanation for default made by him on the last occasion‑‑Findings of both the Courts below that the petitioner intended to delay the proceedings was supported from the record‑‑‑Petition was dismissed in circumstances.

Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Dr. Sajjad Ahmad and another v. Dr. Muhamamd Bashir and 10 others PLD 1979 Lah. 304 distinguished.

Ch, Ayyaz Muhammad Khan for Petitioner

Muhammad Mumtaz Malik for Respondents.

Date of hearing: 7th March, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 2484 #

2000 Y L R 2484

[Lahore]

Before Dr. Munir Ahmad Mughal, J

WAJID ALI and others‑‑‑Petitioners

versus

LIAQAT ALI and others‑‑‑Respondents

First Appeal from Order No. 55 of 1994, heard on 8th April, 1999.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.14‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.33‑‑‑Award‑‑‑Filing of objections‑‑Scope‑‑‑Parties appointed arbitrator during pendency of suit for partition‑‑‑Trial Court, without giving opportunity of objections, made the award as rule of Court‑‑‑Lower Appellate Court set aside order of Trial Court on the ground that no opportunity was provided for filing of objections ‑‑‑Validity‑‑Where referee had not furnished any information according to his knowledge but had determined the right of the parties, his statement did not come within the statement of referee rather it was a decision by an arbitrator‑‑‑To make decision by arbitrator rule of Court, it was mandatory to give all opportunity to the parties to file their objections.

Ghulam Farid Khan v. Muhammad Hanif Khan 1990 SCMR 763; Muhammad Saleem v. Muhammad Akram PLD 1991 SC 516; Himanchal Singh v. Jatwar Singh AIR 1924 All. 570; SLbbaraju v. Venkatramaraju AIR 1928 Mad: 1025; Sera Narain Chaube.v. Beni Madho Chaube AIR 1937 All. 701; Umrai Ali Khan v. Intizami Begum and others AIR 1939 All. 176; Akbari Begum v. Rehmat Hussain and others AIR 1933 All. 861; Rehmat and' others v. Residents of Village and others 1988 CLC 1922; Chhabba Lal v. Kallu Lal AIR 1946 PC 72 and Abdur Rehman v. Kalu Khan AIR 1935 All. 118 ref.

Muhammad Shabbir Langrial For Petitioners.

Ch. Muhammad Ishfaq for Respondents Nos.2 to 5.

Date of hearing: 8th April, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2486 #

2000 Y L R 2486

[Lahore]

Before Riaz Kayani, J

Mirza MUHAMMAD IQBAL---Petitioner

versus

THE STATE---Respondent

Writ Petition No. 17313 of 1999, heard on 24th January, 2000.

Prevention of Corruption Act (11 of 1947)---

----S.5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Assumption of charge by the accused as Deputy Director (Admn.) in the Education Department was not unlawful because orders of cancellation of his transfer were not conveyed to him in time--Acceptance of the appeal of a teacher by the accused was not denied to have been done in the exercise of jurisdiction duly vested in him as Deputy Director (Adorn.)---No evidence was available on record to suggest that the accused had received any illegal gratification from the said teacher as a motive or reward for doing favour to her by accepting her appeal---Complainant without taking into consideration all the facts had hurriedly lodged the FI.R. probably on the direction of some high-up who was inimical towards the accused---Case registered against the accused was a glaring example of mala fides--Accused who had to his credit thirty-three years dedicated service offered in the Education Department should not have been humiliated---Prosecution had also admitted that the accused had been victimised and that the order of the registration of the case against him was not sustainable---Impugned F.I.R. registered against the accused was quashed in circumstances.

Pervez Inayat Malik for Petitioner.

Akhtar Husain Awan, Addl. A.-G. for the State.

Date of hearing: 24th January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2489 #

2000 Y L R 2489

[Lahore]

Before Ch. Ijaz Ahmad, J

NAZAR MUHAMMAD ‑‑‑Petitioner

versus

Mst. SURRIYA SULTANA and another‑‑‑Respondents

Civil Revision No.704‑D of 1987, heard on 15th February, 2000.

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

‑‑‑‑S.149‑‑‑Extending time to stake good deficiency in court‑fee ‑‑‑Discretion of Court‑Scope‑‑‑Grant or refusal to such extension is discretion of Court‑‑‑ Wshere a party is guilty of delay and contumacy and has committed positive act of mala fides, such party is not entitled to exercise of such discretion in his favour.

(b) Words and phrases :

Contumacy"‑ Defined.

Siddique Khan's case PLD 1964 . 289 and Black's Law Dictionary ref.

(e) Words and phrases‑‑‑

‑‑‑‑‑ "Mala fide "‑‑‑Defined.

Siddique Khan's case PLD 1984 SC 289 and Black's Law Dictionary ref.

(d) Words and phrases‑‑‑

‑‑‑‑ "Bona fide "‑‑‑Defined.

Black's Law Dictionary ref.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.149‑‑‑Extending tune to make good deficiency in court‑fee ‑‑‑Ground for such extension in time‑‑‑Mere poverty, ignorance or inability to pay court fee within the prescribed period were not sufficient grounds.

Siddique Khan's case PLD 1984 SC 289; H.H. Feldman's .case PLD 1970 Kar. 295; Muhammad Ghafoor's case 1969 SCMR 12 and Muhammad Nawaz's case PLD 1970 SC 37 ref.

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

‑‑‑‑S.149‑‑‑Refusal to extend time for deposit of court‑fee ‑‑‑Petitioner failed to deposit court fee within the prescribed period due to personal engagement in cutting wheat crop which was in full swing‑‑‑Validity‑‑‑Petitioner was guilty of contumacy and had also acted in mala fide manner by dishonestly filing application for extension of time on the last date fixed by the Court to pay the court fee.

Siddique Khan's case PLD 1984 SC 289 ref.

Sh. Naveed Shehryar for Petitioner.

Ch. Muhammad Sharif for Respondents.

Date of hearing: 15th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2493 #

2000 Y L R 2493

[Lahore]

Before Raja Muhammad Sabir, J

ALI ASGHAR‑‑‑Petitioner

versus

SARDARA‑‑‑Respondent

Civil Revision No.350 of 1985, heard on 16th February, 2000.

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

‑‑‑‑Ss.l9 & 20‑‑‑Waiver, proof of‑‑‑In order to establish waiver positive and strong evidence is required.

Muhammad Azam Khan and others v. Rehmat Ali and others PLD 1993 Lah. 836; Muhammad Amin v. Maqbool PLD 1990 Lah. 397 and Wazir Muhammad v. Ch. Muhammad Hussain through Legal Heirs and another 1993 CLC 1585 rel.

(b) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑Ss.19, 20 & 21‑‑‑Pre‑emption suit‑‑Principle of waiver of estoppel ‑‑Applicability‑‑‑Pre‑emptor on the basis of collateral and co‑sharer in the suit land filed the suit‑‑‑Lower Appellate Court in appeal decreed the suit ‑‑‑Vendee raised the plea that at the time of attestation of disputed mutation of suit land, the pre‑emptor was present, hence principle of waiver or estoppel was applicable and the suit was liable to be dismissed‑‑‑ Validity‑‑‑Averment of the vendee was denied by the pre‑emptor, who staled to have no knowledge of the sale made by his brother ‑‑‑Vendee was to prove through reliable evidence that the pre‑emptor was hit by the principle of waiver and estoppel‑‑Positive evidence had to be there to non‑suit pre‑emptor on the plea of waiver or estoppel and in absence of any such reliable evidence plea of the vendee could !:ot be accepted‑‑Where the vendee failed to produce any evidence, during the trial that offer to purchase the suit land was made to the pre-emptor in presence of any Panchayat or person, the principle of estoppel or waiver was not applicable‑‑‑Judgment of Lower Appellate Court was based on proper appreciation of evidence and the same called for no interference.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 and Baqri and 4 others v. Salchon and 3 others . PLD 1972 SC 133 distinguished.

Ghulam Ali and others v. Allah Yar and others 1995 SCMR 945; Abdul Rehman v. Ghulam Muhammad through Legal Heirs and another 1995 SCMR 988 and Shahmand and 5 others v. Allah Bakhsh 1997 SCMR 424 ref.

‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent findings of fact‑‑‑Interference by High Court ‑‑‑Scope‑‑Such findings based on proper appraisal of evidence could not be interfered with in revision‑‑‑Where no misreading or nonreading of evidence by the Courts below had been pointed out, revision was dismissed.

S.M. Naseem for Petitioner.

Taj Muhammad Agha for Respondent.

Date of hearing: 16th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2498 #

2000 Y L R 2498

[Lahore]

Before Ghulam Mahmood Qureshi, J

SHAHABAL KHAN and another‑‑‑Petitioners

versus

DEPUTY COMMISSIONER/COLLECTOR, TOBA TEK SINGH and 3 others‑‑‑Respondents

Writ Petition No.23025 of 1999, heard on 29th February, 2000.

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

‑‑‑‑S.32‑‑‑Resumption of possession‑‑Jurisdiction‑‑‑Where Collector is satisfied that any person has taken or is in possession of land in colony to which that person has no right or title, Collector is competent under S.32, Colonization of Government Lands (Punjab) Act, 1912 to resume possession of that land.

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

‑‑‑S.32‑‑‑Expressions "re‑enter" and "on behalf of the Government ", occurring in S.32, Colonization of Government Lands (Punjab) Act, ,19.12‑‑‑Connotation‑‑Expressions make it clear that S.32, Colonization of Government Lands (Punjab) Act, 1912, applied only . to those cases in which the Government is entitled to possession of land and ; trespasser had interfered with its possession.

‑‑‑‑S.32‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Constitutional petition‑‑‑Resuming of colony land from squatters and trespassers‑‑‑Jurisdiction of Collector‑‑‑ ‑Scope‑‑‑Power vested in the Collector under S.32, Colonization of Government Lands (Punjab) Act, 1912 was to safe‑guard the interest of State and to save State land from illegal occupation by squatters and trespassers‑‑‑Where Collector was of the view that allottee was not self‑cultivator and breached the condition of allotment and another party was in possession of the land as being the trespassers, he was competent to take action under S.32, Colonization of Government Lands (Punjab) Act, 1912 and dispossess them.

Ch. Arshad Mahmood for Petitioners.

Syed Muhammad Zain‑ul‑Abidin for Respondents.

Date of hearing 29th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2500 #

2000 Y L R 2500

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD ASGHAR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.7161-B of 1999, heard on, 15th February, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392/395---Bail---Complainant, after two days of registration of the case, had exculpated two accused persons named in F.I.R. substituting other persons for them and the allegations made 6y him in the F. I. R. and subsequently in the supplementary statement had: made the prosecution case against the accused one of further inquiry---Arrival of the Chowkidar at the spot on a bicycle was yet to be analysed and. the chance of error of identification of accused in the torch light could not be ruled out---Numbers of the robbed currency notes having not been mentioned in the FI.R, alleged recovery of Rs.200 at the instance of accused was absurd---No other case of instant nature was either registered or pending against the accused---Courts below had dismissed the bail applications of accused flaringly violating the provisions of S.497, Cr.P. C. which had to be disposed of within its framework and not in routine---Accused who was .behind the bars for the last about one year could not be detained in judicial lock-up as a punishment---Accused was admitted to bail` in circumstances.

Haider Ali for Petitioner, Mrs. Deeba Mirza for the State.

Date of nearing; 15th February,

YLR 2000 LAHORE HIGH COURT LAHORE 2503 #

2000 Y L R 2503

[Lahore]

Before Maulvi Anwarul Haq, J

Haji MUHAMMAD ZAFFAR---Petitioner

versus

MUHAMMAD SIKANDAR and 2 others---Respondents

First Appeal from Order No. 102 of 1999, heard on 25th February, 2000.

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

----S.34---Stay of legal proceedings---Scope--Dispute referable to arbitrator must be stated in application under S.34 of Arbitration Act, 1940---Purpose of such exercise is to enable the Court to determine as to whether the dispute has arisen which needs to be referred to arbitration in accordance with the agreement between the parries.

Novelty Cinema, Lyallpur v. Firdaus Films and another PLD 1958 (W.P.) Lah. 208 ref.

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

----S.34---Stay of legal proceedings---Parties to civil suit not party to arbitration agreement---Effect---Where parties to the suit are not parties to the agreement, proceedings of the suit cannot be stayed under S.34, Arbitration Act, 1940.

Industrija Masinai Traktora v. Bank of Oman ,td. and 2 others 1992 MLD 2245 ref.

----Ss.21 & 24---Referring dispute to an arbitrator closely related to one of the parties---Validity---Improper to refer the parties to a co-defendant in the suit so closely related to one of the parties.

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

----Ss.34 & 39---Civil Procedure Code (V of 1908), O. VIII, R.5---Arbitration agreement--Suit for recovery of money---Defendant did not deny averments made by plaintiff in the plaint---Contention of plaintiff was that the agreement had come to an end---Application under S.34, Arbitration Act, 1940 filed by defendant was allowed by Trial Court--Validity---Where there was nothing on record in denial of the averment of the plaintiff, it would be presumed that agreement had come to an end as alleged in the plaint---Order of Trial Court was set aside.

Muhammad Mumtaz Malik for Petitioner.

Respondents: Ex part

Date of hearing: 25th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2506 #

2000 Y L R 2506

[Lahore]

Before Ch. Ijaz Ahmad, J

Choudhry NAVEED MANZOOR‑‑‑Appellant

versus

CHIEF ADMINISTRATOR, AUQAF DEPARTMENT, PUNJAB, LAHORE and 2 others‑‑‑Respondents

First Appeal from Order No. 10 of 2000, heard on 29th February, 2000.

Punjab Waqf Properties Ordinance (IV of 1979)‑

‑‑‑‑Ss.11 & 12‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Notification declaring a property as Waqf‑‑‑Petition against such notification was time‑barred‑‑‑Condonation of delay‑‑Disputed property was notified as Waqf property and petition against order of Chief Administrator, Auqaf was dismissed by Court being time‑barred‑‑‑Contention of the petitioner was that no notice was issued to him and the petition was filed within one month from the knowledge of such notification‑‑‑Validity‑‑‑Notification was published in the Gazette and the petitioner was cognizant of the same‑‑‑Provision of S.5 of Limitation Act, 1908, being not applicable, inordinate delay in filing of petition was not condonable on any justification.

PLD 1977 SC 639 distinguished.

Chief Administrator, Auqaf v. Muhammad Ramzan PLD 1991 SC 102; Elahi Bakhsh v. Chief Administrator, Auqaf 1982 SCMR 160; Chief Administrator of Auqaf v. Mst. Nooran and 7 others 1980 CLC 378; Syed Muhammad Ali Shah Bokhari's case 1972 SCMR 297 and Mst. Batool Begum v. The Chief Administrator, Auqaf 1993 CLC 683 ref.

Muhammad Nafees for Appellant.

Raja Muhammad Arif for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 2509 #

2000 Y L R 2509

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD AKRAM and another‑‑‑Petitioners

versus

SECRETARY AGRICULTURE, COOPERATIVE GOVERNMENT OF PUNJAB, CIVIL SECRETARIAT, LAHORE and 2. others‑‑Respondents

Review Application No. 5 of 2000 in Writ Petition No. 10806 of 1996, decided on 9th May, 2000.

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

‑‑‑‑Ss.114, 117 & O. XLVII, R. l ‑‑Constitution of Pakistan (1973), Art. 199‑‑Order passed . by High Court under its Constitutional jurisdiction‑‑‑Power of review by High Court‑‑Applicant, aggrieved by order passed by High Court in Constitutional petition, had filed application for review of said order‑‑‑Application was resisted on ground that after pronouncement of the judgment, High Court had become functus officio and power of review. was not available to High Court in exercise of Constitutional jurisdiction‑‑Contention was repelled because in view of S.117, C. P.C., provisions of Code were made applicable to High Court and High Court apart from its power to correct error apparent on face of record, in exercise of inherent jurisdiction, had power under the Code to review its order made in exercise of its Constitutional jurisdiction‑‑‑Review was not equated with appeal and error to attract review must be blatant and obvious and it must not be the one requiring any elaborate discussion‑‑‑Review could not be made a pretext for rehearing the case and that power to review Court's own judgment was only discretionary and not mandatory‑‑‑Reason behind conferment of discretionary power of review to a Court was to prevent injustice done by a Court.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Fatima v. Shah Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 SC 110 ref.

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

‑‑‑‑Appeal, revision and review‑‑Distinction‑‑‑Review was not an appeal because an appeal was a remedy provided by law for setting aside decree of Court below and it was in fact a complaint made to higher Court that decree of lower Court was unsound and wrong, whereas primary intention of review was the reconsideration of the subject by same Judge under certain conditions, while appeal was a re‑hearing by another Tribunal‑‑-Review also differed from a revision‑‑‑Revision was a matter between a higher Court and a lower Court ‑‑‑Revisional powers, in certain cases could be exercised without an appeal or an application by any of concerned parties‑‑‑Sole aim of providing right of appeal, revision or review was to protect rights of parties so that they could remain secured and unviolated‑‑‑Basic principle was. that . truth must prevail and no technicalities should come in its way.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Fatima v. Shah Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 SC 110 ref.

M.A. Zafar for Applicant.

Ms. Roshan Ara, A.A.‑G. for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 2522 #

2000 Y L R 2522

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Akhtar Shabbir, JJ

GHULAM FAREED---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 784/13 and 879 of 1999, decided on-21st July, 1999.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860),Ss.302/337-A(ii)/337-F(i)/148/149Bail grant of----No serious entity was found between the parties in background of occurrence which was result of dispute over flow of drain water in front of house of the complainant---Parties exchanged hot words shortly before occurrence in which accused allegedly armed with Sotas caused injuries to prosecution witnesses---Accused who were attributed simple injuries to the prosecution witness, despite having opportunity, did not cause any injury to the deceased---Question of vicarious liability and sharing common intention to commit Qatl-i-Amd, needed further inquiry---Bail was granted to accused in circumstances.

Muhammad Ramzan Khalid for Petitioner (in Criminal Miscellaneous No.879 of 1999).

Altaf Ibrahim Qureshi for Petitioner (in Criminal Miscellaneous No. 784 of 1999).

Date of hearing: 21st July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2527 #

2000 Y L R 2527

[Lahore]

Before Tanvir Ahmad Khan, J

ANDREW JEHHINGS, DETECTIVE CONSTABLE IN METROPOLITAN POLICE, U.K. at present residing at Avari Hotel, Lahore‑‑‑Petitioner

versus

DEUTACHE BANK, A.G.. LAHORE BRANCH, DAVIS ROAD, LAHORE‑‑‑Respondent

Civil Miscellaneous No. 236 of 2000, decided on 28th March, 2000, (a) Bankers' Books Evidence Act (XV111 of 1891)‑‑‑

‑‑‑‑Ss.2(S)(6) 8c 6‑‑‑Issuance of certified copies of transactions in account‑‑‑Applicant, a foreign Police Officer, through his application filed under S.6 of Bankers' Books Evidence Act, 1891, had prayed that Bank be directed to provide hire certified copies of all transactions in accounts maintained by a person who was facing trial in a Court abroad for misappropriation of huge amount‑‑‑Validity‑‑‑Court could only give such direction if any legal proceedings were pending before it, but no such restriction regarding pendency of legal proceedings was placed on Judge of High Court as powers of High Court Judge under Bankers' Books Evidence Act, 1891 had not been conditioned, but High Court was empowered to issue such like direction even if no proceedings were pending before it‑‑‑Unless powers of Courts were specifically excluded, they Would retain jurisdiction and power to make such direction for advancement of justice‑‑‑Express words or clear intendment of necessary implication were required to take away jurisdiction of superior Courts‑‑‑Superior Courts not only jealously guard their jurisdiction, but are always on the look to extend same to advance cause of justice‑‑‑Legal technicalities would not come into the way so as to hamper the course of justice‑‑‑What was not prohibited specifically, was permitted, provided same would not violate any express provision of law‑‑‑High Court, in circumstances, directed Bank to issue certified copies as prayed for by the applicant.

1998 MLD,‑ 225; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 and PLD 1996 Lah. 528 ref.

(b) Jurisdiction‑‑‑

‑‑‑‑ Jurisdiction of superior Courts‑,‑Exclusion of‑‑‑Requirements‑‑‑Unless powers of superior Courts are expressly excluded, they would retain jurisdiction and power to make necessary directions for the advancement of justice.

1998 MLD 225 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

‑‑‑‑What was not prohibited specifically, was permitted provided same would not violate any express provision of law.

(d) Administration of justice‑--

‑‑‑‑Legal technicalities should not come into the way so as to hamper the cause of justice

PLD 1996 Lah. 528 ref.

Dr. Abdul Basit for Petitioner

Khawaja Saeeduz Zafar, D.A.‑G. with S.K. Sajjad Tasleem, Asstt. Director, F.I.A. for Respondent.

Date of hearing: 28th March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2531 #

2000 Y L R 2531

[Lahore]

Before Jawwad S. Khawaja and Nasim Sikandar, JJ

WAQAR AHMAD‑‑‑Petitioner

versus

JUDGE, SPECIAL COURT SUPPRESSION OF ANTI‑TERRORIST COURT NO. VI, MULTAN and another‑‑‑Respondents

Writ Petition No. 5868 of 1999, decided on 24th May, 2000.

Penal Code (XLV of 1860).

‑‑‑‑S.302‑-‑Suppression of Terrorist 'Activities (Special Courts) Act (XV of 1975), Preamble & Ss. 3, 6, 7 & 8‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Transfer of case from Special Court to ordinary Sessions Court‑‑‑Accused was hauled up after his alleged extra judicial confession to the effect that he killed the deceased by using his .222 bore rifle ‑‑‑Rifle was found unworkable as per report of Forensic Science Laboratory and F.I.R. in the case was reported against unknown persons‑‑‑Prayer of accused for transfer of In case front Special Court to ordinary Sessions Court was rejected on the ground that mere ruse of kind of weapon mentioned in the Schedule to Suppression of Terrorist Activities (Special Courts) Act, 1975 was sufficient to attract the jurisdiction of Special Court‑‑ Validity‑‑‑Offence to be tried by Special Court roust have a nexus with Preamble of the Suppression of Terrorist Activities, (Special Courts) Act, 1975 which had provided that it must he an act of sabotage, subversion or terrorism‑‑‑Mere allegation in F.I.R.. of effective or ineffective use of weapon listed in the Schedule to the said Act it‑as not sufficient t to attract jurisdiction of Special Court‑‑‑Reported offence of murder against accused which otherwise was a blind murder against .unknown persons herd absolutely no nexus with Preamble of Suppression of Terrorist Activities (Special Courts) Act, 1975‑‑‑Offence against accused being not an act of, sabotage, subversion or terrorism, jurisdiction of Special Court was not at all attracted‑‑‑High Court transferred the trial pending against petitioner/accused before Special Court to art ordinary, Court of Session in circumstances.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Bilal Hussain v. The State PLD 1991 Lah. 3.46 and Azhar.. Hussain v. Government of Punjab and others 1992 PCr. LJ 2308 ref.

Syed Murtaza Ali, Zaidi and Abdul Muteen Chaudhry for Petitioner.

Akhtar Masood Ahmed for the Official Respondent.

Ch. Faqir Muhammad for Respondent No‑2.

YLR 2000 LAHORE HIGH COURT LAHORE 2536 #

2000 Y L R 2536

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YASEEN‑‑‑Petitioner

versus

THE STATE‑-‑Respondent

Criminal Miscellaneous No. 1504/13 of 1999, decided on 25th August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑Bail, grant of‑‑‑Unexplained delay of three days was noticed in lodging of F.I.R., and prosecution story as narrated in the F.I. R., was also not convincing‑‑‑Accused was confined in judicial lock‑up for the last more than ten months‑‑‑One of prosecution witnesses named in F.I.R. had not supported the prosecution story‑‑‑Investigation was completed and person of accused was not required by police for any purpose‑‑Accused was admitted to bail in circumstances.

Muhammad Iqbal and another v. The State 1984 PCr.LJ 2445; Muhammad Hussain v. Muhammad Yar and another 1984 SCMR 1067 and Muhammad Yunus v. The State 1989 PCr. LJ 799 ref.

Altaf Ibrahim Qureshi for Petitioner.

Javed lqbal for the State

YLR 2000 LAHORE HIGH COURT LAHORE 2543 #

2000 Y L R 2543

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

SHAHID HUSSAIN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1222 of 1998, decided on 1st May, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.365‑A & 384‑‑‑Appreciation of evidence‑‑‑Complainant's daughter who was more than ten years of age at the time of her alleged abduction and was the best witness in the case to prove the charge of abduction was neither joined by the police in investigation nor produced as a prosecution witness at the trial‑ ‑‑Different set of accused was named by the complainant in the F.I.R., who were found innocent and the accused persons who were nominated by hint in his supplementary statement made three days after the registration of the F.I.R.‑‑‑Complainant had not informed the police about the bargain struck with the accused and the place for payment of ransom‑‑‑Supplementary statement recorded by the police was alien to the Code of Criminal Procedure‑‑‑Recoveries of cash amounts and fire‑arms seemed to have been planted on the accused‑‑‑Accused were acquitted on benefit of doubt in circumstances.

S.M. Masbod for Appellants.

Attaullah Ch. for the Complainant.

Ijaz .Ahmad Bajwa for the State.

Date of hearing: 1st May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2549 #

2000 Y L R 2549

[Lahore]

Before M. Naeemullah Khan Sherwani, J

KAZIM HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1700/B of 1999, decided on 10th November, 1999. ‑

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑Bail, grant of‑‑‑Accused was behind the bars for the last about ten months and challan, though had been submitted in the Court, but end of inquiry or trial was not in sight‑‑Principal accused who was given clean slate by Investigating Officer during course of investigation, had been released on bail‑‑Prosecution as well as complainant had exonerated co‑accused giving statement in Court testifying him as innocent‑‑‑Very basis of prosecution story having been proved to be false, accusation could not hold water against accused‑‑‑Facts and circumstances having made the prosecution case extremely doubtful, same needed further inquiry‑‑Contents of Medico‑legal Report also did not support prosecution version in its entirety‑‑Accused was allowed to be released on hail.

Altaf Ibrahim Qureshi for the Petitioner. Sh. Mubarik for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2550 #

2000 Y L R 2550

Before Raja Muhammad Sabir, J

MUHAMMAD SHOAIB‑‑‑Petitioner

versus

ANWAR HUSSAIN (MINOR) son of Muhammad Shoaib through Mst. Rehana Kausar his real mother as Guardian ad‑litem and 2 others‑‑‑Respondents

Writ Petition No. 5828 of 2000, heard on 20th June, 2000.

West Pakistan Fancily Courts Act (XXXV of 1964)‑‑

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Maintenance of minor son ‑‑‑ Relinquishment of right of maintenance of minor by his mother‑‑‑Mother of the minor was divorced by the father of the minor in lieu of her statement whereby she had forgiven the maintenance allowance of the minor and of herself‑‑‑Minor filed suit for maintenance against his father‑‑‑Family Court fixed the maintenance allowance for a sum of Rs.1,000 per month‑‑‑Appellate Court upheld the allowance fixed by the Family Court‑‑ Contention by father of the minor was that in view of the statement made by the mother, the minor was not entitled to maintenance allowance‑‑‑Validity‑‑‑Mother of the minor was not competent to waive vested right of maintenance of the minor‑‑‑Statement made by the mother of the minor in previous proceedings was of no avail to him, and the father of the minor was bound to maintain his son irrespective of the statement or relinquishment of right of maintenance of the minor by his mother‑‑‑Minor was entitled to recover the maintenance awarded by the Courts.

Muhammad Azeem v. Mst. Bashiran 1995 MLD 1937; Muhammad Riaz v. Mst. Asia Parveen 1997 MLD 142 and Akbar Ali v. Naveed Akbar 1997 CLC 1711 ref.

Ch. Nisar Ahmad Kausar for Petitioner.

Qazi Misbah‑ul‑Hassan for Respondents.

Date of hearing: 20th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2553 #

2000 Y L R 2553

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

SARFRAZ AHMAD and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 655 in Murder Reference No. 204 of 1996, heard on 2nd May, 2000.

Penal Code (XLV of 1860)---

----S.302(b)34---Appreciation of evidence--F.I.R. was lodged after consultation and deliberation---No person from the vicinity of the occurrence had been cited or examined as a prosecution witness---Eye-witnesses were not found to be present at the scene of incident---Weapons of offence recovered at the instance of accused were not bloodstained---Prosecution had failed to prove the motive---Recoveries were doubtful---Benefit of doubt was extended to the accused and they were acquitted in circumstances.

Khan Muhammad Bajwa for Appellants.

S.D. Qureshi for the State.

Shaukat Ali Javid for the Complainant.

Date of hearing: 2nd May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2560 #

2000 Y L R 2560

[Lahore]

Before Muhammad Zafar Yasin, J

GHULAM MUJTABA --- Petitioner

versus

THE STATE Respondent

Criminal Miscellaneous No. 2496/B of 1999, decided on 4th January, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--Bail, grant of---Report of Chemical Examiner was negative and medico-legal report was not conclusive---Accused had already been acquitted in earlier case by Trial Court in exercise of its power under S.265-K, Cr. P.C. ---Question whether accused had Committed offence under S.377, P. P. C., was yet to be determined at trial ---Benefit of doubt even at bail stage would go to accused---Accused being of P. T. C. Department, rare chances were of his abscondence---Bail was granted to accused in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Riaz Ahmad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2562 #

2000 Y R 2562

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD AKRAM and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 1053 in Murder Reference No. 498-T of 1999, heard on 11th May, 2000.

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

----Ss. 10(4) & 11---Appreciation of evidence---Matter was not reported to police for three days although Police Station was at a distance of only two furlongs from the place of occurrence---Reason given by the complainant for such delay did not appeal to reason---Victim girl after her recovery by the Investigating Officer was not got medically examined by him for eight days and the explanation furnished by him in this regard was not believable---Male accused could not possibly commit Zina-bil-Jabr with the victim in his house in the presence of his mother and four young sisters which was situated in a thickly populated area---Victim girl although allegedly resisted to the commission of Zina-bil-Jabr, yet according to her medical report no mark of violence was found on her body, rather she, though unmarried, was found habitual to sexual intercourse---No male member of the complainant party had come forward to join the investigation---Victim girl also did not raise any hue and cry during her detention by the accused in order to attract the people for telling the story of her abduction---Occurrence as alleged by the prosecution, thus, was not found to have taken place and the Investigating Officer in connivance with the complainant and the victim had fabricated the case against the accused by making dishonest investigation--Accused were acquitted in circumstances --D.I.-G. concerned was, however, directed to take severe and exemplary action against the said Investigating Officer.

Kh. Fahim Ijaz for Appellants.

A.H. Masood for the State.

Date of hearing 11th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2567 #

2000 Y L R 2567

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Mst. ANSAR BIBI---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION SADDAR, DEPALPUR, DISTRICT OKARA and another---Respondents

Criminal Miscellaneous No.822/H of 2000, decided on 15th June, 2000.

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

----S.491---Constitution of Pakistan (1973), Art. 199---Unlawful custody---Jurisdiction of High Court under Art. 199 of the Constitution and S. 491, Cr. P. C. stated.

Article 199 of the Constitution of Pakistan (1973) is similar to, but wider than the jurisdiction conferred by section 491, Cr.P.C. Under Article 199 of the Constitution the High Court, may, on the application of a person, not necessarily an aggrieved party, if there be no other adequate remedy, direct a person in custody in the Province to be produced to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. The provision is similar to section 491(1) of Code of Criminal Procedure, but being a Constitutional provision is of higher authority. The provision confers on the High Court a jurisdiction which corresponds broadly to that possessed by the High Court in England to issue the prerogative writ of habeas corpus to safeguard the liberty of the subject. The first thing to be noticed in the provision is that the person who applies and the person who is detained need not be identical. And ` the restriction that the application should be by an aggrieved party is not applicable to an applicant for this writ. Article, 199 applies to all forms of custody, public or private.

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

----S.491---Constitution of Pakistan (1973), Art. l99---High Court (Lahore) Rules and Orders Vol. V, Chap. 4-F, Rr.1 to 18---Scope and application of 5.491, Cr.P.C.--Wrongful deprivation of personal liberty--Jurisdiction of High Court in cases under Special Acts elucidated.

The High Court's jurisdiction in cases under Special Acts will be limited to enquiring:

(1) Whether the document authorising detention is on the face of it valid?

(2) Whether the authority acting under the Special Act was a competent authority constituted in accordance with Act?

(3) Whether the authority acted within the limits and under the conditions prescribed by the Act? and

(4) Whether any fundamental right has been contravened?

Enquiry into all these questions will be permissible, because each of them affects the legality of the arrest. Thus the High Court may set at liberty a person detained under the Special Statute if his detention was ordered in violation of a provision of the Statute. If the order of detention is not within the object specified in the Act, but mala fide, with an ulterior motive or an entirely different object, or the order does not fall within the four corners of the Act, the detention will be unauthorised. The burden, however, of showing that statutory conditions were not satisfied will be on the petitioner. Section 491, Cr.P.C. cannot be construed as granting the power of issuing writs although the power which it grants is certainly, in many respects similar to the power that may be exercised by the issue of such a writ. Section 491 confers statutory powers and not generally the power of issuing writ of habeas corpus and any power of passing interim orders would have to be granted if gathered at all, from the language of section 491 and not from any pre-conceived notion of powers which are to be found as being implied in or ancillary to the power of issuing a writ of habeas corpus, because where powers are conferred by statute it is impossible to say that any power, expressly conferred, is inherent in the given power unless it is in fact a part of that power itself or absolutely necessary to the exercise of the main power. The powers to issue directions in the nature of the habeas corpus are a specie in themselves and are quite distinct from the rest of the pattern of the Criminal Procedure Code. These are the powers vested in the High Court to afford relief to people who are suffering illegal restrains by the orders of the executive or that of airy Judicial Tribunal. It affords an effective means of immediate release from unlawful detention whether in prison or in private custody. Section 491, Cr.P.C. and Article 199 of the Constitution provide a remedy in all cases of wrongful deprivation of personal liberty. The Courts secure the liberty of the person by ordering his immediate release from unlawful detention. It cannot grant any other relief to the detenue in respect of allegations of wrongful detention or any allegation of torture or some other inhumane acts committed on his person.

----Ss.491 & 352---Official Secrets Act (XIX of 1923), S.14---Power of High Court to issue directions of the nature of a habeas corpus---Scope---Provisions of 5.352, Cr. P. C. and S.14, Official Secrets Act, has no application to the habeas corpus proceedings.

By their very nature and purpose the proceedings under section 491, are summary in character. Controversies are not tried nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention, e.g. whether an alleged detenue be set at liberty and as a consequence thereof be permitted to go with the person of his or her choice and or one claiming right to the former's custody or company. The Court would not go into the question of status of relationship of parties. The invocation of jurisdiction under this section to challenge detention in prison involving intricate legal issues merits dismissal. In such a case petitioner should have filed a Constitutional petition. Where age of detenue is a disputed question of fact which, cannot be conclusively determined in summary proceedings particularly when forgery is alleged, no order can be made under this section. In a habeas corpus petition bona fide of a petition has to be fully examined so that no one is permitted to abuse process of law. It would not be irrelevant to make it clear that the proceedings under section 491, Cr.P.C. must be in open Court as there are only two provisions that empower Courts to hold proceedings in camera, namely; section 352, Cr.P.C. and section 14 of the Official Secrets Act. Both the sections have no application to habeas corpus proceedings because while section 14 deals with an offence punishable under Official Secrets Act itself section 352, Cr.P.C. deals with the trial of an offence. As in case of section 491 there is no trial for an offence, the hearing cannot be in camera and must be held in open Court.

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

----S.491---Intent and import of S.491, Cr.P.C.---Jurisdiction of High Court in matters of custody of minor children--Principles.

Since the intention of the Legislature was not to oust the jurisdiction of the High Court in matters of the custody of the children, Judges of the Family Courts were not vested with powers to entertain, hear and adjudicate upon the matters relating to the custody of the children which matters were within the jurisdiction of the High Court. Proceedings by way of habeas corpus can be adopted for obtaining custody of minors by their parents, legal guardians, or others who are entitled to have such custody. The lawful detention of a child from the person who is legally entitled to his custody is, for the purpose of the issue -of the writ, regarded as equivalent to an unlawful imprisonment of the child. When the mother is deprived of the custody of her minor child below the age of seven years and she has not contracted a second marriage,. a writ of habeas corpus 'under section 491, Cr.P.C. would be the most appropriate remedy and the High Court may not stay its hand on the ground that dispute for the custody of the minor can be adjudicated by the Guardian Judge. High Court as Court of Record and patria, potestas over minors had power of directing delivery of minor child into custody of his mother if the child was snatched from her lawful custody.

In dealing with the question of custody of a minor under section 491, there must be prima facie proof that custody is illegal and improper and the Court while disposing of such application would exercise jurisdiction in the interest and welfare of minor. The Court would not put a premium on immorality and would not give minor in custody of the father of her murdered paramour in preference to her mother. Where children were not given in custody of the mother against whom there were allegations of immorality, they were sent to Darul Aman at the expense of the mother.

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

---S.491---Habeas corpus petition---Custody of the minor---Minors aged six years and 7-1 /2 years had been snatched by the respondent from the custody of their real mother (petitioner)---Allegations made by petitioner supported by an affidavit were not controverted by the respondent by a counter-affidavit---Welfare of the minors demanded that they should not be deprived of the natural love and affection of their real mother---Minors were consequently given in the custody of the mother.

Malik Saeed Hassan for Petitioner.

Muhammad Amin Lone, Asstt. A.-G. for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2580 #

2000 Y L R 2580

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SHARIF BIBI ‑‑‑ petitioner

versus

MUNIR HUSSAIN SHAH and 7 others‑‑‑Respondents. .

Writ Petition No.2375 of 1995, heard on 29th May, 2000.

Muhammadan Law‑‑‑

--‑Inheritance‑‑‑Shia law ‑‑‑Issueless widow of a deceased who belonged to Fiqah Jafaria was excluded from the estate of the deceased‑‑‑Validity‑‑‑Mutation of inheritance suffering front no legal or jurisdictional defects, Court declined interference.

Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar. Member (Judicial), Board of Revenue, Punjab, Lahore and 7 others PLD 1972 SC 346 rel.

Faiz Rab v. Khatoon Bibi and others ILR 25 All. 297 and Mst. Asloo v. Mst. Umduloonnissa 120 WR 297 ref.

Muhammad Khalid Alvi for Petitioner.

Khan Dil Muhammad Khan Alizai for Respondents Nos. l to 6.

Date of hearing: 29th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2581 #

2000 Y L R 2581

[Lahore]

Before Sh. Abdur Razzaq, J

JAVED ALI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.541/B of 2000, decided on 6th July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1), third proviso‑‑‑Penal Code (XLV of 1860), S.302/324/336/337‑F(iii)l 148/149‑‑‑Bail on the ground of statutory delay‑‑‑Accused and his co‑accused allegedly armed with deadly weapons had caused the murder of the two deceased and injured six persons‑‑‑Accused, no doubt, was in jail for the last more than two years, but this fact alone was not to be taken into consideration while extending benefit under third proviso to S.497(I), Cr. P. C. ‑‑‑Trial in the case had not started on account of absence of one or the other co‑accused of the accused‑‑‑Delay in the commencement of the trial, thus, was due to an act of co‑accused of the accused‑‑‑Bail was declined to accused in circumstances.

Zahid Hussain Shah v. The State PLD 1995 SC 49; Sher Ali alias Sheri v. The State 1998 SCMR 190; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Panjal v. The State 1990 PCr.LJ 2051 and Wazir Khan v. The State 1983 SCMR 427 ref.

1998 SCMR 897 ref.

Ansar Nawaz Mirza for Petitioner.

Ch. Muhammad Iqbal for the Complainant.

Syed Saghir Hussain Shah for the State:

YLR 2000 LAHORE HIGH COURT LAHORE 2583 #

2000 Y L R 2583

[Lahore]

Before Tanvir Ahmad Khan, J

Dr. SOHAIL MUKHTAR AHMAD, MANAGING DIRECTOR, AHMAD IMPEX (PVT.) LTD:‑‑‑Petitioner

versus

GOVERNMENT OF THE PUNJAB through Secretary Health, Civil Secretariat, Lahore and another‑‑‑Respondents

Writ Petition No.10821 of 2000, heard on 5th July, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. l99‑‑‑Constitutional petition‑‑‑ Contractual liability ‑‑‑Approbate and reprobate, principle of‑‑Applicability‑‑Supply, made . by the petitioner to the respondent functionaries .was accepted in black and white‑,‑‑Payment of the petitioner was withheld by functionaries on the plea that there was some short fall in the, supply‑‑Validity‑‑‑Respondent functionaries could not approbate and reprobate in the case‑‑‑High Court directed the respondent functionaries to make payment to the petitioner in accordance with law for the material supplied to them and observed that if there was any deficiency, in the supply of the material the same should be recovered from all those persons/officials who had given certificates certifying the supply.

AIR 1956 SC 593 ref.

Muhammad Afzal Sandhu for Petitioner.

Fawzi Zafar, A.A.‑G. for Respondents.

Date of hearing: 5th July, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2586 #

2000 Y L R 2586

[Lahore]

Before Muhammad Javed Buttar and Iftikhar Ahmed Cheema, JJ

SHAH MUHAMMAD and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1059/B of 1999/BWP, decided on 1st June, 2000.

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

----S.497(1), third proviso---Bail on ground of statutory delay---Principles---Law does not intend to calculate the delay caused by the defence---All that is necessary is to see whether finalisation of the trial has, in any manner, been delayed by an act or omission on the part of the accused.

Sher Ali alias Sheri v. The State 1998 SCMR 190 and Akhtar Abbas v. The State PLD 1982 SC 424 ref.

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

----S.497(1), third proviso---Penal Code (XLV of 1860), S.302/324/34---Bail on ground of statutory delay---Hearing of the trial had been postponed not less than eight times on the asking of the accused side and for eight times the prosecution witnesses could not be examined---Had the accused side not been asking for adjournments from time to time, trial would have concluded long ago---Delay being partly attributable to accused, their right to be released on bail under third proviso to S.497(l), Cr.P.C. stood forfeited---Trial in the case had commenced and the statement of the complainant having been recorded, releasing the accused on bail at such stage merely on the ground that the complainant side had been summoned as accused by the Trial Court in the counter version of the private complaint of coaccused, was likely to prejudice the case of the complainant---Bail was declined to accused in circumstances.

Shoaib Mahmood Butt v. Iftikhar-ulHaq and 3 others 1996 SCMR 1845; Zahid Hussain Shah v. The State PLD 1995 SC 49; Sher Ali alias Sheri v. The State 1998 SCMR 190 and Akhtar Abbas v. The State PLD 1982 SC 424 ref.

Mian Dilawar Mahmood for Petitioner.

Aftab Ahmad Gujjar for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2592 #

2000 Y L R 2592

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAFIQ and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.24 of 1995, heard on 21st April, 2000.

Penal Code (XLV of 1860)---

----S.302(b) 34---Appreciation of evidence--Occurrence was an unwitnessed one--Complainant did not inform the police about his missing son (deceased) for whole of the night and he did so only on knowing that the deed body of his son was lying in the field--Witnesses had mostly deposed that they had only seen all the accused sitting together and their testimony did not advance the case of prosecution---Another witness had deposed that he had heard one accused asking his co-accused to join him in killing the deceased who was having illicit relations with his sister, but he neither informed the deceased nor his father in this regard and his testimony could not be relied upon---Conduct of the witnesses of extra judicial confession was most unnatural as they had not got the accused snaking such confession arrested by the police---Said witnesses, even otherwise, here neither influential persons nor they were in a position to get pardon for the accused from the relations of the deceased--Recoveries effected in the case seemed to have been planted on the accused---Accused were acquitted in circumstances.

Khurram Latif Khan for Appellants.

A. H. Masood for the State

Mirza Muhammad Rashid Ahmad Raza for the Complainant.

Date of hearing: 21st April, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 2595 #

2000 Y L R 2595

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD ANWAR- Petitioner

versus

THE STATE---Respondent

Criminal Revision No. 193 of 2000, decide on 20th April, 2000.

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

----S. 182---Prosecution under S.182. P. P. C. ---Duty of the public functionary-- Where a public functionary desires to prosecute a person for offence under S.18- P. P. C. such functionary is required to apply his conscious mind to the facts of the case, to come to the conclusion that the accused has actually committed the offence and that the prosecution of the accused is desired by him.

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

----S. 182---Prosecution under S. 182, P. P. C. ---Failure to issue notice ---Effect--Where the accused was not issued show-cause notice prior to initiation of proceedings against hint under 5.182, P. P. C. such proceedings were nullity in the eves of law.

Muhammad Murad v. The State 1983 PCr. LJ 1097; 1974 PCr. LJ Note 114 at p.73; PLD 1960 Lah. 1039 and PLD 1970 Lah. 726 ref.

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

---S.182---Giving false information to Authorities---Proceedings under S.182, P.P.C. against the person giving such information---Failure to issue show-cause notice to the said person---Proceedings initiated on the calendar of information not prepared by the Investigating Officer--Accused was convicted by Trial Court and conviction was upheld by the Appellate Court---Validity---Authorities must have concluded that the allegations levelled by the accused were incorrect and false---Failure to prove an allegation, which might be true, was a different thing and should not give rise to prosecution for such offence which required mens rea as well---Conviction and sentence awarded by both the Courts below were set aside.

M. Saleem Sehgal for Petitioner.

Masood Sadiq Mirza for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2598 #

2000 Y L R 2598

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD AMEER and others‑‑‑Appellants

versus

THE STATE Respondent

Criminal Appeal No.340 and Murder Reference No. 184‑T of 1999, heard on 22nd March, 2000.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss.302/149, 324/149, 353/149 & 148‑‑Appreciation of evidence‑‑‑Ocular account of occurrence was in glaring conflict with medical evidence‑‑‑Crime empties of semiautomatic weapon recovered from the spot were not sent to Fire‑Arm Expert which appeared to have been fired from the Rifles of the police party and flit, possibility of the shot fired by the police having hit the deceased could not he ruled out as the, injuries were caused on the back of the deceased whereas eye‑witnesses were unanimous in their testimony that the deceased was facing the assailants at the time of firing‑‑‑Despite the occurrence having taken place in dark hours of the night, no identification parade was held in the case which was necessary, as the parties were not known to each other Accused were acquitted in circumstances.

Asghar Khan Rokhari for Appellants.

Malik Muhammad Aslam for the State.

Date of hearing: 22nd March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2601 #

2000 Y L R 2601

[Lahore]

Before Khawaja Muhammad Sharif, J

KHALID alias KHALA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.777 of 1993, heard on 22nd December, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Night time occurrence‑‑‑Registration of F.I.R. after due deliberation and consultation‑‑‑Trial Court had only believed the recoveries and the motive was also found to be weak‑‑Names of the accused were not mentioned in the recovery memo. ‑‑‑Conflict was found between the ocular account and medical evidence‑‑‑Occurrence had not taken place in a manner as stated by the prosecution witnesses before the Trial Court‑‑‑Ocular account not coming from an unimpeachable source‑‑‑Extending benefit of doubt to accused his conviction and sentence awarded by Trial Court were set aside.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S.435‑‑‑Non‑filing of appeal by one of the co‑accused‑‑‑Extending benefit of decision of High Court to such accused‑‑‑Where after appraisal of evidence one accused was acquitted arid the other who did not file arty appeal, was also found innocent, such accused was also acquitted accordingly.

PLD 1991 SC 447 fol.

M. A. Zafar for Appellant.

M. Jahangir for the State

Date of hearing: 22nd December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2604 #

2000 Y L R 2604

[Lahore]

Before Maulvi Anwarul Haq, J

LIAQAT ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.545/B of 2000 decided on 28th April, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34/392/397/460---Bail, grant of--Sessions Court while refusing bail to accused was impressed by his abscondence---No order was available on record declaring the accused to be a proclaimed offender--Accused admittedly had been arrested from his usual place of residence without any resistance---Various police officers had expressed doubts about the guilt of the accused---No body was aware of the loan advanced by the deceased to the accused and his brother before the extra judicial confession allegedly made by the accused--Case against accused required further inquiry in circumstances and he was admitted to bail accordingly.

Mir Hazar Malik v. The State 1999 SCMR 1377 ref.

Sardar Mehboob Ahmad for Petitioner.

Syed Altaf Hussain for the State

YLR 2000 LAHORE HIGH COURT LAHORE 2606 #

2000 Y L R 2606

[Lahore]

Before Amir Alain Khan, J

Hafiz MUHAMMAD QASIM‑‑ Petitioner

versus

Mst. SOORAT BIBI and others‑‑‑Respondents

Writ Petition No.2835 of 1998/BWP, heard on 11th May, 2000

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

‑‑‑‑O. VII, R. 11‑‑‑Plaint, rejection of‑‑Scope‑‑‑Plaint cannot be partially rejected. (p. 2607) A

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

‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Assailing of order passed in revisional jurisdiction‑‑‑Scope‑‑‑Such order cannot be assailed under Constitutional jurisdiction of High Court.

‑‑‑‑S.115 & O.VII, R.11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Application under O. VII, R.11, C. P. C. for rejection of plaint‑‑‑Trial Court rejected the application and revision filed against the order of Trial Court was dismissed by Lower Appellate Court‑‑Validity‑‑‑Revisional jurisdiction arcs akin to the Constitutional jurisdiction of High Court and looking into the revisional order would tantamount to entertaining a second revision against the original order which was specifically prohibited under law‑‑‑High Court could exercise its Constitutional jurisdiction, only where the orders passed by the revisional Court were found to be without jurisdiction and nullity in the eves of law or some patent illegality was pointed out on record.

Ghulam Hussain and another v. Malik Shahbaz and another 1985 SCMR 1925 and Manzoor Hussain Shah and 15 others v. Allah Bachaya Khan and 5 others 1986 CLC 1813 ref.

Ch. Muhammad Tufail for Petitioner.

Malik Muhammad Aslam for Respondent No

Nemo for the Remaining Respondents.

Date of hearing: 11th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2608 #

Y L R 2608

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD JAMEEL---Appellant versus THE STATE---Respondent

Criminal Appeal No.268 of 1998, heard on 29th June, 2000.

Penal Code (XLV of 1860)--‑

----S.302(c)-Appreciation of evidence---Occurrence had not taken place in the manner as depicted in the F.I R., but it had taken place in the manner as disclosed by the accused in his statement recorded under S. 342, Cr. P. C. ---Deceased, no doubt, was not found in an objectionable position with the mother of the accused at the relevant time, but the mere fact that the deceased was found fiddling with the door of the room of mother of accused with whom the deceased was suspected to be carrying on, was sufficient grave and sudden provocation authorising the 17 years' old accused to commit the murder of the deceased---Conviction of accused was, therefore, upheld---Sentence in offences committed under the impulse of Ghairat/sudden and grave provocation had been ranging from two years' R.I. to five years' R.1.---Sentence of 15 years' R.I. awarded to accused by Trial Court was reduced to five years' R.I. in circumstances with benefit of 5.382-B, Cr. P. C.

Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274; Saeed Ahmed v. The State 1996 PCr.LJ 1016; Fateh Muhammad alias Fattu v. The State PLD 1967 Lah. 579; Muhammad Ishaque alias

Barq v. The State 1998 PCr.LJ 1110 and Muhammad Ayub v. The State 1997 PCr.LJ 2056 rel.

Malik Rubnawaz Noon for Appellant.

Mubeen Ahmad for the State.

Date of hearing: 29th June, 2000.

JUDGMENT

This appeal is directed against the judgment, dated 29-10-1998 passed by learned Additional District Judge, Rawalpindi whereby he convicted the appellant Muhammad Jamil under section 302(c), P.P.C. and sentenced him to undergo R.I. for 15 years and to pay compensation of Rs.50,000 under section 544-A, Cr.P.C. or in default thereof to undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. has also been extended to the appellant.

Succinctly stated the prosecution case is that Habib-ur-Rehman son of the complainant Muhammad Mushtaq was employed in a factory situated in Hattar. On 9-10-1996 he had to move for Hattar to join his duty. The parents of Mst. Rehana: Bibi wife of Muhammad Munir, a daughter of his cousin, reside at Haripur. Habib-ur-Rehman along with his younger brother Muhammad Rizwan went to the house of Mst. Rehana Bibi to receive any message from her for her parents. Both the brothers entered the courtyard of Mst. Rehana Bibi at 4-30 a.m. Adjacent to the house of Mst. Rehana Bibi, the house of Muhammad Bashir, an elder brother of Muhammad Zamir is situated. Both the said houses, however, have a common courtyard. Muhammad Jamil son of Muhammad Bashir came out with his .12 bore gun and raised Lalkara upon them. Upon this Habib-ur-Rehman started running. Muhammad Jamil fired at him which hit Habib-ur-Rehman on his back, as a result of which he fell down. The occurrence was witnessed by Muhammad Rizwan as well as Muhammad Tariq son of Abdul Hakim who was also present adjacent to the place of occurrence. On receipt of such information the complainant reached the spot and found that his son Habib-ur-Rehman was tossing at the place of occurrence. He put the injured on a cot and made for his house who on the way succumbed to the injuries. He left the dead body in the courtyard of his house. He stated that motive behind this occurrence was that Muhammad Jamil suspected Habib-ur-Rehman for carrying on with his mother Mst. Taazim Bibi and had committed the murder on account of suspicion. Leaving the dead body in the courtyard of his house, he made for police station and lodged F.I.R. Exh.P.G which was recorded by Ishtiaq Ahmed, S.-I. (since deceased). After usual investigation the case was sent up to the Court for trial.
A charge under section 302, P.P.C. was framed against the accused/appellant to which he pleaded not guilty and claimed trial.
To prove its case prosccution examined Dr. Asif Mehmood P.W.1 who on 9-10-1996 conducted the post-mortem examination of Habib-ur-Rehman deceased and found the following injuries on his person:--‑

(1) A wound of entrance 5 c.m. x 3.5 c.m. of main wound, with surrounding irregular and inverted margins without burning of the surrounding skin. No blackening but tattooing was present. This main wound was surrounded by multiple circular pellet size wound in satellite pattern covering the total area of 9 c.m. x 6 c.m., the bullets were directed interiorly lacerating the underline muscle. It was situated on back of the chest on lateral side and lower part .5 c.m. from mid line and between 5th and 7th ribs, 24 c.m. below upper border of the chest 9 c.m. medially to the left posterior axillary line. There was fracture of underline of 6th and 7th ribs.

Notes.---Corresponding holes were present in the back portion of Kameez and Bunian and were blood-stained x-ray film of chest showing multiple pellet in left chest cavity was attached.

In his opinion death has been caused by hemorrhage shock due to massive internal bleeding caused by Injury No.1 which was fire-arm injury and was ante-mortem in nature. The injury was sufficient to cause death in the ordinary course of nature. Time between injury and death was about two hours whereas between death and post-mortem examination was about 10 hours. After post-mortem examination he handed over the last worn clothes of the deceased and a sealed phial containing pellets as well as plastic wads and other documents to Muhammad Arif, H.C. He issued post-mortem examination report Exh.P.A and diagrams Exh.P.A/1 and Exh.P.A/2 which bear his signature. He also signed inquest report Exh.P.B and application for post-mortem examination Exh.P.C. Qamar-ud-Din P.W.2 is the draftsman who visited the place of occurrence on 28-10-1996 and prepared site plans Exh. PD and Exh. P.D/1 on 12-11-1996 and handed over the same to Ishtiaq Ahmed, S.I. on the said date. Zulfiqar Ali P.W.3 was given a sealed parcel containing blood-stained earth by Mukhtar Ahmed Moharrir on 13-10-1996 along with another sealed parcel containing empty of .12 bore gun for onward transmission to the

Office of Chemical Examiner and Forensic Science Laboratory, Lahore. He delivered the said parcels in the said offices on 14-10-1996. Muhammad Arif, H.C. P.W.4 escorted the dead body of Habib-ur-Rehman on 9-10-1996 to T.H.Q. Hospital, Gujjar Khan for post-mortem examination. Thereafter he was handed over the last worn clothes of the deceased consisting of Shalwar P.1, shirt P.2 and Bunian P.3 and a sealed envelope. He produced all the said articles before the I.O. who secured it vide memo. Exh.PE which bear his signature. Muhammad Nazir Constable P.W.5 was given a sealed parcel containing .12 bore gun on 20-11-1996 for onward transmission to the Office Of Forensic Science Laboratory which he delivered there on the following day. Mukhtar Ahmed Moharrir/A.S.-I. P.W. 6 deposed that on 9-10-1996 he was given two sealed parcels consisting of blood-stained earth and an empty of .12 bore gun for keeping the same in Malkhana at the hands of Ishtiaq Ahmad, S.-I. On 13-10-1996 he delivered the said parcels to Zulfiqar Ali, Constable (P.W.3) for further delivery in the Office of Chemical Examiner and Forensic Science Laboratory, Lahore. On 11-10-1996 Ishtiaq Ahmed, S.-I. handed over to him a parcel containing .12 bore gun for keeping the same in Malkhana. On 20-11-1996 he delivered the said parcel to Muhammad Nazir Constable (P.W.5) for onward transmission to the Office of Forensic Science Laboratory.

He further deposed that from September, 1996 to 29-1-1997 he has been posted as Moharrir, P.S. Mandra. During the said period Ishtiaq S.-I. had been posted over there as such was conversant with his hand-writing and signature. He further deposed that said Ishtiaq Ahmed, S.-I. has died. He produced F.I.R. Exh.P.G, memo. of recovery of blood-stained earth and an empty of .12 bore gun Exh.P.F, memo. of recovery of gun P.5 along with 3 live cartridges P.6 to P.8 Exh.P.H, inquest report Exh.P.B, application for post-mortem examination Exh.P.C, memo. of recovery of last worn clothes of deceased Exh.P.E red notes on site plans Exh.P.D and Exh.P.D/1, rough site plan Exh.P.J alleged to have been prepared by Ishtiaq Ahmed, S.-I. and identified his signature on the said documents.

Abdul Khaliq, P.W.7 identified the dead body of Habib-ur-Rehman at the time of post-mortem examination. Muhammad Shafgat, . P. W.8 is witness of memo. of recovery of blood-stained earth and empty of .12 bore gun which were secured vide memo. Exh.PF. Muhammad Mushtaq complainant P.W.9 is the scriber of F.I.R. Exh.PG and has corroborated his version contained therein. He deposed that on 16-10-1996 the accused led to the recovery of .12 bore gun P.5 and 3 live cartridges P.6 to P.8 which were lying concealed in Nawar of his bed and which were secured vide memo. Exh.P.H. Muhammad Rizwan P.W.10 is one of the eye-witnesses who has corroborated the prosecution version. The learned D.D.A. gave up the other eye-witness Muhammad Tariq being unnecessary and produced reports of Chemical Examiner Exh. P. K, of Serologist, Exh.P.L and of Forensic Science Laboratory Exh.P.M and closed the case for prosecution.

When examined under section 342, Ck P.C. the accused/appellant denied the prosecution version and in reply to question No.15 as to why the case had been registered against him and why the P. Ws. had deposed against him replied as follows:

On 9-10-1996 at 2/2-30 a.m. 1 was sleeping in a room of my house whereas my mother and my paternal aunt were sleeping in another room which was towards the room of house of Zameer husband of Mst. Rehana. The courtyard of the Havaili of Zamir and my father is common. I got up on hearing the report of some sound outside. I picked up a licensed gun of my father and came out of my house. There was darkness outside and there was no light. I saw a person fiddling with the door of the room of my mother and aunt and trying to open the same. I called him, but he did not reply, on which I fired a shot which hit him and he'fell on the earth. I came near him and saw that he was Habib-ur-Rehman. He was bare footed. I went myself to the house of the father of Habib-ur-Rehman to inform him of the incident. None of the witnesses as have claimed in this case were present on the scene of occurrence. The blood-stained earth and dead body of the deceased Habib-ur-Rehman was removed from the courtyard of our house. On the same day in the early hours I myself appeared in the police station along with the gun and reported the matter to police. Police came on the place of occurrence in pursuance of my report. Habib-ur-Rehman was a man of immoral character. Neither we nor my paternal aunt Mst. Rehana were on visiting terms with the family of Habib-ur-Rehman. Twice before this occurrence he committed such-like offence in the village. Once in the house of Mehboob and once in the house of Mehrban where he was apprehended and given beating. I in order to save the honour of the women of my family and to save them from disgrace out of Ghairat fired.

He further stated that neither he would like to make statement under section 340(2), Cr. P. C. nor adduce any defence evidence.
After going through the evidence produced by the prosecution, the trial Court convicted the accused/appellant vide judgment under appeal.
Arguments have been heard and record perused.
Contention of the learned counsel for the appellant is that occurrence stands admitted and the only point to be resolved is if the appellant has been awarded punishment in accordance with law or not. He further contended that as per prosecution version, the occurrence has taken place at 4-30 a.m. when Habib-ur-Rehman along with his brother Muhammad Rizwan had gone to the house of Mst. Rehana Bibi for obtaining any message in the name of her parents, as Habib-ur-Rehman deceased was going to Hattar to join his duty and parents of Mst. Rehana Bibi used to live there. He argued that this prosecution version does not appeal to reason as no body would go to the house of another person at that odd hours of the night just for the purpose of collecting some message in the name of her parents. He contended that actually the deceased alone had gone to the house of the accused/appellant as the deceased was carrying on with the mother of accused/appellant. He further argued that as the deceased was found in the courtyard of the house of accused fiddling with the door of room of his mother so on account of Ghairat he fired at him. He further submitted that dead body of the deceased was found in the courtyard of the accused and this fact further corroborates the accused/appellant's version that deceased had come there as he was carrying on with his mother. He submitted that 'accused/appellant being a young man of 17 years has committed the murder of the deceased out of sudden and grave provocation as well as Ghairat. He further submitted that under similar circumstances the maximum punishment which has been awarded to the accused ranges between 3 to 5 years. He submitted that the sentence awarded be modified to one which he has already undergone as the appellant was arrested on 9-10-1996 and since then is in jail.
Conversely the impugned judgment has been supported by the learned counsel for the State.
According to the prosecution version contained in F.1.R. Exh.PG, the stand of prosecution is that the deceased Habib-ur-Rehman along with his brother Muhammad Rizwan had gone to the house of Mst. Rehana Bibi for collecting some message from her for her parents who were residing in Haripur. Conversely the stand of appellant is that it was only the deceased who had come to the house of her mother with whom she was carrying on. As per prosecution version as soon as the deceased Habib-ur-Rehman and his brother Muhammad Rizwan reached the house of Mst. Rehana Bibi which is situated within a common courtyard of the house of accused/appellant, the accused came out with his licensed gun and raised Lalkara. Upon this Habib-ur-Rehman started running and tried to scale over the wall but fell down as a result of fire shot received on his back. Even if it is assumed that some message had to be collected from Mst. Rehana, what was the necessity or justification to visit her house at itiat odd hours of the night. Thus prosecution version regarding collecting some message from Mst. Rehana Bibi does not appeal to

reason and does not ring true. The falsity of this prosecution version also becomes evident from the fact that as soon as accused/appellant is said to have raised Lalkara it was Habib-ur-Rehmanwho started making his good escape by scaling over the wall and his brother Muhammad Rizwan is said to have not budged an inch from there. If the prosecution version is accepted as true, natural behaviour of Habib-ur-Rehman as well as Muhammad Rizvan should have been that both of them should have run from there to save their lives, The mere fact that it was only Habib-ur-Rehman who tried to escape from there, shows that it was he alone who was present at the relevant time and Muhammad Rizwan was not accompanying him at the relevant time. Had Muhammad Rizwan been present along with Habib-ur-Rehman, the accused/appellant must have not allowed him to go alive or at least unhurt. Thus the prosecution version which has come on record through the statement of Muhammad Mushtaq complainant does not appeal to a man of ordinary prudence. It may also be mentioned here that Muhammad Mushtaq complainant is not an eye-witness and has reported the matter to police on the basis of information communicated to him by Muhammad Rizvan (P.W.10). It has been admitted by Muhammad Rizwvan (P.W.10) that his statement under section 161, Cr.P.C. was recorded which is Exh.DB. He further admits that he had stated in his statement that the deceased was scaling over the wall when he was fired at, that on receipt of fire shot the deceased had fallen in the courtyard of house of Fazil, that he had informed about this occurrence to his father. He has been confronted with his statement Exh.DB where all these facts are not mentioned. These contradictions also reveal that story of scaling over the wall falling in the courtyard of Fazil and of narrating the story to the complainant is nothing but improvements made by P.W.10 Muhammad Rizvan who was not present at the relevant time alongwith deceased Habibur-Rehman. Had Muhammad Rizvan (P.W.10) brought all facts into the notice of his father Muhammad Mushtaq/complainant, the latter would have narrated such fact to the scriber of F.I.R. Exh.PG. The non-mentioning of these facts by the complainant in the F.I.R. Exh.PG also makes the complainant's version highly doubtful. All these facts lead to an irresistible conclusion that the occurrence has not taken place in the manner as depicted in the F.I.R. Exh.PG, but it has taken place in the manner as disclosed by the accused/appellant while replying question No. 15 in his statement under section 342, Cr.P.C. and as reproduced above.

It may also be argued that mere suspicion could not authorize the accused/appellant to commit the murder of the deceased and by this act of accused/appellant, he has exceeded his right of self-defence. There is no doubt that at the relevant time the deceased Habib-ur-Rehman was not found in an objectionable position with the mother of the accused/appellant yet the mere fact that deceased was found fiddling with the door of room of his mother with whom the deceased was suspected to be carrying on, was sufficient grave and sudden provocation authorizing the accused/appellant to commit the murder of the deceased. A grown up boy of 17 years seeing the deceased under such circumstances is expected to behave in the way in which the accused/appellant has behaved.
The upshot of above discussion is that the occurrence has been taken place in the manner in which it has been narrated by the accused/appellant in his statement under section 342, Cr.P.C. and as such he committed the murder of the deceased Habib-ur-Rehman as a result of Ghairat. Thus the offence squarely, falls under section 302(c), P.P.C. The trial Court has convicted the. accused/appellant under section 302(c), P.P.C. and has sentenced him to undergo R.I. for 15 years and compensation of Rs.50,000. In offences committed under the impulse of Ghairat/ sudden and grave provocation the sentence has been ranging from 2 years to 5 years and in this respect reliance is placed upon Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274, Saeed Ahmed v. The State 1996 PCr.0 1016, Fateh Muhammad alias Fattu v. The State PLD 1967 Lah. 579; Muhammad Ishaque alias Barq v. The State 1998 PCr.0 1110 and Muhammad Ayub v. The State 1997 PCr.LJ 2056. Thus keeping in view the peculiar circumstances of this case, the sentence awarded to the accused/appellant is reduced to 5 years. However, compensation awarded under section 544-A, Cr.P.C. is maintained. The accused/appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
With this modification in the sentence, the appeal is dismissed.

N.H.Q./M-273/L

Sentence reduced.

YLR 2000 LAHORE HIGH COURT LAHORE 2614 #

2000 Y L R 2614

[Lahore]

Before Riaz Kayani, J

MURATAB ALI and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 1064 of 1996, heard on 23rd December, 1999.

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

----S.302(b)/337-A(i)34---Appreciation of evidence---Night time occurrence--Identification of accused---Identification parade ---Admissibility---Trial Court had not believed the identification parade for the reason that prosecution witnesses did not define the role of the accused at the time of occurrence and possibility of accused having been seen prior to the identification parade could not be ruled out---Prosecution could not show, any connection between the two accused persons---Motive urged by the prosecution did not concern the accused in question---Doctor's opinion that the injuries caused to the complainant could be the result of fall, role attributed. to the accused had become doubtful---Conviction and sentence awarded bi, Trial Court to the accused was set aside.

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

----S.302(b)/337A(i)/34---Appreciation of evidence-=-Conviction based upon solitary statement of truthful witness ---Validity--Infant child of the complainant was done to death by the accused, who came there with prior concert of firing at the complainant but instead killed his son---Conviction could be based upon the solitary statement of the truthful witness present at the scene of occurrence---Accused was identified 'by the complainant in the light of electric bulb as the accused was not only known to the complainant previously but was also related to him---No . animosity between the complainant and the accused was pointed out---Conviction and sentence of life imprisonment awarded by the Trial Court was maintained.

Shaukat Rafiq Bajwa and M.A. Zafar for Appellants.

Ch. Nizamauddin Arif for the State.

Ch .Asghar Ali for the Complainant.

Dates of hearing: 22nd and 23rd December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2619 #

2000 Y L R 2619

[Lahore]

Before Asif Saeed Khan Khon

ABDUL RASHID‑ Petitioner

versus

ARSHAD ALI and 2 others‑‑‑Respondents

Criminal Miscellaneous No.696/M of 2000. herd on 31st May, 2000.

(a) Criminal Procedure Code (V of 1898)‑.

‑‑‑‑S.561‑A‑‑‑Petition under S.561‑A, Cr. P. C. is competent and maintainable against an order passed by Session: Court in exercise of its revisional jurisdiction.

Haji Sher Hassan Khan v. Hidayatullah and another 1996 SCMR 1476 and Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref.

(b) Criminal Procedure Code (V of 1898)‑.

‑‑‑‑Ss.516‑A & 561‑A‑‑‑Custody of motor car on Superdari‑‑‑Transfer of registration of the motor car in question in favour of the petitioner having been found to be fraudulent and bogus by the successive Senior Investigating Officers, denial of its Superdari to the petitioner by the Sessions Court in exercise of its revisional jurisdiction was neither unjust nor unfair‑‑‑Such order to the extent of petitioner's claim of Superdari of the motor car, therefore did not warrant any interference and the same was upheld accordingly‑‑‑Sessions Court, however, had given no reason for granting Superdari of the motor car to the respondent after deciding that the petitioner was not entitled to the same‑‑‑Motor car had not been recovered by the local police from the actual physical possession of respondent so as to bolster his claim for its Superdari, nor he had in fact ever applied before the Magistrate for giving the said vehicle on Superdari to him‑‑Sessions Court, hence, had granted Superdari of the vehicle to the respondent as a matter of course without actually attending to the merits of his claim and its order to such extent was consequently set aside‑‑Respondent, however, was at liberty to formally apply for Superdari of the vehicle before the local Magistrate who was directed to attend to his claim in that regard and decide the matter strictly in accordance with law‑‑‑Motor Car in issue was directed to remain in police custody during such period.

Haji Sher Hassan Khan v. Hidayatullah and another 1996 SCMR 1476 and Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref.

‑‑‑‑Ss.435/439 & 439‑A‑‑‑Revision‑‑Limitation‑‑‑No period of limitation was provided for filing a revision petition in a criminal case ‑‑‑Revisional jurisdiction can be exercised even suo motu so as to examine correctness, legality or propriety of an order passed by a subordinate Court.

Ch. Muhammad Arif Bhinder for Petitioner.

Syed Samar Hussain Shah for Respondent No.

Tasneeru Ameen for the State, Date of hearing 31st May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2624 #

2000 Y L R 2624

[Lahore]

Before Mian Allah Nawaz, C J

Mst. NUZHAT REHMAN‑‑‑Applicant

versus

INAM UL HAQ‑‑‑Respondent

Transfer Application No. 14‑C of 2000, decided on 26th May, 2000.

West Pakistan Family Courts Act (XXXV of 1964)

‑‑‑‑Ss. 5, Sched. & 25‑A‑‑‑Application of transfer of suit‑‑‑Suit for dissolution of marriage and rival suit for restitution of conjugal rights‑‑‑Wife filed suit for dissolution of marriage against the husband at place "B" whereas husband filed suit for restitution of conjugal rights at place "D"‑‑Wife had sought transfer of suit filed against her at place "D" to place "B" where her suit for dissolution of marriage was pending against the respondent‑‑‑Applicant was a Pardah‑observing lady and could not prosecute her case at place "D "‑‑‑Keeping in view the inconvenience of applicant, suit filed against her in Court at place "D " was ordered to be transferred to Court at place "B" where her suit for dissolution of marriage was pending.

Zahid Hussain Khan for Applicant.

Nemo for Respondent.

YLR 2000 LAHORE HIGH COURT LAHORE 2625 #

2000 Y L R 2625

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

ZAFAR HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Writ Petition No. 13193 of 2000, decided on 25th July, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365‑A & 383‑‑‑ "Kidnapping or abduction for extorting property etc. " . and "extortion "‑‑‑Distinction‑‑‑Extortion under S.365‑A, P. P.. C. takes place after kidnapping or abduction whereas under S. 383, P. P. C. kidnapping or abduction of the victim is not necessary‑‑‑Extortion under S.365‑A, P. P. C. is always pecuniary in nature whereas under S.383, P.P.C. in extortion a person is put in fear of injury which may be to his mind, his body, his reputation or to his property.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 365‑A/342/343/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Addition of S.365‑A, P. P. C. in the challan‑‑‑Validity‑‑‑Cornerstone or the hallmark of S.365‑A, P. P. C. had always remained the return of the abductor or the kidnapped person for cash or property movable or immovable‑‑‑Forcing the abductee to give statement in favour of the abductor: that she was not abducted or kidnapped, did not at all fall within the purview of S.365‑A, P. P. C. ‑‑‑Facts narrated in the F. 1. R. forming the basis of allegations did not by an v stretch of imagination attract the provisions o, S.365‑A, P.P.C. and the same could not be added in the challan‑‑‑Impugned order o~ Magistrate was without arty application of mind, bereft of reasoning and who/h illegal and the same was set aside accordingly.

Imtiaz Hussain Khan Baloch for Petitioner.

Ch. '.Muhammad Hanif Khatana, Addl. A.A. ‑G. for the Stat(

Malik Muhammad Ashraf District Attorney, Sargodha.

YLR 2000 LAHORE HIGH COURT LAHORE 2634 #

2000 Y L R 2634

[Lahore]

Before Jawwad S. Khawaja, J

MANZOOR HUSSAIN and 2 others‑‑‑Petitioners

versus

ABDUL AZIZ and 2 others‑‑‑Respondents

Writ Petition No. 13900 of 2000, decided on 13th July, 2000.

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

‑‑‑‑S. 2(c)(i)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑having ‑denied ‑existence‑of relationship of landlord and tenant between the parties, onus was on them to prove the issue, which they failed to discharge‑‑‑Tenants had to stand on their feet and were required to discharge onus of proof placed on them, but they failed to do that‑‑‑Courts below had concurrently found that tenants had failed to discharge onus of proof placed on them‑‑‑Such factual finding of Courts below based on record could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Shahid Hussain Qadri for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 2635 #

2000 Y L R 2635(1)

[Lahore]

Before Riaz Kayani, J

Mst. AASIA BIBI‑‑‑Petitioner

versus

Mst. FATIMA BIBI‑‑‑Respondent

Criminal Miscellaneous No. 159‑Q of 1999, heard on 27th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 561‑A & 100‑‑‑Quashing of order‑‑Grand‑mother of the minor had impugned the order of Guardian Judge issuing warrants for the production of the minor on the ground that she did not have the custody of the minor and she was being put to unnecessary harassment‑‑‑Petitioner wag directed to appear before the Guardian Judge and satisfy him that she neither had the custody of the child nor had any control over her son for the production of the minor in the Court‑‑Guardian Judge was directed to pass a speaking order after taking into consideration the contentions of the petitioner‑‑‑Petition was dismissed being meritless.

Hafiz Khalil Ahmad for Petitioner.

Zahid Hussain Khan for Respondent.

Ghulam Hussain for the State.

Date of hearing: 27th January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2636 #

2000 Y L R 2636

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Hakeem ABDUL MAJEED KHAN---Petitioner

versus

JAVAID NASIM, MAGISTRATE MUNICIPAL CORPORATION, SARGODHA and 2 others---Respondents

Writ Petition No. 59 of 2000, decided on 24th January, 2000.

Penal Code (XLV of 1860)---

----S.380--Constitution of Pakistan (1973), Art. l99---Constitutional petition-- Registration of F.I.R.--Complainant had prayed for the registration of a criminal case against the Magistrate, Municipal Corporation, on. the charge that he, after breaking the locks, entered into his "Dawakhana " and took away medicines alongwith cash---Magistrate had conducted the raid at the "Dawakhana " of the complainant under the valid direction of the Deputy Commissioner, as numerous complaints had been made against him for preparation and sale of spurious medicines--Constitutional petition was dismissed in circumstances.

Zahid Hussain for Petitioner.

Nasim Sabir, Addl. A.-G. for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 2637 #

2000 Y L R 2637

[Lahore]

Before Mrs. Fakharun Nisa Khokhar, J

MUHAMMAD NAWAZ---Petitioner

versus

Mst. DOULAN and 2 others---Respondents

Writ Petition No. 7399 of 1999, heard on 10th March, 2000.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 9---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.--Constitution of Pakistan (1973), Art. 199--Constitutional petition---Maintenance allowance ---Entitlement---Maintenance allowance payable to wife as determined by Chairman, Arbitration Council had been disputed by husband contending that lie had earlier divorced her through divorce deed attested by two marginal witnesses---Contention of husband was repelled on the ground that even if divorce was reduced in writing and was attested by marginal witnesses, same teas not communicated to the wife and copy of the divorce deed was not sent to the Chairman, Arbitration Council so that divorce became effective as claimed by him---Wife had denied the earlier divorce---Effect---Maintenance allowance was rightly determined from the date when wife claimed that she had been divorced---Concurrent findings of Courts below on record could not be interfered with in Constitutional petition.

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

---Art.199---Constitutional petition ---Scope--Concurrent findings of Courts below on record could not be interfered with in Constitutional petition.

Zahid Hussain Khan for Petitioner.

Khan Manzoor Hussain Baloch for Respondents.

Date of hearing: 10th March, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 2638 #

2000 Y L R 2638

[Lahore]

Before Khalil‑ur‑Rehman Ramday and M. Naeemullah Khan Sherwani, JJ

NAZIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 488, Murder Reference No. 259 and Criminal Revision No. 88 of 1993, decided on 3rd June, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(a)‑‑‑Appreciation of evidence‑‑‑Eye witnesses had a reasonable explanation of their presence at the place of occurrence and they had no motive to falsely implicate the accused in the case‑‑‑Occurrence had taken place in broad daylight at a venue which was not a deserted area‑‑‑Certain other facts which had also come on record during the course of the trial might not be strictly in line with the prosecution cast as set up, but the same were certainly not offensive to the prosecution case so as to cast doubts on the guilt of accused and had rather further strengthened the prosecution case against the accused which were even taken into consideration being further pointer towards his guilt‑‑‑Finding of guilt as recorded by the Trial Court against the accused, therefore, was not open to any exception and his conviction for the murders of the two deceased persons was consequently maintained‑‑‑Accused had acted brutally, callously and in sheer cold blood by mounting an assault on the two deceased persons and he had not remained contended by taking the life of one of them but persisting with his callousness had killed even the other deceased‑‑‑Accused, therefore, did not deserve any sympathy or mercy‑‑‑Sentences of death awarded to accused on two counts were confirmed accordingly‑‑‑Provisions of S.302, P. P. C. (as amended) had come into force when: the occurrence in question had taken place‑‑Conviction of accused, therefore, would be under S. 302 (a), P. P. C. and the punishment of death would be by way of Qisas‑‑‑Punishment of fine imposed upon the accused was, however, set aside having not been provided by the said amended law.

Ali Bepari's case PLD 1962 SC 502 ref.

Masood Mirza for Appellant.

Mian Muhammad Nawaz Khan and Malik Abdul Salam for the State.

Zahid Hussain Khan for the Complainant.

2000 Y L R 2683

[Lahore]

Before M. Javed Buttar, J

QUETTA TEXTILE MILLS LIMITED, NADIR HOUSE, G/F‑I, I.I. CHUNDRIGAR ROAD, KARACHI‑‑‑Petitioner

versus

PAKISTAN through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 2 others‑‑‑Respondents

Writ Petition No 1621 of 1999, heard on 20th June, 2000.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18, 19, 25, 25‑B & 31‑A‑‑‑Notification No. S.R.O. 1050(1)/95, dated 29‑10‑1995‑‑ Civil Procedure Code (V of 1908), S.11‑‑ Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Past and closedtransaction‑‑‑Regulatory duty, demand of‑‑ Judgment in personam‑‑‑Scope‑‑‑Res-judicata, principles of ‑‑‑Applicability‑‑ Matter between the parties had already been decided by High Court in an earlier Constitutional petition filed by the petitioner‑‑‑Respondent‑Authorities did not file any appeal against said judgment passed in the earlier petition‑‑‑Appeal before Supreme Court in another similar matter was filed by the respondent‑Authorities and had obtained a favourable decision thereon‑‑Respondent‑Authorities on the basis of the decision of Supreme Court passed in the other case once again raised the demand of regulatory duty from the petitioner‑‑Validity‑‑‑Where the judgment passed by High Court in the earlier petition was never challenged before the Supreme Court such judgment of High Court had become final and conclusive between the parties ‑‑‑Respondent Authorities could not turn around and say that the matter was still alive on the basis of judgment passed subsequently by Supreme Court in some other petition‑‑‑Judgment in personam could not be re‑opened in view of bar of res judicata‑‑‑Rights of the parties having been determined, assumed finality and had taken the colour of a 'past and closed transaction"‑Setting aside of judgment of High Court by Supreme Court in another petition would not reopen concluded rights of the parties under the decision of High Court against which no appeal was filed‑‑‑Demand and insistence of the respondent‑Authorities against the petitioner for payment of regulatory duty under S.R.O. 1050(1)/95, dated 20‑10‑1995 on the import of within mentioned goods was illegal and without jurisdiction‑‑‑Respondent‑Authorities were permanently restrained by the High Court from adopting an iv coercive measures against the petitioner for the payment of the same.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412; Koh‑i‑Noor Sugar Mills Limited v. Pakistan .1989 SCMR 2044; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others 1998 SCMR 2389 and Messrs Flying Board and Paper Products v: Central Board of Revenue, Government of Pakistan etc. PLD 1996 Lah. 718 ref.

Pir Bakhsh and others v. Chairman, Allotment Committee and others PLD 1987 SC 145 rel.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑Past and closed transaction‑‑‑Once the rights of the parties had been finally and conclusively determined by High Court, party to the said proceedings could not be permitted to reopen the concluded rights because of the law laid down by Supreme Court subsequently is another appeal.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Territorial jurisdiction‑‑‑Matter between the parties had been finally determined by one High Court in an earlier petition filed by the petitioner‑‑‑Respondent‑Authorities did not assail that order of High Court before Supreme Court but later on the respondent-Authorities reopened the same matter‑‑Petitioner filed another Constitutional petition before the same High Court against such act of the respondent‑Authorities‑‑Respondent‑Authorities in the subsequent petition raised objection to the territorial jurisdiction of the High Court‑‑‑Validity‑‑Any view to the contrary would amount to directing the petitioner to approach other High Court seeking implementation of a judgment ‑‑‑Where judgment passed by one High Court had attained finality as the same was not challenged any further before the Supreme Court on any ground including that of lack of territorial jurisdiction of that Court, no prejudice was caused to the respondent‑Authorities by filing the fresh petition before the same High Court‑‑Petition, held, was maintainable in circumstances.

Muhammad Akram Sheikh for Petitioner.

Farhat Nawaz Lodhi for Respondents.

Date of hearing: 20th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2689 #

2000 Y L R 2689

[Lahore]

Before Malik Muhammad Qayyum and Sayed Zahid Hussain, J

Miss SHEHLA SHAH NAWAZ Appellant

versus

THE BOARD OF INTERMEDIATE & SECONDARY EDUCATION and ' others‑‑‑Respondents

Intra‑Court Appeal No. 810 of 1999, decided on 9th May, 2000.

Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)‑‑‑

‑‑‑‑S.12(1‑A) (S)‑‑‑Law Reforms Ordinance (XII of 1972), S.3(2)‑‑‑Intra‑Court appeal‑=Maintainability‑‑‑Candidate in his Constitutional petition had challenged order of the Controller of Examinations quashing result and consequential expulsion of the candidate from college‑‑‑Contention of the Authorities was that under S. 12(1‑A)(S) of Punjab Board of Intermediate and Secondary Education Act, 1976 order impugned in Constitutional petition was revisable by the Controlling Authority and that in view of proviso to S.3(2) of Law Reforms Ordinance, 1972, Intra‑Court appeal was not maintainable‑‑‑Validity‑‑‑Controlling Authority under S.12(1‑A)(S) of Punjab Board of intermediate and Secondary Education Act, 1976 had a supervisory power to annul any proceedings of the "Board" or a "Committee " which was not in conformity with the provisions of the Act or Regulation or the Rules‑‑‑Order Passed by Controller of Examinations did not fall within ambit of S.12(1‑A) (5) of the Act as the said order had "either been passed by "Board " "or the "Committee "‑‑‑proviso to S.3 of Law Reform Ordinance, 1972 being not applicable to the case, objection raised by respondents with regard to maintainability of appeal was repelled.

Samina Talib, Student, M.B.B.S. Punjab Medical College, Faisalabad v. Principal, Punjab Medical College Faisalabad and 4 others C.A. No. 351 of 1999 in C.P. No. 367‑L of 1999 ref.

Hamid Khan for Appellant.

Dr. Qazi Mohyuddin for Respondent,

YLR 2000 LAHORE HIGH COURT LAHORE 2690 #

2000 Y L R 2690

[Lahore]

Before Raja Muhammad Sabir and Muhammad Akhtar Shabbir, JJ

Mst. ZAIBUN‑NISA‑‑‑Petitioner

versus

DEPUTY COMMISSIONER/DISTRICT COLLECTOR, MUZAFFARABAD and others‑‑‑Respondents

Writ Petition No. 8948 of 1999, heard on 26th April, 2000.

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

---S. 2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Powers of Notified Officer, exercise of‑‑‑Matter was not pending before Settlement Authorities at the time of promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Judgment of High Court passed in earlier Constitutional petition mentioned through clerical mistake the word "Notified Officer" after the word A. C. /Collector‑‑Assistant Commissioner/Collector, in post-remand proceedings assumed the powers of Notified Officer on the basis of that order of the High Court and scrutinized allotment of the petitioner‑‑‑Validity‑‑‑If the matter was not pending at the time of repeal of Settlement laws, A. C. /Collector assumed the powers of Notified Officer wrongly‑‑‑Assistant Commissioner/Collector was not competent to scrutinize the allotment of the petitioner‑‑Order passed by the A. C. /Collector was coram non judice and the same was illegal and without lawful authority‑‑‑Order of the A. C. /Collector was set aside and the case was remanded for decision afresh in circumstances.

Muhammad Siddique v. Mst. Hawabai and 5 others 1986 CLC 54; Khalil‑ur‑Rehman v. Assistant Custodian (Survey), Evacuee Property and others 1986 CLC 2590; Sher Afzal Khan and others v. Haji Riaz Abdullah and others 1984 SCMR 228; Haji Habib v. Haji Muhammad and another 1981 CLC 543; Headmaster, Muslim High School and another v. Mst. Asghari Khanam and 2 others 1984 SCMR 332; Raja Hassan Akhtar and others v. Akbar Khan and others 1981 SCMR 503; Mst. Iqbal Siddique v. Assistant Settlement Commissioner (Urban) and others PLD 1984 Lah. 291 and Mst. Asghari Khanam v. Maj. Iqbal Cheema and 3 others PLD 1982 Lah. 569 rel.

Athar Rehman Khan for Petitioner.

Tahir Haider Wasti A.A.‑G for Respondents Nos. 1 to 3.

Respondents Nos. 4 and 5 Ex pane

Date of hearing: 26th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2696 #

2000 Y L R 2696

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD NAWAZ KHAN and another‑‑‑Appellants

versus

Mst. FARAH NAZ‑‑‑Respondent

First Appeal Order No. 226 of' 2000. decided on 11th August, 2000.

(a) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908). S.47‑‑‑Court fee, determination of‑‑Jurisdiction of Executing Court‑‑Determination of question of court fee by Executing Court‑‑‑Scope‑‑‑Legality‑‑‑All questions relating to court fee are to be deal with by the Trial Court or the Court hearing appeal, revision or reference‑‑‑Executing Court has to execute the decree as the same has been passed‑‑‑Execution of decree cannot be refused by the Executing Court on the ground that the plaint in the suit in which the decree had been passed was deficiently stamped.

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

‑‑‑‑S.s. 47 & 104‑‑‑Execution of decree‑‑Objection regarding deficient court fee affixed on the plaint‑‑‑Such objection was raised by the judgment‑debtor before the Executing Court while appeal against the decree of the Trial Court was still pending before the Supreme Court‑‑‑Executing Court overruled the objection so raised ‑‑‑Validity‑‑Where the decree‑holder in the suit was given opportunity to make up the deficiency in the court fee, it was only failure of the decree-holder to comply with the order that the plaint could have been rejected ‑‑‑No order as contemplated by O. VII, R.11, C.P.C. was passed by the Trial Court or for that matter by the Court dealing with appeal, and thus there was no question of penalising the judgment‑debtor‑‑‑Executing Court was bound to execute the decree as passed by the Trial Court and affirmed by High Court, till such time the matter was decided by the Supreme Court, as there was no restraining Order.

Ch. Inayatullah for Appellants. .

Anjum Waheed for Respondent.

Date of hearing: 11th August, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2709 #

2000 Y L R 2709

[Lahore]

Before Malik Muhammad Qayyum, J

JACOB LAL DIN‑‑‑Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education, Lahore and others‑‑‑Respondents

Writ Petition No. 9483 of 1996, decided on 26th October, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Deduction of occupation charges as maintenance charges from the salary of employees without any agreement‑‑‑Validity‑‑‑Petitioners were the licensees of the church and the church had been declared as the owner of the property by both the Courts below‑‑Respondent Authorities were deducting house rent from the monthly salary of the petitioners on the pretext of maintenance charges‑‑Validity‑‑‑Where there was no such agreement between the parties, the deduction being made from the salary of the petitioners was on account of the occupation of the property and not as charges for maintenance ‑‑‑ Such deduction from the salary of the petitioners was without lawful authority and of no legal effect.

Board of Foreign Missions of the Presbyterian Church in the United States of America v. The Government of the Punjab and another 1987 SCMR 1197 ref.

Syed Asghar Haider for Petitioner.

Mian Shahid lqbal, A.A.‑G. for Respondents.

Date of hearing: 26th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2723 #

2000 Y L R 2723

[Lahore]

Before Mian Saqib Nisar, J

Mst. SHAHEEN QURESHI and others‑‑‑Petitioners

Versus

JAVAID QURESHI and others‑‑‑Respondents

Civil Revision No. 956 198' heard on 29th November, 1999.

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑O.XVII, R.3‑‑‑Closing of right of evidence‑‑‑Evidence could not be produced on the date fixed for that purpose on account of the arrest of the counsel of petitioners‑‑Trial Court closed the evidence of the petitioners and said decision was upheld by the Lower Appellate Court‑‑‑Validity‑‑‑Order passed by Trial Court was not in consonance with the provisions of O.XVII, R.3, C.P.C.‑‑Where there were unavoidable circumstances under which the petitioners could not produce their evidence further time should have been granted to them to do the needful‑‑‑Judgments and decrees of both the Courts below were set aside and the case was remanded to the Trial Court for decision afresh.

Zafar Iqbal Bajwa for Petitioners

Badar‑ul‑Amir for Respondents.

Date of hearing: 29th November 1999

YLR 2000 LAHORE HIGH COURT LAHORE 2742 #

2000 Y L R 2742

[Lahore]

Before Sheikh Abdur Razzaq, J

Sub. (Retd.) SHABBIR AHMED ‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE (JUDICIAL‑II), BOARD OF REVENUE, PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petition No. 1984 of 1999, decided on 22nd June, 2000.

West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑Rr. 5 & 19‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑Lambardar, appointment of‑‑‑Vested right‑‑Prerogative of Revenue Authorities‑‑‑Father of the petitioner was candidate for such appointment on the basis of his working as temporary Lambardar but respondent was so appointed on the recommendations of Assistant Commissioner which were approved by the Deputy Commissioner/Collector‑‑Appeal against appointment had abated on account of his death‑‑‑Petitioner filed application for impleading him in place of his deceased father but was refused‑‑‑Revision as well as review petition by the petitioner before the Board of Revenue were also dismissed‑‑‑Contention by petitioner was that on the basis of provisions of R.5 of West Pakistan Land Revenue Rules, 1968, appeal of the father of petitioner could not have been abated‑‑‑Validity‑‑‑Matters to be considered in appointment of successor of Lambardar having been mentioned in R.19 of West Pakistan Land Revenue Rules, 1968, provisions of R.5 of West Pakistan Land Revenue Rules, 1968, had no applicability‑‑Application moved by respondent was processed in accordance with law and he was adjudged to be suitable person for the appointment by the Revenue Authorities‑‑Points agitated by petitioner had already been considered and rejected by the forum of competent jurisdiction‑‑‑Order of appointment of respondent as Lambardar, therefore, did not suffer from any legal infirmity‑‑‑No one had vested right to be appointed as Lambardar and relevant Authorities select the persons best suited for the purpose with a view to facilitate the performance of administrative functions entrusted to the person so appointed.

Maqbool Ahmad Qureshi v. Islamic Republic of Pakistan PLD 1999 SC 484 ref.

Abdul Ghaffor v. Member (Revenue) Board of Revenue and another 1982 SCMR 202; Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 and Sahukat Ali and another v. Muhammad Shafi and 2 others 1991 SCMR 1504 ref.

Hafiz S.A. Rehman for Petitioner.

Muhammad Asif Chaudhry for Respondents.

Date of hearing: 22nd June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2746 #

2000 Y L R 2746

[Lahore]

Before Syed Jamshed Ali, J

HUMAYUN NASEER and 4 others‑‑‑Petitioners

versus

Mst. RASHIDA QAYYUM and 6 others‑‑‑Respondents

Writ Petition No. 1426/R of 1997, heard on 18th February, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑‑Audi alteram partem, principle of ‑‑‑Applicability‑‑ Disputed property was purchased by the predecessor‑in‑interest of the petitioners After the sale, allotment of the disputed property was cancelled from the name of the vendor and the same was allotted to respondents‑‑‑Disputed property was cancelled twice and allotted‑‑‑Lastly the Authorities allotted the land once again in the name of the respondents ‑‑‑Predecessor‑in-interest of the petitioners during the last proceedings died and the petitioners were not impleaded as party to the proceedings‑‑Contention by petitioners was that they were condemned unheard before passing last order of allotment by the Authorities ‑‑‑Validity‑‑Petitioners having not been brought on record after the death of their predecessor‑in-interest, petitioners were condemned unheard‑‑‑Order of allotment was without lawful authority and the same was set aside in circumstances.

Sheikh Abdul Aziz for Petitioners.

Muhammad Nawaz Kasuri for Respondents Nos. 1 to 3.

Date of hearing: 18th February 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 2748 #

2000 Y L R 2748

[Lahore]

Before Mian Saqib Nisar, J

MUNICIPAL COMMITTEE, KHUSHAB‑‑‑Petitioner

Versus

REHMAT ULLAH and others‑‑‑Respondents

Civil Revision No. 1379 of 1993, heard on 15th October, 1999.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.100‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Suit for declaration‑‑Registration of sale‑deed‑‑Suit was resisted on the grounds that sale‑deed on basis of which plaintiffs claimed ownership in respect of property in dispute, being not registered document, could not be relied upon and that suit was barred by, limitation‑‑‑Sale consideration of property in dispute being less than Rs.100 was not compulsorily registrable ‑‑‑Presumption was attached to validity of sale‑deed as same was thirty years old‑‑‑Plaintiffs in their plaint had mentioned that cause of action had accrued in their favour a week prior to filing of the suit when title to the property in dispute was denied to them‑‑‑Suit was not barred in circumstances‑Concurrent findings of fact recorded , by Courts below regarding validity of sale of suit property in favour of plaintiffs not suffering from perversity, error of jurisdiction and material irregularity, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Zahid Hussain Khan for Petitioner.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 15th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2750 #

2000 Y L R 2750

[Lahore]

Before Riaz Kayani, J

MUHAMMAD ASGHAR Appellant

versus

THE STATE Respondent

Criminal Appeal No. 254 of 1997, heard on 11th May, 2000.

Penal Code (XLV of 1860)‑.

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Presence of eye‑.witnesses, who were mother and brother of the deceased, at the scene of occurrence was not open to any doubt ‑‑‑Eyewitnesses were not attributed any animosity or ill‑will against the accused to involve him falsely in the case for some ulterior motive‑‑Plea taken by accused in his defence was not only absurd, but was an afterthought deserving outright rejection‑‑‑Investigating Wicer had deposed that despite his efforts nobody from the locality had come forward to become a witness in the case‑‑‑Increase in crime being rampant in present days, every one was reluctant to enter the witness‑box even if he had seen the occurrence‑‑‑Variance of the ocular testimony with medical evidence was insignificant and minor discrepancies could not affect the merits of the case‑‑‑Case being of single accused and having been promptly registered with the police, no earthly reason was available to spare the real culprit and substitute the accused for him‑‑‑Conviction and sentence of accused were upheld in circumstances.

Zahid Hussain Khan for Appellant

Sadaqat Mehmood Butt for the State

Date of Hearing : 11th May, 2000

YLR 2000 LAHORE HIGH COURT LAHORE 2753 #

2000 Y L R 2753

[Lahore]

Before Mian Saqib Nisar, J

Mst. ULFAT BUTT‑‑‑Petitioner

versus

MUHAMMAD ARIF and others‑‑‑Respondents

Civil Revision No. 1‑D of 1997, decided on 3rd May, 1999.

(a) Muhammadan Law ‑‑‑

‑‑‑‑Waqf‑‑‑Creation of‑‑‑Graveyard‑‑‑Where any piece of land was used for a graveyard for considerable length of time, creation of Waqf and dedication could be validly presumed.

PLD 1968 Pesh. 181; 1995 SCMR 1584; PLD 1961 (W.P.) Lah. 993 and 1993 MLD 1612 ref.

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

‑‑‑‑Ss.6 & 13‑‑‑Suit for pre‑emption‑_Maintainability‑‑‑Waqf property‑‑Evidence on record had proved that land in dispute was purchased by vendee with tire intention to use the same for the purpose, of graveyard of inhabitants of the village and the. land was purchased through contribution of residents of the village and even two Marlas of land was donated by the vendor thereof‑‑‑Such land, thus, would be a Waqf property vesting in God‑‑‑Mere reason that name of preemptor was mentioned in the Revenue Record would trot establish that pre‑emptor was owner/co‑sharer entitling him to file a suit for pre‑emption ‑‑‑Courts below in circumstances were not justified to decree the suit for pre-emption filed by pre‑emptor.

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent findings of fact based upon proper record of evidence would not call for any interference, but if such findings were not based upon proper reading of the record these were not immune from examination and correction in revision which was the supervisor, jurisdiction of High Court.

Maulvi Anwarul Haq for Petitioner.

Syed Qalb‑i‑Hassan for Respondents.

Dates of hearing: 19th November, 1998 and 3rd May, '1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2760 #

2000 Y L R 2760

[Lahore]

Before Mian Saqib Nisar, J

Haji MUHAMMAD LATIF.‑ Appellant

versus

GHULAM SARWAR‑‑‑Respondent

Regular First Appeal No. 151 of 1998, heard on 26th November, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.148 & O.XXCVII, Rr. 1, 2, 3‑‑‑Suit for recovery of amount on account of promissory note‑‑‑Leave to appear and defend suit Leave to appear arid defend suit was granted to defendant borrower subject to condition to file surety bond tip to the specified date‑‑Defendant though purchased stamp paper oil which surety bond was drafted one day prior to the specified date, bill could not submit the same oil that date as Presiding Officer of the Court was oil leave‑‑‑Defendant oil the next date of hearing produced the surety bond which was accepted by Court‑‑‑Plaintiff had sought striking off defence of defendant contending that defendant had failed to produce surety bond oil specified date and thus lead failed to fulfil conditional order of tile Court in respect of production of surety , bond‑‑‑Court accepting the plea of plaintiff struck off the defence‑‑‑Validity‑‑‑Surety bond executed prior to the specified date could trot be produced due to absence of Presiding Officer of the Court, Reader of Court did slot place the same oil record‑‑‑Surety bond subsequently produced by defendant having been accepted by Court would mean that time fixed by Court for production of surety bond was enlarged by Court under 5.148, C.P.C.‑‑‑Court thus was not justified to decree suit holding that defendant having failed to comply with order granting leave to defend suit and to submit surety bond on specified date, it would be deemed that leave to defend suit had been refused to him‑‑Judgment of Court below was set aside and case was remanded to be decided afresh ill accordance with law.

PLD 1995 SC 362; 1985 CLC 2467 and PLD 1984 Kar. 127 ref.

Malik Noor Muhammad Awan for Appellant.

Zahid Hussain Khan for Respondent.

Date of hearing: 26th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2766 #

2000 Y L R 2766

[Lahore]

Before Dr. Munir Ahmad Mughal, J

ZONAL WORKERS' UNION IRRIGATION (PUNJAB), LAHORE through General Secretary‑‑‑Petitioner

versus

REGISTRAR OF TRADE UNIONS, PUNJAB, 62‑NEW MUSLIM TOWN, LAHORE and 2 others‑‑‑Respondents

Writ Petition No. 4020 of 2000, heard on 10th April, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.l99‑‑‑Law Reforms Ordinance (XII of 1972), S.3 (2)‑‑‑Constitutional petition filed second time concealing the fact of previous petition dismissed in Intra‑Court appeal‑‑Maintainability‑‑‑Disposal of Intra‑Court appeal‑‑‑Division Bench of High Court disposed of Intra‑Court appeal, but petitioner despite knowing that fact had filed Constitutional petition in respect of the matter which had already been dealt with by the Division Bench‑‑‑High Court sitting singly had no jurisdiction to bypass or interfere with the order passed by Division Bench of High Court in exercise of its Constitutional jurisdiction‑‑‑Matter of disposal of Intra-Court appeal being in the knowledge of petitioner, who filed Constitutional petition, was burdened with heavy cost for said . concealment and petition filed by him was dismissed.

Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 ref.

Asmat Kamal for Petitioner.

Farooq Zaman Qureshi for Respondent No. l

Mian Mehmood Hussain for Respondents Nos. 2 and 3.

Riaz Ahmad, General Secretary for Respondent No.4.

Date of hearing: 10th April, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2768 #

2000 Y L R 2768

[Lahore]

Before Riaz Kayani, J

MUHAMMAD SIDDIQUE‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 791 of 1996, heard on 6th October, 1996.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302(c)‑‑‑Appreciation of evidence‑‑Prosecution had not come to the Court with clean hands and had given a tainted version suitable to their needs‑‑‑Eye‑witnesses had reached the spot after the occurrence and they had not only hidden facts going to the root of the prosecution case, but had even not explained the injuries sustained by so many persons belonging to accused party and their testimony, therefore, was not trustworthy‑‑Gun recovered from the accused was not found to be wedded with any of the crime empties secured from the place of occurrence‑‑‑Accused was acquitted in circumstances.

Zahid Hussain Khan for Appellant.

Miss Tasnim Amin for the State.

Malik Muhammad Akram Khan for the Complainant.

Date of hearing: 6th October, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2773 #

2000 Y L R 2773

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD HANIF and 3 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 6762/13 of 2000, decided on 16th August, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S; 506/186/34‑‑‑Bail, grant of‑‑‑Factors to be considered‑‑‑No injury had been caused by any of the accused persons during the occurrence‑‑‑Offence under S. 186, P. P. C. was bailable while offence under S. 506 did not attract prohibitory clause contained in S.497(l), Cr.P.C.‑‑‑Grant 'of bail in such cases was a rule and its refusal was an exception ‑‑‑Challan in the case having already been prepared after completion of investigation, continued physical custody of accused in jail, would not serve any beneficial purpose at such stage‑‑‑Concession of bail ought not to be withheld by way of premature punishment‑‑‑Accused had already spent 2‑I l2 months in ‑ jail‑‑‑ Accused were admitted to bail in circumstances.

M.A. Zafar and Rao Munawar Khan for Petitioners.

Syed Saeed Ahmed Tirmazi for the State,

YLR 2000 LAHORE HIGH COURT LAHORE 2783 #

2000 Y L R 2783

[Lahore]

Before Malik Muhammad Qayyum, J

Messrs SAZGAR ENGINEERING WORKS LTD. ‑‑‑Petitioner

versus

CENTRAL BOARD OF REVENUE, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others‑‑‑Respondents

Writ Petition No. 8989 of 2000, heard on 24th May, 2000.

Customs Act (IV of 1969)‑‑‑‑

‑‑‑‑S. 202 (3), proviso‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Words "this mode" as used in 5.202(3), proviso of Customs Act, 1969‑‑Significance‑‑‑Application‑‑‑Initiation of coercive measures for the recovery of Government dues, before the expiry of limitation for filing appeal ‑‑‑Validity‑‑Provision of 5.202(3), proviso, Customs Act, 1969 applied only to actions under S. 202 (3) (d) of the Customs Act, 1969 and had no application to other modes of recovery provided in Cis. (a), (b) & (c) of 5.202(3) of Customs Act, 1969‑‑‑Contention by the petitioner that the proviso was applicable to all the sub‑clauses of 5.202(3) of the Customs Act, 1969 could not be accepted in view of clear language of the proviso which used the words "this mode" i.e. in a singular and as such it would apply only to the mode provided in S.202(3)(d) of the Customs Act, 1969, which immediately preceded the proviso and not to other clauses.

Irfan Qadir for Petitioner.

Khan Muhammad Virk for Respondent.

Date of hearing: 24th May, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 2789 #

2000 Y L R 2789

[Lahore]

Before Malik Muhammad Qayyum and Syed Zahid Hussain, JJ

ZAFAR. ULLAH KHAN‑‑‑Appellant

versus

Mst. HAKIM BIBI and another‑‑Respondents

Regular First Appeal No. 37 of 1992, heard on 7th June, 2000.

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

‑‑‑‑Ss. 12 & 22‑‑‑Specific performance of agreement to sell‑‑‑Failure to get opinion of Finger Print Expert‑‑‑Suit was filed wherein the plaintiff relied upon an agreement to sell the suit land duly executed by the defendant Execution of the agreement was denied by the defendant‑‑‑Trial Court dismissed the suit without sending the document to the Finger Print Expect for comparison of the thumb impressions of the defendant‑‑‑Validity‑‑‑Trial Court should have allowed comparison of thumb‑impressions and obtained report from the Expert witness which would certainly had been helpful in appreciating the evidence led by the parties and the decision of the dispute raised by them‑‑‑High Court directed ‑ the Trial Court to have the thumb‑impressions on the disputed documents compared with the admitted thumb‑impression of the defendant‑‑‑Judgment and decree of the Trial Court was set aside and the case was remanded to the Trial Court for decision afresh.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Arts.17 & 79‑‑‑Documentary evidence‑‑Execution of document‑‑‑Proof‑‑‑Failure to produce two marginal witnesses‑‑‑Effect‑‑‑ Where in addition to one of the marginal witnesses, the scribe of the document appeared in the Trial Court and deposed that the agreement was scribed by him and thumb impressions were put by the defendant such statement of the scribe could be considered to be a statement of a marginal witness in circumstances.

Nazir Muhammad v Muhammad Rafiq 1993 CLC 257 ref.

Irshad Ahmad for Appellant, C.A. Rehman for Respondent

Date of hearing: 7th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2811 #

2000 Y L R 2811

[Lahore]

Before Muhammad Akhtar Shabbir, J

SAQLAIN AKBAR‑‑‑Petitioner

versus

THE STATION HOUSE OFFICER, POLICE STATION CITY, RAJANPUR and another‑‑‑Respondents

Writ Petition No. 2374‑Q of 2000, decided on 30th May, 2000.

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

‑‑‑S. 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I. R. ‑‑‑ "Attempt to commit offence"‑‑Meaning and scope‑‑‑Allegation against the accused was that he was lying naked with a naked woman on a cot‑‑‑Case against accused was of attempt to commit offence of Zina‑‑‑ "Attempt " was an act done in part execution of a criminal design amounting to more than mere preparation, but falling short of actual consummation and possessing, except for failure to consummate, all elements of substantive crime‑‑‑ "Attempt " signified an act which if successful would amount to commission of offence‑‑‑Offence of rape being an offence requiring actual penetration, attempt at rape must be an attempt at penetration involving catching female in such a manner that penetration might be facilitated‑‑‑Between removal of Shalwars of male and female and actual coitus, some step to lay female or at least to catch her, was necessary so as to bring her to position in which coitus could be possible‑‑‑Stripping of girl with intention to commit rape could not, as a rule, be always treated as an attempt to commit rape‑‑‑Lying naked by two opposite sex on a cot without taking any other step towards commission of offence would be an act of preparation only‑‑‑Story of prosecution was put by chance witnesses to the effect of seeing accused and female lying on a cot in naked position, was not reliable when door of room was not bolted properly‑‑‑No offence of attempt to commit offence of Zina under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 having been made out from contents of F.I.R., same was ordered to be quashed.

Shaukat v. The State PLD 1982 FSC 179; Mst. Ehsan Begum v. The State PLD 1983 FSC 204; Mst. Akhtar Parveen v. The State PLD 1997 Lah. 390; Muhammad Mahmood Ahmad v. The State 1995 PCr.LJ 444; Muhammad Saleem and another v. The State 1988 PCr.LJ 2321 and Mian Muhammad Abbas Sharif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior and 2 others 1995 PCr.LJ 1224 ref.

Khalid Ashraf Khan for Petitioner.

Sh. Gull Muhammad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2816 #

2000 Y L R 2816

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUHAMMAD YOUSUF---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1094/B of 2000, decided on 8th June, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11 Bail, grant of ---Abductee had narrated story of her sufferings at the hands of accused and his co-accused---Victim had alleged that her Nikahnama with the accused was forged one as she did not contract marriage with accused ---Abductee was got medically examined and according to medical report her age was fifteen years---Horrible allegations were brought against accused and his suit for restitution of conjugal rights had already been dismissed for non prosecution-Prosecutrix1aabductee whole-heartedly had supported prosecution version and had furnished all relevant details---Girl had attributed allegations of Zina-bil-Jabr to accused while stating in clear-cut terms that she did not perform marriage with accused and that alleged Nikahnama was- a patent fabrication on part of accused with active assistance of co-accused---Evidence on record had proved that F.I.R. against accused was genuine and that prosecutrix was victim of Zina-bil-Jabr---Nothing was available on record to disbelieve statements of prosecutrix and other witnesses---Accused prima facie appearing to be guilty of heinous offence, his bail petition was dismissed.

Ch. Faqir Muhammad for Petitioner.

Zafarullah Khan Khakwani, A.A.-G.

Kanwar Riaz Ahmad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2823 #

2000 Y L R 2823

[Lahore]

Before Khawaja Muhammad Sharif J

WAZIR and others‑ Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 785 of 1993, heard on 13th June, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑Occurrence had taken place at 8‑00 a.m. in lhata where accused was residing‑‑‑F.1. R. showed that one injury each was attributed to both accused on persons of deceased, but as per post‑mortem examination report eight injuries were found on person of deceased‑‑ Six unexplained injuries had proved that prosecution witnesses were not present at the spot, for had they been present, they must have mentioned number and seats of injuries‑‑-All prosecution witnesses were closely related to the deceased ‑‑‑Post‑mortem report had shown no time of death in the relevant column and doctor, who conducted post‑mortem of deceased, did not give cause of death at the end of post‑mortem report and in column probable time that elapsed between injury and death was deferred till the receipt of report of Chemical Examiner‑‑‑Version of accused that he committed murder of deceased and injured his real sister in grave and sudden provocation due to Ghairat, was more plausible than version put up by prosecution‑‑‑Conviction of accused, in circumstances, was converted from S.302(b), P. P. C. to 302 (c), P. P. C. and period of sentence which he had already undergone was treated to be sufficient to meet ends of justice‑‑‑Conviction against co‑accused was set aside as possibility of his false involvement could not be ruled out.

Mushtaq Ahmad Qureshi for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 13th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2827 #

2000 Y L R 2827

[Lahore]

Before Malik Muhammad Qayyum, J

PRIME COMMERCIAL BANK LTD. ‑‑‑Plaintiff

versus

Messrs CH. WIRE ROPE INDUSTRIES (PVT.) LTD., LAHORE‑‑.‑Defendant

Civil Original Suit No. 7 of 1999, decided on 5th May, 2000.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9(1)‑‑‑Companies Ordinance (XLVII of 1984), S. 316‑‑‑Suit for recovery of Batik loan‑‑‑Maintainability‑‑‑Company under liquidation‑‑‑ Claim of the Bank to be filed before the Liquidator ‑‑‑Validity‑‑‑Company Judge, under the provisions of S.316 of Companies Ordinance, 1984 had the power to allow the filing of any suit or other proceedings against a company under liquidation‑‑‑Where the permission of the Company Judge was obtained before the suit was filed, suit was maintainable.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 17‑‑‑Banking documents‑‑‑Execution of blank documents‑=‑Validity‑‑‑Where the documents relied upon by the Bank were executed prior to coming into force of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 such documents were covered by the exception and could not be said to be invalid.. or suffering from any illegality.

‑‑‑‑Ss. 10 & 9‑‑‑Suit for recovery of Bank loan‑‑‑Application for leave to defend‑‑Defendant did not deny availing of the finance facility and there was no specific denial as such in the application for leave to defend‑‑‑Effect‑‑‑Where no triable issue had been disclosed by the defendant in the application, leave to defend was refused and the suit as decreed.

Faisal Islam for Plaintiff, Abbas Baig for Defendants Nos. 2 to 4and6to9.

2000 Y L R 2840

[Lahore]

Before Ali Nawaz Chauhan, J

MUHAMMAD AKRAM‑‑‑Petitioner

versus

JUDGE FAMILY COURT, LAYYAH and another‑‑‑Respondents

Writ Petition No. 11536 of 1999, decided on 25th January, 2000.

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

‑‑‑‑S. 5, Sched., Ss.10 & 11‑‑‑Civil Procedure Code (V of 1908), O.XVII, R.3‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition ‑‑‑Suits for restitution of conjugal rights, Dissolution of marriage and maintenance‑‑‑Consolidation of suits‑‑Closing of evidence‑‑‑Suits were consolidated and were fixed for recording the evidence‑‑Case was adjourned for recording, evidence of husband, after recording the evidence of wife but he failed to adduce any evidence despite Several adjournments‑‑On last date fixed for producing evidence, husband having failed to produce evidence, his defence was closed and case was fixed for post‑trial reconciliation and arguments‑‑‑Husband had failed to point out any illegality committed by Trial Court in closing his evidence‑‑‑Family cases were meant to be decided as early as possible and dragging of case fixed for hearing where a last opportunity had already been afforded, was not justified‑‑‑Constitutional petition, was incompetent as arguments in the case were yet to be heard and judgment and decree of Family Court were yet to be passed which would give husband right to file appeal against orders of Family Court.

Syed Murtaza Ali Zaidi for Petitioner.

2000 Y L R 2857

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. NUSRAT BIBI and others‑‑‑Petitioners

versus

SENIOR CIVIL JUDGE/MAGISTRATE SECTION 30, LAYYAH and others‑‑‑Respondents

Writ Petition No. 10245 of 1998, decided on 23rd November, 1998.

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

‑‑‑‑Ss. 63, 169 &173‑‑‑Discharge of accused‑‑‑Modes‑‑‑Accused could be discharged under Ss. 63, 169 & 173, Cr. P. C.

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

‑‑‑‑Ss. 173 & 190(3)‑‑‑Penal Code (XLV of 1860), S. 380‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑Proceedings after submission of report under S.173, Cr.P.C.‑‑‑Investigating Officer, after investigation, submitted investigation report under S. 7 73, Cr. P. C. in the Court of Senior Civil Judge/Magistrate Section 30, Cr. P. C. for cancellation of case against accused‑‑Magistrate not agreeing with said report, ordered Investigating Officer to submit challan in his Court for onwards transmission to Sessions Court concerned‑‑‑Case against accused fell within exclusive jurisdiction of Court of Session‑‑‑Judicial Magistrate was not competent to return report under S. 173, Cr. P. C. to Investigating Officer for submission of the challan‑‑‑Magistrate was duty bound to forward the report to Court of Session for proceeding further in the matter in accordance with law‑‑‑Magistrate had to proceed in accordance with S.190(3), Cr. P. C. whereby he had to refer case to the Court of Session if case was exclusively triable by that Court and Magistrate could not direct Investigating Officer to submit challan in his Court for onward transmission to Sessions Court‑‑‑Order of Magistrate was set aside remanding case to the Magistrate with direction to forward report under S.173, Cr. P. C. directly to Court of Session for disposal of the case in accordance with law.

Falak Sher and another v. The State PLD 1967 SC 425; Muhammad Nawaz Khan v. Noor Muhammad and others PLD 1967 Lah. 176 and A.K. Roy v. State of Bengal AIR 1962 Cal. 135 ref.

Rafique Ahmad Malik for Petitioners.

Khadim Nadeem Malik, Addl, A.A‑G. for Respondents.

Date of hearing: 23rd November, 1998.

YLR 2000 LAHORE HIGH COURT LAHORE 2867 #

2000 Y L R 2867

[Lahore]

Before Ihsan‑ul‑Haq Chaudhry and Muhammad Zafar Yasin, JJ

HAJI KHAN‑‑‑Appellant

versus

ZAFAR IQBAL‑‑‑Respondent

Regular First Appeal No. 212 of 1998, decided on 11th January, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, Rr. 2, 3 & S.96‑‑‑Suit ,for recovery of' amount‑‑‑Application for leave to appear and defend suit‑‑‑Leave to appear and defend suit was granted to defendant subject to furnishing surety bond of suit amount tip to a specified date, but defendant neither appeared nor submitted. surer) bond and also did trot file written statement even on the adjourned date of hearing‑‑‑Suit was rightly decreed by Trial Court.

Khan Zahid Hussain Khan for Appellant.

Malik Muhammad Ashhab for Respondent.

YLR 2000 LAHORE HIGH COURT LAHORE 2875 #

2000 Y L R 2875

[Lahore]

Before Mian Saqib Nisar, J

ARSHAD HASSAN SALIK‑‑‑Petitioner

versus

IZHAR AHMAD‑‑‑Respondent

Civil Revision No. 1021 of 2000, decided on 8th June, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, Rr. 2, 3 & S.115‑‑‑Suit for recovers, of amount on basis of pronote‑‑Application for leave to appear arid defend tile suit‑‑‑Application for leave to appear and defend the suit was allowed by Trial Court subject to condition of furnishing of Bank guarantee to the tune of suit amountBorrower had challenged order of imposing condition of finishing of Batik guarantee‑‑Validity‑‑‑Order imposing condition of furnishing Batik guarantee was discretionary order and borrower had failed to establish that the discretion had been exercised by the Court arbitrarily, whimsically or against settled judicial criteria, calling for interference‑‑‑Trial Court, in circumstances, had rightly exercised its discretion.

1997 SCMR 943; 1984 SCMR 568 and 1988 MLD 924 ref.

YLR 2000 LAHORE HIGH COURT LAHORE 2876 #

2000 Y L R 2876

[Lahore]

Before Khawaja Muhammad Sharif, J

TARIQ MAHMUD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 510 of 1998, heard on 28th July, 2000.

Penal Code (XLV of 1860)---

----S.302(b)311---Criminal Procedure Code (V of 1898), S.345(6)---Compounding of offence---Effect---Legal heirs of the deceased having compounded the offence during the trial, no conviction either under S. 302(6), P. P. C. or under S. 311, P. P. C. could be recorded against the accused---Case of accused was covered by subsection (6) of S.345, Cr. P. C. ---Conviction and sentence recorded against the accused by the Trial Court were set aside in circumstances---Order of Trial Court to the extent of debarring the accused from inheriting the estate of the deceased was maintained by the High Court.

(Islamic Penal Law Part.II.)written by Abdul Qadir Uda Shaheed , Sunan Ibn-e-Maja, PLD 1992 Pesh. 187; 1992 PCr.LJ 1960; 1993 PCr.LJ 68; PLD 1991 SC 724 and Mst. Beguman and 2 others v. Saroo and another PLD 1964 (W.P.) Lah. 451 ref.

Allah Bakhsh Gondal for Appellant.

Muhammad Hanif Khatana, A.A.-G. with Abdul Qayyum Anjam for the State.

Khalid Naveed Dar . Amicus curiae.

Date of hearing: 28th July, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2881 #

2000 Y L R 2881

[Lahore]

Before Malik Muhammad Qayyum, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

MUHAMMAD ASLAM‑‑‑Respondent

Civil Revision No. 234 of 2000, decided on 15th February, 2000.

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

‑‑‑‑S.13‑‑‑Suit for pre‑emption ‑‑‑Making of Talb‑i‑Muwathibat‑‑‑Suit was concurrently dismissed by Courts below on ground that pre‑emptor had failed to establish that he had made Talb‑i‑Muwathibat immediately on gaining knowledge of the sale ‑‑‑Talb‑iMuwathibat was made by pre‑emptor after two and a half months from the sale of land in dispute‑‑‑Vendor was real sister of pre-emptor and she used to live with pre‑emptor whenever she visited the village and both vendor and pre‑emptor were co‑sharers‑‑Question as to on which date pre‑emptor gained knowledge of sale was one of fact which had been concurrently found against the pre‑emptor by Courts below‑‑‑Concurrent finding of fact of Courts below arrived at after appraisal of evidence on record and on cogent reasons, could not be interfered with by High Court.

Zahid Hussain Khan for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 2882 #

2000 Y L R 2882

[Lahore]

Before Nasim Sikandar, J

Mst. HASEENA and another‑‑‑Petitioners

versus

SENIOR SUPERINTENDENT OF POLICE, DERA GHAZI KHAN and 2 others‑‑‑Respondents

Writ Petition No. 10608 of 1999, decided on 10th February, 2000.

(a) West Pakistan Rules under the Muslim Family Laws Ordinance, 1961‑‑‑

‑‑‑‑R.8‑‑‑Constituiton of Pakistan (1973), Art.11 ‑‑‑Entry in Column No.16 of ‑Nikahnama showing "in lieu of sister of 'bridegroom"‑‑‑Validity‑‑‑Such entry being against Art. II of the Constitution of Pakistan (1973) which had forbidden slavery was 'violative of the basic status of an individual as a human being.

To indicate the name of an individual human being in the Column No. 16 of Nikahnama provided for money or money's worth or property is violative of the basic status of an individual as a human being irrespective of tradition or local custom. The making of such an entry in a document maintained as official record is totally detestable.

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

‑‑‑‑Ss.10 & 19‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.5 ‑‑‑ Constitution of Pakistan (1973), Arts. 11 & 199‑‑‑ Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Complainant in the FLR. Against accused/petitioner had alleged that he (complainant) married his sister with the brother of the accused and her (accused)father had promised to marry his minor daughter/accused with son of the complainant‑‑‑No legal evidence was available on record to show that accused/ petitioner was wife of son of complainant when accused/petitioner had contracted valid marriage with her husband‑‑‑Evidence, however, had proved that son of complainant was already a married person and had two children when accused/petitioner entered into legal marriage with her husband‑‑Registration of F.LR. against accused/ petitioner and putting her on trial having been found to be mala fide and illegal per se said F.I.R.was ordered to be quashed.

Malik Muhammad Saleem for Petitioners.

Akhtar Masood Ahmad for Respondents Nos. 1 and 2.

Ch. Anwar‑ul‑Haq for Respondent No.3.

Date of hearing: 10th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2884 #

2000 Y L R 2884

[Lahore]

Before Amir Alam Khan, J

MUHAMMAD SARWAR‑‑‑Petitioner

versus

MUHAMMAD MAHMOOD ANWAR and others‑‑‑Respondents

Writ Petition No. 13289 of 1999, decided on 6th March, 2000.

Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S.25‑‑‑Petition for custody of child‑‑Maintainability‑‑‑Welfare of minor is the basic theme of the Guardians and Wards Act, 1890‑‑‑Girl whose custody had been sought by father was studying in the College in 2nd year and was of nineteen years of age, had attained the age of puberty and had become major and was not minor‑‑‑Petition filed by father under S.25, Guardians and Wards Act, 1890 for custody of girl, was not maintainable‑‑‑Evidence on record had proved that father had not maintained the girl since the time she lived apart from the father‑‑‑Father who had not cared to maintain his daughter, was not entitled to her custody in circumstances‑‑‑Central theme of Guardians and Wards Act, 1890 was welfare of the minor.

Zahid Hussain Khan for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 2886 #

2000 Y L R 2886

[Lahore]

Before Falak Sher, C J

MUHAMMAD SIDDIQUE---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 4134/B of 2000, decided on 7th August, 2000.

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

----S.497---Penal Code (XLV of 1860), S.302/ 324/ 337-BI 148/ 149---Bail---Vicarious liability---Accused was alleged to have inflicted a club blow on the head of the deceasecraeove his i-eff ear andon rite upper arm of the complainant's sister---No blunt weapon injury was found in the person of the deceased and the ocular account of occurrence in this regard was contradicted by the medical evidence---Blunt weapon injury sustained by the sister of the complainant attributed to accused being on non-vital part of her body did not attract the prohibition contemplated by S. 497(1), Cr. P. C. --Involvement of accused on account of vicarious liability was amenable to further inquiry---Accused had already served nearly one year's physical internment---Trial of accused had not commenced so far--Bail was allowed to accused in circumstances.

Muhammad Akram Javed for Petitioner.

Maqbool Ahmad Qureshi for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2887 #

2000 Y L R 2887

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petitions Nos. 251 and 1531 of 1986, heard on 2nd March, 2000.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 10 & 30‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Allotment of land‑‑‑Land allotted to petitioners were cancelled simply stating that they were not entitled to the allotment‑‑Nothing was on record to show any prohibition for the allotment‑‑‑Allotment in favour of petitioners having been cancelled by Authorities without any cogent reasons, High Court set aside cancellation order and remanded case to be decided afresh after providing opportunity to petitioners to lead evidence in proof of their entitlement.

Syed Murtaza ‑Ali Zaidi for Petitioner.

Akhtar Masood Ahmad for Respondents.

Date of hearing: 2nd March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2888 #

2000 Y L R 2888

[Lahore]

Before Syed Jamshed Ali, J

Messrs MUHAMMAD SALEEM, MUHAMMAD SIDDIQUE & CO. (REGD.)‑‑‑Petitioner

versus

ABDUL HAKEEM through Legal Heirs and 2 others‑‑‑Respondents

Civil Revision No. 1720/1) of 1986, heard on 29th June, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 163‑‑‑Mutation‑‑‑Review‑‑‑Limitation‑‑Failure to seek condonation of delay‑‑Effect‑‑‑Application for review was filed beyond the period of 90 days as prescribed in S.163 of West Pakistan Land Revenue Act, 1967, and condonation of delay was not sought‑‑‑Deputy Commissioner allowed the review of the mutation‑‑-Validity‑‑‑Order of review having been passed without adverting to the question of limitation, was mechanical in nature and passed without application of mind‑‑‑Such proceedings were incompetent.

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

‑‑‑‑O.XXIIl, R.I‑‑‑Defendant having withdrawn his suit, could not agitate the same question in the suit filed by plaintiff.

‑‑‑‑Para. 25‑‑‑Principle of pari delicto‑‑Applicability‑‑‑Where entire holding was purchased by the vendee and he was recorded as, owner in the Revenue Record, principle of pari delicto was not applicable.

Waris Ali v. Sher Muhammad and others 1988 CLC 1166 and Muhammad Ishaq v. Member,. Board of Revenue, Punjab, Lahore and 18 others 1994 MLD 2254 ref.

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

‑‑‑‑O.I, R.10 & S.115‑‑‑Revision‑‑‑Necessary party to proceedings‑‑‑Principle of lis pendens‑‑‑Applicability‑‑‑Land was purchased by respondent after the suit was dismissed by the Trial Court and the respondent was impleaded before High Court on the application of the petitioner ‑‑‑Validity‑‑ Transaction being hit by the rule of lis pendens respondent was not a proper party in the revision proceedings.

(e) Sale‑‑‑

‑‑‑‑ Vendor having sold his land could not say that the sale was void so as to get back the land‑‑‑He who seeks equity must do equity.

Noor. Samad v. Muhammad Aslam and 16 others 1986 MLD 431 ref.

West Pakistan Land Deforms Regulation, 1959 (M.L.R. 64)‑‑‑

‑‑‑‑Para. 27‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Land Commission, jurisdiction of‑‑‑Assailing order of Land Commission before Civil Court‑‑‑Scope‑‑‑Bar of jurisdiction contemplated by para. 27 of the Regulation could not be applied to the cases falling within the jurisdiction of the Land Commission‑‑‑Where Tribunal having exceeded its jurisdiction, Civil Court could validly examine order of the Tribunal.

(g) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑West Pakistan Land Reforms Regulation, 1959 (M.L.R. 64), paras. 25 & 27‑‑‑Law Reforms Regulation, 1972 (M.L.R. 115), para. 24‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.163‑‑‑Revision‑‑Concurrent findings of fact by Courts below‑‑‑Petitioner had purchased entire holding of the respondent and mutations were also sanctioned in his favour‑‑‑Mutations were reviewed by the Revenue Authorities after the period of limitation and same were cancelled‑‑‑Order of the Revenue Authorities were assailed before Civil Court where the suit was concurrently dismissed by both the Courts below‑‑‑Validity‑‑‑Both the Courts below were persuaded to dismiss the suit of the petitioner on the ground that the jurisdiction of the Civil Court was barred and the transaction was void ignoring from consideration that the Revenue Authorities had no jurisdiction to examine the mutations‑‑‑Concurrent findings of both the Courts below were set aside in circumstances.

Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu Khan and 3 others 1973 ,SCMR 62; Controller of Patents and Designs, Karachi and others v. Muhammad Quadir Hussain 1995 SCMR 529; Government of Sindh through Secretary, Home Department, Karachi and another v. Abbas Ahmad, Advocate and 2 others 1994 SCMR 923; Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another PLD 1974 SC 193; Abdul Rauf and others v. Abdul Hanud Khan and others PLD 1965 SC 671; Saifuddin and another v. Member, Federal Land Commission and 19 others 1984 CLC 737; Sher Zaman v. Muhammad Ishaq and others PLD 1985 SC 144; Zulfiqar Ali Khan v. Additional Chief Land Commissioner, Punjab and 2 others PLD 1975 Lah. 158; Muhammad Hussain and others v. Shahab Din and others NLR 1981 Rev. 138; Mst. Kaniz Begum v. Mst. Sughra Begum and others 2000 YLR 857; Noor Samad v. Muhammad Aslam and 16 others 1986 MLD 431; Sultan Azam Shah and 9 others v. Member, Board of Revenue Punjab and 6 others 1988 CLC 165; Meraj Din v. Mst. Sarwar Jan and others PLD 1981 Lah.659; Mehtab Din and 4 others v. Piran Ditta through his Legal Representatives and others 1987 CLC 1061; Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 and, Rulia and others v. Fateh Muhammad and others 1989 CLC 1705 ref.

Syed Zain‑ul‑Abidin for Petitioner.

Nemo for Respondents Nos. l and 2.

Chaudhry Muhammad Bashir for Respondent No. 3.

Date of hearing: 29th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2903 #

2000 Y L R 2903

[Lahore]

Before Mian Saqib Nisar, J

RAB NAWAZ‑ Petitioner

versus

SULTAN and others‑ Respondents

Civil Revision No. 672 of 1987, heard on 3rd December, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.8‑‑‑Transfer of Property Act (IV of 1882), S.53‑A‑‑‑Suit for possession of house‑‑‑Part performance of agreement on sale‑‑‑Plaintiffs had claimed that they had purchased house in question front vendor through registered sale deed‑‑‑Defendants had resisted suit on the ground that vendor to whom house in question was transferred by Settlement Department, through registered agreement of sale and also through mortgage‑deed had agreed to transfer house in question to them with stipulation that when Permanent Transfer Deed would be issued to vendor by Settlement Department in respect of the house, same would be transferred to defendants‑‑‑Defendants had claimed that they were in possession of the house in part performance of agreement to sell and also as mortgagees‑‑‑Trial Court decreed suit, but Appellate Court set aside judgment and decree of Trial Court holding that as sale deed in favour of plaintiffs was a registered document, agreement to sell by defendants being unregistered instrument could not have preference‑‑‑Protection of S.53‑A, Transfer of Property Act, 1882 would be dependent on four factors, viz., that contract in writing signed by transferor in respect of property existed that froth said writing, transfer could be ascertained with reasonable certainty; that in part performance of contract, transferee had taken possession of property or an v part thereof.‑ and that transferee had performed or was willing to perform his part of contract‑‑If such conditions were satisfied, then even if contract was not registered, transferor or any person claiming under hint could not 'enforce any right in respect of property of which transferee had taken possession except such right which a transferor was entitled to enforce by virtue of contract‑‑‑Mere non-registeration of agreement to sell would not deprive transferee of the benefits which he would be entitled to protect by virtue of S.53‑A of Transfer of Property Act, 1882‑‑Appellate Court below did not consider the issue with regard to protection of defendant under S. 53‑A, Transfer of Property Act, 1882 and decreed suit simply on basis of comparison of signatures on registered document of plaintiffs with unregistered agreement to sell by the defendants which was not in accordance with law‑‑‑Appellate Court was required to have discussed all issues separately and on basis of evidence on record should have seen if defendants could avail protection of S.53‑A of Transfer of Property Act, 1882‑‑‑High Court, set aside judgment of Appellate Court and remanded case to be decided afresh in accordance with law.

Naib‑Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others 1992 SCMR 1265; Hikmat Khan v. Shamsur Rehman 1993 SCMR 428; 1993 SCMR 837; Pordil Khan v. Safaid Gul and others PLD 1965 (W.P.) Pesh. 259 and Mst. Roshan Jan and 3 others v. Muhammad Latif and another PLD 1987 SC (AJ&K) 93 ref.

Noor Muhammad Awan Malik for Petitioner.

Zahid Hussain Khan for Respondents.

Date of hearing : 3rd December, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2906 #

2000 Y L R 2906

[Lahore]

Before Riaz Kayani, J

GHULAM HAIDER ‑‑‑Petitioner

versus

MUHAMMAD IRSHAD‑‑‑Respondent

Criminal Miscellaneous No. 7025‑B of 1998, decided on 14th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/16‑‑‑Cancellation of bail‑‑‑Alleged abductee had asserted that she .had left her house of her own and that the accused had not committed Zina with tier‑‑‑Such assertion was sufficient to entitle the accused to grant of bail‑‑‑Sessions Court had rightly admitted the accused to bail in circumstances‑‑Petition for cancellation of bail had no merit and the same was dismissed accordingly.

Zahid Hussain Khan for Petitioner.

Naveed Shehryar Khan for Respondents.

S.A. Irshad for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2907 #

2000 Y L R 2907

[Lahore]

Before Mian Saqib Nisar, J

Maulvi MUHAMMAD SIDDIQUE‑‑‑Appellant

versus

Haji MUHAMMAD AKBAR‑‑‑Respondent

Second Appeal from Order No. 255 of 1999, heard on 5th May, 2000.

West Pakistan Urban Bent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(3) (ii) & 15‑‑‑Bona fide personal need of landlord‑‑‑Application was rejected by Bent Controller on ground that landlord had got vacated another shop and rented out the salve instead of occupying for his personal use‑‑‑Order of Rent Controller was set aside by Appellate Court holding that landlord had a prerogative to choose any of his rented shops for his business and that tenant had no right to suggest suitability of landlord ‑‑‑Validity‑‑‑Landlord had a choice in case where distinct properties were in occupation of different tenants‑‑‑Tenant against whom ejectment was sought, could not plead that ejectment should have been filed against some other property/tenement which property would be more suitable to requirements of landlord‑‑‑Landlord had the possession of a shop in the same market shortly before filing of ejectment application against the tenant and rented out that vacated shop ,to another tenant without establishing reason as to why he did not occupy that shop‑‑‑Landlord, in circumstances, was not able to make out a case for bona fide personal requirement in respect of shop in dispute.

Abdul Majeed Khan for Appellant.

Zahid Hussain Khan for Respondent.

Date of hearing: 5th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2909 #

2000 Y L R 2909

[Lahore]

Before Zafar Pasha Chaudhry, J

Mst. ASMA BIBI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 521 of 1999, decided on 16th February, 2000. .

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 315 & 316‑‑‑Appreciation of evidence‑‑‑Credible evidence supported by medical evidence and even defence evidence itself had proved that deceased died as a result of receipt of brick bat injury inflicted by the accused‑‑‑Occurrence had taken place due to altercation between accused and deceased as during course of said altercation a blow with brick bat was caused at the top of head of deceased, as a result of which deceased fell down, became unconscious and then succumbed to the injury‑‑‑Fact of case fully attracted S. 315, P. P. C. and conviction of accused could not be recorded under S.302, P.P.C. in circumstances‑‑‑Conviction of accused recorded under S. 302, P. P. C. was set aside and same was altered under S.316, P.P.C.‑‑‑Accused having a suckling baby with her and she having not acted in any cruel or brutal manner, imprisonment for a period of seven years would meet ends of justice‑‑‑Accused was sentenced accordingly alongwith payment of amount of Diyat to the legal heirs of the deceased.

Syed Tayyab Mahmood Jafri for Appellant.

Abdul Rashid Monan for the State, Date of hearing: 16th February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2921 #

2000 Y L R 2921

[Lahore]

Before Malik Muhammad Qayyum, J

MAHMOOD A. SHEIKH through Attorney‑‑‑Petitioner

versus

THE FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Federal Secretariat, Islamabad and 4 others‑‑‑Respondents

Writ Petition No. 11132 of 2000, decided on 28th July, 2000.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18 & 31‑A‑‑‑Finance Act (IV of 1999), S. 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Import of goods‑‑‑Exemption from payment of customs duty‑‑‑Entitlement‑‑‑Goods imported under "Non‑Repartriable Investment Scheme" were covered by Table III of S.18(I), Finance Act, 1999, which provided zero per cent duty on such goods‑‑‑Importer claimed exemption from payment of customs duty on said goods and filed Bill of Entry therefor‑‑‑Government had issued a notification whereby Table III was amended and entries relating to goods imported by the importer were omitted with the result that customs duties and other taxes became payable on the import of the goods‑‑Provisions of S.31‑A, Customs Act, 1969 had provided for payment of duty notwithstanding any vested rights which could have created in favour of any person on account of opening the Letter of Credit or having entered into firm contract‑‑‑Provisions of S.31‑A of Customs Act, 1969 would apply notwithstanding anything contained in any other law for the time being in force and had provided for payment of duty despite subsequent withdrawal of any notification granting the exemption‑‑‑Notification had destroyed vested right which had accrued to a person on account of his entry into a contract or opening Letter of Credit‑‑‑Goods imported though were not liable to pay customs duty when importer entered into contract, but exemption having been withdrawn before goods could be cleared, importer could not avail of the exemption.

Imtiaz Rashid Siddiqui for Petitioner.

Sh. Shahid Waheed for Respondents.

Date of hearing: 10th July, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2927 #

2000 Y L R 2927

[Lahore]

Before Nasim Sikandar, J

MUHAMMAD NAWAZ---Appellant

versus

ABDUL SATTAR---Respondent

Regular First Appeal No. 50 of 1987, decided on 27th October, 1999.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for recovery of amount on basis of pronote-- Non-attestation of pronote --- Defendant disputing his signatures on the pronote --- Suit was dismissed on the ground that plaintiff had failed to produce two attesting witnesses to support the pronote and that production of only one attesting witness did not sufficiently ensure requirement of Arts. 17(2) & 79 of Qanun-e-Shahadat, 1984 especially when defendant had disputed his signature on the pronote --- Plaintiff had contended that pronote was not required by law to be attested by two witnesses and production of said two attesting witnesses before Court was also not necessary---Contention of plaintiff was repelled because after enforcement of Qanun-e-Shahadat, 1984 all instruments pertaining to financial or future obligations were required to be attested by at least two witnesses---Plaintiff, in circumstances, was not correct in saying that a pronote was not required to be attested by two witnesses.

Dil Murad and others v. Akbar Shah 1986 SCMR 306 and Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367 ref.

Mirza Manzoor Ahmad for Appellant.

Azeem-ul-Haq Pirzada for Respondent.

Date of hearing 28th September, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2928 #

2000 Y L R 2928

[Lahore]

Before Mian Nazir Akhtar, GHULAM RAZA ABADI---Petitioner

versus

THE STATE--Respondent

Criminal Miscellaneous No. 1863-B of 2000, decided on 20th April, 2000.

Criminal Procedure Code (V of 1898)

----S.497---Penal Code (XLV of 1860), S.409---Bail---Inquiry in the matter had recently been entrusted to the Anti-Corruption Establishment---F. I. R. already registered with the local police would be treated as a written complaint by the Anti-Corruption Establishment and after proper inquiry a decision would be taken by the Competent Authority as to whether a criminal case should be registered with the Anti-Corruption Establishment or not---No legal warrant to keep the accused behind the bars at such stage existed and accused deserved a fair opportunity to be associated with the inquiry to prove his innocence---Accused 'as released on bail in circumstances.

Dil Murad and others v. Akbar Shah 1986 SCMR 306 and Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367 ref.

Zahid Hussain Khan for Petitioner.

Khurshid Iqbal for the State.

2000 Y L R 2934

[Lahore]

Before Iftikhar Hussain Chaudhry, J

QADEER AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2981‑B of 2000, decided on 13th June, 2000.

Criminal. Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324/109/34‑‑‑Bail‑‑‑Injuries suffered by the injured prosecution witness which were specifically ascribed to the accused fell according to medical report within the ambit of 5.337‑L(1) & (2), P.P.C. which entailed a maximum sentence of seven years' R.I. ‑‑‑Case of accused, therefore, was not hit by the prohibitory clause of S.497(1), Cr.P.C.‑‑Accused was released on bail in circumstances.

Hasnat Ahmad Khan for Petitioner.

M. Jahangir Wahla, A.A.‑G. for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2935 #

2000 Y L R 2935

[Lahore]

Before Iftikhar Hussain Chaudhry and Mian Muhammad Najum‑uz‑Zaman, JJ

MUHAMMAD FAROOQ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 6023/B of 1999, decided on 11th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11‑‑‑Bail, grant of‑‑‑Accused had claimed the abductee to be his legally‑wedded wife relying upon the Nikahnarna as well as the suit of jactitation of marriage filed by her‑‑‑Case of accused, in circumstances, required further inquiry entitling him to the concession of bail‑‑‑Accused was admitted to bail accordingly.

Ch. Anwar‑ul‑Haq Pannu for Petitioner.

S.D. Qureshi for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2936 #

2000 Y L R 2936

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ALI and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No. 2861-B of 2000, decided on 28th June, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Bail---Rule of consistency---Case of accused was similar to that of co-accused who had already been allowed bail by High Court in the case---Accused on the law of consistency was admitted to bail accordingly.

Sardar Shaukat Ali for Petitioner.

Rana Bashir Ahmad Qureshi for the State,

YLR 2000 LAHORE HIGH COURT LAHORE 2937 #

2000 Y L R 2937

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASGHAR and others‑‑‑Petitioners

versus

MUHAMMAD DIN and others‑‑‑Respondents

Civil Revision No. 421 of 1996, decided on 27th July, 1999.

(a) Muhammadan Law‑‑‑

‑‑‑‑Will‑‑‑Validity‑‑‑Will under Muslim law could not be made validly in favour of an heir unless and until other heirs consented to same both at time of making the will and also after death of testator.

(b) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Gift made by donor during Marzul Maut‑‑‑Validity‑‑‑Concurrent findings of fact recorded by Courts supported by evidence on record and not suffering from any misreading or non‑reading of evidence on record showing that testator was suffering from Mazrul Maut (cancer of lungs), could not be interfered with.

S.M. Masood for Petitioners.

Mian Waheed Akhtar for Respondent No. l

Nemo for the Remaining Respondents.

Date of hearing: 27th July, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2939 #

2000 Y L R 2939

[Lahore]

Before Tanvir Ahmad Khan, J

Messrs TARIQ FURNITURES‑‑‑Petitioner

versus

NATIONAL BANK OF PAKISTAN and another‑‑‑Respondents

Writ Petition No. 6427 of 1999, decided on 20th April, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.IX, R.7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Ex parte order‑‑‑Setting aside of‑‑‑Petitioner, having failed to appear on adjourned date of hearing ex parte order was passed against him‑‑‑Evidence on record had established that petitioner could not attend proceedings on adjourned date of hearing under some misconception as he had wrongly incorporated different date of hearing in his diary‑‑‑Validity‑‑‑Cases should be decided on merits and technical knock‑out be sparingly resorted to‑‑‑Interest of justice demanded that an opportunity of hearing should be accorded to the petitioner to put up his case‑‑‑High Court accepting Constitutional petition, set aside ex parse order passed against the petitioner and remanded case to be decided afresh after hearing parties.

Nadeem Saeed for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 2949 #

2000 Y L R 2949

[Lahore]

Before Syed Jamshed Ali, J

ABDUL REHMAN and another---Appellants

versus

FATEH MUHAMMAD and others---Respondents

Regular Second Appeal No. 648 of 1969, decided on 11th June, 1994.

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

----Ss. 4, 8 & 21--- Thal Development Act (XV of 1949), Ss. 21, 30 & 36---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.4 & 16 --- Pre-emption suit---Exemption from pre-emption---Suit land had already been acquired under Thal Development Act, 1949, and provisions of said Act had made it clear that Thal Development Authority for which the land was acquired was an agent of Punjab Government which managed land acquired under the said Act on behalf of Punjab Government---.When suit land stood acquired and compensation thereof was paid, its title vested in Punjab Government and was thus, exempt from pre-emption.

Government of Punjab and another v. Jiwan and others 1988 SCMR 76 and Thal Development v. Muhammada and others 1994 Law Notes (Multan Bench) 1091 ref.

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

----Ss.4, 8 & 21---Suit of pre-emption-- Superior rights of pre-emptor ---Exemption from pre-emption ---Pre-emptor must have superior right of pre-emption at three stages viz. date of sale; date of suit; and date of decree---If during pendency of suit right of pre-emption was taken away by virtue of Notification under S.8(2) of Punjab Pre emption Act, 1913, suit for pre-emption must fail.

----S.4---Right of pre-emption ---Nature--Vendees of suit land had contended that the land having been acquired in 1951, vendor was only entitled to right of return and same could not be pre-empted --- Contention was repelled because on date of sale of land, vendor did not stand denuded of his title in the land---Right of pre-emption being right of substitution, vendor would be entitled to whatever rights were transferred by vendor to vendee in the land the subject-matter of- suit for pre-emption.

Athar Rehman Khan, Muhammad Khalid Alvi and Malik Muhammad Hussain for Appellants.

Ch. Abdul Ghani and Mumtaz Mustafa for Respondents.

Date of hearing: 4th June, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 2953 #

URDU PARAGRAPGH

2000 Y L R 2953

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. FATIMA BIBI‑‑‑Petitioner

versus

Mst. NASIM AKHTAR and others ‑‑‑ Respondents

Regular Second Appeal No. 31 and Civil Revision No. 1333 of 2000, heard on 7th

June, 2000

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts: 17 & 79‑‑‑Writer of document as attesting witness‑‑‑Writer/scriber of a document was as good a witness as anybody else if he had signed the document as a witness‑‑‑No legal inherent incompetency exists in the writer of a document to be an attesting witness to it.

Nazir Ahmed's case 1993 CLC 257; Sana Ullah and another's case PLD 1996 SC 256; Abdul Khaliq's case PLD 1996 Lah. 367; Muhammad Yaqoob's case PLD 1995 Lah. 395; Abdul Khaliq's case PLD 1996 Lah. 37; Saifullah Khan's case 1997 SCMR 1210; Burdett v. Spilsbury (1842) 10 CI & F 340; Wright v. Wakeford (1912) 4 Taunt; Shamu Patter v. Abdul Kadir Rowtham 16 IC 250) (O.C.); Ram Samujh Singh v. Mainath Quer AIR 1925 Oudh 737; Nirode Mohan Roy's case AIR 1950 Cal. 401; Muhammad Yaqub's case AIR 1933 Sindh 257; Raja Ram's case AIR 1926 Oudh 209; Yakub Khan Daimkhan Serguro's case AIR 1928 Bom. 267 and Adam Jee Construction Companies Ltd:'s case 1999 MLD 2202 ref.

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

‑‑‑‑S:12‑‑‑Suit for specific performance of agreement of side ‑--‑Plaintiff had to prove his case independently and he could tot get benefit of shortcomings of defendant.

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Findings recorded by Court of competent jurisdiction could not be interfered with by High Court, in exercise of its revisional jurisdiction under S.115, C. P.C., unless such findings suffered from jurisdictional defect, illegality or material irregularity.

Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 ref.

Haji Dildar Khan for Petitioner.

Shahid Karim for Respondents.

Date of hearing: 7th June, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2958 #

2000 Y L R 2958

[Lahore]

Before Muhammad Zafar Yasin and Nazir Ahmad Siddiqui, JJ

MUHAMMAD ALI and others‑ Petitioners

versus

CHIEF LAND COMMISSIONER and another‑‑‑Respondents

Writ Petition No. 184‑R of 1982/BWP, decided on 18th February, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 42‑‑‑Mutation‑‑‑Cancellation‑‑‑Forum for such cancellation‑‑‑Where mutation was attested by Assistant Collector Grade‑11 in exercise of his powers under S. 42, West Pakistan Land Revenue Act, 1967, and the same was attested on the basis of a decree passed by the Court of competent jurisdiction, the forum available for cancellation of such mutation was Collector/Commissioner and Member, Board of Revenue respectively.

(b) Punjab Land Reforms Rules, 1972‑‑‑

‑‑‑‑R.13‑‑‑Limitation. Act (IX of 1908), S.5‑‑ Constitution of Pakistan (1973), Art. 199Constitutional petition‑‑‑Mutation, cancellation, of ‑‑‑Condonation of delay‑‑ Time‑barred revision before Chief Land Commissioner‑‑‑Disputed mutation was attested by Assistant Collector Grade‑11, on the basis of decree passed by Court of competent jurisdiction‑‑‑Respondent assailed the mutation before Chief Land Commissioner in exercise of revisional jurisdiction and the same was cancelled‑‑‑Validity‑‑‑Power of revision under R.13 of Punjab Land Reforms Rules, 1972 was available to the Chief Land Commissioner on application of aggrieved person or even suo motu where the order under challenge, was passed by Land Commissioner, Deputy Land Commissioner or the Legal Advisor‑‑‑Where Authority exercised revisional jurisdiction on application of aggrieved person, such exercise of power could not be said to have been exercised suo motu‑‑‑No order having been passed by any of such Authorities; order of cancellation of mutation ‑by the Chief Land Commissioner was not passed in exercise of suo motu power‑‑‑Revision filed by respondent was barred by time and the Chief Land Commissioner had no power under S.5 of Limitation Act, 1908, to condone the delay‑‑‑Revision, in circumstances, was liable to be dismissed‑‑‑Order passed by the Chief Land Commissioner, therefore, was illegal, void and without lawful authority.

Sardar Ashiq Muhammad Khan Mazari v. Chairman; Federal Land Commission and others PLD 1977 Lah. 461 ref.

M. M Bhatti and M. Rahim ‑for Petitioners.

Ch. Abdus Sattar for Respondents.

Dates of hearing 1st and 2nd February, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2962 #

2000 Y L R 2962

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HANIF‑‑‑Appellant

versus

MUHAMMAD SHAFIQUE‑‑‑Respondent

Regular First Appeal No. 44 of 1999, heard on 20th January, 2000.

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

‑‑‑‑O.XXXVII, R.1 & S.96‑‑‑Suit for recovery of money on the basis of pronote‑‑‑Defendant receieved a sum of Rs.1,50,000 as advance payment for arranging visa for son of the plaintiff‑‑‑Defendant executed a pronote in favour of the plaintiff in lieu of the amount received‑‑‑Defendant having failed to arrange said visa, plaintiff demanded his money back which the defendant denied to have ever received from him and also denied executing any pronote in his favour‑‑‑Sufficient evidence was available on record to prove the execution of pronote and there was nothing to rebut the same‑‑‑Trial Court decreed the suit in favour of the plaintiff ‑‑‑Validity‑‑ Judgment and decree of the Trial Court was in accord with the evidence on record and the same did not suffer from misreading or non reading of evidence.

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

‑‑‑‑O.X111, R.4‑‑‑Document admitted in evidence without objection‑‑‑Such document was not allowed to be objected to by the High Court at appellate stage.

Ch. Habibullah Nihang for Appellant.

Ch. Noor Hussain Khan for Respondent.

Date of hearing: 20th January, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 2970 #

2000 Y L R 2970

[Lahore]

Before Nazir Ahmad S.Siddiqui, J

RASOOL BAKHSH---Petitioner

versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous No. 971-Q of 1999/BWP, decided on 10th February, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 173---Penal Code (XLV of 1860), S.395/397/450/337-A(iii) --- Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Quashing of order of discharge of accused by Magistrate--Magistrate had not applied his mind to the facts of the case and had simply endorsed the finding of the Investigating Officer---Such orders must be speaking ones to show that the Magistrate had acted in a judicious manner--Impugned order which suffered from a patent illegality in such context was quashed accordingly.

M, Abdul Rasheed Rashad for Petitioner.

Saleem Nawaz Abbasi, Asstt. A.-G. for Respondents.

YLR 2000 LAHORE HIGH COURT LAHORE 2971 #

2000 Y L R 2971

[Lahore]

Before Asif Saeed Khan Khosa and Nazir Ahmad Siddiqui, JJ

MUHAMMAD TARIQ and others‑‑‑Appellants

versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and others‑‑‑Respondents

Intra‑Court Appeal No.2/BWP, decided on 2nd March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.394‑‑‑Extension of benefit of Government remissions to accused‑‑‑Benefit of the remissions allowed by the Government to the prisoners had been declined to accused because the case against them was one of dacoity which category had been expressly excluded for the purpose of the said remissions‑‑‑Accused were never convicted for an offence of dacoity and they had been in fact convicted under S. 394, P.P.C. which pertained to voluntarily causing hurt in committing robbery‑‑‑Offences of robbery and dacoity were quite distinct from each other, carrying different sentences and having different constituting ingredients‑‑‑Offence of dacoity being a graver offence than the offence of robbery appeared to have been excluded by the Government for the purpose of the aforesaid remissions, but not the offence of robbery‑‑‑Impugned order was consequently set aside and the benefit of the said remissions was extended to the accused.

Ch. Abdul Ghaffar for Appellants.

Saleem Nawaz Abbasi, Asstt. A.‑G. for Respondents.

Date of hearing: 2nd March, 2000,

YLR 2000 LAHORE HIGH COURT LAHORE 2972 #

2000 Y L R 2972

[Lahore]

Before Falak Sher, J

NADEEM AKHTAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 372 of 1992, decided on 10th November, 1998.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Plea of accused being of unsound mind was an afterthought and the defence evidence did not inspire confidence‑‑‑Broad daylight occurrence had been promptly reported at the Police Station‑‑‑Eye‑witnesses including the complainant had no motive to falsely implicate the accused as a substituted sole culprit and their presence at the relevant time on the venue of occurrence was natural‑‑‑Ocular testimony had remained unimpeached and confidence inspiring which was corroborated even by medical evidence‑‑‑Conviction and sentence of accused were upheld' in circumstances.

Shah Ahmad Khan Baloch for Appellant.

Syed Ali Raza for the State, M.A. Zafar for the Complainant, Date of hearing 10th November, 1998,

YLR 2000 LAHORE HIGH COURT LAHORE 2995 #

2000 Y L R 2995

[Lahore]

Before Iftikhar Hussain Chaudhary, ABDUL SHAKOOR and 6 others‑‑‑Petitioners

versus

STATION HOUSE OFFICER, POLICE STATION CHUNIAN, DISTRICT KASUR, and others‑‑‑Respondents

Writ Petition No. 20580 of, 1998, decided on 22nd April, 2000.

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

‑‑‑‑S.10/16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Allegations made against the accused in the F.I.R. were found false during investigation‑‑‑Complainant had not appeared before any police functionary in order to substantiate her case against the accused and she appeared to have got the case registered to achieve certain nefarious ends‑‑‑Impugned FI.R. was consequently declared to have been registered without lawful authority and to be of no legal effect‑‑Constitutional petition was accepted accordingly.

Hasnaat Ahmad Khan for Petitioners.

M. Aslam Malik for the State.

YLR 2000 LAHORE HIGH COURT LAHORE 2996 #

2000 Y L R 2996

[Lahore]

Before Asif Saeed Khan Khosa, J

BASHIR AHMAD alias SHARI ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1601/13 of 2000, decided on 11th April, 2000.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.45713801392 --- Bail --- Accused was not nominated in the F.I.R.---Complainant had implicated the accused for the first time in the case in his supplementary statement made after twenty months of the occurrence---No identification parade had been held in the case so as to positively identify and connect the accused with the offence---Recovery of a cash of Rs. 1,200 from the accused during investigation did not, prima facie, connect him with the stolen property---Accused was in judicial lock-up for the last four months and his physical custody in jail was not likely to serve any beneficial purpose at such stage-- Case against accused called for further inquiry into his guilt within the purview of S. 497(2), Cr. P. C. ---Accused was allowed bail in circumstances.

Ch. Anwarul Haq Pannu for Petitioner.

Miss Tasneem Amin for the State

YLR 2000 LAHORE HIGH COURT LAHORE 2997 #

2000 Y L R 2997

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif JJ

SONA‑‑‑Appellant

versus

THE STATE‑ Respondent

Criminal Appeal No 64 and Murder Reference No. 12 of 1997, decided on 6th May, 1999.

Penal Code (XLV of 1860)‑.

‑‑‑‑Ss. 302 (b) & 302 (c)‑‑‑Appreciation of evidence‑‑‑Complainant party as well as accused party had not approached the Court with clean hands and both of them had suppressed their roles played during the occurrence‑‑‑Prosecution had suppressed the fire‑arm injury sustained by the accused who was admittedly in an injured condition when arrested‑‑‑First version of the accused before the Investigating Officer also was that he had received the said injury at the time of occurrence‑‑‑Accused, although, had not specifically taken the plea of self‑defence either during the cross‑examination or in his statement under S. 342,. Cr.P.C. yet the same was spelt out from the record‑‑‑Accused, in circumstances, had exceeded the right of self-defence‑‑‑Conviction of accused was consequently converted from S.302(b), P. P. C. to S. 302 (c), P. P. C: and his sentence of death was reduced to. 14 years R.I. in circumstances with the benefit of S.382‑B, Cr. P. C.

Nemo for Appellant.

Riaz Ahmad Chaudhry and Niaz Ahmad Khan, A.A.‑G. for the State.

Date of hearing: 6th May 999.

YLR 2000 LAHORE HIGH COURT LAHORE 3001 #

2000 Y L R 3004

[Lahore]

Before Bashir A. Mujahid, J

RIAZ ASAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1834/B of 1999, decided on 10th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Emigration Ordinance (XVIII of 1979), S.17/22‑‑‑Bail, grant of‑‑‑Accused had been arrested in the case about ten months back‑‑‑Complete or incomplete challan had not yet been submitted in the Court‑‑Abscondence of co‑accused was not a valid ground for non‑submission of incomplete challan against the accused who was behind the bars‑‑‑Allegation of receiving the money from the present complainant was also available during the investigation of the earlier F.I.R.‑‑‑Inquiry in separate application of the complainant by some other Officer was also not a sufficient ground for not inquiring into the matter if the allegations had been made in statement under S.161, Cr. P. C. ‑‑‑Bail could not be withheld as a punishment and the accused could not be kept behind the bars for an indefinite period as an under‑trial prisoner‑‑‑Bail was allowed to accused in circumstances.

Shakeel Hasan Rashidi v. The State 1992 MLD 99; Sher Ahmad v. The State PLD 1993 Pesh. 104; Qazi Ghulam Mustafa v. The State 1987 PCr.LJ 2004 and Sh.Sharif Ahmad v. The State 1995 MLD 1821 ref.

Muhammad Suleman Bhatti for Petitioner.

Ch.Saghir Ahmad, Standing Counsel and Javed Iqbal for the State.

Date of hearing: 10th November, 1999.

YLR 2000 LAHORE HIGH COURT LAHORE 3002 #

2000 Y L R 3002

[Lahore]

Before.Muhammad Akhtar Shabbir, J

ALLAH DITTA Petitioner

versus

THE STATE- Respondent

Criminal Miscellaneous No. 1823/B of 1999, decided on 21st October, 1999.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail---Accused was shown in the F.LR. as empty-handed---No injury had been caused by the accused either to deceased or any witness of the occurrence---Only "Lalkara " was attributed to accused which had made his case one of further inquiry--Accused was behind the bars for the last more than eight months and no more required for investigation---No reasonable grounds, prima facie, were available to believe the accused being guilty of an offence falling within the prohibitory clause of . S.497(1), Cr.P.C.- Accused was admitted to bail in circumstances.

Tariq Muhammad Iqbal for Petitioner

Tahir Haider Wasti, A.A.-G. for the State.

Date of hearing: 21st October 999.

YLR 2000 LAHORE HIGH COURT LAHORE 3004 #

2000 Y L R 3012

[Lahore]

Before Ch. Ijaz Ahmad, J

M. AFZAL KHAN‑‑‑Petitioner

versus

PAKISTAN SPORTS BOARD through Director‑General, Pakistan Sports Board Complex, Aabpara, Islamabad and another‑‑‑Respondents

Writ Petition No.11812 of 2000, decided on 20th June, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Laches‑‑‑Scope‑‑‑Where the petitioner did not approach High Court immediately on arising of the cause of action, petition was dismissed on the principle of laches.

Khiali Khan's case PLD 1997 SC 304; Kh. Muhammad Sharif's case PLD 1988 Lah. 725 and Federation of Pakistan v. Haji Saif Ullah PLD 1989 SC 166 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Contention of the petitioner= was that Sports Association be directed to hold its election through secret ballot, but rules relating to election were not attached with the Constitutional petition ‑‑‑Effect‑‑Constitutional petition was not maintainable in circumstances.

Akhtar Mir's case 1984 SCMR 433 ref.

‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Election of Sports Association‑‑‑Validity‑‑‑Where election schedule had been announced, till the election was finalized, during the intermediate stage the Constitutional petition was not maintainable.

Election Commissioner of Pakistan v. Javed Hashmi PLD 1989 SC 396 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑ Maintainability‑-‑Alternate remedy, availability of‑‑‑Effect‑‑‑Election of Basketball Federation‑‑‑Grievance of the petitioner was that the . election of the Federation would be held through secret ballot‑‑‑Validity‑‑‑Petitioner had the alternate remedy to approach Pakistan Sports Board for redressal of his grievance‑‑‑No mala fides was alleged against the Authorities‑‑‑Petition being not maintainable High Court directed the petitioner to approach Pakistan Sports Board for redressal of his grievance.

Syed Shabbar Raza Rizvi's case PLD 1988 Lah. 501 and Saeed Nawaz's case PLD 1981 Lah. 371 ref.

(e) Mala fides‑‑‑

‑‑‑‑ General allegation of mala fides is not sustainable in the eye of law.

Ahmed Saeed Khan's case PLD 1974 SC 151 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 4‑‑‑Constitutional petition‑‑Rights of individual to be dealt with in accordance with law‑‑‑Duty and obligation of public functionaries are to redress the grievance of citizen as envisaged by Art. 4 of the Constitution.

Zahid Akhtar's case PLD 1995 SC 530 ref.

Muhammad Saeed Ansari for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 3006 #

2000 Y L R 3006

[Lahore]

Before Nasim Sikandar, J

MUHAMMAD MANSHA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 147‑B of 2000, decided on 6th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1), third proviso‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4‑‑‑Bail on ground of statutory delay‑‑Accused was in‑ jail for the last more than one‑year‑‑‑Delay in conclusion of the trial was not attributed by the prosecution to the accused‑‑‑Mere fact, of the challan having been submitted in the Court, by itself, could not disentitle the accused to concession of bail on ground of statutory, delay‑‑Accused was admitted to bail in circumstances.

Akhtar Hussain Shah v. The State 1999 PCr. LJ 225 ref.

Tariq Muhammad Iqbal Chaudhry for Petitioner.

Zawar Hussain Qureshi. for the State.

bate of hearing: 2nd March, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 3012 #

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YLR 2000 LAHORE HIGH COURT LAHORE 3016 #

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YLR 2000 LAHORE HIGH COURT LAHORE 3019 #

2000 Y L R 3019

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD HUSSAIN GORAYA‑‑‑Appellant

versus

MUHAMMAD ANWAR ‑‑‑ Respondent

Regular Second Appeal No.57 of 1998, heard on 12th May, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 117‑‑‑Fact‑‑‑Onus to prove‑‑‑Where a party to a suit raised plea of fact, onus to prove that fact was on the party raising that plea.

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

‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Suit for partition was filed by the plaintiff on the basis of being a co‑sharer in the suit properly‑‑‑Defendant contended that plaintiff had surrendered his share vide a surrendered deed‑‑‑Trial Court dismissed the suit while the appeal filed by the plaintiff was allowed by the Lower Appellate Court‑‑‑Validity‑‑‑Defendant during the trial failed to discharge his onus regarding the execution of surrendered deed in his favour by the plaintiff‑‑‑Where there was no misreading or. non‑reading of the evidence or no other illegality had been shown in the judgment and decree of the Lower Appellate Court, the same was not interfered with in second appeal.

Khawaja Haris Ahmad for Appellant.

Sh. Anwar‑ul‑Haq for Respondent.

Date of hearing: 12th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 3022 #

2000 Y L R 3022

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SULTAN and others‑‑‑Petitioners

versus

NOOR MUHAMMAD ‑‑‑Respondent

Civil Revision No.439/D and Civil Miscellaneous Nos.1. and 2 of 2000, decided ox 6th June, 2000.

(a) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S. 12‑Civil Procedure Code (V of 1908), S.115‑‑‑Specific performance of agreement to sell agricultural land‑‑‑Possession . of suit land was delivered in part performance of the agreement to sell‑‑‑Both the Courts below had concurrently decreed the suit in favour of the plaintiff‑‑‑Defendant denied the execution of agreement in favour of the plaintiff‑‑Nothing was brought out by the defendant in crass‑examination of the marginal witness as well as the scribe of the agreement‑‑Comparison of handwriting and comparison of thumb‑impressions were perfect‑‑Handwriting . Expert was examined as plaintiff's witness‑‑‑Handwriting Expert in support of his report had squarely answered all questions in his cross‑examination‑‑Effect ‑‑‑Where there was no misreading or non‑reading of evidence by the Courts below High Court declined interference.

Mst. Barkat Bibi and others v. Muhammad . Rafique and others 1990 SCMR 28 and Wajid Ali and 2 others v. Board of Revenue, Punjab and 2 others PLD 1982 Lah. 716 ref.

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

‑‑‑‑S. 19‑‑‑Agreement to sell, prior to the conferment of proprietary rights‑‑‑Bar contained in S.19, Colonization of Government Lands (Punjab) Act, 1912‑‑Scope ‑‑‑Where it was mentioned in the agreement that the sale would be completed only when the conveyance had been made in favour of the grantee, bar contained in S.19 of Colonization of Government Lands (Punjab) Act, 1912, was not. applicable.

‑‑‑ O. XX, R. 5 & O. XLI, R. 31‑‑‑Judgment of Lower. Appellate Court‑‑‑Failure to .give issue‑wise findings‑‑‑Effect‑‑‑Where each and every piece of evidence on record. was considered and the Lower Appellate Court had stated reasons for agreeing with the various findings of the Trial Court, it could not be said that all the points raised before the Court had not been decided, simply because issue‑wise findings had not been recorded.

Rana Muhammad. Nazeer Saeed for Appellants.

YLR 2000 LAHORE HIGH COURT LAHORE 3027 #

2000 Y L R 3027

[Lahore]

Before Asif Saeed Khan Khosa, J

MUNAWAR MALIK Petitioner

versus

THE STATE and 3 others‑‑‑Respondents

Writ Petitions Nos.8200 and 9289 of 2000, heard on 27th June, 2000

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

‑‑‑‑S.133‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Removal of nuisance‑‑‑Environmental pollution created by installation of industry‑‑‑Solution offered by Environmental Expert‑‑‑Acceptance by Court‑‑‑Validity‑‑‑Grievance of petitioner that he had not been afforded proper opportunity of hearing before the Magistrate on the formula submitted by Environmental Expert in resolving the dispute was not well‑founded‑‑Even otherwise both the parties had been afforded full opportunity of hearing before the Sessions Court in revision and any complaint in that regard against the Magistrate, thus, stood neutralized‑-Impugned arrangement worked and carved out by the combined efforts of the Environmental Expert, the Magistrate and the Sessions Court was quite just and fair in the circumstances of the case, which had not only ensured peace and tranquillity for one party, but had also ensured continued pursuit of livelihood for the other‑‑‑Constitutional petitions were dismissed accordingly.

(b) Maxim‑‑

‑‑‑‑ "Audi alteram partem "‑‑‑Principles‑‑Availability and utilization of subsequent opportunity of hearing washes away the initial lack of such opportunity before a forum below.

Petitioner in person.

Muhammad Shah Gul for the State.

Zia‑ud‑Din Ansari and Sardar M. S, Tahir for Respondent No.4.

YLR 2000 LAHORE HIGH COURT LAHORE 3035 #

2000 Y L R 3035

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASLAM‑‑‑Appellant

versus

AHMAD HASSAN‑‑‑Respondent

Regular First Appeal No. 177 of 1996, heard on 30th May, 2000.

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

‑‑‑‑O. III, R. 4‑‑‑Pleader acting for any person in any "Court "‑‑‑Scope‑‑‑Pleader, under the provision of O. III, R. 4, C. P. C. cannot act for any person in any Court unless he has been appointed for the purpose by a document in writing signed by the person on whose behalf he intends to act.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 187‑‑‑Agent, appointment of‑‑Authority given to the agent by the principal in writing‑‑‑Scope‑‑‑Extent‑‑‑Law of Agency contained in Chap. X of Contract Act, 1872 does not require that an agent in order to act on behalf of his principal has to be authorised in writing‑‑‑Authority, under 5.187, Contract Act, 1872, may either 6e express or even implied‑‑‑Authority may be given in writing or through words spoken or may even be inferred from the circumstances of the case or the ordinary course of dealings.

‑‑‑‑Ss. 13 & 14‑‑‑Notice of "Talb‑e‑Ishhad "‑‑Failure of pre‑emptor to give such notice within the meaning of S.14, Punjab Pre-emption Act, 1991 on account of his inability to do the needful being a layman‑‑‑Effect.

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

‑‑‑‑S.13‑‑‑Pre‑emption suit‑‑‑Notice of Talb-e‑Ishhad‑‑‑Such notice was sent to the vendee by a counsel on behalf of the pre‑emptor‑‑ Notice was signed by two witnesses but same had no signatures of the pre‑emptor ‑‑‑Trial Court believed testimony of the two witnesses in the matter of Talb‑e‑Muwathibat as well as Talb‑e‑Ishhad but non‑suited the pre‑emptor on the ground that he did not sign the notice‑‑‑Validity‑‑‑Mere fact that the notice was not signed by the pre‑emptor, could not be made a ground to non‑suit him.

Abdul Malik v. Muhammad Latif 1999 SCMR 717 and Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051 rel.

Mian Shamsul Haq Ansari for Petitioner.

Syed Muhammad Hussain Shah Qadri for Respondent.

Date of hearing: 30th May, 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 3040 #

2000 Y L R 3040

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ARSHAD‑‑‑Petitioner

versus

LIAQUAT ALI and others‑‑‑Respondents

Criminal Miscellaneous No. 1480‑M of 2000, decided on 13th July, 2000

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

‑‑‑‑Ss. 516‑A & 561‑A‑‑‑Custody of property on Superdari‑‑‑Power of Court to cancel its order of Superdari during proceedings‑‑Extent‑‑‑Status of Superdari‑‑‑Petitioner had obtained the order of Superdari of the cattle head in question from the Magistrate at a time when he was not possessed of any material supporting his claim of their ownership‑‑‑Magistrate in such circumstances was amply justified in cancelling the said order subsequently on an application of the respondent who apparently had a better claim of ownership or possession of the said cattle head‑Section 516‑A, Cr. P. C. did not restrict the Magistrate to pass an order on a one‑time basis while shutting any possibility of a reconsideration of the matter when a better claim to the said property had come forward with a formal application in such regard‑‑‑Petitioner on obtaining Superdari of the property pending an inquiry or trial had not got any vested right qua that property and he only acted as a trustee and could never claim that the Magistrate could not retake the Property in question from him at any time‑‑Impugned orders of the Courts below showed that the petitioner was apparently possessed of no material to lay any claim on the cattlehead in dispute whereas the respondent had some material available with him to lay such claim‑‑‑Order of lower Courts being quite valid and justified did not call for any interference‑‑‑Petition was dismissed in limine in circumstances.

Sh. Liaqat Hussain v. The State 19971 PCr.LJ. 61; Anwar Waheed v. The State 1979 PCr.LJ Note 29, p.19; Muhammad Safdar v. Muhammad Nazir 1996 SCMR 496; Ghulam Nabi v. The State PLD 1‑961 Lah. 205 and Arbab Khan v. The State 1990 PCr.LJ 649 ref.

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

‑‑‑‑S. 516‑A‑‑‑Order for custody and. disposal of property pending trial‑‑‑Guiding principles‑‑‑Section 516 A, Cr.P. C. cannot be interpreted in a manner which deprives the Court concerned of the necessary jurisdiction to reconsider the matter in light of some fresh material coming before it so as to protect and advance the interest of justice.

‑‑‑‑S. 516‑A‑‑‑Custody of property during trial‑‑‑ "Superdari "‑‑‑ Connotation‑‑Granting of Superdari‑‑‑Power of Court, exercise of‑‑‑Principles‑‑‑Legal status of Superdari‑‑‑Granting of Superdari of a property to a person pending an inquiry or a trial does not create any vested right in his favour qua that property ‑‑‑Superdari is only a temporary arrangement and the Court granting the Superdari never loses its overall control of the property concerned ‑‑‑Superdar acts only as. a trustee and, therefore, he can never claim that the Court concerned cannot retake the property in question from him at any time.

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

‑‑‑‑S. 561‑A‑‑‑Inherent jurisdiction of High Court is to be utilized for fostering justice and not defeating the same.

Arshad Iqbal Tarrar for Petitioner.

YLR 2000 LAHORE HIGH COURT LAHORE 3046 #

2000 Y L R 3046

[Lahore]

Before Tanvir Ahmad Khan, J

Mst. FARAH WAQAR‑‑‑Petitioner

versus

Dr. WAQAR AHMAD KHAN and another=‑‑Respondents

Writ Petition No.3502 of 1999, heard or 11th May, 2000.

(a) Review‑‑

‑‑‑‑Review being a substantive right could not have been exercised unless and until there was some provision to that effect in the statute itself.

(b) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 12‑‑‑Interim custody of minor‑‑Changing of such custody‑‑‑Order regarding the custody of the minor could be changed so long as the matter was not finally determined‑‑‑Welfare of minor being a prime consideration, the same could be changed subsequently for good reasons‑‑‑Once the order of custody had been passed by a Court of competent jurisdiction after full deliberation, the same could not be reviewed/changed as of right unless and until some material change had taken place.

‑‑‑‑S. 17(3)‑‑‑Custody of minor‑‑‑Wishes of minor; consideration of‑‑‑Minor's wishes were to be taken into consideration while deciding the custody.

Mst. Zar Bibi v. Haji Malik Abdul Ghaffar and others 1998 MLD 1697; Mst. Tehmina ' Khan v. Jehanzeb Khan Bharwana PLD 1997 Lah. 541; Amosoha Alfiqiah published by Wazart‑ul‑Auqaf Washoon‑al‑Islamia, Kuwait. Part 17, p.316; Sunan Abu Dawood, translated by Allama Waheed‑uz‑Zaman, Part II, p.209 and Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others 1985 SCMR 1367 ref.

(d) Guardians and Wards Act (VIII of 1890)‑‑‑

‑S, 12.‑Constitution of Pakistan (1973) Art. 199‑‑‑Constitutional petition‑‑‑Interim custody of minor‑-‑Father of the minor requested for shifting the minor to hostel as a boarder‑‑‑Guardian Court had earlier rejected such application of the father but subsequently recalled its earlier order and allowed the minor to shift to the hostel‑‑Validity‑‑‑If the minor was lodged as a boarder he would be deprived of love and affection of his mother as well as maternal grandparents‑‑‑Younger sister of the minor would also be deprived of the company of her only brother for no fault of her own‑‑Lodging of the minor as a boarder thus would have adverse effect upon his upbringing‑‑Where the minor was taking his education at a good school by living with his family members, High Court refused to make him a shuttle cock as he was earlier got removed from a college by the father himself‑‑‑Minor had got fully adjusted in the school from which the High Court refused to uproot him‑‑‑Orders passed by Guardian Court were declared to be without lawful authority having no legal effect in circumstances.

Mst. Maqsoodan Bibi v. Mst. Bhano PLD 1965 Lah. 183; Ali Khan Suban Poto v. Federation of Pakistan and others 1997 SCMR 1590; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Anwarul Rahman and others v. Modarba‑al‑Mali 1997, MJ,D 3132; Captain S.M. Aslam v. Mst. Rubi Akhtar 1996 CLC 1; Mst. Zar Bibi v. Haji 0alik Abdul Ghaffar and others 1998 MLD 1697; Mst. Tehmina Khan v. Jehanzeb Khan Bharwana PLD 1997 Lah. 541 and Sheoshankar and another v. Khupchand AIR 1925 Nag. 233 rel.

Muhammad Saeed Bin Mughrtl v. District Judge, Central Karachi and 2 others 1989 ALD 400; Mst. Sultana Begum v . Muhammad Shafi PLD 1965 (W.P.) Kar. 416; Abu Saeed A. Islahi v. Mrs. Talat Mir and 2 others 1994 MILD 1370; Muhammad Gul v. Mst. Sharu Bibi and 3 others PLD 1995 Pesh. 77; Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore PLD 1967 Lah. 977 and Malik Khizar Hayat Khan Tiwana and others v. Mst. Zainab Begum PLD 1967 SC 402 rel'.

Talat Farooq Sh. for Petitioner.

Masood Ahmad Ghuman for Respondents.

Date of hearing: 11th March 2000.

YLR 2000 LAHORE HIGH COURT LAHORE 3053 #

2000 Y L R 3053

[Lahore]

Before Maulvi Anwarul Haq, J

FATEH MUHAMMAD ‑‑‑Petitioner

versus

Mst. JANTAN alias JANNA and 2 others‑‑‑Respondents

Civil Revision No.368/D of 1990, heard on 24th February, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Art. 64‑‑‑Muhammadan law ‑‑‑Inheritance‑‑Relationship with the deceased ‑‑‑Proof‑‑ Evidence of close relative ‑‑‑Value‑‑ Daughters were excluded from the mutation of land owned by their deceased father and the whole land was mutated in the name of the son of the deceased‑‑‑Daughters assailed the mutation and produced near relatives to prove their relationship with the deceased‑‑ Both the Courts below decreed the suit in favour of the daughters‑‑‑Validity‑‑‑Witness produced by the daughters was the real son of the brother of the deceased who stated on oath that the daughters were so related to the deceased‑‑‑Where nothing was suggested to the witness as to why he would make a false statement, the daughters had proved their case.

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

‑‑‑‑O.III, R.I‑‑‑Power of Attorney Act (VII of 1882), S.2‑‑‑Evidence through attorney‑‑Party might enter the witness‑box through an attorney but where the attorney had shown ignorance to material questions then such statement could not be substituted for the statement of that party.

Shah Nawaz and another Nawab Khan PLD 1976 SC 767 ref.

‑‑‑‑Co‑sharer‑‑‑Where the parties were brother and sisters and were Muslim, suit land was deemed to be in joint possession of the parties‑‑‑Question of suit being time-barred would not arise in circumstances.

Ghulam Ali and 2 others Mst. Ghulam Sarwar Naqvi, PLD 1990 SC ref.

Kanwar Iqbal Ahmad Khan for Petitioner.

Mian Arshad Latif for Respondents Nos and 2.

Date of hearing: 24th February 2000

Peshawar High Court

YLR 2000 PESHAWAR HIGH COURT 278 #

2000 Y L R 278

[Peshawar]

Before Sardar Jawaid Nawaz Khan Gandapur, J

Mst. SHAMSHAD BIBI and another‑‑‑Petitioners

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Bail Application No.241 of 1999, decided on 10th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.5/10/16‑‑‑Penal Code (MV of 1860), S.506‑‑‑Bail‑‑‑Allegation of Zina‑‑‑Lady accused who was 16/17 years old according to medical report and had attained puberty appeared to have voluntarily married the male accused ‑‑‑Nikahnama regarding the marriage of accused had been placed on the record which was duly registered by the Nikah Registrar‑‑‑Complainant admittedly had married the lady accused with some other person during her minority and she had the right to repudiate her marriage after attaining puberty‑‑‑Reasonable grounds, therefore, did not exist for believing the accused being connected with the commission of the offence with which they were charged‑‑‑Accused were admitted to bail in circumstances.

Said Mahmood and another v. The State PLD 1995 FSC 1 ref.

Sultan Sheheryar Marwat for Petitioners.

and Saleemullah Khan Ranazai for the Complainant.

Date of hearing: 10th December, 1999.

YLR 2000 PESHAWAR HIGH COURT 298 #

2000 Y L R 298

[Peshawar]

Before Sardar Jawaid Nawaz Khan

Gandapur, J

ATTA MUHAMMAD ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.28 of 1999, decided on 8th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 468 & 471‑‑‑Appreciation of evidence‑‑‑Contentions raised on behalf of accused regarding the charge having not been framed against him properly and his examination under S.342, Cr. P. C. having not been conducted according to law, could not be controverted by the, prosecution‑‑‑Trial of the accused, thus, was not conducted in accordance with the principles of administration of criminal justice‑‑Prosecution had failed to establish its case against the accused in circumstances and he was acquitted accordingly.

M.E.N. Rewail v. The State PLD 1957 SC 257; Maroof Jan v. The State PLD 1992 Pesh. 147 and Aftab Afgan alias Maboo v. The State 1999 PCr.LJ 1526 ref.

Sanaullah Khan Gandapur for Appellant.

Syed Saeed Hassan Sherazi, Asstt, A.‑G. for the State.

Date of hearing: 8th December, 1999.

YLR 2000 PESHAWAR HIGH COURT 332 #

2000 Y L R 332

[Peshawar]

Before Sardar Javaid Nawaz Khan Gandapur, J

MUHAMMAD HUSSAIN and 5 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Bail Petition No.260 of 1999, decided on 8th December, 1999.

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

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979; S.13/18‑‑Criminal Procedure Code (V of 1898), S.I03‑‑‑Bail, grant of‑‑‑No evidence whatsoever had been collected by the Investigating Officer to show that the accused had assembled in the house for the purpose of committing Zina and this aspect of the case was to be determined at the trial‑‑‑Search of the house, according to the F.I. R. was not made by the police strictly in accordance with the mandatory provisions of 5.103, Cr. P. C. ‑‑‑Police, no doubt, seas accompanied by a private person, but he being a convict could not be accepted as a respectable person of the locality‑‑‑Even otherwise, search having been witnessed by a solitary witness was not due compliance of tile requirement of S.103. Cr. P. C. ‑‑‑Accused were enlarged on bail in circumstances.

Muhammad Azam v. The State PLD 1996 SC 67 ref.

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

‑‑‑‑S.103‑‑‑Search to be made in presence of witnesses‑‑‑Search having been made by the police by associating only one witness from the public is not due compliance of the requirement of S.103. Cr. P. C.

Shujaullah Khan Gandapur for Petitioners.

Syed Saeed Hussain Sherazi, Asstt A.‑G. for the State.

Date of hearing: 8th December 1999.

YLR 2000 PESHAWAR HIGH COURT 345 #

2000 Y L R 345

[Peshawar]

Before Sardar Javaid Nawaz Khan Gandapur, J

AMJAD NAEEM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 11 of 1999, decided on 8th December, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.471‑‑‑Using a forged document as genuine‑‑‑Original document to be produced for inspection of Court‑‑‑In order to prove that a document is a forged one, it is incumbent upon the prosecution to produce the original for the inspection of the Court so that it may come to a positive/definite conclusion that the document was forged.

Maulvi Abdul Hameed v. The State PLD 1988 Kar. 503 and Khushal Khan v. The State 1980 PCr.LJ 1026 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.471‑‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑‑‑Appreciation of evidence‑‑Photostat copies of the documents in question had been received in the prosecution evidence although the original of the documents were not produced before Trial Court for its inspection‑‑‑Mere fact that the defence had not objected to the said documents, was immaterial as the consent of the parties could not override the express provisions of Qanun‑e‑Shahadat regarding the proof of documents‑‑‑Trial Court had acted illegally in receiving and relying on the photo copies of the documents which were not admissible in evidence‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Maulvi Abdul Hameed v. The State PLD 1988 Kar. 503 and Khushal Khan v. The State 1980 PCr.LJ 1026 ref.

Dost Muhammad Khan for Appellant.

Syed Saeed Hassan Sherazi, Asstt A.‑G. for the State.

Date of hearing: 8th December 1999.

YLR 2000 PESHAWAR HIGH COURT 350 #

2000 Y L R 350

[Peshawar]

Before Sardar Jawaid Nawaz Khan Gandapur, J

HABIB‑UR‑REHMAN‑‑‑Petitioner

versus

REHMAT ULLAH and another‑‑‑Respondents

Criminal Miscellaneous Bail Cancellation Petition No.253 of 1999, decided on 9th December, 1999.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Cancellation of pre‑arrest bail‑‑accused was not named in the F 1. R. ‑‑‑No evidence, documentary or oral, was available to convict the accused with the commission of the offence with which he was charged‑‑Impugned order granting pre‑arrest bail to accused was passed by Sessions Court of competent jurisdiction which had acted neither perversely nor arbitrarily and the same did not warrant interference by High Court‑‑‑Petition for cancellation of bail was dismissed in limine accordingly.

Syed Amanullah Shah v. The State nd another PLD 1996 SC 241 ref.

Criminal Procedure Code (V of 1898)‑‑‑

497(5)‑‑‑Cancellation of bail‑‑‑Principle‑‑‑Bail once having been granted by a competent Court needs very strong and exceptional reasons for its cancellation‑‑Provisions of S.497(5), Cr. P. C. being not of punitive nature, no legal compulsion exists for cancelling bail granted in cases even falling within the prohibition contained in S.497(1), Cr.P.C. because to deprive a person of his freedom is a very serious matter.

Syed Amanullah Shah v. The State and another PLD 1996 SC 241 ref.

Sanaullah Khan Gandapur for Petitioner.

Nemo for Respondents.

Date of hearing: 9th December, 1999.

YLR 2000 PESHAWAR HIGH COURT 358 #

2000 Y L R 358

[Peshawar]

Before Sardar Jawaid Nawaz Khan Gandapur, J

MUHAMMAD AKBAR KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1403 of 1999, decided on 16th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑‑‑Penal Code (XLV of 1860), 5.161‑‑‑Bail, grant of‑‑‑Accused having been charged for having received a sum of Rs.500 as bribe from the complainant, the offence did not fall within the prohibitory clause of S.497(1), Cr.P.C., and thus, the rule "bail and not jail" was applicable and he was entitled to bail on this ground alone‑‑Bail was granted to accused accordingly.

Saeed Baig for Petitioner.

Kh. Azhar Rashid, Asstt. A.‑G. for the State.

Date of hearing: 16th December, 1999.

YLR 2000 PESHAWAR HIGH COURT 373 #

2000 Y L R 373

[Peshawar]

Before Sardar Jawaid Nawaz Khan Gandapur, J

FAZAL SHAH and 2 others‑‑‑Petitioners

versus

GHULAM HUSSAIN and another‑‑‑Respondents

Criminal Miscellaneous No.675 of 1999, decided on 12th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/34‑‑‑Bail‑‑‑Accused were not entitled to be released on bail on the ground of being of old age alone‑‑‑Accused having remained fugitive from law for about a year had lost some of the normal rights granted by the procedural and substantive law ‑‑‑F.I.R. was promptly lodged in which the complainant had directly charged the accused for having killed his nephew by firing at him who had received six injuries out of which five injuries had exit wounds‑‑‑Seven empties and two spent bullets were recovered from the spot‑‑‑Two eye‑witnesses had apparently supported the prosecution version‑‑Reasonable grounds, therefore, existed to believe that the accused were, prima facie, connected with the commission of the offence with which they had been charged‑‑‑Case against accused also fell under the prohibitory clause of S.497(1), Cr.P.C.‑‑Bail was declined to accused in circumstances.

Gul Ahmad v. Masam Khan and 3 others 1977 SCMR 27; Hakim Ali and 3 others v. The State 1979 SCMR 114; Sher Ali alias Sheri v. The State 1998 SCMR 190 and Qadar Mand v. Muhammad Amroze ‑and 4 others 1998 SCMR 496 ref.

Khawaja Muhammad Khan assisted by Astaghfirullah for Petitioners.

Tehmash Khan for the Respondent No. 1.

Kh. Azhar Rashid, Asstt. A.‑G. for the State.

Date of hearing: 12th November, 1999.

YLR 2000 PESHAWAR HIGH COURT 1580 #

2000 Y L R 1580

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

GHULAM RABBANI‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.24 of 1998 with Murder Reference No.1 of 1999, decided on 29th March, 2000.

(a) Suppression of Terrorist Activities (Special Courts) Act (XVI of 1975)‑‑‑

‑‑‑‑Preamble, Ss.4, 5 & Sched.‑‑‑Penal Code (XLV of 1860), S.302/397‑A(i)1148/149‑‑Jurisdiction of Special Court‑‑‑Proceedings‑‑Competency,‑‑‑Additional Sessions Judge to whom case was entrusted to be tried, was not empowered at the time of entrustment of case and at the time of framing charges against accused, to act as a Judge of Special Court established under Suppression of Terrorist Activities (Special Courts) Act. 1975, but, thereafter, said powers were bestowed upon him through Notification and he examined prosecution witness and completed remaining proceedings as a Judge of Special Court‑‑Trial and proceedings competently held by the Judge as a Special Court did not suffer from any legal defect and in absence of prejudice having been caused to accused, said proceedings were not to be vitiated‑‑‑Where proceedings had been initiated or some proceedings had been taken by a Sessions Judge, who otherwise was competent to take proceedings, but for want of a formal notification which was issued a few days later, and rest of proceedings having been taken by a competent Court, earlier proceedings so taken, which had not been concluded and final verdict had not been given and which had caused no prejudice to accused, would also be of no consequence to invalidate the earlier proceedings.

Allah Din v. State 1994 SCMR 717; Muhammad Ashraf v. Ghulam Rabbani alias Bani 1998 PCr.LJ 773; Muhammad Riaz v. State PLD 1985 FSC 420; Piao Gul v. State PLD 1960 SC (Pak.) 307; Mrs. Salal Akbar Bugti v. Khawand Bakhsh and 4 others 1995 PCr.LJ 61; Muhammad Aslam v. The State PLJ 1993 (Cr. Cases) 177 and Liaqat Ali and others v. The State 1992 PCr.LJ 998 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/337‑A(i)/148/149‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Reduction‑‑‑No reason was found to the effect that complainant and witnesses who had stamps of injuries on their persons would change a person in case of single fire shot, for the real culprit, especially when no blood Jeud or other enmity of like gravity existed between prosecution witnesses and accused‑‑‑Neither presence of prosecution witnesses at the spot could be excluded nor it was a case where consultation could be expected for involvement of innocent persons‑‑‑Though it was alleged that two, empties of Kalashnikov had been recovered from the spot, but as no recovery memo had been prepared qua said recovery, same could not be taken to support prosecution story in that particular respect‑‑Ocular version of all witnesses was consistent on the material points and they had shown unanimity over the manner of occurrence, involvement of accused and role attributed to them‑‑‑Version of said witnesses had been supported by medical evidence‑‑‑Mere non-recovery of blood‑stained earth from spot which could be explained, would not be of any consequence to disbelieve entire evidence that occurrence had not taken place where it was alleged‑‑‑Presence of witnesses at the spot could not be disbelieved as most of them had stamps of injuries on their bodies during occurrence‑‑‑No blood feud existed between prosecution witnesses and accused which could prompt them to substitute accused for real culprit‑‑‑Accused who had been proved to be guilt v of offence, was rightly convicted, but in view of mitigating circumstances, death sentence awarded to accused by Trial Court was reduced to that of imprisonment for life with benefit under 5.382‑B, Cr. P. C.

Faiz Muhammad v. Mehrab Shah etc. PLD 1997 Pesh. 166 and Quaid‑e‑Azam v. The State 2000 PCr.LJ 216 reF.

Abdullah Jan Mirza and Saeed Akhtar Khan for Appellant.

Mufti Muhammad ‑ Idris for the Complainant.

A.A.‑G. for the State.

Dates of hearing: 16th. 17th and 22nd February, 2000.

YLR 2000 PESHAWAR HIGH COURT 1738 #

2000 Y L R 1738

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

MASHAL KHAN‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.32 of 1999, decided on 24th November, 1999.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Medical evidence had corroborated the prosecution version‑‑‑Accused was directly charged in the F.I.R. for firing at the deceased and committing his murder which had been lodged within fifteen minutes eliminating any chance of consultation regarding false implication of accused‑‑Police had arrested the accused soon after the occurrence by giving him a chase and recovered from his possession the gun with crime empty in its chamber‑‑‑Crime empty according to the report of Forensic Science Laboratory had been fired from the gun of the accused‑‑‑Eye‑witness of the occurrence though was a real brother of the deceased having blood feud with the. accused and being an interested witness, had given a confidence inspiring evidence without exaggerating the true facts of the case‑‑‑Conviction of accused was upheld in circumstances and there being no mitigating circumstance available in favour of accused, sentence of death awarded to him by Trial Court was confirmed.

Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 and Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146 ref.

Dost Muhammad Khan for Appellant.

Syed Saeed Hussain Sherazi A.A.‑G. for the State.

Syed Zafar Abbas Zaidi for the Complainant.

Date of hearing: 24th November, 1999.

YLR 2000 PESHAWAR HIGH COURT 1778 #

2000 Y L R 1778

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

MUHAMMAD ASIF‑‑‑Appellant

versus

STATE and other‑‑‑Respondents

Criminal Appeal No.50 of 1998, decided on 31st May, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(a), 302(b) & 337‑F(iii)‑‑‑Appreciation of evidence‑‑‑Firing by the accused at the deceased was not open to any doubt‑‑‑Plea of self‑defence taken by accused was not supported by the evidence on record‑‑‑No mitigating circumstance was available in favour of accused to entitle him to lesser punishment‑‑‑Trial Court had dispensed with the necessity of the process of Tazkiyah‑al-Shahood on the ground that the conduct of the eye‑witnesses appearing in the case was above board and their trustfulness had satisfied the conscience of the Court‑‑‑Trial Court was bound under the law to under take the exercise of Tazkiyah‑al‑Shahood while awarding death sentence by way of Qisas to the accused and the satisfaction of the conscience of the Court from its personal knowledge was not sufficient‑‑‑Tazkiyah‑al-Shahood having not been done in the case, punishment by way of Qisas could not be given to accused‑‑‑Stand taken by accused at three different stages in the case also did not qualify the condition of a true and voluntary confession of the commission of the offence, and thus, not sufficient for awarding him the punishment by way of Qisas‑‑‑Conviction of accused under S.302 (a), P. P. C. was consequently altered to S.302(b), P. P. C., but his sentence of death was maintained as Tazir in circumstances‑‑‑Conviction and sentence of accused under S.337‑F(iii), P. P. C. were also upheld.

Muhammad Ashgar and others v. The State 1997 MLD 2197; Riaz Ahmad v. The State 1996 PCr.LJ 43; Mitah v. The State 1996 SCMR 1140; Muhammad Ishaque Khan and others v. The State PLD 1994 SC 259; Muhammad Ashraf v. The State 1998 SCMR 1764; Muhammad Rafiq v. The State 1998 MLD 94; Talib Hussain and others v. The State 1995 SCMR 1776; Abdul Razaq and another v. The State PLD 1988 SC (AJ&K) 190; Daniel Boyd (Muslim name Saifullah) and another v. The State 1992 SCMR 196; Secretary to Government of N.‑W.F.P., Home and Tribal Affairs Department, Peshawar v. Muhammad Ayaz Khan and others PLD 1996 Pesh. 76; Ghulam Ali v. State PLD 1986 SC 741 and Mumtaz Ahmad and another v. The State PLD 1990 FSC 38 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.304(1)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 17(1)‑‑‑Proof of Qatl‑l‑Amd liable to Qisas‑‑‑Tazkiyah‑al‑Shahood‑‑Guidelines for purgation enumerated.

Following are the guidelines for purgation:‑‑

(i) There must be evidence of victim followed by at least two witnesses.

(ii) In case of discrepancies on vital aspects between the witnesses both shall be rejected.

(iii) Tazkiyah-al-Shahood is a condition precedent to impose the sentence of Hadd.

(iv) There should be one or more "Muzakki" (a person who testifies about the truthfulness of the witness).

(v) The ' Muzakki' should be present when the witness gives evidence.

(vi) The 'Muzakki' should also be questioned about antecedents, character and dealings of the witness;

(vii) It is the responsibility of the Court to satisfy itself about the credibility of a witness and it can for that matter select an open or secret mode of inquiry or both.

(viii) The Court may frame a questionnaire on which the 'Muzakki' should collect information to supply to the Court.

(ix) The Court should also examine the 'Muzakki' after he submits his report.

(x) The Court should ask searching questions from the witness and cross‑examine him to discocer facts which might show this credibility, piety or otherwise.

Ghulam Ali v. State PLD 1986 SC 741; Mumtaz Ahmad and another v.' The State PLD 1990 FSC 38; Secretary to Government of N.‑W.F.P., Home and Tribal Affairs Department, Peshawar v. Muhammad Ayaz Khan and others PLD 1996 Pesh. 76 ref.

Muhammad Zahur‑ul‑Haq Bar‑atLaw and Alhaj Sardar Meazam Khan for Appellant.

Muhammad Ayub Khan A.A.‑G., Fazl‑e‑Haq Abbasi and Muhammad Akber Khan Swathi for Respondents.

Date of hearing: 25th April, 2000.

YLR 2000 PESHAWAR HIGH COURT 1798 #

2000 Y L R 1798

[Peshawar]

Before Shah Jehan Khan, J

GHULAM MURTAZA and others‑‑‑Petitioners

versus

GHULAM JILLANI and others‑‑‑Respondents

Civil Revision No.74 of 1997, decided on 29th June, 2000.

(a) Civil Procedure Code (V of 1908)‑.

‑‑‑‑S.47‑‑‑Extension of time specified in the decree‑‑‑Executing Court‑‑‑Powers of‑‑Scope‑‑‑Executing Court cannot go beyond the decree, extension of time amounts to alteration of the period specified in final decree which is beyond the power of an Executing Court.

1987 CLC 1682 ref.

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

‑‑‑‑S.148‑‑ Decree‑‑‑Time, enlargement of‑‑Exercise of power under S.148, CP.C.‑‑Scope‑‑‑Such power can only be exercised when the matter has not finally been resolved and the Court is still seized of the matter‑‑Where a Court has finally adjudicated a matter and has passed a final decree such Court becomes functus officio and as such cannot exercise the .power under S.148, C. P. C. in circumstances.

‑‑‑S. 2(2)‑‑‑Court ceases with the matter when a final decree is passed.

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

‑‑‑‑Ss. 47, 148 & 151‑‑‑Decree, alteration of‑‑‑Executing Court, powers of‑‑‑Decree can be altered by review, appeal or revision but cannot be altered by Executing Court under S.148 or S.151, C. P. C.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.148‑‑‑Time, enlargement of‑‑‑Provisions of C.P.C. under which Court can enlarge time listed.

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

‑‑‑‑S.148‑‑‑Time, enlargement of‑‑‑Powers of Trial Court‑‑‑Scope‑‑‑Court c------cannot competently enlarge time under S.148, C. P. C. unless the time limit is already prescribed under C. P. C. ‑‑‑Where the matter is still sub judice and not concluded finally, the Trial Court can competently extend time specified by it‑‑‑Power available to the Court under S.148, C. P. C. comes to an end as soon as the Court disposes of the suit.

PLD 1970 Pesh. 54 and 1997 CLC 1682 ref.

(g) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Operation of decree under revision‑‑‑Scope‑‑‑Pendency of revision petition itself does not suspend operation of the decree unless it is suspended by an order of the Court seized of the revision petition.

Khurshid Akbar's case 1982 SCMR 824; Holy Trinity's case PLD 1963 Lah. 489 and Shah Wali's case PLD 1966 SC 983 ref.

(h) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss.47, 148 & 115‑‑‑Executing Court‑‑Enlargement of time for deposit of money‑‑Time prescribed in the decree for deposit‑ of amount was enlarged in favour of the respondent by the Executing Court‑‑‑Appeal of the petitioner was dismissed by the Lower Appellate Court‑‑‑Validity‑‑‑Petitioner had well in time applied for compliance of the decree on his part but the Executing Court had not considered the application of the petitioner due to grant of extension of time to the respondent‑‑‑Orders and judgments of both the Courts below were set aside in revision and the Executing Court was directed to execute the final decree in letter and spirit.

1992 SCMR 241; 1984 SCMR 504 and 1987 CLC 1682 distinguished.

PLD 1970 Pesh. 54; 1990 SCMR 1107; 1992 SCMR 2175; 1994 CLC 1311; 1997 CLC 1682; PLD 1983 Kar. 527 and PLD‑1979 SC 281 ref.

S.M. Saddique Haider Qureshi for Petitioner.

Sh. Wazir Muhammad for Respondents.

Date of hearing: 18th May, 2000.

YLR 2000 PESHAWAR HIGH COURT 1847 #

2000 Y L R 1847

[Peshawar]

Before Malik Hamid Saeed and Tariq Pervez, JJ

Messrs ILYAS BILOUR FLOUR &

GENERAL MILLS through Managing

Director namely Ilyas Ahmad Bilour‑‑‑-Petitioner

versus

THE RATIONING CONTROLLER/LICENSING

AUTHORITY, DISTRICT COURTS, PESHAWAR and 2 others‑‑‑Respondents

Writ Petition No. 373 of 2000, decided on 19th June, 2000.

(a) Food Grains (Licensing Control) Order, 1959‑‑‑

‑‑‑‑Art. 3‑‑‑Constitution of Pakistan (1973), Arts. 199, 4 & 18‑‑‑Constitutional petition‑‑Right of, free trade, denial of‑‑‑Scope‑‑Petitioner mill was ready to go into production according to the certificate issued by the concerned Department‑‑‑Petitioner wanted to purchase wheat from the open market or import for grinding the wheat of U.N.O. World Food Programme‑-‑Refusal of the Authorities to issue food grain licence to the petitioner without any cogent reason, would amount to denial of Fundamental Right to the petitioner to enter into a lawful trade in circumstances.

(b) Food Grains (Licensing Control) Order, 1959‑‑‑

‑‑‑‑Art. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Food Grains Licence, denial of‑‑‑Petitioner mill was ready to go into production according to the certificate issued by the concerned Department but the Authorities refused to issue the same unless. the petitioner would fulfil certain conditions laid down by the Authorities‑‑‑Validity‑‑‑Such conditions had no relevance with the relevant provisions of. law and the petitioner was, therefore, under no legal obligation to fulfil the conditions before issuance of Food Grain Licence to him‑‑‑Petitioner was liable to comply and abide the provisions of law after becoming a licensee within the meaning of Art. 3 of Food Grains (Licensing Control) Order, 1959‑‑High Court directed the Authorities to issue the licence to the petitioner in accordance with law, without compelling the petitioner for undertaking certain conditions which were not enumerated in the relevant law for the purpose of issuing such licence.

M. Tahazab Rahim for Petitioner.

Kh. Azhar Rashid, Asstt. A.‑G. for Respondents.

Date of hearing: 19th June, 2000.

YLR 2000 PESHAWAR HIGH COURT 2034 #

2000 Y L R 2034

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

WAQAR ULLAH KHAN‑‑‑Petitioner

versus

Mst. MUSHTARI JANA and

another‑‑‑Respondents

Criminal Miscellaneous Bail Petition No. 86 of 1999, decided on 10th September, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/3241148%149 8c 306‑‑‑Bail, grant of‑‑Accused was directly charged in the F.I.R. alongwith his co‑accused for firing at and injuring the deceased lady who had lodged the report in the hospital in an injured condition and died the same day‑‑‑Medical Board had found the accused to be of tender age and on the day of occurrence he was less than 14‑1 /2 years of age‑‑‑Offence committed by the accused, prima facie, fell under S.306, P.P.C. i.e. "Qatl‑i‑Amd " not‑ liable to Qisas and on that score as well he was entitled to bail‑‑‑Record did not show that the accused was mature enough to realize or weigh the consequences of his act which was yet to be determined at the trial‑‑‑Accused, according to the F.I.R. had fired at the deceased on the direction of his father‑‑‑Commission of the offence by the accused with independent intent, thus, was open to further probe at the trial after recording evidence‑‑‑Bail was allowed to accused in circumstances.

Haji Fazal Ilahi v. Mis Farrah Naz and another 1979 SCMR 109; Siraj Din v. Saghiruddin alias Goga and another 1970 SCMR 30; Muhammad Anwar v The State 1983 SCMR 1001; Muhammad Sudheer v. State 1998 MLD 1994 and Muhammad Nadeem v. The State 1998 MLD 1537 ref.

Muhammad Karim Anjum for Petitioner.

Ghulam Hur Khan for the State.

Hafiz Shafqatullah for the Complainant.

Date of hearing 10th September, 1999.

YLR 2000 PESHAWAR HIGH COURT 2036 #

2000 Y L R 2036

[Peshawar]

Before Shahzad Akbar Khan, J

GHULAM RASOOL‑‑‑Petitioner

versus

AHMAD SAEED alias SAEED and 2 others‑‑‑Respondents

Criminal Miscellaneous Quashment Petition No. 21 of 1999, decided on 24th January, 2000.

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

‑‑‑‑Ss. 169 & 561‑A‑‑‑Penal Code (XLV of 1860), S. 302/34/420/202‑‑‑Release of accused on deficient evidence‑‑‑Quashing of proceedings‑‑‑Investigating Officer on the basis of data collected by him was apparently justified in choosing the version which prima facie appeared to be more probable and in consonance with the circumstances of the case‑‑Accused while appearing before the police, recording his statement and admitting the commission of the offence was very much under the surveillance and control of the police which had virtually satisfied the condition of being in custody of the police as envisaged by S.169, Cr.P.C.‑‑‑Release of the accused on his personal bond under S.169, Cr.P.C. by the Police Officer was neither unlawful nor without jurisdiction‑‑‑Petition for quashing the proceedings was dismissed accordingly.

Muhammad Yaqoob v. The State 1992 SCMR 1983 and Hakam Khuda Yar v. Emperor AIR 1940 Lah. 129 ref.

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

‑‑‑‑S.169‑‑‑Release of accused when evidence is deficient‑‑‑Word "custody" used in S.169, Cr.P.C. does not necessarily mean custody after formal arrest and it also includes some form of police surveillance and restriction on the movements of the accused by the police.

Muhammad Yaqoob v. The State 1992 SCMR 1983 and Hakam Khuda Yar v. Emperor AIR 1940 Lah. 129 ref.

......Custody‑‑‑Word "custody" does not necessarily mean custody after formal arrest and it also includes some form of police surveillance and restriction on the movements of the accused by the police.

Gauhar Zaman Khan Kundi for Petitioner.

Dost Muhammad Khan for Respondents.

Malik Hamesh Gul for the State.

Date of hearing: 25th January, 2000.

YLR 2000 PESHAWAR HIGH COURT 2043 #

2000 Y L R 2043

[Peshawar]

Before Shahzad Akbar Khan, J

MUHAMMAD HUSSAIN and another‑‑‑Petitioners

versus

THE STATE and another ---‑Respondents

Criminal Miscellaneous Quashment Petition No. 24 of 1999, decided on 14th April, 2000.

Canal and Drainage Act (VIII of 1873)‑‑‑

‑‑‑‑S.70‑‑‑Criminal Procedure Code (V of 1898), Ss. 522, 423(d) & 561‑A‑‑‑Petition for quashing of a portion of appellate judgment‑‑‑Sessions Court on acquitting the. accused in appeal had directed that the watercourse which had been demolished be restored to its original position‑‑‑Accused had impugned the said direction on the ground that under S. 522, Cr.P.C. restoration of the immovable property could be ordered only to case of conviction and not in case of acquittal‑‑‑Such proposition of law, no doubt, was not open to any challenge, but in the present case the watercourse demolished by the accused was not the immovable property in the strict sense envisaged by S.522, Cr. P. C.‑‑‑Right of the complainant for carrying water to his land was attached with the watercourse which had been ordered to be restored to its original position and such an order, therefore, could not be attacked on the ground of applicability of S.522, Cr.P.C.‑‑‑Appellate Court under cl. (d) of S.423, Cr. P. C. had the power to pass the impugned incidental order in view of the attending circumstances of the case to secure the ends of justice which was neither illegal nor without jurisdiction or even unjustifiable‑‑‑Petition was dismissed accordingly.

Dost Muhammad Khan for Petitioners.

Muhammad Khan Khakwani for the state.

Ghulam Hur Khan for Respondent No. 2.

Date of hearing: 3rd April, 2000.

YLR 2000 PESHAWAR HIGH COURT 2063 #

2000 Y L R 2063

[Peshawar]

Before Mian Shakarullah Jan

and Talat Qayum Qureshi, JJ

STATE through Advocate‑General

N.W.F.P., Peshawar‑‑‑Appellant

versus

MUHAMMAD AKMAL Respondent

Criminal Appeal No. 34 of 1992, decided on 11th May, 2000.

(a) Penal Code (XLV of 1860)‑.

‑‑‑‑S. 302/307‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑Unexplained delay in registration of FLR.---Night-time occurrence‑‑‑Medical evidence not supporting story of prosecution‑‑‑Effect‑‑‑Occurrence took place at 9‑00 p. m. whereas the F.I.R. was lodged at 24‑00 hours‑‑‑No explanation for delay given by the prosecution‑‑‑Delay in lodging the F.LR could be due to consultations and deliberations‑‑‑Prosecution failed to explain as to how the accused was identified in the moon light from a distance of 25 feet and how the weapon of offence was identified to be a revolver‑‑‑Investigating Officer though had stated that there existed alight bulb but the same was not referred in the site plan‑‑Identity of the accused as well as the weapon of offence was doubtful and could not be safely relied upon ‑‑‑Post‑mortem report belied the story of prosecution that the deceased had run from one point to the other in injured condition‑‑‑High Court declined interference with acquittal of accused by the Trial Court.

Abdul Hamid v. The State PLD1980 pesh. 25 ref.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302/307‑‑‑Appreciation of evidence‑‑Weapon used in the offence was mentioned in the F.LR. and only the word fire‑arm was used in Column No. 12 of the Inquest Report‑‑‑Revolver was alleged to have been used by the accused which was allegedly recovered from the accused‑‑‑Validity‑‑‑No empty having been found from the spot, possibility could not be ruled out that the revolver was introduced at later stage to fill up the lacuna of the prosecution case‑‑Introduction of the revolver at subsequent stage having created doubt in the prosecution case, recovery of revolver was not relied upon in circumstances.

----S. 302/307 Appreciation of evidence‑‑‑Recovery witness, evidence of‑‑‑Recovery of weapon of offence was made after eight days of the arrest of the accused and the witness to such recovery was not even on the speaking terms with the accused and his father‑‑Effect‑‑‑Where the recovery witness was inimical towards the accused, it, would not be safe to rely upon evidence of such witness in circumstances.

Muhammad Ashraf and 2 others v The State 1998 SCMR 279 ref.

(d) Criminal trial‑‑‑

‑‑‑‑ Burden of proof‑‑‑Onus upon the prosecution‑‑‑Prosecution is duty bound to prove its case against the accused beyond reasonable doubt and such duty does not change or vary even in a case in which no defence plea is taken by the accused‑‑Anything which goes in favour of the accused must be taken into consideration and the benefit of the same, if any, be extended to the accused not as a matter of grace but as a matter of right.

Hakim Ali's case 1971 SCMR 432 and Barat Ali v. The State 1997 MLD 1228 ref.

Khan Gul Naseer Jadoon for the Complainant.

Muhammad Ayub Khan A.A.‑G for the State.

Ghulam Younis Khan Tanoli for Accused/Respondent.

Date of hearing: 4th May, 2000.

YLR 2000 PESHAWAR HIGH COURT 2159 #

2000 Y L R 2159

[Peshawar]

Before Shahzad Akbar Khan, J

MUHAMMAD YASEEN and 6 others‑‑‑Petitioners

versus

HAQ NAWAZ KHAN and 10 others‑‑‑Respondents

Civil Revision No. 28 of 1999, decided on 7th February, 2000.

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Civil Procedure Code (V of 1908), Ss.151 & 115‑‑‑Revision filed in wrong forum ‑‑‑Condonation of delay‑‑Benefit of bona fide mistake‑‑‑Scope‑‑‑Where the petitioners were well conscious that the value of the subject‑matter of the suit was more than the pecuniary jurisdiction of District Judge, filing of a revision petition in the wrong forum could not be termed, as a "bona fide mistake"‑‑‑Essential requirement for condonation of delay was to establish the fact that the delay had occurred due to bona fide mistake, or under the circumstances which were beyond the control of petitioners‑‑‑Where such qualifying conditions were lacking, petitioners could not claim protection of S.5 of Limitation Act, 1908 or that of S.151, C.P.C.‑‑‑Petitioners failed to establish that they had been actively and in good faith pursuing their case‑‑‑Delay caused in filing the revision, after return of the same by the District Judge, was not condoned in circumstances.

Raja Kiramatullah and 3 others v. Sardar Muhammad Aslam Snkera 1999 SCMR 1892; Muhammad Nawaz Khan v. Mst. Farrukh Naz PLD 1999 Lah. 238; Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957; Abdul Ghani v. Mst. Mussarat Rehana 1985 CLC 2529; Government of Pakistan v. Rafi Associates Limited 1985 CLC 2234 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 ref.

Tariq Aziz Baloch for Petitioners.

Syed Gohar Ali Zaidi for Respondents.

Dates of hearing: 21st January and 7th February, 2000.

YLR 2000 PESHAWAR HIGH COURT 2228 #

2000 Y L R 2228

[Peshawar]

Before Abdur Rauf Khan Lughmani

and Shahzad Akbar Khan, JJ

JALAL‑UD‑DIN‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Bail Application No. 134 of 1999, decided on 13th January, 2000.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860) S.3.02/324/148/149‑‑‑Bail‑‑‑Plea of alibi. consideration of‑‑‑Court shall have to asses tentatively the intrinsic weight of plea of alibi raised by accused against the prosecution case‑‑‑Accused shall only be deemed entitled to bail if the plea so raised by him weakens the evidentiary potency of the case of prosecution and on comparative analysis compels the judicial scale to tilt in its favour as a rule of domination and the plea of alibi shall not be a peruke to the bold assertion of the accused.

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

‑‑‑‑S.497‑‑‑Penal Code (JLV of 1860), S.302/324/148/149‑‑‑Bail‑‑‑Plea of alibi taken by accused could not be commented upon in detail as the same could prejudice the case of either side and was left to be determined by the Trial Court‑‑‑Accused was directly charged in the promptly lodged F.I.R.-‑‑Occurrence had taken place in day light‑‑‑Prosecution story was supported by medical evidence and the eye‑witness account‑‑‑Complainant, who was himself injured in the same incident, had reported the matter to the police‑‑‑Recovery of crime empties and the blood‑stained earth from the venue of occurrence coupled with the firing marks on the car of the complainant party had also, prima facie, supported the prosecution version‑‑‑Reasonable grounds; thus, existed to connect the accused with the commission of the offence‑‑‑Bail was declined to accused in circumstances.

Dost Muhammad Khan for Petitioner.

Syed Saeed Hassan Sherazi, Asstt. A.‑G. for the State.

Syed Zafar Abbas Zaidi for the Complainant.

YLR 2000 PESHAWAR HIGH COURT 2265 #

2000 Y L R 2265

[Peshawar]

Before Mian Shakirullah Jan and

Talat Qayum Qureshi, JJ

MUHAMMAD JAVED KHAN

and 2 others‑‑‑Petitioners

versus

SECRETARY, PROVINCIAL

GOVERNMENT and 5 others‑‑‑Respondents

Writ Petition No.75 of 1995, decided on 30th May, 2000.

(a) North‑West Frontier Province Urban Planning Ordinance (IV of 1978)‑‑‑

‑‑‑‑Ss. 50, 55 & 66‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Acquisition of land‑‑‑Notification for acquisition‑‑‑Fixing of compensation‑‑Determination of market value for fixing of compensation‑‑‑Factors to be considered‑‑Inspection of site by the Authority to evaluate land for consideration of potentialities of land acquired‑‑‑Scope‑‑‑Land of the petitioners was acquired for the purpose of extension of housing scheme for creation of parks, recreational facilities and commercial purposes‑‑‑Petitioners being dissatisfied with the award of compensation fixed by the Land Acquisition Collector, preferred appeal before the Appellate Authority‑‑‑Appeal was allowed and the compensation was enhanced by the Appellate Authority after the Authority had inspected the site personally‑‑‑Petitioners contended that the compensation had not been fixed by the Authorities properly after considering the potentialities of the land‑‑‑Validity‑‑‑Court, while determining the market value should see the location, neighbourhood, potential use to which the land could be put and other benefits and advantages present or future which the land possessed in the hands of owners‑‑‑Purpose and prospect emerging out of the project for which the same was being acquired had to be considered at the time of fixing of the compensation‑‑‑Classification of soil of the land was not relevant‑‑‑Appellate Authority could either inspect the site itself or under the provision of S.66(d) of North‑West Frontier Province Urban Planning Ordinance, 1978, could appoint the Commission for inspection of the property‑‑No bar existed on the power of the Appellate Authority for inspection of site to evaluate land for consideration of potentialities of land acquired‑‑‑Where the factors required for consideration were not kept in view, the compensation was enhanced accordingly .

Collector; Land Acquisition, Peshawar and others v. Rokhan and others PLD 1995 Pesh. 78 and Pakistan and another v. Rahim Dad and another 1980 CLC 574 ref.

(b) North‑West Frontier Province Urban Planning Ordinance (IV of 1978)‑‑‑

‑‑‑‑S. 66‑‑‑Civil Procedure Code (V of 1908), O. XVIII, R. 18‑‑‑Inspection of site by Commissioner‑‑‑Powers of Commissioner while deciding the appeal or review under the provision of North‑West Frontier Province Urban Planning Ordinance, 1978‑‑Scope‑‑Commissioner while exercising such powers was vested with the powers of Civil Courts trying the suit under Civil Procedure Code, 1908‑‑‑Where Civil Court under O.XVIII, R. 18, C. P. C. had powers to inspect the site itself, the Commissioner committed no illegality or irregularity and had not violated the provisions of S.66 of North‑West Frontier Province Urban Planning Ordinance, 1978, by inspecting the site himself.

Ejaz Afzal Khan for Petitioners

Muhammad Haseeb Abbasi for Respondents.

Date of hearing: 30th May, 2000.

YLR 2000 PESHAWAR HIGH COURT 2280 #

2000 Y L R 2280

[Peshawar]

Before Nasirul Mulk and

Shah Jehan Khan, JJ

Miss NASEERA HANAN‑‑‑Petitioner

versus

ASSISTANT DIRECTOR‑GENERAL, HEALTH (MER), GOVERNMENT OF

PAKISTAN through Ministry of

Health, Special Education and Social

Welfare Health Division, Islamabad

and 12 others‑‑‑Respondents

Writ Petitions No. 188, 932 and 1234 of 1999, decided on 27th June, 2000.

(a) Prospectus of Khyber Medical College for Academic Year 1998‑99‑‑‑

‑‑‑‑Note 3‑‑‑Power to bring about changes in the prospectus‑‑‑Addition or modification in Prospectus of Khyber Medical College for Academic Year 1998‑99, after publication of the same‑‑‑Exemption from entry test‑‑Candidates applying for reserved seats for Northern Areas and children of the Armed Forces Personnel were exempted from appearing and passing the entry test‑‑‑Such exemption was given by a notification issued by the Provincial Government after publication. of the Prospectus ‑‑‑Validity‑‑Provincial Government, under the provision of Note 3 of Prospectus of Khyber Medical College for Academic Year 1998‑99 had retained the authority to bring about changes in the Prospectus and such changes were binding on all the candidates applying for admissions‑‑Notification was competently issued in circumstances.

(b) Prospectus of Khyber Medical College for Academic Year 1998‑99‑‑‑

‑‑‑‑Para. VIII/3 ‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Educational institution‑‑‑Admission to medical college‑‑‑ Vested right of candidate‑‑Passing of entry test‑‑‑Candidate applied for admission on the basis of being a resident of Northern Areas and passed her entry test‑‑Provincial Government, after the publication of the Prospectus issued a Notification whereby the candidates from Northern Areas were exempted from entry test and only the nomination by the Federal Government was required for such admission‑‑‑Admission was refused to the candidate for want of nomination by the Federal Government‑‑Validity‑‑‑Mere passing of entry test would not per se create a vested right in the candidate, under the provision of p.17, para. VIII/3 of Prospectus of Khyber Medical College for Academic Year 1998‑99, the candidate had to be nominated by the relevant Authorities on the basis of her merits and only thereafter she could be admitted to the medical college‑‑‑Where the candidate was not nominated by the Federal Government on the basis of merits, no vested right had accrued to the candidates before the Notification was issued‑‑‑Candidate who was not granted admission could not challenge the admission of the other candidates as they had been admitted on account of validly issued Notification.

‑‑‑‑Para. IV(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Educational institution‑‑‑Admission to medical college‑‑‑Vested right of candidate‑‑Passing of entry test‑‑‑Candidate applied for admission on reserved seats for the children of Armed Forces Personnel and passed her entry test‑‑‑Provincial Government after the publication of the Prospectus issued Notification whereby such candidates were exempted from entry test and only the nomination by the Armed Forces nominating Authorities was required for the admission‑‑Admission was refused to the candidate for want of such nomination by the Armed Forces Authorities‑‑‑Validity‑‑‑Conditions on nominations for the Defence Personnel seats, under the provision of para. IV (3) on p.15 of Prospectus of Khyber Medical College for Academic Year 1998‑99 were that the candidates should have passed the entry test and must have obtained 60% unadjusted marks in F.Sc.‑‑‑Both the conditions had been fulfilled by the successful candidates‑‑Criteria on which the Authority nominated the candidate on the reserved seats was given in the Special Pakistan Army Order, dated 27‑4‑1986‑‑‑Candidate was not entitled to admission in preference to the successful candidates even according to the criteria laid down in the Special Pakistan Army Order‑‑‑Candidates having failed to establish her preferential right to admission to medical college, petition was dismissed.

Raza Hussain v. Chairman, Joint Admission Committees 1999 MLD 1469; Huma Rafiq Khan v. Government of Sindh 1988 MLD 2098 and Naeem Mirza v. Government of Sindh 1987 CLC 1487 distinguished.

Abdul Latif Yousafzai for Petitioner.

Wasimuddin and Syed Asif Ali Shah for Respondents.

Abdul Sattar Khan, Addl. A.‑G.

Date of hearing: 9th June, 2000.

YLR 2000 PESHAWAR HIGH COURT 2306 #

2000 Y L R 2306

[Peshawar]

Before Nasirul Mulk and

Malik Hamid Saeed, JJ

MUHAMMAD SALEEM KHAN

and others‑‑‑ Petitioners

versus

WATER AND POWER DEVELOPMENT

AUTHORITY and others‑‑‑Respondents

Regular First Appeals Nos. 94, 97, 80, 98 and 99 of 1994, decided on 24th July, 2000.

(a) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss. 4, 9 & 10‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Acquisition of land‑‑Compensation ‑‑‑Ausat Yaksala (average of one year) price‑‑‑Applicability‑‑‑Lands of the appellants were acquired by WAPDA for remodelling of a drain‑‑‑Notification was issued and compensation was awarded to the appellants‑‑‑Contention by the appellants was that as Ausat Yaksala qua the land of the village of the appellants was not available for the year preceding the date of notification under S.4 of the Land Acquisition Act, 1894, therefore, Ausat Yaksala of the adjacent village was to be taken into consideration‑‑Validity ‑‑‑Where the mutation on the basis of which the Ausat Yaksala was calculated was beyond one year preceding the date of notification under S.4 of Land Acquisition Act, 1894, such Ausat Yaksala had no proper relevance to the period which was required to be taken into consideration for the purpose of determining the average sale price of the acquired land‑‑‑Appellants were entitled to receive compensation for their lands according to the rates which were worked out for the adjacent village on the basis of sale transaction effected during the period of one year preceding the notification.

(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S. 13‑‑‑Land Acquisition Act (I of 1894), S.4‑‑‑Public purpose‑‑‑Acquisition of land by WAPDA‑‑‑Land acquired by the Authority was an acquisition for public purpose within the meaning of the Land Acquisition Act, 1894.

‑‑‑‑S. 23(2)‑‑‑Public purpose‑‑‑Compulsory acquisition charges ‑‑‑Rate‑‑‑Entitlement‑‑Land was acquired by WAPDA for remodelling of a drain‑‑‑Where the land was acquired for a public purpose, the landowners were entitled to 15% compulsory charges under S.23(2) of Land Acquisition Act, 1894.

Muhammad Aslam Khan for Petitioners.

Ahmad Khan for Respondent N0. 1.

Date of hearing: 29th June, 2000.

YLR 2000 PESHAWAR HIGH COURT 2364 #

2000 Y L R 2364

[Peshawar]

Before Mian Shakirullah Jan and

Talat Qayum Qureshi, JJ

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through Manager, ADBP, Mansehra Branch, Abbottabad‑‑‑Appellant

versus

MUHAMMAD FAROOQ and

another‑‑‑Respondents

F.A.B. No. 2 of 1996, heard on 29th March, 2000.

Banking Tribunals Ordinance (LVlll of 1984)‑‑‑

‑‑‑‑S. 11(iv)‑‑‑Contract Act (IX of 1872), S.74‑‑‑Suit for recovery of Bank loan‑‑Liquidated damages‑‑Award of‑‑Conditions‑‑PrinciplesRecovery of liquidated damages, both with reference to the points of time and directions, impliedly related liquidated damages in any other context except where pursuant to an agreement, proof was tendered of any loss upon non‑payment, relief for which might be prayed for‑‑‑Where no such proof was tendered before the Banking Tribunal, damages about loss were rightly/declined disallowed by the Banking Tribunal‑‑‑Order of the Tribunal which was based on sound reasoning was not interfered with.

1990 MLD 1261; Raja Fakhar Abbas and another v. Karachi Metropolitan Corporation, Autonomous Corporate Body through Administrator 1998 CLC 1547; Habib Bank Ltd. v. Messrs Farooq Compost Fertilizer .Corporation Ltd. and 4 others 1993 MLD 1571 and United Bank Limited v. Messrs Novelty Enterprises Ltd. and others PLD 1998 Kar. 199 ref.

Fazal‑e‑Gul Khan for Appellant.

Nemo for Respondents.

Date of hearing: 29th March, 2000.

YLR 2000 PESHAWAR HIGH COURT 2403 #

2000 Y L R 2403

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

MAZHAR‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No. 101 of 2000, decided on 13th June, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 426‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.5‑A(8)‑Suspension of sentence‑‑‑Applicability of S.426, Cr. P. C. to the provisions of Suppression of Terrorist Activities (Special .Courts) Act, 1975‑‑‑Validity‑‑‑Provisions of 5.426 Cr.P.C., were excluded and non-disposal of appeal filed against a sentence of imprisonment for life within months would not entitle the accused to the suspension of his sentence‑‑‑Accused was not released on bail in circumstances.

Nadeem Umar v. The State 1999 PCr.LJ 606 and Tahiruddin v. The State 1999 PCr.LJ 394 distinguished.

The State v. Syed Qaim Ali Shah 1992 SCMR 2192 and Pervez Akhtar v. Muhammad Inayat 1995 SCMR 929 ref.

Saeed Akhter Khan for Petitioner.

Muhammad Ayub Khan, A.A.‑G for the State.

Muhammad Akber Khan for the Complainant.

Date of hearing: 13th June, 2000

YLR 2000 PESHAWAR HIGH COURT 2589 #

2000 Y L R 2589

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

AURANGZEB and another Petitioners

versus

THE COLLECTOR, LAND ACQUISITION PROVINCIAL URBAN DEVELOPMENT BOARD, N.W.F.P., PESHAWAR and 4 others‑‑‑Respondents

Writ Petition No. 197 of 1996, decided on 27th April, 2000.

North‑West Frontier Province Urban Planning Ordinance (IV of 1978)‑‑‑

‑‑‑‑Ss.50, 52 & 55‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Acquisition of land ‑‑‑Vires of North‑West Frontier Province Urban Planning Ordinance, 1978‑‑‑Government acquired land owned by the petitioners for extension of a residential scheme under the provisions of North‑West Frontier Province Urban Planning Ordinance, 1978‑‑‑Compensation was awarded after issuance of notice to the petitioners and the land was acquired‑‑ Petitioners assailed the acquisition proceedings on the ground that the provisions of North‑West Frontier Province Urban Planning Ordinance, 1978, were ultra vires the provisions of Land Acquisition Act, 1894‑‑‑Validity‑‑‑Proceedings under the provisions of North‑West Frontier Province Urban Planning Ordinance, 1978, were identical to the proceedings under the provisions of Land Acquisition Act, 1894‑‑ Although the proceedings were not in detail as were under the provisions of Land Acquisition Act, 1894, vet the same were not different in any aspect which could be complained against‑‑‑Appeal under, the provisions of North‑West Frontier Province Urban Planning Ordinance, 1978, was to be heard by the Commissioner, who was not a judicial officer but still the Commissioner was supposed to act in accordance with the provisions of the Ordinance and in case of non‑adherence to the provisions of law the same was amenable to judicial review of High Court under its Constitutional jurisdiction‑‑ Acquisition proceedings having been found to be just and fair, High Court refused to interfere in such proceedings‑‑‑Petition was dismissed in circumstances.

Nagpur Improvement Trust and another v. Vithal Rao and others AIR 1973 SC 689; P. Vajravelu Mudaliar v. The Special Deputy Collector for Land Acquisition, West Madras and another AIR 1965 SC 1017; The State of West Bengal v. Anwar Ali Sarkar and another AIR 1952 SC 75 and Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and others PLD 1972 Lah. 458 distinguished.

Ejaz Afzal for Petitioner.

Rashidul Haq Qazi, Addl. A.‑G., Ch. Muhammad Ghazanfar, A.A.‑C. and Abdul Haseeb Ahmad Abbasi for Respondents.

Date of hearing 15th February 2000.

YLR 2000 PESHAWAR HIGH COURT 2644 #

2000 Y L R 2644

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

MUSTEHKAM CEMENT LTD. ‑‑‑Petitioner

versus

STATE CEMENT CORPORATION OF PAKISTAN and 2 others‑‑‑Respondents

Writ Petition No. 22 of 2000, decided on 8th June, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 17(1) & 199‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑Constitutional petition‑‑Locus standi to file‑‑Petitioner was duly registered association under the provisions of Industrial Relations Ordinance, 1969 having a valid certificate of registration issued by Registrar of Trade Unions‑‑‑Members of the petitioner Associations were employees/officers of the respondent‑Company‑‑‑Rights of the employees/officers had been guaranteed under Art. 17(1) of the Constitution to form Association or union subject to any reasonable restrictions imposed by law‑‑Constitutional petition filed by the petitioner‑Association for the rights of its members was maintainable.

Pakistan Steel Re‑Rolling Mills Association v. Province of West Pakistan PLD 1964 W.P (Lah.) 138 and The Punjab Miners' Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum PLD 1972 Lah. 489 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Master and servant. relationship of‑‑‑Applicability‑‑‑Members of petitioner‑Association were not regulated by statutory Rules‑‑‑Effect‑‑‑Members of Association were governed by the law of master and servant in absence of any statutory rules governing the terms and conditions of their services‑‑‑Where principle of relationship of master and servant was existing, no direction in the nature of writ could be asked for‑‑‑Petition was not maintainable accordingly.

(e) Master and servant‑‑‑

‑‑‑‑ Where relationship of master and servant was in existence between the employer and the employee, remedy with the employee for the illegal act of the employer lay in suing the latter for damages.

R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Anwar Hussain v. A.D.V.P. PLD 1984 SC 194; M.H. Mirza v. C.D.A. 1994 SCMR 1024; Sardar Ali v. University of Punjab 1992 SCMR 109; Muhammad Umar Malik v. Muslim Commercial Bank Ltd. 1995 SCMR 453; Habib Bank Ltd. and others v. Syed Ziaul Hassan Kazmi 1998 SCMR 60; United Bank Ltd. and others v. Ahsan Akhtar and others 1998 SCMR 68 and Wazir Ali Khoja v. Muslim Commercial Bank Ltd. 1998 SCMR 1452 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Golden Hand Shake Scheme‑‑‑Failure of petitioner to approach the Court with clean hands‑‑‑Members of the petitioner‑Association were employees of the respondent‑Company, who had voluntarily accepted the retirement under Golden Hand Shake Scheme‑‑‑Employees were not governed with any statute or statutory rules‑‑Employees, after retirement had received substantial amounts as per their options and later on started asking for other benefits not applicable to the employees of the respondent‑Company‑‑‑Similar Constitutional petition had already been dismissed by another High Court and petitioner had kept secret from the Court the factum of such dismissal of earlier Constitutional petition‑‑Effect‑‑‑Where the petitioner without disclosing such fact invoked Constitutional jurisdiction. of the High Court, the petitioner had not approached the Court with clean hands‑‑‑Petition was dismissed in limine.

Abdur Rehman Qadir for Petitioner.

Abid Aziz Sheikh for Respondent

Date of hearing: 8th June, 2000.

YLR 2000 PESHAWAR HIGH COURT 2652 #

2000 Y L R 2652

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

Mst. AKBAR JAN‑‑‑Petitioner

versus

Mst. BIBI NASIM and 4 others‑‑‑Respondents

Writ Petition No. 129 of 2000, decided on 6th July, 2000.

West Pakistan: Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 14(1) (b)‑‑‑Guardians and Wards Act (VIII of 1890), Ss‑25 & 47(c)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑ Custody of minor ‑‑‑Appeal‑‑ Jurisdiction of District Judge‑‑‑Parents of the minor were separated after divorce‑‑‑Minor was looked after by his paternal grandmother‑‑‑Application for custody of minor was filed by mother of the minor and the same was contested by grandmother of the minor‑‑‑Guardian Judge allowed the application in favour of mother‑‑‑Appeal was filed by grandmother of the minor before Lower Appellate Court which dismissed the same on the ground that under the provision of S.47(c), Guardians and Wards Act, 1890, Lower Appellate Court had no jurisdiction to entertain the appeal‑‑‑Validity‑‑‑Where Civil Judge had acted as a Guardian Judge appeal against his order would lie to the District Judge under the provision of S. 14(I)(b) of West Pakistan Family Courts Act, 1964‑‑Judgment/order of the Lower Appellate Court, dismissing the appeal was set aside.

Sakhawat Ali and another v. Mst. Shui Khelay PLD 1981 SC 454; Mst. Zeenat un Nisa v. Muzzamal PLD 1972 Kar. 410; Muhammad Ismail v. Mst. Zubaida PLD 1974 Kar. 503; Muhammad Ismail v. Fazal Ahmad PLD 1969 Lah. 834; Mst. Parveen v. Khawaja Muhammad Akhtar PLD 1975 Lah. 334; Manzoor Hussain v. District Judge PLD

1977 Lah. 911 and Ehsanur Rehman v. Mst. Najma Parveen PLD 1986 SC 14 ref.

Syed Shabbir Hussain Shah for Petitioner.

Iftikhar Afzal for Respondents.

Date of hearing: 6th July, 2000.

YLR 2000 PESHAWAR HIGH COURT 2670 #

2000 Y L R 2670

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

MUHAMMAD ASHIQ and 2 others‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Law, Ministry of Law, Justice

and Parliamentary Affairs, Islamabad and 3 others‑‑‑Respondents

Writ Petition No. 54 of 1995, decided on 11th May, 2000.

Banking Tribunals Ordinance (LVIII of 1984)‑‑‑

‑‑‑‑S. 4(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Transfer of case from one Tribunal to another‑‑Jurisdiction of Federal Government‑‑Considerations for such transfer‑‑‑Earlier request for transfer of cases from Tribunal at place "A " to place "L " was turned down by the Federal Government but subsequently the cases were so transferred‑‑‑Such order of transfer was assailed by the petitioners on the ground that train parties to the proceedings were residents of place 'A', the Bank which initiated the proceedings against the petitioners was also located at place "A" apart from the present proceedings two recovery suits against the petitioners filed by the Bank were also pending adjudication at place "A "‑‑‑Validity‑‑‑Federal Government had the power and authority under S.4(2) of Banking Tribunals Ordinance, 1984 to transfer a case from one Tribunal to another for the convenience of the parties and in the interest of justice‑‑‑Petitioners, however, instead of having a convenience due to transfer of the case to the Tribunal at place "L" would face convenience to defend the case against them‑‑‑Matter was to be adjudicated by a Court having territorial jurisdiction‑‑‑Order of Federal Government transferring the proceedings from place "A " to place "L" was set aside in circumstances‑‑High Court directed that the case be tried by the Court having territorial jurisdiction i.e. the Court at place "A ".

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 and D.P. Edulji & Co. (Pvt.) Ltd. v. Government of Punjab and others 1995 MLD 1016 ref.

Ramzan Sugar Mills Ltd. v. Habib Bank Ltd. PLD 1996 Lah. 199 and Azizur Rehman v. Federation of Pakistan PLD 1996 Lah. 238 distinguished.

M.A. Tahir Kheli for Petitioners.

Mian Hamid Farooq for Respondents.

Date of hearing: 3rd May, 2000.

YLR 2000 PESHAWAR HIGH COURT 2678 #

2000 Y L R 2678

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

Mst. SAFFIYA BIBI‑‑‑Petitioner

versus

FAZAL DIN and 2 others‑‑‑Respondents

Writ Petition No. 100 of 2000, decided on 1st June, 2000.

(a) Muhammadan Law‑‑‑

‑‑‑‑ Khula'‑‑‑Concept.

Khula' is a release from matrimonial bond which according to dictates of Holy Qur'an, can be exercised if the circumstances indicate that it is impossible for the parties to live within the limits prescribed by Allah Almighty and their re‑union will give birth to hateful union.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑

‑‑‑‑S.8‑‑‑Dissolution of marriage on the basis of Khula'‑‑‑Family Court, duty of‑‑‑Scope‑‑Where wife expressly claims or omits to claim in her pleadings and even if the other grounds for seeking dissolution of marriage cannot be proved, Family Court is bound to grant the right of Khula' to such woman.

Mst. Zarina Bibi v. Additional District Judge, Jhang and others 1993 MLD 1507; Mst. Shakila Bibi v. Muhammad Farooq and another 1994 CLC 230; Mst. Razia Begum v. District Judge, Jhang 1995 CLC 657 and Mst. Manzooran Bibi v. Khan Muhammad and others 1998 CLC 1929 rel.

‑‑‑‑Art.132(2)‑‑‑Failure to cross‑examine a witness ‑‑‑Effect‑‑‑Where witness was not cross‑examined, her statement would be deemed to have been accepted in all respects., Muhammad Sharif v. Noor Ilahi and others PLD 1994 Pesh. 255 rel.

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

‑‑‑‑O.XIII, R.4‑‑‑Document‑‑‑Admission in evidence‑‑‑Once a document was admitted in evidence without any objection, the same could not be questioned subsequently.

Sardar Muhammad Zaman v. Muhammad Yahya 2000 CLC 296 rel.

(e) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Suit for dissolution of marriage on the ground of Khula'‑‑‑Concurrent findings of both the Courts‑‑‑Wife stated in her plaint that it was not possible for her to live with her husband within the limits prescribed by Allah‑‑‑Case of the wife was proceeded ex parte against her husband‑‑‑Despite the fact that the‑wife substantiated the same plea in her statement before the Family Court, her suit for dissolution of marriage was dismissed by the Family Court and the judgment was upheld by the Lower Appellate . Court‑‑Validity ‑‑‑Wife was entitled to Khula' in circumstances‑‑‑Judgments and decrees of both the Courts below being without lawful authority, were set aside and marriage was ordered to be dissolved on the basis of Khula'.

Abdur Rauf Khan Jadoon for Appellant.

Nasir Ayub Khan for Respondents.

Date of hearing: 1st June, 2000.

YLR 2000 PESHAWAR HIGH COURT 2779 #

2000 Y L R 2779

[Peshawar]

Before Abdur Rauf Khan Lughmani and Talat Qayum Qureshi, JJ

GUL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 35 of 1997, decided on 19th April, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 302(6)‑‑‑Appreciation of evidence ‑‑F.I.R. was belated by two and a half hours‑‑No source of light was available to identify the accused at the time of occurrence which had taken place in dark hours of the night‑‑Medical evidence had contradicted the ocular version‑‑‑Motive as alleged in the F.I.R. could not be proved by the prosecution‑‑Husband of the deceased had also other enemies and possibility could not be ruled out that the deceased might have been killed by them‑‑‑Accused was extended the benefit of doubt and acquitted in circumstances.

Ghulam Mustafa Swati for Appellant.

Muhammad Ayub Khan A.A.‑G for the State.

Date of hearing: 19th April, 200C

YLR 2000 PESHAWAR HIGH COURT 2792 #

2000 Y L R 2792

[Peshawar]

Before Talat Qayum Qureshi, J

MUHAMMAD RIAZ‑‑‑Petitioner

versus

MUHAMMAD SHAFIQ and another‑‑‑Respondents

Criminal Miscellaneous No. 141 of 2000, heard on 2nd June, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.324/34‑‑‑Bail, grant of‑‑‑Principle of consistency‑‑‑Applicability‑‑‑Injury on non vital part of body‑‑‑Single shot fired by accused‑‑‑Effect‑‑‑Accused was named in the FI.R. and no specific role had been attributed to him but he had only been charged for firing one shot at the victim‑‑‑ Effect‑‑‑Where the accused had not repeated the fire when the victim was completely at his mercy, prima facie there appeared to, be no intention on the part of the accused to cause death or Qatl‑e‑Amd of the victim‑‑‑Injuries had been found on the left leg of the victim which was not vital part of the body‑‑‑Was yet to be seen if the accused intended to kill the victim‑‑‑Question of applicability of 5.324, P. P. C. or that of 337‑F(ii), P. P. C. was still to be determined at the trial stage after examination of the complainant and prosecution witnesses‑‑‑Trial Court had already released co‑accused on bail‑‑Accused was admitted to bail in circumstances.

Tehmas Khan Jadoon for Petitioner.

H. Sabir, Hussain Tanoli for the State.

Date of hearing: 2nd June 2000.

YLR 2000 PESHAWAR HIGH COURT 2803 #

2000 Y L R 2803

[Peshawar]

Before Abdul Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

Sardar INAYATULLAH KHAN‑‑‑Petitioner

versus

THE STATE and 3 others‑‑‑Respondents

Writ Petition No. 50 of 1996, decided on 4th April, 2000.

(a) Criminal Procedure Code (V of 1898)

‑Ss. 133 & 134‑‑‑Public ‑nuisance‑‑Removal of obstruction‑‑‑Failure to issue notice‑‑‑Effect‑‑‑Order of removal of obstruction without notice was illegal.

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

‑‑‑‑Ss. 133 & 134‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Public nuisance, removal of‑‑‑Tower and chain fixed by the petitioner were alleged to be nuisance to public at large‑‑‑Trial Court on the basis of personal visit to the site ordered for the removal of the tower and the chain‑‑‑Validity‑‑‑Where neither any prior notice was given nor memorandum of spot inspection was prepared order of the Court to remove the tower and chain was illegal, void ab initio and without lawful authority‑‑‑High Court set aside the order and case was remanded to the Trial Court for decision afresh.

‑‑‑‑S. 539‑B‑‑‑Civil Procedure Code (V of 1908), O.XVIII, R.18 & O.X‑‑‑Local inspection‑‑‑Procedure‑‑‑To ensure transparent justice and that nothing was done at the back of either party, provisions of O.X, C. P. C. had to be applied.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑Suspension of impugned order‑‑‑Scope‑‑‑Mere pendency of Constitutional petition in High Court does not mean suspension of the impugned order, unless High Court otherwise directs.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑High Court (Lahore) Rules and Orders, Vol. V, Chap. 4, R.10‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑ Binding/typing charges, non‑deposit of‑‑‑Effect‑‑‑Such charges were not deposited by the petitioners in petitions involving extraordinary Constitutional jurisdiction of High Court and the petitioners were required to do typing/binding themselves of all the extra sets required in the petition‑‑‑Constitutional petition was maintainable in circumstances.

Shazullah v. Shahabuddin PLD 1.979 Pesh. 35 and Ajab Khan v. Karimi Industries Ltd. 1988 SCMR 1660 ref.

Gohar Zaman Khan Tannoli for Petitioner.

Muhammad Khan Khakwani for the

State Counsel for Respondents Nos. 1 to 3

Respondent No.4 in person.

Date of hearing: 4th April, 2000.

YLR 2000 PESHAWAR HIGH COURT 2814 #

2000 Y L R 2814

[Peshawar]

Before Mian Shakirullah Jan, J

MUHAMMAD YOUNIS‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 19 of 1998, decided on 16th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑Ss. 435 & 439‑A‑‑‑Hazara Forest Act (III of 1936), S.9/26‑‑‑Revision‑‑‑Jurisdiction of Sessions Judge‑‑‑Accused was convicted by Trial Court to undergo 3 months' simple imprisonment‑‑‑Appellate Court returned the appeal on the ground that conviction passed by the Executive Magistrate could not be competently filed before the Sessions Judge as it was only against the order of Judicial Magistrate which could be filed before the Sessions Judge‑‑‑Validity‑‑‑Executive Magistrate, under the provisions of S.435, Cr. P . C. read with S. 439‑A, Cr. P. C. was inferior to the Sessions Judge and in the absence of any forum of appeal to challenge order of conviction, the Sessions Judge was having the power to entertain such revision petition under Ss.435 & 439‑A, Cr.P.C.‑‑ Where there was no forum for filing of appeal, the bar would not come in the way of the accused, as he was unable to file appeal competently before any forum‑‑‑Sessions Judge could exercise his revisional power in circumstances.

Abdul Majid for Petitioner

Ghulam Younas Khan for the State.

Date of hearing : 9th May, 2000.

YLR 2000 PESHAWAR HIGH COURT 2820 #

2000 Y L R 2820

[Peshawar]

Before Tariq Pervez and Shah Jehan Khan, JJ

NAVEED AHMAD.‑ Petitioner

versus

THE STATE ‑‑‑Respondent

Criminal Miscellaneous No 109 of 2000 decided on 26th June, 2000.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, cancellation of‑‑‑Accused, who was a practising lawyer and a member of District Bar Association, was granted bail on ground of taking oral plea of alibi which was supported by President, Secretary‑General of Bar Association and another Advocate, who had testified by swearing through affidavits that at the time of occurrence accused was present in a bakery owned by uncle of the accused‑‑‑No reference was made in the application for pre‑arrest bail to the nature of alibi and affidavits of deponents, who had supported plea of alibi, were filed after about one and a half months of the occurrence‑‑Accused, though was entitled to take plea of alibi during enquiry, investigation or trial, but same if taken at the earliest opportunity i. e. immediately after the occurrence and during investigation when less time was available for fabrication, it would carry more authenticity than the one belatedly taken‑‑Deponents who filed their affidavits in support of plea of alibi belatedly, being themselves practising lawyers and colleagues of the accused, had filed affidavits just to oblige accused‑‑‑Judge Special Court being posted at station to which accused and deponents were practising lawyers, it appeared that bail granting order was passed under their influence‑‑‑Consideration for granting of bail and its cancellation, no doubt were different, but in view of direct charge for double murder against accused and proceedings under S.204, Cr.P.C. having been completed, finding of Judge Special Court in granting bail to accused on basis of plea of alibi could not be accepted‑‑Order granting bail to accused was recalled, in circumstances, and accused was ordered to be taken into custody.

Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑

‑‑‑ Art. 163‑‑‑Penal Code (XLV of 1860) 5.302/34‑‑‑Oath‑‑‑Evidentiary value of‑‑‑Evidentiary value of taking oath by accused or other party in criminal proceedings was not legal.

Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 ref.

M. Mujeeb Khan for Appellant.

Maqsood Kausar and Imtazi Ali, Addl. A.‑G. for the State.

Date of hearing: 26th June 2000.

YLR 2000 PESHAWAR HIGH COURT 3056 #

2000 Y L R 3056

[Peshawar]

Before Sardar Muhammad Raza, CJ

Shakirullah Jan and Talat Qayum Qureshi, JJ

BABER ELAHI and 9 others‑‑‑Petitioners

versus

DIRECTOR OF EDUCATION, PRIMARY SCHOOLS, N.‑W.F.P., PESHAWAR

and 3 others‑‑‑Respondents

Writ Petition No.374 of 1998, decided on 12th May, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑Discrimination‑‑‑Appointments to the posts of teachers having qualifications of Primary Teaching Certificate‑‑‑Candidates possessing required qualification from Elementary Colleges of North‑West Frontier Province were to be given preference over all others having qualified from any other Institution‑‑Contention was that candidates having the required qualification from the recognized institutions of the country were discriminated which was a violation of Art. 25 of the Constitution‑‑‑Validity‑‑‑Discrimination involved, indirectly affected the very incidence of recognition of certain institutions which were otherwise recognized by the Government as well as by the University Grants Commission‑‑‑Recognized Institutions in a country must be treated at par with each other failing which the importance of recognition would lose its very significance.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 25 & 199‑‑‑Constitutional petition‑‑‑ Equality of citizens ‑‑‑Discrimination‑‑Appointments to the posts of teachers‑‑Candidates having required qualification from Elementary Colleges of North‑West Frontier Province were to be given preference over all others having qualified from any other Institution‑‑‑Validity‑‑‑Advertisement issued by the Authorities and the system of selection resorted to, by giving preference to the Primary Teaching Certificate candidates having qualified from the Elementary Colleges of North‑West Frontier Province over all others having qualified from other similar or equivalent institutions of the country, was discriminatory and violative of the provisions of Art. 25 of the Constitution‑‑Petition was allowed in circumstances‑‑‑(Writ Petition No. 544 of 1995, decided on 27‑10‑1996 dissented from).

Writ Petition No.544 of 1995, decided on 27‑10‑1996 dissented from.

Khurshid Khan for Petitioners.

Qazi Muhammad Ghazanfar, A sstt. A.‑G. for Respondents.

Date of hearing: 12th May, 2000.

Punjab Bar Council

YLR 2000 PUNJAB BAR COUNCIL 2443 #

2000 Y L R 2443

[Lahore]

[Punjab Bar Council Tribunal]

Present: Raja Shafqat Khan Abbasi, Chairman, Khawar Mehmood, Rao Liaquat Ali Khan and Zafar Ahmad Chishti, Members

Sheikh JAN MUHAMMAD, ADVOCATE, LODHRAN‑‑‑Petitioner

versus

Chaudhry MUHAMMAD ALTAF, ADVOCATE, BAR ASSOCIATION, LODHRAN and 9 others‑‑‑Respondents

Election Petition No. 7 of 2000, decided on 5th June, 2000.

Punjab Legal Practitioners and Bar Councils Rules, 1974‑‑‑

‑‑‑‑R. 5.11(i) & (xii)‑‑‑Memorandum of Association, 1981, Arts. 5(d) & 45‑‑‑Election petition‑‑‑Election of returned candidate had been challenged by the unsuccessful candidate on ground that Election Board had not complied with the instructions issued by Punjab Bar Council and had allowed voters to cast their votes without asking for production of "Identity Cards" issued to them by Punjab Bar Council and that Election Board had allowed certain Advocates to cast their votes at place L' who were not voters/members of the said place but were voters/members of places "M" and "B"‑‑Returned candidate who resisted the election petition had produced photo copy of undertaking given by the contesting candidates in which it was agreed that condition of identity cards issued by Punjab Bar Council was waived‑‑‑Such undertaking being against spirit of R.5.11(xii) of Punjab Legal Practitioners and Bar Councils Rules, 1974 and instructions issued by Punjab Bar Council at time of polling parties could not be permitted to bypass the rules and instructions‑‑‑Non production of identity cards was glaring irregularity and illegality committed by Election Board and due to said act of Election Board, certain persons were allowed to cast their votes at place "L" who were not holding their voter membership thereat‑‑‑Said persons/Advocates were not competent to cast their votes and to become voters/members of place "L ", without filing declaration which was necessary under the Rules‑‑‑Any act required to be done in a particular way had to be done in that manner and not in any other manner‑‑‑Election Board was not justified to allow persons/advocates to cast their votes at place "L" who were voters/members of places "B" and "M "‑‑‑ Election result was set aside with the direction that Election Board be constituted for holding re polling.

Petitioner in person.

Ch. Akhtar Nazir for Respondent No. 1.

Date of hearing: 5th June, 2000.

Quetta High Court Balochistan

YLR 2000 QUETTA HIGH COURT BALOCHISTAN 2673 #

2000 Y L R 2673

[Quetta]

Before Fazal‑ur‑Rehman, J

MUHAMMAD QASIM and 3 others‑‑‑Petitioners

versus

ABDUL QADIR‑ Respondent

Civil Revision No. 366 of 1999, decided on 15th November, 1999.

Specific Relief Act (1 of 1877)‑‑‑

Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Courts below had concurrently concluded that plaintiffs had failed to produce any documentary or oral evidence to prove their title in respect of suit property; that plaintiffs had only proved their possession over the snit property and that mere adverse possession would not offer any title or right to plaintiffs as doctrine of adverse possession was repugnant to Injunctions of Islam‑‑‑Concurrent findings of Courts below arrived at after analysing evidence on record in its true perspective, could not be interfered with by High Court in revision when there teas no error of late, defect in procedure and illegality or irregularity in their judgments.

M. Riaz Ahmed for Petitioners.

Muhammad Hashim Khan Kakat Respondent.

Date of hearing 22nd October 1999.

YLR 2000 QUETTA HIGH COURT BALOCHISTAN 2706 #

2000 Y L R 2706

[Quetta]

Before Aman Ullah Khan Yasinzai and Fazal‑ur‑Rehman, JJ

GOVERNMENT OF PAKISTAN through Secretary, Pakistan Public Works Department, Islamabad and another‑‑‑Appellants

Versus

Messrs MALIK MUHAMMAD AZEEM & BROS. ‑‑‑Respondent

Regular First Appeal No. 53 of 1999, decided on 26th June, 2000.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.39‑‑‑Award‑‑‑Considering of grounds raised in objections fled after the period of limitation‑‑‑Compensatory cost, awarding of‑‑‑Trial Court while making award rule of the Court had rejected the objections raised by the appellants as the same were barred by time‑‑‑Validity‑‑‑Where the objections were rejected by the Trial Court being time‑barred, such objections could not be considered by High Court at appellate stage‑‑‑Arbitrator had passed the award after taking into consideration the claim put forth by the respondent and the objection raised by the appellants‑‑‑No illegality apparent on the face of the award was pointed out by the appellants‑‑‑Where claim of the respondent was admitted by the arbitrator, the respondent was entitled to compensatory cost which was awarded by High Court to the respondent.

Ganesh Chandra Misra v. Artatrana Misra and others AIR 1965 Orissa 17 ref.

Zahid Malik for Appellants.

Basharatullah for Respondent, Date of hearing: 26th June, 2000.

YLR 2000 QUETTA HIGH COURT BALOCHISTAN 2716 #

2000 Y L R 2716

[Quetta]

Before Aman Ullah Khan Yasinzai, J

BAHAUDDIN BOOTWALA. Appellant

Versus

MUHAMMAD AFZAL Respondent

First Appeal from Order No. 266 c 1998 decided on 12th April, 1999.

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

‑‑‑‑S.13‑‑‑Ejectment of tenant‑‑‑Relationship of landlord and tenant was denied by tenant on the ground that he was inducted as a tenant by the previous owner and had been paying rent to the previous owner‑‑‑Rent Controller accepting the relationship of landlord and tenant between the parties allowed the ejectment application ‑‑‑Validity‑Previous owner, after purchase of the property, transferred the same to the present landlord by way of gift, therefore, the present landlord had stepped into the shoes of the previous owner‑‑‑In absence of an agreement to the contrary, relationship of landlord and tenant existed between the parties‑‑‑Rent Controller had rightly exercised jurisdiction‑‑‑Where both the parties agreed to a procedure for their own convenience and to save time, neither any prejudice was caused nor any illegality was committed by the Rent Controller.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Province of Punjab through Secretary, Education and another v. Mufti Abdul Ghani PLD 1985 SC 1; Muhammad Hanif v. Mumtaz Ahmad PLD 1986 Kar. 16; Aziz‑ur‑Rehman v. Pervaiz Shah and others 1997 SCMR 1819: Sheikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1997 SCMR 307; Messrs M. Qasim v. Sharbat Khan 1992 MLD 115; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200 and Saeed Muhammad v. Mehrullah and another PL'D 1996 Quetta 48 ref.

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

‑‑‑‑S.13‑‑‑Bona fide personal need of landlord‑Proof ‑‑‑Where the sole testimony of landlord was confidence inspiring and was not rebutted by the tenant, such testimony was sufficient to establish his personal bona fide need of the premises.

Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

Tahir Muhammad Khan for Appellant.

H. Shakeel Ahmed for Respondent

Date of hearing: 22nd March, 1999,

YLR 2000 QUETTA HIGH COURT BALOCHISTAN 2861 #

2000 Y L R 2861

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Fazal‑ur‑Rehman, J

THE STATE‑‑‑Appellant

versus

KHAN MUHAMMAD alias KHANOON and another‑‑‑Respondents

Criminal Appeal No.(S) 10 and Murder Reference No. 2‑S of 2000, decided on 13th June, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 (a) & 302 (b)‑‑‑Appreciation of evidence ‑‑‑Eye‑witnesses of the occurrence were natural and independent and their testimony being consistent about place of occurrence, assault by accused on the deceased by knives and their apprehension at the spot .alongwith crime weapons, inspired confidence‑‑‑Merely because the eye‑witnesses were police officials was not sufficient to make them interested witnesses in circumstances‑‑‑Accused had common intention in committing the crime and it was, therefore, immaterial as to which part was played by whom in the occurrence‑‑‑Knives recovered from the possession of accused were found stained with human blood by the Chemical Examiner‑‑‑Motive for the incident was proved‑‑‑Defence plea was neither reasonable nor, worthy of reliance‑‑‑Proof of Qatl‑i‑Amd liable to Qisas, however, having not been brought on record, accused could not be convicted under S.302(a), P. P. C. and they were consequently convicted under S. 302 (b), P. P. C. ‑‑‑Accused had brutally committed the murder of the deceased in a desperate manner by inflicting as many as fourteen injuries on his person with knives and no mitigating circumstance appeared in their favour for awarding then lesser penalty‑‑‑Accused were sentenced to death as "Tazir" in circumstances.

1999 YLR 2360; 2000 PCr.LJ 11; 2000 SCMR 163; 2000 SCMR 338; 2000 PCr.LJ 47; PLD 1991 FSC 186 and Ghulam Ali v. The State PLD 1986 SC 741 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.34‑‑‑Common intention‑‑‑Common intention has to be gathered from the facts disclosed in evidence and surrounding circumstances‑‑‑Common intention can be found at the spur of the moment‑‑‑Once it is found that the accused had common intention to commit the crime, it is immaterial as to which part was played by whom.

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Police witnesses‑‑‑Police officials who were natural and disinterested witnesses were competent witnesses and their evidence could not be discarded without considering the same on merits.

(d) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Police witnesses‑‑‑Police officials who were natural and disinterested witnesses were competent witnesses and their evidence could not be discarded without considering the same on merits.

Muhammad Mohsin Javed for Appellants.

Ikhtiar Khan Marghazani, Asstt. A.‑G. for the State.

Akbar Ali Baloch for the Complainant.

Date of hearing: 22nd April, 2000

Shariat Court Azad Kashmir

YLR 2000 SHARIAT COURT AZAD KASHMIR 65 #

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YLR 2000 SHARIAT COURT AZAD KASHMIR 167 #

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YLR 2000 SHARIAT COURT AZAD KASHMIR 266 #

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YLR 2000 SHARIAT COURT AZAD KASHMIR 302 #

2000 Y L R 302

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MEHBOOB KHAN‑‑‑Appellant

versus

MUHAMMAD AJAIB and others‑‑‑Respondents

Criminal Appeal No.21 of 1997, decided on 26th July, 1999.

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (XLV of 1860), S. 341 /147/148/149‑‑‑Appreciation of evidence‑‑‑Principle‑‑‑Witnesses once having been declared "Adil " by Trial Court under Shariat Law cannot be declared liars on the same breath without any solid and cogent reasons, even though they are interested witnesses.

PLD 1983 SC (AJ&K) 211 and PLD 1988 SC (AJ&K) 134 ref.

(b) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 8c 3/24‑‑‑Penal Code (XLV of 1860), S. 341 /147/148/149‑‑‑Appreciation of evidence‑‑‑Conflict between medical and ocular evidence‑‑‑Medical evidence being a type of confirmatory evidence, loses its value and cannot out‑wit the ocular version when the eye‑witnesses are cogent and reliable.

Muhammad Hanif v. The State PLD 1993 SC 895 ref.

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (XLV of 1860), S.341 /147/148/149‑‑‑Appreciation of evidence‑‑‑Defective investigation ‑‑‑Effect‑‑Mistake and irregularity in investigation or inaction of police cannot demolish the prosecution case if otherwise the offence against the accused is proved by the evidence on record.

PLD 1984 SC (AJ&K) 82 ref.

(d) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (XLV of 1860), S. 341 /147/148/149‑‑‑Appreciation of evidence‑‑‑Self‑defence, plea of‑‑‑Failure of the prosecution to explain the injuries on the person of accused would not bring the case within the ambit of self‑defence.

Muhammad Hanif v. The State PLD 1993 SC 895 and Shabbir Ahmed v. The State and another 1997 PCr.LJ 1539 ref.

(e) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (JLV of 1860), S.341 /147/148/149‑‑‑Appreciation of evidence‑‑‑Delayed F.LR.‑‑‑Delay in lodging F.LR., per se, is no ground for throwing out the prosecution case.

Muhammad Ramzan v. The State 1996 SCR 336; Shabbir Ahmed v. The State and another 1997 P.Cr.L.J 1539; Nazir Ahmad Khan and 3 others v. The State PLD 1998 SC (AJ&K) 43 and Zahir Hussain Shah v. Shah Nawaz Khan and others (unreported), dated 30‑6‑1999 ref.

(f) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (XLV of 1860), S. 341 /147/148/149‑‑‑Criminal Procedure Code (V of 1898), 5.417‑‑‑Appeal against acquittal‑‑‑F.I.R. about the occurrence was not a belated one‑‑‑Crime empty secured from the spot was found to have been fired from the gun recovered from the accused‑‑‑Motive set up by the prosecution had fully supported the prosecution version‑‑‑Plea of alibi taken by accused was not substantiated‑‑‑Five eye witnesses had proved the occurrence out of which two were independent witnesses having no malice and animus for false implication of accused‑‑‑Ocular testimony was corroborated by medical evidence and incriminatory recoveries‑‑‑Time, place of occurrence, presence of eye‑witnesses as well as of accused on the spot were admitted and established‑‑‑Impugned judgment of Trial Court acquitting the accused was set aside in circumstances being illegal and the accused was convicted under 5.3/24 of the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974‑‑‑Accused after his acquittal by Trial Court had got expectancy of life and therefore he was awarded the sentence of imprisonment for life with fine‑‑Benefit of S. 382‑B, Cr. P. C. was, however, not extended to accused as he had committed the brutal murder of a young man of 24 years without provocation.

Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146; PLD 1980 FSC 1; Niaz Muhammad alias Jaja and another v. The State PLD 1983 SC (AJ&K) 211; Kabir Hussain Shah v. The State PLD 1984 SC (AJ&K) 82; Khawaja Imtiaz Ahmed v. The State PLD 1988 SC (AJ&K) 134; Muhammad Ramzan v. The State 1996 SCR 336: 1981 PCr.LJ 809; The State v. Muhammad Akram and another 1987 PCr.LJ 1728; Muhammad Hanif v. The State PLD 1993 SC 895; Muhammad Khalil v. The State 1992 SCR 249; Shabbir Ahmed v. The State and another 1997 PCr.LJ 1539; Nazir Ahmad Khan and 3 others v. The State PLD 1998 SC (AJ&K) 43; Zahir Hussain Shah v. Shah Nawaz Khan and others (unreported) decided on 30‑61999; Ahmad Khan and 2 others v. The State 1991 PCr. LJ 301; Muhammad Rafique and others v. The State and others 1999 SCMR 1208 and Gul Zaman v. The State 1999 SCMR 1271 ref.

(g) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (XLV of 1860), S.341 /147/148/149‑‑‑Appreciation of evidence ‑‑‑Corroboration ‑‑‑Corroboration does not necessarily mean the evidence of any independent witness but anything in the circumstances which tends to satisfy the Court that any such interested witness has spoken the truth is sufficient.

Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146; Muhammad Ramzan v. The State 1996 SCR 336 and Gul Zaman v. The State 1999 SCMR 1271 ref.

(h) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (XLV of 1860), S.341 /147/148/149‑‑‑Appreciation of evidence‑‑‑Examination of prosecution witnesses‑‑Prosecution is not bound to produce all the eye‑witnesses before the Court because no particular number of witnesses is fixed under the law to prove the offence of murder.

Muhammad Rafique and others v. The State and others 1999 SCMR 1208 ref.

(i) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss.5/15 & 3/24‑‑‑Penal Code (XLV of 1860), S. 341 /147/148/149‑‑‑Appreciation of evidence‑‑‑ Corroboration‑‑‑ Where the evidence of eye‑witnesses is clear, cogent and convincing, conviction in law can be recorded on such evidence alone without further corroboration.

Abdul Majid Mallick for Appellant.

Muhammad Akram with Sherzaman Chaudhry for Respondents.

Mushtaq Chaudhry, Addl. A.‑G. for the State.

YLR 2000 SHARIAT COURT AZAD KASHMIR 443 #

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YLR 2000 SHARIAT COURT AZAD KASHMIR 515 #

2000 Y L R 515

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

TALIB HUSSAIN and another‑‑‑Appellants

versus

TASAWAR HUSSAIN and others‑‑‑Respondents

Criminal Miscellaneous Appeals Nos. 4 and 1 of 1995, decided on 26th June, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Eye‑witness who was not inimical towards accused‑‑‑Credibility of such testimony‑‑Absence of enmity between the eye‑witnesses and the accused by itself was not sufficient for conviction of accused if evidence of such eye‑witness was inherently unreliable.

Muhammad Iqbal v. The State 1984 SCMR 930 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), 5.417‑‑ Appeal against acquittal‑‑Ocular account of occurrence was highly discrepant and inconsistent and was clearly contradicted by medical evidence ‑‑‑Eyewitnesses were closely related to the deceased and their testimony was not corroborated by any independent source‑‑‑Conviction could not be recorded on conjectures and surmises‑‑‑Trial Court had rightly acquitted the accused in circumstances‑‑‑Appeal against acquittal of accused was dismissed accordingly.

A I R 1934 PC 227; P L D 1978 SC 114; P L D 1979 S C 934; 1982 S C M R 420; 1984 S C M R 423; 1984 S C M R ‑ 545; Muhammad Iqbal v. The State 1984 S C M R 930; Nazim Khan and 2 others v. The State 1984 S C M R 1092 and Muhammad Bashir v. The State 1992 P Cr. L J 597 ref.

‑‑‑‑ Burden of proof‑‑‑Prosecution is duty bound not only to. prove the occurrence but to prove the details of the offence as, well and when two possibilities emanate from the prosecution evidence, possibility going in favour of the accused may be . given the preference.

Abdul Majeed Mallick for the Complainant‑Appellant.

M. Azam Khan for Respondents.

Muhammad Mushtaq Ch., Addl, A.‑G. for the State.

YLR 2000 SHARIAT COURT AZAD KASHMIR 619 #

2000 Y L R 619

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

Mst. NASHADA BEGUM alias

SHAHZIA BEGUM‑‑‑Appellant

versus

MUHAMMAD AYUB KHAN‑‑‑Respondent

Criminal Appeal No. l l of 1998, decided on 24th July, 1999.

(a) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S.5‑‑‑Maintenance includes past, present and future maintenance.

(b) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S.5 & Sched‑‑‑Suit for maintenance‑‑Jurisdiction of Civil Court‑‑‑Scope‑‑‑Civil Courts in Azad Jammu and Kashmir are not competent to entertain suits pertaining to matters listed in Sched to Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑Family Courts have the exclusive jurisdiction to entertain, hear and adjudicate upon such matters.

Muhammad Saleem v. Additional District Judge, Rahimyar Khan 1988 CLC 1134 and Muhammad Nawaz v. Mst. Khurshid Begum and others PLD 1972 SC 302 ref.

‑‑‑‑Ss.5 & 20‑‑‑Criminal Procedure Code (V of 1898), S.488‑‑‑Application for maintenance‑‑‑Jurisdiction of Magistrate First Class‑‑‑Jurisdiction of Magistrate First Class having power under 5.488, Cr. P. C. stands ousted under provisions of S.20 of Azad Jammu and Kashmir Family Courts Act, 1993.

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

‑‑‑‑S.488‑‑‑Azad Jammu and Kashmir Family Courts Act, 1993, Ss.5 & 20‑‑‑Application for maintenance‑‑‑Powers of Family Courts‑‑Scope‑‑‑Family Courts while entertaining any such application under 5.488, Cr. P. C. cannot go beyond the amount specified by the legislation‑‑‑Such maintenance can be awarded from the date of application or from the date of order by the Family Court.

Asif Kayani for Appellant.

Sardar Abdul Khaliq Khan for Respondent.

YLR 2000 SHARIAT COURT AZAD KASHMIR 758 #

2000 Y L R 758

[Shariat Court (AJ&K)]

Before Khawaja Muhammad Saeed, C.J.

and Iftikhar Hussain Butt, J

SHAISTA BEGUM and 5 others‑‑‑Appellants

versus

THE STATE through Advocate General‑‑‑Respondent

Criminal Appeal No.5 of 1995, decided on 15th January, 2000.

(a) Criminal trial‑‑‑

‑‑‑‑Confession‑‑‑Conviction on retracted confession‑‑‑Conviction could not be sustained on retracted confession unless it was corroborated by independent evidence in material particulars‑‑‑Prosecution version of motive, by itself, would not be sufficient to corroborate confession of accused.

(b) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑S.5‑‑‑Appreciation of evidence‑‑‑Material discrepancy was found in prosecution story with regard to recovery of dead body of deceased which was not recovered‑‑‑Alleged confession of accused which was retracted was not corroborated by independent evidence and same was not proved to be voluntary, but was made under duress and pressure of police‑‑‑Story of confession being shrouded in mystery, same could not be believed and conviction could not be sustained on such a confession ‑‑‑F.LR. was lodged after one month and twenty days of disappearance of deceased and no plausible explanation of convincing nature was given by prosecution for said inordinate delay‑‑Cutting was found in F.I.R. but no reasonable explanation was given by prosecution in that respect, which had made prosecution case very doubtful‑‑‑No respectable of the locality was associated with recovery despite their availability at relevant time‑‑‑Prosecution witnesses did not corroborate alleged confession on material particulars of the case‑‑‑Prosecution having failed to prove beyond reasonable doubt the guilt of accused, conviction and sentence awarded to accused by Trial Court, were set aside in circumstances.

PLD 1968 Pesh. 23; 1969 PCr.LJ 1586; PLD 1972 Kar. 292 ,and (ISLAM KA FAUJDARI QANOON written by ABDUL QADIR ODHA SHAREEF 489)

‑‑‑‑Precedents‑‑‑Principle‑‑‑Each criminal case had its own facts and same had to be decided in the light of facts of the case.

Mirza Muhammad Nisar for Appellants.

A.R. Kernahi, Asstt. A.‑G. for the State.

YLR 2000 SHARIAT COURT AZAD KASHMIR 885 #

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YLR 2000 SHARIAT COURT AZAD KASHMIR 907 #

2000 Y L R 907

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan

and Syed Hussain Mazhar Kaleem, JJ

Prof. ZAHID HUSSAIN MIRZA‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.89 of 1999, decided on 29th September, 1999.

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

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Duty of Court‑‑While deciding a bail application, Court had to make a tentative assessment of the available record.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.295‑Al298/298‑A & 298‑C‑‑‑Bail, grant of‑‑‑Book written by accused carried remarks about Holy Prophet (p.b.u.h.) and accused in the book had hurt feelings of followers of the Holy Prophet (p.b.u.h.)‑‑‑Survey of the book and opinion of religious scholars with regard to contents of the book, had shown that case against accused was not fit for allowing him bail‑‑‑Court below, in circumstances, had not committed any illegality in refusing bail to accused.

Nasir Ahmed v. The State 1993 SCMR 153 ref.

Raja Bashir Ahmad Khan for Petitioner.

Riaz Alain and Nazir Ahmad Ghori for the Complainant.

Shiraz Kayani, A.‑G., Chaudar

Muhammad Mushtaq, A.A.‑G. and Khalid Rashid, Public Prosecutor for the State.

YLR 2000 SHARIAT COURT AZAD KASHMIR 927 #

2000 Y L R 927

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

ABDUL HAMID KHAN and others‑‑‑Petitioners

versus

Mirza WILLAYAT HUSSAIN and others‑‑‑Respondents

Criminal Appeal No. 15 and Criminal Miscellaneous Petition No.29 of 1999, decided on 22nd December, 1999.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860:), S.302/ 324/ 337/ 147/ 148/ 149‑‑‑Bail‑‑‑Firing allegedly made by accused had resulted in death of two persons and injuries to some prosecution witnesses‑‑‑Such allegations were, prima facie, supported by the medical evidence and recovery of deadly weapons at the instance of the accused‑‑‑Accused were linked with the commission of offence punishable with death or imprisonment for life and their case fell within the prohibitory clause of S.497(1), Cr.P.C., in which refusal of bail was a rule and its acceptance was an exception‑‑‑Order of lower Court refusing bail. to accused was not perverse or whimsical and had been recorded according to the admitted principles of law governing bail matters‑‑‑Bail was declined to accused in circumstances.

PLD 1988 SC (AJ&K) 148; 1991 PCr.LJ 1856; 1995 SCR 104; 1995 SCR 237; 1997 SCR 125; PLD 1967 SC 340; PLD 1978 SC 236; PLD 1987 SC (AJ&K) 27; PLD 1989 SC 13; PLD 1989 SC 633; PLD 1991 Azad J&K 70 and Anjum Nisar Mir and another v. The State through Advocate General PLD 1988 SC (AJ&K) 198 ref.

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

‑‑‑‑S.497‑‑‑Penal Code (AL V of 1860), S.302/ 324/ 337/ 147/ 148/ 149‑‑‑Bail‑‑‑Accused had neither caused any injury to the deceased, nor they had used any deadly weapons‑‑‑No fatal injury was attributed to accused‑‑‑Vicarious liability of accused and quantum of their liability in the occurrence was yet to be determined at the trial‑‑‑Neither the deceased had assigned any overt act to accused, nor any of the prosecution witnesses in his statement under 5.161, Cr. P. C. had involved them in the crime‑‑‑Case against accused, thus, needed further probe‑‑‑Accused were admitted to bail in circumstances.

‑‑‑‑S.497(5)‑‑‑Penal Code (,XLV of 1860), S. 302/324/ 337/147/ 148/149‑‑‑Cancellation of bail‑‑‑Principle‑‑‑Once bail is allowed to an accused by a competent Court, the concession cannot be withdrawn until and unless the order granting bail is shown to be capricious, whimsical, illegal or irregular.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/337/147/148/149-----Bail-----Common intention and abetment ‑‑‑Determination of‑‑Question of common intention and abetment must be decided by the Trial Court on appreciation of all the facts and attending circumstances of the case.

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

‑‑‑‑S.497‑‑‑Penal Code (J1LV of 1860), S.302/324/ 337/147/148/149‑‑‑Bail‑‑‑Gravity of offence‑‑‑Mere heinousness or gravity of offence by itself is no ground for refusal of bail.

Mirza Muhammad Nisar for Petitioners.

Abdul Majeed Mallick for the Complainant.

Muhammad Mushtaq Chaudhry, A.A.‑G. for the State.

YLR 2000 SHARIAT COURT AZAD KASHMIR 956 #

2000 Y L R 956

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Raja MUHAMMAD MAQSOOD‑ Appellant

versus

Mst. KOUSAR NISAR and others‑‑‑Respondents

Civil Appeals Nos.33 and 34 of 1998, decided on 29th September, 1999.

(a) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑

‑‑‑‑S.2‑‑‑Dissolution of marriage‑‑Allegations of non‑payment of maintenance allowance or cruel behaviour and bad character of husband‑‑‑Proof‑‑‑Sole statement of wife was not sufficient to prove her case on such allegations.

(b) Appeal (civil)‑‑‑

‑‑‑‑ Seeking of different and contradictory relief in appeal‑‑‑Any relief which was different and contradictory from the case already set up in pleadings before Trial Court, could not be looked into‑‑‑Party asking for such relief was not entitled to same on that contradictory ground.

1993 SCR 335 and 1993 SCR 340 ref.

‑‑‑‑ Khula‑‑‑Dissolution of marriage on the basis of Khula‑‑‑Return of benefits by wife‑‑Scope‑‑‑Wife in case of Khula is supposed to restore the dower money, the property and all other gifts etc., which she has received from her husband at the time of marriage.

1993 SCR 335; 1993 SCR 340 and 1999 MLD 1763 ref.

Imtiaz Ahmed Khan for Petitioner.

Sardar Ghulam Mustafa Khan for Respondent.

YLR 2000 SHARIAT COURT AZAD KASHMIR 1145 #

2000 Y L R 1145

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

ASIF BUTT and another‑‑‑Petitioners

versus

THE STATE‑‑‑Non‑Petitioner

Miscellaneous Petition No.54 of 1999, decided on 6th January, 2000.

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

‑‑‑‑5.426‑‑‑Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.20‑‑‑Suspension of sentence‑‑‑Accused had failed to make out

case for suspension of sentence as no ground prima facie was disclosed which might have

created doubt about his conviction and no likelihood of delay was shown in disposal of his appeal up to an unreasonable time‑‑‑

Evidence about alleged recovery of article, was neither contradictory nor discrepant‑While deciding petition for suspension of sentence, Appellate Court would not undertake reappraisal of entire evidence, but would confine itself to those infirmities in judgment of Trial Court with reference to the grounds argued in memo. of appeal which could show that conviction was not sustainable in law‑‑‑If it appeared on face of judgment from a tentative opinion that convict had equal chance of acquittal, Court could suspend sentence and convict could be enlarged on bail‑‑ Accused were charged with murder of real brother of complainant, which was committed during pendency of trial of case while accused were enlarged on bail‑‑Petition for suspension of sentence, was dismissed, in circumstances. (p. 11471 A

1984 PCr.LJ 1222 ref.

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

‑‑‑‑Ss.426 & 497‑‑‑Suspension of sentence‑‑Bail, grant of‑‑‑Convict was not to be placed or treated with accused on same footing while considering question of bail‑‑‑After conviction initial presumption was against innocence of convict‑‑‑Person convicted of a non‑bailable offence by a competent Court was not entitled to be enlarged on bail by Appellate Court except in special circumstances. [p. 11471 B

M. Y. Tahir for Petitioners.

Abdul Hamid for Non‑Petitioner.

the State. M. Mushtaq Chaudhry, A.A.‑G. for

YLR 2000 SHARIAT COURT AZAD KASHMIR 1389 #

2000 Y L R 1389

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

ALAM ZAIB‑‑‑Petitioner

versus

Haji MUHAMMAD RAMZAN and

another‑‑‑Respondents

Criminal Revision Petition No.37 of 1999, decided on 29th November, 1999.

(a) Precedent‑‑‑

‑‑‑‑ Authority in criminal case ‑‑‑Relevance‑‑ Authority in criminal case was relevant only to the facts of the case in which same was given.

1993 SCR 122 ref.

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

‑‑‑‑Ss.497 & 498‑‑‑Bail, grant of‑‑Abscondence of accused‑‑‑Effect‑‑‑Mere abscondence was not sufficient to refuse bail to accused‑‑‑Attending circumstances could also be considered while passing order for grant of bail‑‑‑Absconder could be released on bail if he otherwise was entitled to bail as of right under subsection (2) of S.497, Cr.P.C. or absconsion was satisfactorily explained by accused so as to establish that in reality it did not amount to abscondence‑‑ Rule that a fugitive should, under no circumstances, be enlarged on bail, was not an absolute rule though abscondence would constitute a relevant factor while examining question of bail.

PLD 1971 Lah. 195 and PLD 1985 SC 402 ref.

‑‑‑‑Ss.497(2) & 498‑‑‑Penal Code (XLV of 1860), Ss.302/324, 147/148, 149/452, 337‑F & 427/109‑‑‑Interim bail, confirmation of‑‑No overt act was attributed to accused and he was not present on the scene of occurrence and also no recovery was to be made out from him‑‑‑Accused was not alleged to have any hostility against deceased‑‑‑Accused had voluntarily surrendered before Court and benefit of S.169, Cr.P.C. was extended to him by police‑‑‑All other co‑accused except principal accused had been granted bail‑‑‑Accused was also entitled to grant of bail on principle of consistency‑‑Peculiar facts and circumstances needed further probe and inquiry into guilt of accused within contemplation of S.497(2), Cr.P.C.‑‑‑Interim bail granted to accused was rightly confirmed, in circumstances.

PLD 1971 Lah. 195; PLD 1985 SC 402; 1986 PCr.LJ 2983; 1991 SCMR 322; 1993 PCr.LJ 683; 1994 SCR 136; 1995 PCr.LJ 1416 and '1997 SCR 125 ref.

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

‑‑‑‑S.498‑‑‑Pre‑arrest bail, grant of‑‑Principles‑‑‑Pre‑arrest bail could be granted in the circumstances when arrest was being made for ulterior motives such as to cause humiliation, unjustified harassment and was motivated so as to cause irreparable injury to reputation, liberty of accused or on account of political consideration‑‑‑When one of such conditions existed, pre‑arrest bail could be allowed by examining facts of each case.

Muhammad Yunus and another v. Malik Muhammad Nawaz and another 1997 SCR 125 ref.

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

‑‑‑‑Ss. 497 & 498‑‑‑Bail, grant of‑‑‑Principle of‑‑‑For purpose of bail law was not to be stretched in favour of prosecution‑‑‑If at all any benefit of doubt arose, even at the stage of bail, it must go to the accused.

Muhammad Yunus and another v. Malik Muhammad Nawaz and another 1997 SCR 125 ref.

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

‑‑‑‑S. 497(5)‑‑‑Bail, cancellation of‑‑‑Once bail was granted by the Court of competent jurisdiction, strong and exceptional grounds would be required for cancellation there of a discretion for granting bail was exercised by Court in accordance with settled principles of law for promoting ends of justice, it necessarily would connote an act of judicial character which was fair and just exercise of judgment.

PLD 1999 Lah. 516 ref.

Muhammad Azam Khan for Petitioner.

Muhammad Sharif Tariq for Respondent.

Muhammad Mushtaq Ch., Addl. A.‑G. for the State.

YLR 2000 SHARIAT COURT AZAD KASHMIR 1542 #

2000 Y L R 1542

[Shariat Court (AJ&K)]

Before Khawaja Muhammad Saeed, C. J. and Iftikhar Hussain Butt, J

MUHAMMAD TAZEEM and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 17 and 22 of 1998, decided on 2nd May, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 307/341 /147/148/149‑‑‑AzadJammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5/15‑‑

Appreciation of evidence ‑‑‑FLR. though was filed after . five and half hours of the occurrence, but delay which was satisfactorily explained, was not fatal for prosecution case‑‑‑Prosecution witnesses were not only related inter se, but were also closely related to the deceased‑‑‑Prosecution witnesses were not only interested, but were inimical to accused as they were involved in civil and criminal litigation‑‑‑Evidence of

such witnesses had to be appraised with great care and caution and their evidence must be supported by some independent corroboration, which was lacking in the case‑‑‑Story of occurrence had become suspicious due to discrepancies and contradictory statements as given by complainant and prosecution witnesses‑‑

Medical report was issued, after about twenty days of examination of injured persons and the delay was not explained‑‑‑Statement of star prosecution witness was recorded by Police after ten days of the occurrence and in the absence of any explanation, such statement could not be relied upon‑‑‑Ocular

version suffered from inherent material contradictions which had gone to the root of case and prosecution evidence had not come from unimpeachable source‑‑‑Evidence of eyewitnesses who were not natural witnesses, did not ring true in its intrinsic and inherent value‑‑‑Evidence did not inspire confidence and trust and thus, strong corroboration of

such testimony was required for safe dispensation of justice‑‑‑Testimony of such witnesses, in circumstances could not explicitly be relied upon without independent and strong corroboration‑‑‑Recovery of offensive weapons allegedly used in occurrence was made after twelve days of occurrence and no local respectable of locality was associated with the recoverySuch recovery, had lost all its confirmatory value, in circumstances, and could not be relied upon‑‑‑Blood‑stained sand, small pieces of stones allegedly recovered from place of occurrence and clothes of injured were not sent to Serologist for determination of origin of blood and blood group‑‑‑Such recovery was of no avail to prosecution‑‑Post‑mortem report was given by doctor six days after post‑mortem and the report was handed over to police after twenty days without any explanation of the delay‑‑Medical evidence did not corroborate prosecution story‑‑‑Site plan was inconsistent with prosecution story‑‑‑Story of alleged motive was also inconsistent and contradictory and prosecution had failed to establish motive set up which could not be upheld‑‑‑Prosecution having failed to prove case against accused, conviction and sentence awarded to them by Trial Court were set aside in circumstances. [pp. 1550, 1553, 1554, 1555, 1556, 1557, 1559, 1560, 15611 A, B, D, E, F G, I, K, L, M, N, O, Q, R, T, V&X

PLD 1976 Kar. 438; PLD 1979 SC

(AJ&K) 23; PLD 1980 SC 317; 1980 PCr.LJ 749; PLD 1983 SC (AJ&K) 211; 1983 PCr.LJ 1418; 1996 PCr.LJ 47; 1996 PCr.LJ 1076; 1997 PCr.LJ 1539; 1997 PCr.LJ 1522;

Mst. Iqbal Begum v. Baniya Amin Criminal Appeal No. 5 of 1995; Wasiullah v. Mirza Ali and others PLD 1963 SC 25; Thoba and another v. The State and another PLD 1963 SC 40; Sikandar v. The State and another v. Abdul Aziz and others PLD 1963 SC 17, Abdul Hakeem v. The State and 2 others PLD

1990 Sh. C. (AJ&K) 3; Muhammad's case PLD 1978 SC 96; Muhammad Sharif's case PLD 1978 SC (AJ&K) 146; Mehtab Khan's case PLD 1979 SC 23; Niaz Muhammad alias Jaja's case PLD 1983 SC 211; Mehmood Shah's case PLD 1987 Sh. C.

(AJ&K) 47; Qabil Shah and others v. The State PLD 1960 Kar. 697; Muhammad Sadiq and another v. The State PL.D 1960 SC 223; Alam Sher and 5 others v. The State 1975 ‑ PCr.LJ 1188; 1984 PCr.LJ 486; PLD 1980 SC 317; 1999 SCMR 1030; Eid Wah's case PL D 1979 SC (AJ&K) 44; Muhammad Nawaz's case NLR 1984 Criminal 578; Manzoor Hussain's case

3 1980 PCr. LJ 749; Muhammad Hussain's case 4 PLD 1983 Sh. C. (AJ&K) 18 and Muhammad

mzan's case 1997 PCr. LJ 1522 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Evidentiary

value of testimony of a witness was to be

judged from its intrinsic and inherent value‑

Credibility of witness should flow from his

deposition‑‑‑Nature and quality of statement

of witness should evoke confidence and trust

and in case of interested and inimical

witnesses, their evidence required thorough

scrutiny with regard to their authenticity and

if said witnesses had motive to falsely depose

against accused, strong corroboration oj'

their testimony was required for safe

dispensation oj'justice [p. 15531 C

‑‑‑‑Judgments in criminal cases generally would apply to facts on which those were given and it could not be held that such law would command an authority for every case of that nature. [p. 1556] H

(d) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑ Corrobora

tion‑‑‑Meaning and scope‑‑‑Corroboration

would not necessarily mean evidence of any

independent witness, but could be anything in

circumstances which tended to satisfy Court

that interested witnesses had spoken the

truth‑‑‑Idea behind seeking extraneous

support was that no innocent person was

implicated. [p. 1556] J

(e) Penal Code (XLV of 1860)‑‑‑

‑=‑‑5.307/341‑‑‑Appreciation of evidence‑‑Medical evidence‑‑‑Use of‑‑‑Medical evidence could be used only to prove in what manner and with what weapon the injury was caused, but not to corroborate as to which accused had caused the injury. (p. 15591 P

PLD 1993 SC 251 ref.

Criminal trial‑‑‑

‑‑‑‑Proof‑‑‑Benefit of doubt‑‑‑Finding of guilt‑‑‑Basis of‑‑‑Finding of guilt against an accused could not be based merely on high probabilities that could be inferred from evidence in a given case‑‑‑Finding of guilt should rest surely and firmly on evidence produced‑‑‑Mere conjectures and probabilities could not take the place of proof, otherwise, golden rule of benefit of doubt would be reduced to naught. 1p.1560J S

PLD 1970 SC 10 ref.

(g) Criminal trial‑

‑‑‑‑Sentence‑‑‑Murder‑‑‑Normal sentence for murder is death if a case of murder is proved against accused person. (p. 15601 U

(h) Criminal trial‑‑‑

‑‑‑‑ Benefit of doubt‑‑‑Entitlement‑‑‑Benefit of doubt always would go to accused persons and they would be entitled to acquittal and not to short sentence as passed by Trial Court. [p. 1561] W

Abdul Majeed Mallick for Appellants Nos. 1 and 2 (in Criminal Appeal No. 17 of 1998) and for Respondents Nos. 1 to 8 in the counter appeal (in Cr1.Appeal No.22 of 1998).

Ch. M. Afzal for Appellants (in Criminal Appeal No. 22 of 1998).

M. Mushtaq Chaudhry, A.A.G. for the State.

YLR 2000 SHARIAT COURT AZAD KASHMIR 1568 #

2000 Y L R 1568

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

PERVAIZ AKHTAR BHATTI and another‑‑‑Appellants

versus

Mst. NUSRAT BIBI and another.-‑‑Respondents

Shariat Appeal No. 18 of 1999, decided on 20th April, 2000.

Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss.8, 9 & 11‑‑‑Making offer for special oath‑‑‑Procedure and effect‑‑‑Oaths Act, 1873 being special law, procedure laid down therein is required to be strictly followed‑‑Clear and unambiguous offer and acceptance should be made before tendering special oath‑‑‑No room was available for implied offer and acceptance and it was not permissible under law to presume fact of offer and acceptance because a special oath would follow a special procedure which should be followed strictly‑‑‑Court, under S.9 of Oaths Act, 1873, could or could not administer special oath despite an offer and acceptance, but when decided to administer an oath then it would become imperative for the Court to see whether offer made by any party or witness qualified as a "legal offer" and if offer was in accordance with law only then it would be put to other party and if it stood accepted, Court could administer a special oath‑‑‑Special oath under provisions of Oaths Act, 1873, being an agreement between parties, its terms and conditions must be clear and unambiguous‑‑‑If offer and acceptance was not reduced into writing, then something must be on record to show that parties agreed to what extent‑‑‑Court was under legal obligation to record in its order that what was offered for administration of oath was accepted by other party‑‑‑In absence of anything on record to show a lawful offer, it was not permissible tinder law to decide claim of any party on basis of special oath.

Syed Mujahid Hussain Naqvi for Appellants.

G.M. Mughal for Respondents.

YLR 2000 SHARIAT COURT AZAD KASHMIR 1695 #

2000 Y L R 1695

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Buy

MUSHTAQ AHMED.

versus

THE STATE Respondent

Criminal Revision Petition No. 26 of 2000, decided on 22nd July, 2000.

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

‑‑‑‑S.497 ‑‑Penal Code (XLV of 1860), S. 302/324/341 /148/149‑‑‑Bail‑‑‑Absconder‑‑Fugitive from law and Courts loses some of the normal rights granted by the procedural law as well as the substantive law.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/341 /148/149‑‑‑Bail‑‑‑Absconder‑‑Discretionary relief not available to absconder‑‑‑Any one who by his conduct thwarts investigation or trial is not eligible to any discretionary relief.

‑‑‑‑S.497 ‑‑Penal Code (XLV of 1860), S. 302/324/341 /148/149‑‑‑Bail‑‑‑Absence of accused was deliberate which fell within the ambit of "abscondence" and disentitled him to seek bail irrespective of the merits of the case against him‑‑‑Non‑recovery of the kalashnikov from the accused was insignificant in the presence of the incriminating statements of the injured eyewitnesses immediately recorded under S.161, Cr.P.C.‑‑‑Presence of the accused at the time of occurrence complied with the ocular version and medical evidence had, prima facie, connected him with the commission of the offence‑‑‑Discretion having been exercised by the lower Court in consonance with the settled principles governing bail matters did not call for any interference‑‑‑Bail was declined to accused in circumstances.

2000 PCr.LJ 980; PLD 1983 SC (AJ&K) 2000 (sic); Mehtar v. The State and another 2000 PCr.LJ 60; 2000 PCr.LJ 214; Abdul Rehman v. Shehbaz Qamar and 5 others (unreported) dated 21-8‑1998; Mst. Nasreen Akhtar and 5 others v. Raja Muhammad Asghar PLD 1983 SC (AJ&K) 1 and Ghulam Mustafa and another v. The State 2000 PCr. LJ 1253 ref.

(d) Criminal Procedure Code (V of 1898)‑.

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/ 324/341/148/149‑‑‑Bail‑‑‑Assessment of evidence‑‑‑Only tentative assessment of the evidence and other incriminating material placed on record has to be made at bail stage and the Court cannot dive deep into the merits of the case.

Abdul Majeed Mallick for Petitioner.

Raja Mazhar Iqbal for Complainant.

M. Mushtaq Chaudhry, A.A.‑G. for the State

YLR 2000 SHARIAT COURT AZAD KASHMIR 1857 #

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YLR 2000 SHARIAT COURT AZAD KASHMIR 1863 #

2000 Y L R 1863

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

MUHAMMAD YOUSUF‑‑‑Appellant

versus

THE STATE through Police Station, Kohari‑‑‑Respondent

Criminal Reference No. 110 of 1992, decided on 10th May, 2000.

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

‑-‑‑S.10‑‑‑Appreciation of evidence‑‑‑Accused was named in the F.LR. which was lodged without any delay and role of accused as per F.I.R. was unambiguous ‑‑‑Prosecutrix was medically examined and doctor, after examination, had observed that hymen of prosecutrix was ruptured recently‑‑‑Chemical Examiner who examined blood‑stained Shalwar and blood‑stained clay taken from the place where prosecutrix was subjected to rape, had reported that both the articles were stained with blood‑‑‑Report submitted by doctor after examining prosecutrix had clearly linked the accused with offence he was charged with‑‑‑Statement of prosecutrix stood fully corroborated by Medico‑legal Report, recovery of blood‑stained Shalwar and bloodstained clay and report of Chemical Examiner‑‑‑Motive as disclosed by accused, was of such a nature which could not be allowed to discredit prosecution case and plea of alibi taken by accused was also not reliable‑‑‑Case against accused having satisfactorily been proved, he was rightly convicted and sentenced.

PLD 1986 FSC 362; 1995 SCMR 1503; PLD 1988 FSC 3; PLD 1982 FSC 123 and PLD 1982 SC (AJ&K) 28 ref.

(b) Criminal trial‑‑

‑‑‑‑ Cases to be decided on the basis of their peculiar facts.

‑‑‑‑ Cases related to crime are decided on the basis of their own respective facts‑‑‑Facts in the case being quite different from the case law referred by the parties, same would be of no help and consequence.

Muhammad Habib Zia for Appellant.

Syed Ejaz Ali Gilani, Asstt. A.‑G. for the State.

Date of hearing: 10th May, 2000.

YLR 2000 SHARIAT COURT AZAD KASHMIR 1905 #

2000 Y L R 1905

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

Mst. YASMIN‑‑‑Appellant

versus

GHULAM HUSSAIN ‑‑‑Respondent

Shariat Appeal No. 48 of 1999, decided on 27th April, 2000.

Azad Jammu and Kashmir Family Courts Act, 1993

‑‑S.7(2)‑‑ Application for summoning witnesses and production of documentary evidence was dismissed by Family Court with observation that number of witnesses to be produced in support of plaint, their names and addresses and brief summary of facts to which they would depose, was required by law to be submitted alongwith the plaint and that law did not empower Family Court to allow parties to produce any evidence or introduce any other witness at any later stage‑‑‑Validity‑‑‑Plaint, no doubt was required to contain brief summary of the facts and names and addresses of the witnesses to be produced in support of plaint, but S.7(2) of West Pakistan Family Courts Act, 1964 did not place any embargo on the power of Family Court to allow parties to produce any evidence at any later stage‑‑‑Proviso to S. 7(2), West Pakistan Family Courts Act, 1964 had given ample powers to the Court to summon any document or to call any witness at any stage on the application of either party, if in the opinion of the Court same was expedient in the interest of justice‑‑Observation by Family Court while dismissing application for summoning witnesses and production of document was incorrect‑‑Family Court, while deciding the application had not applied its mind to the merits of the application, whereas it was the duty of the Court to decide same on merits‑‑‑Order of Family Court was set aside.

Miss Balqees Rashid Minhas for Petitioner.

Hazoor Imam Kazmi for Non-Petitioner.

YLR 2000 SHARIAT COURT AZAD KASHMIR 2523 #

2000 Y L R 2523

[Federal Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

RAFHAT RASHID and 7 others‑‑‑Appellants

versus

GHULAM SARWAR‑‑‑Respondent

Shariat Appeal No. 49 of 1999, decided on 12th May, 2000

Azad Jammu and Kashmir Family Courts Act, 1993)‑‑‑

‑‑‑‑S.5 & Sched. Ss. 7, 8, 9‑‑‑Suit for jactitation of marriage‑‑‑Ex parte order, setting aside of‑‑‑Plaintiff, on direction of Court, sent copy of plaint to defendant alongwith list. of witnesses and other documents through registered post‑‑Defendant having failed to appear in the Court despite sending him notice through registered post, plaintiff on direction of the Court caused a notice for appearance of defendant in newspaper‑‑‑Defendant having failed to appear even after publishing notice, Trial Court initiated ex parte proceedings against defendant and after examining witnesses produced by plaintiff and hearing arguments, announced ex parte judgment‑‑Trial Court on application moved, by defendant for setting aside ex parte judgment, set aside the same after due process of law holding that time limit for appearance of defendant was fifteen days after service upon him and as ex parte proceedings were initiated against him before expiry of said time limit, ex parte judgment and decree were liable to be set aside‑‑‑Plaintiff aggrieved by said order of Trial Court had challenged the same in appeal contending that defendant having deliberately absented himself, ex parte judgment passed against him could not be set aside‑‑‑Validity‑‑‑Provision of Ss. 8 & 9 of Azad Jammu and Kashmir Family Courts Act, 1993 dealing with intimation of defendant and filing of written statement by defendant, were not mandatory, but were directory in nature as no penal clause had been provided for non‑compliance of the said provisions of law‑‑‑Where no penal clause was provided by a provision of law, the same would be deemed to be directory in nature‑‑‑Court could or could not proceed ex parte as it was left to the discretion of the Court to proceed ex parte or otherwise, after expiry of fifteen days from service upon defendant‑‑‑To proceed ex parte against defendant before expiry of the time limit of fifteen days was contrary to law‑‑‑Judgment and decree recorded on basis of ex pane proceedings were rightly set aside by Trial Court‑‑‑Nature of suit required that it should be decided on merits because ex parte decree in such‑like cases would not leave a positive effect while living in Muslim Society.

Abdul Hamid Shahid for Appellant.

Miss Balqis Rashid Minhas for Respondent.

YLR 2000 SHARIAT COURT AZAD KASHMIR 2698 #

2000 Y L R 2698

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Raja MUHAMMAD MAQSOOD‑‑‑Appellant

versus

Mst. KOUSAR NISAR‑‑‑Respondent

Civil Appeal No. 14 of 1998, decided on 18th July, 2000.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Computation of period of limitation‑‑‑Time requisite for obtaining copy of judgment‑‑‑Deduction‑‑‑Such time is deducted from the period of limitation prescribed bylaw.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑Responsibility of party wishing to take advantage of provision of S.5, Limitation Act, 1908‑‑‑Extent‑‑‑Delay of each and every day has to be explained satisfactorily by the party wishing to take advantage of condonation and such party must satisfy the Court that the party has not been negligent and has been prosecuting his case with due diligence and care.

‑‑‑‑S.14‑‑‑Limitation Act (IX of 1908), S.5‑‑Appeal ‑‑‑Condonation of delay‑‑‑Custody of minors‑‑‑Matter was decided by tire Guardian Court on 10‑1‑1998 in favour of the mother of the minors‑‑‑Father of the minors obtained the copy of the judgment on 3‑2‑1998 and the appeal was filed on 25‑3‑1998‑‑‑Reason for delay was stated to be the death of son and father of the counsel for the appellant one after the other‑‑‑Validity‑‑‑Even after engaging a counsel it was the duty of the party to keep himself fully informed of the proceedings and he was not relieved of his obligation to do so merely because he had engaged a counsel to appear<on his behalf‑‑Where counsel for the appellant was busy due to ailment of his son, the appellant failed to adduce any reason as to why the appellant himself did not ensure that the appeal was filed within the prescribed period of limitation‑‑‑Delay of each and every day had to be explained satisfactorily before, taking advantage of the relevant law=‑‑Details explaining each day's delay had not been incorporated in application for condonation of delay and the appellant having knowledge of limitation and after obtaining the copy of judgment of the Guardian Court, without any sufficient cause, slept over the matter and allowed the period of limitation to run out‑‑‑Delay caused in filing of appeal was not condoned in circumstances.

PLD 1950 BJ 84; PLD 1974 Lah. 434 and 1985 CLC 1411 distinguished.

PLD 1.979 Lah. 917; PLD 1982 Lah.239; 1983 SCMR 1239; 1987 CLC 972; 1991 MLD 692; 1996 CLC 1; 1996 MLD 692 and Mehboob v. Muzaffar 1992 SCR 338 ref.

(d) Void order‑‑‑

‑‑‑‑ Void order is that order which is passed without affording a chance of hearing to the other party or passed in utter lack of jurisdiction.

(e) Limitation Act OX of 1908)‑‑‑

‑‑‑‑Ss.5 & 29(2) (b)‑‑‑Azad Jammu and Kashmir Family Courts Act (XI of 1994), S.14‑‑‑Appeal, filing of ‑‑‑Condonation of delay‑‑‑Provision of S.5 of Limitation Act, 1908‑‑‑Applicability‑‑‑Scope‑‑‑Azad Jammu and Kashmir Family Courts Act, 1994, is a special enactment and the same does not embody any provision making S.5 of Limitation Act, 1908, applicable to the same‑‑‑Provision of S. 29(2) (b) of Limitation Act, 1908, excludes application of S.5 of Limitation Act, 1908, and the same is not available for seeking condonation of delay in filing of appeal under S.14 of Azad Jammu and Kashmir Family Courts Act, 1994.

Sardar Ghulam Mustafa Khan for Appellant.

Ch. Muhammad Yusuf for Respondent.

YLR 2000 SHARIAT COURT AZAD KASHMIR 2976 #

2000 Y L R 2976

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD HANIF KHAN and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 2 and 3 of 1998, decided on 24th July, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.97‑‑‑Right of private defence of the body and property‑‑‑Scope‑‑‑Right of private defence can be used as a shield to avert any attack, but cannot be used as a device for provoking an attack‑‑‑Right of private defence is a preventive measure only and cannot be adopted for retaliation.

(b) Penal. Code (XLV of 1860)‑‑‑

‑‑‑‑S.97‑‑‑Right of private defence of the body and properly‑‑‑Right of private defence is not conferred on an aggressor, rather it is a right conferred on the victim of aggression.

‑‑‑‑S.5/15‑‑‑Appreciation of evidence ‑‑‑Eye-witnesses, despite being related to the deceased, were not interested witnesses and were natural witnesses of the occurrence who had corroborated each other on material particulars of the prosecution case‑‑‑Time and place of occurrence, presence of eyewitnesses and of accused party on the spot at the relevant time and ploughing of land by the accused were not even disputed by the defence‑‑‑Minor discrepancies in respect of the recovery of crime empty could not discredit the ocular version which was supported by medical evidence, recovery of guns from the accused and other sufficient corroboratory proof‑‑‑Plea of self‑defence and of property taken by the accused was not substantiated by them on the record‑‑‑Both accused had fired shots upon the deceased persons with a prior intention to kill them when they had gone to lodge their protest on ploughing the land by the accused‑‑Conviction and sentence of death awarded to one accused under S.5 of the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, were confirmed in circumstances‑‑‑Other accused who had also killed the deceased by firing a shot on the vital part of his body in day light in heartless manner also deserved the usual sentence of "Qisas " under S.5 of the aforesaid Act ‑‑‑Eye-witnesses had also fulfilled the standard and requirements of evidence needed in case of "Qisas "‑‑‑No mitigating circumstance for lesser punishment was available in favour of said accused who was also awarded the sentence of "Qisas " under S.5 of the said Act in circumstances.

PLD 1965 Quetta 33; PLJ 1976 SC 190; 1983 PCr.LJ 225; PLD 1985 Sh. C. (AJ&K) 24; 1985 SCMR 1573; PLD 1987 Lah. 505; 1988 SCMR 1592; 1991 MLD 1949; PLD 1991 Azad J&K 31; 1991 PCr.LJ 1992; 1992 PCr. LJ 1861; 1997 PCr. LJ 1539; 2000 MLD 618; PLD 1978 SC 1; PLD 1979 SC 23; PLD 1979 SC 56; PLD 1979 Kar. 513; PLD 1983 SC (AJ&K) 211; PLD 1984 SC 22; 1987 PCr. LJ 1729; 1989 PCr. LJ 2336; 1992 SCR 1; 1995 PCr.LJ 199; 1995 PCr.LJ 1029; 1997 PCr.LJ 425; 1997 PCr.LJ 432; 1997 PCr.LJ 1522; 1997 PCr.LJ 1673; Zahir Hussain Shah v. Shah Nawaz Khan and 3 others 2000 SCR 124; Shabbir Ahmed v. The State and another 1997 SCR 206; Muhammad Khalil v. The State 1992 SCR 249; Muhammad Sharif's case PLD 1978 SC (AJ&K) 146; Niaz Muhammad's case PLD 1983 SC (AJ&K) 211; Ahmed Khan's case PLD 1983 SC (AJ&K) 211); Muhammad Rafique's case 1999 SCMR 1208; 1999 SCMR 1208; Saeed Akhtar's case 2000 SCMR 383; Raqib Khan v. The State and another 2000 SCMR 163; Niaz v. State PLD 1960 SC 387; Nazir Hussain v. State PLD 1965 SC 188; Aslam and another v. The State 1997 SCMR 1284; Muhammad Ramzan v. The State 1996 SCR 336 ref.

1969 SCMR 569 and 1972 PCr.LJ 204 distinguished.

(d) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑Ss. 5/15‑‑ Appreciation of evidence‑‑Interested witness‑‑‑Evidence of an interested witness cannot be discarded outright because if a witness is not interested he is not always a truthful person and if he is interested he is always not a. liar‑‑‑Veracity of a witness has to be ascertained from his testimony deposed in the witness‑box‑‑‑Where such statement comes from a natural witness and rings true, conviction can be based on it without any further corroboration.

Zahir Hussain Shah v. Shah Nawaz Khan and 3 others 2000 SCR 124; Muhammad Sharif's case PLD 1978 SC (AJ&K) 146; Niaz Muhammad's case PLD 1983 SC (AJ&K) 211; Ahmed Khan's case 1991 PCr.LJ 301; Muhammad Rafique's case 1999 SCMR 1208; Saeed Akhtar's case 2000 SCMR 383; Raqib Khan v. The State and another 2000 SCMR 163; Niaz v. State PLD 1960 SC 387; Nazir Hussain v. State PLD 1965 SC 188 and Aslam and another v. The State 1997 SCMR 1284 ref.

(e) Witness‑‑

‑‑‑‑Veracity‑‑‑Test‑‑‑If a witness is not interested, he is not always a truthful person and if he is interested he is not always a liar‑‑‑Veracity of a witness has to be ascertained from the testimony deposed in the witness box.

Zahir Hussain Shah v. Shah Nawaz Khan and 3 others 2000 SCR 124; Muhammad Sharif's case PLD 1978 SC (AJ&K) 146; Niaz Muhammad's case PLD 1983 SC (AJ&K) 211; Ahmed Khan's case 1991 PCr.LJ 301; Muhammad Rafique's case 1999 SCMR 1208; Saeed Akhtar's case 2000 SCMR 383; Raqib Khan v. The State and another 2000 SCMR 163; Niaz v. State PLD 1960 SC 387 and Nazir Hussain v. The State PLD 1965 SC 188 ref.

(f) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑S.5/15‑‑‑Appreciation of evidence‑‑Interested witness‑‑‑Corroboration of‑‑Corroboration does not necessarily mean the evidence of an independent witness, but anything in the circumstances which tends to satisfy the Court that an interested witness has spoken the truth, is sufficient.

Zahir Hussain Shah v. Shah Nawaz Khan and 3 others 2000 SCR 124; Muhammad Sharif's case PLD 1978 SC (AJ&K) 146 and Muhammad Ramzan v. The State 1996 SCR 336 ref.

(g) Evidence‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Site plan‑‑‑Site plan is not a substantive piece of evidence so as to contradict or discredit the ocular evidence‑‑‑It is prepared to appreciate or to explain the evidence on record.

(h) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 342‑‑‑Examination of accused‑‑Object‑‑‑Object of examination of accused under S. 342, Cr. P. C. firstly is to apprise him of material facts and circumstances on record appearing against him which may be used as such and secondly to know about his explanation regarding such material facts or circumstances.

(i) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.342‑‑‑Examination of accused‑‑Procedure‑‑‑Each piece of evidence and each circumstance tending to incriminate accused in the offence charged should be put to him when examined under S. 342, Cr.P.C. but when no prejudice is caused to the accused for not putting any such circumstance to him, the omission is immaterial.

1989 PCr.LJ 2336 ref.

(j) Act of Court‑‑

‑‑‑Principle‑‑‑Mistake of the Court should not prejudice any‑one.

Muhammad Ramzan v, The State 1996 SCR 336 ref.

Sardar Khan for Appellants (in Criminal Appeal No.2 of 1998 and for Respondents in Criminal Appeal No. 3 of 1998).

Tahir Anwar for Appellant (in Criminal Appeal No.3 of 1998).

Ijaz Gilani, Asstt, A.‑G. for the

YLR 2000 SHARIAT COURT AZAD KASHMIR 3043 #

2000 Y L R 3043

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD JAVED‑‑‑Petitioner

versus

Mst. IMTIAZ BIBI ‑‑Respondent

Shariat Appeal No.25 of 1999; decided on 23rd June, 2000.

(a). Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑

‑‑‑‑‑S. 8‑‑‑Dissolution of marriage‑‑‑Khula plea of‑‑‑Scope‑‑‑Principles‑‑‑Such plea can be invoked by a wife on proving that she had developed aversion 'and hatred towards her husband so much that it has become impossible for them to live within the limits ordained by God.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 and Muhammad Khan v. Mst. Zareena Begum PLD 1975 Azad J&K 27 ref.

(b) Dissolution of Muslim Marriages Act (VIII. of 1939)‑‑‑

‑‑‑‑S. 8‑‑‑Dissolution of marriage ‑‑‑Khula, plea of‑‑‑Wife had categorically invoked the ground, of Khula in her plaint as well as in her statement‑‑‑Effect‑‑‑Where such ground was proved, by the wife, Family Court was left with no option except to pass a decree an the basis of Khula.

‑‑‑‑S. 8‑‑‑Dissolution of marriage ‑‑‑Khula', plea of‑‑‑Consideration of Khula'‑‑‑Marriage was dissolved by the Fancily Court‑on the basis of Khula' but no consideration of Khula' was fixed by the Court‑‑‑Gold ornaments weighing one and half tolas were in possession of the wife which were given to her at the time of marriage‑‑‑Contention by the husband was that the ornaments he returned to him as consideration of Khula'‑‑ Validity‑‑‑Where no other benefits had been claimed by the husband to have been given by him to the wife at tire time of marriage, thereafter wife was directed to hand over the ornaments to the husband as consideration of Khula'.

1998 CLC 1711; PLD 1981 Azad J&K 94 and NLR 1983 Civil 701 distinguished.

Muhammad Anwar for Appellant.

Ch. Muhammad Sarfaraz for Respondent.

Special Appellate Court Sindh

YLR 2000 SPECIAL APPELLATE COURT SINDH 10 #

2000 Y L R 10

[Special Appellate Court Sindh]

Before Justice Syed Deedar Hussain Shah

NOBAHAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Special Criminal Appeal No.5 of 1993, decided on 10th September, 1999.

Customs Act (IV of 1969)‑‑

‑‑‑‑S.156(1)(8)‑‑‑Appreciation of evidence‑‑ Statement of the complainant who had arrested the accused at the International Departure Hall of the Airport and recovered heroin from his suitcase was fully supported by the Mashirs of recovery and corroborated by the Chemical Examiner's Report which was in positive‑‑‑Drug trafficking specially heroin was a menace which had created problems not only for the Government but also for the society at large and the people involved in the same did not deserve any sympathy‑‑‑Accused had already been dealt with leniently by the Trial Court in the matter sentence‑‑‑Appeal of accused was dismissed in circumstances.

Miran Bux v. Niaz and others 1975 SCMR 337; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Aslam Naz v. The State 1994 P Cr. I.J 1151; Royce Dean Wellman v. The State 1997 MLD 1708; Muhammad Amin v. 'the State 1995 PCr.LJ 1012; Ehsan Elahi Malik v. The State 1980 PCr.LJ 186; Santas Maria Teresa v. The State 1991 MLD 2576; Ghulam Jillani v. The State 1991 PCr.LJ 1003; 1986 PCr.LJ 136 and Malik Aman v. The State 1986 SCMR 17 ref.

Umer Farooq Khan and Rana Muhammad Shamim for Appellant.

Ch. Muhammad Iqbal, Standing Counsel for the State.

Dates of hearing: 1st and 2nd September, 1999.

Supreme Court Azad Kashmir

YLR 2000 SUPREME COURT AZAD KASHMIR 261 #

2000 Y L R 261

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

MUHAMMAD SAQIB‑‑‑Appellant

versus

ALI ASGHAR and 3 others‑‑‑Respondents

Criminal Appeal No. 6 of 1998, decided on 14th October, 1999.

(On appeal from the Order of the High Court, dated 30‑4‑1999 in Criminal Miscellaneous No. 34 of 1999).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus petition ‑‑‑Detenue was not recovered from the addresses given in the habeas corpus petition and was reported to have shifted to another place where she had already filed a suit for jactitation in the Family Court‑‑‑Petitioner had not alleged that the detenue at her new place of residence was in illegal detention of the respondents and as such any direction to High Court in this regard could not bear any fruit‑‑‑Petition was consequently dismissed‑‑‑If the petitioner still felt the detenue to be in illegal detention of the respondents even at the changed residence, he might file afresh habeas corpus petition at the relevant circuit of the High Court.

Sardar Rafique Mahmood Khan, Advocate for Appellant.

Ghulam Mustafa Mughal, Advocate for Respondents.

Date of hearing: 7th October, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 795 #

2000 Y L R 795

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J.

and Basharat Ahmad Shaikh, J

RASHID ILYAS and 9 others‑‑‑Appellants

versus

SADIA AHMAD DAR and 13 others‑‑‑Respondents

Civil Appeal No. 2 of 2000, decided on 18th February, 2000.

(On appeal from the judgment of the High Court, dated ~24‑12‑1999 in Writ Petition No. 620 of 1999).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Admission to medical college‑‑‑Order of Azad Jammu and Kashmir Government whereby "Azad Jammu and Kashmir Nomination Board" was set up for selecting candidates for nomination against seats reserved for Azad Jammu and Kashmir nationals in medical colleges in Pakistan had force of law‑‑‑If any of its provisions were violated, High Court as well as Supreme Court could exercise writ jurisdiction to correct the same‑‑‑Board was bound to strictly follow Government order and any action taken in violation of its contents would be without lawful authority and of no legal effect.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Admission in medical college‑‑‑Order of Azad Jammu and Kashmir Government whereby "Azad Jammu and Kashmir Nomination Board" was set up, had clearly laid down that candidates would be selected by the Board on basis of merits and in the said order nowhere was laid down that seats made available for students of Azad Jammu and Kashmir would be divided between male and female students‑‑‑Board itself had started practice of dividing seats between male and female students without approval of the Government, which was clearly unlawful‑‑‑Board had to abide by Charter under which same was working as Board had no legal authority to transgress limits imposed by the Charter‑‑‑Board having not been able to furnish any explanation as to how it was competent to divide seats between male and female, action of Board was without lawful authority and of no legal effect‑‑‑Said action of Board was rightly interfered with by High Court in exercise of writ jurisdiction.

‑‑‑‑Ss. 42, 44 & Fundamental Right No 15--‑Fundamental Right‑‑‑ Violation ofClassification of citizens‑‑‑If there was reasonable classification among citizens, Fundamental Right No. 15 was not violated‑‑Classification of citizen was not function of Court of law, but classification of State subjects, where necessary was function of Legislature or Executive and a Court of law, exercising writ jurisdiction could only examine question as to whether a law or any custom or usage having force of law, fulfilled the test of reasonable classification‑‑‑Power of judicial review under writ jurisdiction, would not allow a Court of law to arrogate to itself a function which had to be performed by Legislature or the Executive.

Abdul Rashid Abbasi for Appellants

Raja Muhammad Hanif Khan Respondents.

Date of hearing: 14th January, 2000

YLR 2000 SUPREME COURT AZAD KASHMIR 849 #

2000 Y L R 849

[Azad J&K]

Before Chaudhary Muhammad Taj, J

Sh. SIRAJ DIN‑‑‑‑Appellant

versus

WAPDA through Chairman, Lahore, Pakistan and 2 others‑‑‑Respondents

Civil Appeals Nos.19 and 20 of 1994, decided on 13th October, 1999.

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Limitation‑‑‑Exclusion of time‑‑Time spent between application fled for obtaining certified copies of order appealed against and preparation of said copies, had to be deducted while computing limitation for filing appeal, provided application was ,not moved when limitation had already run out‑‑Delay in receiving copies or depositing fee after preparation thereof on behalf of applicant, was not to be deducted as same constituted negligence and carelessness.

PLD 1973 SC (Pak.) 222; 1973 SCMR 555; PLD 1977 Lah. 376; PLD 1978 Lah. 31; 1992 CLC 25; 1994 CLC 1302; Income‑tax Officer and others v, Ch. Muhammad Bashir (unreported) decided on 23‑11‑1993; 1975 SCMR 156 PLD 1983 Pesh. 143 and PLD 1991 SC 400 ref.

M. S. Tariq for Appellant.

Haji Muhammad Afzal for Respondents.

YLR 2000 SUPREME COURT AZAD KASHMIR 869 #

2000 Y L R 869

[Azad J&KJ

Before Muhammad Riaz Akhtar Chaudhry, J

GHULAM SARWAR‑‑‑Appellant

versus

MUHAMMAD HUSSAIN and another‑‑‑Respondents

Civil Appeal No. 18 of 1998, decided on 30th June, 1999.

(a) Azad Jammu and Kashmir Prior Purchase Act, 1993 (B.K.)‑‑‑

‑‑‑‑Ss.3(4) & 13‑‑‑Azad Jammu and Kashmir Alienation of Land Act (1995 B.K.), S.6‑‑General Clauses Act (X of 1897), S.8‑‑Repeal of laws‑‑‑Effect‑‑‑Definition of "agricultural class" as provided in S.3(4), Azad Jammu and Kahsmir Prior Purchase Act, 1993 (B. K.) was the same as provided in Azad Jammu and Kashmir Land Alienation Regulations, 1990 (B.K.) which ‑ were repealed and replaced by Azad Jammu and Kashmir Alienation of Land Act (1995 B.K.)‑‑‑Definition of "agricultural class" as provided in Azad Jammu and Kashmir Alienation of Land Act (1995 B.K.), thus, would be considered as referred to in Ss. 3(4) & 13, Azad Jammu and Kashmir Prior Purchase Act (1993 B. K.) where a reference of a particular enactment was given which was repealed subsequently and was replaced by some other enactment, such reference should be construed as reference to the re-enacted statutes.

PLD 1982 Azad J&K 32; PLD 1976 Azad J&K 68; Muhammad Jamil v. Muhammad Iqbal and others Appeal No.48 (unreported); PLD 1981 SC 51; State of Uttar Pradesh v. M.P. Singh and others AIR 1960 SC (Ind.) 569 and PLD 1982 Lah.729 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Repeal of law‑‑‑Where a reference of a particular enactment was given which was repealed subsequently and was replaced by some other enactment, such reference should be construed as reference to the re‑enacted statutes.

‑‑‑‑Ss.3(4) & 13‑‑‑Suit for pre‑emption‑‑Right of prior purchase‑‑‑Suit land having been sold by a member of agricultural class to another member of agricultural class, pre-emptor not belonging to agricultural class, had no right of prior purchase under S.13 of Azad Jammu and Kashmir Prior Purchase Act, 1993 (B. K.).

Muhammad Jamil v. Muhammad Iqbal and others Appeal No.48 (unreported) ref.

Ch. Aurangzeb Khan for Appellant.

Haji Munsif Dad for Respondents.

YLR 2000 SUPREME COURT AZAD KASHMIR 999 #

2000 Y L R 999

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Sardar RIAZ AHMED KHAN‑‑‑Appellant

Versus

Sardar MUHAMMAD ABDUL RASHEED KHAN and 6 others‑‑‑Respondents

Civil Appeal No. 71 of 1999, decided on 19th November 1999.

(On appeal from the order of the High Court, dated 2‑3‑1999 in Writ Petition No. 28 of 1999).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Writ of quo warranto‑‑Maintainability‑‑‑Petition for writ of quo warranto was dismissed oil ground of laches‑‑‑Validity‑‑‑Doctrine of laches was not applicable to writ of quo warranto and petition for said writ could not be dismissed on ground of laches‑‑‑Petition needed thorough examination and case was fit wherein writ petition could have been admitted instead of dismissing in limine‑‑Order dismissing writ petition in limine being not sustainable was set aside by Supreme Court in appeal. Azad Government and others v. Sahibzada Ishaque Zafar and others 1994 MLD 2382; Muhammad Yaqub Khan v. Secretary Forests and others Civil Appeal No.93 of 1998 and Azad Government of the State of Jammu and Kashmir v. Haji Mir Muhammad Naseer 1999 PLC (C.S.) 1173 ref.

Mujahid Hussain Naqvi, Advocate for Appellant.

Sardar Rafique Mahmood Khan, Advocate for Respondents Nos. 1 to 4.

Sh. Abdul Aziz, Advocate for Respondent No.5.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent No.6.

Date of hearing: 16th November, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 1005 #

2000 Y L R 1005

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J.

and Basharat Ahmad Shaikh, J

Prof. Dr. Khawaja MUHAMMAD

ASLAM, PROFESSOR AND CHAIRMAN, DEPARTMENT OF BOTANY, AZAD

JAMMU AND KASHMIR UNIVERSITY, MUZAFFARABAD‑‑‑Appellant

versus

Prof. Dr. ABDUL RAUF KHAN, DEAN FACULTY OF SCIENCE

and others‑‑‑Respondents

Civil Appeal No. 29 of 1999, decided on 5th November, 1999.

(On appeal from the judgment of the High Court, dated 4‑12‑1988 in Writ Petition No. 113 of 1998).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Change in date of birth‑‑Validity‑‑‑Order of High Court passed in writ petition directing Education Secretariat to change date of birth of respondent, had been challenged in appeal before Supreme Court‑‑Respondent had contended that appellant was not aggrieved by judgment of High Court because appellant would not stand to gain anything if respondent would retire earlier due to his unchanged date of birth‑‑Contention of respondent was repelled on the ground that appellant admittedly being next senior most person to respondent extension in his service due to change in his date of birth with order of High Court would adversely affect appellant's right of promotion‑‑Appellant, in circumstances, was aggrieved person and had locus stand to file appeal before Supreme Court against judgment of High Court‑‑‑Even otherwise respondent being no more a civil servant, no justification existed for High Court to issue direction to Government to change his date of birth.

Khawaja Shahad Ahmad, Advocate for Appellant.

Ch. Muhammad Ibrahim Zia, Advocate for Respondent No. 1.

Date of hearing: 3rd November, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 1011 #

2000 Y L R 1011

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

ZAHIDA MAHMOOD‑‑‑Appellant

versus

MUHAMMAD SABIR KHAN and 5 others‑‑‑Respondents

Civil Appeal No.65 of 1999, decided on 13th October, 1999.

(On appeal from the order of the Service Tribunal dated 7‑4-1999 in Service Appeal No.64 of 1998).

Judgment‑‑‑

‑‑‑‑Principles‑‑‑Judgment has to be based on pleadings of parties and a Court or Tribunal cannot travel beyond pleadings.

Syed Shaukat Hussain Gillani v. Abdul Rehman Abbasi and others 1992 SCMR 369 1992 PLC (C.S.) 438; Umar Din Kiani v. Azad Government and others 1995 SCR 166; Muhammad Hussain v. Abdul Majid and others 1993 SCR 319; Muhammad Amin v. Muhammad Yunus 1993 SCR 340 and Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13 ref.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Muhammad Noorullah Qureshi, Advocate for Respondents Nos. l and 2.

Kh. Attaullah, Additional Advocate-General for Respondents Nos.3 to 6.

Date of hearing: 6th October, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 1016 #

2000 Y L R 1016

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J., Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

MUHAMMAD YASIN‑‑‑Appellant

versus

MUHAMMAD SHARIF and 4 others‑‑‑Respondents

Civil Appeal No.39 of 1999, decided on 15th December, 1999.

(On appeal from the judgment of the High Court dated 22‑2‑1999 in Writ Petition No.514 of 1997).

(a) Natural justice, principles of‑‑

‑‑‑‑ Violation‑‑‑Order earlier ‑ passed by Authority was set aside by it in exercise of its review powers (which were not conferred on the Authority), without issuing notice to party affected thereby‑‑‑Finding of fraud and forgery were recorded behind the back of affected party‑‑‑Party having been condemned unheard, finding recorded behind back of the party stood vitiated having no validity especially when Authority was not conferred with power of review.

(b) West Pakistan Rehabilitation Act (XLV of 1956)‑‑‑

‑‑‑‑S.11(5)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Restoration of void order‑‑‑Writ jurisdiction, exercise of‑‑‑High Court had found that Board of Revenue had no power to interfere with order passed by Rehabilitation Commissioner and had set aside order passed by Member, Board of Revenue and had restored void order by, Rehabilitation Commissioner‑‑‑Validity‑‑‑High Court failed to take notice that illegality committed by Rehabilitation Commissioner had been cured by Member, Board of Revenue‑‑‑Judgment of High Court thus had effect of bringing back to life order passed by Rehabilitation Commissioner which was not only bad in law; but was also void‑‑‑Writ jurisdiction being equitable jurisdiction of High Court, same could not be allowed to be invoked to achieve such a result.

Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Walayat Begum v. Revising Authority, MDA and 3 others 1999 MLD 1549 and Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 ref.

Sardar Rafique Mahmood Khan, Advocate for Appellant.

Ch. Abdul Aziz, Advocate for Respondent No. 1.

Date of hearing: 7th December, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 1024 #

2000 Y L R 1024

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

MUHAMMAD YASIN‑‑‑Appellant

versus

AZAD JAMMU AND KASHMIR

GOVERNMENT through Chief

Secretary, Muzaffarabad and 4 others ‑‑‑ Respondents

Civil Appeal No.97 of 1999, decided on 21st January, 2000.

(On appeal from the judgment of the High Court dated 9‑6‑1999 in Writ Petition No. 198 of 1997).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss.42 & 44‑‑‑Writ of quo warranto‑‑Locus standi to file‑‑‑Writ of quo warnato could be filed by any person.

(b) Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990‑‑‑

‑‑‑‑R. 5‑‑‑Appointment‑‑‑Competency‑‑‑Civil servant was appointed as Assistant Engineer in Municipal Corporation without advertising the post‑‑‑Provisions of R.5 of Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990 having laid down that initial recruitment to post in Grade‑11 and above would be made on basis of result of a competitive examination, Authority had violated provisions of said rule in appointing civil servant without advertising the post.

Ch. Muhammad Fayyaz v. Syed Arshad Gillani and others PLJ 1999 SC (AJ&K) 89 ref.

‑‑‑‑Appointment‑‑‑Post carrying Grade‑17 and above‑‑‑Procedure‑‑‑Appointment had to be judged in the light of Civil Servants Act and relevant Departmental Rules as well as Public Service Commission Act and Rules made there under‑‑‑Post carrying Grade‑17 and above under Government,‑ could not be filled in, except through Public Service Commission.

Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others 1994 CLC 2339 and Sh. Maznoor Ahmad v. Azad Government and‑another 1994 PLC (C.S.) 59 ref.

(d) Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994‑‑‑

‑‑‑‑Rr.3, 4, 10 & 15‑‑‑Withdrawal of post advertised by Public Service Commission‑‑Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994 having binding effect, provision provided in said rules to the effect that reasons should be recorded for withdrawing a post advertised by Public Service Commission, was a salutary provision which was meant to advance merit and discourage arbitrariness‑‑‑Wherever law had provided that an act could be done for reasons to be recorded such a provision was mandatory‑‑‑Addition of recording reasons would make said provisions justifiable so that reasons could be examined by Court‑‑Executive Authority could not be allowed to take away said function of Courts by omitting to record reasons‑‑‑Failure to record reasons, for withdrawing requisition, was an illegality which had effect of vitiating order.

Umar Hayat v. Azad Government 1999 PLC (C.S.) 78; Muhammad Imtiaz Khan v. Azad Jammu and Kashmir Government through its Chief Secretary and 3 others ' 1999 PLC (C.S.) 1007; Mehmood Sultan Afridi (Inspector Legal), F.I.A. v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and another 1998 PLC (C.S.) 1493 and Muhammad Fayyaz v. Shahnawaz Civil Appeal No.71 of 1998 ref.

Ch. Muhammad Ibrahim Zia, Advocate for Appellant.

Ghulam Mustafa Mughal, Advocate for Respondent No‑5.

Date of hearing 15th December, 1999,

YLR 2000 SUPREME COURT AZAD KASHMIR 1040 #

2000 Y L R 1040

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

Syed ABDUL LATIF SHAH‑‑‑Petitioner

versus

Raja ABDUL MAJEED, SECTION

OFFICER and 27 others‑‑‑Respondents

Civil Review Petition No. 10 of 1999, decided on 5th October, 1999.

(In the matter of review against the judgment of this Court dated 6‑7‑1999 in Civil Appeal No. 161 of 1998).

Azad Jammu and Kashmir Supreme Court Rules‑‑‑

‑‑‑‑ O.XLVI, R.6‑‑‑Civil Procedure Code (V of 1908), O.XLVII, R.1‑‑‑Review petition‑‑Application to draw petition‑‑‑Advocate who was not counsel in main case decided by Supreme Court, but was engaged to draw, file and prosecute review petition for reversal of judgment of Supreme Court, filed application to draw petition for review of judgment of Supreme Court and on the same date filed a review petition drafted by him without permission of the Court‑‑‑Advocate who was not counsel in main case before Supreme Court was not competent to draw review petition unless Court would grant him special leave to do so as provided under R.6, Azad Jammu and Kashmir Supreme Court Rules‑‑‑Review petition and application to draw said petition were dismissed, in circumstances.

Barkat Ali v. The State 1972 SCMR 470 ref.

Raja Muhammad Hanif Khan, Advocate for Petitioner.

Date of hearing: 5th October: 1999,

YLR 2000 SUPREME COURT AZAD KASHMIR 1046 #

2000 Y L R 1046

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.

Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

AZAD GOVERNMENT OF THE STATE

OF JAMMU AND KASHMIR through its Chief Secretary, Muzaffarabad

and 2 others‑‑‑Respondents

versus

Sahibzada MUHAMMAD DAWOOD SHAH and 3 others‑‑‑Respondents

Civil Appeal‑No. 105 of 008, decided on 13th May, 1999.

(On appeal from the judgment of the High Court dated 18‑4‑1998 in Civil Appeal: No.23 of 1997).

(a) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss.4 & 23‑‑‑Acquisition of land‑‑‑Payment of compensation‑‑‑ Determination‑‑Principles‑‑‑Compensation amount was to be paid according to the market value of the land acquired and not by applying a uniform formula in absence of any evidence which could enable the Court to fix market value of land acquired.

(b) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss.4, 23 & 24‑‑‑AZad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Sg.42 & 44‑‑‑Acquisition of land‑‑‑ "Market value of land "‑‑‑Meaning‑‑‑Determination of compensation‑‑‑ "Market value" would mean value of land which a willing purchaser was prepared to pay and .a willing seller 'vas: prepared to sell‑‑‑Inclination of the purchaser to buy or the use to which land would be put, after requisition, was to be ignored‑‑‑Any increase to the value of other land of the person interested likely to accrue from the use for which land acquired, was not to be considered while ascertaining market value‑‑Compensation of acquired land was to be assessed according to the market value of land at the time of publication of notification under S.4(1) of Land Acquisition Act, 1894‑‑Finding of High Court that as land acquired was to be used for construction of road, compensation thereof was to be paid at uniform rate, irrespective of kind of land and other recognised principles on basis of which market value was to be determined, being violative of said principles was set aside.

West Pakistan WAPDA v. Mst. Hiran‑ Begum. 1972 SCMR 138; District Welfare Officer, Guntur v. Pillalamarri Ramakrishans Somayajuly arid others AIR 1963 Andh. Pra. 328 ‑ and Deputy Commissioner, Karachi v. Abu Bakar arid others PLD 1972 Kar. 128 eef.

Kh. Attaullah, Additional Advocate3eneral for Appellants.

Ghulam, Mustaf. Mughal, Advocate for Respondents.

Date of hearing: 5th May, 1999,

YLR 2000 SUPREME COURT AZAD KASHMIR 1051 #

2000 Y L R 1051

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus Surakhvi, J

Ch. JAN MUHAMMAD‑‑‑Appellant

versus

Ch. MUHAMMAD ISMAIL and 6 others‑‑‑Respondents

Civil Appeal No.84 of 1999, decided on 21st January; 2000.

(On appeal from the judgment of the High Court dated 16‑21999 in Writ Petition No. 105 of 1998).

Azad. Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.44‑‑‑Writ jurisdiction; exercise of‑‑Relief in writ jurisdiction being discretionary, same could be invoked only in circumstances indicated in relevant provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974‑‑‑If a civil suit was pending between parties, none of the parties was legally competent to agitate the matter before High Court during pendency of suit‑‑‑High Court was not competent to give any finding in the matter in exercise of writ jurisdiction when civil suit between parties was pending.

Tanbir Ahmad Siddiki v. Province of East Pakistan PLD 1968 SC 185 and A.M.A. Zaman v. The Government of East Pakistan PLD 1970 Dacca 589 ref.

Ch. Muhammad Azam Advocate for Appellant.

Raja Hassan Akhtar Advocate for Respondents.

Date of hearing: 20th January, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 1069 #

2000 Y L R 1069

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

MUHAMMAD AZAD BAIG and 6 others‑‑‑Appellants

versus

CUSTODIAN OF EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR and 2 others‑‑‑Respondents

Civil Appeal No. 25 of 1999, decided on 2nd February, 1999.

(On appeal from the judgment of the High Court dated 5‑11‑1998 in Writ Petition No.516 of 1997).

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

‑‑‑‑S.43(6)‑‑ Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Powers of review by Custodian‑‑Scope‑‑‑Powers of review by Custodian were unlimited and Custodian, under said powers, was competent to go into question of genuineness or otherwise of an allotment‑‑‑Custodian being a Tribunal of exclusive jurisdiction, after conducting thorough enquiry, could reach the conclusion that allotment of land in favour of allottees thereof, was fake and fictitious‑‑‑Condition of genuineness of allotment being a condition precedent, was a rightful exercise of jurisdiction by Custodian by not believing the allotment in name of allottees as genuineConclusions arrived al icy a Tribunal of exclusive jurisdiction, could not be pre-empted by Supreme Court in exercise of its appellate jurisdiction.

Muhammad Jamil v. Muhammad Siddique and another 1999 YLR 1089 and Azmatullah and another v. Ali Bahadur and another 1996 CLC 254 ref.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellants.

Farooq Hussain Kashmiri, Advocate for Respondent No. 1.

Sardar Rafique Mahmood. Khan, Advocate for Respondents Nos.2 and 3.

Date of hearing: 16th December, 1999,

YLR 2000 SUPREME COURT AZAD KASHMIR 1080 #

2000 Y L R 1080

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

MATLOOB HUSSAIN ‑‑‑Appellant

versus

KARAMAT HUSSAIN ‑‑‑Respondent

Civil Appeal No. 105 of 1999, decided on 29th October, 1999.

(On appeal from the judgment and decree of the High Court, dated 26‑11‑1998 in Civil Appeal No. 64 of 1996).

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑Plaintiff/alleged vendee of plot in dispute in his suit for declaration had claimed that plot which was allotted to defendant was purchased by him and that defendant after receiving sale price thereof had executed the receipt in his favour‑‑‑Defendant/appellant in his counter‑suit had pleaded that alleged receipt was forged and fictitious and he denied the sale of plot in favour of plaintiff‑‑Trial Court dismissed suit filed by plaintiff/alleged vendee and decreed that of appellant/defendant holding that plaintiff had failed to prove sale of plot in his favour and receipt of sale price was proved to be forged one‑‑‑Appellate Court below and High Court set aside judgment and decree passed by Trial Court on ground that original documents of plot in dispute had been in possession of plaintiff‑‑‑Validity‑‑‑Plaintiff had failed to prove execution of receipt either by producing marginal witness thereon or by any other evidence‑‑‑Evidence had proved that at time of execution of said receipt both plaintiff and marginal witness thereon were residing abroad‑‑‑Disputed receipt having been proved to be fake and fictitious, reasons adduced by Appellate Court below and High Court were devoid of any legal force‑‑‑Supreme Court set aside judgments and decrees of Appellate Court below and High Court and restored judgment and decree passed by Trial Court.

Ch. Muhammad Sharif Tariq, Advocate for Appellant.

Raja Muhammad Siddique, Advocate for Respondent.

Date of hearing: 25th October, 1999

YLR 2000 SUPREME COURT AZAD KASHMIR 1088 #

2000 Y L R 1088

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

Syed MISKEEN SHAH‑‑‑Appellant

versus

CUSTODIAN, EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 4 others‑‑‑Respondents

Civil Appeal No. 92 of 1998, decided on 14th October, 1999.

(On appeal from the judgment of the High Court, dated 25‑3‑1998 in Writ Petition No. 165 of 1994.

(a) Azad Jammu and Kashmir Rehabilitation Act, 1974‑‑‑

‑‑‑‑Ss. 6‑A & 11‑‑‑Pakistan (Administration of Evacuee Property) Act (XII of 1957) (as adapted in Azad Jammu and Kashmir Ss. 18‑A, 18‑B & 43‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Appeal to Supreme Court‑‑‑Allotment of land‑‑‑Appellant who alleged that allotment of land in dispute in favour of respondent was false and forged, had conceded that allotment in favor of respondent was prior in time‑‑‑Once appellant had conceded that allotment of land in dispute in favour of respondent was made prior in time, heavy burden was cast upon him to prove fraud and fact that the allotment was bogus‑‑‑Appellant had failed to discharge said burden as he could not produce any cogent material with regard to the fakery of allotment of respondent, it was not even averred in clear terms by appellant as to how allotment in favour of respondent was fake or bogus‑‑‑Appellant; at no stage either before Rehabilitation Authorities or before the Custodian or High Court, had contended that allotment of respondent was fake or fictitious and it was for the first time that said plea had been raised in Supreme Court‑‑‑Said plea having not been raised earlier before Lower Tribunals or in the High Court, could not be permitted to be raised for the first time in Supreme Court‑‑‑Writ petition filed without imp leading necessary parties, was rightly dismissed by High Court and dismissal order passed by High Court could not be interfered with by Supreme Court in appeal.

(b) Azad Jammu and Kashmir Rehabilitation Act, 1974‑‑‑

‑‑‑‑Ss.6‑A & 11‑‑‑Pakistan (Administration of Evacuee Property) Act (X11 of 1957) [as adapted by Azad Jammu and Kashmir], Ss. 18‑A, 18‑B & 43‑‑‑Allotment of land‑‑Subsequent allotment was a nullity in the eye of law and it would be deemed as having not been made at all during subsistence of the first allotment.

Syed Nazir Hussain Shah Kazmi Advocate for Appellant.

Farooq Hussain Kashmiri, Advocate for Respondent No. 1.

Ch. Muhammad Ibrahim Zia, Advocate for Respondent No.3, Date of hearing: 6th October, 1999

YLR 2000 SUPREME COURT AZAD KASHMIR 1422 #

2000 Y L R 1422

[Azad J&K]

Before Khawaja Muhammad Saeed, C J

SAMIA RASHID and another‑ ‑Petitioners

versus

VICE‑CHANCELLOR, AZAD JAMMU

AND KASHMIR UNIVERSITY, MUZAFFARABAD and others‑‑ Respondents

Writ Petitions Nos. 108 and 129 of 1999, decided on 14th March, 2000.

(a) Educational institution‑‑‑

‑‑‑‑ Admission in educational institution‑‑Cancellation of admission‑‑‑Candidates who passed B.A. Examination in third division, were granted admission in M.A.‑‑Candidates were allotted roll numbers and started to attend classes, but subsequently through notification their admission was cancelled on ground that under the policy laid down by Board of Studies, students who had obtained third division in their B.A. Examination were not entitled to admission in M.A.‑‑‑validity‑‑ Candidates had disclosed all particulars to Administrative Body of the institution at the time they moved applications seeking admission‑‑‑Candidates after getting admission having continued their studies, a valuable right had accrued to them and Authorities had no competence to recall the admission in the light of conditions laid down by Board of Studies.

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

‑‑‑‑S.21‑‑‑"Locus poenitentiae", principle‑‑Invocation‑‑‑Principle of "locus poenitentiae" could be invoked by Competent Authority till the time the decisive stage was not reached‑‑If it was proved that the order was conveyed and acted upon, then a valuable right would accrue to the party and such party could not be deprived of vested right by the Authority.

M. Tabassum Aftab Alvi for Petitioners.

Muhammad Yaqoob Mughal for Respondents.

YLR 2000 SUPREME COURT AZAD KASHMIR 1745 #

2000 Y L R 1745

[Azad (J&K)]

Before Chaudhary Muhammad Taj; J‑

Lt.‑Col. (Rtd.) Syed NISAR

HUSSAIN SHAH‑‑‑Petitioner

versus

CHANAR MATCH FACTORY LIMITED, CHATERPARI and 4 others‑‑‑Respondents

Writ Petition No.222 of 1999, decided on 29th June, 2000.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ‑‑‑Issuance of‑‑‑Scope‑‑‑Writ could be issued by High Court when matter in dispute was found connected with affairs of Azad Jammu and Kashmir or a Local Authority‑‑‑Appropriate writ could be issued to the person or Authority including council and Government for enforcement of any Fundamental Rights contained in Azad Jammu and Kashmir Interim Constitution Act, 1974‑‑‑Writ petition could be filed on the application of any aggrieved party, directing a person performing functions in connection with affairs of Azad Jammu and Kashmir or a Local Authority to refrain from doing an act not permitted by law or to do on act as required by law or declaring any act or proceedings as taken without lawful authority and of no legal effect or making an order giving any direction to the person or the authority including Council and Government .exercising any powers in relation to Azad Jammu and Kashmir Government or enforcement of any fundamental rights ‑conferred by the Act‑‑‑Direction could also be issued by High Court for a person in custody in Azad Jammu and Kashmir to be brought before High Court to satisfy itself whether he was held in custody without lawful authority or otherwise requiring a person holding a public office in connection with affairs of Azad Jammu and Kashmir to show under what authority of law he claimed to hold that office Company ‑which was neither a statutory corporation nor a local Authority, would be termed as a private person‑‑‑Writ petition against such a Company was not competent and was liable to be dismissed.

Muhammad Rashid Chaudhry's case 1993 PLC (C.S.) 1201; Muhammad Sayab Khalid's case 1999 YLR 2499 and Ran Singh's case (1980) 50 Comp. Cas. 553 ref.

M. Rafique Dar for Petitioner.

Haji Muhammad Afzal Respondents.

YLR 2000 SUPREME COURT AZAD KASHMIR 1751 #

2000 Y L R 1751

[Azad J&K]

Before Muhammad Reaz Akhter Choudhry, J

ALI HAIDER ‑‑‑Appellant

versus

MUHAMMAD AKRAM‑‑‑Respondent

Civil Appeal No.43 of 1997, decided on 9th March, 1998.

(a) Tort‑‑‑‑

‑‑‑‑ Malicious prosecution‑‑‑Suit for damages for malicious prosecution‑‑‑Obligatory for plaintiff to prove that he was prosecuted by defendant on a criminal charge; that prosecution terminated in the plaintiff's favour; that prosecution was malicious and that prosecution was without reasonable and probable cause‑‑‑Fundamental duty of plaintiff was to prove that prosecution was instituted against him without any reasonable and probable cause and that it was due to malicious intention‑‑‑ "Malicious prosecution " connotes an action in a case accompanied by ill‑will, enmity or hatred.

Ghulam Nabi v: Azad Government of State of Jammu and Kashmir 1984 CLC 325 ref.

(b) Tort-----

‑‑‑‑Malicious prosecution‑‑‑Suit for damages on basis of malicious prosecution‑‑‑Onus to prove would be on the plaintiff‑‑‑Plaintiff had to prove that his criminal prosecution was malicious and no reasonable and probable cause existed for undertaking this prosecution‑‑‑Burden of proof lay on that person who would fail if no evidence at all was adduced by either side‑‑‑Initial burden of proof was on plaintiff, but on discharge of initial onus, burden shifted on defendant and he was bound to show existence of reasonable and probable cause for the prosecution‑‑‑Fundamental duty of defendant was to prove that prosecution was not malicious, but some reasonable or probable cause existed for prosecution of plaintiff‑‑Malicious prosecution against plaintiff having been proved suit was decreed accordingly.

M.Y. Arvi for Appellant

Muhammad Ayub Sabir for Respondent.

YLR 2000 SUPREME COURT AZAD KASHMIR 1844 #

2000 Y L R 1844

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus Surakhvi, J

MUHAMMAD RIZWAN‑‑‑Appellant

versus

ABDUL JABBAR and 3 others‑‑-Respondents

Civil Appeal No. 21 of 1998, decided on 23rd June. 1998.

(On appeal from the order of the High Court, dated 4‑12‑1997 in Civil Revision No. 34 of 1997).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.27‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Additional evidence, production of appellant who had already filed photo copy of agreement in dispute, filed application for submitting original agreement as additional evidence during pendency of appeal before Appellate Court‑‑‑Said application was allowed, but order of Appellate Court was set aside by High Court in revision holding that under O. XLI, R.27, C. P. C. Appellate Court co‑ld allow additional evidence only if the Court was not able to pronounce judgment and not otherwise‑‑‑Validity‑‑‑Photo copy of agreement in question being already on record and an issue on execution of said agreement having already been framed, discretion exercised by Appellate Court in allowing production of original agreement was not violative of law‑‑‑Appellate Court could allow additional evidence irrespective of the fact whether it was capable of pronouncing judgment without such evidence or not.

Muhammad Yunus Tahir, Advocate for Appellant.

Ch. Muhammad Sabir, Advocate for Respondent No. 1.

Date of hearing: 23rd June, 1998

YLR 2000 SUPREME COURT AZAD KASHMIR 1853 #

2000 Y L R 1853

[Azad J & K]

Before Khawaja Muhammad Saeed, C.J

AZAD GOVERNMENT through

Chief Secretary, Muzaffarabad and 5 others‑‑‑Petitioners

versus

MUHAMMAD SIDDIQUE KHAN‑‑‑Respondent

Civil Revision No. 62 of 1999, decided on 1st June, 2000.

Cavil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17‑‑‑Amendment an written statement‑‑‑Amendment in written statements had been sought on ground that written statements were manoeuvred by plaintiff at whose instance some unknown person by disclosing himself to be representative of defendant prepared written statement fraudulently and filed the same on behalf of defendants‑‑‑Validity‑‑‑Fraud vitiated most solemn proceedings and no one was to be allowed to take advantage of its own fraud‑‑Matter of amendment must be resolved in the light of evidence of parties‑‑‑Principles regarding amendment of plaint were equally applicable to the amendment of written statement‑‑‑Power to grant amendment was discretionary with the Court which was to be exercised in accordance with judicial principles‑‑‑Rules of procedure contained in Civil Procedure Code including one for amendment of pleading, were meant for achieving ends of justice‑‑‑Order of Trial Court whereby amendment application had been refused, was set aside by High Court in exercise of its revisional jurisdiction.

Additional Advocate‑General for the Petitioners.

Imdad Ali Malik for Respondent.

YLR 2000 SUPREME COURT AZAD KASHMIR 1878 #

2000 Y L R 1878

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

Sub. (Retd.) MUHAMMAD AZIZ

KHAN‑‑‑Appellant

versus

MUHAMMAD FAZIL and 41 others‑‑‑Respondents

Civil Appeal No. 96 of 1997, decided on 14th May, 1998.

(On appeal from the judgment of the High Court, dated 29‑9‑1997 in Civil Miscellaneous No. 60 of 1996).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.42‑‑‑Disqualification of High Court Judge to hear appeal‑‑‑Contention was that Judge of the. High Court who had acted earlier as a counsel on behalf of opposite party in the case before Revenue Commissioner, was disqualified from hearing the case‑‑‑Judge had acted as counsel for the party who was pro forma respondent in the present litigation and was not active in the case‑‑‑Judge had appeared about ten years before as a counsel simply in a case of correction of entry in Khasra Girdawari which appearance in the Revenue Court would not disqualify him‑‑‑Party had not Brought to the notice of the Judge that he should not hear case and it was only when the case was decided against the party that he raised the objection‑‑‑Rule of disqualification of Judge to hear case would not apply merely on conjectures in, circumstances.

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

‑‑‑‑S.24‑‑‑Transfer of appeal from one place to the other‑‑‑Duty of Court to inform the appellant about the transfer through notice‑‑In absence of the notice appellant was not required to appear in transferee Court on his own.

Appellant in person.

Sardar Rafique Mahmood Khan for Respondent No. 1.

Date of hearing: 18th March, 1998.

YLR 2000 SUPREME COURT AZAD KASHMIR 1891 #

2000 Y L R 1891

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

ALAM DIN‑‑‑Petitioner

versus

MAYOR, MUNICIPAL CORPORATION, MIRPUR and 4 others‑‑‑Respondents

Civil Review No. 5 of 1997, decided on 30th April, 1998:

(In the matter of review from the judgment of the Supreme Court, dated 30‑10‑1997 in Civil Appeal No. 7 of 1997).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.114 & O.XLVII, R.1‑‑‑Review petition‑‑Maintainability of‑‑‑Both the points agitated and argued in review petition having already been resolved in the judgment under review, petition was not maintainable.

Muhammad Riaz Inqlabi for Petitioner.

Date of hearing: 24th April, 1998.

YLR 2000 SUPREME COURT AZAD KASHMIR 1901 #

2000 Y L R 1901

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus Surakhvi, J

SHAH MUHAMMAD KHAN and another‑‑‑Appellants

versus

MUHAMMAD HALEEM and 3 others‑‑‑Respondents

Civil Appeals Nos. 134, 135 and 136 of 1998, decided on 20th November, 1998

(On appeals from the judgment of the High Court, dated 26‑6‑1998 in Writ Petitions Nos. 7, 8 and 9 of 1997).

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss.161, 163 & 164‑‑‑Delay in filing revisions/appeals/reviews ete.‑‑‑Condonation of‑‑‑Revenue Commissioner decided revision/appeal on merits despite the fact that question of limitation in filing said revision/appeal was hotly debated and Commissioner was conscious of the factum of delay‑‑‑Revenue Commissioner, though did not specifically record in his order that he had condoned the delay, but same would be deemed to have been condoned by necessary implication.

Ghulam Hussain v. Member, Board of Revenue 1995 SCR 355; Amir Din v. Muhammad Siddiq PLD 1966 Lah. 416; Sardar Aftab Ahmad v. Sardar Khurshid Hussain 1999 PLC (C.S.) 40; Ahsan Ali v. District Judge PLD 1969 SC 167 and Muhammad Yusuf v. Member, Board of Revenue, West Pakistan, Lahore 1970 SCMR 170 ref.

Sardar Muhammad Sayab Khalid for Appellants (in all the Appeals).

Ch. Muhammad Ibrahim Zia for Respondent No. 1 (in all the Appeals).

Raja Shiraz Kayani, A.‑G. for Azad Government (in Civil Appeal No. 134 of 1998).

Date of hearing: 18th November, 1998.

YLR 2000 SUPREME COURT AZAD KASHMIR 1909 #

2000 Y L R 1909

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

ABDUL AZIZ‑‑‑Appellant

versus

ABDUL HAMID and 33 others‑‑‑Respondents

Civil Appeal No. 71 of 1999, decided on 10th May, 2000.

(On appeal from the order of the High Court, dated 23‑10‑1999 in Civil Review Petition No. 148 of 1997).

(a) Azad Jammu and Kashmir High Court Procedure Rules, 1984‑‑‑

‑‑‑‑R.43‑‑‑Review‑‑‑Certificate issued by the counsel to file review petition ‑‑‑Formate‑‑Total absence of the certificate to the effect that judgment or order was fit for filing a review petition was altogether a different thing from a certificate wherein somewhat inadequate language had been used or the same was not strictly according to the prescribed form "‑‑‑If the certificate was not strictly according to the requirements of the relevant rules, inadequate phraseology employed in the certificate was merely an irregularity which would not render the certificate as invalid arid would be sufficient enough for the valid institution of the review petition.

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

‑‑‑‑O.XLI; R.1‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Filing a copy of the decree sheet alongwith the memorandum of appeal was mandatory for the appellant and non filing of such copy could not be condoned by the Court‑‑‑If appellant had applied but the copy of the decree sheet was not ready for supply to him best course for appellant was to wait for the preparation of the copy of the decree sheet and, thereafter, to file appeal, in that eventuality, he was entitled to the condonation of delay, if any‑‑‑Principles.

Under rule 1 of Order XLI, C.P.C., it was mandatory for the appellant to file a copy of the decree‑sheet alongwith the memorandum of appeal, non‑filing of the copy could not be condoned by the Court. In the present case the case of appellant in his appeal, before the High Court was that he had applied for the issuance of the copy of the judgment and the decree but the copy of the decree‑sheet could not be issued because the same had not been prepared as yet. If at all it was so, the proper course for the appellant was to have waited for the preparation of the copy of the decree and, thereafter, to file appeal; in that eventuality, he was entitled to the condonation of delay, if any. However, in the present case, it was recorded by the District Judge in his interim order that the memorandum of appeal did not accompany the copy, of the decree‑sheet; two adjournments were given but needful was not done and the memorandum of appeal was rejected by him inter alia, on the ground that the copy of the decree was not filed. Thereafter, the copy of the decree was filed after 147 days of the order of the Trial Court. Evidently, the aforesaid belated filing of copy of decree‑sheet would not render the institution of the appeal before the District Judge as valid.

An appeal without following the decree‑sheet is incompetent and entailed rejection on this sole ground.

According to the definition of word "decree" under section 2(2) of C.P.C., the word "decree" included an order of rejection of the plaint under Rule 11, Order VII, C.P.C. Obviously, the said definition did not mean that if the aforesaid order was appealable as a "decree" the filing of copy of decree under Rule 1 of Order XLI, .C.P.C. was not necessary.

If an order was not appealable as a decree but all the same it was appealable as an order, only one appeal was competent under section 104(2), C.P.C. However, if an order was appealable as a decree, more than one appeals, were competent, subject to other provisions of the said Code. Thus, it was mandatory to file the copy of the decree alongwith memorandum of appeal filed in the Court of District Judge. It follows from this that the High Court could dismiss the appeal filed by the appellant on this sole ground instead of adverting to other merits of the same. As there was no properly instituted appeal before the District Judge, the appeal before the High Court was incompetent. Therefore, the finding given by the High Court on the points other than the question of failure of the appellant to file the copy of decree‑sheet need not to be gone into by Supreme Court.

Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 distinguished.

Muhammad Munshi v. Mst. Rakiya Bi 1990 CLC 301; Mst. Aziza Begum v. Muhammad Hussain Khan 1995 CLC 1578; Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129; Imam Gul v. Mst. Begum Ji 1980 CLC 530 and Rana Allah Ditta v. Muhammad Shafi 1990 MLD 2094 ref.

Ch. Muhammad Ibrahim Zia for Appellant.

Date of hearing: 8th May, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 1918 #

2000 Y L R 1918

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J.

and Muhammad Yunus Surakhvi,. J

MUHAMMAD KHALID and 3 others‑‑‑Appellants

versus

MUHAMMAD AKRAM and 10 others‑‑‑Respondents

Civil Appeal No. 18 of 1999, decided on 21st April, 2000.

(On appeal from the judgment and decree of the High Court, dated 2‑6‑1999 in Civil Appeal No. 40 of 1995).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.I, R.9‑‑‑Appeal to Supreme Court‑‑Partition proceedings‑‑‑Persons who were not impleaded as party in the appeal before Supreme Court, interest accrued to such persons under the judgment of High Court would not be adversely affected.

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

‑‑‑‑Ss.146 & 147‑‑‑Partition‑‑‑Deficiency in the share of co‑sharer‑‑‑Revenue Authorities had to see as to out of which of the Survey numbers, the deficiency in the share of a co-sharer was to be made up‑‑‑Revenue Authorities could also give exclusive ownership to a co‑sharer by partition even if he was not previously in possession of the same‑‑‑Mere fact that a certain piece of land was in the possession of a co‑sharer prior to the partition proceedings, would not deprive the other co‑sharer to seek partition of the joint property and get the :deficiency of his/her fractional share made up‑‑‑Possession of co‑sharer in pursuance of private arrangement would also not deprive the other co‑sharer of his right to seek the regular partition and get his due share in the joint land.

Mustaqim v. Sher Bahadur PLD 1962 Pesh. 14; Shyamsundar Pd. Gupta v. Darbhangi Rai AIR 1960 Pat. 420; Shamsuddin Ahmed v. Suresh Chandra Dey AIR 1936 Cal. 22; AIR 1953 Pepsu 415 and PLD 1950 Rev. 1161 ref.

‑‑‑‑S.146‑‑‑West Pakistan Land Revenue Rules, 1968, R.5‑‑‑Partition proceedings‑‑Order of partition having been passed before the death of appellant (predecessor‑in‑interest of deceased co‑sharer), it was not necessary to implead his legal representatives in the partition proceedings especially so when such representatives had not challenged the partition proceedings before the Appellate Revenue Authorities on the ground of their non‑implement before the Revenue Authorities.

Kh. Ali Muhammad, Advocate for Appellants.

Raja Muhammad Siddique Khan, Advocate for Respondents.

Date of hearing: 19th April, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 1998 #

2000 Y L R 1998

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

MUHAMMAD MAQBOOL RAZA and 2 others‑‑‑Appellants

versus

MUHAMMAD SHARIF and 9 others‑‑‑‑Respondents

Civil Appeal No. 75 of 1997, decided on 23rd June, 1998.

(On appeal from the judgment of the High Court, dated 20‑9‑1997 in Writ Petition No. 64 of 1995).

Administration of Justice‑‑‑

‑‑‑‑ Duty of counsel and Presiding Officer‑While counsel for parties were duty bound to produce relevant law before Presiding officer, a duty was also cast. upon the Presiding officer to keep himself abreast of relevant law‑‑‑Excuse or pretext mentioned in orders of Presiding Officers would not justify performance of their duties.

Muhammad Riaz Tabassum for Appellants.

Abdul Latif Dutt for Respondents.

Date of hearing: 23rd April, 1998.

YLR 2000 SUPREME COURT AZAD KASHMIR 2016 #

2000 Y L R 2016

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan. C. J., Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

AZAD GOVERNMENT and 2 others‑‑‑Appellants

versus

MUKHTAR SAEED QADRI and 2 others‑‑‑Respondents

Civil Appeal No. 108 of 1998, decided on 15th April, 1999.

(On appeal from the judgment of the High Court, dated 18‑4‑1998 in Civil Appeal No. 21 of 1997).

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.4 & 54‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 54‑‑‑Acquisition of land‑‑‑Conversion of petition for leave to appeal into appeal‑‑High Court having enhanced compensation amount of acquired. land, Authority instead of filing direct appeal against judgment of High Court under S.54 of Land Acquisition Act, 1894, had filed petition for leave to appeal before Supreme Court, competency of which was objected to by the landowners‑‑‑Authority (petitioner) contended that petition for leave to appeal be treated as appeal and be disposed of as such‑‑‑Landowners had stated that petition for leave to appeal could not be treated as appeal, especially when prayer to that effect was made orally by the petitioner at a belated stage‑‑‑Validity‑‑‑Supreme Court, in view of common practice to file petition for leave to appeal instead of direct appeals under S.54 of Land Acquisition Act, 1894, and the fact that the Court had been allowing such petition; petition for leave to appeal was treated as appeal under S.54 of Land Acquisition Act, 1894, especially when no limitation was prescribed for such an appeal either in Supreme Court Rules or in the said Act‑‑‑Petition for leave to appeal was converted into appeal in circumstances.

Water and Power Development Authority v. Sadullah Khan and. others 1999 SCMR 319 ref.

(b) Land Acquisition Act (I of 1894)‑‑

‑‑‑‑Ss.4 11, 18 & 54‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42 Appeal to Supreme Court Acquisition of land Enhancement of compensation‑‑‑Amount of compensation of acquired land having been enhanced by referee Court, some of the landowners except the respondent having being satisfied with judgment of Referee Court filed separate appeals before High Court‑‑‑Authority also filed cross‑appeal against the judgment of Referee Court‑‑‑High Court accepting appeals of landowners enhanced the amount of compensation of all landowners including that of respondent despite he had not filed appeal before High Court against judgment of Referee Court‑‑‑Which itself was sufficient to vacate the judgment of High Court.

‑‑‑‑Ss.4, 11, 18, 53 & 54‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Acquisition of land‑‑Determination of amount of compensation‑‑.Appeal before Supreme Court‑‑‑Referee Court enhanced amount of compensation of acquired land, 'despite no evidence was produced in that respect‑‑‑High Court on fling separate appeals by certain landowners, except one further enhanced amount of compensation of acquired land of landlords including the one who had not filed the appeal, without taking into consideration the fact that he had not produced any evidence to be entitled for enhancement of amount of compensation‑‑‑Supreme Court accepted appeal of the Acquiring Authority, set aside judgments of Referee Court and High Court and remanded the case to Referee Court to decide the same afresh in accordance with law after hearing the parties.

Kh. Attaullah. Add1 A.‑G Appellants.

M. Tabassum Aftab Alvi, Advocate for Respondent No.1.

Date of hearing: 6th April, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 2050 #

2000 Y L R 2050

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

RIAZ AHMAD‑‑‑Appellant

versus

MIRPUR DEVELOPMENT AUTHORITY, MIRPUR through Chairman and 4 others‑‑‑Respondents

Civil Appeal No. 28 .of 2000, decided on 30th June, 2000.

(On appeal from the judgment of the High Court, dated 11‑12‑1999 in Writ Petition No. 130 of 1998).

Mirpur Development Authority Ordinance, 1974‑‑‑

‑‑‑‑S.44‑‑‑Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.38‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974): Ss. 42 & 44‑‑‑Writ petition‑‑Competency‑‑‑Appellant who was allotted a plot, had filed writ petition wherein he had challenged the power of Authorities to change sector plan and to create new plots over the land which already, stood allotted to him‑‑Writ petition was dismissed holding that Authorities had stated that no new plots had been created as alleged 6y petitioner and also holding that such disputed questions of fact could be resolved after recording and appreciating evidence and High Court in its writ jurisdiction, could neither record evidence nor could embark, upon w appreciation‑‑‑Validity‑‑‑Jurisdiction of all other Courts was barred by S.44 of Mirpur Development Authority Ordinance, 1974 in respect of all actions of Mirpur Development Authority‑‑‑Only adequate remedy available to aggrieved person was to file writ petition to challenge action of Mirpur Development Authority or any of its functionaries‑‑‑High Court, in circumstances, could grant relief to petitioner and if any question of fact was involved, it was duty of High Court to record evidence, where necessary and also to embark upon appreciation of said evidence‑‑‑High Court, in circumstances, was not justified to dismiss Constitutional petition‑‑‑Petitioner having been able to prove that plot allotted to him had been shifted in record by Authorities, without lawful authority, Supreme Court accepted appeal and quashed shifting of plot of the petitioners.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Ch. Lal Hussain, Advocate for Respondents Nos. 1 to 3.

Muhammad Yunus Tahir, Advocate for Respondents Nos. 4 and 5.

Date of hearing: 21st June, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2056 #

2000 Y L R 2056

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus Surakhvi, J

MAZHAR HUSSAIN and 4 others‑‑‑Appellants

versus

JAN MUHAMMAD and 13 others‑‑‑Respondents

Civil Appeal No. 35 of 2000, decided or 29th June, 2000.

(On appeal from the judgment of the High Court, dated 8‑12‑1999 in Civil Appeal No. 63 of 1998).

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908) R.1‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.4 & 44‑‑‑Suit for declaration‑‑‑Appointment of Receiver‑‑‑Plaintiffs had claimed the property in dispute belonged to they predecessor‑in‑interest and defendant who was brother of their predecessor‑in‑interest in equal share and that during lifetime of the predecessor‑in‑interest, half of income of rent of said property was being paid to the predecessor‑in‑interest, but after his death, defendant refused to pay their share in rent property‑‑‑Plaintiff who had fully establish joint title in the property had filed application for appointment of Receiver, but Trial Court and High Court concurrently dismissed said application holding contention of defendant that he being in possession of suit property as an owner, could not be deprived of enjoying same by disturbing his possession by appointing Receiver‑‑‑Validity‑‑‑Discretion vested in Court under O.XL, R.1, C.P.C. to appoint Receiver for suit land if it was just and convenient to do so‑‑‑What was just and convenient was to be seen in the light of facts of particular case‑‑‑Plaintiffs having established joint title in respect of suit land with defendant which was denied by defendant, Receiver could be appointed because it would be just and convenient to do so for keeping scale of justice even.

Aftab Ahmed Mufti and another v. Mst. Seema alias Zareena 1988 CLC 1567; Muslim Commercial Bank Limited v. Panama Trading Co. (Pvt.) Ltd. 1998 MLD 1844; Bhupendra Nath Mookherjee v. Monohar Mukherjee AIR 1924 Cal. 456; Rais Tayyab and 2 others v. Raza Muhammad and another 1985 CLC 2600; The Crown v. Bar Association, Sukkur PLD 1956 Sindh 84; Saravana Mudahar and others v. Singaravelu Mudaliar and others AIR 1938 Mad. 730; Basant Ram v. Dasundhi Mal and others AIR 1929 Lah. 497; Sahijram Rupchand and others v. Alu Tundu and another AIR 1942 Sindh 60; Ghulam Hussain v. M. Riazuddin 1983 CLC 1111 and Mst. Ghazala Zakir v. Muhammad Khurshid PLD 1989 Kar. 350 ref.

Raja Hassan Akhtar for Appellants.

Ch. Muhammad Azam Khan for Respondents.

Date of hearing: 26th June, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2072 #

2000 Y L R 2072

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

Prof. ZAHID HUSSAIN MIRZA‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 15 and Criminal Miscellaneous No. II of 2000, decided on 30th June, 2000.

(On appeal from the judgment of the Shariat Court, dated 22‑5‑2000 in Criminal Revision Petition No.53 of 2000).

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.242‑‑‑Penal Code (XLV of 1860), S.295‑A/295‑C/298‑A/506‑‑‑Statement of accused recorded on the date not fixed for that purpose‑‑-Validity‑‑‑Previous order had given a clear impression that the written request of the accused had been accepted and that the recording of his statement under S. 242, Cr. P. C. had beers postponed till after the decision of his review petition filed in the Supreme Court‑‑‑Accused, thus, was not prepared to make a statement on the next date when he was taken by surprise se by the Sessions Court for getting his statement recorded‑‑Case was not even fixed for recording of statement of accused on the date when it was actually recorded‑‑‑Proceedings conducted on the said date in recording the statement of accused were set aside in circumstances and the Sessions Court was directed to record his statement on a date fixed for that purpose.

Raja Muhammad Bashir, Attorney for Appellant.

Ch. Muhammad Mushtaq, A.A.‑G. for the State.

Nazir Ahmed Ghouri and Muhammad Reaz Alam, Advocate for Respondent No.2.

Date of hearing: 22nd June, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2092 #

2000 Y L R 2092

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

Justice (Rtd.) Sardar MUHAMMAD

ASHRAF KHAN, EX‑CHIEF ELECTION

COMMISSIONER, AZAD JAMMU AND

KASHMIR‑‑‑Petitioner

versus

AZAD GOVERNMENT OF THE STATE

OF JAMMU AND KASHMIR through

Chief Secretary, Muzaffarabad and 2 others‑‑‑Respondents

Civil Review Petition No. 4 of 2000, decided on 28th April, 2000.

(In the matter of review from the judgment of this Court, dated 28‑2‑2000 in Civil Appeal No. 11 of 2000).

Review‑---

‑‑‑‑ Point which was not raised at the time of the hearing of the appeal could not be raised in a review petition for the first time‑‑Explanation that new point raised came to the knowledge of the petitioner after the decision of the appeal, would not change the legal position that a new point could not be raised in a review petition.

Muhammad Yasin v. Jan Muhammad and others 1992 SCR 129; Aziz-ud‑Din Qureshi v. Rehmatullah Zia 1991 PLC (C.S.) 135 and Allah Ditta v. Abdul Ghafoor 1993 SCR 63 ref.

Raja Muhammad Siddique, Advocate and Ch. Muhammad Azam Khan, Advocate for Petitioner.

Date of hearing: 25th April, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2104 #

2000 Y L R 2104

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

GHULAM RASOOL‑‑‑Appellant

versus

MUHAMMAD KHAN and another‑‑‑Respondents

Civil Appeal No. 74 of 1999, decided on 28th April, 2000.

(On appeal from the judgment of the High Court, dated 23‑2‑1999 in Civil Appeal No. 105 of 1995).

Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7(v) (a) (b) (d)‑‑‑Suits Valuation Act (VII of 1887), Ss. 3 & 8‑‑‑Pre‑emption suit‑‑Pecuniary jurisdiction‑‑‑Land in question as assessed to land revenue‑‑‑Determination of valuation of suit‑‑Principles.

In the case the land is assessed to land revenue the court‑fee is computed under clauses 7(v)(a) and (b) and if not assessed to land revenue the court‑fee is computed in accordance with section 7(v)(d) of the Court Fees Act and valuation of the suit is determined under section 8 of Suits Valuation Act.

A cursory reading of section 8 of the Suits Valuation Act, 1887 will show that the suits covered by section 7, paras.(v), (vi) (pre‑emption suits) and (ix) and (x), clause (d) of the Court Fees Act, 1870 are explicitly ,excluded from the operation of section 8 of the Suits Valuation Act, 1887. Therefore, for determining the pecuniary jurisdiction in a pre‑emption suit the proper section applicable will be section 3 of the Suits Valuation Act, and the rules made thereunder.

Actual payment of land revenue is not mandatory portion of the procedure laid down for assessing suit valuation. It is the land revenue which is .payable to the Government and not its actual payment which is key to the procedure for valuation this is clear from the fact that in the subsequent provision the word "payable" and not "being paid" has been used.

Muhammad Iqbal v. Farzand Begum and others 1999 CLC 1108; Sain v. Muhammad Din and others 1995 SCR 208 and Ghulam Hussain Shah v. Hiciavaiullah Khan PLD 1981 SC (AJ&K) 55 ref.

M. Yunus Arvi, Advocate for Appellant.

Raja Muhammad Siddique, Advocate for Respondent No. 1.

Date of hearing: 19th April, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2117 #

2000 Y L R 2117

[Supreme Court (A1&K)]

Present: Muhammad Yunus Surakhvi, J

Al‑Haj MUHAMMAD

SALEEM‑‑‑Appellant

Versus

MUHAMMAD WALAYAT and 3 others‑‑‑Respondents

Civil Appeal No. 86 of 1999, decided on 26th April, 2000.

(On appeal. from the judgment of the High Court, dated 25‑1‑1999 in Civil Appeal No. 15 of 1996).

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O. VII, R. l ‑‑‑Suit for declaration‑‑‑Pleadings‑‑‑If in the pleading of a party no allegation was levelled against a particular defendant with regard to existence of a certain right in favour of plaintiff, and its denial by defendant, that relief could not be given to the plaintiff‑‑‑Plaintiff having made no averment against defendant with regard to the consideration amount that the same was received by him by practising a fraud upon the plaintiff or by deceiving him, Trial Court was justified in not framing the issue with regard to the repayment of consideration amount.

Mardan Ali v. Rab Nawaz 1991 CLC 82; Alvia Tableeghi Trust v. Mujeebur Rahman Alvi 1984 CLC 796; Mst. Resham Jan v. Muhammad Fazil and another PLD 1981 Azad J&K 16; Yusuf v. Hashimbhoy & Co. PLD 1966 Kar. 457; Muhammad Amin v. Muhammad Yunus 1993 SCR 340; Syed Afzal. Hussain v. Karachi Transport Corporation PLD 1.997 Kar. 253; Siddique Muhammad v. Mst. Saran AIR 1930 PC 57 ref.

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

‑‑‑‑S.SS‑‑‑Sale‑‑‑Transferee or vendee of a certain property has to be vigilant enough and cautious at the time of purchasing the property ‑‑‑Vendee has to make sure as to whether transferor had any valid or genuine title in the property or not, as the principle of caveat‑emptor was well‑known in the judicial proceedings.

Ch. Muhammad Riaz Alam, Advocate for Appellant.

Ch. Muhammad Bashir, Advocate for Respondent No.1.

Date of hearing: 18th April, 2000. .

YLR 2000 SUPREME COURT AZAD KASHMIR 2133 #

2000 Y L R 2132

[Lahore]

Before Maulvi Anwarul Haq and

Nasim Sikandar, JJ

ALLAH YAR‑‑‑Appellant

versus

MANZOOR AHMED and 5 others‑‑‑Respondents

Intra‑Court Appeal No. 145 in Writ Petition No. 2921 of 1998, heard on 21st March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.173 & 156‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑Reinvestigation after discharge of accused‑‑Permissibility‑‑‑Distinction existed between a case where the FI.R., was cancelled and a case where accused were discharged on the report of the police‑‑‑No fetters in. the latter case were placed upon the police to investigate the matter even after the discharge of accused‑‑‑FI.R. in the case was subsisting and the Magistrate by means of an order of executive nature had only discharged the accused‑‑‑Police, therefore, was not debarred from conducting the investigation even after the discharge of accused by the Magistrate‑Constitutional petition of accused was consequently dismissed and the Inrta‑Court Appeal of the complainant was, allowed in circumstances.

Din Muhammad Shakir alias D.M Shakir v. D.S.P., Ichhra, Lahore PLD 1977 Lah. 180 distinguished.

Rehmat Ali Shad v. Fiaz Lodhi, D.S.P, and 3 others 1994 PCr.LJ 2206, Muhammad Akram and another v. The State 1986 MLD 2439 and Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13 ref.

Tariq Zulfiqar Ch. for Appellant.

Syed Kabeer Mahmood for, the Private Respondents.

Akhtar Masood for the State.

Date of hearing: 21st March, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2139 #

2000 Y L R 2133

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus‑Surakhvi, J

INSPECTOR‑GENERAL PRISONS, AZAD JAMMU AND KASHSMIR, MUZAFFARABAD and others‑‑‑Appellants

versus

GHULAM MUHAMMAD LOLABI and others‑‑‑Respondents

Civil Appeals Nos. 42 and 43 of 2000, decided on 15th June, 2000.

(On appeals from the judgment and decree of the High Court, dated 23‑2‑2000 in Civil Appeals Nos. 63, 72 and 77 of 1998).

(a) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑S. 28‑‑‑Compensation‑‑‑Market value, determination of‑‑‑Land acquired was situated in the heart of the city and had potential of being used for commercial purposes‑‑‑Land acquired was a valuable commercial‑site in view of its location‑‑‑Land being situated in the thickly populated area of the city which was generally available for sale in small pieces and, thus, it was not possible to produce sale‑deeds which pertained to larger pieces of land‑‑‑General principle that sale price of small pieces of land in the area would not constitute good guide for determining the market value, therefore, would not hold true in circumstances, especially so when the sale-deeds pertaining to larger pieces of land in the area were not produced by any of the parties.

Misri v. State 1999 YLR 1273 distinguished.

Muhammad Sharif v. Azad Government 1998 CLC 2052; Government of Pakistan v. Muhammad Shafi Khan 1999 SCR 291; Azad Government v. Mst. Razia Farooqi .1996 SCR 136; Fazalur Rehman v. General Manager, S.I.D.B. PLD 1986, SC 158 ref.

(b) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑S.28‑‑‑Compensation‑‑‑Interest‑‑‑Payment of interest on enhanced compensation amount‑‑‑Principles.

‑‑‑‑Ss: 4 & 28‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑A‑‑‑Azad Jammu and Kashmir Supreme Court Rules, 1978, 0.1MIIl, R.4‑‑‑Evacuee Property Allottees (Compensation) Order, 1967, para.3‑‑‑Acquisition of land‑‑‑Payment of compensation‑‑‑Judgment of High Court ran counter to para.3, Evacuee Property Allottees (Compensation) Order, 1967 according to which 2/3rd compensation was to be paid to the allottee owner while 1/3rd would go to the Custodian ‑‑‑Validity‑‑Judgment of High Court being in patent violation of the Evacuee Property Allottees (Compensation) Orders, 1967, Supreme Court amended the judgment of High Court, in exercise of powers vested in it under S.42‑A, Azad Jammu and Kashmir Interim Constitution Act, 1974 read with R.4 of O.XLIII of the Azad Jammu and Kashmir, Supreme Court Rules; 1978 and directed the allottee owner to receive 2/3rd of the compensation amount while 1/3rd to go to the Custodian; who would also be entitled to get 15% solatium and 6% interest on his proportionate share.

Imdad Ali Malik, Advocate for Appellants.

M. Tabassum Aftab Alvi, Advocate for Respondent.

Farooq Hussain Kashmiri; Advocate for the Custodian.

Date of hearing: 12th June, 2000. ‑

YLR 2000 SUPREME COURT AZAD KASHMIR 2252 #

2000 Y L R 2139

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

AL‑KHAIR UNIVERSITY, AZAD JAMMU

AND KASHMIR and another‑‑‑Appellants

versus

AL‑KHAIR TRUST PAKISTAN through

its Chairman and 5 others‑‑‑Respondents

Civil Appeals Nos. 45 and 69 of 1999. decided on 14th April, 2000.

(On appeal from the judgment of the High Court dated 20‑3‑1999 in Writ Petition No.371 of 1996).

(a) Azad. Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ‑‑‑Order by High Court affecting the party in terms of money cannot be‑ passed behind the back of a party‑‑Ordinarily, parties to a lis are bound by the judgment of a Court‑‑‑If a judgment is given against a person who is not before the Court, such a judgment does not bind that person.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ jurisdiction of High Court‑‑Scope‑‑‑High Court can issue a writ on an application filed before it‑‑‑No order or declaration can be issued by High Court without an application‑‑‑Application may be filed in some matters by any person while in some other matters the High Court can only act on the application of an aggrieved party‑‑‑Application which can be filed by any person relates to quo warranto and habeas corpus‑‑‑Writ petition filed for seeking mandamus and certiorari can be entertained only on the application of an aggrieved party.

‑‑‑‑S. 44‑‑‑Civil Procedure Code (V of 1908), x.151‑‑ Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.38‑‑‑Writ jurisdiction of High Court ‑‑‑Scope‑‑Provisions of S.151, C. P. C. and R.38, Azad Jammu and Kashmir High Court Procedure Rules, 1984 do not authorise the High Court to suo motu exercise the writ jurisdiction‑‑while exercising the writ jurisdiction by High Court, said provisions of law cannot override S.44, Azad Jammu and Kashmir Interim Constitution Act, 1974.

Shahnaz Begum v. The Honourable Judges. of the High Court of Sindh and Balochistan PLD 1971 SC 677 and Municipal Committee, Dadyal v. Mistri Abdul Rehman 1992 SCR 136 ref.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Civil Procedure Code (V of 1908), O.I, R.8‑‑‑Writ jurisdiction of High Court‑‑Scope‑‑‑Locus standi to file writ petition‑‑One who institutes a writ petition has to be an "aggrieved party" while writ petition can only be filed against a person performing functions in connection with the affairs of the State or local authority‑‑‑Principles.

A writ petition is maintainable on the Application of an "aggrieved party" as is clear from the phraseology of section 44 of the Azad Jammu and Kashmir Interim Constitution Act. In order to find out whether a writ petition is maintainable or not, it has to be found out as to who is the aggrieved party. If there is an individual, who is aggrieved that individual can file a writ petition. If it is a group or a body of persons who has been deprived of any right or benefit, it is that group or body which is aggrieved and a writ will be maintainable at the instance of that group. Section 44 of the Constitution does not say that a writ petition can be filed by an "aggrieved person" but mentions an "aggrieved party". It provides that a writ petition can be filed against a "person" and the definition of person is given in subsection (5) of the Constitution.

The emphasis is on the fact that it should be a body politic or corporate etc. against which a writ petition is maintainable. It will be a fallacy to read in the phraseology of section 44 of the Constitution that the requirement of being a body politic or corporate is also applicable to a writ petitioner. For such an interpretation there is no warrant. In short under .section 44(2) one who institutes a writ petition has to be an "aggrieved party" while writ petition can only be filed against a "person" performing functions in connection with the affairs of the State or local authority.

The principles of Civil Procedure Code are generally applicable to writ petitions but there is no other provision of Civil Procedure Code, except Order I, Rule 8 to show that a writ is not maintainable in the name of group of persons. So far as Order I, Rule 8 is concerned it is an enabling provision. Therefore, a suit cannot be thrown out on the ground that a group of persons have not resorted to it.

Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Anjuman Araian, Bhera v. Abdul Rashid and 5 others PLD 1973 Lah. 500; Pakistan Steel Re‑Rolling Mills Association v. Province of West Pakistan PLD 1964 (W.P.) Lah. 138; Pakistan Steel Re‑Rolling Mills Association, Lahore v. The Province of West Pakistan through Secretary, Cooperation, Labour and Social Welfare Department, Lahore PLD 1966 SC 72; Messrs Sainjee Cargo Services v. Messrs Cargo Movers and others 1989 CLC 2229; Tamil Nadu Panchayat Development Officers Association, Madras v. Secretary to Government of Tamil Nadu, Rural Development and Local Administration Department, Madras and others AIR 1989 Mad. 224 and Director-General, Ordnance Factories Employees' Association v. Union of India and another AIR 1969 Cal. 149 distinguished.

Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Maj. Muhammad Ayub Khan v. Cap. Jamroz Khan and 3 others 1977 SCMR 371 ref.

(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑AI‑Khair University of Azad Jammu and Kashmir Act, 1994, S.8‑‑‑Writ petition‑‑‑Locus standi to file‑‑‑AI‑Khair Trust having been recognised by Al‑Khair University of Azad Jammu and Kashmir Act, 1994 and entrusting to the said Trust certain executive and administrative functions, which provisions had been repealed by an amending legislation, writ petition at the instance of the Trust was maintainable against the repealing of such provisions.

(f) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Al‑Khair University of Azad Jammu and Kashmir Act, 1994, S.8‑‑‑Writ petition‑‑ Locus standi to file‑‑ Aggrieved person‑‑‑Person who had been appointed as Chief Executive and Life Pro‑Chancellor of the University and all such executive powers were vested in him under S.8 of the Al‑Khair University of Azad Jammu and Kashmir Act, 1994 and by impugned amendment in the said Act he was removed from the ProChancellorship and had been totally ousted from the affairs of the University, he was an aggrieved party and had the, locus standi to challenge the law under which he had been so ousted.

(g) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ petition‑‑‑Necessary party‑‑Necessary party in a writ petition is that against whom a relief is sought or one who is the beneficiary.

(h) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 4, Fundamental Right No. 14‑‑‑AI‑Khair University of Azad Jammu and Kashmir Act, 1994, Preamble‑‑‑ "Property"‑‑‑Definition"‑‑Ejusdem generis, rule of ‑‑‑Application‑‑ Principles‑‑‑University was an "undertaking" which meant that it was "property" within meanings of Fundamental Right No. 14 of S.4 of Azad Jammu and Kashmir Interim Constitution Act, 1974.

The ejusdem generis rule is an exception to the basic rule of interpretation of statutes that all words employed by the Legislature receive their full and natural meaning and the Courts will not impose on them limitation which are not called for: This rule is also applicable to general words. The ejusdem generis rule applies where full and natural meaning of general words, when construed literally, create some anomaly or where some interpretation is involved. This rule is applicable only where general words follow particular and specific words. However, in the present case all the expressions used in. the definition are of the same genus and general words do not follow particular or specific words. The expressions "commercial undertaking, industrial undertaking and any interest in any undertaking" are words of the same genus. In the present case every expression used in the definition is independent. All the four expressions used in the explanation are separated, by the word "or" which signifies that each of the ingredients constitutes property. According to dictionary meaning of the word "or" it is "a particle coordinating two or more words, phrases or clauses, between which there is an alternative; it connects two words denoting the same things". The definition is couched in simple and unambiguous language and must be construed in accordance with the language used therein. When effect is given to each term used in the explanation "property" shall mean any of the following:‑‑

(i) immovable property;

(ii) any commercial undertaking;

(iii) any industrial undertaking;

(iv) any interest in any undertaking.

When law‑maker omitted the word "such" and instead used the word "any" he did so deliberately and to achieve a purpose.

By using the expression "any interest in any such undertaking" it was clearly meant to convey, the meaning that not only a commercial or industrial undertaking will constitute property but even an interest in any of these two undertakings also constituted property. Therefore, the ejusdem generis rule has no application. Thus all the expressions will receive their full and natural meaning.

AI‑Khair University is not an immovable property itself. It is not an industrial undertaking.

The word "undertaking" has not been defined in the Interim Constitution Act. Therefore, one has to interpret this expression in the ordinary dictionary meaning. The word "undertaking" means "an action, work, etc. undertaken or attempted, an enterprise".

University was an undertaking which means that it was "property" within the meaning of Fundamental Right No.14.

Al‑Khair University was a property within the meaning of Fundamental Right No. 14.

Interpretation of Statutes by Maxwell; A.K. Brohi's Fundamental Law of Pakistan; Abdul Aziz v. Muhammad Ibrahim PLD 1977 SC 442; Mir Abdul Hamid v. Azad Government 1997 PLC (C.S.) 805; Oxford English Dictionary; Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; AKLASC and 6 others v. Azad Jammu and Kashmir Government and 8 others 1999 SCR 418 and Rustom Cavesjee Cooper v. Union of India AIR 1970 SC 564 ref.

(i) Ejusdem generis, rule of‑‑‑

‑‑‑‑Application‑‑‑Principles.

(j) Interpretation of statutes‑‑‑

‑‑‑When law‑maker omitted the word "such" and instead used the word "any" he did so deliberately and to achieve a purpose.

Abdul Aziz v. Muhammad Ibrahim PLD 1977 SC 442 ref.

(k) Words and phrases‑‑‑

‑‑‑‑ "Undertaking "‑‑‑Meanings.

Oxford English Dictionary ref.

(1) Al‑Khair University of Azad Jammu and Kashmir (Amendment) Act, 1996‑‑

‑‑‑‑Preamble‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4, Fundamental Right No. 14‑‑‑Provisions of amending Act viz. Al‑Khair University of Azad Jammu and Kashmir (Amendment) Act, 199.6 being inconsistent with Fundamental Right No.14 of Azad Jammu and Kashmir Interim Constitution Act, 1974, was void resulting that AI‑Khair University of Azad Jammu and Kashmir Act, 1994, in its original shape, shall be deemed to have been in operation and shall continue to be so unless amended in a lawful manner.

Abdul Rashid Abbasi for Appellants (in Civil Appeal No. 45 of 1999).

Farooq Hussain Kashmiri for Respondents (in Civil Appeal No.45 of 1999).

Farooq Hussain Kashmiri for Appellants (in Civil Appeal No. 69 of 1999).

Abdul Rashid Abbasi for Respondents (in Civil Appeal No.69 of 1999).

Date of hearing 16th February, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2326 #

2000 Y L R 2252

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

BAGH HUSSAIN‑‑‑Appellant

versus

MUNICIPAL CORPORATION, MIRPUR

through Chairman, Municipal Corporation

and 4 others‑‑‑Respondents

Civil Appeal No. 119 of 1999, decided on 30th June, 2000.

(On appeal from the judgment of the High Court, dated 6‑11‑1999. in Writ Petition No. 128 of 1998).

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.463 & 464‑‑‑Forgery‑‑‑Every addition or alteration in a document was not forgery‑‑Whenever any cutting or overwriting was made in a document, it was not fair to rush to the conclusion that there had been a forgery or tampering‑‑‑Each matter had to be examined with care to reach a correct conclusion.

(b) Mirpur Municipal Committee (Regulations for Development and Disposal of Plots/Estates), 1985‑‑‑‑

‑‑‑‑Regln.16‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Regularization of plot‑‑‑Appellant who encroached upon plot allotted to respondent in 1974, had contended that alleged encroachment could be regularized under Regln. 16 of Mirpur Municipal Committee (Regulations for Development and Disposal of Plots/Estates), 1985‑‑Regulation 16 came into force in 1985 while allotment in favour of respondent was made in 1974‑‑‑Regulation 16 being not applicable to case of appellant, he could not derive benefit from same‑‑‑Regulation 16 would not have the effect of cancellation of allotment made in favour of respondent eleven years before promulgation of said Regulation especially when said Regulation had been declared unconstitutional by High Court‑‑Question whether Regln.16 was Constitutional as held by High Court, was question of academic interest and Supreme Court could not enter into such academic question.

Muhammad Yunus v, Chairman, Municipal Committee, decided on 9th June 1999 ref.

Raja Muhammad Siddique, Advocate for Appellant.

Masood A, Sheikh, Advocate for Respondent No.5.

Date of‑hearing: 29th May, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2340 #

2000 Y L R 2326

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and

Muhammad Yunus Surakhvi, JJ

Sub. (Rtd.) BEHRAM KHAN‑‑‑Appellant

versus

CUSTODIAN OF EVACUEE PROPERTY

and 5 others‑‑‑Respondents

Civil Appeal. No. 165 of 1998, decided on 19th November, 1999.

(On appeal from the judgment of the High Court dated 25‑7‑1998 in Writ Petition No.302 of 1996).

Pakistan Administration of Evacuee Property Act (X11 of 1957)‑‑‑

‑‑‑‑Ss. 3, 18‑A & 43‑‑‑Azad Jammu and Kashmir Rehabilitation Act, 1974, S.II‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑Allotment of land‑‑‑Cancellation‑‑‑Appeal to Supreme Court‑‑‑Land earlier allotted to appellant was cancelled on the ground that he did not fall within definition of "local destitute "‑‑‑Additional Custodian found appellant entitled to allotment of land in dispute being refugee from Occupied Kashmir‑‑‑Judgment of Additional Custodian concurrently was set aside by Custodian and High Court on the ground that Additional Custodian or Custodian had no jurisdiction to probe as to whether a person was a refugee and was entitled for allotment of land on that ground as determination of the nature was within exclusive jurisdiction of Rehabilitation Authorities‑‑‑Appellant at different stages had taken inconsistent pleas in respect of land in dispute‑‑‑Appellant, in the beginning claimed his entitlement in respect of land in dispute as a local destitute, but later on he claimed his entitlement, as a refugee‑‑‑Appellant in appeal before Supreme Court, had taken a totally inconsistent plea which was alien to his original stands‑‑‑Appellant by producing photocopy of mutation had claimed that land was allotted in his name by Competent Authority which was not cancelled by any Authority‑‑‑Appellant could not produce any record showing the allotment in his favour and said plea was not raised by appellant in memorandum of appeal before Supreme Court or in the concise statement‑‑‑Plea of appellant being inconsistent to the original pleas raised by him and not earlier raised, could not be allowed to be raised for the first time during arguments before Supreme Court.

Sh. Abdul Aziz, Advocate for Appellant.

Sardar Rafique Mahmood Khan, Advocate for Respondent No. 5.

Date of hearing: 17th November, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 2351 #

2000 Y L R 2340

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J.

and Muhammad Yunus Surakhvi, J

MUHAMMAD YOUSAF and 3

others‑‑‑Appellants

versus

FAZAL DAD and 12 others‑‑‑Respondents

Civil Appeal No. 17 of 1998, decided on 30th June, 1998.

(On appeal from the judgment and decree of the High Court, dated 18‑11‑1997 in Civil Appeal No. 1 of 1997).

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993(B.K.)‑‑‑

‑‑‑‑‑S. I4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for pre‑emption ‑‑‑Limitation‑‑‑Appeal to Supreme Court‑‑‑Suit filed after seven months from registration of sale deed in respect of suit property was objected to by the vendee contending that after the amendment in the relevant law whereby period of limitation for enforcement of right of pre emption had been reduced to four months, suit filed by plaintiff was time‑barred‑‑ Plaintiff controverted the plea of vendee stating that limitation period of four months as provided by amended law was not attracted to his case because sale deed was executed prior to the amendment brought in the relevant law‑‑‑Contention of plaintiff was repelled because four months period of limitation provided through amendment would govern matter whether sale deed was executed prior to or after the amendment provided period of four months or any part of it remained to be expired and could be utilized for filing suit‑‑‑Where whole period of four months for institution of suit had expired or in case there remained no reasonable time for instituting suit, un-amended law would govern the matter‑‑When amendment was brought in the relevant law, out of 120 days, plaintiff had still 119 days for filing suit and plaintiff had instituted the suit much after expiry of period of 119 days‑‑‑Suit was liable to be dismissed being time‑barred in circumstances.

Fazal Dad v. Mst. Sakina Bibi 1997 MLD 2861; Fazal Dad v. Khadim Hussain 1995 MLD 1299; Abdul Aziz v. Muhammad Shafi 1995 CLC 1740 and Abdul Ghani v. Tariq Mahmood Civil Revision No.63 of 1991 ref.

Ch. Muhammad Afzal; Advocate for Appellants.

Nazir Ahmad Ghauri, Advocate for Respondent No. 1.

Date of hearing: 29th June, 1998

YLR 2000 SUPREME COURT AZAD KASHMIR 2367 #

2000 Y L R 2351

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

ZAFAR FAROOQ‑‑‑Appellant

versus

Raja DIL NAWAZ KHAN‑‑‑Respondent

Civil Appeal No. 12 of 1999, decided on 28th June, 1999.

(On appeal from the judgment of the High Court, dated 16‑10‑1998 in Civil Appeal No. Nil of 1998).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Points to be considered‑‑‑Court at the stage of granting or refusing interim injunction had to see as to whether a prima facie case was made out or not and it was not expected of the Court to closely examine merits of the case‑‑‑Plaintiff must satisfy the Court that there was probability of a fair and substantial question to be tried in the case and decree could be issued‑‑‑Existence of a right and its infringement were the first conditions for grant of temporary injunction‑‑‑All that the Court had to see was that a person applying for an injunction had a case which needed consideration and comparative balance of convenience and inconvenience had also to be looked into‑‑Court while exercising said jurisdiction, would not profess to determine legal rights of parties in respect of the property, but would act on the assumption that party seeking interference by the Court had the legal right and needed the aid of the Court for the protection of that right until legal right was finally ascertained.

Ch. Abdul Aziz, Advocate for Appellant.

M.Y. Arvi, Advocate for Respondent

Date of hearing: 23rd June, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 2386 #

2000 Y L R 2367

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Civil Appeal No. 147 of 1999

MUHAMMAD IBRAHIM ‑‑‑Appellant

versus

CUSTODIAN OF EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR, MUZAFARABAD and 2 others‑‑‑Respondents

(On appeal from the judgment of the High Court, dated 11‑5‑1999 in Writ Petition No. 26 of 1997).

Civil Appeal No. 148 of 1999

MUHAMMAD AKRAM KHAN and 7 others‑‑‑Appellants

versus

CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 5 others‑‑‑Respondents

(On appeal from the judgment of the High Court dated 31‑5‑1999 in Writ Petition No. 12 of 1994).

Civil Appeals Nos. 147 and 148 of 1999, decided on 15th June, 2000.

(a) Pakistan Administration of Evacuee Property Act (XII of 1957)‑‑‑

‑‑‑‑S. 18‑B‑‑‑Allotment of land‑‑Cancellation‑‑‑Powers of Custodian‑‑Custodian, despite finding that allotment made in favour of allottee was not legal, did not cancel the allotment on ground that it was not proper to disturb status quo in favour of allottees after a long time‑‑‑View of Custodian was unlawful because under S. 18‑B of Pakistan Administration of Evacuee Property Act, 1957, such allotments could be reopened which were made as far back as forty years‑‑‑Intention of law was that illegal allotments could be cancelled even though those had become final‑‑‑Custodian had no authority to take the view that status quo could not be disturbed only because a long time had elapsed‑‑‑Illegal allotment, in view of S. 18‑B of Pakistan Administration of Evacuee Property Act, 1957 could not vest any right in the allottee to perpetuate illegality.

(b) Pakistan Administration of. Evacuee Property Act (X11 of 1957)‑‑‑‑

‑‑‑‑Ss.18‑B & 43(6)‑‑‑Allotment of land‑‑Cancellation ‑‑‑Suo ‑ motu powers of Custodian‑‑‑Scope and extent‑‑‑Custodian of Evacuee Property had wide suo motu powers exercisable at any time to set aside an illegal order of allotment of land‑‑‑Custodian enjoyed wide power under S.43(6) of Pakistan Administration of Evacuee Property Act, 1957 under which he could review earlier decision of granting proprietary rights in respect of allotted land if he reached the conclusion that same was an illegal order.

Azad Jammu and Kashmir Government and another v. Hakim Bashir Ahmad and others 1992 SCR 81; Azmatullah and another v. Ali Bahadur and another 1996 CLC 254; Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214 and Abdul Hamid Khan v. Muhammad Zameer Khan and others 1990 MLD 1617 ref.

‑‑‑‑Ss. 3 & 18‑B‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Evacuee nature of property‑‑Determination‑‑‑Finding of fact‑‑‑Appeal to Supreme Court‑‑‑Custodian, who was a Tribunal of exclusive jurisdiction in the matter on basis of evidence on record, had recorded finding of fact that property in dispute was in the occupation of non‑Muslims as occupancy tenants‑‑‑If nothing was on record to disprove the finding of fact same was sacrosanct and unassailable which could not be interfered with in appeal before Supreme Court.

Abdul Hamid Khan v. Ghulam Ahmad Khan 1999 YLR 2440 ref.

Shaikh Abdul Aziz, Advocate for Appellant (in Civil Appeal No. 147 of 1999).

M. Farooq Hussain Kashmiri and M. Tabassum Aftab Alvi, Advocates for Respondents (in Civil Appeal No.147 of 1999).

Sardar Muhammad Siddique Khan, Advocate for Appellants (in Civil Appeal No. 148 of 1999).

Farooq Hussain Xashmiri, M. Tabbasum Aftab Alvi and Raja Muhammad Hanif Khan, Advocates for Respondents (in Civil Appeal No. 148 of 1999).

Date of hearing: 11th May, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2392 #

2000 Y L R 2386

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

Sardar MUHAMMAD HANIF KHAN

and others‑‑‑Appellants

versus

Raja ALTAF HUSSAIN KHAN

RATHORE and another‑‑‑Respondents

Civil Appeal No. 8 of 2000, decided on 18th May, 2000.

(On appeal from the judgment of the High Court dated 26‑10‑1999 in Writ Petition No.423 of 1997).

(a) Pakistan Administration of Evacuee Property Act (X11 of 1957)‑‑‑

----S. 18‑B‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Custodian of Evacuee Property, on basis of official documents produced on record, had recorded finding of fact that respondent had surrendered his allotment‑‑Findings of fact recorded by Custodian, who was Tribunal of exclusive jurisdiction, were sacrosanct and could not be set aside by High Court in exercise of its Constitutional jurisdiction, unless it was a case of no evidence or conclusions arrived at by Custodian were against the evidence before him‑‑‑High Court while exercising Constitutional jurisdiction, could not adjudicate sufficiency of evidence.

Muhammad Sharif v. Custodian of Evacuee Property Civil Appeal No. 7 of 1993 and Bashir Ahmad Khan v. Custodian of Evacuee Property PLD 1987 SC (AJ&K) 118 ref.

(b) Pakistan Administration of Evacuee Property Act (X11 of 1957)‑‑‑

---S. 18‑B‑‑‑Powers of Custodian ‑‑‑Nature‑‑Scope‑‑‑Powers vested in Custodian of Evacuee Property under S.18‑B of Pakistan Administration of Evacuee Property Act (3I1 of 1957) were overriding in nature and fully empowered Custodian to take action suo motu‑‑‑Allotment of land could be cancelled by Custodian, notwithstanding existence of an Entitlement Certificate, where allottee had failed to comply with terms and conditions of allotment, or allotment was made in violation of law or was without jurisdiction a allottee to the satisfaction of Custodian had voluntarily surrendered or abandoned the allotment.

Syed Muhammad Siddique Shah Bukhari, Advocate for Appellants.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent No .l.

Farooq Hussain Kashmiri, Advocate for Respondent No.2.

Date of hearing: 12th April, 2000

YLR 2000 SUPREME COURT AZAD KASHMIR 2424 #

2000 Y L R 2392

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ

and Muhammad Yunus Surakhvi, J

NAWAB DIN‑‑‑Appellant

versus

KHALID SHAMSI and 13

others‑‑‑Respondents

Civil Appeal No 12 of 2000, decided on 26th May, 2000.

(On appeal from the judgment and decree of the High Court dated 17‑9‑1999 in Civil Appeal No.48 of 1995).

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

‑‑‑‑S.54‑‑‑"Sale "‑‑‑Definition‑‑‑Sale is transfer of ownership in exchange for a price paid or promised or part paid and pan promised‑‑‑If no consideration was paid at the time of execution of the agreement to sell, Rs. 29, 000 were promised to be paid at the time for the execution of the sale‑deed and, the agreement was written for Rs. 47, 000, it was not correct to hold that agreement to sell was not proved or the same was executed without consideration.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 113‑‑‑Transfer of Property Act (IV of 1882), S. 54‑‑‑Term "date fixed " in Art. 113, Limitation Act, 1908‑‑‑Connotation‑‑‑If a date was fixed for the performance of an act in the agreement, period of limitation would start from the said date‑‑‑Where no such date was fixed, time would start from the date of refusal‑‑‑Where no specific date was fixed, but it was specifically mentioned in the agreement that the sale‑deed would be executed after the final adjudication of the litigation which was pending in the Civil Court‑‑‑Effect‑‑‑Held, it was not necessary that a specific date must be fixed; such a date could be inferred from the contents of the agreement‑‑‑Term "date fixed " used under Art. 113, Limitation Act, 1908, would be inclusive ,of any date so ascertained.

Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others 1988 CLC 870; Muhammad Ashraf Baig v. Haji Ahmad (Civil Appeal No. 65 of 1999 and Hutchegowda v. H. Basaviah AIR 1954 Mys.29 and R. Muniswani Goundar and another v. B. M. Shamanna Gouda and another v. B.M. Shamannas and others AIR 1950 Mad. 820 ref.

Ch. Yaqoob Javed Batalvi, Advocate for Appellant.

Muhammad Rafique Dar, Advocate for Respondents Nos. l to 6 and 12 to 14.

Date of hearing: 26th May, 2000

YLR 2000 SUPREME COURT AZAD KASHMIR 2433 #

2000 Y L R 2424

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD BASHIR‑‑‑Appellant

versus

MUHAMMAD YUSUF and others‑‑‑Respondents

Civil Appeal No. 108 and Civil Miscellaneous No. 90 of 1999, decided on 7th February, 2000.

(On appeal from the judgment of the High Court, dated 21‑6‑1999 in Civil Appeal No. 76 of 1998).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XL, R.1‑‑‑Attachment of property‑‑Appointment of Receiver‑‑‑Pending rival suits for perpetual injunction, vendee filed application for appointment of Receiver and attachment of suit land which he had duly purchased and was alleged to have taken possession thereof‑‑‑Trial Court dismissed application of vendee on ground that suit land sold by vendor for specific survey number was beyond his share whereas vendor was competent to alienate the land provided he was in its exclusive possession ‑‑‑Vendee claimed to have taken possession of suit land simply on ground that there was recital in the sale‑deed that possession had been given to vendee and that there was a note in mutation that possession had been delivered in pursuance of sale‑deed to vendee ‑‑‑Vendee otherwise could not prove that he had taken possession of the property‑‑‑Mere recital in sale‑deed that vendee had taken possession of suit land was not sufficient to prove his possession ‑‑‑Vendee having failed to make out case for attachment of suit land and appointment of Receiver as visualised by O.XL, R.1, C.P.C., application of vendee for attachment of suit land and appointment of Receiver, was rightly dismissed.

Muhammad Siddique and another v. Muhammad Latif and others 1996 SCR 299 ref.

Raja Muhammad Hanif Khan, Advocate for Appellant.

Ch. Muhammad Ibrahim Zia, Advocate for Respondents.

Date of hearing: 3rd February, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2452 #

2000 Y L R 2433

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

GHULAM NABI and 12 others‑‑‑Appellants

versus

CUSTODIAN' OF EVACUEE PROPERTY and 10 others‑‑‑Respondents

Civil Appeal No. 46 of 1999, decided on 11th October, 1999.

(On. appeal from the judgment of the High Court, dated 22nd February, 1999 in Writ Petition No. 432 of 1997).

(a) Azad Jammu and Kashmir (Rehabilitation) Ordinance, 1952‑‑‑

‑‑‑‑S.5‑‑‑Pakistan Administration of Evacuee Property Act (XII of 1957); Ss. 18‑A, 18‑B & 43‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Allotment of land‑‑‑Cancellation of Proprietary Rights Transfer Order‑‑‑Land which was allotted to original allottee was allotted to predecessor‑in‑interest of respondents after his death ‑‑‑Predecessor‑in-interest of appellants had claimed that after death of original allottee, his daughter had transferred said land in his favour and that he had obtained Proprietary Rights Transfer Order in his favour‑‑‑Custodian in review petition filed by respondents, cancelled Proprietan Rights Transfer Order issued in favour of predecessor‑in‑interest of appellants holding that land had already, been transferred in the name of respondents through Proprietary Rights Transfer Order‑‑Writ petition filed against said order of Custodian having been dismissed by High Court, appellants had filed appeal before Supreme Court against judgment of the High Court‑‑‑Appellant had failed to produce any evidence on record to prove that after the death of original allottee land left by him was ever transferred to his alleged daughter who subsequently had transferred said land to predecessor‑in‑interest of appellants‑‑‑In absence of any valid transfer or allotment of land in dispute in favour of predecessor‑in‑interest of appellants, no Proprietary Rights transfer Order could be issued to appellants especially, when valid Proprietary Rights Transfer Order had already been issued in favour of the respondents‑‑‑Proprietary Right Transfer Order issued in favour of appellants was rightly , cancelled by ' Custodian and judgment of Custodian was rightly upheld by High Court.

Muhammad ' Shafi v. Mst. Jannat Bibi and others 1994 SCR 247 and Zafar Iqbal v. Abdul Aziz and another, 1998.CLC 286 ref.

(b) Azad Jammu and Kashmir (Rehabilitation) Ordinance, 1952‑‑‑

‑‑‑‑S.5‑‑‑Pakistan Administration of Evacuee Property Act (XII of 1957), Ss. 18‑A, 18‑B & 43‑‑‑Allotment of land ‑‑‑Cancellation‑‑ Successive review petitions ‑‑‑Competency‑‑ Respondents had contended that successive review petitions filed by appellants' before Custodian of Evacuee Properties against cancellation of Proprietary Right Transfer Order earlier issued in their names, were not maintainable‑‑‑Validity‑‑‑Successive review petitions though were not .barred in tire scheme of' Rehabilitation law, but it would not mean that successive review should be filed on same facts and circumstances existing at the time of f ling of first review petition‑‑If in a judgment a glaring ‑mistake appeared on face of record or appeared some clerical mistake, successive review petitions were trot barred‑‑‑If subsequent judgment under review suffered from said defects, other review petition was not barred, but it was not a rule of universal application that successive review petitions were permissible under all circumstances.

Sh. Abdul Aziz for Appellants.

Syed Muhammad Siddique Shah Boldhari and Farooq Hussain Kashmiri for Respondents.

Date of hearing: 5th October, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 2519 #

2000 Y L R 2452

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Basharat Ahmad Shaikh, J

MUHAMMAD RAMZAN and 2 others‑‑‑Appellants

versus

CUSTODIAN OF EVACUEE PROPERTY and 5 others‑‑‑Respondents

Civil Appeal No. 46 of 1998, decided on 3rd December, 1998.

(On appeal from the order of the High Court, dated 19‑2‑1998 in Writ Petition No. 19 of 1996).

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

‑‑‑‑Ss. 2(3) &. 3‑‑‑ "Evacuee property "Meaning ‑‑‑Any tangible interest of an evacuee in a property would bring the same within ambit of definition of words "evacuee property "‑‑‑Not necessary that evacuee must have full right of ownership in the property‑‑Even if an evacuee had only possessory title to the land before migration to India, property would be deemed to be an "evacuee property "‑‑‑Allotment of property declared as evacuee in pursuance of provision of Pakistan Administration of Evacuee Property Act, 1957 did not offend against law.

Ch. Muhammad Anwar, Advocate for Appellants.

Nemo for Respondent No. 1.

Respondents Nos. 2 and 6: Ex pane.

Raja Muhammad Siddique Khan, Advocate for Respondents Nos. 3 to 5.

Date of hearing: 1st December, 1998,

YLR 2000 SUPREME COURT AZAD KASHMIR 2534 #

2000 Y L R 2519

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Mst. KOUSAR NISAR‑‑‑Appellant

versus

Raja MUHAMMAD MAQSOOD‑‑‑Respondent

Civil Appeal No. 1 of 2000, decided on 30th May, 2000.

(On appeal from the judgment and decree of the Shariat Court, dated 29th September, 1999 in Civil Appeal No. 34 of 1999).

Muhammadan Law

‑‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Non‑compliance by wife of the order to return the benefits received by her from her husband within stipulated time would not adversely affect the factum of the dissolution of marriage on the basis of Khula'‑‑Principles.

Non‑compliance of wife to return benefits received by her to her husband within the stipulated time would not adversely affect the factum of the dissolution of marriage on the basis of Khula'. In view of the finding of the Courts that spouses could no more live within the limits ordained by the God, the marriage stood dissolved and return of benefits by wife to husband remained merely liability of civil nature which could be enforced by the husband through appropriate means.

Mst. Hanifa Begum v. Hassan Shaikh and 3 others PLD 1983 SC (AJ&K) 163 distinguished.

Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 SC 169; Muhammad Yasin v. Rafiqa Bibi alias Rafia Sultana and another PLD 1983 Lah. 377 and Muhammad Akram v. Mst. Majeed Begum 1985 CLC 2626 ref.

Muhammad Sharif Tariq for Appellant.

Ch. Muhammad Azam Khan for Respondent.

Date of hearing: 29th May, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2547 #

2000 Y L R 2534

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary at Muzaffarabad and 3 others‑‑‑Appellants

versus

H. ALI CONSTRUCTION COMPANY LTD. through Mian Mushtaq Ahmed ‑‑‑ Respondent

(On appeal from the judgment of the High Court, dated 12‑1‑2000 in Writ Petition No. 2 of 2(100).

Azad Jammu and Kashmir High Court Procedure Rules, 1984‑‑‑

‑‑‑‑R.34‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VII of 1974), Ss.42, 44 & 44(4)‑‑‑Inviting of pre‑qualification tenders for Government construction work with usual condition that any tender could be rejected it without assigning airy reason‑‑‑Rejection of tender‑‑‑Writ petition before High Court against rejection of tender‑‑‑Grant of interim injunction by High Court‑‑‑Validity‑‑Arbitrariness or discrimination could not be, allowed in such matters and conditions that no reason: will be assigned while rejecting a tender would not imply that an application or tender could be rejected without reason‑‑‑If, however, rejection of tender was challenged in the High Covert, it would be the duty of the department to disclose the reason to the Court‑‑‑Copy of the proceedings conducted by the committee constituted for pre-qualification purposes had been appended with the appeal before Supreme Court showing the reason as to why the tender was riot pre‑qualified‑‑‑Basis on which interim relief was granted by the High Court having lost force in view of the proceedings of the said Committee and execution of public work had been stopped ex parte without weighty reason which was against S.44(4), Azad Jammu and Kashmir Interim Constitution Act, 1974, Supreme Court, in circumstances, vacated the stay order granted by the High Court.

Raja Muhammad Hanif Khan, Advocate for Appellants. .

Ghulam Mustafa Mughal, Advocate for Respondent.

Date of hearing: 12th April, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2557 #

2000 Y L R 2547

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Mst. ANWAR BEGUM‑‑‑Appellant

versus

MAZHAR HUSSAIN and another‑‑‑Respondents

Civil Appeals Nos. 123 and 124 of 1999, decided on 26th April, 2000.

(On appeal from the order of the High Court, dated 15‑9‑1999 in Civil Revisions Nos. 2 and 3 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17‑‑‑Declaratory suit‑‑Amendment in plaint‑‑‑Scope‑‑‑Suit seeking annulment of gift deed on the grounds that the land gifted by the donor was in excess of his share in the property and gift was not accompanied by the delivery of possession‑‑Plaintiff sought amendment in the plaint, after expiry of four years in terms that they had been deprived of the possession during the pendency of the suit ‑‑‑Validity‑‑Conversion of declaratory suit to suit for possession would not change the nature of suit in substance; basically plaintiffs intended to annul the gift deed and by amendment they sought an additional relief of possession‑‑Amendment in plaint could not be disallowed on the basis of additional relief and merely because that was sought after the expiry of period of 4 years.

Sultan Ahmad v. Sahu 1969 SCMR 277; Muhammad Mian v. Syed Shamimullah 1995 SCMR 69 and Keramat Ali v. Muhammad Younus Haji PLD 1963 SC 191 ref. Muhammad Yunus Arvi Advocate for Appellant.

Ch. Muhammad Akhtar, Advocate for Respondent No. 1.

Date of hearing: 26th April, 2000

YLR 2000 SUPREME COURT AZAD KASHMIR 2629 #

2000 Y L R 2557

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

FAZAL HUSSAIN ‑‑‑Appellant

versus

MUHAMMAD MUNIR‑‑‑Respondent

Civil Appeal No. 3 of 2000, decided on 27th April, 2000.

(On appeal from the judgment of the High Court, dated 20‑9‑1999 in Civil Revision No. 49 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17‑‑‑Amendment in plaint‑‑Scope‑‑‑Question as to whether amendment sought, if allowed, would change the cause of action or complexion of a suit, depended upon the circumstances of each case‑‑‑Where the contents of the plaint originally framed and the amendment application showed that the facts which the plaintiff sought to introduce by way of amendment, would tantamount to introduce altogether a different case from the one which he had initially set up in his plaint, amendment sought would be refused.

Chaudhry Nazir Ahmed v. Mrs. Mariam Salauddin Khawaja PLD 1994 Lah. 252; Muhammad Akram and 2 others v. Muhammad Ashraf and 5 others 1998 CLC 555; Semco Salvage (Pvt.) Limited v. m.v. Kaptain Yusuf Kalavan and another 1993 SCMR 593; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Raja Feroz Khan v. Asghar Khan and others 1992 SCR 363 ref.

Muhammad Riaz Inqalabi, Advocate for Appellant.

Muhammad Yunus Tahir, Advocate for Respondent.

Date of hearing: 26th April, 2000

YLR 2000 SUPREME COURT AZAD KASHMIR 2662 #

2000 Y L R 2629

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

NAZIR HUSSAIN ‑‑‑Appellant

versus

MUHAMMAD ALAM KHAN and 3 others‑‑‑Respondents

Civil Appeal No. 125 of 1999, decided on 16th February, 2000.

(On appeal‑ from the judgment and decree of the High Court, dated 1‑6‑1999 in Civil Appeal No. 30 of 1995).

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

‑‑‑‑O. VI, Rr. I & 2‑‑‑Pleadings‑‑‑Only material facts were to be pleaded and not the evidence by which said facts were to be proved.

Anwar Hussain v. Manzoor Ahmad 1999 YLR 1511; Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345 and LT Leach & Co. Ltd. v. Messrs Jardine Skinner & Co. AIR 1957 SC 357 ref.

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

‑‑‑‑O. XLI, R.27‑‑‑Additional evidence‑‑Production of‑‑‑Appellate Court must be very cautious while allowing additional evidence‑Party, seeking to bring on record additional evidence, must convince Court with proof that it could not lead evidence at proper stage due to some substantial cause.

Muhammad Rizwan v. Abdul Jabbar 2000 YLR 1844; The Secretary to the Government of West Pakistan Communication and Works Department v. Gulzar Muhammad PLD 1969 SC 60; Muhammad Nazir v. Abdul Rashid 1998 SCR 248; Abdul Qayyum v. Bashir Ahmad Khan 1996 SCR 22 and Taj Din v. Jumma PLD 1978 SC (AJ&K) 131 ref.

Ghulam Mustafa Mughal for Appellant.

Sardar Rafique Mahmood Khan for Respondents.

Date of hearing: 14th February, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2711 #

2000 Y L R 2662

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakltvi, J

AZAD JAMMU AND KASHMIR GOVERNMENT through its Chief Secretary at Muzaffarabad and 4 others‑‑‑Appellants

versus

Sardar MUHAMMAD AZAD KHAN‑‑‑Respondent

Civil Appeal No. 49 of 2000, decided on 20th July, 2000.

(On appeal from the order of the High Court, dated 7th February, 2000 in Writ Petition No. 714 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. III, R. I‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Writ petition‑‑‑Counsel and client‑Disposal of writ petition on statement made by counsel‑‑‑Validity‑‑‑Writ petition was disposed of on basis of statement made by counsel for respondent‑‑‑Power of attorney executed by respondent in favour of the counsel did not empower him to make such statement‑‑‑Statement made by counsel before High Court, being without any legal authority, was of no consequence‑‑‑if power to do an act had not been specifically given to an attorney such act whether compromise or otherwise, was of no legal consequence at the option of concerned party.

Amrit Banaspati Co. Ltd. v. Emperor AIR 1947 Born. 306; Ghulam Nabi v. Ashraf Ali 1994 SCMR 1709; Mst. Noor Jahan v. Azmat Hussain Farooqi 1992 SCMR 876; Muhammad Afsar Khan v. Khadim Hussain PLD 1978 SC (AJ&K) 143; Muhammad Mehrban v. Sadrud Din 1995 CLC 1541; Government of West Pakistan v. Nasir M. Khan PLD 1965 SC 106; Khan Muhammad v. Abdul Aziz 1992 SCR 54; Bashir Ahmad v. Muhammad Qasim 1992 SCR 69; AKLASC v. AJ&K Government 1999 SCR 418 and Muhammad Aslam v. Member, Board of Revenue (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner PLD 1980 SC 45 ref.

Ghulam Mustafa Mughal, Advocate for Appellants.

Kh. Shahad Ahmad, Advocate for Respondent.

Date of hearing: 10th July, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2762 #

2000 Y L R 2711

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Sardar MUHAMMAD AYAZ KHAN‑‑‑Appellant

Versus

ABDUL QAYYUM KHAN and 27 others‑‑‑Respondents

Civil Appeal No. 142 of 1999, decided on 28th July, 2000.

(On appeal from the judgment and decree of the High Court, dated 3rd June, 1999 in Civil Appeal No. 8 of 1997).

Expunction of remarks‑‑‑

‑‑‑‑ Suits for pre‑emption and for cancellation of consent decree‑‑‑Suit for cancellation of sale‑deed in respect of land was decreed by Trial Court with consent of the parties‑‑Plaintiff, who had filed the suit for pre-emption on basis of his prior right of purchase, also filed suit for cancellation of consent decree alleging that consent decree in the suit was procured fraudulently with connivance of Trial Court in order to defeat his right of pre‑emption ‑‑‑High Court in its judgment had remarked that fraud had been practised with the connivance of Trial Court to defeat the preferential right of plaintiff and that case under relevant provisions of law should also be registered against the Presiding Officer‑‑‑Trial Judge filed appeal before Supreme Court for expunction of remarks recorded against hint by the High Court‑‑‑No allegation was levelled against Trial Judge in the suit for cancellation of consent decree charging that he was responsible for tampering with the record and passing forged decree in the suit‑‑‑No such allegation was mentioned in the memo of appeal but it was specifically averred therein that decree had been obtained by decree--holders in connivance with Clerk of Court‑‑Case of the plaintiff throughout had been that tampering of Court's record took place because of connivance of Clerk of, Court with vendee and vendor and it was for the first time that in the High Court the allegations had been levelled against Trial Judge‑‑‑Validity‑‑‑High Court, though had power to order registration of case against Trial Judge, but it could be done if there was sufficient material to proceed against him‑‑‑Evidence on record had established that there was no sufficient proof against the Trial Judge‑‑High Court could hold inquiry against Trial Judge under Efficiency and Discipline Rules and then to pass appropriate order‑‑‑Registration of case against Trial Judge did not seem to be necessary‑‑‑Supreme Court accepted appeal, ordered expunction of adverse remarks against appellant.

Sardar Muhammad Sadiq Khan and Abdul Hamid Khan, Advocates for Appellants.

Syed Mushtaq Hussain Gilani, Advocate for Respondent No. 1.

Imdad Ali Mallick, Advocate for Respondents Nos. 2 to 28.

Date of hearing: 5th June, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2774 #

2000 Y L R 2774

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD ADALAT and another‑‑‑Appellants

versus

MUNSHI KHAN and 3 others‑‑‑Respondents

Civil Appeals Nos. 14 of 1999 and 106 of 1998, .decided on 22nd November, 1999.

(On appeals from the judgments of the High Court, dated 2‑5‑1998 and 23‑101998 in Writ Petitions Nos. 144 and 147 of`‑1.997).

(a) Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates, 1985‑‑‑

‑‑‑‑Regln. 16‑‑‑Allotment of plot‑‑ Cancellation of‑‑‑Regularization of allotment‑‑‑Validity‑‑‑Respondent was in possession of disputed Khokha for the last more than twenty years which was duly registered in his name and he was regularly paying tax to the Municipal Corporation‑‑ Respondent was entitled to get possession of said 'Khokha' regularized, but Mayor of the Municipal Corporation allotted the plot wherein said Khokha was situated to appellant, but that allotment was cancelled by Government through general cancellation notification‑‑‑Committee known as "Local Task Committee" again allotted the plot to the appellant‑‑‑High Court, on filing Constitutional petition, against said allotment, quashed said allotment declaring sane to be illegal‑‑‑Validity‑‑‑According to Regln. 16 of Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates, 1985, only that encroachment could be regularized which originated prior to 30th June, 1981 and it was also mandatory requirement that encroachment had to be proved by official record, but in the relevant record no proof was available to show that land regularized in favour of the appellant or part of it was ever encroached upon by him‑‑‑Appellant, even in the written statement filed in High Court did not claim that he had made any encroachment‑‑‑Appellant, in memorandum of appeal in the Supremc Court had nowhere stated that finding of High Court was incorrect‑‑‑Appellant did not fulfil qualification as laid down in Regln. 16 and order passed by Mayor of the Municipal Corporation and that of Local Task Committee in favour of appellant was illegal. (pp. 2776, 27781 A & C

Raja Muhammad Asif v. Chairman Municipal Committee, Mirpur and other, 1994 SCR 167 ref.

(b) Azad Jammu and Kashmir Local Councils Act‑‑‑

S. 61‑A‑‑‑Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates, 1985, Regln. 16‑‑‑Allotment of land‑‑‑Cancellation of‑‑‑Regularization of allotment by 'Local Task Committee "Allotment of land in dispute made in favour of appellant by Mayor of the Municipal Corporation, was cancelled by the Government, but allotment was again restored by the 'Local Task Committee"‑‑‑ Validity‑‑‑Government under S.61‑A, Azad Jammu and Kashmir Local Councils Act, had only allowed to set up a "Revising Authority" and by no stretch of interpretation a "Local Task Committee" could be described as Revising Authority‑‑‑ "Local Task Committee" could not be construed to be a body set up under S. 61‑A‑‑‑Allotment in favour of appellant having been cancelled through general cancellation order, even "Revising Authority" could not deal with the cancelled allotment.

Muhammad Siddique Chaudhry, Advocate for Appellant (in Civil Appeal No. 14 of 1999).

Liaquat Ali Khan, Advocate for Respondent (in Civil Appeal No. 14 of 1999).

Riaz Inqalabi, Advocate for Appellant (in Civil Appeal No. 106 of 1998).

Muhammad Siddique Chaudhry and Muhammad Yunus Tahir, Advocates for Respondents (in Civil Appeal No. 106 of 1998).

Date of hearing: 27th October, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 2793 #

2000 Y L R 2793

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD SAID KHAN and 25 others‑‑‑Appellants

versus

ABDUL QAYYUM KHAN‑‑‑Respondent

Civil Appeals Nos. 143 and 144. of 1999, decided on 12th May, 2000.

(On appeal from the judgment and decree of the High Court dated 3‑6‑1999 in Civil Appeal No.8 of 1997).

(a) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B. K.)‑‑‑

‑‑‑‑S. 14‑‑‑Pre‑emption‑‑‑Suit for pre-emption ‑‑‑Plaintiff f led a suit for pre‑emption in respect of suit land on 18‑8‑19P4 and claimed a preferential right on basis of being a co‑sharer in the suit land and also on the basis of his land being adjacent/contiguous to the suit land‑‑‑Vendor and others after the institution of suit of plaintiff, in collusion with the vendee, filed a suit for cancellation of sale deed to defeat the right of pre‑eruption of the plaintiff and managed to show that suit for cancellation of sale was filed on 13‑8‑1994 by tampering with the record‑‑Effect‑‑‑Suit for cancellation of sale was filed after the institution of the suit for pre‑emption by plaintiff, which, as a matter of fact, amounted to fraud to deny the right of pre-emption of the plaintiff‑‑‑Sale‑deed, in circumstances, on the date the pre‑emption suit was filed by the plaintiff was intact‑‑Collusion between the vendor and vendee to give back the suit property to the vendors aiming .at defeating the Pre‑emption suit, would not adversely affect the suit for preemption.

Tai Din v. Jumma and 6 others PLD 1978 SC (AJ&J) 131; Fazal Bi and others v. Ghulam Hussain and others PLD 1981 SC (AJ&K) 103 distinguished.

Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426 and Rahmat Ali and 10 others v. Ahmad Yar 1979 CLC 690 ref.

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

‑‑‑‑S.52‑‑‑Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B. K.), S.14‑‑‑Pre-emption‑‑‑Suit for pre‑emption ‑‑‑Lis pendens, principle of‑‑‑Applicability‑‑‑Resale in favour of a subsequent vendee after the period of limitation does not defeat the pre‑emptor's right as the principle of lis pendens would be fully attracted.

‑‑‑‑O. VI, R. 2‑‑‑pleading‑‑‑plea which has not been raised in the pleading, evidence iii respect of that cannot be looked into.

(d) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B. K.)‑‑‑

‑‑‑‑S. 14‑‑‑Pre‑emption‑‑‑Suit for pre-emption ‑‑‑Superior right of pre‑emption on the basis of plaintiff being a co‑sharer in the estate‑‑‑Such right of pre‑emptor could not be taken away on account of non‑attestation of the mutation as such attestation was merely a formality.

Imdad Ali Mallick for Appellants.

Syed Mushtaq Hussain Gilani for Respondent (in Civil Appeal No. 143 of 1999).

Syed Mushtaq Hussain Gilani, Advocate for Appellant (in Civil Appeal No. 144 of 1999).

Imdad Ali Mallick, Advocate for

Respondents (in Civil Appeal No. 144 of 1999).

Date of hearing: 1st May, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2831 #

2000 Y L R 2831

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan; C.J., Basharat Ahmad Shaikh and Muhammad Mims Surakhvi, JJ

ANDLEEB SAHIR BUTT‑ Appellant

versus

Raja NAVEED HUSSAIN and 2 others‑‑‑Respondents

Civil Appeal No. 51 of 1999, decided on 23rd December, 1999.

(On appeal from the order of the High Court, dated 28‑1‑1999 in Writ Petition No. 130 of 1996).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXIII, Rr.l & 3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Writ petition, withdrawal of‑‑‑Appeal before Supreme Court‑‑‑Pending writ of quo warranto filed by both petitioner/appellant and co petitioner, one of the respondents filed application before High Court that if co petitioner was promoted to any higher post, he would not file any appeal or application against order of promotion‑‑‑High Court on the prayer of respondent, dismissed petition as having been withdrawn observing that counsel for petitioner did not want to press petition in view of the application of respondent‑‑Petitioner in High Court alongwith co-petitioner aggrieved by said judgment of High Court had filed appeal before Supreme Court‑‑‑Validity‑‑‑Application filed by respondent before High Court only pertained to matter relating to co petitioner and not appellant who was one of the petitioners before High Court‑‑‑Writ petition filed by appellant/petitioner against respondent could not be dismissed as withdrawn on the basis of application filed by co petitioner because same did not pertain to relief sought by appellant/petitioner against the respondent‑‑if any compromise in the matter existed it was arrived at between co petitioner and respondent and appellant/petitioner was not party to the same‑‑‑While passing order on the basis of compromise it was incumbent upon the Court to record compromise under R. 3 of O. XXIII, C. P. C., which had not been done in the case‑‑‑If counsel of appellant/ petitioner and co petitioner had made any statement regarding appellant/petitioner that would be of no legal consequence‑‑‑Supreme Court accepting appeal set aside order of High Court ` and remanded case with direction to decide the same afresh according to law after hearing the parties‑‑- Delay, if any, in filing appeal was condoned.

Haji Naqeebuddin v. The State Bank of Pakistan 1971 SCMR 585; Haji Rehmat Ullah v. Settlement and Rehabilitation Commissioner, Lahore 1970 SCMR 66; Gulzar Masili' v. The State 1980 SCMR 37; Azad Government of the State of Jammu and Kashmir v. Ch. Muhammad Latif PLD 1983 SC (AJ&K) 70 and Mehboob v. Muzaffar Din 1992 SCR 338 ref.

Andleeb Sahir Butt (Appellant) in person.

M. Tabassum Aftab Alvi, Advocate for Respondent No. 1.

Kh. Attaullah, Additional Advocate General for Respondents Nos. 2 and 3.

Date of hearing: 21st December, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 2842 #

2000 Y L R 2842

[Supreme Court (AJ&K) J]

Present: Sardar Said Muhammad Khan, C. J.and Basharat Ahmad Shaikh, J

MANZOOR AHMAD NAQSHBANDI‑‑‑Appellant

versus

M.A. FAROOQ and another ‑‑‑Respondents

Civil Appeal No. 83 of 1997, decided on 17th July, 1998.

(On appeal from the Order of the High Court, dated 31‑7‑1997 in Civil Revision No. 74 of 1994).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.149 & O. VII, . R.II‑‑‑Deficiency in court‑fee ‑‑‑Making up of‑‑‑Discretion of Court, exercise of‑‑‑Court had the discretion to extend time hi making tip deficiency in court fee and once discretion was exercised, tune to make up deficiency would be presumed to be automatically extended and suit would be deemed to have been instituted on the date when the same was first filed--Provisions of relevant law relating to making tip of deficiency in court fee had to be liberally construed in favour of litigant unless and until conduct of concerned party was contumacious.

Muhammad Nawaz Khan v Makhdobm Syed Ghulam Mujtaba Shah PLD 1970 SC 37; Abdul Qayyum v. Additional District Judge 1992 MLD 1657; Muhammad Siddiq v. Muhammad Ibrahim PLD 1981 B.J. 23; Mahanth Ram Das v. Ganga Das AIR 1961 SC 882; Mahasay Ganesh Prasad v. Narendra Nath Sen AIR 1953 SC 431; Shahna Khan v. Aulia Khan PLD 1984 SC 157; Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289; Sakhi Muhammad v. Hakim Ali 1991 CLC 1655; Muhammad Yasin Khan v. Azad Government of the State of Jammu and Kashmir 1991 MLD 2295; Mst. Walayat Khatun v. Khalil Khan PLD 1979 SC 821; Syed Zahid Hussain v. Capital Development Authority, Islamabad 1979 CLC 502; Muhammad Ramzan v. District Judge, Okara PLD 1993 Lah. 421 and Rahim Bakhsh v. Muhammad Bakhsh PLD 1976 Lah. 686 ref.

Muhammad Farid Khan for Appellant.

Respondent No. l in person.

Syed Abdullah Shah Masoodi for Respondent No.2.

Date of hearing: 18th June, 1998.

YLR 2000 SUPREME COURT AZAD KASHMIR 2852 #

2000 Y L R 2852

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

MUHAMMAD SABIR and 7 others‑‑‑Appellants

versus

Sain MAQBOOL HUSSAIN and 3 others‑‑‑Respondents

Civil Appeal No. 57 of 1999, decided on 24th January, 2000.

(On appeal from the judgment of the High Court, dated 15‑12‑1998 in Civil Appeal No. 59 of 1997).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 9, 11 & O.1, R.10(2)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for recovery of amount in respect of income of shrine‑‑‑Principle of res judicata‑‑‑Applicability‑‑‑Impleading of shrine as defendant‑‑‑Suit was resisted by defendant on the grounds that same was hit by principle of res judicata and shrine, which was necessary party, was not impleaded as one of the defendants‑‑‑Decree was passed in favour of plaintiff/appellant in previous suit between the parties relating to period falling between 27‑9‑1987 the date of institution of suit till 30‑9‑1990, the date of decision of the

Trial Court‑‑‑Plaintiff in subsequent suit had claimed share of income for the period falling between 13‑9‑1990 to 31‑12‑1995 and thereafter‑‑‑Controversy in issue between the parties in subsequent suit was not a point in issue in the previous suit nor plaintiff at time of filing previous suit had a cause of action with regard to claim of amount in the subsequent suit‑‑‑Cause of action in subsequent suit having arisen after decree was passed in previous suit, it could not be said that matter in issue between the parties at subsequent stage was in any way in issue between them in previous litigation‑‑Principle of res judicata, thus, had no application whatsoever on the subsequent suit‑‑‑Question of omitting or relinquishing a point which was not foreseeable in future could not have been taken by plaintiff in previous suit‑‑‑Objection with regard to non-impleading of shrine as defendant was also repelled because amount in dispute was liable to be recovered from defendants and shrine itself had to pay nothing to the parties‑‑Shrine, in circumstances, coul4 not be a necessary party so as to entail dismissal of suit of plaintiff.

Abdul Ghafoor Qureshi, Advocate for Appellants.

Kh. Ali Muhammad, Advocate for Respondents.

Date of hearing: 21st January, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 2868 #

2000 Y L R 2868

[Supreme Court (AJ&k)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Sardar MUHAMMAD AYUB KHAN‑‑‑Appellant

versus

SECRETARY, S&GAD and 4 others‑‑‑Respondents

Civil Appeal No. 116 of 1998, decided on 16th November, 1998.

(On appeal from the judgment of the High Court; dated 2‑7‑1998 in Writ Petition No. 200 of 1998).

Azad Government of State of Jammu and Kashmir Rules of Business, 1985‑‑‑

‑‑‑‑Sched. V, R. I 1‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. .7, 12 & 42‑‑‑Powers of the President‑‑‑Exercise of‑‑‑Provisions of S.7, Azad Jammu and Kashmir Interim Constitution Act, 1974, being applicable to all sub‑Constitutional laws, the President of Azad Jammu and Kashmir had to act on the advice of the Prime Minister who had been vested with executive authority under S. 12 of the Constitution even, in those matters which were not mentioned in the Constitution itself‑Schedule V of Azad Government of State of Jammu and Kashmir Rules of Business, 1985 being in line with provisions of S.7 of Azad Jammu and Kashmir Interim Constitution Act, 1974, would not fall under the exception clause.

President's Reference No. 1 of 1977 PLD 1978 ‑SC (AJ&K) 37; Khawaja Ahmad Tariq Rahim, Bar‑at‑Law v. Federation of Pakistan PLD 1991 Lah. 78; Khawaja Muhamfnad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others PLD 1988 Lah. 725; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 4 others PLD ::1980 Lah. 206; Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 4 others PLD 1980 Lah. 271; Muhammad Ajaib v. Public Service Commission and 3 others 1997 PLC (C.S) 222, Islamic Republic of Pakistan through the Secretary, Ministry of Defence Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza PLD 1977 SC 182; Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79; Haji Muhammad Yunus and 4 others v. Muhammad Hanif Pehalwan and 3 others 1982 CLC 49 and Al‑Jahad Trust through Raees‑ul‑Mujahidin Habibi-Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 SC 84 ref.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Raja Shiraz Kayani, Advocate General for Respondents.

Date of hearing: 10th November, 1998.

YLR 2000 SUPREME COURT AZAD KASHMIR 2898 #

2000 Y L R 2898

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Ynnus Surakhvi, JJ

Khawaja ABDUS SUBHAN‑‑‑Appellant

versus

KHURSHID and 11 others‑‑‑Respondents

Civil Appeal No. 159 of 1999, decided on 21‑12‑1999.

(On appeal from the judgment of the High Court, dated 14‑10‑1999 in Civil Appeal No. 21 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr. I & 2‑‑‑Interim relief‑‑Object‑‑‑Basic intent and object of an interim relief was always to maintain status quo of suit property and not to create a different situation than what it was existing at the time of filing suit‑‑‑Court at the stage of grant or refusal of ad‑interim relief, teas not expected to examine closely the merits of the case of the parties‑‑‑Suit of the plaintiff need not appear to succeed in all respects in order to secure interim relief in his favour .

Abdul Rashid Abbasi, Advocate for Appellant.

Ghulam Mustafa Mughal, Advocate for Respondents.

Date of hearing: 7th December, 1999.

YLR 2000 SUPREME COURT AZAD KASHMIR 2911 #

2000 Y L R 2911

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

AKLASC and 6 others‑‑‑Appellants

versus

AZAD J&K GOVERNMENT and 8 others‑‑‑Respondents

Civil Appeals Nos. 94, 95 and 96 of 1998, decided on 13th August, 1998.

(On appeal from the order of the High Court, dated 3rd April, 1998 in Writ Petition No. 283 of 1998).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑F.Rs. Nos. 8, 13 & 14‑‑‑Qanun‑eShahadal (l0 of 1984), Art. 113‑‑Constitutional petition‑‑‑Violation of Fundamental Rights‑‑‑Facts admitted‑‑‑Not to be proved‑‑‑Notification whereby complete ban was imposed oil crating of trees oil commercial basis for a period of three years and contractors were prohibited to continue their work of cutting trees, had been challenged by contractors in Constitutional petition before High Court alleging that said Notification was issued in violation of Fundamental Rights guaranteed by the Constitution‑‑‑High Court accepted Constitutional petition granting relief in general terms 'without giving specific direction that contractors could be allowed to carry on their work‑‑‑High Court declared impugned notification to be illegal, but. refused to grant relief to continue work of cutting trees which had already been started under contract holding that petitioners could not prove that they had started the work and had invested money ‑‑‑Averments made in the Constitutional petition and replies given by respondents, had clearly proved that contractors had admittedly started the work years ago and had invested huge amount for that purpose‑‑‑Supreme Court accepted appeal, set aside said part of the judgment of the High Court, issuing direction to respondents to allow contractors to complete contract according to law‑‑‑Judgment of High Court whereby impugned notification was declared illegal and void, was maintained by Supreme Court.

Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Andh Behari v. Gajadhar (1955) 1 SCR 70; Messrs Momin Motor Company v. Regional Transport Authority PLD 1962 SC 108; Azad Government and others v. Neelum Flour Mills, Muzaffarabad 1992 SCR 381; Azad Kashmir Trading Corporation v. Messrs Z.H. Construction and 2 others PLD 1998 SC (AJ&K) 7; Jawad Hussain Jafri v. Azad Government and 4 others 1999 MLD 33; Muhammad Mushtaq v. Muhammad Fiaz Abbasi and others 1994 SCMR 95 and Shree Gnesh Trading Company v. The State of Madh. Par. AIR 1973 Madh. Pra. 26 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Appeal to Supreme Court‑‑Locus standi to file‑‑‑Writ petition‑‑Notification whereby complete ban was imposed on cutting of trees on commercial basis for three years, was challenged only by contractors before the High Court‑--Appeals to Supreme Court were filed against judgment of High Court by contractors, Government and the Corporation‑‑‑Corporation had taken the position same as was adopted by the contractors‑‑‑Appeal by Corporation was objected to on the ground that Corporation had not filed writ petition before the High Court, thus, could not file appeal before Supreme Court‑‑‑Question whether the Corporation had locus standi to file appeal, had become academic in view of acceptance of appeal filed by the contractors‑‑‑Supreme Court would not enter into academic question‑‑‑Appeal of Corporation was ordered to be consigned to record accordingly.

Muhammad Farid Khan and Ch. Muhammad Ibrahim Zia, Advocate for Appellants (in Civil Appeal No. 94 of 1998).

Raja Shiraz Kayani, A.‑G. for Respondents Nos. 1 and 2 (in Civil Appeal No. 94 of 1993).

Abdul Rashid Abbasi, Advocate for Appellants (in Civil Appeal No.95 of 1998).

Raja Shiraz Kayani, A.‑G. for Respondents Nos. l and 2 (in Civil Appeal No. 95 of 1998).

Muhammad Farid Khan and Ch. Muhammad Ibrahim Zia, Advocates for Respondents Nos, 3 to 8 (in Civil Appeal No.95 of 1998).

Raja Shiraz Kayani, A.‑G. for Appellants (in Civil Appeal No. 96 of 1998).

Abdul Rashid Abbasi, Advocate for Respondents Nos. 1 to 7 (in Civil Apeal No.96 of 1998).

Ch. Muhammad Ibrahim Zia for Respondents Nos. 8 to 13 (in Civil Appeal No.96 of 1998).

Date of hearing: 4th August, 1998

YLR 2000 SUPREME COURT AZAD KASHMIR 3032 #

2000 Y L R 3032

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

ALLAH DITTA KHAN and 5 others‑‑‑Petitioners

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 3 others‑‑‑Respondents

Civil Appeal No. 13 of 2000, decided on 26th June, 2000.

(On appeal from the judgment of the High Court, dated 8‑12‑1999 in Civil Appeal No. 8 of 1997).

Land Acquisition Act (1 of 1894)‑‑‑‑

‑‑‑‑Ss. 4, 12, 18, 23 & 54‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Acquisition of land‑‑Determination of compensation‑‑‑ Collector Land Acquisition determined market value of acquired land taking into consideration about 14 sale‑deeds in respect of sale land situated in the area‑‑‑Referee Court enhanced amount of compensation which was upheld by High Court‑‑‑Owners of acquired land dissatisfied with the determination of market value, had filed appeal before Supreme Court‑‑‑Nothing had been brought on record by appellants that geographical position of acquired land was such that it had potential for being put to use for business or could be used for construction of residential accommodation‑‑Market value of land having rightly been assessed by Collector and Referee Court, same could not be interfered with in appeal by Supreme Court.

C.R.M.A. Firm v. Special Collector of Pegu AIR 1930 Rang. 346; Chimanlal Hargovinddas v. Special Land Acquisition Officer Poona and another' AIR 1988 SC 1652; Government of Pakistan v. Hamid Akhtar PLD 1988 SC (AJ&K) 6; Government of Pakistan v. Muhammad Shafi and 4 others 1999 SCR 291 and Muhammad Shafi and 7 others v. Azad Government and another 1998 CLC 2052 ref.

Raja Hassan Akhter Advocate. for Appellants.

M. Riaz Tabassum, Advocate and Ch. Muhammad Mushtaq, Addl. A.‑G. for Respondents.

Date of hearing: 22nd June, 2000.

YLR 2000 SUPREME COURT AZAD KASHMIR 3058 #

2000 Y L R 3058

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.

Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

GOVERNMENT OF PAKISTAN and another‑‑‑Appellants

versus

MUHAMMAD SHAM KHAN and 4 others‑‑‑Respondents

Civil Appeals Nos. 207 and 208 of 1998, decided on 13th May, 1999.

(On appeals from the judgment of the High Court, dated 18‑5‑1998 in Civil Appeals Nos. 1 and 3 of 1995).

(a) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss. 4, 11, 18 & 54‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Acquisition of land‑‑Determination of amount of compensation‑‑Petition for leave to appeal before Supreme Court was converted in appeal‑‑‑Appeals filed by landowners against judgment of Referee Court with regard to determination of amount of compensation of acquired land having been dismissed, by High Court, landowners filed petitions for leave to appeal before Supreme Court against judgment of the High Court‑‑Petitions were objected to on the ground that instead of filing petitions for leave to appeal, direct appeals should have been filed in the Supreme Court under S. 54 of Land Acquisition Act, 1894‑‑‑Validity‑‑Held, in view of common practice that petitions for leave to appeal were filed instead of direct appeal under S. 54 of Land Acquisition Act, 1894 petitions were allowed by Supreme Court in the interest of justice particularly so when no limitation period was fixed for the appeals either in Supreme Court Rules or in the Land Acquisition Act, 1894‑‑‑Petitions for leave to appeal had been treated as appeal under S.54 of Land Acquisition Act, 1894 read with S.42(2) of Azad Jamtna and Kashmir Interim Constitution Act, 1974.

Water and Power Development Authority v. Sadullah Khan and others 1999 SCMR 319 ref.

(b) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑Ss. 4, 11, 18 & 23‑‑‑Acquisition of land ‑‑Determinarion of amount of compensation‑‑Criteria‑‑if geographical position of acquired land was such that it had potential for being put to the use for business or same could be used for construction of residential accommodation, market value of the land could be based even on sale deeds which pertained to smaller portion of land‑‑Acquired land being situated on road side and in the opinion of Referee Court and High Court it had potential value, Referee Court and High Court had committed no error in enhancing the amount of compensation of the land.

Faiz Akbar Khan v. Azad Government of the State of Jammu and Kashmir Civil Appeal No. 1 of 1996; Fazalur Rehman v. General Manager, S.I.D.B. PLD 1980 SC 158; Cedar Rapids Manufacturing and Power Co. v. Locastel (1914) AC 569 and Water and Power Development Authority, Lahore v. Qamar‑ud‑Din 1992 :LC 258 ref.

‑‑‑‑Ss. 4, 11, 17 & 17‑A‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑ Acquisition of land‑‑Compulsory acquisition charges‑‑Entitlement‑‑‑Landowners were not given compulsory acquisition charges on value of house situated in acquired land‑‑Landowners, in circumstances, were entitled to 15% compulsory acquisition charges on price of the house.

Syed Nazir Hussain Shah Kazmi for Appellant (in Civil Appeal No. 207 of 1998).

Ashfwque Hussain Kiani for .Respondent (in Civil Appeal No. 207 of 1998).

Ashfaque Hussain Kiani for Appellants (in Civil Appeal No. 208 of 1998).

Syed Nazir. Hussain Shah Kazmi for Respondents (in Civil Appeal No. 208 of 1998).

Dates of hearing: 5th and 6th April, 1999.