YLR 2001 Judgments - Pakistan Legal Archive

Courts in this Volume

Bar Council Nwfp
Bar Council Sindh
Federal Shariat Court
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Supreme Court Azad Kashmir

Bar Council Nwfp

YLR 2001 BAR COUNCIL NWFP 2104 #

2001 Y L R 2104

[N.‑W.F.P. Bar Council Tribunal, Peshawar]

Before Justice Mian Shakilrullah Jan, Chairman, Muhammad Alam Khan and

Qaiser Rashid, Members

SHER BAHADER, ADVOCATE, TAKHT BHAI‑‑‑Petitioner

versus

SHER ZAMAN‑‑‑Respondent

Revision Petition T.A. No.19 of 2001, decided on 20th July, 2001.

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑O. XVII, R.1 (2)‑‑ Adjournment‑‑ Imposition of cost‑‑‑Object‑‑‑Jurisdiction of Court‑‑‑Principles‑‑‑Case was adjourned on the request of the petitioner when witnesses of respondent were present‑‑‑Adjournment was allowed against costs‑‑‑Validity‑‑‑Court under the provisions of O.XVII, R.1(2), C.P.C. had ample discretion in imposing costs‑‑ Adjournment allowed by Courts subject to payment of costs to the other party in order to relieve the party of the expenses incurred on bringing the witnesses to Court and not by way of penalty‑‑‑Order passed by the Court was perfectly sound, based on equity and proper exercise of judicial discretion and the same called for no interference.

Saeed Baig for Petitioner.

Respondent in person.

Bar Council Sindh

YLR 2001 BAR COUNCIL SINDH 2977 #

2001 Y L R 2977

2001 Y L R 15

[Karachi]

Before Anwar Zaheer Jamali, J

Mian MUHAMMAD AKTHAR‑‑‑Plaintiff

versus

DARAS SHAH BUJOR DALAL‑‑‑Defendant

Suit No. 1091 of 1998 and Civil Miscellaneous Application No. 2466 of 1999 decided on 26th February, 2001.

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

‑‑‑‑Art. 113‑‑‑Word 'refused Connotation‑‑‑Where no intention o knowledge of refusal was spelled out from the notice, the same could not be equated with notice of refusal within the frame of word 'refused' as used in Art. 113 of Limitation Act, 1908.

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

‑‑‑‑O: VII, R.11‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Plaint, rejection of‑‑‑Specific performance of agreement to sell‑‑‑No time was fixed in the agreement for the performance of the agreement‑‑‑Contention of the defendant was that the suit was barred by time‑‑‑Validity‑‑‑Whether the suit had been instituted by the plaintiff within three years from the date of notice or refusal from the defendant within the parameters of Art. 113 of Limitation Act, 1908, or not was matter of evidence to see‑‑‑Application was dismissed in circumstances.

1984 CLC 2364; Miran alias Mir Muhammad v. Ghulam Hussain PLD 1985 Kar.674; Black's Law Dictionary; PLD 1977 Kar.377; 1986 CLC 1887; PLD 1961 Kar.599; PLD 1966 SC 505; AIR 1923 Rang.44(1) and AIR 1957 Madh. Bha. 177 ref.

Abrar Hassan for Plaintiff.

Hamza I. Ali for Defendant.

Date of hearing: 8th February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 22 #

2001 Y L R 22

[Karachi]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, JJ

Messrs K. K. GARMENTS‑ Petitioner

versus

CHAIRMAN, C.B.R., ISLAMABAD‑‑‑Respondent

Constitutional Petitions Nos. D‑1477 and D‑1478 and Miscellaneous Nos.4057 and 4160 of 2000, decided on 8th November, 2000.

(a) Interpetation of statutes‑

‑‑‑‑ Expression 'it shall come into force at once' in a section‑‑‑Connotation‑‑‑Expression signifies the intention of the law‑makers that the moment statute was signed by the President, it became a piece of legislation in force.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.l8, 19 & 30 (as amended by Customs (Amendment) Ordinance (XLVI of 2000)]‑‑Constitution of Pakistan (1973), Art.l99‑‑Constitutional petition‑‑‑Customs duty, charging of‑‑‑Dispute was with regard to exemption denied by the Authorities on the ground that the day when the Bill of Entry was manifested, the amendment in the law had been made vide Customs (Amendment) Ordinance, 2000‑‑‑Validity‑‑‑Where the Bill of Entry was manifested on 7‑9‑2000 and 9‑9‑2000 and the amendment was made on 7‑9‑2000, the importer was not entitled to the exemption available prior to the amendment.

Messrs Moosa & Company v. Collector of Customs, Karachi and another PLD 1977 Kar. 710 and The Province of East Pakistan v. Major Nawab Khawaja Hassan Askari and others PLD 1971 SC 82 ref.

Ghulam Ahmad Khan for Petitioner, Raja Muhammad Iqbal for Respondent No. 1.

YLR 2001 KARACHI HIGH COURT SINDH 45 #

2001 Y L R 45

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

Mst. SHAHZADI and others‑‑‑Appellants

versus

ALTAF ALI and another‑‑‑Respondents

First Rent Appeal No. 7 of 1993, decided on 4th May, 2001.

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

‑‑‑‑S.15‑‑‑Question of relationship of landlord and tenant ‑‑‑Ejectment application was filed against brother of the tenant‑‑‑Rent Controller‑dismissed the application on the ground that the landlord had failed to prove the relationship of landlord and tenant between the parties‑‑‑Validity‑‑‑Tenant had proved his tenancy and there was no default on his part as the rent was being paid by him by way of other modes provided in law, the Rent Controller had rightly dismissed the ejectment application‑‑‑Where the premises was required for personal bona fide use, the landlord might initiate proper proceedings against the tenant for the purpose of eviction‑‑‑High Court declined to interfere in the order passed by the Rent Controller.

Muhammad Alam through Legal Heirs v. Sultan Shah PLD 1988 Kar. 369; 1982 MLD 2011; Dost Muhammad v. Mst. Ramzan Bibi and 9 others 1990 MLD 1667; Deedar Ahmed and another v. Cooperative Engineers Limited 1992 MLD 1049 and Rahmat Khan v. Mst. Hamida 1992 MLD 1685 ref.

Abdul Fateh Malik for Appellants

Manzoor Ahmed Junejo for Respondents.

Date of hearing: 3rd April, 2001

YLR 2001 KARACHI HIGH COURT SINDH 58 #

2001 Y L R 58

[Karachi]

Before Anwar Zaheer Jamali, J

STATE LIFE INSURANCE‑‑‑Appellant

versus

ZAHOOR AHMAD‑‑‑Respondent

First Rent Appeals Nos.769 and 770 of 1998, decided on 29th January, 2001.

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

‑‑‑‑S. 15‑‑‑Ejectment of tenant‑‑‑Subletting of rented premises‑‑‑Use of premises by company, rented in the name of Director‑‑Effect‑‑‑Premises was leased out to Managing Director of limited company and the same was being used by the company‑‑‑Contention of the landlord was that the Managing Director had sublet the premises to the company‑‑‑‑Validity‑‑‑Even if the Director was occupying the case premises even then such possession was in the capacity of Managing Director of the company and not in his personal capacity and that the business which was being managed and looked after in the case premises also belonged to the company‑‑‑Company incorporated under the Companies Act/Ordinance was a separate legal entity and the same could not be considered or construed as a sole proprietorship concern of any individual‑‑Landlord had succeeded to prove that the Managing Director/tenant had sublet the premises to the company‑‑‑Dismissal of ejectment application by Rent Controller being illegal, the same was set aside by High Court ‑‑‑Ejectment was allowed in circumstances.

Muhammad Subhan and another v. Mst. Bilqees Begum through Legal Heir and 3 others 1994 SCMR 1507(2); Nasir Mehmood v. Mustajabi Begum 1983 CLC 282; Muhammad Yousuf and 5 others v. Adam Ali and 4 others 1981 CLC 596; Motal Bai v. Abdul Aziz and others PLD 1968 Kar. 635; Khuda Bux v. Syed Badrul Hasan PLD 1968 Kar. 657 and Messrs Franksons & Co. v. Mian Muhammad Hussain 1983 CLC 1042 ref.

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

‑‑‑S.15‑‑Ejectment of tenant‑‑‑Subletting of premises‑‑‑Waiver and estoppel, principle of‑‑‑Applicability‑‑‑Tenants had failed to show that at any stage before filing of ejectment cases against them, the landlord acknowledged subletting or that due to their acts of omission or commission the landlord waived right for seeking eviction of the tenant on that account‑‑‑Effect‑‑‑Plea of estoppel and waiver raised by the tenants was not applicable in circumstances.

Manekje Mobed and another v. Shah Behram and others PLD 1974 SC 351 and Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 fol.

Mian Mushtaq Ahmed for Appellant.

Waqar Muhammad Khan Lodhi for Respondent.

YLR 2001 KARACHI HIGH COURT SINDH 74 #

2001 Y L R 74

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD USMAN and others‑‑‑Applicants

versus

YAR MUHAMMAD ‑‑‑Respondent

Civil Revision Application No.65 of 2000, decided on 13th April, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VII, R.II‑‑‑Rejection of plaint ‑‑‑Court-fee, non‑deposit of‑‑‑Plaint was rejected by Trial Court for non‑deposit‑of requisite court-fee within time provided by the Trial Court‑‑Appeal against rejection of plaint was also dismissed‑‑‑Plaintiff filed Constitutional petition and High Court directed Appellate Court to reconsider the matter‑‑‑Appellate Court, after reconsideration set aside the order of Trial Court and remanded the case for decision afresh‑‑‑Validity‑‑‑Where substantive rights of parties were involved, such controversies could only be resolved by adducing evidence‑‑‑Court fee had been paid by the parties and they had been allowed to produce their evidence in Trial Court, as trial of the suit was in the interest of both the parties to resolve the outstanding controversies‑‑‑High Court declined to interfere with the order passed by the Appellate Court.

Rahmatullah v. Muhammad Ikram and 7 others 1999 MLD.1622; Nasir Raza Jaffry v. Messrs Macter Pharmaceutical (Pvt.) Ltd. through Managing Director and 34 others PLD 1998 Kar: 250 and Inam‑ur-Rehman Shah, Assistant Entomologist, Agriculture Department, Muzaffarabad v. The State PLD 1989 SC (AJ&K) 32 ref.

Lachman Das G. Rajput for Applicants.

Khadim Hussain Mangi for Respondent.

YLR 2001 KARACHI HIGH COURT SINDH 81 #

2001 Y L R 81

[Karachi]

Before Anwar Mansoor Khan, J

HABIB BANK LIMITED‑‑‑Plaintiff

versus

Messrs BALOCHISTAN GUM INDUSTRIES (PVT.) LIMITED and 4

others‑‑‑Defendants

Old Suit No.389 of 2000/New Suit No.B‑17 of 2000, decided on 2nd March, 2001.

(a) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑Ss. 41 & 42‑‑‑B.C.D. Circular No.32, dated 26‑11‑1984 by State Bank of Pakistan‑‑‑Expression "interest wherever charged", as used in B. C.D. Circular No. 32, dated 26‑11‑1984‑‑‑Meaning‑‑‑Such expression means all interest, whether it be on foreign loan or otherwise.

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

‑‑‑‑S. 9‑‑‑B.C.D. Circular No.130, dated 26‑8‑1984 by State Bank of Pakistan‑‑‑Suit for recovery of Bank loan‑‑‑Charging of interest‑‑‑Service charges, whether to be included in the debts of borrowers‑‑‑Loan was advanced by a foreign Bank which was paid in Pak Rupees and the same was to be returned in Pak Rupees‑‑‑Contention of the plaintiff‑Bank was that the transaction was covered under definition of 'foreign loan" and interest could be charged ‑‑‑Validity‑‑Case was that of a "loan " as defined in mode (A) of Annexure 1 to B.C.D. Circular No. 13, dated 26‑8‑1984‑‑‑Granting and disbursing of loans under mode (A) of Annexure 1 of B.C.D. Circular No. 13, dated 26‑‑8‑1984 would not carry any interest and the Banks could recover "service charges" which were not to exceed the proportionate costs of operation‑‑‑Banks were not allowed to charge the costs of funds and provisions of bad and doubtful debts‑‑‑Where the finance was such, no amount could be charged beyond the expiry period, as after the sale was complete the seller namely, the Bank only became an unpaid seller‑‑‑Payment which was unpaid by the purchaser namely the customer, therefore, became a debt or a loan and would be governed by item (A) of permissible modes of financing in Annexure 1 of B.C.D. Circular No.13, dated 26‑8‑1984‑‑‑Transaction being a loan, interest was allowed thereon in terms of item (A) of Annexure I of B.C.D. Circular No.13, dated 26‑8‑1984‑‑‑High Court allowed only service charges and decreed the suit accordingly.

‑‑‑‑S. 9‑‑‑B. C. D. Circular No. 13, dated 26‑8‑1984 by State Bank of Pakistan‑‑Recover v of Batik loan‑‑‑Interest bearing deposits‑‑‑Scope‑‑‑Obligation of Bank was with Government of Pakistan and not with the foreign Lending Institution‑‑‑No deposits could be taken which were interest bearing in view of the provisions of B. C.D. Circular No.13, dated 26-8‑1984‑‑‑Where the Bank chose to pay interest to the Government, it could do so, but could not pass on the same to the customer‑‑‑All agreements contemplating such acts were void ab initio in circumstances.

Aziz‑ur‑Rehman for Plaintiff.

Shafi Muhammadi and Muhammad Saleem Samo for Defendants.

YLR 2001 KARACHI HIGH COURT SINDH 164 #

2001 Y L R 164

[Karachi]

Before Zahid Kurban Alavi, J

FAYYAZUDDIN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.41 to 46 of 1998, heard on 15th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/468/34‑‑‑Prevention of Corruption Act ill of 1947), S.5(2)‑‑‑Appreciation of evidence‑‑‑Prosecuton had not impleaded any one of the accused persons in the F.I.R. and even the names of the accused were inserted by hand in the challan submitted before the Trial Court and the prosecution witnesses had not involved the accused in the case‑‑Prosecution had not even examined the Magistrate before whom the confessional statements of the accused were recorded‑‑Prosecution having failed to prove its case against the accused beyond any reasonable doubt, conviction and sentence awarded to him were set aside.

Abdul Sattar v. The State PLD 1984 Pesh.146; Ali Anwar v. The State 1988 PCr.LJ 2107; The State v. Ilam Din and others 1986 PCr.LJ 2072 and Ashiq Hussain v. The State 1993 SCMR 417 ref.

Anwar Hussain and Hatif Khudai Ansari for Appellant.

Ismail Memon for the State.

Date of hearing: 15th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 166 #

2001 Y L R 166

[Karachi]

Before Faiz Muhammad Qureshi, J

Mst. KHAIRUNNISA Appellant

versus

MUHAMMAD JAFFAR‑‑‑Respondent

First Rent Appeal No. 1298 of 2000, decided on 6th April, 2001.

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

‑‑‑‑Ss. 15 & 19‑‑‑Ex parte order, setting aside of‑‑‑Application for substituted service of tenant through publication was allowed and notice was published in newspaper and such service was held good against tenant's legal representatives ‑‑‑Ejectment application was filed against the tenant herself and it was nowhere mentioned that ejectment application was filed against the tenant through her legal representatives‑‑‑Ex parte order was passed against the tenant as legal representatives of the tenant were called absent on relevant date‑‑‑Tenant having not been given full opportunity to contest the matter, ex parte order passed against tenant was set aside and case was remanded to the Rent Controller with direction to give full opportunity to the parties to contest the matter expeditiously.

Shafaat Hussain for Appellant.

Khalid Daud Pota for Respondent.

Date of hearing: 6th April, 2001

YLR 2001 KARACHI HIGH COURT SINDH 168 #

2001 Y L R 168

[Karachi]

Before Sabihuddin Ahmed, J

AMIR HAMID‑‑‑Appellant

versus

Mst. SAEEDA BEGUM‑‑‑Respondent

First Rent Appeal No.484 of 1999, decided on 29th January, 2001.

Administration of justice‑‑‑

‑‑‑‑Law would prefer adjudication on merits‑‑‑‑Technicalities not to be allowed to stand in the way of substantial dispensation of justice.

Mohammed Mateen v. Khursheed Dosoo Durabji Markar and others 1988 CLC 711; Mukhtar Begum v. Dildar Begum NLR 1992 AC 764 and Rehman Weaving Factory v. Industrial Development Bank PLD 1981 SC 21 ref.

Ajeebullah for Appellant.

Malik Khushhal for Respondent.

YLR 2001 KARACHI HIGH COURT SINDH 169 #

2001 Y L R 169

[Karachi]

Before Faiz Muhammad Qureshi, J

V. H. PAGE‑‑‑Appellant

versus

Mst. RUTHANN BIG‑‑‑Respondent

First Rent Appeal No.1476 of 2000, decided on 9th April, 2001.

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

‑‑‑‑Ss. 15 & 19‑‑‑Ejectment proceedings‑‑Attorney of landlady who filed his affidavit‑in‑evidence had come for cross‑examination 12 days after from filing his affidavit and he neither was sworn in Court nor any oath was administered to hint‑‑‑Evidence of attorney of landlady having not been legally recorded, order of ejectment passed against tenant was set aside and case was remanded to the Rent Controller to record proper legal evidence and to pass appropriate order.

Adam Limited, Karachi v. Arif 1998 CLC 989 ref.

Khurshid Ahmed Qureshi for Appellant.

Haseebur Rehman for Respondent

Date of hearing: 9th April, 2001

YLR 2001 KARACHI HIGH COURT SINDH 171 #

2001 Y L R 171

[Karachi]

Before Hamid Ali Mirza, J

MUHAMMAD IRSHAD‑‑‑Appellant

versus

ALEEMUDDIN and another‑‑‑Respondents

First Rent Appeal No.230 of 1998, decided on 7th August, 1998.

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

‑‑‑‑Ss. 15 & 19‑‑‑Ex parte order, setting aside of‑‑‑Tenant who put in appearance through his counsel after publication of the notice in newspaper sought adjournment for filing written statement‑‑‑Tenant who failed to file written statement on the adjourned date of hearing again made an application further seeking time to file written statement which application was dismissed and the landlord was directed to file affidavit in ex parte proof‑‑‑Application of tenant for setting aside ex parte order passed against him was also dismissed by the Rent Controller and application filed by the tenant under S.19(4) of ‑Sindh Rented Premises Ordinance, 1979 for supplying him copy of affidavit filed by the landlords and to afford the tenant chance to cross‑examine the landlords and their witnesses was also dismissed by the Rent Controller and final ejectment order was passed against the tenant‑‑‑Validity‑‑‑Nothing was in Sindh Rented Premises Ordinance, 1979 providing that in case a tenant had failed to file written statement then he would be debarred from participating in the future proceedings to be taken after passing the order for ex parte proceedings‑‑‑Tenant, if had not made out a good case for hearing him, in answer to the ejectment sought against him, he at least should have been permitted to cross‑examine the landlords so as to displace their entitlement to ejectment‑‑Even if the tenant had failed to file written statement and his ground was not considered to be good for the purpose of setting aside the order of ex part proceedings, he could not be debarred from participating in the future proceedings to be initiated after the passing of order for ex pane proceedings‑‑‑Rent Controller having not allowed the tenant to cross‑examine the landlords, ejectment order passed against the tenant could not be termed to be legal in circumstances.

Deputy Registrar, Cooperative Societies v. Mst. Zulekha Bai and others 1991 CLC 1003; Messrs Fakhri Traders v. Mst. Batool Fida Hussain Sheikh and 4 others 1985 CLC 282; Islamuddin v. Abdul Rehman and another PLD 1986 Kar. 70; Province of Punjab and others v. Mst. Maqsooda Begum 1989 .MLD 2170; Province of Punjab and another v. Messrs Muhammad Saeed Malik PLD 1986 Lah. 135; Collector, Quetta Sub-Division v. Sardar Qasim and 3 others PLD 1983 Quetta 1 and Azizullah Khan and 4 others v. Arshad Hussain and 2 others PLD 1975 Lah. 879 ref.

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

‑‑‑‑Ss. 15 & 20‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Proceedings under Sindh Rented Premises Ordinance, 1979‑‑Applicability of Civil, Procedure Code, 1908‑‑‑Provision of Civil Procedure Code, 1908 though had not been made applicable to the said proceedings except as provided in S.20 of Sindh Rented Premises Ordinance, 1979 but Rent Controller could always adopt such provisions and apply them when considered just and equitable‑‑‑Right to cross‑examine was valuable right of the party and was means of discovering truth which should not be lightly deprived of.

‑‑‑‑Art. 132‑‑‑‑Cross‑examination‑‑‑Right of cross‑examination was a valuable right of a party and was means of discovering truth and a party should not be lightly deprived of the same.

Karamatullah for Appellant.

Anwar Hussain for Respondents.

YLR 2001 KARACHI HIGH COURT SINDH 191 #

2001 Y L R 191

[Karachi]

Before Sabihuddin Ahmed, J

MUHAMMAD ASLAM QURESHI‑‑‑Applicant

versus

THE STATE and 8 others‑ Respondents

Criminal Revision Application No. 113 of 2000, decided on 7th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 319‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Revision application‑‑Trial Court had framed the charge in question under S.319, P. P. C. instead of S. 302, P. P. C. and had completely overlooked the substance of clear allegation contained in the F.I.R. and reiterated in the interim challan and had proceeded to‑follow the ipsi dixit of police officials shielding their colleagues‑‑Police officials were required to place before the Court all evidence collected in respect of commission of the offence and they could not assume the function of Trial Court by sifting evidence and that too to the extent of rejecting specific allegation in the F.I.R. on account of certain statements recorded under S.161, Cr.P.C. which had a limited worth and could not be treated as evidence‑‑Accused indeed were entitled to use such statements at the trial for the purpose of confronting and contradicting the complainant, but using such statements as the basis of the charge was a mala fide effort on the part of the Investigating Officer in going out of his way to protect his colleagues‑‑Manner in which the matter was treated by the Trial Court was also deprecated by the High Court‑‑‑Trial Court, in circumstances, was directed to frame the charge afresh and thereafter to proceed with the trial‑‑‑Revision petition was accepted accordingly.

Mehmood A. Qureshi App

Jawed Akhtar, A.A.‑G. and Muhammad Saleh Panhwar for Respondents.

YLR 2001 KARACHI HIGH COURT SINDH 194 #

2001 Y L R 194

[Karachi]

Before Zahid Kurban Alavi, J

LAL DINO alias LALOO‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 123 of 2001 decided on 2nd April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss. 302/324/431/148/149‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail on ground of statutory delay‑‑Statutory delay in conclusion of the trial was admitted by the prosecution‑‑‑Right of accused to be enlarged on bail under the third proviso to S.497(1), Cr.P.C. was a statutory right which could not be denied under the discretionary power of the Court to grant bail‑‑‑Accused was admitted to bail in circumstances.

Zahid Hussain Shah v. The State PLD 1995 SC 52; Jalal v. Allah Yar and another 1993 SCMR 525; Muhammad Yousaf v. The State 1999 PCr.LJ 501 and Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72 ref.

Tanveerul Isma and Mahmood A. Quraishi for Appellant.

Suleman Habibullah, Addl. A.‑G, for the State.

YLR 2001 KARACHI HIGH COURT SINDH 197 #

2001 Y L R 197

[Karachi]

Before Sarmad J. Omsani, J

SHAHNAWAZ JUNEJO ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.224 of 2001, decided on 29th March, 2001.

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

‑‑‑‑S. 561‑A‑‑‑Inherent powers of High Court‑‑‑Quashing of proceedings‑‑Principles‑‑‑When a particular action, investigation, report or any other step in lodging the F.I.R. or prosecution of a criminal case is shown to the High Court to be patently against the provisions of law or otherwise indicating that no case could possibly be made out, then High Court has the jurisdiction to quash the proceedings, report etc. as no useful purpose would be served to keep the matter lingering on, which III fact amounts to an abuse of the process of the Court.

Miraj Khan v. Gul Ahmed 2000 SCMR 122; Mian Munir Ahmed v. The State 1985 SCMR 257 and State through Advocate General, N.‑W.F.P. v. Gulzar Muhammad 1998 SCMR 873 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Conflict in the Act and its Schedule‑‑‑If there is a conflict between the provisions o, an Act or Ordinance and the Schedule thereto, the main provision of such Act or Ordinance would prevail.

‑‑‑‑S.188‑‑‑Criminal Procedure code (V of 1898), Ss.195 (1)(a) & 561‑A‑‑‑Quashing of F.I. R. ‑‑‑No Court could take cognizance of an offence under S.188, P. P. C. as provided by S.195 (1) (a), Cr. P. C. except on a complaint in writing of the concerned Officer etc. and the police, therefore, could not at all have taken cognizance of the matter and registered the F.LR‑‑‑F.I.R. in question, thus, was incorrectly lodged in violation of S.195(1)(a), Cr.P.C. and no conviction being possible on its basis, same amounted to an abuse of the process of the Court‑‑‑Applicant had correctly approached High Court under S. 561‑A, Cr. P. C. ‑‑‑F. I. R was quashed accordingly.

Barkat Ali v. S.H.O., Police Station Sadar, Kabirwala 2000 PCr.LJ 238; Khalid Iqbal Ghauri v. Allah Ditta, Magistrate 20170 PCr.LJ 1084; Makhdoom Khaliquzzaman v. The State 1999 PCr.LJ, 478; Syed Qaim Ali Shah v. The State 1999 PCr. LJ 1221; Kishoi Kumar v. The State 1999 PCr.LJ 1736; Miraj Khan v. Gul Ahmed 2000 SCMR 122; Mian Munir Ahmed v. The State 1985 SCMR 257 State through Advocate‑General, N.‑W.F.P v. Gulzar Muhammad 1998 SCMR 87 Ghulam Nabi v . The State 1996 PCr.LJ 1335; Gulzar v. The State 1996 PCr.LJ 80; Rizwan Hussain v. The State 1999 MLD 2293; Ahmed Saeed v. The State 1996 SCMR 186 and Nisar Ahmed v. Ansar Khan 1994 PCr.LJ 1223 ref.

Qurban Ali H. Chuhan for Applicant.

Muhammad Azeem Panhwar for the State.

YLR 2001 KARACHI HIGH COURT SINDH 200 #

2001 Y L R 200

[Karachi]

Before Ghulam Rabbani, J

TANVEER HUSSAIN ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Bail Application No. 1300 of 2000, decided on 20th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Qffences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail‑‑‑Complainant had only seen the accused, his neighbour, talking with the other accused while they were leaving after committing dacoity‑‑‑No tangible material except the aforementioned statement of the complainant in the F.LR. was shown to connect the accused with the commission of the offence‑‑‑Case against accused, thus, required further inquiry‑‑Accused was admitted to bail accordingly.

PLD 1985 SC 182 and PLD 1995 SC 34 ref.

S. Saeed Hassan Zaidi for Applicant.

Jawed Akhtar for the State.

YLR 2001 KARACHI HIGH COURT SINDH 202 #

2001 Y L R 202

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

MUHAMMAD AZEEM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.8 of 2001, decided on 26th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑ ‑Penal Code (XLV of 1860), Ss.420/468/471/34‑‑‑Bail‑‑‑Offences with which the accused was charged did not fall within the prohibitory clause of S. 497(1), Cr. P.C. ‑‑‑Accused was granted bail earlier on merits by the Trial Court, but he absented himself from Court statedly due to some misconception‑‑‑Accused was in judicial custody for the last more than three months without any progress in the trial‑‑‑Bail was allowed to accused in circumstances.

Mehmood A. Qureshi for Applicant.

Sharafat Ali Khan for the State.

YLR 2001 KARACHI HIGH COURT SINDH 204 #

2001 Y L R 204

[Karachi]

Before Muhammad Ashraf Leghari, J

AZHAR and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 119 and Criminal Jail Appeal No. 124 of 1998, heard on 9th April, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149, 323/149 & 148‑‑‑Appreciation of evidence‑‑‑Injured eyewitnesses had contradicted each other‑‑Incident was not premeditated and had taken place at the spur of the moment on the exchange of harsh words between the parties‑‑‑No overt act or active participation was attributed to any particular accused‑‑Principal accused who caused the fatal blow to the deceased was not known‑‑‑Eight accused had been made responsible for causing six injuries, one of which was fatal and the other five injuries were superficial and simple in nature‑‑‑Convictions and sentences of accused were set aside in circumstances and they were acquitted accordingly.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149, 323/149 & 148‑‑‑Appreciation of evidence‑‑‑Plea of alibi‑‑Plea of alibi is not to be proved affirmatively by the accused and it is sufficient if a reasonable doubt is created by him to the extent that such plea may have truth in it.

Habibullah Shaikh for Appellants (in Criminal Appeal No. 119 of 1998).

Faizullah Korai for Appellants (in Criminal Jail Appeal No. 124 of 1998).

Sher Muhammad Shar, Addl.A.‑G. for the State.

Date of hearing: 9th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 208 #

2001 Y L R 208

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

GHULAM RASOOL‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.344 of 2001, decided on 24th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss.302/324‑‑‑Bail on ground of statutory delay‑‑‑Accused was in continuous custody for the last more than two years without trial for which he was not responsible‑‑‑Investigating Officer and the S.H.O. on account of their negligence had filed the challan in the Court after a lapse of more than two years‑‑‑Sessions Court while rejecting the bail application of accused had not discussed or mentioned the ground in respect of the statutory delay‑‑‑Conduct of accused in the jail had been reported to be satisfactory by the Jail Superintendent‑‑Accused, thus, was entitled to grant of bail on the ground of statutory delay in conclusion of his trial without his fault and he was released on bail accordingly.

PLD 1995 SC 49; 1998 NLR 322; Zahid Hussain Shah v. The State PLD 1995 SC 52; Lal Dino alias Lala v. The State Criminal Bail Application No.123 of 2001; PLD 1995 SC 52; 1993 SCMR 525 and 1999 PCr.LJ 501 ref.

Mahmood A. Qureshi for Applicant.

Habib‑ur‑Rasheed for the State.

YLR 2001 KARACHI HIGH COURT SINDH 212 #

2001 Y L R 212

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

KHURSHEED HUSSAIN alias NAYYAB‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.51 of 1996, heard on 11th April, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.324‑‑‑Appreciation of evidence‑‑‑Date of incident had been wrongly mentioned in the charge by the Trial Court‑‑‑No. time of occurrence was given in the charge ‑‑‑Crossexamination of witness was not rightly conducted‑‑‑Injury on the person of the injured witness was not described by the Doctor according to the category of the injuries now on the Statute Book‑‑‑Signature of the accused did not appear on his statement recorded under S.342, Cr. P. C. which was a mandatory requirement‑‑‑Such irregularities and illegalities had made the trial illegal‑‑‑Conviction and sentence of accused were consequently set aside and the case was remanded to the Trial Court for retrial in accordance with law.

Shahadat Awan for Appellant.

Fazal‑ur‑Rehman Awan for the State.

Date of hearing: 11th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 214 #

2001 Y L R 214

[Karachi]

Before Faiz Muhammad Qureshi, J

QASSIM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.196 of 2001, decided on‑10th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑ Accused was only alleged to have caught hold of the deceased at the time of occurrence when co‑accused had stabbed the deceased with a "Chhuri " on his chest‑‑No overt act had been committed by the accused and his intention was yet to be determined .at the trial‑‑‑Fatal blows were attributed to co‑accused‑‑‑Bail was allowed to accused in circumstances.

1995 SCMR 310; 1994 SCMR 393 and 1978 SCMR 357 ref.

Mehmood A. Qureshi for Applicant.

Sharafat Ali, A.A.‑G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 215 #

2001 Y L R 215

[Karachi]

Before Sarmad Jalal Osmany, J

Mst. KULSOOM and others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 163 of 1994, decided on 17th April, 2001.

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

----S. 561-A---Inherent powers of High Court--- Scope--- Inherent jurisdiction conferred upon High Court under S.561-A, Cr. P. C. should be sparingly used and only when it is demonstrated that the action, investigation, report or other step in lodging the F.I.R. or private complaint or the prosecution of a criminal case, is patently against the provisions of law or otherwise no case is made out upon which a conviction was possible---High Court, in such circumstances, would be justified in quashing the proceedings as no useful purpose would be served to keep the matter lingering which would amount to an abuse of the process of Court.

Mian Munir Ahmed v. The State 1985 SCMR 257 and State v. Gulzar Ahmed 1998 SCMR 873 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Quashing of proceedings--Principles---Where the allegations disclose a prima facie case and the Trial Court has taken cognizance of the same, the proceedings cannot be quashed as the powers vested under S.561-A, Cr.P.C. cannot be utilized so as to interfere in the ordinary course of criminal procedure as laid down in the Statute and High Court should be extremely reluctant where a competent Court has only taken cognizance of the matter.

Ghulam Nabi v. The State 1996 PCr.LJ 1335 and Syed Tahir Hussain Mehmoodi v. The State PLD 1995 Quetta 76 ref.

----Ss. 506(2)/406/420/34---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Criminal, offences, prima facie, had been made out against the accused who could not be said either to be innocent or that there was no possibility of their conviction in the case---Petition was dismissed accordingly.

Raza Ali v. The State 1971 PCr.LJ 1296; Mazhar Ibnehassan Siddiqui v. The State 1997 PCr:LJ 1030; Muhammad Siddique v. Muhammad Yar 1999 PCr.LJ 1639; Ghulam Nabi v. The State 1996 PCr.LJ 1335; Ghulam Akbar v. Muhammad Ilyas PLD 1975 Kar. 231; Syed Tahir Hussain Mehmoodi v. The State TLD 1995 Quetta 76; Mian Munir Ahmed v. The State 1985 SCMR 257 and State v. Gulzar Ahmed f 998 SCMR 873 ref.

Gulab Khan Kaimkhani for Applicants.

Ghulam Muhammad Durrani for Respondent No. 1.

Muhammad Azeem Panhwar for the State.

Date of hearing: 6th April, 2001

YLR 2001 KARACHI HIGH COURT SINDH 229 #

2001 Y L R 229

[Karachi]

Before Hamid Ali Mirza, J

Mst. SHAGUFFA BEGUM‑‑‑Appellant

versus

Mst. Syeda BADRUNNISA BEGUM‑‑‑Respondent

First Rent Appeal No.324 and Civil Miscellaneous Application No.949 of 1997, decided on 10th September, 1998.

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

‑‑‑‑S.15‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Landlady had deposed on oath that she needed the premises for herself and to adjust her children and in‑ crossexamination the landlady had elaborated that the accommodation with her was not sufficient to accommodate her sons ‑‑‑Effect‑‑Even if the statement of landlady was not challenged, the personal requirement of landlady in good faith was proved in circumstances.

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

‑‑‑‑S.15‑‑‑Bona fide personal need of landlord‑‑‑Onus to prove‑‑‑Tenant had to challenge the personal requirement of landlady to be not in good faith and bona fide with regard to premises in dispute and not for landlady to challenge that denial of tenant was not based on good faith.

‑‑‑‑S.15‑‑‑Bona fide personal need of landlord‑‑‑Premises was required by the landlady for her sons as the premises in her occupation was not sufficient to accommodate them‑‑‑Rent Controller allowed the ejectment application in favour of the landlady‑‑Validity‑‑‑Where the landlady had proved that her requirement of the premises was bona fide and was in good faith, High Court declined to interfere with the findings of Rent Controller.

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

‑‑‑‑S.15‑‑‑Bona fide personal need of landlord‑‑‑Failure to implead all the legal heirs of the tenant‑‑‑Effect‑‑‑Where ground of personal requirement for eviction of tenant was proved, failure to join all the legal heirs of one of the tenants ejectment application would not make the same not maintainable.

Anwar Hussain for Appellant

Javed Raza for Respondent.

YLR 2001 KARACHI HIGH COURT SINDH 257 #

2001 Y L R 257

[Karachi]

Before Muhammad Afzal Soomro, J

GHULAM ABBAS and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.486 and Miscellaneous Application No.855 of 2001, decided on 7th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 19790, S.11‑‑Bail, grant of‑‑‑F. I. R. was belated by nearly three days for which no satisfactory explanation was given by the prosecution‑‑No eye‑witness of occurrence was available‑‑Female accused/alleged abductee aged about 18/19 years had left the house of her parents of her own accord and contracted civil marriage with the accused of her free‑will which was evident from the Nikahnama and affidavit sworn by her of her free‑will before the Magistrate and the news item appearing in the newspaper‑‑‑Medical report showed that no marks of violence were found on the part of the body of alleged abductee‑‑‑Case against the accused being of further inquiry they were admitted to bail.

Jawed Akhtar for Applicants.

Fazlur Rehman Awan for the State.

YLR 2001 KARACHI HIGH COURT SINDH 267 #

2001 Y L R 267

[Karachi]

Before Faiz Muhammad Qureshi, J

FAZAL AKBAR‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Bail Application No.218 of 2001, decided on 12th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.392/397/364/34‑‑‑Bail, grant Of‑‑Allegation against the accused was that he alongwith his co‑accused kidnapped the complainant and his companions alongwith a vehicle‑‑‑Act of the accused was that of a terrorist‑‑‑Accused was not entitled to the concession of bail even on the ground of statutory delay.

PLD 1995 SC 49 and 1999 SCMR 131 ref.

S. Hasan Ali for Applicant.

Sharafat Ali Khan for the Asstt A.‑G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 274 #

2001 Y L R 274

[Karachi]

Before Faiz Muhammad Qureshi, J

Syed BASHIR AHMAD SHAH‑‑‑Applicant

versus

THE STATE‑ Respondent

Criminal Miscellaneous Application No.333 of 1999 and Miscellaneous Application No.826 of 2001, decided on 26th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), Ss. 409/471/477‑A & 34‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Quashing of proceedings ‑‑‑F.I.R. was registered against the accused and his co-accused on the basis of investigation report of Chief Minister's Inspection and Evaluation Team‑‑‑Prosecution could not bring evidence against the accused with regard to alleged misappropriation, falsification of accounts and using of forged documents‑‑‑If the case proceeded against the accused on the charges as mentioned in the contents of the F.I.R. and in the Challan, no offence would be made out against him under Ss.409, 477‑A & 471, P. P. C. and the proceedings before the Trial Court would amount to abuse of process of law and the charge would be groundless‑‑One of the co‑accused had already been acquitted under S. 249‑A, Cr. P. C. and the other had been let off by the Police‑‑Proceedings pending in Court against the accused were ordered to be quashed in circumstances.

Shaukat Zubedi for Applicant.

Arshad Lodhi, Asstt. A.‑G. for the State,

YLR 2001 KARACHI HIGH COURT SINDH 285 #

2001 Y L R 985(2)

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

NIHALUDDIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.D-20 of 2001, decided on 30th May, 2001.

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

----Ss. 302, 120-B & 148---Appreciation of evidence---Accused, was alleged to have instigated the co-accused and hatched a conspiracy to kill the deceased---No doubt accused was shown to be present at the scene of occurrence, but no evidence was brought on record by the prosecution to prove meeting of minds between the accused and co-accused prior to the incident---No case of any abetment or instigation was even made out against the accused---Complainant's version in this regard was not supported by the other witnesses who were available at the place of incident---Prosecution had failed to prove the motive against the accused--No other evidence was available on record to connect the accused with the commission of the offence---Case against accused was full of contradictions---Accused vas acquitted on benefit of doubt in circumstances.

Nazir Ahmed and another v. The State 1991 PCr.LJ 329 ref.

(b) Criminal trial---

----Motive---Motive is a double-edged weapon which cuts both ways.

Muhammad Ashique Dhamraho and Muhammad Ayaz Soomro for Appellant.

Gul Hassan Solangi for the State.

Date of hearing: 30th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 289 #

2001 Y L R 289

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD YASEEN---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.45 alongwith 35 of 2001, decided on 7th May, 2001.

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

----S. 395---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3), 20 & 24---Proceedings under Offences Against Property (Enforcement of Hudood) Ordinance, 1979--Accused having been challaned under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for offence punishable under the Ordinance, the proceedings conducted against the accused before the Trial Court would be deemed to be proceedings under that Ordinance---When the accused was charged with an offence punishable under the Ordinance, notwithstanding the fact that such offence was also mentioned charging the accused with an offence defined and punishable under provisions of the Penal Code the trial of such accused would be deemed to have been conducted under the provisions of the Ordinance---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was a special law dealing with the offence relating to the offence of theft etc. whereas the Penal Code was a general law and in case where both special law and general law were applicable, preference would be given to the provisions of the Special Law.

Nazuk Mir v. The State 1995 PCr. LJ 724: Manzoor v. The State 1996 PCr.LJ 475; Mehtab Shah v. The State Criminal Appeal No.9 of 1998; Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCMR 211; Khushi Muhammad alias Bogi v. The State PLD 1986 SC 13; Sadiq Shah and another v. The State 1989 PCr.LJ 1330; Manzoor v. The State 1996 PCr.LJ 475; The State v. Muhammad Yakoob 1997 PCr.LJ 528; Liaquat Ali and others v. The State PLD 1989 Kar. 481 and Farook v. The State Criminal Appeal No. 161 of 2000 ref.

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

----Ss. 17(3), 20 & 24---Criminal Procedure Code (V of 1898), S.410---Proceedings under Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Appeal--Forum---If the accused was tried for an offence which was defined and punishable under the 'Ordinance, notwithstanding the fact that the accused was not convicted tinder the said Ordinance, but under provisions of Penal Code, such trial would be deemed to have been conducted under the provisions of the Ordinance---Where the accused was challaned for offence under the Ordinance and was subsequently convicted tinder the provisions of Penal Code, the trial would be deemed to have been conducted under the provisions of the Ordinance---Where the sentence was more than three years, in both the . cases the forum for filing appeal by the accused against his conviction would be the Federal Shariat Court and not the High Court.

Manzoor v The State 1996 PCr.LJ 475; Falak Sher v. The State 1996 PCr.LJ 804 and Qurban Ali v. The State Criminal Appeal No. 14 of 1998 ref.

---- General law and Special law---Rule of preference---Where both General Law and Special Law were applicable, preference would be given to the provision of Special Law.

Mehtab Shah v. The State Criminal Appeal No.9 of 1998; Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCMR 211; Khushi Muhammad alias Bogi v. The State PLD 1986 SC 13; Sadiq Shah and another v. The State 1989 PCr.LJ 1330; Manzoor v. The State 1996 PCr.LJ 475; The State v. Muhammad Yakoob 1997 PCr.LJ 528; Liaquat Ali and others v. The State PLD 1989 Kar. 481 and Farook v. The State Criminal Appeal No. 161 of 2000 ref.

Ali Gohar Masroof for Appellant, Abbas Ali, Addl A.-G. for the State

YLR 2001 KARACHI HIGH COURT SINDH 293 #

2001 Y L R 293

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD ASLAM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.253 of 2001, decided on 11th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395/34---Bail, grant of---Accused was subjected to identification test after 16 days of his arrest and no explanation for the delay was forthcoming---Complainant had claimed to have seen the accused but had not ascribed any role to the accused in commission of offence---Accused was behind the bar for the last more than one year---Trial Court had expressed inability in concluding the trial--No reason had been assigned with regard to such unavoidable delay---Prosecution had collected the weakest type of evidence against the accused in the shape of identification parade which too was held after inordinate delay---Accused was entitled to grant of bail in circumstances.

Mehmood Ahmed and 3 others v. The State 1995 SCMR 127 and PLD 1995 SC 34 ref.

Sardar Sher Afzal for Applicant, Arshad Lodhi. A.A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 295 #

2001 Y L R 295

[Karachi]

Before Wahid Bux Brohi, J

RAJIB---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.250 and Miscellaneous Application No.612 of 2001, decided on 25th June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.334 337-A(i) & 337-L(ii)---Bail, grant of---Counter-cases---Fight between the parties following cattle trespass and both sustaining injuries---Which party was the aggressor could only be determined at the trial ---Co- accused had been granted bail---Injury caused by the hatchet had been ascribed to the accused, but it was shown that blunt side of the hatchet had been used---Case of further inquiry having been made out in favour of the accused, he was entitled to concession of bail.

Abdul Rasool Abbasi for Applicant.

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

YLR 2001 KARACHI HIGH COURT SINDH 296 #

2001 Y L R 296

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

RAHMAT ALI ---Appellant

versus

MUHAMMAD AMIN and another---Respondents

Criminal Acquittal Appeal No.229 of 2000 decided on 26th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), S.302/34---Appeal against acquittal---Star witness who claimed to have witnessed the incident, had not been examined by the prosecution as he was not traceable though a proclamation was issued against him by the Court---Evidence of the complainant and other prosecution witness was hearsay evidence as they were informed by main witness about the incident and other witnesses being formal, it was not necessary to consider their evidence---Prosecution having failed to prove offence against the accused beyond reasonable doubt, accused was rightly acquitted by the Trial Court---Judgment of the Trial Court could not be interfered with in appeal.

Muhammad Ali Abbasi for Appellant.

Qazi Wali Muhammad for the State.

YLR 2001 KARACHI HIGH COURT SINDH 303 #

2001 Y L R 303

[Karachi]

Before Faiz Muhammad Qureshi, J

Syed ARSHAD ISRAR SHAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.439 of 2001, decided on 26th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 147, 148, 149 & 324---Bail, grant of--Counter-cases registered---Injuries were received by both sides and it was yet to be seen as to which party was the aggressor--Case of the accused in view of counter-cases fell within purview of S. 497(2), Cr.P.C. entitling hint for concession of bail.

PLD 1985 Kar. 27 ref.

Shahadat Awan for Applicant.

Sharafat Ali, Asstt. A.-G. for the. State.

YLR 2001 KARACHI HIGH COURT SINDH 304 #

2001 Y L R 304

[Karachi]

Before Anwar Mansoor Khan, J

KARACHI STEVEDORES CONFERENCE LTD. ---Plaintiff

versus

FEDERATION OF PAKISTAN and 2 others---Defendants

Suit No.323 of 2000, decided on 19th April, 2001.

(a) Interpretation of statutes---

---- Taxing statute---Taxing statutes should be read and interpreted strictly---Nothing can be added to or deleted.

(b) Words and phrases---

---- "Stevedore " and "stevedoring "---Meaning.

New Oxford English Dictionary; Black's Law Dictionary 5th Edn. and Stroud's Judicial Dictionary Third Edn., p.2864 ref.

---- Schedule appended to a statute--Amendment by administrative order--Validity---Extension or enhancement by way of general orders is unlawful and without authority---Only method in which a Schedule could be amended is by an Act of Parliament and not by an administrative order.

(d) Central Excises Act (I of 1944)---

----Ss. 4(2) & 12-A---Central Excise Rules, 1944, R.96-ZZM---Central Excise General Order No.1 of 1998, (No. C.No.1-(35)CEBl90, dated 8-7-1998)---Notification SRO 456(1)/96, dated13-6-1996---Notification SRO 680(1)/95, dated 11-7-1995---Central excise duty---Recovery---Stevedores-- Amendment of statute by a Notification---Plea raised by plaintiff was that the Authorities made a demand of central excise duty on the basis of notification, a General Order, as the same was against the provisions of Central Excises Act, 1944--Validity---Extension or enhancement by way of General Orders was unlawful and without authority---Only method in which a Schedule could be amended was by an Act of Parliament and not by an administrative order---Central Excise General Order No.1 of 1998 bearing reference C. No. 1(35)-CEBl90, dated 8-7-1998 was void ab initio, issued without lawful authority and of no legal effect---When the Circular was void and of no legal effect, any claims or demands or otherwise were also of no legal effect-- High Court restrained the Authorities from claiming any amount of money on the basis of the Central Excise General Order---Suit was decreed accordingly.

Makhdoom Ali Khan for Plaintiffs.

Zaki Muhammad, Dy. A.-G. for Defendants.

YLR 2001 KARACHI HIGH COURT SINDH 307 #

2001 Y L R 307

[Karachi]

Before Faiz Muhammad Qureshi, J

ZAHEER AHMAD---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.463 and Miscellaneous Application No.815 of 2001, decided on 27th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.409---Sindh Enquiries and Anti-Corruption Rules, 1993, S.11(2)---Bail, grant of--Accused was Sub-Inspector of Police and Commissioner was Competent Authority in his case under S.11(2) of Sindh Enquiries arid Anti-Corruption Rules, 1993---Criminal case, therefore, could not be launched against the accused without approval of Competent Authority/ Commissioner--- Accused, in absence of such approval, had been able to make out the case for grant of bail.

M. Ilyas Khan for Applicant.

Arshad Lodhi, A. A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 309 #

2001 Y L R 309

[Karachi]

Before Faiz Muhammad Qureshi, J

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD. Through Deputy

General Manager (Law)---Appellant

versus

Messrs YUSRAB TAJJARS---Respondent

First Appeal No.77 of 1997, decided on 24th April, 2001.

West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 7 (as substituted by Sindh Civil Courts (Amendment) Ordinance (VII of 1991)]---Civil Procedure Code (V of 1908) Ss. 24 & 96---Pecuniary jurisdiction of Trial Court--Proceedings in Court having no jurisdiction ---Effect---Suit was filed for recovery of Rs. 2, 64, 925 and the same was decreed by Additional District Judge---Judgment and decree were assailed on the ground that suit was to be decided by Senior Civil Judge and not by District/Additional District Judge--Contention of the plaintiff was that suits were transferred by High Court in bulk and the suit in question was transferred to the Court of Additional District Judge---Validity---Plaintiff conceded before the High Court that the suit in question was triable by Senior Civil Judges---High Court directed the Appellate Court to determine the point of jurisdiction and if the suit would be triable by Senior Civil Judge, then the same would be sent to that Court---Case was remanded accordingly.

Pir Sabir Shah v. Shahid Muhammad Khan, Member, Provincial Assembly, N.W.F.P. PLD 1995 SC 66 and Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 ref.

1993 CLC 3140; PLD 1982 SC (A1&K) 62 and PLD 1986 Lah. 148 distinguished.

Akhlaq Ahmed Siddiqui for, Appellant.

Abbas Pishori for Respondent.

Date of hearing: 24th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 312 #

2001 Y L R 312

[Karachi]

Before Faiz Muhammad Qureshi, J

MUMTAZ ---Applicant

versus

THE STATE- Respondent

Criminal Bail Application No. 174 of 2001 decided on 2nd July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(vi), 337-L(ii) & 504---Interim bail---Confirmation---Injured had sustained injury on his left arm which was not vital part of the body---Offences against the accused being not covered by the prohibitory clause of S.497, Cr. P. C. earlier interim order for bail was confirmed.

1994 PCr.LJ 1769 and 1993 PCr.LJ 446 ref.

Abdul Rasool Abbasi for Applicant.

Muhammad Azim Panwhar for A.A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 313 #

2001 Y L R 313

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SHAKIR---Petitioner

versus

SECOND CIVIL AND FAMILY JUDGE, KARACHI SOUTH and

another---Respondents

Constitutional Petition No.S-127 of 2001, decided on 23rd April, 2001.

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

----S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Maintainability---Recovery of maintenance---Failure to avail alternate remedy---Unclean hands of the petitioner---Effect---Maintenance suit filed by wife was decreed by Family Court and appeal filed by husband was dismissed by the Appellate Court---Husband only assailed execution proceedings pending in Executing Court and the judgment and decree passed by the Trial Court as well as the Appellate Court were not assailed---Validity---Conduct of the husband showed that he had not come before High Court with clean hands and he had not exercised all the remedies available to him before approaching the High Court under Constitutional jurisdiction---Petition was dismissed in limine.

Chaudhary Ghulam Ghaus through Legal Heirs v. Saifullah and another 2001 SCMR 159; ' Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279; Khaliq Dad and 31 others v. Member (Colonies), Board of Revenue, Punjab, Lahore and 12 others 2001 CLC 518 and Kohinoor Industries Limited v. Government of Pakistan 2001 CLC 494 ref.

M. S. Qureshi for Petitioner.

Muhammad Ramzan for Respondent No.2.

YLR 2001 KARACHI HIGH COURT SINDH 316 #

2001 Y L R 316

[Karachi]

Before Wahid Bux Brohi, J

HAJI --- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.243 of 2001, decided on 15th June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Interim bail order---Confirmation of---Accused had alleged that his arrest was being sought with mala fide intention in order to have him maltreated, tortured and humiliated at the hands of the Police---State Counsel had conceded that case of the accused was identical to the case of co-accused who had been granted bail as the allegations were general in nature---Case being one in which concession of pre-arrest bail could not be withheld, interim bail order was confirmed.

Abdul Rasool Abbasi for Applicant.

Anwar Ansari for the State.

YLR 2001 KARACHI HIGH COURT SINDH 317 #

2001 Y L R 317

[Karachi]

Before Muhammad Roshan Essani, Actg. C.J. and Syed Ali Aslam Jafri, J

COLLECTOR OF CUSTOMS (PREVENTIVE), CUSTOM HOUSE, KARACHI---Appellant

versus

Miss SAIRA HASSAN KHAN and another---Respondents

Special Custom Appeal No.21 of 1999, decided on 12th May, 2001.

Customs Act (IV of 1969)---

----Ss. 16 & 196---Imports and Exports (Control) Act (XXXIX of 1950), S.3(i)--Appeal---Maintanability---Non-duty paid vehicle---Respondent was owner of the vehicle which was the subject-matter of appeal--Authorities found the same without payment of customs duty---Vehicle was confiscated by the Customs Authorities as the same was an offence under S.16 of Customs Act, 1969--Appellate Tribunal modified the order and allowed the release of the vehicle subject to deposit of duties and taxes at depreciated value---Validity---Before the purchase of the vehicle by the respondent, the same was sold three times and even record of Excise and Taxation Department did not give rise to any valid and genuine suspicion that the vehicle was not duty paid---No fault was found on the part of the respondent--- Where the Appellate Tribunal did not appear to have acted illegally or arbitrarily, there was no point of law requiring clarification/declaration from High Court---Discretion exercised by Appellate Tribunal did not call for any interference by High Court---Appeal was dismissed in circumstances.

Messrs Yousuf Re-Rolling Mills v. Collector of Customs (Appraisement) and another 1986 CLC 77 ref.

Shakeel Ahmed for Appellant.

Syed Mohsin Imam for Respondent No. 1

YLR 2001 KARACHI HIGH COURT SINDH 319 #

2001 Y L R 319(2)

[Karachi]

Before Mushir Alam, J

Haji MUHAMMAD YOUNUS---Plaintiff

versus

m. v. VICTOR KURNATOVSKIY through Master or any person in charge of the

Vessel and another---Defendants

A.D.M. Suits Nos.2 and 3 and Civil Miscellaneous Applications Nos.608 and 609 of 2001, heard on 21st March, 2001.

(a) Words and phrases---

------ Lay day" or "Lay-time "---Meaning.

Black's Law Dictionary and Marine

Time Encyclopaedic Dictionary, 3rd Edn., 1992 by Eric Sulivan ref.

(b) Words and phrases---

---- "Demurrage "---Meaning.

Black's Law Dictionary and Marine Time Encyclopaedic Dictionary, 3rd Edn., 1992 by Eric Sulivan ref.

----"Detention" (as appearing in maritime laws)---Defined.

Marine Time Encyclopaedic Dictionary, 3rd Edn., 1992 by Eric Sulivan ref.

(d) Maritime---

---- "Lay days ", "demurrage " and "detention " (as appearing in maritime laws)--Distinction--- "Lay days ", "demurrage " and "detention ", though in fact refer to identifiable waiting period for vessel to load or discharge cargo, following one after the other, yet each period is different in implication---First being stipulated period, is without any charges---Second again is stipulated/contracted period but carrying stipulated charges referred to as "demurrage", lastly, being in breach of contract, entailing damages akin to S.73 of Contract Act, 1872, called as "detention charges "---Demurrage and detention charges are payable by the defaulting party.

(e) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----S. 3---Detention charges---Claim of--Deposit of security---More than one bill of lading---Liability for deposit of security, joint and not several---Where there were more than one bill of lading and independent sale contract proceeding the same, together with charter party, each stipulating for fixed number of lay days, fixed demurrage and so also detention charges then the liability was not joint and the same was several---High Court recalled its earlier order and the plaintiff was directed to furnish the security separately in circumstances.

Straker v. Kidd & Co. (1878) QBD; Jesson v. Solly (June 29, 1811) and Leer v. Yates, Cowell, Gorst Feb. 1811 fol.

Compania Naviera Azuero, S.A. v. British Oil & Cake Mills Ltd. and others (1957) 1 QBD 312 Law of Demurrage by Hugo Tibrge ref.

(f) Judgment---

---- Antiquity judgment--- Value--- Merely stating that the judgments relate to antiquity or ancient period, does not lessen their value unless it is shown that there has been some transformation or change in law.

Shaiq Usmani for Plaintiff.

Agha Faqir Muhammad and A.H. Mirza for Defendants.

Raja Muhammad Iqbal for the Intervenor.

Dates of hearing: 19th, 20th and 21st March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 331 #

2001 Y L R 331

[Karachi]

Before Anwar Zaheer Jamali, J

BAHADAR ALAM and others---Plaintiffs

versus

ABDUL RAZZAK and others---Defendants

Suit No.82, Civil Miscellaneous Applications Nos.2364, 2365 and 464 of 1997, decided on 3rd April, 2001.

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

----O. XXIII, Rr.1 & 2---Limitation Act (IX of 1908), S.14---Institution of subsequent suit-- Limitation---Benefit of S.14, Limitation Act, 1908---Applicability---Plaintiff is bound by law of limitation in case of institution of fresh suit on the basis of permission granted under O.XXIII, R.1, C.P.C. in the manner as if the first suit had not been instituted---Time consumed in litigation in the forum of earlier suit instituted by the plaintiff is to be counted and not to be excluded for the purpose of limitation as it would be presumed that no first suit had been instituted earlier, thus excluding the application of S.14 of Limitation Act, 1908.

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

----S. 14---Extension of benefit of S.14 of Limitation Act, 1908---Basic requirements--Such benefit was extended where earlier proceedings were bona fide and were pending before a Court without jurisdiction.

----O. VII R. 11 & O. XXIII, R.2---Limitation Act (IX of 1908), S.14---Plaint, rejection of--Filing of subsequent suit ---Limitation--Benefit of S.14 of Limitation Act, 1908--Defendant sought rejection of plaint on the ground that the subsequent suit was barred by limitation---Plea raised by the plaintiff was that as the earlier suit was withdrawn with the permission of Trial Court to file the fresh suit, he was entitled to the benefit of S.14 of Limitation Act, 1908---Validity--Plaintiff had nowhere taken the plea that the Court where the earlier suit was instituted had no jurisdiction to proceed with the suit---Benefit of S.14 of Limitation 'Act, 1908, could not be extended to the plaintiff to bring the subsequent suit within limitation---Plaint was rejected in circumstances.

Mst. Sarwar Jan v. Abdul Majeed PLD 1965 (W.P.) Pesh. 5 end Saddar Din v. Allah Rakha PLD 1984 Lah. 38 ref.

(d) Limitation---

----Exclusion of applicability of law of limitation---Observation of High Court does not ipso facto exclude applicability of statutory provisions of law relating to the limitation.

Muhammad Sharif for Plaintiffs.

Syed Jamil Ahmed for Defendant -No.

Syed Muzaffar Imam for Defendants Nos. 2 and 3.

YLR 2001 KARACHI HIGH COURT SINDH 338 #

2001 Y L R 338

[Karachi]

Before Wahid Bux Brohi, J

BHAMBHO and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.238 and Miscellaneous Application No. 590 of 2001, decided on 8th June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337, 337-A(i) & 337-L (ii)---Bail, grant of---Cross-cases had been registered for the same incident---Offence against the accused did not fall within the prohibitory clause of S. 497, Cr. P. C. ---Accused were in custody for a period of more than two months---Accused were granted bail in circumstances.

Abdul Rasool Abbassi for Applicants.

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

2001 Y L R 351

[Karachi]

Before Anwar Mansoor Khan, J

NASIM, GUL---Plaintiff

versus

PROVINCE OF SINDH through its Secretary, Government of Sindh and 2

others---Defendants

Suit No. 13 and Civil Miscellaneous Application No. 196 of 2001, decided on 26th February, 2001.

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

----S. 24---Imposition of penalty for breach of condition of tenancy---When Collector was satisfied that a tenant in possession had committed breach of the condition of the tenancy, he could proceed to recall and review the tenancy after notice.

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

----S.24---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 2 & 3---Specific Relief Act (I of 1877), Ss.42 & 54---Resumption of land--Suit for declaration and permanent injunction---Application for interim injunction---Plaintiff had alleged that order resuming land in question passed by the Authority was mala fide, illegal and without authority---Validity---If the applicant was dispossessed from the land, irreparable loss and injury would be caused to him as he had constructed shades etc. and was doing business therein, balance of convenience thus was in favour of the applicant---Application for grant of interim injunction was granted in circumstances.

Muhammad Aqil for Plaintiff.

YLR 2001 KARACHI HIGH COURT SINDH 387 #

2001 Y L R 387

[Karachi]

Before Faiz Muhammad Qureshi, J

GHULAM HUSSAIN alias NANGAR and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Revision Application No.40-S of 2000, decided on 4th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 173---Penal Code (XLV of 1860), Ss.302, 34 & 114---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Calling the accused persons to face trial who were found innocent and were placed in Column No.2 of the challan---Accused were found innocent by the police during the course of investigation and their names were placed in Column No.2 of the challan sheet while main accused was sent to face the trial--Application of complainant filed under S.193, Cr. P. C. for joining the petitioners as accused to face trial alongwith the main accused, having been accepted by the Trial Court the petitioners had filed revision against said order on the ground that after finding the accused innocent and placing their names in Column No. 2 of the challan no fresh evidence having been adduced against them by the prosecution, no prima facie case on record was against them to join them as co-accused in the case---Validity---Until and unless the fresh evidence was brought on record by the prosecution, summoning of the petitioners by the Trial Court to face trial, was not warranted by law as the prosecution was still short of evidence against the said accused--Names of the accused persons could not be taken out from the Column No. 2 and put them in column of .the accused persons in the absence of any fresh evidence against them---Order of Trial Court whereby the petitioners were called to face trial, was set aside by High Court---Trial Court would be at liberty to include the accused persons as co-accused in the case if some evidence would be adduced by the prosecution.

Criminal Revision Application No. 19 of 1998 and Criminal Revision Application No.24 of 1998 ref.

Muhammad Ayaz Soomro for Applicants.

Abdul Haq Solangi for the Complainant.

Gul Hassan Solangi for the State.

2001 Y L R 505

[Karachi]

Before Faiz Muhammad Qureshi, J

ASHRAF ALI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.38 of 1999, heard on 15th May, 2001.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence--Accused were neither seen by the eyewitnesses nor they were known to said witnesses prior to occurrence---Witness, son of the complainant, on whom the whole case depended, was not examined by the prosecution---Identification parade having been held after unexplained inordinate delay, possibility of the accused having been shown to the witnesses could not be ruled out---Even otherwise, the identification parade had been supervised by an incompetent person wherein no role had been ascribed to the accused by the witnesses and for such reason the same had lost its sanctity ---Mashirnama of recovery had been prepared at the police station---Motive for the occurrence had not been proved on record by the prosecution which remained shrouded in mystery---Evidence against the accused was in the shape of identification parade which was the weakest type of evidence---Accused were given the benefit of doubt and acquitted in circumstances.

PLD 1988 Kar. 523; 1972 SCMR 286; PLD 1996 Kar. 246; Mehmood Ahmad and 3 others v. The State 1995 SCMR 127 and 1994 SCMR 137 ref.

Safdar Ali Bhutto for Appellant No. 1.

Ali Nawaz Ghanghro for Appellant No.2.

Gul Hassan Solangi for A.A.-G. for the State.

Date of hearing: 15th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 521 #

2001 Y L R 521

[Karachi]

Before Faiz Muhammad Qureshi, J

ANWAR ALI SHEIKH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 16 of 2000, heard on 4th May, 2001.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence--Complainant who was also eye-witness in the case had not been examined and there was no explanation for such omission ---Nonexamination of material witness whose name appeared in the F.I.R. would lend benefit of doubt to the accused---Magistrate who had not only recorded the statement of prosecution witnesses under S.164, Cr.P.C., but had also recorded judicial confession of the accused had not been examined and no efforts had been made by the prosecution to procure attendance of the Magistrate--Alleged judicial confession of the accused had also not been placed on the record ---Mashirs of recovery had not been examined by the prosecution and no explanation had been given by the prosecution as to why their attendance was not procured---Recovery against the accused had also vanished---One of the prosecution witnesses was not the eyewitness and his evidence was based on hearsay evidence---Other prosecution witnesses, who had given contradictory statements, had been proved to be unreliable---Independent evidence was lacking in the case---Enmity between the parties had been admitted by the complainant party in the F.I.R. and no motive had been assigned to the accused by the prosecution witnesses---Prosecution having miserably failed to prove its case beyond reasonable doubt against the accused, and co-accused having been acquitted by the Trial Court on the same set of evidence, the accused was also acquitted by giving him benefit of doubt.

1979 SCMR 214; 1972 SCMR 286; PLD 1988 Kar. 521; 1972 PCr. LJ 1259; 1983 PCr.LJ 1319 and 1998 SCMR 25 ref.

Muhammad Ayaz Soomro for Appellant.

Mushtaq Ahmed Korejo for the State.

Date of hearing: 4th May, 2001

YLR 2001 KARACHI HIGH COURT SINDH 526 #

2001 Y L R 526

[Karachi]

Before Ghulam Rabbani and Anwar Zaheer Jamali, JJ

EHTESHAM GHAZI---Appellant

versus

IZHARUDDIN and another---Respondents

High Court Appeal No.97 of 2000, decided on 23rd January, 2000.

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

----O. XXI, R. 37 & S.47---Companies Ordinance (XLVII of 1984), S.111--Execution of money decree---Directors of company, liability of---Arrest/detention of shareholders or Directors in execution proceedings---Validity---Company is a separate and distinct legal entity from its shareholders and Directors---Any liability against the company cannot be transferred or shifted to its shareholders or Directors except to the extent of their individual shares in the company---Managing Director of a company simply acts as employee/representative of the company---Unless the Director has executed some documents acknowledging the liability of the company upon himself in his personal capacity as a guarantor for the company or his case is covered by S.47, C. P. C. or S.111 of Companies Ordinance, 1984, the Director of the company cannot be held responsible for payment of any decretal amount against the company---Where the Executing Court had issued bailable warrants against the Managing Director for recovery of liability of the company, the same were set aside in circumstances.

Rai Bahadur Mohan Singh Oberoi v. Rai Bahadur Jodha Mal Kuthalia PLD 1961 SC 6; Messrs Franksons & Co. v. Mian Muhammad Hussain 1983 CLC 1042; A. Rehman v. Tehsildar, Lahore and another 1993 CLC 1222 and PICIC v. Frontier Ceramics Ltd. and others 2000 CLC 287 ref.

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

----S. 51, proviso---Execution, enforcement of---Detention in prison ---Validity--Provisions of S. 51, C.P.C. affecting liberty of a person, were mandatory in nature and were to be strictly construed; and unless prerequisites of S. 51, C.P.C. were proved to exist, any order for detention of judgment-debtor in prison would be illegal.

Raja Munsif Dad v. WAPDA through Chief Engineer, WPADA Mangla Dam Project, Mangla, Mirpur PLD 1991 Azad J&K 8 and Precision Engineering Ltd. and others v. The Grays Leasing Limited PLD 2000 Lah. 290 ref.

Salman Hamid for Appellant.

M. Ayaz Khan for Respondent No. 1.

Abdul Rauf for Respondent No.2.

YLR 2001 KARACHI HIGH COURT SINDH 536 #

2001 Y L R 536

[Karachi]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, JJ

PATHAN--Petitioner

versus

THE STATE---Respondent

Criminal Review No.78 of 1999, decided on 27th April, 2001.

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

----Ss. 369 & 561-A---Review---Application for review of an order passed in a revision application can be considered on merits if a case for review is made out within the limited parameter of review and such application cannot be dismissed merely on the ground of bar of S. 369, Cr. P. C. ---Even wrong caption of an application will not make much difference as such application, if the facts and circumstances of the case so demand, can be treated as an application under S.561-A, Cr.P.C. and decided on merits.

Nawab Khan v. The State 2000 PCr.LJ 733; Maulana Muhammad Azam Tariq v. Khursheed Ali and another 1996 PCr.LJ 119; Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; Muhammad Hanif v. The State PLD 1974 Kar. 22; Soomar v. State and 3 others PLD 1975 Kar. 80 and Zulfiqar Ali v. The State PLD 1984 Lah. 461 ref.

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

----S. 514---Abscondence of accused--Forfeiture of surety bond---Applicant had stood surety for the accused who jumped the bail on which his bail bond was cancelled and the surety bond was forfeited---Contentions of the applicant that neither the accused was released from jail on his surety bond nor he had executed any surety bond in the sum of Rupees one lac were belated and had no force because he had not urged the same earlier which were even belied by the record---Possibility of tampering with the record of the Trial Court by some interested party to take advantage of it also could not be ruled out---No case for review of the impugned order directing the applicant to deposit entire surety amount was made out---Petition was dismissed accordingly.

Muhammad Ali v. The State 1984 PCr.LJ 14; Muhammad Ishaque v. The State 1984 Cr.LJ 2892; .Hassan v. The State 1990 ALD 455(2); Malik Sultan Ahmed v. The State 1986 PCr.LJ 1446; The State v. Piass Ali PLD 1986 Kar. 355; Ali Akbar v. The State 1986 PCr.LJ 611; Nawab Khan v. The State 2000 PCr.LJ 733; Maulana Muhammad Azam Tariq v. Khursheed Ali and another 1996 PCr.LJ 119; Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; Muhammad Hanif v. The State P'LD 1974 Kar.22; Soomar v. State and 3 others PLD 1975 Kar. 80 and Zulfiqar Ali v. The State PLD 1984 Lah. 461 ref.

Nadir Hussain for Applicant, Habib Ahmed, A.A.-G. for the State.

Dates of hearing: 4th July; 31st August; 9th October, 2000; 12th February and 9th April of 2001.

YLR 2001 KARACHI HIGH COURT SINDH 551 #

2001 Y L R 551

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

NISAR AHMED ---Petitioner

versus

THE STATE---Respondent

Criminal Revision Applications Nos. 1 and 2 of 2001, decided on 2nd May, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 514 & 439---Penal Code (XLV of 1860), Ss. 401/393---West Pakistan Arms Ordinance (XX of 1965), S.13-D--Abscondence of accused---Forfeiture of surety bonds---Applicant had stood surety for the accused in two cases in the sum of Rs. one lac and Rs.50, 000---Said bonds were forfeited on the abscondence of accused and the applicant on his failure to produce the accused in Court was directed to pay the full amount of the bonds---Applicant (surety) was responsible for the production of accused before the Court and on his failure to do so he was not entitled to any leniency as reduction of amount of surety bond would not be in consonance with law--Revision petitions were dismissed accordingly.

Sher Ali and another v. The State 2000 PCr.LJ 94; Dilshad Ahmed and others v. The State 2000 PCr.LJ 172; 2000 PCr.LJ 1201; 2000 SCMR 312; Zeeshan Kazmi v. The State PLD 1997 SC 267 and Abdul Bari v. Malik Amir Jan and others PLD 1998 SC 50 ref.

Suresh Kumar for Applicants.

Ghulam Sarwar Korai for the State.

YLR 2001 KARACHI HIGH COURT SINDH 566 #

2001 Y L R 566

[Karachi]

Before Faiz Muhammad Qureshi, J

Dr. MUHAMMAD IBRAHIM KHAN and 2 others---Applicants

versus

THE STAT Respondent

Criminal Miscellaneous Application No.S-89 and Miscellaneous Application No.465 of 2001, decided on 4th May, 2001.

Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 144 & 195(i)(a)---Penal Code (XLV of 1860), S. 188---Constitutional petition--Quashing of F.I.R.---Ban imposed by Sub-Divisional Magistrate under S. 144, Cr.P.C. having been violated by the accused, the F.I.R. was registered against them by Mukhtiarkar and F.C.M. under S.188, P. P. C.---F.I. R. ought to have been filed by superior officer in view of S. 195(i) (a), Cr. P. C. and Mukhtiarkar and F. C.M. being subordinate to District Magistrate, was not competent to register the same---Provisions of S.195(i) (a), Cr. P. C. having been violated, F.I.R. was liable to be quashed.

Ghulam Rasool and others v. The State 1998 PCr.LJ 584 ref.

S. Aijaz Ali Shah for Applicants.

Altaf Hussain Surahio for the State.

YLR 2001 KARACHI HIGH COURT SINDH 576 #

2001 Y L R 576

[Karachi]

Before Muhammad Afzal Soomro, J

MUSHTAQ AHMED and others---Applicants

versus

THE STATE---Respondent

Criminal Bail Applications Nos.465, 474, 500 and 506 of 2000, decided on 12th February, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.465/468/471/34---Bail, grant of---Names of accused did not appear in the F.I.R. excepting one of them---No date or time of the incident was mentioned in the F.I.R.---Direct evidence of kidnapping was not available against the accused---No recovery of the victim boys had been effected from the accused---Statements of accused recorded under S. 161, Cr. P. C. upon which prosecution had relied were, prima facie, inadmissible in evidence---Accused after their arrest had not been put to identification test conducted by a Magistrate, nor their judicial confessions were got recorded--Investigating Officer had not made any sincere effort with regard to investigation of the case and thus he had intentionally tried to spoil the case of prosecution--Accused were admitted to bail in circumstances---Disciplinary action for major punishment was, however, directed to be taken against the Investigating Officer.

The Law of Medical Evidence by Syed Imtiaz-ul-Haque Nau-Shani and Hints on Advocacy by Harres 14th Edn., pp. 104, 125 ref.

Habibullah Sheikh for Applicants.

Mushtaque Ahmed Amir for Applicant.

Ghulam Muhammad Khan Durrani for Applicant.

YLR 2001 KARACHI HIGH COURT SINDH 580 #

2001 Y L R 580

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD ALIM and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.300 of 2001 decided on 14th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 504 8c 506---Bail before arrest--Confirmation ---Offences against the accused under Ss. 337-A (i) do 504, P. P. C. were bailable and offence under S. 506, P.P.C. though was not bailable, but did not fall within the prohibitory clause of S. 497(1), Cr.P.C---Basic principle was free life and not jail life---If the bail was granted, by mistake by the Court to accused, there was compensation and the accused could be awarded conviction and sentence, but in a case where the accused was kept behind the bars for years together and ultimately the case resulted in his acquittal then there was no compensation---Bail before arrest granted to- the accused was confirmed.

Abdul Hai Siddiqui and 2 others v. The State 1993 PCr.LJ 446 and PLD 1995 SC 34 ref.

Safdar Ali Bhutto for Applicants.

Muhammad Bachal Tonyo, Addl. A.-G. for the State.

2001 Y L R 631

[Karachi]

Before Zahid Kurban Alavi, J

HAZAR KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.178 of 2001, decided on 27th April, 2001.

Criminal Procedure Code (V of 1898)---

-----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 147, 148 & 149---Bail, grant of---Incident had occurred almost at midnight and the only light available there was the vehicles' light---Police had admitted that it was pitch dark and the accused persons managed, to run away---Identification of the accused took place after about one month of the occurrence and the persons who identified the accused were all the police officials--Even if the faces of the accused were not covered, it was difficult to believe that they could be identified---Bail application filed by the accused was dismissed by the Trial Court on the- ground that the offence alleged against the accused was the grave offence against the society---Highway robbery allegedly committed by the accused, no doubt was to be strictly dealt with but the Law Courts had to strictly follow the law as it stood---If the law alongwith common sense and reasoning failed, to accept the plea of the police or the complainant on a prima facie appreciation of the evidence, the relief should be granted to the accused---Bail, was granted to the accused, in circumstances.

Saeed Ahmed Domki for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2001 KARACHI HIGH COURT SINDH 632 #

2001 Y L R 632

[Karachi]

Before S. A. Rabbani, J

SIKANDAR ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.S-81 of 2001, decided on 13th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 399 & 401---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(1)---Bail, grant of---Bail plea of the accused was refused by the Trial Court merely on the ground that the accused remained absconder---Accused though was declared proclaimed offender, but the notice in that respect was not published in newspapers ---Co-accused had already been granted bail---Accused was admitted to bail, in circumstances.

Muhammad Saleem Jesar for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2001 KARACHI HIGH COURT SINDH 634 #

2001 Y L R 634

[Karachi]

Before Faiz Muhammad Qureshi, J

HAQ NAWAZ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 163 of 2001, decided on 30th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860); Ss. 334, 504, 114, 147 & 148---Bail, grant of---Accused was alleged to have caught hold of the injured by arm, but no overt act was attributed to him ---Co-accused had been placed in Column No.2 of the challan--Accused having, prima facie, made out good case for grant of bail, he was granted bail.

1978 SCMR 357; 1995 SCMR 310; 1994 SCMR 216; 1982 SCMR 955 and PLD 1963 (W.P.) Karachi 118 ref.

Asif Ali A.R. Soomro for Applicant.

Muhammad Iqbal Memon for the State.

YLR 2001 KARACHI HIGH COURT SINDH 642 #

2001 Y L R 642

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

GHULAM SARWAR and 12 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.D-240 of 2001, decided on 16th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 428, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(2)(3)---Bail, grant of---Case against the accused was of ineffective firing---Seven hours firing was alleged to have continued; but no one sustained injuries--Accused were alleged to have caused blows to S.H.O. of Police Station concerned, but said Police Officer was neither sent to Medical Officer for treatment nor certificate with regard to the injuries on person of the Police Officer was obtained---Intention of the accused of killing the police personnel was yet to be seen at the time of trial---Case against the accused requiring further inquiry, fell within the purview of S. 497(2), Cr.P.C.---Accused were entitled to grant of bail, in circumstances.

Rab Nawaz v. The State 1990 SCMR 1085 ref.

Sarfraz Khan Jatoi for Applicants.

Abdul Fatah Mughal for the State.

Date of hearing: 16th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 648 #

2001 Y L R 648

[Karachi]

Before Faiz Muhammad Qureshi, J

GULZAR---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.139 of 2001, decided on 7th May, 2001.

Criminal Procedure Code (V of 1498)---

----S. 497---Penal Code ()CLV ,of 1860), Ss. 324/353/149---West Pakistan Arms Ordinance (JGY of 1965), S. 13---Bail, grant of---Encounter was alleged to have taken place between police and the accused party in which firing continued, but no policeman had been injured at the hands of the accused--Participation of the accused in the alleged offence was yet to be established at the time of trial- Co-accused having been granted bail, the alleged abscondence of the accused had become irrelevant especially when no proceedings under Ss. 87 & 88, Cr. P. C. had been initiated against the accused and police had not taken any step to arrest the accused---No specific role had been ascribed to the accused---Accused having been able to make out a prima facie good case for grant of bail, same was granted to him, in circumstances.

1990 SCMR 1085; 1994 PCr.L1 1335; 1989 SCMR 1987; 1985 FCMR 382; 1994 SCMR 999; 1999 PCr.LJ~ 16; 1994 PCr.LJ 719 and 1985 SCMR 1709 h-.

Noor Muhammad M. Soomro for Applicant.

Muhammad Iqbal Memon for the State.

YLR 2001 KARACHI HIGH COURT SINDH 654 #

2001 Y L R 654

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa Leghari, JJ

MUHAMMAD CHATTAL---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.503' of 2000, decided on 2nd May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (JXV of 1997); Ss. 6/9---Bail, grant of--Recovery had been effected from the place of Vardat, but not from the possession of the accused---Out of thirty kilograms Charas only one kilogram had been sent to the expert for analysis-- Accused, in circumstances, could be saddled with one kilogram Charas and case of the accused would fall within S. 9(b) of Control of Narcotic Substances Act, 1997, which was punishable with seven years--Accused having been able to make out a good prima facie case, for grant of bail, same was granted to him.

Nisar Khan v. State 1997 MLD 1473; 1998 PCr.LJ 955; 2001 SCMR 14; 2000 MLD 842 and Gulzaman v. State 1999 SCMR 1271 ref.

Miss Faiz-un-Nisa Channa for Applicant.

Abdul Fatah Mughal for the State.

YLR 2001 KARACHI HIGH COURT SINDH 656 #

2001 Y L R 656

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD SAFFAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.214 of 2001, decided on 11th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-H(ii), 147, 148, 149 & 114--Bail, grant of---Accused were alleged to have fired on the complainant party, but said firing was proved ineffective as no one was found injured---Fatal injuries were attributed to the co-accused who were not before the Court for grant of bail---Question of vicarious liability was to be thrashed out at the time of trial--Enmity was admitted by the complainant in the F.I.R. which was a double-edged weapon cutting both ways---Bail was granted to the accused in circumstances.

1999 SCMR 1320; 1996 SCMR 1125; Babar Masih v. State 2000 MLD 1487; Qadar Mand v. Muhammad Amroze and others 1998 SCMR 496; Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1; Siraj and another v. State 2000 PCr.LJ 1220; Qurban Ali v. Abdul Haee and others 1996 PCr.LJ 1004; Hashim- and others v. State PLJ 1995 Cr.C (Kar.) 983; Todo and another v. State 2001 PCr.LJ 649; Usman v. State 2001 PCr.LJ 359; Munawar v. State 1981 SCMR 1092; Haji Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765; Khadim Hussain v. Sher Afzal 2000 PCr.LJ 974; Muhammad v. State 1998 SCMR 454; Muhammad Sadiq v. State 1996 SCMR 1654 and 1987 SCMR 1906 ref.

Yasin Khan Babar for Applicants.

Ubedullah Abro for the Complainant.

Mushtaq Ahmed Kourejo for the State.

YLR 2001 KARACHI HIGH COURT SINDH 699 #

2001 Y L R 699

[Karachi]

Before Faiz Muhammad Qureshi, J

SAHIB KHAROOS---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.207 of 2001, decided on 8th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.364-A, 337-H(ii) & 34---Bail, grant of--Both the accused duly armed went to the lands of the complainant where the girls were available and the accused dragged away one of the girls who raised cries and on her cries the complainant and other villagers were attracted and the accused persons could not succeed in their effort---Case though was of an attempt, but the accused were interrupted on the cries raised by the girl and complainant and other villagers also attracted to the cries, had they not been attracted to the place of Vardat on the cries, the accused would have succeeded in their nefarious designs and would have completed the offence---Statement of the girl was against the accused in shape of S.164, Cr. P. C. and offence against the accused was punishable with death or life imprisonment and the act of the accused was very heinous and enmity existing between the parties was double-edged weapon which cuts both the ways and there was every possibility on the part of the accused to commit such offence to settle the score with the complainant party---Bail could not be granted to the accused in view of involvement of the accused in the offence.

Syed Aijaz Ali Shah for Applicant.

Gul Hassan Solangi for the State.

Ghulam Asghar Abro for the Complainant.

YLR 2001 KARACHI HIGH COURT SINDH 705 #

2001 Y L R 705

[Karachi]

Before Faiz Muhammad Qureshi, J

FAQIR MUHAMMAD ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 194 of 2001, decided on 30th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), 337-F(i), 337-H(ii) & 354--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Bail, grant of---Victim girl was referred to Medical Officer for the examination seven days after occurrence and such delay was unexplained---Injuries on the person of the victim did not fall within the prohibitory clause of S. 497, Cr. P. C. and even S. 354, P.P.C. was not covered by the said. prohibitory clause---Accused was granted bail, in circumstances:

Muhammad Saleem Jessar for Applicant.

Muhammad Iqbal Memon for the State.

YLR 2001 KARACHI HIGH COURT SINDH 706 #

2001 Y L R 706

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL REHMAN and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.229 and Miscellaneous Application No. 376 of 2001, decided on 8th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code MV of 1860), S.302/34---Bail, grant of---High Court 6y its earlier order had directed the Trial Court to record the evidence of the complainant and the eye-witnesses within the period of four months and to conclude the case within the period of six months, but Trial Court had failed to comply with the said directions and no reasonable explanation had been given for the non-compliance---Trial Court having failed to follow the directions of the High Court in letter and spirit, bail was granted to the accused.

Muhammad Aslam v. The State 1999 SCMR 2147 ref.

Ali Nawaz Ghanghro for Applicants.

Gul Hassan Solangi for the State.

YLR 2001 KARACHI HIGH COURT SINDH 712 #

2001 Y L R 712

[Karachi

Before Faiz Muhammad Qureshi, J

ANWAR and another---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.238 of 2001, heard on 7th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-H (ii), 380, 457, 460 & 34---Bail, grant of---No enmity existed between the complainant party and the accused--Complainant in his additional statement, had implicated the accused---Case against the accused was of lurking house-trespass under S.460, P.P.C., which was punishable with ten years---Accused persons in the odd tours had gone to the house of the complainant party where murder had taken place and one of the thieves, who was murdered, his dead body was found from the house of the complainant---Two witnesses in their statement made under S. 164, Cr. P. C. had implicated the accused---Accused, in circumstances, were not entitled to grant of bail.

Mir Hazar Malik v. State 1999 SCMR 1377; 1997 SCMR 462; 1994 PCr.LJ 508; Lal Muhammad v. The State 1990 SCMR 315 and 1998 SCMR 1 ref.

Jai Jai Veshno for Applicant.

Muhammad Iqbal Memon for the State.

Date of hearing: 7th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 743 #

2001 Y L R 743

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

IQBAL---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.D-69 of 2001, decided on 2nd May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9---Bail, grant of--Considerable delay was caused in holding trial by the Trial Court without any fault of the accused---High Court directed the Trial Court to examine at least the complainant within thirty days from the date of the order, but Trial Court had failed to comply with the said directions without assigning any reason for such failure---Bail was granted to the accused on ground of statutory delay.

1999 SCMR 2147 ref.

Nisar Ahmed G. Abro for:,Applicant.

Mushtaq Ahmed Kourejo for the State.

YLR 2001 KARACHI HIGH COURT SINDH 758 #

2001 Y L R 758

[Karachi]

Before Mushir Alam, J

ABDUL SATTAR MANDOKHAL--Plaintiff

versus

PORT QASIM AUTHORITY---Defendant

Suit Nos.253, 254 and 255 of 2000, decided on 19th April, 2001.

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

--- Ss. 4 & 1.3---Arbitration agreement--Proceedings before arbitrator---Procedure--Where the parties agree for resolution of present or future differences' through the medium of arbitration, their intention is apparent, to avoid the technicalities and rigours of procedure and law as are applied in proceedings in Courts of law---Once parties have agreed to arbitration, they cannot be allowed to import the rigours and technicalities of rules of procedure and intricacies of law in proceedings before arbitrator.

Ismail Brothers Ltd. v. S.M. Fazail & Co. PLD 1958 (W.P.) Karachi 158 and Azad Government of the State of J&K v. Muhammad Aslam PLD 1981 Azad J&K 71 ref.

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

----S. 41---Civil Procedure Code (V of 1908), Preamble---Arbitration proceedings.--Provisions of Civil Procedure Code, 1908--Applicability---By virtue of S.41 of the Arbitration Act, 1940, the provisions of Civil Procedure Code, 1908, are not made applicable to proceedings before the arbitrators---Provisions of Civil Procedure Code, 1908, are made applicable to all the proceedings before the Court and not before the arbitrator.

----S. 2(a)---Word 'differences' occurring in S. 2(a), Arbitration Act, 1940---Object and scope---Definition of arbitration agreement under S.2(a) of Arbitration Act, 1940, postulates submission of present or future differences to arbitration---Plural use of "difference" indicates that there can be more than one differences that may arise and if such is the case then each may be subjectmatter of separate reference which would, however, depend on the nature of the contract.

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

----S. 2(a)---Arbitration agreement--Reference of dispute for arbitration---Each and every dispute or difference may not be subject-matter of reference---Situation may arise where a claim is made by one party and that claim is settled after negotiation---Only such claims, which are not settled, may be converted into a dispute/difference that could be referred to arbitration.

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

----S. 13---Civil Procedure Code (V of 1908), S.11 & O. 11, R. 2---Arbitration proceedings---Principles of res judicata--Applicability---Only a dispute that had already been referred to arbitration, whether any award was given or not, could not be the subject-matter of a subsequent reference and to that extent such dispute might be hit by the principles of res judicata and not otherwise--Disputes, which could have been raised when making a reference but, were not raised, could not be hit by the principles of constructive res judicata---There could be successive claims depending on nature of contract, maturing into a difference and at the option of the party to the agreement might be subject-matter of reference---Where a party exercised its option to convert a dispute into a reference, the other party was obliged to enter into arbitration and subject to limitation, the same could not be resisted on the ground that it -was not raised at a particular point in time.

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

----Ss.. 4 & 20---Arbitration agreement--Reference of dispute to arbitrator---Earlier disputes between the parties were decided by arbitrator---Defendant raised objection to the claim of the plaintiff---Effect---Some of the references arising out of the same contract were already decided by arbitrators---High Court appointed same set of arbitrators who was already seized of the earlier references and such course was to avoid different and divergent approach and conflicting award, under similar circumstances---High Court advised the defendant to raise objections to the claim of the plaintiff before the arbitrator and to defend his claim before him---Matter was referred to arbitrators in circumstances.

Land Acquisition Collector v. Aurangzeb Khan PLD 1993 SC 197; Allah Baksh v. Abdul Waheed PLD 1996 Kar. 458; Akbar Ali Malik v. Chairman, A.K. M.I.D.C. 1999 MLD 236; Shah Constructions Co. Ltd.'s. case AIR 1985 Delhi 358; Messrs Alkarama's case AIR 1981 Delhi 230; Kerorimall's case AIR 1964 Cal. 545; Bal Mukandi's case AIR 1920 Cal. 808; Purser & Co. Hillingdon and Ltd.'s case (1976) 2 All ER 641 and Haji Hasim Haji Ahmed & Bros. v. Trading Corporation of Pakistan PLD 1977 Kar. 180 ref.

Bilal A. Khawaja for Plaintiff.

M. Arif Khan for Defendarft.

Date of hearing: 15th February; 2001

YLR 2001 KARACHI HIGH COURT SINDH 764 #

2001 Y L R 764

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

SULEMAN and others---Applicants

versus

DADOO and others---Respondents

Civil Revision No.25 of 1993, decided on 28th May, 2001.

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

----O. XX, R.S & O.XLI, R.31 --- Judgment Of Lower Appellate Court--Failure to give findings on each issue framed by Trial Court---Effect---While deciding the suit, the Trial Court had framed 13 issues---Trial Court had extended reasons on each issue and dismissed the suit being barred by limitation---Lower Appellate Court, while deciding appeal only framed three issues separately, allowed the appeal and set aside the judgment and decree of the Trial Court--Validity---Where in the circumstances, the Lower Appellate Court had framed three issues separately, the Appellate Court had disregarded mandatory provision of O.XX, R.5, C. P. C. and had acted in exercise of its jurisdiction with material irregularity--Judgment and decree of the Appellate Court was set aside and the case was remanded to the Appellate Court.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Muhammad Hayat and others v. Ali Muhammad and others 1982 CLC 2380 anti Akhtar Ali Khan and another v. Settlement Commissioner, Peshawar and 4 others 1989 SCMR 506 rel.

Syed Ghulam Mustafa Shah and 2 others v. Syed Muhammad Hussain Shah and others PLD 1993 Kar. 369; Mst. Sardar Bibi v. Muhammad Baksh and others PLD 1954 Lah.480; Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and others PLD 1994 SC 462 (Plasitium L, & F); Messrs Gharibwal Cement Ltd., Lahore v. Messrs Universal Traders, Gakhar Mandi; PLD 1977 Lah. 481; Muhammad Azam Khan and others v. Rehmat Ali and others PLD 1993 Lah. 836; Haji Khan Baz Khan and 8 others v. Abdul Rahim and 5 others PLD 1993 Pesh. 36; Messrs Asad Brothers v. lbadat Yar Khan PLD 1993 Kar. 140 and Mst. Ghulam Sakina and 6 'others v. Karim Bakhsh and 7 others PLD 1970 Lah. 412 distinguished.

(b) Judgment---

---- Essentials of a good judgment--Scope--Good judgment must be self-evident and self-explanatory, in other words it must contain reasons that justify conclusions arrived at and the reasons should be such that disinterested reader finds them convincing or at least reasonable.

Abdul Fattah Malik for Applicants.

G.M. Abbasi for Respondents.

Date of hearing: 25th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 769 #

2001 Y L R 769

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

HALEEM and others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.650 of 2000, decided on 14th February, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Bail, grant of--- Accused had not caused any injury to the deceased or to the complainant party--Investigating Officer had found the accused innocent and recommended their names to be placed in C61umn No.2 of the challan, but Senior Superintendent of Police did not agree to it and issued directions to submit the challan---Opinion of police though was not binding upon the Court, but their opinion regarding innocence of the accused carried some weight---Motive was alleged against the main accused and statements of some other witnesses were found to be in favour of the accused in respect of plea of alibi, but there was .no positive evidence---Only the main accused had fired shot at both the deceased and the accused had nothing to do with the crime---Question of vicarious liability of the accused would be determined at the trial--Case against the accused requiring further enquiry they were entitled to concession of bail.

Faraz Akram v. The State 1999 SCMR 1360; Abdur Rehman, v. Tanveer Hussain and 4 others 1995 SCMR 1118; Attaullah and 3 others v. The State and another 1999 SCMR 1320; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Wali Muhammad v. The State 1995 PCr.LJ 310; Javid Iqbal v. The State 1986 MLD 2665; Muhammad Akbar and 4 others v. The State and another 1978 SCMR 7; Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357; Gulam Rasul v. The State and 4 others 1982 SCMR 440 and Ghulam Nabi v. The State 1996 SCMR 1023 ref.

Mumtaz All Siddiqui for Applicants.

Shafqat Ali I. Shaikh for the Complainant.

Abdul Ghafoor Pirzada for the State.

YLR 2001 KARACHI HIGH COURT SINDH 772 #

2001 Y L R 772

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

ALI JAN alias LAKHO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.460 of 2000, decided on 31st May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 337-A(iii)---Bail, grant of--Only piece of evidence against the accused was identification parade which was held on the very day the accused was arrested--Witnesses who claimed to have seen the accused during the commission of the offence had not described any role played by him during commission of the offence---Memo. of identification parade which was signed by the Investigating Officer and not by the Magistrate had shattered case of prosecution which had given a fatal blow to the identification parade and its sanctity was lost---Case against the accused being of further inquiry bail was granted to the accused.

1995 SCMR 127; Ali Ahmed v. The State 1987 MLD 2592 and Akhtiar Muhammad v. The State 1987 PCr.LJ 2423 ref.

Shahbaz Ali Brohi for Applicant.

Abdul Fattah Mughul for the State.

YLR 2001 KARACHI HIGH COURT SINDH 774 #

2001 Y L R 774

[Karachi]

Before Wahid Bux Brohi, J

ALI NAWAZ---Petitioner

versus

THE STATE---Respondent

Criminal Bail No.598 and Miscellaneous Application No.1061 of 2001, decided on 31st May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qanun-e-Shahadat (10 of 1984), Arts 38, 39 & 40---Bail, grant of ---FLR. against the accused had been lodged after a period of two years---Confession allegedly made by the accused before the police was inadmissible in evidence in view of Arts.38 & 39 of Qanun-e-Shadahat, 1984--Ground that case was not covered by Art.40, Qanun-e Shahadat, 1984 as the place where dead bodies of the deceased were allegedly thrown in the river and was pointed out by the accused was already known to the police, was a matter of argument at the conclusion of trial---Case of accused called for further inquiry---Accused was in custody for a period of three years and eight months without trial---Bail could be granted even under third proviso to S. 499(1), Cr. P. C. especially when State had no objection to the grant of bail on that point.

Mahmood A. Qureshi for Applicant.

M. Ismail Memon, State Counsel.

YLR 2001 KARACHI HIGH COURT SINDH 776 #

2001 Y L R 776

[Karachi]

Before Muhammad Roshan Essani, J

IMAMUDDIN---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.734 of 2000,' decided on 18th May, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-A(ii) & 148---Bail, grant of--Reason for non-mentioning of the name of the accused in the FI.R. had been properly explained in further statement of the complainant which was recorded after the F.I.R.---Eye-witness of the incident whose statement under S.161, Cr. P. C. was recorded immediately after recording of FLR., had fully implicated the accused in his statement---Contention that the name of accused did not transpire in the F.I.R. or no description with regard to the eminent features of the accused had been given in the F.LR. was misconceived---Incident had taken place during night---Source of light had been disclosed in the F.I.R. as well in the statements of prosecution witnesses and parties being from the same. caste, there could be no question of mistaken identity---Accused had not come before the Court with clean hands as he had not disclosed in the memo. of bail application or during. the course of arguments that he had already filed two bail applications---Accused joining hands with co-accused barging into the house of the complainant during the odd hours of the night, prima facie, had suggested that he was privy to the commission of offence--Contention of the accused that no overt act having been ascribed to him he was entitled to bail was not tenable in law in circumstances.

Faraz Akram v. The State 1999 SCMR 1360; Piral alias Pir Bux and others v. The State 2001 MLD 630; Punhoon Lashari v. The State 2001 PCr.LJ 926 ref.

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

----S. 34---Common intention---If a criminal act was committed in furtherance of common intention or object by several persons, each person would be liable for that act as if it was committed by him.

Shah Zaman and 2 others v. The State PLD 1994 SC 65 ref.

----S. 497---Bail, grant of ---Principles-- Detailed appreciation or evaluation of the evidence could not be made at bail stage but only tentative assessment was warranted by law.

(d) Islamic Jurisprudence----

---- Status of women in pre-and post-Islamic period stated.

Punhoon Lashari v. The State 2001 PCr.LJ 926 ref.

Abdul Sattar Soomro for Applicant.

Nidamuddin Brohi on behalf of A:-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 786 #

2001 Y L R 786

[Karachi]

Before Sabihuddin Ahmad and Syed Ali Aslam Jafri, JJ

KARACHI ELECTRIC SUPPLY CORPORATION through Secretary---Appellant

versus

MIR ZAMAN and 2 others---Respondents

High Court Appeal No.373 of 1999, decided on 18th May, 2001.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Suit for compensation ---Determination of amount of compensation ---Trial Court on the basis of evidence on record had reached a definite conclusion that deceased had died due to the negligence of the defendant---Death of the deceased having proved to have occurred because of negligence, misfeasance and nonfeasance of the defendant, it could not be said that the death was the result of accident---Question of compensation damage, was rightly determined by the Trial Court keeping in view the age and earning capacity of the deceased.

Abdul Saeed Khan Ghori for Appellant.

YLR 2001 KARACHI HIGH COURT SINDH 788 #

2001 Y L R 788

[Karachi]

Before Hamid Ali Mirza, J

SAGHIR AHMED ANSARI---Petitioner

versus

KARACHI ELECTRIC SUPPLY CORPORATION through Chairman/Managing Director or Secretary and another---Respondents

Suit No.1063 of 1991, decided on 1st February, 1999.

(a) Fatal Accidents Act (XIII of 1855)---

----S. 1--Fatal accident---Suit for recovery of amount of compensation---Determination of compensation---Claim of the plaintiff was that his wife aged 49 years had died on account of negligence, lack of care and default of defendants in performance of their duty in respect of electric wire which broke down due to some physical defect causing death of his wife---Death of the deceased caused due to electrocution was not denied by the defendants, but the defendants had denied about the improper maintenance of wires and their negligence in allowing the physically defective wire to remain on pole posing dangers---Burden of proving the negligence though was on the plaintiff in the first instance, but where a duty was cast upon the defendants to exercise care and circumstances in which injury complained of had been caused were such that with the exercise of requisite care, no risk would have been resulted in the ordinary course of events the burden would be on the defendants to disprove their liability---Witnesses produced by the plaintiff had unrebuttedly stated that the electric live wire _ fell down on the deceased due to improper maintenance on the part of defendants which amounted to their negligence---Defendants had failed to bring on record any evidence to show that they were not negligent in maintaining the wire which broke down causing death of the deceased--Negligence and lack of care of the defendants had been proved, in circumstances, and they were liable to pay compensation to the plaintiff---Amount . of compensation was determined taking into consideration, age, earning capacity, gross loss to the pecuniary benefits of remaining expected life of the deceased and other matters.

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

----S.1---Fatal accident---Suit for compensation ---Determination of compensation--Points to be considered---Damage and the reasonable expectation of pecuniary advantage of the persons entitled to loss from the deceased under the law was to be taken into account---Probable pecuniary loss thereby occasioned would include compensation for loss of education, comfort and position in society which-the legal heir would have enjoyed if the deceased would have lived with them---Damage could be awarded proportioned to the loss resulting from such death to the parties who would have been benefited if the deceased would not have met with unnatural death.

Nasir Maqsood for Plaintiff.

Abdul Saeed Khan Ghori for Defendants.

Date of hearing: 1st February, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 801 #

2001 Y L R 801

[Karachi]

Before Muhammad Roshan Essani, J

GHULAM ABBAS--Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 109 of 2001, decided on 24th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss-337-A(i), (ii) 504 & 34---Interim pre-arrest bail---Application for confirmation--Name of the accused transpired in the FI.R. and he had been ascribed the role of causing hatchet blow on the head of the injured which was vital part of the body and injury on the head of the injured had been declared "Shujja-e-Madiha " by the Medical Officer--Motive had been disclosed in the F.LR.--Considerations for grant of bail before arrest were different from the bail after arrest--Merely because the offence was not punishable with death, imprisonment for life or ten years, was no ground for grant of bail in each and every case. Accused being not entitled to bail the order of interim pre-arrest bail granted to him was recalled.

Abdul Razzak Siddiqui for Applicant.

Muhammad Iqbal Memon on behalf of A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 802 #

2001 Y L R 802

[Karachi]

Before Munirur Rehman, J

ATTA MUHAMMAD ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 170 and Miscellaneous Application No.472 of 2001, decided on 10th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.467, 468, 420, 217 & 409/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Allegation against the accused was that he committed a serious offence and had caused heavy loss to the Government in connivance with other accused---Prosecution nowhere had alleged as to what specific role had been played by the accused what gain or benefit he had made---Point involved in the case would be determined by the Trial Court after the recording of the evidence and cross-examination of prosecution witnesses---Case against the accused fell within the ambit of Ss.409, 467 & 468, P.P.C.---Entire case of the prosecution was based upon documentary evidence which was already in possession of the prosecution---No possibility in circumstances, existed that any tampering would be caused to the evidence---Fact that amount allegedly embezzled by the accused was large, was no ground for refusing the bail---Case against the accused being of further inquiry, the accused was admitted to bail.

Ijaz Akhtar v. The State 1978 SCMR 64 and Saeed Ahmed v. The State 1996 SCMR 1132 ref.

Noorul Haq Qureshi for Applicant, Muhammad Azim Panhwar for the State.

2001 Y L R 815

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

GULFAM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.211 and Miscellaneous Application No.636 of 2001, decided on 22nd May, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 148, 149, 337-D, 337-A, 337, 302 & 109---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---No independent and cogent evidence was available with the prosecution which could connect the accused with the crime alleged against him ---Co-accused had confessed before the police and had disclosed the accused as the co-assailant---Said statement of co-accused could not be termed as evidence against the accused and evidence of co-accused had no value in the eye of law---No role had been attributed to the accused which could show the manner he had participated with other co-accused---One of the co-accused who was granted bail, subsequently was acquitted from the charge---Accused even if he was absconding concession of bail could not be refused to him if he had no knowledge of the case pending against him in the Court---Accused had surrendered himself in the Court by moving an application---Could not, in circumstances, be presumed that the accused had deliberately avoided to appear before the Trial Court---Case against the accused requiring further inquiry, he was admitted to bail.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Noorullah and 2 others v. The State PLD 2000 Quetta 72; Abdul Salam Irfan v. The State 2000 PCr.LJ 842 and Muhammad Shahban and another v. The State 1996 PCr.LJ 1171 ref.

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

----S. 497---Abscondence---Grant of bail to absconding accused---Bail could not be refused to an accused for his abscondence if he had no knowledge about the case pending against him, before any Court---If the case of an accused fell within ambit of further enquiry or otherwise he was entitled to bail on merits, the bail would become his right notwithstanding his abscondence---Mere abscondence would not disentitle the accused for grant of bail where the Investigating Agency purposely did not arrest the accused---Failure of Investigating Agency to perform his duty could not be used against the accused.

Sardar Abdul Sattar Chohan for Applicant.

Muhammad Iqbal Memon for the State.

YLR 2001 KARACHI HIGH COURT SINDH 821 #

2001 Y L R 821

[Karachi]

Before Hamid Ali Mirza, J

SHAMIM AKHTAR---Plaintiff

versus

MUHAMMAD ARIF BALOCH and others---Defendants

Suit No.408 of 1988, heard on 25th January, 1999.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for damages--Determination of amount of compensation--Plaintiff was widow of the deceased who died in traffic accident allegedly occurring due to rash and negligent driving of the defendant---Attorney of the plaintiff in his affidavit-in-evidence had stated on oath that accident causing death of the deceased had taken place due to rash and negligent driving of the defendant who was the driver of the vehicle which hit the deceased---Defendants pleaded in written statement that it was the deceased who was careless and negligent, therefore, accident took place, hence onus to prove the same was upon them---Evidence of the attorney had been corroborated by FLR. and defendants had failed to prove that accident took place due to carelessness and negligence of the deceased---Plaintiff being widow of the deceased and mother of legal heirs of the deceased could not be said to have any adverse interest against her own sons and daughter---Suit was decreed and amount of compensation was determined by the Court keeping in view the age, earning capacity and future prospects of the deceased accordingly.

Mst. Sakina and 3 others v. Messrs National Logistic Cell 1995 MLD 633 and Messis Hayat Sehvices (Pakistan) Ltd. v. Kandan 1989 CLC 2153 ref.

Nasir Maqsood for Plaintiff.

Riazul Hassan for Defendant No.3.

Date of hearing: 25th January, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 826 #

2001 Y L R 826

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

DILDAR---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.84 of 2001, decided on 18th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code ()MV of 1860), Ss.324, 147, 148 & 504---Bail, grant of--Accused was in custody for the last more than six months and there was no development in the trial of his case---Medical Certificate showed that the injury on the person of the complainant was Shuja-i-Madiha and it was yet to be established by the Trial Court about the intention of the accused whether he intended to kill the complainant while inflicting the injury---Case requiring further enquiry, the accused was granted bail.

Chughta v. The State 1992 PCr.LJ 2516; Zulfiqar v. State 1994 PCr.LJ 2285 Allah Rakhio v. The State 1993 SCMR 1994 and Jan Muhammad v. Haji Noor Jamal and others 1998 SCMR 500 ref.

Noor Muhammad Shaikh for Applicant.

G. A. Shahani, A. A.-G.

Muhammad Iqbal Memon for the State.

YLR 2001 KARACHI HIGH COURT SINDH 829 #

2001 Y L R 829

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

ALLAH WASSAYO---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.289 of 2001, decided on 31st May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 147, 148, 149, 114 & 504-- Bail, grant of---Accused was alleged to have raised Lalkara to other co-accused who were his sons, but the accused who was armed with hatchet, did not practically participate in the occurrence and his involvement in the case was a question of further inquiry---Allegation of raising Lalkara while standing at the place of Wardat and being armed with hatchet was to be resolved by the Trial Court while recording evidence---No reasonable grounds existed to believe that the accused had committed the offence as alleged in the F.I.R. but sufficient grounds were existing to make involvement of the accused doubtful---Accused was entitled for concession of bail as provided under S. 497(2), Cr. P. C.

Amanat Ali v. The State 1993 SCMR 1992; Muhammad Sadiq and others v. The State 1996 SCMR 1654; Muhammad v. The State 1998 SCMR 454; Haji Muzzaffar Khan v. The .State 1998 PCr.LJ 179; Muhammad Siddique v. The State 1997 PCr.LJ 143 and Muhammad Nazir v. The State 2000 MLD 1269 ref.

Saifuddin Shah for Applicant.

Rab Nawaz Makho for the State.

YLR 2001 KARACHI HIGH COURT SINDH 837 #

2001 Y L R 837

[Karachi]

Before Ali Aslam Jaffari, J

GUL MUHAMMAD MIR BAHAR---Plaintiff

versus

N.L.C. and others---Defendants

Suit No.694 of 1988 in Execution

Application No. 153 of 2000, decided on 18th December, 2000.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr.10 & 23-A--Application for execution of decree---No appeal had been filed against the decree sought to be executed---Judgment-debtor having not deposited decretal amount and having failed to furnish surety, objection against execution of decree could not be heard---Application for execution of decree was allowed and assets of the judgment-debtor mentioned in the Schedule of the properties annexed with execution application were ordered to be attached and thereafter to be sold with the direction that sale proceeds be deposited in the Court for satisfaction of decretal amount.

Nasir Maqsood for the Decree Holder.

Nemo for the Judgment-Debtor.

YLR 2001 KARACHI HIGH COURT SINDH 838 #

2001 Y L R 838

[Karachi]

Before Anwar Zaheer Jamali, J

MANHATTAN COMMUNICATION (PVT.) LTD. ---Petitioner

versus

GHANDHARA NISSAN LIMITED---Respondent

Judicial Miscellaneous No.32 of 1999, decided on 31st May, 2001.

(a) Companies Ordinance (XLVII of 1984)---

----Ss. 305 & 306---Winding up of company-Conditions to be considered, enumerated.

Following is the legal position with regard to conditions to be considered in the case of winding up of a company: --

(i) That if a debtor company is merely unwilling to pay its debts but otherwise is commercially solvent, then the normal remedy available to a creditor is a suit for the recovery of the amount and not a petition for winding up.

(ii) That if the Court, finds that the negligence on the part of the debtor company to pay the sum demanded in terms of section 306(1)(a) of the Companies Ordinance, 1984, is not on account of want of commercial solvency, but because of bona tide dispute based on a substantial ground as to the entitlement of the creditor to the amount demanded, application under section 306 read with section 309 of Companies Ordinance, 1984, will not be sustainable.

(iii) That section 306(1)(a) of Companies Ordinance, 1984, raises a presumption as to the fact that the debtor company is deemed to be unable to pay its debts, if is spite of the receipt of demand in terms of the above clause, the debtor company neglects to pay the sum demanded within thirty days of the receipt of notice of demand, or neglects to secure or to compound such debt to the reasonable satisfaction of the creditor. But this presumption is rebuttable by the debtor company, if it can show that it is commercially solvent and is in a position to meet its liabilities on due dates.

(iv) That the object of sections 305 and 306 of Companies Ordinance, 1984, is not to coerce a debtor company to make payment to an unpaid creditor, but to secure discontinuation of functioning of such company which has ceased to be commercially solvent.

(v) That though under section 9(3) of Companies Ordinance, 1984, it is permissible to adopt summary procedure, but the procedure adopted should be fair and just which may ensure equal opportunities to the contesting parties.

(vi) That the effect of the lack of proof of service of a demand notice by a creditor in terms of section 306(1)(a) of the Companies Ordinance, 1984, is that the presumption that the debtor company shall be deemed to be unable to pay its debts will not be available to the creditor in a petition for winding up, but the creditor will be at liberty to prove that, in fact, the company is unable to pay its debts within the meaning of section 306(1)(c) of Companies Ordinance, 1984, by other evidence.

(vii) That though section 306(1)(a) of Companies Ordinance, 1984, seems to be independent of its clause (c) but the conjoint reading of sections 305 and 306 of Companies Ordinance, 1984, makes it amply clear that the Company Judge has a discretion to order, of not to order, winding up of a company after taking into consideration all the relevant facts. The approach should be to see that a commercially insolvent company ceases to operate and not to provide a forum for the recovery of certain due amounts for a particular creditor.

(viii) That in order to determine whether a debtor company is commercially insolvent, the value of such assets without which it could not carry on its business should not be taken into account, but the amount available to the debtor company, or which may become available in normal course of business without disposing of the above assets will have to be ' taken into consideration.

(ix) That the factum that a creditor has other or alternate remedy under general law or a special law, does not debar him from pressing in aid the provisions of section 306 read with section 309 of Companies Ordinance, 1984, for seeking the winding up of the debtor company, and

(x) That a debtor company is unable to 'pay debts can be demonstrated from the company's contingent and prospective liabilities and the debts which are immediately payable.

Platinum Insurance Company Limited v. Daewoo Corporation PLD 1999 SC 1 ref.

(b) Companies Ordinance (XLVII of 1984)

-------Ss.305 & 306---Winding up proceedings -- Failure to pay its debts by the company-- Liabilities of company more than its assets-- Non=compliance of notice under Ss.305 & 306 of Companies Ordinance, 1984-- Financial and working condition of the company, gathered from its own documents, showed that the company was commercially insolvent, it had lost its substratum and was unable even to pay its current debts ---Effect-- Non-compliance of notice under Ss. 305 & 306 of Companies Ordinance 1984, within the time specified by law had given a presumption that the company was unable to pay its debt and the company had failed to rebut the same---Where liabilities of the company, which were already more than its assets, were increasing day by day and a company, which during the whole year had undertaken production to the extent of less than 1.5 % of its production capacity, such company could not survive long in such a manner---High Court appointed official assignee as the liquidator of the company and directed him to take over the charge of the company and to proceed further in accordance with law ---Company was wound up in circumstances.

PLD 1976 Lah. 1538; PLD 1982 Kar. 94; PLD 1985 Kar. 193; PLD 1999 Lah. 127; PLD 1990 SC 763; PLD 1990 SC 768; PLD 1996 SC 601; Platinum Insurance Company Limited v. Daewoo Corporation PLD 1999 SC 1; PLD 1971 Kar. 597; PLD 1992 Kar. 249; PLD 1998 Kar. 41; PLD 1998 Kar. 71; 1992 SCMR 1006; 1998 CLC 543; PLD 2000 Lah. 323; 1997 MLD 149 and 1997 CLC.230 ref.

----S.306---Debtor and creditor---Debtor has to find his/its creditor, and it is the duty of debtors to approach the creditors for verification and settlement of their claims and payment of the same.

A. I. Chundrigar for Petitioner.

Asim Mansoor for Respondent.

Dates of hearing: 8th, 19th February and 26th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 852 #

2001 Y L R 852

[Karachi]

Before Ghulam Nabi Soomro and Atta-ur-Rehman, JJ

MUHAMMAD YOUNUS---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.58 of 2001, decided on 1st June, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 439--Bail, cancellation of--Accused remained absent on single date of hearing and nothing was on record to suggest that the accused had ever remained absent again or had earlier misused the concession of bail---Order of cancellation of bail of the accused on account of his absence on one date and his failure to produce medical certificate or medical certificate not showing any disease, would not be a good ground--Order of cancellation of bail being very harsh and suffering from impropriety, was set aside.

Gulzaman Khan for Applicant.

Habib Ahmed, A. A.-G.

YLR 2001 KARACHI HIGH COURT SINDH 853 #

2001 Y L R 853

[Karachi]

Before Ghulam Nabi Soomro, J

RASHID MEHMOOD---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.S-532 of 2001, decided on 18th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.367, 342, 504,109, 34, 324 & 337---Bail, grant of---Allegations against the accused were that he alongwith his co-accused came to the City Courts compound on a vehicle and abducted the prosecution witness during Court hours---Abduction of any person or his removal perforce from premises of a Court of law was an act of terrorism---Law Courts iwere sanctuaries and must be known as such---Case of the accused fell within the ambit of fourth proviso to S. 497, Cr. P. C. and was not fit for bail.

1997 SCMR 361; PLD 1997 Kar. 156; 1984 SCMR 613; 1987 PCr.LJ 1754; PLD 1990 SC 934 and 1997 SCMR 885 ref.

Syed Sarfraz Ahmed for Applicant.

Muhammad Iqbal Aquil for the Complainant.

Habib Ahmed, A. A.-G.

YLR 2001 KARACHI HIGH COURT SINDH 859 #

2001 Y L R 859

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

Sain RAKH10---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.36 of 2001, decided on 11th April, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 114, 147, 148 & 149---Bail, grant of---Contention of the accused was that the period of two years had elapsed and case had not yet concluded and after subtracting the period of adjournments, the accused was entitled to bail---On four occasions the case could not proceed due to the act or omission of the accused---Court for the purpose of grant of bail on the ground of statutory delay could not add or subtract such period--Contention of the accused was repelled.

Shoukat Ali v. Ghulam Abbass and others 1998 SCMR 228; Abdul Rashid v. The State 1998 SCMR 897; Iqbal Brohi v. The State 1998 PCr.L1 2066; Sher Ali alias Sheri v. The State 1998 SCMR 190 and Muhammad Younis v. The State 1995 SCMR 1087 ref.

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

----S. 497(1)(5)---Grant and cancellation of bail---Considerations---Considerations for the grant of bail were altogether different from the ones for cancellation of the bail.

----S. 497(1), 3rd & 4th provisos---Bail, grant of---Statutory ground ---Considerations --Proviso third to S.497(1), Cr.P.C., was not an independent provision, but was controlled by the fourth proviso to S. 497(1), Cr. P. C. -- While considering the bail plea on the ground of statutory delay, Court had to take into consideration the evidence collected by the prosecution and if case fell within the purview of fourth proviso to S.497(I), Cr.P.C.. Court could refuse bail.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 114, 147, 148 & 149---Bail, grant of---Accused alongwith his companion committed murder of the deceased in a very callous and brutal manner---Incident occurred in broad daylight in the heart of the town---Act of the accused not only tanta mounted to terrorism, but the accused appeared to be a dangerous person--Accused, in circumstances, was not entitled to the grant of bail.

Sajjad Hussain Kolachi for Applicant.

Ghulamullah Memon for the Complainant.

Sher Muhammad Shar, Asstt. A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 862 #

2001 Y L R 862

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

MUHAMMAD PUNHAL KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.286-D of 2001, decided on 24th May, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109, 148, 149 & 427---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---Accused was named in the F.LR. ,with a specific role of firing on the deceased---Eye-witnesses were not the chance witnesses and other witnesses had also implicated the accused---Sufficient material was available on record to connect .the accused with the commission of the offence--Contention of the accused that two Investigating Agencies had declared him innocent he was entitled to bail, .was repelled as such opinion of the police was not binding on the Court while deciding bail application---Sufficient material being available against the accused for his involvement in the offence accused was not entitled to grant of bail in circumstances.

1974 PCr.LJ Note 10 at p.7; PLJ 1990 Cr.C (Kar.) 436; PLD 1995 SC 34; PLJ 1999 Cr.C. (Pesh.) 802; PLD 1999 Lah. 74 and 1999 MLD 2026 ref.

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

----S.497---Bail, grant of ---Principles---While deciding the bail application, the deeper appreciation was to be avoided---Court was not to go into details of evidence nor the evidence could be sifted at bail stage---All that was to be seen in a bail application was that whether sufficient reasons were present to connect the accused with the commission of the alleged offence---If witnesses were alleged to be chance witnesses, the evidence of said witnesses would require deeper appreciation which could not be taken at the bail stage.

Saeed v. The State PLD 1992 Kar.137 ref.

----S. 497---Bail, grant of---Points to be considered by the Court---Court while considering the merits of the bail application was required to take a decision on the basis of material available on record to show as to whether reasonable grounds existed to believe that the accused was involved in the crime and should avoid taking the crucial decision merely on the basis of investigation. report and entry of the name of the accused in Column No.2 of the challan which could be relevant, but not the sole criteria for grant of bail.

Muhammad Din v. The State 1998 SCMR 1 ref.

Abdul Fatah Malik for Applicant.

Abdul Razak Soomro for the Complainant.

Gul Hassan Solangi for A.A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 866 #

2001 Y L R 866

(Karachi)

Before Muhammad Mujeebullah Siddiqui and Zia Perwez, JJ

JAMIL AHMED ---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.D-627 and Civil Miscellaneous Application No. 1285 of 2001, decided on 11th July, 2001.

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

----Arts. 18---Freedom of trade, business or profession---Restriction imposed on such right---Scope---Constitution gives the fundamental right of freedom of trade, business or profession and envisages the right to do the lawful business, trade or profession and to manage the same in the way deemed fit by an individual, company, corporation, statutory body or Government controlled corporations and statutory bodies---Only restriction which can be placed on trade or business is to conduct the business in accordance with law of the land---So long any person, which includes anybody politic or corporate, any authority of or under the control of. the Federal Government or of the Provincial Government as defined in Art. 199(5) of the Constitution,. is managing mid arranging its business in accordance with law of land, no exception can be taken.

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

----Arts.199 & 184(3)---Public interest litigation ---Object and scope---Constitutional provisions---Effect---Principle of judicial restraint ---Applicability---Fundamental -rights--Suo motu jurisdiction of superior Courts.

Public interest litigation is in fact an aspect of judicial activism and the Courts while resorting to judicial activism are not supposed to ignore the Constitutional provisions for the reason that while resorting to judicial activism the Courts are required to keep in view the principles of judicial restraint as well. The concept of judicial activism is neither supra-Constitutional nor envisages any act or relief in express or blatant violation of the Constitutional provisions and fundamental rights guaranteed in the Constitution. A balance is to be struck off and the superior Courts are required to see that if any corporate body or statutory authority functions in such a way that it violates the fundamental rights of the citizens or the amenities provided to the citizens are taken away or environment is polluted or the amenities or good environment is not provided which affects the rights of life which means the right of meaningful life or the public at large or needy, poor and downtrodden sections of the society are deprived of an amenity, facility, convenience or public at large is deprived of any benefit or general good, the superior Courts in exercise of their Constitutional jurisdiction shall always be prepared to intervene and interfere in order to protect the fundamental rights of the citizens. In doing so, the superior Courts shall always be prepared to resort to and exercise their epistolary as well as suo motu jurisdiction, ignoring the hyper technicalities in order to ensure speedy and easy dispensation of justice and enforce the fundamental rights guaranteed in the Constitution in letter and spirit.

----Arts. 18 & 199---Constitutional petition-- Constitutional guarantee---Right of free trade and business---Merging/shifting of branch of nationalized Bank---Petitioner assailed the order passed by Bank officials whereby one branch was merged in another branch and the same was intended to be shifted from its place where it was operating---Contention raised by the petitioner was that the branch was providing facility to bureaucrats, VIPs and white-collar persons and shifting of the branch from its present position would cause inconvenience to them--Validity---If the contention of the petitioner was accepted, then it would mean that the bureaucrats, the VIPs and white-collar persons were superior to other citizens of the country-- Contention of the petitioner was absolutely against the spirit of the Constitution, democracy and the Islamic concept of the human dignity and equality of the citizens---Relief sought placed curb on the freedom of trade and business which was guaranteed under the Constitution and was to be governed under the licensing system provided in the law---High Court declined to interfere with the decision of the banking officials---Petition was dismissed in limine.

Syed Wajih-ul-Hassan Zaidi v. Government of Punjab 1997 SCMR 1901; Mazhar Iqbal v. University of Punjab, Lahore 1992 CLC 1158; Ghulam Akbar v. Deputy Commissioner, Dadu PLD 1997 Kar. 355 and Ghulam Mustafa v. Municipal Corporation 1998 MLD 474 ref.

Abdul Ghafoor Mirani and Abdul Fattah Malik for Petitioner.

Dates of hearing: 11th June and 11th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 876 #

2001 Y L R 876

[Karachi]

Before Zia Perwez, J

Dr. Syed MANSOOR ALI and 3 others---Plaintiffs

versus

ASHFAQUE ALI ---Defendant

Suit No.744 of 1996, heard on 11th May, 2001.

Islamic Law---

----Necessary ingredients of a valid gift--Gift---Essentials of valid gift---Recital of handing over of possession in the deed---Legal worth---Mere recital of handing over of possession without actual delivery of possession was invalid---Tender, acceptance and seiz-in i.e. the delivery of possession by the donor to the donee were the ingredients of valid gift---If from the evidence both oral and documentary it was proved that the possession of suit property was not handed over to the donee, such fact would make the gift invalid.

Syed Khurshid Ali v. Syed Abi Ali 2000 YLR 1787; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Mir Haji Ali Ahmed Khan Talpur and 9 others v. Government of Sindh and 2 others PLD 1976 Kar. 316; Mrs. Razia v. Wajid Ali and 11 others 1989 CLC 1274 and Ghulam Hussain and others v. Sarfraz Khan and others PLD 1956 SC (Pale.) 309 rel.

Arshad Mehmood Siddiqui v. Muhammad Haroon 1992 MLD 810; Josph and others v. Mst. Teresa Joana Andrews and another PLD 1974 SC 185; Muhammad Sarwar and 6 others v. Muhammad Iqbal and 2 ~ others 1997 MLD 130; Rehman Ali and others v. Abdul and 3 others 1980 CLC 1110; Muhammad Bashir and 6 others v. Muhammad Yaqub and 11 others 1993 CLC 1084 and Alif Khan v. Mst Mumtaz Begum and others 1998 SCMR 2124 ref.

Abid S. Zuberi for Plaintiffs. Arif Bilal Sherwani for Defendant.

Date of hearing: 11th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 880 #

2001 Y L R 880

[Karachi]

Before Muhammad Ashraf Leghari, J

SAIMA---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.806 of 2001, decided on 11th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13/14---Bail, grant of---Complainant, after receiving information that a prostitution den was being run by the accused in a flat, deputed a private person giving him tainted money to bring a girl from said den after handing over money to the accused---Girl so brought had narrated that prostitution den was being run by the accused in the flat and that the customers usually come to hire the girls from there ---F.I.R. did not indicate that the complainant and prosecution witnesses had noticed any sign of sexual celebration at the flat---Nothing incriminatory was found at that place which could indicate that persons allegedly available, at the venue were involved in sexual intercourse, mere presence of said persons would not constitute an offence of Zina---Recovery of tainted money was yet to be proved by the prosecution ---F.I.R. had not disclosed that any body had overheard the conversation between the accused and the fake customer---Tainted money was handed over to a private person and not public servant---Involvement of the accused in the offence was yet to be proved by the prosecution---In absence of reasonable grounds to believe that the accused was involved in an offence falling under prohibitory clause of S.497(1), Cr.P.C., case required further inquiry---Accused was granted bail in circumstances.

Raza Hashmi for Applicant.

Fazlur Rehman Awan, State Counsel.

YLR 2001 KARACHI HIGH COURT SINDH 882 #

2001 Y L R 882

[Karachi]

Before Zia Perwez, J

TAMIZUL HASSAN ---Plaintiff

versus

WAHEED AKHTAR and 7 others---Defendants

Suit No. 1507 and Civil Miscellaneous Applications Nos. 9220 and 8868 of 1999, decided on 6th July, 2001.

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

----S. 70---Notice before filing of suit--Requirements---Scope---Provision of S.70 of Cooperative Societies Act, 1925, is attracted only to the acts touching the business normally carried on by the Society--Provision of S.70 of Cooperative Societies Act, 1925, being a special provision of law the same was to be strictly construed and could not be stretched in favour of any party.

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

---O. VII, R.11---Rejection of plaint--Material to be relied on---Only averments made by plaintiff in the plaint, which are treated as true and correct, are to be looked into for the purpose of deciding the application under O. VII, R.11, C. P. C.

Allah Buksh v. Abdul Rehman 1995 SCMR 459 ref.

----S. 70---Civil Procedure Code (V of 1908), O. VII, R. 11---Plaint, rejection of---Failure to give notice under S.70 of Cooperative Societies Act, 1925---Averments in the plaint were not touching the business of Cooperative Society---Neither the plaintiff, nor some of the defendants were members of the Cooperative Society---Dispute was regarding delay in mutation of record in favour of the plaintiff and cause of action was against specific acts of some defendants---Where, from the averments made in the plaint, the plaintiff had disclosed cause of action against the defendants and the plaint was not hit by the provisions of S.70 of the Cooperative Societies Act, 1925, the suit was maintainable.

JJ. Miranda v. Fishermen's Cooperative Society Ltd. and another PLD .1978 Kar. 990; Mehar Alvi v. Pakistan and 5 others PLD 1990 Kar. 609; Kassamali v. Mst. Shakra Begum PLD 1968 Kar. 307; Syed Khadim Ali Shah v. S.M. Zia and 2 others PLD 1981 Kar. 604; Muhammad Azam v. Pakistan Employees Cooperative Housing Society Ltd., Karachi and 4 others PLD 1985 Kar. 481; Nazar Ali v. Noorabad Cooperative Housing Society Ltd. and others PLD 1987 Kar. 676; Lahore Cantt. Cooperative Society Limited v. Muhammad Asif 1998 MLD 1850 and Government of West Pakistan and another v. Wali Muhammad Habib and another PLD 1961 SC 215 ref.

Faisal Arab for Plaintiff.

Abdul Aziz Khan for Defendant.

Date of hearing: 15th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 891 #

2001 Y L R 891

[Karachi]

Before Muhammad Moosa K. Leghari and Faiz Muhammad Qureshi, JJ

MUHAMMAD ASLAM and 22 others---Petitioners

versus

DEPUTY COMMISSIONER, LARKANA and 4 others---Respondents

Constitutional Petition No.D-244 and Miscellaneous Applications Nos. 415 and 416 of 1999, decided on 10th May, 2001.

Constitution of Pakistan (1973)

-------Art.199---Constitutional petition-- Disputed question of fact---Bifurcation of Deh Bindi---Order of Authorities was assailed in the petition whereby original Deh Bindi was bifurcated---Question involved in the petition contained disputed question of fact---Effect-- Indulgence of High Court in Constitutional jurisdiction was not warranted, since the matter involved resolution of factual controversy---Constitutional petition was dismissed in limine.

1993 SCMR 618; PLD 1980 SC 139; 1980 SCMR 933; 1981 SCMR 291; 1989 SCMR 918; PLD 1991 SC 476; 1971 SCMR 110; 1970 SCMR 853; PLD 1964 SC 636; PLD 1983 SC 280; Messrs Arshad & Company v. Capital Development Authority, Islamabad 2000 SCMR 1557; Shah Wali and others v. Ferozuddin and others 2000 SCMR 718 and Revenue Employees Cooperative Housing Society Limited and 8 others 2001 SCMR 155 ref.

Abdul Hameed Khan for Petitioners.

Muhammad Bachal Tonyo, Addl.

Miss Faizun Nissa for Respondent No.5.

YLR 2001 KARACHI HIGH COURT SINDH 896 #

2001 Y L R 896

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD SHREEF and others---Petitioners.

versus

THE STATE and others---Respondents

Constitutional Petition No.D-91 of 2001, decided on 29th May, 2001.

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

----Ss. 239 & 234---Joinder of charges--General rule was that for every offence separate charge would be framed and separate trial be held, but S. 239, Cr. P. C. was an exception to the said general rule--Duty had been cast upon the prosecution to strictly establish that case fell within ambit of S. 239, Cr. P. C. ---Joinder of charges could not be made as a matter of routine---If Court found that any prejudice would be caused to the accused or the charges were distinct and did not come stricto senso within the parameters of S.239, Cr. P. C. read with S. 234, Cr. P. C. the Court must desist from charging accused jointly---Word same in "same transaction" could not be interpreted in any special or technical .terminology but in its ordinary etymology---Provisions of S.239, Cr. P. C. were ancillary and subsidiary to S. 234, Cr. P. C.

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

----Ss. 364, 365-A, 148, 149, 353, 324 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Criminal Procedure Code (V of 1898), Ss.239 & 234--Anti-Terrorism Act, (XXVII of 1997), Ss. 32 & 13---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss. 3 & 4---Transfer of case from Special Court to Anti-Terrorism Court--Petitioner/complainant had sought transfer of case from Special Court to Anti-Terrorism Court----Accused were facing trial before Special Judge, Anti-Terrorism Court in case earlier registered against them under Ss.364, 365-A, 148 & 149, P. P. C. ---Accused were also facing trial in another case before Special Judge, Suppression of Terrorist Activities, subsequently registered against them under Ss. 353, 324 & 149 and under S. 13-D of West Pakistan Arms Ordinance, 1965---Offences under which the accused were facing trial before Anti-Terrorism Act, 1997 were distinct and different from the offences in case pending before Special Court under Suppression of Terrorist Activities (Special Courts) Act, 1975---Date of the commission of offence of -both the cases, punishment, venue of offence, witnesses, evidence, Mashirnamas and F.I.Rs. were different from each other---Even the name of the complainant/petitioner did not transpire in the calendar of witnesses---Petition for transfer of case was dismissed in circumstances.

Habibullah Shaikh for Petitioners.

Abdul Latif Memon for Respondents Nos. l to 3.

Ghulam Dastagir A. Shahani, Addl. A,-G.

YLR 2001 KARACHI HIGH COURT SINDH 900 #

2001 Y L R 900

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD SHAREEF---Petitioner

versus

THE STATE and others---Respondents

Constitutional Petition No.D-90 of 2001, heard on 17th May, 2001.

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

----S. 30---Penal Code (XLV of 1860), Ss. 364, 365-A, 148 & 149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal of first bail application-- Second application for bail was filed---First bail application filed by the accused was dismissed by Trial Court on merits which order was challenged by the accused before the High Court but said application having not been pressed same was dismissed by the High Court---After ten days of the said dismissal the accused repeated bail application before the same Trial Court who had earlier dismissed the application and same Presiding Officer granted the subsequent bail application ---Validity--Grounds which were available to the accused at the time of first bail application and were not pressed, could not be re-agitated and same could not be considered as fresh grounds in the bail application.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.

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

----Ss. 12, 13, 19, 30 & 32---Penal Code (XLV of 1860), Ss. 364, 365-A, 148 & 149--Constitution of Pakistan (1973), Art. 199--Constitutional petition---Bail, grant of--Powers of Special Court---Cancellation of bail---Powers for grant of bail conferred upon the Special. Court created under Anti-Terrorism Act, 1997 were very much restricted---Powers under S.30(4) of the said Act being not analogous to Ss. 497 & 498, Cr.P.C. therefore powers vested in Special Court relating to bail were to be exercised with utmost care and caution in reasonable, justified and judicious manner keeping in view the intention of the Legislature---Bail should not be granted to the accused if the Special Court would come to the conclusion that reasonable grounds existed to believe that the accused was guilty of the offence with which he was charged---Accused was facing trial for the offence of abduction for ransom falling under Anti-Terrorism Act, 1997 and no finding had been specifically given by the Trial Court to the effect that no reasonable grounds existed to believe that the accused was not guilty of the offence---Order granting bail was recalled by the High Court in circumstances.

Mst. Resham Jan v. Abdur Rehman 1991 SCMR 1849 ref.

----S. 30---Criminal Procedure Code (V of 1898), Ss.496, 497 & 498---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Though the powers of High Court under Ss. 496, 497 & 498, Cr. P. C. had been expressly taken away by the statute, but supervisory Constitutional jurisdiction of High Court was intact---High Court could interfere if it found that the Court below had acted illegally and capriciously in exercise of the powers vested in it.

(d) Bail---

---- Discretion, exercise of---Grant of bail was a discretionary matter and discretion could not be exercised arbitrarily and in a capricious manner.

Habibullah Shaikh for Petitioner.

Abdul Latif Memon for Respondent No.2.

Ghulam Dastagir A. Shahani, Addl. A.-G..

YLR 2001 KARACHI HIGH COURT SINDH 910 #

2001 Y L R 910

[Karachi]

Before Faiz Muhammad Qureshi, J

NASEER---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 258 of 2001, decided on 14th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code - (XLV of 1860), Ss. 302, 342, 34, 148 8c 149---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---Two main accused were absconders and other two co-accused had been placed in Column No. 2 of the challan and presence of the accused/petitioner at the place of occurrence at the time of commission of the offence, had not been shown by the complainant in the contents of the F.LR.---No role had been assigned to the accused and his participation in the alleged offence and sharing common intention with the co-accused could be thrashed out at the time of trial---No recovery was made from the accused---Case against the accused being of further inquiry, he was granted bail.

1982 SCMR 955 and Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 ref.

Jai Jai Veshno Mange Ram for Applicant.

Muhammad Iqbal Memon for the State.

Date of hearing: 14th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 912 #

2001 Y L R 912

[Karachi]

Before Ghulam Nabi Soomro and Atta-ur-Rehman, JJ

SHAMSHAD KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 187 of 2001, decided on 26th March, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 4, 9, 12 & 13---Bail, grant of---Bail was refused to the accused by the Trial Court for the only reason of his involvement in two other identical cases and being a habitual offender---Accused had been acquitted in one of the said cases while in the other case the trial was yet to be concluded--If the prosecution had failed to point out evidence proposed to be led at the trial, case against the accused, would fall within the ambit of S.497(2), Cr.P.C., requiring further inquiry---Accused was granted bail in circumstances.

Munawar Hussain v. The, State 1993 SCMR 785 and Mst. Fahmida v. The State 1997 SCMR 947 ref.

Sh. Ghulam Sabir Niazi for Applicant.

Shoaib M. Ashraf, Special Prosecutor for A.N.F.

Date of hearing: 26th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 913 #

2001.Y L R 913

[Karachi]

Before Faiz Muhammad Qureshi, J

MANGIH --- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 288 of 2001, decided on 28th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 401 & 427---Bail, grant of--according to contents of F.L.R. accused alongwith co-accused had been identified by the police officials, but said officials had nowhere disclosed their source of identification with regard to the names of the accused---Case of the prosecution was that all the six accused fired upon the police party and one police officer sustained three injuries, but it was not clear from the record that from whose hand said police officer received fire-arm injuries---Identity, of the main accused was at the stake and it was not clear from: the record as to who specifically caused injuries to the injured---Case against the accused requiring further enquiry and controversial issues being involved in the matter, bail was granted to the accused.

1985 PCr.LJ 2323 and Muhammad Nadir v. The State 1991 PCr.LJ 4 ref.

Abdul Hakeem Khan Bijarani for Applicant.

Abdul Fatah Mughal for the State.

Date of hearing: 28th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 916 #

2001 Y L R 916

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

SUBZI AND FRUIT COMMISSION AGENTS ASSOCIATION, SUBZI MANDI, LARKANA through General Secretary Abdul Shakoor Shaikh ---Petitioner

versus

COMMISSIONER, LARKANA and 5 others---Respondents

Civil Petition No. D-330 of 2000, decided on 17th May, 2001.

(a) Constitution of Pakistan (1973)--

----Art. 199---Expression aggrieved person'---Scope---Pre-conditions for grant .of relief under Art. 199 of the Constitution--Provisions of Art. 199 of the Constitution provide remedy for the infringement of fundamental or legal right of a person/party---Condition precedent , to the granting of any relief under Art. 199 of the Constitution depends on existence of a fundamental or legal right of a person or a party and the infringement of such a right--Right which is the foundation of application under Art. 199 of the Constitution is a personal and individual right---Such right may be a statutory right or a right recognized by the law---Person or a party can be said to be aggrieved only when he is denied a legal right by some one who has a legal duty to perform relating to that right.

Tariq Transport Company's case PLD 1958 SC (Pak.) 437; Ch. -Jalaluddin's case 1968 SCMR 995 and Anjuman Araian Bhera's case PLD 1973.Lah. 500 ref.

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

--- Art. 199---Constitutional petition--Maintainability---Locus standi---Dispute was with regard to shifting of Sabzi Mandi (vegetable market) and Fruit Mandi from its present place to a new place---Constitutional petition was filed in the High Court by Association of Commission Agents working in the market---Objection was raised to the maintainability of the Constitutional petition on the ground' that the Association was not covered by the definition of aggrieved person'---Validity---Where persons/parties who were likely to be affected would be the commission agents in their individual capacity, no infringement of any of the legal right of the Association which was an unregistered body would take place, as the Association had got no 'direct personal interest in the matter---Association having no personal legal right was not an aggrieved person/party, thus was not competent to invoke the Constitutional jurisdiction of the High Court to maintain the petition---Petition was dismissed in limine.

Tariq Transport Company's case PLD 1958 SC (Pak.) 437; Ch. Jalaluddin's case 1968 SCMR 995; Anjuman Araian Bhera's case PLD 1973. Lah. 500; Haji Mojakkir Ali's case PLD 1967 Dacca 6; Pakistan Diplomat Engineers Federation's case 1987 CLC 2154 and Korangi No.2 Falahi Committee v. Karachi Development Authority and another- 1982 CLC 587 ref.

Illahi Bux Kehar for Petitioner.

Muhammad Bachal Tonyo, Addl. A.G. for the State.

Date of hearing: 17th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 925 #

2001 Y L R 925

[Karachi]

Before Ghulam Nabi Soomro and Atta-ur-Rehman, JJ

MANSOOR ALI and 6 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 134 of 2001, decided on 9th March, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 399, 402, 353 & 34---Bail, grant of--Accused were in continuous custody for the last six years and such inordinate delay had not been attributed to them---Bail plea of the accused had been opposed by the prosecution on the ground that the accused had been convicted and sentenced to death in another case and their appeals were pending decision before High Court, case of the accused, due to said conviction thus was hit by fourth proviso to S.497(1), Cr.P.C.---Nothing was provided in fourth proviso to S.497(1), Cr. P. C. contemplating to deprive indefinitely an undertrial accused of his liberty of being released on bail---Even otherwise bail could be sought by the accused on ground of inordinate delay in conclusion of trial.

Gul Muhammad and 2 others v. The State 1987 PCr.LJ 787 and Fakir Ali v. The State 1990 PCr.LJ 72 ref.

Agha Zafir Ali for the Applicants.

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

Date of hearing: 9th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 926 #

2001 Y L R 926

[Karachi]

Before Wahid Bux Brohi, J

KHALID KARAMAT ELLEY---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 543 of 2001, decided on 14th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406/506---Protective pre-arrest bail, grant of---Accused apprehending his arrest in a case registered against him at police station in Islamabad had approached High Court of Sindh, Karachi for protective pre-arrest, bail on the ground that he apprehended imminent arrest by the Islamabad Police as soon as he would enter the Province of Punjab---Validity---Interim protective bail, could be granted to the accused in exceptional circumstances without framing an opinion on the merits of the case even if the F.I.R was registered against the accused beyond the territorial jurisdiction of the High Court.

Mukhtar Ahmed Awan v. The State 1990 PCr.LJ 617 and Ch. Allah Ditta v. The State 1989 PCr.LJ 2152 ref.

Abdul Qadir Siddiqui for Applicant.

Ms. Rana Khan, State Counsel

Date of hearing: 14th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 930 #

2001 Y L R 930

[Karachi]

Before Muhammad Ashraf Leghari, J

WAPDA through Chairman and others---Applicants

versus

Messrs ALAM BROTHERS and others---Respondents

First Civil Appeals Nos. 23 and 25 of 1997, decided on 17th May, 2001.

(a) Damages---

---- Acquittal in criminal case ---Effect-- Damages could not be granted in all criminal cases which ended in acquittal---Damages could only be granted when the proceedings were malacious and were not initiated in good faith. ---(Malacious prosecution].

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

----S. 96, O.XLI Rr. 23, 25, 27 8c O.XIV, R.5---Remand of case ---Reframing of issues--Additional evidence, production of---Suit for damages was filed on the allegation that a false case of electricity theft was registered against the plaintiff in which the plaintiff was acquitted---Plaint further alleged that due to the act of the defendant Authority the mill of the plaintiff was closed down resulting in huge loss---Trial Court decreed the suit in favour of the plaintiff---Nowhere it was proved that the criminal prosecution initiated against the plaintiff was malacious---Plaintiff failed to produce cogent and reliable evidence to prove that the actions of the officers of the defendant Authority were mala fide and not in good faith---Trial Court failed to frame issues properly---Defendant Authority during the trial was not given proper opportunity to adduce its evidence, although application for re-opening its side was moved, yet the same was dismissed by the Trial Court ---Effect--High Court reframed the important issues in more comprehensive manner and the case was remanded to the Trial Court for decision afresh---Authority should have been given proper opportunity to defend its case when decree of a huge amount was being passed against it--Judgment and decree passed by the Trial Court was set aside---Appeal was allowed accordingly.

Pakistan Coast Guards v. Umar Saleya 1997 CLC 1; Dr. Q.M. Qarni v. Mir Khalilur Rehman and 4 others PLD 1975 Kar. 379; Muhammad Ansar-ulIslam Qarni, Advocate v. Karachi Stock Exchange Ltd., Karachi PLD 1975 Kar. 556; American Life Insurance Company v. M.S. Khawaja PLD 1960 (W.P.) Kar.568 and Altaf Gauhar v. Wajid Shamsul Hasan and another PLD 1981 Kar. 515 ref.

S. Manzar Alam for Appellants (in Civil Appeal No. 23 of 1997).

Gianchand H. Kaswani for Appellants (in First Civil Appeal No. 25 of 1997).

Gianchand for Respondents (in First Civil Appeal No. 23 of 1997).

S. Manzar Alam for Respondents (in First Civil Appeal No. 25 of 1997).

Date of hearing: 22nd February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 936 #

2001 Y L R 936

[Karachi]

Before Fail Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

HAMID ALI and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Applications Nos. D/502 of 2000 and 151 of 2001, decided on 24th May, 2001.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss. 302, 365, 511, 457, 148 & 149---Bail, grant of---Eye-witnesses who were not named in the F7.R_ their statements under 5.164, Cr. P. C. were recorded after one month of the registration of FLR. and such inordinate delay remained unexplained---Statement of complainant under S.162, Cr.P.C. was recorded after four days from recording of F.I.R. which was not admissible under the law---Identification test of the accused was held after more than 14 days of their arrest and that delay was not explained by the prosecution when the witnesses were available easily at the place of Vardat---No role had been ascribed to the accused with regard to commission of the offence--Witnesses were obliged to ascribe role to each of the accused which was not done--Accused had been able to make out a prima facie good case for grant of bail and participation of the accused in the alleged offence being the question which could be thrashed out at the time of trial, case of the accused fell within the purview of S. 497(2), Cr. P. C. ---Accused were admitted to bail.

1993 SCMR 550; Mehmood Ahmad v. State 1995 SCMR 127-128 and 1994 SCMR 137 ref.

Asif Ali Abdul Razak Soomro for Applicants

Ali Nawaz Ghanghro for the Complainant.

Altaf Hussain Surahio for Applicant.

Gul Hassan Solangi, Addl. A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 944 #

2001 Y L R 944.

[Karachi]

Before Anwar Zaheer Jamali and Munir-ur-Rehman, JJ

MUHAMMAD YAQOOB and another---Petitioners

versus

'Syed NOOR MUHAMMAD SHAH and 8 others---Respondents

Constitutional Petition No.D-341 and Miscellaneous Application No. 1297 of 2001, decided on 25th May, 2001.

(a) Sindh Local Government Elections Ordinance (V of 2000)---

----S. 14(j)---Disqualification---Where candidate was simply a guarantor and not the borrower, he was not disqualified under the provisions of S. 140) of Sindh Local Government Elections Ordinance, 2000.

(b) Sindh Local Government Elections Ordinance (V of 2000)---

----S. 14(j)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election--Outstanding dues of local council--Nomination papers of the candidate were accepted by Returning Officer while the same were rejected by the District Returning Officer on the ground that the candidate was a defaulter of local council---Candidate had the means to pay the dues but not the intention, however, rejection of his nomination papers compelled him to clear a portion of the dues---Effect---Clearance at such a stage was of no help to the candidate---From the documents executed by the candidate himself, it was clear that the candidate was defaulter within the meaning of S. 14(j) of Sindh Local Government Elections Ordinance, 2000---District Returning Officer had rightly rejected the nomination papers of the candidate in circumstances.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer 1994 SCMR 1299 ref.

Hidayatullah Abbasi for Petitioners.

Muhammad Yousuf Leghari for Respondent No. 1.

Raja Khan for Respondent No.3.

Masood A. Noorani, Addl. A.-G. for Respondents Nos.7 to 9.

Nemo for the Remaining Respondents.

Date of hearing: 24th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 948 #

2001 Y L R 948

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

RAHIM BUX---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.D-12 of 2000, decided on 25th May, 2001.

Control of Narcotic Substances Act (XXV of 1997)___

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 156, 166 & 364---Appreciation of evidence ---F.I.R. was registered by C.I.A. personnel on behalf of the State ---C.I.A. personnel arrested the accused, prepared the Mashirnama of arrest and recovery of narcotic and thereafter, accused were handed over to the concerned Police Station--Material available on record did not show that C.I.A. personnel were made incharge by arty Competent Authority to take cognizance of the case and to investigate the same as required under S.156, Cr. P. C.---Cognizance of case, in circumstances, had been, taken by a wrong and unauthorised person---Station Diary on which the prosecution had relied had not been produced by the prosecution before the Trial Court as the prosecution case depended on the production of said diary, non production of the same had vitiated the trial benefit of which would go to the accused--Evidence of defence witnesses, had not been discussed by the Trial Court--Statement of the accused recorded under S. 342, Cr. P. C. was not signed by the accused nor certificate had been written in the handwriting of the Presiding Officer which was flagrant violation of the mandatory provisions of 5.364, Cr. P.C. ---Conviction and sentence awarded to the accused by the Trial Court were set aside giving him benefit of doubt and he was ordered to be released.

PLD 1997 SC 408; PL J 1997 Criminal Cases 575 (sic); 1998 PCr.LJ 1368; 2001 SCMR 36 and PLJ 1995 Kar.

16 (sic) ref.

Ghulam Muhammad Khan Durani for Appellant.

Gul Hassan Solangi for the State.

Date of hearing: 25th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 955 #

2001 Y L R 955

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

SHEROO---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.D-21 and Confirmation Case No.D-5 of 2000, decided on 17th May, 2001.

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

----Ss. 302/114---Criminal Procedure Code (V of 1898), Ss.342, 537 & 364(2)--Appreciation of evidence---Eye-witnesses including the complainant were not only interested witnesses but were also dishonest witnesses---Complainant had given in the Court a statement not consistent with his statement in the F.I.R.---Motive for the occurrence was not established by the prosecution---Ocular testimony was tainted and was not corroborated by any independent evidence---Statement of accused recorded under S. 342, Cr. P. C. did not meet the legal requirements and this illegality was not curable under S.537, Cr. P. C. being a flagrant violation of the mandatory provisions of S.364(2), Cr.P.C.---Weapon of offence was not recovered from the accused ---Eye witness account suffered from inherent deficiencies and one defective piece of evidence could not corroborate another defective piece of evidence---Investigating Officer had conducted dishonest investigation in the case---Accused was acquitted on benefit of doubt in circumstances.

Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214; Shamir v. Muhammad Afzal and others 1989 SCMR 720; Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Yousif v. The State PLD 1988 Kar. 521 and Tariq Pervez v. State 1995 SCMR 1345 ref.

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

----Ss. 302/114---Appreciation of evidence--Benefit of doubt---Principle---One single circumstance creating reasonable doubt in a prudent mind about the guilt of accused is sufficient for his acquittal as a matter of right and not as a matter of grace.

Habibullah G. Ghori for Appellant.

Gul Hassan Solangi for A.A.-G. for the State.

Date of hearing: 17th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 964 #

2001 Y L R 964

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Zia Perwez, JJ

MANZOOR ALI SOOMRO and others---Appellants

versus

THE STATE---Respondent

Criminal Bail Applications Nos.396, 397, 400, 402, 403 and 418 of 2001, decided on 11th July, 2001.

(a) Interpretation of statutes---

---- Special laws exclude general laws and special provisions in a statute exclude the general provisions contained in the same statute.

(b) Practice and procedure--

---- Criminal trial---Jurisdiction of a Court and taking cognizance by a Court is not one and the same thing and they are to be considered separately.

----Ss. 4, 5 & 10---Criminal Procedure Code (V of 1898), Preamble---Overriding effect of the Suppression of Terrorist Activities (Special Courts) Act, 1975---Fxtent--Provisions contained in the Suppression of Terrorist Activities (Special Courts) Act, 1975, override the provisions contained in the Criminal Procedure Code, 1898, except to the extent of the provisions which are specifically made applicable under the provisions of the said Act itself.

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

----Ss. 497 & 196---Penal Code (XLV of 1860), Ss.123-A/124-A/324/353/147/148/ 149---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss. 4, 5 & 10---Bail---Trial Court had rightly found that S 196, Cr.P.C. was not attracted for taking cognizance of offences under the Suppression of Terrorist Activities (Special Courts) Act, 1975---Notwithstanding seriousness of allegations Trial Court was required to consider the case on merits keeping in view the entire background alongwith the total circumstances and then to decide whether the accused were entitled to bail or not---Record did not show that the gathering of the accused amounted to an unlawful assembly under any law---if some persons had raised slogans against the State it was to be tentatively determined at the bail stage whether every person protesting against the shortage of water would be vicariously liable for irresponsible act on the part of a few persons---Balance was to be struck in the liberty of citizens and the respect and integrity of the State, its sovereignty and maintenance of law and order---Since the Trial Court had not examined the merits of the case, bail matters were remanded with the direction to the Trial Court to decide the same on merits in the light of the observations made by the High Court.

Ghulam Sarwar Korai for Applicants (in Cr. B.A. No.396 of 2001).

Khalid Hussian Shahani for Applicants (in Cr. B.A. No.397 of 2001).

Imdad Ali Awan and Rana Asif Kamal fob- Applicants (in Cr. B.As. Nos.400 and 418 of 2001).

Wali Dino Narejo for Applicants (in Cr. B.As. Nos.402 and 403 of 2001).

Ghulam Dastagir A. Shahani, Addl. A.-G. for the State.

Date of hearing: 11th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 977 #

2001 Y L R 977

[Karachi]

Before Ghulam Rabbani and Munir-ur-Rehman, JJ

RUQAB ALI ---Petitioner

versus

DISTRICT RETURNING OFFICER/A!PPELLATE AUTHORITY, DISTRICT DADU and 3 others--Respondents

Constitutional Petition No.D-371 of 2001 heard on 25th May, 2001.

Sindh Local -Government Elections Rules, 2000---

----R.14(g)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Acceptance of nomination papers of the candidate in service of a Pakistani company, owned by the Federal Government---Record showed that the candidate had admitted before the Returning Officer that he was in the employment of such company and he rejected his nomination papers---District Returning Officer/Appellate Authority allowed the appeal of the candidate against rejection of his nomination papers ---Validity--Candidate being disqualified to contest elections, order of the District Returning Officer/Appellate Authority was set aside by the High Court with the result that order of the Returning Officer rejecting the nomination papers of the candidate held field and was operative.

Khadim Hussain Uner for Petitioner.

Masood A. Noorani, Addl. A.-G. for Respondents Nos. l and 2.

Abdul Sattar Kazi for Respondents Nos. 3 and 4.

Date of hearing: 25th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 980 #

2001 Y L R 980

[Karachi]

Before Muhammad Moosa K. Leghari and Faiz Muhammad Qureshi, JJ.

RAMCHAND and another---Petitioner

versus

III-ADDITIONAL DISTRICT AND SESSIONS JUDGE, LARKANA and 2 others---Respondents

Constitutional Petition No. D-37 of 1996. decided on 31st May, 2001.

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

----O.VII, . R.11---Rejection of plaint--Averments contained in the plaint were presumed to be correct for the purpose of application for rejection of plaint---Provision of cl. (d) of R. 11, O. VII, C. P. C. would be applicable where the suit appeared to be prima facie barred by any law from perusal of statement in the plaint and no further enquiry was needed---Court while taking action for rejection of plaint under O: VII, R.11, C. P. C. could not take into consideration pleas raised by the defendants in the suit in his defence as at that stage the pleas raised by the defendants were only contentions in the proceedings unsupported by any evidence.

PLD 1963 SC 265; PLD 1975 Kar. 26; PLD 1959 Dacca 316; 1973 SCMR 236; PLD 1986 Kar. 94; PLD 1987 SC 145; 1988 CLC 436; PLD 1992 Pesh. 18; 1993 MLD 177; 1997 MLD 2745; 1999 MLD 2844; PLD 1973 Lah. 463; PLD 1983 Kar. 207; PLD 1984 Kar. 34; 1989 CLC 865; 1987 CLC 1746; 1991 SCMR 1944; 1992 SCMR 1199; 1993 CLC 2523; PLD 1967 Dacca 190; PLD 1973 Lah. 878; PLD 1976 Lah, 396; PLD 1977 SC 220; PLD 1977 Kar. 747; 1994 MLD 126; 1994 CLC 1248; 1994 SCMR 826; Muhammad Altaf and others' case 2001 SCMR 953 and Province of Punjab through Chief Secretary v. Malik Ibrahim & Sons and another 2000 SCMR 1172 ref.

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

----Ss. 8, 42, 54 & 55---Civil Procedure Code (V of 1908), O. VII, R.11 & S.11--Constitution of Pakistan (1973), Art. 199'--Constitutional petition---Rejection of plaint--Principles of res judicata---Applicability---. Previous suit as well as the subsequent suit though were in respect of the same property, but previous suit was between one of the respondents and the petitioners while subsequent suit was filed by the petitioners against both the respondents---Relief claimed in the previous suit was to the extent of declaration that the suit premises was gifted to the respondent and that she was true and lawful owner of the same which was declined by the Court while in the subsequent suit petitioners had not sought any declaration with regard to their ownership, but they had filed suit for possession, perpetual, mandatory injunction and compensation against both the respondents---Finding in previous suit would not ipso facto lead to the conclusion that subsequent suit was hit by principles of res judicata without recording the evidence, while deciding application for rejection of plaint under O. VII, R.11, C. P. C.

----S.115---Revisional jurisdiction of High Court---Scope---Appellate Court while appraising and discussing evidence, had considered extraneous material which was uncalled for and had thus travelled beyond its jurisdiction---Order so passed was set aside in revision by the High Court.

Abdul Ghafoor Bhurgari for Petitioners.

Muhammad Bachal Tonyo, Addl, A.-G. for Respondent No. 1.

Moohanlal K. Makhijani for Respondents Nos. 2 and 3, Date of hearing: 30th May, 2,001

YLR 2001 KARACHI HIGH COURT SINDH 985 #

2001 Y L R 985(1)

[Karachi]

Before S. A. Rabbani, J

IFTIKHAR MIRZA through Legal Heirs---Appellant

Versus

Sheikh ABID & CO. (PVT.) LTD. ---Respondent

First Regular Appeal No. 181 of 2000, decided on 11th December, 2000.

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

----S.21---Appeal---Maintainability of--Application for certified copy of order appealed against was filed after ten days of the order and cost was estimated on the next day of filing of the application, but amount as deposited after twenty days and appeal was filed after seventeen days of receipt of the certified copy---Appeal was filed after expiry of prescribed period of thirty days and said delay in filing appeal was tot explained--Appeal was dismissed being barred by time. Ghulam Ghous for Appellant.

Shakir Naqshbandi for Respondent.

Date of hearing: 11th December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 989 #

2001 Y L R 989

[Karachi]

Before Ghulam Rabbani and Attaur Rehman, JJ

GUL MUHAMMAD --- Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos. 100 and 99 of 1996.

Penal Code (XLV of 1860)---

----Ss. 302/34, 324/34 & 353/34--Appreciation of evidence---None of the eyewitnesses had deposed in the Court that the abductee had been killed by any of the accused or that the offence had been abetted by them---Accused had denied in their statements recorded under S.342, Cr. P. C. the confessional statements alleged to have been made by them, which even otherwise were full of irregularities and had no evidentiary value---Identification of the accused, recovery of the fire-arms from them and the medical evidence did not support or even improve the prosecution case with regard to the specific charge levelled against them---No charge under Ss.324 & 353, P. P. C. having been framed against the accused by the Trial Court, they could not be convicted thereunder---Accused were acquitted in ,circumstances.

Qurban Ali Chohan for Appellant (in Criminal Appeal No. 100 of 1996).

Zahoor Ahmed Baloch for Appellant (in Criminal Appeal No.99 of 1996).

Allah Bachayo Soomro for Appellant (in Criminal Appeal No.99 of 1996).

Ali Azhar Tunio, A.A.-G. for the State (in both the Appeals).

YLR 2001 KARACHI HIGH COURT SINDH 994 #

2001 Y L R 994

[Karachi]

Before Fair, Muhammad Qureshi, J

GANHWAR and another---Applicants

versus

THE STATE---Respondent

Miscellaneous Application No. 544 of 2001 in Criminal Appeal No. 47 of 2001, decided on 25th May, 2001

Criminal Procedure Code (V of 1898)---

----S.426---Suspension of sentence---Accused was armed with a "Lathi " and he had not caused any injury to the injured---Accused had been sentenced by the Trial Court to undergo three years' R.1. and his appeal was not likely to be heard soon--Sentence of accused was suspended in circumstances and he was released on bail accordingly.

Muhammad Khan v. The State PLD 1997 SC 1 ref.

Muhammad Daud Baloch for Applicants.

Gal Hassan Solangi for the State.

YLR 2001 KARACHI HIGH COURT SINDH 995 #

2001 Y L R 995

[Karachi]

Before Faiz Muhammad Qureshi, J

AZAD alias TAJ MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. S-7 of 2000, decided on 14th Mays, 2001.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Two eve-witnesses including an injured one, had not been examined by the prosecution whereas another injured witness had not supported the prosecution case---Complainant and other eye-witness were interested witnesses and their evidence was not corroborated either by the injured eye-witness or by any independent source---No recovery was effected from the possession of accused--Motive had been assigned to the co-accused only---Prosecution had failed to examine the independent witnesses of the incident although in a case of capital punishment independent evidence of unimpeachable character was essentially required---Ocular evidence was not only tainted, but was also replete with material contradictions and illegalities---Non-examination of material witnesses by prosecution had vitiated the trial---Accused was acquitted on benefit of doubt in circumstances.

1979 SCMR 214; 1972 SCMR 286; PLD 1988 Kar. 523; Usman Khan and others v. The State PLD 1969 SC 293; Muhammad Amir v. The State 1971 PCr.LJ 944; Ameenullah v. The State PLD 1982 SC 429; Haji Rabnawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25 and Tarique Pervez v. The State 1995 SCMR 1345 ref.

Muhammad Daud Baloch for Appellant.

Muhammd Iqbal Memon for the State.

Muhammad Ayaz Soomro for the Complainant.

Date of hearing: 14th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1007 #

2001 Y L R 1007

[Karachi]

Before Syed Zawwar Hussain Jafferi, J Mst. Syeda ALIA BATUL---Appellant

versus

Dr. SHAKIL RAZA---Respondent

First Regular Appeal No.148 of 2001, decided on 16th May, 2001.

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

----Ss. 15(2)(ii), 19, 21 & 22---Ejectment of tenant on ground of default in payment of rent---Ex parte order----Execution of order--Appeal---Tenant was duly served through various modes including substituted service by way of publication in newspaper, pasting of summons at the outer door of his premises, registered post as well as courier service but the tenant did not appear to contest the ejectment proceedings---On subsequent date when service against the tenant was held good by the Rent Controller, the tenant filed application for adjournment which was accepted, but on various dates of adjournments the tenant having failed to appear, he was debarred from filing written statement and ejectment order was passed against him in view of unrebutted and unchallenged evidence produced by the landlord to prove default of tenant in payment of rent---Tenant instead of filing application for setting aside the ex party order passed against him or filing appeal against ejectment order passed by Rent Controller in time, filed frivolous applications like application under S.12(2), C.P.C. alleging forgery against the landlord which applications were set aside even by Executing Court---Tenant filed appeal after expiry of about four months from the passing of ejectment order against him---Appearance of advocate on behalf ot eh tenant could not be denied by her as no complaint had been filed by her against the advocate to the Bar Council to the effect that said advocate who had given undertaking in Court seeking time to vacate the dismissed premises had not been appointed by her---Tenant who could not deny receipt of legal notice issued by the landlord before filing ejectment petition, and having been served by all possible modes of service, could not plead that he was unaware of the ejectment proceedings against him--Appeal being hopelessly barred by time was dismissed.

Board of Trustees of the Port of Karachi v. Punjab Industrial Development Board 1987 CLC 218; Mirza Farooq Beg v. Muhammad Kashif Kamal Siddiqui 1987 CLC 516; Abdul Sattar v. Ali Ahmed 1985 CLC 25; Muhammad Saddiq and others v. Mst. Ruqaya Khanum and others PLD 2001 Kar. 60; Mst. Mariam Bal Adam Ali v. Mst. Salima Khatoon 1982 CLC 856, Mst. Mariam Bal Adam Ali v. Mst. Alima Khatoon 1982 CLC 1314; Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others PLD 1970 Lah. 6 and Sh. Abdul Karim Kapur v. Sh. Javed Iqbal and others 2001 MLD 226; Abdul Ghaffar v. Mst. Mumtaz PLD 1982 SC 88 and Messrs M.S. Enginerering Co. v. Muhammad Mushtaq 1992 CLC 95 ref.

Gul Zaman Khan for Appellant.

Sarfaraz Khan for Respondent.

Date of hearing: 12th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1017 #

2001 Y L R 1017

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAP IBRAHIM ---Petitioner

versus

S.S.P., KHAIRPUR and others---Respondents

Constitutional Petition No.S-239 of 2001, decided on 17th May, 2001.

Penal Code (XLV of 1860)---

----Ss. 324/147/148/149---Constitution of Pakistan (1973), Art. 199---Constitutional petition- --Registration of F.I.R.---Factum of the injuries sustained by the accused party and registration of F.I.R. against the petitioner party had been suppressed in the Constitutional petition---S.H.O. after having considered the contention of the petitioner had found that the entire story had been fabricated and the incident as alleged by the petitioner had, not taken place---Matter admittedly was still under investigation--Petitioner had got the adequate and efficacious remedy by way of direct complaint as provided in the Code of Criminal Procedure, 1898---Constitutional petition was dismissed in circumstances.

Muhammad Latif v. S.H.O., Police Station Saddar, Dunyapur and 14 others 1993 PCr.LJ 1992; Altaf Hussain v. S.H.O. and 2 others 1993 MLD 2059; Ghulam Qadir v. The State and 2 others 1995 PCr.LJ 1239; Muhammad Afzal v. Muhammad Ashraf and 15 others 1996 PCr. LJ 489; Hamayun Khan and another v. Muhammad Ayub Khan and 4 others 1999 PCr.LJ 1706; Haji Ahmad v. S.S.P., Rahimyar Khan and others 1997 PCr.LJ 2069; Raja Gulzar Ahmed v. Mushtaq Ahmed and 7 others PLD 1998 Lah. 111; Yousif v. The State PLD 1988 Kar. 521; Wazir Ahmad v. S.H.O., Police Station, Mehboob Kalhoro and others 1990 PCr. LJ 2006; Bangul v. Province of Sindh and others C.P.No.S.-1164 of 2000; Altaf Hussain v. Government of Sindh through Home Secretary, Government of Sindh, Karachi and another PLD 1997 Kar. 600; Mst. Qamar v. S.H.O., Police Station, Phuleli, Hyderabad 1997 PCr.LJ 752 and Shahbaz Ali Chandio v. S.H.O., Police Station, Ghaibidero and others 1999 PCr.LJ 1670 ref.

Abdul Fatah Malik for Petitioner.

Imdad Ali Awan for the Proposed Accused.

Ghulam Dastagir A. Shahani, Addl. A.-G. for the State.

Date of hearing: 14th May, 2001 .

YLR 2001 KARACHI HIGH COURT SINDH 1021 #

2001 Y L R 1021

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

SUBHAN SHAH and others---Appellants

versus

THE STATE and others---Respondents

Criminal Jail Appeals Nos.D-52 to D-54 and Confirmation Cases Nos.4 to 6 of 1994, decided on 23rd May, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/34 & 307/34---Appreciation of evidence---Evidence of eye-witnesses inspired confidence which was fully supported by other prosecution witnesses---Accused had failed to take any defence in the Trial Court--Prosecution had proved its case against accused beyond reasonable doubt---All the accused were real brothers and their fourth brother had already expired with the result that no male member was left in their family which was a mitigating circumstance in their favour---Convictions of accused were upheld accordingly, but sentence of death awarded to each of them was reduced to imprisonment for life in circumstances

Muhammad Akram Jhamat for Appellants (in Criminal Jail Appeals Nos. D-52 to D-54 of 2001).

Altaf Hussain Surahio for the State (in Criminal Jail Appeals Nos.D-52 to D-54 of 2001).

Date of hearing: 23rd May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1027 #

2001 Y L R 1027

[Karachi]

Before Faiz Muhammad Qureshi, J

ALI BUX and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.S-9 of 2000, decided on 28th May, 2001.

(a) Penal Code (XLV of 1860)

----S. 365-A/34 ---Appreciation of evidence--Prosecution had failed to examine the material witness in the Court through whom ransom had been paid to the dacoits and no explanation was furnished for such default-- No question was put to the accused in their statements recorded under S. 342, Cr. P. C. that they had released the kidnappee after receiving the ransom through the aforesaid witness---Victim in his statement did not say that he had identified the accused in the identification parade, nor did he during identification parade assign any role to the accused played by them during the commission of the offence---Even the identification parade was held after an unexplained delay of six days through the Assistant Mukhtiarkar who was not competent to hold the same---Complainant did not promptly report the matter to the police about the commission of such a serious offence but he did so after the recovery of the victim which had made his conduct questionable-- Accused were extended the benefit of doubt and acquitted in circumstances.

1969 SCMR 777; 1995 SCMR 1374 PLD 1996 Kar. 246 and 1995 SCMR 1345 ref.

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

S. 365-A/34---Appreciation o/evidence-Benefit of doubt, extension of---One single circumstance favouring the accused is enough to giving benefit of doubt to hint not as a matter of grace but as a matter of right.

1995 SCMR 1345 ref.

Benefit of doubt---One single circumstance/favouring the accused is enough for giving benefit of doubt to him not as a matter of dace but as a matter of right.

1995 SCMR 1345 ref.

Ali Nawaz Ghanghro and Inayatullah \Iorio for Appellants.

Abdul Fattah Mughul for the State.

Habibullah Ghori for the Complainant.

Date of hearing: 28th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1039 #

2001 Y L R 1039

[Karachi]

Before Faiz Muhammad Qureshi, J

ALLAH BUX through Legal Heirs---Applicant

versus

GHULAM HUSSAIN and 4 others---Respondents

Civil Revision No.8 of 1998, decided on 22nd May, 2001.

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

----O.XLI, R.31---Judgment passed by Appellate Court, whether violative of O.XLI, R. 31---Where the Appellate Court has taken into consideration all issues involved in the matter, there is no violation of the provisions of O. XI,I, R. 31, C. P. C.

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

----S. 10(4)---Possession---Proof---Mere production of land revenue receipts is no proof of being in possession of suit land until and unless it is shown in Khasra Girdawari that the land is actually cultivated.

----S.10(2)---Civil Procedure Code (V of 1908), S.9---Grant of land---Order passed by Authorities---Validity---Jurisdiction of Civil Court---Scope---Grant of land, is matter of Authority under Colonization of Government Lands (Punjab) Act, 1912, to adjudicate, as Special Tribunal and jurisdiction of Civil Court is ousted---Jurisdiction of Civil Court is though barred under S. 9, C. P. C. , yet where the orders passed by Authorities under the provisions of Colonization of Government Lands (Punjab) Act, 1912, are not within jurisdiction and the same are found to be wrong, only then the. Civil Court has jurisdiction in the matter.

PLD 1963 Kar. 215 and 1984 SCMR 504 ref.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact by the Courts below---Exercise of revisional power by High Court ---Principles--Interference with concurrent findings of fact by High Court is very limited---High Court while examining legality of judgment and decree in exercise of its power under S. 115, C. P. C. cannot upset finding of fact on reappraisal of evidence and taking different view of evidence, however erroneous such finding may be---Where Courts below had either misread evidence on record while assessing or evaluating the evidence had omitted torn' consideration some important piece of evidence which had direct bearing on issues involved in the case, only then finding old fact can be interfered with be High Court under S. 115, C. P.C. ----Findings of facts are also Open to interference under 5.115, C. P. C. , where approach of Courts below to evidence is perverse.

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

----S.115---Revision---Concurrent findings of fact by the Courts below---Reassessment of evidence by High Court in exercise of revisional jurisdiction---Validity---Where High Court reassessed entire evidence on record cool then discarded conclusion of Courts below on account of being inconsistent with its own assessment of evidence, such process of examination of upsetting concurrent finding of fact in exercise of revisional jurisdiction was not permissible by law---Wrong or erroneous conclusion on question of fact by Courts below was not open to interference by High Court in its revisional jurisdiction.

1997 SCMR 1139 and 1975 SCMR 471 ref.

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

----S.10(2)---Civil Procedure Code (V of I 908), S. I l5 & O. XLI, R. 3l ---Grant of Government land---Concurrent findings of fact by the Courts below---Jurisdiction of Civil Court---Order passed by the Authorities regarding declaration of grant in favour of the defendant was assailed by plaintiff in civil suit and Trial Court dismissed the same judgment and decree passed by the Trial Court was maintained by. Appellate Court--Contention of the plaintiff before High Court in revision was that the judgment passed by the Appellate Court was in violation of the provisions of O. XLI, R. 31, C.P.C.--Validity---Where the material points involved in the case were discussed by the Appellate Court and there was no misreading of evidence in the findings of the Courts below and the Trial Court had no jurisdiction in the matter, the judgment passed by the Appellate Court was not in violation of O.XLI, R.31, C. P. C.---High Court declined to interfere with the judgments passed by the Courts below as question of fact was involved in the matter which could not be taken into consideration at revisional stage.

1991 CLC 1795; PLD 1989 SC 568; 1968 SCMR 464; PLD 1999 Kar. 354; 1987 SCMR 1149; 1991 SCMR 1816; 1985 SCMR 1650; 1986 SCMR 233; 1982 CLC 55; 1983 SCMR 726; PLD 1986 Kar. 315; PLD 1974 SC 139 and 1978 SCMR 167 ref.

Ghulam Sarwar Abbasi for Applicant.

Mohan Lal for Respondents.

Date of hearing: 22nd May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1045 #

2001 Y L R 1045

[Karachi]

Before Faiz Muhammad Qureshi, J

AKHTAR ALI KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos.495 and 742 of 2001, decided on 17th July, 2001.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 498---Penal Code (XLV of 1860), Ss.324, 365, 147, 148 & 149---Bail, grant of---Confirmation of interim bail--Counter-cases were filed by the parties against each other and the question as to who was the aggressor and who was the victim of aggression could be considered by the Trial Court at the time of the trial--Case was covered for the grant of bail on the ground of further inquiry as contemplated under S. 497(2), Cr. P. C. --Accused having made out prima facie case for grant of bail, interim bail granted to one of the accused was confirmed while the other who was in custody was granted bail.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Mst. Shafiqan v. Hashim Ali and another 1972 SCMR 682; Shahzaman and 2 others v. The State and another PLD 1994 SC 65; Nadir and 2 others v. The State 1985 PCr.LJ 247 and The State v. Aziz alias Abdul Aziz PLD 1985 Kan 27 ref.

Shoukat Zubedi for Applicant (in Criminal Bail Applications Nos.495 and 742 of 2001).

Shahadat Awan for the Complainant (in Criminal Bail Applications Nos.495 and 742 of 2001).

Javed Chhatari for the Injured Respondent.

Arshad Lodhi, Asstt. A.-.G. for the State

Ghulam Hussain (injured) in person.

YLR 2001 KARACHI HIGH COURT SINDH 1049 #

2001 Y L R 1049

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

SIDDIQUE and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.89 of 2000, heard on 6th April, 2001.

Penal Code (XLV of 1860)---

----Ss.302/34 & 337-A(i), 337-F(i) [as added by Criminal Law (Second Amendment) Ordinance (VII of 1990)]---Appreciation of evidence---Accused were charged under S. 302/34, P. P. C. but were convicted and sentenced under Ss.337-A(i) & 337-F(i), P.P.C.---Validity---Sections 337-A(i) & 337-F(i), P. P. C. had not been enacted on the day of incident and were subsequently added to the Penal Code by Criminal Law (Second Amendment) Ordinance, 1990---Conviction and sentence awarded to the accused under Ss.337-A(i) & 337-F(i), P.P.C. were without lawful authority---Trial Court had not evaluated legal position as well as the evidence of the defence witness and had not extended the benefit under 5.382-B, Cr. P. C. to the accused while passing order of conviction---Accused were declared innocent by the Investigating Officer and the Trial Court had observed that capital charge against the accused under S.302, P. P. C. was not proved---Intention to cause death or the knowledge that the death was likely to be caused had to be established and it was merely presumed by the Trial Court that the accused intended to cause death while inflicting Lathi blows at the time of the incident---All such grounds required re-examination---Conviction and sentence awarded to the accused were set aside and case was remanded to be decided afresh in accordance with law after affording due hearing to the accused.

Mushtaq Hussain Shah for Appellants.

G.A Shahani, A.A.-G. for the State.

Date of hearing: 6th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1054 #

2001 Y L R 1054

[Karachi]

Before S. Ali Aslam Jafri, J

MUSHTAQ AHMAD---Petitioner

versus

Messrs SANA TEXTILE (PVT.) LIMITED and 4 others---Respondents

Judicial Miscellaneous Nos. 37 and 38 of 1998, decided on 28th May, 2001.

(a) Companies Ordinance (XLVII of 1984)---

----Ss.305 & 306---Winding-up of company --Principles enlisted.

Following are the principles regarding winding-up of a company:--

(i) Winding-up proceedings are not a substitute for suit to recover a debt.

(ii) Expression "unable" does not necessarily mean "unwilling" while word "debt" refers to all creditors as a class.

(iii) Basic object of scrutiny in "winding-up proceedings" is to ascertain solvency or insolvency of a Company and not to investigate into truth or otherwise into claims of creditors.

(iv) Winding-up proceedings tiled with intention to pressurize the Company to settle disputed debts amount to abuse of process of law.

(v) Presumption arising under sections 305 and 306 of the Companies Ordinance, 1984, that a Company is unable to pay its debts would not arise in the event of bona fide dispute as to its liability.

(vi) Where liability to pay debt was not denied but allegations of mala fides were raised against the petitioner, heavy burden lay on the Company to establish the allegations.

(vii) Any debt which cannot be disputed on legitimate and bona fide grounds, in the event of inability to pay, would furnish a valid ground for winding-up.

National Development Finance Corporation v. Fazal Sugar Mills Limited 1993 CLC 642 and Muzaffar Abbas Malik and 2 others v. Messrs Pakistan P.V.C. Limited PLD 1998 Kar. 71 rel.

(b) West Pakistan Money-Lenders' Ordinance (XXVI of 1960)---

----S.2(m)---"Creditor" and "moneylender "---Distinction---Every transaction relating to lending of money would not make the lender a money-lender within the meanings of the West Pakistan Money Lenders' Ordinance, 1960---Money-lender is a person who indulges in the business of advancing loans ---Sufficient evidence is required to prove a creditor as "moneylender".

Syed Mubarak Ali v. Inayat Hussain and another PLD 1980 Kar. 254 ref.

(e) Companies Ordinance (XLVII of 1984)---

----Ss.305 & 306---Winding-up of company--Requirements---Petitioner simply being a creditor whether could seek winding-up of a company---Abuse of winding-up proceedings--Scope---Out of various requirements of law the most important requirement for winding-up of a company is that the company should be "unable" to pay rather than being "unwilling" to pay the debt---Proceedings for winding-up should not be a substitute for a suit to recover the debt, and the purpose of filing the same should not be to pressurize the company to settle disputed debts which act on the part of any petitioner in winding up proceedings has been considered to be abuse of the process of law---Necessary that debt should be an "undisputed debt"--Demand and failure to pay a debt which is not otherwise payable does not amount to an "inability " to pay the debt and, therefore, cannot support an application for winding-up brought on such ground.

AIR 1936 Cal. 628 ref.

(d) Companies Ordinance (XLVII of 1984)---

----Ss.305 & 306---Winding-up of company--Time-barred proceedings---Effect---Where on the date of application for winding-up of a company, the claim of petitioner/creditor against the company, is time-barred, the petition based on the notice of demand for payment and failure to comply with the same is not maintainable.

AIR 1964 Mad. 191 ref.

(e) Companies Ordinance (XLVII of 1984)---

----Ss.305, 309, 327 & 414---Winding-up of company---Outstanding debt---Claim of--Petitioner filed the petition on the ground that the company had failed to pay the debts--Company disputed the debt and denied the claim of the petitioner---Effect---Where there was mere unwillingness to pay the debts, the normal remedy was a suit for recovery of the amount---Debt should be undisputed---In proceedings for winding-up of company amount of debt was not undisputed and the claim was time-barred as well---High Court declined to wind up the company in circumstances.

Arshad Tanweer, Chairman SITE Association of Industry, Awan-e-Sanat, Karachi and another v. SITE, Karachi and 28 others 1997 CLC 456 and Mulla Abdullahbhai and 9 others v. Saria Rope Mills Limited PLD 1971 Kar. 597 ref.

Raja Sher Muhammad for Petitioner.

A. R. Akhtar for Respondents Nos. 1 to 3.

Date of hearing: 7th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1066 #

2001 Y L R 1066

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

ABDUL KHALIQUE---Petitioner

versus

EXECUTIVE ENGINEER, NORTH DADU DRAINAGE DIVISION IRRIGATION, LARKANA and another---Respondents

Constitutional Petition No. 136 and Miscellaneous Application No.217 of 2001, decided on 10th May, 2001.

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

----Art.l99(1)(a) & (1)(c)---Constitutional petition---Locus standi--- Constitutional petition under the provisions of Art. l99(l)(a) & (1) (c) of the Constitution can be filed by an

"aggrieved party "---Such petition can be filed for performance of a legal duty against the functionaries of the State.

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

----Art.l99---Constitutional petition ---Maintainability---Contractual obligation---Where the petition relates to contractual obligations, the same is beyond the scope of Art. 199 of the Constitution---Enforcement of contractual liability through Constitutional jurisdiction was not permissible.

PLD 1958 SC 267; PLD 1962 SC 108; 2001 MLD 69 and 2000 SCMR 117 ref.

----Art. 199---Constitutional petition ---Maintainability---Contractual obligation ---Alternate remedy ---Effect---Petitioner through the Constitutional petition claimed some amount of money which was outstanding against the respondents/Authorities--Validity---Where the petitioner had an alternate remedy by filing a suit for recovery against the respondents/ Authorities, the petition was not maintainable---Constitutional petition was dismissed accordingly.

Muhammad Hisamuddin Ansari v. Chief Secretary, Sindh and 8 others 1990 CLC 1766; Rehan Hassan Naqvi v. Pakistan Defence Officers' Housing Authority 2000 CLC 1535; Qamaruddin Soomro v. Administrator, Municipal Committee, Ratodero and 4 others 2000 CLC 633; Messrs Murad Ali & Co.'s case 1999 SCMR 121; Messrs Gold Star's case 2000 MLD 526 and Central Cotton Mills's case 1998 SCMR 2352 ref.

Ghulam Sarwar Abbasi for Petitioner.

Date of hearing: 10th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1069 #

2001 Y L R 1069

[Karachi]

Before Zia Perwez, J

YOUSAF HABIB and 9 others---Plaintiffs

versus

HABIB BANK LIMITED---Defendant

Suit No.243 and Civil Miscellaneous Applications Nos. 8286 of 1999 and 1883 of 2000, decided on 22nd May, 2001.

Civil Procedure Code (V of 1908)---

----O. VII, R. 18---Qanun-e-Shahadat (10 of 1984), Art.85---Document available on file--Admissibility---Delay in filing the documents, copies of which were already on file--Objection was raised to the admissibility of such documents---Validity---Documents to be filed were public documents under the provisions of Art.85(3) of the Qanun-eShahadat, 1984---Case was to be considered on the merits and delay by itself was not a ground for refusal particularly when convincing material was available on record to justify bona fide error-- Mere technicalities should not be the basis for debarring the plaintiffs as law always favoured decision of case on merits and in appropriate cases the provisions of O. VII, R.18, C. P. C. were to be liberally construed to meet the ends of justice---High Court allowed the plaintiff to file the documents in circumstances.

United Bank Limited v. Shabbir Ahmed Abbasi PLD 1981 Kar. 255; Hamidullah v. The State 1988 SCMR 1818; Mahmood Ali Butt " v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823; Salima Begum and 4 others v. Mst. Sardaran Bibi and 4 others PLD 1995 SC 406; Jameel Ahmed v. Saifuddin 1997 SCMR 260; Zahoor Ahmed v. Mehra through Legal Heirs and others 1999 SCMR 105; Abdul Razzaq v. Messr Pfizer Laboratories Ltd. 1988 CLC 778 and Asif Ali Zardari v. Mian Muhammad Nawaz Sharif and 4 others 1997 MLD 1852 ref.

Muhammad Ali Sayeed for Plaintiffs.

Salman Hamid for Defendant.

Date of hearing: 22nd May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1071 #

2001 Y L R 1071

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

WAHID alias FARHAN---Appellant

versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos. 165 and 166 of 1999, heard on 3rd March, 2000.

Penal Code (XLV of 1860)---

----S. 392/34---Anti-Terrorism Act (XXVII of 1997), Ss. 7-A & 7-B---Sentence---Reduction in---Offence alleged against the accused wa, of vehicle-snatching which under S.7-B of Anti-Terrorism Act, 1997 was punishable with 7 years' R.I. and fine---Sentence awarded to the accused under 5.392/34, P. P. C. for 10 years was reduced to 7 years' R.I. ---Benefit of S.382-B, Cr. P. C. was also extended to the accused.

Shahadat Awan for Appellant (in S.A.T.A. No. 165 of 1999).

Hassan Jaffer Rizvi for Appellant (in S.A.T.A. No. 166 of 1999).

Syed Jalil A. Hashmi Asstt. A.-G. for the State.

Date of hearing: 3rd March, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 1073 #

2001 Y L R 1073

[Karachi]

Before Amanullah Abbasi, J

ALLAH DINO ---Applicant

versus

THE STATE--Respondent

Criminal Bail Application No. 143 of 2000, decided on 30th March, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/147/148/149---Bail, grant of---Name of the accused though was mentioned in the. F. I. R., but specific part was assigned to the co-accused---No specific allegation to the effect that the accused had fired or he caused any injury to any one was available on. the record---Accused though was stated to be present with a gun, but no injury was attributed to him---Case was three years old--Possibility existed that the accused was involved in the case because of previous enmity---Case against the accused requiring further inquiry, he was granted bail.

Abdul Mujeeb Pirzada and Syed Khalid Shah for Applicant.

Habib-ur-Rasheed for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1081 #

2001 Y L R 1081

[Karachi]

Before Ghulam Nabi Soomro and Atta-ur-Rehman, JJ

DUR MUHAMMAD alias

DUR JAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1546 of 1997 and Miscellaneous Application No.146 of 2001, decided on 10th April, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 498, 499 & 502---Control of Narcotic Substances Act (XXV of 1997), S.9(b)-- Grant of protective bail---Death of the accused---Return of surety documents-- Accused who was granted protective bail for a limited period having died the documents furnished by the surety were no more required to be retained ---Nazir of the Court was directed to return the surety documents to the applicant who stood surety for the accused.

Nisho Khan for Applicant.

Habib Ahmed, A.A.-G.

YLR 2001 KARACHI HIGH COURT SINDH 1082 #

2001 Y L R 1082

[Karachi]

Before Amanullah Abbasi, J

GHULAM MUSTAFA and 2 others---Appellants

versus

THE STATE---Respondent

Miscellaneous Application No. 100 of 1998 in Criminal Appeal No.31 of 1996, decided on 23rd February, 1998.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)---Penal Code (XLV of 1860), S.302/34---Suspension of sentence ---Counter cases between the parties and both parties suffered injuries---More than two years had passed, but the appeal halt not been decided---Sentence of life imprisonment of the accused persons was suspended and they were released on bail.

Syed Khalid Shah for Appellants.

Aziz-ur-Rehman Shaikh for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1083 #

2001 Y L R 1083

[Karachi]

Before Amanullah Abbasi, J

GUL HASSAN and 6 others---Appellants

versus

THE STATE---Respondent

Miscellaneous Application No.716 of 1998 in Criminal Appeal No.62 of. 1998, decided on 25th August, 1998.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)---Penal Code (XLV of 1860), Ss. 302/307/323/324/148/149---Suspension of sentence---Medical Officer had stated that on external examination he found only one incised injury on the person of the deceased--Incident had taken place while settlement talks were being arranged between the parties and during the talk there was quarrel and the incident had taken place on the spur of the moment about nine years back---Accused were on bail during trial proceedings and the question whether each one was liable to the extent of his own act or each one was vicariously liable, required examination--Sentence of the accused was suspended in circumstances.

Syed Khalil Shah for Appellants.

Muhammad Ismail Memon for A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1084 #

2001 Y L R 1084

[Karachi]

Before Amanullah Abbasi, J

MUHAMMAD SALEEM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.40 and Miscellaneous Application No.47 of 1999, heard on 18th January, 1999.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (It2V of 1860), Ss.379/411---Bail, grant of---Accused returned watches which he had purchased as soon as he came to know that those were stolen ones---Accused was not involved in the theft of the watches, but he had only purchased from the persons who had committed theft---Accused was granted bail in circumstances.

Fazal Mehmood Sherwani for Applicant.

Sharafat Ali Khan for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1088 #

2001 Y L R 1088

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

Dr. INSAF AHMED ---Petitioner

versus

MEDICAL SUPERINTENDENT, C.M.C. HOSPITAL, LARKANA and 4 others---Respondents

Constitutional Petition No. D-225 and Miscellaneous Applications Nos.367 and 368 of 2001, decided on 10th May, 2001.

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

----Art. 199---Constitutional petition---Locus standi---Only a person whose rights have been infringed can file a petition under the provisions of Art.199 of the Constitution except a writ of habeas corpus and a writ of quo warranto which can be invoked by any person---Application under Art.199(I)(a) & (1)(c) of the Constitution can be moved by any aggrieved person.

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

----Art.199---Expression 'aggrieved person'--Connotation---Pre-conditions for a person to be an 'aggrieved person'---Person aggrieved must be a man who has suffered a legal grievance; man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something which he has a right to demand or wrongfully affected his title in something---Person in order to be considered an 'aggrieved person' within the meaning of Art.199 of the Constitution, must show that his legal rights have been violated or that he has been deprived of the Fundamental Rights guaranteed under the Constitution or that he seeks performance of the legal duty by the State functionaries and that non-performance of the duty is to result in loss of some personal benefit or advantage or the curtailment of a privilege.

----Art.199---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Constitutional petition--- Maintainability--- Filing of Constitutional petition during pendency of civil suit on the same subject-matter--Dispute was with regard to handing over of the official accommodation allotted to the petitioner by his department---Petitioner had filed the Constitutional petition after he failed to obtain the orders of interim injunction from the Civil Court on the same cause of action---Validity---Where the civil suit was still pending adjudication in Civil Court, the petitioner could not seek two remedies simultaneously viz. by filing civil suit and by filing a Constitutional petition--Constitutional jurisdiction was an extraordinary jurisdiction and neither the same could be exercised to perpetuate the ill-gotten benefit nor it could be invoked as an alternate or additional remedy---Licence or allotment of the accommodation by the Government, could not create a legal right or could be termed to be a vested right to bring the petitioner within the expression of an "aggrieved person" as contemplated under Art.199 of the Constitution---Petitioner had not come to High Court with clean hands, he had suppressed the material facts and had no locus-standi to maintain the petition---Constitutional petition was dismissed in limine.

Muhammad Ayaz Soomro for Petitioner.

YLR 2001 KARACHI HIGH COURT SINDH 1097 #

2001 Y L R 1097

[Karachi]

Before Sabihuddin Ahmed and Mushir Alam, JJ

Mst. TAJ BIBI---Petitioner

versus

GOVERNMENT OF PROVINCE OF SINDH and 2 others---Respondents

Constitutional Petition No. D-1096 and Miscellaneous Applications Nos.3311, 3313, 3314 and 3108 of 2000, decided on 8th August, 2000.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S.3--Preventive detention---Non furnishing grounds of detention to the detenu---Effect--When grounds of detention were not furnished to the detenu "as soon as may be" in terms of S:3 of West Pakistan Maintenance of Public Order Ordinance, 1960, the detention order would be liable to be struck down on that ground alone---Only ground stated in the detention order was that "the accused was notorious criminal having been involved in many criminal cases and being at large is a live threat to the public peace and tranquillity of the District "---Such could hardly be treated as a valid ground for ordering preventive detention of the detenu---Continued detention of the detenu even after the expiry of the detention order without even a semblance of legal authority would amount to gross abuse of power affecting liberty of citizens--Detenu was ordered to be released forthwith.

Salima Nasiruddin for Petitioner.

Ainuddiin Khan, Addl. A.-G., Sindh

YLR 2001 KARACHI HIGH COURT SINDH 1099 #

2001 Y L R 1099(2)

[Karachi]

Before Muhammad Moosa K. Leghari, J

SANHARO alias ABDUL KHALIQUE and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-257 and Miscellaneous Applications Nos.433 and 434 of 2001, decided on 7th May, 2001.

Original Procedure Code (V of 1898)--

----S.497---Penal Code (XLV of 1860), Ss.324, 334, 147 & 148---Bail, grant of--Enmity existed between the complainant party and the accused persons---Injured sustained fire arm injuries whereas the accused were allegedly armed with Lathi---Allegation had specifically been levelled against the co-accused for causing fire-arm injuries--Accused persons who were 14 M number belonged to the same family which itself was sufficient to believe that they had been falsely implicated---Accused were liable to the punishment for the role which they played during the commission of the crime---Accused had not partaken in causing injuries though they were allegedly armed with Lathies which they had not used---Case being of further inquiry, accused were entitled to the concession of bail.

Attaullah and others' case 1999 SCMR 1320; Mumtaz Hussain v. The State 1996 SCMR 1125 and Muhammad Ayoob's case 1987 SCMR 1906 ref.

Saeed Ahmed Bijarani for Applicants.

Muhammad Ismail Bhutto for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1115 #

2001 Y L R 1115

[Karachi]

Before Anwar Mansoor Khan, J

Messrs GLOBAL VENTURE LTD. ---Plaintiff

versus

m. v. RIO G. and 2 others---Defendants

Admiralty Suit No.8 of 2001, decided on 22nd March, 2001.

Admiralty Jurisdiction of the High Courts Ordinance (XLII of 1980)---

----Ss.3(2)(1) & 4---Action in rem against the vessel---Suit for recovery of money in respect of necessities supplied to the ship---Plaintiff had supplied three bunkers of marine fuel to the ship docked at the outer anchorage in the Harbour---Action in rem had been claimed against the said ship--Validity---Ship was ordered to be arrested by service upon the master of the ship through the bailiff of the Court---Bailiff had reported that name of the ship had been changed recently---Effect---Ship even if was sold or its name was changed, any dues payable by the vessel or by the owners of the said vessel, the ship would be liable to be arrested---Notice was ordered to be issued to the Dock Master, Marine Security Agencies and to all concerned Authorities to see that vessel could not leave the territorial limits of Pakistan---Vessel could be released upon furnishing a Bank guarantee or tangible security for payment of dues.

Saeeduddin Nasir for Plaintiff.

YLR 2001 KARACHI HIGH COURT SINDH 1116 #

2001 Y L R 1116

[Karachi]

Before Muhammad Moosa K. Leghari, J

PORT QASIM AUTHORITY and another---Applicants

versus

MISTLE-2 CORPORATION---Respondent

Civil Revision Application No.255 of 1998, decided on 6th April, 2001.

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

----S.24-A---Appearance of parties on transfer of case ---Administrative order---Duty of Courts discussed---On account of transfer of case by administrative order, the original Court is required to keep a note of particulars of the case and of the transferee Court, so that when the parties appear, they should be intimated of the order of transfer---Where the case is transferred on the administrative order, it is obligatory on the original Court to direct the parties to appear before the transferee Court.

PLJ 1987 SC 15 ref.

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

---O.V. R.20---Substituted service---Resort to--- Pre-conditions--- Scope--- Unless all efforts to effect the service in the ordinary manner are verified to have been failed, substituted service cannot be resorted to.

Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 and Haji Akbar and others v. Gul Baran and 7 others 1996 SCMR 1703 ref.

----S. 24-A & O. V, R. 20---Case, transfer of--Failure to effect service by the modes prescribed by C. P.C. ---Substituted service, use of---Dispute was with regard to issue of process against the defendant---Case was transferred by administrative order from one Court to another Court and the transferee Court, instead of issuing the process through ordinary mode, issued the publication in Press---Validity---Where the orders for substituted service were passed without ascertaining the reasons for non-service and without verifying the factum as to whether all other modes of service were exhausted and were rendered futile, same were passed in a mechanical fashion and without proper application of mind---Such substituted service was in violation of the law and the rule laid down by superior Courts, and the same was not a valid service.

(d) Maxim---

---- Law favours vigilant and not indolent--Connotation---Party knocking the door of the Court is expected to be diligent and vigilant to keep track of proceedings and not to wait for notice of the Court.

Abdul Hamid and 3 others v. Syed Abdul Qadir and others PLD 2001 SC 49 ref.

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

----O.IX, R.6---Ex parse proceedings--Interest of defendant---Duty of Court---Where ex parte proceedings are taken, it is the duty of the Court to consider the interest of the absent defendant, and the record should bear the indication that the matter has been properly considered and the Court applied its mind to the facts of the case.

Amar Nath's case 15 WR 503 and Deo Nandan v. Janki Singh 44 Ca1.573 (PC) ref.

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

----O.IX, R.13---Ex parte decree, setting aside of---Service through Press publication ---Case was transferred by administrative order from one Court to the other--Transferee Court issued Press publication and passed an ex parse decree against the defendant---Application moved by the defendant under Off, R.13, C. P. C. was dismissed on the ground that the Court motion notice was published, and that it was obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case had been transferred--Validity---Where proceeding with the suit the Trial Court had committed errors and illegalities and judgment was passed in arbitrary and fanciful manner, the same resulted in miscarriage of justice---Judgment and decree being perverse had resulted in injustice and the same was not sustainable--High Court allowed application under Off, R.13, C. P. C. moved by the defendants, and the judgment and decree passed by the Trial Court were set aside.

1996 SCMR 596; 1991 CLC 291; PLD 1988 Pesh. 33; PLD 1985 Lah.327; PLD 1995 SC 396 and Yousuf Ali's case PLD 1958 SC (Pak.) 104 ref.

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

----O.IX, R.13---Ex pane decree, setting aside of---Award of cost---Where applicants had been guilty of gross negligence, High Court had set aside the ex pane decree subject to deposit of Rs.25, 000 as costs payable to the plaintiff in circumstances.

Arif Khan for Applicants.

Z. A. Malik for Respondent.

Date of hearing: 13th February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1123 #

2001 Y L R 1123

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

IRSHAD AHMED MALIK ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.D-88 of 2000, decided on 23rd May, 2001.

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

---S.103---Search to be made in presence of witnesses---Association of one public witness with the recovery proceedings is not sufficient to fulfil the mandatory requirements of 5.103, Cr. P. C. and such legal infirmity per se would vitiate the search proceedings.

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

----S.9(b)---Appreciation of evidence--Mashirs of recovery of heroin from the accused were policemen and no effort was made by the police party to associate two respectable Mashirs with the recovery proceedings on receiving secret information--No fake customer had been sent by the police to, the pointed place in order to ascertain whether the accused was selling heroin or not, which was illegal--Prosecution had not proved on record the relevant entry in the police diary regarding departure of the raiding party from the police station for conducting raid on the accused which had cut at the root of the prosecution case---F.I.R. was in conflict with the Chemical Examiner's Report with regard to the quantity of the heroin---Prosecution case was replete with illegalities and material contradictions---Accused was extended the benefit of doubt and acquitted in circumstances.

Muhammad Mansha v. The State 1995 SCMR 1414; Javed Akhtar alias Yaseen v. The State 1990 PCr.LJ 445; 1997 MLD 1632; 1998 PCr.LJ 1368 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

A.wan Rehmatullah for Appellant. Altaf Hussain Surahio for the State. Date of hearing: 23rd May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1127 #

2001 Y L R 1127

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Afzal Soomro, JJ

SUBHAN SHAH and others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.876, 877 and 878 of 2001, decided on 5th July, 2001.

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

----Ss.561-A & 382-B---Inherent jurisdiction of High Court---Extension of benefit of S. 382-B, Cr. P. C. after decision of case--Where High Court fails to advert to the provisions of S. 382-B, Cr. P. C. at the time of disposal of the appeal, it can under S.561-A, Cr. P. C. subsequently extend its benefit to the accused in order to secure the ends of justice---[Criminal Miscellaneous Application No.15 of 2001, decided on 17th May, 2001 overruled].

Ghulam Murtaza v. The State PLD 1998 SC 152; Liaqat Ali v. The State PLD 1995 SC 485; Saleh'v. Superintendent Central Prison, Hyderabad PLD 1982 Kar. 542; Fazal-i-Haq v. The State PLD 1982 Lah.452; Ismail v. The State NLR 1983 Criminal 610 (Lahore); Akber Khan v. The State 1991 PCr.LJ 845; Hakim Khan v. The State 1994 PCr.LJ 873; Khalil Ahmed v. The State 1994 MLD 1739; Sabir Khan v. The State 1994 PCr.LJ 438;. Amir Bux v. The State 1995 MLD 610; Muhammad Saleem v. The State PLJ 1996 Cr.C. 2087; Jiwan Khan v. The State 1998 PCr.LJ 1797; Muhammad Ahmed v. The State PLJ 1998 Cr.C. (Lah.) 1741; Bashir v. The State PLD 1991 SC 1145; Sri Ram and another v. Emperor AIR 1948 All. 106; Gulzar Hasan Shah v. Ghulam Murtaza PLD 1970 SC 335; Amiruddin v. State PLD 1977 SC 602; Zulfiqar Ali v. State PLD 1984 Lah. 461 and Crown v. Habibullah PLD 1952 Lah. 587 ref.

Criminal Miscellaneous Application No. 15 of 2001, decided on 17th May, 2001 overruled.

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

----Ss. 382-B & 561-A---Penal Code (XLV of 1860), Ss.302/34 & 307/34---Extension of benefit of S.382-B---All the three accused in the case were real brothers whose sentence of death had already been altered to imprisonment for life by the High Court--Fourth brother of the accused had died and no male member had been left in their family---Benefit of 5.382-B, Cr. P. C. was extended to the accused in circumstances with the direction that their sentences shall run concurrently---(Criminal Miscellaneous Application No.15 of 2001, decided on 17th May, 2001 overruled).

Ghulam Murtaza v. The State PLD 1998 SC 152; Liaqat Ali v. The State PLD 1995 SC 485; Saleh v. Superintendent, Central Prison, Hyderabad PLD 1982 Kar. 542; Fazal-i-Haq v. The State PLD 1982 Lah. 452; Ismail v. The State NLR 1983 Criminal 610; Akber Khan v. The State 1991 PCr.I_J 845; Hakim Khan v. The State 1994 PCr.I_J 873; Khalil Ahmed v. The State 1994 MLD 1739; Sabir Khan v. The State 1994 PCr.I.J 438; Amir Bux v. The State 1995 MLD 610; Muhammad Saleem v. The State PLJ 1996 Cr.C. 2087; Jiwan Khan v. The State 1998 PCr.LJ 1797; Muhammad Ahmed v. The State PLJ 1998 Cr.C. (Lah.) 1741; Bashir v. The State PLD 1991 SC 1145; Sri Ram and another v. Emperor AIR 1948 All. 106; Gulzar Hasan Shah v. Ghulam Murtaza PLD 1970 SC 335; Amiruddin v. State PLD 1977 SC 602; Zulfiqar Ali v. State PLD 1984 Lah. 461 and Crown v. Habibullah PLD 1952 Lah. 587 ref.

Criminal Miscellaneous Application No. 15 of 2001, decided on 17th May, 2001 overruled.

Applicants not present.

Gul Hassan Solangi for the State.

Mazhar Ali Siddiqui: Amicus curaie and Muhammad Bachal Tunio) Addl. A.-G. (on Courts request).

Date of hearing: 5th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1139 #

2001 Y L R 1139

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujibullah Siddiqui, JJ

SHEHRI and others---Petitioners

versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petition No.D-1571 of 2000, decided on 22nd May, 2001.

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

----Art.9---Right to life---Constitutional ,guarantee---Scope---Such right includes right to life in a clean and healthy environment--Legislature is duty-bound to enact laws and Government has to enforce them in a manner which promotes the achievement of high intellectual and spiritual goals and happiness in life by the citizens.

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

----Art.199---Constitutional petition---Town planning---Necessity of gardens, parks and open spaces---Dispute was with regard to disposal of land owned by Sindh Road Transport Corporation---Allegation was that the Corporation was disposing of the land contrary to the interest of public as the same was being done without proper development scheme or any legally notified amendment--Validity---Sociologist, medical doctors and Judges, all are unanimous on the point that open spaces, parks and gardens are necessary for the physical and mental health of a society and if these facilities are not mandatorily made available to the residents of a city, that would create problems of mental health, rise in crime rate and degradation of moral values of inhabitants---High Court directed the Authorities that open spaces being used by the Corporation for bus depots, workshops, bus terminals, bus stands and training schools would be kept as they were and the open spaces as existing today would not be changed to residential, commercial or industrial use without a properly prepared scheme---Authorities were further directed to take all future actions in relation to the use of land in the Province of Sindh in general and land in question in particular under proper town planning scheme so that haphazard structures of concrete and steel might not crop up like wild mushrooms, without any application of mind of the relevant Authorities, which would deprive the citizens of their fundamental rights to live in a healthy and harmonious environment--Constitutional petition was allowed accordingly.

Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512; Dr. Zahir Ansari and others v. KDA PLD 2000 Kar. 168; Commentary of the Holy Qur'an: Maariful Qur'an, Vol.3, p.98 by Maulana Mufti Muhammad Shafi and Samuel Berman v. Andrew Parker,348 US 26, 99 L ed 27, 75 S Ct. 98 ref.

----Duty of public servants---Public servants owe a duty, to the citizens to follow the lain, work for the improvement, development and betterment of the country and its citizens and always exercise their power and authority for the achievement of this end.

Naimur Rehman for Petitioners.

M. Sarwar Khan, Addl. A.-G.

Talmiz Burney and Dilawar Hussain for Respondent No.3.

YLR 2001 KARACHI HIGH COURT SINDH 1148 #

2001 Y L R 1148

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

Messrs REHMAN FEED (PVT.) LTD and 4 others---Petitioners

versus

FUDGE, BANKING COURT NO.I, KARACHI and another---Respondents

Constitutional Petitions Nos. D-1511 connected with D-1512 of 2000,'decided on 24th March, 2001.

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

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of Bank loan---Leave to defend the suit---Conditional order---Leave to defend the suit was granted by Banking Court with a condition to deposit certain amount--Validity---Leave to defend could not be granted by imposing any condition on the defendant under the provisions of S.10 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997--High Court set aside the order passed by Banking Court and remanded the case to the Banking Court for deciding the application afresh.

Agro Foster (Pvt.) Limited and others v. Judge of Banking Court No. V and another PLD 1999 Kar. .398; Muhammad Aslam and others v. The State PLD 1969 SC 241; Tank Steel and Re-Rolling Mills (Pvt.) Limited v. Federation of Pakistan PLD 1999 SC 77; Balochistan Trading Company (Pvt.) Limited v. National Bank of Pakistan 1998 SCMR 1899; Khursheed Alam v. United Bank Limited PLD 1995 Kar. 409 and Eastern Rice Syndicate v. Central Board of Revenue PLD 1959 SC (Pak.) 364 ref.

(b) Constitution of Pakistan (1973)--

----Art.199---Constitutional jurisdiction of High Court---Scope---Discretionary in nature---Court may refuse to exercise discretionary jurisdiction under Art.199 of the Constitution in aid of injustice or when equities are heavily weighed against the petitioner.

Muhammad Sharif for Petitioners.

Rizwan Ahmed Sididqui for Respondent No.2.

Date of hearing: 22nd December, 2000

YLR 2001 KARACHI HIGH COURT SINDH 1152 #

2001 Y L R 1152

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

SABINA ANJUM FAZAL ELLAHI---Petitioner

versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-1300 of 1998, decided on 24th May, 2001.

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

---Art.199---Constituitonal petition--Fictitious person acting as petitioner ---Non appearance of petitioner despite direction of the High Court---Effect---Relief under Art. 199 of the Constitution was discretionary and person seeking such relief must come with clean hands and he must 6e an identifiable living person---Non-appearance of the petitioner or his attorney in person or non production of an authenticated affidavit from the petitioner pursuant to the direction of High Court, was patently mala fide-- Constitutional petition was dismissed in circumstances.

(b) Canons of Professional Conduct and Etiquette of Advocates---

---- Duties of an Advocates in Islamic society enlisted.

Following are the duties of Advocates in Islamic Society:

(i) An advocate is an officer of the Court and is duty-bound to assist the Court in the administration of justice.

(ii) Advocate must, before taking up any matter on behalf of a client, ensure that the claim or defence is based upon truth, honesty and propriety. In case he finds that it is riot so, he must decline to take up the matter on behalf of the client.

(iii) Advocate must disclose all material facts (evidence) and law including legal precedents to the Court.

(iv) Advocate 'must not knowingly conceal any material fact or legal authority from the Court and must bring to the notice of the Court all precedents relating to the case in issue and specially the adverse precedent or authority of a superior Court that governs the particular case, even if it be against the interest of his client. He may, however, express his opinion on the precedent and argue that the principle laid down in such cited precedent is either distinguishable or not applicable in the circumstances of his case. His duty to the Court would increase doubly if the adverse authority has not been cited or has been overlooked by the opposing counsel.

Muhammad Siddiq v. Ruqaya Khanum PLD 2001 Kar. 60 ref.

----Art.199---Constituitonal petition--Counsel and client, relationship of--Fictitious petitioner---Filing of petition on behalf of a petitioner who did not exist--Effect---Before filing any petition or application in Court, it is duty of the counsel to make proper inquiries to ensure that the person filing the petition or the application is a genuine one and the petition or the application filed is bona fide and is based upon true facts and supported by law so that when the matter proceeds in Court it tray be seen and said that he has acted prudently and honestly and has not been guilty of negligence in the discharge of his duty in the administration of justice as a responsible officer of the Court---High Court expressed its concern and hoped that due diligence exercise would be undertaken and followed by all Advocates of the High Court so that the impression of members of legal profession in general public might improve---Counsel of the petitioner was put on notice by High Court and he was advised to be careful in future.

Attaullah Khan for Petitioner.

Ali Bin Adam Jafri for K.B,C.A.

Abbas Ali, Addl. A.G. for the State.

Nasir Abbas Rizvi for 10 Intervenors.

YLR 2001 KARACHI HIGH COURT SINDH 1156 #

2001 Y L R 1156

[Karachi]

Before Ghulam Rabbani and Munirur Rehman, JJ

ARBAB ALI BALAL---Petitioner

versus

SHAMSUDDIN SHAH and 2 others---Respondents

Constitutional Petition No.D-327 of 2001, decided on 22nd May, 2001.

(a) Sindh Local Government Elections Rules, 2000---

----Rr.16 & 18---Nomination for elections--Scrutiny---Procedure.

(b) Sindh Local Government Elections Rules, 2000---

----Rr.16, 18, 71 & 82---Constitution of Pakistan (1973), Art. l99---Constitutional petition---Maintainability---Rejection of nomination papers ---Efficacious and speedy remedy---Constitutional petition related to circumstances which pertained to the pre-election exercise---No remedy, speedy, convenient or efficacious had been provided against order passed at such stage--Constitutional petition against the order of rejection of nomination papers therefore, was, maintainable.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroz 1994 SCMR 1299 and Constitutional Petition No.D-Z14 of 2001, decided on 16th March, 2001 ref.

----Rr.16 & 18---Constitution of Pakistan (1973), Art-199 ---Constitutional petition--Rejection of nomination papers on the ground that name of the candidate did not appear in the electoral roll---Validity---Rejection of nomination papers being valid, in circumstances, required no interference by the High Court.

Zahoor A. Baloch for Petitioners.

Masood A. Noorani, Addl. A.-G.

Date of hearing: 22nd May, 2001

YLR 2001 KARACHI HIGH COURT SINDH 1191 #

2001 Y L R 1191

[Karachi]

Before Faiz Muhammad Qureshi, J

HUSSAIN and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.290 of 2001, decided on 13th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 324---Bail, grant of---Role of the accused persons was same as that of the co-accused who had been granted bail---Accused were entitled to the concession of bail on the principle of equity and consistency.

1979 SCMR 9 ref.

Abdul Rasool Abbasi for Applicants.

Muhammad Azim Panhwar, State Counsel.

YLR 2001 KARACHI HIGH COURT SINDH 1192 #

2001 Y L R 1192

[Karachi]

Before Faiz Muhammad Qureshi, J

Syed GHULAM MURTAZA SHAH---Applicant/Complainant

versus

ALLAHANDO and 4 others---Respondents

Criminal Transfer Application No.27 of 2001, decided on 14th May, 2001.

Criminal Procedure Code (V of 1898)---

---S. 526---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Transfer of case---Case had been sought to be transferred from one Court to another on the ground that the Trial Judge was personally interested in the case and had friendship with the opposite party and that Trial Judge had already formed his opinion with regard to the trial and as such the conduct of the Judge had created apprehension that applicant/complainant would not get fair trial at the hands of the Judge---Applicant/complainant could not prove by giving date and time when he had seen opposite party visiting the chamber of the Trial Judge or visiting his residence or that said Judge was on visiting terms with the accused party---Application for transfer of case was dismissed in circumstances.

Asif Ali Abdul Razak Soomro for Applicant.

Mushtaque Ahmed Korejo for Addl. A.-G. for the State.

Date of hearing: 11th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1193 #

2001 Y L R 1193

[Karachi]

Before Anwar Mansoor Khan, J

Dr. Syed TARIQ SOHAIL and others---Plaintiffs

versus

DEFENCE HOUSING AUTHORITY---Defendant

Civil Miscellaneous Application No. 10970 in Suit No. 1830 of 1999, decided on 24th April, 2001.

(a) Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Arts. 17(h) (i) & 18---Transaction by Defence Housing Society---Past and closed transaction---Jurisdiction of Defence Housing Authority---Scope---Authority has no power to open a past and closed transaction of the Society under Art.17(h) (i) of Pakistan Defence Officers Housing Authority Order, 1980---Jurisdiction of the Authority is limited only to allotment cases and does not extend to cases where the allotment has been converted into lease---If Defence Housing Authority was permitted to reopen the transaction of the defunct Society under the alleged powers contained in Art.18 of Pakistan Defence Officers Housing Authority .Order, 1980 and/or its bye-laws, the same would render the proviso to Art. 17(h) of Pakistan Defence Officers Housing Authority Order, 1980, redundant.

(b) Interpretation of statutes---

---- Redundancy of a statute---Redundancy cannot be attributed to the Legislature.

Commissioner of Income-tax, Lahore v. Messrs Sh. Ferozdin Allah Rakha Muhammad Ramzan and another PLD 1980 SC 115 and Messrs Kamran Industries v. Collector of Customs (Export) and 4 others PLD 1996 Kar. 68 ref.

----When applicable---Principle is not available to the Authorities and the power of locus poenitentiae is available only before decisive step is taken.

Chairman Minimum Wage Board, Peshawar v. Fayyaz Khan Khatak 1999 SCMR 1004 and Secretary to Government, N.-W.F.P. Zakat/Social Welfare Department, Peshawar v. Sadullah Khan 1996 SCMR 413 ref.

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

----S. 20---Mistake by parties under agreement---Effect---Where mistake occurs, one of the two persons must suffer loss and the loss should fall on the one who is mast culpable; who would most easily have avoided its consequences and on whom the greater duty to discover the cause and defect rested, requires a grantor rather than a grantee to suffer loss in case of breach of covenant of warranty or of a covenant for quiet and peaceful possession.

Corpus Juris Secundum, Vol. 31, p.418 and American Jurisprudence, 2nd Edn. Vo1.28 ref.

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

----S.20---Transfer of Property Act (IV of 1882), S.41-Mistake in contract--?Rectification---Purchase from ostensible owner---Effect---Where right of third party has been created before mistake had been detected, the provisions of S.20 of Contract Act, 1872 may not apply under 5.41 of the Transfer of Property Act, 1882.

(f) Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Art. 17(h)(i)---Contract Act (IX of 1872), S.20---Civil Procedure Code (V of 1908), O.XUIX, Rr. 1 & 2---Interim injunction, grant of---Mistake while executing contract--?Prima facie case and irreparable injury--?Defence Officers Housing Authority issued notice to the plaintiff regarding resumption of excess land leased out to the original lease?holder in the year 1964---Contention of the plaintiff was that the measurement taken by the Competent Authority equipped with the facilities of measurement and handing over the same, was the Defence Housing Society which had certified that the land in question was as mentioned in the lease ---Validity--?Where the plaintiff accepted the measurement in good faith, no liability could be cast on him---Even if it was found that the land was given under a wrong presumption and that, it was a mistake of fact the termination of the contract or resumption of land would be impossible to perform---Provisions of S.20 of the Contract Act, 1872, were not applicable to such case---Allowing the Defence Housing Authority to resume the alleged excess land would amount to intrusion in the property which was in possession and purchased by the plaintiff for value, in good faith---Plaintiff had a good prima facie case and if the injunction was not granted, the plaintiff would suffer irreparable injury and harm--?Balance of convenience was also in favour of the plaintiff---High Court restrained the Authority from acting on the notice issued to the plaintiff and interfering or disturbing the peaceful possession of the plaintiff, or resuming the said land or cancelling the lease/sublease pending disposal of the suit.

Kanwal Nain and 3 others v. Fateh Khan PLD 1983 SC 53,; Muhammad Arshad Jalil v. Pakistan Defence Officers Housing Authority PLD . 1992 Kar. 304; Mustafa Lakhani, Advocate v. Pakistan Defence Officers Housing Authority 1994 MLD 777; Ziauddin v. Pakistan Defence Housing Authority 1999 CLC 723; Shamim Khan v. Pakistan Defence Officers Housing Authority 1999 YLR 410; Nasim Najmi v. Pakistan Defence Officers Housing Authority 1996 CLC 1262; Ahmed Abdul Ghani Textile Mills v. Chairman, Central Board of Revenue 1990 CLC 493 and Halsbury's Laws of England, 4th Edn., Vol.16 ref.

(g) Pakistan Defence Officers Housing Authority Order (7 of 1980)---

Art. 17(h) (i)---Transaction by Defence Housing Society---Jurisdiction of Defence Housing Authority---Past and closed transaction---Discovery of excess land in possession of leaseholder---Additional charges, claim for---Scope---Remedy available to the Authority---Where the land was leased out in the year 1964, and the Authority found the same in excess of leased area, it could claim a premium at the rate prescribed at the time when the land was handed/taken over---Defence Housing Authority could claim development charges as they might have incurred in relation to the plot and at the rate that had been approved till the date the development had concluded.

Sana Minhas for Plaintiffs.

Nazar Hussain Dhoon for Defendant.

YLR 2001 KARACHI HIGH COURT SINDH 1222 #

2001 Y L R 1222

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD SAIJAN --- Applicant

versus

THE STATE---Respondent

Criminal Revision Application No. D-65 and Miscellaneous Application No. 1648 of 2000, decided on 25th April, 2001.

Criminal Procedure Code (V of 1898)---

----S.514---West Pakistan Arms Ordinance (X of 1965), S.13-D---Imposition of penalty upon the surety for non production of the accused---Accused who was granted bail remained absconding and never attended the Court and the surety, despite granting time to him did not take any positive steps to produce the accused before the Court---Bail being nothing, but change of custody as accused was placed in the custody of surety and he was responsible for production of the accused in Court, if and when so ordered or required---In case of non-appearance or non-production of the accused before the Court, surety would be liable to the penalty under law---Court while imposing the penalty had to keep in mind the principle of undue leniency and undue severity---Accused being fugitive from the law, no mitigating circumstances existed for the reduction of amount of penalty imposed on the surety.

Zeeshan Kazmi v. The State PLD 1997 SC 267; Abdul Latif v. The State 2000 PCr.L1 1201 and Abdul Bari v. Malik Amir Jan and 5 others PLD 1998 SC 50 ref.

Shamsuddin Kobhar for Applicant.

Ghulam Dastgir Shahani, Addl. A.-G.

2001 Y L R 1235

[Karachi]

Before Muhammad Moosa K. Leghari, J

RAJINDHAR KUMAR ---Applicant

versus

VIJAY KUMAR and another---Respondents

Criminal Miscellaneous, Application No.S-82 of 2001, decided on 11th May, 2001.

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

----S.561-A---Inherent jurisdiction of High Court---Nature, object and scope---Powers conferred on the High Court under S.561-A, Cr. P. C. ought to be exercised to secure ends of justice and to prevent the abuse of the process of the Court and same could not be exercised to interrupt or divert the ordinary course of criminal procedure---Inherent jurisdiction of High Court was not an alternate or an additional jurisdiction, it was only meant for the purpose of redressing the grievances and ought to be exercised sparingly in the interest of justice.

(b) Criminal trial---

---- Decision of a case---No inflexible rule can be laid down in the criminal cases and each case has to be decided keeping in view its own peculiar circumstances.

----S. 561-A---Penal Code (X,V of 1860), Ss. 420 & 406---Quashing of proceedings--Cheques tendered by the accused were dishonoured and it could only be ascertained after recording the evidence as to whether or not element of mens rea existed and that whether the accused knew that money was in his Bank account or not and whether the failure to meet the payment of cheque was accidental or intentional---In any case determination of guilt or innocence of the accused depended upon totality of facts to be recorded during the trial---Merely because the transaction also made out a civil liability, was not sufficient ° for quashing the proceedings---Though nothing was on record to show that civil proceedings were pending between the parties, but continuation of civil suit was no bar to criminal proceedings even though both cases related to the same subject matter---Person defrauded had two remedies open to him, one to get the accused punished for fraud played by him and the second to recover the amount of which he had been deprived of by the accused---Since prima facie an offence had been committed by the accused and he was facing the trial before the Court of criminal jurisdiction, if the proceedings were quashed at that stage, it would give an impression of stifling of criminal proceedings by exercising extraordinary powers as it would tend to circumvent the process of law, quashing of proceedings was declined by the High Court in circumstances.

1999 PCr.LJ 1221; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Asif Ali Zardari's case 1994 SCMR. 798; Raja Haknawaz v. Muhammad Afzal and others PLD 1967 SC 354; Gian Chand v. State 1968 SCMR 380; 1972 SCMR 85; PLD 1973 Kar. 567; 1975 PCr.LJ 28; 1971 PCr.LJ 331; 1973 PCr.LJ 548 and 1974 PCr. LJ 541 ref.

Mazhar Ali Siddiqui for Applicant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 11th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1241 #

2001 Y L R 1241

[Karachi]

Before Zia Perwez, J

MEMON EDUCATIONAL BOARD---Applicant

versus

MUNAWWAR HUSSAIN ---Respondent

Revision Applications Nos.67 to 70 of 1999, decided on 4th July, 2001.

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

----O. VII, R. 11, Ss. 2(2) & 96---Rejection of plaint---Appeal---Court fee payable--Rejection of plaint being a decree by virtue; bf S.2(2), C.P.C., ad valorem court fee would be payable on memorandum of appeal against the order rejecting the plaint.

Muhammad Anwar v. Messrs Associated Trading Co. 1988 CLC 1463; Hafeezuddin v. K.M.C. PLD 1996 Kar. 499; Ramparsad v Tirloki Nath AIR 1938 All. 50; Bendapudi Venkataratnam v. Crown AIR 1941 Mad. 639; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 259; Sindheswar Ganguly v. State of West Bengal PLD 1958 SC (Ind.) 337 and Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296 ref.

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

----O. VII, Rr.11 & 13---Rejection of plaint--Filing of fresh plaint---If plaint was rejected under O. VII, R.11, C. P. C. the plaintiff was not precluded from presenting a fresh plaint in respect of the same- cause of action in view of provision of O. VII, R.13, C. P. C. provided the right of action was not barred by any law.

Mian Khan v. Aurang Zeb 1989 SCMR 58 ref.

Abdul Latif A. Shakoor for Applicant.

M. Siddique Shaikh for Respondent.

Date of hearing: 15th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1244 #

2001 Y L R 1244

[Karachi]

Before Anwar Mansoor Khan, J

Messrs HABIB BANK LIMITED‑‑‑Plaintiff

versus

Messrs SCHON TEXTILES LIMITED and 7 others‑‑‑Defendants

Suit No.264 of 2000 (New No.B‑10 of 2000) and Civil Miscellaneous Application No.2281 of 2000, decided on 27th April, 2001.

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

‑‑‑‑Ss.9 & 10‑‑‑Suit for recovery of money‑‑Application for leave to defend the suit‑‑Matters with regard to determination of amount, mark‑up and other matters needed a detailed investigation and could not be determined merely from the accounts‑‑Vouchers, bills and other similar documents would be required to be produced‑‑Application for leave to a defend suit was granted in circumstances.

Rizwan Ahmed Siddiqui for Plaintiff.

Sadaf Yousuf for Defendants.

YLR 2001 KARACHI HIGH COURT SINDH 1249 #

2001 Y L R 1249

[Karachi]

Before S. Ali Aslam Jafferi and Muhammad Mujeebullah Siddiqui, JJ

MUIVIR AHMED --- Appellant

versus

THE STATE---Respondent

Criminal Appeal No. D-43 of 2000, decided on 13th August, 2001.

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

----S.9(c)---Criminal Procedure Code (V of 1898), Ss. 364, 533 & 537---Appreciation of evidence---Prosecution case that the Chemical Examiner had changed the sample of "Charas " and the cloth containing the same which yeas sent to him for analysis, had remained unchallenged---Trial Court had rightly sent the remaining quantity of "Charas " lying with it in sealed condition to another Chemical Examiner and had rightly relied upon. his report for awarding conviction and sentence to the accused which were not open to any exception--Charge framed by the Trial Court was in accordance with the prosecution case and required no amendment after the receipt of the first Chemical Examiner's Report which was not genuine---Subsequently the prosecution version stood established---Non-recording of certificate under S.364(2), Cr.P.C. by the Trial Court in its own hand was a mere irregularity and since no prejudice to the accused had been established or even alleged and no objection to this effect had been taken at the initial stage when the statement of the accused was recorded in the presence of a -senior counsel; the irregularity was curable under S.533, Cr. P. C. read with S.537, Cr. P. C. --Conviction and sentence of accused were upheld in circumstances. (pp. 1254, 1255, 1256, 12681 A, B, C, F & G

Muhammad Inayat v. State 1985 PCr.LJ 469; Munshi v. State 1985 PCr.LJ 1677; Raheel Sajid v. State 1986 PCr.LJ 1006; Fateh Khan v. State 1985 PCr.LJ 1683; Allah Ditta v. The State 1986 PCr.LJ 1987; Sabir Raza Nadeem v. The State 1986 PCr.LJ 1948; Bashir Ahmed Malik v. The State 1988 PCr.LJ 1693; Kafeeluddin v. The State 1989 PCr.LJ 251; Ashraf Mian v. The State 1989 PCr.L1 1079; Mst. Khial Meena v. The State 1997 PCr.LJ 539; Abdul Samad v. The State PLD 1986 FSC 265; Muhammad Kalam v. The State 1999 MLD 55; Mst. Azeema v. The State PLD 2001 Quetta 1; Bejoy Chand v. State AIR 1952 SC 105; Ajmer Sing v. State of Punjab AIR 1953 SC 76; Tilkeshwar Singh v. State AIR 1956 SC 238; Waseem Khan v. State of U.P. AIR 1956 SC 400; Moseb Choudhry v. West Bengal State AIR 1956 SC 536; Chikkarange Gowda v. State of Masui AIR 1956 SC 731; Rana Shanker Singh v. The State of West Punjab AIR 1962 SC 1239; Muhammad Yakoob v. Crown PLD 1956 Lah. 174; Abdul Wahab v. Crown PLD 1955 -FC 88; Hazrat Jamal v. The State PLD 1958 SC 383; Muhammad Hussain v. The State PLD 1986 Lah. 34; Rizwan v. State PLD 1986 Lah. 222; Shah Nawaz v. The State PLD 1986 FSC 242; Muhammad Ameen v. The State 1987 PCr.LJ 1922;. Hakim Ali v. The State 1988 PCr.LJ 333; Muhammad Ashraf v. The State 1989 PCr.LJ 1803; Mst. Janat Bibi v. State 1992 PCr.LJ 1673; Abdul Reheem v. The State 1997 PCr.LJ 1274; 1985 PCr.LJ 1985; 1985 .PCr.LJ 2489; Criminal Appeal No.192/1 of 1985 and 1.985 PCr. LJ 877 ref.

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

----S.364---Non-compliance with S.364, Cr.P.C. only on irregularity ---Non compliance of the provisions contained in S. 364, Cr. P. C. is to be treated as an irregularity and not an illegality---If after examining all the attending circumstances a Court comes to the conclusion that the error has injured the accused in his defence on merits or has caused any prejudice to the, accused or has occasioned a failure of justice, the irregularity shall not be cured and the finding of sentence shall be reversed or altered.

---- Law no - to be interpreted in isolation-- Provision o law takes colour and complexion from the context in which it is used and no provision of law is to be interpreted in isolation but in the totality of the scheme contained in a particular statute.

Maqbool Ahmed Awan for Appellant.

Faizullah Korai, S.P.P. and Sher Muhammad Shar, A.A.-G. for the State.

Date of hearing: 27th June, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1269 #

2001 Y L R 1269

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

M. NAWAZ---Applicant

versus

GHULAM ASGHAR and others---Respondents

Criminal Revision Application No.71 of 2000, decided on 15th June, 2001.

Penal Code (XLV of 1860)---

----Ss.336/337-K1337-A(i)l337-F(i)13471 348/379/40315041506/34---Criminal Procedure Code (V of 1898), Ss. 200 & 439--Revision---Return of private complaint by Sessions Court for filing before Magistrate--Validity---Sessions Court had returned the private complaint in original to the complainant for filing the same before the Magistrate on the ground that offences under Ss. 336 & 337-K, P. P. C. were not made out on record and the rest of the offences were exclusively triable by the Magistrate First Class---If an aggrieved person has a right to have his case processed by a higher forum, it Would not be in consonance with the scheme of law to compel him to pursue the remedy before the lower forum---Even otherwise offence under 5.337-K, P-P.C. was, prima facie, made out on record which was triable by the Court of Session and the private complaint was entertainable by it---Impugned order was consequently set aside and Sessions Court was directed to being the complaint on record and issue process against the accused.

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

----Ss.202 & 204---Issue of process to accused---Trial Court has no jurisdiction to call the accused persons during the course of preliminary enquiry and doing so is an illegality-- Accused persons can be called upon to appear before the Trial Court if after receiving the complaint and holding the preliminary enquiry it comes to a conclusion that a prima facie case is made out for issuance of process and bringing the complaint on record.

Abdul Rashid Kalwar for Applicant.

Mumtaz Ali Siddiqui for Respondents.

Sher Muhammad Shar, Asstt. A.-G. for the State

YLR 2001 KARACHI HIGH COURT SINDH 1309 #

2001 Y L R 1309(1)

[Karachi]

Before S.A. Rabbani, J

MUHAMMAD ALI ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.2 of 1998, decided on 14th June, 2000.

Criminal Procedure Code (V of 1898)---

----S.426---Suspension of sentence---Period of more than two years had expired, but appeal of the accused had not been disposed of--Accused was entitled to be released on bail and suspension of sentence pending appeal--Life imprisonment awarded to the accused was suspended pending appeal in circumstances.

Muhammad Yakoob and others v. The State 1991 SCIVIR 1459 ref.

Mehmood A. Qureshi for Appellant.

Arshad Lodhi, A.A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1314 #

2001 Y L R 1314

[Karachi]

Before Sabihuddin Ahmed, J

JAWED IQBAL --- Appellant

versus

MUDDASIR AHMED ---Respondent

First Rent Appeal No.568 and Civil Miscellaneous Application No. 1155 of 1998, decided on 16th August, 1999.

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

----S. 15 (2) (ii)---Tenancy agreement --Novation of---Default in payment of rent--Rent of the premises having been enhanced after about two years from the execution of tenancy agreement, such enhancement could be treated as novation of agreement and default committed prior to said novation could not be enforced as a ground of ejectment.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Where landlord had sought ejectment of tenant from business premises for his personal use to start his own business, non-disclosure of the nature of business in ejectment application, would be no ground for rejection of ejectment application---Mere fact that a landlord was qualified to perform another vocation, was no ground for refusing ejectment of his tenant, if he had shown his preference to use the premises for business purposes---Though it could be quite inconvenient for a tenant to vacate the business premises after having barely settled down and established his business therein, but the law would not create any embargo upon the landlord restraining him from applying for ejectment of tenant.

Sara Bai v. Syed Anisur Rehman 1989 SCMR 1366 ref.

Abdul Karim Siddiqui for Appellant.

Syed Muhammad Haider for Respondent.

Date of hearing: 16th August, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 1339 #

2001 Y L R 1339

[Karachi]

Before Saiyed Saeed Ashhad, J

Messrs FIRDOUS CARPET (PVT.) LTD. ---Appellant

versus

MOTI-UR-REHMAN and another---Respondents

First Regular Appeal No. 62 of 1998, heard on 14th January, 2000.

Sindh Rented Premises Ordinance (XVII of 1979)___

----Ss. 2(f)(j); 15(2)(vii) & 21---Bona fide personal need of landlord---Relationship of landlord and tenant---Proof of existence of such need---Evidence brought on record had established beyond any doubt that applicants were the owners of the premises in question, but evidence adduced by them was very shaky and doubtful for holding that opponent had been occupying the premises as their tenant--Statements of one of the applicants as well as witness in their cross-examination, apart from being inconsistent and contradictory to each other's version, did not establish beyond any doubt that premises was, occupied by the opponent/respondent as tenant of the applicants---Documentary evidence produced by the opponent in the shape of photo copies of the various judgments/orders of the Courts and rent receipts produced on record had left no room for doubt that the premises was being occupied by persons other than the opponent---Applicants having failed to establish that opponent was their tenant in respect of premises in question, the Rent Controller was not justified to hold that the relationship of landlord and tenant existed between the parties---Existence of relationship of landlord and tenant between the parties was condition precedent for conferring jurisdiction on the Rent Controller to proceed with the ejectment application---In absence of relationship of landlord and tenant between, parties, the Rent Controller ought to have dismissed ejectment application on that ground ---Ejectment order passed by the Rent Controller, was set aside and ejectment application filed by the applicants was dismissed in appeal being incompetent.

Muhammad Shabbir and others v. Hamida Begum 1992 MLD 323; Juma Sher v. Sabz Ali 1997 SCMR 1062 and Messrs .F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 ref.

I.H. Zaidi for Appellant. Iqbal Kazi for Respondents.

Date of hearing: 14th January, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 1371 #

2001 Y L R 1371

[Karachi]

Before Ghulam Nabi Soomro and Ata-ur-Rehman, JJ

Rao MUHAMMAD TALHA---Applicant

versus

THE STATE---Respondent

Criminal Revision No.1 of 2001, decided on 16th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Release of robbed vehicle on Superdari---Car was robbed from the applicant who was general attorney of original owner of the car---Car having been secured by the police from the robbers, the applicant prayed for release of the car to him on Superdnama under S.516-A, Cr. P. C. but his pray was rejected on the ground that since he was demanding the car on basis of general power of attorney, his application was not maintainable---Validity---Car was snatched from the applicant while he was in its possession and there was no other claimant of the car---Law permitted delivery of case property of a criminal case on Superdnama to the person from whose possession it was taken away---Court directed delivery of the car to the applicant subject to his furnishing surety.

Ch. Abdul Rasheed for Applicant.

Habib Ahmed, A.A.-G.

Date of hearing: 16th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1374 #

2001 Y L R 1374

[Karachi]

Before Faiz Muhammad Qureshi, J

MOULA BUX---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. S-25 of 1998, decided on 29th May, 2001.

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

----S.302/34---Criminal Procedure Code (V of 1898), Ss. 265-J & 367---Appreciation of evidence---No independent witness had been associated by the police though the place of occurrence was in thickly populated area and according to the prosecution itself so many people were attracted to the place of occurrence when incident took place---One of the prosecution witnesses had not supported the case of prosecution though it was claim of the prosecution that said witness was also available alongwith complainant and other prosecution witnesses---Said witness by not supporting the prosecution case, had cut the root of the prosecution case and the presence of the complainant and other prosecution witnesses at the place of occurrence had become doubtful---Adverse inference could be drawn against the prosecution and the benefit of doubt would go to the accused---Witnesses had not spoken the truth before the Trial Court and their evidence was not inspiring-confidence---No reliance could be placed on their evidence--Prosecution having presented the case of the complainant with improvement, ocular testimony furnished by the complainant was to be viewed with suspicion and such evidence could not be relied upon---Recovery of gun alongwith one live cartridge and four empty cartridges on pointation of the accused was effected with the delay of 14 days and said delay in recovery was not explained---Gun, one live cartridge and four empty cartridges which had not been recovered from the place of occurrence, had not been sent to Ballistic Expert for examination and report--Statements of prosecution witnesses had not been recorded in accordance with mandatory provisions of S. 265-J, Cr. P. C. ---Trial Court had passed judgment in slipshod manner and same had not been written in accordance with the strict mandatory provisions of S.367, Cr. P. C. ---Evidence of the prosecution had not been evaluated in scales of justice--Benefit of doubt, in circumstances, would go to the accused---Inconsistency existed between the medical evidence and ocular evidence--Co-accused had been acquitted on the same set of evidence---Prosecution. , having miserably failed to prove its case beyond reasonable doubt, conviction and sentence awarded to the accused by the Trial Court were set aside giving him benefit of doubt.

1979 SCMR 214; PLD 1982 Kar. 975 and 1995 SCMR 1345 ref.

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

----S.302---Appreciation of evidence--Evidence of the witness who claimed to have seen the incident was to be weighed in the scales of justice as it was being deposed by him---Basic requirement before the Trial Court was to see whether the witness was honest or dishonest and it was not the requirement before the Trial Court to see whether the witness was interested, disinterested or hostile.

(e) Motive--

---- S.302---Motive, nature of---Motive was a double-edged weapon which cut both ways.

Ali Nawaz Ghanghro for Appellant.

Muhammad Ismail Bhutto, Addl. A.-G. for the State.

Date of hearing: 29th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1379 #

2001 Y L R 1379

[Karachi]

Before Fail Muhammad Qureshi, J

GHULAM NABI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.449 of 2001, decided on 25th April, 2001.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail---Bail previously granted to accused by Sessions Court had, no doubt, been cancelled by the High Court, but the present bail application had been moved after examination of four prosecution witnesses at the trial and in view of such development it could be heard by any Judge of the High Court-- Accused was named in the FI.R. with a specific role of firing at the deceased---Empties had been recovered from the spot---Eye-witnesses including the complainant had implicated the accused at the trial---No reasonable grounds existed to believe that the accused was not guilty of the offence charged with---Bail was 'declined to accused in circumstances.

1982 SCMR 153; PLD 1978 SC 256; Rao Muhammad Jalees alias Jallo v. The State 1990 PCr.LJ 26; 2000 PCr.LJ 2053; 1997 PCr.LJ 159; Zahid Hussain v. The State 1999 PCr.LJ 1044; PLD 1962 Kar. 800; PLD 1986 SC 173; 1977 SCMR 1336; 1999 SCMR 790; PLD 1995 Kar. 566; 1997 SCMR 788; Abdul Hai and 2 others v. The State 1996 SCMR 555; 2001 SCMR 199; 2000 SCMR 1405; PLD 1993 Kar. 55; PLD 1994 SC 65; PLD 1990 SC 84 and 1991 SCMR 1849 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302---Hearing of the bail application by the same Judge who had previously dealt with the bail matter---Such rule laid down in Zubair's case reported in PLD 1986 SC 173 and 1997 SCMR 1336 is not applicable to the case where the bail of accused had been cancelled by another Judge and fresh bail application is moved after examination of some prosecution witnesses, which can be heard by any Judge.

PLD 1986 SC 173 and 1977 SCMR 1336 ref.

----S.497---Penal Code (ILV of 1860), S.302---Bail---Assessment of evidence---Court while dealing with bail application has only to see whether sufficient reasons are available to connect the accused with the commission of the alleged offence---Court has not to go into details of-the evidence, nor the evidence can be sifted at bail stage.

Muhammad Ashraf Kazi and Syed Naqi Mirza for Applicant.

Gul Zaman Khan for the Complainant.

Sharafat Ali Khan for the State.

Date of hearing: 25th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1392 #

2001 Y L R 1392

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD 1QBAL and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 104 of 1989, decided on 12th March, 2001.

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

----Ss.302, 324 & 504---Appreciation of evidence---Interested witness---Interested evidence in case of capital punishment is to be corroborated by independent source.

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

----Ss.302, 324 & 504---Appreciation of evidence---F. I. R. was delayed---Statements of witnesses under 5.161, Cr.P.C. had been recorded after an unexplained delay of three days---Eye-witnesses were not honest and their testimony did not inspire confidence--Names of accused did not appear in the inquest report---Prosecution had abandoned the motive for the occurrence---Medical evidence had not supported the version of the injured witness ---Post-mortem report had not been produced before the Trial Court--Despite the amendment of the charge thrice the prosecution witnesses were not reexamined---Ocular evidence was tainted and was not corroborated by any independent quarter---Accused were acquitted in circumstances.

1996 SCMR 308; PLD 1988 Kar. 521; PLD 1972 SC 286; 1976 SCMR 525; 1989 PCr.LJ 1202; 1985 PCr.LJ 2132; 1993 SCMR 550; PLD 1963 SC 17; 1981 SCMR 795; 2000 SCMR 1784; 2000 SCMR 1815; 2000 SCMR 2727 and 2000 SCMR 919 ref.

----Ss.302, 324 & 504---Appreciation of evidence---Principles---Basic principle before the Trial Court while appreciating the evidence is to see whether the witness is honest or -dishonest regardless of the situation that he is interested or disinterested.

(d) Criminal trial---

----Evidence---Interested witnesses---Basic principle before the Trial Court while appreciating the evidence is to see whether the witness is honest or dishonest regardless of the situation that he is interested or disinterested.

Noor Nabi G. Memon for Appellants.

Muhammad Azeem Panhwar for A.-G. for the State.

Muhammad Ibrahim A. Soomro for the Complainant.

Date of hearing: 8th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1415 #

2001 Y L R 1415

[Karachi]

Before Fail Muhammad Qureshi, J

PIRAL alias PEERO and 4 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.62 of 1985, decided on 23rd February, 2001.

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

----Ss. 302/149---Appreciation of evidence--Counter-case---Witnesses who had been nominated in the counter-case had suppressed their role in the incident before the Trial Court---Duty of Court, in counter cases, was to adjudge as to who was aggressor and who was subjected to aggression---Plea of self defence also spelt out from the evidence recorded by the prosecution witnesses--Material contradiction was found in ocular and medical evidence---Prosecution witnesses being not honest witnesses, their evidence could not be relied upon---Prosecution having failed to prove its case beyond reasonable doubt against the accused, conviction and sentence awarded to them by the Trial Court were set aside.

(b) Criminal trial---

----Witness---Basic duty of the Trial Court is to see whether the witness is honest or dishonest and not whether the witness is interested, disinterested or hostile.

1979 SCMR 214 ref.

Allah Bachayo Soomro for Appellants.

Anwar Ansari, A.A.-G for the State.

Date of hearing 23rd February, 2001

YLR 2001 KARACHI HIGH COURT SINDH 1424 #

2001 Y L R 1424

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

WAHID alias FARHAN and another---Appellants

versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos. 165 and 166 of 1999, heard on 3rd March, 2000.

Penal Code (XLV of 1860)---

----S. 392/34---Anti-Terrorism Act (XXVII of 1997), Ss. 7A & 7-B---Appreciation of evidence---Reduction in sentence---Offence alleged against the accused was of vehicle snatching which according to Anti-Terrorism Act, 1997 was punishable under S. 7-B of the said Act with 7 years' R.I. and fine--Sentence of 10 years awarded to the accused by the Trial Court was reduced to 7 Years' R.1. ---Maintaining the conviction of the accused, the accused was awarded sentence accordingly extending him benefit of S.382-B, Cr. P. C.

Shahadat Awan and Hassan Jaffer Rizvi for Appellants.

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

Date of hearing: 3rd March, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 1425 #

2001 Y L R 1425

[Karachi]

Before Faiz Muhammad Qureshi, J

TARIQ AZIZ and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.22 of 2001, decided on 1st March, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of ---Unexplained delay of 8 days in holding identification parade which was supervised by the concerned Investigating Officer---Articles recovered from the accused did not bear special marks and it was a joint recovery and the articles had been recovered from the house of the accused where other family inmates also resided---Recovery had become doubtful as the complainant was also present alongwith police at the time of recovery--Claim of the prosecution was that accused were seen at the time of Wardat, but complainant had not narrated the role played by the accused at the time of the incident--Prosecution itself had injected the element of suspicion in the case and no proper investigation had been conducted by the police in that regard---Enmity of the police with the accused had been suggested by the accused and in order to prove the same the accused had placed on record copy of Constitutional petition against the police--Accused persons having been able to make out a prima facie good case for bail they were granted bail.

1995 SCMR 127 and 1988 SCMR 1223 ref.

Syed Jawaid 1. Bukhari for Applicants.

Muhammad Azeem Panhwar fur A.-G. for the State.

Date of hearing: 1st March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1431 #

2001 Y L R 1431

[Karachi]

Before S. Ali Aslam Jaffri, J

GHULAM HUSSAIN ---Petitioner

versus

S.H.O., POLICE STATION, RANIPUR and others---Respondents

Constitutional Petition No.S-652 of 2001, decided on 6th July, 2001.

Criminal Procedure Code (V of 1898)--

----Ss. 154 & 156---Registration of F.I.R.--- Registration of F. I. R. was the duty of a police officer in case of a cognizable offence, but it could not give a licence to police officer to immediately arrest the persons after registration of the case unless very strong grounds and compelling circumstances existed---Necessary statements were to be recorded apart from other usual steps towards investigation in order to ascertain the truth of allegations---Police Officer as a custodian of law was to see that no harassment or humiliation was caused to the innocent persons and the act of filing baseless and fake F.1. R. was not used as a mechanism for settling personal scores.

Imdad Ali Awan for Petitioner.

G.A. Shahani, Addl. A.-G.

YLR 2001 KARACHI HIGH COURT SINDH 1432 #

2001 Y L R 1432

[Karachi]

Before Faiz Muhammad Qureshi, J

NIM and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.40 of 2000, decided on 16th March, 2001.

Criminal Procedure Code (V of 1898)---

----Ss.342, 364(2) & 537---Penal Code (XLV of 1860), S. 302/34---Examination of the accused---Accused not signing the statement and Court not writing the certificate itself--Effect---Statements made by the accused under S. 342, Cr. P. C. were not signed by them and certificate that examination of the accused was taken in his presence and hearing, was not written in handwriting of the Presiding Officer of the Court which was flagrant violation of S.364(2), Cr. P. C. and said illegality was not curable under 5.537, Cr. P. C.---Charge against the accused was defective and the accused, despite being minors at time of offence, were not tried under Juvenile Act--Case was remanded to the Trial Court with directions to restart trial from the stage of S. 342, Cr. P. C. to record statements of the accused strictly in accordance with the provisions of law.

Allah Bachayo Soomro for Appellants.

Muhammad Azim Panwhar for A.A.-G. for the State

Date of hearing: 12th March, 2001

YLR 2001 KARACHI HIGH COURT SINDH 1438 #

2001 Y L R 1438

[Karachi]

Before Muhammad Afzal Soomro, J

GHULAM ABBAS alias ABBAS ---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos. 413 , and S-466 of 2001, decided on 31st July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11 /16---Pre-arrest bail---Alleged abdyctee according to the FI.R. itself had left the house of her father of her own freewill without any pressure, coercion or threats from the side of accused or anybody else and as such none of the charges levelled against them in the F. I. R. had any applicability to the facts and circumstances of the case---Grant of bail in such cases was a rule and its refusal an exception---Police allegedly was bent upon insulting, humiliating and harassing the accused in collusion with the complainant party---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Syed Saifuddin Shah v. The State

1982 PCr.LJ 792; Wali Muhammad v. State 1979 SCMR 233; Aijaz v. State 1977 SCMR 64; Manzoor v. State 1972 SCMR 81; State of Rajasthan v. Balchand AIR 1977 SC 2447; Iqbal Muhammad Saeed v. State and others 1992 PCr. LJ 2086 and Jamaluddin and others v. The State 1985 SCMR 1949 ref.

Azizul Haq Solangi for Applicants (in Cr.B.A. No. 413 of 2001).

Muhammad Saleem G.N. Jassar (in Cr.B.A. No. S-466 of 2001) for Applicants.

Muhammad Ismail Bhutto for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1442 #

2001 Y L R 1442

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.34 of 1998, heard on 9th March, 2001.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss.342, 364(2) & 367---Appreciation of evidence---According to contents of FI.R. the deceased was found in the company of the accused---Incident was unwitnessed whereas the Trial Court had collected the evidence of witnesses in the shape of ocular testimony of one who had materially improved the prosecution case and who had stated before the Trial Court completely against the contents of the FI.R.---Complainant was not an eye-witness---Entire evidence of prosecution witnesses appeared to be improbable---Recovery of the hatchet from the accused was doubtful---Judgment of the Trial Court was also in violation of S.367, Cr. P. C. ---Charge against the accused was defective as the statement of the accused had not been recorded in accordance with S.364(2), Cr.P.C.---Co-accused had been acquitted by the Trial Court on same set of evidence---Case against the accused was full of doubt and material contradictions and even the ocular testimony was not supported by the medical evidence---Prosecution having failed to prove its case beyond reasonable doubt, conviction and sentence recorded by the Trial Court against the accused, were set aside giving him benefit of doubt.

1996 SCMR 317 ref.

Muhammad Azeem Panhwar for Appellant.

Anwar Ansari, A.A.-G. for the State.

Date of hearing: 9th March, 2001

YLR 2001 KARACHI HIGH COURT SINDH 1448 #

2001 Y L R 1448

[Karachi]

Before Muhammad Moosa K. Leghari; J

AIJAZ ALI and 3 others---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No. 198 of 2000, decided on 22nd May, 2001.

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

----Ss. 468, 477-A & 120-B---Prevention of Corruption Act (II of 1947), S.5(2)--Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Accused were to face trial in the case on the charges that in connivance with each other they had committed the criminal conspiracy and other offences mentioned in the F.I.R. and the challan in which 11 prosecution witnesses had been cited ---Sufficient evidence, prima facie, had been collected by the prosecution against the accused and it could not be assumed that no case was made out against the accused---Since the complainant had withdrawn his private complaint on his own in which the accused were neither tried by the Court nor punished, they could not by any stretch of imagination be presumed to be tried and punished twice for the same offence in the pending proceedings---Provisions of S. 561-A, Cr. P. C. could not be used to obstruct or divert ordinary course of criminal proceedings---Petition for quashing of proceedings was dismissed in circumstances.

1983 PCr.LJ 1357 distinguished.

A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Asif Ali Zardari's case 1994 SCMR 798; Raja Haknawaz v. Muhammad Afzal and others PLD 1967 SC 354 and Gian Chand v. State 1968 SCMR 380 ref.

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

----S. 561-A---Inherent powers of High Court---Inherent jurisdiction of High Court was neither alternative nor additional in its character and is to be rarely invoked in the interest of justice so as to seek redress of grievance for which no other remedy is available---Such jurisdiction, however, must be invoked in exceptional circumstances.

Prosecution "---Meaning expounded.

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

----Art. 13--- "Prosecution ---Connotation--Prosecution means proceedings either by way of indictment or information in Criminal Courts in order to put an offender upon his trial.

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

----Art. 13---Word "punish" occurring in Art.l3 of the Constitution would mean to cause the offender to suffer for the offence or to inflict penalties on the offender or to inflict penalty for the offence---Word "punishing" denotes or signifies some offence committed by the person who is punished.

Muhammad Nawaz Chandio for Petitioner.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 15th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1453 #

2001 Y L R 1453

[Karachi]

Before Faiz Muhammad Qureshi, J

SOAZ ALI and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 12 of 2000, decided on 13th February, 2001.

Penal Code (XLV of 1860)---

----Ss. 324, 337-F(iii) & 34---Criminal Procedure Code (V of 1898), Ss.161, 164 & 265-J---Appreciation of evidence ---Counter case filed by the accused against the other party was pending in Court wherein the injured was nominated as the main accused who had injured father of the accused and other prosecution witnesses had also played a very vital role---Prosecution witnesses in the present case having suppressed their part during the occurrence, in which they had played very vital role, it was very much evident that they had concealed from the Court material facts and on that account they could not be called honest witnesses and their evidence could not be accepted---Close relationship of complainant and prosecution witnesses with the injured had been admitted and independent evidence was lacking in the case though the claim of the prosecution was that other villagers were gathered at the place of occurrence---Firing had taken place, but no empty had been recovered from the place of Wardat and there was no recovery of the gun allegedly used by the accused nor there was any Mashirnama of recovery---Statements of the witnesses under S.161, Cr. P. C. had been recorded after 7 days and said delay remained unexplained---Violation of S.265-J, Cr. P. C. took place on account of notice having not been served upon the accused before recording the statements of the witnesses under S.164, Cr. P. C. ---Self-defence could be gauged from the record and material available on record---Injured had sustained only one injury as per Medical Certificate though four accused were alleged to be armed---Evidence of the prosecution was contradictory---Prosecution having failed to prove its case beyond reasonable doubt against the accused conviction and sentence awarded to the accused by the Trial Court were set aside.

1979 SCMR 214; PLD 1982 Kar. 975; PLD 1963 SC 17 and 1973 SCMR 550 ref.

Allah Bachayo Soomro for Appellants.

A.H. Motiwala for the State.

Date of hearing: 13th February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1493 #

2001 Y L R 1493

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

AIJAZ ALI ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 178 of 1999, decided on 15th March, 2001.

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

----S.9(b)---Appreciation of evidence---One month's delay in sending the sample of the allegedly recovered "Charas" to the Chemical Examiner had not been explained by the prosecution---Entry in the Daily Diary whereby the police party had left the Police Station and gone to the platform of the Railway Station had not been produced by the prosecution before the Trial Court, which had vitiated the entire trial--- "Charas" recovered from the accused had not been sealed at the place of recovery but the same had been sealed at the Police Station which was an illegality giving rise to an adverse inference against the : prosecution---Accused was acquitted on benefit of doubt in circumstances.

1998 PCr.LJ 1368; 1997 MLD 1632 and 1996 PCr.LJ 1410 ref.

Abdul Rasool Abbasi for Appellant, Muhammad Azeem Panhwar for A.A.-G. for the State.

Date of hearing: 15th March, 2001

YLR 2001 KARACHI HIGH COURT SINDH 1510 #

2001 Y L R 1510

[Karachi]

Before Fait Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

AMANAT ALI and another---Appellants

versus

THE STATE and another---Respondents

Criminal Appeals Nos.90 and 91, Confirmation Case No.5 and Criminal Acquittal Appeal No. 103 of 1998, decided on 22nd March, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(6)/34 & 324/34---Appreciation of evidence---Eye-witnesses including the injured witnesses had fully implicated the accused in the commission of the offence and their testimony inspired confidence which was duly supported by medical evidence and the recoveries effected in the case---Judicial confessions made by accused did not suffer from any defect and the same were found to be true and voluntary---Defence plea was an afterthought and had been taken by the accused just to save their skin---Convictions and sentences of accused including the sentences of death were confirmed in circumstances.

Ch. Abdul Rasheed for Appellants (in Criminal Appeals Nos.90 and 91 of 1998).

Ghulam Shabbir Memon for Appellants (in Criminal Acquittal Appeal No. 103 of 1998).

Ch. Abdul Rasheed for Respondents (in Criminal Acquittal Appeal No. 103 of 1998).

Ali Azhar Tunio, Asstt. A.-G., Sindh for the State.

Date of hearing: 14th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1525 #

2001 Y L R 1525

[Karachi]

Before Abdul Ghani Sheikh, J

RASHID NAEEM alias RASHID MULLA---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1133 of 1998, decided on 30th November, 1998.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Name of the accused was not disclosed by the complainant in the F.LR. and there was no eye-witness to connect the accused with the commission of the offence---Complainant had claimed that he saw the deceased in company of the accused and the others while going towards the river side and on seeing them the complainant told the deceased to be back immediately---Such piece of evidence was an afterthought as the complainant had not disclosed the fact in the F. I. R. ---No sufficient evidence was available to connect the accused with the commission of offence---Accused having succeeded to make out the case of further inquiry he was entitled to concession of bail.

Abdul Salim v. The State 1998 SCMR 1578 ref.

Makhdoom Ejaz Ahmed for Applicant.

M. Ismail Memon for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1535 #

2001 Y L R 1535

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD AKBER---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.169 of 2001, decided on 12th March, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, grant of---Injury was caused by the accused on the throat of the injured which was vital part of the body and a little deeper slit was sufficient to bring an end to the life of the injured---Injured was first removed to the hospital and within two and half an hour the matter was reported to the police--Question of delay in lodging F.I.R., in circumstances, was of no assistance to the accused for grant of bail---Complainant having no animosity to falsely implicate the accused, non-mentioning of motive in the F.I.R. was of no avail to the accused---Effect of delay in recording statement of other witnesses and the difference in number of injuries could be considered in the light of evidence to be recorded at the trial and it was premature to extend benefit of doubt on that score at bail stage---Guilt of the accused would not require further inquiry---Bail application was dismissed in circumstances.

2000 YLR 2792; Muhammad Fayyaz v. State 1995 PCr.LJ 1342; Muhammad Riaz Monna v. State 1993 SCMR 1321; Jan Muhammad v. State 1994 PCr.LJ 541; Nowsherwan v. State 1994 PCr.LJ 1476 and Taj Muhammad v. State PLD 1963 Kar. 118 ref.

Syed Jawaid Haider Kazmi for Applicant.

Jawed Akhtar for the State.

Date of hearing: 12th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1546 #

2001 Y L R 1546

[Karachi]

Before Ghulam Nabi Soomro and Ata-ur-Rehman, JJ

MUHAMMAD AAMIR---Appellant

versus

THE STATE---Respondent

Criminal Appeal T.A. No.110 of 2000, decided on 1st March, 2001.

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

----Ss.392/492/34 & 412---Qanun-e-Shahadat (10 of 1984), Art. 22---Appreciation of evidence---Complainant who was the only star witness, had not supported the prosecution case---Complainant did not implicate any of the accused persons at all--- Magistrate who supervised the identification test parade had deposed that identification marks of the accused were not mentioned in the memo. of identification parade and that he did not remember the features of all the three accused who were put to identification parade before him---Magistrate had further stated that he did not even remember the colour and the type of clothes worn by the accused and conceded that the dummies were arranged by his Court staff---Magistrate, in circumstances, had not conducted the identification test parade with due care and caution as required by the rules---Alleged recovery of toy pistol allegedly used in the commission of offence, could not be helpful to the prosecution case---Case of prosecution was doubtful and had not been proved beyond any shadow of doubt against the accused--Conviction and sentence awarded to the accused by the Trial Court were set aside and they were acquitted by giving them benefit of doubt.

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

----Art. 22---Identification parade ---Requirement---Identification test parade should be exclusively under the supervision of the Magistrate which would include the arrangements of dummies etc. so as to avoid possibilities of false implication of the accused.

S.M. Alam Rizvi and Kh. Naveed Ahmed for Appellant.

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

Date of hearing: 1st March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1549 #

2001 Y L R 1549

[Karachi]

Before Anwar Mansoor Khan, J

UNITED BANK LTD., KARACHI---Plaintiff

versus

Messrs GRAVURE PACKAGING (PVT.) LTD. and 4 others---Defendants

Suits Nos.220 of 1995 and 493 of 1998, decided on 6th August, 2001.

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---Introduction of the Circulars by State Bank of Pakistan---Islamisation of Banking System in Pakistan---Commencement of transitional period---Judgment by Supreme Court in case of Dr. M. Aslam Khaki reported as PLD 2000 SC 225---Applicability---Laws by which the Banking business was to be conducted was set moving from the year 1962, and a concrete law was enforced from 1-1-1985---BCD Circular No.l3, dated 20-6-1984, had stated the transitional period given to the Banks for the purpose of transition from old system of banking into the Islamic System of Banking---Contention that the judgment by the Supreme Court ix case of Dr. M. Aslam Khaki would be operative from the date mentioned in it as regards the banking transition was repelled.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---BCD Circular No. 32, dated 26-11-1984---Islamisation of banking system---Constitution of Shariat Board--?Object and purpose ---Shariat Board was to arrange for exchange of information for the evaluation of the practice and for providing guidance of successfully managing the Islamic economy---Islamic economy is in its totality the economy of the country and laws in respect of, not only the banking but also in other aspects which included interest being charged by other institutions, payment to various Banks and other such-like transformation---Supreme Court in its judgment in the case of Dr. M. Aslam Khaki PLD 2000 SC 225 had given period of transformation.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---BCD Circular No. 32, dated 26-11-1984---Islamisation of economy--?Judgment by Supreme Court in case of Dr. M. Aslant Khaki reported as PLD 2000 SC 225---Effect of the judgment on BCD Circular No.13, dated 20-6-1984 and BCD Circular No. 32, dated 26-11-1984---Supreme Court in the judgment gave various aspects of law for transformation and for that purpose specific time had been given---Circulars Nos. 13 & 32 which were in force since 1-1-1985, were valid legislation and continued to remain in force.?

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

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

----Arts. 227 & 230---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Islamisation of laws--?Council of Islamic Ideology--?Recommendations of---Circulars Nos. 13 & 32 were introduced upon the recommendations of the Council of Islamic Ideology for bringing the existing laws into conformity with the Injunctions of Islam---Both the Circulars were the consequence of the reports of the Council provided for the furtherance of Islamic financing where mark-up on mark?-up had been stated to be un-Islamic and usurious ---Riba was disallowed and because of such disallowance the Circulars were in line with the arguments put forward for the purposes of Islamic financing.?

Commissioner Income-tax, Peshawar Zone v. Simen A.G. PLD 1991 SC 368; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Maple Leaf Cement Factory Limited v. Collector of Excise and Sales Tax 1993 MLD 1645 and Pakistan v. Public-at? Large PLD 1986 SC 240 ref.

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

----Art. 2A---Expression 'Injunctions of Islam' in Art.2A of the Constitution ---Scope--?Expression 'Injunctions of Islam' has not been left to the discretion of the Courts and notions of the individuals but the same has been clearly spelt out, as only those Injunctions which have been laid down by the Holy Qur'an and the Sunnah of the Prophet (p.b.u.h.)---Under the Injunctions of Islam no such act of violating the Injunctions will be permissible which does not pay attention to the text of the Holy Qur'an and the Sunnah and its interpretation together with its Khamir' and 'Zamir'.?

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---BCD Circular No. 32, dated 26-11-1984---Constitution of Pakistan (1973), Art. 230---Islamisation of banking system---Issuance of BCD Circular No-13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984---Issuance of Circular by the State Bank of Pakistan---Scope---Council of Islamic Ideology had proposed and Federal Government and State Bank of Pakistan by acting on that proposal had given direction to the Banks to finance under the mode prescribed which was confirmed by Federal Shariat Court and eventually approved by the Shariat Appellate Bench of Supreme Court in the case of Dr. M. Aslam Khaki.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 and Dr. Mehmoodur Rehman Faisal and others v. The Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan PLD 1992 FSC 1 ref.

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---Islamisation of banking system--?Introduction of Islamic Financing---State Bank of Pakistan and all others were duly connected and were party in the transformation of the Banks by the introduction of the Islamic Financing to be governed by BCD Circular No. 13, dated 20-6-1984---Circular provided the 'Modes of Transaction' which were categorically mentioned wherefore the whole system commenced.

(h) Islamic Jurisprudence---

---- Riba---Concept ---Riba in its every form is forbidden and the increase or decrease of the rate of interest does not affect the same being otherwise.?

Dr. Mehmoodur Rehman Faisal and others v. The Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan PLD 1992 FSC 1 ref.

(i) Islamic Jurisprudence---

---- Financing in Islam---Interest (Riba) free economy---Effect on general public--?Attitudes are changing gradually and in the last few years value neutral conventional banking has begun to trouble the conscience of an increasing number of people--?Reluctance is seen to hand over the funds to Banks and financial institutions that invest in companies engaged in unethical and socially harmful activities---Emerging Islamic banking scene has succeeded in achieving general acceptance.?

Islamic Finance: A Euromoney Publication, 1997 ref.

(j) Islamic Jurisprudence---

---- Financing in Islam---Interest (Riba) free banking---Salient features---Islamic banking is an instrument for the development of an Islamic economic order---Islamic financial system employs the concept of participation in the enterprise, utilising the funds at risk on a profit and loss sharing basis which by no means implies that investments with financial institutions are necessarily speculative---Such system can be excluded by careful investment policy, diversification of risk and prudent management by Islamic financial institu?tions ---Investment in Islamic financial institutions can provide potential profit in proportion to the risk assumed to satisfy the differing demands of participants on the contemporary environment and within the guidelines of the Shariah---Concept of profit and loss sharing, as a basis of financial transactions is a progressive one as it distinguishes good performance from the bad and the mediocre---Said concept, therefore, encourages better resource management---Islamic Banks are structured to retain a clearly differentiated status between shareholder's capital and client's deposits in order to ensure correct profit sharing according to Islamic Law---Some of the salient features of the order summed up.

Following are the few salient features of Islamic Economic Order:--

(1) While permitting the individual the right to seek his economic well? being, Islam makes a clear distinction between what is Halal (lawful) and what is Harram (forbidden) in pursuit of such economic activity. In broad terms, Islam forbids all forms of economic activity, which are morally or socially injurious

(2) While acknowledging the individual's right to ownership of wealth legitimately acquired, Islam makes it obligatory on the individual to spend his wealth judiciously and not to hoard it, keep it idle or to squander it.

(3) While allowing an individual to retain any surplus wealth, Islam seeks to reduce the margin of the surplus for the well-being of the community as a whole, in particular and destitute and deprived sections of society by participation in the process of Zakat.

(4) While making allowance for the ways of human nature and yet not yielding to the consequences of its worst propensities, Islam seeks to prevent the accumulation of wealth in a few hands to the detriment of society as a whole; by its laws of inheritance.

(5) Viewed as a whole, the economic system envisaged by Islam aims at social justice without inhibiting individual enterprise beyond the point where it becomes not only collectively injurious but also individually self-destructive.?

(k) Islamic Jurisprudence---

---- Riba An-Nasee'a---Explained.?

(l) Islamic Jurisprudence---

---- Riba Al-Fadhl---Explained.?

(m) Islamic Jurisprudence---

---- Loan---Concept---Loan is not a business transaction but is a form of 'Sadaqa' or charitable transaction and the money returned must be the same as the money given.

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---BCD Circular No. 32, dated 26-11-1984---Islamisation of Banking System---BCD Circular No. 13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984---Effect---While issuing the Circulars complete conscious effort was put in by the Government which included the bankers, to bring about the transformation in the existing system in the banks for shifting to the Islamic modes of financing.?

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984, Annex. I---Islamisation of Banking System---Forms of transaction allowed by BCD Circular No.13, dated 20-6-1984--?Annexure I to BCD Circular No.13, dated 20-6-1984, had provided three basic forms of transactions which were allowed viz. the first being, 'Financing by Lending', from the title it was clear that though, otherwise in the usual parlance 'financing' and 'lending' would have in fact meant the same, but when ''financing' was used with 'lending' saying, that there was lending, which would mean that there was a 'loan' given to finance some person---Word finance' will have to be given a separate meaning and was to be treated to be 'lending' simpliciter---'Lending' were loans i.e. the delivery of money to another person---Money, therefore, being a 'debt' created by way of lending, question would arise whether such debt created by lending could attract a levy of further sums on elapse of time for repayment as would be done under the normal banking system on any money lent which would carry interest--?Under BCD Circular No.13 categorically stipulated, that, where there was a 'lending' the 'debt' so created by giving 'money' to another person or financing to other person by way of lending, the Banks under cl. A(i) to Annex. I, to BCD Circular No.13, dated 20-6-1984, were only allowed to recover 'Service Charges' which were not to exceed the proportionate costs of operation and as such the Circular had forbidden interest or mark-up on loans.?

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984, Annex. 1---Islamisation of Banking System---Restrictions imposed by BCD Circular No.13, dated 20-6-1984, Annex. 1---Financing in modern world-?Practice and procedure---Service charges, extent of---Money, in the modern world is obtained from various source, which involves cost---If such cost is taken into account, and if that money which is lent, the usual course is that the bankers charge interest, which carries its own spread alongwith the cost of funding and provision of bad and doubtful debt, to arrive at a rate of interest that, till such time the money is repaid, the debtor continues to pay an additional sum for utilising the money---Such practice has categorically been restricted by Annex. 1 of the BCD Circular No. 13, dated 20-6-1984---Judgment by Supreme Court in case of Dr. M. Aslam Khaki PLD 2000 SC 225 only reaffirms the same and categorically states that nothing can be added for the purposes of utilisation of 'money'---BCD Circular No.13, dated 20-6-1984, has prohibited the Batiks to charge, except for the service charges, any other amount on a debt, to the extent that the cost of obtaining funds by the lending agency and provisions by such lender of his bad debt and charging interest has categorically been done away with--?Service charges are only the cost of the actual Bank's operation and the maximum of which was to be determined by the State Bank of Pakistan from time to time as such the same has shown the importance that has been attached to the fact that no 'increase' or 'addition' by elapse of time can be made on a 'debt' or 'loan' i. e. 'on money lent'.?

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

(q) Islamic Jurisprudence---

---- Qard-i-Hasana--- Meaning--- Qard-i-?Hasana is a loan given on compassionate ground, free from 'interest', 'mark-up' or 'service charges' and repayable, 'if' and 'when' the borrower is able to pay.

(r) Constitution of Pakistan (1973)---

----Arts. 227 & 230---BCD Circular No.13, dated 20-6-1984---Mode of financing dealt with, in BCD Circular No. 13, dated 20-6-1984---Money whether goods or commodity---Trade Related Modes of Financing---Scope---Various modes have been provided, one of which is, purchase of goods by Banks and their sale to the clients at an appropriate mark-up in price for deferred payment and same is the most utilised manner of 'financing ---Term 'loan' or 'lending' is missing in such type of mode of financing, and it is 'financing' that is being used--?'Financing' is not 'lending', it is a form of business activity, which has been termed in the title as 'Trading', thus, the finance earned by trading, cannot be termed as a 'loan' of money---Permissible mode allows purchase of 'goods' or various commodities by Banks as such the 'purchase' never means purchase of 'money' and the same amounts to 'lending money' which is not allowed by the BCD Circular No. 13, dated 20-6-1984, and even if allowed, no addition can be made to it---Money is not 'goods' or 'commodity' that has to be purchased---'Money' under the provisions of cl. B(i) of Annex. I of BCD Circular No.13, dated 20-6-1984 is neither 'goods' nor 'commodity'---Banks are allowed to sell goods that are required by their clients and it is the 'sale price' of such 'goods' that is the financing.?

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---Mark-up on mark-up, charging of---Judgment by Supreme Court in case titled Dr. M. Aslam Khaki reported as PLD 2000 SC 225---Effect---Permissible mode of financing by sale and purchase cannot carry any mark-up on mark-up and the same is not allowed even in the event of default---BCD Circular No. 13, dated 20-6-1984, and the judgment of Supreme Court provide the same end result---Practice of keeping mark-up in a separate account and principal in a separate account and charging mark-up on the principal and not on the mark-up is not contemplated by the BCD Circular No.13, dated 20-6-1984---Once the principal debt is determined, the debt becomes finance by lending and no mark-up, by whatever name called, can be charged---If one were to presume that such mark-up on the mark-up cannot be charged, but can be charged on the principal money lent, the outcome would in fact be the same.

(t) Interpretation of statutes---

----Bypassing existing law---No one can circumvent the law, no one can be allowed to act otherwise than what is provided by law--?If a thing has to be done in a specific manner, it has to be done in that manner alone and none else---No one can be allowed in the name of their own profitability to cause the existing law to be bypassed, avoided or interpreted, or usage or customs to be developed which are contrary to an existing unequivocal and exact law.?

Mian Muhammad Nawaz Sharif v. The President of Pakistan PLD 1993 SC 473; Banque Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272; Mst. Aisan v. Manager, Agricultural Development Bank of Pakistan, Chunian 2001 CLC 57 and Muhammad Ramzan v. Citibank N.A. 2001 CLC 158 ref.

(u) Words and phrases---

---- Interest (as in financing) ---Defined--?Interest is an increase on money by elapse of time i. e. that a sum that is continued to be paid till such time the debt remains in place at a certain rate and for utilisation of monies that may have been given to another person.?

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---BCD Circular No. 32, dated 26-11-1984---Distinction---Only thing that para.4, cl. (3), of BCD Circular No.32, dated 26-11-1984, changes is in cl. 3 of BCD Circular No.13, dated 20-6-1984, which gives the date of 1-4-1985, to be a cut off date for financing to individual, whereas such date has been modified to 1-1-1985 in para. 4, Cl.4 of Circular No. 32.?

(w) Interpretation of statutes---

---- Provisions of statute, understanding of--?Entire clause has to be read for the purpose of understanding the provision of statute.?

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---BCD Circular No. 32, - dated 26-11-1984---Contract Act (IX of 1872), Ss. 23 & 62---Islamisation of economy --?Riba---Contract against public policy --?Novation of contract---Renewal of contract of debt by addition of mark-up---Charging mark-up on mark-up---BCD Circular No.13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984--- Effect--- Subsequent agreement whereby there is a settlement of previous debt or is renewal thereof, amounts to defeating the provisions of the specific law available, and thus, same would not be the novation but an independent agreement contemplating an actual sale and purchase which is entered only for renewing the previous debt and shall be a void agreement---Such renewal of the contract is window dressing and all profits shown are nothing but added mark-up---Mark-up cannot be allowed to be added to an 'existing debt', as there can be no agreement between the parties in respect of that 'specific debt' except that there can be enlargement of time and that too without increase in the debt payable---No one can be allowed to play a fraud on the existing law by trying to avert the existence of such law that prescribes that mark-up on mark-up cannot be charged---Act of entering into a future transaction admittedly is in respect of renewal of financing and does not contain any aspect of actual disbursement or payment---Such contracts are contracts that are against the public policy---Effect of BCD Circular No. 13, dated 20-6-1984 and BCD Circular No. 32: dated 26-I1-1984, is that where a default has been made the Bank was required , take .legal steps ---Co-relation has been developed between not charging mark-up and proceeding to recover money instead--?Mark-up cannot be added for the renewal of debt---Taking additional amount on the debt in Riba which is prohibited.?

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Bank of Oman Limited v. East Trading Company PLD 1987 Kar.404; Habib Bank Limited v. Muhammad Hussain PLD 1987 Kar. 612; Muhammad Bachal Memon v. Government of Sindh PLD 1987 Kar. 296; Aijaz Haroon v. Inam Durrani PLD 1989 Kar. 304; Habib Bank Limited v. Messrs Farooq Comport Fertiliser Corporation Limited and 4 others 1993 MLD 1571; United Bank Limited v. Ch. Ghulam Hussain 1998 CLC 816; United Bank Limited v. Central Cotton Mills Limited 2001 MLD 78 and Banque. Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272 ref.

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

----Ss.41 & 42---SBP Circular No. BID(Gen) 2470/601-04-90 & BID Circular No.3, dated 20-2-1989---Re schedule or re-structure of financial obligations---Guidelines to Banks--?Nowhere in the Circulars has been stated that an additional mark-up can be charged on a debt for extending the time for payment, it is the mark-up that has already been charged for the purposes of arriving at marked-up price which is allowed to be capitalised--?Capitalisation only brings it in the line of the accounting system---Such was advised through -the circulars to the Banks only for their accounting purposes and nothing else.

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

----S. 9---Contract Act (IX of 1872), Ss. 23 & 62---Void agreement---Suit for recovery of Bank loan---Charging of mark-up on mark? up ---Novation of contract---Contract against public policy---Entering into new contract including the amount of mark-up ---Validity--?Subsequent agreements do not change the previous agreements, there is no mention or reference of the previous agreement---Only document shown is a sanction advice which is an internal document of the Bank---Document could be seen only to what was approved by the Bank-- Agreement overrides all arrangements---Sanction advice, in the presence of the agreement, vis-?-vis the customer cannot be construed to the disadvantage to the customer---Agreement is the document signed by both parties the contents of which have to be seen---Banks have been restrained from adopting any measures or practice whereby they, either artificially or temporarily show an ostensibly improved position of the Bank account--?Addition of mark-up is added towards the assets of the Bank which gives an ostensibly improved position of the Bank accounts and the same cannot be allowed---What cannot be done directly cannot be done indirectly and any contract which is of such nature that if permitted would defeat the provisions of any law or which is contrary to public policy is a void agreement ---Where mark-up is capitalised and added to the principal amount (principal means the sale price) and having arrived at the repurchase price, any increase by way of renewal, capitalisation, booking on accrual basis or by any means will be nothing but addition of mark-up on mark-up---Bank can only seek recovery of the marked-up price under the first agreement---If, however, the Bank is able to establish the fact that the amount has been actually disbursed under the subsequent agreement and it is not for the purpose of adjustment of the previous debts and that there has been a de facto sale and purchase in commodity, in that situation all agreements that may have been entered into for such purposes and independent of the previous agreements, can be looked into and money is recoverable there-against.?

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225; Hashwani Hotels Limited v. Federation of Pakistan PLD 1997 SC 315; Mian Muhammad Nawaz Sharif v. The President of Pakistan PLD 1993 SC 473; United Bank Limited v. Central Cotton Mills Limited 2001 MLD 78; PLD 1962 Kar. 334; AIR 1943 PC 147; 1994 CLC 2272; 2000 CLC 1602; PLD 1964 SC 337; PLD 1983 Kar. 176; Moudood Ahmed Farooqui v. Ameen Fabrics PLD 1983 Kar. 176 and Al-Qur'an (2:280) ref.

(aa) Contract Act (IX of 1872)---?

----S. 23---Expression public policy'--?Concept---Scope.?

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

----S. 171---Lien---Provisions of S.171, of Contract Act, 1872---Applicability---Lien can only be exercised on a credit in the account of Bank to set off a liability and not by additional credit to set off previous debt---Debit is not a credit of a customer and where it is not a credit of the customer, provisions of S.171 of the Contract Act, 1872, are not applicable.

(cc) Sale of Goods Act (III of 1930)---

----S.4(4)---'Agreement to sell' becoming a 'sale'---Conditions to be fulfilled---Transfer of property in the goods which is the principal element of sale was a condition to be fulfilled.?

Wafaq-i-Pakistan v. Awamun Nas 1988 SCMR 2041 and Pakistan v. Public at Large PLD 1986 SC 240 ref.

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

----S.9---Sale of Goods Act (III of 1930), S.4---Recovery of Bank loan---Re-scheduling of finance agreement---Inclusion of mark-up in principal amount---Validity---Sale only accrues when commodity is transferred to the purchaser or consideration thereof has been paid---Agreement which is a subsequent one does not have the ingredients of a sale and at the best can be treated an 'agreement to sell', such agreement can possibly be specifically enforced whereby, the purchaser may seek direction against the seller upon payment of actual consideration to sell his property, but if not so done repurchase price mentioned in the subsequent agreement cannot be taken to be a debt payable by the purchaser--?Agreements made subsequently with an aim to avoid and defeat the provisions of law of not charging of mark-up on mark-up are void.?

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 and Moudood Ahmed Farooqui v. Ameen Fabrics PLD 1983 Kar. 176 ref.

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

----S. 23---Contract out of law---Scope--?Parties cannot contract out of the provisions of Act.?

Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. AIR 1959 SC 689 and Anayat Ali Shah v. Anwar Hussain 1995 MLD 1714 ref.

(ff) Constitution of Pakistan (1973)--

----Arts. 189, 203-D, 203-F & 203-GG--?Decisions of Supreme Court and Federal Shariat Court ---Effect---Decision of Supreme Court is binding on High Courts under the provisions of Art. 189 of the Constitution, whereas the order of Federal Shariat Court is also binding under Art.203-GG subject to Arts. 203-D & 203-F of the Constitution.?

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

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---BCD Circular No. 32, dated 26-11-1984---Banking system---Effect on--?BCD Circular No.13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984, changed the entire law, its perspective and modes and methods of banking, converting them into trade-related modes---Loans were only treated to be given without any mark-up and increase except for service charges.?

(hh) Interpretation of statutes-

---- Law declared ultra vires---Effect---Where a law has been declared to be ultra vires, such declaration acts prospectively and not retrospectively.

(ii) Interpretation of statutes---

----Law declared intra vires---Effect---Where a law has been declared to be intra vires, it is only the interpretation of the specified law that has to be taken into account--?Present judgment cannot be said to act prospectively.

(jj) Interpretation of statutes---

---- Vacuum left in a law---Where vacuum in law is left by statutory silence, the prevailing mode having full Constitutional support would be for the application of Islamic Common Law.?

Muhammad Bashir v. The State PLD 1982 SC 139 and Fazal Ghafoor v. Chairman, Tribunal Land Disputes 1993 SCMR 1073 ref.

(kk) Islamic Jurisprudence---

---- Islamic Financing System---'Bai Muajjal' and 'Murabaha' transaction-- Concept--?Such transaction is that the Bank having purchased as re-sold the commodity at a higher price to the customer and at such a point the customer is not required to pay the sale consideration but what is required of him to do so within the specified period at an agreed repurchase---Consideration for the sale of the commodity by the Bank to the seller cannot be adjusted against this re?purchase price, as it is Bai Muajjal the payment is deferred--- Consideration for the re-sale by the Bank to the customer is a contract between the two and such becomes a debt---Such debt is, therefore, only liable to be paid by the customer---No question of revolving facility would arise as it is the amount that is available with the customer being the sale consideration of the sale made to the Bank.?

(ll) Islamic Jurisprudence---

---- Riba---Concept---Any increase or difference in the value thereof is usurious and comes within the definition of 'Riba'.

Sahih Muslim, Book 9, No.3795 by Abdullah ibn Abu Qatadah; Sahih Muslim, Book 8, No.3849 by Uthman ibn Affan; Sahih Muslim, Book 9, No.3854 by Abu Sa'id Al; Khudi and Sahih Muslim, Book 9, No. 3856 by Abu Hurayrah ref.

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

----S.10---Leave to defend the suit, grant of--?Bona fide dispute---Charging mark-up on mark-up---Judgment by Supreme Court in case titled Dr. M. Aslam Khaki reported as PLD 2000 SC 225---Effect---Where the Bank had charged mark-up on mark-up from the defendant, such was genuine and bona fide dispute---Leave to defend the suit was granted in circumstances.?

(nn) Banking Tribunals Ordinance (LVIII of 1984)---

----S.2(e)---BCD Circular No. 13, dated 20-6-1984---Expression 'accommodation' or facility'---Meaning---Word 'accommodation' or facility' has to be read in conjunction with the words 'not based on interest' and in reading the fact that it is not based on interest, reference has to be made to the proceedings of BCD Circular No.13, dated 20-6-1984 issued by State Bank of Pakistan in respect of the finances to be granted in terms of the Islamic System of Banking.

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

----Ss.3-A & 25---Directions given to Banking Companies---Effect of---Powers of State Bank---State Bank of Pakistan, under the provisions of Ss.3-A & 25 of Banking Companies Ordinance, 1962, can give directions to the Banking Companies and the Non-Banking Financial Institutions (N.B.F.Is.) to act in accordance with such directions---Such directions are binding on all the Banks and Non-Banking Financial Institutions and the same are as a consequence of promulgation of the statute or an Act of Parliament---State Bank of Pakistan can give the directions to the Bank whenever it is satisfied that it is necessary or expedient in public interest.?

Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 ref.

(pp) Islamic Jurisprudence---

---- Financing in Islam---Charging of interest by Banks---Banks are required to proceed in the manner that, they would not charge any interest and will act in accordance with law, i.e. Banking in the Islamic System of Financing.?

(qq) Constitution of Pakistan (1973)---

----Art.2A---Objectives Resolution---Effect on Fundamental Rights given in the Constitu?tion ---Constitution has adopted the Injunctions of Islam as contained in the Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) as the real and effective law and Injunctions are now the positive law---Provisions of Art.2A of the Constitution have made effective and operative the sovereignty of Almighty Allah and it is because of that Article that the legal provisions and principles of law, embodied in the Objectives Resolution, have become effective and operative---Every man-made law must now conform to the Injunctions of Islam as contained in the Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.)---Even the Fundamental Rights as given in the Constitution must not violate the norms of Islam.?

Zaheeruddin and others v. The State 1993 SCMR 1718 ref.

(rr) Banking Tribunals Ordinance (LVIII of 1984)---

----S.6---Recovery of Bank loan---Roll-over agreement of Bank loan---Void agreements--?Charging of mark-up on roll-over agreement---Validity---Roll-over agreements that had been entered into and not acted upon, as no disbursements had been made, were void---No claim could be made by the Banks on the basis of the agreements---All documents, whether negotiable instruments or otherwise were, as a consequence, also void---No roll-over could be allowed, and that the amount payable would be the amount on the basis of the agreement against which disbursement had been made---Where the statement/break-up of liability filed by the plaintiff-Bank was not from the actual disbursement, the suit was decreed in the sum of amount actually disbursed.?

Habib Bank Limited v. Qayyum Spinning Limited and others 2001 MLD 1351; Dr. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225; U.B.L. v. Central Cotton Mills Ltd. 2001 MLD 78; PLD 1962 Kar. 334; AIR 1943 PC 147; 1994 CLC 2272; 2000 CLC 1502; PLD 1964 SC 337; PLD 1983 Kar. 176; Webster's Dictionary; Oxford Dictionary; Sirajuddin v. Sardar Khan 1993 SCMR 745; Muhammad Ramzan v. Citibank N.A. 2001 CLC 158; U.B.L. v. Chaudhary Ghulam Hussain 1999 PTCLR 162 (Lahore); NLR 1988 TD 403; U.B.L. v. Messrs Novelty Enterprises PLD 1998 Kar. 199 and Habib Bank v. Farooq Compost Fertilizer Corporation Limited 1993 MLD 1571 ref.

(ss) Banking Tribunals Ordinance (LVIII of 1984)----

----S.6---Recovery of Bank loan---Onus to prove---Defendants guarantors denied signing of any guarantee---Effect---Where there was denial, the onus was on the plaintiff-Bank to prove that the gurantees were signed by the defendants guarantors---No evidence was led by the plaintiff-Bank to prove that the signatures contained on the guarantees were in fact the signatures of the defendants guarantors---Defendants guarantors were not liable to pay the loan---Suit was dismissed accordingly.

Azizur Rehman for Plaintiff.

Saalim Salam Ansari and Abid Sherazi for Defendants.

Date of hearing: 16th May, 2001

YLR 2001 KARACHI HIGH COURT SINDH 1633 #

2001 Y L R 1633

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

ABDUL HAMEED and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.48 and Criminal Jail Appeal No.53 of 1992, decided on 22nd March, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/149 & 365-A/149---Appreciation of evidence---Identification parade--Possibility of the accused having been shown to the prosecution witness before holding the identification parade could not be ruled out--Witnesses while identifying the accused in the identification parade had not assigned to the accused the respective roles played by them during the commission of the offence and no proper ratio of dummies was mixed up with accused as required under law---Such identification parade was of no help to prosecution---Murder of the deceased had not been proved--- Complainant and the kidnapees had not supported the prosecution case with regard to the payment of ransom to the accused---Three co-accused alleged to have received ransom money had been acquitted by to Trial Court---Prosecution evidence was full of material contradiction---Accused were acquitted on benefit of doubt in circumstances.

PLD 1996 Kar. 246 and 1995 SCMR 127 ref.

Allah Bachayo Soomro for Appellants (in both the Appeals).

Ali Azher Tunio, Asstt. A.-G. for the State (in both the Appeals).

Date of hearing: 20th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1639 #

2001 Y L R 1639

[Karachi]

Before Faiz Muhammad Qureshi, J

SHAHBAZ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.84 of 2001, decided on 1st March, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/319/34---Bail, grant of---Deceased had sustained injury on his head by the brick---- Version of the prosecution was that accused had hit the brick on the head of the deceased---Accused had stated that scuffle took place between the accused and others with the deceased during play and during that incident the deceased fell down on the ground and his head was hit on the bricks lying on the ground and he expired ---Challan submitted by the police had supported the version of the accused saying that it was accidental death and the offence fell under S.319, P.P.C.---Case appeared to be on the borderline as to whether the offence would fall under S.302, P.P.C. or under S.319, P. P. C. and it was yet to be thrashed out by the Trial Court as to whether the deceased died due to in juries of brick lying on the ground or whether it was thrown by the accused---Case being of further inquiry and the accused having made out a good prima facie case for grant of bail same was allowed to him.

Agha Ghulam Muhammad Khan Durrani for Applicant.

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

Date of hearing: 1st March, 2001

YLR 2001 KARACHI HIGH COURT SINDH 1647 #

2001 Y L R 1647

[Karachi]

Before M. Ashraf Leghari and Muhammad Mujeebullah Siddiqui, JJ

Ms. BENAZIR BHUTTO ---Petitioner

versus

THE STATE---Respondent

Criminal Revision No. 110 of 2001, decided on 16th August, 2001.

(a) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.16---Penal Code (XLV of 1860), Ss.468/471/34---Prevention of Corruption Act (II of 1947), S.5 (2)---General Clauses Act (X of 1897), S.24 A---Criminal Procedure Code (V of 1898), S.439---Revision---Exemption of applicant from personal appearance granted by the Supreme Court was withdrawn by the Trial Court---Validity---Supreme Court had dispensed with the personal attendance of the applicant in Trial Court---Trial Court had withdrawn the said exemption on the sole ground that it was empowered to direct personal appearance of the applicant in the Court---Impugned orders did not contain the reasons and did not show as to how the withdrawal of exemption was reasonable, fair, justified and for the advancement of the purposes of the National Accountability Bureau Ordinance, 1999, i. e. expeditious conclusion of trial, under which the applicant alongwith others was being tried by the Accountability Court---Impugned orders, therefore, suffered from impropriety and did not conform to the mandatory requirement of S.24-A of the General Clauses Act, 1897--Purpose of the National Accountability Bureau Ordinance, 1999, was to dispose of the accountability cases expeditiously and without any delay, but in course adopted by the Trial Court had not advanced the purpose of the said Ordinance, rather it had caused unnecessary delay---If the Trial Court had continued to proceed against the applicant in the presence of her Advocate as was done from the stage of recording the plea to the conclusion of recording of prosecution evidence, by now the proceedings would have been concealed---Impugned orders were consequently set aside and the applicant was allowed to avail the exemption granted by the Supreme Court and to be represented through her Advocate---Revision petition was allowed accordingly.

State Bank of Pakistan v. Syed Nasir Hussain Zaidi PLD 1988 Kar. 379 ref.

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

----S.367---General Clauses Act (X of 1897), S.24-A---Administration of justice--Judgment---Every judicial order should be a reasoned order ---Exercise of jurisdiction vested in any judicial Authority should be for objective reasons appearing in the order, failing which it is liable to be assailed as an order suffering from impropriety, nonapplication of mind and arbitrariness.

Abdul Hafeez Lakho for Petitioner.

M. Anwar Tariq for the State.

Date of hearing: 10th August, 2001.

2001 Y L R 1706

[Karachi]

Before Anwar Zaheer Jamali, J

Pir GHULAM SHABBIR SHAH---Applicant

versus

MUHAMMAD USMAN---Respondent

Civil Revision Application No. 160 of 1986, decided on 29th May, 2001.

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

----S.8---Civil Procedure Code (V of 1908), O.XX, R.12---Suit for possession and mesne profits---Plaintiff had claimed that he was exclusive owner of land in dispute and that defendant had encroached upon the said land and had raised unauthorised construction thereon---Defendant had not specifically denied title of plaintiff in respect of plot in dispute---Plaintiff in proof of his claim had produced witnesses and had produced on record copy of record-of-rights in that respect---Plaintiff, by producing unrebutted oral as well as documentary evidence, had proved his title in respect of plot in dispute and unauthorised encroachment thereon by the defendant---Trial Court considering said evidence, decreed the suit, but Appellate Court ignoring said evidence, set aside judgment of the Trial Court---Commissioner duly appointed, visited the site under the order of the High Court and report submitted by said Commissioner had also supported the case of the plaintiff---Findings of Appellate Court being perverse and based on misreading of evidence, could not be, sustained---High Court, in exercise of its revisional jurisdiction, set aside judgment passed by Appellate Court below.

Inam Naqishband v. Haji Shaikh Ijaz Ahmed PLD 1995 SC 314; PLD 1971 Kar. 553; PLD 1997 Lah. 633; PLD 1975 Kar. 819; PLD 1969 SC 417; 1982 SCMR 738; 1994 SCMR 818; 2000 MLD 1013; 1992 SCMR 2334; Mst. Zareena and 5 others v. Syeda Fatima Bai PLD 1995 Lah. 388 and PLD 1998 Lah. 409 ref.

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

----S.115---Revisional jurisdiction, exercise of ---Revisional jurisdiction was primarily meant for correction of jurisdictional defects and such powers were not to be exercised, except in cases covered by S.115 (1) (a) (b) & (c) of C.P.C.---Where findings of the Courts were found to be perverse and based on misreading or non-reading of evidence, interference in such findings in revisional jurisdiction of the Court would be justified.

Muhammad Bakhsh and 4 others v. Province of Punjab 1994 SCMR 1836; PLD 1989 SC 568 and 1985 SCMR 2029 ref.

Jhamat Jethanand for Applicant.

Ejaz Ali Hakro for Respondent.

Dates of hearing: 7th and 10th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1722 #

2001 Y L R 1722

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL RASHEED---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.245 of 2001, decided on 12th April, 2001.

Criminal Procedure Code (V of 1898)-

----S. 497---Penal Code (XLV of 1860), Ss.201/109/338-B---Ofence of Zina Enforcement of Hudood) Ordinance (VII of 1979), Ss.4 & 10(3)---Bail, grant of ---F.I.R. had been filed with the delay of six months and said delay remained unexplained by the prosecution---Prosecution rested its evidence on the point of abortion, but nowhere the prosecution had been able to establish that abortion had taken place and no material whatsoever in that regard had been placed before the Court---Statement of the prosecution had been recorded after the delay of seven months and no plausible explanation had been furnished by the prosecution for said delay---Conduct of the prosecutrix was such that she might be a consenting party--Case of the accused tentatively did not fall under S.4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Case of the prosecution was riddled with material contradictions and the report of P.D.S.P., also revealed' that case was not fit for challan-- Accused had been able to create dent in version of the prosecution and he had been able to make out a good prima facie case for the grant of bail---Bail was granted to the accused, in circumstances.

1986 SCMR 938 ref.

Raza Hashmi for Applicant.

Sharafat Ali Khan for the State.

Date of hearing: 12th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1731 #

2001 Y L R 1731

[Karachi]

Before Muhammad Moosa K. Leghari, J

ABDULLAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.293 of 2001, decided on 15th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/114/34---Bail, grant of---Accused though had gun, but he did not fire any shot from the said gun---Only allegation against the accused was that of pointing the gun towards the deceased and the prosecution witnesses ---F.I.R. had stated that the coaccused who were having knives in their hands had killed the deceased with the knives---Report of Medical Officer also confirmed the fact that the injuries sustained by the deceased were caused by the knife--Accused did not take any part in causing the death of the deceased and the only allegation against him was that of instigation and pointing the gun towards the deceased---Case calling for further inquiry, the accused was granted bail.

Mumtaz Hussain and others v. The State 1996 SCMR 1125; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Farzand Ali v. Taj and 2 others v. The State 2000 SCMR 1854 and Amanat Ali v. The State 1993 SCMR 1992 ref.

Asif Ali Abdul Razzak Soomro for Applicant.

Mushtaq Ahmed Kourejo for the State

Date of hearing: 15th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1736 #

2001 Y L R 1736

[Karachi]

Before Faiz Muhammad Qureshi, J

Mst. AMRIN and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.66 of 2001, decided on 1st March, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 4, 11 & 16---Interim bail, confirmation of---Female accused had stated before the Court that she and male accused were leading harmonious life as husband and wife---Offence did not fall under S.4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and no offence was made out under Ss.11/16 of the said Ordinance after statement given by the accused---State Counsel had not opposed the confirmation of the bail---Interim bail granted earlier to the accused was confirmed, in circumstances.

Zahoor A. Baloch for Applicants.

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

Date of hearing: 1st March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1749 #

2001 Y L R 1749

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

ASIF ALI ZARDARI---Applicant

versus

GOVERNMENT OF PAKISTAN through Ministry of Interior, Pakistan

Secretariat, Islamabad and 3 others---Respondents

Criminal Miscellaneous Application No.89 of 2001, decided on 28th March, 2001.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.302/34, 325, 109, 120, 409 & 420--Prevention of Corruption Act (II of 1947), S.5(2)---Ehtesab Act (IX of 1997), S.15(1)--National Accountability Bureau Ordinance (XVIII of 1999), Ss. 18(g) & 24---Application for grant of facilities to the accused--Accused, who was facing trial in five criminal cases pending in different Courts at Karachi and also facing references before Accountability Courts at Rawalpindi and Attock, in his application filed under S. 561-A, Cr. P. C. had prayed for certain medical and other facilities and had also prayed that in the references pending against him in Rawalpindi and Attock, he may be produced at Karachi and not at Rawalpindi and Attock---Accused had not only been granted all kinds of facilities, but he had been admitted for treatment in a hospital at Islamabad which was the best hospital in the country where he was receiving all the necessary treatment---Doctors had confirmed the accused to be fit to attend the trial at Rawalpindi and Attock---High Court being not Appellate Court in Reference cases which were being tried by the Accountability Courts at Attock and Rawalpindi, it could not direct the Accountability Court not to proceed with said trials which were at the concluding stage possibly in a couple of weeks---Application filed by the accused under S.561-A, Cr. P. C. was not maintainable and Accountability Courts at Rawalpindi and Attock could not be directed not to proceed with trials against the accused.

Benazir Bhutto v. State 1999 SCMR 759; Muhammad Nawaz Tiwana v. Federation of Pakistan and others Writ Petition No.13311 of 1997 and State v. Ch. Mukhtiar and others ref.

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

----S. 561 A---Inherent jurisdiction of High Court---Exercise of---Inherent jurisdiction of High Court under S.561 A, Cr. P. C. could be invoked and exercised against the revisional order of the subordinate Court, or to quash any proceedings initiated as an abuse of the Court to warrant interference or any order passed by Investigating Officer or by any Court subordinate to such High Court.

Abubakar Zardari for Applicant.

Hafizur Rehman for Anwer Tariq, Deputy Prosecutor-General.

Raja Qureshi, A.-G. Sindh.

Syed Muhammad Zaki, Dy. A.-G.

Date of hearing: 8th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1779 #

2001 Y L R 1779

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

AMIR HAMZA and others---Petitioners

versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-146 of 2001, decided on 15th March, 2001.

Election---

---- Filing of nomination papers---Petitioners, by Constitutional petition had sought direction against Authorities to accept their nomination papers---Petition had been filed jointly by 23 petitioners without showing that as to which one of them was contesting for which" one of the posts and constituency and even the nomination papers proposed to be submitted had not been annexed with the petition---No proof was provided with regard to approaching the District Returning Officer first in order to agitate their grievance--Entire process of scrutiny of nomination papers was over and it would not be in the fitness of things to reverse back the entire process---Constitutional , petition being merit less, was dismissed---Constitution of Pakistan (1973), An. 199.

Muhammad Sharif Siyal for Petitioners.

Masood A. Noorani, Addl. A.-G.

Abdul Sattar Kazi for the Intervener.

Date of hearing: 15th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1781 #

2001 Y L R 1781

[Karachi]

Before Rasheed A. Razvi, J

Messrs CHINA HARBOUR ENGINEERING Co. ---Plaintiff

versus

WATER AND POWER DEVELOPMENT AUTHORITY and others---Defendants

Suit No.701 of 1997, heard on 15th January, 1998.

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

----O. XXIII, R.1---Withdrawal of suit--Where plaintiff would withdraw a suit unconditionally without first obtaining leave of the Court to file a fresh suit on the same cause of action, plaintiff would be precluded from filing afresh suit on the same cause of action.

Karam Chand v. Uma Datt Hans Raj and others AIR 1930 Lah. 755; Karim Bakhsh v. Jan Muhammad PLD 1977 Lah. 1033; Muhammad v. Additional Secretary, N.-W.F.P. and 8 others 1989 SCMR 995; Muhammad Yousuf Memon v. Karachi Stock Exchange Limited 1995 CLC 183; Achar and another v. Abu Baker Modi and another 1995 CLC 465 and Muhammad Bakhsh v. Member, Board of Revenue, Lahore and 2 others PLD 1992 Lah. 420 ref.

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

----S. 20---Application to file arbitration agreement in the Court---Proceedings under S.20, Arbitration Act, 1940 was to be treated as a civil suit; though it was not a full fledged civil suit in' stricto senso, but it was a legal proceedings with limited scope.

Muhammad Abdul Latif Faruqi v. Nisar Ahmad and another PLD 1959 (W.P.) Kar. 446; United Cotton Factory v. Ahmad Khan PLD 1960 (W.P.) Kar. 774; Bhima Ram and others v. Bhagat Thakardas Tikkenlal & Sons AIR 1933 Pesh. 18 and Lal Chand and another v. Sri Ram AIR 1930 Lah. 1066 ref.

----S. 20---Invoking provisions of S.20, Arbitration Act, 1940---Conditions---Party was not entitled to invoke the provisions of S.20 of Arbitration Act, 1940, unless the precondition as provided in the arbitration clause was fulfilled---Party intending to invoke provisions of S,20 was required to show that arbitration agreement exited between the parties prior to filing of the suit that a dispute existed between the parties which subject-matter was covered by the said arbitration agreement and that party had not invoked any provisions of Chap-II of Arbitration Act, 1940 earlier.

Sanad Associates v. General Manager, T & T 1989 CLC. 386; B.R. Harman v. Ghee Corporation of Pakistan Limited, Karachi 1980 CLC 1226; Messrs Electric and Radio Corporation v. Messrs Pakistan Steel Mill Corporation 1982 CLC 679 and Manzoor Construction Co. Limited v. University of Engineering and Technology, Taxila 1984 CLC 3347 ref.

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

----S. 20---Referring dispute to arbitration--Court was not required to evaluate the merits or demerits of plaintiff's claim who intended to refer matter or of alleged dispute while hearing his application/suit under S.20 of Arbitration Act, 1940---Court was required to see whether a genuine dispute existed which could be referred to the agreed arbitration arid whether the same fell within the purview of an arbitration agreement---Plaintiff had fulfilled all the pre-requirements of S.20 of Arbitration Act, 1940 while defendant was not able to show any reasonable cause as to why application/suit of plaintiff should be dismissed---Defendant was directed to file arbitration agreement in the Court and refer that matter to sole arbitrator.

Lahore Stock Exchange Limited v. Fredrick J. Whyte Group (Pak.) Limited and others PLD 1990 SC 48; Messrs Jamia Industries Limited v. Messrs Pakistan Refinery Limited, Karachi PLD 1976 Kar. 644; Messrs Zeenat Brothers (Pvt.) Limited v. Aiwan-e-Iqbal Authority and 3 others PLD 1996 Kar. 183; Messrs Mehboob Enterprises v. Karachi Development Authority and another 1997 MLD 3085; Messrs National Construction Limited v. Aiwan-e-Iqbal PLD 1994 SC 311 and Messrs Hatta Construction Co. (Pvt.) Limited v. Faisalabad Development Authority and another 1995 CLC 1877 ref.

Khawaja Bilal for Plaintiff.

Badar Alam for Defendants Nos. 1 and 2.

A.H. Mirza for Defendant No.3.

Date of hearing: 15th January, 1998.

YLR 2001 KARACHI HIGH COURT SINDH 1789 #

2001 Y L R 1789

[Karachi]

Before Dr. Ghous Muhammad, J

MUHAMMAD IQBAL AHMED SIDDIQUI and 4 others---Applicants

versus

GHULAM YASIN and 6 others---Respondents

Civil Revision Application No.225 of 1996, decided on 15th February, 1999.

(a) Islamic law---

---- Mosque, its object, status and importance---Mosque belongs to God Almighty and if is a vital religious institution of Islamic Society---Once a mosque was established it would be symbol of Allah and open for every Muslim to offer prayer five times a day---Best examples of such institutions of present times are Baitullah and Masjid-e-Nabvi, where Muslims from all over the world gather to offer prayers irrespective of their caste, creed or sect etc.---Muslims following any particular faith (Maslik) could establish mosque, but such institution should not be named after any particular Maslik---In order to maintain harmony, peace and brotherhood, it was essential that due respect and sanctity should be accorded to the faith (Maslik) whose followers constructed the mosque irrespective of the fact whether the management and control of such a mosque was in the hands of the Managing Committee or the Auqaf Department.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Sadiq and 15 others v. Chief Administrator of Auqaf, West Pakistan, Lahore and another PLD 1972 Lah.480 ref.

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

----S. 42---Constitution of Pakistan (1973), Art. 20---Suit for declaration of a mosque as "Barelvi Mosque " or "Deobandi Mosque"--Freedom to profess religion and to manage religious institutions---Discretionary relief in the form of declaration under S. 42 of Specific Relief Act, 1877 could not be given to get a mosque declared as Barelvi or Deobandi Mosque---Fundamental Rights had been guaranteed under Art. 20 of Constitution to all citizens to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions subject to law, public order and morality and Art. 20 was to be interpreted in the light of the principles laid down by the Supreme Court in Mst. Kaniz Fatima v. Wali Muhammad PLD 1993 SC 901.

Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 ref.

----S. 21---West Pakistan Waqf Properties (Administration) Rules, 1960, R. 4---Scheme for administration of Waqf property---Scheme for the management of Waqf properties was to be prepared by the Manager for settlement by the Chief Administrator for the administration of the Waqf property in his charge and the Scheme was to be designed to give effect to the wishes of the persons who had dedicated, and such wishes have to be ascertained and given effect to---Where the Waqf property was a mosque, the Scheme would ensure that the religious services and other functions performed therein were continued---Wishes of the dedicator could not be disregarded and must be given effect to and the Auqaf Department had to administer the property in accordance with the rules framed under S.21 of the Sindh Waqf Properties Ordinance, 1979.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiffs/applicants in their suit claimed that mosque in question was constructed by the people majority of whom belonged to Hanafi, Sunni, Deobandi Maslik (faith) but after taking over that mosque by Auqaf Department, same was overpowered and controlled by people belonging to Barelvi Maslik---Plaintiff sought declaration and injunction restraining the defendants professing Barelvi Maslik in mosque---Suit was decreed by the Trial Court, but Appellate Court reverted the findings of the Trial Court and dismissed the suit---Validity---Appellate Court erred in law by mis-appreciating the evidence led by the parties particularly that of the plaintiff's and also had given conflicting opinion regarding maintainability of the suit---Record had established that Deobandi Maslik was being practised by the dedicator and Namazi from time of establishment of the mosque in question till its management was taken over by the Auqaf Department, but the Appellate Court had not taken into consideration that aspect of the matter---High Court, reversed judgment and decree of the Appellate Court and upheld that of the Trial Court.

Madan Gopal and others v. Maran Bepari and others PLD 1969 SC 617 ref.

Khalilur Rehman for Applicants.

Amir Raza Naqvi for Respondents.

Date of hearing: 5th February, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 1797 #

2001 Y L R 1797

[Karachi]

Before Sabihuddin Ahmed, S.A. Sarwana and S.A. Rabbani, JJ

Agha FAKHRUDDIN KHAN---Appellant

versus

Messrs RUBY RICE AND GENERAL MILLS LIMITED and others---Respondents

High Court Appeal No. 11 of 2000, decided on 17th May, 2001.

Companies Ordinance (XLVII of 1984)---

----S. 10---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal--Maintainability---Company was wound up and earlier order accepting bid of the appellant/successful bidder for purchase of the assets of the company was recalled and the appellant had filed appeal before High Court against said interlocutory order recalling his bid---Maintainability of appeal was questioned contending that all appeals against order passed after the company had been ordered to be wound up, could be preferred only before Supreme Court either as of right or by way of special leave in terms of S. 10(1) of Companies Ordinance, 1984---Validity---Only the order directing the winding-up of a company was appealable to the Supreme Court, but an appeal in respect of any other order, decision or judgment other than relating to the winding-up, would lie to the High Court---Order passed by a Company Judge to which S.10(1), Companies Ordinance, 1984 did not apply, ought to have been treated as one having been passed under original civil jurisdiction of the High Court and was thus appealable before a Division Bench in terms of S.15, Code of Civil Procedure (Amendment) Ordinance, 1980---Objection as to the maintainability of appeal against order of Company Judge whereby earlier order accepting the bid of the appellant for purchase of assets of wound-up company was recalled, was rejected and appeal could be placed before Division Bench for appropriate orders.

Muhammad Farooq v. T.J. Ebrahim Company and Alliance Motors PLD 1999 Kar. 246; Mehboob Industries v. PICIC 1988 CLC 866; Multiline Associate v. Ardeshir Cowasjee 1995 SCMR362; Ch. Jamil Ahmad v. Nippon Bobbin Co. (Pak.) Limited PLD 1991 Lah. 467; Muhammad Din & Sons (Pvt.) Limited v. Allied Bank of Pakistan 1993 SCMR 80; IDBP v. Kamal Enterprises Limited PLD 1995 Quetta 41; Brother Steel Mills Limited v. Mian Ilyas Miraj PLD 1996 SC 543; M. Suleman & Co. v. Joint Official Liquidator 1997 CLC 260; Muhammad Bux v. Pakistan Industrial Credit Investment Corporation Limited 1999 SCMR 25 and Muhammad Suleman's case 1997 CLC 867 ref.

Rashid Akhtar Qureshi for Appellants.

Asim Mansoor Khan and Bashir Ahmed Khan, Official Assignee for Respondents.

Date of hearing: 12th February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1808 #

2001 Y L R 1808

[Karachi]

Before Abdul Ghani Sheikh and Mushir Alam, JJ

Shaikh AMANULLAH---Petitioner

versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petition No.D-1047 of 1997, heard on 10th September, 2000.

(a) West Pakistan Toll on Roads and Bridges Ordinance (VIII of 1962)---

----S.3---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction---Toll Tax, imposition of---Government of Sindh vide its notification imposed Toll Tax on vehicles passing over the "Sukkur/Rohri Lands Down Bridge "---Imposition of said tax had been challenged being without jurisdiction, illegal and discriminatory--Bridge in question was the property of Federal Government as same was administered and owned by Federal Government---Powers under S.3 of West Pakistan Toll on Roads and Bridges Ordinance, 1962, had been conferred on the Provincial Government to impose Toll Tax on such roads and bridges which vested in Provincial Government---Right to impose Toll Tax on said bridge being not available to the Provincial Government, notification whereunder said tax was imposed, was -declared illegal being without jurisdiction.

Muhammad Shafi v. Town Committee Degree PLD 1999 Kar. 99 ref.

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

----Arts. 4 & 25---Right of individuals and equality of citizens---Provisions of Art-4 of the Constitution grant equal protection to all the citizens and Art.25 provides protection against discrimination.

----S.3--Constitution of Pakistan (1973)--Art.25---Equality before law, principle of--Applicability to taxation law ---Condition--Principle of equality before law with its attendant limitation would apply equally to the taxation laws as well, provided it was demonstrated that the two or more persons or group of persons claiming such equality were placed in a similar situation.

Imdad A. Avian and Gul Bahar Korai for Petitioner.

Munner-ur-Rehman, A.A.-G. for Respondents.

Date of hearing: 10th September, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 1815 #

2001 Y L R 1815

[Karachi]

Before Abdul Hameed Dogar, J

NAWAB DIN---Appellant

versus

ANWAR KAMAL SHAH and 2 others---Respondents

Criminal Acquittal Appeal No. 131 of 1999, decided on 16th February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 68---Summoning of witness ---Process-server who could not execute summons upon the prosecution witnesses requested for further time to repeat the process, but no further process was handed over to him--Investigating Officer also stated that prosecution witnesses could not be traced for want of their proper addresses---Trial Court neither passed any order on the statement of the Investigating Officer about the service being proper or improper nor repeated the process---Trial Court recorded statement of Investigating Officer and after closing the side of the prosecution, announced the judgment on the said date after recording statements of the accused---Trial Court having hurriedly disposed of the case without making proper efforts for procuring the attendance of the prosecution witnesses, judgment of the Trial Court was set aside and the matter was remanded for re-examination of the complainant and prosecution witnesses and to decide the matter in accordance with law.

Badar Munir for Appellant.

Ali Akbar for Respondents.

Dilawar Husain for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1818 #

2001 Y L R 1818

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Sarmad Jalal Osmany, J

METAL CONTAINERS EMPLOYEES UNION (Regd. No.5308)---Petitioner

versus

ALI ANWAR GHANGHRO and 3 others---Respondents

Constitutional Petition No.D-1602 of 1998, decided on 29th September, 2000.

Establishment of the Office of Ombudsman for the Province of Sindh Ordinance (IX of 1991)---

----S.32---Constitution of Pakistan (1973), Art. l99---Constitutional petition ---Maintainability---Appeal/representation before the Governor by a party aggrieved by an order passed by Provincial Ombudsman having been provided under S.32 of Establishment of the Office of Ombudsman for the Province of Sindh Ordinance, 1991, resort could not be had to the Constitutional jurisdiction of the High Court---When an adequate, alternate and efficacious remedy was available to au aggrieved party against au order passed by a Government functionary in exercise of powers under a statute, resort to Constitutional jurisdiction could not be allowed.

Ashraf Hussain Rizvi for Petitioner.

Ch. Rashid Ahmed for Respondent No. 1.

Sarwar Khan A.A.-G.

YLR 2001 KARACHI HIGH COURT SINDH 1823 #

2001 Y L R 1823

[Karachi]

Before Munir-ur-Rehman, J

ABID IQBAL --- Plaintiff

versus

Messrs APPAREL SPORTSWEAR KRC and others---Defendants

Civil Suit No. 1595 of 2000 in Civil Miscellaneous Application No. 10655 of 2000, decided on 13th March, 2001.

Partnership Act (IX of 1932)--

----S. 43---Civil Procedure Code (V of 1908), O.XL, R.1---Arbitration Act (X of 1940), S.34---Suit for dissolution of firm and appointment of receiver for distribution of business assets-- Application for stay of suit and referring the matter to arbitrator by the defendants ---Application was resisted with the contention that the same was filed with ulterior motive to avoid the execution of decree and that matter could be referred to arbitration during the subsistence of partnership and that it had no relevance with regard to the dissolution of partnership-at will---Partnership deed had provided that an V dispute about the partnership business as to interpretation or enforcement of the terms of agreement between the parties or their legal representatives would be referred for adjudication to the arbitrator---Applicants had satisfied the necessary, ingredients of S.34 of Arbitration Act, 1940 and agreement between the parties had provided for reference of dispute to arbitration--Application under S.34 of the Act for arbitration having been filed before taking any step in the proceedings and also the proceedings being between the same parties, sane was allowed and the parties were directed to refer the matter to the arbitrator according to terms of agreement between parties.

Ghulam Mohiuddin Paracha and another v. Ahmed Naseer Khawaja 1996 CLC 405 and Director, Housing A.G.'s Branch, Rawalpindi v. Messrs Makhdoom Consultant Engineers and Architects 1997 SCMR 988 ref.

Tahir Mehmood for Plaintiff.

Abrar Hassan for Defendants.

YLR 2001 KARACHI HIGH COURT SINDH 1837 #

2001 Y L R 1837

[Karachi]

Before Rana Bhagwandas and Mushir Alam, JJ

JAMIL AHMED and others---Petitioners

versus

PROVINCE OF SINDH and another---Respondents

Constitutional Petition No. D-647 of 1997, heard on 19th August, 1999.

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

----Ss.8 & 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Exclusion of areas from the territorial limits of Municipal Corporation---Authority through its Notification proposed to exclude certain areas/villages from the territorial jurisdiction of Municipal Corporation which were part and parcel. of said Municipal Corporation since considerable long time and residents of said areas were enjoying all the incidence of urban area extended by the said Municipal Corporation---Petitioners in their Constitutional petition had challenged the notification contending that it was issued without wide publicity, unjustifiably and against the wishes of the residents of the areas---Petitioners had successfully demonstrated that notification had been issued with mala fide intention, with political motivation and not in good faith--Notification in question was declared illegal and void and was quashed by the High Court holding that there was no justification to sustain the impugned notification.

(b) Administrative acts--

---- All executive acts, and deeds were to be done and performed in good faith and in exercise of authority vested in public functinaries by law---Orders, Notifications and Bye-laws were to be issued in due and proper exercise of jurisdiction, strictly in accordance with law by application of independent and judicious mind, in good faith and uninfluenced by motivation or consideration may it be political or otherwise.

Imdad Ali Awan for Petitioners.

Zawar Hussain Jafri, Addl. A.-G. for Respondents.

Date of hearing: 19th August, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 1843 #

2001 Y L R 1843

[Karachi]

Before S. A. Sarwana, J

ABDUL HAMEED---Decree-Holder

versus

Messrs PANHWAR CONSTRUCTION CO. and others---Judgment-debtors

Execution No.56 of 1999 and Suit No. 1061 of 1980, decided on 15th September, 2000.

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

----S. 12---Civil Procedure Code (V of 1908), O.XXI Rr. 10, 34 & 35---Suit for specific performance of agreement of sale---Execution of decree---Decree for specific performance of an agreement for sale of property would include possession of suit property---Request of judgment-debtors for six months' time to implement the decree was rejected as more than twenty years had already passed since the filing of the suit and more titan eleven years had passed since the passing of the decree---Judgment-debtors were directed to execute the decree and hand over vacant peaceful possession of the suit property to the decree-holder within specified period.

(b) Counsel and client---

---- Duties and limitations of counsel--Counsel is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession and to the public to ensure that these are achieved---Counsel must not mislead the Court---Attempt of counsel to argue a point of law which had already been rejected by the Supreme Court, would amount to concealment of facts and law and by so doing he would allow himself to be "used as an Advocate by those who betray their trust" which was prohibited by Injunctions of Islam---By such conduct duty of the counsel to the Court was subordinated to his duty to his client which as ate Advocate and an officer of the Court, he should have abstained from doing:

Moin Azhar Siddiqui for the Decree-Holder.

Shahid Qadeer and Usman Ghani Rashid for the Judgment-Debtor No.5.

Date of hearing: 15th September, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 1847 #

2001 Y L R 1847

[Karachi]

Before, Sarmad Jalal Osmany and Zia Parvez, JJ

MUMTAZ ALI ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.D-469 of 2000, decided on 21st December, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.21---Bail, grant of--F.I.R. was lodged against the accused by Assistant Sub-Inspector of the Police Station concerned whereas under S.21 of Control of Narcotic Substances, Act, 1997, an officer not-below the rank of Sub-Inspector of Police or equivalent had been authorised to detain and search the accused who was alleged to have committed an offence punishable under the Act---Bail was granted to the accused in view of such basic legal defect in the entire proceedings.

Khalid Nawaz v. The State 1998 PCr.LJ 2008; Khan v. The State 2000 PCr.LJ 1225; Muhammad Akram v. The State 1999 YLR 1613 and Ghulam Ali v. The State 1996 PCr.LJ 608 ref.

Muhammad Ayaz Soomro for Applicant.

Gul Hussain Solangi for the State.

Date of hearing: 6th December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 1848 #

2001 Y L R 1848

[Karachi]

Before Ghulam Rabbani and Muhammad Afzal Soomro, JJ

IMDAD ALI ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.D-10 of 2001, decided on 25th January, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 4---Bail, grant of---No private person had acted as Mashir and recovery had been witnessed only by the official witnesses---Accused had already been granted bail in a separate case registered against him under S.9 of Control of Narcotic Substances Act, 1997 and had remained in jail for more than five months---Facts and circumstances of the case had shown that property allegedly recovered from the accused was foisted on him on account of enmity--Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Gul Hassan Solangi for the State.

Date of hearing: 23rd January, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1900 #

2001 Y L R 1900

[Karachi]

Before Ghulam Rabbani, J

TALIB HUSSAIN ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 111 of 2001, decided on 3rd April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused was in jail for more than four years and nothing was on record to show that he was dangerous, desperate or hardened criminal or had indulged in any kind of terrorism---Delay in concluding the trial could not be attributed to the accused ---Co-accused to whom the injuries with Toka were attributed, had already been granted bail---Accused who was in jail for more than four years, had earned a statutory right for grant of bail---Accused was admitted to bail.

Sardar Khan v. The State 1976 SCMR 171; Bisharat Hussain v. Ghulam Hussain 1978 SCMR 375; Abdul Salam v. The State 1980 SCMR 142; Abdul Sattar and others' case 1982 SCMR 909; Khadim Hussain v. The State 1983 SCMR 124; Nazir Ahmad Zia and others v. The State 1986 PCr.LJ 1496 Mujeeb Ahmed v. The State 1998 PCr.LJ 1351 and 1998 PCr.LJ 358 ref.

Jawaid Haider Kazi for Applicant.

Arshad Lodhi, Asstt. A.-G. for the State

Date of hearing: 19th February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1909 #

2001 Y L R 1909

[Karachi]

Before Abdul Ghani Shaikh, J

Syed BABAR ALI SHAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1018 of 2000, decided on 21st September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (ILV of 1860), Ss.419, 420, 460 & 471---Bail, grant of--Allegation against the accused was that he being not a registered Advocate was fraudulently carrying on the business of an Advocate---Plea of the accused was that he was not carrying on business of an Advocate but being Chairman of a registered social welfare organization had engaged and formed the company of Advocates and was seeking help of number of other Advocates--Prosecution had not collected any evidence to show that the accused had ever appeared as an Advocate in any Court---Case against the accused being of further inquiry, he was admitted to bail.

Sathi M. Ishaque for Applicant.

Habibur Rasheed for the State.

YLR 2001 KARACHI HIGH COURT SINDH 1917 #

2001 Y L R 1917

[Karachi]

Before Wahid Bux Brohi, J

SHAFI MUHAMMAD MAGSI---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous No.459 of 2000, decided on 11th May, 2001.

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

----S. 412---West Pakistan Arms Ordinance (XX of 1965), S.13-D--Conviction recorded on plea of guilty ---Appeal---Competence--When conviction of an accused was recorded on his plea of guilty and sentence was recorded against the accused, the appeal of the accused would be maintainable only to the extent of questioning the legality or extent of sentence---Appeal against the conviction was not competent.

Mark Mitsud v. State 1999 MLD 1327; Peter Erastors v. State 1992 MLD 193 and Muhammad Arif v. The State 1992 PCr.LJ 39 ref.

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

----Ss. 403 & 561-A---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Quashing of proceedings---Trial of an accused for an offence for which he had already been tried--Trial Court could not try the accused for an offence for which he had already been tried, convicted and was awarded sentence--Sentence awarded to the accused having already been served out, further proceedings in the case would amount to abuse of process of Court---Proceedings before the Trial Court were quashed in circumstances.

Abdul Waheed Katpar for Applicant.

Muhammad Ismail Memon for the State.

Date of hearing: 11th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 1949 #

2001 Y L R 1949

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD HANEEF---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos. 206 and 207 of 2001, decided on 7th June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.412---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Two parallel and inconsistent stories about the arrest of the accused and also recovery of motorcycle--Prosecution could not explain the two conflicting versions having come on record through two F.I.Rs.---Accused was in custody for a period of ten months---Case against the accused calling for further inquiry, the accused was entitled to grant of bail.

Amjad Sahito for Applicants.

Anwar Ansari, A. A.-G. for the State.

Date of hearing: 7th June, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2021 #

2001 Y L R 2021

[Karachi]

Before Muhammad Moosa K. Leghari, J

AHSAN MIAN UNAR---Applicant

versus

THE STATE---Respondent.

Criminal Bail Application No.599 of 2000, decided on 14th December, 2000.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 109 & 34---Bail, grant of--F.I.R. was lodged instantly without any delay and the motive for the murder had also been explained in the F.I.R.---Enmity existed between the parties and the commission of the offence was premeditated---No conflict was found between medical evidence as well as ocular version given in the F.I.R---Words uttered by the deceased after having sustained bullet shot with regard to his killing by the accused, were enough to prima facie implicate the accused---Accused was not entitled to grant of bail in circumstances.

1994 SCMR 717; 1998 SCMR 441; 1982 SCMR 955; 1997 PCr.LJ 1578; PLD 1985 Kar. 27; 1989 SCMR 1987, 1997 SCMR 251; PLD 1972 SC 81; PLD 1996 SC 241; 1996 SCMR 1845 and 1997 SCMR 22 ref.

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

----S. 497---Bail, grant of ---Principles--While deciding bail application tentative assessment of evidence, could be made by the Court---Bail should not be withheld as a matter of punishment---When after tentative assessment of the evidence available on record, the Court would come to the conclusion that reasonable grounds existed to believe that accused had been guilty of offence punishable with death or imprisonment for life or imprisonment for 10 years he would not be released on bail.

---- Principle ---Facts of two criminal cases were never alike, each case was to be dealt with on the basis of its own peculiar facts and circumstances.

Sarwar Sultan v. The State PLD 1994 SC 133 ref.

Qurban Ali H. Chuhan for Applicant.

Hidayatullah Abbasi for the Complainant.

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

Date of hearing; 14th December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2027 #

2001 Y L R 2027

[Karachi]

Before Muhammad Moosa K. Leghari, J

AIJAZ ALI alias AIJAZUL HAQUE---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 678 of 2000, decided on 21st December, 2000.

Criminal Procedure Code (V of 1898)--

----S.497---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Only role attributed to the accused was that he had caught hold of the injured while his two brothers inflicted hatchet blows on the injured and no injury was caused by the accused to the injured---Case against the accused calling for further inquiry, he was entitled to the concession of bail.

Basharat Hussain v. Ghulam Hussain 1978 SCMR 357 ref.

Choudhry Aftab Ahmed Warraich for Applicant.

Anwar Ansari for the State.

Date of hearing: 21st December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2032 #

2001 Y L R 2032

[Karachi]

Before Muhammad Moosa K. Leghari, J

AZAM ALI ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 644 of 2000, decided on 30th November, 2000.

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

----S.497---Bail, grant of---Criterion---Two criminal cases were not always alike and the bail applications were to be decided keeping in view the peculiar circumstances of each case---Most important criterion was the satisfaction of the mind of the Court that the case under its consideration was a fit case or not for grant of bail in line with guidelines laid down by superior Courts.

Sarwar Sultan v. The State PLD 1994 SC 133 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Accused was continuously under detention for about two and a half years and the conclusion of the trial was likely to take further time as out of eighteen witnesses only two had been examined---Delay in conclusion of the trial had not been occasioned by the accused alone, but the prosecution and the Court were also responsible for the same and in all fairness the benefit of such delay must go to the accused---Accused was directed to be released on bail.

1998 PCr.LJ 320; PLD 1997 Kar. 156; 1984 SCMR 613; PLD 1987 Kar. 4; 1999 PCr.LJ 1235; 1995 SCMR 1087; 1998 SCMR 897; PLD 1996 Kar. 487; Shoukat Ali v. Ghulam Abbas 1998 SCMR 228; Abdullah v. The State 1985 SCMR 1509; Zahid Hussain Shah v. The State PLD 1995 SC 49; 1998 MLD 1551; 1999 PCr.LJ 1879 ref.

Syed Madad Ali Shah for Applicant.

Muhammad Azim Panhwar for the State.

Date of hearing: 30th November, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2053 #

2001 Y L R 2053

[Karachi]

Before Muhammad Moosa K. Leghari, J

MEHBOOB IQBAL---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.645 of 2000, decided on 19th December, 2000.

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

----S.497---Penal Code (XLV of 1860), S.302/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---Name of the accused appeared in F.I.R.---Accused having been arrested while in possession of unlicensed T.T Pistol, had shown that he was not a law-abiding citizen---Accused who remained fugitive from law for more than ten years was disentitled to concession of bail and even if co-accused against whom similar allegations were levelled, were granted bail, rule of consistency was not applicable to the accused due to his long abscondence--Fugitive from law and Courts looses some of the normal rights granted by the procedural as well as substantive law--Accused was not entitled to concession of bail.

Awal Gul v. Zanwar Khan and others PLD 1985 SC 402 and Sher Ali alias Sheri v. The State 1998 SCMR 90 ref.

Aslam Parvez Khan for Applicant.

Anwar Ansari for the State.

Date of hearing; 19th December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2068 #

2001 Y L R 2068

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Messrs FAZAL COTTON INDUSTRIES---Appellant

versus

Messrs COTTON EXPORT CORPORATION OF PAKISTAN (PVT.)

LTD., KARACHI---Respondent

High Court Appeal No.43 and Civil Miscellaneous Application No.490 of 2001, decided on 21st March, 2001.

Constitution of Pakistan (1973)--

---Art. 203-D---Decision of Federal Shariat Court---Date of effectiveness of---Decision of Federal Shariat Court could be deemed to be effective only upon the expiry of the period of limitation within which an appeal before the Supreme Court could be preferred or where such appeal had been preferred till the decision of the Supreme Court (Shariat Appellate Bench)---Supreme Court was entitled to fix a date upon which its judgment would become effective.

Saalim Salam Ansari for Appellant.

Date of hearing: 21st May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2074 #

2001 Y L R 2074

[Karachi]

Before Muhammad Afzal Soomro, J

ZULFIQUAR JAFFRI--Applicant

versus

THE STATE-Respondent

Criminal Bail Application No.S-386 of 2001, decided on 10th July, 2001.

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

---Ss. 497, 87 to 88--Penal Code (XLV of 1860), Ss.302/147/148/149---West Pakistan Arms Ordinance (If of 1965), S.13 D-Bail, grant of--No overt act had been attributed to the accused excepting a 'Lalkara'--Accused was alleged to have absconded, but no proceedings under Ss.87 do 88, Cr. P. C were initiated against him ---Abscondence of the accused was not such as to disentitle him from the concession of bail.

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

----Ss. 87 & 88---Abscondence---Fugitive from law and justice could loose some of the normal rights, but it could not be taken as hard and fast rule and every case had to be decided on its own facts and circumstances.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmed Korejo for the State.

Date of hearing: 10th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2089 #

2001 Y L R 2089

[Karachi]

Before Ghulam Nabi Soomro, J

HAZOOR BAKHSH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-347 of 2001, decided on 22nd June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Name of the accused did not appear in the F.I.R. and, no specific allegation of any overt act was made against him even after his identification test parade---Statements of the prosecution witnesses recorded after delay of two days were found lacking to provide normal strength to the prosecution case---Case of the co-accused who was granted bail did not appear to stand on better footing than that of the accused-- Accused was aged 16/17 years---Case of the accused being of further inquiry and not free from doubt, he was admitted to bail.

1976 SCMR 366; 1987 PCr.LJ 2423; 2000 PCr.LJ 1508 and 1994 PCr.LJ 1773 ref.

Muhammad Ayaz Soomro for Applicant.

Gul Hassan Solangi for the State.

Date of hearing: 22nd June, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2128 #

2001 Y L R 2128

[Karachi]

Before Faiz Muhammad Quraishi and Munir-ur-Rehman, JJ

ABDUL MAJEED--Appellant

versus

THE STATE---Respondent

Criminal Appeal No.85 and Confirmation Case No. 3 of 1998, decided on 13th July, 2001.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), Ss.342, 364(2) & 537--Appreciation of evidence---Recording statement of the accused---Charge against the accused was framed under S.302/34, P. P. C., but it had not been brought to the notice of the accused as to whether the charge had been framed under S.302(a), (b) or (c) and it was the right of the accused to be informed with regard to the framing of charge--Accused, in circumstances, had not been kept abreast with regard to allegations against him---Statement of the accused recorded under S.342, Cr.P.C. did not contain the signature of the accused and certificate thereon was not written in handwriting of the Presiding Officer, which was a flagrant violation of the mandatory provisions of S.364(2), Cr.P.C. and was illegality not curable under S.537, Cr. P.C. ---Charge against the accused being defective, Trial Court was directed to start the case from the stage of framing the charge and also to record the statement of the accused under the mandatory provisions of S.364(2), Cr.P.C. and to decide case in accordance with law after providing full opportunity of hearing to the parties.

1997 PCr.LJ 539; 1999 PCr.LJ 1076 and.1999 PCr.LJ 2086 ref.

Qurban Ali Chohan for Appellant.

Muhammad Azeem Panhwar for the State.

Date of hearing: 13th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2143 #

2001 Y L R 2143

[Karachi]

Before Muhammad Moosa K. Leghari, J

REHANA and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.713 of 2000, decided on 22nd December, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-L (i), 337(v), 336, 324, 147, 149 & 504---Bail, grant of---No direct role was attributed to the accused---Explanation regarding the presence of the injured at the house of the accused persons in the company of two other persons, who were waiting outside the house in a car during the odd hours of the night did not appear to be plausible---Version given in F.I.R. according to the complainant was based on the story narrated by the injured himself---Statement of the injured was recorded six days after lodging of the F.I.R. despite medical certificate did not show that he was unconscious or unable to record his statement---Statements of other prosecution witnesses were also recorded after three days of the lodging of F.I.R.---Late recording of statements under S.161, Cr. P. C. of the prosecution witnesses had reduced its value to nil in absence oaf any plausible explanation of said delay---One of the accused was in the advanced stage of pregnancy whereas the other had a suckling baby aged about one year---Case of the accused calling further inquiry, they were granted bail.

Abdul Khalique v. The State 1996 SCMR 1553 ref.

Ayaz Latif Palejo for Applicant.

Muhammad Azeem Panhwar for the State.

Date of hearing: 22nd December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2157 #

2001 Y L R 2157

[Karachi]

Before Mushir Alam, J

KHURSHID AHMED ---Appellant

versus

HIMANDAS and others---Respondents

First Rent Appeal No. III of 1998, decided on 30th March, 2000.

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

----Ss.2(f), (j) & 18---Relationship of landlord and tenant---Change of ownership-- Obligation of tenant---Once a person established that he was owner of the property by virtue of any transaction and tenant was informed of the same, then it would become obligatory on the part of tenant to pay and tender rent to the owner thereof---Real owner being permanent title-holder, would always have preference over a person who was merely a landlord and not the actual owner, more particularly when the rent collector had never claimed any hostile title against the recorded-owner ---No sooner the tenant would come to know either through notice under S.18 of Sindh Rented Premises Ordinance, 1979 or otherwise that property had vested in some other person, than it was obligatory upon him to pay and tender the rent to such owner.

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

----S.2(f) & (j)---Relationship of landlord and tenant---Rent collector as landlord---Person, who as long as was owner of a premises, was, also a landlord for all intent and purpose--Such person could not be stripped of his authority to claim, demand and recover rent or to maintain ejectment application---Person for the time being authorised or entitled to recover rent, was recognised as landlord for a limited purpose and exercise of such delegated authority by such landlord would .not confer upon him any superior or better title than the owner himself-- Authority of such landlord bereft of ownership right was not heritable---Once an owner of a property decided to exercise and assert his authority, then the tenant was left with no option, but to submit to his authority.

Baboo Din v: Nasro 1995 MLD 1460 and lqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 ref.

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

----Ss.2(f)(j) & 15---Ejectment application--Relationship of landlord and tenant---When respondent had himself admitted that the applicant was owner of the subject property, the challenge thrown by one of the legal heirs of the deceased rent collector by way of civil suit; would' not be sufficient to deprive the owner of a property to claim relief under Sindh Rented Premises Ordinance, 1979.

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

----Ss.2(f)(j), 15 & 18---Ejectment application---Relationship of landlord and tenant---Obligation of tenant to pay rent to landlord---Once having held that relationship of landlord and tenant existed between the parties and receipt of notice under S.18 of Sindh Rented Premises Ordinance, 1979 having been admitted, it was obligatory on the part of the tenant to pay rent to the owner/landlord within 30 days from the date of receipt of such notice---Tenant, instead of paying rent to the landlord after receipt of notice under S.18 of the Ordinance, deposited rent in miscellaneous case in favour of one who claimed title over the property through the late rent collector---Such payment was no deposit particularly when no restraining order of Civil Court was passed in suit filed by person claiming the title---Mere deposit of rent in miscellaneous application in favour of any other person could not independently create any right or relationship between the parties---Such deposit was subject to all just exceptions and always without prejudice to the right and obligation of the parties which were always to be determined in, proper proceedings---Such deposit in all cases would not be of any avail or save the tenant from consequences of default.

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

----Ss.2(g) & 15(2)(vii)---Bona fide personal need and landlord--Need of brother of landlord whether was personal use"---Need of brother of landlord had not been envisaged under the definition of "personal use" as given in S.2(g) of Sindh Rented Premises Ordinance, 1979---Law did not recognize the need of brother for the purpose of maintaining ejectment of tenant on that ground.

Imdad Ali Awan and Syed Ajaz Ali Shah for Appellant.

Nemo for Respondents.

Date of hearing; 30th March, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2173 #

2001 Y L R 2173

[Karachi]

Before S. Ali Aslam Jaferi, J

Mst. TAHIRA NAQVI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 153 of 2001, decided on 29th June, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused was a young lady and in advance stage of pregnancy who required proper medical care and caution---Accused was entitled to claim that the child whom she would give birth was born in free atmosphere and not in prison--Bail was granted to the accused in circumstances.

Mst. Yasmeen v. The State 1989 SCMR 269 and Mst. Baboo Jannan v. The State 1990 PCr.L.J 326 ref.

Muhammad Dawood Balouch for Applicant.

Mumtaz Ali Siddiqui, Addl. A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 2179 #

2001 Y L R 2179

[Karachi]

Before Wahid Bux Brohi, J

Mst. SAJIDA BEGUM---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 141 of 2001; decided on 7th August, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 107 & 561-A---Application for quashing of proceedings---Breach of peace--Proof---Prime factor in proceedings under S.107, Cr. P. C. was the satisfaction of Magistrate, based on information that a person was likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that could probably occasion a breach of peace or disturb the public transquillity---Such information must show strong probability of breach of peace and not mere possibility and it should not be vague and general, but noticeably distinct and definite, disclosing tangible facts and details coupled with evidence of some specific conduct showing that the person was likely to commit breach of the peace---Magi v: rate was not supposed to act unscrupulously on police report if the said essential ingredients were lacking---In case the differences between the parties related to civil dispute, concerning the question of inheritance, small quarrels among sisters and brothers could occur on such matters---Mere use of harsh or insulting words by one party would not by itself lead to a conclusion that there was apprehension of breach of peace---If one of the parties, earlier lodged a report with police, and such case was pending decision in the Court, the lodging of report would not justify initiation of proceedings under S.107, Cr. P. C.--Material on basis of which action under S.107, Cr. P. C. could justifiably be initiated was not enough to satisfy the requirements of law---Proceedings were not only a futile exercise, but amounted to abuse of process of Court arid were without legal basis as the complainant wanted to shift civil dispute to criminal Court and get the same resolved--Proceedings were quashed, in circumstances.

Ali Gohar Soomro for Applicant.

Ms. Rana Khan, State Counsel.

Date of hearing: 23rd May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2181 #

2001 Y L R 2181

[Karachi]

Before Sarmad Jalal Osmany, J

ILYAS and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 132 and 138 of 1999, decided on 8th May, 2001.

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

----S.164---Qanun-e-Shahadat (10 of 1984), Art.41---Judicial confession---Value--- Judicial confession, if given without arty coercion or delay, was to be accepted provided no material existed on record from which a Court could be persuaded to hold otherwise---Even if there was delay or certain lapses were made by the Magistrate on the administrative side regarding the confession, same could not be fatal to its evidentiary value provided the Court was satisfied that such lapses had not in any way adversely affected the voluntariness or truthfulness of the confession and also that the confessions were not tutored and were in fact given voluntarily---Retracted confession, even though could be accepted on the basis that it was voluntary and true, it should not be acted upon unless corroborated by some other reliable evidence and material particulars.

Khawand Bux v. The State 1997 PCr.L.J. 280; Habibullah v. The State PLD 1969 SC 127; Munir Mushtaq v. Collector of Customs PLD 1999 SC 1111; Syed Ali Shah alias Shahji v. The State 1993 PCr.LJ 1118; Mst. Darya Khatoon v. The State 1996 PCr.LJ 1477; Muhammad Riaz v. The State PLD 1994 Pesh. 102; Mst. Naseem Akhtar v. The State 1999 SCMR 1744; Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983; Ahmed Hassan v. The State 2001 SCMR 505; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; The State v. Farman Hussain PLD 1995 SC 1; Darey Khan v. The State 1972 SCMR -878; Haq Nawaz v. The State 2000 SCMR 785; Ghulam Khan v. The State 2001 PCr.L.J. 435 and Muhammad Anwar and another v. The State 1999 SCMR 729 ref.

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

----S.302/34---Criminal Procedure Code (V of 1898), S.164---Appreciation of evidenceEntire prosecution case depended on confessional statements of the accused---No administrative irregularity had been committed in recording confessional statements of the accused---No exception could be taken' as to the manner and methodology adopted by the Magistrate in recording the confessional statements but such confessional statements were retracted by the accused---Delay of four days in recording of the confessional statements had not been explained by the prosecution--Complainant, who had resiled from the F.I.R., should have been declared hostile and cross-examined, but that had not been done---Confessional statements themselves did not tally with F.I.R.--F.I.R. had nowhere shown that the deceased and accused who were related inter se, had any past enmity among themselves---Confessional statements which had been relied upon by the prosecution not being free from doubt the accused were acquitted of the charges against them.

----S.154---F.I.R., meaning and scope of--F.I.R. was merely a report which set into motion the machinery which finally resulted in the conviction or acquittal of the accused and it was not necessary that 'the same tallied with the prosecution's case---Even where prosecution version was riddled with uncertainties and the complainant herself had, resiled from the F.I.R., same could be taken into consideration.

Muhammad Ibrahim Soomro for Appellant (in C. A. No. 132 of 1999).

Aftab Ahmad Bhutto for Appellant (in C. A. No. 138 of 1999).

Ali Azhar Tunio, Addl. A.-G. for the State (in both Criminal Appeals).

Dates of hearing: 30th March and 2nd April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2191 #

2001 Y L R 2191

[Karachi]

Before Mushtaq Ahmed Memon, J

CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION and

another---Plaintiffs

versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY and

another---Defendants

Suit No. 876, Civil Miscellaneous Applications Nos. 4403 and 4404 of 1997, decided on 21st October, 1997.

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

----S.20---Referring dispute to arbitration--Suit for---Plaintiff/applicant, who was contractor, had sought reference of dispute with the defendant to arbitration in accordance with terms and conditions of contract arrived at between parties whereunder dispute between parties could be referred to arbitration---Dispute having arisen between parties, the plaintiff could validly seek intervention of Court for reference to arbitration under S.20 of Arbitration Act, 1940---Proceedings though at the time of institution were premature, but same having been matured during the pendency thereof, the relief could not be declined merely - on technical grounds--Engineer to whom dispute was first to be referred according to terms of contract had given his decision---Mere fact that the plaintiff had not referred the matter earlier to the Engineer, but it was referred by the defendant, would make no difference since either of the parties could approach the Engineer---Application under S.20 of Arbitration Act, 1940 was granted and the matter was referred to sole arbitrator.

Messrs Suleman & Co. v. Islamic Republic of Pakistan and 2 others 1980 CLC 2183; B.R. Harman and Mohatta Limited v. Ghee Corporation of Pakistan Limited 1980 CLC 1679; Sanad Associate v. General Manager, Telephone and Telegraph, Quetta 1989 CLC 386; M/s. Gagun Construction Pakistan v H.M. Jafferi and another 1989 ALD 394; Abdullah Bhai v. Ahmed Din PLD 1964 SC 106; Mst. Ameena Begum v. Mehar Ghulam Dastagir PLD 1978 SC 220 and Younus v. Ms. Hameeda 1982 CLC 580 ref.

(b) Words and phrases---

----Mobilization Advance Guarantee" and "Performance Guarantee "---Meaning, scope and principles, explained.

Discount Records Ltd. v. Barclays Bank Ltd. and another (1975) 1 AER 1071; Edward Owen Engineering Ltd. v. Barclay Bank International Ltd. (1978) 1 AER 976; Messrs Jamia Industries Ltd. v. Messrs Pakistan Refinery Ltd. PLD 1976 Kar. 644; MacDonald Layton & Co. Ltd. v. Pakistan Service Ltd. and 2 others 1983 CLC 2252; Pakistan Engineering Consultant v. Pakistan International Airlines Corporation and others 1993 CLC 1926; Zeenat Brothers (Pvt.) Limited v. Awan-e-Iqbal Authority PLD 1996 Kar. 183; Srafi Trading Establishment v. Trading Corporation of Pakistan Ltd. 1984 CLC 381; United Bank Limited v. Ehsan Ellahi 1989 CLC 287; Messrs National Motors Limited v. Messrs The Muslim Commercial Bank Limited PLD 1989 Kar. 168 and Messrs National Construction Limited v. Awan-e-Iqbal Authority PLD 1994 SC 311 ref.

Bilal A. Khawaja for Plaintiff.

Badar Alain for Defendant No. 1.

A.H. Mirza for Defendant No.2.

Date -of hearing: 21st October, 1997.

YLR 2001 KARACHI HIGH COURT SINDH 2211 #

2001 Y L R 2211

[Karachi]

Before Dr. Ghous Muhammad and Zahid Kurban Alavi, JJ

Messrs SHARIF KHAN BROTHERS---Petitioner

versus

CHIEF CONTROLLER, IMPORTS AND EXPORTS and others---Respondents

Constitutional Petition No. 1320 of 1999, decided on 23rd December, 1999.

(a) Licence and Permit Fee Order, 1979---

---R.7(c)---Words employed in R. 7(c) of Licence and Permit Fee Order, 1979 were "Government Policy "---Expression used being not import policy, there was no reason to restrict the meaning of said expression to "import policy ".

(b) Interpretation of statutes---

---- Words in a statute had to be given their ordinary sense and grammatical meaning.

----R.7(c)--Constitution of Pakistan (1973), Arts. 3, 4, 25 & 199---Constitutional petition---Equality of citizens---Exercise of discretion by Government functionaries--Government functionaries had to act fairly, justly, equitably and reasonably--Government functionary in the present case had placed on one hand an order of imports of rickshaws with the petitioner leading them to deposit import licence fee and on the other hand had cancelled the order so placed by changing its policy and also denied the petitioners to obtain the refund of the import licence fee deposited by them in pursuance of the confined order---Stance taken by the functionary was, grossly high-handed, unfair, unjust, unreasonable and opposed to common sense, militating against the Fundamental Rights and Constitutional guarantees of due process and against exploitation as embodied in Arts.3 & 4 of. Constitution of Pakistan (1973)---Even if R. 7(c) of Licence and Permit Fee Order, 1979 had no application in the case, the failure to refund the deposited import licence fee was unlawful being unconstitutional, unreasonable, unfair, unjust and exploitative especially when other persons, in like circumstances had been given said refund---Violation of Art.25 of Constitution of Pakistan (1973) had become more than obvious in the case of petitioner.

(d) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Art. 32--Constitution of Pakistan (1973), Art. 199---Constitutional petition Findings and recommendations of Ombudsman--Nature and, implementation 9f---Findings of the Ombudsman were binding and not recommendatory in nature and such findings and recommendations could not be ignored or brushed aside in an ordinary manner, but should be promptly implemented if a citizen was aggrieved due to non-implementation of the order/decision of the Mohtasib, which was a correct order on merits---High Court in exercise of its Constitutional jurisdiction, could implement such order/decision where the non-implementation was only deferred on grounds that some representation under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 before the President was pending and such appeal/representation was not disposed of within 90 days.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 and Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC 621 ref.

Dr. Muhammad Farogh Naseem for Petitioner.

Syed Tariq Ali, Standing Counsel for the Government of Pakistan alongwith Mushtaq H. Minhas, Deputy Director, Export Promotion Bureau, Government of Pakistan for Respondents.

Date of hearing: 23rd December, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 2230 #

2001 Y L R 2230

[Karachi]

Before Wahid Bux Brohi, J

Syed AZIZ HUSSAIN ---Petitioner

versus

MAJEED KHAN LODHI---Respondent

Revision Application No.33 of 2000. decided on 6th August, 2001.

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

----O.XIII, R.4---Production of document in evidence---Failure to put exhibit mark on the document---Effect---Where document was admitted by Trial Court in evidence, such failure did not affect the merits of the case.

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

----O.XIII, R.4---Admnission of document in evidence---Details of necessary endorsement on such document enlisted.

There shall be endorsed on every document which has been admitted in evidence in the suit, the following particulars namely:--

(a) The number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and

(d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge.

----O.XIII, R.4 & S.115---Document admitted in evidence---Failure to put exhibit mark--Significant formalities were completed in respect of the document admitted in evidence but exhibit marks were not noted on the top of the document---Document itself was the subject-matter of the entire judgment of the Trial Court which fully demonstrated that the document was placed on record as being the most eminent piece of evidence---Contents of the document were considered and only then findings were rendered by the Trial Court--Effect---Such omission was a sight error on the part of the Court and the same being act of the Court would not lead to adverse inference affecting the rights of the party who solemnly discharged his burden in producing the document---Where findings of Appellate Court were based on sound reasoning and proper appreciation of evidence on record and had in substance furthered the ends of justice, such findings did not call for interference in the exercise of revisional jurisdiction.

Mst. Kaniz Fatima v. Ghulam Mustafa 1994 MLD 174; Zafar Mirza v. Mst. Naushina Amir Ali PLD 1993 Kar. 775; Muhammad Yousaf Khan Khattak v. S.M. Ayub PLD 1972 Pesh. 175 and Hakim Khan's case PLD 1975 Lah. 1170 ref.

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

------O.XIII, R.4---Document not exhibited--Effect---Even if the exhibit mark was not duly noted, Trial Court was not precluded from looking into and relying upon such document.

Sadik Hussain Khan v. Hashim Khan AIR 1916 PC 27; Sultan Ahmed Chowdhry v. Mustafizur Rahman Chowdhry PLD 1967 Dacca 216 and Nathe Khan v. Mst. Rahmat Bibi PLD 1961 BJ 96 ref.

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

----S.15----Electricity charges---Proof of--Electricity bills produced in evidence were sufficient to establish electricity charges.

Mehmood Ahmed Khan for Applicant.

Nasir Rizwan Khan for Respondent.

Date of hearing: 21st May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2240 #

2001 Y L R 2240

[Karachi]

Before Anwar Mansoor Khan, J

REHMAN FEEDS (PVT.) LTD. ---Plaintiff

versus

AGRICULTURE DEVELOPMENT BANK OF PAKISTAN---Defendant

Suit No.358 of 1994, heard on 19th April, 2001.

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

----S.105---Lease---Meaning and scope--Lease of property---Lease is transfer of a property in favour of the lessee and no one could transfer the title better than what he had.

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

----S. 37---Obligation of parties to contracts---Parties to a contract must perform their respective promises unless such performance was dispenses with or excused under the provisions of the contract.

----S. 56---Agreement to do impossible act--Where the promisor had promised to do something which he knew or with reasonable diligence might have know and which the promisee did not known to be impossible or unlawful, such promisor must make compensation to promisee for any loss which he would sustain through the nonperformance of the promise.

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

----S. 73---Breach of contract---Suit for--Defendant was entitled to be supplied with necessary particulars of his claim.

Jamshed Karimuddin Musalman v. Kunjilal Harsukh Kalar and another AIR 1938 Nag. 530 ref.

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

----Ss. 37 & 73---Obligation of parties to contract---Suit against breach of contract--Agreement was arrived at between plaintiff borrower and defendant-Bank whereby defendant-Bank undertook to provide amount to plaintiff on mortgage of-property by the plaintiff---Plaintiff sent several letters and gave telex to the defendant-Bank regarding urgency in the matter and for payment of the promised amount stating that serious loss would be caused to the plaintiff for non payment of promised amount but the defendant-Bank did not take any action--Entire machinery was imported from the loan and finance granted by the defendant-Bank which was its security---Careless and the callous approach of the defendant-Bank was evident from the fact that it had not cared to reply, refuse or otherwise allow finance--Loan was given on an undertaking given earlier and further loan could have been given again on the basis of undertaking--Where breach of the terms of the contract was for which damages were liable to be granted, if person did any wrongful act of which the direct result was loss or injury to another person, he must compensate such person in money if the extent of loss or injury to other could be estimated---Where a contract had been broken, the party which suffered from breach was entitled to receive from the party which had broken the contract, compensation for any loss or damages caused to him which naturally arose in the usual course of things from which such breach had been caused.

Messrs Sh. Muhammad Amin & Co. v. The Provincial Industrial Development Corporation 1991 CLC 684 ref.

(f) Maxim---

---- "Restitutio in integerum ", principle of--Courts would endeavour, so far as money could do it, to place the injured in the same situation as if the contract had been performed.

Pakistan v. Messrs A. Ismail Jee & Sons Ltd. 1980 CLC 1522 and Living Stone v. Rawyards Coal Co. (1880) 5 App. Cas.25 ref.

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

----S.73---Breach of contract---Suit for damages---Compensation for damages, determination of---Kinds of damages---Rules on the question of measuring the damages where two parties had made a contract and one of them had broken the contract, was that the damages which the other party ought to receive in respect of such a breach of contract, should be such as could fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things from such breach of contract itself or such as reasonably be supposed to have been in the contemplation of both parties as the probable result of breach---If the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendants and were known to both the parties, the damages resulting from the breach of such a contract which they would reasonably compensate would be the amount of injury which would necessarily follow from breach of contract under the special circumstances known and communicated---If said special circumstances were wholly unknown to the party breaking the contract, he at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally and in the great multitude of cases not affected by any special circumstances from such a breach of contract---Person could only be held responsible for such consequences as could reasonably be supposed to be contemplated by the parties at the time of making the contract---Damages would be of three kinds i. e. normal damages; general damages, and special damages---Act of breach of contract being one of negligence suit was liable to be decreed as prayed for by the plaintiff.

Hadely v. Baxendale (1854) 9 Exch. 341; Kingsly v. Secretary of State 36 CLJ 271; Mehtab Din v. Fazal Din PLD 1954 Lah. 451 and Cullinane v. British "Rare" Mfg. Co. Ltd. (1953) 3 WLR 923 (CA) ref.

(h) Banker and customer---

---- Relationship of banker and customer--Relationship of a banker and customer was a secured relationship---Financial relationship once created could not be done away lightly, only at the whims and fancy of the Bank--What could be more cruel than by the act of the Bank the customer was ruined.

Muhammad Sharif alongwith M. Akram Zuberi for Plaintiff.

Rizwan Ahmed Siddiqui for Defendant.

Dates of hearing: 12th, 17th and 19th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2257 #

2001 Y L R 2257

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Dr. NASIM AKHTAR---Petitioner

versus

VIIITH CIVIL/FAMILY JUDGE, KARACHI-EAST and others---Respondents

Constitutional Petition No.S-528 of 1999, decided on 18th October, 2000.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art. 199---Contitutional petition--Maintenance---Husband had claimed that the Rukhsati of wife took place five months after the marriage and she was divorced one week after her Rukhsati by delivering divorce deed to her---Wife denied to have received divorce deed on the date alleged by the husband--Burden was on husband to prove factum of delivery of divorce deed to the wife, but he failed to discharge that burden by producing any evidence on record in that respect--Courts below concurrently declined to accept the plea of husband that wife was divorced after one week of her Rukhsati and that the wife was entitled for maintenance for a period of one week which was the period of subsistence of marriage and for Iddat period only---Maintenance was granted to the wife by concurrent finding for the period as claimed by her---In absence of any jurisdictional error, illegality, impropriety or excess of jurisdiction, concurrent judgments could not be interfered with by the High Court in Constitutional petition.

Gul Zaman Khan for Petitioner.

Chaudhry Iftikhar Ahmad and Raja Ali Asghar for Respondent No.3.

YLR 2001 KARACHI HIGH COURT SINDH 2259 #

2001 Y L R 2259

[Karachi]

Before Sarmad Jalal Osmany, J

MUHAMMAD HUSSAIN ---Plaintiff

versus

STATE BANK OF PAKISTAN and another---Defendants

Suit No.872 of 1999, heard on 27th July, 1999.

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

----S.9---Civil Procedure Code (V of 1908), O. VII, R.II---Specific Relief Act (I of 1877), Ss.42, 54 & 56(d)---Suit for declaration and perpetual injunction-Rejection of plaint---Conversion of suit filed under the Banking jurisdiction into ordinary civil suit---Plaint was sought to be rejected on ground that suit being a Banking suit, same should have been renumbered and fresh summons issued to the defendants or in the alternative the plaint should have been returned to the plaintiff to be filed afresh as an ordinary civil suit; that neither of the said actions having been taken, the suit was barred under provisions of O. VII, R. 11, C. P. C. and that the High Court while acting as a Banking Court would not exercise original civil jurisdiction, but would act as a Special Court---Validity---Conversion of suit filed under Banking jurisdiction into ordinary civil suit and vice versa happens every day in High Court and it would be an unnecessary burden on the litigants as well as High Court to insist that upon every such conversion the proceedings should start de novo---Even otherwise no separate register was maintained in the High Court for Banking suits---When the plaint was presented the suit was admitted as a Banking suit and given its number in normal course---Contentions of the defendants, were repelled, in circumstances.

Mst. Parveen Jaffar v. Bankers Equity Limited 1998 CLC 1263 and Value Gold Limited v. UBL PLD 1999 Kar. 1 ref.

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

----S.41---Civil Procedure Code (V of 1908), S.11 & O. VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Res judicata---Proof--Suit for declaration and perpetual injunction---Maintainability---Suit was sought to be dismissed on the ground that Constitutional petition earlier filed by the plaintiff alongwith others for the same relief and on the same cause of action having been dismissed, suit filed by the plaintiff on the same cause of action was barred under S.11 of C. P. C. being hit by principles of res judicata---In dismissal order of earlier Constitutional petition the main ground was non-inclination of the High Court to enter into factual controversies as partially displayed in said petition and the rights and liabilities of the parties as contemplated in the relevant section of the Banking Companies Ordinance, 1962 including S.41 thereof were not adjudicated by the High Court in said petition and mere certain observations were given therein---Said observations by no stretch of imagination could amount to adjudicate the rights and liabilities of the parties in terms of S.11, C. P. C.

Foley v. Hill (1848) 11 HLC 27; M.A. Nasser v. Chairman, Pakistan Eastern Railways PLD 1965 SC 83; Obaidullah v. Habibullah PLD 1997 SC 835; Muhammad Rashid Bhatii v. KDA PLD 1986 Kar. 130; Messrs Qasimabad Enterprises v. Province of Sindh and others 1998 CLC 441; Peerless General F. & I Co Ltd. v. Reserve Bank of India AIR 1992 SC 1033; Muhammad Sharif v. Inayatullah and 24, others 1996 SCMR 145; Pakistan Steel Mills Corporation v. Muhammad Ashique 1995 CLC 1000; Haji Ashfaq Mimed Khan and others v. Custodian of Evacuee Property and others PLD 1966 W.P.) Kar. 597 and Additional Commissioner-II, K Division v. Shahid Raza 1997 MLD 2444 ref.

----Ss. 41, 42, 43, 47 & 94---Specific Relief Act (I of 1877), Ss. 42 & 54---Suspending business of a Bank by the State Bank of Pakistan---Jurisdiction---Suit for declaration and perpetual injunction ---Maintainability--State Bank of Pakistan by its letter suspended business of a Bank and said suspension was challenged by the plaintiff in his suit---Suit was resisted in view of bar of jurisdiction contained in S.94 of Banking Companies Ordinance, 1962 whereby no suit could be instituted against the State Bank of Pakistan for -anything which was done in good faith or intended to be done in pursuance of said Ordinance or of any rules and orders made thereunder---State Bank of Pakistan could not unilaterally close down or suspend the business of a Banking Company unless so done in accordance with the provisions of Banking Companies Ordinance, 1962---Only the Federal Government could authorise the suspension of Banking Company's business upon the application of the State Bank of Pakistan---Action taken by the State Bank of Pakistan in suspending the business of the Bank was in violation of the legal provisions contained in the Ordinance, and said action of State Bank of Pakistan could not be termed as a bona fide exercise of power in good faith---Suit filed by the plaintiff was not barred under S.94 of Banking Companies Ordinance, 1962.

Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi PLD 1991 SC 14; The Federation of Pakistan v. Shaukat Ali Mian 1991 SCMR 1229; Muhammad Banaras Khakan v. Rubina Chaudhry 1997 CLC 997; Shoukat Ali Mian and another v. The Federation of Pakistan 1999 CLC 607; Hudaibiya Engineering (Pvt.) Ltd. v. Pakistan PLD 1998 Lah. 90; Shahid Mahmood v. KESC 1997 CLC 1936 and Additional Commissioner-II, K-Division, Karachi v. Shahid Raza 1994 MLD 2444 ref.

(d) Administration of justice---

----Economic and financial policies of Government---Duty of Court---Courts of law should not sit upon economic and financial policies which are best left to the experts, but that would not mean that such discretion by the experts is to be exercised in vacuum.

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

----Ss.21, 42, 54 & 56(f) --- Suit for declaration and permanent injunction--Competence---Plaintiff had challenged action of State Bank of Pakistan suspending business of a Bank contending that such action of State Batik of Pakistan had violated Fundamental Rights of the plaintiff---Suit was resisted on the ground that same was barred an relationship between the Bank and the plaintiff was that of banker and customer akin to that of a debtor and creditor--Plaintiff despite such relation could always be heard to say that a specific obligation provided under the law could be enforced by him through the grant of perpetual injunction to prevent the breach of obligation existing in favour of the plaintiff---State Bank of Pakistan was bound by law to act in good faith and to adhere to the principles of natural justice as well as comply with law, but it had failed to do so---Plaintiff could always enforce obligations which were binding upon Sate Bank of Pakistan as a matter of law---Declaration though prima facie, could not be issued in circumstances of the case, but injunctions could always be given by the Nigh Court under S.54 of Specific Relief Act, 1877, enjoining on State Bank of Pakistan and the Bank to act within the ambit of the law---Plaintiff though could not be able to enforce any contract with the Bank, but there was no embargo under the law for the enforcement of legal obligations ordained by the law itself.

Muhammad Rashid Bhatti v. KDA PLD 1986 Kar. 130 ref.

Khawaja Shamsul Islam for Plaintiff.

Zahid Jamil for Defendants.

Dates of hearing: 22nd, 23rd, 26th and 27th July, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 2277 #

2001 Y L R 2277

[Karachi]

Before Mushir Alam, J

Messrs NOORANI TRADERS---Petitioner

versus

CIVIL AVIATION AUTHORITY---Respondent

Suit No.439 of 2001, decided on 13th July, 2001.

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

----S. 152 & O. XX, R. 3---Typographical error or mistake---Application for correction---Error which required judicious application of mind could not be corrected under S.152, C. P. C. and such error in the order or judgment could only be corrected by resorting to review or appeal as the case could be---Mere bona fide typographical error and accidental slip required no application of mind---Whenever any typographical error or mistake would arise from any accidental slip or omission on the part of the Court and such mistake or error would come to the notice of the Court, same could be corrected by the Court either on its own motion or on the application of any party---Proposition that judicial pronouncements once signed were final and binding on parties and same could not be altered or added subsequently, was subject to two exceptions, one being the review and other being S.152, C. P. C. as set out in O.XX, R. 3, C. P. C.

Ishtiaq Ahmed v. Bakhshaya 1996 SCMR 420; Ghulam Rasul v. Additional District Judge PLD 1952 Lah. 303; Muslim Commercial Bank Ltd. v. Continental Engineers Ltd. PLD 1992 Lah. 261 and Government of Sindh v. Abdul Rehman 1997 MLD 2847 ref.

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

----S. 152---Sindh Chief Court Rules (O.S.), R. 257---Power of High Court to make oral pronouncement---Correction of error and mistake in the order---High Court under R.257 of Sindh Chief Court Rules, was empowered to make oral pronouncement provided transcript of such pronouncement was prepared, corrected and signed by the Judge---Where in the written judgment due to accidental slip, wrong date was typed which was at variance with oral pronouncement and said error was brought to the notice of the Court, same would be corrected in the order to maintain the sanctity of the Court proceedings.

Bexshim Corporation v. Privatization Commission PLD 1997 Kar. 36 ref.

Rashid A. Rizvi for Plaintiff.

Mushtaq A. Memon for Defendant.

Date of hearing: 9th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2284 #

2001 Y L R 2284

[Karachi]

Before Zahid Kurban Alavi and Wahid Bux Brohi, JJ

ABDUL RAHMAN and others---Petitioners

versus

MEMBER (JUDICIAL), SINDH BOARD OF REVENUE and others---Respondents

Constitutional Petition No. D-1133 of 2000, decided on 24th July, 2001.

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

----S. 161---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appellate jurisdiction of Member, Board of Revenue--Scope---Order passed by Additional Commissioner was appealable to the Board of Revenue---Whether the order passed by the Additional Commissioner was right or wrong or without jurisdiction, were the questions to be scrutinised and determined by the Appellate Authority/Board of Revenue--Member, Board of Revenue having duly performed his legal obligations by passing the order wherein he had resolved the point of jurisdiction correctly, there were no reasonable bases to strike down the said order.

(b) Remand----

---- Meaning and scope---Remand would imply return of the case to the same Court where the order assailed in appeal was passed or to a lower forum where the case could be heard and the substantial issues adjudicated on trial/hearing.

---- Where a particular forum had exclusive jurisdiction to proceed with a case, any attempt by another forum to take cognizance of such matter or institute the proceedings on such subject would render the proceedings void ab initio and of no legal effect.

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

----S. 161--Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction--Scope---No vested rights of the petitioners had been infringed by the order passed by Board of Revenue in appeal---In absence of any illegality, impugned order could not be interfered with by the High Court in exercise of its Constitutional jurisdiction.

Saeed Farooq v. State 1996 MLD 434 ref.

Hussain Shah Rashidi for Petitioners.

Suleman Habibullah, Addl. A.-G. for Respondent No. 1.

M. L. Shahani for Respondents Nos.2 to 4.

Date of hearing: 8th March, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2291 #

2001 Y L R 2291

[Karachi]

Before Muhammad Moosa K. Leghari, J

MITHAN and 2 others---Applicants

versus

Mst. JAMILA and 8 others---Respondents

Revision Application No. 145 of 2000, decided on 26th October, 2000.

Civil Procedure Code (V of 1908)---

----O. XL, R. I & O. XXXIV, R. 1--Suit for redemption of mortgage---Appointment of Receiver---No specific instance was cited in the plaint or application for appointment of Receiver to show that the suit property was being wasted, mismanaged or misappropriated---Mere convenience of the plaintiff should not be a factor for the appointment of Receiver, but peril to or threat of waste of property should be established---Not sufficient for the plaintiff/applicant to show prima facie case, but it must be shown that the property in the hands of the opposite party was in danger of being wasted or there was an apprehension of irreparable loss or injury to as well as dissipation of property---Since appointment of Receiver disturbs the possession of a person and is considered one of the most harsh remedies, same has to be exercised in extreme cases.

Aijaz Ali Hakro for Appellants.

Hassan Mehmood Baig for Respondents.

Date of hearing: 19th October, 2000

YLR 2001 KARACHI HIGH COURT SINDH 2300 #

2001 Y L R 2300

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

AAMIR AHMED and 3-others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.422 of 2001, decided on 16th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13, 14 & 18---Bail, grant of---Case of the accused was identical with the case of co-accused who had been granted bail---Accused was entitled for grant of bail as per rule of consistency--Only allegation against the accused was that he attempted to commit sexual intercourse but no direct or indirect evidence was available on record against the accused---Case against the accused being of further inquiry, he was granted bail.

Muhammad Nasim alias Nasimo v. The State 1996 PCr.LJ 1302; Muhammad Fazil alias Baidi v. The State 1979 SCMR 9; Khadim Hussain v. The State 1983 SCMR 124 and Abdul Salam v. The State 1980 SCMR 142 ref.

Shahadat Awan for Applicants.

Kazi Wali, Muhammad for the State.

Date of hearing: 16th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2329 #

2001 Y L R 2329

[Karachi]

Before Wahid Bux Brohi, J

M. SALEEM AHMAD SIDDIQUI---Petitioner

versus

Mst. SABIRA BEGUM and others---Respondents

Constitutional Petition No.S-169 of 2000, decided on 7th August, 2001.

(a) Words and phrases---

----'Salary' and 'income'---Distinction--Terms 'salary' and 'income' connote two different aspects relating to one's earnings--Salary is the net amount of payment made for a fixed period usually a month, by the employer to the employee, whereas the term 'income' is co-related to the entire earnings including the salary (or salaries if there are other jobs also) for the period.

(b) West Pakistan Family Counts Act (XXXV of 1964)---

----S. 5---Maintenance---Fixation of maintenance beyond salary---Principles---Income and total earnings cannot be confined to a particular salary---In order to compel father to pay amount of maintenance to his children beyond his salary it should be shown that his earning or the income was much more than that.

----S.5---Maintenance---Source of income--Onus to prove---Admission by husband --Effect---Admission by itself is not enough to establish legitimate income of husband--Where the husband denied of extra source of income, burden shifted to wife to establish that the quantum of legal earnings of the husband was much more than the ostensible income---Husband's admission that he used to pay Rs.5, 000 to his wife, was not proof of the lawful income of the husband.

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

----S.5---Maintenance---Attaching of salary--Extent---Salary cannot be attached beyond half of it.

(e) Islamic Law---

----Maintenance--- Quantum--- Deciding factors---Islam does not compel a person to do an act beyond his capacity, therefore, social status of husband and level of legitimate financial sources are eminent factors for deciding the quantum of maintenance and the same cannot be ignored.

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

----S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Maintenance---Fixing beyond legitimate sources of petitioner---Suit for past maintenance of wife and children was filed by the respondents--Family Court as well as the Appellate Court concurrently fixed the maintenance allowance exceeding the monthly salary of the petitioner---Validity---No doubt father was bound to maintain his children and past maintenance of wife was also permitted in Islamic Law but the dominant factors governing the adjudication of such question could not be overlooked---Where no justifiable reasons were furnished and the maintenance amount was not only disproportionate to but much beyond the legal and ostensible earnings of the petitioner, such order, could not be maintained---Both the Courts, in the present case, had fallen into error in assessing the circumstances in fixing the maintenance---Findings of the Courts on quantum/rate of maintenance, therefore, could not be sustained---Maintenance fixed by the Courts below had led to miscarriage of justice as such both the judgments of Family Court and the Appellate Court were set aside and the case was remanded to the Family Court to re-assess the quantum of maintenance of six children and their mother in the light of evidence on record--Constitutional petition was allowed accordingly.

Dost Ali Shah v. Hafiz Shaukat Ali Shah 1988 SCMR 1339; Muhammad Zakria v. Mst. Khairunnisa 1987 CLC 422;. Abdul Razak v. Ijaz Mahmood 1992 CLC 5 and Nadir Khan v. Zeenat Bibi 1990 CLC 293 distinguished.

Shah Jahan v. Syed Amjad Ali Hawaldar 2000 SCMR 88 fol.

Karamatullah for Petitioner.

Zahir Hussain Chishti for Respondents.

Date of hearing: 8th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2339 #

2001 Y L R 2339

[Karachi]

Before Majida Razvi, J

AZIZULLAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 2052 of 1997, decided on 20th May, 1998.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---No role had been assigned to the accused in the F.I.R. and certain contradictions, improvements and unexplained events in the case were in favour of the accused---Existence of enmity between parties having been established, contention of the accused that he had been falsely involved in case, could be plausible---Contention of the accused that the complainant who was the only eye-witness and on whose evidence the accused had been arrested and the case was proceeding, was not present at the relevant time and if his deposition as an eve-witness was discarded, then nothing would be left on the record against the accused and the case of further inquiry was established and that the accused would be entitled to bail, had some force---Accused was admitted to bail, in circumstances.

Mooso v. The State 1996 PCr. LJ 361; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Abdul Ghaffar v. Munir and 4 others 1981 SCMR 504; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Abdul Karim alias Raja and another v. The State 1996 PCr.LJ 503 and Shamsuddin Mir Jat v. The State 1996 SCMR 382 ref.

S. Mehmood Alam Rizvi for Applicant.

Jawaid Akhtar for the State.

YLR 2001 KARACHI HIGH COURT SINDH 2346 #

2001 Y L R 2346

[Karachi]

Before Zahid Kurban Alavi, J

Shaikh IDRIS YAHYAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 577 of 2000, decided on 6th July, 2000.

Criminal Procedure Code (V of 1898)-

----S.497---Bail, grant of---Name of the accused had not been mentioned in the F.I.R. and the accused had been implicated merely on the statement of one of the witnesses--Accused had been shown as absconder and there was no mention of any unknown person whose description could fit in with the description of the accused---Case against the accused being of further inquiry, he was granted bail.

Saathi M. Ishaque for Applicant.

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

YLR 2001 KARACHI HIGH COURT SINDH 2364 #

2001 Y L R 2364

[Karachi]

Before S. Ali Aslam Jafri, J

Mian MUSTAFA ALI BAIG and others---Petitioners

versus

Messrs PAKISTAN TOBACCO CO., LTD.---Respondent

Judicial Miscellaneous No.68 of 1999, decided on 21st July, 2001.

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

----S. 12(2)---Proceedings under S.12(2), C.P.C.---Framing of issues---Scope---Where parties do not make any request for framing of issues and the matter can be decided, on the basis of the material available on record, it is not necessary to frame issues or to record evidence in every case under S.12(2), C.P.C.

Amiran Bibi and others v Muhammad Ramzan and others 1999 SCMR 1334; Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 and Abdul Sattar Dadabhoy and another v. The Honorary Secretary, Pakistan Employees Cooperative Housing Society, Karachi and another PLD 1998 Kar. 291 ref.

(b) Islamic Law---

----Gift---Oral gift---Gift can be made orally mere saying that .the property was orally gifted by a deceased should not be taken as gospel truth.

(e) Ownership---

----Proof of ownership---Utility bills in the name of occupant---Effect---Mere payment of the bills in his name by occupant does not make him owner of the property.

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

----S.12(2)---Limitation Act (IX of 1908), Art. 181---Applciation for setting aside decree---Proceedings under S.12(2), C. P. C.-Limitation---Maximum limit of time provided under Art. 181 of Limitation Act, 1908, for filing the application is threw years.

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

----S.12(2)---Decree, setting aside of ---Time barred application---Unclean hands---Plea of fraud and misrepresentation---Decree was passed in year 1991 and application was filed in the year 1999---Applicant was in knowledge of the proceedings and had not approached the Court with clean hands within the time prescribed by law---Effect--Application was malicious in nature and was fled to usurp and grab the property which was in the possession of the applicant as a tenant---Where the applicant wanted to take undue advantage of the litigation between the legal heirs of the deceased owner of the property, the application under S.12(2), C. P. C. deserved dismissal.

Abdul Karim Siddiqui for Applicant.

Abdul Hameed Yousufi for Respondent No. 1.

Fareed A. Dayo for Respondent No.6.

Nemo for the Remaining Respondents.

Date of hearing: 9th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2393 #

2001 Y L R 2393(1)

[Karachi]

Before Ghulam Nabi Soomro, J

ASHIQUE ALI ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. S-557 of 2001, heard on 31st August, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---West Pakistan Arms Ordinance of 1965), S.13-D---Surrender of Illicit Arms Act (XXI of 1991), S.7(c)---Bail---Bail granted to accused by the Magistrate was cancelled by the Sessions Court---Contentions were that according to the F.I.R. the case against accused fell under the provisions of S. 13-D of the Arms Ordinance, 1965 and that it was yet to be determined whether the offence would fall under S.7(c) of the Surrender of Illicit Arms Act, 1991 or not-Prosecution had no objection to grant of bail to the accused---Accused was admitted to bail in circumstances.

Muhammad Saleem JN Jaessar for Applicant.

Altaf Hussain Surahio for the State.

YLR 2001 KARACHI HIGH COURT SINDH 2403 #

2001 Y L R 2403

[Karachi]

Before Zahid Kurban Alavi and Anwar Zaheer Jamali, JJ

ARDESHIR COWASJEE and others---Petitioners

versus

K.B.C.A. and others---Respondents

Constitutional Petition No.D-179 of 2001, decided on 27th July, 2001.

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

----Arts. 184(3) & 199---Public interest litigation---Powers of Supreme Court and High Court---Distinctive features---Powers available to High Court under Art. 199 of the Constitution are intact under Art. 184(3) of the Constitution---Supreme Court does have power suo motu or on application to look into the question relating to public importance with particular reference to enforcement of any Fundamental Rights---Such power of Supreme Court is available without prejudice to the provision of Art. 199 of the Constitution.

Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

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

----Art.199---Erpression 'on the application of any aggrieved person' appearing in Art-199 of the Constitution ---Connotation--Inference which is clear from the said expression is that the provisions of Art. 199 of the Constitution can be invoked and put into operation subject to application being made on behalf of aggrieved person.

Shaikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 502 ref.

----Art.199---Aggrieved and aggrieved party---Defined.

Balantines Law Dictionary and Black's Law Dictionary ref.

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

---Art.l99---Expression 'aggrieved person'--Meaning---Individual who claims to be aggrieved person can only be so if he can show in what way would the action of the other party would cause him personal loss.

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

----Arts.184 (3) & 199---Public interest litigation---Concept---Object and scope--Duty of Courts.

With the introduction of public interest litigation the concept has become broader. In order to take up cudgels against act of another individual due to the inaction or apathy of the official agencies citizens have stood up and knocked at the doors of justice seeking timely intervention to prevent and stop a wrong being perpetuated. This right of the citizens or individual is recognized all over the world. One cannot overlook the fact that more than individual, organizations have come up which have taken up issues local, national or even global. The Courts have entertained such applications to investigate and look into the charges/allegations. Indeed there would be certain amount of misuse and abuse of the due process by individuals who may have individual grudges and or grievances to be satisfied through the Court of law through such litigation rather than the interest of public at large. Courts have to be careful and should be reluctant to encourage such litigation but this should be done only after an appreciation of the credential of the aggrieved person and the allegations made in the petition, whether it does affect the interest of public at large.

Fertilizer Corporation Kamager Union v. Union of India AIR 1981 SC 344; AIR 1987 AP 171 and State of Orissa v. Ram Chandra Deo AIR 1964 SC 665 ref.

(f) Constitution of Pakistan (1973)--

----Art.199---Constitutional petition--Maintainability---Public interest litigation--Illegal construction---Expression 'aggrieved person'---Scope---Petitioners being citizens of the city in public interest challenged the construction of building being raised by, the respondents---Plea raised by 'the respondents was that since the petitioners were not aggrieved persons, the petition was not maintainable---Validity---Held, in present day situation the concept of aggrieved person has to be broad-based and it was essential for the Courts to verify and ascertain that under no circumstances the petition should reflect or indicate mala fides---If indeed certain individuals or groups had over the years proved their bona fides for championing the cause connected with certain aspects of the city and which cause had been recognized earlier in several petitions filed under Art. 199 of the Constitution then cognizance should be taken of their pleas and after notice to the other side decisions should be given on merits which, however, did not mean that the petitioners should enjoy a carte blache as they should also be fully aware that the respondents were equally citizens of the country enjoying their own individual rights and any attempt to usurp those rights without justification could hold the petitioners vulnerable to serious charges---Constitutional petition was found maintainable in circumstances.

Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; S.P. Gupta and others v. Union of India and others AIR 1982 SC 149; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 473; Muhammad Nawaz Sharif v. President of Pakistan PLD 1989 SC 66; Ardeshir Cowasjee v. Multilines Associates PLD 1993 Kar. 237; 1995 SCMR 362; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; PLD 1996 SC 632; Ardeshir Cowasjee v. KBCA and others 1999 SCMR 2883; Subhash Kumar v. State of Bihar AIR 1991 SC 420; J.M. Desai v. Roshan Kumar AIR 1976 SC 578; R.v. Greater London Council ex p. Blackburn (1976) 3 All ER 184 and I.R.C. v. National Federation of Self-Employed and Small Business Ltd. (1981) 2 All ER 93 ref.

Naeem-ur-Rehman for Petitioners.

S. Ali Adam Jafri for Respondent No. 1.

Abdul Hafeez Pirzada, Rashid Ahmed Rizvi and Farogh Naseem for the Remaining Respondents.

Date of hearing: 20th June, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2423 #

2001 Y L R 2423

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

TALIB HUSSAIN----Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 130 of 2000, decided on 12th June, 2001.

Penal Code (XLV of 1860)---

----S.302/34---Appreciation of evidence--Nobody appeared to have seen the actual killing of deceased at the time of incident---Complainant party due to enmity had got the case registered against the accused mala-fidely---No trustworthy, confidence inspiring and consistent evidence was produced by the prosecution to prove its case---Evidence brought on record appeared to be fabricated which suffered from material discrepancies and contradiction---Prosecution had failed to prove its case against accused beyond reasonable doubt---Accused was acquitted accordingly.

1999 PCr.LJ 595; 1995 PCr.LJ 25; PLD 1990 Kar. 314; 1996 SCMR 1553; 1993 SCMR 550; 1997 SCMR 438 and 2000 PCr.LJ 1756; 2000 PCr.LJ 1781 and 2000 PCr.LJ 1786 ref.

Abdul Ghafoor Mirani for Appellant.

Ghulam Sarwar Korai for the State.

Date of hearing: 18th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2431 #

2001 Y L R 2431

[Karachi]

Before Mushir Alam and Muhammad Moosa K. Leghari, JJ

MUSTOO alias GHULAM MUSTAFA and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.38 and 44 of 1995, decided on 28th April, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/365-A/34---Criminal Procedure Code (V of 1898), S.342 --- Qanun-e-Shahadat (10 of 1984), Art.122-- Appreciation of evidence---Examination of the accused under S.342, Cr. P. C. ---Effect of not confronting the accused in examination with the identification in identification parade---Only piece of evidence against the accused was their identification in the identification parade, but the accused was not confronted with that piece of evidence during their examination under S.342, Cr.P.C.---Wisdom behind recording statement of the accused under S.342, Cr.P.C. was based on the principle that no one should be condemned unheard and that the accused should be heard and provided an opportunity of rebuttal of what was prima facie proved against him on every circumstance appearing in evidence against him---No question with regard to the evidence of their identification having been put to the accused persons during their examination, they were in fact deprived of their right to explanation--Sentence awarded to the accused thus could not be maintained---Judgment of the Trial Court was set aside and case was remanded to the Trial Court for recording statements of the accused afresh with direction to confront them with all the incriminatory evidence including identification parade.

Meer Muhammad alias Meeran and another v. The State 2000 MLD 370; Atta Muhammad and 2 others v. The State 1994 PCr.LJ 180; Gulab Sher and others v. The State 1992 PCr.LJ 1835; Mir Ahmed Khan v. Secretary to Government and others 1997 SCMR 1477; Muhammad Hassan v. Muhammad Ismail and others 1999 SCMR 697 and Munir Ahmed alias Munni v. The State 2001 SCMR 56 ref.

Madad Ali Shah for Appellants.

Mukhtiar Khanzada for the State.

Date of hearing: 11th January, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2436 #

2001 Y L R 2436

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDULLAH alias ADLOO and another---Applicants

versus

THE STATE---Respondent

Criminal Revision No.34 of 2000, decided on 13th July, 2001.

Penal Code (XLV of 1860)---

----S. 451---Criminal Procedure Code (V of 1898), S.439---Appreciation of evidence---No theft had been committed by the accused--Identification of the accused was alleged to have been made with the help of torch and electric bulb, but neither bulb was recovered from the place of Wardat nor the torch had been produced by the prosecution during the trial ---F.I.R. was registered after a delay of thirteen hours and said delay was not explained by the prosecution---Statements of the prosecution witnesses were recorded after twenty four hours despite the fact that they were available at the place of Wardat--Courts below had not taken into consideration the provisions of S.451, P. P. C. and had not applied their judicial mind and evidence had not been weighed properly--Prosecution having failed to prove its case beyond reasonable doubt and the illegality having been committed, by both the Courts below by not taking into consideration the entire evidence, concurrent judgments of the Courts below were set aside in revision.

1974 PCr.LJ 400; PLD 1963 SC 17; 1969 PCr.LJ 1217; 1996 SCMR 308; 1974 PCr.LJ 1057; 1999 SCMR 570; 1999 PCr.LJ 1850; 1983 PCr.LJ 1985 and 1995 SCMR 127 ref.

Qurban Chohan for Applicants.

Muhammad Azeem Panhwar for A.-G. for the State.

Muhammad Ishaque Khoso for the Complainant.

Date of hearing: 13th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2440 #

2001 Y L R 2440

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

DIN MUHAMMAD ---Applicant

versus

MUHAMMAD ISMAIL and others---Respondents

Criminal Miscellaneous Application No.218 of 2000, heard on 1st June, 2001.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/147/149/109---West Pakistan Arms Ordinance (XX of 1965), S.13-D--Cancellation of bail---Four hours delay in lodging the F.I.R. could not be made base for grant of bail and the same could not be construed as an inordinate delay at bail stage---Names of accused had been disclosed in the F.I.R. and role of firing at the deceased was ascribed to them---Ocular version was supported by the prosecution witnesses including the complainant and medical evidence---Weapons of offence had been recovered at the instance of the accused in the presence of private Mashirs---Strong motive for committing the offence had been mentioned in the F.I.R. ---Ingredients of S.149, P.P.C., prima facie, having been attracted in the case, each member of the unlawful assembly could be saddled with common object for committing the crime--Proposition as to which accused fired and which part of the body of the deceased was hit was inconsequential at bail stage as it amounted to deeper appreciation of evidence which was not warranted by law at bail stage- Accused duly armed with fire-arms had formed an unlawful assembly and with common object had attacked the victim---Not material at bail stage as to whose fire proved fatal---Fact of the Kalashnikov having been not sent to Expert was also no ground for grant of bail---Trial Court had passed the impugned orders in excess of its authority and against the settled principles laid down by the. Supreme Court---Bail allowed to accused by Trial Court was cancelled in circumstances.

Shahzaman and 2 others v. The State and another PLD 1994 SC 65; Mst. Resham Jan v. Abdur Rehman 1991 SCMR 1849; Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765; Muhammad Din v. The State 1988 SCMR 1; Sher Bahadur v. Haji Ghaffar Ali Khan and another 1999 PCr.LJ 403; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Mir Azhar Jabbar v. The State and another PLD 1995 Kar. 507; Muhammad Umar v. The State 1994 MLD 895 and Babar Mashi v. The State 2000 MLD 1487 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/147/149/109---Bail, grant of--Principle---Court for grant of bail has to arrive at a conclusion that the accused is not guilty of the offence with which he is charged and the case goes out of the ambit of the prohibitory clause of S.497(1), Cr.P.C. and falls within the purview of S.497(2), Cr.P.C.---While arriving at the conclusion that the case necessitates further inquiry Court is under an obligation to hold that no reasonable grounds existed to believe that the accused had committed a non-bailable offence.

Mst. Resham Jan v. Abdur Rehman 1991 SCMR 1849 rel.

Sher Muhammad K. Shaikh for Applicant.

Respondents Nos. 1 to 4 (present).

S. Mushtaque Hussain for Respondent No. 5.

G.A. Shahani, Addl. A.-G.-for the State.

Date of hearing: 1st June, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2445 #

2001 Y L R 2445

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL SATTAR and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.9 of 1998, decided on 22nd March, 2001.

(a) Criminal trial---

----Intention---Meaning and examination--Intention is a state of mind which is not ordinarily ascertainable---Thought of a man is not triable and it is to be gathered or inferred only from his external acts and for that purpose it is necessary to examine the intention of the accused.

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

----Ss. 307, 324 & 506/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D--Appreciation of evidence---Case of the prosecution was that the accused duly armed with revolvers came in the office of the prosecution witness who was an Advocate, but he was not available in the office and the accused fired or: the complainant and other prosecution witnesses who were present there but escaped and did not sustain even a scratch on their bodies---Complainant and other prosecution witnesses although were at the mercy of the accused who were duly armed with revolvers, but no hurt was caused to them and it had been specifically stated by the complainant and witnesses that thereafter the accused ran away---Judgment of the Trial Court otherwise suffered from illegality as major offences under Ss. 307/324/34, P. P. C. and S. 13-D of West Pakistan Arms Ordinance, 1965 had not been constituted, against the accused and the Trial Court had convicted and sentenced the accused to suffer six months' R.I. under S.506 of P. P. C. which was illegal under the law as conviction for minor offence was illegal where charge for major offences was not constituted--Judgment passed by the Trial Court suffered from illegality as same was passed without applying judicial mind to the facts of the case---Conviction and sentence awarded to the accused by the Trial Court were set aside giving them benefit of doubt.

PLD 1960 SC 173 and Taj Muhammad v. The State PLD 1963 (W.P.) Kar. 118 ref.

------ Intention "---Meaning.

Qurban Ali H. Chohan for Appellants.

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

Rahmat Ullah Hisbani for Rahim Bux Jamali, Advocate.

Date of hearing: 22nd March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2448 #

2001 Y L R 2448

[Karachi]

Before Muhammad Afzal Soomro, J

MUKHTIAR AHMED --- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.399 of 2001, decided on 9th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.436/380/457---Pre-arrest bail---Delay of 6/7 days in lodging the F.I.R. was inordinate and colossal---No eye-witness of the occurrence was available---Material available against the accused was the joint extra judicial confession only which was inadmissible in evidence---Nothing else was available against accused to show him guilty of the offence alleged against him---Accused being a School Teacher commanded respect in the society, among Muhallah people and in the public at large and possibility of his false involvement in the case could not be ruled out---Police in collusion with the complainant party was bent upon to humiliate and harass the accused and his family---Bail before arrest was allowed to accused in circumstances.

Jamaluddin v. State 1985 SCMR, 1949 and Miran Bux v. State PLD 1989 SC 347 ref.

Sarfraz Khan Jatoi for Applicant.

Muhammad Ismail Bhutto for the State.

YLR 2001 KARACHI HIGH COURT SINDH 2475 #

2001 Y L R 2475

[Karachi]

Before Faiz Muhammad Qureshi, J

Mst. JAMEELA and another---Appellants

versus

Mst. MUBENA BEGUM---Respondent

First Rent Appeal No.56 of 2000, decided on 26th February, 2001.

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

----S. 15---Bona fide personal need of landlord---Default in payment of monthly rent---Record established that the landlady was the owner of the premises and the tenants were defaulters in their monthly rent---Rent Controller allowed the petition and the tenants were ordered to be evicted from the premises---Validity--Where default in monthly rent was proved by the landlady and her bona fide personal need was also established, High Court declined to interfere with the order passed by the Rent Controller in circumstances.

Riaz Ahmed Shaikh for Appellants, Jhamat Jethanand for Respondent.

Date of hearing: 26th February, 2001

YLR 2001 KARACHI HIGH COURT SINDH 2509 #

2001 Y L R 2509

[Karachi]

Before S. A. Rabbani and Muhammad Moosa K. Leghari, JJ

ASIF BAIG MUHAMMAD ---Petitioner

versus

CHAIRMAN, N.A.B. and 2 others---Respondents

Constitutional Petition No.D-1283 of 2001, decided on 18th July, 2001.

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

----S.9(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bail, grant of---Corruption and corrupt practices--Reference not yet submitted---Accused was charged with the offence of causing great loss to the exchequer by having illegal allotment of Government land--Accused denied the charge---Only evidence against the accused was the similarity in the name of the firm owned by the accused and the proposed housing scheme made at the disputed land--Validity---Such evidence merely established a feeble link of the accused with the scam and the same required a more substantial evidence to prove criminal liability of the accused--Investigation was already over and the accused was no more required by the Authorities for investigation---Accused had been remanded to judicial custody and the Authorities had 90 days to complete the process and some time was still available to submit a reference---Object of incarceration of accused before conviction was not, and could not be, a punishment for the offence which was yet to be proved at the trial, because, in that case, the trial itself would be a farce---High Court disapproved the incarceration of the accused at the stage when the reference had yet not been filed and withholding of the bail would be against the norms of justice in a civilized society--Case of the accused was one of further inquiry---Bail was allowed in circumstances.

Asfandyar Wali v. Federation of Pakistan and others C.P. No.13 of 2000 and Anwar Saifullah Khan's case PLD 2000 Lah. 564 ref.

Abdul Hafeez Pirzada assisted by Hassan Aurangzeb, Rana Ikramullah, Syed Nasir Abbas Rizvi and Hisamuddin for Petitioner.

Muhammad Anwar Tarique, Dy. P.G.A., N.A.B. assisted by Dilawar Hussain and Amir Raza Naqvi for Respondents.

Date of hearing: 16th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2519 #

2001 Y L R 2519

[Karachi]

Before Faiz Muhammad Qureshi, J

SIKANDAR alias SIKKO---Applicant

versus

SUB-DIVISIONAL MAGISTRATE, MATIARI and another---Respondents

Criminal Miscellaneous Application No. 1132 of 2000, decided on 2nd March, 2001.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Sindh Crimes Control Act (IV of 1975), S.14---Quashing of proceedings--Accused was alleged to be notorious for harbouring criminal-minded persons and the culprits and he was also alleged to be involved in two other criminal cases--Allegations against the accused were vague and stereotype---In one of the cases in which the accused was allegedly involved, he had been acquitted and in other case he was on bail---No witness from the locality had been associated by the police and there was no evidence with the police against the accused to prove that he was notorious type of person or he harboured the culprits and gave them shelter and provided them meals---State Counsel had no objection to the quashing of the proceedings against the accused---No offence having been made out against the accused under S.14 of Sindh Crimes Control Act, 1975, proceedings against him were quashed.

Nisar Ahmed Unar for Applicant.

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

YLR 2001 KARACHI HIGH COURT SINDH 2537 #

2001 Y L R 2537

[Karachi]

Before Wahid Bux Brohi, .J

AMIR ALI HUSSAIN SHALWANI---Plaintiff

versus

ISMAILI MASALWALA and others---Defendants

Civil Miscellaneous Application No.10642 in Suit No. 1718 of 1999, decided on 18th May, 2000.

Co-operative Societies Act (VII of 1925)-

----S.54---Arbitration Act (X of 1940). S.34--Specific Relief Act (I of 1877), Ss. 42 do 54--Suit for declaration, permanent injunction, and application for stay of proceedings--Proceedings were sought to be stayed on the ground that plaintiff was not entitled to file suit as the cause of action related to a dispute relating to business of cooperative Society between its members and was hit by S.54 of the Cooperative Societies Act, 1925 to be referred to the Registrar of Cooperative Societies for decision---Validity---Provision of S.54 of Cooperative Societies Act, 1925 was applicable if dispute touched the business of Society arising between the persons classified in cls. (a) to (e) of S. 54 and plaintiff himself was not the member of Society--Plaintiff in the present case had claimed that he had purchased the flat in dispute through a Benami transaction---Determination of a transaction as Benami was not within the scope of the business of the Society, but rested squarely within the domain and jurisdiction of Civil Court--Issue regarding determination of Benami transaction was a complicated question and was to be decided by the Civil Court and such cases could not be so moulded as to bring them within the ambit of S.54 of Cooperative Societies Act, 1925 on the sole ground that defendants in the case were officers of the Society and one of them might be its member---Proceedings of the suit need not to be stayed and it was not necessary to refer the matter to the Registrar, Cooperative Societies for decision.

B.M. Bangesh for Plaintiff.

Sardaruddin Huda for Defendants Nos. l to 4.

YLR 2001 KARACHI HIGH COURT SINDH 2542 #

2001 Y L R 2542

[Karachi]

Before Ataur Rehman, J

Messrs FALAKNAZ BUILDERS---Plaintiff

versus

KARACHI BUILDING CONTROL AUTHORITY and others---Defendants

Suit No.893 of 1998, decided on 20th May, 2000.

(a) Natural justice, principles of---

----Principles of natural justice unless expressly excluded are to be read as part of every statute even if the statute does not expressly provide for the same.

Hazir (Pvt.) Ltd. v. PIAC 1993 MLD 1308 ref.

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

----S.20-A---Issuance of notice ---Exceptions--Requirement to issue the statutory notice under S.20-A of Sindh Buildings Control Ordinance, 1979 though was mandatory in nature and the suit could be dismissed in case such mandatory notice was not issued, but that was only the general rule and there were strong exceptions---Despite non-service of said notice the suit would be maintainable if the impugned actions were alleged to be mala fide, in excess of or extraneous to or in violation of law or statute, unlawful, illegal, unconstitutional, taken in colourable exercise of power, without jurisdiction and in violation of the principles of natural justice---Bar contained in S.20-A, Sindh Buildings Control Ordinance, 1979 would not apply where the impugned actions were taken not under the Ordinance, but under some other Rules and Regulations.

Samanthala Koti Reddi v. Pothuri Subbiah AIR 1918 Mad. 62; Baghchand Dagdusa Gujrathi v. Secretary of State for India AIR 1927 PC 176; Promatha Narayan Bose v. Nawsher Ali Bepari PLD 1951 Dacca 33; Jamal Pervez v. Syed Safdar Hussain Naqvi PLD 1956 Sindh 55; Province of West Pakistan v. Ghulam Qadir PLD 1963 Kar. 337; Muhammad Ilyas Hussain v. Cantonment Board PLD 1976 SC 785; General Carrier Ltd. v. KPT PLD 1978 Kar. 1041; Zainab Hajiani v. Al-Hilal Cooperative (lousing Society Ltd. PLD 1978 Kar. 848; 11 uhammad Ismail & Co. Ltd. v. KPT PLD 1978 Kar. 892; Pakistan Railways v. K.D.A. P.L.D 1992 Kar. 71; Ziaur Rehman Alavi v. Allahabad Cooperative Housing Society Ltd. P.L.D 1995 Kar. 399; National Fiber Ltd. v.K.D.A. 1996 MLD 76; K.D.A. v. Evacuee 1 rust Board PLD 1984 Kar. 34; Lakhani & Co. v. The Trustees of the Port of Karachi 1988 CLC 1050, Muhammad Amin v. K.B.C.A 1992 CLC 691; Noor Muhammad Building Control Authority 1992 CLC 729; Lt.-Col. Farzand Ali v. Province of Pakistan PLD 1970 SC 98; Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Mehtab Ahmed v. Government of Sindh 1992 CLC 986; Yousuf Hussain Sherazi v. Lt.-Col. Muhammad Alam Sheikh PLD 1966 Kar. 472; Muhammad Munir v. Ahmed Ali Memon PLD 1982 Kar. 485; Abdul Razzak v. K.B.C.A. PLD 1994 SC 512; K.D.A. v. Haji Bakhsh Memon 1992 CLC 1036; Mehmood Khan Achakzai v. Federation of Pakistan PLD i 997 SC 426; Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32; Shahid Mahmood v. KES 1997 CLC 1936; Nlunawar & Co. v. KDA 1996 MLD 1771 and Orangi Pilot Project v. Madras Arabia Jamla 1987 MLD 541 ref.

---- Ouster clauses curbing and curtailing jurisdiction of the Court were to be strictly, construed---Such clauses would be inapplicable where the impugned actions were mala fide, unconstitutional, not within the ambit of the statute, unlawful, without jurisdiction and in breach of natural justice--If the settled law pertaining to ouster clauses contained in Constitution had provided for exceptions there would be no reason as to why the subordinate legislation should not contain such exceptions---Types of ouster clauses detailed.

Zainab v. Al-Hilal PLD 1978 Kar. 848; Javed Akbar v. K.D.A. 1986 MLD 179; Pakistan Railways v. K.D.A. PLD 1992 Kar. 71; Ziaur Rehman v. Allahabad Coop. PLD 1995 Kar. 399; National Fiber v. K.D.A. 1996 MLD 76; K.D.A. v. Evacuee Trust Board PLD 1984 Kar. 34; Muhammad Amin v. K.B.C.A. 1992 CLC 691; Noor Muhammad v. K.B.C.A. 1992 CLC 729 and Munawar & Co. v. K.D.A. 1998 MLD 1771 ref.

(d) Mala fides---

---- Mala fide in law and fact---In case it was contended that the impugned action was mala fide it would cover both actions which were mala fide in fact and mala fide in law---Action would be mala fide in law if it was in violation of law-- Where mala fides, in law were alleged, the strict rule of detailing the circumstances of mala fides, would not apply with the same vigour as in the case of mala fides in fact ---Mala fides in lain eras to be equated with violation of law---Even if violations of law were not specifically pleaded, as pure legal questions could be raised at any stage.

Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38 and Hashmatullah v. K.M.C. PLD 1971 Kar. 514 ref.

(e) Pleadings--

----Rule---Elementary rule of pleadings is that only facts and not the law are required to be pleaded.

(f) Jurisdiction---

----Administration of justice---Principles of--Erroneous decision on a point of law was not necessarily a decision without lawful authority---An error of law could well amount to an error of jurisdiction, but that would depend upon the facts of each case---Where Administrative Officers/Authorities acted illegally their actions were without jurisdiction---In case of Judicial Tribunals who had the power to decide the case, errors of law could not be equated with orders, without jurisdiction---Terms 'jurisdiction" and "without jurisdiction " were not free from problems of interpretation and application--Term 'jurisdiction" has been subject of controversy and suffers from lack of precision and it could not be in the interest of justice to leave the litigants to find themselves estopped by uncertainties of legal jargon and sophistry---Dictates of public interest would mandate a precise definition of the term 'jurisdiction "---Controversy as to whether an error of law was to be equated with an order without jurisdiction, would be settled in favour of assumption of jurisdiction rather than abdication thereof---Law favours an interpretation which gives rise to greater certainty---Where an action was challenged on ground of violation of law, it would be an action without jurisdiction.

Adamjee Insurance. Co. Ltd. v. Pakistan 1993 SCMR 1978; Badrul Haq Khan v. The Election Tribunal PLD 1963 SC 704; Julian Hoshang Dinshaw v. ITO 1992 SCMR 250; Jamal Shah v. Election Commission PLD 1996 SC 1; Bahadur v. Umer Hayat PLD 1993 Lah. 390; Friend Engineering Corporation v. Government of Punjab 1991 SCMR 2324 and Utility Stores Corporation v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 ref.

(g) Law---

---- Meaning and scope---Term law got only included the provisions of the statutes, but also the judicial principles decided by the Court through case-law---In case an authority would act in violation of principles laid down by a Court in a decided case, the impugned action would be unlawful and without jurisdiction.

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

----S.20-A---Civil Procedure Code (V of 1908), O.VII, R.11---Non-issuance of notice under S.20-A of the Ordinance---Rejection of plaint---Plaint was sought to be rejected on the ground that suit filed by the plaintiff in absence of prior notice under S.20-A of Sindh Buildings Control Ordinance, 1979 was not maintainable---Validity---Where in the plaint it was merely alleged that the impugned actions were mala fide, illegal, unlawful, without jurisdiction, in excess of jurisdiction, in breach of natural justice or taken in colourable exercise of powers, the suit would be maintainable despite non-service of said notice and the plaint could not be rejected under O. VII, R.11, C. P. C. for lack of compliance of S.20-A of Sindh Buildings Control Ordinance, 1979---Under O. VII, R.11, C. P. C. the contents of the plaint were to be accepted as pleaded however for the purpose .of grant of injunction the Court would see as to whether prima facie allegations of mala fide, lack of jurisdiction, violation of natural justice, illegality were present.

Munawar & Co. v. KDA (1996 MLD 1771 ref.

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

----S.20-A---Issuance of notice ---Object--Very purpose of legislating S.20-A of Sindh Buildings Control Ordinance, 1979 and other like provisions was to give the Government Officer an opportunity to reconsider his legal position and to make amends or settle the claim, if so advised, without possibility of litigation.

Paramatha Narayan Bose v. Nawsher Ali Bepari PLD 1951 Dacca 33 ref.

(j) Interpretation of statutes---

---- No provisions in a statute are to be rendered redundant while there has to be a purpose for every provision in a statute.

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

----S.20-A---Issuance of notice---Time limit for reply---Where the plaintiff issued or served a notice under S.20-A of Sindh Buildings Control Ordinance, 1979 on the defendant-Authority, the Officers of the Authority must give a reply to such notice---In order to curtail any possible abuse, it would be necessary to fix a time limit within which the defendant-Authority must respond--Reasonable time in that regard would be 10 days from the receipt of said notice and in case the reply to said notice was not given within 10 days, it would render the responsible officer to disciplinary and other actions---Statute though itself did not provide for any time limit to submit the reply, but the Court in order to prevent abuse, could fix a reasonable time---Mere issuance of notice on an application by the Court to the other side would by itself restrain the party from doing anything of the nature complained of in the application, even if the Court did not pass an actual ad interim order---In case the party to whom notice had been issued by the Court had shown no restraint, the Court could then grant a status quo ante on the next date--Failure to reply to the notice by the parties would be unfair, unjust and arbitrary.

Federation of Pakistan v. Tariq Pirzada 1999 SCMR 2189; Noor Muhammad v. CAA 1987 CLC 393; CAA v. Noor Muhammad PLD 1988 Kar. 401; 'Pacific Multinational v. IGP PLD 1992 Kar. 283; Dadabhoy Investment v. Federation of Pakistan PLD 1995 Kar. 33; Port Services (Pvt.) Ltd. v. Pakistan PLD 1995 Kar. 374 and Arif Builders v. Government of Pakistan PLD 1997 Kar. 627 ref.

(l) Interpretation of statutes---

---- Court has ample power to supply construction to the provisions of statutes by way of modification where there is some patent inconvenience, absurdity, hardship or injustice occurring through a literal reading of provisions of the statute---Court, in such events, could read in or read down words in the statute i.e. it could provide additional words to the statute or omit the same.

1987 CLC 393 and PLD 1988 Kar. 401 ref.

(m) Constitution of Pakistan (1973)---

----Art. 4---Interference in property of others---Article 4 obliges the person interfering with the property of another person to explain and satisfy the validity and propriety of his action, both procedural and substantive.

Abdul Rahim v. UBL PLD 1997 Kar. 62; Wajahat Ikram v. The State 1999 SCMR 1255 and Government of Sindh v. Abbas Ahmed 1994 SCMR 923 ref.

(n) Administration of justice---

----Functionaries of the State have to act honestly, fairly, justly and not in arbitrary or capricious manner and have to give reasons /or their orders.

Siemens Pakistan v. District Judge PLD 1998 Lah. 1; Airport Support Service v. The Airport Manager 1998 SCMR 2268 and Zaim Yar Khan v. The Chief Engineer 1998 SCMR 2419 ref.

Qadir H. Saeed, Dr. Farogh Naseem, K.M. Nadeem and Abid Zuberi for Plaintiff.

Raja Sikandar Khan Yasir, Ikram Siddiqui, M.L. Channa, Naim-ur-Rehman and Shahid Jamiluddin for K.B.C.A.

YLR 2001 KARACHI HIGH COURT SINDH 2566 #

2001 Y R 2566

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Mst. NUZHAT IRFAN---Petitioner

versus

KARACHI METROPOLITAN CORPORATION through Assistant Director Lands (Lease), Karachi and another---Respondents

Constitutional Petition No..876 of 2000, decided on 22nd May, 2001.

Karachi Development Authority Allotment Regulations---

---- Reglns. 6 & 23---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Allotment of plot---Non-delivery of possession---Plot in dispute was allotted to petitioner, but despite the allotment physical possession thereof was not delivered to the allottee---In response to notice served by the allottee on the Authority, it was stated that said . plot did not exist and question of delivering the possession did not arise---On filing Constitutional petition, an enquiry was conducted into the matter and Director, Town Planning of the Authority stated that plot in dispute did exist, but had been encroached upon---Nigh Court directed the Authority to deliver the plot to the allottee/petitioner without unnecessary delay after getting all the encroachments removed.

S.H. Gharib Nawaz Daccawala for Petitioner.

Muhammad Yasin Kiyani alongwith Ms. Razia Sultana, Project Director of Orangi Township for Respondent No.1.

S. Jamil Ahmad alongwith Akhlaq Ahmad, Director Town Planning for Respondent No.2.

YLR 2001 KARACHI HIGH COURT SINDH 2570 #

2001 Y R 2570

[Karachi]

Before Zia Parvez, J

SULTAN ALI MUHAMMAD GULAMANI---Plaintiff

Messrs ASIATIC ADVERTISING (PVT.) LTD. ---Defendant

Suit No.487 and Civil Miscellaneous Application No. 3353 of 2000, heard on 21st February, 2001.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. IX, R.9---Rejection of plaint---Bar against fresh suit---Earlier suit dismissed against plaintiff by default--Plaintiff after 25 years of the earlier suit filed the present suit---Subject-matter of both the suits was transfer of shares in the books of the defendants Company in year 1974--Plaintiff assailed the modus operandi adopted by the defendant regarding the transfer of the shares---Plaints ff by his own actions allowed to pass on the property in favour of the transferee with respect to the shares and the defendant only acted as required by law to register the transfer---Transferee was not made a party to the present suit which, in substance was the same as the earlier suit---After transfer of the shares the only remedy available to the plaintiff was with regard to the recovery of the sale consideration after its determination by the Arbitrator which had not been done for the last over 25 years--Effect---Suit was not maintainable as the same was hit by the provision of O. IX, R.9, C. P.C.---Plaint: was rejected in circumstances.

Sabzal and others v. Bingo and others PLD 1989 Kar. 1; Dr. Izhar Fatima, M.B.B.S. v. Haji Muhammad PLD 1996 Kar. 164; Sikandar Ali v. Abdul Raheem alias Leemon 1996 CLC 1273, Messrs Shakil Waqar & Co. v. General Manager, Marketing, Pakistan Railways 1999 CLC 1236; Muhammad Riaz v. Karachi Metropolitan Corporation 2000 CLC 1107; Maj. (Retd.) Hamid Ali Khan v. Mian Muhammad Anwar 2000 CLC 1633; Mir Afzal v. Qalandar PLD 1976 Azad J&K 26; Suraj Rattan Thirani and others v Azamabad Tea Co. Ltd. and others AIR 1965 SC 295; Jumma Khan and others v. Mahmud Khan and others 1973 SCMR 289; Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; O. Champpa Reddy, E.S. Vankatrevmiab v. Buluk Rishria Evadi, R.B. Mesva AIR 1986 SC 1§70 and Bengal Silk Mills Company Ltd. AIR 1942 Cal. 461 ref.

Kazi Abdul Hameed Siddiqui for Plaintiff, Abid T. Japanwala for Defendant.

Date of hearing: 21st February, 2001

YLR 2001 KARACHI HIGH COURT SINDH 2604 #

2001 Y L R 2604

[Karachi]

Before Shabbir Ahmed, J

Messrs PEARL LEATHER PRODUCT (PVT.) LTD. ---Appellant

versus

Mst. FEROZA KHATOON---Respondent

First Rent Appeal No.571 of 1999, decided on 3rd October, 2000.

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

----S.15(2)(ii) & (vii)---Oaths Act (X of 1873), S.13---Ejectment application---Non attestation of affidavit-in-evidence ---Effect-- Tenant had contended that affidavit-in evidence adduced by the attorney of landlady having not been attested in proper way, same could be excluded from the consideration and could not be relied upon as evidence-- Validity---Attorney as witness was given oath when he was put in witness-box for evidence---Once the deponent appeared in the witness-box and was given oath, the irregularities would stand cured under S.13, Oaths Act, 1873 which had proved that irregularities in swearing the affidavit was merely an irregularity, which would not wipe out the entire evidence --- Attorney1witness of landlady having been cross-examined on oath, his evidence could not be excluded from consideration.

Muhammad Bashir v. Din 1990 CLC 703 and Messrs Leather Goods International v. Mst. Aisha Khatoon Sherwani 1986 CLC 333 ref.

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

---Ss. 15(2)(ii), (vii) & 21---Ejectment order---Appeal---Cross-objection in rent proceedings--- Maintainability--- Ejectment application was filed by the landlady on grounds of default in payment of rent and personal bona fide need in respect of the premises---Rent Controller decided issue of default in favour of landlady and against the tenant, but issue with regard to personal bona fide need was decided against the landlady---Tenant filed appeal against the order of the Rent Controller and the landlady had filed counter-objections to the appeal assailing finding of Rent Controller in respect of her personal bona fide need ---Cross objections filed by landlady were objected to on the ground that same were not maintainable in the proceedings ---Validity--Party could support the order even on issue which had been decided against him without filing any cross-objections---Objection of tenant/appellant that respondent landlady could not support the order in respect of the issue decided against her through the cross objections, was not tenable---Respondent landlady could urge the point of personal bona fide need in respect of, premises in appeal filed by the appellant tenant.

Mst. Hameeda Begum v. Mst. Hasan Bano 1991 MLD 776; Messrs M. Wahab-udDin & Sons v. The Controller of Rent and 11 others PLD 1971 Pesh. 236; Syed Khadim Abbas Rizvi v. Miss Gohar Fatima 1984 CLC 2449; Shahid-ur-Rahman v. Abdul Ghani 1983 CLC 2020 and Wali Muhammad v. Abdul Karim 1984 CLC 2554 ref.

----Ss. 2 (i) & 15 (2) (ii) (iv) --- "Rent "--Def1nition---Default in payment of water charges and other liabilities---Impairing the utility and value of the premises---Water and conservancy charges were "rent " in terms of S.2(i), Sindh Rented Premises Ordinance, 1979---Charges for the consumption of the utilities such as water charges, gas and electricity were payable directly to the concerned agency and not to the landlord and it was the responsibility of the tenant to pay the same directly---Ground of default in payment of utilities could be taken by the landlord if on account of non-payment, the utilities had been disconnected thereby, impairing the utility and value of the premises---Landlord, therefore, could not press into service the ground of default on the basis of non-payment of water charges which were to be paid directly to the concerned Department unless on account of non payment, the utilities were disconnected thereby impairing the utility and value of the premises in terms of S.15(2)(iv), Sindh Rented Premises Ordinance, 1979.

Badaruddin v. Muhammad Yousaf 1994 SCMR 1900 ref.

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

----S.15(2)(vii)---Bona fide personal need of landlord---Proof---Attorney and husband of landlady had stated in his affidavit-in-evidence that he was from business community and had decades long business experience, but was not in occupation of any business premises to start his business-Landlady was consistent and the evidence produced by her was not in conflict or inconsistent with the ejectment application--No evidence in rebuttal had been produced to shake the testimony of witnesses of landlady nor in cross-examination the witnesses had shown any infirmity to discredit same--Landlady, in circumstances, had proved her bona fide personal need in respect of premises in question and Rent Controller could not non-suit her on ground that she had failed to state the nature of intended business, because non-disclosure of nature of business was not fatal to the plea of need of landlady.

Mst. Toheed Khanam v. Muhammad Shamshad 1980 SCMR 593; Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 ref.

Ch. Abdul Rasheed for Appellant.

Abdul Maqtadir Khan for Respondent.

Date of hearing: 3rd October, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2611 #

2001 Y L R 2611

[Karachi]

Before Faiz Muhammad Qureshi, J

MITHO KHAN alias MUHAMMAD MITHA through Legal Heirs and 8 others---Appellants

versus

ABDUL WAHEED---Respondent

First Rent Appeal No.59 of 2000, decided on 12th March, 2001.

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

----Ss.2 f (j) & 15 2) (ii)---Default in payment of rent---Relationship l of landlord and tenant---Tenant denied existence of relationship of landlord and tenant between the parties---Rent Controller after examining and discussing carefully oral as well as documentary evidence on record had concluded that relationship of landlord and tenant existed between the parties and tenant having failed to pay rent to the landlord, ordered his ejectment ---Evidence produced by the landlord in proof of existence of relationship of landlord and tenant between the parties having not been challenged by the tenant during cross-examination, same would amount to admission by the tenant---Order passed by the Rent Controller based on unrebutted evidence on record, could not be interfered with.

Saeeduddin Siddiqui for Appellants.

Hassan Mehmood Baig for Respondent.

Date of hearing: 12th March, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2640 #

2001 YLR21640

[Karachi ]

Before Faiz Muhammad Qureshi,J

PERVAIZ AKHTER---Applicant

versus

THE STATE --- Respondent

Criminal Bail Application No. 29 of 2001, decided on 12th April, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860). Ss.392/397,400/411---Bail, grant of ---Five accused had beets nominated in the challan-- Two accused had been alleged to have snatched the car of the complainant and the appellant accused teas not alleged to be among those two accused---No recovery was effected from the accused---Accused having been arrested while sitting in a car, at the most S.411, P. P. C. would be applicable to him which did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused had been granted bail in the case against him under S.13-D, West Pakistan Arms Ordinance, 1965---Accused, in circumstances, having been able to make out a prima facie case for grant of bail, was granted bail.

Shahadat Awan for Applicant.

Miss Rana Khan for the State.

Date of hearing: 12th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2689 #

2001 Y L R 2689

[Karachi]

Before Abdul Hameed Dogar, J

Syed MURTAZA ALI and others---Petitioners

versus

THE STATE---Respondent

Criminal Bail Applications Nos.585 and 636 of 1999, decided on 18th June, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Complainant and others in their affidavits had exonerated the accused from the involvement in the offence stating on oath that the accused had not committed any offence as alleged and that the complainant due to misunderstanding phoned the police-- Accused were illegally detained without orders from any lawful Authority--No interim or final challan had been submitted against the detenus in the Court of law---Continuous detention having become unlawful, detenus were granted bail----Copy of the order was sent to Inspector-General of Police for necessary action against the delinquents under intimation to the Court.

1992 PCr.LJ 1374; 1997 PCr.LJ 1736 and Asma Khatoon v. Syed Shabbir Hussain Shah PLD 1996 Kar. 517 ref.

M. Iqbal Ahmad for Applicant (in Criminal Bail Application No.585 of 1999).

Faheem R. U. Siddiqui for Applicant (in Criminal Bail Application No.636 of 1999).

Habib Ahmed, Arshad Lodhi, Asstt. A.-G. and Sharafat Ali Khan for the State.

YLR 2001 KARACHI HIGH COURT SINDH 2695 #

2001 Y L R 2695

[Karachi]

Before Sabihuddin Ahmed and Wahid Bux Brohi, JJ

NAIM AHMED KHAN---Petitioner

versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-746 of 2000, decided on 21st June, 2000.

Sindh Children Act (XIV of 1955)--

----Ss. 68(2) to 97(2)---Penal Code (XIV of 1860), Ss. 302/353/324/34 --- Detention of a child ---Detenu who was accused of penal offence being child, his case was referred to the Provincial Government for passing, appropriate order under S.68(2) of Sindh Children Act, 1955, but no order was passed despite the period of four and half months had passed and the detenu had been kept in custody at the Central Prison---Validity---Child could not be detained in jail and under S.68(2) of Sindh Children Act, 1955 only an order of detention could be passed in terms of 5.97(2) of the said Act---Detention in jail being patently unlawful, illegal deprivation of liberty of a citizen could not be perpetuated-- Custody of the detenu was ordered to be handed over to the father of the detenu in circumstances.

Province of Sindh v. Din Muhammad 1993 SCMR 1551 ref.

Mehmood A. Qureshi for Petitioner.

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

YLR 2001 KARACHI HIGH COURT SINDH 2707 #

2001 Y L R 2707

[Karachi]

Before Sabihuddin Ahmed, J

MUHAMMAD.AMIN BHATTI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.951 of 2001, decided on 6th August, 2001.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.380/454/457/34---Bail, grant Of--Protective pre-arrest bail ---Confirmation--Prosecution witnesses who supported the statement of the informant were the sons of the informant---Application for interim bail was converted into application for substantive bail---Interim protection bail was confirmed in circumstances.

Ch. A. Rasheed for Applicant.

Abbas Ali, Addl. A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 2716 #

2001 Y L R 2716

[Karachi]

Before Dr. Ghous Muhammad and Hamid Ali Mirza, JJ

BALOCHISTAN CONSTRUCTION COMPANY---Petitioner

versus

PORT QASIM AUTHORITY---Respondent

Constitutional Petition No.D-1971 of 1999, decided on 11th October, 1999.

(a) Constitution of Pakistan (1913)--

----Art.199---Constitutional petition--Deciding petition on merits at Katcha Peshi (pre-admission, stage)---Dispute regarding award of contract by Government---Need for quick disposal---Cases touching upon award of contracts and tenders should have expeditious disposal in view of the escalating costs failing which, the power which was to be exercised in the interest of public and for public good might become even counterproductive---High Court, with the consent of the parties disposed of the petition at Katcha Peshi (pre-admission stage).

Sterling Computers Ltd. v. M & N Publication Ltd. and others AIR 1996 SC 51 fol.

(b) Constitution of Pakistan (1973)--

----Art.199--Constitutional, petition--Awarding of contract---Power of judicial review, exercise of---Duty of public functionaries---State functionary in awarding contracts must act fairly, reasonably, honestly and justly---High Court, although cannot substitute its opinion with that of the State functionary, yet the Court has the power to judicially review administrative actions to check their fairness, reasonableness and transparency.

----Art. 199---Constitutional petition--Government tenders ---Pre-qualifications--Scope---Condition prescribed for a tender must have nexus with the object of the contract to be achieved---Where the prescribed condition has no nexus with the object the same can be judicially reviewed, read or struck down---Prescribed conditions in the award of tenders and contracts, must not be unreasonable, irrational and must have a direct nexus with the completion of the work sought to be performed by the contractors in the totality of circumstances--Nexus of a condition with the object depends upon facts and circumstances of each case.

Amanullah Khan v. Federation of Pakistan PLD 1990 SC 1092 ref.

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

----S.24-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Government tenders---Failure to assign reasons for refusal to allow the petitioner to participate in tender---Petitioner was not issued the tender documents by the Authorities and was precluded from participating in the tender---Contention of the petitioner was that application for participating in the tender was rejected without any reason---Validity---Executive Authority, under S.24-A of the General Clauses Act, 1897, was required to give reasons for its actions and orders---Failure of the Authorities to record reasons and for declining to allow the petitioner to participate was unlawful---High Court formulated certain questions and directed the Authorities to communicate the reasons the petitioner for declining the petitioner to participate in the tender---Constitutional petition was allowed accordingly.

Pacific Multinational (Pvt.) Ltd. v. I.-G. Police PLD 1992 Kar. 283; Jawed Hotel (Pvt.) Ltd. v. C.D.A. PLD 1994 Lah. 315; Dadabhay Investment (Pvt.) Ltd. v. Federation of Pakistan PLD 1995 Kar. 33; Port Services (Pvt.) Ltd. v. Federation of Pakistan PLD 1995 Kar. 374; Jawed Iqbal Abbasi and others v. Province of Punjab, 1996 SCMR 1433; Arif Builders and Developers v. Government of Pakistan PLD 1997 Kar. 627; V. Punnan Thomas v. State of Kerala AIR 1969 Kerala 81 and Ramana Dayaram Shetty v. International Airport Authority of India AIR 1979 SC 1628 ref.

S. Shahenshah Hussain for Petitioner.

Muhammad Arif Khan for Respondent.

Date of hearing: 28th July, 1999.

YLR 2001 KARACHI HIGH COURT SINDH 2776 #

2001 Y L R 2776

[Karachi]

Before S. Ahmed Sarwana, J

JAVED ALAM---Applicant

Versus

Hafiz AHMED ZAKARIA and another---Respondents

Criminal Miscellaneous Application No. 238 of 1994, decided on 20th June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 344/506---Quashing of proceedings---High Court under S.561-A, Cr. P. C. had the power, in suitable cases, to quash the proceedings even at the investigation stage where the proceedings were found to be mala fide or without jurisdiction---High Court was also competent to quash the proceedings if the Court was of the view that the proceedings amounted to an abuse of process of the Court or to secure the ends of justice--Girl in the present cases, who was alleged to have been forcibly kidnapped by the accused, was 17 years old and was adult and in her statement under S.164, Cr. P. C. had stated that she had not been kidnapped or enticed away by any one and that she had left her house of her own free-will and had married with the accused---Complaint against the accused, in circumstances, prima facie, was false and mala fide and allowing the same to continue would be an abuse of the process of the Court which must be prevented to meet the ends of justice.

PLD 1997 SC 275; Ahmed Saeed v. The State 1996 SCMR 1986; Mian Munir Ahmed v. The State 1985 SCMR 257; Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 and Muhammad Haroon and another v. Federation of Pakistan and others 1991 MLD 397 ref.

Syed Madadally Shah for Applicant.

Agha Khuda Bux, Asstt. A. G. for the State.

Dates of hearing: 11th and 18th August, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 2782 #

2001 Y L R 2782

[Karachi]

Before Sabihuddin Ahmed and Syed Ali Aslam Jafri, JJ

Mst. TANVIR AMNA---Appellant

Versus

BOHAUDDIN SARHANDI---Respondent

H.C.A. No. 47 of 2000, decided on 9th August, 2001.

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

----O. III, R.4 & O. IX, R.13---Ex parte decree, setting aside of---Appointment of pleader---Suit was decreed ex parte for failure of defendant to appear---Defendant fled application for setting aside ex parte decree contending that he was not served personally---Advocate, had filed Vakalatnama admittedly signed by the defendant, but despite obtaining time for filing of written statement, neither appeared, nor filed written statement even after adjournment of the matter twice---Defendant had claimed that he had not authorised the Advocate to represent him in the case and the Advocate also filed an affidavit to the effect that he was not authorised by the defendant to represent him and that he had filed the Vakalatnama of his own---Effect---Communication between a client and counsel was privileged and when a counsel filed a duly signed Vakalatnama before a Court of law it had to be assumed that he had been authorised to act and appear for his client---Order III, R. 4, C.P.C., had expressly prohibited a counsel from doing so without filing Vakalatnama---Counsel would be guilty of the gross professional misconduct if he would act and appear for a party which had not authorised him to do---Legal system rested on a certain amount of credibility which was to be attached to the acts and deeds of members of the Bar whose professional conduct was regulated by law--If litigants were allowed to conveniently denounce the authority by a counsel appointed by them through written instruments, the system of administration of justice could possibly come to a break down---Advocate having properly filed a Vakalatnama could not be allowed to denounce his responsibility by conveniently contending that he had appeared without any authorisation---Advocate, in such a case must face the consequence of proceedings for professional misconduct--Negligence of counsel, however, was not a ground for setting aside an ex parte decree.

Muhammad v. Mir Khan PLD 1987 Kar. 363 and Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9 ref.

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

----O. III, R.4---Appointment and responsibility of Advocate ---Professional misconduct of Advocate---When an Advocate files a proper Vakalatnama signed by his client in a Court of law, he cannot be allowed to resile from his responsibility---Courts grant a certain amount of latitude to members of Bar and do not insist on strict technical compliance of O. III, R.4, C.P.C., because it is adduced that art Advocate acts with full responsibility while appearing for a client and an irregularity in the form of Vakalatnama is allowed to be rectified subsequently---Advocate making appearance on behalf of a party without any authorisation commits, extremely gross form of professional misconduct.

----0.1X, R.13---Ex parte decree, setting aside of---Negligence of counsel---Negligence of counsel could not be a ground for setting aside an ex pane decree.

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

----O.IX, R.6---Non-appearance of defendant despite service of summons---Effect---Court though was entitled to decree the suit without recording evidence when the defendant did not appear despite service of summons, but such discretion ought to be exercised judiciously.

Shamroz Khan v. Muhammad Amin PLD 1978 SC 89 ref.

(e) Administration of justice---

----Law always favours adjudication on merits.

(f) Counsel and client---

---- Professional misconduct of Advocate--Effect---Communication between a client and counsel was privileged and when a counsel filed a duly signed Vakalatnania before a Court of law it had to be assumed that he had been authorised to act and appear for his client ---Order III, R.4, C. P. C., had expressly prohibited a counsel front doing so without filing Vakalatnama---Counsel would be guilty of the worst form of processional misconduct if he would act and appear for a party which had not authorised him to do so---Legal system rested on a certain amount of credibility which was to be attached to the acts and deeds of members of the Bar whose professional conduct was regulated by law--If litigants were allowed to conveniently denounce the authority of a counsel appointed by them through written instruments, the system of administration of justice could possibly come to a break-down---Advocate having properly filed Vakalatnama could not be allowed to denounce his responsibility by conveniently contending that he had appeared without any authorisation---Advocate in such a case must face the consequence of proceedings for professional misconduct--When an Advocate files a proper Vakalatnama signed by his client in a Court of law, he cannot be allowed to resile from his responsibility---Court grants a certain amount of latitude to members of Bar and do not insist on strict technical compliance of O.III, R.4, C. P. C., because it is assumed that an Advocate acts with full responsibility while appearing for a client and an irregularity in the form of Vakalatnama is allowed to be rectified subsequently--Advocate making appearance on behalf of a party without any authorisation, commits the extremely gross form of professional misconduct.

Abdul Hafeez Lakho for Appellant.

M.M. Aqil Awan for Respondent.

Date of hearing: 30th May, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2791 #

2001 Y L R 2791

[Karachi]

Before Saiyed Saeed Ashhad; C. J. and Muhammad Afzal Soomro, J

Messrs BAGH CONSTRUCTION COMPANY---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No. D-1840 of 1995, decided on 25th May, 2001.

(a) Official Act---

---- Government/Executive do not enjoy or possess any inherent authority and further no powers or duties are inseparably annexed to it laying down that Government/Executive act must be backed by contemporaneous law.

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

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

---Art. 199---Constitutional petition--Question of title ownership---Such question can only be decided by a competent Civil Court 'and is not to be decided by High Court.

Federation of Pakistan and 2 others v. Major (Recd.) Muhammad Sabir Khan PLD 1991 SC 476; Landale and Morgan (Pakistan) Ltd., Narayanganj v. The Chairman, Jute Board, Dacca and another 1970 SCMR 853 and Bashanka Lal Bank v. Islamic Republic of Pakistan and others 1969 SCMR 283 ref.

----Art. 199---Constitutional-petition-- Maintainability---Disputed question of fact--Scope---Where intricate, complicated and disputed questions and controversies of facts are involved in the case, the same cannot be decided on the basis of the documentary evidence or material which is on record--High Court, while proceeding in its Constitutional jurisdiction does not undertake recording of evidence of parties and/or witnesses for resolution of such disputed questions of fact.

(d) Contract-

---- Formation of contract---Necessary ingredients---Formation of a contract requires that offer made by proposal must be accepted by promisee in unconditional and unequivocal terms and any slight variation or departure from the offer results in its rejection.

(e) Contract-

---- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Cancellation of auction bid---Aggrieved party---Necessary ingredients to be an aggrieved party---Principles---Privatisation Commission put the disputed properties to public auction and the petitioners were the highest bidders---Petitioner, after deposit of earnest money, came to know that the title of the properties was under litigation, therefore, the petitioners suggested that the finalization by sale of the properties be deferred till the question of title was established--Privatisation Commission did not respond to the suggestion, cancelled the bid of the petitioners and advertised the properties for re-auction---Contention of the petitioners was that the transaction of sale had come into existence between the parties whereby the Commission was required to sell the properties to the petitioner---Validity---Letter of intent, in the present case, whereby the petitioners were conveyed the desire/intention of the Commission to sell the properties in question was only in the nature of an offer or a promise and would have turned into a valid agreement of sale only after an agreement of sale had been executed by the parties in pursuance thereof on the terms and conditions embodied in the letter of intent---Petitioners' failure to execute agreement of sale, no concluded contract/agreement of sale had ever come into existence---No valid, legal and proper contract/agreement of sale had been executed by the parties and there was no concluded contract between the parties, the petitioners did not acquire any right, whatsoever, which could be enforced by High Court in exercise of its Constitutional jurisdiction---Mere acceptance of bid offered by the petitioners and intention/desire to sell/dispose of the properties in question to them on payment did not amount to coming into existence of a contract or an agreement of sale, which would have bound the Privatisation Commission to dispose of/sell the properties in question to the petitioners---Where the petitioners had failed to establish that they had acquired a legal right to claim the sale of the properties in question, no right had been created in favour of the petitioners--Petitioners would not be deemed to be an aggrieved party as contemplated in Art. 199 of the Constitution, which was a necessary condition for invoking the Constitutional jurisdiction of High Court under Art. 199 of the Constitution---Petitioners did not have any legal or vested right, which was violated by any act of commission or omission by the Privatization Commission--Petition was dismissed in circumstances.

Messrs Habib Bank Limited v. Abdul Wahid Khan 1996 CLC 658 and Shaukat Ali v. Secretary Industries and Mineral Development, Government of Punjab, Lahore and 3 others 1995 MLD 123 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Essential condition to involve Constitutional jurisdiction---Party invoking the jurisdiction of High Court would have suffered legal injury resulting in loss to him was not available---In absence "of any right neither the question of violation thereof nor question of legal injury would arise in circumstances.

Messrs Arif Builders and Developers v. Government of Pakistan and 4 others PLD 1997 Kar. 627 and Messrs Dadadhoy Investment (Pvt.) Limited, Karachi v. Federation of Pakistan PLD 1995 Kar. 33 ref.

Mushtaq A. Memon for Petitioner.

Syed Zaki Muhammad, Dy. A. G., for Respondent No. 1.

Muneer A. Malik for Respondent No. 2.

Date of hearing: 11th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2817 #

2001 Y L R 2817

[Karachi]

Before S. A. Rabbani, J

Mrs. SAIRA BEGUM and others---Applicants

Versus

MUHAMMAD ATTA-UR-REHMAN MALIK and others---Respondents

Civil Revision Application No. 217 of 1999 and Civil Suit No. 2161 of 1985, decided on 16th February, 2001.

Civil Procedure Code (V of 1908)---

---S. 12(2)---Specific Relief Act (I of 1877)--S.42--Suit for declaration in respect of title and possession was decreed by Trial Court--Such judgment and decree were challenged by defendants in this application under S.12(2), C.P.C. alleging that same were obtained by fraud and misrepresentation---Trial Court dismissed application without framing issue for determination of allegations and allowing the parties to produce evidence on said issue---Validity---Trial , Court by not conducting a thorough enquiry into the allegation by taking evidence of the parties had acted with material irregularity---High Court set aside order of the Trial Court and remanded case to decide application filed under S.12 (2), C. P. C. after framing issue and allowing the parties to produce evidence.

Masood Shahryar for Applicants.

Date of hearing: 13th February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2826 #

2001 Y L R 2826

[Karachi]

Before Ghulam Nabi Soomro and Ata-ur-Rehman, JJ

NOOR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorism Jail Appeal No. 149 and Confirmation Case 47 of 1999, decided on 12th April, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(b), 392 & 316---Appreciation of evidence---Judicial confession made by accused was true and voluntary which was supported by strong circumstantial evidence---No direct evidence was forthcoming in the case---Accused could not be burdened with the responsibility of killing the deceased and committing the offence of Qatl-i-Amd---Offence under S. 316, P. P. C. however, stood proved against the accused hereunder, he was convicted and sentenced to 14 years' R. I, and Diyat to be determined in accordance with--law---Conviction and sentence of accused under S. 392, P. P. C. were maintained---Sentences were ordered to run concurrently---Appeal was disposed of accordingly.

Fazal Hussain v. The State PLD 1958 M.P.) Lah. 142; Baboo v. The State PLD 1961 (W. P.) Kar. 240; Arbab v. The State 1972 P Cr. L J 76; Pahlwan and others v. The State PLD 1975 SC 84; Najib Raza Rehmani v. The State PLD 1978 SC 200 and Subah Sadiq and others v. Mistry Taj Din and others 1979 SCMR 297 ref.

M. Janan Khattak for Appellant.

Muhammad Riaz Abbasi for the Complainant.

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

Date of hearing: 11th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2843 #

2001 Y L R 2843

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail No. 259 of 2001, decided on 9th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11---Bail---Abductee in her statement recorded under S.164, Cr. P. C. and in her affidavit had not implicated the accused--Abductee appeared to be a consenting party who had married with the accused and a registered Nikahnama in this regard had been placed on record---Delay of four days in lodging the F.I.R. had not been explained--Co-accused had been placed in Column No. 2 of the Challan---Case against accused needed further probe in circumstances and he was admitted to bail accordingly.

Javaid A. Bukhari for Applicant.

Muhammad Azeem Panhwar, A.A. G. for the State.

Date of hearing: 9th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2849 #

2001 Y L R 2849

[Karachi]

Before Faiz Muhammad Qureshi, J

MAUJAN JATOI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 273 of 2001, decided on 9th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail---Delay of 24 days in reporting the matter to the police was not explained---Inordinate delay of more than one month in recording the statements under S.161, Cr. P. C. of the prosecution witnesses implicating the accused was also not explained by the prosecution---Guilt of accused was, thus, open to further inquiry as envisaged by S. 497(2), Cr. P. C.---State Counsel had no objection to grant of bail to accused---Bail was allowed to accused in circumstances.

1993 SCMR 1321; 1997 SMR 1836 and 1986 SCMR 938 ref.

Syed Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar, A. A. G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 2881 #

2001 Y L R 2881

[Karachi]

Before Muhammad Moosa K. Leghari and S.A. Sarwana, JJ

GHULAM ABBAS ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 1273 and 1484 of 2000, decided on 11th April, 2001.

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

----S.497---Penal Code (XLV of 1860), Ss. 365-A134---Bail, grant of---Accused were in custody for a continuous period exceeding two wars; conclusion of the trial was not in sight and the delay in the trial was not attributable to the accused---Accused were neither previous convicts nor they had a criminal history and according to Jail Authorities their conduct in jail was satisfactory---Effect---No basis existed to form an opinion about the accused to be hardened and desperate criminals---Mere involvement of the accused in other pending case, could not be made basis to keep them in continuous and indefinite incarceration as it would rot only be unjust, but would tantamount to punishing a person before his conviction--Accused were entitled to grant of bail.

Zahid Hussain Shah v. The State PLD 1995 SC 49; Sayed Abdul Baqi Shah v. The State 1997 SCMR 32; Abdul Rashid v. The State 1998 SCMR 897 and Moundar and others v. The State PLD 1990 SC 934 rel'.

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

----S.497(1), third & fourth provisos---Bail, grant of---Proviso third to S.497(1), Cr. P. C. according to which if a person accused of an offence punishable with death had been detained for such offence for a continuous period exceeding two years would be released on bail, was controlled and regulated by fourth proviso to S.497(1), Cr. P. C. according to which the concession of bail could not be extended to an accused who in the opinion of the Court was hardened, desperate and dangerous criminal or involved in terrorism.

---- Rule of criminal dispensation of justice--Primarily the facts and circumstances of each case should govern the situation which were to he looked into with reference to a particular principle of law---Intention of the law is that a criminal case must be expeditiously disposed of without unnecessary delay.

Muhammad Rafiq v. The State 1997 SCMR 412 ref.

Muhammad Ashraf Kazi for Applicant (in Criminal Bail No. 1384 of 2000).

Ghulam Shabbir Baloch for Applicant (in Criminal Bail No. 1273 of 2000).

Abbas Ali, Addl. A. G., Sindh for the State.

Date of hearing: 11th April, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2884 #

2001 Y L R 2884

[Karachi]

Before Faiz Muhammad Qureshi, J

ARSHAD alias BILDER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 955 of 2001, decided on 16th August, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Only piece of evidence against the accused was in shape of confessional statement of the co-accused, who in his statement had implicated the accused--Confessional statement of co-accused could not form basis of conviction of the accused--No recovery whatsoever was effected from the possession of the accused and no identification parade of the accused had been held---Earlier the accused was released by the police, but after about three years was again arrested on the basis of confessional statement---Accused having been able to make out good prima facie case for grant of bail, he was admitted to bail.

1993 P Cr. L J 1919 ref.

Mrs. Samina Sohail Qadir for Applicant.

Habib-ur-Rasheed for A. G. for the State.

Date of hearing: 16th August, 2001

YLR 2001 KARACHI HIGH COURT SINDH 2890 #

2001 Y L R 2890

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL RAHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 75 of 2001, decided on 20th August, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Appreciation of evidence---Two of the co-accused who were alleged to be armed with hatchets and another who instigated the others, were let off by the police during the investigation despite they were named in F.I.R. with specific roles---No reason had been assigned by the police as to why they had been let off--Another co-accused who was alleged to have fired from Repeater on complainant party and its recovery was effected from his possession, was acquitted by the Trial Court without assigning any reason for the acquittal---No recovery was effected from the possession of the accused---Complainant and other prosecution witnesses who had produced ocular evidence were closely related inter se and were also the close relatives of the deceased and in absence of any independent corroboration, their evidence could not be relied upon and they could not be said to be reliable witnesses---Longstanding litigation existed between the parties and their relations were strained---Co-accused having been acquitted by the Trial Court on the same set of evidence, it was its duty to accord benefit to the accused, particularly when the evidence of the witnesses was not inspiring confidence---Witnesses examined by the prosecution appeared to be dishonest as they had not spoken truth before the Trial Court and the complainant and the witnesses had deviated from their earlier statements with regard to the most of the accused--Investigation of police was also dishonest and the Investigating Officer appeared to be delinquent, who had not conducted the investigation properly---Conviction and sentence awarded to the accused by the Trial Court were set aside giving him benefit of doubt.

1998 SCMR 25 ref.

A.Q.Halepota for Appellant.

Habibur Rashid for Asstt. A. G. for the State.

Date of hearing: 20th August, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2894 #

2001 Y L R 2894

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD AJMAL---Applicant

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Application No. 188 of 2000, heard on 29th August, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 523, 550 & 561-A---Seizure of vehicle by police---Custody and disposal of said vehicle--- Vehicle was seized under S. 550, Cr. P. C. by C.I.A. Inspector, and was handed over to a person who applied for the custody under S. 516-A, Cr. P. C.---No F. I. R. was registered in respect of the vehicle which was neither involved in any crime nor was suspected or stolen one ---C.I.A. Inspector who seized the wagon did not submit report under S.523 (1), Cr.P.C. before the Magistrate having jurisdiction over the matter and even otherwise he was not competent to take cognizance of the case or to seize the vehicle---Effect---Application under 5.516-A, Cr. P. C. for custody of vehicle was thus incompetent---Application for custody of vehicle was allowed in circumstances.

PLD 1997 SC 408; PLD 1995 Lah. 606 and PLD 1995 Kar. 16 ref.

Mahmood A. Qureshi for Applicant.

Fazal-ur-Rehman Awan for A. G. for Respondents Nos. 1 and 2.

Feroze Hussain Shaikh for Respondents Nos. 3 and 4.

Date of hearing: 29th August, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2896 #

2001 Y L R 2896

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD WASEEM RAZA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 484 of 2001, decided on 22nd June, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 87 & 88---Penal Code (XLV of 1860), Ss. 302/324/34---Bail, grant of---Bail was granted to co-accused but not to the accused---Accused was alleged to have remained absconder for more than three years, but no proceedings had been initiated against him under Ss. 87/88, Cr.P.C.--Long abscondence of the accused was not relevant for grant of bail to the co-accused---No specific role was attributed to the accused and only general allegations were levelled against him---All the accused persons were alleged to have fired upon the deceased and it was not clear from the record as to who caused the fatal injury to the deceased---Accused, who was behind the bar for the last more than three years, having been able to make out a prima facie case for grant of bail, was admitted to bail.

Jaffar's case 1980 SCMR 784; 1985 SCMR 382; 1985 PCr.LJ 1323; 1989 SCMR 1987 and 1985 SCMR 1709 ref.

Nawab Mirza for Applicant.

Arshad Lodhi, Asstt. A. G. for the State.

Date of hearing: 22nd June, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2902 #

2001 Y L R 2902

[Karachi]

Before Faiz Muhammad Qureshi, J

NAEEM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.916 of 2001, decided on 8th August, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/324/353/34 --- Qanun-e-Shahadat (10 of 1984), Art.38---Bail, grant of---Name of the accused did not appear in the F.I.R.--Two main accused on whose statements the accused was implicated in the case, had been granted bail---Statement of main accused against the co-accused was not admissible by virtue of Art.38 of Qanun-e-Shahadat, 1984 and long abscondence of the said accused was also irrelevant---State Counsel had no objection to the grant of bail to the accused--Accused having been able to make out a good prima facie case for grant of bail, his application was accepted.

1985 SCMR 1709 and 1985 SCMR 382 ref.

Shahadat Awan for Applicant.

Kazi Wali Muhammad for A.A.-G. for the State.

Date of hearing: 8th August, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2941 #

2001 Y L R 2941

[Karachi]

Before Faiz Muhammad Qureshi and Munirur Rehman, JJ

GHULAM NABI SHAH alias GHAZI SHAH and another---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.85 of 1995, decided on 13th July, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/34, 365-A/34 & 392/34Appreciation of evidence---Impugned judgment was perfunctory---Case involving capital punishment had been allowed to proceed in the absence of defence counsel which amounted to an illegality---Names of accused and their description did not appear in the F. I. R.---Identification parade had been held after an inordinate delay and also not in accordance with the parameters laid down by the superior Courts---Two F.LRs. under different sections had been registered about the same incident---Charge framed in the case was defective---Challan had been submitted against the accused after an unexplained delay of one year and one month---Investigation conducted in the case was dishonest---Despite availability of independent witnesses, none of them was examined in the case---Prosecution case on the face of it was replete with contradictions---Accused were extended benefit of doubt and acquitted in circumstances.

1996 PCr. LJ 361; 1996 PCr. LJ 503; 2001 PCr. LJ - 964; 2001 PCr. hJ 1146; 1995 SCMR 124; PLD 1991 SC 447; PLD 1996 Kar. 246; Lal Pasand's case PLD 1981 SC 142; PLD 2001 SC 456; 1996 SCMR 308; 1997 PCr.LJ 1628; 1997 SCMR 144; 1995 SCMR 1345 and 1998 SCMR 25 ref.

Syed Madad Ali Shah for Appellant No. 1.

Muhammad Saleem Hashmi for Appellant No.2.

Muhammad Azeem Panhwar for A.A. -G. for the State.

Date of hearing: -10th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2958 #

2001 Y L R 2958

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

WAHID BUX---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.39 of 2000, heard on 3rd July, 2001.

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

----S. 9(b)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4--Appreciation of evidence---Trial of accused under two different statutes viz. Prohibition (Enforcement of Hadd) Order, 1979 and Control of Narcotic Substances Act, 1997 and uncertainty of the prosecution about the commission of the offence by him, had vitiated the entire trial, benefit of which was to go to the accused---No independent person was associated with the recovery proceedings---Delay of nine days in sending the recovered "Charas" to the Chemical Examiner was not explained by the prosecution---Case property was not produced in the Court and was not shown to the accused at the time of recording his statement under S. 342, Cr. P. C. ---Accused was acquitted on benefit of doubt in circumstances.

1995 SCMR 1345 ref.

(b) Criminal trial---

---- Benefit of doubt---Where a single circumstance creates doubt in a prudent mind, its benefit has to be given to the accused not as a matter of grace but as a matter of right.

1995 SCMR 1345 ref.

Appellant in person.

Muhammad Azeem for the State.

Date of hearing: 3rd July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 2971 #

2001 Y L R 2971

[Karachi]

Before Faiz Muhammad Qureshi, J

Syed ALI NAWAZ SHAH and 5 others---Applicants

versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.772 of 2001, decided on 6th July, 2001.

Penal Code (XLV of 1860)---

----S. 344/34---Criminal Procedure Code (V of 1898), Ss.561-A & 249 A---Quashing of proceedings---Complainant as well as the accused both had claimed themselves to be the husbands of the wrongfully confined lady which question was to be decided by the Family Court---Criminal proceedings initiated by the complainant amounted to harassment to the accused---Magistrate, after recording the statement of the said lady had sent her to Darul Aman although she desired to go with the accused whom she had acknowledged her husband---Trial Court in this way having itself become a party to the proceedings, moving an application before it under S. 249-A, Cr. P. C. would have been futile---Proceedings pending under S.344/34, P.P.C. in the Trial Court against the accused were quashed in circumstances.

2000 SCMR 122; 1998 SCMR 873; 1994 PCr.LJ 354; 1986 PCr.LJ 2749; 1992 PCr.LJ 58; NLR 1991 Criminal 181; PLD 1967 SC 317; 2000 SCMR 1245; PLD 1988 Kar. 230; 1996 PCr.LJ 1335 and 2000 PCr.LJ 1180 ref.

Syed Madad Ali Shah for Applicants.

Salahuddin Panhwar for Respondent No.1.

Anwar Hussain Ansari for A.A.-G. for the State.

Date of hearing: 6th July, 2001

YLR 2001 KARACHI HIGH COURT SINDH 2984 #

2001 Y L R 2984

[Karachi]

Before Hamid Ali Mirza and Shabbir Ahmed, JJ

ANWAR SHAH---Petitioner

versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petition No.D-1719 of 1999, decided on 2nd March, 2000.

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

----S.6---Approved plan---Violation of--Question whether the existing construction was regularized by the Authority or the same was regularizable, would be decided by the Authority---Demolition/removal work would not be carried out till the decision of said question---Authority would perform its statutory obligation in accordance with Rules and By-laws.

Abdul Wajid Wyne for Petitioner.

Manzoor Ahmed for Respondent No.3.

Ejaz Ali S. Mangi for Respondents Nos.4 and 5.

YLR 2001 KARACHI HIGH COURT SINDH 2986 #

2001 Y L R 2986

[Karachi]

Before Sabihuddin Ahmed and Anwar Zaheer Jamali, JJ

MUSLIM COMMERCIAL BANK LIMITED---Petitioner

versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-270 of 1998 decided on 15th February, 2000.

West Pakistan Urban Immovable Property Tax Rules, 1958---

----R. 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Assessment of property tax---Petitioner had called in question the assessment of property tax in respect of the building owned by him--Petitioner did not file any objection to the assessment made by the Authority and assessment was finalized---Petitioner had not even availed of the statutory remedy of appeal and an application for revision filed after six months of the order of assessment was dismissed---No question of law meriting interference, High Court could not assume the jurisdiction of Assessing Authority under its Constitutional jurisdiction.

Masood Shahreyar for Petitioner.

Munir-ur-Rehman, Addl. A.-G. for Respondent.

YLR 2001 KARACHI HIGH COURT SINDH 2990 #

2001 Y L R 2990

[Karachi]

Before Mushtaq A. Memon, J

Messrs ELECTRA ENTERPRISES--Plaintiff

versus

MUSLIM COMMERCIAL BANK LIMITED---Defendant

Civil Miscellaneous Application No. 1434 of 1998 in Suit No. 65 of 1998), decided on 17th August, 1998.

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

----Ss. 9(3) & 10---Suit for recovery of loan--Application for leave to defend the suit--Delay, condonation of---Summons were sent to the defendant-Bank in four modes, namely, through registered post, courier service, bailiff and publication in newspaper--Defendant denied the said service of summons contending that service of summons through publication in the newspaper never came to the knowledge of the defendant---Contention was repelled, because the summons were published in two leading daily newspapers and the defendant-Bank maintained a big organization and in all reasonableness it could not be accepted that publication did not come to the knowledge of the defendant---Big organization like the defendant had arrangements for maintaining record of the various news items appearing in the print media and the press advertisement pertaining to such organization---Summons sent through registered post and through courier service, in circumstances, were also to be deemed to have been served on the defendant--Defendant who failed to offer any explanation for the delay in filing application, had acted in clandestine manner creating doubt about its bona fides-- Application of defendant-Bank for leave to appear and defend suit, could be construed being barred by time and thus dismissed.

Messrs Wahid Ice and Cold Storage Plant v. National Bank of Pakistan PLD 1996 Kar. 529; Messrs Indus Match Co. Ltd. v. United Bank Ltd. 1996 CLC 1378; Emirates Bank International v. Dost Muhammad Cotton Mills 1993 MLD 54; 1981 CLC 1495 and PLD 1959 Kar. 629 ref.

Mansoor-ul-Arfin for Plaintiff.

Rizwan Ahmed Siddiqui for Defendant.

YLR 2001 KARACHI HIGH COURT SINDH 3014 #

2001 Y L R 3014

[Karachi]

Before Shabbir Ahmed, J

LION PAPER INDUSTRIES (PVT.) LIMITED---Appellant

versus

Mrs. SABIHA RIZWAN---Respondent

First Rent Appeal No.485 of 1999, decided on 24th October, 2000.

(a) Sindh Rented Premises Ordinance (XV11 of 1979)---

----S.16(1)(2)---Tentative rent order---Rent Controller, no doubt, was not required to determine the rent due finally for the purpose of deposit which could be approximate, but such order should be judicious order and passed after considering all the material placed on record---Rent Controller, merely on the statement of landlady had ignored the rent receipts allegedly issued by her without affording opportunity to the tenant and without recording tentative finding regarding genuineness of the said receipts---Rent Controller was required to give adjustment in respect of rent already, paid and deposited by the tenant in the Court, but that had not been done---Validity---Tentative rent order passed by the Rent Controller could not be said to be judicious order in terms of S.16(1), Sindh Rented Premises Ordinance, 1979, but was vague, improper and defective and noncompliance of said order by the tenant would not entail the penal consequences as provided under S.16(2) of Ordinance, 1979.

Nasir Kamal Pasha v. Muhammad Ismail Khan PLD 1983 Kar. 129; Muhammad Ayub Khan v. Mst. Shama Khalid 1994 CLC 1522; Naseem v. Senior Civil Judge and Rent Controller PLD 1982 Kar. 210; Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Ghulam Muhammad Lundkar v. Safdar Ali PLD 1967 SC 530; Syed Ahsan Ali v. Jafar Ali PLD 1964 Kar. 418; Aftab Ahmed v. Zaibun b4sa 1998 SCMR 2085 and Moheenul Haq v. Zulekhan 1979 CLC 650 ref.

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

----S.16(1)(2)---Tentative rent order---No appeal lay against the interlocutory order passed by the Rent Controller, but it would be open to the tenant to challenge such order in appeal and there was no estoppel against the appellant tenant to raise plea that order for deposit of rent being illegal and without jurisdiction, its non-compliance would not result in his eviction.

Maula Bux v. Muhammad Hussain 1983 CLC 277 ref.

----S.16(1)(2)---Tentative rent order ---Non compliance---Effect---Provisions of S.16(2) of Sindh Rented Premises Ordinance, 1979 were penal in nature and non-compliance of the order passed under S.16(1) of the Ordinance would entail penalty by way of summary ejectment of tenant---Such order, in circumstances, should be in strict compliance with the provisions of S.16(1) of the Ordinance---Any deviation or departure from the said provision would disentitle the landlord from seeking ejectment for non compliance thereof---No penalty could be imposed on the tenant for non-compliance of an order which had not been passed in accordance with the provisions of law.

Badrul Alam for Appellant.

Rehanul Hasan Farooqi for Respondent.

YLR 2001 KARACHI HIGH COURT SINDH 3023 #

2001 Y L R 3023

[Karachi]

Before Zahid Kurban Alavi, J

Syed MUHAMMAD MUJTABA---Appellant

versus

Mst. KHALIDA HAMID---Respondent

First Rent Appeal No.376 of 1994, decided on 14th February, 2001.

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

----S.I5(2)(vii)---Bona fide personal need of landlord---Landlady had sought ejectment of tenant on ground that she required the premises for her personal use to start her own business---Premises was most suitable for the landlady to start her business for which she was fully qualified---Bona fide personal need of landlady having fully been proved on the basis of evidence on record, Rent Controller rightly ordered ejectment of the tenant.

Mst. Saira Bai v. Anisur Rahman 1989 SCMR 1366 ref.

Abdul Rashid for Appellant.

Muhammad Majeed Jeelani for Respondent.

Date of hearing: 20th February, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 3030 #

2001 Y L R 3030

[Karachi]

Belore S. Ali Aslant Jafri, J

M. AYUB --- Plaintiff

versus

FEDERATION OF THE ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Commerce, Government of Pakistan, Islamabad and 2 others---Defendants

Suit No. 1714 of 1997 and Civil Miscellaneous Application No.9057 of 2000, decided on 9th January, 2001.

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

----S.55---Mandatory injunction, grant of--Points to be considered---In order to seek mandatory injunction in a suit there should be a very strong prima facie case in favour of the plaintiff arid it should be shown that if the interim relief in the form of mandatory injunction was not granted, the very purpose of the filing of the suit would be frustrated--Mandatory injunction during the pendency of a suit was a rare phenomenon---Application being without merit was rejected in circumstances.

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

----S. 55---Damages---Damage calculated in terms of money could not be counted as irreparable loss rather the same could be made good at the time of final decision of suit.

Munir A. Malik for Plaintiff.

S. Afsar Ali Abidi for Defendants Nos. 1 and 2.

YLR 2001 KARACHI HIGH COURT SINDH 3033 #

2001 Y L R 3033

[Karachi]

Before Anwar Zaheer Jamali, J

DEEWAN MUHAMMAD SOHAIL---Appellant

versus

SABIR HUSSAIN and 3 others---Respondents

First Rent Appeal No.720 of 1999, decided on 1st November, 2000.

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

----S.15(2)(vii)---Bona fide personal, need of landlord---Evidence on the point of personal need of one of the landlords to start his own business in the premises in question remained unshaken in cross-examination and nothing had come from the side of the tenant to rebut that position---Once the landlord had succeeded to establish his claim of personal use, mere lack of experience of landlord in the intended business would not disentitle landlord from claiming ejectment of tenant on the ground of personal use.

Mehmood Habibullah for Appellant.

M. Qaiser Qureshi for Respondents.

YLR 2001 KARACHI HIGH COURT SINDH 3050 #

2001 Y L R 3050

[Karachi]

Before Ghulam Nabi Soomro and Syed Zawwar H. Jaffery, JJ

NASIR and 2 others---Appellants

versus

THE STATE---Respondent

Special A.T.A: Nos.36 to 42 and 54 of 2000, decided on 12th December, 2000.

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

----Ss.392/34, 353/34 & 324/34---AntiTerrorism Act (XXVII of 1997), S.7-B---West Pakistan Arms Ordinance (AX of 1965), S.13-D---Appreciation of evidence---Offence under S.392. P. P. C. simpliciter not accompanied with the offence of murder or Zina-bil-Jabr was not a scheduled offence and thus was not punishable under the AntiTerrorism Act, 1997---Sections 353 & 324, P. P. C. were also not the scheduled offences-- -Offence under the West Pakistan Arms Ordinance, 1965 could not be tried by the Anti-Terrorism Court unless the same had been committed conjointly with an offence punishable under the said Act---Since offences under Ss. 353 & 324, P. P. C. had not been made punishable under the Act, an offence under the Arms Ordinance like the aforesaid offences under the Penal Code would not be triable by the Anti-Terrorism Court--Complainant had identified the accused in the identification test parade and also in the Court while deposing under the oath--Incriminating recovery had also been effected from the accused---Conviction of accused under S. 392, P. P. C. was consequently set aside and instead he was convicted under S. 7-B of the Anti-Terrorism Act, 1997 and sentenced to seven years' R.I. with fine--Convictions and sentences of accused under Ss. 353/34 & 324/34, P. P. C. as well as under S.13-D of the Arms Ordinance were also set aside and he was directed to be retried thereunder by the Sessions Court.

1998 MLD 518; PLD 1955 Sindh 65; PLD 1962 Kar. 270; PLD 1958 Dacca 419; PLD 2000 Kar. 181; 2000 YLR 2173; PLD 1995 SC 1; 1998 SCMR 752; 1995 SCMR 1793; PLD 1999 SC 558 and PLD 1998 Lah. 318 ref.

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

----Ss.392/34, 353/34 & 324/34--Appreciation of evidence---Identification of accused---Testimony of a witness who does not identify the accused at identification test and identifies him in Court at the trial is open to great doubt and the same cannot be implicitly relied upon.

A.Q. Halepota, Khawaja Naveed Ahmed, Ali Nawaz Dheraj and Aftab Bano for Appellants.

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

Date of hearing: 12th December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 3078 #

2001 Y L R 3078

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

DRIS---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 18 of 2001, decided on 3rd July, 2001.

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

----S.9(b)---Appreciation of evidence---Case property had been retained at the Police Station and sent to the Chemical Examiner after an unexplained inordinate delay of six months---No independent Mashirs were associated by the police with the recovery proceedings---Police party had not even sent any fake customer to the pointed place after receiving information about the sale of narcotics by the accused---Case property was neither produced in the Court nor shown to the accused while recording his statement under S. 342, Cr. P. C. ---Non production of the relevant entry in the Daily Diary about the departure of the police party in the Court had cut at the root of the prosecution case--Accused was acquitted on benefit of doubt in circumstances.

Muhammad Arif v. The State 1993 PCr.LJ 1953; Nazir Ahmad v. The State 1993 PCr.LJ 217; 1997 FSC SD 356; 1995 SCMR 1414; Qalandro alias Nazro v. The State 1997 MLD 1632 and Farid Ahmed Langhra v. The State 1998 PCr.,LJ 1368 ref.

Manzoor Ahmed Z. Siddiqui for Appellant.

Anwer Ansari for A.A.-G. for the State.

Date of hearing: 3rd July, 2001

YLR 2001 KARACHI HIGH COURT SINDH 3097 #

2001 Y L R 3097

[Karachi]

Before Faiz Muhammad Qureshi and Munirur-Rehman, JJ

NOOR MUHAMMAD KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 74 of 1999 (Hyd.) and 19 of 2001 (Kar.), decided on 12th July, 2001.

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

----S.9(c)-- Appreciation of evidence---Charge framed in the case was defective being inconsistent with the claim of the prosecution with regard to the recovery of opium and 'Charas' from the accused which was not even-put to the accused in their statements recorded under S.342, Cr.P.C.---Trial Court had framed the charge and convicted the accused under the control of Narcotic Substances Ordinance, 1995 which was not in force at the relevant time---Prosecution was not certain about the recovery of narcotics from the accused ---F.IR. had been lodged after spot investigation---Prosecution evidence was contradictory---Trial Court had not taken into consideration cross examination of two prosecution witnesses and violated the mandatory provisions of S.367, Cr. P. C. ---Recovery memo. had been interpolated---No reason had been furnished by the prosecution for giving up the private recovery witness and not examining him at the trial---Investigation conducted in the case was dishonest---Benefit of doubt was given to the accused in circumstances and they were acquitted accordingly.

Shoukat Hussain Zubaidi for Appellants.

Hakim Ali Siddiqui, Standing Counsel for D.A.-G.

Muhammad Iqbal Kalhoro, Special Prosecutor for ANF.

YLR 2001 KARACHI HIGH COURT SINDH 3127 #

2001 Y L R 3127

[Karachi]

Before Muhammad Roshan Essani, J

DHANI BAKHSH---Applicant

versus

JAMAL and 4 others---Respondents

Criminal Miscellaneous Application No. 366 and Miscellaneous Application No. 759 of 2001, decided on 23rd July, 2001.

Criminal Procedure Code (V of 1898)---

----S.561-A---Inherent powers of High Court---Maintainability of application--Complainant alleged that accounts not being settled by the landlord and he was not permitting Haries to quit his land---Dispute was between tenant and landlord for which exclusive jurisdiction lay with tenancy tribunal created under the Tenancy Act--Application was not maintainable in circumstances.

Riaz Ahmed Shaikh for Applicant.

Rashid Ahmed Qureshi, Asstt. A.-G, for the State.

YLR 2001 KARACHI HIGH COURT SINDH 3137 #

2001 Y L R 3137

[Karachi]

Before Faiz Muhammad Qureshi and Munirur Rehman, JJ

THE STATE through Regional Director ANF, Sindh---Applicant

versus

NAEEM alias SAWAN---Respondent

Criminal Transfer Application No. 21 and Miscellaneous Applications Nos. 687 5o 689 of 2001, decided on 9th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 526(a) (ii)---Control of Narcotic Substances Act (XXV of 1997), S.9--Application for transfer of case---Allegation that Judge was always in hurry and had reflected an element of favour to the accused was unfounded---Transfer application appeared to be frivolous and bogus--Application for transfer was dismissed in limine.

Muhammad Iqbal Kalhoro Special Public Prosecutor, A.N.F. with Ahmed Saba D.D. (Law) A.N.F.

Date of hearing: 9th July, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 3143 #

2001 Y L R 3143

[Karachi]

Before Muhammad Ashraf Leghari, J

ALLAHDINO alias DINO alias KHANU---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 251 of 2001, decided on 30th July, 2001.

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

----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Delay in lodging of F. I. R.---No explanation for delay furnished--Presence of eye-witness at the scene of offence at relevant time in view of delay in lodging F. I. R. was yet to be proved---No reasonable ground was available to believe that accused was guilty of offence falling, within prohibitory clause of S.497(1), Cr.P.C.--Bail was granted.

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

----S.497(2)---Penal Code (MV of 1860), S.302---Bail, grant of---Case of further inquiry---Judicial confession of the accused that they were attacked by the complainant party and he ran away from the scene whereas co-accused fired upon the deceased appeared to be exculpatory in nature and its legal sanctity was yet to be examined at the time of trial---No active role had been assigned to the accused in commission of offence---Case of accused required further inquiry---Bail was granted.

Ch. Aftab Ahmed Warraich for Applicant.

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

Date of hearing: 30th July, 2001

YLR 2001 KARACHI HIGH COURT SINDH 3145 #

2001 Y L R 3145

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslant Jafri, JJ

EMIRATES INTERNATIONAL AIRLINES OF U.A.E. and 29 others---Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Defence, Islamabad and 6 others---Respondents

Civil Petition No. 122 of 1998, decided on 8th May, 2001.

Karachi Water and Sewerage Board Act (X of 1996)---

----Ss. 3 & 9---Cantonments Act (11 of 1924), S.217---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Demand of water and conservancy charges---Karachi Water and Sewerage Board through notice demanded water and conservancy charges from the petitioners calculated on the basis of prescribed charges for retail water supply--Premises of the petitioners were located within the territorial limits of "Karachi Cantonment Board" and not within the limits of "Karachi Metropolitan Corporation "--Jurisdiction of "Karachi Water and Sewerage Board" under provisions of S.3(3) of "Karachi Water and Sewerage Board" Act, 1996 extended to the limits of the Karachi Metropolitan Corporation, unless it was extended beyond such limit by a Notification issued by Government of Sindh---In absence of Notification extending the jurisdiction of Karachi Water and Sewerage Board to areas falling within the limits of Karachi Cantonment Board in which the premises of the petitioners were located, it could be concluded that the jurisdiction of Karachi Water and Sewerage Board, had not been lawfully extended to the area where the premises of the petitioners were located--Cantonment Board, under 5.217 of the Cantonments Act, 1924 was to arrange supply of pure water for domestic use in the area under its control---Demand notice addressed to the petitioners was declared without lawful authority by the High Court.

Kazi Abdul Hameed Siddiqui for Petitioners.

Suleman Habibullah, Addl, A.-G. for Respondents Nos. 3 and 4.

Abdul Karim Khan for Respondents Nos. 5 and 6.

Muhammad Yasin Kiyani for Respondent No. 7.

YLR 2001 KARACHI HIGH COURT SINDH 3147 #

2001 Y L R 3147

[Karachi]

Before Sarmad J. Osmany, J

NADEEM HAMID---Appellant

versus

MUHAMMAD ISMAIL ---Respondent

First Rent Appeal No. 410 and Civil Miscellaneous Application No. 811 of 2000, decided on 26th January, 2001.

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

----S.15(2)(vii)---Bona fide personal need of landlord---Landlord had to establish before the Rent Controller that his need was genuine and not tainted with mala fides--Landlord, however, would not have to give any details of the business which he proposed to start in the premises sought to be vacated to start his own business in the premises.

Akhlaq-un-Nabi v. Nawab Ahmad Shamsi and others 1986 CLC 1100; Walumal v. Muhammad Moosa 1986 CLC 1831; Qamaruddin v. Hakim Mahmood Khan 1988 SCMR 819; Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman 1980 SCMR 772; Bashir Ahmad v. Muhammad Shafi 1989 SCMR 538; Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152; S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119 and Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 ref.

Gul Malik for Appellant.

Muhammad Yaseen Azad for Respondent.

Date of hearing: 26th January, 2001

YLR 2001 KARACHI HIGH COURT SINDH 3150 #

2001 Y L R 3150

[Karachi]

Before Shabbir Ahmed, J

Messrs SERULEAN (PVT.) LTD. KARACHI---Plaintiff

versus

Messrs BHOJA AIRLINES (PVT.) LTD. through Chairman and another---Defendants

Suit No. 717 and Civil Miscellaneous Applications Nos. 3776, 3777 and 4526 of 2000, decided on 22nd March, 2001.

Arbitration Act (X of 1940)---

----S.34---Civil Procedure Code (V of 1908), O. VII, R.2, O.XXXVIII, R.5 & O.XXXIX, Rr.l, 2---Specific Relief Act (I of 1877), S.54---Suit for recovery of amount and permanent injunction---Arbitration agreement---Application for stay of proceedings---Plea that steps in the proceedings had been taken ---Acceptability---Application filed by the defendants under S.34, Arbitration Act, 1940 for stay of legal proceedings, was resisted by the plaintiff on the ground that the defendants by filing counter-affidavit to application filed by the plaintiff under O.XXXIII R.5 & O.XXXXIX, Rr. 1 & 2, C. P. C. had taken steps in the proceedings, hence application filed by them was not tenable in law---Validity---Steps taken by the defendants opposing the injunction applications filed by the plaintiff against them, would not be deemed to be any step in the proceedings disentitling the defendants from invoking the provisions of S.34, Arbitration Act, 1940---Party having entered into an arbitration agreement with full knowledge could not be allowed to defeat the arbitration clause.

Ladak & Sons Ltd. v. Avebe B.A. 1999 YLR 1505; Island Textile Mills Ltd. v. V/O Technoexpert and another 1973 CLC 307; The Hub Power Company Ltd. v. Pakistan WAPDA PLD 2000 SC 841; Echardt & Co. v. Muhammad Hanif PLD 1993 SC 42 and Messrs Manzoor Textile Mills Ltd. v. Nichemen Corporation 2000 MLD 641 ref.

Mehfoozyar Khan for Plaintiff.

Ms. Sana Minhas for Defendant No. 1

YLR 2001 KARACHI HIGH COURT SINDH 3153 #

2001 Y L R 3153

[Karachi]

Before Shabbir Ahmed, J

Khawaja TAUQEER AHMED ---Plaintiff

versus

Khawaja BASHIR AHMED and 4 others---Defendants

Civil Suit No. 1503 of 2000, decided on 21st December, 2000.

(a) Islamic Law---

----Will---Revocation of---Testator/father who was alive, had every right to deal with the property in respect of which the will was made by him and if he would sell the bequeathed property, it would amount to implied revocation and he need not file a case for cancellation of the documents--Contention that revocation should be express and through intervention of the Court, was not tenable and was against the concept of Islamic Law, which permitted revocation either expressly or by implication.

Mst. Sardar Bibi and 2 others v. Abdul Latif and 7 others PLD 1952 Lah. 294 ref.

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

----Ss. 6 & 7---Constitution of Pakistan (1973), Art. 23---Property not transferable--Term "spes successionis "---Persori who had a chance to succeed an estate of his father, could not transfer his chance of succession which was known in legal term "spes successionis "---No one could have any estate or interest in law or in equity, contingent or otherwise in the property of a living person to which he hoped to succeed as heir in law or as next of kin of such living person---During the life of such person no one could have more than a "spes successionis " an expectation or hope of succeeding to such property--Such an interest was not assignable in law---Sale, fn the present case, was not by the heir, but was by father/testator himself---Sale by father could not be clocked by cl. (a) of S.6 of Transfer of Property Act, 1882 and would also amount to negation of provisions of S. 7 of Transfer of Property Act, 1882 and against Fundamental Right of citizens enshrined in Art. 23 of Constitution of Pakistan (1973).

Abdul Ghafoor Mangi for Plaintiff.

Abdul Latif A. Shakoor for Defendants.

YLR 2001 KARACHI HIGH COURT SINDH 3159 #

2001 Y L R 3159

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

TANVEER AHMED TAHIR---Petitioner

versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another---Respondents

Constitutional Petition No. 1626 and Civil Miscellaneous Application No. 4493 of 2000, decided on 16th June, 2001.

Competitive Examination Rules, 1997---

----Rr. 6 (iii) (a) & 6(iii) (h)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Issuance of domicile---Forefathers of the petitioner belonged to the Province of Punjab and his father though was born in Punjab, but had shifted to the Province of Sindh---Petitioner was born in Karachi and was educated there and petitioner and his father were issued Domicile and Permanent Residence Certificates of Sindh---Petitioner on the basis of said Domicile and Permanent Residence Certificate appeared in the Central Superior Service Examination and passed the written examination, but Authority accepted the petitioner as a candidate domiciled in Punjab in terms of Rr. 6(4l) (a) & 6(W) (h) of the Competitive Examination Rules, 1997--Petitioner's request to treat him as a candidate from Sindh having been turned down by the Authority, he filed Constitutional petition for redressal of his grievance ---Vires of Competitive Examination Rules, 1997 the touchstone of the Constitution of Pakistan and the question of strict literal application, had been subject-matter of serious forensic controversy and matter in respect thereof was pending in Supreme Court-- Division Bench of High Court in its judgment found the said Rules to be ultra vires of Arts. 15, 25 & 27 of Constitution of Pakistan and Supreme Court had granted leave to appeal against said judgment and suspended its operation---High Court considered it to be bound by the judgment of the Division Bench and there being no judgment to the contrary by the Supreme Court, and no one appearing on behalf of Authority before the Court, allowed Constitutional petition filed by the petitioner with direction to the Authority to treat the petitioner as a candidate from Urban Sindh---Effect of said judgment, however, would remain suspended for two weeks.

Tafakhar Ali Assadi v. Federal Public Service Commission C.P.L.A. No.1276 of 1999; Shazia Toor v. Federal Public Service Commission C.P. No. D-1894 of 1999 and Abdul Kadir Sheikh v. Government of Pakistan C.P. No. D-1648 of 2000 ref.

Rao M. Shakir Naqeshbandi for Petitioner.

Nemo for Respondents.

YLR 2001 KARACHI HIGH COURT SINDH 3162 #

2001 Y L R 3162

[Karachi]

Before Ata-ur-Rehman, J

Messrs NOVATAX LIMITED---Plaintiff

versus

MALIR DEVELOPMENT AUTHORITY and another---Defendants

Suit No. 1056 of 1997 and Civil Miscellaneous Application No. 8830 of 2000, decided on 20th November, 2000.

Specific Relief Act (1 of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction ---Original owner of suit land sought permission for establishing a Housing Scheme on the said land, but despite the permission original owner, instead of establishing Housing Scheme within stipulated period, sold the land to an industrial company---Said company sold land to the plaintiff-- Land was shown in the documents as undeveloped agricultural land and Provincial Board of Revenue by its letter informed all the Commissioners/Deputy Commissioners that land could be used for any purpose---Plaintiff, who intended to establish industry on the said land got approval of Authorities which issued "No Objection Certificate" in that respect and the plaintiff paid all kinds of charges---While construction work was in progress, original owner applied for extension of time to establish the Housing Scheme and Authorities accepting said application, withdrew the "No Objection Certificate" issued to the plaintiff holding that land was to be developed into a Housing Scheme and it could not be used for industrial purposes---Authorities withheld all proceedings for regularization and charging the composition fee from the plaintiff---Validity---Plea of the Authorities was not that the land was notified at any time for Residential Scheme, or had ever been used for Residential Scheme---Letter whereby the "No Objection Certificate" issued to the plaintiff was withdrawn and order whereunder the land was declared to be reserved for developing into a Housing Scheme, was declared illegal and without jurisdiction and permission allowed to the plaintiff` for establishment of industry was ordered to be operative and Authorities were directed to act in accordance with law.

Muhammad Sharif for Plaintiff.

S. Amanullah Agha for Defendant No. 1.

Raja Sikandar Yasir for Defendant No.2.

Date of hearing: 20th November, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 3169 #

2001 Y L R 3169

[Karachi]

Before Muhammad Moosa K. Leghari, J

Syed QASIM ALI ---Appellant

versus

GHIYASUDDIN---Respondent

First Regular Appeal No. 1028 and Civil Miscellaneous Application No. 1674 of 2000, decided on 14th November, 2000.

(a) Administration of justice---

----Cases no doubt were to be decided on merits and nobody was to be deprived of his, invaluable right of hearing, but that would not mean that a party should be allowed to protract the proceedings mala fide on one pretext or the other---Overall conduct of a party has to be kept in view in such circumstances, and the time tested principle that "one who seeks equity, must do equity " was to be pressed into service as the delay would defeat the equity--Law favours vigilant and not the indolent.

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

----S.15(2)(ii)---Wilful default in payment of rent---Landlord had alleged that the tenant had committed wilful default in payment of rent as he had failed to pay or tender the rent of the premises---Tenant had failed to produce any document on record to prove that he had tendered rent by way of money order---Ground of wilful default in payment of rent, stood proved in circumstances.

----S.15(2)(vii)---Bona fide personal need of landlord---Proof---Landlord had successfully discharged his burden to prove the factum of personal use of the premises for his married son---Landlord had re-asserted ground of personal bona fide need quite elaborately In his affidavit and the witness produced by him also affirmed that ground in his affidavit and the tenant in his written statement had simply denied said plea of the landlord without substantiating his claim by evidence---Bona fide personal need of landlord, was proved, in circumstances.

Muhammad Zahid for Appellant.

Mirza Saeed Baig for Respondent

Date of hearing 14th November, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 3176 #

2001 Y L R 3176

[Karachi]

Before S.A. Rabbani, J

Raja ZAFARULLAH JANJUA---Appellant

versus

Mrs. JEHAN ARA through Attorney---Respondent

First Rent Appeal No. 610 of 2000, decided on 12th December, 2000.

(a) Administration of justice---

----Every case has to be decided keeping in view its peculiar facts and circumstances, and no hard and fast rule can be laid down in this behalf.

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

----S.15(2)(vii)---Bona fide personal need of landlord ---Ejectment application filed by attorney of landlady living abroad---Landlady herself was permanently living abroad and ejectment application on ground of her personal bona fide need was filed by a person on basis of power of attorney purportedly executed in his favour by the landlady at Karachi---Dates when alleged power of attorney was executed and ejectment application was filed had shown that landlady was at Karachi, but despite that she did not file the ejectment application herself---Ejectment application or the power of attorney did not disclose the relationship of attorney with the landlady and application did not disclose that the landlady had informed the attorney about her requirement of premises---Evidence of the attorney in such circumstances could be treated as a corroborative evidence to support that of the landlady---Only the landlady herself could say that she needed the premises for her personal use, but intention of the landlady was not before the Rent Controller---Attorney could act on behalf of the person giving the power for the purpose it was given, but he could neither become his mouthpiece nor could reflect the intention of the person who had given said power of attorney---Evidence of the attorney and that of other witness, could only support the assertion of the landlady for proof, had it been before the Rent Controller---Evidence produced before the Rent Controller, in circumstances, could not be deemed adequate to prove the issue about personal bona fide requirement of landlady.

Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 ref.

Muhammad Amen Lakhani for Appellant.

Shahenshah Hussain for Respondent.

Date of hearing: 1st December, 2000.

YLR 2001 KARACHI HIGH COURT SINDH 3232 #

2001 Y L R 3232

[Karachi]

Before Ghulam Nabi Soomro and S.A. Rabbani, JJ

AFTABUDDIN ALVI---Applicant

versus

THE STATE --- Respondent

Anticipatory Criminal Bail Application No.956 of 2000, decided on 5th September, 2000.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.399/402---Protective pre-arrest bail, grant of---Accused who was earlier granted bail continued attending the Court for some time but thereafter remained absent and the Trial Court issued non-bailable warrants against him and notice to the surety---Accused who wanted to surrender before the Trial Court, had prayed for protective pre-arrest bail so as to enable him to approach the Trial Court--Court, in circumstances, without touching the merits of the case, granted protective pre-arrest bail to the accused for one week.

Ashfaque Hussain for Applicant

Syed Jalil Hashmi, A.A.-G.

YLR 2001 KARACHI HIGH COURT SINDH 3278 #

2001 Y L R 3278

[Karachi

Before Faiz Muhammad Qureshi and Munirur Rehman, JJ

LIAQUAT alias BILOO and another---Appellants

versus

THE STATE---Respondent

Criminal Jail Appeals Nos. 112 to 115 of 1999, decided on 13th July, 2001.

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

----Ss. 302 & 365-A---Sindh Children Act (XII of 1955), Ss.5, 68, 71, 72(2) & 81---Joint trial of juvenile offender and major offender ---Effect---Juveniles aged 17 & 14 years their trial ought to have been held in accordance with the provisions of Sindh, Children Act, 1955 and there should have been a separate trial---Conviction and sentences were set aside---Case was remanded to Trial Court with the directions to try the juvenile separately in accordance with Sindh Children Act, 1955---Appeal was allowed.

Penal Code (XLV of 1860)---

----Ss. 302 & 365-A---Criminal Procedure Code (V of 1898), Ss. 364 & 537---Framing of charge---Charge not framed in accordance with law---Statements of accused under S.342, Cr.P.C. had not been recorded in accordance with the mandatory provisions of S.364, Cr.P.C. which was illegal and not curable under S. 537, Cr.P.C.---Conviction and sentence were set aside---Case was remanded to Trial Court with the direction to, retry the case from the stage of charge:

Qurban Ali Chohan for Appellants.

Allah Bachayo Soomro for Appellants.

Rasheed Ahmed Qureshi, Asstt. A.-G. for the State.

Date of hearing: 10th July, 2001

YLR 2001 KARACHI HIGH COURT SINDH 3284 #

2001 Y L R 3284

[Karachi]

Before Faiz Muhammad Qureshi and Munirur Rehman, JJ

AMIR ALAM---Applicant

versus

THE STATE---Opponent

Criminal Bail Application No. 272 of 2001, decided on 12th July, 2001.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of--Case of further inquiry---Accused merely a bus driver and recovery effected from eight passengers out of total thirty---No incriminating evidence was available against the accused---Question with regard to participation in the alleged offence on the part of accused could be thrashed out at the time of trial---Bail was granted.

Noor-ul-Haq Qureshi for Applicant.

Muhammad Azeem Panhwar for A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 3286 #

2001 Y L R 3286

[Karachi]

Before Muhammad Roshan Essani, J

Mir MUSHTAQUE---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 373 of 2001, decided on 30th July, 2001.

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

----Ss. 561-A & 156---Surrender of Illicit Arms Act (W of 1991), S.7-B---Inherent powers of High Court---Quashing of F.LR.---Case was under investigation and was not pending before the Court---High Court could not interfere in investigations and quash FI.R./investigation---Application for quashing was dismissed.

PLD 1971 SC 677 rel.

Mehraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 distinguished.

Zahoor A. Balouch for Applicant.

Masood Noorani, Addl. A.-G: for the State.

YLR 2001 KARACHI HIGH COURT SINDH 3290 #

2001 Y L R 3290

[Karachi]

Before Wahid Bux Brohi, J

ABDUL BARI SHAIKH ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 218 of 2001, decided on 6th June, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (X,V of 1860), Ss.324/504/34/114---Bail, grant of --Delayed FIR. and delay in the identification of accused---F.I.R. lodged after delay of three days---Accused was identified in a statement of victim recorded under S.164, Cr.P.C. after one month and four days of occurrence although he remained in hospital for four days---Such delay was not explained---Bail was granted.

Muhammad Sadiq and another v. The State 1996 SCMR 1654 ref.

Shoukat Ali, Pathan for Applicant.

Anwar Ansari for the State.

YLR 2001 KARACHI HIGH COURT SINDH 3291 #

2001 Y L R 3291

[Karachi]

Before Zahid Kurban Alavi, J

ABDUL QADIR---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos. 343 (Lah.) and 952 (Kar.) of 2000, decided on 16th December, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (1ff,V of 1860), S.302---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Bail, grant of---Rule of consistency---Allegation against accused was that he trespassed the house of complainant with' other co-accused, killing one ---Coaccused with similar role was granted bail by the High Court---Bail was granted by following the rule of consistancy.

Farid Ahmed Dayo for Applicant.

Habibur Rashid for A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 3299 #

2001 Y L R 3299

[Karachi]

Befoke Muhammad Ashraf Leghari, J

EIDOO and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 155 of 2001, decided on 30th July, 2001.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.324---Offence of 7ina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 /16---Bail, grant of---Case of further inquiry- --Case of co-accused was distinguishable from the main accused--Material contradictions in contents of FLR. and statement of abductee under S.164, Cr. P. C. were found---Contents of F. L R. indicated that abductee was a consenting party ---Factum of statement of abductee needed consideration at the time of trial--Case did not fall under. prohibitory clause of S. 497, Cr. P. C. and needed further inquiry--Bail was granted.

Nisar Ahmed Durani for Applicants.

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

YLR 2001 KARACHI HIGH COURT SINDH 3300 #

2001 Y L R 3300

[Karachi]

Before Faiz Muhammad Qureshi and Munirur Rehman, JJ

THE STATE through Advocate General, Sindh, Karachi---Appellant

versus.

ALAM HINGORJO---Respondent

Anti-Terrorist Acquittal Appeal No. 54 and Miscellaneous Application No. 574 of 2001, decided on 12th July, 2001.

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

----S. 25(4)---Limitation Act (IX of 1908), S.5---Appeal against acquittal ---Limitation--Unexplained delay - of 28 days---Period prescribed in special or local law would prevail over that of Limitation Act, 1908--Prosecution was also to be treated at par with ordinary citizen---Delay of each day was to be explained for condonation of delay--Appeal was dismissed in limine.

The State through Advocate-General, Sindh/Public Prosecutor v. Anis Bawani and 2 others 2000 PCr.LJ 1418 and 1998 PCr.LJ 1418 rel.

1999 SCMR 610 and PLD 1995 SC 19 distinguished.

Rasheed Ahmed Qureshi, Asstt. A.-G. for the State.

YLR 2001 KARACHI HIGH COURT SINDH 3304 #

2001 Y L R 3304

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ALI AKBER JAMALI and another---Petitioners

versus

DISTRICT RETURNING OFFICER AND DISTRICT & SESSIONS JUDGE, NAWABSHAH and 3 others---Respondents

Constitutional Petition No. D-541 of 2001, decided on 1st August, 2001.

Sindh Local Government Elections Ordinance (X of 2000)---

---S.14(e)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rejection of nomination papers---Forms filed by the candidate were found valid and were accepted by Returning Officer, but on filing appeal by rival candidate nomination papers of the candidate were rejected on the ground that he failed to produce his Matriculation Certificate---Appellate Authority found that as requirement of S. 14(e) of Sindh Local Government Elections Ordinance, 2000 had not been fulfilled by the candidate, he was not qualified to contest the election--Candidate had alleged that Appellate Authority had not afforded proper opportunity to him to produce the Matriculation Certificate issued by the Competent Authority--Record produced before the High Court had shown that Matriculation Certificate produced by the candidate was duly stamped and signed by the Controller of Examination which had proved that the candidate had cleared his Matriculation Examination--Requirement of said S. 14(e) having been fulfilled there was no reason to disqualify the candidate from contesting the election.

Syed Abu Zar Hussain Bukhari v. Returning Officer/Assistant Commissioner Pasroor and 2 others 2001 CLC 911 ref.

Kamaluddin and Zahoor A. Baloch for Petitioners.

Masood A. Noorani, Addl. A.-G. and Jhamat Jethanand for the Private Respondents.

Date of hearing: 1st August, 2001.

YLR 2001 KARACHI HIGH COURT SINDH 3313 #

2001 Y L R 3313

[Karachi]

Before Faiz Muhammad Qureshi, J

ALI MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 28 of 19,93, hear on 13th July, 2001.

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

----S. 320---Appreciation of evidence--Charge against the accused was that he killed the deceased while driving the vehicle rashly and negligently---Witnesses had nowhere shown that absolute negligence was on the part of the accused---Prosecution could not prove case of rash and negligent driving--Word "rashness" with respect to driving a vehicle does not mean only high speed but element of negligence should also exist in such driving ---Factum of approximate speed in a particular area was to be established by prosecution---Trial Court had not taken into consideration the defence evidence and had totally ignored the same---Statement of the accused under S. 342, Cr. P. C. had not been considered by the Trial Court wherein it was stated specifically that he was driving the vehicle and complainant signalled him to stop and asked him that one injured was to be shifted to the hospital and he was taken to hospital by him and thereafter the complainant party lodged FIR. against him---Conduct of the complainant at the place of Wardat also appeared to be dubious in view of the, evidence adduced by the prosecution---Prosecution having failed to prove its case beyond reasonable doubt against the accused his conviction and sentence were set aside.

1996 PCr.LJ 405; PLD 1975 Kar. 723 and 1999 MLD 1557 ref.

(b) Words and phrases---

---- "Rashness "--- Connotation--- Word "rashness" did not necessarily point to high speed, but had an element of negligence also.

Hidayatullah Abbassi for Appellant.

Muhammad Azeem Panhwar for A.-G. for the State.

Date of hearing: 13th July, 2001

YLR 2001 KARACHI HIGH COURT SINDH 3317 #

2001 Y L R 3317

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ABDUL JABBAR---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Chief Executive Secretariat, Islamabad and 2 others---Respondents

Constitutional Petition No. D-525 and Miscellaneous Application No. 1972 of 2001, decided on 31st July, 2001.

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

----Ss. 409, 420, 467, 468, 471 & 34--Prevention of Corruption Act (II of 1947), S.5(2)---National Accountability Bureau Ordinance (XVIII of 1999), S.16-A--Constitution of Pakistan (1973), Art. 199--Constitutional petition---Transfer of case---Case pending in Court of Special Judge, Anti-Corruption was transferred to Accountability Court on application of National Accountability Bureau without hearing the accused---Validity---Provisions of S.16 A, National Accountability Bureau Ordinance, 1999 had nowhere provided that the Court without hearing the party to the proceedings could transfer the case---Order transferring case passed without notice to the accused and without providing him opportunity of hearing, was set aside.

Nazim Hussain v. The State and others 1999 PCr.LJ 42; Muhammad Ishaque Lashari v. National Accountability Bureau and others Constitutional Petition No. 1534 of 2001; Muhammad v. The State PLD 1961 Kar. 709; Ghulam Mustafa jatoi v. Returning Officer and others 1994 SCMR 1299 and Shaukat Ali v. The State 1980 PCr.LJ 718 ref.

(b) Natural justice, principles of---

---- Violation---No man should be condemned unheard---Principle of "audi alteram partem" is enshrined in the judicial system---Order affecting the rights of a party could not be passed without providing opportunity of hearing to that party.

Hidayatullah Abbasi for Petitioner.

Masood Noorani, Addl. A.-G. for the State.

Hakim Ali Siddiqi Standing Counsel.

Lahore High Court Lahore

YLR 2001 LAHORE HIGH COURT LAHORE 1 #

2001 Y L R 1

[Lahore]

Before Ch. Ijaz Ahmed and Mian Saqib Nisar, JJ

PAKISTAN LAWYERS FORUM‑‑‑Appellant

versus

General PARVEZ MUSHARRAF and 3 others‑‑‑Respondents

Intra‑Court Appeal No.335 in Writ Petition No.6019 of 2001, decided on 3rd May, 2001.

(a) Constitutional History of Pakistan‑‑‑

‑‑‑‑ Applicability of doctrine of necessity‑‑Dissolution and restoration of Assemblies‑‑Assumption of powers by military rulers‑‑Role of judiciary in stabilizing the political situations in the country discussed.

Syed Zafar Ali Shah's case PLD 2000 SC 869; Federation of Pakistan and others v. Moulvi Tamiz‑ud‑Din PLD 1955 FC 240; Yousaf Patel's case PLD 1955 FC 38; PLD 1959 FC 435; State v. Dosso and 3 others PLD 1958 SC 533; Asma Jillani's case PLD 1972 SC 139; Haji Saif Ullah's case PLD 1989 SC 166; Kh. Ahmed Tariq Rahim's case PLD 1992 SE 646; Mian Nawaz Sharif's case PLD 1993 SC 473; Mahmood Khan Achakzai's case PLD 1997 SC 426 and Mohtarma Benazir Bhutto's case PLD 1998 SC 338 ref.

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

‑‑‑‑Arts. 189, 190 & 199‑‑‑Petitioner had filed Constitutional petition before High Court wherein he assailed the validity of military regime which had already been declared to be legal by the Supreme Court in Syed Zafar Ali Shah's case, reported as PLD 2000 SC 869 and was reaffirmed by Supreme Court in review petition filed against the said judgment‑‑‑Effect‑‑‑Judgment of Supreme Court was binding on each and every organ of the State by virtue of Arts. 189 & 190 of the Constitution‑‑‑Petitioner, in proceedings before High Court, sought review of the judgment of the Supreme Court which was beyond the jurisdiction of High Court‑‑‑High Court, therefore, was justified in dismissing the Constitutional petition in circumstances.

Syed Zafar Ali Shah's case PLD 2000 SC 869 ref.

A. K. Dogar for Appellant.

YLR 2001 LAHORE HIGH COURT LAHORE 17 #

2001 Y L R 17

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MUSHTAQ ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 271‑J of 2000, heard on 13th April, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑Nobody was named in the F. I. R. ‑‑Identification parade was not held after the arrest of the accused‑‑‑No recovery was effected from the accused‑‑‑Complainant had improved his statement before the Trial Court‑‑‑Ocular account of occurrence was not corroborated by any evidence, rather it was fully contradicted by medical evidence‑‑Accused was acquitted in circumstances.

Suhail Anjum for Appellant (at State expenses).

Kh. Shaukat Ali for the State.

Date of hearing: 13th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 19 #

2001 Y L R 19

[Lahore]

Before Asif Saeed Khan Khosa, J

KHIZAR HAYAT‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 154 of 2001, heard on 7th May, 2001.

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

‑‑‑Ss. 540 & 439‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(b)‑‑‑Qanun‑e‑Shahadat .(10 of 1984), Art. 133‑‑‑Recalling of prosecution witnesses for cross‑examination‑‑‑Prosecution recorded entire evidence of as many as five witnesses in support of its case and its evidence was closed and statement of the accused: was to be recorded under S.342, Cr.P.C.‑‑‑Out of five prosecution witnesses, three were cross‑examined by the counsel of the accused and two of them were cross-examined by the accused himself‑‑‑Accused filed application seeking recalling of two witnesses who were cross‑examined by him so as to provide an opportunity to his counsel to cross‑examine the said witnesses to the interest of justice‑‑‑Said application having been dismissed, by the Trial Court, the accused had filed revision against order of Trial Court‑‑‑Validity‑‑‑Said two witnesses were ‑not cross‑examined by counsel for the accused despite counsel was present in the Court at relevant time‑‑‑Such unusual conduct of counsel of the accused was due to financial difficulties of the accused at relevant time‑‑‑Lack of cordiality of relationship between the accused and his counsel at the time of recording of the statements of prosecution witnesses, being not without any background, it was proper for the Trial Court to allow the application. of the accused and to allow the counsel of the accused to cross-examine said witnesses so as to promote the interest of justice‑‑‑High Court set aside order of the Trial Court with direction to call said witnesses and to provide at least one opportunity to counsel of the accused to cross‑examine the said witnesses.

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

‑‑‑‑S. 439‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Object of ‑‑‑Revisional jurisdiction of High Court is meant for examining the record of the Courts below for their correctness, legality and even propriety.

Ahmad Usman Khan for Petitioner.

Sheikh Muhammad Raheem for the State.

Date of hearing: 7th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 24 #

2001 Y L R 24

[Lahore]

Before Maulvi Anwarul Haq, J

RAB NAWAZ and another‑‑‑Petitioners

versus

MUHAMMAD ABDULLAH‑‑‑Respondent

Civil Revision No.2509 of 1989, heard on 3rd May, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 32 & 33‑‑‑Award‑‑‑Validity‑‑‑Award or arbitration agreement cannot be challenged otherwise than in accordance with S.32 read with S.33 of Arbitration Act, 1940.

Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197 and Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.32 & 33‑‑‑Award‑‑‑Fraud and forgery, plea of‑‑‑Plaintiff denied execution of any arbitration agreement and participation in any arbitration proceedings‑‑‑Plaintiff, on the basis of such fact filed a suit for setting aside of the decree passed by Civil Court whereby the award subject‑matter of the suit was made rule of the Court‑‑‑Trial Court while relying on the evidence on record decreed the suit and set aside the award‑‑‑Judgment and decree passed by the Trial Court was maintained by the Appellate Court‑‑Contention of the defendant in revision before High Court was that the award could not be set aside by filing a suit‑‑‑Validity‑‑‑At the time when the suit was filed, provisions of S.12(2), C.P.C. had not come into force, the only remedy open to the plaintiff was the suit which he did file and was decided by the Courts below‑‑High Court rejected the contention of the defendant and refused to interfere with the judgments and decrees passed by the Courts below.

Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65; Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. PLD 1970 SC 43 and Muhammad Yasin v. Sh. Hanif Ahmad and 4 others 1993 SCMR 437 ref.

Dost Muhammad Bhatti for Petitioners.

Mian Muzaffar Hussain for Respondent.

Date of hearing: 3rd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 28 #

2001 Y L R 28

[Lahore]

Before Maulvi Anwarul Haq, J

SHAH HAMID SULEMAN and 3 others‑‑‑Appellants

versus

FAIZ‑UL‑HASSAN SHAH and 12 others‑‑‑Respondents

Regular Second Appeal No.52 of 1988, heard on 2nd May, 2001.

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

‑‑‑‑O. XXII, R.10‑‑‑Assigning of interest‑‑Alienation of suit property‑‑‑Effect‑‑‑Where a party to a suit alienates the suit property, under the provisions of O.XXII, R.10, C.P.C., the hearing of the suit cannot be put to arrest‑‑‑Such suit can be continued by the parties already on record‑‑‑If the assignee wishes to continue the suit, he may do so by leave of the Court.

Mst. Surraya Begum and others v. Suban Begum and others 1992 SCMR 652 ref.

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

‑‑‑O. XXII, R. 10‑‑‑Assigning of suit property‑‑‑Failure to implead assignees as party to the proceedings‑‑‑During the pendency of civil suit, the plaintiff had alienated the suit property, hearing of the suit was put to arrest and Trial Court dismissed the suit‑‑ Appeal was filed by the plaintiff as well as the assignees but First Appellate Court, instead of impleading the assignees as party to the proceedings, maintained the judgment and decree passed by the Trial Court‑‑‑Validity‑‑‑Trial Court could have continued with the suit as it was or if the Court had felt that the presence of the assignees was necessary for the purposes mentioned in O.I, R.10, C.P.C., the Court ought to have directed the impleadment of the assignees as party to the suit‑‑‑First Appellate Court, in view of the judgment of Supreme Court in Mst. Surraya Begum's case, reported as 1992 SCMR 652, could have exercised the same powers, before whom the assignees were present as appellants‑‑‑Both the Courts below had acted in a manner not warranted by law rather had acted without lawful authority in dismissing the suit wholly or partly on the sole ground that the plaintiff had assigned his interest in the suit property‑‑Presence of the assignees was necessary for effective adjudication of the entire controversy between the parties‑2‑High Court granted leave to the assignees to continue the suit‑‑‑Judgments and decrees passed by both the Courts below were set aside and the case was remanded to the Trial Court.

Kasim Tar Muhammad v. Mst. Sherbano and another 1987 SCMR 380; Monghibai v. Cooverji Umerscy AIR 1939 PC 170; Mst. Maqbool Begum v. Gullan and others PLD 1982 SC 46; Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCMR 781 and C. Wright Nevillo v. E.H. Freser AIR 1944 Nag. 137 ref.

‑‑‑‑Ss.107, 108 & O.XXII, R.10 ‑‑‑ Assigning of suit property‑‑‑Proceedings in suit‑‑ Appellate Court, jurisdiction of‑‑‑Scope‑‑Where plaintiff assigns his interest in the suit property, Appellate Court can also exercise the same powers which can be exercised by Trial Court.

Ch. Khurshid Ahmad for Appellants.

Dr. Syed Farooq Hassan for Respondents.

Date of hearing: 2nd May, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 32 #

2001 Y L R 32

[Lahore]

Before Ch. Ijaz Ahmed, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

PUNJAB SMALL INDUSTRIES CORPORATION (PSIC) and

another‑‑‑Respondents

Writ Petition No.5286 of 2001, decided on 11th May, 2001.

(a) Interpretation of statutes‑

‑‑‑‑ Adopting of statute‑‑‑Effect.

Following are the rules of interpretation:

(a) When a statute adopts a part or all of another statute by specific or descriptive reference the adoption takes the statute as it exists at that time and the adopted provisions with necessary adaptations if any become part of the adopting statute as if it was written down in it.

(b) Any subsequent addition or modification of the adopted statute, ‑can be included in the adopting statute only if so expressly or impliedly provided in the adopting statute.

When particular sections of an earlier statute are expressly incorporated into a later statute, the other sections of the earlier statute may be referred to in order to resolve any ambiguity or obscurity that may arise in its interpretation of the section.

(d) When the adopting statute refers to law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of adopting statute but all subsequent laws on the particular subject referred to, insofar as they are consistent with the adopting law.

(e) When Legislature in adopting the procedural provisions of another Act, made substitution in certain instances, it will be inferred that in matters not specified no substitutions were intended.

Pakistan International Airlines Corporation v. Chairman, Punjab Appellate Tribunal PLD 1979 Lah. 415 ref.

(b) Punjab Small Industries Corporation Act (XV of 1973)‑‑‑

‑‑‑‑Ss. 36 & 40‑‑‑Service Rules‑‑‑Adopting of‑‑‑Provincial. Government in exercise of powers under the provisions of S.40 of Punjab Small Industries Corporation Act, 1973, adopted the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which were repealed by the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999‑‑‑Question was as to which of the two rules were applicable to the employees of the Corporation‑‑‑Where the Authorities did not adopt the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, the same were not applicable to the employees of the Corporation.

Pakistan International Airlines Corporation v. Chairman, Punjab Appellate Tribunal PLD 1979 Lah. 415 ref.

‑‑‑‑S. 40‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.6‑‑?Constitution of Pakistan (1973), Art.199‑‑?Constitutional petition‑‑‑Suspension period of an employee, extension of‑‑‑Grievance of the petitioner was that his suspension order exceeded three months and after that period the suspension order could not remain operative‑‑‑Validity‑‑‑Extension of suspension order was not required under the provisions of R.6 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, and the basic order of suspension would remain in field till completion of the inquiry proceedings.?

Syed Muhammad Ayyub v. The Government of West Pakistan PLD 1957 Lah. 487; Allauddin v. Chief Commissioner PLD 1959 Kar. 282; Mian Munawar‑ud‑Din v. Federation of Pakistan PLD 1979 Note 80 at p.56; Mian Munawar‑ud‑Din v. Federation of Pakistan PLD 1979 Lah. 644; Government of West Pakistan through Secretary, Irrigation Communication ,and Works Department and another v. Nisar Ahmad Khan PLD 1965 SC 106; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Munir Latif Raja v. Multan Development Authority 1995 PLC (C.S.) 89; Messrs Malik and Haq and another v. Muhammad Shamsul Haq Islam Chaudhry PLD 1961 SC 531; Mian Ghulam Nabi v. The Government of the Punjab Health Department 1988 PLC (C.S.) 31 and I.A. Sherwani v. Government of Pakistan SCC FSC 1134 ref.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.??????????? 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Non‑statutory rules‑‑‑Where there were no rules framed by the Authorities, no order would be deemed to have been passed in violation of any Rules and Regulations‑‑‑Constitutional petition was not maintainable in circumstances.?

Ali Mir's case 1984 SCMR 433 and Ch. Abdur Rashid's case PLD 1979 Lah. 803 ref.

Syed Najaf Hussain Shah for Petitioner.

M.M. Baig for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 38 #

2001 Y L R 38

[Lahore]

Before Ch. Ijaz Ahmad, J

RAFIQ AHMAD TAHIR‑‑‑Petitioner

versus

HOUSE BUILDING FINANCE CORPORATION through its Chairman and

another‑‑‑Respondents

Writ Petitions Nos.27455, 7455, 7361 and 7425 of 2001, decided on 7th May, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Agreement cannot be enforced through Constitutional petition.

Mumtaz Masood's case 1994 SCINIR 2287 ref.

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

‑‑‑‑Arts. 199 & 203‑G‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope Repugnancy to Injunctions of Islam‑‑‑High Court under the provisions of Art. 203‑G of the Constitution has no authority to declare the charge of interest against the Injunctions of Islam.

Muhammad Ramazan's case 2000 CLC 158 ref.

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Show‑cause notice‑‑‑Constitutional petition is not maintainable against show‑cause notice.

Shagufta Begum's case PLD 1989 SC 360 ref.

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

‑‑‑‑Art, 199‑‑Constitutional petition‑‑Maintainability‑‑‑Disputed question of law cannot be resolved by High Court in a Constitutional petition.

Muhammad Younas Khan's case 1993 SCMR 618 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy being available ‑‑‑Effect‑‑Where petitioner had alternate remedy available to him under law, Constitutional petition was not maintainable.

Muhammad Ismail's case PLD 1996 SC 246 ref.

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

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑Discrimination‑‑‑Initiation of coercive measures for recovery of loan from account holders by financial institutions‑‑‑High Court pointed out discriminatory procedure adopted by the institutions which was violative of Art.25 of the Constitution.

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

‑‑‑‑Arts. 25 & 199‑‑‑Constitutional petition‑‑Equality of citizens‑‑‑Act of discrimination‑‑Recovery of Bank loan‑‑‑Incentive Scheme‑‑Failure to give benefit of such Scheme to all the loanees‑‑‑Grievance of the petitioner was that the financial institution did not allow the petitioner to pay the loan in easy instalinents ‑‑‑ Validity ‑‑‑ Petitioner was directed to approach the Corporation for redressal of his grievance‑‑‑Benefits of incentive Schemes issued by the Authorities it‑ere given to the defaulters who did not pay single penny to the financial institutions i4iereas the loanees who had got secured loan from the institutions and had repaid huge amount before issuance of incentive Scheme by the Competent Authorities were not entitled to get the benefit of the Scheme which fact had brought the Schemes in the area of discrimination and the same was hit by Art.25 of the Constitution‑‑‑High Court directed the Authorities to look into the matter personally and formulate such policy which could save the interest of financial institutions and to save the loanees by making policy so that the loanees might he able to discharge their liabilities in easy instalments‑‑‑High Court further directed the Authorities to consider the special cases for the benefit of incentive Schemes after cut of date.

Iftikhar Ahmad Malik for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 42 #

2001 Y L R 42

[Lahore]

Before Ch. Ijaz Ahmad, J

FEROZE BEGUM and 8 others‑‑‑Petitioners

versus

MUHAMMAD KHAN and 3 others‑‑‑Respondents

Writ Petition No. 152 of 1984, decided on 22nd May, 2001.

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

‑‑‑‑S.3(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Evacuee property‑‑‑Allotment of land‑‑‑Temporary allottee, status of‑‑‑Assailing mutation without challenging the basic order on the basis of which the mutation was sanctioned‑‑Validity‑‑‑Where the petitioners did not challenge the original allotment letter in favour of the respondents through the instant petition, the same was liable to be dismissed‑‑‑Held, when the basic foundation was in field then superstructure should not fall on the ground‑‑‑Predecessor‑in‑interest of the petitioner was temporary allottee and such allotment was not inheritable‑‑‑High Court declined to interfere with the allotment made in favour of the respondents‑‑‑Petition was dismissed in circumstances.

1988 SCMR 1228; Feroze Bibi v. Settlement Commissioner and others 1986 CLC 2095 and Allah Rakhi v. Sughra Bibi and others 1986 CLC 2354 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Seeking of equity‑‑‑Scope‑‑‑He who seeks equity must come to the Court with clean hands‑‑Petitioner having not approached the Court with clean hands, High Court declined to exercise discretion in favour of the petitioner in circumstances.

Nawabzada Raunaq Ali Khan's case PLD 1973 SC 236 ref.

‑‑‑‑S.3(2)‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Constitutional petition‑‑‑Evacuee property‑‑‑Allotment of land‑‑‑Disputed property was allotted to the respondents on 10‑5‑1973‑‑‑Contention of the petitioners was that the property was allotted temporarily in the name of their predecessor and the respondents were tenants of their predecessor, therefore, the land be allotted to them‑‑‑Validity‑‑‑Respondents were also refugee of Azad Jammu and Kashmir and as the land had already been allotted permanently in their names on 10‑5‑1973, therefore, the land was not available in the year 1975 when the Evacuee Property and Displaced Persons (Repeal) Act, 1975, came into force‑‑‑Petitioners were not entitled to get benefit of S.3 (2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Petition was dismissed in circumstances.

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

‑‑‑Art.199‑‑‑Constitutional petition ‑‑‑Scope‑‑Limitations‑‑‑Findings of Tribunals‑‑Substitution of such findings‑‑‑Validity‑‑‑High Court, in exercise of jurisdiction under Art. 199 of the Constitution, cannot substitute its own finding in place of the findings of the Tribunals below.

Massaduqs case PLD 1973 Lah. 600 rel.

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

‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑Laches‑‑‑Applicability‑‑‑Where order assailed in petition was passed by Authorities on 15‑10‑1983 and the petition was filed on 11‑1‑1984 principle of laches was applicable.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 ref.

Tahir Qureshi for Petitioners.

Ch. Muhammad Abdullah for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 51 #

2001 Y L R 51

[Lahore]

Before Ch. Ijaz Ahmad, J

KABOOL KHAN Petitioner

versus

SHAMOON through Legal Heirs and another‑‑‑Respondents

Civil Revision No. 285 of 2001, heard on 17th May, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 114‑‑‑ Estoppel‑‑‑ Applicability‑‑Where despite the opportunity given by Court, a party did not produce any evidence to rebut a document, such party was estopped to object such document on the principle of estoppel and wavier.

Ghulam Rasul's case PLD 1971 SC 376 and Muhammad Bashir's case 1986 MLD 2759 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 72‑‑‑Document, proof of‑‑‑Failure to produce author of the document in Trial Court‑‑‑Such failure not objected to at the relevant time‑‑‑Effect‑‑‑Where the document was received in evidence without any objection, no exception could be taken to the said document merely for the reason that the author of the document was not examined.

Malik Din and another's case PLD 1969 SC 136; Faizyab Ali Khan's case 1982 SCMR 358 and N.B.P. v. Syed Mir 1987 CLC 1103 ref.

‑‑‑‑O. XIII, R.4‑‑‑Document received without objection‑‑‑Effect‑‑‑Such a document is admissible in evidence by virtue of O.XIII, R. 4, C. P. C.

Mangha's case 1992 MLD 2170 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 86 & 88‑‑‑Document‑‑‑Attested copy of document‑‑‑Where a document is not a public document attested copy of such document is not admissible in proof of certain /act.

Tarkeshawar Parshad Tawari 'v. Denendra Prasad Tewari 1992 IC 184 ref.

(e) Evidence‑‑‑

‑‑‑‑ Finding based upon inadmissible evidence‑‑‑Court would not only be justified in excluding such piece of evidence from consideration but the same would be the proper course for it to do.

Messrs Formost Trading Company's case PLD 1988 Kar. 131 ref.

(f) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 132‑‑‑ Cross‑examination‑‑‑ Specific assertion, failure to cross‑examine ‑‑‑Effect‑‑Where a specific assertion made by witness material to the controversy of the case is not challenged in cross‑examination by putting contrary suggestions then the same is to be given full credit and be accepted as true unless displaced by reliable, cogent and clear evidence.

Mst. Noor Jehan Begum's case 1991 SCMR 2300 and 'Luqman's case 1985 CLC 2327 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Finding recorded by Court of competent jurisdiction‑‑‑Interference by High Court in exercise of revisional jurisdiction‑‑‑Scope‑‑‑Grounds for interference ‑‑‑Dispute was with regard to ownership of suit property‑‑‑Appellate Court decided the matter against the petitioner‑‑Validity‑‑‑Finding 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 finding suffered from jurisdictional defect, illegality or material irregularity‑‑‑Where no such defect had been pointed out by the petitioner, High Court declined to interfere with the judgment passed by the Appellate Court‑‑Revision was dismissed in circumstances.

Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767; Messrs Visvil Spinner's case PLD 1992 SC 96; Ismail's case 1993 MLD 977; Abdul Latif's case 1993 MLD 643 and Venkat Regwon's case PLD 1949 PC 26 ref.

Sh. Naveed Sheharyar for Petitioner.

Shahzad Shaukat for Respondents.

Date of hearing: 17th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 66 #

2001 Y L R 66

[Lahore]

Before Dr. Munir Ahmad Mughal, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE

through Chairman‑‑‑Petitioner

versus

ISHRAT SULTANA ‑‑‑Respondent

Civil Revision No.2003 of 1999, decided on 28th November, 2000.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Question of law‑‑‑Bar of jurisdiction‑‑‑Raising plea of want of jurisdiction first time at revisional stage‑‑Validity‑‑‑Bar of jurisdiction of Civil Court was a legal issue and the jurisdiction could not be conferred on a Court by not pressing the same‑‑‑Issue of jurisdiction could be agitated at any stage and level of the proceedings.

(b) Interpretation of statutes‑‑‑

--‑Expression used in any statute‑‑Construction‑‑‑ Principle‑‑‑ Where an expression or a word is capable of a limited as well as a wide sense, only that sense should be assigned to it which is in accord with the spirit and meaning of the section in which it is used and not inconsistent with those of the other provisions of the Act.

AIR 1930 All. 224 and M.C., Gujranwala v. Ghulam Mustafa PLD 1958 Lah. 31 ref.

‑‑‑‑Ss.29 & 31‑‑‑Bar of jurisdiction of Civil Court‑‑‑Scope‑‑‑Jurisdiction of Civil Court is ousted, when the action is in pursuance of the provisions of Punjab Board ‑of Intermediate and Secondary Education Act, 1976‑‑‑Where the action was not strictly in accordance with the relevant provision but only purported to be in accordance therewith, the jurisdiction of Civil Court is excluded under S.31 of Punjab Board of Intermediate and Secondary Education Act, 1976.

Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166 ref.

(d) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)‑‑‑

‑‑‑‑Ss. 29 & 31‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Bar of jurisdiction of Civil Court‑‑‑Age of candidate, correction of‑‑Raising of new plea at revisional stage‑‑Candidate having been unsuccessful before the Board, filed civil suit for correction of her age‑‑‑Suit was decreed by the Trial Court and the appeal was dismissed by the Appellate Court‑‑‑Petitioner/Board raised the plea of bar of jurisdiction of Civil Court in revision first time before High Court‑‑‑Validity‑‑‑In absence of any allegation with regard to mala fides and lack of good faith on the part of Authorities, the jurisdiction of Civil Court was clearly stood ousted‑‑‑Both the Courts below had exercised a jurisdiction not vested in them by law‑‑‑Judgments and decrees passed by both the Courts below were‑set aside‑‑‑Revision was allowed in circumstances.

Abdul Rauf .v. Abdul Hamid Khan PLD 1965 SC 671; 139 IC 566; Scholastica Muria Percival v. Serajul Islam PLD 1968 Dacca 241; Abdul Karim v, The State PLD 1959 Lah. 883; Adnan v. Maj. Sher Afzal 1968 PCr.LJ 1373; Government of West Pakistan v. Wali Muhammad Habib PLD 1961 SC 215; AIR 1936 All. 826; AIR 1928 Lah. 562; Noor Zaman v. Saldano PLD 1967 Pesh. 343; Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and 2 others PLD 1964 SC 260; Shah Muhammad v. Khushal Muhammad and 3 others 1981 CLC 1191; Board of Intermediate and Secondary Education, Lahore and others w. Ch. Anjum Pervaiz and another 1989 CLC 64; Board of Intermediate and Secondary Education, Lahore through its Chairman and others v. Mst. Salam Afroze and 2 others PLD 1992 SC 263; Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166 and Ijaz Mahmood v. Board of Intermediate and Secondary Education 1999 CLC 984 ref.

Sh. Shahid Waheed for Petitioner.

Sardar Mohabbat Ali Dogar for Respondent.

Date of hearing: 3rd November, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 77 #

2001 Y L R 77

[Lahore]

Before Mian Hamid Farooq, J

LIFE PAPER STORE through Managing Partner Sh. Ghulam Hussain and 2

others‑‑‑Petitioners

versus

BANK OF PUNJAB and 3 others‑‑‑Respondents

Writ Petition No.3322 of 1999, decided on 25th May, 2001.

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

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Proceedings under S.12 (2), C. P. C. before Banking Court established under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Validity‑‑‑Section 12(2), C. P. C. had no application to the proceedings arising Out of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Banking Court had rightly dismissed the application under S.12(2), C.P.C. being misconceived and incompetent‑‑‑High Court declined to interfere with the order passed by the Banking Court as the same was just, legal, proper and in accordance with law‑‑Constitutional petition was dismissed accordingly.

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Mian Munir Ahmad v. United Bank Limited and 3 others PLD 1998 Kar. 278; Gul Muhammad through Legal Heirs v. Kazim Imam Jan through Attorney and another 2001 MLD 27; United Bank Limited v. Messrs Zafar Textile Mills Limited 2000 CLC 1330; Emirates Bank International Limited v. Messrs Usman Brothers and others PLD 1998 Kar.338; Pakistan Fisheries Limited, Karachi v. United Bank Limited PLD 1993 SC 109; Messrs Gold Star International and another v. Muslim Commercial Bank Limited 2000 MLD 421; Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad and another PLD 1974 Lah. 7; Noor Muhammad v. Province of Sindh and others 1995 CLC 952 and Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 ref.

Syed Hamid Ali Shah for Petitioners.

Tariq Saleem Sheikh for Respondent No. 1.

YLR 2001 LAHORE HIGH COURT LAHORE 87 #

2001 Y L R 87

[Lahore]

Before Syed Jamshad Ali, J

REHMAT ULLAH‑‑‑Petitioner

versus

ASSISTANT COMMISSIONER/SUB‑DIVISIONAL MAGISTRATE and 10

others‑‑‑Respondents

Writ. Petitions Nos. 21717 and 24216 of 2000, decided on 8th June, 2001.

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

‑‑‑‑S. 145‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Removal of encroachment in exercise of jurisdiction under S.145, Cr.P.C.‑‑‑While restoring possession, Magistrate also passed order for removal of encroachments‑‑‑Appellate Court, in exercise of revisional jurisdiction set aside such order passed by the Magistrate‑‑Validity‑‑‑Persons who were dispossessed from the disputed property could be put into possession, while, removal of encroachment on any part of public right was beyond the scope of proceedings under S.145, Cr.P.C.‑‑Appellate Court had rightly set aside the order passed by the Magistrate‑‑Constitutional petition was dismissed in circumstances.

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

-‑Art, 199‑‑‑Constitutional petition‑‑Question of fact‑‑‑Scope‑‑‑Where resolution of a question requires detailed inquiry, the same cannot be undertaken in Constitutional jurisdiction.

Sardar Shaukat Ali and Atif Mahmood for Petitioners.

Ch. Abdul Ghaffar for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 90 #

2001 Y L R 90

[Lahore]

Before Khawaja Muhammad Sharif, J

ANSAR MAHMOOD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2638/13 of 2001, decided on 25th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑Bail, grant of‑‑‑Name of accused did not figure anywhere‑‑‑Case against the accused requiring further inquiry, he was allowed bail.

Ch. Babar Zafar for Petitioner.

Mian Altaf‑ur‑Rehman for the State

YLR 2001 LAHORE HIGH COURT LAHORE 91 #

2001 Y L R 91

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

LATIF ULLAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent, Criminal Appeal No.477 and Murder Reference No. 158 of 1996, heard on 6th June, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(6)‑‑‑Appreciation of evidence‑‑Sentence, reduction in‑‑‑Eye‑witness was not related to the deceased or the complainant and he was not even from the Bratheri of the deceased or the complainant‑‑‑Eye‑witness, in circumstances, was an. independent and reliable witness‑‑‑Occurrence had taken place in broad daylight and the matter was reported to the police promptly on the same day‑‑Inquest report was prepared after registration of the F. I. R. and the doctor had also signed that report‑‑‑Duration between the time of death and‑ post‑mortem of the deceased also coincided with the time of occurrence which had left no room for doubt about the prosecution story which was legitimate‑‑Crime empty though was not recovered from the spot, but the recovery of weapon of offence was of no avail when direct evidence involving the accused in the commission of the offence was available‑‑‑Accused having been proved to have committed the murder of the deceased, his conviction was maintained, but sentence of death awarded to the accused was converted into 'imprisonment for life.

(b) Criminal trial‑‑‑

‑‑‑‑ Decision on basis of special oath‑‑‑Cases were to be decided on the basis of evidence on record and not on the basis of special oath.

Rab Nawaz Khan Niazi for Appellant.

Abdul Rashid Memon for the State.

Date of hearing: 6th June, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 95 #

2001 Y L R 95

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAHID RASOOL and others‑‑‑Petitioners

versus

MUHAMMAD NAJEEB and others‑‑‑Respondents

Criminal Original No.212‑W of 2001 decided on 21st June, 2001.

(a) Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss.3/4‑‑‑Constitution of Pakistan (1973), Art.204‑‑‑Petition for contempt of Court‑‑High Court in its order directed respondent to put back the petitioners in possession of property within specified time, possession of which was taken over by the respondent forcibly with the help of statutory functionaries‑‑‑Respondent deliberately disobeyed the said order by not complying with the same despite there was no ambiguity in the order‑‑‑Respondent took the order of the Court so lightly that he did not even submit his reply to the contempt petition as directed by the Court‑‑‑Respondent subsequently submitted reply and did not ask for apology and it was only in the amended reply that respondent tendered his unconditional apology which amounted to admission of the charge against him‑‑Respondent was not sincere in tendering the apology as same was to be offered at the earliest stage of the contempt proceedings, but the respondent had postponed till fag‑end‑ of the proceedings‑‑Respondent, in circumstances, was guilty of committing contempt of Court‑‑‑Respondent was convicted and sentenced accordingly.

Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) 2000 SCMR 1969 ref.

(b) Contempt of Court‑‑‑

‑‑‑‑ Contempt proceedings‑‑‑Contempt, matter being between the Court and the contemner alone, a stranger had nothing to do with such proceedings as the role of an informer would end once the Court would take cognizance of the matter at his. instance.

‑‑‑‑Art. 199‑‑‑Writ, scope of‑‑‑Writ was a command from a superior Court to inferior Tribunals or the Authorities which required instant compliance.

(d) Contempt of Court‑‑‑

‑‑‑‑Apology‑‑‑Conditions‑‑‑Apology must be offered at the' earliest stage of the contempt proceedings and could not be postponed till fag‑end of proceedings; must be unconditional, unreserved and unqualified, and should not only appear, but must also satisfactorily represent sincere and genuine remorse and should not be half‑hearted or mere formality and lastly the contemner should not endeavour to justify, his conduct.

(e) Contempt of Court---

‑‑‑‑Purpose of contempt proceedings‑‑Jurisdiction of Court‑‑‑Purpose of proceedings for contempt was to maintain the dignity of the Court‑‑‑Jurisdiction to punish for contempt was considered to be a special jurisdiction which was inherent in all the Courts as an, essential concomitant to their power to preserve order in judicial proceedings and to maintain the authority of law.

Javed Iqbal Arain and Mian Abdul Qadoos for Petitioners.

Malik Abdus Salam and Muhammad Azam for Respondent No. 1.

Muhammad Hanif Khatana, Addl A.‑G. for Respondent No.2.

C.R Aslam and Shawar Khilji for Applicants.

YLR 2001 LAHORE HIGH COURT LAHORE 127 #

2001 Y L R 127

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMAD KHAN and others‑‑‑Petitioners

versus

THE STATE and others‑‑‑Respondents

Constitutional Petition No.5943 of 2001, decided on 7th June, 2001.

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

‑‑‑‑S. 5 & Sched.‑‑‑Nikah‑‑‑Validity of ‑‑‑Sui Juris woman could contract Nikah of her own free‑will and a Nikah. performed under coercion by getting thumb‑impression of woman in a deceitful manner was no "Nikah " in law‑‑‑Condition precedent for constituting a marriage contract was the consent of the parties to the marriage contract, which without the consent of the parties was not valid.

(b) Administration of justice‑‑‑

‑‑‑‑Functions of the Court and the Police were complementary and were not overlapping and each institution should ordinarily remain within the parameters of its own domain.

‑‑‑‑Ss. 420/468/471 & 109‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Quashing of F.I.R.‑‑‑Jurisdiction of High Court under Art.199 of the Constitution‑‑Scope‑‑‑Where investigation in the case was mala fide or without jurisdiction, the High Court, in exercise of its Constitutional jurisdiction under Art. 199 of Constitution of Pakistan (1973), was competent to correct such proceedings and pass necessary orders to ensure justice and fairplay‑‑‑Investigating Authorities would not have the entire and total authority of running investigation according, to their whims‑‑‑No prosecution under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 could be instituted against the accused without a conclusive finding of the Family Court against the Nikah in question‑‑‑Case registered and the proceedings initiated against them which reflected mala fides were of no legal effect, and were liable to be quashed‑‑‑Petitioners who were behind the bars were ordered to be released forthwith.

Mst. Humaira Mehmood v. The State PLD 1999 Lah. 494; 2000 SCMR 722; 2000 CU 648; 2001 SCMR 155; 2001 SCMR 574; PLD 2001 Lah. 22; PLD 1982 FSC 42; Shahnaz Begum's case PLD 1971 SC 167 and Adamjee Insurance Company‑Limited v. Assistant Director 1989 PCr.LJ 1921 ref.

Zafar Iqbal Chohan and Nazar Muhammad Tahir for Petitioners.

Sardar Muhammad Latif Khosa alongwith Muhammad Ijaz Chaudhry, Mian Irfan Akram and Naseer Ahmad Bhutta for the Complainant.

Muhammad Hanif Khatana, Addl. A.‑G. for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 137 #

2001 Y L R 137

[Lahore

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

RASHID MAHMOOD and others‑‑‑Appellants

versus

THE STATE Respondent

Criminal Appeals Nos.26‑J, 27‑J and Murder Reference No.109 of 1996, heard on 25th June, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 307(1) (b) & 311‑‑‑Criminal Procedure Code (V of 1898), Ss.345, 385‑B & 544‑A‑‑‑Waiver or compounding of right of Qisas‑‑‑All the heirs of the deceased except two had waived their right of Qisas and granted pardon to the accused persons‑‑Accused, in circumstances, could not be awarded the sentence of death as provided under S. 307(1) (b), P. P. C. ‑‑‑Conviction of the accused recorded by the Trial Court was maintained, but the sentence of death on one count and imprisonment for life on two counts awarded to the accused were altered to fourteen years' R.I. under S. 311, P. P. C. accordingly and benefit of S.382‑B, Cr. P. C. was also given‑‑‑Amount of fine was converted into compensation as required under S. 544‑A, Cr. P. C.

Dr. Suhail Akhtar for Appellants.

Ch. Imtiaz Ahmad for the State.

Date of hearing: 25th June, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 147 #

2001 Y L R 147

[Lahore]

Before Khawaja Muhammad Sharif, J

NASIR MUSTAFA FEROZE‑‑‑Petitioner

versus

THE STATE and others‑‑‑Respondents

Writ Petition No.46 of 2001, decided on 30th May, 2001.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), O. XXII, R. 1‑‑‑Constitutional petition‑‑‑Father having died during pendency of Constitutional petition his son filed application for impleading him as party/ petitioner which application was allowed by High Court and applicant filed an amended petition‑‑‑Respondent had contended that after death of father of applicant the petition had become infructuous and applicant could not get himself substituted in place of his father‑‑‑Validity‑‑‑Proceedings in Constitutional petition were pari materia with suit and provision of O.XXII, C. P. C. was applicable to Constitutional petition and same would not abate on death of one petitioner and person represented could continue the proceedings‑‑‑Once an application to bring legal representative having common grievance and seeking same relief was on the file to implead him as party, he could take up the case from the stage at which it was at the time of death of the petitioner.

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

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), Ss.156 & 159‑‑‑Constitutional petition‑‑‑Investigation by Police‑‑‑Police could not be given free hand to run investigation according to its whim‑‑‑High Court in exercise of its Constitutional jurisdiction was competent to pass appropriate orders where investigation was mala fide or without jurisdiction.

Shehnaz Begum v. Honourable Judges of High Court Sindh and Balochistan PLD 1971 SC 677; 1986 SCMR 1934; Anwaar Ahmad v. State 1996 SCMR 24 and Muhammad Latif, A.S.‑I. v. Sharifan Bibi 1998 SCMR 666 ref.

‑‑‑‑Whenever there was a general enactment and a special enactment, the special enactment would override the general enactment and special law would prevail and special procedure must be followed and not the ordinary.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 478 & 482‑‑‑Trade Marks Act (V of 1940), S.20‑‑‑Initiation of action for infringement of unregistered trade mark‑‑Bar‑‑‑No action for infringement of unregistered trade mark could be initiated on account of bar contained in S.20 of Trade Marks Act, 1940.

NLR 2000 SC 522; Riasat Ali v. Asad Rafique and others PLD 1987 Lah. 257; PLD 1985 SC 46; PLD 1998 SC 67; 1987 SCMR 1590; PLD 1975 SC 33; PLD 1971 SC 677; PL.D 1994 SC 281; 1994 SCMR 2142; 1999 MLD 881; Dabur India Ltd. v. Hilal Confectionary (Pvt.) Ltd. PLD 2000 Kar. 139; AIR 1925 Cal. 149; AIR 1929 Rang. 322 and AIR 1930 Oudh 360 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 478/480‑‑‑Trade Marks Act (V of 1940), Ss. 20 & 21‑‑‑Counterfeiting a trade mark‑‑‑Person would be counterfeiting a trade mark within the meaning of Ss.478/480, P. P. C. only when prerequisite conditions of registration of the trade mark in Pakistan had been fulfilled.

Khalid Naveed Dar for Petitioner, Muhammad Ghani for Respondent

Ch. Muhammad Hanif Khatana, Addl. A.‑G. for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 186 #

2001 Y L R 186

[Lahore]

Before M. Javed Buttar, J

Syed GHULAM ABBAS SHAH‑‑‑Petitioner

versus

D G. OF POLICE, RAWALPINDI RANGE, RAWALPINDI and 2

others‑‑‑Respondents

Writ Petition No. 1189 and Civil Miscellaneous No. 1373 of 2001, decided on 26th April, 2001.

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

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), Ss. 561‑A & 156‑‑‑Constitutional jurisdiction and inherent powers of High Court‑‑‑Interference with investigation and re‑investigation‑‑‑Superior Courts cannot control investigations and re‑investigations, but are empowered to strike down any order of re‑investigation if the same is based on mala fides or is ulteriorly motivated‑‑‑Court cannot stop the investigation and cannot strike down an order of re‑investigation merely on the ground that previously a police officer has finalized the investigation.

Riaz Hussain and others v. The State 1986 SCMR 1934; Anwar Ahmad Khan v. The State and another 1996 SCMR 24; Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others PLD 1997 Lah. 24; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Khawaja Nazir Ahmad's case AIR 1945 PC 18; Muhammad Alam and another v. Additional Secretary to Government of N.‑W.F.P., Home and Tribunal Affairs Department and 4 others PLD 1987 SC 103 and Sultan Mahmood and 2 others v. Kh. Muhammad Tufail, Superintendent of Police, Lahore and 3 others PLD 1976 Lah. 1371 ref.

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

‑‑‑‑S.156‑‑‑Penal Code (XLV of 1860), 5.436‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Reinvestigation of the case challenged‑‑Investigation in the case was previously conducted by a D.S.P. who was not impressed with the statement of the eyewitnesses and after recording the finding that the occurrence of burning of the house and burning of various articles in the house had actually taken place, had left the matter of guilt of accused to the mercy of the Court and the D.I.‑G. on the representation of the accused had ordered re‑investigation and had entrusted the investigation to the same police officer who had previously verified and confirmed the findings of the D.S.P.‑‑‑Impugned order passed by D.I.‑G. did not suffer from any mala fides or ulterior motive, otherwise he would have entrusted the reinvestigation of the case to some other police officer and not to the S. P. who had verified the investigation of the D.S.P., with whose findings the complainant (petitioner) was satisfied and the accused side was unhappy‑‑Petition was consequently dismissed as not maintainable.

Riaz Hussain and others v. The State 1986 SCMR 1934; Anwar Ahmad Khan v. The State and another 1996 SCMR 24; Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others PLD 1997 Lah. 24; Khawaja Nazir Ahmad's case AIR 1945 PC 18; Muhammad Alain and another v. Additional Secretary to Government of N.‑W.F.P., Home and Tribunal Affairs Department and 4 others PLD 1987 SC 103 and Sultan Mahmood and 2 others v. Kh. Muhammad Tufail, Superintendent of Police, Lahore and 3 others PLD 1976 Lah. 1371 ref.

Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref.

Zulfiqar Khalid Maluka for Petitioner.

Sh. Zamir Hussain for Applicant (in C. M. No. 1373 of 2001). .

YLR 2001 LAHORE HIGH COURT LAHORE 211 #

2001 Y L R 211

[Lahore]

Before Karamat Nazir Bhandari, J

Sh. MUHAMMAD AKRAM SHANGI‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary Health, Health Department, Civil

Secretariat, Lahore and 3 others‑‑‑Respondents

Writ Petition No. 20813 of 1999, decided on 8th June, 2001.

Punjab Drugs Rules, 1988‑‑‑

‑‑‑‑R.20(2)‑‑‑Constitution of Pakistan (1973), Arts. 18 & 199‑‑‑Constitutional petition‑‑Wholesale trade of drugs ‑‑‑Entitlement‑‑Application for wholesale trade of drugs was disallowed on the ground that applicant who was not a Pharmacist was not entitled to run the trade of drugs‑‑‑Validity‑‑‑Rule 20(2) of the Punjab Drugs Rules, 1988 laying down condition of being a Pharmacist in order to become dealer in drugs, having been declared as void because of its conflict with Art. 18 of the Constitution of Pakistan (1973), it could not be said that only a Pharmacist could run the wholesale trade of drugs‑‑‑Order disallowing application passed by Authority was declared illegal by High Court with direction to issue the licence applied for by the applicant.

Muhammad Sharif Sheikh v. District Health Officer, Multan and 4 others PLD 1992 Lah. 415 ref.

Petitioner in person.

Muhammad Amin Lone, Asstt. A.‑G. for Responders Nos. 1 and 2.

Hafiz Muhammad Saeed for Respondents Nos.3 and 4.

Dates of hearing: 16th April and 31st May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 219 #

2001 Y L R 219

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ALAM and 3 others‑‑‑Appellants

versus

ALI SHER and 6 others‑‑‑Respondents

Regular Second Appeal No. 72 of 1984, heard on 13th February, 2001.

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

‑‑‑‑Ss.4 & 15‑‑‑Right of pre‑emption‑‑Doctrine of sinker‑‑‑Where a vendee joined another person with him in a sale who was not possessed of a right superior or equal to that of the pre‑emptor, notwithstanding the fact that the said person did possess such a right, he would sink with the co‑vendee and unless it was pleaded and proved that the sale was divisible, he would not be able to even defend the sale to his own extent‑‑‑Where a vendee joined a stranger with him at the very inception of the sale, it constituted a deliberate or voluntary act on his part, but not so when all the vendees were not possessed of a right superior or equal to that of a pre‑emptor and some of them came to acquire such a right by operation of law or inheritance during the pendency of the preemption suit.

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

‑‑‑‑Ss. 4, 15 & 21‑‑Suit for pre‑emption‑‑Superior right of pre‑emption ‑‑‑Both Courts below decreed the suit holding that pre-emptors being owners in the estate had superior right of pre‑emption and that the vendees being not owners in the estate could not resist the suit‑‑‑Three out of the four vendees had acquired land on the death of their father through inheritance during pendency of the suit and became owners in the estate and fourth one also acquired land through inheritance on the death of his father during pendency of final appeal‑‑‑All the vendees, in circumstances, had become owners in the estate during pendency of preemption proceedings before the Trial Court and Appellate Court below and they having acquired right of pre‑emption equal to that of the plaintiff, pre‑emption suit filed by the pre-emptors could not succeed‑‑‑Concurrent judgments and decrees passed by two Courts below were set aside and suit filed by the plaintiffs was dismissed.

Gulzar and others v. Muhammad Anwar and others 1991 SCMR 112 ref.

Amir Rehman for Appellants.

Nemo for Respondent, Date of hearing: 13th February, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 221 #

2001 Y L R 221

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RIAZ and another‑‑‑Petitioners

versus

COMMISSIONER, LAHORE DIVISION, LAHORE and 2 others‑ ‑Respondents

Writ Petition No.7293 of 2001, decided on 4th July, 2001.

(a) Punjab Local Government Ordinance (V of 1979)‑‑‑

‑‑‑‑S. 166‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Since agreement executed between the parties contained arbitration clause, High Court had no jurisdiction to take the cognizance of the matter‑‑‑Enforcement of the contract through Constitutional petition was not permissible and disputed question of fact could not be resolved in Constitutional jurisdiction of High Court‑‑‑Petitioners having alternate remedy to file appeal under the Rules and provisions of Punjab Local Government Ordinance, 1979, their Constitutional petition was not maintainable.

Mumtaz Ahmad's case 1999 SCMR 117; Project Director, Balochistan Minor Irrigation and Agricultural Development Projection, Quetta Cantt. v. Messrs Murad Ali & Co. 1999 SCMR 121; Muhammad Younas Khan's case 1993 SCMR 346 and Muhammad Ismail's case PLD 1996 SC 246 ref.

(b) Administration of justice‑‑‑‑

‑‑‑‑Nobody should be penalized by the inaction of public ficnctionaries.

Abdul Latif Qureshi's case PLD 1994 Lah. 3 ref.

Rana Muhammad Arif for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 223 #

2001 Y L R 223

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SAEEDA PARVEEN‑‑‑Petitioner

versus

ABDUL MAJEED‑‑‑Respondent

Civil Revision No.909 of 1993, heard on 2nd May, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 10(4), 15 & 32‑‑‑Sale of Government land‑‑Delivery of possession to the purchaser‑‑‑Where land belonging to the Government was sold for a consideration and whole amount of consideration stood paid, the Collector was duty‑bound to ensure delivery of possession to the purchaser‑‑‑After completion of the sale and payment of the entire price, the purchaser could himself take proceedings to get the possession of land‑‑Once the Government had sold away the land and title was vested in the purchaser, provisions of S.32 of Colonization of Government Lands (Punjab) Act, 1912 could not, be invoked by the purchaser.

Ali Akbar Qureshi for Petitioner.

Shahid Hussain Qadri for Respondent.

Date of hearing: 2nd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 224 #

2001 Y L R 224

[Lahore]

Before Dr. Munir Ahmad Mughal, J

FAZAL DIN alias PHAJJA‑‑‑Petitioner

versus

MUHAMMAD HABIB and 7 others‑‑‑Respondents

Constitutional Petition No. 13056 and Civil Revision No. 1364 of 2000, heard on 20th December, 2000.

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

‑‑‑‑R.157‑‑‑Advocate appearing as witness‑‑Effect‑‑‑Where the Advocate had appeared as witness of his client in the case and the case was accordingly decided, there had occurred a gross procedural irregularity and the same could not be rectified and the whole proceedings were illegal, and nullity in the eye of law‑‑‑Judgments and decrees of both the Courts below were set aside and case was remanded to the Trial Court for decision afresh in accordance with law.

Mst. Razia Begum v. Sardar Muhammad Ishaq, Advocate 1990 MLD 144 ref.

(b) Advocate‑‑‑

‑‑‑‑Advocate appearing as witness of his Client ‑‑‑Effect.

S. M. Tayyab for Petitioner.

Sh. Asghar Ali for Respondents.

Date of hearing: 20th December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 231 #

2001 Y L R 231

[Lahore]

Before Abdul Shakoor Paracha, J

BRADARI ISSAIAN and others‑‑‑Petitioners

versus

AZIZ BAIG and others‑‑‑Respondents

Civil Revision No. 1743 of 1994, heard on 7th June, 2001.

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

‑‑‑‑S.115‑‑‑Revision‑‑‑Question of law‑‑‑Plea not raised before the Courts below ‑‑‑Effect‑‑Pure question of law can be taken in revision petition under S.115, C. P. C. for the first time before High Court although the same had not been raised before the two Courts below.

Board of Intermediate and Secondary Education, Sargodha v. Muhammad Akram 1993 CLC 926 ref.

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

‑‑‑‑O. XIV, R.5 & O. XLI, R. 23‑‑‑Remand of case‑‑‑Issues not properly framed ‑‑‑Effect‑‑Where proper issues were not framed by the Trial Court, the Appellate Court could remand the case for framing of proper issues or after itself framing proper issues the case be remanded.

Bakhtzamin v. L.D.A. 1985 CLC 2028 ref.

‑‑‑‑S.115 & O.XLI, R.25 ‑‑‑ Revision ‑‑‑ Issues not properly framed‑‑‑Remand of the case in exercise of revisional jurisdiction by High Court‑‑‑Validity‑‑‑Both the Courts below had not framed proper issues arising out of the pleadings of the parties‑‑‑Exercising power under S.115, C. P. C. the case was remanded under O. XLV, R. 25, C. P. C. ‑‑‑Judgments and decrees of both the Courts below were set aside‑‑‑Revision was allowed in circumstances.

Punjab Cooperative Bank Ltd. v. Hari Singh and others 1933 ALR 1213; Kumaravelue Chettiar and others v. T.P. Ramashwami Ayyar and others AIR 1933 PC 183; Karachi Municipal Corporation v. Ali Hassan 1982 CLC 93; Muhammad Ashfaq and others v. Sohail Hameed and 3 others 1986 CLC 2218; Datari Construction Company (Pvt.) Limited v. A. Razaq Adarriji and others 1995 CLC 846; Forest Development Corporation and another v. Gujjar Khan and others 1999 SCMR 1168 and Malik Raheem Bakhsh Awan v. Ijaz Mahmood and another PLD 1990 Lah. 37 ref.

Muhammad Yaqoob Sindhu for Petitioners.

Ch. Ameer Hussain for Respondents.

Date of hearing: 7th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 246 #

2001 Y L R 246

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Ijaz Ahmad Chaudhry, JJ

SIKANDAR and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.2 of 1996 and Murder Reference No.13 of 1996, heard on 31st May, 2001

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Maxim "falsus in uno falsus in omnibus" is not applicable for discarding the evidence of the witnesses as a whole and hence so much of the‑ evidence which is credible can be accepted.

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

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Fire‑arm injury consistently attributed by the eye‑witnesses to the accused on the chest of the deceased was not found by the Doctor on the person of the deceased and to that extent medical evidence was totally in conflict with the ocular evidence‑‑‑Accused was acquitted in circumstances.

‑‑‑‑Ss. 302(b) & 337‑F(i)‑‑‑Appreciation of evidence‑‑‑Fire shot by the accused had hit the deceased on his left arm‑‑‑Said injury, was found by the Doctor as simple in nature‑‑‑Murder was not pre‑planned ‑‑‑Accused did not share the common intention with co-accused and every accused was liable for his individual act‑‑‑Conviction and sentence of accused under S.302(b), P. P. C. were consequently set aside and he was convicted under S.337‑F(i), P. P. C. and sentenced to undergo one year's R.I. with payment of Daman amounting to Rs.1,000 to the legal heirs of the deceased.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑Eye‑witnesses had consistently stated that the accused had fired at the deceased hitting him on the left flank which was fatal‑‑‑Ocular testimony was fully supported by medical evidence‑‑‑Conviction of accused was maintained accordingly‑‑‑Six accused out of twelve accused had already been acquitted by the Trial Court on the same evidence and two accused had been acquitted by High Court from the charge under S. 302 (b), P. P. C. ‑‑Accused side had also received many serious injuries‑‑‑Both the parties had not come to the Court with whole truth‑‑‑Murder was not pre planned one‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances.

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

Ijaz Hussain Batalvi for Appellants.

Kh. Sultan Ahmad for the Complainant.

Malik Muhammad Jahangir for the State.

Date of hearing: 31st May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 259 #

2001 Y L R 259

[Lahore]

Before Ch. Ijaz Ahmad, J

Makhdoom Syed FAISAL SALEH HAYAT through Mrs. Shahidah Faisal

‑‑‑Petitioner

versus

THE STATE and 2 others‑‑‑Respondents

Writ Petition No.9294 of 2001, decided on 7th June, 2001.

National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 9 & 32 (c)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Accountability Court by means of the impugned order had dismissed the application of the accused for exemption from personal appearance in the Court and bailable warrants were issued against him alongwith notice to his surety for forfeiture of the bonds‑‑‑High Court in exercise of its Constitutional jurisdiction was not expected to interfere with the interlocutory orders passed by the Tribunal particularly in view of the intention of the Legislature as expressed in S.32(c) of the National Accountability Bureau Ordinance, 1999 which did not make such orders even appealable ‑‑‑Constitutional petition, thus, had no merits and the same was dismissed accordingly.

Walayat Hussain's case 1986 PCr.LJ 2977; Muhammad Hussain's case 1980 PCr. LJ 1; Pervaiz‑ur‑Rehman's case 1980 PCr.LJ 3; Muhammad Akram's case 1983 PCr.LJ 1242; Messrs Sui Southern Gas Co. Ltd.'s case 2000 SCMR 702; Sindh Quality Control Board of Drug's case 1993 SCMR 1177; Mian Muhammad Farooq's case 1988 MLD 2949; Mst. Sherin Masood's case 1985 CLC 2758; Ms. Shahida Faisal and others v. Federation of Pakistan and others 2001 SCMR 294; Mumtaz Hussain Bhutta's case 1976 SCMR 450; Mian Manzar Bashir's case PLD 1978 SC 185 and Mian Ghulam Dastgir's case PLD 1987 Lah. 39 ref.

Kh. Haris Ahmad for Petitioner.

Sher Zaman Dy. A.‑G. for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 263 #

2001 Y L R 263

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AZIZ ULLAH KHAN---Petitioner

versus

S.H.O., POLICE STATION CITY, MIANWALI and 2 others---Respondents

Writ Petition No.8962 of 2001, decided on 1st June, 2001.

Penal Code (XLV of 1860)---

----Ss.302/324/379/411---Criminal Procedure Code (V of 1898), S.173---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Submission of challan in the Court---Accused had sought a direction from High Court to the S.H.O. to submit the challan according to his objective findings-- Report of the District Attorney showed that the offence under S.302, P. P. C. was made out, but at the same time police had given the opinion that the offence under S.322, P. P. C. was made out and the challan should be submitted under that provision---District Attorney under S.173, Cr. P. C. was empowered to submit the challan before the Court of competent jurisdiction and he was duty-bound to carefully examine the statements, and the documents sought to be produced by the prosecution during the trial and also to examine the nature of the offence committed by the accused---District Attorney was fully competent and had the lawful authority to convert the challan into the offence which according to his opinion prima faice had been committed, if a wrong provision had been mentioned in the Challan by the police---Police, however, could not be given the power to decide the nature of the offence and to submit the challan in the Court of its choice---District Attorney was not bound by the finding of police and he being the legal expert was empowered to decide the nature of the offence and choose the Court for submission of the challan---Constitutional petition was consequently dismissed with the direction to the District Attorney to submit the challan before the Sessions Court which would decide at the time of framing of charge the relevant provision of the Penal Code.

Mazhar Hussain v. Ishtiaq Hussain and another PLD 1990 Lah. 249; Sarfraz Khan v. The State PLD 1988 SC 726; Javed Iqbal and another v. The State 1991 PCr.LJ 723 and Abdur Rauf v. The State and 2 others 1998 SCMR 1771 ref.

Malik Saeed Hassan for Petitioner.

Hasham Sabir Raja and Irfan Ahmad Saeed for the Complainant.

Shan Gul for A.-G

Hamid Nawaz, D.C Mianwali

Malik Gulbaz Khan District Attorney

YLR 2001 LAHORE HIGH COURT LAHORE 268 #

2001 Y L R 268

[Lahore]

Before Mian Nazir Akhtar, J

KHALID SAEED and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.2 of 2001, heard on 8th February, 2001.

Prevention of Corruption Act (II of 1947)---

----S. 5(c)---Criminal Procedure Code (V of 1898), S.239---Joint trial of accused--Legality---Accused had acquired properties independently on different occasions and the evidence to substantiate the allegations against them was also different---Accused, therefore, could not be said to have committed the offence in' the course of the same transaction---Trial Court, despite being conscious of the above facts had illegally proceeded to hold joint trial of the accused in violation of the provisions of S.239, Cr. P. C. which had caused prejudice to them in their defence---Conviction and sentence of accused were set aside in circumstances with the direction to prosecution to prepare separate Challans against both the accused and submit the same for fresh trials separately before the Court of competent jurisdiction.

MD. Mosaddar Hoque and MD. Abdul Rouf v. The State PLD 1958 SC (Pak.) 131; Muhammad Abbas v. The State 1973 SCMR 542; Hakim Muhammad and another v. The State 1988 MLD 2393(1) and Muhammad Ishaq v. The State 1991 PCr.LJ 1836 ref.

Syed Iftikhar Hussain Shah and Ghulam Farid Sanotra for Appellants.

Muhammad Hanif Khatana, A.A.-G. for the State

Date of hearing: 8th February, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 271 #

2001 Y L R 271

[Lahore]

Before Nasim Sikandar, J

KANEEZ FATIMA and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.7 of 2001, decided on 28th May, 2001.

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

‑‑‑‑S.16‑‑‑Criminal Procedure Code (V of 1898), Ss. 265‑K & 439‑‑‑Involvement of womenfolk of abductor in the F.I.R.‑‑Propriety‑‑‑Complainant had reported abduction of his wife by the accused with the help of the petitioners (co‑accused) who happened to be his mother and young sister‑‑Both the abductor and the abductee were not Traceable since the date of occurrence‑‑Sessions Court had rejected the application of the said women accused moved under S. 265‑K, Cr. P. C. on the ground that both of them had been nominated in the F.I.R. and that the charge having been framed in the case after perusing the material available on the record, possibility of their conviction could not be ruled out without recording any evidence‑‑‑Mere fact that the complainant had alleged connivance or assistance by a mother and a young sister of the abductor could not he taken as a gospel truth and in fact should not have been accepted at all‑‑‑Awe of the words "nominated in F.I.R. " must not be taken that far to punish womenfolk of the abductor for the only reason that they were related to him‑‑‑Allegation of such kind per sc was mala fide, sinister and devilish and was not worthy of a serious consideration‑‑To say that since an allegation had been made the accused must undergo the purgation of a criminal trial was a mockery of the whole system which had nullified the purpose for which provisions of S. 265‑K were made part of the statute‑‑‑Section 265‑K, Cr.P.C., allowed the Court a discretion exercisable to foster justice which was not dependent upon recording of evidence and could be based upon incriminating material gathered by police‑‑‑Courts were required to do justice and while discharging that duty, these were not slaves of the system‑‑‑System would flourish only if the Courts went for what was rational and pragmatic‑‑‑Any piece of evidence or material brought or to be brought before the Court must appeal to reason, otherwise such allegation which did not appeal to reason and common sense was mere an accusation‑‑‑If recording of evidence in such‑like cases was held to be a precondition, all efforts would be made to prolong the trial and so the women accused would already stand punished before finally their plea was accepted‑‑‑For a woman facing criminal trial on such kind of allegation was in itself a punishment‑‑‑Contention that the application under S. 265‑K, Cr. P. C. could not succeed without recording evidence, therefore, was not acceptable‑‑‑No incriminating material was even pointed out against the accused women and the application filed by them under S.265‑K, Cr. P. C. certainly needed to be accepted‑‑Impugned order was consequently set aside and the accused were acquitted accordingly.

Irshad Ahmad Qureshi for Petitioners.

Muhammad Akbtar Tarar, A. A.‑G and Naseer Ahmad Bhutta for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 276 #

2001 Y L R 276

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AKHTAR‑ ‑Petitioner

versus

MUHAMMAD RIAZ and another‑‑‑Respondents

Criminal Revision No.339 of 2001, decided on 28th May, 2001.

Penal Code (XLV of 1860)‑‑‑

------S. 302/34‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.5‑‑‑Separate trial of the child by Juvenile Court‑‑‑Accused on the basis of a School Leaving Certificate had sought his trial by the Juvenile Court on the ground of being a child‑‑‑People while admitting the children in Schools usually get entered the age less than the actual date of birth even otherwise School Leaving Certificate could be easily obtained particularly in villages according to the wish of the applicant and it was not safe to rely upon the same‑‑‑Onus to prove that boy was less than 18 years of age was upon the accused which he had failed to discharge‑‑Accused was 20 years of age according to the report of Medical Board which was based on expert opinion of Radiologist to which authenticity was attached‑‑‑Observation made by the Sessions Court in the bail granting order could not be given preference over the aforesaid medical report‑‑‑Impugned order of the Sessions Judge sending the case of accused to the Court of Additional Sessions Judge for trial, therefore, did not suffer from any illegality‑‑‑Revision petition was dismissed in limine accordingly.

Syed Hassam Qadir Shah for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 279 #

2001 Y L R 279

[Lahore]

Before Ijaz Ahmad Chaudhry, J

RIAZ MASIH alias BHOLA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.580 of 1999, heard on 7th June, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Medical evidence and ocular evidence‑‑Preference‑‑‑Contradiction in ocular testimony and medical evidence ‑‑‑Effect‑‑Ocular testimony will be preferred over medical evidence as the eye‑witnesses have themselves seen the occurrence whereas the Doctor gives his opinion after seeing the injuries which can be incorrect‑‑‑Medical opinion cannot prevail over the ocular evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302 (b)‑‑‑Appreciation of evidence‑‑Eye‑witnesses were residents of the locality and their presence on the spot at the time of occurrence was not doubtful‑‑‑Ocular evidence was consistent on material points which was corroborated not only by medical evidence, but also by the recovery of the pistol from the accused and its matching with the empties picked up from the spot and examined by the Forensic Science Laboratory ‑‑‑Statements of eye‑witnesses, therefore, could not be brushed aside merely on the ground of their enmity with the accused‑‑‑Conviction and sentence of accused were upheld in circumstances.

Ihtisham Qadir Shah for Appellant.

Sadaqat Mahmood Butt for the State.

Date of hearing: 7th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 287 #

2001 Y L R 287

[Lahore]

Before Tanvir Ahmad Khan, J

TAWFIQ A. HUSSAIN COUNTRY HEAD, AMERICAN EXPRESS BANK and

others‑‑‑Petitioners

versus

SPECIAL JUDGE (OFFENCES IN RESPECT OF BANKS) and

others‑‑‑Respondents

Writ Petition No.2501 of 2000, decided or 17th February, 2000.

Offences in Respect of Banks (Species Courts) Ordinance (IX of 1984)‑‑‑

‑‑‑‑S. 5(1)‑‑‑Criminal Procedure Code (V of 1898), Ss. 200, 202 & 195‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑Constitutional petition‑‑‑Allegation of forging/fabricating the documents‑‑‑Order' of the Special Court referring the complaint for enquiry by officer of a rank not less than Deputy Superintendent of Police had been challenged in Constitutional petition on grounds that the order had been passed by a Court without jurisdiction; that the complaint was hit by S.195, Cr. P. C. as documents in dispute were under adjudication in the suit pending before Banking Court and that unless and until a complaint in writing was made by the Banking Court, the proceedings could not be commenced‑‑‑Validity‑‑‑Complaint under dispute was at the very initial stage and the Special Judge had simply referred the matter for the inquiry qua veracity of the documents‑‑‑Accused was well within his right to take question of jurisdiction before the Special Court‑‑‑Bar of S.195, Cr. P. C. as alleged by the accused was misconceived because commission of forgery having been alleged in respect of documents in question, said bar would not apply to the case‑‑‑Filing of a suit could not protect forger from proceedings against him initiated under criminal law‑‑‑Civil suits taking long time to decide, Civil Courts thus could not be made places for protection of criminals‑‑‑Accused was directed to join the inquiry and place documents before Inquiry Officer and Inquiry Officer was also directed not to harass the accused.

Muhammad Shafi v D.S.P. PLD 1992 Lah. 178 ref.

Jawad Hussain for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 294 #

2001 Y L R 294

[Lahore]

Before Mian Nazir Akhtar, J

Qari MUHAMMAD ATTA ULLAH‑‑‑Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, SIALKOT and 10

others‑‑‑Respondents

Writ Petition No.8994 of 2001, decided on 1st June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 154‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Registration of case‑‑‑Petitioner's contention was that Police had registered a case on his report relating to the demolition of boundary wall of his house and theft of his household articles‑‑‑Petitioner had further alleged that a fen, days later the inhabitants got demolished his house through some school boys‑‑Complainant had also alleged that his house was got demolished by Police Officer who colluded with the accused and that said Police Officer had tortured him (the complainant) and his family members but no case in respect of said occurrence had so far been registered against the accused‑‑‑Police official present in the Court had stated that if the complainant lodged any oral or written report in respect of the second occurrence he would register case and investigate the same in accordance with law‑‑‑Petitioner could approach the S.H.O. and lodge a verbal or written report in respect of his grievance and S.H.O. would duly register a case and investigate the same in accordance with law.

Shahid Hussain Kadri for Petitioner.

Muhammad Hanif Khatana, Addl A.‑G. for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 301 #

2001 Y L R 301

[Lahore]

Before Mian Saqib Nisar, J

MASOOD SIDDIQUI‑‑‑Petitioner

versus

SHAKEEL CHUGHTAI‑‑‑Respondent

Civil Revision No.598 of 2001, decided on 7th June, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, Rr. 2, 3 & O. XVII, R.3‑‑‑Suit for recovery of money‑‑‑After concluding evidence of the plaintiff, while the evidence of the defendant was in progress, and statement of defendant's witness was being recorded, the Court directed the defendant to leave the Court‑room and closed the evidence of the defendant‑‑‑Validity‑‑‑Defendant being party to the litigation could not, in any circumstances, be directed by the Court to leave the Court‑room‑‑‑Trial Court could not pass such order under any provision of C. P. C. or the High Court Rules and Orders‑‑‑Trial Court had transgressed its authority and had passed an illegal order, not only in issuing such direction to the defendant, but by closing his evidence when his witness was present and evidence was in the process of being recorded‑‑‑Order of the Trial Court was set aside in circumstances.

S.M. Mohsin Zaidi for Petitioner.

Nemo for Respondent.

YLR 2001 LAHORE HIGH COURT LAHORE 308 #

2001 Y L R 308

[Lahore]

Before Ali Nawaz Chowhan, J

Dr. ARSHAD MANZOOR and others‑‑‑Petitioners

versus

THE COMMISSIONER, RAWALPINDI DIVISION and others‑‑‑Respondents

Writ Petition No. 1047 of 2001, decided on 30th March, 2001.

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 3‑‑‑Punjab Local Government Elections Rules, 2000, Rr. 7, 8, 9 & 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Deletion of village from the Union Council‑‑‑Village in question was deleted from its present Union Council and was proposed to be appended with a constituency in the Cantonment Area‑‑‑Petitioners being residents of said village had challenged the deletion of the village‑‑‑Commissioner had already remanded the case to Delimitation Officer for hearing the parties and for determining the matter in dispute‑‑‑Order of Commissioner had provided an opportunity to the petitioners to lay their grievance before the Delimitation Officer who would decide the dispute after consulting Revenue Record, past geographical history of the village in question and other related things‑‑‑Delimitation Officer was directed by the High Court to finalize the matter within stipulated period taking into consideration all relevant matters.

Sheikh Akhtar Javed for Petitioners.

Sajjad Hussain Shah, A. A.‑G. for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 319 #

2001 Y L R 319(1)

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM RASOOL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1190/B (MN) of 2000, decided on 7th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.379/411‑‑‑Bail, grant of‑‑‑Investigation of the case had been completed‑‑‑Accused was not previous convict and none of the offences against him was punishable with 10 years' imprisonment or more‑‑‑Bail in such‑like cases was to be granted as a rule.

Muhammad Amir v. The State 1973 PCr.LJ 205 ref.

Mian Fazal Rauf Joya for Petitioner.

Yaqoob Ayaz Siddiqui for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 327 #

2001 Y L R 327

[Lahore]

Before Mian Hamid Farooq, J

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of

Defence‑‑‑Petitioner

versus

Messrs MASOOD ENTERPRISES through Managing Director‑‑‑Respondent

Civil Revision No. 1426 of 1999, decided on 15th June, 2001.

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

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), Ss.5 & 29(2)‑‑‑Revision‑‑‑Condonation of delay‑‑Provisions of S.5 of Limitation Act, 1908‑‑Applicability‑‑‑Provisions of S.5 of Limitation Act, 1908, are not applicable to proceedings under S.115, C. P. C. in view of S.29(2) of the Limitation Act, 1908.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 ref.

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

‑‑‑‑S.115‑‑‑High Court (Lahore) Rules and Orders, Vol. V, Chap. 1, R.4‑‑‑Revision‑‑Time‑barred proceedings‑‑‑Office objection‑‑Notice of objection not issued to the parry filing the proceedings‑‑‑Revision was filed within time whereas some objection was raised by the office‑‑‑Objection was removed and the same was refiled‑‑‑Contention of the respondent was that the revision was timebarred as the date of refiling of revision was to be treated as the date of filing of the petition‑‑‑Validity‑‑‑Once a suit, appeal or revision had been presented before the authorised officer of the Court within the prescribed period of limitation the same could not be treated as barred by time, unless the party/Advocate even after the receipt of notice from the office, failed to remedy the defects‑‑Where the revision petition was originally presented in the office within limitation and the office did not even issue a specific notice to the petitioners or their counsel informing them about the objections, revision petition could not be treated as barred by time.

Mst. Sahiran Bi v. Ahmad Khan arid another 2000 SCMR 847 ref.

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Relief linked with the main suit‑‑‑Effect‑‑‑Where the relief was linked up with the main suit and was inseparable, the Court could not decide such relief while deciding application for interim relief.

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Interim injunction‑‑Irreparable loss‑‑‑Determination of amount claimed in suit‑‑‑Effect‑‑‑Where the amount was determined the plaintiff would not suffer irreparable loss if the injunction was refused.

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Interim injunction‑‑Prima facie case‑‑‑Scope‑‑‑Merely asserting the facts in plaint does not constitute a prima facie case for grant of injunction.

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

‑‑‑‑O.XXXIX. Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Prima facie case and irreparable loss‑‑‑Amount to be recovered was already determined by the plaintiff in his plaint‑‑‑Trial Court refused to grant interim injunction whereas the Lower Appellate Court allowed the same‑‑‑Validity‑‑‑Where the plaintiff failed to prove within the parameters set up under the law that he had a prima facie case or in case of refusal of injunction he would suffer irreparable loss or balance of convenience was in his favour, findings of Appellate Court to the contrary were not sustainable in law‑‑‑Such order was passed by the Appellate Court in excess of jurisdiction, illegally and with material irregularity and the same was set aside.

Sher Zaman Khan, Dy. A.‑G. for Appellant.

Abdul Hamid Cheema for Respondent.

Date of hearing: 18th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 336 #

2001 Y L R 336

[Lahore]

Before Maulvi Anwarul Haq, J

Rana ZULFIQAR ALI KHAN and another‑‑‑Petitioners

versus

ELECTION TRIBUNAL, GUJRANWALA, HAFIZABAD CAMP/DISTRICT AND

SESSIONS JUDGE, HAFIZABAD and 4 others‑‑‑Respondents

Writ Petition No.8608 of 2001, heard on 18th June, 2001.

Punjab Local Government Elections Rules, 2000‑‑

‑‑‑‑Rr.70, 71, 72 & 77‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑Constitutional petition‑‑‑Restoration of election petition, dismissed in default‑‑‑Election of the returned candidate was assailed in election petition by the petitioner‑‑‑Petition was dismissed for non prosecution due to absence of the petitioner on the day when the same was fixed for hearing‑‑‑Election Tribunal declined to restore the petition on the ground that there was no provision for restoration of the petition in the Punjab Local Government Elections Rules, 2000‑‑‑Validity‑‑‑Mere fact that there was no provision or procedure laid down for filing an application for setting aside ex parte orders, would not bar such application because if it was allowed to be filed, it would advance the ends of justice and fair play‑‑‑Election Tribunal had taken very narrow view of the matter and in the process had proceeded in violation of the dictum laid of Supreme Court in case titled H.M. Saya reported as PLD 1979 SC 65‑‑‑Order passed by Election Tribunal was set aside and case

was remanded to the Tribunal for decision afresh in circumstances.

Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 ref.

H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 fol.

Abid Saqi for Petitioners.

Sahabzada Muhammad Munir Abbasi for Respondents Nos.2 and 3.

Naseem Sabir Ch., Addl. A.‑G. (on Court's call).

Nemo for the Remaining Respondents.

Date of hearing: 18th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 339 #

2001 Y L R 339

[Lahore]

Before Nasim Sikandar and Mansoor Ahmad, JJ

Messrs QURESHI WOOL INDUSTRIES (PVT.) LTD. through

Director‑‑‑Petitioner

versus

CUSTOMS EXCISE AND SALES TAX APPELLATE TRIBUNAL, LAHROE and

another‑‑‑Respondents

Customs Appeal No. 142 of 2001, decided on 16th May, 2001.

(a) Limitation‑‑‑

‑‑‑‑ Recovery of money‑‑‑Limitation‑‑‑Where law prescribes period of time for recovery of money, the recovery is not enforceable after that period.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 32(2)‑‑‑Recovery of duty after prescribed period‑‑‑Provisions of S.32(2) of Customs Act, 1969‑‑‑Applicability‑‑‑Where short levy or escapement of duty was not on account of collusion, the provisions of S.32(2) of Customs Act, 1969, could not be pressed into service after lapse of the prescribed period of six months at the relevant time.

The Collector, Central Excise and Land Customs and others v. Rahim Din 1987 SCMR 1840 ref.

‑‑‑‑Ss. 32(2)(3) & 196‑‑‑Appeal‑‑‑Recovery of customs duty after period of six months‑‑‑No allegation of collusion between the importer and Customs Officials‑‑‑Importer was issued a notice under S.32(2) of Customs Act, 1969, after expiry of six months, for recovery of short levy of duty‑‑‑Validity‑‑‑Where there was no allegation of collusion, the notice of recovery could not be issued under S.32(2) of Customs Act, 1969 and provisions of S.32(3) of Customs Act, 1969, were applicable‑‑Order passed by the Collector on the basis of such show‑cause notice was illegal and void.

Ibrahim Textile Mills Ltd. v. Federation of Pakistan and others PLD 1989 Lah. 47 and Federation of Pakistan v. Messrs Ibrahim Textiles Ltd. 1992 SCMR 1898 ref.

Mian Ashiq Hussain for Petitioner.

Khan Muhammad Virk for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 343 #

2001 Y L R 343

[Lahore]

Before Ch. Ijaz Ahmed, J

MUSLIM COMMERCIAL BANK LTD. ‑‑‑Petitioner

versus

BANKING COURT NO. 1, LAHORE and 2 others‑‑‑Respondents

Writ Petition No. 15272 of 1999, decided on 6th June, 2001.

(a) Act of Court‑‑‑

‑‑‑‑ Nobody should be penalised by the act of Court.

M. N. Salar's case 1998 PCr.LJ 1909; Mian Arshad Ali's case PLD 1975 Lah. 7; Khan Muhammad's case PLD 1999 Lah. 400 and Muhammad Sharif's case 1981 PCr.LJ 704 ref.

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

‑‑‑‑S. 247‑‑‑Banking Companies Ordinance (XIX of 1979), S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Non‑prosecution of complaint‑‑‑Dismissal of complaint‑‑‑Accused persons had filed application under Ss.249‑A & 265‑K, Cr. P. C. in Banking Court which was dismissed‑‑‑Subsequently due to non-prosecution by the complainant the complaint was dismissed by the Banking Court and the accused persons were acquitted of the charge‑‑‑Validity‑‑‑Complaint could not be dismissed either in cognizable or non-compoundable offences due to non-prosecution by the complainant‑‑‑Order passed by Banking Court was without any lawful authority and of no legal consequence and the same was set aside by High Court.

‑‑‑‑Ss. 247, 249‑A & 265‑K‑‑‑Dsimissal of complaint after application under Ss. 249‑A & 265‑K, Cr: P. C. was dismissed by Trial Court‑‑‑Validity‑‑‑Where the application was dismissed by the Trial Court and subsequently accused persons were acquitted by the Court on the ground of non prosecution by complainant, Trial Court erred in law to acquit the accused persons in circumstances.

M. N. Salar's case 1998 PCr.LJ 1909 ref.

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

‑‑‑‑S. 247‑‑‑Dismissal of complaint at early hours of the day‑‑‑Validity‑‑‑Such dismissal of complaint was not in accordance with the High Court Rules and Orders and the law laid down by superior Courts

Punjab Kashmir Bank Ltd.'s case PLD 1966 Lah. 356 ref.

Zahid Hamid for Petitioner.

Iftikhar Ullah Malik for Respondents Nos. 2 and 3.

Date of hearing: 6th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 352 #

2001 Y L R 352

[Lahore]

Before Khawaja Muhammad Sharif J

SAKINA BIBI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5217/B of 2000, decided on 4th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1)‑‑‑Penal Code (ILV of 1860), Ss.302, 324, 337‑B & 148/149‑‑‑Bail, grant of‑‑‑Accused being a woman, her case was covered by the first proviso to S.497(1), Cr.P.C. entitling her for concession of bail.

Pervaiz Aslam Chaudhry for Petitioner.

Sh. Afzaal Hussain for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 353 #

2001 Y L R 353

[Lahore]

Before Bashir A. Mujahid, J

MANZOOR MASIH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3185/B of 2001, decided on 27th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑Bail, grant of‑‑‑Daughter of the complainant/alleged abductee was also arrayed as an‑ accused in the case on the round that she had eloped on her own with the son of the accused and had contracted marriage with her own free‑will with him‑‑Both, alleged abduetee and the son of the accused were granted bail and were facing trial ‑‑‑Challan of the case had been submitted and trial had already commenced‑‑‑No useful purpose could be served by keeping the accused behind the bars for an indefinite period‑‑‑Accused was also admitted to bail in circumstances.

Pervaiz Aslam Ch. for Petitioner.

Muhammad Akram Nasir for the State.

2001 Y L R 358

[Lahore]

Before Malik Muhammad Qayyum, J

MEHRAJ DIN through Legal Heirs and another‑‑‑Petitioners

versus

MUHAMMAD ASLAM and 6 others‑‑‑Respondents

Writ Petition No.3540 of 1979, decided on 27th September, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXII, R.4‑‑‑Specific Relief Act (I of 1877), Ss. 8 & 42‑‑‑Suit for declaration and joint possession‑‑‑Death of one of the defendants ‑‑‑Non‑impleading of legal heirs in time‑‑‑Effect‑‑One of the defendants had died during pendency of the suit but application for impleading legal heirs of deceased defendant was filed by the plaintiff after about two years despite the fact that the plaintiff had full knowledge of the death of the defendant‑‑‑Application filed by the plaintiff for impleading legal heirs of the deceased defendant was dismissed and suit abated ‑‑‑Contention of the plaintiff that mother of the deceased defendant was on record in another capacity, the suit would not abate for non‑impleading the legal heirs of the deceased in time was repelled because presence of one of the legal heirs of deceased on the record in another capacity would not absolve the contesting parties from making formal application for bringing the legal representatives of the deceased on record within statutory period‑‑‑Further contention of the plaintiff that since deceased defendant had specified share in the property in question the suit would abate to the extent of deceased only and not in toto, was also repelled for the suit was one for possession and in alternative for declaration and the deceased being a co‑sharer in the said property was a necessary party to the suit and on his death, the suit would become incompetent as necessary parties were not on record.

Allah Rakha and others v. Nur Bakhsh and others PLD 1966 Lah. 960; Wali and others v. Manak Ali and others PLD 1965 SC 651 and Ghulam Qadir and another v. Ditta and others AIR 1945 Lah. 184 ref.

Sardar Muhammad Ramzan for Petitioner.

Atif Amin for Respondents Nos. 1 to 3, 5,6 and 8.

Date of hearing: 27th September, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 360 #

2001 Y L R 360

[Lahore]

Before M. Javed Buttar, J

JAMIL MASIH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.71/B of 2001, decided on 30th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of ‑‑‑Unwitnessed occurrence‑‑‑Two prosecution witnesses knew the accused previously, but they did not name him in their statements as one of the two persons who were seen by them leaving the scene of the crime‑‑‑No recovery had been effected from the accused ‑‑‑Co‑accused who was suspected by the complainant to have killed the deceased, had confessed commission of the offence and a .12 bore shot gun was recovered from him‑‑‑Prosecution witnesses had .merely suspected that accused was part of conspiracy which was hatched by the co‑accused who actually had killed the deceased and the accused was involved in the case as abettor, but no direct evidence was available on record of abetment or conspiracy‑‑Dispute existed between the complainant who was landlord and the accused about the rent of a house‑‑‑Entire material available on the record against the accused was based merely on suspicion and hearsay and the accused and his co‑accused wife were not present on the spot at the time of occurrence and were in other village to attend the funeral of their relative‑‑ Accused, in circumstances, was granted bail.

Pervaiz Aslam Chaudhry for Petitioner.

Manzoor Hussain Mughal for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 362 #

2001 Y L R 362

[Lahore]

Before Mian Saqib Nisar, J

PARVAIZ MAJEED QURESHI and 4 others‑‑‑Petitioners

versus

HAMEEDA BANG and 3 others‑‑‑Respondents

Civil Revisions Nos.589, 575 of 1986 and 2161 of 1985, decided on 18th December, 2000.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 30 & 33, second proviso (since omitted by Arbitration (Amendment) Ordinance (XXVII of 1977), S. 2 (b)] ‑‑‑ Specific Relief Act (1 of 1877), Ss. 9 & 42‑‑Objections to the award‑‑‑Objections to the award pertaining to declaratory suit were rejected by the Court holding that objector had neither furnished the security nor had deposited the amount in terms of second proviso to S.33 of Arbitration Act, 1940 and that the award was made rule of the Court‑‑‑Second proviso to S.33 of the Act which otherwise had been omitted by Arbitration (Amendment) Ordinance, 1977 and was no more part of the statute book at the time when objections were dismissed on the ground of non‑compliance thereof, was in fact applicable only to awards granting money and not to the cases where declaration was granted by the arbitrators regarding the immovable property‑‑‑Effect‑‑‑Order rejecting the objection thus was void ab initio‑‑Despite the rejection of objections on technical grounds the objector could show to the Court that the award should not be made rule of the Court for it was the duty of the Court, to see that valid award was made by the arbitrator irrespective of the fact whether objections had been taken or not‑‑ Objection in another case had not been disposed of by the Court separately, but had been disposed of only making reference to the objection dismissed in the earlier case‑‑‑Orders/judgments of two Courts below were set aside and matter was remanded to the Trial Court to re‑appraise the objections filed on both the awards and to dispose of the same in accordance with law.

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

‑‑S. 115 ‑‑‑Revision‑‑‑Limitation‑‑‑Revision as to be filed within a period of ninety days and if filed beyond said period same could be dismissed on the principle of laches, but when the order against which revision was filed was void and grossly illegal, the principle of caches was not attracted.

Atif Amin for Petitioners.

Rana Muhammad Sarwar, A. H. Masood and Tariq Sultan Mian for Respondents.

Date of hearing: 5th December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 365 #

2001 Y L R 365

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

IJAZ AHMAD and another---Appellants

versus

THE STATE---Respondent

Criminal. Appeal No.564 of 1995, heard on 21st June, 2001.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence--Prosecution witness was proved to be inimical towards accused and his family---Said prosecution witness had denied that the accused had muffled up their faces, whereas the complainant specifically alleged that the accused had wrapped clothes on their faces--Presence of said witness at the spot was extremely doubtful and he was not a dependable witness in view of material improvements made by him---Previous conduct of said witness was not above board and could not be considered a reliable witness at all---General public had gathered at the spot, but none of them was either examined or produced by the prosecution, which fact was sufficient to conclude that the occurrence remained unwitnessed--Contradiction existed between statements of witnesses with regard to weapon of offence and nature of injuries on the person of the deceased---Occurrence had taken place in the darkness and identity of the accused was very much in doubt---Prosecution version had not received corroboration from any independent source---Was difficult to believe that wife of the deceased who was also witness in case either was available at the spot or could identify the assailants in view of her contradictory statements---Prosecution version being full of innumerable doubts, the benefit of doubt would go to the accused---Convictions and sentences of the accused were quashed, in circumstances.

M.A. Zafar for Appellants.

Masood Sadiq Mirza for the State.

Date of hearing: 21st June, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 370 #

2001 Y L R 370

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL LATEEF and another---Petitioners

versus

SHAMS DIN and 3 others---Respondents

Civil Revisions Nos. 118/D and 119 of 1990, heard on 23rd January, 2001.

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

----S. 10---Displaced Persons (Land Settlement) Act (VII of 1958), Ss. 10/11--Allotment of land to Jammu and Kashmir Refugee in lieu of ration---Cancellation of allotment---Land once allotted to Jammu and Kashmir refugee on temporary basis in lieu of ration, would stand sold to the Ministry of Kashmir Affairs and would go out of compensation pool and Settlement Authorities would be left with no jurisdiction to deal with the same including its allotment or transfer to displaced persons to satisfy their claims.

Dost Muhammad and others v. Mst. Badal Jan and others 1976 SCMR 112; Mst. Sakina Bibi and another v. Manila and 2 others PLD 1977 Lah. 202 and Nihal Din alias Lal Khan and others v. Muhammad Hussain and 3 others 1991 MLD 2167 ref.

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

----S.42---Colonization of Government Lands (Punjab) Act (V of 1912), S.10---Civil Procedure Code (V of 1908) S.9---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss. 2 & 3---Suit for declaration---Allotment of land to Jammu and Kashmir refugees in lieu of ration--Confirmation---Jurisdiction of Civil Court--Suit was filed in the year 1982 when all the Evacuee Property Laws stood repealed and Civil Court was the only forum for the plaintiffs to agitate their grievance---Act of confirming the suit land in favour of defendants which stood temporarily allotted to the plaintiff was wholly without jurisdiction and Civil Court being the Court of plenary jurisdiction was fully competent to declare the same as without, jurisdiction.

Abdus Shakoor for Petitioners

Nemo for Respondents.

Date of hearing: 23rd January, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 373 #

2001 Y L R 373

[Lahore]

Before Maulvi Anwarul Haq, J

RAMZAN and 6 others---Appellants

versus

MUHAMMAD SHER and 20 others---Respondents

Regular Second Appeal Case No.287 of 1984, heard on 20th February, 2001.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs had proved sale of land in dispute in their favour on consideration, and also attestation of mutation in respect of said land in their name---Defendants could not deny transaction of sale and attestation of mutation in favour of plaintiffs either through pleadings or by entering into witness-box---Trial Court was not justified to dismiss the suit---Appellate Court had rightly set aside judgment of Trial Court in appeal and decreed the suit filed by the plaintiffs.

Muhammad and others v. Sardul PLD 1965 (W.P.) Lah. 472 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

Sh. Naveed Sheharyar for Appellants.

Yousaf Farooq Malik for Respondents.

Date of hearing: 20th February. 2001

YLR 2001 LAHORE HIGH COURT LAHORE 375 #

2001 Y L R 375

[Lahore]

Before Ch. Ijaz Ahmad, J

Hafiz NOOR MUHAMMAD KASURI---Petitioner

versus

GOVERNMENT OF PAKISTAN through Federal Secretary, Pakistan Railways, Islamabad and 7 others---Respondents

Writ Petition No.9118 of 1999, heard on 25th April, 2001.

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

----Art. 199---Constitutional petition--Competency---Petitioner had already filed civil suit qua the same subject-matter, cause of action and relief before the Civil Court and had obtained status quo order from that Court, which fact the petitioner had concealed while filing Constitutional petition---Constitutional petition was dismissed and High Court declined. to exercise discretion in favour of the petitioner.

Khan Abdul Ghafoor Khan Daha's case PLD 1969 Lah. 175; Muhammad Yaqoob and 13 others case PLD 1997 Lah. 664; Mst. Sattan and others' case PLD 1962 Lah. 151; Ch. Tanbir Ahmed Siddiqui's case PLD 1968 SC 185; Abdul Rashid's case 1969 SCMR 141; Ghulam Mustafa's case 1983 SCMR 196; Nawabzada Raunaq Ali Khan's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.

(b) Administration of justice---

----He who seeks equity must come to the Court with clean hands.

Tariq Rahim for Petitioner.

Sh. Shahid Saeed for Respondents, Date of hearing: 25th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 377 #

2001 Y L R 377

[Lahore]

Before Ch. Ijaz Ahmad, J

Syed MAZHAR HUSSAIN ---Petitioner

versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 5

others---Respondents

Writ Petition No.284 of 1984, heard on 2nd May, 2001.

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

----Art. 199---Constitutional petition--Petitioner coming with unclean hands--Suppression of material fact---Petitioner had concealed the fact of filing of civil suit qua the same subject-matter and relief from the contents of the Constitutional petition---Effect---Petitioner did not approach the High Court with clean hands---He who seeks equity must come with clean hands---High Court declined to exercise discretion in favour of the petitioner in circumstances.

Nawabzada Raunaq Ali Khan's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462; Ghulam Mustafa's case 1993 SCMR 196 and Abdur Rashid's case 1969 SCMR 141 ref.

(b) Grow More Food Scheme---

--- Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Cancellation of allotment---Concurrent findings of fact by the Courts below---Allotment of land in favour of the petitioner was cancelled on the basis of fraud and forgery committed in Revenue Record---Order of cancellation was maintained up to the Board of Revenue-- Contention of the petitioners was that the orders of the forums below were result of misreading and non-reading of record-- Validity---Constitutional petition was not maintainable against concurrent findings of fact---Each and every case was to be decided on its own peculiar circumstances and facts-- Petitioner was granted ample opportunity to rebut the allegations qua interpolations in Revenue Record with the connivance of Patwaris before the Tribunals below but the petitioner failed to discharge his onus---High Court refused to interfere with the orders passed by the forums below in circumstances.

Muhammad Ashraf v. Board of Revenue, West Pakistan PLD 1968,. Lah.1155; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Sardar Ghulam Sarwar Khan etc. v. Sardar Muhammad Anwar Khan etc. PLD 1971 Pesh. 170; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; M.K. Khakwani v. Commissioner, Multan Division and others 1982 CLC 361 and Muhammad Mubeen v. Abdul Hakim and others 1986 SCMR 651 distinguished.

Khuda Bakhsh v. Muhammad Sharif and another 1974 SCM'R 279; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdur Rehman Bajwa's case PLD 1981 SC 522 ref.

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in exercise of Constitutional jurisdiction cannot substitute its own finding in place of finding of Tribunals below.

Massadaq's case PLD 1973 Lah. 600 ref.

Rao Munawar Khan for Petitioner.

Ch. Hameedud Din and Malik Akhtar H. Awan, A. A.-G. for Respondents.

Date of hearing: 2nd May, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 381 #

2001 Y L R 381

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

M.D. TAHIR, ADVOCATE Petitioner

versus

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

Writ Petition No. 4012 of 2001, decided on 30th May, 2001.

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

----S. 144---Power to issue order absolute at once in urgent cases of nuisance or apprehended danger---Preservation of public peace and tranquillity being the primary function of the Government it may be found necessary for this object to override private rights temporarily---In case of conflict between the public interest and private interest the former must prevail:

Chetty v. Queen (1889) 6 Mad. 108 = 2 Wrir 77 ref.

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

----S. 144(6)---Extension of period of notification---Only the Provincial Government is empowered under S.144(6), Cr. P. C. to extend the period of the notification issued by the District Magistrate under S.144(1), Cr. P. C. by Notification in the official Gazette.

Ch. Abdul Aziz v. District Magistrate, Sakhar PLD 1980 Kar. 333; Messrs Manzoor Textile Mills Ltd. v. Assistant Commissioner, Shorkot 1984 PCr. LJ 1021; Ram Narain Shah and another v. Parmasher Shah AIR 1942 Pat. 414 and Niaz Muhammad and others v. D.M., Bahawalpur PLD 1975 BJ 36 ref.

----S. 144---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ban on pillion ride---Validity---Power under S.144(I), Cr.P.C. could be exercised only by the District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate empowered by the Provincial Government or by the District Magistrate in this behalf--First order of the Government of the Punjab, Home Department, under S.144(1), Cr.P.C. was notified on 30-4-1997 whereby the prohibition on the pillion ride of person on motor-cycle and scooter within the Province of Punjab was imposed---Said ban was extended from time to time by various notifications of the Government and the last notification was of 7-5-2001, meaning thereby that all the Governments since 1997 had imposed the aforesaid ban by issuing notifications by the incompetent Authority i. e. the Provincial Government, whereas the Competent Authority in this behalf was the District Magistrate or Sub-Divisional Magistrate or any other Magistrate empowered by the Provincial Government or the District Magistrate to act under S.144(1), Cr.P.C.---Provincial Government had no authority to impose ban on pillion ride under S.144(1), Cr.P.C.--Impugned notifications were consequently set aside---Constitutional petition was accepted accordingly.

Wattan Party and others v. Chief Minister and others 1999 PCr.LJ 2003 and Altaf Shakoor and 4 others v. Government of Sindh 1995 PCr.LJ 615 distinguished.

Harihaz Singh and others v. Emperor AIR 1934 Pat. 463; Maqbool Ahmad and others v. Additional Deputy Commissioner, Bahawalpur 1980 PCr.LJ 851; Tariq Mehmood v. State and others PLD 1968 Lah. 939; Qari Abdul Hameed Qadri v. District Magistrate PLD 1957 Lah. 213; Muhammad Ismael v. Muzaffar Qadir, District Magistrate PLD 1968 Lah. 1353; Ghulab Din v. Azad Jammu and Kashmir PLD 1960 Azad J&K 51; Nainamalai Goundan and others v. Ramaswani Goundan AIR 1942 Mad. 20; Khadim Mohi-ud-Din's case PLD 1965 SC 459; Gul Hassan's case PLD 1956 FC 190; Abdul Kadir Lebba Rahim and others v. State and 2 others AIR 1952 Trav.-Co. 251; Chetty v. Queen (1889) 6 Mad. 108 = 2 Wrir 77; Ch. Abdul Aziz v. District Magistrate, Sakhar PLD 1980 Kar. 333; Messrs Manzoor Textile Mills Ltd. v. Assistant Commissioner, Shorkot 1984 PCr.LJ 1021; Ram Narain Shah and another v. Parmasher Shah AIR 1942 Pat. 414; Niaz Muhammad and others v. D.M., Bahawalpur PLD 1975 BJ 36 and 1983 Cr.LJ (NOC) 80 (Gauhati) ref.

Petitioner in person.

Maqbool Ellahi Malik, A.-G., Punjab.

YLR 2001 LAHORE HIGH COURT LAHORE 392 #

2001 Y L R 392

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD SIDDIQUE---Appellant

versus

AHMAD DIN and 2 others---Respondents

Regular Second Appeal No.975 of 1970 and Civil Miscellaneous Applications Nos.384 and 385 of 1996, heard on 6th April, 2001.

Civil Procedure Code (V of 1908)---

----S. 100---West Pakistan Land Revenue Act (XVII of 1967), S.45---Second appeal--Scope---Mutation, attestation of---Factual controversy---Contention of the appellant was that due to interim orders passed by the High Court mutation on the basis of oral sale in his favour could be attested---Application filed in the second appeal sought direction for attestation of mutation---Validity---Allowing of such relief through application would amount to accepting contention that oral sale stood perfected---Contention requiring factual inquiry was beyond the scope of second appeal.

Nemo for Appellant.

Pir Anwar-ur-Rehman and Muhammad Akram Javed for Applicants.

Date of hearing: 6th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 394 #

2001 Y L R 394

[Lahore]

Before Syed Zahid Hussain, J

ZAHOOR AHMAD and 5 others---Petitioners

versus

DEPUTY ADMINISTRATOR (RESIDUAL PROPERTY) and 2

others---Respondents

Writ Petition No. 41-R of 1987, decided on 8th May, 2001.

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

----S. 2(2)---Repeal of evacuee laws--Reopening of matter after issuance of Permanent Transfer Deed---Dispute was with regard to transfer of portion of a house regarding which Permanent Transfer Deed had already been issued---Validity---After issuance of Permanent Transfer Deed, and when the matter of transfer had attained finality the same could not be reopened to accommodate another person as the same might denude the right of transferee.

Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971; Bilqis Begum and others v. Fazal Muhammad and others 1987 SCMR 1441 and Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi and others 1991 SCMR 1604 ref.

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

----S. 2(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of evacuee property after issuance of Permanent Transfer Deed---Order without lawful authority---Predecessor-in-interest of the petitioners was allotted full house and Permanent Transfer Deed was issued in his favour on 20-4-1963---Many rounds of litigation bad taken place but the transfer deed in favour of the petitioners remained intact---Respondent managed to get a portion of disputed house transferred in his favour on 10-9-1984, despite the fact that case of the defendant was rejected twice by the Settlement Authorities---Contention of the respondent was that High Court in exercise of Constitutional jurisdiction could not interfere with the order passed by the Settlement Authorities---Validity---Whole property in the present case, was transferred in favour of predecessor-in-interest of petitioners and Permanent Transfer Deed had been issued for the same and such transfer had attained finality with the conclusion of litigation between the contestants---Forms of the respondent had twice been rejected which orders also attained finality---Where Settlement Authorities had passed order for transfer of portion of the same property in favour of the respondent, by ignoring all such facts, such order of the Authorities was without jurisdiction, illegal and of no legal effect---Order of transfer of a portion of disputed property in favour of the respondent was set aside and civil petition was allowed in circumstances.

Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971; Bilqis Begum and others v. Fazal Muhammad and others 1987 SCMR 1441; Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi 'and others 1991 SCMR 1604 and Pehlwan Muhammad Nazir v. Abdul Hamid and others 1988 SCMR 1153 ref.

Rana Muhammad Sarwar for Petitioners.

Mian Dilawar Mahmood for Respondents.

Date of hearing: 8th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 402 #

2001 Y L R 402

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. ZANIB BIBI---Petitioner

versus

ELECTION COMMISSIONER, PUNJAB, LAHORE and another---Respondents

Writ Petition No.9452 of 2001, decided on 30th May, 2001.

Punjab Local Government Election Ordinance (V of 2000)---

----Ss. 3 & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Electoral Roll---Omission of name of the candidate' in Electoral Roll---Candidate had alleged that her name was not entered in the relevant electoral roll wherein names of all her family members were entered--Name of the candidate having not been entered as voter in any other electoral list for any other area, the Authorities were directed to enter the name of the candidate in the relevant electoral roll alongwith her other family. members--Nomination papers of the candidate would not be rejected on the ground that her name was not entered in the relevant electoral roll.

Syed Mumtaz Ali Shah Hamdani for Petitioner.

Fawzi Zafar, A.A.-G.

YLR 2001 LAHORE HIGH COURT LAHORE 403 #

2001 Y L R 403

[Lahore]

Before Jawwad S. Khawaja, J

Dr. FAZAL ILLAHI through Legal Heirs---Appellant

versus

Hakim GHULAM YASEEN through Legal Heirs---Respondent

Regular Second Appeal No.939 of 1967 heard on 15th December, 1999.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S. 100---Second appeal---Suit for possession---Lands owned by the parties were adjacent to that of each other---Grievance of the plaintiff was that the defendant had land in excess of his rights---Trial Court decreed the suit but Lower Appellate Court, on the basis of report of Local Commission, concluded that the plaintiff had already one Marla of land in excess of his ownership and the same was surrounded by boundary wall resultantly the suit was dismissed ---Validity--Mere fact that the disputed parcel of land measured three Marlas instead of five Marlas acquired by the' defendant was not material-- Where the plaintiff was in possession of land purchased, by him and the same was located within boundary wall constructed by him, High Court declined to interfere in the judgment passed by the Lower Appellate Court---Appeal was dismissed in circumstances.

Muhammad Javaid Iqbal for Appellant.

Ahmad Usman Khan for Respondent.

Date of hearing; 15th. December 1999

YLR 2001 LAHORE HIGH COURT LAHORE 409 #

2001 Y L R 409

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD MUSHTAQ and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.566 and Murder Reference No.209 of 1995, decided on 23rd April, 2001.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence--F.I.R. had been recorded after due deliberation and consultation---Deceased After receiving the fatal injury on his head was not in a position to make the statement--Medical evidence had fully contradicted the ocular account of occurrence---Presence of eye-witnesses on the spot was not established---Non production of another eyewitness by the prosecution at the trial had given rise to the presumption that had ,he been produced he would not have supported its case---Recoveries of weapons of offence being not stained with human blood were of no consequence---Prosecution version and defence version when put in juxtaposition, the story put forward by the accused seemed to be more plausible and convincing which had shattered the veracity of the prosecution version---Accused were extended the benefit of doubt and acquitted in circumstances.

S.M. Latif Khan Khosa forAppellant.

Ch Abdur Rashid Monir for the State

Sardar Mashkoor Ahmad and Ch. Muhammad Yaqoob Sabir for the Complainant.

Date of hearing: 23rd April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 414 #

2001 Y L R 414

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.4/J of 2001, heard on 24th April, 2001.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.121---Appreciation of evidence--Eye-witnesses who had got no enmity whatsoever against the accused had supported the prosecution case---Occurrence having taken place at 11 a.m. in broad daylight and the case being of single accused, no question of mistaken identity could arise--Accused had admitted to have caused injuries to the deceased but in a different way--Prosecution story when put in juxtaposition with the defence version seemed to be more plausible and convincing---Accused had failed to discharge the onus to prove the factum of "Ghairat " on the record as required by Art.121 of Qanun-e-Shahadat, 1984---Conviction and sentence of accused were upheld in circumstances.

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

----S. 302 (b)---Appreciation of evidence--Case of two versions---Principle---Where two versions are introduced in. a case, the same have to be put in juxtaposition and then it has to be seen as to which of them is more plausible and convincing.

Ch. Muhammad Ilyas Jhammat for Appellant.

Muhammad Anwar Tiwana for the State.

Date of hearing: 24th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 417 #

2001 Y L R 417

[Lahore]

Before Khawaja Muhammad Sharif, J

NASIR ABBAS ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.789 of 1996, heard on 13th April, 2001.

Penal Code (XLV of 1860)---

----Ss. 331 & 302---Payment of Diyat--Accused who had murdered the wife of his real brother had made a statement before the Sessions Court that he would pay the Diyat amount to the legal heirs of the deceased--Said brother of the accused during the trial had waived his right of Qisas against the accused, for the murder of his wife---Accused however, had not paid Diyat amount to the legal heirs of the deceased as directed by the Sessions Court in the impugned judgment--High Court ordered the release of accused from jail subject to his furnishing bail bond in the sum of Rs.1, 75,000 with two sureties in the like amount to the satisfaction of Trial Court and directed him to pay the Diyat amount to the minor sons and daughters and also to the father of the deceased in 36 instalments payable within three years on specified dates---In case of failure in payment of any one instalment accused was directed to be sent back to jail---Appeal was disposed of accordingly.

Kh. Muhammad Iqbal for Appellant (at State expenses).

Saleem Shad for the State.

Date of hearing 13th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 418 #

2001 Y L R 418

[Lahore]

Before Khawaja Muhammad Sharif, J

YOUNAS MASIH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.265-J of 2000, heard on 12th April, 2001.

Penal Code (XLV of 1860)---

----S.302(b)-- Appreciation of evidence--Manner in which the accused had made extrajudicial confession was not believable--Accused did not lead to the recovery of the dead body of the deceased---Nobody from the locality had been cited to have witnessed the recovery of the dagger which had been sent to the office of the Chemical Examiner after fifteen days without any proper explanation for the delay---Witnesses of recovery were police officials---Motive for the occurrence, had remained unproved---Witnesses were closely related to the deceased Case being of circumstances evidence the same should have come from an unimpeachable source leaving no room for any doubt, but the case was replete with doubts---Accused was acquitted on benefit of doubt in circumstances.

Muhammad Anwar Tiwana for Appellant (on State expenses).

Syed Ali Raza for the State, Date of hearing: 12th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 432 #

2001 Y L R 432

[Lahore]

Before Dr. Munir Ahmad Mughal, J

AMIR HUSSAIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.614 of 2000, heard on 30th March, 2000.

Penal Code (XLV of 1860)---

----Ss. 302 (b) & 302 (c)---Appreciation of evidence---Accused was proved on record to have murdered the deceased on having seen his wife in a compromising position with him on account of "Ghairat "---Conviction of accused under S. 302 (b), P. P. C. was consequently altered to S.302(c), P. P. C.' and his sentence of imprisonment for life was reduced to the sentence already undergone by him in circumstances.

Rana Muhammad Arshad and Sh. Muhammad Rahim for Appellant.

Mehr Muhammad Saleem for the State.

Date of hearing: 30th March, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 435 #

2001 Y L R 435

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD JILANI---Petitioner

versus

THE STATE and another---Respondents

Writ Petition No. 1049 of 2001, decided on 27th April, 2001.

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

----Ss. 447/430/437/440/148/149---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Order passed by Magistrate deleting S. 440, P.P.C. from the F.I.R. was set aside by Sessions Court in its revisional jurisdiction---Validity---Magistrate while sending the accused on judicial remand after examining the record directed S. 440, P. P. C. to be deleted from the F.I.R--Sessions Court on a revision petition having been filed by the complainant against the said order of the Magistrate accepted the same and set aside the impugned order regarding deletion of the offence under S.440, P. P. C. ---Held, the order passed by the Magistrate appeared to .be lawful and being an administrative order it could not be impugned by way of Revision before the Sessions Court---Order passed by Sessions Court was consequently declared to be illegal, void, without lawful authority and without jurisdiction--Constitutional petition was allowed accordingly.

Bahadur and another v. The State and others PLD 1985 SC 62; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304; Muhammad Siddique v. S.H.O., Sadar, Sialkot and 4 others PLD 1994 Lah. 407; Muhammad Ishaq Khan v. Abdul Hamid Khan and others PLD 1958 Azad J&K 42; Nasira Surriya v. Muhammad Aslam and- 7 others 1990 SCMR 12; Mst. Allah Rakhi v. Senior Superintendent of Police, Faisalabad and 3 others 2000 PCr.LJ 1576; Ghulam Shabbir v. The State 2000 PCr.LJ 1411; Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588; Dharam v. Emperor AIR 1938 Lah. 469; Uma Singh v. Emperor AIR 1933 Pat. 242 and 1899 Ratan Lal's Unreported Criminal Cases 521 (Bom.) ref.

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

----S. 167---Remand, grant of---Principles to be followed by the Magistrates enumerated.

The principles to be followed by the Magistrates in remanding the case, according to law were as under:--

"(1) During first 15 days, the Magistrate may authorise the detention of the accused in judicial custody liberally but shall not authorise the detention in the custody of the police except on strong and exceptional grounds and that too, for the shortest possible period.

(2) The Magistrate shall record reasons for the grant of remand.

(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned.

(4) After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety.

(5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/adjournment.

(6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C.

(7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted.

(8) The Magistrate shall not grant remand/adjournment in the absence of the accused.

(9) The Magistrate should avoid giving remand adjournment at his residence.

(10) The Magistrate shall give opportunity to the accused to raise objection, if any; to the grant of adjournment/remand.

(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.

(12) The Magistrate shall examine police file before deciding the question of remand.

(13) If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand/ adjournment.

(14) The Magistrate shall not allow remand/adjournment after 2 months (which is a reasonable time) of the arrest of the accused unless it is unavoidable.

(15) In case, complete challan is not submitted the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses.

(16) If the challan is not submitted within 2 months, the Magistrate shall report the matter to the Sessions Judge of the District and also bring the default. of the police to the notice of Superintendent of Police of the District.

(17) The Magistrate shall not grant remand mechanically for the sake of cooperation with the prosecution/police.

(18) The Magistrate shall always give reasons for the grant of remand and adjournment.

The Magistrates should realize that they are answerable and accountable to the High Court for the illegalities and irregularities done by them and that the High 'Court under section 439, Cr.P.C. is quite competent to examine the correctness of the orders passed by them and in case they violate the instructions given by High Court, serious action may be taken against them.

Ghulam Sarwar and another v The State 1984 PCr.LJ 2588 ref.

Sardar Khalid Zia for Petitioner.

Ch. Muhammad Aslam for Respondent.

Altaf Ibrahim Qureshi for the State

Date of hearing: 24th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 448 #

2001 Y L R 448

[Lahore]

Before Maulvi Anwarul Haq, J

Kh. IJAZ AHMAD and others---Petitioners

versus

D.R.O. and others---Respondents

Writ Petitions Nos.7972 and 80388 of 2001 decided on 21st May, 2001.

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

----Arts. 34 & 49---Press Notes ---Proof--Evidentiary value---Failure to produce person who had allegedly reported the event in the newspaper---Effect---Newspaper articles are not ordinarily admissible as evidence of facts stated therein.

Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. PLD 1976 SC 57 ref.

(b) Punjab Local Government Ordinance (V of 2000)---

----S. 14(d)---Qanun-e-Shahadat (10 of 1984), Art.164---Election---Qualification of candidate---General reputation of the candidate---Video recording---Proof of fact--Returning Officer relied on video tape wherein the candidate was shown to be attending a dance party in which he was showering money on the dancing girl--Neither the person was produced before the Returning Officer who had recorded the video, nor any affidavit of the person was produced---Such video film relied upon by the Returning Officer was seen in isolation by the Officer and nomination of the candidate was rejected on the basis of such evidence--Validity---Video film was not a piece of legal evidence and the same could not have been relied upon by the Returning Officer, therefore the order passed by the Officer was based on no evidence---High Court set aside the order of Returning Officer rejecting the nomination papers of the petitioner in circumstances.

Mohtarma Benazir Bhutto and another v. President of Pakistan PLD 1998 SC 388; Babu Muhammad Munir v. Appellate Tribunal of the Election Commission and others 1993 SCMR 2348; Sardar M. Jamal Khan Leghari v. Sardar Zulfiqar Ali Khan Khosa PLD 1997 Lah. 250; Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, NINA PLD 1976 SC 57; Maulana Ghulam Dastgir and 2 others v. Mrs. Benazir Bhutto 1991 CLC 571; Slier Muhammad v. The Crown PLD 1949 Lah. 511; Muhammad Ashraf Khan l green and another v. The State and another 1996 SCMR 1747 and Mst. Shakila Bano v. S.H.O., Police Station Model Colony, Malir, Karachi and another PLD 1995 Kar. 555 ref.

----Art. 75---Photograph---Proof---Procedure---Where photographer and the developer of the film with reference to negatives was not produced in the Court, such photograph could not have been admitted in evidence.

(d) Punjab Local Government Ordinance (V of 2000)---

----S. 14---Punjab Local Government Election Rules, 2000, R.76---Qualifications of candidate---Scrutiny of candidature--Proceedings, summary .in nature ---Effect--Where a candidate denies allegation made or raised against him by some objector or by Returning Officer, some legal evidence must be there---Summary inquiry does not mean that evidence which is otherwise not admissible can be used against a candidate.

Rana Mashhood Ahmad Khan for Petitioners.

Fawazi Zafar, A. A.-G.

S.M. Masood for Respondent. No.3.

YLR 2001 LAHORE HIGH COURT LAHORE 454 #

2001 Y L R 454

[Lahore]

Before Ch. Ijaz Ahmad, J

SHAHID HUSSAIN QURESHI---Petitioner

versus

MANAGER, SMALL BUSINESS FINANCE CORPORATION and

another---Respondents

Writ Petitions Nos.6702 and 5357 of 2001 heard on 4th May, 2001.

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

----Art. 199---Criminal Procedure Code (V of 1898), S. 491---West Pakistan Land Revenue Act (XVII of 1967), S.82(8)---Habeas corpus petition---Alternate remedy---Filing of appeal before Revenue Officer under S.82(8), West Pakistan Land Revenue Act, 1967---Scope Where the detenu had failed to avail the remedy provided under the relevant statute, habeas corpus petition under Art. 199 of the Constitution was not maintainable.

Akbari Begum's case NLR 1995 Cr.LJ 51; Imdad Hussain's case PLD 1974 Kar.485; Ghulam Muhammad's case PLD 1975 Kar. 118; Bari Ahmed's case 1991 CLC 273 and Ijaz Hassain's case 1994 CLC 275 ref.

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

----S. 82---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintain-ability---Final warrant of arrest, issuance of---Effect---Where the final warrant of arrest was issued for recovery of arrears of land revenue, High Court had no jurisdiction to go beyond that to find out whether the warrant of arrest was issued after fulfilling the legal requirements provided under West Pakistan Land Revenue Act, 1967, by issuing a notice or not---Constitutional petition was not maintainable in circumstances.

Ch. Noor Hussain's case 1983 PCr.LJ 442 ref.

----S.82---Criminal Procedure Code (V of 1898), S. 491---Constitution of Pakistan (1973), Art. 199---Habeas corpus petition--Maintainability--Final warrant of arrest, issuance of---Jurisdiction of High Court to declare the same illegal in exercise of Constitutional jurisdiction---Petitioner stood surety to the loanee who failed to repay the loan in due time---Authorities initiated recovery proceedings against the petitioner and issued final warrant of arrest---Petitioner was arrested in the process of recovery proceedings---Plea raised was that the arrest of the petitioner was without lawful authority and the same was illegal detention--Validity---When the warrant was issued in accordance with the provisions of West Pakistan Land Revenue Act, 1967, even in violation of the manner prescribed under the law, the same could not be declared illegal through collateral proceedings---Final warrant of arrest although issued in violation of the provisions of West Pakistan Land Revenue Act, 1967, the same was in accordance with law unless and until the same was set aside by the Competent Authority forum under the provisions of the West Pakistan Land Revenue Act, 1967---Habeas corpus petition was not maintainable in circumstances.

Pervez Akram's case 1993 MLD 828; Manzoor Ahmed's case PLD 1988 Lah. 627; Muhammad Akram Cheema's case 1984 SCMR 1047 and H.B.L. v. Asghar Ali 1999 YLR 123 distinguished.

Sabir Shah's case PLD 1994 SC 738 and Javed Iqbal's case 1987 PCr.LJ 681 ref.

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

----S. 82---Arrears of land revenue---Recovery of---Procedure---Authority: under the provisions of West Pakistan' Land Revenue Act, 1967, has discretion to adopt any mode of execution.

Makhdumzada Syed Hassan Mahmud' case PLD 1980 Kar. 37 ref.

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

----Art. 199---Constitutional petition---Bona fides of petition---Scope---Bona fides of a Constitutional petition have to be established to avoid abuse of the process of law.

Shaukat Ali's case 1972 SCMR 398 and Muhammad Sharif's case 1982 PCr. LJ 1247 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction is discretionary in character and one -who seeks equity must come to the Court with clean hands---Where the petitioner has not come to the Court with clean hands, High Court declined to exercise discretion in favour of the petitioner in circumstances.

Nawabzada Raunaq Ali Khan's case PLD 1973 SC 236 ref:

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

----Art. 25---Equality of citizens--Discrimination---Financial institutions under the directions of their superiors initiated proceedings for recovery through coercive measures from the people who had secured/obtained loan for the purpose of business or construction of houses or for the purchase of tractors and trolleys---Such loanees had to file Constitutional petitions but the people who had obtained huge loans from the financial institutions had not filed any such petition and possibility could not be ruled out that the financial institutions had not initiated proceedings against such persons---High Court directed the high officials to look into the matter personally and further directed to formulate policy to save the interest of financial institutions and to save the people by making policy so that the loanees might be able to discharge their liabilities in easy instalments---Act of the institutions to discriminate the loanees in such a manner was hit by Art. 25 of the Constitution.

M.A. S. Chughtai for Appellant.

Sardar Tariq Khan Dershik and Shahzada Mazhar for Respondents.

Date of hearing: 4th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 464 #

2001 Y L R 464

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Mst. BASHIRAN BIBI through Legal Heirs and another---Appellants

versus

Mst. CHOORHAN BIBI through Legal Heirs---Respondent

Regular Second Appeal No.366 of 1973, decided on 22nd December, 2000.

Civil Procedure Code (V of 1908)---

----S. 100---Second appeal---Re-appraisal of evidence in second appeal---Two Courts below after appraisal of evidence on record had thoroughly recorded finding of fact on material issues in the case---Oral evidence of the appellants stood belied by documentary evidence---Concurrent finding of fact based on evidence on record could not be interfered with in second appeal by High Court in absence of any misreading, non-reading and misinterpretation of evidence on record--High Court in exercise of its jurisdiction while deciding regular second appeal, would riot indulge in the re-appraisal of evidence that being the function of the Courts below---Regular second appeal could be decided on the basis of legal submissions and law points.

1991 SCMR 2126; PLD 1992 Lah. 366; PLD 1979 BJ 31; 1991 MLD 1742; T'LD 1958 Kar. 355; PLD 1955 FC 38 and Madan Gopal v. Maran Bepari PLD 1969 SC 617 ref.

Farooq Mahmood Kahloon for Appellants.

Sh. Naveed Shaheryar and Ch. Muhammad Sadiq for Respondent.

Date of hearing: 15th November, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 484 #

2001 Y L R 484

[Lahore]

Before Khawaja Muhammad Sharif, J

Qari MUHAMMAD YOUNAS --- Appellant

versus

THE STATE- Respondent

Criminal Appeal No.300 of 2000, heard on 14th May, 2001.

Penal Code (XLV of 1860)---

----S. 295-C---Criminal Procedure Code (V of 1898), S.196---Appreciation of evidence--Trial Court was not competent to take cognizance of the case as no complaint as ordained by S.196, Cr. P. C. had been 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---Accused had denied the allegation levelled against him---Complainant party and the accused party belonging to two rival religious groups had deep-rooted enmity between them and were also proceeded under Ss.107/151, Cr.P.C.---Prosecution evidence was based on hearsay evidence---No person from the members of the meeting in which the words in question were uttered by the accused, had been examined in the Court---Possibility of false implication of accused, therefore, could not be ruled out--Accused was acquitted in circumstances.

Khalid Naveed Dar for Appellant (at State expenses).

Muhammad Aslam Malik for the State.

Date of hearing: 14th May, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 491 #

2001 Y L R 491

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ILYAS. Appellant

versus

THE STATE Respondent

Criminal Appeal No.275 of 2000, heard on 20th April, 2001.

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

----S. 10(3)---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7(2)---Jurisdiction of Special Court---Validity---Words "child molestation" had been added in S.6 of the Anti-Terrorism Act, 1997, on 27-4-1999 vide Ordinance IV of 1999 which had to take effect from 24-2-1999---Occurrence had taken place on 4-5-1998 and the conviction was recorded on 28-2-2000---Special Court constituted under the Anti-Terrorism Act, 1997, therefore, had no jurisdiction to try the case---Conviction and sentence of accused were consequently set aside and the case was remitted back to Sessions Judge concerned to hold the trial himself and conclude the case within the specified period.

Khadim Hussain v. The State 1999 YLR 1817 ref.

Ch. Naseer Ahmad Bhutta for Appellant

Muhammad Hanif Khatana, Addl A.-G. with Ch. Nazir Ahmad for the State.

Date of hearing: 20th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 492 #

2001 Y L R 492

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

SUBTAIN KHAN alias LADU and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.541, 554, Criminal Revision No.330 and Murder Reference No. 191 of 1995, heard on 18th December, 2000.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence ---Sentence---Mitigating circumstance---complainant party as well as the accused party had not come forward with truth and he occurrence had not taken place as mentioned by them---Had the complainant party been armed with fire-arms, accused ought to have received some injuries---Father of accused was proved on record to be in possession of the land and either the complainant party had tried to disturb his possession or some other event had happened resulting into the occurrence in which one person had lost his 'life and others had received injuries---Conviction of accused was maintained in circumstances---Facts of the case, however, had created mitigating circumstance in favour of accused---Death sentence awarded to accused by Trial Court was converted into imprisonment for life accordingly.

1992 SCMR 2047 ref.

Ijaz Hussain Batalvi and Akhtar Ali Qureshi for Appellants.

Syed Mukhtar Hussain Sherazi for the State.

Rana Ijaz Ahmad Khan for the Complainant.

Date of hearing: 18th December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 498 #

2001 Y L R 498

[Lahore]

Before Shaikh Abdur Razzaq, J

IQBAL YOUSAF---Petitioner

versus

PROVINCE OF PUNJAB/PROVINCIAL GOVERNMENT OF PUNJAB through

Chief Secretary, Civil Secretariat, Lahore and 6 others---Respondents

Writ Petition No.996 of 2000, heard on 26th May, 2000.

Criminal Procedure Code (V of 1898)---

----S. 550---Constitution of Pakistan (1973), An. 199---Constitutional petition---Seizure of vehicle by police---Validity---Police Officer had taken into possession the vehicle in question on the ground that the Engine and Chassis numbers appearing in the Registration Book differed from the numbers given on the body of the vehicle---Report of the Motor Registration Authority and the affidavit of the original owner of the vehicle had proved beyond doubt that the vehicle in question was the genuine vehicle which had been purchased by the petitioner---Mere fact of some overwriting in the Chassis number and Engine number in the Registration Book being present did not make any difference and did not mean that some offence had been committed warranting the seizure of the vehicle under S.550, Cr.P.C., because the Chassis and Engine numbers present on the body of the vehicle tallied with the original Chassis and Engine numbers entered in the Registration Book as per report of the Motor Registration Authority--Proceedings initiated under. S.550, Cr. P. C. by the Authorities were consequently declared to be illegal and without lawful authority and the vehicle was ordered to be released forthwith to the petitioner--Constitutional petition was accepted accordingly.

Farhat Nawaz Lodhi for Petitioner.

Raja Saeed Akram, A.A.-G. for Respondents.

Date of hearing: 26th May, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 510 #

2001 Y L R 510

[Lahore]

Before Syed Jamshed Ali, J

PEER MUHAMMAD through Legal Heirs and 3 others---Petitioners

versus

PEER MUHAMMAD and 20 others---Respondents

Civil Revision No.2001 of 1986, heard on 6th April, 2001.

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 25---Specific Relief Act (1 of 1877), Ss. 8 & 42---Suit for declaration claiming title to the land---Jurisdiction of Civil. Court---Land owned by non-Muslim was mortgaged with possession to ancestors of the plaintiffs before the Independence and claim of mortgagors to redeem said land was extinguished by Court of competent jurisdiction before Independence---Title of said land after extinguishment of right to redeem, vested in mortgagees/predecessors of the plaintiffs as Muslim owners before the independence and said land would not form part of the compensation pool to be dealt with by the Settlement Authorities---Bar contemplated by S.25 of the Displaced Persons (Land Settlement) Act, 1958 could only be applied if it was shown that the Authorities had acted within the ambit of law---In absence of any specific order treating land in dispute as evacuee before 1-1-1957, Civil Court had the jurisdiction in the matter---Order allotting land in dispute in favour of defendants treating same as evacuee, was rightly set aside by Courts below.

Qamar Zaman and others v. Ejazi Begum and others 1997 MLD 2408; Nazeer Ahmad and others v. Ghulam Mehdi and others 1988 SCMR 824; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698 and Shaukat Hayat Jumani v. The Province of Sindh through Secretary, Rehabilitation Department and others 1991 SCMR 580 ref.

Bashir Hussain Khalid for Petitioners.

Mian Waheed Akhtar for Respondents Nos. 1 to 19.

Date of hearing: 6th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 514 #

2001 Y L R 514

[Lahore]

Before Maulvi Anwarul Haq, J

MASJID DARA ARIAN through Administrative, Masjid Committee through

Muhammad Ashraf---Petitioner

versus

MUHAMMAD ISLAM -Respondent

Civil Revision No.558 of 1987, heard on 26th April, 2001.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for possession and declaration---Rejection of plaint---Piecemeal trial---Trial Court rejected the plaint on preliminary issue of limitation and Appellate Court while deciding issue of limitation referred to matters touching the merits of the case instead of referring the facts pertaining to the preliminary issue of limitation and upheld finding of the Trial Court ---Validity--Entire proceedings conducted by Courts below stood vitiated as Courts had acted with material irregularities in exercise of their jurisdiction while ordering or insisting on piecemeal trial such practice was deprecated---Judgments of Courts below were set aside by High Court in exercise of its revisional jurisdiction and case was remanded to be decided afresh in accordance with law.

N.A. Butt for Petitioner.

Taki Ahmad Khan for Respondent

Date of hearing: 26th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 515 #

2001 Y L R 515

[Lahore]

Before Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

PROVINCE OF PUNJAB through Secretary, Irrigation and Power Department, Lahore and 2 others---Appellants

versus

GHULAM NABI through Legal Heirs and 11 others---Respondents

Regular First Appeal No.74 of 1995, decided on 23rd February, 2001.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18, 23, 24 & 54---Punjab Land Acquisition Rules, 1983, R.10(1)(iii)(c)--Acquisition of land---Determination of market value---Previous decisions in land acquisition cases were relevant in a subsequent case where the market value of land in the same neighbourhood was in issue---Order of Referee Court whereby market value of land in question determined by the Collector was enhanced taking into consideration the situation and potential of land, not suffering from any illegality or irregularity, and being eminently just and correct, could not be interfered with in appeal.

Sardar Abdur Rauf Khan's case 1991 SCMR 2164; Maqbool Ahmad Fateh Elahi's case 1992 SCMR 2342; Muhammad Iqbal's case 1992 SCMR 1245; Madan Mohan Burman v. Secretary of Estate for India 78 IC 557: AIR 1925 Cal. 481; Ram Ranjan Chuckerbutty v. Ram Narain Singh and others (1894) 22 IA 60; Bitto Kunwar's case (1897) 24 IA 10; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Luqman v. Yar Muhammad and 3 others 1985 CLC 2327 ref.

Alamgir for Appellant.

Khizar Abbas Khan for Respondents.

Date of hearing: 14th February, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 530 #

2001 Y L R 530

[Lahore]

Before Muhammad Farrukh Mahmud, J

BASHIR AHMAD- Petitioner

versus

THE STATE Respondent

Criminal Miscellaneous No.864/B of 2001 decided on 24th May, 2001.

Criminal Procedure (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Fatal shot was attributed to the co-accused who also raised Lalkara---Only a bruise was on the person of the deceased and no recovery had been effected from the accused who was found innocent by the Investigating Officer--Allegation levelled against the accused needed further probe and his case fell within the ambit of S. 497(2), Cr. P. C. ---Accused, in circumstances, was entitled to grant of bail.

Sahibzada Muhammad Ibrahim for Petitioner.

Atta Ullah Khan Tareen for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 533 #

2001 Y L R 533

[Lahore]

Before Bashir A. Mujahid, J

ZAFAR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.96/M in Criminal Appeal No.737 of 1996, decided on 25th May, 2001.

Penal Code (XLV of 1860)---

----Ss.308, 305(b), 310(3), 313(2)(a), 313 & 314---Government responsible for payment of Diyat when neither the accused nor his Wali had any property for realization of the same---Accused had served out his entire sentence and now he was only confined in jail for non-payment of Diyat---Inquiry conducted by the Trial Court had revealed that the accused or his Wali had no property--Government in absence of any other source for payment of Diyat was Wali for the minor offender and also on behalf of the legal heirs of the deceased according to law---Direction already issued to the State by the High Court for recovery of Diyat and its payment to the legal heirs of the deceased still held the field and had attained finality---Home Secretary, Government of Punjab, was consequently directed to ensure the compliance of the said direction for deposit of Diyat amount in the Trial Court after taking up the matter with the concerned quarter and the Authorities controlling "Baitul Maal" within a period of two months, failing which the Trial Court was directed to take necessary steps for the recovery and payment of Diyat by attachment/sale of State movable or immovable property 9 in accordance with law---Accused having served out his substantial sentence was released on bail in the mean time.

1999 SCMR 2652 and (Allama Alli-o-din Al-qasasni Jild Huftam Badia-ul-Shania Taleef) ref.

Dr. Riaz ul Hassan Gillani: Amicus curiae.

Syed Hassam Qadir Shah for Petitioner.

Muhammad Nasim Sabir Chaudhry, Addl. A.-G. and Miss Tasneem Amin for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 540 #

2001 Y L R 540

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL MAJEED---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.698/B of 2001, decided on 17th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3) & 16---Bail, grant of---Delay of 8 days took place in reporting the matter of alleged abduction of the complainant to the police by the father of the complainant--Prosecution had admitted that the other three accused who allegedly had facilitated the abduction of the complainant had been found innocent which had made the story of abduction to be false---As to where the complainant was confined was not mentioned and complainant also had not pointed out the place, village or city from where she had escaped and came back to the house of her father---Whether case against the accused was of Zina-bil-Jabr or simple Zina was yet to be determined/considered---Case against the accused needing further inquiry he eras entitled to grant of bail.

Arshad Ali Chohan for Petitioner.

Sardar Abdul Qayyum Khan for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 541 #

2001 Y L R 541

[Lahore]

Before Dr. Munir Ahmad Mughal, J

GHULAM HUSSAIN ---Petitioner

versus

DEPUTY COMMISSIONER/DELIMITATION OFFICER, DISTRICT MULTAN

and 4 others---Respondents

Writ Petitions Nos.976 and 1029 of 2001 decided on 3rd April, 2001.

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 3---Punjab Local Government Elections Rules, 2000, Rr. 9 & 10---Punjab Government Notification No. SOV(LG) 5-3/2000, dated 4-12-2000---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Local areas---Final list of wards--Objections---Power of Delimitation Officer, the Appellate Authority and the Chief Election Commissioner---Scope---Chief Election Commissioner and not the Delimitation Officer has been given the discretion under S.10(3), Punjab Local Government Elections Rules, 2000 that he may at any time, suo mote or on an appeal made in this behalf order correction of any clerical error or any erroneous insertion or omission in the final list.

Those objections when filed within a prescribed time were to be forwarded to the Appellate Authority on the date fixed for the purpose to decide the objection.

The Delimitation Officer under Rule 10 was bound to make such amendments, alterations or modifications in the preliminary list of electoral wards as may be required in the light of decisions of the Appellate Authority given on objections and/or Suggestions.

The bare perusal of the above ns of law shows that after incorporating the decisions of the Appellate Authority in the preliminary list of electoral wards, the Delimitation Officer shall publish in the manner as determined by the Chief Election Commissioner the final list of electoral wards within each union specifying the areas included in each such ward.

The contention that the Delimitation Officer has got powers to make any changes against the order of the Appellate Authority or in violation of decision of the appeal to the Appellate Authority is not legally sound as in that case the very purpose of making provision in the law for an Appellate Authority will become void.

Similarly, the contention on behalf of the Delimitation Officer that he has exercised the powers under some instructions by the Chief Election Commissioner is also not sound. It is the Chief Election Commissioner himself and not the Delimitation Officer who has been given the discretion under sub-clause (3) of Rule 10 that he may at any time, suo motu or on an application made in this behalf order correction of any clerical error or any erroneous insertion or omission in the final list. The law and rule are very clear on the point of the respective powers of the Delimitation Officer, the Appellate Authority and the Chief Election Commissioner.

Abdul Qadoos Khan Tareen for Petitioner.

M.R. Khalid Malik for Petitioner (in W. P. No. 1029 of 2001).

Muhammad Qasim Khan, Asstt. A.-G. and Khadim Nadeem Malik for Respondents Nos.6 to 8.

YLR 2001 LAHORE HIGH COURT LAHORE 547 #

2001 Y L R 547

[Lahore]

Before Muhammad Zafar Yasin, J

YAQUB HUSSAIN --- Petitioner

versus

Mst. HAMEEDA NARJIS alias SAFINA and another---Respondents

Civil Revision No.426/D of 1988, decided 10th April, 2001.

Islamic Law----

----Faith---DeterminationPlaintiff before Trial Court through reliable evidence of close relatives, as well as documentary evidence had rebutted the presumption namely that in Indo-Pak Sub-Continent every Muslim is a Sunni Muslim unless contrary was established, by proving that propositus was a Shia Muslim---High Court declined interference.

Pathana v. Mst. Wasai and others PLD 1965 SC 134 and Amir Ali v. Gul Shaker and others PLD 1985 Kar. 365 ref.

Pir Muhammad Asif Raft for Petitioner.

Tahir Mehmood for Respondents.

Date of hearing: 29th March, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 552 #

2001 Y L R 552

[Lahore]

Before Dr. Munir Ahmad Mughal, J

HASSAN MANSOOR --- Appellant

versus

THE STATE---Respondent

Criminal Appeal No.759 of 1997, heard on 24th May, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Appreciation of evidence---Medical evidence had totally negated the ocular testimony meaning thereby that the eye-witnesses had either not seen the incident or they had not deposed truly--Matter in either case had become highly doubtful---Burden in a case of capital punishment heavily lay on the prosecution to prove the guilt of accused beyond reasonable doubt---Magnitude of loss could not become a shield for the prosecution which had to stand on its own legs and discharge its liability in which it had failed---Bitter election enmity and cross-cases pending between the parties had shown the element of false involvement of accused in the case---Defence taken by accused from the very beginning, during the trial and in the arguments appeared to be more plausible---Accused were extended the benefit of doubt and acquitted in circumstances.

Mansoor Alamgir Qazi and Akram Qureshi for Appellant (in Criminal Appeal No.759 of 1997).

Masud Mirza and Bashir Abbas for Appellant (in. Criminal Appeal No.38/J of 1998).

Rana Naseem Sabir for the State.

Date of hearing: 24th May, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 568 #

2001 Y L R 568

[Lahore]

Before Mian Saqib Nisar, J

COCA COLA BEVERAGES PAKISTAN LIMITED---Appellant

versus

ABDUL HAMEED CHAUDHRY, PROPRIETOR, KHURRAM &

CO.---Respondent

First Appeal from Order No.34 of 2001, heard on 11th May, 2001.

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

---S. 182---Agent and principal--Determination---Arrangement between the parties was for the sale and purchase of the goods---Proprietary in the goods; once those were supplied to the buyer, passed to the buyer---Buyer, therefore, was not acting as an agent, rather was a favourite buyer of the seller who was assigned a particular area to further sell the products manufactured by the seller---Buyer, in circumstances, was not acting for or on behalf of the seller to bind the seller as the principal qua the persons to whom such product was sold.

Hope Prudhomme & Company v. Hamel and Horley Ltd. AIR 1925 PC 161; Messrs World Wide Trading Co. v. Sanyo Electric Trading Ltd. and another PLD 1986 Kar. 234 and Messrs Caltex Oil (Pakistan) Ltd., Karachi v. Sheikh Rehan-ud-Din PLD 1958 (W.P.) Lah.63 ref.

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

----S. 202---Scope and application of S. 202, Contract Act, 1872---Agency---Interest of buyer in the subject-matter ---Determination--Agency agreement between the parties is sine qua non to attract S. 202, Contract Act, 1872---Where the party was not an agent to the seller, rather was a favourite buyer, question that the buyer had any interest in the subject-matter of the agency, which could not be terminated by the seller would not arise.

----Ss. 12, 21, 54 & 56(f)---Specific performance of agreement ---Enforceability--Manufacturer (appellant) was simply selling its products to the buyer (respondent) purely on the sale/purchase basis, and even if there was any verbal agreement between the parties in this behalf, which had been terminated by the manufacturers, the buyer in law, could not seek the enforcement of such an agreement, in view of the explanation to S.12 read with S.21 of the Specific Relief Act, 1877---At the best, in circumstances, the buyer could claim the damages on account of ,illegal termination of the contract for the sale/purchase of the goods---Suit for specific performance by the buyer was not competent as per the provisions of S.54 read with S.56-F of the Specific Relief Act, 1877--Where a contract was not enforceable, there would arise no question for grant of a perpetual injunction---If the perpetual injunction could not be granted in law, no temporary injunction could be allowed to the party complaining against the breach of such a contract---Trial Court, in circumstances, had fallen in serious error in allowing the temporary relief to the buyer restraining the manufacturers from the disposal of their products in the area which was earlier assigned to the buyers.

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

----S. 55---Mandatory injunction, grant of--Conditions---Power to grant of mandatory injunction is to be exercised in very exceptional and rare circumstances, subject to the conditions laid down in S.55, Specific Relief Act, 1877, which requires that such relief can only be granted, where breach of an obligation is capable of specific enforcement by the Court---Where the agreement is not specifically enforceable relief of mandatory injunction cannot be granted---Principles.

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

----S.73---Civil Procedure Code (V of 1908), S.9---Suit for damages and compensation--Plaintiff was entitled to the relief only after he had established that the termination of arrangement of supply of the goods by the supplier to the plaintiff was in breach of the contract of the sale of goods and thus the plaintiff had suffered damages on account of that.

Ashtar Ausaf Ali for Appellant.

S.M. Masud and Muhammad Amin Shad for Respondent.

Date of hearing: 11th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 573 #

2001 Y L R 573

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD MUSHTAQ---Petitioner

versus

DISTRICT JUDGE, SIALKOT and 2 others-Respondents

Writ Petition No.3452 of 1998, heard on 6th December, 2000.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Application for amendment of the written statement---Validity---Court cannot allow the amendment of pleadings in routine but before allowing the amendment Court must see, that the application was bona fide; that no new or inconsistent plea was being set up and that allowing of amendment would not unnecessarily delay the decision of the suit---Principles.

An application for amendment of pleadings can be made at any stage of litigation but it is not to be allowed in routine. The Court must see whether the application is bona fide and whether any new or inconsistent plea is being set up and whether allowing of amendment would unnecessarily delay decision of the suit. The Courts should be liberal in permitting amendment of the pleadings which are necessary for determining the real matter in controversy but the application for amendment must be bona fide and that the defence already set up in the written statement cannot be allowed to be totally substituted nor its nature changed.

The power to amend the written statement can only be refused where the application is based on mala fides. The basic rule, no doubt, is that the defendants should not be allowed to make a new case and that the amendment of the written statement is ordinarily not to be allowed where the plaintiff has closed his evidence, however, the same can be allowed if the defendant has acted in good faith.

In the present case the narration of facts vividly reflected that the application for amendment was not bona fide and was calculated to cause further delay in decision of the suit. The defendant could not be permitted to set up a -new inconsistent. plea. He ought to have come out with whole truth when he had filed his written statement. If the facts narrated in the application for amendment were really true then these must have been present in the mind of defendant No.2 throughout the period of five years. Therefore, there was hardly any justification for him to have taken five long years to bring the same on the record by seeking amendment of the written statement. Hence the trial Court had rightly rejected the respondent's application for amendment of the written statement.

Tariq Mahmood Niazi v. Nadeem Afzal and another PLD 1996 Lah. 429 and Wareshin Khan v. Umar Daraz Khan PLD 1996 Pesh. 32 fol.

Taqi Ahmad Khan for Petitioner, Rana Nasrullah Khan for Respondents.

Date of hearing; 6th December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 581 #

2001 Y L R 581

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD YAR alias KALI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.351 of 1997, heard on 30th May, 2001.

Penal Code (XLV of 1860)---

----S. 302(6)/34---Appreciation of evidence---Guns recovered at the instance of accused and crime empties picked up from the spot were not sent to Forensic Science Laboratory for comparison---Motive for the occurrence as set up by the prosecution was based on suspicion---Medical evidence was in direct conflict with ocular testimony---Evidence of eye-witnesses who were closely related to the deceased and were chance witnesses needed strong corroboration which was not available on the file---Accused were found innocent during investigation and although the opinion expressed by the police was not a proof of the innocence or guilt of the accused, yet the factum of impact of such an information could not be discarded altogether--,Occurrence having taken place during dark hours of the night was not seen by anybody---Accused were acquitted on benefit of doubt in circumstances.

Modi's Textbook of Medical Jurisprudence and Toxicology, 21st Revised Edn., p.220; Muhammad Naeem alias Gogi v. The State 1990 PCr.LJ,1607; Ashiq Ali v. The State 1996 MLD 1484 and Criminal Appeal No.549 of 1998 ref.

Mead Yar Khan Doha for Appellants.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 30th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 590 #

2001 Y L R 590

[Lahore]

Before Mian Hamid Farooq, J

NAEEM ULLAH KHAN---Petitioner

versus

ABDUL MUNEEM KARRAK and 3 others---Respondents

Civil Miscellaneous No. 1/C of 2001 in Civil Revision No. 1680 of 1987, decided on 4th May, 2001.

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

----Ss.151 & 115---Application for restoration of revision petition dismissed for nonprosecution---Contention of the applicant was that dismissal of the petition resulted on account of the lack of service of notice which ought to have been served and the confusion was created on account of the material fact that the case was adjourned to the first week of November, but instead it was fixed during second week of October the same year therefore, the counsel who was out of city, could not appear and the petitioner was also unable to appear on the said date--Validity---Relevant cause list showed that the revision petition was fried wherein the name of the counsel was duly published which was a sufficient service---Counsel, about whom the applicant stated to have gone out of the city on the date fixed, had not filed any affidavit to the effect that he had not received any intimation supporting the contents of the applicant for restoration--- "Sufficient cause" for non-appearance/absence of the party as well as his counsel had to be adequately and sufficiently established within the parameters set up under the law---Revision petition was dismissed on 13-10-2000 whereas the application for restoration was filed on 2-5-2001 i. e. after the lapse of 6 months and 20 days which was extremely belated and was barred by time---No application for condonation of said delay was filed by the applicant---No sufficient cause for non-appearance of the petitioner and his counsel having at all been shown in the application no case for the restoration of revision was made out.

Mst. Taj Begum and another v. Sultan Khan and 12 others 1968 SCMR 193; Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore and another 1970 SCMR 76; Zulfiqar All v. Lal Din and another 1974 SCMR 162; Abdul Shahid and another v. Sh. Azim Bakhsh PLD 1981 SC 200; Muhammad Shafi v. Mst. Razia Ghafoor and 3 others 1989 SCMR 479; Rafiq Ahmad Khawaja v. Abdul Haleem 1982 SCMR 1229; Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited 1997 SCMR 926 and Saeed Ahmad v. Additional District Judge, Rawalpindi and 8 others 1997 MLD 175 ref.

(b) Maxim---

---- "Secundum allegata et probata "---Facts not raised in the pleadings cannot be argued.

Syed Kazim Bukhari for Petitioner

YLR 2001 LAHORE HIGH COURT LAHORE 594 #

2001 Y L R 594

[Lahore]

Before Nasim Sikandar and Jawwad S. Khawaja, JJ

Messrs ASIM FABRIC (PVT. LTD. through Chief Executive---Petitioner

versus

CUSTOMS, EXCISE AND SALES TAX (APPELLATE TRIBUNAL), LAHORE

and others---Respondents

C. A. No.4 of 2000, decided on 23rd April, 2001.

Customs Act (IV of 1969)---

----Ss. 56(1), 32 & 156(7)(l0A)---S.R.O. No.722(1)l89, dated 10-7-1989---Grant of Bond Manufacturing Licences on 6-1-1991--Collector on 23-12-1997 issued notice to the company requiring them to show cause as to why customs duties and other taxes leviable on machinery should not be recovered from them and penal action under S.56(1) of the Customs Act, 1969 be initiated---Objection of the company was that demand was timebarred under S.32 of the Act as S.32(3) of the Act was attracted in the cases which required issuance of a show-cause notice within 6 months of the relevant date which in the case was 30-9-1993 when the licence was cancelled by the Collector and no conditions prescribed in S.R.O. 722(1)/69, dated 10-7-1989 were violated during the subsistence of the licence---Collector, however, rejected the objections on the ground that customs duties and other taxes were conditionally exempted under S.R.O. 962(1)/90 read with S.R.O. 722(1)/89 which was subject to the condition that dues would be recovered if the beneficiaries failed to fulfil the conditions prescribed in the said notifications within a period of 7 years--Validity---Department had absolutely no legal or moral authority to issue show-cause notice after a lapse of more than 4 years of the cancellation of the licence as the moment the Collector cancelled the licences the amounts in question became payable by the licensee--Silence of the Department for over four years be on account of inadvertence, error or misconstruction deprived the Department of its powers to hound the licensee, who was justified in thinking the matter closed and alluding to the provisions of S.156(1)(10A) of the Customs Act, 1969 was not right--Principles.

Nigina Cotton Mills Limited v. Pakistan through the Secretary, Ministry of Finance, Islamabad and 4 others 1990 CLC 1337; Messrs Central Cotton Mills Ltd. v. Collector of Central Excise & Land Customs and 3 others 1992 CLC 841 and Messrs Qaid Cap House v. Collector of Customs and 2 others 1983 CLC 1736 ref.

Nazeer Ahmad Shami and Kh. Adnan Ahmad for Appellants.

Ch. Muhammad Hussain for Respondent.

Dates of hearing: 12th and 16th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 599 #

2001 Y L R 599

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUSHTAQ alias KHOJEE---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 1076 of 1996, heard on 16th May, 2001.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Crime empty secured from the place of occurrence had matched with the pistol recovered from the accused---Evidence of last seen, extra-judicial confession made by accused and the statements of "Wajtakkar" witnesses had established the case of prosecution connecting the accused with the commission of crime beyond any doubt---No enmity whatsoever between the accused and the prosecution witnesses could be pointed out on behalf of accused---Conviction and sentence of accused were maintained in circumstances.

Ata-ul-Mohsin Lak for Appellant.

Abdul Qayyum Anjum for the State.

Date of hearing: 16th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 605 #

2001 Y L R 605

[Lahore]

Before Syed Zahid Hussain and Nazir Ahmad Siddiqui, L

JAN MUHAMMAD SHAH and 4 others---Petitioners

versus

CUSTODIAN OF EVACUEE PROPERTY, LAHORE and 2 others---Respondents

Writ Petition No.230/R of 1980, heard on 15th March, 2001.

(a) Protection of Evacuee Property Rules, 1948---

-----R. 7(c)---Order passed by Deputy Custodian in respect of property which was more than Rs.5, 000 in value would not be effective and valid unless confirmed by the Custodian.

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

----S. 3(2)(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Claim of adverse possession by occupant of evacuee land---Validity---Custodian of Evacuee Property had found that the occupant of the property in question had no valid claim in the land in dispute on the basis of adverse possession---Such finding of the Custodian did not suffer from any illegality or jurisdictional error---Possession of such an occupant of the land was to be regarded only as trespasser to which S.3 (2) (b) of Pakistan (Administration of Evacuee Property) Act, 1957 would be applicable--High Court declined interference with order of the Custodian, in circumstances.

Akbar Ali and 9 others v. Assandas and 2 others PLD 1985 Kar. 117 distinguished.

The Custodian, Evacuee Property West Pakistan, Lahore v. Rais Ghazi Muhammad PLD 1973 SC 537; Muhammad Siddiq v. Additional Custodian of Evacuee Property South Zone, Karachi and 5 others 1984 CLC 1932; Jamal Shah and others v. The Custodian and others PLD 1981 SC 262; Shafaullah and 13 others v. Saifur Rehman and 7 others PLD 1991 SC 1106; Mirza Ghulam Hussain v. Ch. Iqbal Ahmed PLD 1991 SC 290 and Muhammad Aslam v. The Custodian of Evacuee Property and others C. A. No. 22 of 1966 ref.

Ch. Noor Elahi for Petitioner.

Azhar Jehangir Qureshi for

Respondents Nos.2 and 3.

Nemo for the Remaining Respondents.

Date of hearing: 15th March, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 612 #

2001 Y L R 612

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

MUHAMMAD KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.328 of 1996 Criminal Revision No.157 of 1996 and Murder Reference No. 135 of 1996, heard on 22nd May, 2001.

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

----S.302(a)---Appreciation of evidence ---Eyewitnesses had no reason or motive to falsely implicate the accused in the case---Close relationship of eye-witnesses with the deceased alone was not sufficient to discard or discredit their testimony---Occurrence had taken place within the vicinity of the village during broad daylight---Promptness with which the FI.R. had been recorded had strongly suggested that the complainant and the witnesses had seen the occurrence--Accused was nominated in the F.I.R. without any reservation---Presence of eye-witnesses at the place of occurrence was quite natural and their evidence inspired confidence which was materially supported by medical evidence---No mitigating circumstance was available in favour of accused for award of lesser punishment---Conviction and sentence of death awarded to accused by Trial Court were confirmed in circumstances.

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

----S. 302--- Sentence--- Motive--- Mere absence of motive by itself does not in any manner reduce the criminal liability of the accused and does not provide an extenuating circumstance for imposing lesser penalty.

Nazir Ahmad Ghazi for Appellant.

Aftab Farrukh for Respondent.

Ishfaq Ahmad Ch. for the State.

Date of hearing: 22nd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 618 #

2001 Y L R 618

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHARIF and 12 others---Petitioners

versus

OIL & GAS DEVELOPMENT CORPORATION, CLUB ROAD BRANCH, KARACHI through Chairman and 2 others---Respondents

Writ Petition No.7224 of 1997, heard on 18th April, 2001.

(a) Land Acquisition Act (I of 1894)---

----S. 18---Reference---Court hearing a reference under S.18, Land Acquisition Act, 1894 cannot go behind such a reference and cannot dismiss the same on the ground that an application submitted before the Collector seeking admission of a reference was barred by limitation.

Government of West Pakistan (now Government of N.-W. F. P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others PLD 1981 SC 516; Government of West Pakistan (now N.-W.F.P.) and 2 others v. Mst. Asmatun Nisa and 6 others PLD 1983 SC 109; Sindh Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others PLD 1960 (W.P.) Kar. 826; Collector of Karachi v. Haji Gola and others PLD 1965 (W.P.) Kar. 413; Muhammad Rafique Khan v. Province of Punjab through Collector, Bahawalpur and another 1992 CLC 1775 and Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabed and others PLD 1998 SC (AJ&K) 2,6 ref.

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

---Ss. 18 & 54---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Dismissal of reference on point of limitation--- Appeal ---Competence---Constitutional petition---Maintainability---Appeal is competent before High Court under S.54, Land Acquisition Act, 1894 from an award or from any part of the award of the Referee Court---Where, however, the Referee Court had dismissed the reference on the question of limitation and no award had been passed, no appeal against such judgment of Referee Court was competent before High Court and Constitutional petition before the High Court could be filed against such a judgment of the Referee Court.

Nafees-ud-Din and others v. The Secretary of State for India-in-Council and others (1927) IC 104, 397 and Mian Ghulam Mohy-ud-Din and another v. Secretary of State for India-in-Council through the Collector of Lahore (1914) IC 379 ref.

----S. 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal of reference by Referee Court on point of limitation---Referee Court in its judgment of dismissal of reference had also attended to the merits of the case and while deciding the relevant issue it had been found by the Referee . Court that other landowners (not party to the Reference) were entitled to be compensated at a specified rate instead of the one determined in the award---Referee Court, for arriving at the said conclusion had recorded detailed and otherwise satisfactory reasons for determining the compensation to which the landowners were entitled---All the other landowners had accepted the decision of the Referee Court and they had already received the said amount of compensation after the said judgment of the Referee Court---Neither the Collector Land Acquisition nor the Corporation for whom the land was acquired, had challenged the determination of proper compensation by the Referee Court before any higher Court or forum---Lands in question were not proved to be different from the lands of landowners who had received the compensation determined by the Referee Court---Held, there was no reason, in circumstances, to remand the matter to the Referee Court for decision as the merits of the case relating to land in question and compensation therefor stood practically determined in favour of the contesting landowners through the impugned judgment of the Referee Court--If the questions of limitation were taken , out of consideration then the landowners of the land in question were also entitled to the same amount of compensation as the other landowners whose lands had been acquired alongwith that of landowners of lands in question---Petitioners, however, agreed not to claim interest on the amount involved for the relevant period.

Rana Khurshid Ali for Petitioners.

Mian Amjad Ali for Respondent No. 1

Muhammad Qasim Khan, Asstt. A.-G. for Respondents Nos.2 and 3.

Date of hearing: 18th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 625 #

2001 Y L R 625

[Lahore]

Before Mian Hamid Farooq, J

GHULAM NABI---Petitioner

versus

BANKING COURT NO. II, GUJRAWALA aid 3 others---Respondents

Writ Petition No.7414 of 2001, decided on 14th May, 2001.

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

--- Art. 199---Constitutional . petition--Laches---Petitioner had slept over the matter and acquiesced to the impugned orders for a considerable period of almost one year--Delay of one year in challenging the said orders in the attending circumstances, was fatal to the Constitutional petition, moreso where the delay had not at all been explained either in the petition or by the counsel arguing the case---Such an unexplained delay definitely had effect on the grant of discretionary relief---Law of Limitation though was not applicable to Constitutional petition under Art. 199 of the Constitution yet the aggrieved party must show diligence in availing the remedy---Constitutional petition, in circumstances, was hit by the principles of laches and was liable to be dismissed.

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

----S. 128---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Surety's liability---Petitioner had stood as a guarantor for a financing facility availed by the principal debtor, which had not been repaid and, the Bank had to file a suit for recovery which was decreed as far back as on 8-4-1997, which decree had attained finality and the consequent execution proceedings were underway before the Banking Court--No money could be. recovered even in the execution proceedings, which commenced on 7-11-1997, most probably due to dilatory tactics adopted by the guarantor and the other judgment-debtor and the present Constitutional petition also appeared to be a futile effort in the same direction---Held, notwithstanding the factthat the petitioner did not avail any finance facility and was a guarantor only, the guarantor was now equally a judgment-debtor and under the law the decree could be executed against all or any of the judgment-debtors at the option of the decree-holder.

----O. XXI, R. 30---Contract Act (IX of 1872), Ss. 128 & 140---Decree for money--Surety's liability and rights on payment or performance---Scope.

Under section 128 of the Contract Act, 1872, the liabilities of the principal debtor and the surety are coextensive, therefore, the person, claiming himself to be a guarantor, cannot shirk from the liabilities incurred by him through the execution of the different documents and the rigours of the decree. It is, of course, the prerogative of the decree-holder to recover the decretal amount in any manner provided by law, from any or all of the judgment debtors, who have no right to suggest, from whom the decree is to. be satisfied. The guarantor being one of the judgment-debtors, is equally liable to pay the decretal amount and the Bank had validly and legally initiated the execution proceedings against the guarantor and the other judgment-debtors for realizing the decretal amount through the process of the Court. Needless to mention that in case the entire decretal amount or any portion thereof is recovered from the person being a guarantor/judgment-debtor, the guarantor is not, in any way, without remedy and in such-like circumstances section, 140 of the Contract Act adequately safeguards 'the interest of a guarantor/surety, who is made to pay any amount on behalf of principal debtor.

Under section 140 of the Contract Act, 1872 if a surety pays the amount in place of principal debtor, then upon payment, such a guarantor/surety acquires all the rights of a creditor' as against the principal-debtor: Therefore, in case decree is executed against the guarantor he will not in any way be prejudiced, as he will subsequently step in the shoes of creditor and can recover the amount from principal debtor, so realized by the Bank from the guarantor in execution of the decree.

Simultaneous execution of a decree from the person and property of a judgment debtor is permissible. Under the provisions of Order XXI, Rule 30, C.P.C. the executing Court is well within its powers to order execution simultaneously against the person and the property of all or any of the judgment-debtors.

Ordinarily, if two remedies are available to a decree-holder and he wishes to avail himself of both, the Court should, as far as possible, try and give him both the remedies.

Order XXI, Rule 30, C.P.C. permits simultaneous execution against the property as well as person of the judgment-debtor.

Syed Muhammad Hussain Shah v. Cooperative Society for Loans of Shahpur City AIR 1943 Lah. 166 and Nazir of the High Court of Sindh and Balochistan, Karachi v. Messrs Haji Muhammad Ishaq-Haji Dost Muhammad 1981 CLC 372 ref.

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

----O. XXI, R. 30---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Decree for payment of money---Decree for the recovery of money had been passed as far back as on 8-4-1997 for realization of which an execution petition had been filed on 7-11-1997 but on account of various devices adopted by judgment-debtors the desired result, could not be achieved by the decree-holder and money decree remained unsatisfied---Public money having been withheld by the judgment-debtor for such a long time without any legal justification, was not appreciable---Such a judgment-debtor seeking equitable relief but having not come to the Court with clean hands was not entitled to any discretionary relief.

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

----O. XXI, R. 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Simultaneous execution of decree against the. person as well as property---Discretion of executing Court---Scope---Such discretion has to be exercised by the Court on the basis of established judicial principles and not arbitrarily or in a fanciful way---Where the Banking Court had rightly exercised its discretion, while initiating simultaneous execution of decree, High Court declined interference under Art. 199 of the Constitution.

Qadeer Ahmad Rana for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 633 #

2001 Y L R 633

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

GHULAM MUHAMMAD ---Petitioner

versus

STATION HOUSE OFFICER, MALIKWAL and 8 others---Respondents

Writ Petition No. 19786 of 2000, decided on 18th May, 2001.

Penal Code (XLV of 1860)---

-----Ss. 440/148/149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petitioner had sought direction to the S.H.O. for the registration of a criminal case against the witnesses who during the investigation of the ruse had appeared in support of the accused, on the charge that they had made false statements before the police to establish their plea of alibi---Every accused had a right to take as much pleas as he wanted to take and could produce evidence in support thereof---If the evidence of the said witnesses during investigation was found to be false, any direction for initiation of criminal proceedings against them as prayed for at this stage was not proper as their statements were yet to be adjudged by the Trial Court ---Challan in the case had already been submitted before the Trial Court and if during the trial defence witnesses were produced by the accused and the Trial Court found them to have made false statements then the petitioners could ask the Trial Court to proceed against them---Constitutional petition was disposed of with the said observation.

Haji Miran Malik for Petitioner.

M. Bilal Khan, Addl. A.-G.

YLR 2001 LAHORE HIGH COURT LAHORE 635 #

2001 Y L R 635

[Lahore]

Before Nasim Sikandar and Jawwad S. Khawaja, JJ

MUHAMMAD JAVED and others---Petitioners

versus

CUSTOMS, CENTRAL EXCISE AND SALES TAX APPELLATE TRIBUNAL, LAHORE BENCH, LAHORE and others---Respondents

Customs Appeals Nos.31 and 11 of 1998, decided on 7th May, 2001.

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

----Ss. 168(2), proviso & 180---Seizute of things liable to confiscation---Issue of showcause notice before confiscation of goods or imposition of penalty---Extension of time--Procedure---Limitations---Extension granted without giving any reason in writing by a subordinate officer of the Collector fell short of the requirement of the law as contained in S. 168(2), proviso to the Customs Act, 1969---Mandatory provisions of S. 168(2) of the Act having not been complied with and issuance of notice under 5.180 of the Act after stipulated period being bad in law, the applicants immediately became entitled to the return of the goods seized as contemplated in S.168(2) of the Act---Principles.

Extension in the period for issuance of show-cause notice as contemplated in section 168 of the Act was not in accordance with law. Subsection (2) of section 168 provides that where goods are seized under subsection (1) and no show-cause notice is given under section 180 within a period of two months of the seizure, the goods shall be returned to the person from whose possession they were seized. The subsection contains a proviso that the said period of two months could be extended by the Collector "for the reasons to be recorded in writing".

In the present case the extension was granted without giving any reason in writing. Instead a subordinate officer was required to speak on behalf of the Collector to say that extension sought for had been granted by him. This exercise certainly fell short of the requirement of the law as contained in the aforesaid provisions. It will be noted that the law has prescribed 'a certain limitation. At the same time it has allowed jurisdiction to an officer to extend that limit for another period of two months where the matter directly pertains to seizure of goods liable to confiscation. The exercise of such power has, therefore, been made conditional to recording of reasons: The purpose to record a reason obviously is to make extension subject to judicial review if such reasons are fanciful or merely imaginary. It is not mere request of the Department which could be a good reason for the extension in period nor the power is to be employed to cover up inefficiency of an officer of the Department. When the law requires a thing to be done in a particular manner then that thing must be done in that particular manner or should not be done at all.

Proviso to section 168(2) of the Customs Act, 1969 was not - merely mechanical or of a procedural character. Mere subjective satisfaction on the part of the Collector in order of extension clearly fell short of the statutory requirement and such order of extension would be invalid and not sustainable.

In the present case no reason has been brought out in black and white muchness to say of its acceptability on the touchstone of legality as well as reasonability. Apparently the extension sought for was given by the Collector just for the asking. There is no statement of the kind nor it appears that the Collector was even conscious of the ground on which the extension was being sought for and then granted. The exercise of jurisdiction to extend statutory period of limitation being conditional to the recording of reasons was certainly a jurisdictional fact. That fact having been ignored by the Tribunal could very well be taken up for the first time before High Court. Since the mandatory provisions of section 168(2) were not complied with and since issuance of show-cause notice under section 180 after stipulated period was bad in law, the appellants immediately became entitled to the return of the goods seized as contemplated in subsection (2), section 168 of the Act.

Where mandatory conditions for exercise of jurisdiction by a Court, Tribunal or Authority were not fulfilled all proceedings which followed become illegal and without jurisdiction.

In the present case neither the order extending the period contained any reason nor the relevant file was produced to show that the concerned Collector had passed those orders after conscious application of mind and had reasons to do the same.

Abdul Zahir and another v. Director General, Pakistan Coast Guards PLD 1990 Kar. 412; The Collector, Central Excise and Land Customs and others v. Rahim Din 1987 SCMR 1840; S. Ch. Niaz Ahmed and others v. The State PLD 1978 Kar. 774; Haji Muhammad Jalal v. Ijaz Ahmed Bajwa, Assistant Director, Federal Investigation Agency, State Bank Circle, Lahore and 3 others 2000 MLD 837; Mushtaq Ahmed v. The State 1995 SCMR 510; Syed Muhammad v. State PLD 1990 SC 1176; Muhammad Khan v. The State 1994 SCMR 1543; Abdul Zahir and another v. Director-General, Pakistan Coast Guards and 4 others PLD 1990 Kar. 412; Mansib Ali v. Amir and 3 others PLD 1971 SC 124 and Haji Noor-ulHaq v. Collector of Customs 1998 MLD 65 ref.

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

----S. 196---Appeal to the High Court--Scope---Jurisdictional fact having been ignored by the Appellate Tribunal could very well be taken up for the first time before the High Court.

-----Ss. 168(2), 156(1)(89)(90), 2(5) & 196--Appeal to High Court---Seizure of things liable to confiscation---Appellate Tribunal found that the provisions of S. 156(1)(90) and not that, of S. 156(1) (89) were attracted to the case as wrongly applied by the Collector---Tribunal found that goods having not been seized in the border belt at the time where these were brought into Pakistan and were not notified under S.2 (5) of the Customs Act, 1969 the case was not hit by 5.156(1) (89) of' the Act---Validity---Mere factum of importation or exportation of certain goods being prohibited by law would not amount to smuggling---Goods in order to be "smuggled " must either be specified in Column 9 or be notified by the Federal Government under S.2(5) of the Customs Act, 1969---Principles.

The Appellate Tribunal stopped short of allowing full relief after finding that the case was not hit by clause (89) of section 156(1) of the Act. According to the Tribunal since admittedly the goods were not seized in the border belt at the time when these were brought into Pakistan coupled with the fact that they were not notified under section 2(a) of the Act, there was no doubt that the case was not hit by clause (89) of the said section. Also conclusions drawn by the Collector in the case were found far-fetched. On the other hand it is the case of the revenue that the appellants having failed to discharge the burden that goods in question were lawfully imported, the revenue was justified in holding them to have entered into Pakistan through an unauthorised route and, therefore, result of smuggling.

Mere factum of importation or exportation of certain goods being prohibited by law did not amount to smuggling. The goods in order to be "smuggled" must either be specified in Column 9 or be notified by the Federal Government under section 2(s)(a) as such.

The adjudication of order was palpably illegal on the face of it which was found to have ultimately been based on a ground which was not mentioned in the show-cause notice. In the present case admittedly appellants were confronted and were asked to show cause as to why proceedings against them should not be initiated and they be charged for the contravention of the provisions under section 156(1), 89, 157 and 78 of the Customs Act, 1969 read with section 3(1) of the Imports and Exports (Control) Act, 1950. The provisions confronted being different from the one which were rightly found to be applicable in the case by the Tribunal all superstructure based upon show-cause notice must fall to the ground. The Tribunal having so concluded certainly ought to have made a similar direction which they failed to do.

As for the factual controversies with regard to the goods seized under section 196 of the Act it is only a question of law on which an appeal lies to Court. The legal issues having been found in favour of the appellants they must succeed. Their appeal shall accordingly be accepted while that of the Department, for similar reasons shall be dismissed.

S. Ch. Niaz Ahmed v. The State PLD 1978 Kar. 774 ref.

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

----S. 196---Appeal to High Court ---Scope--Only on a question of law appeal lies to the High Court.

Mian Abdul Ghaffar and Mian Nazir Azhar for Appellants.

Abdul Karim Malik, Legal Advisor, Customs for Respondents.

Date of hearing: 23rd April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 643 #

2001 Y L R 643

[Lahore]

Before Ch. Ijaz Ahmad, J

FAIZ AHMAD TARARH---Petitioner

versus

MANAGER, SMALL BUSINESS FINANCE CORPORATION, and 2 others---Respondents

Writ Petition No.8943 of 2001, decided on 25th May, 2001.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition--Respondents had sanctioned loan in favour of the original loanee on the guarantee of the petitioner who had failed to repay the loan and the respondents had initiated proceedings against the petitioner for recovery of the said loan---Grounds taken by the petitioner in the Constitutional petition, .even if accepted in toto, would make the matter one of factual controversy---High Court had no jurisdiction to resolve the disputed question of fact in its Constitutional jurisdiction---Even otherwise, petitioner had more than one alternate remedies to approach the respondents or to agitate the matter before the higher Authorities---Constitutional petition, thus, was not maintainable and the same was disposed of accordingly---Respondents, however, in the interest of justice and fair play were restrained to take any action against the petitioner till the specified date to enable him to avail proper remedy under the law.

Muhammad Younas case 1993 SCMR 618 ref.

Haji Miran Malik for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 644 #

2001 Y L R 644

[Lahore]

Before Mian Nazir Akhtar, J

GHAZANFAR ABBAS ---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, JHANG and 3 others---Respondents

Writ Petition No. 193 of 2001, decided on 16th January, 2001.

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

----Art. 199---Civil Procedure Code (V of 1908), S.100---Constitutional petition--- Judgments at variance---Contention of the petitioner was that since judgments of the Courts below were at variance, therefore, petition was to be admitted as a matter of course---Validity---Such rule of practice might be relevant qua regular second appeal but could not be made applicable to the exercise of jurisdiction under Art. 199 of the Constitution.

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

----S. 100---Second appeal---Scope---Finding of fact in appeal at variance with findings of Trial Court---Such finding recorded by First Appellate Court was to be preferred unless it was not supported by evidence on record or was reached by ignoring or misreading material evidence or no logical basis existed for differing from finding of Trial Court.

Madan Gopal and 4 others v. Maran Bepari PLD 1969 SC 617 ref.

----Art. 199---Constitutional petition--Maintainability---Forming of another view on reappraisal of evidence---Effect---Mere fact that another view could also be formed by High Court, the same was not sufficient to justify admission of Constitutional petition for regular hearing---Where the order suffered from some jurisdictional defect or was without lawful authority and was of no legal effect, Constitutional petition , was maintainable.

Islam v. Mukhatar Ahmad and others PLD 1978 Lah. 994, Munawar v. Razia Begum and others PLD 1979 Lah. 300, Allah Din v. Habib PLD 1982 SC 465; Alloo v. Sher Khan and others PLD 1985 SC 382; Riasat Ali and others v. Rahim Bakhsh and others 1992 CLC 2193 and Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 SCMR 1233 ref.

(d) Practice and procedure----

---- Finding of fact recorded by an Appellate Court is ordinarily to be preferred.

(e) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---Nikah---Non-registration Of--Effect ---Nikah even if not registered under the law remains valid.

(f) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Nikah, non-registration of---Dispute was regarding validity of Nikah---Petitioner claimed to be husband of respondent on the basis of a registered Nikahnama---Respondent denied the fact of Nikah with the petitioner and stated to be wife of some other person-- Statement of the respondent (lady) was supported by evidence of her father---Effect-- Where there was no material elicited to discredit testimony of the respondent High Court declined to interfere with the findings of fact recorded by Lower Appellate Court, as the same were based on proper appraisal of evidence and sound reasoning---Petition was dismissed in circumstances.

Mrs. Nasira Iqbal for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 651 #

2001 Y L R 651

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RASHID ---Petitioner

versus

SMALL BUSINESS CORPORATION, LAHORE and 2 others---Respondents

Writ Petitions Nos.8995, 8950 and 9003 of 2001, decided on 25th May, 2001.

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

----Art. 199---Constitutional petition--Agreement, enforcement of ---ValidityAgreement cannot be enforced through Constitutional petition.

Mumtaz Masood's case 1994 SCMR 2287 ref.

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

----Arts. 199 & 203-G---Constitutional petition---Interest---Declaring interest against Injunctions of Islam---High Court under the provisions of Art. 203-G of the Constitution has no authority to declare the charge of interest against the Injunctions of Islam.

Muhammad Ramzan's case 2000 CLC 158 ref.

----Art. 199---Constitutional petition ---Show cause notice---Constitutional - petition is not maintainable against show-cause notice.

Shagufta Begum's case PLD 1989 SC 360 ref.

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

----Art. 199---Constitutional petition--Maintainability---Disputed questions of law cannot be resolved by High Court in Constitutional jurisdiction, under Art. 199 of the Constitution.

Muhammad Younas Khan's case 1993 SCMR 618 ref.

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

----Art. 199---Constitutional petition--Alternative remedy, being available ---Effect--Where petitioner had alternate remedy available to him under law, Constitutional petition was not maintainable.

Muhammad Ismail's case PLD 1996 SC 246 ref.

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

----Art. 4---Right of individual to be dealt with in accordance with law---Recovery of loan by financial institutions---Proceedings against guarantors instead of the original loanees---Validity---Authorities were not acting in accordance with law and the act was in violation of Art. 4 of the Constitution.

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

----Arts. 199 & 4---Constitutional petition--Maintainability---Right of individuals to be dealt with in accordance with law---Recovery of loan by the financial institutions--Proceedings against guarantors---Petitioners stood surety to the loanees who obtained loan and failed to repay the same in due course of time---Authorities initiated proceedings against the petitioners/guarantors--Validity ---High Court directed the financial institutions and its functionaries to apprehend the original loanees and the institution should have taken action against the sureties or guarantors in case of non-satisfaction of the loan money---Where no proceedings were initiated against the original loanees, such fact had brought the case in the area that the public functionaries were not acting in accordance with law---Petitioners were directed to approach the Authorities for redressal of their grievance---Petition was disposed of accordingly.

Muhammad Aslam Khaki's case PLD 2000 SC 225 and Mehmood-ur-Rehman's case PLD 1992 FSC 1 ref.

Muhammad Rashid Chaudhry for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 659 #

2001 Y L R 659

[Lahore]

Before Amir Alam Khan and Maulvi Anwarul Hag, JJ

AL-SHAMS APPAREL (PVT.) LTD. and 4 others---Appellants

versus

MUSLIM COMMERCIAL BANK LTD. through Chief Manager and Office Incharge---Respondent

First Appeal from Order No. 56 of 2000, heard on 19th April, 2001.

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

----Ss. 9 & 12---Ex parte decree, setting aside of---Notice through Press publication--Failure to give certificate issued by the Management of newspaper to the effect that notice under postal cover was sent to the appellant---Application for setting aside ex parte decree was dismissed by Banking Court on the ground that the notice was duly issued in the name of the appellant and the same was also published in the newspaper--Contention of the appellant was that her address in the plaint was not correct and no notice was delivered to her either by post or under postal., cover by the newspaper Management---Validity---Where neither any such certificate was produced by the management of the newspaper in which the notice was issued, nor the notice could have been served upon the appellant as her address was not proper in the plaint, appellant was not served in any manner prescribed by law in the course of the suit filed by the respondent-Bank in order to enable the appellant to seek leave to defend the suit---Order of Banking Court was set aside.

Muhammad Waheed Akhtar Mian for Appellants.

Hassan Nawaz Makhdoom for Respondent.

Date of hearing: 19th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 661 #

2001 Y L R 661

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HAYAT --- petitioner

versus

AHMAD SHER and 34 others---Respondents

Civil Revision No.1746/D of 1985, heard on 23rd April, 2001.

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

____S. 21---Pre-emption suit ---Maintainability---Ex pane decree---Judgment passed by Supreme Court in Said Kamal Shah's case reported as PLD 1996 SC 360--Applicability----If before the target date even ex parte decree was passed the pre-emptor was not debarred to have the case adjudicated in accordance with the law applicable. before the said date---Case was decided under the provisions of Punjab Pre-emption Act, 1913.

Abaid-ur-Rehman and others Mid and others 1999 SCMR 201 and Said Kamal Shah's case PLD 1986 SC 360 ref.

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

----S. 21---Civil Procedure Code (V of 1908), S.115---Pre-emption suit---Jurisdiction of Trial Court---Setting aside of decree passed on consenting statement---During the pendency of pre-emption suit the sale was set aside in another suit declaring the transfer as without consideration---Trial Court had earlier passed an ex paste decree but later on when the sale mutation was set aside in another suit in which the pre-emptor was not a party the suit filed by the pre-emptor was dismissed by the Trial Court---Appellate court dismissing the appeal affirmed the findings of the Trial Court---Validity---Such decree passed during the pendency of suit filed by a pre-emptor could be declared by a Court trying the suit to be ineffective qua the suit for pre-emption ---High Court in its revisional jurisdiction reversed the findings recorded by Appellate Court and set aside the judgments and decrees passed by both the Courts below---Suit filed by the pre-emptor was decreed in circumstances.

Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426; Ghulam Tayyib v. Shahro Khan and others PLD 1962 (W.P.) BJ 1; Munir Hussain v. Muhammad Shaft and another 1981 CLC 1712 and Kamir and 2 others v. Mst. Shamim and 4 others 1994 MLD 2139 ref.

---- Waiver or estoppel ---Non-suiting, of Pre-emptor---Proof---Statements of few witnesses are not enough to non-suit the pre-emptor on the ground of waiver and estoppel.

Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133; Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Abaid-ur-Rehman and others v. Muhammad and others 1999 SCMR 201 ref.

Ch. Khurshid Ahmad for Petitioner.

Muhammad Ismail Qureshi end Sh. Naveed Sheharyar for Respondents.

Date of hearing: 23rd April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 664 #

2001 Y L R 664

[Lahore]

Before M. Naeemullah Khan Sherwani, J

Mst. MUKHTARAN BIBI---Petitioner

versus

S.H.O. and others---Respondents

Writ Petition No.4789 of 2001, decided on 26th March, 2001.

Criminal Procedure Code (V of 1898)---

----S. 154---Police Act (V of 1861), S.29---I Penal Code (XLV of 1860), 5.182--Constitution of Pakistan (1973), Art.199--Constitutional petition---Registration of F 1. R. ---Respondent S. H. O. had allegedly refused to register FLR. on behalf of the petitioner regarding certain cognizable offences alleged to have been committed against her---Negligence or refusal by the Police Officer competent in the matter to register the F.LR. would expose him to action under S.29 of the Police Act, 1861---Police is under an obligation to register the case under 5.154, Cr. P. C. ---Excessive and unwarranted delay in registering the cases could cause adverse effect on the case itself---Copy of the Constitutional petition alongwith Annexure was ordered to be transmitted to the respondent Police Officer with the direction to look into the matter personally, call both the sides to the police station to know actual state of affairs and if accusations were found to be correct, then to proceed further in the matter as envisaged by the relevant provisions of law---Respondent like an upright, straightforward, efficient laborious and impartial Police Officer Would by himself adjudge the desirability of registration of the case and act to ensure justice to both the sides---However, if the information furnished by the petitioner was found to be false, then provisions of 5.182, P.P.C. could be availed by the Police Officer---Constitutional petition was disposed of with the said directions.

Syed Zafar Abbas Mashhadi for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 674 #

2001 Y L R 674

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

NAZIR --- Appellant

versus

THE STATE---Respondent

Criminal Appeal No.549 of 1998, heard on 23rd May, 2001.

Penal Code (XLV of 1860)---

----S. 302 (c)---Appreciation of evidence--Only allegation against the accused was that of raising "Lalkara" and making ineffective firing alongwith his other co-accused who had been acquitted by the Trial Court---Main role of having caused the death of the deceased by firing with a rifle was attributed to the principal accused who was an absconder in the case---Eye-witnesses were not only closely related to the deceased, but they had deep-rooted enmity with the accused and their statements having been disbelieved by the Trial Court qua two co-accused, the same could not be relied upon in respect of accused without corroboration which was lacking---Neither any weapon of crime was recovered from the accused, nor any empty was found lying on the spot to show that the weapon allegedly carried by the accused was used during the occurrence---Medical evidence did not lend any corroboration to the prosecution version, rather it contradicted the same---Claim of prosecution about the possession of the complainant party over the land in dispute was not supported by any documentary evidence on the file---Impact of the police opinion regarding innocence of all the accused in the case could not be discarded altogether---Accused was acquitted on benefit of doubt in circumstances.

Muhammad Naeem alias Gogi and others v. The State 1990 PCr.LJ 1607; Zulqarnain v. The State PLD 1994 FSC 34; Ashiq Ali v. The State 1996 MLD 1484; Atta Muhammad and another v. The State 1995 SCMR 599; Muhammad Riaz v. The State 1996 PCr.LJ 150 and Ashiq Ali v. The State 1996 MLD 1484 ref.

Ch. Muhammad Asif Ranjha for Appellant.

Muhammad Saleem Shad for the State.

Date of hearing: 23rd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 679 #

2001 Y L R 679

[Lahore]

Before Tassaduq Hussain Jilani, J

IMTIAZ ALI SHAH---Appellant

versus

MUHAMMAD ALI and 6 others---Respondents

Regular Second Appeals Nos.100 and 101 of 1988, heard on 26th March, 2001.

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

----S. 22---Pre-emption money (Zar-ePanjum), deposit of---Extension of time by Trial Court---Validity---Trial Court has discretion to grant extension qua depositing Zar-e-Panjum (pre-emption money)---Where defendant has been served, the extension has to be allowed after hearing the defendant.

Malik Barkat Ali Dogar v. Muhammad Shad and others PLD 1990 SC 60 and Amir Ali v. The Additional District Judge, Jhang 1984 CLC 3372 ref.

(b) Appeal---

---- Re-opening of matter---On filing of appeal, it is duty of Appellate Court to decide the issues raised, as the entire matter reopens.

AIR 1938 Mad. 357; 1988 SCMR 1996; 1996 SCMR 336; 1995 SCMR 192; Malik Barkat-Ali Dogar v. Muhammad Shafi and others PLD 1990 SC 60; PLD 1986 SC 150; PLD 1980 Lah. 110; 1972 SCMR 296; Sharaf-ud-Din and others v. Ghulam Sabri and others 1980 CLC 108; PLD 1984 SC 289; 1977 SCMR 359; Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690; AIR 1934 Pesh. 3 and The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1 ref.

----Question of law---Law point not raised--Duty of Court---Whether or not a party had taken a plea on a question of law, Court cannot abdicate its duty to apply correct law in a given situation.

Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner 1972 SCMR 359 and Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690 ref.

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

----Ss. 21 & 22---Civil Procedure Code (V of 1908), 5.100---Second appeal ---Zar-ePanjum (pre-emption money), deposit of--Delay of one day in deposit of same ---Preemptor was granted extension for deposit of Zar-e-Punjum (pre-emption money) but he failed to deposit the same in time extended by the Trial Court---Delay was ignored by the Trial Court and the suit was decreed---Lower Appellate Court allowed the appeal and dismissed the suit on the ground that the money was not deposited in time ---Validity--Judgment passed by the Appellate Court was in accord with evidence on record---Where no substantial question of law or no material issue of law had been left undecided and no substantial error or defect was pointed out, High Court refused to interfere with the judgment passed by First Appellate Court in second appeal---Second appeal was dismissed in circumstances.

1988 SCMR 1996; 1996 SCMR 336; 1995 SCMR 192; PLD 1996 SC 150; PLD 1980 Lah. 110; 1972 SCMR 296; Sharaf-udDin and others v. Ghulam Sabri and others 1980 CLC 108; PLD 1984 SC 289; Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner 1977 SCMR 359; Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690; AIR 1934 Pesh. 3; PLD 1974 SC 134; PLD 1957 Lah. 92; 1997 CLC 1114; 1992 SCMR 1459; 1970 SCMR 169; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Alloo v. Sher Khan and others PLD 1985 SC 382; Mst. Choori v. Ghulam Hussain 1978 SCMR 404 and Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760 ref.

Ch. Imdad Ali Khan for Appellant.

Ghazanfar Ali Sheikh for Respondents.

Date of hearing: 26th March, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 694 #

2001 Y L R 694

[Lahore]

Before Muhammad Asif Jan, J

Sayed MUHAMMAD RAZA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1945/B of 2000, decided on 23rd May, 2000.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11--Bail ---Accused was not alleged to have committed Zina with the alleged abductee--No kidnapping, abduction or enticement within the meaning of S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the accused, prima facie, seemed to have taken place--Three witnesses closely related to the complainant were stated to have seen the abductee going in the company of accused without raising any hue and cry, but strangely enough they did not make any resistance in the matter---Case against accused, in circumstances, needed further inquiry as envisaged by S.497(2), Cr.P.C. and he was admitted to bail accordingly.

Syed Zafar Abbas Mashhadi for Petitioner.

Maqbool Ahmad Qureshi for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 695 #

2001 Y L R 695

[Lahore]

Before Ijaz Ahmed Chaudhry, J

ABDUL RAZAQ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.21 of 1998, heard on 16th May, 2001

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence ---Eyewitnesses being related to the deceased as well as to the accused were not interested witnesses and they were not even inimical to the accused---Presence of eye-witnesses at the spot at the relevant time was natural---Ocular account of occurrence did not suffer from any contradiction or improvement on major points and the same was trustworthy and confidence inspiring---Recovery of blood-stained weapon of offence from the accused about which the report of Chemical Examiner and that of Serologist were positive had supported the ocular testimony---Defence version was not taken by the accused immediately after his arrest, nor it was established by him on record during trial, which even otherwise was not plausible and was an afterthought--Conviction and sentence of accused were maintained in circumstances.

Ch. Hafeez Ahmad for Appellant.

S.D. Qureshi for the State.

Date of hearing: 16th May,. 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 701 #

2001 Y L R 701

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. LATIFAN BEGUM and another---Petitioners

versus

NISAR AHMAD---Respondent

Civil Revisions Nos.113 and 114 of 1990, heard on 23rd January, 2001.

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

----S. 2(g)---Void agreement---Husband executing agreement on behalf of his wife--Validity---Where the husband without authority from the wife entered into an agreement, the same had no validity and was not binding on wife.

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

----S. 8---Recovery of possession of immovable property---Agreement to sell regarding half portion of suit property by husband---Denial of possession of remaining half portion---Validity---Owner (wife) could not be estopped from claiming possession of her property on the basis of agreement to sell by her husband---Contention was that husband of the lady executed sale agreement in favour of another person regarding other half of the house of the husband and the lady executed sale-deed in his favour and thus, she was estopped from claiming possession of her house---Under no principle of law or equity could a lawful owner be estopped from obtaining possession of his/her property on the basis of agreement to sell regarding some portion of the property.

----S. 53-A---Part performance---Protection of S.53-A of Transfer of Property Act, 1882---Pre-conditions enumerated.

Following conditions must be met before a person can be held entitled to protection of section 53-A, Transfer of Property Act, 1882:

(1) There should be a contract by a person to transfer for consideration of an immovable property.

(2) The contract must be in writing signed by him or on his behalf.

(3) The writing should be such from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; and

(4) The transferee must have in part performance of the contract taken possession of the property or the transferee, being already in possession, continue in possession in part performance of the contract and has done some act in furtherance thereof.

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

----S. 8---Suit for recovery of possession of immovable property---Agreement to sell regarding half portion of suit property--Defendant was holding possession of disputed portion on the basis of agreement to sell executed by husband of the plaintiff--Husband of the plaintiff had no authority to execute any such agreement---Trial Court decreed the suit but the Appellate Court dismissed the same---Validity---Appellate Court had acted with material irregularity in exercise of its jurisdiction while passing the judgment and decree---High Court in its revisional jurisdiction had set aside the judgment and decree passed by Appellate Court and that of the Trial Court was restored.

Shamim Akhtar v. Muhammad Rasheed PLD 1989 SC 575 ref.

Ch. Aamir Rehman for Petitioners.

Nemo for Respondent.

Date of hearing: 23rd January, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 707 #

2001 Y L R 707

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAKEEL ASLAM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 152 of 1997, heard on 31st May, 2001.

Penal Code (XLV of 1860)---

----S. 193---Appreciation of evidence---No misreading of evidence on record by the Trial Court was pointed out so as, to justify. a contrary view---Contention that the accused had not been given any opportunity of hearing was devoid of force as a show-cause notice, was given to him to which he had submitted a detailed reply---Accused even in High Court was not in a position to show the original discharge slip to controvert the report submitted by the Medical Superintendent of the concerned hospital--Conviction and sentence of accused were upheld in circumstances.

Justin Gill for Appellant.

Mian Altafur Rehman for the State.

Date of hearing: 31st May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 708 #

2001 Y L R 708

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

RIAZ and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.509 of 1988, heard on 6th June, 2001.

Penal Code (XLV of 1860)----

----S. 302---Appreciation of evidence---Long standing enmity between the parties was admitted---Bye-witnesses being closely related to the deceased could not be relied upon unless corroborated by some independent source---Statements of eye-witnesses were not only discrepant inter se but were also contradicted by medical evidence and did not inspire confidence---Conduct of prosecution witnesses at the place of occurrence was unnatural and unbelievable and had they been present there they could not be spared by the accused being their enemies---Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

Miss Iram Sajjad Gul for Appellant (on State expenses).

Jariullah Khan for the Complainant.

Muhammad Anwar. Tiwana for the State, Date of hearing: 6th June, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 715 #

2001 Y L R 715

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MUHAMMAD ASGHAR---Petitioner

versus

MUHAMMAD RIAZ and others---Respondents

Criminal Revision No.286 of 1992, heard on 4th June, 2001.

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

----S.302/34---Criminal Procedure Code (V of 1898), S.439---Sentence, enhancement of--Trial Court after believing the prosecution evidence and the material particulars had gone astray in not recording the sentence of death against the accused and felt contented with the sentence of imprisonment for life awarded to them---Testimony of eye-witnesses was iii absolute consistency with the medical evidence---Defence set up was terribly thin and tentative in nature failing to create any dents in the prosecution case, rather the statements of accused recorded under 5.342, Cr. P. C. had bolstered the motive set up by the prosecution which stood proved on record beyond any-,shadow of doubt ---F.I.R. had been promptly lodged narrating nothing but the truth without there being any chance of tutoring the first informant from any quarter---Sufficient light was available for the witnesses to identify the accused who lived nearby and were known to them---Not a single question was asked from the eyewitnesses to elicit an answer that they had any rancour or animosity with the accused and that the statements which they had made were with ulterior consideration---Suggestion that the deceased was killed by his enemies was a figment of, imagination which warranted no credence---Murder had been committed by the accused as they had been found guilty by the Trial Court, in a wanton, cruel and callous manner---Trial Court, however, without giving any reason whatsoever had imposed the alternate punishment of life imprisonment contrary to the time tested view of the Supreme Court that without any extenuating or mitigating circumstances normal penalty was death--Question was that the accused having their, life expectancy restored after the judgment of the Trial Court and now having been released from the jail after completing the term of their imprisonment, whether it would be proper to impose penalty of death on them--Principle of life expectancy had lost its hold on the dispensation of criminal justice in view of the rising crime in the society reaching alarming proportions, the mental propensity towards the commission of the crime with impunity, gravity of the offence and the cruel manner of its implementation---Sense of fear in the mind of a criminal before his embarking upon its commission could only be inculcated when he was certain of its punishment provided by law and it was only then that the purpose and object of the punishment which were deterrent, punitive and retributive in nature, could be assiduously achieved---If the Court of law at any stage relaxed its grip, the hardened criminal would take the society on the same page, allowing the incorrigible recidivist to run away scot free or with punishment not commensurate with the proportion of the crime, bringing the administration of criminal justice to ridicule and contempt--Courts could not sacrifice such deterrence and retribution at the altar of mercy and expediency---Sparing the accused of death sentence had caused a grave miscarriage of justice and in order to restore its supremacy sentence of death was imposed on both the accused---Revision petition was accepted accordingly.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Jaffar Ali v. The State 1998 SCMR 2669; Piyaro v. The State 1998 SCMR 1749; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Mir Hassan and others v. The State and others 1999 SCMR 1418; Riaz 'Hussain v. The State 2001 SCMR 177; Muhammad Ahmad and another v. The State 1997 SCMR 89; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Fazal Hussain and another v. Suleman Khan and another 1991 SCMR 56; Zulfiqar alias Bhutto v. The State 1995 SCMR 1668; Parvaiz and 2 others v. The State 1998 SCMR 1976; Noor Muhammad v. The State 1999 SCMR 2722; Waris Ali alias Dulli and others v. The State 1999 SCMR 1469; Muhammad Hanif and others v. The State 2001 SCMR 84; Muhammad Aslam and others v. The State and others 2001 SCMR 223 and Raheem Bakhsh v. Abdul Subhan and another 1999 SCMR 1190 ref.

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

----S.302/34---Administration of criminal justice---Appreciation of evidence--Misfeasance or deriliction of duty by the Investigating Officer will not go to the advantage of accused against the prosecution as the approach of the Court to a case carrying capital charge has to be dynamic and such technical infirmities cannot stand in its way to do justice if its conscience is satisfied that the event as narrated by the witnesses did take place and there is no earthly reason for him to lie.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Jaffar Ali v. The State 1998 SCMR 2669 ref.

----S.154---Penal Code (XLV of 1860), S. 302/34---F.I. R. ---Promptly lodged F.1. R. excludes all chances of infiltration through embellishment; to the contrary a presumption of truth is attached to such F. I. R.

Piyaro v. The State 1998 SCMR 1749 ref.

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

---S. 302/34---Evidence---Interested witness--Interested witness is that witness who has a motive to depose against the accused which stems either due, to enmity, rancour or some other ulterior consideration---Simple relationship of a witness with the deceased is not sufficient to dub his testimony as unworthy of credit.

Sardar Khan and 3 others v. The State 1998 SCMR 1823 and Mir Hassan and others v. The State and others 1999 SCMR 1418 ref.

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

----S.302/34---Appreciation of evidence--Maxim "Falsus in uno falsus in omnibus" is loosing its foothold and is no more considered to have its universal applicability---Grain has always to be sifted from the chaff.

(f) Maxim---

---- "Falsus in uno falsus in omnibus "--Maxim is no more now, of universal application.

Ch. Muhammad Asif Ranjha for Petitioner.

Ch. Nazir Ahmad for the State.

Date of hearing: 4th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 729 #

2001 Y L R 729

[Lahore]

Before Maulvi Anwarul Haq, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE through Chairman---Petitioner

versus

Sardar GHIAS GUL KHAN---Respondent

Civil Revision No.266 of 2001, heard on 7th May, 2001.

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

----Ss. 29 & 31---Age, correction of---Bar on jurisdiction of Civil Courts---Malice in law--Applicability---Plaintiff filed application on 29-2-1996 for correction of his date of birth---Board failed to pass any order on the application almost for four years---Suit was filed on 13-7-2000 and the same was decreed---Judgment and decree passed by the Trial Court were maintained by Appellate Court---Contention of the Board was that the Courts below had assumed jurisdiction in violation of Ss.29 & 31 of Punjab Board of Intermediate and Secondary Education Act, 1976, as the application of the plaintiff was pending with the Board---Validity---Board failed to produce any evidence as to why it did not decide the matter for four years thus failing to exercise jurisdiction resting in it---Inaction on the part of the Board coupled with non-application of mind to the application filed by the plaintiff containing a prayer which had been found to be just by the Courts below, constituted malice in law---Courts below were vested with the jurisdiction to come to the aid of the plaintiff---High Court declined to interfere with the judgments and decrees passed by the Courts below in circumstances.

(b) Public functionaries---

---- Public functionary is required to act with reasonable despatch.

----Connotation---Malice in law does not necessarily include imputation of dishonest motive---But it includes want of necessary care and caution---Malice in law further includes non-application of mind on the part of authority vested with powers---Malice in law is different from the malice as known in common parlance which is usually associated with evil motive influencing mind of person committing malicious act.

Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah. 49 and Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others PLD 1971 Kar. 514 ref.

Shahid Waheed for Petitioner.

Talaat Farooq Sheikh for Respondent.

Date of hearing: 7th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 731 #

2001 Y L R 731

[Lahore]

Before Maulvi Anwarul Haq, J

LAQA RASOOL---Petitioner

versus

Mst. ANWAR BIBI and another---Respondents

Civil Revision No.64 of 1990, heard on 8th May, 2001.

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

----Arts. 132 & 133---Examination-in-chief--Failure to cross-examine witness on a portion of statement---Effect---Material part of the statement if not questioned in crossexamination is deemed to be accepted and admitted by the opposite party.

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

----Art. 128---Legitimacy of child ---Proof--Where a child was born during continuance of a valid marriage between his mother and any man or even two years after dissolution of marriage the mother remaining unmarried would be conclusive proof that the person was the legitimate child of that man unless the husband refused to own the child.

----Art. 128---Legitimacy of child--Concurrent findings of fact by the Courts below---Petitioner denied maintenance of minor by disowning him to be his legitimate child---Both the Courts below concurrently decided the matter in favour of the mother of the minor---Validity---Record spelt out mala fides inherent in the suit and the attempt of the petitioner to defame his ex-wife and in the process to stigmatize his own child as illegitimate without any reasonable cause--Petitioner failed to bring anything on record to question the character of his ex-wife, who was living a secluded life for the child of the parties---High Court refused to interfere with the judgments and decrees passed by the Courts below and awarded heavy cost to the petitioner for stigmatizing his own son and raising doubt on the character of his ex-wife.

Misbah-ul-Hassan Abidi for Petitioner.

G. H. Khan for Respondent.

Date of hearing: 8th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 734 #

2001 Y L R 734

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

KAAMY CONSTRUCTION CO.---Appellant

versus

WAPDA throgh Chairman and 3 others---Respondents

Intra-Court Appeal No.324 in Writ Petition No.5428 of 2001, decided on 24th April, 2001.

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

----Art. 199---Constitutional petition--Disputed question of fact---Constitutional petition is not maintainable for resolution of such question.

Muhammad Younas Khan's case 1993 SCMR 618 ref.

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

----Art. 199---Constitutional petition--Arbitration clause in agreement between the parties---Where there is arbitration clause in the agreement between the parties, Constitutional petition is not maintainable.

Project Director, Balochistan Minor Irrigation and Agricultural Development Project, Quetta Cantt. v. Messrs Murad Ali & Company 1999 SCMR 121 ref.

---Art. 199---Constitutional petition--Contract, enforcement of---Where liability was not admitted by respondents, Constitutional petition was not maintainable.

The Chandpur Mills Ltd.'s case PLD 1958 SC 267; Messrs Momin Motor Company's case PLD 1962 SC 108 and Nizamuddin's case 1999 SCMR 467 ref.

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

----Art. 199---Contractual obligation, enforcement of---Constitutional petition was filed .praying for release of certain bills by the Authorities---Such claim was denied by the Authorities---Where claim was not admitted by the Authorities, such fact had brought the case of petitioner in the area which required investigation into cross allegations and facts ---Constitutional petition was rightly dismissed in circumstances.

Muhammad Ali Butt's case PLD 1997 SC 823 rel.

Messrs Airport Support Service's case .1998 SCMR 226 and Messrs Huffaz Seamless Pipe Industries Ltd.'s case 1998 CLC 1890 distinguished.

(e) Administration of justice---

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

Syed Kazim Bokhari for Appellant.

YLR 2001 LAHORE HIGH COURT LAHORE 736 #

2001 Y L R 736

[Lahore]

Before Ch. Ijaz Ahmad, J

NASEEM ZAFAR and 5 others---Petitioners

versus

THE LAHORE DEVELOPMENT AUTHORITY through Director General, Lahore and another---Respondents

Writ Petition No.4537 of 1985, heard on 16th May, 2001.

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

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Constitutional petition--Provision of Civil Procedure Code, 1908-- Applicability---Provisions of C. P. C. are applicable in proceedings arising out of Constitutional petition.

Hussain Bakhsh's case PLD 1970 SC 1 ref.

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

----O. XXIII, R. 1(3)---Filing of subsequent suit on same cause of action---Addition of new party or non-impleading of any previous party---Effect---Earlier suit on the same subject-matter was withdrawn without seeking permission to file fresh suit on the subject--Subsequent suit on the same subject-matter was neither competent nor maintainable--Where suit related to same subject-matter and was based on the same cause of action, addition of new party or non-impleading of any previous party would not change complexion, nature and subject-matter of the suit.

Mst. Bibi Gul and another's case 1997 MLD 2964 ref.

----O. XXII, R.1(3)---Withdrawal of suit simpliciter---Effect---Where a case was withdrawn simpliciter a second action on the same subject-matter was barred.

Mehroof Jan's case 1990 CLC 19 ref.

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

----Art. 199---Civil Procedure Code (V of 1908), S. 11 & O.XXIII, R.1(3)-- Constitutional petition ---Res judicata, principles of ---Applicability---Earlir a suit was filed which was withdrawn without permission to file subsequent suit--Constitutional petition was filed on the same subject-matter---Validity---By virtue of O. XXIII, R.1(3) and S.11, C.P.C. the principle of constructive res judicata was attracted---Constitutional petition was not maintainable and the same was dismissed accordingly.

Jewan's case 1989 CLC 2393 ref.

Umar Atta Bundial for Petitioners.

M. Rashid Ahmad for Respondents.

Date of hearing: 16th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 739 #

2001 Y L R 739

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IQBAL---Petitioner

versus

WAMIQ JAVAID, LEARNED ADDITIONAL. DISTRICT JUDGE, SARGODHA and 2 others---Respondents

Writ Petition No.1652 of 2001, heard on 9th May, 2001.

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

----S. 24---West Pakistan General Clauses Act (X of 1956), S.9---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Pre-emption--- Zar-e-Soem (pre-emption money), deposit of---Holiday on last day of deposit---Effect---Grievance of the vendee was that the pre-emptor had not deposited the pre-emption money within 30 days---Trial Court did not accept the contention of the vendee but the Lower Appellate Court accepted the same and directed the Trial Court to dismiss the suit as the amount was not deposited in due course of time---Validity---Where the amount was deposited on the day following the last day of limitation as the last day was a holiday, such deposit was a valid deposit--Deposit could be made on the following day if the last day was a closed day---Order passed by Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Muhammad Farooq Qureshi Chishti for Petitioner.

Nemo for Respondents.

Date of hearing: 9th May, 2001.

2001 Y L R 749

[Lahore]

Before Khawaji Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

ABDUR REHMAN and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 1109 and Murder Reference No.456 of 1999, heard on 28th November, 2001.

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

----S. 302(b)/34---Appreciation of evidence--Case as revealed by the F.I.R. appeared to be a concocted one built upon the basis of guess, gossips, rumours and imagination--Prosecution had failed to establish the motive for the occurrence set up by it in the F.I.R. and was bound to suffer on that account--Extra-judicial confession allegedly made by accused was wholly incomplete being devoid of date, time, place, motive and details of the incident and deserved no credence---Recovery of carbine was belated by 34/35 days and was inconsequential as no crime empty was recovered from the spot---Entire recoveries had been fabricated by the police to strengthen the prosecution case and the same were useless---Evidence of last seen was furnished by a made-up witness who was not even produced by the complainant before the police earlier---Tracker of footprints being not an expert in the profession was highly unreliable witness---No eye-witness of the occurrence being available, complainant and the police in collaboration with each other had fabricated different pieces of evidence to link the accused with the commission of the crime---Investigation smacked of padding and necessary links in the chain of evidence were missing---Real doubts had cropped up in the case, benefit of which was necessarily to be extended to the accused---Accused were acquitted accordingly.

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

----Art.59---Indentification of footprints--Science of identification of footprints is a rudimentary science and is not exact and much reliance cannot be placed on the result of such identification---Court before relying upon the evidence of a tracker should decide whether he is or is not an expert in his art or science---Expert produced to establish identity of the footprints must furnish data and reasons for giving his opinion as Expert and any opinion not backed by sound reasons is to be thrown out of consideration.

Malik Noor Muhammad Awan for Appellant.

A.H. Masood for the State.

Date of hearing: 28th November,

YLR 2001 LAHORE HIGH COURT LAHORE 782 #

2001 Y L R 782

[Lahore]

Before Muhammad Sair Ali, J

WAI.R AND POWER DEVELOPMENT AUTHORITY through Chairman and 4 others---Petitioners

versus

ADVISORY BOARD, GOVERNMENT OF PUNJAB and 2 others---Respondents

Constitutional Petition No. 13499 of 1994, decided on 15th June, 2001.

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

----Art. 199---Constitutional petition---Question of jurisdiction was not raised before special forums---Validity---Normally, question not argued before the special forums should not be allowed-to be raised in the Constitutional petition but where the circumstances of the case adequately justify consideration of question of jurisdiction the same could be done in the Constitutional petition.

WAPDA v. Mian Muhammad Riaz and others PLD 1995 Lah. 56 ref.

(b) Electricity Act (IX of 1910)---

----S. 26(6)---Electric Inspector ---Jurisdiction---Scope---Matters referable to Electric Inspector have to fall within the provisions of S.26(6) of the Electricity Act, 1910, and must relate to the correctness or otherwise of the meter or the measuring apparatus.

----S. 26(6)---Constitution of Pakistan (1973), An. 199---Constitutional petition---Electric Inspector---Jurisdiction---Dispute between the parties was recovery of fixed meter charges by Water and Power Development Authority--Electric Inspector as well as the Advisory Board of the Provincial Government decided the matter against the Authority and directed the Authority to refund the disputed amount--Validity---Matter did not relate to the difference or dispute falling within the limited scope of S.26(6) of Electricity Act, 1910--Subject-matter of litigation between the parties did not relate to the question regarding meter's correctness or otherwise or that of any other measuring apparatus, instead, the controversy related to charges raised and recovered by Water and Power Development Authority after disconnection of supply of electric energy---Electric Inspector had no jurisdiction to entertain and decide the lis---Appropriate remedy for the consumer was under the general law in the Court of plenary jurisdiction i. e. the Civil Court--Orders passed by the Electric Inspector and the Advisory Board were set aside in circumstances.

Mian Khurshid Alam Ramay for Petitioners.

Abdul Aziz Akhgar for Respondent No.3

Date of hearing: 31st May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 795 #

2001 Y L R 795

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD RAFIQUE---Petitioner

versus

MEMBER, BOARD OF REVENUE/CHEIF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE and another---Respondents

Writ Petition No.233/R of 1999, heard on 11th December, 2001.

(a) Fraud---

---- Fraud and forgery ---Determination--Whether any fraud or forgery has been committed, is essentially a question of fact and its determination can take place before the Authority concerned by affording due opportunity of defence.

Settlement and Rehabilitation Commissioner, Hyderabad Division. Karachi and another v. Mannu Khan and 3 others 1973 SCMR 62; Sindh Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Muhammad Yousuf v. The Collector of Sea Customs, Karachi and others PLD 1969 SC 153; Officer on Special Duty, Central Record Office and others v. Bashir Ahmad and 9 others 1977 SCMR 208; Controller of Patents and Designs, Karachi and others v. Muhammad Qaudir Hussain 1995 SCMR 529; Malik. Muhammad Sarfraz Khan Tiwana, Advocate v. Settlement Commissioner (Industries), Lahore and others PLD 1989 SC 580; Rehmat Ali v. Additional District Judge, Multan and others 1999 SCMR 900; Syed Istijab Hassan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 2 others 1999 YLR 1627; Akhtar Hussain Siddiqui, Advocate v. Province of Punjab and 3 others 1999 CLC 951; Mst. Balquees Begum and another v. Deputy Commissioner/ Collector, Muzaffargarh -and another 1999 CLC 93; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC - 331; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another 1969 SCMR 154 and Shamrooz Khan v. Mohabbat Khan and others 1989 SCMR 819 ref.

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

----S. 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allegation of fraud---Probe into the allegations by the Settlement Authorities---Petitioner claimed to be vendee from the successors-in-interest of the allottee of the suit land and the land was allotted in implementation of the order passed by the Chief Settlement Commissioner, dated 28-10-1996, i.e. after the repeal of Settlement Laws---Objection - to the assumption of jurisdiction was raised by the petitioner to the effect that the Authorities had no jurisdiction in the matter---Validity---Where the petitioner did not claim that he had acquired any right in the land prior to the repeal of the Settlement laws, he could not plead lack of jurisdiction nor could object to the authority of Settlement Department--Assumption of jurisdiction by the Settlement Authorities to probe into the allegations of fraud and forgery could not be regarded as without lawful authority in circumstances.

---Art.199---Constitutional petition ---Fraud--Probe into---Allegations of fraud and fabrication rest upon, the examination and consideration of the record which exercise can well be undertaken by the concerned Authorities---Such factual probe does not fall within the domain of jurisdiction of High Court under Art. 199 of the Constitution--Constitutional petition was not maintainable in circumstances.

Syed Zainul Abidin and Ch. Hafeez Ahmad for Petitioner.

Ch. Khaliq Ahmad Ansari and Nasim Sabir, Addl. A.-G. for Respondents.

M.Z. Khalil for Settlement Department.

Dates of hearing: 11th and 12th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 819 #

2001 Y L R 819

[Lahore]

Before Abdul Shakoor Paracha, J

MAZHAR IQBAL and another---Petitioners

versus

MUHAMMAD ---Respondent

Civil Revision No. 1479 and Civil Miscellaneous No. 1 of 2001, decided on 3rd July, 2001.

(a) Defamation---

---- Suit for recovery of amount as damages for the defamation was filed on the ground that defendants had falsely charged the plaintiff with the allegation that he had stolen the gun of defendants and that the plaintiff by said act of the defendants had suffered arrest and was humiliated in the eyes of the people of the locality---Defendants despite granting as many as six opportunities, including the last chance to bring evidence in their defence having failed to do so their evidence was closed---All the ingredients of malicious prosecution being present on the record against the defendants for involving the plaintiff in false case by moving to the police by initiating campaign of filing applications against the plaintiff, Court, in circumstances, had rightly granted decree for damages in favour of the plaintiff.

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

----S. 115---High Court (Lahore) Rules and Order, Vol. IV, Chap. I, R.4---Limitation Act (IX of 1908), Ss.5 & 29--Revision--Limitation---Delay, condonation of--Revision, which was time-barred, was returned to the petitioner allowing seven days' time to remove office objection, but the petitioner slept over and filed the revision after six months---Provisions of S. 5 of Limitation Act, 1908 being not applicable to civil revision for condonation of delay in view of S.29 of the said Act, delay in filing revision was not condoned---Even otherwise concurrent findings of fact of Courts below against the petitioner, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Navid Ahmad v. Asif Riaz PLD 1996 Lah. 702 ref.

Haji Miran Malik for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 832 #

2001 Y L R 832

[Lahore]

Before Khawaja Muhammad Sharif, J

NASIR AHMAD and 2 others---Petitioners

versus

THE STATE---Respondent

Criminal Revision No.254 of 2001, decided on 6th July, 2001.

Penal Code (XLV of 1860)---

----S. 337-A(i) & (iii)---Appreciation of evidence---No X-ray or the Radiologist was produced by the prosecution to prove that it was a case under 5.337-A(iii), P.P.C.--Conviction of the accused was altered to under S. 337-A (i), P. P. C. , and he was sentenced accordingly.

1991 PCr. LJ 1081 and 1991 PCr. LJ 1562 ref.

M.A. Zafar for Petitioners.

Muhammad Hanif Khatana, Addl. A.-G. for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 834 #

2001 Y L R 834

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD HANIF---Petitioner

versus

ISLAMIC REPUBLIC OF PAKISTAN, ISLAMABAD and 5 others---Respondents

Writ Petition No. 10139 of 2001, decided on 11th June, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

---S.14---Disqualification of candidate--Intelligence reports---Validity---Reliance cannot be placed upon the intelligence reports, as the same are of hearsay nature.

(b) Punjab Local Government Elections Rules, 2000---

----R. 18(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Rejection of joint candidature---Petitioner filed joint nomination papers for the seat of Nazim but as the nomination papers of Naib Nazim were rejected by Returning Officer, the papers of the petitioner were also rejected--Validity---Where the petitioner had himself submitted his joint nomination papers, on the basis of .the Election laws, both shared the qualifications of each other, and if, one of the joint candidates, had been declared to be disqualified, the other joint candidate, would also sink alongwith him---High Court declined to interfere with the order passed by the Returning Officer--Constitutional petition was dismissed in limine.

----R. 18(3)---Constitution of Pakistan (1973), Art. 203-D---Rejection of joint nomination---Whether repugnant to Injunctions of Islam---Jurisdiction of Federal Shariat Court---Jurisdiction of High Court in exercise of powers under Art. 199 of the Constitution---Scope---Under the provisions of Art.203-D of the Constitution, to examine and declare any provision of any statute as repugnant to the Injunctions of Islam, the Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h.) is within the exclusive jurisdiction of the Federal Shariat Court.

Pir S.A. Rashid for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 835 #

2001 Y L R 835

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs NEMAT FLOUR MILLS (PVT.) LTD. through Director and 6 others---Petitioners

versus

GOVERNMENT OF THE PUNJAB through Secretary, Local Government and Rural Development Department, Lahore and 3 others---Respondents

Writ Petitions Nos.2917, 3088, 3090, 3091, 3092, 3093 and 3004 of 1991, heard on 11th July, 2001.

(a) Punjab Local Councils Taxation Rules, 1980---

----Punjab Local Councils Ordinance (VI of 1979), 5.138---Imposition of export tax by Zilla Council---Notification issued by Zilla Council imposing export tax whether retrospective or prospective in nature--Principles---Such notification has prospective effect and not retrospective effect.

F. Ahmed's case 1985 CLC 974; Messrs Army Sugar Mills (Pvt.) Ltd.'s case 1992 SCMR 1652; Muhammad Suleman's case PLD 1978 SC 190; Sobia Hanif's case 1993 CLC 2073; Abu-al-A'la Maudoodi's case PLD 1964 Kar. 478 and Zila Council Sheikhupura v. Messrs Mian Tyre & Rubber Co. (Pvt.) Ltd. PLD 1994 SC 212 ref.

(b) Notification---

---- Meanings and concept.

F. Ahmed's case 1985 CLC 974;

Messrs Army Sugar Mills (Pvt.) Ltd.'s case 1992 SCMR 1652; Muhammad Suleman's case PLD 1978 SC 190; Sobia Hanif's case 1993 CLC 2073; Abu-al-A'la Maudoodi's case PLD 1964 Kar. 478 Zila Council Sheikhupura v. Messrs Mian Tyre & Rubbdr Co. (Pvt.) Ltd. PLD 1994 SC 212 ref.

---- "Notification "---Meaning.

Sobia Hanif's case 1993 CLC 2073 rel.

Muhammad Shahzad Shaukat for Petitioners.

Ch. Muhammad Yaqoob Sindhu for Respondent No. 2.

Muhammad Hanif Khatana, A.A.-G. for Respondents Nos. l and 3.

Date of hearing: 11th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 846 #

2001 Y L R 846

[Lahore]

Before Sayed Zahid Hussain, J

TAHIR TARIQ TEXTILE MILLS (PVT.) LTD. through Chief Executive and 2 others---Plaintiffs

versus

N.D.F.C. through Chairman---Defendant

Civil Original Suit No.69 of 1997, decided on 2nd July, 2001.

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

----S. 9---Jurisdiction of Court---Agreement between parties---Effect---Parties by their agreement or consent cannot invest Court with a jurisdiction where it does not exist in law nor can the parties divest a Court of its jurisdiction by such methodology---Where more than one Court can have jurisdiction in the matter, the parties can make choice by their agreement or consent of any one of them.

Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; Messrs E.F.U. General Insurance Limited and others v. Fahimul Haq 1997 CLC 1441; Reliance Insurance Company Ltd. and others v. Messrs Chohan Vegetable Ghee Mills Ltd. 1999 YLR 2201 and Bankers Equity Ltd. v. Iqas Weaving Mills (Pvt.) Ltd. 2001 CLC 169 ref.

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

----S. 9---Civil Procedure Code (V of 1908), Ss. 9, 20 & O. VII, R.10---Plaint, return of--Jurisdiction of Court---Cause of action--Filing of suit at place other than agreed upon by the parties---Plaintiff obtained Bank loan from the defendant and it was agreed between the parties that the Courts at place 'K' would have jurisdiction in the matter--Plaintiff filed suit at place 'L' for recovery of damages against the Bank---Objection was raised to the jurisdiction of the Court at place 'L'---Agreement of the nature binds the parties and the Court at 'L' lacked territorial jurisdiction---Plaint was returned to the plaintiff in circumstances.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi acid 3 others 1992 SCMR 1174; Messrs E.F.U. General Insurance Limited and others v. Fahimul Haq 1997 CLC 1441; Bankers Equity Ltd. v. Iqas Weaving Mills (Pvt.) Ltd. 2001 CLC 169; Messrs Rupali Polyester Ltd. v. Dr. Nael G. Buni and others PLD 1994 Lah. 525; Standard Insurance Co. v. Pak Garments Ltd. 1998 SCMR 1239; Faqir Muhammad Arif v. Mst. Haneefa Bano 1998 CLC 205; Sardar Muhammad Sarwar Khan v. Shaukat Zaman Khan 1999 CLC 954; Messrs Businet International (Pvt.) Ltd. v. Messrs Aramex International (Pvt.) Ltd. 2001 CLC 104; Messrs Snehalkumar Sarabhai v. Messrs Economic Transport Organization and others AIR 1975 Guj. 72; The Paradeep Port Trust v. Messrs Hindustan Mercantile Transport Corporation and another AIR 1985 Orissa 106; Messrs Sponge Iron India Ltd. v. Messrs Andhra Steel Corporation Ltd. AIR 1989 AP 206; Periwal Packing Industries (Pvt.) Ltd. v. The Fertilizer and Chemicals Travancore Ltd. AIR 1982 Cal. 350; Musa Ji Lukman Ji v. Durga Das AIR 1946 Lah. 57; Hakam Singh v. Messrs Gammon (India) Ltd. AIR 1971 SC 740; Messrs Hindustan Tiles Corporation v. Kisanlal Mataprasad Agrawal AIR 1979 Bombay 69; Messrs National Tar Products, Calcutta v. Himachal Pradesh State Electricity Board, Simla AIR 1979 Delhi 255; E.I.D. Parry (India) Limited v. Messrs Savani Transport (Pvt.) Ltd., Secunderabad AIR 1980 Andh. Pra. 30; Kirloskar Bros. Ltd.. Indore v. Engineering Machinery Mart, Narsinghpur, M.P. AIR 1982 Madh. Pra. 75; Patel Roadways (Pvt.) Ltd. v. Bata India Ltd. AIR 1982 Cal. 575; Chandeshwar Singh and others v. Dahu Mahto and others AIR 1983 Pat. 257; Baiswanath Chowdhury v. U.P. Forest Corporation AIR 1986 Cal. 334; Messrs Angile Insulations v. Messrs Davy Ashmore India Ltd. and another AIR 1995 SC 1766; Reliance Insurance Company Ltd. and others v. Messrs Chohan Vegetable Ghee Mills Ltd. 1999 YLR 2201 and 1968 SCMR 1618 ref.

Syed Hamid Ali Shah for Plaintiff.

M. A. Zafar for Defendants.

Date of hearing: 14th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 855 #

2001 Y L R 855

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD IQBAL and another---Petitioners

versus

DISTRICT RETURNING OFFICER/DISTRICT JUDGE, MULTAN and 9 others---Respondents

Writ Petition No.3757 of 2001, decided on 9th May, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

----Preamble---Local Government elections--Qualification of candidates---Object and scope---Legislature wanted to lay down a procedure as also law to ensure that the Institutions of Public Representation should comprise of men and women who had clean record, who enjoyed good moral character, who were not guilty of misuse of public authority so that the Offices and Institutions would inspire certain credibility and confidence which had eluded the nation for quite some time.

(b) Punjab Local Government Elections Ordinance (V of 2000)---

----S. 14(k)(i)(r)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Election---Expression 'moral turpitude'--Connotation---Conviction of candidate for more than three months---Petitioners filed their nomination papers for the seat of Nazim and Naib-Nazim and the papers were rejected by the Authorities for the reason that one of the petitioners was convicted for 7 years imprisonment in the year 1984---Allegation in the F.I.R. against the petitioner was that he alongwith others attacked the complainant party including their womenfolk, made them naked, caused injuries to some and murdered one person---Charges against the petitioner were not denied and were proved and petitioner alongwith others was convicted--Authorities rejected the nomination papers on the ground that the case of the petitioner was, one of the moral turpitude ---Validity--Incident mentioned in the F.I.R. was highlighted in international media and it was because of the incident that 5.354-A was added in the Pakistan Penal Code---Conduct of the petitioner would fall within the mischief of S.14(k) & (r) of Punjab Local Government Elections Ordinance, 2000--High Court declined to interfere with the findings of the Authorities and Constitutional petition was dismissed in circumstances.

Muhammad Tariq Chaudhry, Member Senate of Pakistan, Islamabad v. Syed Mansoor Ahsan and 3 others PLD 1991 Lah. 200; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 and Muhammad Shabbir Abbasi v. Abdur Rashid Mughal 1984 CLC 270 ref.

----S. 16(1)---Punjab , Local Government Elections Rules, 2000, R.16---Joint candidature of Nazim and Naib-Nazim--Object---Provisions of Punjab Local Government Elections Ordinance, 2000, and the rules framed thereunder are valid laws under which the election process is being regulated---Intention of R.16 of Punjab Local Government Elections Rules, 2000, which contemplates joint candidatures for the posts is that both the candidates should be careful in selecting their running mates and if a candidate opts someone who is disqualified to be a member then he too has to suffer along with him.

M. Rafiq Rajwana and Muhammad Mahmood Ashraf Khan for Petitioners.

Nasim Sabir, Addl. A.-G. (on Court's call).

Mrs. Aniqa Mogis Sheikh, Pir Muhammad Asif, Rafi Shah and Sardar Mehboob for Respondents Nos.3 and 4.

YLR 2001 LAHORE HIGH COURT LAHORE 871 #

2001 Y L R 871

[Lahore]

Before Abdul Shakoor Paracha, J

GHAZANFAR BAIG---Petitioner

versus

MUHAMMAD SALAM --- Respondent

Civil Revisions Nos.1306 to 1313 of 1996, decided on 27th June, 2001.

(a) Malicious prosecution---

----Malice---Onus to prove---Onus to prove the absence of reasonable and probable cause as well as malice on the part of the defendant in instituting the prosecution lies on the plaintiff.

AIR 1946 All. 204 ref.

(b) Malicious prosecution---

---- Suit for malicious prosecution---Necessary ingredients---In suit for malicious prosecution plaintiff must prove: that plaintiff was prosecuted by the defendant; that the prosecution ended in plaintiff's favour; that defendant acted without reasonable and probable cause; as to that the defendant was motivated by malice; and that the proceedings had affected plaintiff's reputation and the plaintiff had suffered financially.

PLD 1964 Dacca 618; PLD 1964 Dacca 11; PLD 1947 PC 95 Muhammad Akram's case PLD 1990 SC 28 and Sub. (Rid.) Fazle Rahim v. Rab Nawaz 1999 SCMR 700 ref.

---- Mere acquittal in a criminal case only decides that the accused has not been proved guilty of the offence with which he had been charged.

(d) Malicious prosecution---

----Determination of ---Ingredients---Concurrent findings of fact by the Courts below--Misreading and non-reading of evidence--Acquittal of respondent on the ground of non appearance of the prosecution witnesses and the case being old---Mother of petitioner filed criminal complaint against respondent who was acquitted by the Trial Court-- Respondent filed suit for damages against the mother of the petitioner and the same was decreed in favour of the respondent and appeal was dismissed by the Lower Appellate Court---Contention of the petitioner was that no harassment was caused to the respondent as no F.I.R. was recorded and only private complaint was lodged and the respondent failed to prove that he was prosecuted with mala fide intention and without probable cause---Validity---Where the respondent had only mentioned that mental and financial agony had been caused, the judgments of both the Courts below were a result of misreading and non-reading of the record and the respondent failed to prove all the ingredients of malicious prosecution--Judgments of both the Courts below were not sustainable in. the eye of law and the same were set aside by High Court.

PLD 1994 SC 476; PLD 2000 Kar. 214; PLD 1970 Kar. 344; Muhammad Akram's case PLD 1990 SC 28; Sub. (Rtd.) Fazle Rahim v. Rab Nawaz 1999 SCMR 700; United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 and Sardar Muhammad v. Ch. Muhammad Bashir 2000 CLC 1040 ref.

Malik Muhammad Azam Rasool for Petitioner.

Taqi Ahmad Khan for Respondent.

Date of hearing: 18th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 887 #

2001 Y L R 887

[Lahore]

Before Syed Zahid Hussain, J

WAHID BAKHSH---Petitioner

versus

DEPUTY SETTLEMENT COMMISSIONER, MULTAN and another---Respondents

Writ Petition No.22/R of 1983, heard on 12th April, 2001.

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

----S.10---Jurisdiction of Settlement Authorities---Issuance of title document--Effect---With the issuance of title documents i.e. Transfer Order, property absolutely vests in the transferee an4 the Settlement Authorities become functus officio.

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

----S. 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Settlement Authorities interfering after repeal of settlement laws---Disputed property was permanently transferred in the name of the petitioner prior to repeal of the Settlement laws but the Settlement Authorities, in the garb of correction of entry, included the disputed property in the name of the respondent---Validity---Where the order was passed by the Authorities having no jurisdiction to pass such order, the same had the adverse effects upon the rights of the petitioner---Order passed by the Authorities was wholly without jurisdiction and not sustainable in law--High Court in exercise of Constitutional jurisdiction set aside, the order passed by the Settlement Authorities in circumstances.

Anwar Hussain v. Deputy Settlement Commissioner, Larkana~ and 4 others 1983 CLC 851, Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others 1993 SCMR 21; Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another 1974 SCMR 8; Habibullah v. Settlement Commissioner and others 1982 SCMR 4; Muhammad Rafiq v. Agha Nisar Ahmad and others 1987 SCMR 884; Muhammad Ramzan and 2 others v. Abdul Ghani and 4 others PLD 1980 Kar. 99; Zulfiqar Ahmad v. Gulzar Khan and another 1985 SCMR 2000; Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971; S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others PLD 1971 SC 669 and Khawaja Bashir Ahmad v. Additional Settlement Commissioner, Rawalpindi and others 1991 SCMR 1604 ref.

----Art. 199---Constitutional petition--Maintainability ---Vires , of order passed by Authorities---Contention of respondent was that the petition was not maintainable as questions of fact were involved in-the case--Validity ---Vires of order passed by Authorities could be determined without dilating upon the other factual controversies---Where the order was without jurisdiction, Constitutional petition was maintainable.

Zafar Iqbal Khan for Petitioner.

Syed Hamid Shah Mir for Respondent No.2.

Date of hearing: 12th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 893 #

2001 Y L R 893

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD SHARIF---Petitioner

versus

Mst. REHMAT BIBI and 2 others---Respondents

Regular Second Appeal No.8 of 1989, heard on 18th April; 2001.

(a) Islamic Law--

----Gift---Onus to prove---Illiterate female--- Where the donors were illiterate ladies having their family and children, it was for the donee to have produced evidence of convincing nature to prove the gift.

Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194; Nisar- Hussain v. Mst. Sufaidan 1988 CLC 109 and Laloo and another v. Ghulaman 2000 SCMR 1058 ref.

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

----S.45---Mutation whether proof of ownership---Mutation is only a piece of evidence which does not take the place of the transaction itself of its own force and the transaction even - in the presence of the mutation needs to be proved by an independent evidence.

Naja and 2 others v. Shamand and 4 others PLD 1985 Lah. 607 ref.

----S.45---Gift---Mutation of gift ---Validity--Gift made by illiterate females---Concurrent findings of fact recorded by Courts below--Donors were illiterate females who had denied making of gift in favour of their nephew when they had their own family and children---Mutation was assailed by a civil suit---Trial Court decreed the suit in favour of the donors and appeal against the judgment and decree passed by the Trial Court was dismissed by First Appellate Court--Validity---Where concurrent findings of fact recorded by the Courts below and the conclusion drawn by the Courts did not suffer from any illegality, High Court declined to interfere in second appeal.

Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194; Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar. 324 and Nisar Hussain v. Mst. Sufaidan 1988 CLC 109 ref.

Bashir Ahmad Chaudhry for Petitioner.

Muhammad Asif Alvi for Respondents.

Date of hearing: 18th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 905 #

2001 Y L R 905

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD KHALID---Petitioner

versus

CIVIL JUDGE (MIAN ZULFIQAR AHMED), LAHORE and 4 others---Respondents

Writ Petition No. 12367 of 1997, heard on 4th June, 2001.

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

----S.9---Suit in Banking Court ---Maintainability---Requirements---Customer can file a suit in Banking Court under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 only when there is some dispute with Banking Company with regard to fulfilling any obligation regarding loan or finance.

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

----Ss. 7(4) & 9(1)---Account holder of Banking Company filing suit in Banking Court---Maintainability---Account holder being not a customer such suit would not come within the purview of Ss. 7(4) & 9(1) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

----S. 2(e)---Sale agreement---Such agreement does not create any right or interest or charge on the property and the same does not confer any title qua the property in dispute.

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

----O.XXXVIII, Rr.5 & 6(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Attachment before judgment--Recovery of Bank amount---Defendants availed no financial facility from the plaintiff Bank and was merely an account holder--Defendants had fraudulently withdrawn the suit amount from the plaintiff-Bank on the basis of counterfeit draft---Criminal case was registered against the defendants for depositing the draft with the plaintiff-Bank which was found to be fraudulent and fictitious---Civil suit was filed by the plaintiff Bank against the defendant and ex parte proceedings were initiated against the defendant---Petitioner on the basis of an agreement to sell, claimed to be owner of the property, and filed application under O. XXXVIII, Rr. 5 & 6(2), C. P. C. ---Trial Court dismissed the application and attached the property before judgment ---Validity--Petitioner had joined hands with the defendants to frustrate the claim of the plaintiff-Bank---Claim of the petitioner being not based on any valid ground, High Court declined to interfere with the orders passed by the Trial Court---Constitutional petition was dismissed in circumstances.

Atlantic Carpets through Partner v. Messrs Emirates Bank International and another 2000 MLD 1850 ref.

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

----Art. 199---Constitutional petition--Maintainability---Interim order ---Validity--Interim order's are not questionable in Constitutional jurisdiction of High. Court.

Muhammad Saeed v. Mst. Sarat-ul-Fatima and another PLD 1978 Lah. 1459 and Messrs Silver Stone (Pvt.) Limited v. Rent Controller and others 1995 MLD 851 ref.

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

----Art. 199---Constitutional petition--Amendment of petition---When the petition was not competent, the permission for amendment was declined.

Sardar M. Latif Khan Khosa and Bashir Ahmad Mughal for Petitioner.

Jawad Hussain for Respondent No.2.

Tariq Masood for Respondent No.5.

Date of hearing: 4th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 919 #

2001 Y L R 919

[Lahore]

Before Apdul Shakoor Paracha, J

Mirza MUHAMMAD SAEED---Petitioner

versus

MUHAMMAD AKRAM MUNIR. and others---Respondents

Civil Revision No. 2729 of 1994, decided on 27th June, 2001.

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

----O.III, R.4---Appointment of pleader--Counsel and client, relationship of--Statement given by pleader/attorney regarding decision of the suit by a specific mode---Effect---Suit can proceed by appointment of attorney and agent under the provisions of O. III R. 4, C. P. C. , therefore, such statement was within the scope of the authority conferred on the counsel by his client by way of executing Wakalatnama--Where the client had fully participated in the proceedings right from filing the suit till its finalization, such client could not contend that he was not bound by the statement of his counsel---[Counsel and client].

1971 SCMR 634; 1990 ALD 623; Ambalal Chunthabhai Patel and another v. Sombhai Bakorbhai Patel and another AIR 1944 Bom. 46; Sourendra Nath Mitra ancj others v. Tarubala Dasi AIR 1930 PC 158 and Muhammad Bashir v. Election

Tribunal, Kharian and others PLD 1992 Lah. 432 ref.

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

----O.III, R.4 & O.XXIII, R.3---Statement given by counsel---Compromise of suit--Where the counsel of plaintiff had the authority to make a suggestion and statement before the Trial Court, any statement of the counsel was binding on the plaintiff--Judgment and decree passed by Trial Court on the statement of the counsel was within the scope of O. XXIII, R. 3, C. P. C. and the statement of the counsel for the plaintiff was not beyond the subject-matter of the suit.

Ambalal Chunthabhai Patel and another v. Sombhai Bakorbhai Patel and another AIR 1944 Born, 46 distinguished.

----S.75 & O.XXVI, R.9---Local Commission---Delegation of powers of Court---Extent---Power of Court to decide a matter cannot be delegated to the Local Commissioner.

Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 ref.

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

----O. III, R.4---Statement of counsel--Effect---Counsel for the plaintiff made a statement that suit be decided by demarcation of the suit land---Trial Court with the consent of the parties appointed Local Commission for the purpose---Trial Court decreed the suit on the basis of report of the Local Commission---Plaintiff being dissatisfied with the judgment of the Trial Court filed appeal on the ground that his counsel exceeded the power conferred on him and the statement given by the counsel was not binding on him---Appellate Court allowed the appeal and the case was remanded to the Trial Court for decision afresh---Contention of the defendant was that counsel of the plaintiff had the authority to make the statement and the same was binding on the plaintiff---Validity--Where the counsel for the plaintiff made a statement that the suit be decided by specific mode, the same was within the scope of the authority conferred on him by Wakalatnama---Appellate Court had committed material irregularity and illegality while setting aside the judgment and decree passed by the Trial Court---High Court in exercise of revisional jurisdiction set aside the judgment and decree passed by the Appellate Court and restored that of the Trial Court.

Muhammad Shehzad Shaukat for Petitioner.

Sh. Naveed Shehryar for Respondents.

Date of hearing: 15th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 928 #

2001 Y L R 928

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD BIBI---Petitioner

versus

MUNIR AHMAD through Legal Heirs---Respondent

Civil Revision No. 1565-D of 1984, heard on 14th February, 2001.

(a) Co-sharer---

----Ouster of co-sharer from the suit land--Failure to receive share in produce of such land---Effect---When succession opens, all the eligible heirs become co-sharers---Mere fact that one of the co-sharers was not being paid any share in the produce from the land would not constitute ouster.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLID 1990 SC 1 ref.

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

----S.45---Co-sharer---Entry of mutation of land excluding the co-sharer---Validity--Limitation---Plaintiff was heir to the estate of the deceased owner---Defendants got the land mutated in their name excluding the plaintiff---Civil suit filed by the plaintiff was dismissed as being time-barred---Lower Appellate Court maintained the judgment and decree passed by the Trial Court---Contention of the plaintiff was that she being one of the co-sharers was entitled to inherit the suit land---Validity---Where the plaintiff was admitted to be an heir as pleaded by her in the plaint, the matter of limitation never commenced against her---Disputed mutation was illegal and void and there was no question of any limitation for challenging such mutation---Concurrent findings of fact by the Courts below were reversed by High Court in exercise of revisional jurisdiction as the suit was within time.

Moolchand and 9 others v. Muhammad Yousuf and 3 others PLD 1994 SC 462 ref.

Nazir Ahmad Janjua for Petitioner.

Rana Shaukat Ali for Respondent,.

Date of hearing: 14th February, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 939 #

2001 Y L R 939

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD AMJAD---Appellant

versus

Mst. REHANA KAUSAR---Respondent

Second Appeal from Order No. 50 of 2000, decided on 11th July, 2001.

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

----S.13---Specific Relief Act (I of 1877), S.12---Ejectment of tenant---Agreement to sell ---Eeffect---Agreement to sell does not create any right, title or interest and suit for specific performance of agreement to sell cannot be a ground to avoid eviction of tenant by the Rent Controller.

Haji Shafi Muhammad v. Mst. Shah Bibi 1987 SCMR 347 and 1qbal v. Mst. Rabia Bibi PLD 1991 SC 242 ref.

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

----S. 13--Ejectrnent of tenant---Title of property, challenge to---Jurisdiction of Rent Controller---Scope---Genuine dispute of title between the parties ousts the jurisdiction of the Rent Controller and the parties are always directed by the Rent Controller to get the dispute resolved from the Civil Court.

Rehmat Ullah v. Ali Muhammad and another 1983 SCMR 1064 and Province of Punjab through Secretary and others v. Mufti Abdul Ghani PLD 1985 SC 1 ref.

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

----Ss. 2(e)(i), 13 & 15(6)---Second appeal-- Landlord and tenant, relation of -- Determination---Pendency of suit for specific performance between the father of the tenant and landlady---Effect---Neither there was any lease agreement or rent note between the parties, nor tenant had ever paid any rent to the landlady---Possession of the premises was also not handed over to the tenant by the landlady---Rent Controller having found absence of relationship of landlord and tenant between the parties dismissed the eviction application filed by the landlady-- Lower Appellate Court reversed the findings of the Rent Controller and allowed the eviction application directing the tenant to vacate the shop in question---Validity---In terms of definitions of landlord and tenant as envisaged in S.2(c) & (i) of West Pakistan Rent Restriction Ordinance, 1959 sale agreement between landlady and father of the tenant had no relevancy---No dispute of title between the parties existed and from the evidence it was proved that the respondent was neither the landlady nor the appellant was the tenant of the shop in dispute---Order passed by the Lower Appellate Court was set aside and that of the Rent Controller was restored---Appeal was allowed in circumstances.

Haji Shafi Muhammad v. Mst. Shah Bibi 1987 SCMR 347 and Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242 distinguished.

Mst. Roshan Bi and 6 others v. Munawar Hussain Gil 1987 MLD 3263 and Muhammad Naeem v. Abdul Wahid 1999 MLD 1342 ref.

Syed Nasir Hussain Rizvi for Appellant.

Muhammad lqbal for Respondent.

YLR 2001 LAHORE HIGH COURT LAHORE 953 #

2001 Y L R 953

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. LIAQAT ALI and another---Petitioners, .

versus

ELECTION APPELLATE AUTHORITY/DISTRICT AND SESSIONS JUDGE, LAHORE/DISTRICT RETURNING OFFICER, LAHORE and 3 others---Respondents

Writ Petition No. 11126 of 2001, decided on 19th June, 2001.

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 14(g)---Zakat and Ushr Ordinance (XVIII of 1980), Ss.18(4), proviso & 21(2) (b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Election--Administrator of Local Zakat Committee--Disqualification---Joint candidature of the petitioners for the seats of Nazim and Naib-Nazim was rejected by District Returning Officer on the ground that one of the petitioners was Administrator Local Zakat and Ushr Committee and he being a Government employee was disqualified to be a candidate under the provisions of S. 14(g) of Punjab Local Government Elections Ordinance, 2000---Validity---Person who was a salaried employee of Government or local authority or of corporation set up , owned or controlled by the Government was not eligible to be a member of Local Zakat Committee under the provisions of proviso to S.18(4) of Zakat and Ushr Ordinance, 1980---Very structure of the Committee and consequently the person who was appointed as its administrator in case of its supersession, however, completely ousts a person mentioned in S.14(g) of Punjab Local Government Elections Ordinance, 2000, from being appointed as a member or an Administrator---Such being the position the District Returning Officer acted without lawful authority while proceeding to reject the papers of the petitioner on ground of his being an Administrator of a Local Zakat Council---Order of District Returning Officer was set aside while that passed by the Returning Officer accepting the papers of the petitioners was restored---Constitutional petition was allowed accordingly.

Inayat Ullah v. C.C.-cum-Chairman, District Zakat Committee and 2 others PLD 1993 SC 426 rel.

M. Ramzan Chaudhry for Petitioners.

Dr. A. Basit for Respondents Nos.3 and 4.

Naseem Sabir Chaudhry, Addl. A.-G. (on Court's call).

YLR 2001 LAHORE HIGH COURT LAHORE 971 #

2001YLR971

[Lahore]

Before Muhammad Khalid Alvi, J

Syed RIAZ HUSSAIN GILLANI---Petitioner

versus

RETURNING OFFICER, HALQA NO.85, UNION COUNCIL LAR, TEHSIL AND DISTRICT MULTAN and 3 others---Respondents

Writ Petition No.3885 of 2001, heard on 24th May, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

----S.14---Expression "amount adjudged" in S. 14, Punjab Local Government Elections Ordinance, 2000---Scope--Recovery of such amount---Where some dues against a candidate are adjudged by the Court of competent jurisdiction, the question of its being recoverable or not is not relevant ,for the purpose of S. 14 of Punjab Local Government Elections Ordinance, 2000---For an amount to be adjudged, it is not necessary that the amount was fixed after a full, fledged trial---When parties before a Court of competent jurisdiction agree to settle their dispute through a compromise and the Court passes a decree and fix their liabilities, then the amount so fixed is an adjudged amount due against that party.

(b) Punjab Local Government Elections Ordinance (V of 2000)--- .

----S. 14(j)---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Qualification of candidates---Bank default-- Respondent was a candidate for the seat of Nazim---Objection was raised to the candidature on the ground that certain amount of Bank loan was adjudged against the respondent---Objection petition was dismissed by the Authorities---Contention of the respondent was that the decree against him was passed with consent and the same could not be termed as amount adjudged, hence provision of 5.140) of Punjab Local Government Elections Ordinance, 2000 was not applicable---Validity---Respondent had admitted his liability before the Court of competent jurisdiction and the Court had passed a decree against him for the amount-- If the respondent was not ready to clear the amount adjudged, the nomination papers of respondent were deemed to have been rejected---Orders passed by the Authorities were declared to illegal and without lawful authority---Constitutional petition was allowed in circumstances.

Mian Ashfaq Ahmad for Petitioner.

Sardar Riaz Karim for Respondent No.3.

Sardar Latif Khan Khosa for Respondent No.4., Date of hearing: 24th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 973 #

2001 Y L R 973

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MJUHAMMAD ANUN --- Appellant

versus

THE STATE---Respondent

Criminal Appeal No.80 of 1999, heard on 6th June, 2001.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence--Presence of witnesses on the spot at the time of incident was natural---Not a single question was put to doubt the genuineness of the statements of the witnesses---No enmity had been :brought on record or even suggested to show the false implication of the accused--Time of occurrence, weapons used and receipt of injuries stated by the eye-witnesses were all confirmed by the medical evidence--Recovery of blood-stained dagger at the instance of accused coupled with the Chemical Examiner's Report and Serelogist's Report had also corroborated the prosecution version---Motive for the occurrence had been established---Conviction and sentence of accused were maintained in circumstances.

Shahid Hussain Qadri for Petitioner.

Malik Muhammad Aslam for the State.

Date of hearing: 6th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1001 #

2001 Y L R 1001

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Zafar Yasin, JJ

PERVAIZ JAHANGIR and another---Petitioners

versus

DISTRICT RETURNING OFFICER, KHANEWAL and 4 others---Respondents

Writ Petition No. 4057 of 2001, decided on 16th May, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

----S.8---Members of a union council--Separate electorate---Concept---Non-Muslim candidate can qualify for a seat other than that of minorities---In terms of the break-up of various categories of members as provided in S.8 of Punjab Local Government Elections Ordinance, 2000, there are only 12 seats specifically meant for Muslims/including 4 women seats and one for minority community whereas the remaining i.e. six seats are for peasants, workers including (two women) and of Nazim and Naib Nazim---No bar exits for a person of minority community to contest against seats other then those mentioned in S.8(a) of Punjab Local Government Elections Ordinance, 2000---Members of a union council are to be elected on the basis of adult franchise and the requirement of separate electorate is mandatory insofar as the seats described in S. 8(a) (c) of Punjab Local Government Elections Ordinance, 2000, are concerned but for the remaining seats all the voters have a right to vote---Non-Muslim is eligible for the seat other than the minority seat as there is no concept of separate electorate for these seats.

(b) Punjab Local Government Elections Ordinance (V of 2000)---

----S.14(d)---Constitution of Pakistan (1973), Arts. 36 & 199---Constitutional petition--Protection to minorities---Non-Muslim candidate for a seat other than the seat reserved for minorities---Expression provided that these qualifications shall not apply to a person who is a non-Muslim in S.14(d), Punjab Local Government Elections Ordinance, 2000---Import and implication--Applicability---Respondents were non-Muslims and were candidates for seats of Nazim and Naib Nazim---Objection petition against the respondents was dismissed and the nomination papers of the respondents were accepted by the Authorities ---Validity--Qualification prescribed for candidates for the Local Council Elections were not restricted to Muslims alone and those were general and while requiring adequate knowledge of Islam from Muslim candidates the same had created exception for non-Muslim as in S.14(d) of Punjab Local Government Elections Ordinance, 2000, which was to the effect that 'provided that these qualifications shall not apply to a person who is a non-Muslim, but such a person shall have a good reputation"--Reservation of special seats was not meant to restrict the minorities to those seats alone--Provision primarily was aimed at safeguarding the interests of minorities in a Muslim majority country, because otherwise they might not get a chance to be elected--Such provision of law did not mean that non-Muslim could not contest for other seats which had not been specified in law as ,'Muslim seats---Such benign measure could not be interpreted to the disadvantage of the non-Muslims---Legislative intent was reflective of the Constitutional safeguards provided to the minorities in Art. 36 of the Constitution---High Court declined to interfere with the orders passed by the Authorities and Constitutional petition was dismissed.

PLD 1979 Pesh. 23 ref.

Khadim Nadim Malik for Petitioners.

Malik Muhammad Rafique Rajawana: Amicus curiae.

Muhammad Qasim Khan, A.A.-G. (on Court's call).

Ch. Saghir Ahmad, Standing Counsel for the Federal Government.

YLR 2001 LAHORE HIGH COURT LAHORE 1011 #

2001 Y L R 1011

[Lahore]

Before Muhammad Nawaz Abbasi, J

MUHAMMAD AMIR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.408-B of 2001, decided on 23rd May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss.302/324/147/148/149--Bail on ground of statutory delay---Delay in conclusion of trial was not caused by the prosecution and instead it was either because of the acts and omissions of the accused or unaviodable reasons which could not be attributable to the prosecution or defence and probably even beyond the control of the Trial Court---Conclusion of the trial after framing of the charge was delayed due to the defence---Contention that the statutory ground for grant of bail had matured even before framing of the charge was of no avail to the accused who having the direct motive against the deceased had played major role in the occurrence---Accused, therefore, despite the lapse of a period of more tha three years since the taking place of the occurrence was not entitled to bail on the ground of statutory delay---Bail application was dismissed accordingly.

Haji Niaz v. The State 1995 PCr.LJ 1934; Zahid Hussain Shah v. The State PLD 1995 SC 49; Sher Ali alias Sheri v. The State 1998 SCMR 190; Abdur Rashid v. The State 1998 SCMR 897; Panjal v. The State 1990 PCr. LJ 2051 and Muhammad Shabbir v. The State 2000 MLD 12 ref.

Malik Rab Nawaz Noon for Petitioner.

Muhammad Ilyas Siddiqi for the Complainant.

Jaam Muhammad Asghar for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1032 #

2001 Y L R 1032

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

TOWN COMMITTEE, KOT ABDUL MALIK, DISTRICT SHEIKHUPURA through Administrator---Appellant

versus

PROVINCE OF PUNJAB through the Secretary, Local Government and Rural Development Department, Punjab, Lahore and another ---Respondents

Intra-Court Appeals Nos:262 to 280 and 337 to 353 of 1994, decided on 30th April, 2001.

(a) Punjab Local Government Ordinance ,(VI of 1979)---

----S.166---Where the notifications were issued by the Provincial Secretary, Local Government and Rural Development, the same were not appealable under the provisions of S.166 of Punjab Local Government Ordinance, 1979.

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

----S.5---Condonation of delay---Public exchequer was involved in the matter---Where huge public exchequer was involved, the delay in filing of appeal was condoned in circumstances.

Muhammad Tahir and 2 others' case PLD 1989 SC 627 ref.

----S.5---'Sufficient cause'--- Connotation and applicability--'Sufficient cause' mentioned in S.5 of the Limitation Act, 1908, means a cause beyond control of the party and the same is a question of fact that varies from case to case and ultimately it rests on the decision of the Court--- "Sufficient cause" should receive liberal construction so as to advance cause of substantial justice--Parameter of each case would primarily be its own facts which would have to be taken into consideration for determining as to whether sufficient cause is shown or not.

Mst. Begum and others v: Mst. Begum Kaniz Fatima Hayat 1989 SCMR 883 ref.

(d) Administration of justice---

----Subsequent events---Courts have ample power to look into the subsequent events while deciding the case.

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

----Art. 199---Constitutional petition-- Disputed question of fact---High. Court has no jurisdiction to resolve disputed questions of fact in a Constitutional petition.

Muhammad Younis Khan's case 1993 SCMR 618; Bachoo and others' case 2001 SCMR 155; Sarfraz Khan's case 2001 SCMR 574 and Mian Muhammad Yousaf's case PLD 2001 Lah. 22 ref.

(f) Words and phrases---

----"Notification"--- Connotation--- Word "notification " means a notification published under proper authority in the Official Gazette.

Chief Administrator, Auqaf v. Narrin and others 1980 CLC 378 ref.

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

----Art.199---Law Reforms Ordinance (XII of 1977), S.3---Intra-Court Appeal---Disputed question of fact---High Court in exercise of Constitutional Jurisdiction decided disputed question of fact---Validity---Respondents might avail alternative remedy by filing a civil suit for resolution of the disputed question of -fact---Judgment passed by the High Court in Constitutional petition was set aside and Intra-Court Appeals were allowed accordingly.

Ris Pir Ahmed Khan's case 1981 SCMR 37; Abdul Hamid Darsi's case 1970 SCMR 558; The Sky Room Ltd.'s case 1988 SCMR 1229; Abdul Nabi's case 1988 SCMR 1906; Abdul Malik's case 1994 SCMR 833 and Nasir Jamal's case 1990 CLC 1069 ref.

Dilawar Mahmood for Appellant.

Dr. A. Basit and Shahzad Shaukat for Respondent No.2.

Ijaz Ahmad Chaudhary, Addl. A.-G.

YLR 2001 LAHORE HIGH COURT LAHORE 1062 #

2001 Y L R 1062

[Lahore]

Before Ijaz Ahmad Chaudhry, J

NASIR AYUB and 2 others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.3325-B of 2001, decided on 4th July, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Bail---Age---Determination of--Birth Certificate and School Leaving Certificate could not be preferred over the report of the Medical Board according to which the abductee was 18 years of age who claimed to have contracted marriage with the accused with her free-will and consent--Other accused had allegedly signed the Nikahnama as witnesses---No allegation of Zina or abduction was made against the accused and their case required further inquiry---Police also had recommended for the cancellation of. the case on the ground that the allegations levelled in the F.I.R. were not proved---Accused were admitted to bail in circumstances.

Shahid Hussain Kadri for Petitioners.

Abdur Rashid Qureshi for the Complainant.

Ashfaq Ahmed Chaudhry for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1063 #

2001 Y L R 1063

[Lahore]

Before Raja Muhammad Sabir, J

UMER DIN through Legal Heirs and 2 others---Petitioners

versus

SHAKILA BIBI and 12 others---Respondents

Civil Revisions Nos.30 and 31 of 2001, heard on 1st June, 2001.

Arbitration Act (X of 1940)---

----Ss. 14, 17, 26-A, 30 & 33---Award, setting aside of---Concurrent findings of facts by two Courts below---Application to set aside the award was filed by the petitioners---Both the Courts below refused to set aside the award--Plea raised by the petitioners was that the arbitrators failed to give reasons in favour of the award---Validity---Arbitrators had given reasons in the award, provided sufficient opportunity to the parties, heard them, examined their documents, their respective possessions, and thereafter declared the award---Such award was not without reasons as alleged---Where the concurrent findings of both the Courts below were based on proper assumption of law and facts, the same did not warrant interference.

Wazir Khan and 8 others v. Sardar Ali and 25 others 2001 SCMR 750; Dr. Khalida Malik and 2 others v. Mst. Farida Malik and 7 others 1994 MLD 2348 and Muhammad Saghir Bhatti & Sons v. The Federation of Pakistan and another PLD 1958

C.M. Latif Rawn and Sardar M Ramzan for Petitioners.

Zahid Hussain Khan and Waqar Ahmad Khan for Respondents.

Date of hearing: 1st June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1074 #

2001 Y L R 1074

[Lahore]

Before Falak Sher, C J

Syed TAHIR LAL SHAH BUKHARI---Petitioner

versus

Syed RIAZ HUSSAIN SHAH BUKHARI---Respondent

Transfer Application No.611-C of 1998, decided on 25th July, 2001.

Civil Procedure Code (V of 1908)---

----S.24---Transfer of civil suit from one district to another district ---Mala fide intention---Ex parte proceedings--Matrimonial dispute between petitioner's daughter and respondent was pending at place "J "---Respondent filed suit for recovery of Rs.2, 00,000 against the petitioner at place "P "---Contention of the petitioner was that the respondent had maliciously involved him for extraneous consideration in view of the matrimonial litigation ---Validity--Respondent opted not to join proceedings and was proceeded against ex parse---Where the contentions urged by the petitioner were well-based and were not dislodged the suit was transferred from place "P" to place "J "---Application was allowed accordingly.

Muhammad Arif Raja for Petitioner.

Nemo for Respondent.

YLR 2001 LAHORE HIGH COURT LAHORE 1085 #

2001 Y L R 1085

[Lahore]

Before Raja Muhammad Sabir, J

GOVERNMENT OF THE PUNJAB EDUCATION DEPARTMENT through Secretary Education---Petitioner

versus

ATTAULLAH QURESHI and 2 others---Respondents

Civil Revision No.2027 of 1998, heard on 11th June, 2001.

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

----S.12(2)---Second application under S.12(2), C.P.C.---Scope---Lower Appellate Court was not competent at all to entertain application under S.12(2), C.P.C. after its dismissal by the High Court on merit on the same grounds.

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

----Ss.11 & 12(2)---Second application under S.12(2), C. P. C. --Principle of res judicata--Applicability---High Court had dismissed application under S.12(2), C.P.C. filed by the petitioner who filed another application before the Lower Appellate Court which was also dismissed---Validity---Where the dispute between the parties had finally been adjudicated upon, fresh petition under S.12(2), C. P. C. before the Lower Appellate Court was not maintainable at all which was also hit by S.11, C. P. C. ---Judgment passed by Lower Appellate Court was perfectly in accordance with law and warranted no interference by the High Court.

Lat' Din and another v. Muhammad Ibrahim 1993 SCMR 710 ref.

Ch. Rashid Ahmad for Petitioner.

Mian Israr-ul-Haq for Respondents.

Date of hearing: 11th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1091 #

2001 Y L R 1091

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MUHAMMAD SARWAR alias Kala---Appellant

versus

THE STATE---Respondent

Criminal Appeal No-650 and Murder Reference No.219 of 1996, decided on 26th June, 2001.

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

----S.102---Self-defence, right of--Commencement and continuance of the right of private defence of the body---Right of self-defence continues as long as the apprehension of use of force continues and it is just like the two wheels of the chariot which have to go side by side and the moment one wheel crumbles the chariot has to come to a dead stop.

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

----S.99---Self-defence, right of---Extent to which the right of self-defence may be exercised---Right of self-defence at such moment of impulse cannot be measured in golden scales and it is well-nigh impossible to modulate one's attack in the exercise of right of self-defence step by step to ensure that force used is commensurate with the danger averted---Law, therefore, always gives certain degree of allowance if the right of self-defence is marginally exceeded---Only when the force used in self-defence is grossly out of proportion to the danger precipitated by the assailant or the use of force after danger comes to end that law considers such force to be in excess of right of self-defence and visits the perpetrator with punishment.

----S.302(b)---Appreciation of evidence--Prosecution version being tainted was not worthy of reliance and in such a situation the alternative for the Court was to accept the defence version in its totality in the interest of safe dispensation of justice---Accused had killed the deceased in the exercise of his right of self-defence and committed no offence--Accused was acquitted in circumstances.

Masood Mirza for Appellant.

Pir S.A. Rashid for the Complainant.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 26th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1102 #

2001 Y L R 1102

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

SHAHID NAWAZ alias BAWA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Nos.2934-B and 1342/M of 2001; decided on 25th June, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Petitioner eras the main accused who had caused the fatal blow to the deceased ---Co-accused who were granted bail had not been challaned by the police---Trial was in progress and five witnesses had been examined and other witnesses were present for examination---Bail was declined on merits as well as on statutory ground.

Syed Shahid Hussain Kadri for Petitioner,

YLR 2001 LAHORE HIGH COURT LAHORE 1103 #

2001 Y L R 1103

[Lahore]

Before Maulvi Anwarul Haq, J

MUQARRAB HUSSAIN through Legal Heirs and another---Appellants

versus

Pirzada MUHAMMAD RAFIQ through Legal Representatives---Respondent

Regular Second Appeal No.62 of 1984 heard on 27th April, 2001.

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

----Art.72---Document, proof of---Uncertified photocopy---Such document is not admissible in evidence under the provisions of Qanun-e-Shahadat, 1984.

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

----Art,140---Confronting ' a witness with document---Procedure---Where a party seeks to contradict a witness by statement made by him in writing, his attention must, before the writing can be proved, be called to its those parts which are to be used for the purpose of contradicting the witness.

Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730 ref.

----Arts.31 & 34---Admission of fact--Previous proceedings---Admissions would be relatable only in proceedings in which they were made and could not be used as admission for the purpose of other suit which had been tried on its own merit in the light of evidence recorded therein.

Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 ref.

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

----S. 100---Second appeal---Concurrent findings of fact by the Courts below---Dispute was with regard to allotment of suit property---Trial Court decreed the suit in favour of respondent and the judgment was upheld by Lower Appellate Court---Where there was no misreading and non-reading of evidence on record by the Courts below while recording concurrent findings of fact, High Court declined to interfere with the judgments passed by Courts below---Second appeal was dismissed in circumstances.

Tassawar Hussain Qureshi for Appellant.

Sahibzada Rashid Mehmood for Respondent.

Date of hearing: 27th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1107 #

2001 Y L R 1107

[Lahore]

Before Riaz Kayani, J

Malik NAZIR AHMED, V.P. AUDIT, LAHORE---Appellant

versus

Sh. FAZAL HUSSAIN and 6 others---Respondents

Criminal Appeal No.484 of 1996, decided on 3rd July, 2001.

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

----Art.13---Criminal Procedure Code (V of 1898),, 5.403---Person once convicted or acquitted not to be tried for the same offence---Principle of autrefois convict and autrefois acquit is based on the axiom-, hat no person shall be vexed twice for the same offence---Important principle underlying invocation of this rule is that if such person is tried by a Court of competent jurisdiction for an offence irrespective of the fact whether he is convicted or acquitted, he cannot be tried again for the same offence.

Sayed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 ref.

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

----S.403--.-Constitution of Pakistan (1973)--Art.13---Protection against double punishment---Filing of second complaint after withdrawing the first complaint ---Effect--Withdrawal of the first complaint and bringing of the second complaint do not violate the provisions of S. 403, Cr. P. C. nor attract rule of double jeopardy arising out of Art. 13 of the Constitution.

Sayed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 ref.

Mazhar Hussain and others v. Ile State and others 1993 PCr.LJ 576; Malik Anjum Farooq Paracha and 7 others v. Manzoor-ul-Haque Chohan and 4 others 1993 PCr. L1 1056 distinguished.

----S.369---Court not to alter judgment--Review---Word 'judgment" used in S.369, Cr. P. C. means a firm determination resulting in the final adjudication after application of judicial mind---Section 369, Cr. P. C. prohibits a Court that once a judgment is signed it shall not be altered or reviewed except to correct a clerical error.

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

----Ss.202 & 369---Fresh complaint---No judgment was passed in the case and an order permitting the complainant to withdraw the complaint to file a fresh complaint was made---Filing of fresh complaint was in no manner violative of the provisions of S.369, Cr. P. C.

(e) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S.7---Criminal Procedure Code (V of 1898), Ss.200 & 203---Acquittal of accused due to non-maintainability of fresh complaint---Validity---Although there was no enabling provision in the Code of Criminal Procedure where a complaint was withdrawn for technical reasons, afresh complaint could be brought, but in the present case permission of the Court was sought not only to withdraw the complaint but also to bring a fresh complaint and secondly and more importantly there was no prohibition in the Criminal Procedure Code, 1898, in the interest of justice, for bringing a fresh complaint on the same allegations when a previous complaint was allowed to be withdrawn---Such course was possible only by invoking the rule of necessary caution for the proper exercise of discretion where exceptional circumstances must exist for the entertainment of the second complaint upon the same allegations--Manifest error, manifest miscarriage of justice and new facts of which the complainant had no knowledge or the counsel with reasonable diligence could not have brought forward in the previous proceedings, might amount to exceptional circumstances falling within one or more of the three categories---Whenever a Court was satisfied that the previous order of dismissal was due to manifest error or had resulted in the miscarriage of justice, it could entertain the second complaint on the same allegations--Manifest error existed on the part of the complainant in not complying with the mandatory provisions of law that he begged the Court to allow him to withdraw the complaint, to comply with the mandate and thereafter to file a fresh complaint---Fresh complaint had been filed by the complainant after seeking permission and complying with the directions of law---No exercise of mind by the Court in a judicial manner after examining of the evidence in the first complaint was undertaken and neither were the accused summoned, therefore, initiation of fresh proceedings through the second complaint was not prohibited by any provision of law and the same could very well, be maintained---Accused could not make a grievance once having been summoned that the second complaint. for technical reasons was not maintainable---Impugned order of acquittal passed by the-Tribunal, therefore, was palpably unjust occasioning a manifest miscarriage of justice and the same was consequently set aside and the case was remanded to the Trial Court to commence trial from the stage it was left and conclude it expeditiously.

Atta Muhammad and others v. Iqrar Ahmad and another 1991 PCr.LJ 274; Sayed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121; Mazhar Hussain and others v. The State and others 1993 PCr.LJ 576; Malik Anjum Farooq Paracha and 7 others v. Manzoor-ul-Haque Chohan and 4 others 1993 PCr.LJ 1056; Muhammad Sharif and 13 others v. Inayat Ullah and 24 others 1996 SCMR 145; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Ghazala Yamin v. Muhammad Yamin 1987 MLD 2940 and Mst. Bushra Mughal v. Additional District Judge, Kharian and others 1999 MLD 2960 ref.

Tariq Qazi for Appellant.

Ch. Mushtaq Ahmad Khan and Imran Aziz Qureshi for Respondents.

Date of hearing: 15th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1135 #

2001 Y L R 1135

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

GHULAM DASTAGIR---Petitioner

versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, 701-WAPDA House, Lahore and 2 others---Respondents

Writ Petition No. 14771 of 1999, heard on 30th May, 2001.

Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S.17(1-A) (a)---Constitution of Pakistan (1973), Arts.2A, 4, 9, 14, 25, 37(e), 38(b), 199, 203-G & 212---Constitutional petition--Vires of provisions of a statute---Jurisdiction of High Court---Petitioners in their Constitutional petitions had prayed that provisions of S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958 which had conferred unlimited powers on the Authority being discriminatory and un Islamic should be declared ultra vires of the Constitution---Petitioners had failed to point out that said provisions of law were hit by any Fundamental Rights of the petitioners guaranteed by Constitution and that the provisions were in conflict with Injunctions of Islam or were hit by principles of natural justice---High Court had no jurisdiction to declare the statute as against the Injunctions of. Islam by virtue of Art.203-G of Constitution of Pakistan (1973), even if the statute was promulgated, by the President or the Governor at the time when National Assembly or Provincial Assemblies were not functioning.

Ms. Benazir Bhutto's case PLD 1988 SC 416; Pir Sabir Shah's case PLD 1994 SC 738; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Collector of Customs, Karachi v. Messrs New Electronics Ltd. PLD 1994 SC 363; Nisar Ahmad's case 1999 SCMR 1338; Muhammad Ibrahim Mangrio's case 2001 SCMR 848; Muhammad Ramzan's case 2001 CLC 158; Pakistan WAPDA v. Ahmed Nawaz 1986 SCMR 571; Waseem Ahmad Khan v. WAPDA 1997 SCMR 2000; WAPDA v. Sikandar Ali Abro 1998 SCMR 137; PLD 1986 FSC 200; M. Daryyab Yousaf Qureshi v. Chairman, WAPDA PLD 1983 FSC 17 and Bashir Ahmad's case 1991 SCMR 2093 ref.

Mian Mehboob Hussain for Petitioner.

Muhammad Ilyas Khan and Aurangzeb Mirza for Respondents.

Date of hearing: 30th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1161 #

2001 Y L R 1161

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD MANSHA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.516 of 1994, heard on 3rd July, 2001.

Penal Code (XLV of 1860)---

----S.409---Appreciation of evidence--Accused, a public servant, was found to be responsible for loss of the file of the case which had been entrusted to him---Public servant having the dominion over the property in his capacity as such could be guilty of criminal breach of trust within the meaning of S.409, P. P. C. ---Said file had been secured by the accused from the record room dishonestly with specific motive---Mere fact that the file in question was not recovered could not by itself establish innocence of the accused--Conviction of accused was upheld in circumstances---Accused having not only lost his service but also had remained in jail for eight months and nine days before and after his conviction and his appeal had been decided after six years--Sentence of accused was accordingly reduced to the imprisonment already undergone by him.

Baland Rai v. The State NLR 1998 Appeal Cases 202 and Shameer's case 1982 SCMR 745 ref.

Zafar Iqbal Chohan for Appellant.

Malik Akhtar H. Awan, A.A.-G. for the State.

Date of hearing: 3rd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1185 #

2001 Y L R 1185

[Lahore]

Before Mrs. Fakharun Nisa Khokhar, J

AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY INC. and 2 others---Petitioners

versus

MUHAMMAD NASRULLAH BEG, BAIG & CO. ---Respondent

Civil Revision No.47 of 2000, heard on 3rd May, 2000.

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

----O. VII, R.14---Documentary evidence--Production of---Plaintiff is bound to place on record all the original documents in his possession on the first date of hearing of the case.

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

----O. VII, R.14, O. XI, Rr.15, 16 & O. XIII, R.I---Documentary evidence---Filing of-- Procedure---No document in possession or power of any party can be received at later stage unless the Court receiving any such document records reasons for doing so such being the intention of the provisions of O.XI, Rr. 75, 16, O. VII, R.14 & O. XIII, C P. C.

PLD 1968 SC 140; AIR 1994 Pat. 177; AIR 1979 Orissa 96; AIR 1986 Mad.19; United Bank Ltd., Karachi v. Shabbir Ahmad Abbasi and another PLD 1981 Kar. 255; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Karam Din alias Khechro v. Rana Zaheer-ud-Din PLD 1992 Lah. 291; Ghulam Qadir and another v. Mst. Kundan Bibi and another 1991 SCMR 1935 and Mutali v. Manzoora and another PLD 1994 Lah. 298 ref.

----Ss. 20 & 115---Revision---Jurisdiction of Trial Court---On the basis of oral as well as documentary evidence the Trial Court at place "L " decided the issue of jurisdiction in favour of the plaintiff---Defendant raised objection to the jurisdiction of Trial Court at place "L "---Validity---Cause of action had arisen at place "L " the defendants had office at place "L" where they facilitated the plaintiff, received the payment and sent the document subject-matter of the suit to place "K"---High Court, in exercise of revisional jurisdiction, declined to interfere with the order passed by the Trial Court---Revision was dismissed in circumstances.

Jawwad Hassan for Petitioners.

Tariq Ahmad Farooqi, M.N. Beg and Sh. Saleem Aftab for Respondent.

Dates of hearing: 2nd and 3rd May, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1213 #

2001 Y L R 1213

[Lahore]

Before Sayed Zahid Hussain, J

BANKERS EQUITY LIMITED (BEL) through Attorney and 5 others---Plaintiffs

versus

APEX FABRICS LIMITED and 9 others---Defendants

C. O. S. No. 131 of 1997, decided on 6th June, 2001.

Civil Procedure Code (V of 1908)---

----Ss. 9, 20 & O. VII, R.10---Contract Act (IX of 1872), S.28---Parties on their own volition and consent and in particular the plaintiff keeping in view its convenience had exercised choice as to the Court at Karachi for all matters arising out of or under the agreement---None of the parties had pointed out that Court at Karachi would have no jurisdiction in the matter---Effect---Choice so made by the parties would bind them which was neither illegal nor contrary to the public policy---Mere non-inclusion of such a clause in other agreements between the same parties would not make any difference---Plaint filed at Lahore was liable to be returned for its presentation before the appropriate Court at Karachi in circumstances.

Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi 1992 SCMR 1174; Messrs E.F.U. General Insurance Limited and others v. Fahimul Haq 1997 CLC 1441; The Directorate of Industries and Mineral Development Government of the Punjab through its Director, Lahore and 3 others v. Messrs Masood Auto Stores through Masood Ahmad Malik, Partner, Lahore PLD 1991 Lah. 174 and State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 ref.

M. Naeem Sehgal for Plaintiffs.

Khalid Rashid for Defendants.

YLR 2001 LAHORE HIGH COURT LAHORE 1215 #

2001 Y L R 1215

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE---Petitioner

versus

MUHAMMAD ILYAS and others---Respondents

Criminal Original No.291/W of 2001, decided on 11th July, 2001.

Penal Code (XLV of 1860)---

----S. 193---Appreciation of evidence--Prosecution witnesses had no animus against the accused for their false implication in the case---Evidence led by prosecution had consistently established that although it was in the knowledge of the accused that the F.1. R. concerned allegedly lodged by lady prosecution witness had been cancelled, yet they deliberately filed the Constitutional petition in High Court supported by a sworn false affidavit by stating that the said lady witness was still alive---Defence evidence was not credible---Prosecution had successfully proved the charge against the accused under S.193, P. P. C. beyond any shadow of doubt---Any person who had deliberately told a lie during the solemn proceedings of a Court of law knowing fully well that he was thereby likely to ruin the life or reputation of an innocent citizen or jeopardize his liberty by falsely involving him in a criminal case, did not deserve any leniency and never ought to be let off lightly---Accused were consequently convicted under 5.193, P. P. C. and sentenced to undergo three years' R.1. each with fine in circumstances.

Mst. Karim Khatoon v. The Stale PLD 1984 SC 44 ref.

Muhammad Hanif Khatana, Addl. A.-G. for the State.

Khalid Naveed Dar and Mian Sher Muhammad and Mian Irfan Akram for Respondents.

Qayyum Tahir Chaudhry for the Complainant.

YLR 2001 LAHORE HIGH COURT LAHORE 1226 #

2001 Y L R 1226

[Lahore]

Before Jawwad S. Khawaja, J

TELEFON INTERNATIONAL PROJECT SERVICE (PVT.) LTD. through Managing Director Mr. Muhammad Ajmal Ansari---Petitioner

versus

CHAIRMAN, CENTRAL BOARD OF REVENUE, ISLAMABAD with Camp Office at Customs House, Lahore and 2 others---Respondents

Writ Petition No. 20726 of 1999, heard on 4th December, 2000.

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

----Art. 199---Constitutional petition ---Maintainability---General principles concerning maintainability of Constitutional petition are to be considered and applied according to the circumstances of each case.

Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan and others RLD 1998 SC 64; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Pakistan through Secretary, Finance and another v. Kohat Cement Co. and others PLW- 1995 SC 659; Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121; Edulji Dinshaw Ltd. v. Income Tax Officer PLD 1990 SC 399; Messrs Friends Sons and Partnership Concern v. The Deputy Collector, Central Excise and Sales Tax, Lahore and others PLD 1989 Lah. 337; Messrs Reezan Trading Co. v., Deputy 'Collector of Customs, Customs Port, Lahore and 2 others PLD 1988 Lah. 313; Muhammad Younus v. Chairman, Municipal Committee, Sahiwal and others PLD 1984 Lah. 345; Messrs Highway Petroleum Service (Regd.), Lahore v. Islamic Republic of Pakistan and another PLD 1977 Lah. 797; Muhammad Afzal & Son v. Federal Government of Pakistan and another PLD 1977 Lah. 1327; Sallahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244; Messrs Usmania Glass Sheet Factory Ltd., Chittagong v.. Sales Tax Officer, Chittagong PLD 1971 SC 205; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to GOP Works Division and 2 others PLD 1972 SC 279; Anjumari-e-Ahmediya Sargodha v. The Deputy Commissioner, Sargodha etc., PLD 1966 SC 639; Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294; Nagina Silk Mill Lyallpur v. The Income Tax Officer, A-Ward Lyallpur and another PLD 1963 SC 322; The Tariq Transport Co., Lahore v. The Sargodha Bhera Bus Service, Sargodha and 2 others PLD 1958 SC 437; State through Advocate General, N.-W.F.P., Peshawar v. Naeem Ullah Khan 1999 SCMR 143; Messrs Gadoon Textile Mills etc. v. WAPDA and others 1997 SCMR 641; Mst. Kalsoom Laik and others v. Assistant Commissioner and others 1996 SCMR 710; Messrs Hirjina & Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax Central, Karachi 1971 SCMR 128 and Dada Steel Mills v. Baluchistan Government and another 1983 CLC 571 ref.

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

---First Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Laches---Importer had been importing the item since 1993 and had been paying customs duties on such imports under tariff headings other than the one which he had claimed now (1999) alleging to be the one which was appropriate heading to the items earlier imported--Constitutional petition filed in November, 1999 showed that the petitioner (importer) had not approached the High Court with the requisite promptitude---Importer who claimed to have paid duty under a mistake, while invoking the Constitutional jurisdiction of High Court, should have approached the Court promptly.

Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan and others PLD 1998 SC 64 fol.

----First Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Maintainability---Correct classification of items imported by an importer-- Adjustment by Customs Authorities ---Validity--Independent Tribunal headed by a former Judge of the High Court was functioning before which an importer could file an appeal if he was aggrieved of an adjudication made by the Customs Authorities---Constitutional petition by the importer was not maintainable because the importer failed to approach the competent forum vested with jurisdiction to decide the point of contention between the parties.

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

M. Saleem Sahgal for Petitioners.

A. Karim Malik for Respondents.

Dates of hearing: 30th November; 1st and 4th December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1239 #

2001 Y L R 1239

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Haji AHMED ULLAH---Appellant

versus

STATION HOUSE OFFICER, POLICE STATION, RAVI ROAD, LAHORE and another---Respondents

Intra-Court Appeal No.476 of 2001, decided on 12th June, 2001.

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

---S.3---Interim order ---Intra-Court Appeal -- Maintainability---Intra-Court Appeal is not maintainable against an interim order.

Ghaffar Hussain v. The District Magistrate 1996 SCMR 1209 ref.

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

----S.3---Intra-Court Appeal---Interim order passed in a Constitutional petition had been assailed in Intra-Court Appeal which was not maintainable---Even otherwise the impugned order being in accordance with law Intra-Court Appeal was dismissed accordingly.

Ghaffar Hussain v. The District Magistrate 1996 SCMR 1209; Messrs Muhammad Safdar & Company through Muhammad Safdar, Sole Proprietor of the Company, Okara v. Province of the Punjab through Secretary, Local Government of the Punjab, Lahore and 4 others PLD 1996 Lab. 22 and Javed Iqbal Abbasi, & Company v. Province of the Punjab and 6 others 1996 SCMR 1433 ref.

Aazar Latif Khan for Appellant.

YLR 2001 LAHORE HIGH COURT LAHORE 1246 #

2001 Y L R 1246(1)

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD FAROOQ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1636-B of 2001, decided on 30th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/34, 337-A(i) (ii) & 337-F(i)(iii), (v)--Bail, grant of---Case against the accused was that he was empty-handed and the only role assigned to him was that he pushed the injured in a room---Accused did not cause any injury to the prosecution witness who received injuries at the hands of co-accused--Allegations against the accused needing further inquiry, he was admitted to bail.

Ch. Maqbool Ahmad Dogar for Petitioner.

Muhammad Riaz Aura for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1247 #

2001 Y L R 1247

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD AZAM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 3700/B of 2001, decided on 25th July, 2001.

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

---S. 497 --Penal Code (XLV of 1860), Ss. 324, 148 & 149---Bail, grant of--Allegation levelled against the accused that he seriously injured wife of the complainant by firing at her, was supported by the medical evidence---Opinion of the Investigating Officer that the accused though was present at the spot, but he had not fired at the injured, was not sufficient to bring the case of the accused under S. 497(2), Cr. P. C. especially when injured and the other witnesses had supported the version given in the F.I.R. that the accused was present at the spot armed with a carbine and had fired--Opinion of police even otherwise was not binding on the Court---Accused was involved in a case covered by prohibition contained in S.497(1), Cr. P. C. and his conduct that he neither appeared before the Investigating Officer nor any Court of law and remained fugitive from law, was also a circumstance against him ---Co-accused were also absconding---Case being not fit for grant of bail, application of the accused was dismissed in circumstances.

(b) Criminal trial---

---- Opinion of police---Opinion of police was not binding on the Court.

M.D. Tahir for Petitioner.

Muhammad Jehangir Wahla, A.A.-G. with Muhammad Anwar Tiwana for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1272 #

2001 Y L R 1272

[Lahore]

Before Ijaz Ahmad Chaudhary, J

NADIM TAIMOOR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3651/B of 2001, decided on 23rd July, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Investigating Officer had affirmed that nothing was recovered from the accused during the investigation---Investigating Officer had also stated that the accused was declared innocent by the police and was placed in Column No. 2 of the challan---Complainant had not mentioned name of the accused in his first statement made to the police under S.154, Cr.P.C.---Even after the arrest of the accused, no parade was arranged for his identification by the police---Divergent statements were made by the complainant during investigation---Complainant had attributed fatal blow to the co-accused and had not mentioned the name of the accused in the F.I.R. which was got recorded by him after about two hours of the occurrence while in supplementary statement he had stated that the gunshot was fired by the accused---Which of the two statements of the complainant was correct could only be seen after recording the evidence---Case against the accused being of further inquiry, he was admitted to bail in circumstances.

Ch. Arshad Mahmood for Petitioner.

Miss Najma Parveen for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1273 #

2001 Y L R 1273

[Lahore]

Before M. Javed Buttar, J

PAKISTAN through the Secretary, Defence Production Division, Ministry of Defence, Government of Pakistan, Rawalpindi and 2 others---Petitioners

versus

Messrs MEHRAN SUGAR MILLS LTD., Karachi---Respondent

First Appeal from Order No.3 of 1998, heard on 8th June, 2000.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), 5.104 & O.XXXIX, Rr. 1, 2---Suit for declaration---Interim injunction, grant of--Cancellation of contract---Plaintiff assailed cancellation of contract in suit for declaration---Contention of the plaintiff was that contract awarded to him was still subsisting and that the cancellation of the contract by the defendants was illegal---Trial Court issued interim injunction in favour of the plaintiff---Plea raised by the defendant was that the suit was not maintainable as the same did not fall within the four corners of S.42 of Specific Relief Act, 1877---Validity--Where the suit was neither with regard to any legal character/status nor any right in any property of the plaintiff, declaration sought for, could not be granted---Plaintiff had no prima facie case and, therefore, Trial Court acted illegally in granting temporary injunction in favour of the plaintiff---Loss was calculable in cash, therefore, the element of irreparable loss was also missing---Order passed by the Trial Court was set aside and the plaintiffs' application under O.XXXIX Rr.1 & 2, C. P. C. read with S.151, C. P. C. was dismissed in circumstances.

M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC $3; Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190; Alavi Sons Ltd. v-. The Government of East Pakistan and 2 others PLD 1968 Kar. 222; Muhammad Farooq Khan v. Suleman A.G.- Panjwani and- others PLD 1977 Kar. 88; Abdul Rehman Mubashar and 3 others v. Syed Amir Ali Shah Bukhari and 4 others PLD 1978 Lah. 113; Messrs Chaudhry Construction Company Ltd. v. Pakistan and others 1990 CLC 394; S.T. Trading v. Assistant Collector, Central Excise and Sales Tax, Sheikhupura and others 1993 CLC 1915; Miss Roohi Sheikh v. Board of Secondary Education, Karachi and 2 others 1996 MLD 1190; Global Produce Limited v. Habib Credit and Exchange Bank Limited and 6 others 1998 CLC 165; Kanaiyalal Nanalal Desai v. The Secretary of State of India AIR 1925 Bom. 225; Sripatrao Sadashiv Upre v. Shankarrao Samaik AIR 1930 Bom. 331; Nathu Ram v. Mula and others AIR 1937 Lah. 25; Sub. Shingara Singh and another v. Brig. C.H.D.O. Callaghan and others AIR 1946 Lah. 247; Madanlal v. State of Madh. Bh. AIR 1955 MB 111 and Mahabir Jute Mills v. Firm Kedar Nath Ram Bharose AIR 1960 All. 254 ref.

Messrs Hatta Construction Company (Pvt.) Ltd. v. Faisalabad Development Authority, Faisalabad through Director and another 1995 CLC 1877 and Messrs M.A. Latif Janjua v. Islamic Republic of Pakistan through Secretary, Ministry of Defence, G.H.Q. Rawalpindi and 2 others PLD 1990 Pesh. 137 distinguished.

Sh. Iftikhar Ahmad for Appellants.

Ms. Robina Shaheen for Respondent.

Date of hearing: 8th June, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1279 #

2001 Y L R 1279

[Lahore]

Before Ghulam Mahmood Qureshi, J

Mian AZHAR MUNIR---Petitioner

versus

Mst. SURRAYA BEGUM alias SURRAYA SATTAR and another---Respondents

Civil Revision No.373 of 2000, heard on 5th July, 2001.

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

Art. 84---Comparison of signatures and thumb-impression--- Variations in, signatures ---Natural variation in the signatures of a person may appear due to variety of reasons, such as passage of time, age, infirmity and illness etc.---Person may also attempt to disguise his signatures to defeat a transaction but in presence of thumb impression, there is no possibility of any variation.

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

----Art. 84---Comparison of signatures--Report of Handwriting Expert---Refusal to get the document examined by the Expert--Application of the petitioner for comparison of signatures was dismissed by the Trial Court on the ground that the case was a direction case and such exercise would prolong proceedings of the suit ---Validity--Report of Handwriting Expert, subject to the objections, if any, would have facilitated the Trial Court to formulate its opinion on the question and the same would have been a judicious exercise of discretion if the application was allowed---Delay was ,not a factor which could have come in the way of the exercise of discretion, for, such a course would have advanced the cause of justice--Finding of the Trial Court was most arbitrary and exercise of discretion was not based on sound legal principle---Trial Court had exercised the jurisdiction illegally and with material irregularity---Order passed by the Trial Court was set aside and application of the petitioner was allowed in circumstances.

Rehman Dad and another v. -Maj. Raja SaJalalai Khan and others 1976 SCMR 350 and Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 ref.

Sh. Naveed Shahryar for Petitioner.

Sh. Abdul Aziz for Respondents.

Date of hearing. 5th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1282 #

2001 Y L R 1282

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ALI --- Petitioner

versus

RABNAWAZ and 14 others---Respondents

Civil Revision No.1007 of 1988, heard on 24th May, 2001.

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

----S. 43---Principle of feeding the estoppel--Applicability---Transfer contemplated under S.43, Transfer of Property Act, 1.882 ought to have been the result of a fraudulent or erroneous representation on the part of the transferor that he was authorised to transfer the property transferred.

Suba through his 8 L.Rs. v. Mst. Fatima Bibi through her L.Rs. and others 1992 SCMR 1721 ref.

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

----S. 43---Principle of feeding the estoppel--Applicability---Claim of right in property by vendor---No allegation of fraudulent or erroneous representation against vendor--Indemnity clause in sale-deed--Applicability---Part of suit land sold to the vendee by the vendor came to be lost by them but after the execution and registration of the sale-deed---Suit land was never owned by the vendor at the relevant time and the same was inherited only after the death of the brother of the vendor ---Vendees claimed right in the land subsequently inherited by the vendor on the basis of indemnity clause present in the sale-deed---Validity---Where such later loss of land was not attributed to the vendor at any stage, the same should not have been made basis to deprive the vendor of the land lawfully owned by him by stretching the provisions of S.43 of Transfer of Property Act, 1882---Indemnity clause was for the purpose that if for any reason attributable to the vendor, the vendee lost the entire or a part of the land sold, then .the vendee would be compensated by the vendor---Neither in the pleadings nor in evidence, in the present case, the case was made out that the vendor had made a fraudulent or erroneous representation to the vendees while the land mentioned in the sale-deed was sold to them, therefore, the provisions of S.43 of Transfer of Property Act, 1882; had no application--Both the Courts below had acted without jurisdiction while passing a decree in favour of the vendees in respect of the suit land against the vendor---Judgments and decrees of both the Courts below were set aside and the suit filed by the vendees was dismissed.

Suba through his 8 L.Rs. v. Mst. Fatima Bibi through her L.Rs. and others 1992 SCMR 1711 and Shamoon and others v. Ahmad and others 1986 SCMR 888 ref.

Tafazzal H. Rizvi .for Petitioner.

Altafur Rehman Khan for Respondent.

Date of hearing: 24th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1289 #

2001 Y L R 1289

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. DARAN and 3 others---Petitioners

versus

SULTAN MUHAMMAD and 20 others---Respondents

Civil Revision No.505/D of 1985, heard on 20th April, 2001.

(a) Practice and procedure--

---- Party has to succeed on the strength of its own case and not on the weaknesses of its opponents.

MD. Anwarullah Mazumdar v. Tamina Bibi and 5 others 1971 SCMR 94 ref.

(b) Punjab Rehabilitation and Settlement Scheme--

---- Para. 46---Non-confirmed allottee--Inheritance---Jurisdiction of Civil Court --Plaintiffs claimed to be the owner of the suit land on the basis of inheritance of the no confirmed allottee---Trial Court dismissed the suit for want of jurisdiction whereas Appellate Court allowed the appeal and decreed the suit---Validity---Inheritance, in the case of non-confirmed allottee would be governed by para. 46 of Punjab Rehabilitation and Settlement Scheme and the question of inheritance was not open to be agitated before the Civil Court---Predecessor of the parties died even before the allotment of the land---Where the inheritance mutation was attested in the year 1954, and further appeals and proceedings were in continuation of the same, Civil Court had no jurisdiction in the matter---Judgment and decree passed by Appellate Court were set aside and that of the Trial Court were restored.

Muhammad Siddique and 2 others v. Muhammad Sharif and 2 others 1992 SCMR 2260; Zafarullah and 20 others v. Muhammad Siddique and others PLD 1980 SC 76 and ' Ahmad Din v. Muhammad Rafi and others PLD 1971 SC 762 ref.

Ch. Abdul Majeed Tahir for Petitioner.

Nisar Ahmad Dhillun for Respondents Nos. l to 17.

Respondents Nos. 18 to 21: Ex parte.

Date of hearing: 20th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1293 #

2001 Y L R 1293

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD BABAR---Petitioner

versus

SENIOR SPECIAL MAGISTRATE, RECOVERY, F.T.R., FAISALABAD and 2 others---Respondents

Constitutional Petition No.4347 of . 1997, heard on 6th July, 2001.

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

----Ss. 2(a), 3(2), 3(3) & 10---Authority--Senior Special Magistrate whether Authority under the provisions of Pakistan Telecommunication (Reorganization) Act, 1996---Magistrate was neither an employee nor, an officer of the "Authority" employed under S.10 of Pakistan Telecommunication (Reorganization) Act, 1996, nor was he the "Authority" under S.3(2) or the Chairman of the "Authority" under S.3(3) of the Pakistan Telecommunication (Reorganization) Act, 1996---Magistrate by his designation was a civil servant employed by Provincial Government under Punjab Civil Servants Act, 1974 to recover public dues in accordance with West Pakistan Land Revenue Act, 1967, but such assignment did not make him an officer of Pakistan Telecommunication Authority.

(b) Pakistan Telecommunication (Reorganization) Act (X VII of 1996)---

----S. 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition--= Maintainability---Disconnection of Telephone---Orders of disconnection passed by Senior Special Magistrate ---Validity-- Where petitioner's telephone was disconnected under the orders of the Magistrate, the petitioner had no other efficacious and adequate remedy against such order---Authorities had no power under law to disconnect petitioner's telephone without any evidence and without opportunity of hearing---Order passed by the Authorities was without jurisdiction and lawful authority --Constitutional petition was allowed in circumstances.

---- "Reason "---Meaning.

Black's Law Dictionary, 6th Edn., Centennial Edn., 1891-1991 ref.

(d) Words and phrases---

---- "Reasonable "---Meaning.

Black's Law Dictionary, 6th Edn, Centennial Edn., 1891-1991 ref.

(e) Words and phrases---

---- "Reasonable act "---Meaning.

Black's Law Dictionary, 6th Edn., Centennial Edn., 1891-1991 ref.

Sh. Muhammad Hanif for Petitioner.

Gorvi Muhammad Din Chaudhry for Respondent.

Date of hearing: 6th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1307 #

2001 Y L R 1307

[Lahore]

Before Ijaz Ahmad Chaudhary, JJ

SIRAJ DIN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3856-B of 2001, decided on 13th August, 2001.

Criminal Procedure Code (V of 1898)---

-----S. -497---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail, grant of--Allegation of abetment had been levelled against the accused who was neither present at the spot nor he caused any injury to the deceased or injured prosecution. witnesses---Whether the accused had participated in occurrence and had the motive as alleged, would be determined after recording of material evidence at the time of trial---Only tentative assessment would be made at bail stage, and deeper appreciation of evidence would be made at the time of trial---Doctor had found two fire-arm injuries caused on the person of one of the 'accused persons which had been suppressed by the complainant side while lodging the FI.R.---Prima facie case of the accused fell within the ambit of further enquiry and the accused was entitled to the grant of bail.

Chaudhry Amir Rehman for Petitioner.

Ch. Muhammad Wasi Zafar for the Complainant.

Ch. Abdul Rashid Monan for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1311 #

2001 Y L R 1311

[Lahore]

Before Zafar Pasha Chaudhry, J

REHMAN ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 and Criminal Revision No.748 of 2000, heard on 20th June, 2001.

Penal Code (XLV of 1860)---

----Ss. 320/331---Criminal Procedure Code (V of 1898), S.439---Payment of Diyat amount---Accused was convicted and sentenced to two years' R.I. and also to pay Diyat amount---Sentence of imprisonment had practically been served out by the accused and only payment of Diyat remained unserved---Accused had prayed that he had no source to pay the amount of Diyat and if he was released on bail, he would arrange payment of Diyat within a period of three years in 36 equal instalments--Accused having served out his sentence of imprisonment of two years, he was ordered to be released on bail for a period of three years as prayed for by the accused---In case of amount of Diyat was not paid during the said period the accused would be taken back into the custody and kept in jail and would be treated as a, convict, undergoing simple imprisonment.

Amjad Mahmood v. The State 2001 PSC (Crl.) 222 and Muhammad Iqbal and others v. The State 2001 MLD 1100 ref.

Iqbal Mehmood Awan for Petitioner.

Ch. Nizam-ud-Din Arif for the State.

Date of hearing: 20th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1313 #

2001 Y L R 1313

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

NAVEEDUL HASSAN ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3807-B and 4015-B of 2001, decided on 30th July, 2001.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.324/337-A(i)1337-A(ii)/337-L(li)l148/149-Pre-arrest bail---Confirmation of---Four out of five accused persons were also injured in the same occurrence and their injuries had been suppressed by the complainant--Litigation about land was pending between the parties and status quo order had been issued in favour of the accused by the Civil Court---Pre-arrest bail already granted to the four accused persons was confirmed---Case of fifth accused was distinguishable as he was armed with mauser and had caused fire-arm injuries on the person of the injured and the said accused had prima facie exceeded the right of self-defence who was not entitled for pre-arrest bail and his application was dismissed.

Iqbal Mahmood Awan for Petitioner.

Tariq Mahmood Sipra for the Complainant.

Sardar Bilal Ahmad for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1322 #

2001 Y L R 1322

[Lahore]

Before Iftikhar Hussain Chaudhry and Dr. Munir Ahmad Mughal, JJ

MUHAMMAD IJAZ and 5 others --- Appellants

versus

THE STATE---Respondent

Criminal Appeal No.89 of 1999, decided on 25th October, 2000.

Penal Code (XLV of 1860)---

----Ss. 365 & 412---Appreciation of evidence---Sentence---Complainant or the prosecution witnesses had no enmity with the accused---Plea of the accused that they were involved in the case at the instance of one who had enmity with them, did not appeal to any reason--Complainant and the prosecution witnesses had not falsely involved the accused---In the absence of enmity between the parties, it was difficult to reject the testimony of the witnesses---Prosecution had succeeded to establish its case against the accused for offences alleged against them---Looted goods, were recovered from the Dera of one of the co-accused---Conviction of the accused under Ss. 365 & 412, P. P. C. was maintained, but as the accused had no criminal history, Court taking lenient view, reduced the sentence accordingly.

Abdul Baqi, Saiful Haq Ziay and Gohar Razzaq for Appellants.

Iqbal Butt for the State.

Date of hearing: 25th October, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1325 #

2001 Y L R 1325

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

MUHAMMAD ILYAS and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.382 of 1999, heard on 27th July, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/148/149--- Appreciation of evidence---Motive of occurrence stood proved---Version of the accused about occurrence also could not be ruled out--Nothing was recovered from three out of the five accused and they were also found innocent in five successive investigations--Three co-accused were acquitted of the charge extending them benefit of doubt---Case of the prosecution itself was that the deceased had illicit relations with the mother of one of the accused and due to that grudge the accused had committed the murder of the deceased---Prosecution itself made out a case of mitigating circumstances against the accused---Maintaining conviction under S.302, P. P. C., death sentence awarded to the accused by the Trial Court was converted to imprisonment for life accordingly.

Sahibzada Farooq Ali Khan for Appellants.

S.M. Rashid for the State.

Date of hearing: 27th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1329 #

2001 Y L R 1329

[Lahore]

Before Muhammad Nawaz Abbasi and Sheikh Abdur Razzak, JJ

MUHAMMAD AKRAM AWAN---Petitioner

versus

FEDERATION OF PAKISTAN, MINISTRY OF DEFENCE---Respondent

Writ. Petition No.724 of 1995, heard on 24th November, 1999.

(a) Official Secrets Act (XIX of 1923)---

----Ss. 3, 4 & 5---Pakistan Army Act (Jdi'XI of 1952), Ss. 132, 133, 133-A & 133-B (as amended by Pakistan Army (Amendment) Act (XXVIII of 1992)]---Constitution of Pakistan (1973), Art.199---Constitutional petition--Maintainability---Conviction by Field General Court Martial---Petitioner/accused who allegedly had communicated secrets pertaining to the defence to foreign intelligence agencies, was arrested under Official Secrets Act, 1923 and was convicted and sentenced by Field General Court Martial---Petitioner challenged his conviction and sentence through Constitutional petition---When the petitioner was, convicted and sentenced, the remedy of appeal was not available to him under Pakistan Army Act, 1952 i.e. that the conviction aced sentence awarded to the petitioner were not applicable at the relevant time---Non-availability of, appeal would not mean that conviction of the petitioner would be challengeable through Constitutional petition as of right--Contention of the petitioner that in absence of statutory right of appeal against his conviction at relevant time, same could be challenged before High Court under general law, was repelled because the petitioner neither could avail the right of appeal under the statute nor any appellate forum was available or provided at the relevant time--Subsequent availability of right of appeal as Provided through Pakistan Army (Amendment) Act, 1992 would not create right of appeal in favour of the petitioner who sustained conviction before the provision of appeal was introduced in the relevant law--Petitioner could not challenge his conviction on merits either through appeal or Constitutional petition---Petitioner instead of agitating the matter before High Court, could approach the concerned forum under 5.132 of Pakistan Army Act, 1952 for an appropriate relief.

Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6; I.C.I. Pakistan Limited v. Salahudin and others 1991 SCMR 15; Habib Bank Limited v. The State and 6 others 1993 SCMR 1853; Karam Dad and others v. Emperor AIR 1941 Lah. 414 and Mustafa Khar's case PLD 1989 SC 26 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court, in exercise of its Constitutional jurisdiction, could not review the law laid down by the Supreme Court.

Habibul Wahab El Khairi for Petitioner.

Qazi Ahmad Naeem Qureshi, Federal Counsel assisted by Lt.-Col. Iqbal Hashmi, Asstt. J.A.-G. for Respondent.

Date of hearing: 24th November, 1999

YLR 2001 LAHORE HIGH COURT LAHORE 1333 #

2001 Y L R 1333

[Lahore]

Before Riaz Kayani, J

AAMAR YOUSAF---Petitioner

versus

SAJID ALI ---Respondent

Criminal Miscellaneous No.2698-C/B of 2001, decided on 8th June, 2001.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of. 1860), S.395---Bail, cancellation of---Bail was granted to accused by the Trial Court on the statement of another passenger of the car from which the money was looted stating that accused was not present at the time of occurrence---Said passenger was not the only witness of take occurrence, as there were other persons who witnessed the occurrence and police apprehended the accused and recovered the amount and fire-arm from them in their presence---One witness among others having resiled would not make out a case of further inquiry particularly when the offence was that of dacoity and the dacoits armed with deadly weapons had looted the huge amount---Witness who had no' nexus with the owner of the car or its driver could be won over---Trial Court did not probe into the matter a bit more deeply so as to ascertain as to why said witness resiled from his statement in the presence of the statements of other eye-witnesses connecting the accused with the commission of offence---Trial Court in granting bail to the accused having not exercised its discretion properly, order granting bail to the accused was recalled and bail was cancelled.

Khadim Hussain Qaisar for Petitioner.

Rana Liaqat Ali for Respondent.

Date of hearing: 18th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1335 #

2001 Y L R 1335

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

NIZAM DIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.36 of 1999, heard on 25th July, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/460---Appreciation of evidence---. Occurrence had taken place in the dead and dark hours of the night and it was an unwitnessed occurrence ---Co-accused was acquitted by the Trial Court on the same evidence---Complainant and two other eyewitnesses were also injured in the occurrence, but their injuries were not mentioned in the F.LR. though all were medically examined by the doctor---Eye-witnesses could not be believed---Case was of two versions and the version of the accused seemed to be more plausible and convincing as compared to the version of the prosecution---Accused were arrested after seven days from the occurrence and pistol allegedly recovered from the accused and crime empties were received in the office of the Fire-arm Expert after more than two months from the occurrence---Case was full of doubts and even counsel for the State was not in a position to support the judgment of the Trial Court against the accused-- -Accused was acquitted of the charge extending him benefit of doubt.

Nasir Mehmood Khan for Appellant (at State expenses).

Sikandar Javed for the State.

Date of hearing: 25th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1338 #

2001 Y L R 1338

[Lahore]

Before Asif Saeed Khan Khosa, J

MURTAZA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1180-B of 2001, decided on 10th July, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 16/10(3)---Bail, grant of ---F.L.R. had been lodged with the delay of about three months ---Prosecutrix for many years before registration of the FIR had been travelling with the accused from place to place and had been living with him in a big city without raising any protest and without attracting the attention of anybody against the alleged excess being committed by the accused-- Accused had raised a defence of Nikah during investigation of the case---Suit for jactitation of marriage filed by the prosecutrix against the accused was pending before the Family Court---Challan in the case having already been submitted after completion of investigation, further continuation of physical custody of the accused was not likely to serve any beneficial purpose---Case against the accused requiring further inquiry, he was allowed bail.

Mian Fazal Rauf Joya for Petitioner.

Muhammad Aslam Budh for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1347 #

2001 Y L R 1347

[Lahore]

Before Khawja Muhammad Sharif and Naeemullah Khan Sherwani, JJ

ABDUL REHMAN and others---Petitioners

versus

THE STATE---Respondent

Criminal Appeal No. 387 of 1998 and Murder Reference No. 23 of 1998, heard on 2nd August, 2001.

Penal Code (XLV of 1860)---

----S.302/34---Appreciation of evidence--Deceased, while admitted in hospital, was not in a position to snake statement and the Doctor, who had given the certificate about the fitness of injured, was not produced by the prosecution---Both eye-witnesses were closely related to the deceased, but none of them reported the matter to police for three days---Doctor who medically examined the deceased did not in form the police when the injured was taken to the hospital---Such fact and the delay of three days in lodging the F.I.R. had lent support to conclude that eyewitnesses were not present at the spot at the time of occurrence---Alleged recovery of carbine was of no avail to the prosecution because no crime empty was recovered from the spot---Deceased was a person of bad character who had been involved in 15 criminal cases which had been brought on judicial file---Possibility of the deceased having been murdered by any of his other enemies could not be ruled out---No person .(from the locality was cited and produced as prosecution witness in the case---Prosecution story was full of doubts and the accused had been able to create dents in the story ---Co-accused was neither armed with any weapon of offence nor any recovery was effected from him and he did not even touch the deceased--Evidence in case of capital punishment must come through an unimpeachable source and should be of a high quality, which was missing in the case---Prosecution having failed to prove the guilt against the accused, conviction and sentence recorded against him by the Trial Court were set aside and they were acquitted giving them the benefit of doubt.

Sahibzada Farooq Ali Khan and S.M. Latif Khan Khosa for Petitioners.

Raja Abdur Razzaq for the State.

Date of hearing: 2nd August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1350 #

2001 Y L R 1350

[Lahore]

Before Khawaja Muhammad Sharif and Naeemullah Khan Sherwani, JJ

ABDUL HAMEED---Appellant

versus

THE STATE ---Respondent

Criminal Appeal No. 60 and Murder Reference No. 133 of 1999, heard on 25th July, 2001.

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

----S.302/34---Appreciation of evidence--Case was of two versions, one put forward by the prosecution and the other set forth by the accused and the version of the accused was probable and convincing---Both the eyewitnesses were closely related to the deceased and no independent witness had been produced by the prosecution--- Case was of single shot and the motive as given in the F. I. R. was false and could not be believed--Presence of both eye-witnesses at the spot did not seem to be plausible at the time of occurrence---Accused had stated that he fired at the deceased on account of grave and sudden provocation due to Ghairat---Version of the eye-witnesses and their presence at the spot having been disbelieved, there remained the version of the accused---Prosecution story having been disbelieved, version of the accused was to, be accepted in toto--Conviction of the accused was upheld, but sentence of death awarded to him by the Trial Court was converted to 10 years' R.I. and sentence of compensation was also set aside.

1998 PCr. LJ 111 ref.

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

----S.302(c)---Qanun-e-Shahadat (10 of 1984), Art. 121---Taking a specific plea--Where an accused had taken a specific plea in order to bring his case within purview of S. 302 (c), P. P. C. then according to Art. 121 of Qanun-e-Shahadat, 1984 the onus would lie on him.

---- Two versions, appreciation of evidence--Where the Court disbelieved the story of prosecution, version of the accused had to be accepted in toto.

Tariq Muhammad Chaudhry for Appellant.

Sh. Muhammad Rahim for the State.

Date of hearing: 25th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1354 #

2001 Y L R 1354

[Lahore]

Before Khawaja Muhammad Sharif and Naeemullah Khan Sherwani, JJ

BASHIR AHMAD alias BUSHRI---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No. 163 and Murder Reference No. 145 of 1998, heard on 24th July, 2001.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence--F.I.R. was promptly lodged---Accused had caused fatal shot to the deceased--Occurrence being a broad daylight it could not have gone unwitnessed---Ocular account was corroborated by material evidence--Motive for occurrence which was plausible had been proved---Mere insufficiency of the motive or the motive having not been proved, was no ground to award lesser sentence--Accused was witness in the case of abduction of his niece, which was registered 3 days before the occurrence---Accused had fired only one shot and did not repeat the same--Both these facts were sufficient for reducing the sentence of the accused---In view of said mitigating circumstance, sentence of death awarded to the accused by the Trial Court was converted into imprisonment for life--Sentence of payment of compensation was maintained.

Muhammad Yar Khan Daha for Petitioner.

Sikandar Tariq Ansari for the State.

Date of hearing: 24th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1357 #

2001 Y L R 1357

[Lahore]

Before Ijaz Ahmed Chaudhry, J

ABDUL REHMAN LUQMAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 3760/B of 2001, decided on 8th August, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Prevention of Corruption Act (II of 1947), S.5 (2)---Penal Code (XLV of 1860), S.161---Bail, grant of---Accused had failed to show any previous enmity or malice on the part of the complainant to falsely implicate him---Amount involved in the case was to be deposited by the shopkeepers themselves in the Bank and the accused being Food Inspector was not required to go to the shop of the complainant and to receive from him the said amount---Accused had his own office and was supposed to be there and the amount to be paid to the Government was to be deposited in the Bank and was not to be paid to any Officer---Version put forward by the accused with regard to recovery of disputed amount was not at all convincing or reasonable---Prosecution had sufficient evidence on record to connect the accused with the commission of crime and the explanation given by the accused was not sufficient for his exoneration from the case--Grant of bail to the corrupt persons involved in illegal gratification, even if his case did not fall within the prohibitory clause of S.497(1), Cr.P.C., was an exception and not a rule---Persons involved in corruption having not been dealt with iron hands, the corruption would have spread all over in the society---Accused having failed to make out a case for the grant of bail, his application was dismissed.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Bashir Ahmed v. The State 2001 SCMR 634 ref.

Akhtar Masood Khan for Petitioner.

Muhammad Saleem Shad for the State.

2001 Y L R 1363

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD RAFIQ and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1375/B and Criminal Revision No. 271 of 2001, heard on 1st August, 2001.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.337-A(i)(ii), 337-F(i)(v) & 337-L(ii)l34--Bail, cancellation of---Bail granted to the accused by Judicial Magistrate was cancelled by Additional Sessions Judge and the cancellation order was passed without hearing the accused---Additional Sessions Judge had nowhere mentioned that the absence of the accused was wilful or they had been served with a notice and had not turned up---Validity---Cancellation of bail would mean curtailment of liberty of a citizen and the grounds for cancellation of bail were entirely different from those of grant of bail--Nobody could be condemned unheard and bail granted to a person could not be cancelled until and unless he had been served with a notice and he had been heard or he avoided to appear in the Court---No such material was available against the accused--None of the offences allegedly committed by the accused fell within the prohibitory clause of S. 497, Cr. P. C. ---Grant of bail in. such case was a rule and refusal was an exception---Order cancelling bail having been passed by the Court below against settled principles of law, same was set aside and order granting' bail passed by the Judicial Magistrate was restored.

Bahadur Khan v. Alam Khan PLD 2000 Kar. 74 ref.

Mian Muhammad Akram for Petitioners.

Rao Muhammad Amjad for the State.

Date of hearing: 1st August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1364 #

2001 Y L R 1364

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD BILAL---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1560/13 of 2001 decided on 30th July, 2001.

Criminal Procedure Code (V of 1898)--

----S.497---Penal Code (XLV of 1860), Ss. 380/411---Ofence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Bail, grant of---Investigating Officer had conceded that at the time of arrest of the accused, co-accused who allegedly had developed illicit relationship with the accused and had stolen some ornaments and other things was not with the accused and that there was no witness who had seen the accused committing Zina with the co-accused---Even extra judicial confession did not show that the accused had been committing Zina with the co-accused-- Delay was of five days in reporting the matter to the police---Offences under Ss. 380/411, P. P. C. did not fall within the prohibitory clause of S. 497, Cr. P. C. while allegations under Ss.10/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 needed further probe and inquiry---Accused was released on bail, in circumstances.

Arshad Ali Chohan for Petitioner.

Malik Muhammad Arshad Javed for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1366 #

2001 Y L R 1366

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RAFIQUE---Petitioner

versus

GOVERNMENT OF PUNJAB and 8 others---Respondents

Constitutional Petition No. 13729 of 2001, decided on 23rd July, 2001.

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

----Art.199---Constitutional petition ---Maintainability---Interim order/notification/ arrangement---Constitutional petition against interim arrangement or interim notification or interim order is not maintainable.

Mian Ghulam Dastgir Bari v. Rai Salah-ud-Din and 3 others PLD 1987 Lah. 39 and Abdul Karim v. Zaram Hussain 1986 CLC 1942 ref.

(b) West Pakistan Motor Vehicles Rules, 1969---

----Rr. 5 .7-A & 62---Constitution ,of Pakistan (1973), Art. 199---Constitutional petition--Provisional route permit, issuance of--Grievance of the petitioner was that the Authorities had issued Notification of provisional route permit to respondent without providing opportunity of hearing to the petitioner---Validity---Petitioner was well within his right to file an application before the Authorities to implead him as a party on the ground that his vested right had been taken away by the respondents through the Notification--- Where the petitioner had alternative remedy before the Authorities under the provisions of West Pakistan Motor Vehicles Ordinance, 1965 and rules framed thereunder, High Court declined to interfere with the Notification issued by the Authorities---High Court directed the Authorities to decide application filed by the petitioner in accordance with law after providing proper hearing to all the concerned persons including the petitioner and respondent within reasonable time---Petition was disposed of accordingly.

Farooq Amjad Mir for Petitioner

YLR 2001 LAHORE HIGH COURT LAHORE 1368 #

2001 Y L R 1368

[Lahore]

Before Karamat Nazir Bhandari, J

Dr. IFTIKHAR AHMED BAIG---Petitioner

versus

PROVINCE OF PUNJAB through Secretary to Government of the Punjab, Education Department, Lahore and 3 others---Respondents

Writ Petition No. 17911 of 2000, heard on 16th July, 2001.

(a) Punjab Public Service Commission Regulations, 1998--

----Regln. 43---Recommendation of Commission---Withdrawal of---Locus poenitentiae, principle of ---Applicability-- Conditions---Commission, under Regln. 43 of Punjab Public Service Commission Regulations, 1998 is empowered to correct the recommendation on merit list---Such recommendation can be withdrawn by the Commission for review after its dispatch to the department concerned---Power of withdrawal is available to the Commission only till the time its recommendations have not been acted upon---Where the recommendations have been acted upon, the Commission is debarred from withdrawing its recommendation under the provisions of Regln. 43 of Punjab Public - Service Commission Regulations, 1998, as well as under the general principle of locus poenitentiae---[Locus poenitentiae]

(b) Confession---

---- Retracted confession is of no avail.

----Regln. 43---Constitution of Pakistan (19.73), Art.199---Constitutional petition--Recommendation of Commission, withdrawal of---Petitioner was appointed on recommendation of the Commission and after the petitioner had joined the department the recommendation was withdrawn---Contention of the petitioner was that the withdrawal of the recommendation was without any inquiry by the Commission on the allegation levelled against the petitioner---Plea raised by the respondent was that a person could not be permitted to retain benefit of fraud and the petitioner should be disentitled to any relief from High Court. on account of his conduct--Validity---Where the Commission was impressed by the retracted confession of the recommended alone and no proper inquiry was held by the Commission to come to the conclusion, withdrawal of recommendation by the Commission was without lawful authority and of no legal effect---High Court advised the Commission that in such cases order to act in just and more appropriate manner, inquiries be held as called for in the circumstances of a case.

Tariq Maqsood v. Government of Punjab through Secretary, Home Department, Lahore and another 1998 PLC (C.S.) 810; Umed Khan v. Kalu and another PLD 1959 (W.P) Lah. 671; Satyanarayan v. Mallikarjun AIR 1960 SC 137; Kaushalya Devi v. Baghittah Singh AIR 1960 SC 1168; Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 ref.

Muhammad Shahzad Shaukat for Petitioner.

Muhammad Amin Lone, Asstt. A.-G for Respondent No. 1.

Mushtaq Ahmad Mohal for Respondents Nos. 2 and 4.

Hafiz Abdul Rehman Ansari for Respondent No.3.

Dates of hearing: 13th and 16th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1373 #

2001 Y L R 1373

[Lahore]

Before Mian Saqib Nisar, J

PUNJAB BRICKS COMPANY, through ABDUL RASHID and another---Petitioners

versus

Messrs PERVAIZ COAL AGENCY and another through its Sole Proprietor---Respondents

Civil Revision No. 1338 of 2001, decided on 15th June, 2001.

Civil Procedure Code (V of 1908)---

----O.XIV, R.S & O.XVII, R.3---Framing of additional issues---Duty of Court---Scope--After the close of evidence under O.XVII, R.3, C. P. C., the petitioner filed application for framing of additional issues and the application was dismissed by the Trial Court---Validity---Although it was the duty of Trial Court to frame proper issues, but at the same time, it was also obligation of a - party to litigation to point out to the Court at earliest available opportunity, any error in that behalf--Where such defect was not so pointed out at the appropriate stage, the defaulting party would be deemed to have waived his plea/claim---Evidence of the petitioner, in the present case having been closed by Trial Court under the provisions of O.XVII, R.3, C.P.C., such order could not be put to naught through such indirect method of asking for the framing of an additional issue---High Court declined to interfere with the order passed by the Trial Court.

Ch. Muhammad Jahanzeb Wahla for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 1384 #

2001 Y L R 1384

[Lahore]

Before Riaz Kayani, J

MUHAMMAD BILAL---Appellant

versus

THE STATE --- Respondent'

Appeal No.261 of 1998, heard on 2000.

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

----S.302---Last seen evidence ---Worth--Requisites---For the last seen evidence to be trustworthy, it should be in close proximity to the death of the deceased and the place from where dead body was recovered.

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

----S.302---Appreciation of evidence---Last seen evidence---Credence---Law required exactitude in evidence, but last seen evidence as furnished by prosecution witnesses who were nearest relatives of the deceased being not trustworthy, was of no avail to the prosecution---Prosecution witnesses-who were nearest relatives of the complainant and the deceased had claimed that the accused had made extra judicial confession before them--Said witnesses, however, had not captured the accused and got recorded their statements with the police after two days of alleged confession---Conduct of the witnesses seemed very strange and contrary to human behaviour---Being closely related to the deceased they could have attempted to take the accused in custody or could have at least raised hue and cry attracting others to help them in getting hold of the accused--Testimony of said witnesses was nothing but a pack of lies and no credence could be placed upon their deposition---Disharmony existed between ocular testimony and the medical evidence---Police Officer brought in Dhoti/cloth allegedly having been used to strangulate the deceased, stating that same belonged to the accused---No credible evidence had come oh record identifying said "Dhoti " to be belonging to the accused---No other piece of evidence was on record to connect the accused with commission of offence of murder---Prosecution having failed to prove guilt of the accused, conviction and sentence recorded by the Trial Court against him were set aside and the accused was acquitted of the charge.

Iqbal Mahmood Awan for Appellant.

Masood Mirza and Abdul Qayyum Anjum for the State.

Date of hearing: 6th July, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1388 #

2001 Y L R 1388

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD WARIS and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.382 and Murder Reference No.451 of 1998, heard on 1st August, 2001.

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

----S.302/34---Appreciation of evidence--Sentence---FIR. was promptly lodged and names of the accused, the weapons they were carrying and the role they had played, had been specifically mentioned therein---Case was not of grave and sudden provocation--Motive part of the occurrence though was weak, but weakness of motive would hardly make any difference in awarding the death sentence and would not constitute a mitigating circumstance---Eye-witnesses were closely related to the deceased, but they had no enmity with the accused to falsely implicate them in the case---Occurrence having taken place in broad daylight, there was no question of mistaken identity--Witnesses had stated in truthful manner what they had seen---Duration given by the doctor between the death of the deceased and post mortem, coincided with the time of occurrence---Ocular account was fully corroborated by medical evidence---Non recovery of empty from the spot would not advance the case of the accused because it could be due to rush of the people who had gathered at the place of occurrence---Accused who had murdered the deceased in a brutal manner, neither deserved any leniency nor was any mitigating circumstance in his favour so far as question of sentence was concerned---Conviction and sentence awarded to the accused were maintained ---Co-accused though were armed with dagger and pistol, but they did not cause any injury to any deceased---Convictions and sentences recorded against the co-accused, were set aside.

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

----S. 302---Appreciation oft evidence--Sentence---Weakness of motive, effect of--Weakness of motive or its absence where alleged, but not proved---Such position would hardly make any difference in awarding the death sentence and could not constitute a mitigating circumstance, if the eye-witness account otherwise was worthy of credence, unimpeachable, confidence-inspiring and the accusation was established beyond any shadow of doubt.

----S. 302---Appreciation of evidence ---Non recovery of empty from the spot ---Effect--Non-recovery of empty from the spot would not advance the case of the accused because it could be due to rush of the people who had gathered at the place of occurrence and merely on the basis that no crime empty was recovered from the spot, the prosecution could not be made to suffer.

Sahibzada Farooq Ali Khan -for Appellants.

Atta Ullah Khan Tareen for the State.

Date of hearing: 1st August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1397 #

2001 Y L R 1397

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD IFTIKHAR and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.367 of 1996 and Murder Reference No.96 of 1997, heard on 23rd July, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/324/148/149---Appreciation of evidence---Five injuries had been found on the person of the deceased which were caused by two different weapons---Case thus could not be said to be that of a single shot--Presence of two eye-witnesses alongwith their deceased father at the place of occurrence could not be kept out of consideration because at the relevant time it was turn of the complainant party to irrigate their lands--Specific injuries were attributed to the accused and said injuries were borne out from the medical account---Twenty-five pellet marks were found on the wall of the "Dhari " constructed by the complainant party and seven crime empties of twelve bore gun alongwith one empty of rifle, were recovered from the place of occurrence---Contention of the accused that no independent witness had been produced, was without force because no direct enmity existed between the parties--Case against the accused had fully been proved, but the complainant in FI.R. had himself stated that the deceased abused the accused---Deceased was responsible for the occurrence as he himself extended provocation to the accused---Case being that of sudden flare-up and not of premeditation, taking same to be a mitigating circumstance, sentence of death awarded to the accused by the Trial Court was converted into life imprisonment---No injury having been attributed to the co-accused, conviction and sentence recorded by the Trial Court against them were set aside.

Sahibzada Farooq Ali Khan for Appellants.

Sh. Muhammad Rahim for the State.

Sh. Muhammad Usman for the Complainant.

Date of hearing: 23rd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1402 #

2001 Y L R 1402

[Lahore]

Before Mrs. Nasira Iqbal, J

SURRAIYA BIBI---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others---Respondents

Writ Petition No.3953 of 1998, heard on 28th June, 2001.

Constitution of Pakistan (1973)---

----Art.l99---West Pakistan Family Courts Act (XXXV of 1964), S.5---Constitutional petition--- Marriage--- Validity--- Concurrent findings about valid marriage---Scope of interference by High Court ---Nikahnama showing the marriage of the petitioner lady with respondent (4) was found to be a fabricated document while her Nikah with respondent (3) was found to be valid by both the Courts below ---Nikahnama of the petitioner with respondent (4) was admittedly prior in time to her Nikahnama with respondent (3)---Despite a concurrent finding of fact in favour of respondent (3) by the two Courts below, High Court being a Court of equity found it unjust to compel the petitioner to accept her Nikah with respondent (3) when she had been living with respondent (4) as his wife for the past several years and there was an issue from the marriage who would have to face stigma of illegitimacy if the judgments of the lower Courts were upheld---From the conduct of respondent (3) it appeared that he was inspired more by vindictiveness towards respondent (4) rather than a genuine desire to have the petitioner as his wife, since he had been prosecuting both the petitioner and respondent (4) for the last almost nine years---High Court, therefore, while exercising its equitable and discretionary jurisdiction accepted the statement of the petitioner that she had never contracted Nikah or lived with respondent (3)---Even if the Nikahnama of respondent (3) was bearing the thumb-impression of the petitioner, such a contract caused by coercion and being without free consent would not be enforceable ---Nikah of the petitioner with respondent (4) was upheld on the basis of their statements to the effect that they were legally married to each other, as it would foster the ends of justice and save the minor child from stigma of illegitimacy and would also save the petitioner from a hateful union with respondent (3)---Impugned judgments of Courts below were consequently declared to be without lawful authority and of no legal effect and the petitioner was declared to be the lawfully wedded wife of respondent (4)--Constitutional petition was accepted accordingly.

Arif Hussain and another v. The State PLD 1982 FSC 42 ref.

Yousaf Kazmi for Petitioner.

Ghulam Muhammad Mehr for Respondents.

Date of hearing: 28th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1406 #

2001 Y L R 1406

[Lahore]

Before Karamat Nazir Bhandari, J

MUHAMMAD SADIQ and others---Petitioners

versus

EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN, LAHORE and others---Respondents

Writ Petitions Nos.5605, 2883, 6375, 6712, 8075, 8076, 8077, 8078, 8097, 8178, 9120, 9709, 9710, 10132, 10043, 10354, 10583, 10673, 11060, 11885 of 1999, 2800, 3409, 4701, 8280, 10146 and 18616 of 2000, decided on 12th October, 2000.

(a) Evacuee Trust Properties (Management and Disposal) Act (X111 of 1975)---

----S.30---Scheme for the Lease of Evacuee Trust Agricultural Land, 1975, paras. 3 & 7---Constitutional petition---Lease of evacuee trust lands under the Scheme---Notice to pay increased lease money according to revised formula---Validity---Increase of rate of lease money under revised formula was exorbitant and was assessed without hearing the lessees---Right of hearing to persons who were likely to be adversely affected by orders/actions of public functionaries, would be deemed to be part of every statute, unless specifically excluded---Evacuee Trust Properties (Management and Disposal) Act, 1975 or the Scheme had not excluded the application of said principle---Lessees who were petty cultivators and were affected adversely by the revised formula, should have been heard before imposing upon them an enhancement of lease- money ranging from 200% to 650% and it would have been just and fair if the proposed enhancement formula was published, objections invited and view points of the lessees heard and such a course would have served the requirement of natural justice---No body could claim to exercise the statutory powers against the principles of equity and fairness---Principles of natural justice having not been followed by the Authority in enhancing the lease money, provision of revised formula for assessing lease amount was declared to be illegal.

(b) Administration of justice---

----Principles---Nobody could claim to exercise the statutory powers against the principles of equity and fairness.

Malik Muhammad Azam Rasool for Petitioners.

Ch. Fazal-i-Hussain for Respondents.

Dates of hearing: 28th September; 2nd and 3rd October, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1410 #

2001 Y L R 1410

[Lahore]

Before Javed Buttar and Mian Muhammad Najam-uz-Zaman, JJ

THE STATE---Appellant

versus

HAMID ALI alias AHMAD ALI ---Respondent

Criminal Appeal No.813 of 1992, heard on 24th July, 2001.

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

----Ss.302/324---Criminal Procedure Code (V of 1898), S.417(1)---Appeal against acquittal---Accused at the time of occurrence was 15 years of age whereas the deceased and his companion were adults---Prosecution had not given any plausible reason as to why the deceased and the accused were going towards a lonely place during the odd hours---Possibility that the accused had been taken to a lonely place by the deceased and his companion for the purpose of committing sodomy and during the attempt accused caused injuries to them in order to save himself, could not be ruled out---If from the evidence available on record two different views with regard to the same occurrence could be formed, then the view favourable to the accused was to be followed for safer administration of justice---Trial Court had rightly disbelieved the prosecution version and accepted the defence plea---Reasons advanced by the Trial Court for acquitting the accused of the charges under Ss.302 & 324, P. P. C. were neither perverse nor fanciful and warranted no interference by High Court--Appeal against acquittal of accused was dismissed accordingly.

(b) Criminal trial---

----Evidence---Two views---When two different views from the evidence on record in respect of the same incident can be formed, then the view favourable to the accused is to be followed for the safer administration of justice.

----Ss.308 & 100, fourthly ---Appreciation of evidence---Defence plea of the accused that he had caused injuries to the deceased and his companion as he was under instant fear of being subjected to sodomy, had been accepted---Case of accused would, therefore, be covered under 5.100, cl. fourthly, P.P.C. and he was entitled to get the benefit of right of .self-defence---Accused was acquitted in circumstances.

Miss Yasmeen Sehgal, Asstt. A.-G. for the State.

Masood Mirza for Respondent.

Date of hearing: 24th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1419 #

2001 Y L R 1419

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD DIN and 3 others---Appellants

versus

SAFDAR ALI ---Respondent

Regular Second Appeal No. 150 of 1982, decided on 8th June, 2001.

Majority Act (IX of 1875)---

----S. 3---Civil Procedure Code (V of 1908), S.100---Second appeal---Concurrent findings of fact by the Courts below---Age of majority of a person---Plaintiff assailed transfer of suit property on the ground of fraud---Trial Court having found the plaintiff minor at the time of transaction decreed the suit---Judgment and decree passed by the Trial Court were maintained by " First Appellate Court-- Validity---Court had not appointed any guardian of the minor plaintiff regarding his person or property and as such the age of majority under S.3 of Majority Act, 1875, was 18 years---Where at the relevant time the plaintiff was minor as such any transaction on his behalf regarding his property was not legally binding on him without appointment of a guardian---Showing of the plaintiff as major was based on fraud and misrepresentation, appeal was dismissed in circumstances.

Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC 22; Muhammad Anwar v. Muhammad Siddiq Hashim PLD 1992 SC 838; Abdul Majid and others v. Khalil Ahmed PLD 1955 FC 38 and Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 ref.

Abdul Majeed Khan for Appellants.

Muhammad Atif Ameen for Respondents.

Date of hearing: 14th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1428 #

2001 Y L R 1428

[Lahore]

Before Ch. Ijaz Ahmad, J

RASHID ALI---Petitioner

versus

NATIONAL COLLEGE OF ARTS through Principal and another---Respondents

Writ Petition No.20550 of 2000, heard on 14th June, 2001.

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

----Art. 199---Constitutional petition--Maintainability---Petitioner had not alleged any malice against the Authorities---Where there was general allegation of malice, Constitutional petition was not sustainable.

Saeed Nawaz's case PLD 1981 SC 371 ref.

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

----Art. 199---Constitutional petition--Maintainability---Petitioner having failed to point out violation of any rules and regulations by the respondents, Constitutional petition was not maintainable.

Mussadaq's case PLD 1973 Lah. 600 ref.

----Art. 199---Constitutional petition-Expulsion of student from college on the charge of sexual harassment---Disciplinary action---Failure to frame charge by the College Authorities---Opportunity of cross-examination not provided to the student--Contention of the petitioner/student was that Disciplinary Committee had neither framed any formal charge nor any opportunity of cross-examination of the witnesses was provided to him---Validity---When the petitioner was aware of the proceedings which were to be conducted by the Disciplinary-Committee, it was neither necessary to frame or serve the petitioner with any formal charge, nor it was necessary to formally examine any witness in the presence of the petitioner---High Court declined to exercise discretion in favour of the petitioner and order passed by the Authorities was not interfered with---Constitutional petition was dismissed in circumstances.

Ali Mir's case 1984 SCMR 433; Zakir Ahmed's case PLD 1965 SC 90; Ahmed' case PLD 1981 SC 464 and Hassan Arbab Khan's case 1996 CLC 1734 ref.

Imran A. Malik for Petitioner.

Qamar-uz-Zaman for Respondents.

Date of hearing: 14th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1435 #

2001 Y L R 1435

[Lahore]

Before Mansoor Ahmad, J

SARDAR BEGUM---Petitioner

versus

MUKHTAR AHMED and 7 others---Respondents

Civil Revision No.1050 of 2001, heard on 3rd July, 2001.

(a) Appeal (civil)---

---- Forum of appeal---Determination---Value given in the plaint for the purpose of jurisdiction and court fee determines the forum of appeal in absence of any determination of value of the suit by the Trial Court.

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

----O. VII, R.II (b)---Valuation given in the plaint---Review of---Jurisdiction of Trial Court under O. VII, R. 11, C.P.C.---Valuation mentioned and given in the plaint by the plaintiff can be reviewed by the Trial Court under the provisions of O. VII, R.11, C. P. C. and plaintiff is required to pay the same.

----S. 8---Court Fees Act (VII of 1870), S.7(iv)(e)---Civil Procedure Code (V of 1908), O. VII, R.11(6)---Valuation of suit for the purposes of court-fee ---Conferring pecuniary jurisdiction---Correction of valuation---Jurisdiction of Trial Court under O. VII, R. II, C. P.C. ---Suit for declaration--Effect of provisions of S.8 of Suits Valuation Act, 1887 read with S.7(iv)(c) of Court Fees Act, 1870 and O. VII, R.11, C. P. C. is that value of, suit in a suit for declaration has to be determined on the basis of relief claimed for but if the value placed by the plaintiff in the plaint is arbitrary, same is rectifiable by exercising the power of review by the Trial Court under O. VII, R.11, C. P. C. ---In absence of any such review or determination, the value of suit given by plaintiff in the plaint is to be taken as the basis for conferring pecuniary jurisdiction on Trial Court as well as on the Appellate Court.

Ali Muhammad alias Ali Ahmad and others v. Mahbub Ahmad and others 1987 SCMR 1263; Elahi Bakhsh v. Bilqees Begum PLD 1985 SC 393; Messrs State Life Insurance Corporation and others v. Fazal Muhammad and others 1982 CLC 1162; Muhammad Zafar v. Yousaf Ahsan PLD 1987 Lah. 512; Micro Electronics International (Pvt.) Ltd. v. Sohail Ahmad and 5 others 1995 CLC 1874; Messrs Suleman & Co. v. Islamic Republic of Pakistan and others 1990 CLC 2183 and Sardar Din v. Elahi Bakhsh and others PLD- 1976 Lah. 1 rel.

(d) Suits Valuation Act (VII of 1887)---

----S. 8---Civil Procedure Code (V of 1908), S. 96 & O. VII, R.11---Rejection of plaint--Valuation of suit---Pecuniary jurisdiction of Appellate Court---Plaintiff in the plaint had given value of the suit for the purpose of court fees and jurisdiction as Rs.200---Trial Court did not direct the plaintiff to correct the valuation and without such direction plaint was rejected by the Trial Court--Appellate Court returned memo. of appeal on the ground that the suit was undervalued--Validity ---Where Trial Court had not directed the correction of court fee the valuation of the suit in the plaint would be taken as the basis for determining the pecuniary jurisdiction of the Trial Court as well as of the forum of appeal till its determination by the Court--

Appellate Court was not correct in taking the value of the suit at Rs.6 lacs and directing the return of the memo of appeal---Order passed by Appellate Court whereby memo of appeal was returned was set aside in revision.

Nasir Ahmad Baig for Petitioner.

Mehdi Khan Chowhan for Respondents.

Date of hearing: 3rd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1444 #

2001 Y L R 1444

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD TANVIR ASHRAF---Petitioner

versus

DEPUTY REGISTRAR, COOPERATIVE SOCIETIES, FAISALABAD and 2 others---Respondents

Writ Petition No. 12929 of 2001, decided on 17th July, 2001.

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

----S. 82(8)---Criminal Procedure Code (V of 1898), 5.491---Constitution of Pakistan (1973), Art.199---Habeas corpus petition--Maintainability---Arrest and detention of defaulter---Alternate remedy, non-availing of---Effect---Where detenu had alternative remedy before Revenue Officer under S.82(8) of West Pakistan Land Revenue Act, 1967, but he failed to avail the sane, habeas corpus petition/Constitutional petition was not maintainable. (p. 1446) A

Akbari Begum's case NLR 1995 Cr1.LJ 51 (sic); Imdad Hussain's case PLD 1974 Kar. 485; Ghulam Muhammad's case PLD 1975 Kar. 118; Bari Ahmad's case 1994

CLC 273 and Ijaz Hussain's case 1994 CLC 275 ref.

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

----S. 82---Criminal Procedure Code (V of 1898), 5.491---Constitution of Pakistan (1973), Art.199---Final warrant of arrest--Inquiry into---Jurisdiction of High Court under S.491, Cr. P. C. and under Art.199 of the Constitution---Scope---Where final warrant of arrest had been issued under the provisions of West Pakistan Land Revenue Act, 1967, High Court had no jurisdiction to go beyond the same to find out whether the warrant had been issued after fulfilling legal requirements under the West Pakistan Land Revenue Act, 1967, by issuing a notice or not as the same required inquiry which was not covered in the scope of power under 5.491, Cr. P. C. or under Art. 199 of the Constitution.

Ch. Noor Hussain's case 1983 PCr.LJ 442; Arshad Hussain's case PLD 1982 Azad J&K 107 and Nisar Ahmad's case PLD 1997 SC 852 ref.

----S. 82---Criminal Procedure Code (V of 1898), 5.491---Constitution of Pakistan (1973), Art.199---Final warrant of arrest--Setting aside of---Issuance of the warrant in violation of manner prescribed under West Pakistan Land Revenue Act, 1967--Validity---Such warrant cannot be declared illegal through collateral proceedings as it would be deemed to be in accordance with law unless and until the warrant is set aside by any competent Court/forum--Habeas corpus petition/Constitutional petition was not maintainable in circumstances.

Sabir Shah's case PLD 1994 SC 738 and Javaid Iqbal's case 1987 ' PCr.LJ 681 ref.

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

----Chap. VIII (Ss. 74 to 112]---Collection of land revenue---Execution---Mode---Authority under West Pakistan Land Revenue Act, 1967 had discretion to adopt any mode of execution.

Sayed Hassan Mahmud's case PLD 1980 Kar. 37 ref.

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

----S. 82---Constitution of Pakistan (1973), Art. l99---Constitutional petition---Bona fide intention---Detention for recovery of decretal amount---Deceased father of detenu secured loan but the decree was passed by Competent Authority in presence of detenu---Authorities, under the provisions of S.82 of West Pakistan Land Revenue Act, 1967, issued final warrant of arrest and detained the detenu-- Constitutional petition was filed only to set up a defence to avoid discharge of the liabilities of decretal amount due against the detenu in order to impede course of recovery and hamper due process of law with mala fide intention-- Bona fides of a petition had to be carefully examined so that no one could be permitted to abuse the process of law-- High Court, in the interest of justice, directed the Authorities to release the detenu after receiving sum of Rs.50,000 from the petitioner and consider the request of the detenu to discharge his liability in easy instalments.

Shaukat Ali's case 1972 SCMR 398 ref.

Ghulam Haider Afazal for Petitioner.

Sadiq Hayat Lodhi for Respondents,

YLR 2001 LAHORE HIGH COURT LAHORE 1458 #

2001 Y L R 1458

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

ALI MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 163 of 1990, heard on 11th December, 2000.

Penal Code (XLV of 1860)---

---Ss.420 & 471---Appreciation of evidence--Conviction and sentence was recorded against the accused after about six years of registration of case against him and the accused had already undergone a period of four months and twenty-one days---Accused did not derive any benefit from the amount allegedly withdrawn by him---Period of four months and twenty-one days when the accused remained in jail would be sufficient to meet the ends of justice.

1990 SCMR 320 ref.

Kh. Basit Waheed for Appellant.

Sh. Javed Sarfraz, Standing Counsel for the State.

Date of hearing: 11th December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1460 #

2001 Y L R 1460

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUNIR AHMAD and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 86 of 1999 and 60 of 2000, heard on 1st August, 2001.

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

----Ss. 302/324/148/149---Appreciation of evidence---Occurrence had taken place in dark hours of night---Prosecution had failed to produce any evidence to show that any electricity or other light was available at the time of occurrence---It was impossible for the complainant and the eye-witnesses in such dark hours to state the role played by the accused during the occurrence when the accused were firing indiscriminately---Out of fifteen nominated accused, 12 were found to be innocent in 2/3 investigations---No motive existed with the accused to commit murder of two persons and to cause injuries to the injured prosecution witnesses---Ocular evidence with regard to time of occurrence ,:us not corroborated by medical evidence and cross-examination of prosecution witnesses and the admission made by doctor had shown that the occurrence had not taken place in the manner and at the time as the prosecution had mentioned---Recovery of firearm on the pointation of the accused was found to be fake---Case was of two versions--One put forward by the accused and the other by the prosecution---Version put forward by the accused which was supported by the Investigating Officer and medical evidence, appeared to be more plausible and nearer to the truth as compared to the prosecution story which seemed to be unreasonable and improbable---Evidence, in a case of capital punishment, must have come from an unimpeachable source, which was lacking in the case as prosecution story was full of doubts and the accused had been able to create dents in prosecution story through material contradictions between the ocular account and the medical evidence---Benefit of doubt, in circumstances, had to be granted to the accused not as a grace, but as a matter of right---Conviction and sentence awarded to the accused by the Trial Court, were set aside and they were acquitted from the charge.

1999 SCMR 1030 ref.

(b) Criminal trial---

---Witness---Injured prosecution witnesses would not always speak the truth.

---- Opinion of Investigating Officer--Relevance---Opinion of the Investigating Officer, though not binding on the Court, but in the peculiar facts and circumstances, their opinion would be of relevance.

Mansoor Alamgir Qazi and Sahibzada Farooq Ali Khan for Appellants.

Sh. Muhammad Rahim for the State.

Muhammad Bashir Khan for the Complainant.

Date of hearing: 1st August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1467 #

2001 Y L R 1467

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Sherwani, JJ

MUHAMMAD DIN and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 350 in Murder Reference No. 423 of 1998, heard on 2nd August, 2001.

Penal Code (XLV of 1860)---

----S.302/34---Application of evidence--Grave and sudden provocation---Version of the complainant was that the occurrence had taken place outside the house of the accused and the dead body was taken by the accused to their house---Case was of two versions and the version put forward by the accused was more plausible and convincing as compared to version of the complainant-- No marks of dragging were found from the place where according to the prosecution the deceased was murdered and then dead body was taken by the accused to their house---No trail of blood was present between the two places-- Prosecution story that the occurrence had taken place outside the house of the accused and then dead body was taken by them to their house thus was falsified-- Dead body of the deceased had been recovered from the house of the accused, even blood-stained earth was also taken from the said place---Version of the accused that the deceased, who was alleged to have illicit relations with sister of the accused, was found lying with his sister at the relevant time and he killed the deceased under sudden provocation appealed to reason---Both the eye-witnesses who were real father and brother of the deceased were not proved to be present at the spot---Had they been present at the spot, they must have tried to save the deceased and then to restrain the accused from shifting the dead body outside the house---Nature and number of injuries on the person of the deceased, had also shown that the occurrence had taken place under grave and sudden provocation ---Co accused had been acquitted of the charge---Murder having been committed under grave and sudden provocation, sentence which the accused had already undergone was treated to be sufficient to meet ends of justice.

Malik Abdul Aziz for Appellants.

Attaullah Tareen for the State.

Date of hearing: 2nd August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1470 #

2001 Y L R 1470

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

NIAZ AHMED ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 128/BWP and Murder Reference No. 20 of 1999, heard on 16th July, 2001.

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

----Art. 46(1)---Penal Code (XLV of 1860), S.302---Dying declaration ---Credence---Precautions to be taken while relying upon a dying declaration.

Following are the precautions which a Court has to take while relying on a dying declaration:--

(1) That it is established that the statement of a person which has to be treated as dying declaration was duly recorded.

(2) That he was fit to make a coherent statement being possessed of a conscious mind, his cognitive faculties were not numbed or blurred by the injuries caused.

(3) That he was not prompted by his near and dear ones present by his bed side to aid him in making the statement.

(4) That intrinsically the statement made has a ring of truth.

(5) That the statement is not due to any grudge or motivated by rancour, enmity or ill-will.

(6) That there was absolutely no chance of mistaken identity in naming his assailant.

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

----Art. 46(1)---Police Rules, 1934, Vol.111, R.25-21---Dying declaration--Immediate apprehension of death not necessary---Law does not require that dying declaration should be made under immediate apprehension of death---Any incriminatory statement made when a person is alive and subsequently dies can be legitimately treated as a dying declaration---Police Rules cannot make in roads on the provisions of a statute.

Mst. Shamim Ahktar v. Faiz Akhtar and 2 others PLD 1992 SC 211 and Niamat Ali v. The State 1981 SCMR 61 ref.

----S.302---Qanun-e-Shahadat (10 of 1984), Art-46(1) ---Appreciation of evidence---Dying declaration---Court is not bound to look for corroboration of dying declaration in order to base conviction on it, although it may be a rule of prudence depending upon the facts and circumstances of each and every criminal case where Court would seek corroboration from other pieces of evidence.

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

----S.302 (b)---Qanun-e-Shahadat (10 of 1984), Art. 46(1)---Appreciation of evidence--Occurrence having taken place in daylight and the accused being a resident of the same "Ahata ", no chance of mistaken identity could arise---Deceased lady had no ulterior motive to falsely implicate the accused in the case or to substitute him for the real culprit--Statement of the deceased lady made in an injured condition and treated as her dying declaration after her death not only inspired confidence but was free from taint and could be believed to be an honest inculpatory statement on which conviction could be based---Said dying declaration of the deceased was further corroborated by the medical evidence in respect of the weapon of offence used, locale of the injury and the damage caused by it ---Abscondence of accused for more than four months had further pointed towards his guilt ---Eyewitnesses, no doubt, had been won over by the accused being his close relatives, but the law was not so helpless as to grope in the dark---Dying declaration of the deceased lady available on record was by itself sufficient to be made a basis for conviction of the accused on a capital charge---Conviction and sentence of death of accused were confirmed in circumstances.

Mst. Shamim Ahktar v. Faiz Akhtar and 2 others PLD 1992 SC 211; Niamat Ali v. The State 1981 SCMR 61; Ghulam Zohra and another v. Malik Muhammad Sadiq and another 1997 SCMR 449 and Shahbaz and another v. The Crown PLD 1953 Lah. 566 ref.

Ch. Muhammad Afzal Pansota for Appellant.

Mian Muhammad Bashir, A.A.-G. for the State.

Date of hearing: 16th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1478 #

2001 Y L R 1478

[Lahore]

Before Nazir Ahmad Siddiqui, J

ASGHAR ALI and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No. 643-B of 2001, decided on 11th April, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XV of 1860), Ss.302/364/201 /34---Bail, grant of---Accused were behind the bars for the last more than one year and challan had not been submitted---Accused were found innocent in investigation by police and there was no allegation of mala fides in respect of said findings---Findings of the various investigating Officers showed that other persons were involved in the occurrence---No recoveries had been effected from the accused and there was a delay of three days in lodging the F.LR.--Accused were entitled to bail in circumstances.

Saeed Hassan Hashmi for Petitioners.

Masood Sabir for the State.

Date of hearing: 11th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1479 #

2001 Y L R 1479

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MUKHTAR alias MUKHEE---Appellant

versus

THE STATE- --Respondent

Criminal Appeal No. 31/BWP and Murder Reference No. 8 of 2000, decided on 10th July, 2001.

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

----Ss. 302 & 337-F(iv)---Appreciation of evidence---Ocular testimony furnished by the eve-witnesses was - worthy of credit and inspired confidence---Accused had given a hard bite on the index finger of the deceased resulting in rupture of skin and veins, but the hone was not fractured and he, therefore, could not be imagined to have intended to cause death of the deceased by giving him such a bite---Intention of accused to cause death being a missing link essential to indict a person for the murder of another, it would be travesty of justice to pass sentence of death making him legally liable for the murder of the deceased---Death of the deceased being not the direct and proximate cause of the injury inflicted by the accused, he was at the most liable for the act committed by him which had been termed by the Medical Board as Ghair Jaifa Mudihah punishable under S.337-F(iv), P, P, C ___ Conviction of accused under S.302, P. P. C. was altered to S. 337-F(i v), P. P. C. in circumstances and his sentence was reduced from death to five years' R.I. with a direction to pay Daman to the heirs of the deceased.

(b) Criminal trial---

----Intention---Determination---Intention is a state of mind of a person with respect to another person or thing and like any other fact is not capable of being proved through direct evidence as it is not in corporeal or tangible form---Intention, therefore, is to be determined by the overt act of the perpetrator of the crime---Conduct immediately before and at the time of occurrence and the surrounding circumstances are some facts discernible to resolve the said frame of mind of a person---In case of hurt or violence practised by the assailant upon the victim, the part of the body, kind of weapon, amount of force used and the repetitions of blows are also some of the factors which determine his intention.

----S.302---Appreciation of evidence--Accused who was already in police custody being interned in police lock-up was alleged to have investigated his brother (co-accused) for commission of the offence---Culpability of accused was not at all proved as no overt act or the words uttered amounted to any kind of encouragement or support to enable the coaccused to bite the deceased---Accused was acquitted in circumstances.

A.R. Tayyab for Appellant.

Tayyab Wattoo for the Complainant.

Saleem Nawaz Abbasi, A.A.-G. for the State.

Date of hearing: 10th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1484 #

2001 Y L R 1484

[Lahore]

Before Ijaz Ahmad Chaudhry, J

NUR MUHAMMAD through Special Attorney Muhammad Nadeem Noor--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, SAMUNDRI and 7 others---Respondents

Writ Petition No. 12230 of 1992, heard on 22nd June, 2001.

Criminal Procedure Code (V of 1898)---

----S.145---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Magistrate had failed to properly appreciate the documents produced by the petitioner and he misunderstood that the possession of the shop in dispute had been delivered to the petitioner in demarcation proceedings by the Revenue Authorities---Sessions Court had, however, rightly discussed all the evidence produced by both the parties and had come to a definite conclusion that the respondent was in possession of the shop when it was sealed---Judgment of Sessions Court was fully supported by the evidence on the record--Respondent being a tenant in the shop in dispute and having not been evicted therefrom through process of law, could not be deprived of his possession through the proceedings under S.145, Cr. P. C.---Documents relied upon by the petitioner, on the other hand, did not establish his possession on the shop when the same was sealed--Constitutional petition was dismissed in circumstances.

A. Karim Malik for Petitioner.

Farooq Amjad Mir for Respondents.

Date of hearing: 22nd June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1488 #

2001 Y L R 1488

[Lahore]

Before Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

ABID ALI ---Petitioner

versus

SUPERINTENDENT, ADIALA JAIL, RAWALPINDI ---Respondent

Writ Petition 'No. 1553 of 2001, heard on 25th June, 2001.

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

----Ss.9(a)(v)/10(a)---Penal Code (AL V of 1860), Chaps. XVI & XXI---Punjab Government Letter No. S.O. (M.P.) 2-8/99- 2001, dated 4-5-2001---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Release of the accused from jail was sought on the ground that he with the inclusion of remissions available to him under the law had completed his full term of substantive sentence, but the same was withheld on the basis of Letter No. S. O. (MP) 2-8/99-2001, dated 4-5-2001 issued by the Home Department, Government of Punjab in compliance with the judgment of the High Court passed in Writ Petition No. 23185 of 1999---Grant of remission in the cases falling under Chap. XXI, P. P. C. had been discussed by the High Court in Writ Petition No. 23185 of 1999 and, therefore, the observation made in the said judgment would confine only to the extent of offences relating to the human body falling under Chap. XVI, P. P. C. and not to any other case---Said circular, therefore, was not applicable to all cases without any distinction, as the remission made available to such accused under the law could not be taken away through administrative instructions---Judgment given by the High Court in the aforesaid writ petition was not a judgment in rem to be made applicable to the offence other than the offences falling under Chap. XVI, P.P.C.--Circular in question being restricted to the offences falling under Chap. XVI, P. P. C. would, therefore, be deemed to be issued in compliance with the law laid down by the Supreme Court arid the High Court--Constitutional petition was disposed of with the said observation.

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Muhammad Ameer and another v. Abdul Qadir and 2 others 1998 PCr.IJ 921; Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan PLD 1991 FSC 236 and Amir Fida Paracha v. Government of Punjab and others Writ Petition No. 1267 of 1997 ref.

Pir Bakhsh's case PLD 1987 SC 145 rel.

Muhammad Akram Sheikh assisted by Dr. Amjad H. Bukhari and Farrukh for Petitioner.

Raja Saeed Akram, A.A.-G. and Syed Sajjad Hussain Shah, A.A.-G. for Respondent.

Date of hearing: 25th June, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 1495 #

2001 Y L R 1495

[Lahore].

Before Ijaz Ahmad Chaudhry, J

AMANAT ALI ---Petitioner

versus

DIRECTOR, ANTI-CORRUPTION ESTABLISHMENT, LAHORE REGION, LAHORE and 3 others---Respondents

Writ Petition No. 11522 of 2001, decided on 5th July, 2001.

Constitution of Pakistan (1973)---

----Art. l99---Penal Code (XLV of 1860), 5.161---Prevention of Corruption Act (11 of 1947), S. 5 (2)---Quashing of F.I. R. ---F 1. R. had been sought to be quashed on ground that the complainant had sworn an affidavit exonerating the accused---Complainant had himself made a complaint against the accused and his statement was also recorded by, the Magistrate before the raid---Currency notes duly marked by the Magistrate were handed over to the complainant who went to the place where the accused also came and received the said amount and the raid was conducted accordingly---Accused, who was a Police Officer, succeeded in obtaining the affidavit of the complainant in his favour by misuse of his official capacity and had tried to exonerate himself from the commission of the crime---Such fact alone was not sufficient to quash the F.I.R. in a raid case, firstly because the affidavit being not a statement recorded under S.161 or 164, Cr. P. C., same could not be considered for quashing of F.I.R.; secondly affidavit could only be considered at the time of trial by the Court when the complainant would be subjected to cross-examination by any of the parties--Even at the trial after recording of the evidence if the complainant would make a statement in favour of the accused, same could be ignored as the raid was arranged on the statement of the complainant---Onus, in circumstances, would shift on the accused to explain as to how he had received the said money---Quashing of F.I.R. was refused, in circumstances.

Nazir Ahmad v. The State PLD 1977 Lah. 1261; Liaqat Ali v. The State 1995 MLD 1254; Mst. Bushran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 and Abdul Ghafoor v. The State PLD 1996 Lah. 17 ref.

Arif Chaudhry for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 1498 #

2001 Y L R 1498

[Lahore]

Before Zafar Pasha Chaudhry, J

GHULAM ABBAS ---Petitioner

versus

SESSIONS JUDGE, SARGODHA and 3 others---Respondents

Writ Petition No.5796 of 2001, decided on 19th June, 2001.

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

----S.10(2)---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.14-- Constitution of Pakistan (1973), Art.199-- Constitutional petition---Allegation of Zina by husband against wife ---Lian proceedings-- Husband had complained that his wife had committed Zina with another person---Wife was admitted to bail and husband had filed application seeking cancellation of bail-- Trial Court instead of cancelling the bail, proceeded to adjudicate the matter according to provisions of S.14 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 relating to Lian---Trial Court after adopting the procedure and administering the oath, found that the process of Lian had been completed and ordered the dissolution of the marriage of the parties---Validity---Husband had challenged order of the Trial Court contending that no suit for dissolution of marriage being pending before the Court, Court could not award decree of dissolution of marriage in proceedings for cancellation of bail---Legality---Provisions of S.14 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 had nowhere provided that the procedure prescribed thereunder would be followed only in a case wherein dissolution of marriage had been sought for---Whenever an accusation of Zina was made by husband against his wife and the controversy or issue was the subject-matter of a decision of the Court, provisions of S.14 of the Ordinance, 1979 had to be applied---Both the conditions having been fulfilled, procedure under S.14 was rightly followed by the Trial Court.

Mst. Nek Bakhat v. The State PLD 1996 FSC 174; Maqbool Ahmed v. Shaikh Muhammad Anwar and others 1999 SCMR 935 and Afadat v. State PLD 1982 FSC 52 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Imperative for the High Court that no writ be issued if the impugned order appeared to be just and equitable--Law also favours the settlement of controversies as soon as possible by the Courts keeping them within the bounds of law.

Masood Mirza and Bashir Khan for Petitioner.

Mahmood Ali for Respondent No.3.

Date of hearing: 19th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1501 #

2001 Y L.R 1501

[Lahore]

Before Mian Saqib Nisar, J

NAZAR MUHAMMAD ---Appellant

versus

MUHAMMAD NAWAZ and 6 others---Respondents

Regular Second Appeal No.96 of 1985, heard on 22nd May, 2001.

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

----S. 100---Second appeal ---Reagitating a plea already decided---Plea that the suit land was not pre-emptible had already been decided by the High Court in appeal filed earlier and the judgment had attained finality---Appellant was precluded in law to reagitate the same point, in circumstances.

(b) Pleadings---

---- Litigant is not permitted to plead beyond the scope of his pleadings.

----S. 21---Civil Procedure Code (V of 1908), 5.100---Partial pre-emption ---Scope--Question of partial pre-emption is not a pure question of law, as such the same cannot be raised at any stage of proceedings, rather it is a question of fart having legal consequences to follow---Where a dispute about a fact has not been joined by appellant at the appropriate time of the proceedings, the same cannot be allowed to be raised later on and treated as pure legal issue---When consider-able period of time has elapsed, appellant is deemed to have waived his right to raise such plea in second appeal.

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

----O. VI, R.17---Amendment of pleadings--Limitation---Filing of application for amendment of pleadings after 35 years--Effect---Such delay was fatal to the case of the party---Application was dismissed in circumstances.

(e) Punjab Copying Manual Rules---

---- R. 1.16---Limitation---Where the copying agency had failed to follow the rule in not returning the application to the party as required by 8.1.16 of Punjab Copying Manual Rules, and transmitted the same to the copying agency at the district headquarters, party was not responsible for such omission, so as to be non-suited on the plea of limitation.

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

----S. 12 & Art. 152---Civil Procedure Code (V of 1908), S.96---Appeal---Computation of period of limitation---Excluding time for receiving attested copies---Decree was passed on 20-9-1966, copy of the judgment was applied on 23-9-1966, two days of limitation were lost---Where the application remained pending with copying agency till 3-11-1966, the period from 23-9-1966 till 3-11-1966, had to be excluded---Period started running from 4-11-1966, application was refiled at district headquarters on 8-11-1966 and from that date the period of limitation again stopped---When the application was received from one copying agency and the same was refiled, five further days were lost---Copy was prepared and supplied to the party on 17-12-1966, the period of limitation again commenced from 18-12-1966---Appeal was filed on 10-1-1967, the period from 18-12-1966 till 9-1-1967 was to be added towards the limitation which were 23 days--Calculating 23+5+2, were 30 days, therefore, appeal filed on 9-1-1967 was within the period prescribed by Art.152 of Limitation Act, 1908---Appeal was within time accordingly.

PLD 1964 (W.P.) Pesh. 187 ref.

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

----S. 100---Second appeal---Misreading or non-reading of evidence---Contention of the appellant was that the appeal before first Appellate Court was barred by limitation--Validity---Appellant failed to point out any serious misreading or non-reading of evidence on record by First Appellate Court which could have any reflection upon the findings given by the Court about limitation in filing the appeal of respondents---High Court declined to interfere with the judgment passed by First Appellate Court in second appeal.

1976 SCMR 344 and Zakirullah Khan and others v. Faizullah Khan and others 1999 SCMR 971 ref.

S.M. Masud for Appellant.

Maqbool Sadiq for Respondents.

Date of hearing: 22nd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1517 #

2001 Y L R 1517

[Lahore]

Before Muhammad Sair Ali, J

Mst. TANVIR RAFIQ and 5 others---Petitioners

versus

UNITED BANK LIMITED and another---Respondents

Civil Revision No-1115 of 1987, heard on 5th July, 2001.

(a) Jurisdiction---

---- Question of jurisdiction---Question of Court's jurisdiction can competently be raised and argued even if the same was not raised before the Courts -below or in the revision petition.

Mst. Yasmeen Nighat and others v. National Bank of Pakistan and others PLD 1988 SC 391; National $ank of Pakistan v. Taj Muhammad PLD 1984 Lah. 417 and United Bank Ltd. v. Mian Abdul Khaliq PLD 1988 Lah. 225 ref.

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

----S. 115---Revision---Doctrine of past and closed transaction---Applicability to execution proceedings---Execution proceedings were pending in the Civil Court when same stood transferred to the Banking Court---Doctrine of past and closed transactions could not be applied to such case in circumstances.

----S. 7(4)---Execution proceedings---Failure to transfer the proceedings to Banking Court---Ex parte decree was passed by Civil Court against the petitioner and mortgaged property was auctioned in execution proceedings---Petitioner objected to the jurisdiction of the executing Court on the ground that the proceedings were to be transferred to the Banking Court---Objection raised was dismissed by the executing Court as well as by Appellate Court ---Validity--1~here the matters were to be transferred to the Banking Court under the provisions of S.7(4) of Banking Companies (Recovery of Loans) Ordinance, 1979, the proceedings before the executing Court were without lawful authority and of no legal effect--Execution proceedings having been transferred to the Banking Court exercising powers under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, High Court directed the parties to appear before the Court---Order passed by the Trial Court was set aside.

Mst. Yasmeen Nighat and others v. National Bank of Pakistan and others PLD 1988 SC 391; Income Tax Officer, Central Circle II, Karachi and another v. Cement Agencies Ltd. PLD 1969 SC 322; National Bank of Pakistan v. Taj Muhammad PLD 1984 Lah. 417 and United Bank Ltd. v. Mian Abdul Khaliq PLD 1988 Lah. 225 ref.

Khalid Habib Sheikh for Petitioners.

Muhammad Nawaz for Respondents, Date of hearing: 5th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1521 #

2001 Y L R 1521

[Lahore]

Before Iftikhar Hussain Chaudhry, J

ZAKIR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1655-B of 2001, decided on 30th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/452/34---Bail, grant of---Case was registered against certain unknown persons with the allegation that they grappled with the deceased and the deceased caught hold of one of them whereafter a person with beard fired at the deceased---Person other than the accused had been found to be the person who had shot at the deceased---Accused had not caused any harm to the deceased and his vicarious liability, if any, would be determined by the Trial Court in appropriate proceedings---Case against the accused being of further inquiry he was allowed bail.

Hasnat Ahmad Khan for Petitioner.

Ch. Abdul Ghani for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1522 #

2001 Y L R 1522

[Lahore]

Before Mian Saqib Nisar, J

MEHRAN BIBI and 12 others---Petitioners

versus

SAMAR KHAN---Respondent

Civil Revision No. 1206/13 of 1997, heard on 21st March, 2001.

(a) Specific Relief Act (1 of 1877)---

----Ss. 8 & 9---Suit for possession of property---Reference to any particular section of the Specific Relief Act, 1877 could hardly be a conclusive factor to discover its true nature---If by reading the whole plaint, it was found that the case of the plaintiff was based upon his previous possession and subsequent dispossession by defendants suit would be competent under S.9 of the Specific Relief Act, 1877---If the plaintiff had claimed possession on the basis of his title to the property and further illegal dispossession by the defendants, such suit would fall under S.8 of the Act---Scope of inquiry in both the cases was of different nature and the remedy of appeal further available in a suit under S.9 of the Act, was also restricted.

AIR 1932 Mad. 32 ref.

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

----Ss. 8 & 9---Civil Procedure Code (V of 1908), 5.115---Suit for possession of property---Plaintiff had sought the relief of possession on the basis of his title to the suit land which according to both the Courts below, the plaintiff had failed to establish--Plaintiff had also not been able to prove his previous possession over the suit land through any document an evidence such as Khasra Girdawari to establish that he, prior to the institution of the suit, was in possession and had been illegally and forcibly dispossessed therefrom---Contention of the plaintiff was that as both the parties had failed to prove the title in respect of the suit land, the plaintiff was competently granted relief of possession, was repelled because the plaintiff had not even proved his possession over the suit land---Grant of relief to the plaintiff by the Courts below once he had failed to prove his title in respect of suit land had resulted in grave miscarriage of justice and also had caused prejudice to the defendant particularly when no issue relating to the conditions of S.9 of Specific Relief Act, 1877 was framed by the Trial Court---Courts below had not only misread the evidence on record, but had also misconceived the case of the plaintiff and had allowed him the relief by misapplying the law---Concurrent judgments and decrees of Courts below were set aside by the High Court in revision.

1991 CLC Note 274 at p.212 and AIR 1932 Mad. 32 ref.

S.M. Masud for Petitioners.

M.A. Zafar for Respondent.

Date of hearing: 21st March, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1537 #

2001 Y L R 1537

[Lahore]

Before Maulvi Anwarul Haq, J

Haji TAHIR ANWAR ---Petitioner

versus

DISTRICT AND SESSIONS JUDGE/APPELALTE AUTHORITY, GUIRAT and 4 others---Respondents

Writ Petition No.3796 of 2001, decided on 12th March, 2001.

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 14---Wilful defaulter ---Disqualification of candidate---Nomination papers filed by the candidate were objected to on the ground that candidate being defaulter of the Municipal Committee was not qualified to become a candidate---Defaulter, according to law was a person who was adjudged to be a wilful defaulter which certainly would involve some adjudication of judicial nature---Simply because some Authority had demanded some money from a person, which was not paid, it could not be concluded that said person had been adjudged to be wilful defaulter--Objection was rightly rejected by the Authorities in circumstances.

M.A. Zafar for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 1538 #

2001 Y L R 1533

[Lahore]

Before Karamat Nazir Bhandari, J

SULTAN KHAN and 4 others---Petitioners

versus

SULTAN and 13 others---Respondents

Civil Revision No.1507 of 1991, heard on 25th July, 2001.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration ---Revisional jurisdiction of High Court---Scope---Courts below on the basis of evidence on record concurrently decreed the suit holding that defendants, despite being aware of the earlier sale of suit land in favour of the plaintiff had purchased the suit land---No cogent reason had been submitted by the defendants to interfere in said concurrent findings of Courts below---Scope for interference in revision against the concurrent finding of Courts below was extremely limited---Even a wrong conclusion of fact could not be interfered with in revision unless shown that conclusion of fact had been arrived at in utter disregard of material evidence or misreading of the same---Petitioners having failed to point out any disregard of evidence or misreading of the same and also having failed to point out any illegality or irregularity in the exercise of jurisdiction by the Courts below, revision against concurrent judgment of Courts below was dismissed.

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

----S. 115---Revision---Scope---Limited scope of revision under S.115, C. P. C. elaborated. Scope for interference in revision against the concurrent finding is extremely limited. In fact judicial pronouncements go to the extent that even a wrong conclusion of fact cannot be interfered with unless it be shown that the conclusions of fact have been arrived at in utter disregard of material evidence or misreading of the same.

Muhammad Sharif Chohan for Petitioner.

N.A. Butt for Respondent No. 1.

Date of hearing: 25th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1539 #

2001 Y L R 1539

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Mst. ULFAT JAN and 3 others---Petitioners

versus

DEPUTY LAND COMMISSIONER, BAHAWALPUR and 8 others---Respondents

Writ Petition No.2057 of 1997/BWP, decided on 9th July, 2001.

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

----Art. 199---Judgment by Supreme Court--Nature---Effectiveness---Whether retrospective or prospective---Judgment has prospective effect and not retrospective effect.

Muhammad Yousaf's case PLD 1968 SC 101 ref.

(b) Land Reforms Act (11 of 1977)---

----Ss. 7(5)9 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition--Excess land, disposal of---Doctrine of past and closed transaction ---Applicability--Surrender of excess land---Disposal of the matter long before 23-3-1990, the target date fixed by Supreme Court in Qazalbash Waqf's case reported as PLD 1990 SC 99---Order passed by the Authorities in the year 1977 was assailed through the Constitutional petition filed on 30-4-1997---Contention of the petitioner was that the order was passed in violation of law laid down by Supreme Court in Qazalbash Waqf's case reported as PLD 1990 SC 99---Validity---Disposal of surrendered land under S.15 of Land Reforms Act, 1977, to tenants was a ministerial function of Authorities, and by virtue of S.9 of Land Reforms Act, 1977, the land vested automatically in the Provincial Government free from any encumbrance or charge--Where the Authorities had passed the order in the year 1977, the principle of past and closed transaction was attracted in the case--Once an undisputed piece of land was wilfully surrendered by a land owner and was duly resumed, the same ceased to be property of the affected land owner on passing of order under S.7(5) of Land Reforms Act, 1977--Excess land in such a case forthwith vested in the Government under the provisions of S.9(2) of Land Reforms Act, 1977, which were executory in nature and had taken effect long before the target date of 23-3-1990, from which date, the law had ceased to operate to the extent of repugnancy to the relevant law as per principle laid down by Supreme Court---Petition was dismissed in circumstances.

Qazalbash Waqf's case PLD 1990 SC 99; Khiali Khan v. Haji Nazir and .4 others PLD 1997 SC 304; Chief Land Commissioner, Punjab v. Ch. Atta Muhammad Bajwa 1991 SCMR 736; Federal Land Commission, Cabinet Secretariat, Islamabad v. Sardar Noor Ahmad Khan and 7 others 1999 SCMR 2697; Miani Sahib's case PLD 1973 SC 17 and Chief Administrator of Auqaf, Punjab v. Federal Land Commission PLJ 1994 Headnotes 37 (sic) ref.

M. Jaffar Hashmi for Petitioners.

Mian Bilal Bashir for Respondents Nos. 1 to 3.

M. Azam for Respondents Nos.4 to 9.

Date of hearing: 9th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1628 #

2001 Y L R 1628

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

NAZAR FARID and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.202 and Murder Reference No. 250 of 1998, heard on 25th July, 2001.

Penal Code (XLV of 1860)---

----S. 302/34-- Appreciation of evidenceF.I.R. was lodged with the delay of 3-1/2 hours and the prosecution had not been able to prove the motive against the accused--Occurrence had not taken place at the time mentioned in the F.I.R., but in dark hours of the night---Dead body was despatched after a long delay to the hospital---Said delay in despatch of dead body had cast serious doubt upon the prosecution story and it tended to show that the occurrence was un-witnessed--Statements of the prosecution witnesses were recorded by the police after getting the post-mortem report and also after due deliberation and consultation in connivance with the complainant---Presence of eye-witnesses at the spot, could not be believed in circumstances---One of the prosecution witnesses who was nearly related to the deceased, had falsely deposed against the accused---Report of the Fire-arm Expert did not connect the co-accused with the commission of offence and recovery of rifle at the instance of the accused seemed to be concocted for the reason that the crime empty and the rifle allegedly recovered from the accused were proved to have been planted upon him---Occurrence was an un-witnessed one and parties were inimical towards each other---False implication of the accused thus could not be ruled out specially when no independent witness had been produced by the prosecution---Extending them benefit of doubt to the accused their conviction and sentence awarded by the Trial Court were set aside.

Sahibzada Farooq Ali Khan for Appellants.

Mehr Muhammad Saleem for the State.

Irshad Hussain Jafree for the Complainant.

Date of hearing: 25th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1638 #

2001 Y L R 1638

[Lahore]

Before Bashir A. Mujahid, J

ABADAT KHAN---Petitioner

versus

ADDITIONAL SESSIONS JUDGE, FAISALABAD and 2 others---Respondents

Criminal Revision No.403 of 2001, decided on 25th July, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 156, 157 & 205-K---Penal Code (XLV of 1860), Ss-.302/109 --- Summoning the accused who was declared to be innocent during the investigation---Legality---Accused was declared innocent during the investigation as many respectables of the locality had sworn affidavits and taken oath on Holy Qur'an to prove his innocence--Accused was not challaned even in Column No. 2 by the Police---Trial Court had summoned the petitioner to face the trial alongwith his co-accused and the petitioner had challenged said order of the Trial Court in revision petition---Accused was nominated in the F.I.R. for abetment---Procedure adopted by Investigating Officer to declare the accused innocent by administering oath on Holy Qur'an was depreciated---No illegality or infirmity in circumstances was found in the order of Trial Court whereby the accused was summoned to face the trial alongwith his co-accused-- Accused would appear before the Trial Court and join proceedings and thereafter could move application under S.265-K, Cr.P.C. for his acquittal and the Trial Court would dispose of his application with a speaking order in accordance with law.

Abdul Sattar v. The State 1995 PCr.LJ 1793 ref.

Shahid Hussain Qadri for Petitioner.

Mian Ghulam Hussain for Respondents.

Ghulam Asghar for the State.

2001 Y L R 1673

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sharwarni, JJ

MUKHTAR AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No.303 of 1996 and Murder Reference No.418 of 1998, heard on 31st July, 2001.

Penal Code (XLV of 1860)--

----S.302---Appreciation of evidence--Complainant and his two companions had claimed that they had seen the accused inflicting hatchet blows to the deceased and the accused after inflicting injuries to the deceased ran away from the spot---No one had tried to chase or apprehend the accused---Such being the most unnatural conduct of the complainant and two other witnesses their presence at the spot could not be believed---Prosecution story to the extent of motive was un-believeable---F.I.R. was lodged after due deliberation and consultation---Recovery memo with regard to the recovery of hatchet allegedly used in the occurrence did not show the date when it was recovered---Place from where the alleged recovery of hatchet was made, was an open place and was also accessible to other persons- --No reliance could be placed on such recovery---Ocular account with regard to motive and number of injuries on the person of the deceased was in conflict with medical evidence---No independent witness had been produced by the prosecution---Prosecution having failed to prove case against the accused beyond any shadow of doubt, sentence awarded too him by the Trial Court was set aside with direction to release the accused forthwith.

Rahat Raza for Appellant.

Muhammad Rahim for the State.

Date of hearing: 31st July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1676 #

2001 Y L R 1676

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sharwarni, JJ

MUHAMMAD SADIQ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.256 of 1998 and Murder Reference No. 116 of 1999, heard on 26th July, 2001.

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

----Ss.302/324---Appreciation of evidence-Broad daylight occurrence and parties were known to each other---Mistaken identity was out of question---Delay in lodging the complaint had been fully explained--Deceased and the injured were alleged to be persons of bad character against whom criminal cases were registered---Both the deceased and injured in all such cases were either acquitted or cases against them were withdrawn by the complainants---If the deceased who had criminal cases against him was murdered case of the prosecution would not be affected---Accused who had killed the deceased and injured other seriously, were more desperate than the deceased and injured---Investigating Officer appeared to have acted in a mala fide manner against the prosecution---Physical presence of complainant at the spot who was father of the victims had fully been confirmed by oral as well as by documentary evidence---Presence of star witness at the spot who was an injured prosecution witness, could also not be doubted---No previous background of enmity between the parties existed---Case was not of false implication---Number of the accused coincided with the number of the injuries on the person of the deceased and the injured and same were corroborated by medical evidence---Version with regard to occurrence put forward by the prosecution was more plausible, convincing and appealing to reason as against the version of the accused which was absurd and not appealing to mind---Prosecution having proved its case against the accused beyond any shadow of doubt, appeal against conviction and sentence awarded to the accused by the Trial Court was dismissed.

Waris Khan v. The State 2001 SCMR 387 ref.

(b) Criminal trial-

----Recovery---Evidentiary value of--Recoveries were to be treated to be additional corroborative piece of evidence.

----Site plan---Site plan was not a substantive piece of evidence.

S.M. Latif Khan Khosa for Appellant.

Mehr Muhammad Saleem for the State.

Date of hearing: 26th July, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 1682 #

2001 Y L R 1682

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

MUMTAZ AHMED alias KAKA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 411 of 1996, heard on 23rd May, 2001.

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

----S. 302/34---Appreciation of evidence--Sentence---Mitigating circumstance---Three out of the four Investigating Officers had concluded that the accused had acted in self-defence---None of the witnesses was given a suggestion that conclusions drawn by them were motivated due to extraneous considerations ---Investigatory evidence was to be given due consideration in criminal cases whose same was not motivated or dishonest--Occurrence had taken place due to parking of vehicle by the accused in front of the house of the complainant who alongwith his deceased brother objected to that and thereafter the deceased and complainant quarrelled with the accused who alone had fired during the incident---Trouble had been initiated by the deceased and the complainant---Accused was not under imminent threat annihilation but reactions could not be expected to be well calculated in a charged atmosphere--Awarding of sentence of death to the accused, in circumstances, was inappropriate and unjustified the conviction of the accused, sentence of death awarded to him by the Trial Court was modified into imprisonment for life with benefit of provisions of S. 382-B, Cr. P. C.

(b) Criminal trial---

----Evidence ---Investigatory evidence Investigatory evidence had a place in criminal justice system in every jurisdiction which could be given due consideration where the same was not motivated or dishonest.

Altaf Hussain and others v. The State PLD 2000 Lah. 216 ref.

Muhammad Ghani and Rana Altaf Ahmad for Appellant.

Ch. Imtiaz Ahmad for the State.

M.A. Zafar for the Complainant.

Date of hearing: 23rd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1686 #

2001 Y L R 1686

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUHAMMAD BAKHSH---Petitioner

versus

Mst. AZIMAN and another---Respondents

Writ Petition No. 13072 of 2000, decided on 22nd December, 2000.

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

----S.S & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Suit for dissolution of marriage on ground of Khula'---Suit was decreed by the Trial Court holding that relations between the parties were strained and that there was no possibility of their peaceful co-existence--Wife had stated before the High Court that suit for dissolution of marriage was filed as her parents had forced her to do so and that her marriage was an exchange marriage where sister of her husband was married to her brother---Wife had also stated that she was living happily with her two children in house of the petitioner/her husband and had no objection if decree for dissolution of marriage passed in the suit was set aside--Husband had also stated that he was willing to continue with her as his wife---High Court, in view of the statements of the parties, set aside the judgment and decree passed by the Trial Court allowing the wife to join her husband accordingly.

Saif Ullah Khan for Petitioner.

Khan Dil Muhammad Khan Alizai for Respondents.

Date of hearing: 22nd December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1712 #

2001 Y L R 1712

[Lahore]

Before Mian Saqib Nisar, J

LAHORE DIOCESAN TRUST ASSOCIATION---Petitioner

versus

PAKISTAN RAILWAYS through Secretary Railways and 3 others---Respondents

Civil Revision No. 13 of 1999, decided on 16th July, 2001.

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

----O. XX, R. 18---Demarcation---Right to seek demarcation---Scope---Parties have independent right to seek demarcation of the suit property, notwithstanding the fact that the matter of demarcation is related to the issues between the parties and covered by the scope of their pleading in the litigation or not.

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

----S.115 & O.XXXIX, Rr. 1 & 2---Revision--Case decided---Respondent intended to have demarcation of the suit property during the interim injunction granted by the Trial Court---Petitioner resisted the demarcation proceedings on the ground that the same could not be done in presence of injunction order---By virtue of the injunction order granted by the Trial Court, the only restraint put upon the respondents was against interfering with the possession of the petitioner or initiating any proceedings against the petitioners in that behalf--Effect---Such order did not bar the respondents to independently seek the demarcation of the property and the same did not suffer from lack of jurisdiction or shown to have been passed with material irregularity---Where the order passed by the Trial Court did not fall within the purview of the expression "case decided", the revisional jurisdiction could not be competently invoked---High Court refused to interfere with the order passed by the Trial Court--Revision was dismissed in circumstances.

Atlantic Steamer's Supply Company v. M.V. Titisee and others PLD 1993 SC 88; Bashir Ahmad Khan v. Qaisar Ali Khan and 2 others .PLD 1973 SC 507; Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board and another 1998 SCMR 1798 and Muhammad Ismail v. District Judge, Sargodha and 4 others 1981 CLC 361 distinguished.

---S. 115---Revision---Scope---Case decided--Where order passed by Trial Court did not fall, within the purview of the term "case decided", the revisional jurisdiction could not be competently invoked.

Raja Muhammad Akram for Petitioner.

Ch. Shahid Saeed and Syed Muhammad Naqi for Respondents

YLR 2001 LAHORE HIGH COURT LAHORE 1715 #

2001 Y L R 1715

[Lahore]

Before Zafar Pasha Chaudhry, J

PERVAIZ ASLAM and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 1062-B and 1074-B of 2001, decided on 2nd March, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 379 & 381---Bail, grant of---No recovery of any stolen document was effected from the accused who was a Government servant and did not have any previous criminal record--Investigation was in progress and it was not known as to how long it would take to conclude---Registers maintained by the co-accused as stamp vendor though had been recovered from him, but no stamp papers which were incriminating documents, had been recovered---Both the accused and coaccused were granted bail.

N.A. Butt for Petitioner.

Muhammad Shafi for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1716 #

2001 Y L R 1716

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Syed IQBAL AHMAD GILANI---Petitioner

versus

GOVERNMENT OF PUNJAB and 4 others---Respondents

Writ Petition No. 9292 of 1997, heard on 10th April, 2001.

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

----Ss. 10 & 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Government land, allotment of---Lottery Scheme of Tubewell Land---Cancellation of allotment without notice---Petitioner applied for allotment of disputed land in the year 1959, and was declared successful in the Scheme---Authorities admitted application of the petitioner, allotment letter was issued and name of the petitioner' was entered in revenue record but the allotment was cancelled in the year 1960---Grievance of the petitioner was that the cancellation order was passed without notice to the petitioner---Contention of the Authorities was that the allotment of the land was not finalised and no notice was required before cancellation of the allotment made in favour, of the petitioner ---Validity--Once order of allotment was acted upon by the Authorities by way of Dakhalyabi, the same did not remain mere application of allotment---Valuable right accrued to the petitioner which could not be defeated by the Authorities without notice and without opportunity of being heard given to him--Order passed by the Authorities was void and illegal and the same was set aside---High Court remanded the case to the Authorities to decide the matter afresh after issuing notice under S.24 of Colonization of Government Lands (Punjab) Act, 1912, and affording opportunity of hearing to the petitioner--High Court further directed that if any part of the disputed land had been utilized in any other Scheme, the petitioner would be given land under the same terms and conditions in accordance with law--Constitutional petition was allowed accordingly.

Fazal Dad and 2 others v. Member, Board of Revenue (Colonies), West Pakistan and another PLD: 1977 Lah. 264; Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061 and Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639 ref.

Ch Abdul Sattar Goraya for Petitioner.

Akhtar Masood for Respondents.

Date of hearing: 10th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 1724 #

2001 Y L R 1724

[Lahore]

Before Ijaz Ahmed Chaudhry, J

MUHAMMAD ABBASS---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3993/B of 2001, decided on 8th August, 2001.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Accused who was named in the F.I.R. was only one who was allegedly armed with .12 bore gun and had fired at the deceased and specific role had been attributed to him ---F.I.R. having been lodged promptly, there were no chances of false implication of the accused and the plea of the accused about the concoction of false story by the complainant for his involvement in the case, was without substance---Accused was involved in murder case which fell within the prohibitory clause and there were reasonable grounds to believe that he was guilty of an offence punishable with death or transportation for life---No motive was alleged to falsely implicate the accused by the complainant in such heinous offence--Contention of the accused that it was an accidental fire shot, could not be considered as merits of the case were not required to be considered at bail stage; but would be seen after recording the evidence by the Trial Court---Opinion of the police being not binding on the Court, case of the accused, though fell within the first proviso to S.497, Cr.P.C, being a minor less than 16 years of age but it was not mandatory to grant bail to such accused---Accused being responsible for the murder of 11 years' old child and being guilty of a very heinous offend, his case was not fit one for the exercise of judicial discretion in favour of the accused as he did not deserve any leniency.

(b) Criminal trial---

---- Opinion of police---Value---Opinion of police was not binding on the Court as it had no legal, value---When the complainant and the prosecution witnesses had fully supported the prosecution case and claimed that it was pre planned occurrence, the contention of the accused about the police opinion without the support of any material evidence, would be repelled.

Tahir Qureshi for Petitioner.

Ahmad Nawaz Wattoo for the Complainant.

Muhammad Tufail for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1726 #

2001 Y L R 1726

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

MUHAMMAD ABBASS---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.706 and Murder Reference No.248 of 1996, heard on 8th July, 2001.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence--Complainant was the real brother of the deceased and other prosecution witnesses and deceased were related to each other---Both were residents of place which was at a distance of about one and a half miles from the place of occurrence and they did not give any reason in the F.I.R. as to why they were present at the house of the deceased--Presence of complainant and prosecution witness at the spot was doubtful---Evidence given by the complainant and prosecution witness was in conflict with medical evidence---Crime empties and the rifle having been sent to Fire Arms Expert twelve days after the occurrence, the positive report of the Fire-arms Expert was not trustworthy and could be ruled out from consideration--Evidence led by the prosecution was not of the quality or nature which could be said to have come from an unimpeachable source--Prosecution story being full of doubts and discrepancies, the benefit of same had to be extended in favour of the accused--Conviction and sentence recorded by the Trial Court against the accused, were set aside and he was acquitted extending him benefit of doubt.

1999 SCMR 1030 ref.

M. Iqbal Bhatti for Appellant.

Muhammad Anwar Tiwana for the State.

Date of hearing: 8th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1729 #

2001 Y L R 1729

[Lahore]

Before Ijaz Ahmed Chaudhry, J

SAIF ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3972/B of 2001, decided on 8th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/337-A(i) & 337-L(ii)1148/149--Bail, grant of---Accused was attributed injury with Sota on the back of the head of the deceased and said injury according to the opinion of doctor was sufficient to cause the death of the deceased---Case of the accused was supported by medical evidence---Accused had contended that he had received injuries in the occurrence and said injuries had been suppressed by the complainant parties---All such injuries were simple in nature and were -caused by blunt weapon---Alleged suppression of injuries by the complainant party was no ground for the accused to seek bail when he had caused the fatal injury to the deceased during the occurrence---Accused who had played the main role in the commission of the crime was not entitled to bail on the grounds urged by the accused.

Qadeer Ahmed Rana for Petitioner

Muhammad Ahsan Bhoon for the Complainant.

Muhammad Alam Sabri for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1733 #

2001 Y L R 1733

[Lahore]

Before Muhammad Sair Ali, J

IHSAN COTTON PRODUCTS (PVT.) LIMITED---Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary, Communication and Works

Department and another---Respondents

Writ Petitions Nos.3942, 3924, 3946 and 3650 of 2000, heard on 15th June, 2001.

(a) West Pakistan Highways Ordinance (XXXII of 1959)---

----S. 8(1) (as amended by Punjab Highways (Amendment) Act (XVIII of 1976)]---Property maintained by Highway Department---Use of such property---Imposition of rent on industrial units---Scope---Under the provisions of S.8(1) of the Ordinance the Department has no power of imposition of tax/rent/levy on industrial units---Provision of S.8(1) imposes only a restriction on the use of property maintained by Highway Department or Provincial property maintained by local bodies and the same cannot be used without the consent of Highway Authority.

(b) West Pakistan Highways Ordinance (XXXII of 1959)---

----S. 8(1) (as amended by Punjab Highways (Amendment) Act (XVIII of 1976)]---Term 'consent'---Object and scope---Imposition of rent, tax or levy---Validity---'Consent' of the Highway Authority is mandatory to construct or lay out access to or from the Highway or to raise any building within 220 feet from the middle of the Highway but provision of S.8(1) of the Ordinance does not confer upon Highway Department any power to impose rent tax or levy---Power to give 'consent' is regulatory as to the size, width, length or culverts etc. for access and the building to be raised abutting the Highway---Word 'consent' is permissive and cannot be used or enlarged to include imposition or taxing powers.

----'Rent'---Meaning---Rent is consideration paid for use or occupation of the property and in broader sense it is the compensation or fee paid usually periodically for the use of any rented property, land, building, equipment etc. ---Definition of word 'rent' in essence includes contractual relationship between the parties or relationship in the nature of licence at negotiated terms as to period and consideration/compensation etc.

Black's Law Dictionary, Contonnial Edn., 1891-1991, p. 1297 ref.

(d) Executive order---

---- Executive order, value of---Executive order cannot possibly take place of legislative instrument, rules or notification issued thereunder imposing any levy upon the citizens.

(e) West Pakistan Highways Ordinance (XXXII of 1959)---

----S. 8(1) [as amended by Punjab Highways Amendment Act (XVIII of 1976)---Notification No. SOH-III(C&W) 2-12/97-98, dated 10-9-1997---Constitution of Pakistan (1973), Art. l99---Constitutional petition---Executive order---Imposition of rent on industrial use of roads maintained by Highway Department--Highway Department had imposed rent on the basis of Notification No. SOH-III(C&W)2-121 97-98, dated 10-9-1997---Contention of the petitioners was that under S.8(1) of the Ordinance, tax/rent/levy could not be imposed by the department ---Validity--Executive order could not possibly take place of legislative instruments, rules or notification issued thereunder imposing any levy upon the citizens---When the Department could not impose rent under S.8(1) of the Ordinance the Notification No. SOH-III (C&W) 2-12/97-98, dated 10-9-1997 notices of recovery issued to petitioners were without lawful authority and of no legal effect--Constitutional petition was allowed in circumstances.

Syed Ali Zafar for Petitioner.

Mrs. Salma Malik, A.A.-G. for Respondents.

Date of hearing: 15th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1738 #

2001 Y L R 1738

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Nawabzada SADAQAT ALI KHAN through Attorney Sulman Mujtaba Khan and 4

others---Petitioners

versus

SENIOR MEMBER, FEDERAL LAND COMMISSION, ISLAMABAD and 2

others---Respondent

Writ Petition No.6100, 6101, 6102, 6103, 6104, 6105 and 6106 of 2001, decided on 24th May, 2001.

(a) Land Reforms Regulation, 1992 (M.L.R.115)---

----Para. 18(3), proviso---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Expression 'public purpose"--Object and scope---Allotment of land--Jurisdiction of Government---Petitioner was allotted lands in lieu of his refugee claim--Some portion of the land was cancelled from the name of the petitioner resulting in deficiency in the land of the petitioner---To overcome the deficiency the Authorities in exercise of powers under Para.18(3) of M.L.R.115, allotted the disputed., land to the petitioner---Order of the Authorities was set aside by Government and allotment of disputed land was cancelled ---Validity--Words "public purpose" were to be read keeping in view the provisions of para. 18 of M.L.R.115 and the same did not allow the Government to allot the land to a person whose land was surrendered under M.L.R.64---Government was only authorized to allot the resumed land to the tenant or utilize the same for any public purpose-- Petitioner was a landlord and not a poor person, therefore, allotment of land in question to petitioner did not fall under phrase "public purpose "---Purpose and object of the land reforms being to give the resumed land to the landless persons, Government had rightly cancelled the land allotted to the petitioner--High Court declined to interfere with the order passed by the Government--Constitutional petition was dismissed in circumstances.

Hakim Muhammad Butta's case PLD 1985 SC 153; Pakistan Railway's case PLD 1989 SC 864 ref.

Allah Ditta v. Province of Punjab PLD 1997 Lah. 499 distinguished.

(b) Interpretation of statutes---

---- Ascertaining the true intent and meaning of any particular provision---Regulation must be read as an organic whole and not to be read in paragraphs independently---Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision---Where any repugnancy appears to exist between its different provisions, the Court could harmonize them, if possible.

Hakim Ali's case PLD 1992 SC 595; Mian Muhammad Nawaz Sharif's case PLD 1973 SC 473 and PLD 1957 SC 219 rel.

----Preamble---Scope---Preamble of a statute is a key to understand the statute.

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

----Para.32---West Pakistan Land Reforms Regulation, 1959 [M.L.R.64]---Benefit of provisions of para. 32 of M.L.R. 115--Scope---Where no proceedings were pending at the time of repeal of M.L.R.64 of 1959, benefit of para. 32 of M.L.R.115 could not be extended.

Amir Abdullah Khan Rokhri's case 1992 CLC 1919; Salah-ud-Din Qureshi v. Federal Land Commission and others 1992 CLC 2362; Federal Land Commission through its Senior Member v. Sher Muhammad and others PLD 1990 SC 626; Saleh-ud-Din Qureshi's case 1992 CLC 2362 and B.G.G.A. Punjab Ltd., Khanewal 1992 MLD 1639 ref.

(e) Void order---

---- Setting aside of void order ---Limitation--Where the order was void, and coram non judice, no limitation commenced against such order---[Limitation].

Khuda Bakhsh's case PLD 1976 SC 208; Hussain Bakhsh and others' case PLD 1969 Lah. 1039; Nazar Hussain's case PLD 1974 Lah. 434 and Muhammad Mashikh-ulZaman's case PLD 1992 SC 825 ref

Sh. Abdul Aziz for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 1746 #

2001 Y L R 1746

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD HAFEEZ---Petitioner

versus

SUPERINTENDENT CUSTOMS, AIRPORT (TRAFFIC), LAHORE AIRPORT, LAHORE and another---Respondents

Writ Petition No.12007 of 2001, heard on 12th July, 2001.

Customs Act (IV of 1969)---

----Ss. 156(1), 9, 70 & 181---Central Board of Revenue Letter No. 5(4)L&P/98, dated 16-2-1998---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Confiscation of goods---Non-imposition of redemption fine---Decision of case on instructions issued by Central Board of Revenue instead of following the provisions of Customs Act, 1969---Goods were imported in personal baggage and the same were confiscated-by the Custom Authorities on the ground that the same were in commercial quantity and were not importableAppeal against the order of confiscation was filed before Custom Authorities as well as before Customs, Central Excise and Sales Tax Appellate Tribunal---Both the appellate forums below had dismissed the appeals and the goods were not released---Order of confiscation was passed in view of instructions issued by Central Board of Revenue Letter No. 5(4)L&P/98, dated 16-2-1998---Validity---Custom Authorities under various provisions of Customs Act, 1969, had to dispose of the confiscated consignment through open auction---Goods/articles imported even unlawfully but confiscated ultimately had to flow sin the local market---Where the order was not passed by an independent application of mind and the authority was swayed by the instructions issued by the C.B.R. vide Letter No.5(4) L&P/98, dated 16-2-1998 such order suffered from infirmity and the same was not sustainable in law---Instructions issued by Central Board of Revenue vide Letter No. 5(4) L&P/98. dated 16-2-1998, had already been struck down by High Court and order of confiscation was passed contrary to the judgment of High Court---Order of confiscation was set aside by High Court and Custom Authorities were directed to release the confiscated goods on payment of 75% of redemption fine in addition to any duty and charges payable in respect of such imported goods.

C.B.R. and another v. Sheikh Spinning Mills Limited, Lahore and others 1999 SCMR 1442 ref.

Mian Abdul Ghaffar Khan for Petitioner.

K.M. Virk for Respondents.

Date of hearing: 12th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1754 #

2001 Y L R 1754

[Lahore]

Before Ijaz Ahmed Chaudhry, J

SHAHID ALI and another---Petitioners

versus

Dr. EJAZ-UR-REHMAN and 2 others---Respondents

Writ Petition No.9512 of 2001, decided on 15th June, 2001.

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

----S. 145---Dispute as to immovable property---Rights of the parties--Determination---Jurisdiction of Court under S.145, Cr.P.C.---Scope---Civil Courts are the only forums which can decide the rights of the parties---Criminal Court under the provisions of S.145, Cr. P. C. can interfere where there is apprehension of breach of peace.

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

----S. 145---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of proceedings---Dispute as to immovable property---Respondent initially filed ejectment application against petitioners before Rent Controller---Relationship of landlord and tenant was admitted ---Ejectment application was withdrawn by the respondent and proceedings under S.145, Cr. P. C. were initiated against the petitioners--Investigating Officer, without giving opportunity of hearing to the petitioners, forwarded the matter to Magistrate and the premises were sealed---Validity---Such proceedings were initiated in order to dispossess the petitioners _from their lawful possession---Respondent instead of adopting the normal procedure sought eviction of the petitioners in a slipshod manner by misusing the authority under S.145, Cr.P.C.-- Proceedings initiated under S.145, Cr.P.C. against the petitioners were quashed in circumstances.

Alam Sher v. Suba and others 2001 PCr.LJ 60; S. Iqbal Baligh-ud-Din v. Sub-Divisional Magistrate, Civil Lines, Karachi and another PLD 1994 Kar. 384; Abdul Qadir and 13 others v. Sher Muhammad 1998 PCr.LJ 240; Meraj Din and others 1995 PCr. LJ 1912; Muhammad Ashraf Khan v. The State and others 1995 PCr.LJ 2016; Muhammad Munaf Shaikh v. The State 1998 PCr.LJ 1608 and Muhammad Khashif Zia v. Muhammad Sarwar and 3 others 2000 PCr.LJ 559 ref.

Syed Ahsan Mahboob Bokhari for Petitioners.

Ch. Muhammad Saleem for Respondent No. 3.

Date of hearing: 11th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1758 #

2001 Y L R 1758

[Lahore]

Before Asif Saeed Khan Khosa, J

Dr. M.M. ALAM---Petitioner

versus

GHULAM DASTGIR, ILLAQA MAGISTRATE, POLICE STATION, CHICHAWATNI, DISTRICT SAHIWAL and 4 others---Respondents

Writ Petition No. 12095/Q of 2000, heard on 8th February, 2001.

Medical and Dental Degrees Ordinance (XXVI of 1982)--

----Ss. 6, 7 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition--Quashing of proceedings ---F.I.R. had been lodged by a person who himself was neither a medical practitioner nor Secretary of the Medical and Dental Council nor a person authorised by the Secretary and his name had never been notified in that regard in the Official Gazette under S.7 of Medical and Dental Degrees Ordinance, 1982---No Court would take cognizance of the offence punishable under the Ordinance except upon a complaint made by the Secretary of Medical and Dental Council or any person authorised by the Secretary and notified in the Official Gazette---Proceedings pending before the Judicial Magistrate were declared illegal and were quashed.

Syed Murtaza Ali Zaidi for Petitioner.

Muhammad Sarwar Bhatti, A.A.-G. for Respondents Nos. 1, 2, 4 and 5.

Respondent No.3 in person.

Date of hearing: 8th February, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1759 #

2001 Y L R 1759

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD IQBAL---Petitioner

versus

MANAGER, NATIONAL BANK OF PAKISTAN and 2 others---Respondents

Writ Petition No.20292 of 2000, decided 13th July, 2001.

(a) Constitution of Pakistan (1973)-

--Art. 199---Constitutional petition--Maintainability-- Alternate remedy---Dispute as to refusal to encash cheque---Where the petitioners had alternate remedy to approach Federal Ombudsman, the Constitutional petition was not maintainable.

Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109 ref.

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

--- Art. 199---Constitutional petition--Concealing of material facts---Effect---He who seeks equity must come with clean hands---Where the petitioner had concealed material facts, High Court declined to exercise discretion in his favour.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

----Art. 199---Constitutional petition--Maintainability---Disputed question of fact--Where there was disputed question of fact, High Court had no jurisdiction to resolve the same in Constitutional jurisdiction.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. 1993 SCMR 618 ref.

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

----Art. 199---Constitutional petition--Alternate remedy---Respondent refused to encash cheque presented by petitioner as the account was subject-matter of criminal and civil litigation---Validity---Where the litigation qua the account was pending before competent Courts, the petitioner had alternate remedy to approach the competent Court---Constitutional petition was not maintainable in circumstances.

Ch. Muhammad Ismail v. Fazalzada, Civil Judge, Lahore PLD 1996 SC 246 ref.

(e) Maxim---

----He who seeks equity must come with clean hands.

Ch. Bashir Ahmad for Petitioner.

Mian Qamar-uz-Zaman for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 1761 #

2001 Y L R 1761

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

FAYYAZ AHMAD and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.3076/B of 2000, decided on 10th January, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/337-A(ii) 134---Bail, grant of--Accused did not cause any injury to the deceased or to any of the prosecution witnesses and during the investigation nothing was recovered from him---Accused was behind the bars for the last about one year---Accused was granted bail in circumstances.

Khan Dil Muhammad Khan for Petitioners.

Anwar-ul-Haq Shah for the State.

Date of hearing: 10th January, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1762 #

2001 Y L R 1762

[Lahore]

Before Tassaduq Hussain Jilani, J

Ch. NAZIR AHMAD and another---Petitioners

versus

CHIEF ELECTION COMMISSIONER, ISLAMABAD and others---Respondents

Writ Petitions Nos.6876 and 6875 of 2001, decided on 7th August, 2001.

(a) Punjab Local Government Elections Rules, 2000---

----R. 40(3) & (4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Recounting by Returning Officer before consolidating final result---Dispute was with regard to affixing wrong side of stamp on the ballot paper---Such votes were not counted by the Presiding Officer ---Returing Officer, before consolidating the final result re-counted the votes and included such votes in the counting at his own---Final result was declared while including such votes--Validity---Returning Officer under the provisions of R.40(3) (4) of Punjab Local Government Elections Rules, 2000, carried out such exercise of re-counting irrespective of any application made in that behalf--While passing the order of re-counting, the Returning Officer was motivated by the mandate in law given in R.40(3)(4) of Punjab Local Government Elections Rules, 2000, and High Court did not find any jurisdictional defect in the order to warrant interference--Constitutional petition was dismissed in limine.

Sahibzada Abdul Latif v. Sardar Khan and others 1996 SCMR 1496 ref.

(b) Punjab Local Government Elections Rules, 2000---

----R. 40(3) & (4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Factual controversy---Gathering of intention of the voter---Dispute was with regard to affixing wrong side of stamp on the ballot paper---Effect---Intention of voter was a question of fact---Candidates would have a right to challenge the findings given in the order in a proper petition and before an appropriate forum---Prima facie, the finding that the voters by using the wrong side of the rubber stamp had conveyed their intention, was unexceptionable---High Court sitting in the Constitutional jurisdiction declined to interfere in the orders passed by Returning Officer whereby the disputed votes were counted.

Jamal Shah v. Election Commission PLD 1986 SC 1; S. Sivasawami v. Malaikannan 1984 PSC 648; Ghulam Dastagir Bari v. Salahuddin 1986. CLC 2499; Khan Shahzada v. Raza Rabi 1983 SCMR 125 and Ijaz Ahmad Cheema v. Iftikhar Hussain 1995 CLC 1426 ref.

Muhammad Irfain Wain for Petitioners.

Muhammad Sarwar Bhatti, Asstt. A.-G. (on Court's call).

Malik Muhammad Rafiq Rajwana for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 1766 #

2001 Y L R 1766

[Lahore]

Before Tassaduq Hussain Jilani, J

Syed MUHAMMAD ALI SHAH and 4 others---Petitioners

versus

IJAZ HUSSAIN SHAH---Respondent

Civil Revision No.378 of 1984 and Civil Miscellaneous Nos. 1596/C to 1598/C of 2000, decided on 10th January, 2001.

Administration of justice---

----Principles of---Subject to all just exceptions, the cases should be decided on merit.

PLD 2000 SC 820 ref.

Syed Murtaza Ali Zaidi for Petitioners.

Muhammad Ghazanfar Ali for Respondent.

Date of hearing: 10th January, 200,1.

YLR 2001 LAHORE HIGH COURT LAHORE 1767 #

2001 Y L R 1767

[Lahore]

Before Tassaduq Hussain Jilani, J

Haji MUHAMMAD HUSSAIN and 4 others---Petitioners

versus

MUHAMMAD ABBAS ---Respondent

Civil Revision No.344 of 2000, heard on 30th July, 2001.

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

----S. 54---Suit for perpetual injunction--Maintainability---Scope---Where prima facie, the plaintiff apprehended danger to his possession of the suit land of which as per the registered deed and Revenue Record he was the owner, a suit for permanent injunction was maintainable.

Mst. Sahar Begum v. Salahuddin 1991 MLD 1594 ref.

(b) Contempt of Court--

---- Possession of plaintiff on suit-land was never challenged by the defendants---Where the defendants had not specifically challenged the same, compliance of the injunction order passed by Court was mandatory and disobedience would amount to contempt.

PLD 1975 Lah. 126 ref.

----O. XXXIX, R.2 (3)---Contempt of Court proceedings---Procedure---Restoring of possession---Attachment of properties owned by defendant in contempt of Court proceedings---Despite the restraint order passed by the Court, the defendants dispossessed the plaintiff from the suit property---Court passed order for restoration of possession and attached the properties owned by the defendants---Contention of the defendants was that the Trial Court should have framed issues and recorded evidence regarding forcible dispossession ---Validity--Court had rightly come to the conclusion that the plaintiff had been forcibly dispossessed in the utter contempt to the order passed by the Court---Contention of the defendants was not tenable as no special procedure was laid down for contempt proceedings---High Court did not find any illegality or material irregularity to warrant interference.

1993 CLC 1327; PLD 1988 Kar. 433; 1988 SCMR 1696; Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others PLD 1975 SC 383 ref.

Mian Shamas-ul-Haque Ansari for Petitioners.

Sh. Inayat Ali and Malik Mumtaz Akhtar for Respondent.

Date of hearing: 30th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1775 #

2001 Y L R 1775

[Lahore]

Before Raja Muhammad Sabir, J

Mst. SARDAR BEGUM through Legal Heirs---Petitioner

versus

FAZAL AHMAD and 2 others---Respondents

Writ Petition No. 10344 of 1992, heard on 14th June, 2001.

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

----Art. 199---Constitutional petition--Findings of High Court---Effect---Allotment of State land---Disputed land was declared to be State land by High Court in previous proceedings but Settlement Authorities allotted the land to the petitioner ---Validity--Findings of High Court were binding upon all State Functionaries---Settlement Authorities were not competent to include the disputed land in the mutation---Order passed by the Authorities was without jurisdiction and of no legal effect, the same was set aside.

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

----Art. 199---Constitutional petition--Application for impleading applicant as party in Constitutional petition---Scope---Where the applicant had no right in the suit property his application for impleading him as a party to Constitutional petition was dismissed.

Ch. Muzammal Khan for Petitioner.

Sh. Abdul Aziz for Respondent No. 1.

M. Hanif Khatana, Addl. A.-G.

Dates of hearing: 11th, 12th, 13th and 14th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1816 #

2001 Y L R 1816

[Lahore]

Before Muhammad Zafar Yasin, J

MUHAMMAD ARSHAD---Petitioner

versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED and

others---Respondents

Writ Petition No.6564 of 1998/BWP, decided on 23rd February, 1999.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition ---Maintainbility--- Laches--- Telecommunication Corporation sanctioned Public Call ice in the interest of public at large which was challenged by another person holding suchlike Public Call Office---Exercise of equitable jurisdiction which primarily would go against the public at large could not be undertaken when there was no violation of law, rule or Fundamental Rights---Relationship between the petitioner and the Corporation being contractual in essence, Constitutional petition was not maintainable for enforcement of agreement between the parties--Constitutional petition which otherwise was suffering front laches was dismissed in circumstances.

Munir Gul and others v. Administrator, Municipal Corporation, Peshawar 1998 CLC 898; Messrs Momin Motor Co. v. The RTA, Dacca PLD 1962 SC 108; Millat Tractors Employees' Trust v. Government of Pakistan PLD 1992 Lah. 68 and Messrs Sandal Fibres Limited v. Government of Pakistan PLD 1992 Lah. 400 ref.

Nadeem Iqbal Chaudhry for Petitioner.

Munawar Hussain Naqvi for Respondent No.6.

Syed Masood Ahmad Gilani for Respondents Nos. 1 to 5.

YLR 2001 LAHORE HIGH COURT LAHORE 1826 #

2001 Y L R 1826

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

MUHAMMAD HAFEEZ and others---Appellants

versus

Ch. SHAHAB DIN and others---Respondents

Regular First Appeal No.597 of 2000, decided on 31st May, 2001.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.35-A---Suit for 'specific performance of contract---Special costs---Imposition of--Land in dispute was agreed to be sold by the defendants to the plaintiffs through a valid agreement arrived at between the parties--Earnest money was paid to the defendants who had delivered possession of the land to the plaintiffs---Out of the ten defendants, eight defendants conceded the suit, but two of the defendants contested the suit despite they had received their shares in earnest money--Balance amount was tendered by the plaintiffs within stipulated time which was received by eight defendants, but the two defendants did not receive their shares whereas the plaintiffs were ready to pay to them---Trial Court taking into consideration the facts of the case, decreed the suit with costs---Suit fled within time was rightly decreed by the Trial Court--Order of imposition of costs on defendants under S.35-A, of C. P. C. was set aside on concession on the part of the plaintiffs who stated that they had no objection if said order was set aside.

N.A. Butt for Appellants.

Najam-ul-Hassan Kazmi for Respondents.

Date of hearing: 31st May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1834 #

2001 Y L R 1834

[Lahore]

Before Ghulam Mahmood Quraishi and Nazir Ahmad Siddiqui, JJ

MUHAMMAD TARIQ MEHMOOD---Appellant

versus

GHULAM SARWAR and others---Respondents

Regular First Appeal No. 56 of 1998/BWP, decided on 25th April, 2000.

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

----O. VII, R. 11 (d)---Rejection of plaint--Averments of the plaint only were to be taken into consideration and not defence of other party or any other material produced by that party.

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

----S. 13---Civil Procedure Code (V of 1908), O. VII, R.11 (d)---Suit for pre-emption--Rejection of plaint for failure to fulfil requirement of "Talabs "---Plaintiff in his plaint had mentioned in detail about making of "Talab-e-Mawathibat" and "Talab-e-Ishhad ", but the Trial Court without framing any issue and without recording evidence rejected the plaint concluding that plaintiff had failed to fulfil the requirements of "Talabs "---Trial Court was not justified in rejecting the plaint under O. VII, R.11(d), C. P. C. as the case of the plaintiff was not covered under said provision.

Gyarailal Jagannathparsad Mor v. Pandit Sitacharan Dubey and others AIR 1963 Madh. Pra. 164; Muhammad Ahmad Butt and another v. Lahore Development Authority and another PLD 1981 Lah. 153; Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani Civil Appeal No. 1004 of 1999; Khani Zaman v. Shah Hussain and others PLD 1998 SC 121; Shafi Muhammad v. Muhammad Hazar Khan and others 1996 SCMR 346 and Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 ref.

Ch. Abdul Sattar for Appellant.

Malik Muhammad Aslam for Respondents.

Date of hearing: 25th April, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1858 #

2001 Y L R 1858

[Lahore]

Before Asif Saeed Khan Khosa, J

MAQSOOD AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 2290/B of 2000, decided on 19th October, 2000.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss.302/316/34---Bail, grant of---F.I.R. was lodged with a delay of about twenty four hours---Section 302, P. P. C. had been substituted by S.316, P. P. C. in the case--Accused's name had been placed in Column No.2 in the supplementary challan, Deputy Superintendent of Police had declared the accused to be innocent in the case diary--Accused being aged about 13-1/2 years at the time of incident in question his case attracted the provisions of first proviso to subsection (1) of S.497, Cr.P.C.---Case against the accused being of further inquiry, he was admitted to bail.

Arshad Ali Chouhan for Petitioner.

Sh. Muhammad Aslam for the State.

Date of hearing: 19th October, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1859 #

2001 Y L R 1859

[Lahore]

Before Maulvi Anwarul Haq, J

Malik FIDA MUHAMMAD and another---Petitioners

versus

HAJI AHMAD and 4 others---Respondents

Civil Revision No. 1200 of 1985, heard on 2nd July, 2001.

(a) Suits Valuation Act (VII of 1887)---

----S.11---Forum of appeal---Pecuniary jurisdiction's--Embargo in specific terms has been placed upon entertainment of objection to the pecuniary jurisdiction of the Courts below in the circumstances stated in S. 11, Suits Valuation Act, 1887 unless and until the Appellate Court was satisfied for the reasons to be recorded in writing, that the suit or appeal was overvalued or undervalued and overvalue and undervalue thereof has prejudicially affected the disposal of the suit or appeal on its merits.

Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 ref.

(b) Suits Valuation Act (VII of 1887)---

----S.3---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Forum of appeal, determination of--Suit for possession of land---Value of original suit---Determining factor---For ascertaining the forum of appeals in such suit under S.18 of the West Pakistan Civil Courts Ordinance, 1962, value of the original suit as determined under the rules framed under S.3 of Suits Valuation Act, 1887, for purposes of jurisdiction is the determining factor and not the market value.

----S.21---Pre-emption suit---Sale to two different persons---Such sale was divisible--Suit land was sold to the vendee on one date at one place---Trial Court decreed the suit in favour of the pre-emptors but the Appellate Court having found the sale divisible partially allowed the appeal and modified the judgment of the Trial Court---Validity---Sale in the case was divisible---Where the share in suit land was specified and the price had also been separately specified and paid, as such the criteria was met in the case---High Court declined to interfere with the judgment and decree passed by the Lower Appellate Court.

Abdul Majid and others v. Muhammad Walayat Khan 1987 SCMR 1139; Jan Muhammad and others v. Dr. Abdul Ghafoor PLD 1966 SC 461; Sadar Din v. Elahi Bakhsh and another PLD 1976 Lah. 1; Abdullah and 3 others v: Abdul Karim PLD 1968 SC 140; Mir Ahmad and others v. Attaullah alias Atta Muhammad and another PLD 1991 SC 210 and Muhammad Riaz and others v. Fateh Muhammad and others PLD 1991 SC 210 ref.

Sh. Naveed Shaheryar and Syed Muhammad Kaleem Ahmad Khurshid for Petitioners.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 2nd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1862 #

2001 Y L R 1862

[Lahore]

Before Mian Saqib Nisar, J

AKBAR ALI and 13 others---Appellants

versus.

MUHAMMAD and 2 others---Respondents

Regular Second Appeal No. 141 of 1983, heard on 17th May, 2001.

(a) Adverse possession---

---- Asserting title on the basis of adverse possession---Onus to prove---Non payment of rent by tenant for any length of time--Effect---Person who asserted title on account of adverse possession, had to establish on record that his title was hostile, open, peaceful qua the actual owner of the property, and overt acts by which, the true owner was put to a notice that the person in possession was claiming title adverse to him---Mere non-payment of rent by tenant for any length of time, would not constitute adverse possession on his part, when admittedly the tenant was under the permissive possession.

Shamshad v. Mukammil Shah 1984 SCMR 912 ref.

(b) Adverse possession---

---- What constitutes-Non-payment of 'Lagan' by tenants---Tenants or sub-tenants were in permissive possession of landlords--Suit for recovery of possession of the suit property was fled by landlords---Tenants raised plea of adverse possession---Relevant column of Jamabandi showed that the landlords were the owners and the Central Government or the defendants as tenants--Trial Court dismissed the suit and Appellate Court also upheld the judgment and decree passed by the Trial Court---Validity---Tenant could not set up a title adverse to the actual owner of the property until and unless either possession was surrendered and unauthorized re-entry was made or by an overt act it was established that the tenant from a particular point of time had asserted and set up the title adverse to the actual owner and the period of 12 years had lapsed since then---No sufficient material was brought on the record by tenants to discharge the strict burden of proof to establish the factum of adverse possession---Where the entry in Jamabandi showing that the tenants were not paying "Gagan" and considered themselves to be the owners of the property, such fact by itself was not sufficient to constitute adverse possession.

Moulvi Noor Muhammad v. Sheikh Abdul Qadeem 1995 SCMR 522; Muhammad Umran v. Malik Aman 1979 SCMR 481; Khanpur and others v. Muhammad Zarin PLD 1989 SC 485; AIR 1971 SC '996; AIR 1923 PC 118; Shamshad v. Mukammil Shah 1984 SCMR 912 and Mehrab Shah v. Shah Zaman 1985 SCMR 497 ref.

PLD 1954 Lah. 365; AIR 1929 Cal.218 and AIR 1928 Lah. 896 distinguished.

Syed Muhammad Kaleem Ahmad Khursheed for Appellants.

Muhammad Nawaz for Respondents.

Date of hearing: 17th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1865 #

2001 Y L R 1865

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MUHAMMAD ALTAF alias TEDI and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 86, 15 and Criminal Revision No.161 of 1991, decided on 30th May, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/307/34---Appreciation of evidence---Occurrence was a daylight incident and the parties knew each other---All the accused persons had been attributed specific role of having caused injuries on the deceased and the injured witnesses--Complainant and the prosecution witnesses being injured witnesses, their presence at the spot could not be doubted and they had ascribed specific injuries having been caused by each accused---Ocular account had been fully corroborated by medical evidence and the recoveries of weapons of offence---All the accused were nominated in promptly lodged F.I.R. and no reason for their false implication or substitution had been found---Prosecution having established its case against the accused beyond any shadow of doubt, there was no ground for interference in the convictions and sentences recorded against them under S. 302/34, P. P. C. and under S.307/34, P.P.C.---Trial of one of the accused having been concluded in his absence, his conviction and sentence were set aside and his case was remanded to the Court of competent jurisdiction for retrial with the direction to conclude the case within specified period.

Mehram Ali's case PLD 1998 SC 145 ref.

S.M. Latif Khan Khosa for Appellants.

Muhammad Riaz Lone for the State.

Ch. Afrasiab Khan Hashim, Sabir Raja and Raja Shafqat for the Complainant.

Date of hearing: 30th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1870 #

2001 Y L R 1870

[Lahore]

Before Ch. Ijaz Ahmad, J

FAZAL SHER---Petitioner

versus

PROVINCE OF PUNJAB through District Collector, Bhakkar

and 2 others---Respondents

Civil Revision No. 1230-D of 1991, heard on 19th April, 2001.

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

----Arts. 30 & 31---Admission of fact---Proof of---Suit for possession---Adverse possession, plea of---Plaintiff was shown as owner in Revenue Record and the defendants as tenants---On the basis of statement of the plaintiff Trial Court formed opinion that the plaintiff had made admission qua adverse possession of the defendant on the suit land--Suit was dismissed by the Trial Court and appeal before Appellate Court was also dismissed---Validity---Defendants failed to prove on record that they were in possession of the suit land as owners---Such fact was not considered by both the Courts below---Even otherwise ground of adverse possession was not available to the defendants factually as well as legally---Where the admission of the plaintiff in cross-examination was not qualified admission, as the same was wrong factually, therefore, both the Courts below erred in law to consider the same as admission on the part of the plaintiff--Concurrent findings of fact by the Courts below were set aside by the High Court in exercise of revisional jurisdiction.

Khudayar v. Muhammad Razzaq PLD 1989 SC 749; Ahmad Khan v. Rasool Shah PLD 1975 SC 311; Maqbool Ahmad v. Government of, Pakistan 1991 SCMR 2063; PLD 1987 SC 453 and Moot Chand and 9 others v. Muhammad Yousaf PLD 1994 SC 462 ref.

Allah Wasaya Malik for Petitioner.

Malik Akhtar H. Awan, A.A. -G. for Respondents.

Date of hearing: 19th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1874 #

2001 Y L R 1874

[Lahore]

Before Ch. Ijaz Ahmad, J

MATHELA and another---Petitioners

versus

PRVOINCE OF PUNJAB through Collector, Sheikhupura

and 7 others---Respondents

Civil Revisions Nos. 779 and 1446 of 1997, heard on 7th June, 2001.

(a) Trespasser---

----Rights---Trespasser has no vested right.

Anjuman Araian, Bhera v. Abdul Rashid PLD 1982 SC 308 ref.

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

----Art.73---Civil Procedure Code (V of 1908), S.115---Primary evidence---Document not properly exhibited---Plaintiff produced on record original copy of R.L.II alongwith certified copy of Roznamcha Waqiati---Trial Court on the basis of oral as well as documentary evidence produced by the plaintiff decreed the suit and appeal against the same was dismissed by the Appellate Court---Contention of the defendant was that both the Courts below had relied on a document which was not properly exhibited--Validity---Although R.L.II was not properly exhibited in accordance with the provisions of Qanun-e-Shahadat, 1984, yet both the Courts below were justified to consider original copy of R.L.II---Where no jurisdictional defect was pointed out and there was no legal infirmity, High Court declined to interfere with the judgments and decrees passed by the Courts below---High Court took serious note of the fact that cases of Government were decided against Government as the public functionaries failed to pursue the, matters diligently and efficiently, consequently public exchequer was looted by cunning people with the connivance of the subordinates---High Court directed the Provincial Government to constitute a Committee to probe into the matter---Revision was dismissed accordingly.

Zafar-ul-Ahsan -v. The Republic of Pakistan PLD 1960 SC 113; Gul Ahmad Khan and others v. Muhammad Nawaz and others 1988 CLC 142; Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Muhammad Shafi v. L.D.A. 1993 CLC 2482; Waris Khan and others v. Col. Humayun Shah and 41 others PLD 1994 - SC 336; Messrs Nawab Brothers Ltd. v. Messrs Hand Tools Limited 1994 CLC 873; Ms. Gul Bano and 4 others v. Muhammad Ramzan and another 1982 CLC 1120 and Mian Tajammal Hussain v. Life Insurance Corporation of Pakistan 1993 SCMR 1137 ref.

----S.115---Revision---Findings on question of fact or law---Interference by High Court in revisional jurisdiction---Scope---Such findings howsoever, erroneously recorded by a Court of competent jurisdiction, cannot be interfered with by High Court in exercise of its revisional jurisdiction cinder S.115, C. P. C., unless such findings suffer from jurisdictional defect, illegality or material irregularity.

N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 ref.

Malik Akhtar H. Awan, A.A. -G. for Petitioner.

Syed Kalim A. Khurshid for Respondents.

Date of hearing: 7th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1880 #

2001 Y L R 1880

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MUHAMMAD AKRAM alias BAGGA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 486 of 1996, heard on 31st May, 2001.

Penal Code (XLV of 1860)--

----Ss. 302/148/149---Appreciation of evidence---Accused were nominated in promptly recorded F.I.R.---No previous enmity between the parties for false implication or substitution of the accused was found---Mere relationship with the deceased or connection inter se of the prosecution witnesses was no ground to discard their testimony---Nothing had been brought on record to show that prosecution witnesses were inimical towards the accused---Ocular account had been corroborated by medical evidence and recovery of alleged weapon of offence---Discrepancies pointed out by the defence were of minor nature and not fatal to the prosecution case---Prosecution having proved its case against the accused beyond any shadow of doubt there was no reason to interfere in the conviction recorded by the Trial Court against the accused---Allegation of general firing was levelled against all the accused persons and no individual injury had been attributed to the accused---Case being fit for awarding lesser penalty instead of death sentence, maintaining the conviction, sentence of death was reduced to imprisonment for life with benefit of S.382-B, Cr. P. C.

Syed Muhammad Aslam for Appellant.

Abdur Rasheed Moin for the State.

Date of hearing: 31st May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1884 #

2001 Y L R 1884

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

GUJRANWALA DEVELOPMENT AUTHORITY through Director General, G.D.A. Plaza, Model Town, Gujranwala---Appellant

versus

MUHAMMAD HUSSAIN ---Respondent

Regular First Appeal No. 332 of 1996, heard on 9th May, 2001.

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

----Chap. V [Arts. 72 to 101] ---Loss of primary evidence---Inquiry into the fact of loss---Secondary evidence, production of--Scope--- -Secondary evidence in such situation is to be brought on record subject to the condition that sufficient material must be placed before the Court qua the loss of primary evidence by virtue of Chap. V of Qanun-e-Shahadat, 1984.

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

----Arts. 87, 88 & 89---Public document--Letter issued by Government---Failure to produce the original letter---Admission of copy of such letter in evidence ---Validity-- Where the original letter of the Government was not summoned a copy of such letter was not admissible in evidence.

Ibrahim Saley Mawate's case PLD 1960 Kar. 297; Lal Muhammad's case PLD 1974 Note 125 at p.180 and Hazari Lal v. Har Govind 48 IC 375 ref.

----Arts. 87, 88 & 89---Public document--Letter issued by Government---Admission of copy of the letter without comparing the original---Validity---Trial Court had erred in law to rely upon copy of the letters/orders, therefore, finding of the Trial Court was reversed and the suit of the plaintiff was dismissed in circumstances.

(d) Proof---

----Requirements---Plaintiff has to prove his case on its own footing and is not allowed under the law to get the benefit of weakness of defendant.

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

----S.75, O.XXVI, Rr.9 & 10 & O. VI, R.17--Local Commission, report of---Objection to the report---Amendment of plaint in the light of report of Local Commission---Trial Court after framing issue and without consent of the defendant appointed Local Commission--Subsequently in the light of the report, the plaintiff filed application for amendment of the plaint---Trial Court framed additional issues and decreed the suit in favour of the plaintiff---Validity---Trial Court appointed Local Commissioner without the consent of the defendant and did not consider the objections raised by the defendant on the report filed by the Local Commissioner--High Court reversed the finding of the Trial Court on the issue qua report of the Local Commissioner and the judgment and decree passed by the Trial Court were set aside in circumstances.

Province of Punjab v. Abdur Rehman Shaukat 1999 SCMR 2610 distinguished.

(f) Practice and procedure---

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

Altaf-ur-Rehman for Appellant.

Syed Zain-ul-Abadin for Respondent.

Dates of hearing: 8th and 9th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1891 #

2001 Y L R 1891

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASAF--- -Petitioner

versus

SMALL BUSINESS FINANCE CORPORATION through Branch Manager, Lahore Cantt. and 7 others---Respondents

Constitutional Petitions Nos. 12403 to 124015 of 2001, decided on 5th July, 2001.

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

----Art.199---Constitutional petition ---Maintainability---Agreement, enforcement of--Where the parties had executed agreements of their own sweet-will, the same cannot be enforced through Constitutional petition.

Mumtaz Masood's case 1984 SCMR 2287 ref.

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

----Arts. 199 & 203-G---Declaration as to charging of interest against Injunctions of Islam---Jurisdiction of High Court under Art.199 of the Constitution---Scope---High Court in view of Art. 203-G of the Constitution has no authority to determine the question of charging of interest being against Injunction of Islam.

Muhammad Aslam Khaki's case PLD 2000 SC 225 and Muhammad Ramzan's case 2001 CLC 158 ref.

----Art. 199---Constitutional petition ---Maintainability---Show-cause notice ---Constitutional petition is not maintainable against show-cause notice.

Shagufta Begum's case PLD 1989 SC 360 and Nabi Bakhsh Khosa's case 2000 SCMR 1071 ref.

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

----Art. 199---Constitutional petition--Maintainability---Disputed question of fact--High Court has no jurisdiction under Art. 199 of the Constitution to resolve disputed question of law.

Muhammad Younus Khan's case 1993 SCMR 618 ref.

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

----Art.199---Constitutional petition ---Maintainability---Alternate remedy---Where petitioner had alternate remedies under law either to approach the Authorities or to file civil suit before competent Court, Constitutional petition was not maintainable.

Muhammad Ismail's case PLD 1996 SC 246 ref.

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

----Art.199---Constitutional petition ---Maintainability---Apprehension by petitioner--Constitutional petition is not maintainable against apprehension.

National Re-rolling Steel Mill's case 1968 SCMR 317(2) ref.

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

---Art.199---Constitutional petition ---Harassment---Where the petitioner did not attach any document to show that the Authorities were harassing the petitioner in violation of mandatory provisions of law, Constitutional petition was not maintainable.

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

----Art. 185 (3)---Judgment---Leave granting order or admission order is not judgment.

Mirza Adam Khan's case PLD 1975 SC 9 ref.

(i) House Building Finance Corporation Act (XVIII of 1952)---

----Ss. 28 & 30---Constitution of Pakistan (1973). Arts. 25 & 199---Constitutional petition---Discrimination---Grievance of petitioner was that the Authorities were initiating coercive measures for recovery of loan---Authorities under the direction of their superiors initiated proceedings for recovery through coercive measures from poor people who had secured/obtained loan for the purpose of business or construction of houses---Effect---High Court had noticed that Constitutional petitions were filed by only poor people in last few months and the rich who had obtained huge loans had not filed any such petition; in such situation possibility could not be ruled out that the Authorities and financial institutions had not initiated proceedings against the rich who had obtained loan from the financial institutions and the same was hit by Art. 25 of the Constitution---High Court directed the Authorities to constitute high-powered committee to formulate policy to save the interest of House Building Finance Corporation and also the poor so that they might be able to discharge their liability in easy instalments---Petition was disposed of accordingly.

Muhammad Aslam Khaki's case PLD 2000 SC 225 and Mehmood-ur-Rehman's case PLD 1992 FSC 1 ref.

Rashid Murtaza Qureshi for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 1897 #

2001 Y L R 1897

[Lahore]

Before Maulvi Anwarul Haq, J

INAYAT ALI and another---Petitioners

versus

MUBASHIR ALI and 14 others---Respondents

Constitutional Petition No. 11652 of 2001, decided on 29th June, 2001.

Punjab Local Government Elections Rules, 2000---

----Rr. 39(5), 40(6), 81 & 83---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Declaring election void as a whole---Jurisdiction of Returning Officer---No allegation was made in the election petition that some votes which ought to have been counted in favour of unsuccessful candidates were not counted or that some votes which ought not to have beer: counted in favour of the returned candidate, had been counted---Unsuccessful candidates had withdrawn other grounds raised in tire election petition and only relied on the ground of recounting---Election Tribunal allowed the petition in terms that the election be decided in view of recounting ---Validity--Where the election petition failed to show any ground which might be made basis for setting aside election of returned candidates within the meaning of R.81 of Punjab Local Government Elections Rules, 2000, or for declaring the election void as a whole in terms of R.83 of Punjab Local Government Elections Rules, 2000, the petition became sans cause of action---No ground within the ambit of either R.39(5) or R.40(6) of Punjab Local Government Elections Rules, 2000 having been made out to warrant the order passed by the Election Tribunal to hold recount, order of Election Tribunal being without lawful authority was set aside---Case was remitted back to Election Tribunal to decide afresh.

Zulfiqar Ali v. Election Tribunal Khanpur and 5 others 2000 MLD 746; Abdul Majid v. Election Tribunal 1993 MLD 2523; Muhammad Dilshad Khan v. Ch. Arshad Ali, Civil Judge/Election Tribunal and 3 others 1999 MLD 2874; Bashir Ahmad v. District Judge, Malakanda and others 1985 SCMR 533 and Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 ref.

Manzoor Hussain Butt for Petitioners.

Rana Muhammad Arif for Respondents Nos. 2 and 3.

Nasim Sabir Ch., Addl. A.-G. (on Court's call).

YLR 2001 LAHORE HIGH COURT LAHORE 1902 #

2001 Y L R 1902

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

KAMIR through Legal Heirs and 2 others---Appellants

versus

Sardar MUMTAZ ALI KHAN through his Legal Representatives and

2 others---Respondents

Intra-Court Appeal No. 1-C of 1976, heard on 7th May, 2001.

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

----O.XLI, R.I---Appeal---Failure to file copy of judgment of Trial Court---Filing of the copy after the period of limitation ---Effect--Appeal was admitted without certified copy of judgment passed by Trial Court---High Court dismissed the appeal being time-barred--Validity---Where in a case, the copy was filed, the period of limitation prescribed for fling the appeal had already expired, but since then the Appellate Court had already permitted placing of the copy on record, Court ought to have extended the time for filing such copy---When the Court is vested with power to exempt a party front performing a legal obligation, but such request was declined, and in the meanwhile the Court had permitted the period of limitation prescribed for performance of such obligation to expire, time must be extended by the Court to enable the party to perform such obligation, because no one was made to suffer by any act of the Court--Appeal was wrongly dismissed by the Appellate Court and the judgment passed by the Appellate Court was set aside in circumstances.

Mst. Safia Begum's case 1993 SCMR 882; Brojendra Lal Saka and others v. Jana Mendal and others AIR 1947 Cal. 67; Bashir Ahmad Siddiqui's case 1995 PSCC 1094; Nanda Kishor Singh's case ILR Calcutta Series 1955 and Said Muhammad and others' case PLD 1989 SC 532 ref.

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

----S. 3---Intra-Court Appeal ---Maintainability---Principle of res judicata---Applicability---Contention of the respondent was that the matter had already been decided by High Court in Constitutional petition, therefore, principle of res judicata was applicable ---High Court in Constitutional petition recommended that civil suit might be filed for resolving the dispute in question---Effect--Such observation of High Court passed in Constitutional petition did not attract the principle of res judicata.

Noor Muhammad's case PLD 1978 Lah. 819; Mst. Karan Nishan's case PLD 1959 Lah. 946; Muhammad Iqbal v. Khan Muhammad PLD 1999 SC 35; Federation of Pakistan v. Maj (Retd.) Muhammad Sabir Khan PLD 1991 SC 476; PLD 1992 SC 882; Sultan Mir v. Umar Khan 1992 SCMR 1206 and Allah Ditta v. Barkat Ali and others 1992 SCMR 1974 ref.

----Act of Court---No one can be made to suffer by any act of the Court.

Syed Zain-ul-Abidin for Appellants.

Zafar Iqbal Ch. for Respondents.

Date of hearing: 7th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1934 #

2001 Y L R 1934

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GULRAIZ AKHTAR alias BHOLA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3964/B of 2001, decided on 8th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Allegations levelled against the accused were that he fired at the deceased hitting on his head which was fatal injury resulting in the death of the deceased---F. I. R. was lodged promptly within one hour after the occurrence in which the accused was named and specific role was ascribed to him---Contention of the accused that he had fired at the deceased in exercise of his right of self-defence, could not be considered as ground for bail after arrest in a heinous offence merely on the opinion of Investigating Officer which had no evidentiary value---Grounds urged by the accused were not sufficient to make out a case of further inquiry when it was admitted that the accused had fired at the deceased---Onus to prove said circumstances was on the accused and he would be afforded opportunity to prove his innocence at the time of trial, but at the bail stage it could not be said that the accused was not guilty of an offence which fell within the prohibitory clause contained in S.497 (i), Cr. P. C.--Accused who was roped in a heinous offence, having not succeeded in making out a case of further inquiry for the grant of bail after arrest, his application of bail was dismissed.

Sardar Mushtaq Ahmed Khan for Petitioner.

Rana Muhammad Anwar Khan for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 1936 #

2001 Y L R 1936

[Lahore]

Before Maulvi Awnarul Haq, J

MUHAMMAD SIDDIQUE and another---Petitioners

versus

DISTRICT JUDGE/ELECTION TRIBUNAL and 4 others--Respondents

Writ Petition No. 8619 of 2001, heard on, 21st June, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

----S.14---Qualification of candidate--Requisite age---Where the candidate had not attained the requisite age on the day of nomination, such candidate was disqualified from. contesting the election.

(b) Punjab Local Government Elections Rules, 2000---

----R.82---Declaring a person other than returned candidate to be elected---Duties of Election Tribunal---Scope---Election Tribunal has to be satisfied that the petitioner before him or such other contesting candidate, was entitled to be declared elected.

----R.82---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Reelection---Declaring an unsuccessful candidate as elected-- -Election petition was filed on the ground that the returned candidate was not of 25 years of age on the day of filing of nomination papers---Returned candidate was only 10 days short of 25 years---Election Tribunal allowed the petition and declared the unsuccessful candidate as elected---Validity---Neither any pleadings nor any evidence was available on record to the effect that the electorate was aware of the fact or could have been aware of the fact that the returned candidate was not exactly 25 years of age---Where there were no pleadings, no evidence and no findings, the votes of more than 2000 persons could not be treated as throwaway votes---Order of the Election Tribunal declaring the unsuccessful candidates to have been elected as a result of setting aside of the election of the returned candidate, was without lawful authority and the same was set aside---High Court directed for afresh election for the said seats of Nazim and Naib-Nazim in the Constituency--Constitutional petition was allowed accordingly.

Muhammad Yaqoob Sindhu and Roshan Ali Sindhu for Petitioners.

Mushtaq Ahmad Mohal for Respondents Nos. 2 and 3.

Mian Khalid Mehmood for Respondents Nos. 5 and 6.

Nemo for the Remaining Respondents.

Date of hearing: 21st June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1938 #

2001 Y L R 1938

[Lahore]

Before Mian Saqib Nisar, J

Raja MUHAMMAD DAOOD AHMED KHAN and another---Petitioners

versus

DISTRICT RETURNING OFFICER, FAISALABAD and 8 others---Respondents

Writ Petition No. 10183 of 2001, decided on 26th July, 2001.

(a) Punjab Local Government Elections Rules, 2000---

----R.29---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Direction for fresh polls---Non-availability of ballot papers at the time of polling---Jurisdiction of District Returning Officer directing for fresh elections---No report was submitted by Returning Officer to the District Returning Officer, about stoppage of polling in terms of R.29(2) of Punjab Local Government Elections Rules, 2000 but only a request had been made by the Presiding Officer to the Returning Officer, for sending additional ballot papers which could not, however, reach the polling station till 6-15 p.m.--Unsuccessful candidate had not approached the District Returning Officer for seeking redressal: of his grievance, though he subsequently, moved an application after about four days of the elections, when the election results had already been declared--Validity---District Returning Officer, after the announcement of election result, could not exercise any jurisdiction, in the matter as he had become functus officio to pass any order under R.29(2) of Punjab Local Government Elections Rules, 2000 and the stage for passing order in exercise of such jurisdiction had passed when the election result was declared---Order passed by the District Returning .Officer was not interfered with--High Court advised the unsuccessful candidate that he might file election petition before the Election Tribunal--Constitutional petition was dismissed accordingly.

(b) Punjab Local Government Elections Rules, 2000---

----R.28---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Question of fact---Number ' of voters present at polling station--Dispute was as to how many voters were present at the polling station at the time of closing of the polls and likely turn out within the period left from the closing schedule and on account of that the result could have been materially affected--Validity---Such disputed questions of fact could only be resolved after due inquiry which could not be undertaken in the Constitutional jurisdiction.

S.M. Masood for Petitioners.

M.A. Zafar for Respondent No.6.

YLR 2001 LAHORE HIGH COURT LAHORE 1941 #

2001 Y L R 1941

[Lahore]

Before Asif Saeed Khan Khosa, J

MEHBOOB AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 2266-B of 2000, decided on 19th October, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16--Bail, grant of ---F.I.R. had been lodged with a delay of one year---Allegedly enticed lady being a grown-up lady with four children, the question whether she had been duped or deceitfully induced into going away with the accused party or she had gone away with them willingly, was a question which would be determined by the Trial Court on the basis of the evidence---Accused was not the principal accused and the allegation levelled against him was only in respect of being an abetter of co-accused---Offence under S.16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 did not attract the prohibitory clause contained in S.497(1), Cr. P. C. ---Allegedly enticed lady had not been recovered from the custody of the accused during the investigation ---Co-accused who had been declared to be proclaimed offender, had not been arrested---One accused person could not 6e held as a hostage for the arrest of another---Case against the accused calling for further inquiry, he was admitted to bail.

Arshad Ali Chauhan for Petitioner.

Sh. Muhammad Aslam for the State.

Date of hearing: 19th October, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 1942 #

2001 Y L R 1942

[Lahore]

Before Mansoor Ahmad, J

INSTITUTION OF ENGINEERS PAKISTAN, ENGINEERING CENTRE, GULBERG-III, LAHORE---Petitioner

versus

PAKISTAN ENGINEERING COUNCIL through Engineer Major-General (Retd.)

Javed Anwar Hashmi, Registrar PEC, Ata Turk Avenue (East), G-5/2, Islamabad

and 3 others---Respondents

Writ Petition 'No. 20437 of 1998, heard on 11th July, 2001.

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

---Ss. 14 & 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Maintainability---Proceedings before Executive Committee---Validity---Where the Constitutional petition was directed to challenge the entire proceedings before the Executive Committee of Pakistan Engineering Council for de-recognition of MIE (Pak.), same was not premature and was maintainable in circumstances.

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

----Ss.14 & 15---Proceedings before Executive Committee---Report not submitted by all 24 Inspectors appointed under S. 14 of Pakistan Engineering Council Act, 1976---Validity--Even a report submitted by one individual Inspector could be made the basis of initiating proceedings under S. 15 of Pakistan Engineering Council Act, 1976.

----S. 15(2)---Change in entry of First Sched.---Power to bring about a change in the entry of First Sched. has been vested with the Engineering Council itself.

(d) Pakistan Engineering Council Act (V of 1976)---

----Ss. 14 & 15---Recognition or de-recognition of engineering qualifications--Jurisdiction of Pakistan Engineering Council---Mandate of law given to Pakistan Engineering Council relates to the profession of engineering and the promotion of engineering education and qualifications--Where any proceeding has been initiated by Pakistan Engineering Council within parameter of Pakistan Engineering Council Act, 1976, relating to, the recognition or de-recognition of any engineering qualification, such proceeding is well within the jurisdiction of the Council.

(e) Pakistan Engineering Council Act (V of 1976)---

----Ss. 14, 15 & Preamble---Pakistan Engineering Council---Object and scope--Objective of Pakistan Engineering Council Act, 1976 is progressive and dynamic and meant to uplift the values and standard of engineering education in the country so as to check the deterioration in the field of engineering education and work for its improvement and promotion so that Engineers in Pakistan may successfully enter in the competitive world of -modern science and technology---Function of Pakistan Engineering Council may not be put to arrest by reason of any technical or hypertechnical consideration of rules or for showing any indulgence to a pocket of vested interest--Engineering Council being an institution of national stature should be allowed to function smoothly within the parameters set down by Pakistan Engineering Council Act, 1976.

(f) Pakistan Engineering Council Act (V of 1976)---

----Ss. 14 & 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition--De-recognition of MIE(Pak.) Engineering Diploma qualification---Proceedings before Pakistan Engineering Council---Executive Committee of the Council, the report of 14 Inspectors derecognised the Diploma--Validity---Monitoring, supervising and examining the sufficiency of examinations, courses of studies and facilities of teaching were the corridors provided for Pakistan Engineering Council---Where the Executive Committee of the Council had not transgressed the limits, the proceedings conducted by the Committee in relation to the courses of studies, sufficiency of examination and facilities of teaching made available for the diploma of MIE(Pak.) by the Institution of the Engineers Pakistan and issuance of the show-cause notice was in accordance with law and did not suffer from any legal infirmity---Constitutional petition was dismissed in circumstances.

Maple Leaf Cement Factory Ltd. v. Collector of Customs, Customs House, Faisalabad 2000 MLD 1989 ref.

Muhammad Akram Khawaja for Petitioner.

Abid Hassan Minto for Respondents.

Date of hearing: 11th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1950 #

2001 Y L R 1950

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

SHABBIR HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.381 of 1997 and Murder Reference No.83 of 1998, heard on 24th July, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑F.I.R. had been promptly lodged at the Police Station without any consultation and deliberation‑‑‑Occurrence had taken place in broad daylight‑‑‑Parties being known to each other and the case being of single accused, no question of false implication or mistaken identity could arise‑‑‑Defence version seemed to be unnatural, improbable and unconvincing‑‑‑Eye‑witnesses though closely related to the deceased could not be termed as interested or inimical witnesses‑‑‑Ocular evidence was fully corroborated by medical evidence‑‑‑No mitigating circumstance in favour of accused was available on record‑‑‑Conviction .and sentence of death of accused were confirmed in circumstances.

Waris Khan. v. State 2001 SCMR 387 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Motive‑‑‑Allegation and proof of motive is not a legal requirement to award maximum penalty of death in a murder case.

Waris Khan v. State 2001 SCMR 387 ref.

Malik Muntazir Mehdi for Appellant.

Abdul Hameed Khokhar for the State.

Date of hearing: 24th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1967 #

2001 Y L R 1967

[Lahore]

Before Tanvir Bashir Ansari, J

ALTAF HUSSAIN SHAH‑‑‑Appellant

versus

NAZAR HUSSAIN SHAH‑‑‑Respondent

Regular Second Appeal No.2 of 1987/BWP, decided on 16th July, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.17‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Agreement of sale‑‑‑Attestation of‑‑‑Transaction of sale witnessed by an agreement to sell, reduced into writing pertained to future obligations of both the parties was required to be attested by two men or one man and two women‑‑‑While appreciating the strength of evidence, reliance would be placed upon Injunctions of Islam despite the fact that Art.17, Qanun‑eShahadat, 1984 was not on the statute book on the date when agreement to sell was executed.

Taj Din v. Abdul Rehman PLD 1983 Kar. 825; Sartan Bibi v. Muhammad Niamat Din Gondal PLD 1965 Dacca 531; N.B.P. v. Mst. Hajra Mai PLD 1985 Kar. 431; Manzoor Hussain Khan v. Asia Begum and 21 others 1990 CLC 1014 and Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Art. 17‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Suit for specific performance of contract‑‑‑Execution of agreement of sale‑‑Proof‑‑‑Party relying upon a document which was denied by the opposite party must prove its execution in accordance with law‑‑‑Rule of best evidence had to be followed and if such best evidence was not produced, the standard of proof required to prove the document, would be lacking‑‑‑Plaintiff in proof of execution of agreement to sell in his favour had produced the scribe who was not a Wasiqa Navees and who obviously could not make any entries in any Wasiqa Navees register‑‑‑Testimony of such a Wasiqa Navees, therefore, was not worthy of credence‑‑‑Statement of the scribe had no evidentiary value as he had signed the same merely as a scribe thereof and not as a witness‑‑‑Ordinarily the scribe writes out the document and signs his name before the executant signs the document‑‑‑Not proper to treat the scribe as an attesting witness‑‑‑No marginal witness of agreement to sell having been produced, same would not prove itself‑‑Agreement and the receipt had not been proved by strong and independent direct evidence‑‑‑Judgment and decree passed by the Trial Court in favour of the plaintiff were rightly set aside by Appellate Court.

Shamu Patter v. Abdul Qadir 16 IC 250 ref.

M.M. Bhatti for Appellant.

Bashir Ahmad Choudhary for Respondent.

Date of hearing: 16th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1970 #

2001 Y L R 1970

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

IZHAR ALI SHAH‑‑‑Appellant

versus

SHAHBAZ and 3 others‑‑‑Respondents

Criminal Appeal No. 174 of 2000, heard on 28th June, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑ Appreciation of evidence‑‑Failure of prosecution to prove motive for offence‑‑‑Effect‑‑‑Even where the prosecution sets up a motive and is unable to prove it, conviction can still be made provided the testimony of eye‑witnesses is trustworthy.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑Appeal against acquittal‑‑Ocular testimony had a ring of truth around it and inspired confidence‑‑Mere relationship of eye‑witnesses with the deceased Was not sufficient to disbelieve them who otherwise had told the truth and had no motive to substitute the accused with the real culprit‑‑‑Non‑recovery of any weapon from the accused was not enough to absolve him from his participation in the commission of the crime alongwith others resulting in the death of two persons‑‑Medical evidence had corroborated the ocular testimony‑‑‑Accused, however, had caused injuries to the deceased on non‑vital parts of their bodies and he was vicariously liable for the acts of his co-accused who had absconded and were responsible for causing the death of the deceased‑‑‑Occurrence related to the year 1992‑‑‑Accused was convicted under S.302 (b), P. P. C. on two counts for the murders of the two persons and sentenced to imprisonment for life on each count under the circumstances‑‑‑Sentences were directed to run concurrently with the benefit of S.382‑B, Cr. P. C. to the accused.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑Related witnesses‑‑‑Evidentiary value‑‑‑Principle‑‑‑Mere relationship of the eyewitnesses with the deceased is not sufficient to disbelieve them who otherwise have told the truth and have no motive to substitute the accused with the real culprit.

Shahid Hussain Qadri for Appellant.

Shaqar Khilji for Respondent No.3.

Miss Yasmin Sehgal, Asstt. A.‑G.

Date of hearing 28th June 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1988 #

2001 Y L R 1988

[Lahore]

Before Khawaja Muhammad Sharif, J

RAMZAN alias RAMOO and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.664 of 1990, heard on 18th July, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34 ‑‑‑ Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Appreciation of evidence‑‑ Confession‑‑‑Value‑‑‑Prosecution witness before whom confession was made being neither a Lambarder nor a Councillor or a man of authority, it was not admissible in evidence‑‑‑Even otherwise extra judicial confession was a very weak type of evidence‑‑‑Post‑mortem report did not show the time of death of the deceased‑‑‑Crime empties did not match with the guns of the accused‑‑‑Descriptions of the accused were not given in the F.I.R.‑‑‑Identification parade having been held after 6/7 months of the occurrence, prosecution witnesses who had seen tile accused only for 2/3 minutes could not possibly identify them after such a long period‑‑‑Accused were acquitted on benefit of doubt in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Evidence‑‑‑Evidence of very high quality must come from an unimpeachable source in cases punishable with capital sentence which should lead to the only conclusion about the murder of the deceased by the accused.

Shah Ahmad Khan Baloch and S.D. Qureshi for Appellants (on State expenses).

Abdul Qayyum Anjum for the State.

Date of hearing: 18th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 1996 #

2001 Y L R 1996

[Lahore]

Before Khawaja Muhammad Sharif and Naeemullah Khan Sherwani, JJ

WARIS‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 128 and Murder Reference No. 73 of 1998, heard on 23rd July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidenceF.I.R. had been registered after due deliberation and consultation‑‑‑No source of light was given in the F.I.R., nor it was a moon‑lit night‑‑‑Occurrence had taken place at 3 a.m. ,in the month of February which was highly winter season‑‑‑Eye‑witnesses, in circumstances, could not possibly identify the accused‑‑‑Services of the Tracker had been obtained for the reasons that the accused were not known‑‑‑Crime empties and the gun having been sent together to the Fire‑Aria Expert, his report had lost its corroborative value and the same could not be relied upon‑‑‑Presence of eye‑witnesses at, the spot was highly doubtful‑‑‑No independent witness from the vicinity of place of occurrence had been examined at the time‑‑Accused was acquitted in circumstances.

Mian Arshad Latif for Appellant.

Mehr Haq Nawaz Hamayun for the Complainant.

Masood Sabir for the Slate.

Date of hearing: 23rd July, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2000 #

2001 Y L R 2000

[Lahore]

Before Riaz Kayani, J

NAZAR MUHAMMAD ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1084 of 1998, heard on 15th June, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 308 & 302(c)‑‑‑Appreciation of evidence‑‑‑Perpetrator, of the crime was definitely the accused, but he had committed the murder of his wife by strangulating her as she was of easy virtue and was seen making love with her paramour in the garden‑‑Conviction of accused under S.308, P. P. C. was altered to S. 302 (c), P. P. C. in circumstances and his sentence of 14 years' R.I. was maintained‑‑‑Killing due to provocation usually did not entail the punishment of either Diyat or compensation and the same was set aside‑‑‑Benefit of S.382‑B, Cr. P. C. also was extended to accused.

Ch. Shahid Tabassam for Appellant.

Ch. Abdur Rashid Moman for the State.

Date of hearing: 15th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2007 #

2001 Y L R 2007

[Lahore]

Before Tanvir Bashir Ansari, J

ABDUL SATTAR‑‑‑Petitioner

versus

NOOR AHMAD‑‑‑Respondent

Civil Revision No. 174‑D of 1984/BWP, decided on 25th May, 2001.

Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑Suit for declaration‑‑‑Appellate Court while setting aside judgment and decree of the Trial Court had not given any finding on vital issues upon which the very maintainability of the suit depended‑‑Incumbent upon the Appellate Court to first hold whether the suit itself was maintainable or not‑‑‑Judgment of Appellate Court suffering from non‑reading of material evidence and exercise of jurisdiction with material irregularity, was set aside by the High Court in exercise of its revisional jurisdiction and case was remanded to be decided afresh on all issues.

Nadeem Iqbal Chaudhry for Petitioner.

Syed Muhammad Anwar Shah for Respondent.

Date of hearing: 21st May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2010 #

2001 Y L R 2010

[Lahore]

Before Khawaja Muhammad Sharif and Naeemullah Khan Sherwani, JJ

ZAFAR SHAH and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 120 and Murder Reference No. 123 of 1998, heard on 24th July, 2001.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302(b), 324, 337‑F(iii) & 308‑‑Appreciation of evidence‑‑‑Prosecution evidence was contradicted by medical evidence‑‑‑Dying declaration allegedly made by the deceased before his death had been interpolated and was not recorded in the presence of the Doctor whose signatures had been obtained on a blank paper and same, therefore, was a patent fabrication‑‑‑Injuries on the person of the injured eye‑witness seemed to be self‑suffered‑‑‑Eye‑witnesses who were residents of places 2 and 2-1/2 miles away from the place of occurrence were not present on the spot at the relevant time‑‑‑Investigation of the case had been conducted in a dishonest manner‑‑Non‑mention of the names of eye‑witnesses in the site plan had cast doubt on the prosecution story‑‑‑Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

Sarfraz alias Pappi and others v. The State 2000 SCMR 1758 ref.

Pervaiz Aftab and Muhammad Latif Khokhar for Appellants.

Altaf Bukhari for the State.

Date of hearing: 24th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2024 #

2001 Y L R 2024

[Lahore]

Before Ijaz Ahmad Chaudhary, J

GHULAM NABI‑‑‑Petitioner

versus

CITY MAGISTRATE, FAISALABAD and 3 others‑‑‑Respondents

Writ Petition No.14665 of 2001, decided on 13th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.145‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Petitioner was in possession of the house in dispute and Civil Court had already passed an order of status quo in his favour‑‑‑Interference by Magistrate by sealing the properly under S.145, Cr. P. C. was transgression of power‑‑Initiation of proceedings under S.145, Cr.P.C. and passing of the impugned order were not based on valid grounds‑‑‑Possession of the house could not be taken by the respondent from the petitioner in the manner adopted by him which was illegal and could not be allowed to continue‑‑‑Impugned order was consequently set aside with the direction to the Magistrate to deseal the property‑‑Constitutional petition was , accepted accordingly.

Muhammad Ahsan Bhoon for Petitioner.

Shahid Tabbasum for Respondents Nos. 3 and 4.

Zahid Farani Sheikh, Addl. A.‑G.

YLR 2001 LAHORE HIGH COURT LAHORE 2029 #

2001 Y L R 2029

[Lahore]

Before Iftikhar Hussain Chaudhary and Mrs. Nasira Iqbal, JJ

INAYAT‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 883 and Murder Reference No.290 of 1996, heard on 9th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Sentence, reduction ‑ in‑‑‑Accused had not challenged his conviction, but had prayed for lesser sentence‑‑‑Parties were ordinary agricultural families and no serious background of enmity existed between them‑‑Incident took place due to cattle trespass and damage to the crops of the accused party and said incident was sudden and free fight between the parties had taken place without prior planning of any sort‑‑‑Case was registered with unexplained delay of two days‑‑‑Awarding of maximum sentence of death to the accused would be unsafe and inappropriate‑‑‑Maintaining conviction of the accused, sentence of rigorous imprisonment for life was imposed on him in place of death sentence, and benefit of S.382‑B, Cr. P. C. was also extended to him.

M.A. Zafar for Appellant.

Ashfaq Ahmed Chaudhry for the State.

Date of hearing; 9th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2035 #

2001 Y L R 2035

[Lahore]

Before Tanvir Bashir Ansari, J

ALLAH WADHAYA and others‑‑‑Appellants

versus

RASUL BAKHSH ‑‑‑ Respondent

Regular Second Appeal No. 25 of 1988, decided on 10th August, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.15(c)‑‑‑Suit for pre‑emption‑‑‑ "Owner of the estate "‑‑‑Meaning‑‑‑Words "owner of the estate" employed in S.15(c), thirdly, of the Punjab Pre‑emption Act, 1913 would mean "an owner of agricultural land "‑‑‑ "Owner of the estate" was not synonymous with the words "owner in the estate "‑‑‑As soon as the area of land was converted into a building site, it would cease to be part of the estate and its owner could not be termed as "owner of the estate "‑‑‑Pre‑emptors were the owners of the agricultural estate in which the suit land was situated whereas the vendee had purchased four Marlas of land for Sakni purpose from the said land and constructed a but on that land ‑‑‑Vendee, in circumstances, could not be said to be "owner of the estate", but could at the best be described as "owner in the estate" and would not have right of pre‑emption‑‑‑Pre‑emptors being owners of the agricultural estate, their rights had been established‑‑‑Suit of plaintiff was rightly decreed by the Trial Court.

Salehon Muhammad and another v. Shera and others 1977 SCMR 297; Shah Muhammad v. Mst. Pairi and others AIR 1936 Lah. 202; Mst. Sardar Begum and others v. Muhammad Ilyas and others 1983 CLC 1570 and Rahim Bux v. Waheed Bux PLD 1979 Lah. 544 ref.

Ch. Abdul Sattar for Appellant.

Ch. Naseer Ahmed for Respondent No.2.

Date of hearing: 9th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2045 #

2001 Y L R 2045

[Lahore]

Before Muhammad Farrukh Mahmud, J

RAHIM BAKHSH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1280‑B of 2001, decided on 4th July, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Name of the accused was not mentioned in the F.I.R. and no suspicion had been shown against him Recovery of stick which was raft stained with blood, had no evidentiary value at all Statement of the witnesses before whom the accused had allegedly made exculpatory, extra judicial confession had shown that the accused was offered money and was also promised of pardon‑‑‑Such type of extra judicial confession could not, be termed as voluntary statement‑‑‑Prosecution witnesses had stated that before making the confession, the accused had been negotiating terms and conditions with the prosecution witnesses‑‑Past history of involvement of the accused in the crimes could not be made basis for his conviction in the case‑‑ Allegation against the accused needing further probe he was granted bail.

Sardar Altaf Hussain Khan for Petitioner.

Muhammad Saleem Tareen for the State

YLR 2001 LAHORE HIGH COURT LAHORE 2047 #

2001 Y L R 2047

[Lahore]

Before Tanvir Bashir Ansari, J

ALLAH BAKHSH‑‑‑Appellant

versus

Syed KARAM SHAH‑‑‑Respondent

Regular Second Appeal No. 34 of 1979/BWP, decided on 28th May, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Transfer of Property Act (IV of 1882), S.54‑Suit for declaration‑‑‑Evidence on record was not sufficient to prove any agreement in favour of the plaintiffs and even if such agreement was proved it would not create any right or title in favour of plaintiffs being an unregistered document in accordance with the provisions of S.54 of Transfer of Property Act, 1882‑‑‑Title of the defendant was firmly established by the registered sale‑deed duly executed in his favour‑‑‑Both Courts below had arrived at an incorrect decision by misreading and non-reading of evidence on record and placing undue reliance upon totally inadmissible and untrustworthy evidence‑‑‑Agreement to sell fell short of the standard as the same was silent about the sale price or details of the land to be sold or description of the vendor‑‑Adverse presumption drawn against the defendant for his non‑appearance was also misplaced‑‑‑Facts on record had established that suit for declaration on the basis of an agreement to sell was not maintainable and the only suit which could be filed was one for specific performance of the agreement‑‑‑Judgments and decrees passed by Courts below were set aside by the High Court.

Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424 and Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 ref.

M.M. Bhatti for Appellant.

Muhammad Jaffar Hashmi for Respondent.

Date of hearing: 28th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2055 #

2001 Y L R 2055

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3905‑B of 2001, decided on 10th August, 2001.

Criminal Procedure Code (V of 1898‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 337‑A(i), 337‑F(v), 337‑L(2), 141 & 149‑‑‑Bail, grant of‑‑‑Cases against the accused under Ss.337‑A(i) & 337‑L(2), P. P. C. were bailable and maximum punishment under S.337‑F(v), P. P. C. was five years' R.I.‑‑‑Grant of bail, in such‑like cases, was a rule and refusal was an exception ‑‑‑F.I.R. had been lodged with a delay of fourteen hours without any explanation‑‑‑Injuries on the person of the complainant were examined after six hours and non‑appearance of the complainant before the Medical Board which called him thrice, prima facie, had made out a case of further inquiry‑‑‑Accused was granted bail in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

I.H. Shah on behalf of Ch. Muhammad Aslam Hari for Petitioner.

Ms. Nausheen Taskeen for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2060 #

2001 Y L R 2060

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD HANIF‑‑‑Petitioner

versus

MUHAMMAD YAQOOB and 3 others‑‑‑Respondents

Criminal Revision No. 221 of 2001, decided on 27th June, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.7‑‑‑Criminal Procedure Code (V of 1898), S. 439‑‑‑Age of the accused‑‑‑Mode of determination‑‑‑Trial Court having found the accused to be juvenile, the complainant filed application before the Juvenile Court seeking an appropriate order regarding medical examination of the accused for the purpose of determination of his age‑‑‑Juvenile Court instead of getting the accused medically examined, sent for Headmaster of the accused's school who produced the original register pertaining to birth entries of the accused as well as original register pertaining to his School Leaving Certificate‑‑Juvenile Court, on basis of said record found the accused to be juvenile and dismissed application of the complainant regarding medical examination of the accused‑‑Validity‑‑‑Original or authentic school record generally was a safer proof of age than medical proof as medical proof was approximate in nature‑‑‑Age of a child was recorded in the relevant school register at the time of his admission to that school at a time when there was no contemplation about any future criminality wherein such a child could indulge in times to come‑‑‑Medical proof about age was not only expressed by a medical practioner in approximate terms, but same could also be obtained or manoeuvred for extraneous considerations‑‑‑Whenever there was a conflict between medical evidence about age and proof of age recorded in school register, the proof of age recorded in school register would be preferred as a safer one‑‑ Application of complainant was rightly dismissed as he was unable to make out a case for interference by the High Court in revision.

Ali Shah v. The State 1990 PCr.LJ 640; Ghulam Hussain alias Khudda v. The State PLD 1989 Lah. 543 and Muhammad Afzal v. Muhammad Saeed 1989 PCr.LJ 2349 ref.

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

‑‑‑‑S.439‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Juvenile Justice System Ordinance (XXII of 2001), S.7‑‑‑Revisional jurisdiction, exercise of‑‑‑Petitioner was unable to point out any jurisdictional infirmity, illegality of approach, irregularity of 'procedure or perversity of reasoning on the part of Juvenile Court‑‑‑Order passed by said Court could not be interfered with by the High Court in exercise of its revisional jurisdiction.

Rana Meraj Khalid for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 2062 #

2001 Y L R 2062

[Lahore]

Before Muhammad Zafar Yasin, J

Mst. SHAHANA PARVEEN‑‑‑Petitioner

versus

HOME SECRETARY, PUNJAB, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.4870 of 2001, heard on 13th July, 2001.

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

‑‑‑‑S. 10(2)‑‑‑Constitution of Pakistan (1973), Arts. 45 & 199‑‑‑Constitutional petition‑‑Special remissions, grant of‑‑‑Accused had been refused special remissions granted to the various convicts on Eid‑ul‑Fitr, Eid‑ul-Azha and Eid‑i‑Milad‑un‑Nabi through notification‑‑‑Accused had not been convicted for rape (Zin‑bil‑Jabr) under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but had been convicted for Zina‑bil‑Raza under S.10 (2) of the said Ordinance‑‑‑Accused, in circumstances, was entitled to the special remissions granted under Art. 45 of the Constitution on various occasions‑‑‑Authority had acted illegally by refusing special remissions to the accused which was directed to grant the special remissions accordingly.

Sh. Muhammad Faheem for Petitioner.

Muhammad Qasim Khan, A. A.‑G.‑ for Respondents.

Date of hearing: 13th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2064 #

2001 Y L R 2064

[Lahore]

Before Tanvir Bashir Ansari, J

GHAZI SHAH‑‑‑Petitioner

versus

IJAZ HUSSAIN SHAH‑‑‑Respondent

Civil Revision No.326‑D of 1986/BWP, decided on 31st May, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiffs had sought declaration to the effect that they being legal heirs of the deceased were entitled to respective shares in the entire estate of the deceased‑‑‑Courts below on basis of oral and documentary evidence concurrently decreed the suit‑‑‑Evidence on record had been properly read and appreciated by the Courts below‑‑‑In absence of any misreading or non-reading of evidence on record and any illegality or material irregularity, concurrent findings of Courts below could not be interfered with by High Court in exercise of its revisional jurisdiction.

Fazal Dad and others v. Jehandad and others 1991 CLC 1783 ref.

M. Jaffar Hashmi for Petitioner

M.M. Bhatti for Respondent.

Date of hearing: 31st May, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2069 #

2001 Y L R 2069

[Lahore]

Before Iftikhar Hussain Chaudhary and Mrs. Nasira Iqbal, JJ

SARDAR alias SUDDO‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.614 and Murder Reference No.228 of 1996, heard on 13th August, 2001.

Penal Code (XLV of 1860)‑

‑‑‑‑S. 302‑‑ Appreciation of evidence‑‑Accused was an ordinary agriculturist who had no criminal antecedents and was not required by local police in any case and there was no justification for carrying out raid at his residence‑‑‑Shot‑gun being carried by the accused at the time of incident being a licensed weapon, there was no need for the accused to have run away from his house on the arrival of the police force‑Informer was not brought forward to testify at the trial that he had passed on any information in the matter to the local police‑Defence version seemed to be a true account of the incident and the prosecution story did not depict the correct picture of the occurrence‑‑Circumstances had shown that the deceased constable in a vain display of his authority tried to forcibly snatch away the shot‑gun from the accused and the accused considering the action of the constable to be unlawful resisted his attempt and in ensuing struggle the gun went off mortally wounding the constable‑‑‑Medical evidence had also supported such inference and the location and nature of injuries were indication of the struggle between the alleged assailant and the deceased‑‑Fads and circumstances of the case did not show that the accused had the intention to cause death of the deceased‑‑‑Deceased himself appeared to have invited his death‑‑‑Case, in circumstances, was hardly of nature where the accused could have been convicted under 5.302 (a) or S.302 (b), P. P. C. and case of the accused also could not be considered to be that of acquittal‑‑‑Setting aside sentence of death accused was convicted under S. 302 (c), P. P. C. and sentence of rigorous imprisonment for ten years was imposed upon him with benefit of provision of S.382‑B, Cr.P.C.

M. A. Zafar for Appellant.

Ashfaq Ahmad for the State.

Date of hearing: 13th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2072 #

2001 Y L R 2072

[Lahore]

Before Tanvir Bashir Ansari, J

Haji SHER MUHAMMAD and others‑‑‑Appellants

versus

ATTA MUHAMMAD and others‑‑‑Respondents

Regular Second Appeal No. 4 of 1984BWP, decided on 16th May, 2001.

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

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), O. VII, R. 11 (b) (c)‑‑‑Suit for pre‑emption‑‑ Rejection of plaint‑‑‑Plaint was sought to be rejected on the ground that the plaintiff had made up the deficiency of court fee long after the expiry of date of limitation and that the plaint was liable to be rejected on account of being not properly stamped within the period of limitation‑‑‑Claim of defendant was that making up of deficiency in court fee after the expiry of period of limitation was fatal to the suit on ground of limitation‑‑‑Validity‑‑‑Trial Court was fully competent to grant time to the plaintiff for supplying court fee and upon compliance with said orders of the Court, it would be deemed as if the court fee was paid in the first instance and the question of limitation would not arise.

Muhammad Siddque v. Muhammad Ibrahim PLD 1981 Lah. 97 and Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227 ref.

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

‑‑‑S. 100‑‑‑Second appeal‑‑‑Concurrent findings of fact of Courts below could not be interfered with in second appeal when no ground of interference had been made out.

Sardar Ashiq Muhammad Khan for Appellants.

Pirzada M.M. Adam for Respondents.

Date of hearing: 16th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2076 #

2001 Y L R 2076

[Lahore]

Before Ijaz Ahmad Chaudhary, J

AKHTAR ZAMAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3704/B of 2001, decided on 23rd July, 2001.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of. 1860), S.302/34‑‑‑Bail, grant of‑‑‑Cordial relations existed between the accused and the deceased and the complainant party‑‑Occurrence had taken place in front of house of the accused who took the deceased to the hospital where doctor found him dead‑‑‑Doctor gave certain articles belonging to the deceased to the accused which had prima facie supported the version of the accused that he himself took the deceased to the hospital and no witness was present‑‑‑Prosecution witnesses were not the residents of the locality and their presence at the spot at the time of. occurrence was doubtful‑‑ Accused, in successive investigations was found innocent and the police recommended for his discharge, but Illaqa Magistrate did not agree with the Police report‑‑‑Finding of the police though was not binding on the Court, but it could be considered for grant of bail‑Bail could not be withheld as a punishment‑Accused having made out a case for further inquiry, bail was granted to him.

PLD 1972 SC 81 ref.

(b) Criminal trial‑‑

‑‑‑Finding of police‑‑‑Binding force of‑Finding of the police though not binding on the Courts, but it could be considered for grant of bail.

‑‑‑‑S. 497‑‑‑Grant of bail‑‑‑Bail could not be withheld as a punishment.

S.M. Rashid for Petitioner.

Ch. Nazir Ahmad for the State.

Date of hearing: 23rd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2078 #

2001 Y L R 2078

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD ANWAR ‑‑‑Appellant

versus

MUHAMMAD BOOTA‑‑‑Respondent

Regular Second Appeal No.4 of 1989/BWP, decided on 24th July, 2001.

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

‑‑‑‑Ss. 21, 23 & 24‑‑‑Punjab Alienation of Land Act (XIII of 1900), S.3‑‑‑Suit for preemption ‑‑‑Competency‑‑‑No decree in a suit for pre‑emption could be granted in respect of a sale which was in contravention of Punjab Alienation of Land Act, 1900‑‑‑Court would dismiss suit if sale was found in contravention of the said Act.

(b) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), O. VII, R. 1 ‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.39‑‑‑Suit for preemption ‑‑‑Mention of residence of party in mutation and Fard Pata in the pleading‑‑Value‑‑‑Mention of residence in the mutation and Fard Pata in plaint or written statement or in the power of attorney was not sufficient to prove the fact of residence of a party in a particular village‑‑‑Residence had to be proved through independent and positive evidence.

Karam Dad and others v. Mullan Abdul Rahim and 3 others PLD 1989 BJ 29 ref.

‑‑‑‑Ss. 4 & 21‑‑‑Suit for pre‑emption ‑‑‑Partial pre‑emption ‑‑‑Transaction of sale in question was not divisible as the payment of sale consideration had been made in lump sum‑‑Suit could not succeed on account of partial pre‑emption.

Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 ref.

S. M. Hussain Khan for Appellant No. 1.

Ch. Abdus Sattar for Appellants Nos.2 and 3.

M.M. Bhatti for Respondent.

Date of hearing: 23rd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2086 #

2001 Y L R 2086

[Lahore]

Before Tanvir Bashir Ansari, J

NIAZ MUHAMMAD ‑‑‑Petitioner

versus

ABDUL RAZZAQ‑‑‑Respondent

Civil Revision No. 160‑D of 1989/BWP, decided on 6th June, 2001.

(a) Equity‑‑‑

‑‑‑‑Principle‑‑‑One who seeks equity must do equity himself.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction ‑‑‑Scope‑‑Concurrent findings of fact arrived at by the two Courts below after correct appreciation of evidence on record and not suffering from any misreading or non‑reading of evidence could not be interfered with in revisional jurisdiction of High Court.

Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341; Malik Riaz Ahmed and others v. Mian Inayatullah and others 1992 SCMR 1488; Barkat v. Muhammad Sadiq and others 1990 CLC 1532; Habib‑ur-Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424; Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 and Muhammad Luqman v. Bashir Ahmed PLD 1994 Kar. 492 ref.

M.M. Bhatti for Petitioner.

Ch. Abdul Sattar for Respondent.

Date of hearing: 6th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2091 #

2001 Y L R 2091

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. AISHA MAI ‑‑‑Petitioner

versus

EXCISE AND TAXATION OFFICER, BAHAWALPUR and 2

others‑‑‑Respondents

Writ Petition No.5071 of 2000/BWP, heard on 10th April, 2001.

West Pakistan Motor Vehicles Ordinance (XIX of 1965)‑‑‑

‑‑‑‑S. 23‑‑‑Criminal Procedure Code (V of 1898), Ss. 516‑A & 517‑‑‑Penal Code (XLV of 1860), Ss. 466, 468, 471 & 420‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Registration of vehicle‑‑‑Securing vehicle by the police‑‑‑Release on Superdari‑‑‑Vehicle purchased by the petitioner was secured by the police oar allegation that it did not contain genuine chassis number but after due investigation it was found that vehicle contained genuine chassis and engine numbers‑‑‑Excise and Taxation Department refused registration of vehicle despite petitioner had deposited registration fee for registration on direction of the Department‑‑‑Contention of the Department was that unless and until the vehicle was got checked from Forensic Science Laboratory, Registration Book could not be issued in favour of the petitioner‑Vehicle was produced for its examination in Forensic Science Laboratory and as a result of examination it was found that it contained genuine and original chassis number as well as engine number‑‑‑After the receipt of said certificate registration had been issued in favour of the petitioner‑‑‑Vehicle was, however, again taken into possession by the Police on the pretext that it contained tampered chassis engine, but in investigation that allegation was not proved and the petitioner got vehicle cleared mid he was given the same on Superdari‑‑‑Registration was again refused on the ground that vehicle should be got examined in Forensic Science Laboratory which was also done‑‑Registration Book having been issued, conduct of Excise and Taxation Department being a clear example of misusing its authority, officials of Department were burdened with costs in circumstances.

Muhammad Sharif Bhatti for Petitioner.

Mian Muhammad Bashir, A.A.‑G. with Abdul Ghaffar Bhutta and Muhammad Ikram A.E.T.O. for Respondents.

Date of hearing: 10th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2093 #

2001 Y L R 2093

[Lahore]

Before Tanvir Bashir Ansari, J

ABDUL SAMAD‑‑‑Petitioner

versus

MUHAMMAD HANIF and others‑‑‑Respondents

Civil Revision No.187/D of 1989/BWP, decided on 5th July, 2001.

(a) Practice and procedure‑‑‑

‑‑‑‑Incumbent on Trial Court to first ascertain upon what material propositions of fact or of law the parties were at variance and should frame such issues on which the right decision of the case could be based.

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

‑‑‑‑Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Trial Court discussed issues which rightly reflected the controversy between the parties and after recording and appreciating oral as well as documentary evidence, dismissed suit filed by the plaintiff/respondent and decreed rival suit filed by the petitioners‑‑‑Appellate Court without adverting to the real controversy between the parties and approaching the matter in a casual fashion, set aside judgment and decree passed by the Trial Court deciding the appeal in a slipshod and haphazard manner‑‑‑Judgment and decree of Appellate Court being result of an irregular exercise of jurisdiction could not be sustained and were set aside by High Court in exercise of its revisional jurisdiction.

‑‑‑‑S. 54‑‑‑Applicability of S.54 to the area of State of Bahawalpur‑‑‑Provisions of S.54 of Transfer of Property Act, 1882, would apply with full force to the areas forming part of erstwhile State of Bahawalpur.

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

‑‑‑‑S. 54‑‑‑Transfer of property‑‑‑Value of the land in question being more than Rs.100 title could not be conveyed through an oral transaction and without a registered sale-deed.

Ch. Abdul Sattar for Petitioner.

M.M. Bhatti for Respondent.

Mian Muhammad Bashir, A.A.‑G. on behalf of Respondent No.2.

Date of hearing: 5th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2101 #

2001 Y L R 2101

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AMIN ‑‑‑Petitioner

versus

MANAGER, AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and another‑‑‑Respondents

Writ Petition No. 4288 and Civil Miscellaneous Application No.1 of 2000, decided on 8th May, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 50, 51, 52 & O. XXI, Rr. 37, 40‑‑Execution of decree‑‑‑Death of loanee‑‑Detentiori of legal representatives of the deceased loanee‑‑‑Loanee having died, his son was arrested and detained against the recovery of loan obtained by his deceased father‑‑‑Validity‑‑‑Action against the son of deceased loanee was absolutely illegal and without lawful authority as a legal representative of a deceased loanee had no personal obligation to the Bank and he was only liable to the extent of the estate which devolved upon him as a result of death of the loanee‑‑‑No allegation was made that son had alienated any portion of the estate devolved upon him‑‑‑Person of the legal representative of a deceased loanee could not be proceeded against for recovery of loan and it was only the estate of the deceased which was to be proceeded against.

Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67 ref.

Sarwar Khalil Samdani for Petitioner.

Muhammad Siddique Deval for Respondents.

Date of hearing: 8th May 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2102 #

2001 Y L R 2102

[Lahore]

Before Tanvir Bashir Ansari, J

Syed TAJAMMAL HUSSAIN ‑‑‑Petitioner

versus

GHULAM NABI and others‑‑‑Respondents

Civil Revision No.496 of 1984/BWP, decided on 6th June, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXI, Rr.11, 17 & S.115‑‑‑Execution of decree‑‑‑Application for‑‑‑Terms of decree showed that certain amount was to be paid tip to stipulated time and remaining in instalments and in case of non payment of instalments, the judgment‑debtor was liable to vacate the house in question and the decree would be considered to be a decree for possession‑‑‑Entire decretal amount had been paid by the judgment‑debtor and delay if any in the deposit of instalments was not considered both by the Executing Court and Appellate Court to be deliberate or a contumacious default which could entail the consequences of converting the decree for recovery of amount into that of decree for possession of the house, especially when decree basically was a decree for recovery of amount and that decree‑holder had only claimed the payment of decretal amount‑‑Courts below had rightly decided that in absence of deliberate and contumacious default in payment of instalments the decree could not be converted into the decree for possession‑‑‑Concurrent findings of Courts below not suffering from any legal infirmity but being just and equitable, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Mst. Shamim Akhtar and 4 others v. Shalimar General Insurance Company and 2 others 1984 SCMR 22; Ali Hussain v. Rafiq-ud‑Din and 9 others PLD 1977 Lah. 418 and Popular Industries Commercial Agencies v. Khair Pur Textile Mills PLD 1972 Kar. 617 ref.

Ejaz Ahmad Ansari for Petitioner.

Nemo for Respondents.

Date of hearing: 6th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2106 #

2001 Y L R 2106

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD SALEEM and 2 others‑‑‑Petitioners

versus

THE STATE and 3 others‑‑‑Respondents

Criminal Miscellaneous No.113/Q of 2001, decided on 20th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), Ss.379/427/148/149‑‑‑Stay of proceedings‑‑Civil suit filed by the complainant against the accused in which some question of facts and law had been agitated, was pending adjudication before Civil Court of competent jurisdiction‑‑‑Allegation levelled against the accused was that they had stolen the gate and had broken the wall of the complainant, but nobody had claimed to have seen the occurrence while making statement before Local Commissioner appointed by the Civil Court‑‑‑Prosecution had failed to bring any witness from the locality or from the neighbourhood who had seen commission of offence alleged against the accused, and the statement of the complainant was also self-contradictory‑‑‑Pendency of the criminal case against the accused would not be in the interest of justice as parties would be provided equal opportunity to pursue their cases before the Civil Court‑‑‑Proceedings in Criminal Court pending against the accused were stayed till the decision of Civil Court‑‑If, however, after the decision of the Civil Court it would become necessary, proceedings would be again started against the accused.

Ch. Muhammad Ashfaq for the State.

C.M. Latif for Respondent No.3.

Respondent No.4 in person.

YLR 2001 LAHORE HIGH COURT LAHORE 2131 #

2001 Y L R 2131

[Lahore]

Before Mian Nazir Akhtar, J

NIMAZ COMMITTEE JAMIA MASJID MADINA, KATCHI ABADI MANDAR

BAWAY GHAZIPURA, G.T. ROAD, GUJRANWALA through President Shaukat

Ali and 2 others‑‑‑Petitioner

versus

DISTRICT MAGISTRATE/DEPUTY COMMISSIONER, GUJRANWALA and 5

others‑‑‑Respondents

Writ Petition No.24792 of 1998, decided on 7th June, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Interference in possession‑‑‑Land owned by Pakistan Railways/Central Government‑‑Interference by Provincial Government‑‑Validity‑‑‑Where disputed land vested in the Central Government/Pakistan Railways, the Provincial Government or the District Magistrate as well as the Assistant Commissioner, Illaqa Magistrate and the Station House Officer of Police Station had no lawful authority to interfere in the petitioner's possession or pull down the construction existing at the site.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Demolition of construction‑‑‑Disputed land was owned by Pakistan Railways/Central Government and permission was granted by the Railway administration for use of the same as praying space‑‑‑District administration demolished the construction on the plea that the land was owned by Provincial Government and construction of mosque at the disputed land was without permission‑‑‑Validity‑‑‑Permission granted by the Railway administration clothed the petitioner with the right to use it for the purpose and raise construction thereon with the permission of Railway Authorities‑‑Where the disputed site was lawfully leased out in favour of the petitioner in accordance with the terms of the lease agreement, the petitioners were entitled to use the disputed site for offering prayers and could raise construction in the shape of mosque as permitted by the Railway Authorities‑‑‑Act of local Authorities in interfering in. the petitioner's possession and demolishing the structure .which existed at the spot, was without lawful authority and of no legal effect‑‑‑High Court directed the Authorities to return the various articles taken into possession by them on the basis of the recovery memo. ‑‑Constitutional petition was allowed accordingly.

‑‑‑‑Art. 199‑‑‑Civil Procedure Code ‑(V of 1908), S.35‑A‑‑‑Constitutional petition‑‑Special costs, awarding of ‑‑Authorities had illegally interfered in the petitioners' possession, pulled down the construction, took into possession the building material and caused great loss, hardship and mental torture to the petitioners‑‑‑High Court burdened the Authorities with cost of Rs.1, 00, 000 payable by them jointly or severally in circumstances.

Nazeer Ahmad Ghazi for Petitioner No. 1.

Jehangir A. Jhoja, Legal Advisor for the Pakistan Railways.

Mrs. Roshan Ara, A.A.‑G. for Respondents.

Date of hearing: 15th November, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2145 #

2001 Y L R 2145

[Lahore]

Before Tanvir Bashir Ansari, J

NAZEER AHMAD‑‑‑Appellant

versus

ABDUL HAMEED KHAN and others‑‑‑Respondents

Regular Second Appeal No.43 of 1989/BWP, decided on 7th August, 2001.

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

‑‑‑‑S. 12‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Suit for specific performance of contract‑‑‑Agreement to sell‑‑‑Non‑production of scribe or stamp vendor‑‑‑Effect‑‑‑Plaintiff had neither produced the vendor of stamp paper nor the scribe of the agreement to sell and no explanation had been given for such non‑production ‑‑‑Non production of the scribe of the agreement to sell or the stamp vendor was fatal to the case of the plaintiff and adverse inference would also be drawn against the plaintiff for non production of the same.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 59 & 61‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Agreement to sell‑‑Evidence of expert‑‑‑Evidence of expert generally was considered to be a weak type of evidence and it was not safe to place total reliance upon such evidence in the absence of other supporting material on record‑‑‑Report of Handwriting Expert must be supported by other positive corroborative evidence‑‑Nothing illegal was for the Court to draw strength from the report of Handwriting Expert when said report coincided with the view framed by the Court independently from, its appreciation of the evidence on the record‑‑‑Report of Handwriting Expert in such circumstances could be relied upon to arrive at a just conclusion.

‑‑‑‑S. 12‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Suit for specific performance of agreement‑‑‑Courts below had concurred that the plaintiff had failed to prove execution of agreement of sale‑‑‑Plaintiff had not produced the vendor of stamp paper nor the scribe of the said agreement in rebuttal‑‑‑No reliable evidence was on record to prove that the plaintiff was inducted in possession of suit land as a tenant‑‑‑Finding of the Appellate Court that agreement to sell had not been proved, was unexceptionable and was upheld‑‑‑No question of law and fact arose which could merit interference with judgment and decree of Appellate Court‑‑Appeal being meritless -was dismissed.

Muhammad Mehmood Bhatti for Appellant.

S.M. Akhtar Shah for Respondents.

Date of hearing: 7th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2153 #

2001 Y L R 2153

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD MUNIR ‑‑‑ Applicant

versus

MUHAMMAD ASLAM and others‑‑‑Respondents

Civil Revisions Nos.493 and 494 of 1984, decided on 13th June, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.21 & 25‑‑‑Suit for pre‑emption‑‑‑Non payment of decretal amount within stipulated period‑‑‑Effect‑‑‑Trial Court decreed suit and fixed sale price of suit land as asserted by the plaintiff, but Appellate Court modified decree fixing sale price as claimed by the defendants/vendees‑‑‑Appellate Court ordered pre‑emptor/decree‑holder to deposit decretal amount positively within one month from the date of judgment of the Appellate Court failing which suit world stand dismissed‑‑Pre‑emptor did not deposit amount within one month in compliance of order of Appellate Court and filed revision against judgment after expiry of one month period ‑‑‑Effect‑‑Pre‑emptor having failed to deposit the decretal amount within time prescribed by Appellate Court, revision otherwise being time‑barred, was not maintainable‑‑‑Suit was rightly dismissed by Appellate Court for non compliance of order of Court to deposit amount within the period of one month‑‑Judgment and decree passed by Appellate Court not suffering from any legal infirmity or illegality could not be interfered, in revision by High Court.

Samanda v. Muhammad Shareef and others PLD 1966 (W.P.) Lah. 414; Zia‑ud-Din v. Ghulam Muhammad PLD 1980 BJ 5; Khurshid Akbar v. Mian Manzoor Ahmad and others 1982 SCMR 824; Hakim Ali v. Iftikhar, Ahmad Khan 1990 SCMR 1571; Muhammad. Irshad v. Ch. Fazal Haq 1991 SCMR ‑2149; Bhai Khan v. Allah Bakhsh 1986 SCMR 849; Muhammad Nawaz v. Muhammad Sadiq 1995 SCMR 105; Muhammad Rafiq Khan v. Faqir Muhammad 1987 CLC 898 and; Faqir Muhammad v. Ghulam Fatima 1993 CLC 283 ref.

Sheikh Muhammad Sharif Zafar for Appellant.

Ch. Abdul Sattar for Respondents.

Date of hearing: 13th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2162 #

2001 Y L R 2162

[Lahore]

Before Tanvir Bashir Ansari, J

Rais CHIRAGH‑UD‑DIN‑‑‑Applicant

versus

MUHAMMAD ASLAM‑‑‑Respondent

Civil Revision No. 367‑D of 1984/BWP, decided on 28th May, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.21, 30 & 33‑‑‑Setting aside the award‑‑‑Jurisdiction of the Court‑‑‑Law leans in favour of upholding the award and not vitiating the same‑‑‑Court, while examining the legality of an award, would not and should not act as a Court of appeal‑‑‑In order to discover error or infirmity in the award, the Court while hearing the objections to the award could not undertake reappraisal of evidence recorded by the Arbitrator.

Kh. Muhammad Usman v. Mst. Ghulam Fatima and others PLD 1967 Azad J&K 14; Government of Pakistan, Ministry of Industries v. Messrs National Agencies, Karachi PLD 1978 Kar. 827; Safia Bai and others v. Karachi Cooperative Housing Societies Union Limited PLD 1967 Kar. 598; Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1984 SCMR 597; Messrs Alpha Insurance Co. Limited v. Messrs Ch. Nizam Din & Sons and another 2001 CLC 289; Abdul Rauf v. Muhammad Saeed Akhtar PLD 1985 Kar.145 and Zaka Ullah Khan v. Government of Pakistan through Secretary, Buildings and Roads Department PLD 1998 Lah. 132 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.21, 30 & 33‑‑‑Setting aside the award‑‑‑Order setting aside award was set aside in appeal by the Appellate Court‑‑‑In absence of any jurisdictional defect or any legal infirmity in the judgment of the Appellate Court, order‑ passed in appeal could not be interfered with by High Court in exercise of its revisional jurisdiction.

Sh. Hakim Ali and M. Aslam Khan Dhukkar for Petitioners.

Aejaz Ahmad Ansari and Sardar M. Hussain for Respondent.

Date of hearing: 28th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2165 #

2001 Y L R 2165

[Lahore]

Before Ghulam Mehmood Qureshi, J

Mst. MUNIR FATIMA ‑‑‑Petitioner

versus

S.H.O., POLICE STATION, LALA MOUSA, DISTRICT GUJRAT

and another‑‑‑Respondents

Criminal Miscellaneous No. 1143‑B of 2001, decided on 27th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Guardians and Wards Act (VIII of 1890), Ss. 12 & 25‑‑‑Habeas corpus petition‑‑‑Scope‑‑‑Custody of minor‑‑‑Minor girl was in custody of her mother and the petitioner/grandmother of minor, had demanded the immediate custody of her granddaughter‑‑‑Question whether the mother of the minor properly maintained the minor daughter and after her marriage with another person whether she had lost her right of custody and also that what was in the interest and welfare of the minor, required thorough evidence to be recorded which could only be done before a Guardian Court‑‑‑Normal remedy for a person from whose custody the child had been removed was to make petition under S.25 of Guardians and Wards Act, 1890, and to seek interim custody under S.12 of the said Act‑‑‑Minor girl was to the custody of her mother since the time of her birth and no allegation was made that the minor had been removed from the custody of the petitioner‑‑‑Custody of the minor by her mother was neither illegal nor improper‑‑Provisions of S.491, Cr. P. C. were not attracted to the facts and circumstances of the case‑‑‑Controversial question of fact could not be decided by the High Court while exercising powers under S.491, Cr. P. C.

Aziz Ahmad Malik for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 2167 #

2001 Y L R 2167

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD WAZIR and another‑‑‑Petitioners

versus

THE STATE‑‑‑Despondent

Criminal Miscellaneous No. 1570/B of 2001, decided on 20th August, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/201/34‑‑‑Bail, grant of‑‑‑Case of two versions‑‑‑Story of the F.I.R. was not only disowned by the father of the deceased but he had given his own version in the complaint‑‑Prosecution witnesses had also not supported the story of the F.I.R.‑‑‑Accused had not caused any injury to the deceased and only allegation against them was to have facilitated the offence‑‑‑Story of the F. I. R. was also belied by the post‑mortem examination report‑‑‑No recovery had been effected from the accused and they had been found innocent during the investigation‑‑‑No plausible explanation was on record to justify as to why prosecution witnesses did not appear before police for about nineteen days after the occurrence ‑‑‑Co‑accused who was alleged to have facilitated the commission of offence had already been granted bail‑‑Allegations against the accused needing further probe, they were admitted to bail.

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

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Principles‑‑‑Bail could not be withheld on the ground that the trial was likely to be commenced in near future‑‑‑Once the Court came to the conclusion that the allegation against the accused needed further probe, the grant of bail was the rule.

Muhammad Ismail v. Muhammad Rafiq and others PLD 1989 SC 585 ref.

Sh. Muhammad Usman for Petitioners.

Tariq Zulfiqar Ahmad Chaudhry for the Complainant.

Masood Sabir for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2170 #

2001 Y L R 2170

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. HAYAT KHATOON and others‑‑‑Applicants

versus

Mst. PATHANI and others‑‑‑Respondents

Civil Revision No.219/D of 1985/BWP, decided on 19th June, 2001.

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

‑‑‑‑S.52‑‑‑Mutation‑‑‑Presumption of truth‑‑Mutation incorporated in the Jamabandi though carried a presumption of truth, but that presumption was rebuttable.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890 and Muhammad Sadiq and 2 others v. Barkat Ali and 4 others 1990 CLC 533 ref.

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

‑‑‑‑Ss.52 & 53‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Authenticity‑‑‑Suit for declaration‑‑‑Mutation of exchange‑‑‑Plaintiff had sought declaration to the effect that the mutation of exchange was a bogus and sham transaction as said exchange was never transacted by plaintiff who was a Pardahnashin and illiterate lady‑‑Pardahnashin and illiterate lady had a corresponding presumption of law existing in her favour because of her obvious disability‑‑Evidence on record had shown that the defendant had not been able to rebut the presumption existing in favour of the plaintiff whereas the plaintiff through the evidence of three witnesses had successfully rebutted the presumption that might have attached to the impugned mutation‑‑Judgment and decree of the Trial Court dismissing suit of plaintiff were rightly set aside by Appellate Court‑‑‑In absence of any specific non‑reading, misreading of evidence or misapplication of law or procedure by the Appellate Court which could have rendered judgment of Appellate Court unlawful or infirm, revision against said judgment was dismissed.

Muhammad Jaffar Hashmi for Petitioner.

Nemo for Respondents.

Date of hearing: 19th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2174 #

2001 Y L R 2174

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. FAIZ ELAHI‑‑‑Petitioner

versus

MUHAMMAD ANWAR‑‑‑Respondent

Civil Revision No. 150‑D of 1985/BWP, decided on 8th June, 2001.

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

‑‑‑‑S.2‑A (as amended by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)]‑‑Succession‑‑‑Last male owner would be deemed to be governed by Muslim Shariat Law and upon his death, his property would devolve upon his legal heirs.

Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293; Abdul Ghafoor and others v. Muhammad Shaft and others PLD 1985 SC 407; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667 and Mst. Afzal Nishan and others v. Ghulam Qadir and others 1992 SCMR 1773 ref.

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

‑‑‑‑S.42‑‑‑Suit by co‑sharer‑‑‑Limitation‑‑Suit by co‑sharer in possession would not be barred by limitation.

Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others 1991 SCMR 515 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑‑Both Courts below had concurrently found that the plaintiff was the daughter of deceased, original owner of suit land‑‑‑Concurrent finding of fact of Courts below was not open to challenge in revisional jurisdiction of High Court.

M.M. Bhatti for Petitioner.

Ch. Abdul Sattar and Muhammad Jaffar Hashmi for Respondents Nos. 1, 2, 15 and 16.

Date of hearing: 7th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2188 #

2001 Y L R 2188

[Lahore]

Before Sayed Najam‑ul‑Hassan Kazmi, J

HOUSE BUILDING FINANCE CORPORATION, BAHAWALPUR through

District Manager‑‑‑Appellant

versus

Mst. AALAM KHATOON and another‑‑‑Respondents

First Appeal from Order No.29 of 1993, heard on 23rd June, 1999.

House Building Finance Corporation Act (XVIII of 1952)‑‑‑

‑‑‑‑Ss. 24. & 30‑‑‑Grant of loan ‑‑‑Non-payment of instalments by the borrower‑‑Borrower having failed to pay instalments, Appellate Authority filed petition under S.30, House Building Finance Corporation Act, 1952 and during pendency of the petition the Court allowed payment of amount due in instalments with the observation that ‑in case of default in payment of two instalments the total amount would become due‑‑‑Authority challenged the order of payment through instalments contending that without consent of the Authority, instalments could not have been allowed‑‑‑Borrower who made certain payments after the order of the Court had asserted that under the Prime Minister's Incentive Scheme, the borrower being widow was entitled to lenient treatment and that she was making application for appropriate relief‑‑‑Validity‑‑‑Borrower would make application for availing benefit of Incentive Scheme and on decision of said application if amount was still found due, the Authority would be allowed to proceed for execution of decree earlier passed by the Court in accordance with law and Executing Court would proceed in the execution after receiving the final decision on the application for grant of the benefit under the Prime Minister's Incentive Scheme‑‑‑Application would be filed by the borrower within 15 days which would be decided by the Authority within one month‑‑‑If no application was filed within the stipulated period, the Executing Court would proceed with the execution petition.

Shamsher Iqbal for Appellant.

Sardar Mehmood Iqbal Khakwani for Respondents.

Date of hearing: 23rd June, 1999.

YLR 2001 LAHORE HIGH COURT LAHORE 2189 #

2001 Y L R 2189

[Lahore]

Before Ch. Ijaz Ahmad, J

MUZAFFAR ALI KHAN‑‑‑Petitioner

versus

NAIB TEHSILDAR RECOVERY, TEHSIL DEPALPUR, DISTRICT OKARA and

others‑‑‑Respondents

Criminal Miscellaneous No.580‑H of 2001, decided on 18th April, 2001.

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

‑‑‑‑Art. 4‑‑‑Right of individual to be dealt with in accordance with law‑‑‑Duty of public functionary‑‑‑Public functionaries were duty bound to act in accordance with law.

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

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑ ‑Parents of the detenu secured loan from respondentBank through agreement and the detenu was not surety or guarantor of his parents at the time of sanctioning of the loan in favour of his parents, but subsequently on account of pressure to arrest the parents of the detenu, surety deed was got executed from the detenu on a simple paper‑‑‑Any contract which was secured under undue influence and pressure was not sustainable in eyes of law coupled with the fact that no property was in the name of the detenu at all‑‑‑Action of the respondents against the petitioner/detenu who was teenager was without lawful authority as the so‑called surety bond was obtained under duress from the detenu and without verifying that the detenu did not own any land in his name ‑‑‑Detenu was directed to set at liberty, in circumstances.

‑‑‑‑S.16‑‑‑Contract secured under undue influence and pressure‑‑‑Value.

Syed Manzoor H. Gillani and Javed A. Naqvi for Petitioner.

Haji Ijaz A. Chaudhary, A.A.‑G. alongwith Masood Afzal, Assistant Collector for Respondents.

Date of hearing: 28th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2203 #

2001 Y L R 2203

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

Mst. NADIA ‑‑‑Petitioner

versus

STATION HOUSE OFFICER, C.I.A. STAFF, QILLA GUJJAR SINGH, LAHORE‑‑‑Respondent

Criminal Miscellaneous No.46‑H of 2000, decided on 19th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑Petitioner and her mother stated in Court that in their presence the detenu was taken into custody by the accused Sub‑Inspector and the detenu was handcuffed by the accused‑‑‑Both of them further alleged that they had met the detenu in the premises, of the police station concerned thrice after his detention by the accused police officer ‑‑‑Statements of the petitioner and the other one present in Court were sufficient to prove that the detenu was taken into custody by the accused police officer and was kept in police station‑‑‑Said police officer had shown his ignorance about the whereabouts of the detenu‑‑‑Effect‑‑‑Since the liberty and life of a citizen was at stake, the accused police officer was directed to be taken into custody, to register case against him, and to conduct investigation in the case.

Aftab Ahmad Bajwa for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 2204 #

2001 Y L R 2204

[Lahore]

Before Sheikh Abdur Razzaq and Tanvir Bashir Ansari, JJ

FAZAL DIN‑‑‑Appellant

versus

MUHAMMAD BASHIR‑ ‑Respondent

Regular First Appeal No.53 of 1983, decided on 2nd July, 2001.

(a) Central Laws (Statute Reforms) Ordinance (XXI of 1960)‑‑‑

‑‑‑‑Preamble‑‑‑Object and scope‑‑‑Paramount object of Central Laws (Statute Reforms) Ordinance, 1960, was to extend certain laws to those parts of the new Province of West Pakistan to which they were not extended before‑‑‑Natural corollary was that in the areas where the law already stood extended and operative, there was no necessity of extension of any corresponding law.

(b) Punjab Pre‑emption Act (1 of 1913)‑‑‑

‑‑‑‑S.4‑‑‑Central Laws (Statute Reforms) Ordinance (XXI of 1960), S.4 (1)‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Government of Bahawalpur State Notification No.20, dated 28‑5‑1931‑‑‑Superior right of pre-emption ‑‑‑Claim on the basis of oral sale in favour of vendee ‑‑‑Repeal and re‑enactment of certain laws‑‑‑Provisions of S.54 of Transfer of Property Act, 1882‑‑‑Applicability to erstwhile State of Bahawalpur‑‑‑Scope‑‑Only where any Central Act or Ordinance was extended by an amendment indicated in Second Schedule that any law in force in that area before that date and corresponding to such Act or Ordinance stood repealed‑According to the first amendment of Transfer of Property Act, 1882, contained in Second Schedule to Central Laws (Statute Reforms) Ordinance, 1960, the Transfer of Property Act, 1882, having not been applied, there was no occasion for repeal of the Government of Bahawalpur State's Notification No. 20, dated 28‑5‑1931‑‑Provisions of S.54 of Transfer of Property Act, 1882, applied to the former Bahawalpur State with effect from 28‑5‑1931 and thereafter, S.54 of Transfer of Property Act, 1882, continued to apply by the force of the Notification dated 17‑12‑1974 and 22‑11‑1978‑‑‑Oral sale, dated 6‑11‑1971 did not create any title in favour of the vendees as an owner in the estate and as such did not vest any superior right of pre‑emption in the vendees.

Jangi v. Jhanda and others PLD 1961 BJ 34; Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) BJ 1; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 BJ 42; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Muhammad Khan and another v. Fazal Muhammad and another 1994 SCMR 281 and Muhammad Fazal v. Kaura 1999 SCMR 1870 ref.

‑‑‑‑S.4‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Superior right of pre‑emption ‑‑‑Coowner in estate and co‑sharer in Khata‑‑‑On the basis of oral sale made earlier in favour of the pre‑emptor's suit was filed on the ground of being co‑owner in estate of the suit land‑‑‑Trial Court decreed the suit in favour of the pre‑emptors ‑‑‑Contention of the vendees was that the pre‑emptors had no superior right of pre‑emption on the basis of oral sale as the sale did not create any title in favour of the pre‑emptors ‑‑‑Validity‑‑‑Preemptors had not proved superior right of pre-emption on the basis of any valid sale‑‑Judgment and decree passed by the Trial Court was set aside in circumstances.

Sh. Hakim Ali and Jam Rashid Ahmad for Appellant.

M.M. Bhatti for Respondent.

Date of hearing: 11th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2217 #

2001 Y L R 2217

[Lahore]

Before Tanvir Bashir Ansari, J

IQBAL QURESHI‑‑‑Petitioner

versus

PUNJAB AGRICULTURAL DEVELOPMENT AND COMMERCIAL

BANK‑‑‑Respondent

Writ Petitions Nos. 1444, 1389 of 1989/BWP and 357 of 1993/BWP, decided on 15th May, 2001.

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

‑‑‑‑S.80‑‑‑Arrears of land revenue‑‑‑Recovery of‑‑‑Unless and until the amount is determined as due, the same cannot be recovered as arrears of land revenue.

(b) Practice and procedure‑‑‑

‑‑‑‑ Procedure to be adopted by Court‑‑‑When specific mechanism of procedure has been provided by a statute, it is mandatory that such procedure is adopted.

Noor Silk Mills Ltd. v. Investment Corporation of Pakistan and another 1984 CLC 2048 arid Haji Mahboob Alam v. Province of the Punjab through Collector, Sargodha and another 1973 SCMR 415 ref.

‑‑‑‑S.18‑A, proviso‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Requisites‑‑‑Alternate and adequate remedy‑‑‑When according to proviso to 5.18‑A of Punjab Agriculture Development and Supplies Corporation Act, 1973, alternate and adequate remedy was provided before the Appellate Authority, the Constitutional petition was not competent without having first recourse to them.

(d) Punjab Agricultural Development and Supplies Corporation Act (XXI of 1973)‑‑‑

‑‑‑‑S.18‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Recovery as arrears of land revenue‑‑‑Objection was raised to the recovery proceedings on the ground that the amount to be recovered was not determined‑‑‑Validity‑‑‑Amount against the petitioner was determined according to the terms of agreement between the parties and the same was certified by the Competent Authority after following due procedure‑‑Process of recovery of dues as arrears of land revenue was lawful‑‑‑High Court declined to interfere with the recovery proceedings.

Municipal Committee, Daska through its Chairman v. Messrs Farhat Nadeem & Co. and 5 others 1994 SCMR 1235; M. Abdul Bari‑and others v. West Pakistan Soil Reclamation Board, Lahore and others PLD 1966 SC 451; Municipal Committee, Sheikhupura v. Punjab Province PLD 1951 Lah. 195; Sardar Muhammad and another v. Chairman, Town Committee, Sadiqabad and others PLD 1962 (W.P.) BJ 8; Malik Fazal Muhammad v. The Province of West Pakistan and 2 others PLD 1962 (W. P.) Quetta 96; Haji Syed Habibullah and another v. The Municipal Committee, Quetta and another PLD 1977 Quetta 71; Ali Ahmad & Company v. Municipal Committee, Pasrur and others 1986 MLD 628; Ahmad Cotton Ginning and Pressing Factory v. Cotton Trading Corporation of Pakistan and others 1989 MLD 2202 and Danish Mahmood Azfaree and 2 others v. Industrial Development Bank of Pakistan through Managing Director and another 1997 CLC 941 ref.

Muhammad Jaffar Hashmi for Petitioner.

Ijaz Ahmad Chaudhry for Respondents Nos. 1 and 2.

Mian Muhammad Bashir, A.A.‑G. alongwith Nasim Iqbal Wasilbaqi on behalf of Respondents Nos.3 and 4.

Date of hearing: 15th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2223 #

2001 Y L R 2223

[Lahore]

Before Tanvir Bashir Ansari, J

ABDUL KHALIQ‑‑‑Petitioner

versus

SULTAN‑‑‑Respondent

Civil Revisions Nos. 149‑D and 150‑D of 1983/BWP, heard on 16th May, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Art. 134‑‑‑Person summoned to produce document‑‑‑Cross‑examination of such person‑‑‑Scope‑‑‑Such person does not become a witness by mere fact that he produces the document and cannot be cross-examined.

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

‑‑‑‑S.54‑‑‑Sale‑‑‑Registration of‑‑‑Provisions of S.54 of Transfer of Property Act, 1882‑‑Applicability‑‑‑Disputed sale was made on the basis of general power of attorney execution of which was denied by the plaintiff in the suit‑‑‑Neither the attorney appeared in the Trial Court nor the power of attorney was produced‑‑‑Person who identified the executant at the time of execution of the power of attorney did not appear in the Trial Court as witness‑‑Appellate Court decreed the suit filed by the plaintiff‑‑‑Contention of the defendant was that the provisions of S.54 of Transfer of Property Act, 1882, were not applicable to the area comprising of the former State of Bahawalpur on 22‑3‑1973 when the disputed mutation was sanctioned‑‑Validity‑‑‑Provisions of S.54 of Transfer of Property Act, 1882, were applicable to the area comprising of the former State of Bahawalpur‑‑‑Where the sale was not effected through registered instrument the same was ineffective on the rights of the plaintiff‑‑Appellate Court had exercised its jurisdiction legally, fairly and in a just and proper manner‑‑High Court declined to interfere with the judgment passed by the Appellate Court.

Jangi v. Jhanda, and others PLD 1961 BJ 34; Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) BJ 1; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 BJ 42; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Muhammad Khan and another v. Fazal Muhammad and another 1994 SCMR 281; Pir Bakhsh v. Budhoo NLR 1978 Civil 249 and Muhammad Fazal v. Kaura 1999 SCMR 1870 ref.

Ijaz Ahmad Chaudhry for Petitioner.

M.M. Bhatti for Respondent.

Date of hearing: 16th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2234 #

2001 Y L R 2234(1)

[Lahore]

Before Zafar Pasha Chaudhry, J

ARIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2347‑B of 200 decided on 21st June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Allegation against the accused that he armed with Danda had inflicted Danda. blow on the left arm of the deceased, did not find support from the medical evidence‑‑‑Recovery of Danda had not been effected from the accused‑‑Complainant could not rebut the submission and conceded that no blunt injury had been received by the deceased and it was also conceded that no recovery of Danda was effected from the accused‑‑‑Case against the accused being open to further inquiry, the accused was admitted to bail.

Nazar Abbas Syed for Petitioner.

Mansoor Ahmad Mian for the State

Sardar M Ramzan for the Complainant.

YLR 2001 LAHORE HIGH COURT LAHORE 2256 #

2001 Y L R 2256

[Lahore]

Before Malik Muhammad Qayyum, J

MUHAMMAD YAMEEN and others‑‑‑Petitioners

versus

MEMBER (JUDICIAL‑1), BOARD OF REVENUE, PUNJAB and

others‑‑‑Respondents

Writ Petitions Nos.71‑R and 72 of 2000, decided on 28th March, 2001.

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

‑‑‑‑Ss. 39 & 42‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑Mutation‑‑‑Dispute regarding sanction of mutation‑‑‑Petitioners had challenged sanction of mutation alleging that the same had been sanctioned contrary to the orders passed by Court in an earlier round of litigation‑‑‑Mutation having not created rights, no Constitutional petition could be maintained against the same‑‑‑If orders passed by the Court had been disobeyed, the petitioners had other remedies available to them‑‑‑Suit earlier filed by the petitioners had been dismissed and the matter was pending in appeals which fact had furnished an additional reason for non‑interference in the exercise of Constitutional jurisdiction of High Court.

S.A.M. Khan, Member Board of Revenue, Lahore and others PLD 1970 Lah. 614 ref.

M. Maqbool Sadiq for Petitioners.

Abdul Wahid Chaudhry for Respondents Nos.4 and 5.

YLR 2001 LAHORE HIGH COURT LAHORE 2272 #

2001 Y L R 2272

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD IKRAMULLAH KHAN and 30 others‑‑‑Petitioners

versus

ADDITIONAL DISTRICT JUDGE‑III, RAHIMYAR KHAN and 5

others‑‑‑Respondents

Writ Petition No.496 of 1987/BWP, heard on 15th January, 2001.

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

‑‑‑‑O.XIII, R.2‑‑‑Receiving of document at later stage‑‑‑Objection‑‑‑Where genuineness of the document is beyond doubt it ought not to be shut out of evidence if produced at a late stage.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 100‑‑‑Thirty years old document‑‑Presumption‑‑‑Where documents are thirty years old, prima facie, presumption of truth is attached to such documents.

‑‑‑‑O.XIII, R.2‑‑‑Production of document at later stage‑‑‑Jurisdiction of Trial Court‑‑Where good cause is shown to the satisfaction of the Trial Court for the non production of the same, it is the discretion of the Trial Court, under O.XIII, R.2, C.P.C., to allow such documents to be produced in evidence.

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

‑‑‑‑S. 115 & O. XIII, R. 2‑‑‑Revision‑‑‑Case decided‑‑‑Production of document in evidence at later stage‑‑‑Provisions of S.115, C. P. C. are attracted only when the case has been decided by any Court, subordinate to High Court or the District Courts‑‑‑Order permitting admission of documents not included in the list of reliance or not filed before the framing of issues does not amount to case decided.

Mst. Fazal Begum v. Bahadur Khan and another PLD 1983 Lah. 365 and Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others 1969 SCMR 965 ref.

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

‑‑‑‑S. 115 & O.XIII, R.2‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition‑‑‑Jurisdictional error‑‑‑Trial Court allowed application under O.XIII, R.2, C. P. C. filed by the petitioner‑‑‑District Judge in exercise of revisional jurisdiction set aside the order passed by the Trial Court‑‑Contention of the petitioner was that grant of permission to produce evidence at later stage was not a case decided, therefore, Lower Appellate Court had no jurisdiction under S.115, C. P. C., to interfere with the order‑‑Validity‑‑‑Order admitting or declining to admit evidence, oral or documentary did not amount to a "case decided" within the purview of S.115, C.P.C.‑‑‑Lower Appellate Court had illegally interfered in its revisional jurisdiction, as the revision before the Court was not competent and the jurisdictional error was made out‑‑‑High Court in its Constitutional jurisdiction interfered with the order passed by the Lower Appellate Court and set aside the order passed by the Lower Appellate Court‑‑‑Petition was allowed in circumstances.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 and Muhammad Yousaf and others v. District Judge, Gujranwala and another PLD 1982 Lah. 690 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Jurisdictional defect Where Lower Appellate, Court exercised jurisdiction which it did not possess, Constitutional petition was competent.

Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 and Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 ref.

Ch. M. Nasrullah Khan for Petitioners.

Ch. Abdus Sattar and Muhammad Adam Khan Dhukkar for Respondents.

Date of hearing: 15th January, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2275 #

2001 Y L R 2275

[Lahore]

Before Jawwad S. Khawaja, J

SUGAR MILLS‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Writ Petitions Nos.3100 of 1984 and 340 of 1985, decided on 6th December, 2000.

West Pakistan Foodstuffs (Control) Act (XX of 1958)‑‑‑

‑‑‑‑Ss. 2(3) & 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Notified order‑‑‑Failure to publish memorandum in Official Gazette ‑‑‑Effect‑‑For an order to be treated as a notified order, it had to be duly notified in the Official Gazette under the provisions of S.3 of West Pakistan Foodstuffs (Control) Act, 1958‑‑Where the memorandum the subject‑matter of the Constitutional petition was never notified in the Official Gazette, the same could not be treated as a notified order and, as such same had no legal validity‑‑‑Amounts deposited with the Provincial Government, pursuant to the memorandum were not lawfully due and payable by the petitioners and the petitioners would be entitled to claim refund of the amount so deposited by them.

Messrs Kalimullah & Co. v. The Government of West Pakistan and another PLD 1961 (W. P.) Lah. 321 and Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretariat and another PLD 1974 S C 291 ref.

S.M. Zafar, Senior Advocate Supreme Court assisted by Ch. Bashir Ahmad for Petitioner.

Ch. Muhammad Bashir, A.A.‑G with Muhammad Saleem, A.A.O. from the Department.

Date of hearing: 6th December, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2281 #

2001 Y L R 2281

[Lahore]

Before Maulvi Anwarul Haq, J

SHAHNAZ PARVEEN‑‑‑Petitioner

versus

AHMAD DIN and another‑‑‑Respondents

Civil Revision No.2245 of 1990, heard on 11th April, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiff had claimed that last male owner of the suit land was survived by the plaintiff being his daughter and defendants as his brother and sister and that she being the daughter of the deceased was entitled to half share in the estate of her deceased father‑‑‑One of the defendants who was sister of the deceased, conceded the claim of the plaintiff, but other defendants took the plea that plaintiff was not the daughter of the deceased‑‑‑Plaintiff by producing unrebutted evidence on record had proved that she was the legitimate daughter of the deceased, but the Trial Court dismissed the suit and appeal filed against judgment of Trial Court was also dismissed by the Appellate Court‑‑‑Evidence on record having fully proved that the plaintiff was the legitimate daughter of the deceased, findings to the contrary recorded by Courts could be interfered with by the High Court in exercise of revisional jurisdiction‑‑‑Judgment and decrees of the Courts below were set aside and suit filed by the plaintiff was decreed as prayed for.

Sh. Naveed Sheharyar for Petitioner.

Nemo for Respondents.

Date of hearing: 11th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2288 #

2001 Y L R 2288

[Lahore]

Before Ch. Ijaz Ahmad, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others‑‑‑Appellants

versus

MAHBOOB ILAHI‑‑‑Respondent

First Appeal, from Order No.301 of 1999, heard on 2nd July, 2001.

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

‑‑‑‑O. XLIII, R. I (a)‑‑‑Appeal against order‑‑‑Conversion of appeal into revision or Constitutional petition‑‑‑Powers of High Court‑‑‑High Court has ample power to convert the appeal into revision or Constitutional petition in the interest of justice and fair play at .any stage of proceedings‑‑‑Appeal was converted into Constitutional petition to be decided as such.

Khalida Begum v. Mst. Yasmin and others 2000 CLC 1290; Waheed Ullah and others v. Kanhaya Lal AIR 1902 All. 174; Abdul Majeed v. Muhammad Afzal Khokhar 1992 CLC 1152; Pehalwan v. Abdul Sattar and others 1986 MLD 606; Akhtar Nasim's case PLD 1982 Kar. 130; Saleh's case PLD 1982 Kar. 542; Mst. Sameena Suhail's case 1989 CLC 1949 and Muhammad Ayyub and 4 others v. Dr. Obaidulah and 6 others 1999 SCMR 394 ref.

(b) Counsel and client‑‑‑

‑‑‑‑ Admission by counsel of a party on a point of law‑‑‑Whether binding on the parties‑‑Admission by counsel of a party on question of law is not binding , on the parties.

Abdul Ghafoor v. Thal Development Authority, Joharabad PLD 1958 Lah. 169; Mirza Abdul Hameed and another v. The Custodian of Evacuee Property and another PLD 1969 Lah. 404 and Haji Obaidullah Khan and others v. Nisar Muhammad Khan PLD 1965 SC 690 ref.

‑‑‑‑S. 96‑‑‑Appeal‑‑‑Forum‑‑‑Forum of appeal, determination of‑‑‑Forum of appeal to be determined not on the basis of market value of the suit property but on the basis of value of original suit.

Dr. Abdul Ghafoor's case PLD 1966 SC 461; Mst. Bilqees Begum's case PLD 1985 SC 393 and Muhammad Ayyub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 ref.

Abdul Rehman Madni for Appellants.

Shahbaz Khurshid for Respondent.

Date of hearing: 2nd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2294 #

2001 Y L R 2294

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD IDREES‑‑‑Petitioner

versus

ABDUL REHMAN and another‑‑‑Respondents

Civil Revision No. 147 of 1997, heard on 21st June, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Revision, limitation for‑‑‑Delay, condonation of‑‑‑Revision was filed after more than three months from passing of the impugned judgment and decree‑‑‑Revision petition was returned to remove certain office objections which were not removed diligently but after 21 days‑‑‑Counsel for petitioner though had signed the petition for condonation of delay filed under S.5 of Limitation Act, 1908, but had failed to file his affidavit in support thereof and only affidavit of petitioner was filed whereas delay was shown to be due to some personal problem of counsel of the petitioner‑‑‑Each and every day of such long delay and inaction had not been satisfactorily explained‑‑Revision was rejected being time‑barred.

Naheed Ahmad v. Asif Riaz and others PLD 1996 Lah. 702; PLD. 1996 Lah. 158; Faiz Rasool v. Member (Colonies), Board of Revenue 1992 SCMR 1059; Muhammad Hanif's case PLD 1990 SC 859 and Manzoor Hussain and others v. Sajawal and others 1983 SCMR 465 ref.

Allah Wasaya Malik for Petitioner.

Ch. Muzammal Khan for Respondents

Date of hearing: 21st June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2297 #

2001 Y L R 2297

[Lahore]

Before Ch. Ijaz Ahmad, J

ARIF ALI ‑‑‑Petitioner

versus

CHAIRMAN, PUNJAB BOARD OF TECHNICAL EDUCATION, ALLAMA

IQBAL TOWN (DUBAI CHOWK), LAHORE and 2 others‑‑‑Respondents

Writ Petition No.23710 of 2000, decided on 11th July, 2001.

(a) Educational institution‑‑‑

‑‑‑‑ Candidate appeared in examination for 7 times, but could not pass the examination within the prescribed chances and after having availed such chances, he had to appear in all subjects as afresh candidate by virtue of rules and regulations of the college‑‑‑Candidate who failed in one paper in the last chance, filed Admission Form in obedience to the intimation of the result card alongwith the prescribed fee to appear in said one paper and appeared in examination but was declared as having failed in all subjects‑‑‑Candidate having unsuccessfully availed the prescribed chances in examination, would be considered as fresh candidate and was rightly declared as 'failed" in all subjects in examination which was taken by the candidate after availing prescribed seven chances.

Rehat Siddiqui's case PLD 1975 Lah. 257; Rehat Siddiqui's case 1977 SCMR 21.3 and Ali Mir's case 1984 SCMR 433 ref.

(b) Mala fides‑‑‑

‑‑‑‑ General allegations of mala fides were not sustainable.

Saeed Ahmad Khan's case PLD 1974 SC 151 and Aman‑Ullah Khan's case PLD 1990 SC 1092 ref.

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑Scope‑‑‑Competent Authority had passed the order under the direction of the High Court in parental jurisdiction after applying independent mind‑‑‑High Court in exercise of its Constitutional jurisdiction, had no jurisdiction to substitute its own finding in place of the finding of the Tribunals below.

Mussaduq's case PLD 1973 Lah. 600 ref.

M. D. Tahir for Petitioner.

Sh. Shahid Waheed for Respondents.

2001 Y L R 2313

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ARSHAD---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No. 177 of 1999, decided on 16th May, 2001.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art. 37---Confession---Extra judicial confession as basis of conviction---Evidence of extra judicial confession was a very weak type of -evidence and was seldom relied upon to make basis to convict the person particularly in ease of an uncorroborated evidence of extra judicial confession of only one witness.

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

----S. 302---Criminal Procedure Code V of 1898), S.164---Qanun-e-Shadahat (10 of 1984), An. 37-- Appreciation of evidence--Recovery of revolver though was effected at the instance of the accused, but that was of no use in absence of recovery of any empty from the place of occurrence---Recovery memo was not brought on record and proved---Case of the prosecution mainly rested on extra judicial confession allegedly made by the accused before prosecution witness wherein it was alleged that the accused had confessed his guilt---Such statement of the accused had not been corroborated from any other independent source---Evidence of extra-judicial confession being very weak type of evidence had seldom been relied upon as a basis for conviction--Prosecution having failed to establish its case against the accused beyond reasonable doubt, benefit of doubt was extended to the accused---Conviction and sentence awarded to the accused by the Trial Court, were set aside and he was acquitted from the charge.

Ghulam Qadir v. State PLD 1960 SC 254 and Haji Ahmad v. State 1979 PCr.LJ 460 ref.

Nasir-ud-Din Khan for Appellant.

Rukhsana Tabbasum for the State.

Date of hearing: 16th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2324 #

2001 Y L R 2324

[Lahore]

Before Raja Muhammad Sabir and Muhammad Sair Ali, JJ

MUHAMMAD YOUSAF---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1596-B of 2001, decided on 24th July, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.314 --- Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Accused was prosecution witness in a case of illegal gratification earlier filed by a woman against Police Officer concerned and the accused had been implicated in the present case falsely on account of that ground---Accused had no criminal history indicating his involvement in any narcotics case---Quantity of heroin allegedly recovered from the accused was only 514 grams and the accused was in jail for more than seven months---Plea of the accused that he had been falsely implicated in view of personal grudge by the Police Officer concerned, was not without force and the case against him was of further enquiry--Accused was entitled to grant of bail in circumstances.

Muhammad Ramzan Khalid Joiya for Petitioner.

Rao Muhammad Iqbal for the State.

Date of hearing: 24th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2325 #

2001 Y L R 2325

[Lahore]

Before Karamat Nazir Bhandari, J

Ch. HAMAYUN ABID---Petitioner

versus

BOARD OF DIRECTORS, AITCHISON COLLEGE and others---Respondents

Writ Petition No. 10402 of 2001, heard on 16th August, 2001.

(a) Educational institution---

---- Using unfair means by the candidate in examination---Effect---Candidate who used unfair means in examination was debarred from taking further examination and was also expelled from the college---Such penalty had been challenged in Constitutional petition by the candidate contending that action taken against the petitioner was violative of principles of natural justice and was extremely harsh---Penalty imposed on the petitioner had the backing of law as same was according to the rules and regulations of the college---If the action had the backing of rules/regulations, the Court should withhold interference on the ground of harshness of the punishment---Jurisdiction of judicial review is distinguishable from appellate jurisdiction--While an Appellate Court could modify or substitute sentence, the Court of judicial review normally would only be concerned about the legality of the order/action---No case for judicial interference having been made out Constitutional petition was, dismissed.

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

----Art.199---Jurisdiction of judicial review and appellate jurisdiction---Distinction Pervaiz Inayat Malik for Petitioner.

Muhammad Ashraf Khan for Respondents.

Date of hearing: 16th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2326 #

2001 Y L R 2326

[Lahore]

Before Amir Alam Khan and Mian Hamid Farooq, JJ

SHERA---Appellant

versus

M. AKRAM---Respondent

Regular First Appeal No., 561 of 2001, decided on 1st August, 2001.

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

----Ss.5 & 14---Proceedings prosecuted in wrong forum---Exclusion of time---Delay, condonation of---Time spent in proceedings before wrong forum would only be permitted to be excluded if said proceedings were prosecuted in good faith---In order to make out a sufficient case under S.5 of Limitation Act, 1908, applicant seeking condonation of delay must prove that he had acted in good faith.

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

----Ss.5 & 14---Civil Procedure Code (V of 1908), S.96---Filing of appeal in a wrong forum ---Limitation---Condonation of delay--Appeal incompetently filed before Court remained pending for about two years, but at no point of time the appellant or his counsel realised their mistake---Court realising that value of suit exceeded its pecuniary jurisdiction, returned the memorandum of appeal to the appellant for its presentation before the Court of competent jurisdiction--Appellant had failed to prove, even prima facie case by placing on record any document in order to show that either he acted in good faith or the appeal was filed before wrong forum under a bona fide belief---Even affidavit of counsel who filed appeal in wrong forum, was not filed alongwith the appeal---Mere bald assertion of the appellant that appeal was filed under a bona fide mistake, would be of no help to the appellant---In order to be entitled for the condonation of delay within the parameters of law, each day's delay had to be explained by the party seeking condonation of delay---Appellant, after receipt of memorandum of appeal from the Court for prosecuting same in Court of competent jurisdiction, filed memorandum of appeal in High Court after delay of 41 days and said delay was also not explained by the appellant---Appellant having failed to make out any ease of condonation of delay, appeal being grossly barred by time, was dismissed.

Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 ref.

----S.5---Delay, condonation of-- Application for---Applicant had to explain the cause of delay of each and every day before he could claim for condonation of delay.

Shabbir Ahmad Khan for Appellant.

Date of hearing: 1st August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2333 #

2001 Y L R 2333

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Mst. HAJRAN BIBI---Petitioner

versus

FALAK SHER and others---Respondents

Civil Revision No. 134 -of 1993, heard on 23rd August, 2001.

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

----S.13---Right of pre-emption--- Talb-i-Muwathibat and Talb-i-Ishhad--- Requirement of ---Talb-i-Muathibat and Talb-i-Ishhad are necessary ingredients of right of pre-emption as the right of pre7emption cannot be exercised unless the pre-emptor performs the ceremony of Talb-i-Muwathibat immediately after hearing of the sale.

Noor Begum v. Muhammad Boota and 3 others PLD 1995 Lah. 344 ref.

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

----S.13---Pre-emption suit ---Talb-i-Muwathibat-- -Failure to perform the Talb in the same meeting and sitting when the pre-emptor heard about the sale ---Pre-emptor and her witnesses in their evidence did not utter a single word about the demand of Talb-i-Muwathibat in the same meeting and sitting without loss of time, but they had uttered that when learnt about the sale, they went to vendees to claim their superior right of pre emption ---Pre-emptor failed to prove Talb-i-Muwathibat in circumstances.

----S. 13--- Pre-emption--- Talb-i-Ishhad-- Offering money to vendee in presence of witnesses ---Talb-i-Ishhad is the second demand by uttering the same words in the presence of witnesses and to take money to the vendees in presence of witnesses---All these are legal requirements; which pre-emptor is bound to fulfil even under the Islamic Law.

Gul Hassan Shah v. Mulazim Hussain Shah 1996 SCMR 294; Noor Begum v. Muhammad Boota and 3 others PLD 1995 Lah. 344; Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

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

----S.13---Pre-emption suit---Filing the same during interregnum---Failure to give written notice---Effect---When the Punjab Pre-emption Act, 1991, was not enforced the statutory requirement of notice was not available to the pre-emptor.

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

----Ss.l3 & 30---Pre-emption suit--Limitation---Failure to make Talb-i-Muwathibat and Talb-i-Ishhad--- Pre-emptor filed the suit after one year and seven days of the sale of the suit property---Both the Courts below concurrently dismissed the suit--Validity---Where none of the witnesses of the pre-emptor had uttered a single word about Talb-i-Muwathibat (jumping demand), the suit was liable to be dismissed for such reason---Suit of the pre-emptor was not decreed at any stage before December, 1993, the limitation for filing the suit was, four months and not one year---High Court in its revisional jurisdiction declined to interfere with the concurrent findings of fact by the Courts below.

Muhammad Khan v. Subah Sadiq and another 1999 YLR 923; Muhammad Hanif and others v. Basharat Ali and another 2000 YLR 972 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000' SCMR 314 ref.

Ahmad Waheed Khan for Petitioner.

Sh. Naveed Shaharyar for Respondents.

Date of hearing: 23rd August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2343 #

2001 Y L R 2343

[Lahore]

Before Amir Alam Khan, J

GHULAM MUHAMMAD ---Petitioner

versus

GHULAM HUSSAIN alias HUSSAIN ---Respondent

Civil Revision No.579-D of 1993, decided on 13th August, 2001.

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

----S.30---West Pakistan General Clauses Act (VI of 1956), S.8---Word from' as appearing in S.30 of Punjab Pre-emption Act, 1991---Effect---Computing period of limitation--Procedure---Limitation prescribed for filing pre-emption suit is four months, which is to be reckoned from the date of attestation of mutation, if the sale is made otherwise than through a registered sale-deed---While computing the period of four months for filing suit for pre-emption as prescribed by S.30 of Punjab Pre-emption Act, 1991, the word from' has to be given effect to---Whenever the period of limitation is to be computed and for that purpose the word from' is used, under the provisions of S.8 of West Pakistan General Clauses Act, 1956, the first day is to be excluded in calculating the said period.

(b) West Pakistan General Clauses Act (VI of 1956)---

----S.2(38)---Expression 'month'---Defined--"Month" under S.2(38) of West Pakistan General Clauses Act, 1956, means a month reckoned according to the British Calendar.

Muhammad Zubair and another v. Saleh Muhammad and 2 others 1993 CLC 1047 ref.

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

----S.30---West Pakistan General Clauses Act (VI of 1956), S.2(38)---Pre-emption suit--Limitation---Splitting limitation of 4 months into 120 days---Filing of the suit on 120th day of limitation---Sale of suit property was attested in favour of vendee on 8-2-1992 while the suit was fled on 8-6-1992---Trial Court considered issue relating to limitation as preliminary issue and dismissed the suit--Appellate Court allowed the appeal and remanded the case to the Trial Court for its decision on merits---Contention of the vendee was that the suit was time-barred as the same was filed on 120th day of limitation---Validity---Suit filed on 120th day was within limitation---Where the Legislature had used the word four months and had further defined the 'month' to mean month according to the British Calendar, limitation could not be so calculated in pre-emption suit---Petitioner failed to point out any illegality in the judgment passed by the Appellate Court--Revision was dismissed in circumstances.

Talib Hussain and another v. Muhammad Sharif and 4 others 2000 CLC 323 rel.

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

----S.30---Limitation Act (IX of 1908), Ss.12(1) & 29(2)---West Pakistan General Clauses Act (VI of 1956), S.2(38)---Pre-emption suit---Limitation---Considering lunar months for calculating period of four months---Validity---Period for filing suit for pre-emption has been prescribed in S.30 of Punjab Pre-emption Act, 1991, itself and while computing the period of limitation the word from' has been used which has been defined in S.8 of West Pakistan General Clauses Act, 1956, to mean that the first day is to be excluded, which is further fortified by Ss.12 (1) & 29(2) (a) of Limitation Act, 1908---Word 'month' has been defined to mean a month according to British Calendar under the provisions of S.2(38) of West Pakistan General Clauses Act, 1956---In the presence of various provisions as are available on the statute book it is neither possible nor reasonable to reckon the limitation under S.30 of Punjab Pre-emption Act, 1991, according to the lunar months.

Talib Hussain and another v. Muhammad Sharif and 4 others 2000 CLC 323 rel.

Noor Muhammad Awan Malik for Petitioner.

Sardar Muhammad Ramzan and C.M. Latif Rawn for Respondent.

Date of hearing: 6th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2347 #

2001 Y L R 2347

[Lahore]

Before Sheikh Abdur Razzaq and Muhammad Akhtar Shabbir, JJ

ILLYAS MUHAMMAD ---Petitioner

versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, BAHAWALPUR and 10

others---Respondents

Writ Petition No.3749 of 2000/BWP, heard on 20th March, 2001.

Penal Code (XLV of 1860)---

----Ss.392/458/411/353/324/109---Anti-Terrorism Act (XXVII of 1997), - S.6--Constitution of Pakistan (1973), Art. 199--Constitutional petition-- Accused, no doubt, had allegedly fired at the police, but neither any personnel of police force nor any other person was injured in the incident---Contents of F.I.R. revealed only an allegation of using force against law enforcing agency which did not find any corroboration as no empty was recovered from the place of occurrence---Act attributed to accused, thus, did not fall within the ambit of S.6 of the Anti-Terrorism Act, 1997 and the Courts constituted under the said Act had no jurisdiction to try the case--Impugned order passed by Special Court directing the accused to seek relief from a Court of ordinary jurisdiction, therefore, 'had been passed in accordance with law and did not call for any inter petition was dismissed accordingly.

Zahid Ahmad v. Abdur Rasheed and others 1999 PCr.LJ 793; Jahangir Akhtar Awan and 2 others v. The State and 8 others PLD 2000 Kar. 89 and Muhammad Afzal and another v. S.H.O. and others 1999 PCr.LJ 929 ref.

Sardar Ahmad Khan for Petitioner.

Raees Ahmad Sheikh, Muhammad Farrukh Mahmood and Umair Mohsin for Respondents.

Mian Muhammad Bashir, A.A.-G., Punjab.

Date of hearing: 20th March, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2350 #

2001 Y L R 2350

[Lahore]

Before Amir Alam Khan, J

MUHAMMAD MUNAWAR and 4 others‑‑‑Petitioners

versus

DEPUTY SETTLEMENT COMMISSIONER, FARID KOT HOUSE, LAHORE and another‑‑Respondents

Civil Revision No.3528 of 1994, decided on 4th June, 2001.

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

‑‑‑‑O.XLI, R.27 & S.115‑‑‑Production of additional evidence‑‑‑ "Case decided "‑‑‑Order for allowing production of additional evidence at appellate stage is a "case decided" and can be interfered with particularly when the exercise of discretion by the Court needs to be examined by the revisional Court.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Ahmed Ashraf v. University of the Punjab 1988 SCMR 1782 and Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

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

‑‑‑‑O.XLI, R.27‑‑‑Production of additional evidence‑‑‑Filling in lacunas ‑‑‑Validity‑‑Concept of bar against filling the gaps in evidence of parties is no more applicable and not only that the parties are required to_ produce all the material evidence but also a duty is cast upon the Court to collect evidence so as to decide the case effectively and finally.

Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 and Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661 ref.

‑‑‑‑ Production of evidence‑‑‑Duty of Court‑‑Concept of adversarial proceedings under which it was the duty of the parties to produce all relevant evidence has been departed from inasmuch as the Courts have also been called upon to share this burden either on the application of the parties or suo motu to summon and record all the relevant evidence in order to decide the case effectively and finally‑‑‑Such rule is one of wisdom, for if a party to the litigation fails in its duty the Court is not denuded of its power to summon the relevant evidence so that the dispute between the parties is decided fairly and finally.

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

‑‑‑‑O.XLI, R.27‑‑‑Additional evidence‑‑Lower Appellate Court allowed the respondent to produce additional evidence‑‑Plea of the petitioner was that the order of Lower Appellate Court was passed to permit the respondent to fill in the lacunas in his evidence‑‑‑Validity‑‑‑Where the Lower Appellate Court was of the view that the documents sought to, be produced as additional evidence were beneficial in pronouncing the judgment it did not proceed with any material irregularity amounting to illegality in exercise of its jurisdiction while allowing additional evidence in the instant case.

Ijaz Feroze and Mian Muzaffar Hussain for Petitioners.

R.A. Zafar for Respondents.

Date of hearing: 23rd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2355 #

2001 Y L R 2355

[Lahore]

Before Muhammad Farrukh Mahmud, J

FAIZ AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1404‑B of 2001, decided on 23rd August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/109/34‑‑‑Bail‑‑‑Accused being a rickshaw driver was earning his livelihood through this profession ‑‑‑Allegation against the accused was that the co‑accused were sitting in his rickshaw‑‑‑Accused had no motive to share common intention with the co‑accused‑‑‑Nothing was available on record to show that the accused was aware of the evil designs of the co‑accused‑‑‑Allegation against accused required further inquiry as contemplated under S.497(2), Cr.P.C.‑‑‑Bail was allowed to accused in circumstances.

Muhammad Arshad Azhar for Petitioner.

Muhammad Aslam Bhud for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2356 #

2001 Y L R 2356

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ASHRAF and 2 others‑‑‑Appellants

versus

GHULAM AHMAD and others‑‑‑Respondents

Regular Second Appeal No.53 of 1988, heard on 5th July, 2001.

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

‑‑‑‑S.21‑‑‑Appeal‑‑‑Deficiency in court‑fee ‑‑Failure to make up such deficiency ‑‑‑Effect‑‑Where the deficiency has not been made good, the appeal stands dismissed.

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

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑Locus standi‑‑Failure to assail judgment and decree passed by Trial Court‑‑‑Where the rival pre‑emptors had not challenged the decree passed by the Trial Court in favour of the appellants, they had no right or locus standi to seek the dismissal of the appeal.

‑‑‑‑Ss.2(2), 100 & O.XLI, R.1 ‑‑‑ Second appeal‑‑‑Decree‑‑‑Fact not mentioned in decree sheet‑‑‑Contention of the respondent was that appeal was dismissed by the Lower Appellate Court on the ground of deficiency in court‑fee ‑‑‑Such fact was not mentioned in the decree sheet drawn by the Lower Appellate Court‑‑‑Effect‑‑‑Decree must contain a formal expression of adjudication‑‑It was the decree, which had to be executed and given effect to and not the judgment‑‑Where there was no formal expression of making up the deficiency in the payment of court fee as mentioned in the decree sheet prepared by the Lower Appellate Court, second appeal could not be dismissed for non‑deposit of court fee in circumstances.

(d) Court fee‑‑‑

‑‑‑‑Payment of court fee‑‑‑Scope‑‑‑Court fee is a matter between the State and the litigant and the rival party cannot use it as a tool to non‑suit a party on failure to deposit the court fee.

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

‑‑‑‑O.XLI, R.33‑‑‑Appellate Court, powers of‑‑‑Deficiency in court‑fee ‑‑‑Extension of time‑‑‑Appeal filed by the appellant before First Appellate Court was dismissed‑‑Required court fee was not deposited by the appellant in due time‑‑‑Validity‑‑‑High Court in exercise of jurisdiction under O.XLI, R.33, C.P.C., extended the time given to the appellant in making up the deficiency in the payment of court fee as determined by the First Appellate Court.

(f) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.4 & 21‑‑‑Partial pre‑emption‑‑Principle‑‑‑Applicability‑‑‑Failure to describe suit property in plaint‑‑‑Plea raised by the vendee was that the case of the pre‑emptor was hit by the principle of partial pre-emption ‑‑‑Validity‑‑‑Pre‑emptors in their suit had specified whole of the measurement of the suit land, therefore, if any omission had been made, by not stating the vacant land or shares in the Shamlat Deh such omission would not be hit by the principle of partial pre‑emption ‑‑‑Tube‑well and room, for that purpose was installed on a part of suit‑land and it was not required from the pre‑emptor to specifically mention such appurtenence attached ‑to land in question in the body of plaint ‑‑‑Vendee failed to prove that there was any Shamlat Deh in existence in the village or attached to the land in question‑‑‑No proof was provided that the vendor was Aala Malik and had any transferable right or interest therein‑‑‑ Vendee also did not prove as to what was the extent and nature of the vacant land and if there was any change brought about in the ownership in the Shamlat Deh‑‑Where such aspects were missing and without being proved on the record, it could not be concluded that the suit of the pre‑emptors was bad for partial pre‑emption ‑‑‑Judgment and decree passed by the Lower Appellate Court were set aside and suit of the pre-emptors was decreed.

Ghulam Muhammad and others v. Khushi Muhammad and others PLD 1973 SC 444 distinguished.

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

‑‑‑‑S. 175‑‑‑Shamlat Deh‑‑‑Existence of‑‑Share in such land‑‑‑Every owner in village is not a shareholder in Shamlat Deh, it is only 'Aala Malik' who has such share and it is to be proved on the record, that there exists a Shamlat Deh in the village or not.

A. Karim Malik for Appellants.

Ali Akbar Qureshi and Muhammad Arif Chatta for Respondents.

Date of hearing: 5th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2362 #

2001 Y L R 2362

[Lahore]

Before Dr. Munir Ahmad Mughal, J

GHAFOOR AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3007‑B of 2000, decided on 11th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/34/109/148/149‑‑‑Bail, grant of‑‑Only allegation against the accused was that of firing in the air‑‑‑Accused had been found innocent during the investigation and had been kept in Column No. 2 of the report under S.173, Cr.P.C.‑‑‑Despite judicial remand, no recovery had been effected from the accused‑‑‑Case against the accused being of further probe, he was granted bail.

Arshad Ali Chauhan for Petitioner.

Muhammad Rafiq Rajput for the State.

Date of hearing: 11th January, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2370 #

2001 Y L R 2370

[Lahore]

Before Sheikh Abdur Razzaq, J

MUNIR AHMED and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.56 of 2000/BWP, decided on 4th July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.324/34 & 353/34 ‑‑‑ Qanun‑e‑Shahadat (10 of 1984), Art.37‑‑‑Extra judicial confession‑‑‑Neither the names of the accused nor their features were disclosed in the F.I. R. ‑‑‑Accused were stated to have been identified in the lights of the vehicles and they being not already known to the witnesses prosecution was bound to put them to identification test in order to connect them with the commission of the offence but no identification parade was ever held in the case‑‑‑Extra judicial confession allegedly made by accused being a joint one had no legal value‑‑‑No crime empty having been recovered from the place of incident, recovery of gun at the instance of accused was of no significance‑‑‑Accused were acquitted in circumstances.

State/Government of Sindh through Advocate‑General, Sindh, Karachi and others v. Sobharo 1993 SCMR 585; Daniel Boyd (Muslim name Saifullah) and another v. The State 1992 SCMR 196; Farman Ali v. The State 1997 SCMR 971; Khalid Shah alias Thoan Shah v. The State 1998 SCMR 1262; Ghulam Rasool v. The State 1979 PCr.LJ 493; Javed Rashid v. The State PLD 1992 Lah. 243; The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378 and Ali Muhammad v. The State and others 1996 SCMR 501 ref.

A.R. Tayyib for Appellants.

M.A. Farazi for the State.

Date of hearing: 23rd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2381 #

2001 Y L R 2381

[Lahore]

Before Amir Alam Khan, J

HAMID-UD-DIN AHMAD and 5 others---Petitioners

versus

PROVINCE OF PUNJAB and 3 others---Respondents

Writ Petition No.6920 of 1995, heard on 17th July, 2001.

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

----Arts.23 & 24---Protection to property--Depriving citizens of their valuable property under executive order---Validity---No citizen can be so deprived without adhering to the various provisions of law applicable thereto as also without affording the citizen an opportunity of being heard in the matter--Right to acquire and hold property is guaranteed in Art.23 of the Constitution---Such right is circumscribed by some reasonable restrictions as contained in Land Acquisition Act, 1894, which prescribes a procedure for acquiring land for public purpose and if the land is acquired ultimately, for payment of just compensation therefore.

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

----Part II, Chap. I /Arts. 41 to 491--Fundamental Rights---Object and scope--Fundamental Rights assure at the threshold of the Constitution that every citizen is treated in accordance with law---Wisdom for the same is that in a democratic State when authority has been wrested from monarch of olden times, the Constitution assures to the citizens that the days of King's decree are over and the citizens would not be treated otherwise than in accordance with law.

----S.45---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Quashing of mutation---Change in Revenue Record--Executive order---Grievance of the petitioners was that the Authorities by executive order transferred the disputed land from the name of the petitioners to the name of the Provincial Government---Contention of petitioners was that they were dispossessed illegally without providing any opportunity of being heard---Validity--: Where the orders passed by the Authorities were not backed by law, such orders could at the most be termed as an executive fiat, and could not be sustained---Executive order, whereby disputed land was mutated in the name of the Provincial Government, was without lawful authority and of no legal effect---Mutation was cancelled and quashed and High Court directed the Authorities to remove all material from the disputed land.

Muhammad Nawaz and 4 others v. Commissioner, Rawalpindi Division, Rawalpindi and 4 others 1995 MLD 1728; Pakistan through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan and others 1992 SCMR 2450; Government of Sindh through Secretary, Home Department, Karachi and another v. Abbas Ahmad, Advocate and 2 others 1994 SCMR 923 and Nawabzada Muhammad Umar Khan and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Pesh. 1 ref.

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

---Art.199---Constitutional petition---Public functionaries---Act of public functionaries--Interference with others' property ---Scope--Public functionary is obliged under the Constitution to show that he is interfering with any other person's pr.3perty under the cover of law and then to explain and satisfy the Court with regard to its validity and propriety both procedural and substantive.

Mian Hamid-ud-Din Kasuri for Petitioner.

Muhammad Mazhar Shar Awan for Respondents.

Date of hearing: 17th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2387 #

2001 Y L R 2387

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. SHIREEN KHANUM‑‑‑Petitioner

versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and

others‑‑‑Respondents

Writ Petition No.7055 of 1993, heard on 7th August, 2001.

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

‑‑‑‑Ss. 45 & 163‑‑‑Mutation‑‑‑Review‑‑‑Longstanding entries of mutation in record of rights cannot be corrected through review of mutations.

(b) Land Records Manual‑‑‑

‑‑‑‑Chap. VII, para. 7.30‑‑‑Entry in Jamabandi‑‑‑Correction of‑‑‑Where any entry has been incorporated in Jamabandi, under the provisions of para. 7.30 of Chap. VII of Land Records Manual, the mutation should not be entered in or sanctioned for the purpose of correcting it, except to correct a clerical error (where it cannot be done by Fard Badar) or in consequence of a patent fact‑‑‑Party aggrieved by wrong entry must seek remedy by civil suit‑‑‑Patent fact‑‑Connotation.

‑‑‑‑ "Patens fact "‑‑‑Scope‑‑‑Fact that needs an elaborate inquiry to establish, is not a "patent fact".

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

‑‑‑S.45‑‑‑Land Records Manual, Chap. VII, para. 7.30‑‑‑Wrong mutation entry in Jamabandi‑‑‑Correction‑‑‑Plea of fraud‑‑Effect‑‑‑Such entry should not be reversed or reviewed on the ground that the entry was effected as a result of fraud in collusion with the subordinate revenue staff.

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

‑‑‑‑S. 45‑‑‑Mutation‑‑‑Sanctioning of‑‑Procedure for sanctioning of mutation by Revenue Officer is summary in nature and no detailed inquiry can be made by the Revenue Officer.

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

‑‑‑‑S.45‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Mutation, correction of‑‑Controversy with regard to legality or correctness of mutation is a factual controversy‑‑‑Where the case had been considered by various Authorities, their decision on fact could not be disturb in exercise of Constitutional jurisdiction.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Factual controversies‑‑‑Where factual controversies are involved, High Court cannot substitute its own finding of fact‑‑‑Constitutional petition is not the proper remedy in such cases.

Muhammad Younis Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

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

‑‑‑‑S.163‑‑‑Review‑‑‑Jurisdiction of Revenue Officer‑‑‑Scope‑‑‑Officer who had passed the order was competent to review his earlier order on his own motion or on the application of aggrieved person‑‑‑Where the order under review was not passed by the Officer himself and the same was passed by his predecessor such order would not be reviewed by the Officer without first obtaining sanction of his superior.

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

‑‑‑‑Ss. 45 & 163‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Factual controversy‑‑‑Review of mutation‑‑Disputed mutation was sanctioned in the year 1967 and the same was assailed before District Collector in the year 1989 on the plea of fraud‑‑‑District Collector allowed the application filed by petitioner‑‑‑Order passed by the District Collector was set aside in appeal on the ground that complicated question of law and fact could not be decided in review jurisdiction‑‑‑Validity‑‑‑High Court would interfere in the order passed by Special Tribunal, or Competent Authority provided the same had been passed illegally and without lawful authority‑‑‑Revenue Authorities', in the present case, were competent to pass any order within their jurisdiction in favour of any of the parties‑‑Question of fraud was a question of fact and the same could not be determined by the Revenue Authorities in summary proceedings‑‑‑Constitutional petition was dismissed in circumstances.

Karam Din etc. v. Abbas Khan PLD 1967 (W.P.) Rev. 32 and Bakhtiar and 3 others v. Member‑III, Board of Revenue, Baluchistan, Quetta and 20 others PLD 1984 Quetta 158 ref.

Amjad Hussain Syed for Petitioner.

Ch. Muhammad Bakhsh for Respondents.

Date of hearing: 7th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2415 #

2001 Y L R 2415

[Lahore]

Before Mian Nazir Akhtar, J

LUBNA‑‑‑Petitioner

versus

Mian MUHAMMAD AZAM, JUDGE, FAMILY COURT, LAHORE and

another‑‑‑Respondents

Constitutional Petition No. 17083 of 2000, heard on 22nd June, 2001.

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

‑‑‑‑S.17‑‑‑Miscellaneous application fled without affidavit ‑‑‑Effect‑‑‑No specific mode to file such application having been' prescribed under the West Pakistan Family Courts Act, 1964, or the Rules framed thereunder‑‑‑Family Court is free to entertain application without verification or even without supporting affidavit ‑‑‑To decide such application the Family Court may proceed to record evidence of the parties and may call upon a party to submit affidavit to substantiate his claim or may otherwise accept the application to secure .the ends of justice.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.17‑‑‑Civil Procedure Code (V of 1908), Preamble ‑‑‑Qanun‑e‑Shahadat (10 of 1984), Preamble‑‑‑Provisions of Code of Civil Procedure, 1908, and Qanun‑e‑Shahadat, 1984‑‑‑Inapplicability‑‑‑Object‑‑‑By making the said provisions inapplicable to the proceedings before the Family Court the law maker intended to give greater freedom to Family Courts and release them from the cobweb of procedural technicalities embodied in Qanun‑e‑Shahadat, 1984 and C. P. C

‑‑‑‑S.17‑‑‑Situation not governed by express provision of West Pakistan Family Courts Act, 1964‑‑‑Effect‑‑‑Where a matter or situation is not governed by express provision of the law or the rules framed thereunder, the Family Court is free to evolve its own procedure and pass any suitable order for expeditious and just decision of the case.

Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305; Khalilur Rehman Bhutta v. Razia Naz and another 1984 CLC 890 and Mst. Saleema Bibi v. A.D.J. and others 1985 CLC 1015 ref.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.17‑‑‑Family Court‑‑‑Powers of‑‑‑In absence of any express provision, the Family Court can dismiss a suit for non prosecution, restore same, pass an order for ex parte proceedings and recall it, allow amendment of pleadings, take additional evidence, appoint a Commission for site inspection etc. ‑‑‑In each case the dominant consideration must be a fair and impartial trial, ascertainment of truth and expeditious disposal of the case.

(e) Practice and procedure‑‑‑

‑‑‑‑ Following a particular procedure with consent of parties‑‑‑Protest against such procedure by a contesting party ‑‑‑Effect‑‑Where a party to a suit leads the Court to follow a particular procedure or does not raise an effective protest qua the procedure followed by a Court then it cannot turn round to assail an order if it goes against that Party.

(f) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss.11(3) & 12‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑Recalling of order‑‑‑Right of cross-examination of the respondent was closed by the Family Court and the order was recalled subsequently on application filed by the respondent‑‑‑Validity‑‑‑Such right of the parties was preserved under S.11(3) of the West Pakistan Family Courts Act, 1964‑‑Right of cross‑examination being a valuable right could not be lightly taken away and there was no express provision to close the right of a party to examine, re‑examine or cross‑examine a witness‑‑‑Keeping in view the justice of the cause and object of its expeditious disposal, Family Court had inherent power to pass such order and recall such order‑‑‑Judgment and decree could only be passed by the Family Court if the parties had failed to arrive at a compromise or reconciliation‑‑‑Where right of cross-examination was closed the Family Court had ignored the provisions of S.12 of West Pakistan Family Courts Act, 1964‑‑‑Order refusing the right of cross‑examination was illegal and the same was rightly recalled by the Family Court‑‑‑High Court in exercise of Constitutional jurisdiction declined to interfere with the order passed by the Family Court‑‑‑Petition was dismissed in circumstances.

(g) Practice and procedure‑

‑‑‑‑When law provides a thing to be done in a particular manner, it ought to be done in that manner or not at all.

Mst. Fatima Bibi and another v. Pakistan PLD 1960 (W.P.) Lah. 1031; Agha Muhammad Hassan v. Mehraj Din ILD 1973 Lah. 95; Muhammad Ghazanfar v. Ali Harder 1979 CLC 84; Anwar Masih v. Wailat and 2 others 1983 CLC 2365; Muhammad Habibullah Siddique v. Haji Habib Jaffarali and 2 others 1988 MLD 1143; Saleem Mirza v. Presiding Officer, Xth Family Court East and 2 others 1989 ALD 228(2), Province of Punjab through Collector, Khushab and 2 others v. Malik Ghulam Qasim 1993 CLC 589 and Mst. Zareena and 5 others v. Syeda Fatima Bibi PLD 1995 Kar. 388 distinguished.

Sh. Zia‑ud‑Din Ahmad Qamar with Wajahat Hussain Langah for Petitioner.

Pir S.A. Rashid for Respondents.

Date of hearing: 22nd June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2434 #

2001 Y L R 2434

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD AFZAL‑‑‑Petitioner

versus

ADDITIONAL COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOMS

HOUSE, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.12000 of 2001, heard on 12th July, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 181‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Failure to release goods on payment of redemption fine‑‑‑Matter was decided by the Authorities under the direction of Central Board of Revenue‑‑‑High Court in another case had already struck down such order issued by the Central Board of Revenue‑‑‑Effect‑‑‑Importer was not given any opportunity to get his goods released on payment of redemption fine as provided under S.181 of Customs Act, 1969‑‑‑Effect‑‑‑Where the order was passed contrary to the judgment of the High Court, such order was passed without lawful authority and the same was set aside‑‑‑High Court directed the Authorities to release the consignment on payment of 75 percent. of redemption fine by the importer in addition to any duty and charge payable in respect of such imported goods‑‑‑Petition was allowed accordingly.

C.B.R. and another v. Sheikh Spinning Mills Limited, Lahore and others 1999 SCMR 1442 ref.

Mian Abdul Ghaffar Khan for Petitioner.

K.M. Virk for Respondents.

Date of hearing: 12th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2438 #

2001 Y L R 2438

[Lahore]

Before Karamat Nazir Bhandari, J

Malik SALEEM IQBAL, ADVOCATE, DISTRICT COURTS, MIANWALI‑‑‑Petitioner

versus

PUNJAB BAR COUNCIL through Chairman, Fane Road, Lahore and

another‑‑‑Respondents

Writ Petition No.13875 of 2001, heard on 25th July, 2001.

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

‑‑‑‑Ss. 41, 42(2) & 43(5)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suspension of licence of legal practitioner‑‑‑Complaint against lawyer‑‑Procedure ‑‑‑Jurisdiction of Disciplinary Committee of Bar Council‑‑‑Petitioner was a practising lawyer and application against him was filed before the Disciplinary Committee of the Bar Council alleging that his professional degree was fake and forged‑‑Committee while accepting the application: suspended the licence of the petitioner‑‑Contention of the petitioner was that under S.42 of Legal Practitioners and Bar Councils Act, 1973, it was only the Tribunal which could impose any penalty and that too on completion of inquiry ‑‑‑Validity‑‑Disciplinary Committee could only entertain and inquire into the complaint and where the complaint was not rejected the same could be referred to the Tribunal‑‑‑Pending inquiry into the complaint, even the Disciplinary Committee had no power of suspension‑‑Disciplinary Committee had nothing to do with the complaints against the Advocate‑‑Order of suspension of licence passed by the Disciplinary Committee was without lawful authority and of no legal effect‑‑‑Case was remanded for decision in accordance with law‑‑‑Constitutional petition was allowed accordingly.

Ch. Ali Muhammad for Petitioner.

Muhammad Ahsan Bhoon and Parvaiz Inayat Malik for Respondents.

Date of hearing: 25th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2454 #

2001 Y L R 2454

[Lahore]

Before Muhammad Nawaz Abbasi, J

Ch. SABIR HUSSAIN ‑‑‑Petitioner

versus

Mirza MUSHTAQ AHMED and 3 others‑‑‑Respondents

Writ Petition No.1970 of 2001, decided on 26th June, 2001.

(a) Islamic Jurisprudence ‑‑‑

‑‑‑‑Crime and punishment ‑‑‑Qatl (murder)‑‑ Qatl‑e‑Amd, and Qatl‑e‑Khata whether major sins‑‑‑Muslim guilty of Qatl‑‑‑Acquittal from Court or pardon given by legal heirs of deceased‑‑‑Effect‑‑‑'Qatl' is a major sin and a Muslim guilty of 'Qatl' of another Muslim, despite subsequent acquittal from the Court, cannot claim that he has been absolved of his responsibility of major sin of killing a Muslimbrother‑‑‑Convict of Qatl or Qatl‑e‑Amd as the case may be, upon conviction has to serve his sentence awarded to him in the manner provided under the law if he is not pardoned by the victim or his legal heirs, which is only to the extent of right of a person or body of persons but it does not take away the right of Allah to punish him for major sin cannot be said that Qatl‑e‑Khata is not a major sin‑‑‑In case of 'Qatl', notwithstanding the pardon given by the legal heirs of the deceased, the responsibility of sin is not discharged unless Allah pardons the offender.

Al‑Qur'an Sura Al‑Baqra (2.217); Sura AlMaida (5.32); Sura Al‑Furqan (68); Al-Qura'n 2.179); PLD 1989 SC 633 and AlFiqah‑al‑Islami and Adultahu, p.219 and Majmu'at Al‑Sihah Al‑Sitta, Vols.5 & 6 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 318 (as amended by Criminal Law (Amendment) Act (II of 1997)]‑‑‑ "Qatl‑eKhata "‑‑‑Connotation‑‑‑Where Qatl is due to mistake of act or of fact without intention to kill, it is Qatl‑e‑Khata as defined under S.318, P. P. C. (as amended by Criminal Law (Amendment) Act (II of 1997)]‑‑‑Illustrations (a) & (b) under 5.318, P. P. C. has amended by Criminal Law (Amendment) Act (II of 1997)) show that in Qatl‑e‑Khata. there is lack of intention but at the same time if the element of causing death by mistake of act or fact is missing, the killing of a person despite being not as such intentional or premeditated would be wilful.

Al‑Qur'an: Surah Al‑Nisa, Ayat 92 ref.

‑‑‑‑S. 300 (prior to amendment by Criminal Law (Amendment) Act (II of 1997)]‑‑‑Islamic Jurisprudence ‑‑‑Qatl is a sin in the words of the Holy Qur'an‑‑‑Culpable homicide not amounting to murder‑‑‑Scope‑‑‑Element of suddenness, lack of preparation and deliberation may change the nature of the offence for the purpose of punishment but the same does not come out of the definition of 'Qatl'‑‑‑Culpable homicide not amounting to murder falling under any exception to 5.300, P.P.C. [prior to amendment by Criminal Law (Amendment) Act (II of 1997)], does not brim the case out of the ambit of Qatl and mere fact that the conviction is altered and sentence is reduced in such an offence does not affect the nature of sin committed by a person in the words of the Holy Qur'an.

(d) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14 (d)‑‑‑Disqualification of candidate‑‑Guilty of Qatl‑‑‑Such act whether a major sin‑‑‑Compromise with legal heirs of deceased‑‑‑Effect‑‑‑Even Qatl‑e‑Khata falls within the ambit of major sin and notwithstanding the kind of Qatl whether Qatl‑e‑Khata or Qatl‑e‑Amd, the act of committing Qatl is a major sin‑‑‑Person guilty of such act is disqualified to contest flit, election by virtue of S.14(d) of Punjab Local 'Government Elections Ordinance, 2000, irrespective of his compromise with the legal heirs of the deceased‑‑‑Forgiveness by the legal heirs of the deceased does not provide an excuse that the sin committed by the offender has been forgiven by Allah‑‑‑Where conviction of candidate was converted from S. 302, P. P. C. to S. 304, Part 1, P. P. C. [prior to amendment by Criminal Law (Amendment) Act (II of 1997)] and compromise of the candidate with legal heirs of the deceased, the candidate would still be responsible for major sin in words of the Holy Qur'an‑‑Disqualification provided under S.14(d) of Punjab Local Government Elections Rules; 2000, was confined to the extent of commission of a major sin and not that what punishment was awarded to a person by the Court‑‑‑Person who lacked moral virtues and respect for mankind and did not abstain from committing major sin was not a righteous person to hold the elective office‑‑‑Candidate was not qualified in circumstances.

(e) Penal Code (XLV of 1860)‑‑‑

‑-‑‑Ss. 299, 304 [prior to amendment by Criminal Law (Amendment) Act (II of 1997)], 300, 302 & 318 [as amended by Criminal Law (Amendment) Act (II of 1997)] "‑‑‑ "Qatle‑Amd and "Qatl‑e‑Khata "‑‑‑Distinction‑‑Offence falling under S. 304, P. P. C. (prior to amendment by Criminal Law (Amendment) Act (II of 1997)] would not necessarily be definable as Qatl‑e‑Khata or that death being involuntary the offence would not be a Qatl‑‑Under the provisions of 5.302, P. P. C. [as amended by Criminal Law (Amendment) Act (II of 1997)) all cases of Qatl‑e‑Amd which are not punishable under S. 302 (a) (h~, P. P. C. /as amended by Criminal Law (Amendment) Act (II of 1997)/ are punishable under S.302(c), P. P. C. [amended by Criminal Law (Amendment) Act (II of 1997)] which is substitution of S.304, P. P. C. [as prior‑ to amendment by Criminal Law (Amendment) Act (II of 1997)1 and thus all these cases which would fall within the ambit of S.304, P. P. C. /prior to amendment by Criminal Law (Amendment) Act (Il of 1997)] now fall under S.302(c), P P. C. [as amended by Criminal

Law (Amendment) Act (II of 1997)] and are definable as Qatl‑e‑Amd‑‑‑Classification of Qatl‑e‑Amd under S. 302, P. P. C. [as amended by Criminal Law (Amendment) Act (II of 1997)) is only relevant to the extent of punishment ‑‑‑Qatl‑e‑Khata is defined under 5.318, P. P. C. (as amended by Criminal Law (Amendment) Act (II of 1997)] which has different ingredients and is punishable under S. 319, P. P. C. (as amended by Criminal Law (Amendment) Act (II of 1997)]‑‑‑If old and new provisions of law on the subject are kept in ,juxtaposition, it is clear that an unpremediated murder is also Qatl and a major sin and thus, while keeping in view the definition of Qatl‑e‑Khata given in S. 318, P. P. C. (as amended by Criminal Law (Amendment) Act (II of 1997)] and Qatl under S.299(I), P.P.C. /prior to amendment by Criminal . Law (Amendment) Act (II of 1997)] and also Qatl‑e‑Amd under. 5.300, P. P. C. [as umended by Criminal Law (Amendment) Act (II of 1997)]‑‑‑Despite unpremeditated and sudden occurrence, killing of deceased was definitely a Qatl which would fall within the ambit of major sin and the ultimate 'alteration in the conviction and sentence through the verdict of the Court as a result of compromise or otherwise, would not change the nature of sin from major to minor.

(f) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14(d)‑‑‑Constitution of Pakistan (1973), Art.62(d)(e)(g) & 63(h)‑‑‑Disqualification of candidate‑‑‑Disqualification provided under S.14(d) of Punjab Local Government Elections Ordinance, 2000, is similar to the disqualification provided under Arts. 62(d)(e)(g) & 63(h) of the Constitution for Members of Parliament.

(g) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Punjab Local Government Elections Rules, 2000, R.18‑‑‑Scrutiny of nomination papers‑‑‑Object and scope‑‑Purpose of the scrutiny of the nomination papers is to exclude such person from entering into arena who is not qualified to be elected or chosen as a member due to suffering severe disqualification under the law as such scrutiny is a process of filtration to exclude a disqualified person from election with a view to restrain ineligible person from participation in the election so that the people in local constituency can be provided proper representation through proper ' person‑‑Where qualification of a person is known and it is established on record, the clearance of nomination papers of such person to accept him as a candidate amounts to defeat the spirit and purpose of the law‑‑‑Provision of S.14 of Punjab Local Government Elections Ordinance, 2000 is a composite provision which contains qualification and disqualification for a person to be elected or to become a member of the Local Council‑‑Disqualification which is not known and cannot be established without detailed inquiry and recording of the evidence need not to be considered at the time of scrutiny‑‑‑Scope of scrutiny of nomination papers being limited, cannot be enlarged beyond the summary inquiry by in a case in which no factual controversy is involved relating to disqualification of a person and without a formal inquiry or recording of evidence, the disqualification is ascertainable in the process of scrutiny, it is obligatory on the Authorities responsible for the scrutiny of nomination papers not to allow to escape such disqualification of a person unnoticed.

(h) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Punjab Local Government Elections Rules, 2000, R.18‑‑‑Pre‑election disqualification‑‑‑Permitting disqualified candidate to contest election ‑‑‑Effect‑‑Disqualification is necessarily to be taken notice of during the scrutiny of the nomination papers‑‑‑Where it is found that candidate is disqualified to contest election, such candidate should not be allowed to contest election on the ground that the defeated candidate has the right of filing election petition‑‑‑Where a candidate, who is not qualified to contest election, is granted permission to participate in election, the same amounts to disfranchise a large number of voters which is nothing but a wasteful exercise at the costs of public money and time‑‑‑Allowing such candidate to contest election on such ground amounts to legitimate the candidature of a person who is carrying a known disqualification.

(i) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14 (d) (i)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Disqualification of candidate‑‑‑Guilt of Qatl‑‑‑Such act is a major sin‑‑‑Candidate was involved in a criminal case wherein he was convicted under 5.302, P. P. C. ‑‑‑Charge against the candidate was of causing injuries to the deceased with a Sarriya (iron bar) without any lawful excuse and the act was voluntary and not as Khata‑‑‑Nomination papers of the candidate were rejected by Returning Officer on the ground of disqualification as provided under S.14(d)(i) of Punjab Local Government Elections Ordinance, 2000‑‑‑District Returning Officer in appeal accepted the papers with observation that the occurrence in which the deceased lost his life at the hands of the candidate was not premeditated and would fall within the Exception (v) to 5.300, P. P. C. (prior to amendment by Criminal Law (Amendment) Act (II of 1997)] as the conviction of the candidate was converted from 5.302, P. P. C. has prior to amendment by Criminal Law (Amendment) Act (II of 1997)] to S. 304, Part I of P. P. C. (prior to amendment by Criminal Law (Amendment) Act (II of 1997)] in appeal and in consequence thereto the act of‑candidate would not fall within the ambit of major sin and further the offence having compounded, the disqualification, if any, stood removed‑-Validity‑‑‑Such observation Was without any foundation in the context of Islamic Law relating to crime and sin and which was not approved by the High Court‑‑‑Held, candidate at the time of filing nomination papers was not qualified on account of his being guilty of major sin due to voluntary causing death of a Muslim‑‑‑Order of acceptance of nomination papers of the candidate by the District Returning Officer as Appellate Authority was illegal and of no consequence‑‑‑Nomination papers of the candidate were rejected in circumstances.

Sura Al‑Banni Israel (33); Ketab‑ulIktiar a prominent Book of Islamic Jurisprudence; Saihi Bukhari in Chapter Ketabul‑Addiat; Islamic Encyclopaedia, 2nd Vol., Chapter of Murder; Saihi Bukhari in Chapter Ketabul‑Addiat; Bukhari Sharif p.653 and Sunnan Nasai Sharif, Chap.218, p.380 ref.

Sardar Muhammad Aslam for Petitioner.

Babar Awan and Dr. Muhammad Aslam Khaki: Amicus curiae.

Muhammad Ilyas Siddiqui and Junaid lqbal Awan for Respondents.

Raja Saeed Akram Khan, A.A.‑G.

Dates of hearing: 20th, 22nd and 25th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2497 #

2001 Y L R 2497

[Lahore]

Before Muhammad Akhtar Shabbir, J

NAWAB through Iqbal Bibi (widow) and 2 others---Petitioners

versus

Sain ALLAH DITTA through Legal Heirs and 2 others---Respondents

Civil Revision No.458 of 1992, heard on 31st July, 2001.

(a) Civil Procedure Code (V of 1908)

----O.XX, R.14(1)7--Decree in pre-emption suit---Failure to fix date for payment of purchase money---Effect---Condition of fixing date for payment of purchase money is mandatory---Court has to give direction to deposit the money on or before the specified date and no option is left with the Court except to direct the decree-holder to comply with the order of the Court---Where the Court fails to specify such date, a successful preemptor cannot be penalized for no fault on his part---Parry would not suffer on account of the act of the Court.

Fateh Khan v. Boze Mir PLD 1991 SC 782 rel.

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

----O. XX, R.14(l)-- Decree in pre-emption suit---Bona fide mistake---Failure to comply with the direction of Court---Non-deposit of purchase money by pre-emptor on or before prescribed date---Provisions of O.XX, R.14(1), C. P. C. are penal in nature and have to be considered in stricto senso---In case the pre-emptor/decree-holder is contumacious in complying with the direction of the Court to deposit the sale price on or before the prescribed date, the suit in view of the penalty as provided in O.XX, R.14(1), C. P. C. stands dismissed---Where there is a bona fide mistake or lapse in good faith on the part of the pre-emptor, such pre-emptor is entitled for compassionate consideration by the Court as the pre-emptor was not guilty of contumacious disregard of the; Court's order.

Gul Usman and others v. Mst. Ahmero and 11 others 2000 SCMR 866 ref.

----O.XX, R.14(1), Ss.145 & 144---Pre emption suit---Modification of decree--Failure to fix date for deposit of purchase money---Suit was decreed in- favour of the pre emptor by the Trial Court---High Court in exercise of appellate jurisdiction modified the decree and enhanced the purchase money---Order of High Court was passed et parte in absence of the pre-emptors, but in the order passed by High Court there was no date fixed for deposit of enhanced purchase money---Prior to the decision of High Court the decree had been executed and the possession was already handed over to the pre-emptors ---Judgment-debtor filed application under S.144, C. P. C. for restoration of possession on the ground that the pre-emptors had failed to deposit the enhanced purchase money---Trial Court/Executing Court allowed the application filed by the judgment-debtor and appeal filed by the pre-emptors was dismissed by the Appellate Court--Contention of the pre-emptors was that since the order passed by High Court was ex parte order therefore, they did not know about the modification of the decree---Where the pre-emptors had agitated before the Trial Court Executing Court that they were ready to deposit the enhanced decretal amount it was incumbent upon the Court to allow the pre-emptors to deposit the part of sale price in the Court---High Court in the present case, failed to specify the date according to the provisions of O.XX, R.14(1), C. P. C. thus, for the act of the Court litigant pre-emptors would not be punished and no penalty could be imposed on them---Judgments passed by both the Courts below were not sustainable and the same were set aside by High Court.

Waris Ali Khan alias Waris Khan v. Mst. Zaibun Nisa and 6 others 1991 SCMR 142 ref.

Bashir Ahmad v. Rehmat Ali 1998 MLD 1789; Haji Ishtiaq Ahmad v. Bakhshaya and 7 others 1976 SCMR 420; Mst. Imtiaz Bibi and another v. Abdul Qadir Shad and 2 others 1998 CLC 1043; Khurshid Akbar v. Mian Manzoor Ahmad 1982 SCMR 824 and Muhammad Nawaz and others v. Muhammad Sadiq 1995 SCMR 105 distinguished.

(d) Civil Procedure Code (V1908)---

----S. 14-1---Limitation Act (IX of 1908), Art. 181---Restitution application--Limitation---Such application was filed after a delay of seven years---Validity---No period was provided in S.144, C. P. C. for restitution of possession for the property for non compliance of the decree of the Court-- Where no tithe was provided, the provisions of Art. 181 of Limitation Act, 1908, were applicable in which the period of limitation was three years---Restitution application was filed after the expire of period of limitation which was already barred by time.

Telu v. Raja Ram and others AIR 1938 Lab. 456 rel.

Sh. Naveed Shaharyar for Petitioners.

Arshad Mahmood Chaudhry for Respondents.

Date of hearing: 31st July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2502 #

2001 Y L R 2502

[Lahore]

Before Tanvir Bashir Ansari, J

NAJAM ALI SHAH---Petitioner

Versus

ADDITIONAL DEPUTY COMMISSIONER (G) and others---Respondents

Writ Petition No.405 of 1981/BWP, decided on 11th July, 2001

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11---Mukhbari application--Adjudication of---Application before Authority who was not invested with powers under Ss.10/11 of Displaced Persons (Land settlement) Act, 1958 was incompetent.

Muhammad Din and 3 others v. O.S:D., General Record Office, Board of Revenue 1986 MLD 432; Muhammad Rafiq. v. Nasir Farooq 1986 MLD 155 and Badlu v. Revenue Assistant/A.S.C. 1989 CLC 144 ref.

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

----S. 2---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11---Mukhbari application---Such application was not competent after the repeal of the Settlement Laws.

Tharag v. A.C. 1985 CLC 1871 ref.

----S. 41 ---Bona fide purchaser---Rights of--Rights of bona fide purchaser for value are protected under S.41 of Transfer of Property Act, 1882. [p. 25061 C

(d) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11---Verification of claim--Allegation of verification of claim through fraud---Verification of claim through fraud, could not have been questioned under Ss.10 II of Displaced Persons (Land Settlement) Act, 1958.

Muhammad Yaqoob and others v. Nazar Khan and others 1983 SCMR 1252 ref.

(e) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Cancellation of allotment---Principle of natural justice---Violation of---On Mukhbari application filed by the respondent, Settlement Authorities cancelled the allotment made in favour of the petitioner---Before the petitioner could be served or appear before the Authorities, the evidence on behalf of Mukhbari had already been recorded--Petitioner had no opportunity of participating in the proceedings adequately as he could not cross-examine the witnesses produced before the Authorities --- Validity-Contradict of proceedings was in violation of principles of natural justice---Case put up by the respondent was not confidence-inspiring and the same disclosed his mala fide approach--Where the respondent had earlier acknowledged the title of the petitioner, subsequently he had no locus standi to challenge the certified claim of the predecessor-in-interest of the petitioner on any ground---Settlement Authorities had no jurisdiction to entertain any such application---Order of cancellation of allotment passed by the Authorities was. set aside in circumstances.

Qutab Muhammad v. Settlement Commissioner (Lands) and another 1993 CLC 1840; Muhammad Sadiq v. Settlement Commissioner and another 1983 CL C 2550; lqbal Ahmad and another v. Settlement Commissioner (Lands) and others 1992 CLC 1719; Badlu v. Revenue Assistant/A.S.C. 1989 CLC 144; Mst. Attari through her Legal Heirs v. Badlu through his Legal Heirs and another 1985 CLC 780; Babu Khan v. Barkat Bibi and others 1983 SCMR 1098 and Muhammad Akbar and others v. The State 1986 SCMR 489 ref.

M. Rahim for Petitioner.

M-M. Bhatti for Respondent No. 3, Date of hearing: 11th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2507 #

2001 Y L R 2507

[Lahore]

Before Sheikh Abdur Razzaq, J

SHABBIR HUSSAIN alias SHERA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.206/B of 2001)BWP, heard on 6th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/109/34‑‑‑Bail‑‑‑Accused according to F.I.R. had only driven away the main accused on his motorcycle from the place of occurrence after the incident‑‑‑Said motorcycle was not recovered from the accused‑‑Main accused had been arrested and was. in judicial lock‑up‑‑‑No other overt act in the commission of the offence had been attributed to the accused‑‑‑Some Investigating Officers had also found the accused innocent in investigation‑‑‑Allegation against accused needing further probe as envisaged by S.497(2), Cr.P.C. he was admitted to bail accordingly.

Hassan Gul and another v. State and another PLJ 1999 Cr.C. (Peshawar) 773; Aziz v. The State 2001 PCr.LJ 214; Abdullah alias Malli v. State PLJ 1999 Cr.C. (Lahore) 468; Khuda Bux Bozdar v. The State 1999 MLD 172; Chiragh Masih v. The State 1998 PCr.LJ 287; Muhammad Arif Hussain v. The State 1999 MLD 939 and Akhtar Ali v. The State 1998 Cr.L.J 224 ref.

Khurram Khizar Khan for Petitioner.

Abdul Ghani for the State.

Date of hearing: 6th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2512 #

2001 Y L R 2512

[Lahore]

Before Mian Hamid Farooq, J

Mst. KHURSHID BEGUM ‑‑‑ Petitioner

versus

MAJEED AHMAD KHAN through Legal Heirs and others‑‑‑Respondents

Civil Revision Petitions Nos.1171 and 1172 of 2001, decided on 7th August, 2001.

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

‑‑‑‑O.XLI, R.19 & S.115‑‑‑Restoration of appeal against costs‑‑‑Failure to fix period for payment of costs‑‑‑Appellate Court restored the appeal of the petitioner against the costs but the petitioner failed to pay the costs‑‑‑Appeal was dismissed by the Appellate Court on such failure ‑‑‑Conetntion of the petitioner was that the Appellate Court did not fix any date for the deposit of the costs and she was ready to deposit the costs‑‑Validity ‑‑‑Where no period for the payment bf costs was fixed by the Appellate Court while ordering for restoration of appeal and the petitioner was ready and willing to pay the costs, order of dismissing of appeal passed by appellate Court was not sustainable‑‑‑High Court, in exercise of jurisdiction under 5.115, C. P. C. set aside the order passed by the Appellate Court‑‑‑Revision was allowed in circumstances.

Qamar Zaman and others v. Musamir Shah 2000 SCMR 1730 fol.

(b) Administration of justice‑‑‑

‑‑‑‑Technicalities‑‑‑Lis should not be knocked out on technical grounds but endeavours of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non‑suited on mere technical grounds.

Malik Abdul Wahid for Petitioner.

Nemo for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 2514 #

2001 Y L R 2514

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD RAFIQ‑ ‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1213‑M of 2000/BWP, heard on 6th February, 2001

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

‑‑‑‑S. 382‑B‑‑‑Benefit of 5.382‑B, Cr.P.C., refusal of‑‑‑Court must give reasons for declining the benefit of 5.382‑B, Cr.P.C. to the accused.

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

‑‑‑‑Ss. 382‑B & 561‑A‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Benefit of S.382‑B, Cr. P. C., extension of‑‑‑Appellate Court while dismissing the appeal of accused had made an observation in its judgment which clearly spoke of its intention and the reasoning for not extending the benefit of 5.382‑B, Cr. P. C. to him and it showed that the Appellate Court did not consider it proper to extend the said benefit‑‑‑Petition was dismissed accordingly.

Hakim Khan v. The State 1994 PCr.LJ 873; Ghulam Murtaza v. The State PLD 1998 SC 152; Javed Iqbal v. The State 998 SCMR 1539 and Muhammad Saleem v. i.e. State 1996 PCr.LJ 1598 ref.

Ch. Abdul Ghaffar Bhutta for Petitioner.

Saleem Nawaz Abbasi, Asstt. A.‑G........Rate.

Date of hearing: 6th February, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2516 #

2001 Y L R 2516

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD NAWAZ‑‑‑Petitioner

versus

ISLAM‑UD‑DIN and 9 others‑‑‑Respondents

Civil Revision No. 1679/D of 1989, heard on 18th June, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑Specific performance of agreement to sell‑‑‑Agreement‑‑‑Onus to prove‑‑‑Conflict between contents of plaint and evidence of plaintiff‑‑‑Failure to bring the agreement to sell on record‑‑‑Judgment and decree passed by Trial Court in favour of the plaintiff were set aside by the Appellate Court and the snit filed by the plaintiff was dismissed‑‑Validity‑‑‑Where the plaintiff did not know the exact name of one of the owners of the suit land and parentage of the other owner, the alleged purchase of the suit land could not be believed‑‑‑Findings arrived at by the Appellate Court on the basis of evidence on record, did not call for any interference as the same were in accordance with law‑‑Appellate Court had rightly reversed the findings of the Trial Court as the same were against the evidence on record.

Shahid Hussain Qadri for Petitioner.

Muhammad Nusrat for Respondent.

Date of hearing: 18th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2526 #

2001 Y R 2526

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD AYAZ KHAN Petitioner

versus

ABDUL RAUF and 8 others Respondents

Constitutional Petition No.6653 of 1995. heard on 14th June, 2001

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

‑‑‑‑S.115 & 0.1, R.10‑‑‑Revision‑‑‑ "Case decided "‑‑‑Rejection of application under O.I, R.10, C. P. C. is "case decided " and can be assailed through a revision petition.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑New plea‑‑‑Where a plea was not urged before the Courts below, such plea was not allowed to be raised in Constitutional petition.

‑‑‑‑Art.l99‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Constitutional petition‑‑Maintainability‑‑‑Assailing of order passed under 5.115, C. P. C. in Constitutional petition ‑‑‑Validity‑‑‑Revisional order cannot ordinarily be challenged through a Constitutional petition, particularly when no question of law is involved‑‑‑Where revisional order appears to be without lawful authority and jurisdiction and patently unlawful, only then jurisdiction of High Court under Art. 199 of the Constitution may be invoked, in the present case, Courts below having the jurisdiction to decide the matter, Constitutional petition was not maintainable.

Muhammad Khan and 6 others v. Mst. Ghulam Fatime and 12 others 1991 SCMR 970; Ghulam Hussain v. Malik Shehbaz Khan 1985 ' SCMR 1925; Muhammad Bakhsh v. Ghulam Hussain 1989 SCMR 443 and Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322 ref.

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

‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑Concurrent findings of fact by the Courts below‑‑‑Such judgments on the question of fact are normally and generally immune from scrutiny in petitions filed under Art. 199 of the Constitution.

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

‑‑‑‑O.I, R.10 & S. 115‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Concurrent findings of fact by the Courts below‑‑‑Application under 0.1, R.10, C. P. C.; was dismissed by Trial Court and order was maintained by the Lower Appellate Court in exercise of revisional jurisdiction‑‑Validity‑‑‑Judgments of both the Courts below did not suffer from any jurisdictional defect‑‑‑High Court declined to interfere with the same in exercise of its jurisdiction under Art. 199 of the Constitution.

Muhammad Yunus Khan and 12 others v. Government of N.‑W.F.P. through Secretary and others 1993 SCMR 618; Mrs. Aziz Fatima and 3 others v. Mrs. Rehana Chughtai and 3 others 2000 CLC 863 and Haji Gul Payao Din v. Hamayun Saifullah Khan and 10 others PLD 1995 SC 642 ref.

Ch. Habib Ullah Nehang for Petitioner.

Mian Shamsul Haq Ansari and Wajahat Hussain Langah for Respondent No. 1.

Syed Muhammad Ali Shah Mir for Respondents Nos.6, 7‑A to 7‑D.

Nemo for the Remaining Respondents.

Date of hearing: 14th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2531 #

2001 Y L R 2531

[Lahore]

Before Ch. Ijaz Ahmad, J

BARKAT ALI and 8 others‑‑‑Petitioners

versus

MEMBER (JUDICIAL), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No. 1612 of 1988, heard on 19th October, 2000.

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

‑‑‑‑Ss.53 & 164‑‑‑Salt for declaration by person aggrieved by an entry in record of right‑‑‑Pending proceedings in the Civil Court in respect of title and validity of gift in respect of suit property, the revenue proceedings were initiated regarding a dispute pertaining to inheritance, coupled with the controversy over the validity of the gift‑‑Collector before whom said proceedings were initiated directed the parties to seek their remedy through the Civil Court of competent jurisdiction as was envisaged under S.53 of West Pakistan Land Revenue Act, 1967‑‑‑Additional Commissioner and then Member, Board of Revenue concurrently overruled order of the Collector ‑‑‑Validity‑‑ Disputed question of fact regarding title and gift could not be decided by Revenue Officer by way of mutation proceedings which were summary in nature‑‑‑Parties, in such‑like cases ought to be directed to approach the Civil Court‑‑‑Order of Collector was in accordance with the mandatory provisions of S.53 of West Pakistan Land Revenue Act, 1967, whereas orders passed by Additional Commissioner and Member, Board of Revenue were result of misreading or non reading of the record‑‑‑Revenue heirarchy had no authority to correct the long‑standing entries in the Revenue Record in summary proceedings‑‑‑Member, Board of Revenue had countersigned the order of Additional Commissioner which was not permissible in the eyes of law‑‑‑Order passed by Member, Board of Revenue in revision did not contain the reasons as he did not take into consideration relevant provisions of law‑‑ Case was remanded to the Member, Board of Revenue to decide the revision in accordance with law after applying his independent mind.

Ghulam Mohy‑ud‑Din's case PLD 1964 SC 829 ref.

Tariq Masud for Petitioners.

Bahadur Ali for Respondents.

Date of hearing: 19th October, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2535 #

2001 Y L R 2535

[Lahore]

Before Karamat Nazir Bhandari, J

TAHIR M,ALIK ‑‑‑ Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and another‑‑‑Respondents

Writ Petition No.9099 of 2000, decided or 26th April, 2001.

Educational institution‑‑‑

‑‑‑‑ Candidate was not allowed to take the examination on the ground that he had not completed the required percentage of attendance of lectures‑‑‑High Court vide its interim order, allowed the candidate to provisionally take the examination with the direction that participation of the candidate in the examination would not entitle him to the declaration of his result unless the Constitutional petition filed by the candidate was decided in his favour on merits‑‑College Principal had acted inconsistently as he had issued contradictory certificates/letters with regard to lectures attended by the candidate‑‑‑Candidate had passed the examination‑‑‑Except for shortage of lectures no other inherent disqualification was found in the candidate which could distentitle him from taking the examination ‑‑‑ Benefit of inconsistent and contradictory certificates/ letters of the principal of the college would be given to the candidate‑‑‑High Court without deciding the controversy as to whether the candidate suffered shortage of lectures or not, directed the Authority to finally announce the result of the examination.

Mian Shahid lqbal for Petitioner.

Sheikh Shahid Waheed for Respondent No.1 .

Muhammad Amin, Asstt. A.‑G., Punjab with Shakeel Ahmed, Senior Clerk, F.C. College, Lahore for Respondent No. 2.

Dates of hearing: 19th and 20th April, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2560 #

2001 Y R 2560

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

NASIR MAHMOOD‑‑‑Petitioner

versus

AISHA and others‑‑‑Respondents

Writ Petition No.11541 of 1993, decided on 10th August, 2001.

West Pakistan Family Courts Act (XXXV of 1964)___

‑‑‑‑Ss. S & Sched., 14 & 19‑‑‑Court Fees Act (VII of 1870), Ss. 7(11) & 13‑‑‑Suit for maintenance‑‑‑Appeal‑‑‑Court fee payable‑‑Plaintiff in her suit claimed maintenance at the rate of Rs. 2, 000 per month but the Trial Court granted maintenance at the rate of Rs.1,000 per month‑‑‑Appellate Court, on appeal, instead of considering the rate of maintenance as granted by the Trial Court, directed the appellant to make up deficiency of court fee on memorandum of appeal on the basis of the subject‑matter of the suit which was Rs. 2, 000 per month and the appellant paid the required court fee and the Appellate Court directed the appellant to pay maintenance at the rate of Rs.800 per month too the plaintiff till she attained majority‑‑Court‑fee on the memo of appeal against order of maintenance, would be on the subject‑matter in dispute in appeal and not on the subject‑matter in dispute of claim in suit filed by the plaintiff‑‑ Appellant could be refunded court fee after deducting the court fee on the subject‑matter in dispute in appeal which was Rs.1,000 per month as was granted by the Trial Court and was appealed against.

Muhammad Shafqat Baig v. Ch. Mazhar Hussain Minhas, Additional District Judge, Rawalpindi and others 1995 SCMR 1720; Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161; Muhammad Khalil v. Mst. Zahida Parveen and others PLD 1991 Lah. 51; Abdul Qayyum v. Additional District Judge and, others 1992 MLD 1657 and Naqash Ahmad and another v. Muhammad Sharif and another PLD 1996 Lah. 436 ref.

Iftikhar Ahmad Dar for Petitioner.

Nemo for Respondents.

Dates of hearing: 3rd and 8th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2563 #

2001 Y R 2563

[Lahore]

Before Muhammad Sayeed Akhtar, J

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE‑‑‑Petitioner

versus

EHSAN‑UL‑HAQ and 5 others‑‑‑Respondents

Constitutional Petition No.1583 of 2001 decided on 16th May, 2001.

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

‑‑‑‑Ss. 2 & 3-‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Allotment of land‑‑‑Implementation of order‑‑‑Aggrieved person ‑‑‑Laches‑‑ Allotment of land in favour of the allottees was not given effect to in the Revenue Record and the land remained in the name of Central Government‑‑‑Allottees approached the Revenue Authorities for implementation of the allotment order in their favour, but could not succeed and on filing Constitutional petition their case was remanded for decision of the same after providing full opportunity to the parties‑‑‑Land in dispute having already been sold out to the Health Department for construction of a hospital, concerned Authority in compliance of order of the High Court decided that allottees of land be allotted any other 'available urban evacuee land against their pending units‑‑‑Such order was challenged in Constitutional petition by Member, Provincial Board of Revenue on the ground that the same was without jurisdiction for the Authority passing the said order as Notified Officer had no jurisdiction to order allotment against pending units‑‑‑Validity‑‑‑Constitutional petition was misconceived as the petitioner was not aggrieved person and had no locus standi to file the petition‑‑Allottees had been trying since 1961 for the implementation of the allotment orders earlier passed in their favour and if any property was allotted against their pending units, the petitioner, who was a public functionary or for that matter any other person was not likely to suffer any loss‑‑‑Units had not been allotted against a pending claim but the Authorities had been directed to implement the allotment order‑‑‑Constitutional petition has been filed after four years and nine months and no reason had been given for such delay‑‑‑Petition otherwise suffering from laches, was dismissed.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 and Dr. M.S. Qureshi v. West Pakistan Government and another PLD 1966 (W.P.) Lah. 825 ref.

(b) Administration of justice‑

‑‑‑‑Public functionary must act honestly, fairly and without any fear in performing his duties and must act in benevolent manner and must not bring in his personal feelings in the performance of his quasi‑judicial functions.

Ahmad Awais, Advocate

YLR 2001 LAHORE HIGH COURT LAHORE 2567 #

2001 Y L R 2567

[Lahore]

Before Abdul Shakoor Paracha, J

Rana MUHAMMAD RAMZAN‑‑‑Petitioner

versus

Malik SAEED HUSSAIN and another‑‑‑Respondents

Civil Revision No.1378 of 2001, decided on 20th June, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 39 & 42‑‑‑Suit for declaration and cancellation of sale‑deed‑‑‑Plaintiff had sought cancellation of sale‑deed allegedly having executed by him in favour of defendants on the ground that same was the result of forgery and fabrication‑‑‑Onus was on the plaintiff to prove that the sale‑deed was result of forgery and fabrication, but he failed to discharge that onus by oral or documentary evidence‑‑‑Documentary evidence produced by the defendants had proved execution of registered sale‑deed‑‑Plaintiff did not deny his signature on the sale‑deed‑‑‑Simple verbal statement making allegations without giving details of fraud in the plaint, could not take the place of proof‑‑In absence of any misreading or non‑reading of evidence by Courts below, their concurrent findings of fact that registered sale‑deed carried presumption of truth and that the plaintiff had failed to prove allegations of fraud and fabrication, could not be interfered with in revisional jurisdiction of High Court.

Sh. Khalil ‑ur‑Rehman for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 2579 #

2001 Y L R 2579

[Lahore]

Before Nasim Sikandar, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2014‑B of 2000, decided on 21st September, 2000.

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 declared innocent in the investigation conducted by the police‑‑‑Delay of six months in registering case against the accused had not properly been explained and there was no direct evidence/witness of the alleged occurrence‑‑Accused was on judicial remand and the challan had not been submitted‑‑‑Completion of the trial being not in sight, the accused could not be allowed to be detained for an indefinite period‑‑‑Accused was admitted to bail, in circumstances.

Rana Muhammad Asif Saeed for Petitioner.

Muhammad Naseem Rashid for the State.

Date of hearing: 21st September, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2580 #

2001 Y L R 2580

[Lahore]

Before Riaz Kayani, J

MUHAMMAD ARIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2300‑B of 2000, decided on 17th October, 2000.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.364/302/201 /148/149‑‑‑Bail, grant of‑‑Trial had commenced, two prosecution witnesses had been examined, but their crossexamination stood reserved as the defence counsel was absent‑‑‑On another date of hearing five prosecution witnesses were present, but they could not be examined due to non‑availability of the defence counsel‑‑Delay in the trial was being occasioned due to the conduct of defence counsel‑‑‑Trial having already commenced, prosecution witnesses having been examined, the accused instead of pursuing the application for bail, should concentrate his full attendance on the progress of his case before the trial Court.

Muhammad Ismaeel v. Muhammad Rafique and another PLD 1989 SC 585; Mahmood Ahmad and others v. The State 1995 SCMR 1242 and Muhammad Sadiq and others v. The State 1980 SCMR 203 ref.

Sardar Latif Khan Khosa for Petitioner

Muhammad Taqi Khan for the Complainant.

Miss Tasnim Ameen for the State.

Date of hearing; 17th October, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2584 #

2001 Y L R 2584

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

ZAHID MAQBOOL and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.470‑B of 1999, decided on 16th March, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/l48/149‑‑‑Bail, grant of‑‑‑No active role having been attributed to the accused except ineffective firing, case against him fell within the ambit of further inquiry‑‑Accused was enlarged on bail, in circumstances.

Muhammad Taqi Khan for Petitioners.

Ch. Nazir Ahmad for the State.

Date of hearing: 16th March, 1999.

YLR 2001 LAHORE HIGH COURT LAHORE 2585 #

2001 Y L R 2885

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD AYUB ZAFAR‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through District Collector, Sahiwal and 4 others‑‑‑Respondents

Constitutional Petition No. 9343 of 1998, heard on 2nd April, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Allotment of plot to the industrial labourer tinder the Scheme‑‑‑Petitioner being an industrial labourer applied alongwith others for allotment of plot under the Scheme‑‑Application of the petitioner which was found in order in all respects, was accepted for balloting and on inviting objections none objected to the application of the petitioner‑‑‑Allotment Committee, after completing all necessary formalities, conducted the balloting of lots and plot in question fell to the name of petitioner through draw and his name as a successful candidate was displayed on the notice board, but he was neither given allotment order nor possession slip was issued to him whereas all other successful allottees were issued the said documents‑‑‑Authority refused to issue the documents to the petitioner contending that policy of allotment had subsequently been changed‑‑‑Authorities which had admitted the petitioner to be a successful allottee of the plot in dispute, could not go back upon their commitment owing to .subsequent change in policy when the subsequent change in policy did not have retrospective effect upon the right of the petitioner‑‑‑High .Court, in exercise of its Constitutional jurisdiction, directed the Authority to issue allotment order and possession slip to the petitioner, in respect of plot duly, allotted to him.

Rafique Ahmad Qureshi for Petitioner.

Muhammad Qasim Khan, Asstt. A. G. for Respondents.

Date of hearing: 2nd April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2587 #

2001 Y L R 2587

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD SHARIF alias MAQBOOL AHMAD‑‑‑Petitioner

versus

THE STATE ‑‑‑ Respondent

Criminal Miscellaneous Nos. 1423‑B and 1380‑B of 2001, decided on 12th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑ ‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2) & 13/14‑‑‑Bail, grant of‑‑‑No eye‑witness of the occurrence except the complainant who himself had been challaned‑‑‑No medical evidence was brought in support of the version of the complainant who was stated to be fugitive from law‑‑‑Delay of 8 days in lodging the F.I.R.‑‑‑Question of guilt of the accused persons requiring further inquiry they were granted bail.

Arshad Ali Chohan for Petitioner.

Rana Qamar Iqbal for the State.

Date of hearing: 12th July, 2001.

2001 Y L R 2601

[Lahore]

Before Zafar Pasha Chaudhary, J

AZHAR ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2643‑B of 2000, decided on 8th June, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/337‑F(iv)/452/34‑‑‑Bail, grant of‑‑‑No offence under 5.324, P.P.C. was constituted against the accused because the single shot had been attributed to the accused which was not on the vital part of the injured‑‑‑No empty was recovered front the place of occurrence which had primarily negated the prosecution version that there was indiscriminate firing‑‑Offences against the accused under other provisions of Penal Code including S.452, P. P. C., were not hit by prohibitory clause of S.497, Cr.P.C.‑‑‑Accused was in the judicial lock‑up for the last more than six months‑‑Accused who had no criminal antecedents, could not be kept in confinement as a matter of punishment‑‑‑Bail was granted to the accused.

Muhammad Taqi Khan for Petitioner.

Mian Muhammad Tariq for the State.

Mazhar Iqbal Sindhu for the Complainant.

Date of hearing: 8th June, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2602 #

2001 Y L R 2602

[Lahore]

Before Mrs. Fakhr‑un‑Nisan Khokhar, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.709‑B of 2001, decided on 9th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4‑‑‑Bail, grant of‑‑‑Accused was in the judicial lock‑up for the last about six months and still the trial was not in sight ‑‑‑Challan was sent up to the Court‑‑‑Bail was granted to the accused.

Rana Muhammad Asif Saeed for Petitioner.

Date of hearing: 9th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2615 #

2001 Y L R 2615

[Lahore]

Before Amir Alam Khan, J

MUHAMMAD SAEED and 20 others‑‑‑Petitioners

versus

MUHAMMAD and 86 others‑‑‑Respondents

Civil Revision No.877 of 2001, decided on 25th April, 2001.

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

‑‑‑‑S.3‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Inheritance‑‑‑Last male holder of suit land died in 1922 and as his family was governed by custom, his land was mutated in the name of his widow and also widow of his son in equal shares as limited owners‑‑‑Widow of the last male holder of suit land having died, her share was also allocated to the widow of son of last male holder of suit land in 1932‑‑ Limited estate held by the widows under the custom was terminated on promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962‑‑‑Widow of son of last male holder of suit land sold land in 1968 and plaintiffs who claimed their shares in land being the collaterals of the deceased last male holder of suit land, who had never previously challenged sale of land by the widow, filed suit after lapse of twenty years from said sale which was dismissed concurrently by Courts below being barred by time‑‑‑Plaintiff failed to satisfy the Court that the suit was within limitation or that both Courts below had committed any illegality in non‑suiting them on the ground of limitation‑‑Concurrent findings of Courts below could not be interfered with by the High Court in exercise of its revisional jurisdiction.

Riaz Hussain Khan for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 2618 #

2001 YLR2618

[Lahore]

Before Bashir A. Mujahid, J

GHULAM SHABBIR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1666/B of 2001, decided on 15th August, 2001.

Criminal Procedure Code (V of 189 °)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (JLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Supplementary statement was got recorded after a week of registration of criminal case, wherein the petitioner was. suspected as an accused by the complainant‑‑‑No evidence had been collected during the investigation, worth consideration to connect the accused with the alleged crime‑‑‑Only evidence against the accused was of extra judicial confession of co‑accused which could not be used against the accused‑‑‑Accused having been declared innocent by the Investigating Officer his case fell within the ambit of further inquiry entitling him to grant of bail.

Rana Muhammad Asif Saeed for Petitioner.

Sh. Nasim Rashid for the State.

Date of hearing: 15th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2619 #

2001 Y L R 2619

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1352-B of 2000, decided on 11th July, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/34/109---Bail, grant of---Record had shown that the accused was not present at the place of occurrence at the relevant time and he had not been attributed any injury to any person---Only allegation levelled against the accused was in respect of hatching a conspiracy/abetting the co-accused for commission of the alleged offence---Accused though had been nominated in the F.LR. as an abetter but the details disclosed in the F.I.R. did not mention any source of said information---Prosecution was not possessed of any other material to support the allegation against the accused---Witnesses of conspiracy who overheard hatching of conspiracy two days prior to the incident kept quiet meanwhile till the occurrence took place---Worth and evidentiary value' of such piece of evidence could be considered at the time of trial---Contention of the complainant that principal accused still being fugitive from law, grant of bail to him would impede and hamper the efforts of the police to apprehend him was repelled, because one accused could not be held as a hostage for the arrest of the other---Case against the accused being that of further inquiry, bail was granted to him.

Arshad Ali Chauhan for Petitioner.

Altaf - Ibrahim Qureshi for the Complainant.

Muhammad Aslam Budh for the State.

Date of hearing: 11th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2620 #

2001 Y L R 2620

[Lahore].

Before Karamat Nazir Bhandari, J

AISHA OBAID‑‑‑Petitioner

versus

BOARD OF INTERMEDIATE & SECONDARY EDUCATION, LAHORE through Chairman and 4 others‑‑‑Respondents

Writ Petition No.4752 of 2001, heard on 21st May, 2001.

Educational institution‑

‑‑‑‑ Using unfair means in examination‑‑Punishment for‑‑‑Candidate having been found using unfair means in examination, the Disciplinary Committee of the Institution debarred him from taking three examinations‑‑‑Appellate Committee, in appeal, reduced said punishment to debarring the candidate for two examinations‑‑Revisional Authority/Chairman rejected the revision of the candidate and restored order earlier passed by the Disciplinary Committee whereby the candidate was debarred from taking three examinations ‑‑‑ Revisional Authority enhancing the punishment by restoring earlier order of Disciplinary Committee did not issue any show‑cause notice to the candidate‑‑‑Validity‑‑Authority of the Revisional Committee was restricted to examine the correctness and vires of the order of Appellate Committee whereby punishment of the candidate was reduced ‑‑‑Revisional Committee if on its own motion felt that reduction of sentence by the Appellate Committee was not proper, it could reverse the same only after notifying the candidate but no notice was sent to the candidate‑‑Candidate having been condemned unheard, order of Revisional Committee, was declared illegal by the High Court, however it was left open to the Revisional Authority to proceed afresh if so advised.

Mian Shahid Iqbal for Petitioner.

Sh. Shahid Waheed for Respondents.

Date of hearing: 21st May, 1001.

YLR 2001 LAHORE HIGH COURT LAHORE 2622 #

2001 Y L R 2622

[Lahore]

Before Muhammad Farrukh Mahmud, J

ALLAH BUX‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1872/13 of 2001, decided on 23rd August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Surrender of Illicit Arms Act (XXI of 1991), S.7‑‑‑Bail‑‑‑Recovered weapon was neither sealed at the spot nor was sent to the expert to find out if the same was workable or not‑‑‑Although a rifle was recovered from the accused, yet instead of bullets, cartridges were found alongwith the same‑‑‑No public witness had been associated with the recovery proceedings which was flagrant violation of the provisions of S.103, Cr.P.C.‑‑‑Allegation against the accused, thus, needed further probe within the purview of S.497(2), Cr.P.C‑‑‑Accused was admitted to bail accordingly.

Muhammad Ishaq Sahota for Petitioner.

Sh. Muhammad Raheem for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2623 #

2001 Y L R 2623

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL HAMEED and another‑‑‑Petitioners

versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and another‑‑‑Respondents

Writ Petition No.328 of 2001/BWP, heard on 3rd May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 392 & 411‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Award of Government remissions to accused‑‑‑Accused admittedly had been charged and convicted under 5.392, P.P.C. and not under S. 395, P. P. C. and the remission admissible to accused of an offence under 5.392, P. P. C. had to be extended to them‑‑‑Mere fact that the occurrence related to a Bank did not mean that the offence charged and proved against the accused fell under 5.395, P. P. C. and not under S. 392, P. P. C. ‑‑‑Accused, thus, were entitled to the remissions granted by the Government vide notifications issued from time to time ‑‑‑Co‑accused who had not filed the Constitutional petition was also found entitled to the said remissions‑‑Superintendent of the Jail concerned was consequently directed to grant remissions to the accused as well as to the co‑accused‑‑Constitutional petition was accepted accordingly.

Chaudhry Abdul Ghaffar Bhuttoa for Petitioners.

N.A. Farazi for Respondents.

Date of hearing: 3rd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2625 #

2001 Y -L R 2625

[Lahore]

Before Mian Allah Nawaz, CJ

Mrs. BINA RIAZ---Petitioner

versus

DEFENCE SECRETARY---Respondent

Writ Petition No. 1978 of 1998, decided on 29th March, 2000.

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

----Art.199---Writ of mandamus ---Possessory relief, grant of---Principles---Constitutional jurisdiction is extraordinary and equitable in nature---Such jurisdiction can be exercised in cases where the petitioner can show undisputed title in the property---Where title of the petitioner is open to inquiry, the possessory relief cannot be granted by way of mandamus---High Court, in Constitutional jurisdiction, is not required to decide factual controversies and cannot ask the parties to lead 'evidence/material in support of their respective claims, as the same is the sole function of a Court of plenary jurisdiction.

Shari Schan Lal v. Union of India AIR 1957 SC 529; State of Orissa v. Ram Chandra AIR 1964 SC 685; 1997 SCMR 1687 and 1998 SCMR 2268 ref.

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

----Art.l99---Constitutional petition---Factual controversies---Restoration of possession---Disputed property it-as originally leased to a religious organisation---Petitioner claimed to be the owner of disputed property on basis of registered lease deed executed in favour---Whole transaction rested on gene power of attorney executed by the religious organisation and then transfer of the property in the name of the person who executed lea deed in favour of the petitioner --- Cantonment Board forcibly took over the possession of the property as all the documents relied upon the petitioner mere prepared by erring employees of Cantonment Board and a criminal case was also got registered by the Board against the persons involved in the same---Effect---Nothing could be concluded without evidence and without providing right of cross-examination to the parties, that the lease deed was validly executed in favour of the petitioner---High Court in Constitutional jurisdiction had no material to decide the claim of the petitioner, therefore, writ of mandamus it-as decline,.'--Complicated question of law and fact haring been raised in the case the same could only be decided by the Court of plenary jurisdiction.

Anjuman-e-Ahmadia, Sar-odlia v. The D.C., Sargodha and others PLD 1966 SC 639 and Raja Shah and' 38 others v. Nazar Hussain Shah and 16 others PLD 1976 Lah.658 ref.

----S.52---Cantonment Land Administration Rules, 1937---General Land Register--Entries---Presumption in favour of entries--No provision is available under the Cantonment laws to show un controvertible presumption of correctness attached to the entries of General Land Register- Only analogy which can be pressed into service is the provision of S.52 of West Pakistan Land Revenue Act, 1967, and under the same entries made in record of rights in accordance with law are clothed with a rebuttable presumption of truth---Such entries are presumed to be true unless the contrary is proved or new entries lawfully substituted therefor.

Bashir Ahmad Ansari for Petitioner.

Muhammad Munir Peracha for Respondent.

Dates of hearing: 6th and 7th March, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2631 #

2001 Y L R 2631

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

HAZOOR BAKHSH‑‑‑Appellant

versus

THE STATE‑‑Respondent

Criminal Appeal No.8 of 1997, heard on 26th July, 2001.

Penal Code (XLY of 1860)‑‑‑

‑‑Ss.302 & 322‑Appreciation of evidence‑F.I.R. was promptly lodged‑‑‑Ocular account was corroborated by medical evidence‑‑‑Case was of single accused and the accused had acted in a daredevil manner‑‑Deceased constable who had come to the place of occurrence in order to arrest the accused and others against whom warrants of arrest were issued by the Court of competent jurisdiction, had no enmity with the accused‑‑‑Both prosecution witnesses were independent witnesses and had no reason to falsely implicate the accused as no previous background of enmity was found between them‑‑‑Accused having murdered two innocent persons, there was no mitigating circumstance in his favour for awarding him lesser sentence‑‑‑Conviction and sentence awarded to the accused by the Trial Court were maintained.

Muhammad Azam Javed for Appellant (at State expenses).

Kamran Bin Latif for the State.

Date of hearing: 26th July, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2634 #

2001 Y L R 2634

[Lahore]

Before Muhammad Khalid Alavi, J

EIDOO KHAN‑‑‑Petitioner

versus

ABDUL MAJEED and 3 others‑‑‑Respondents

Civil Revision No. 196‑D of 1988, decided on 22nd June, 2001.

(a) Interpretation of document‑‑‑

‑‑‑‑ Ascertaining of real import of the document of an agreement‑‑‑Determination of question as to whether the document was agreement to sell or mortgage deed‑‑ Principles‑‑‑Nature of the document was to be gathered from what in fact was the intention of the parties while entering into the agreement‑‑‑Not the form of expression, or the literal sense, which was to be given so much regard to find out the real meaning of the document which the transaction disclosed‑‑‑Court was to ascertain the real intention of the parties by looking at the substance and essence of the transaction and not form of the deed‑‑‑Even if tile deed called itself a mortgage but in its substance disclosed something other than the mortgage, then it was for the Court to decide as to what was the real import of the document.

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

‑‑‑‑S.58‑‑‑Mortgage deed ‑‑‑Prerequisites‑‑‑All the mortgages, under S.58 of .Transfer of

Property Act, 1882, can be made of a specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability‑‑‑Where all such ingredients of mortgage are missing in a document, such document cannot be termed as a mortgage deed.

‑‑‑‑S.12‑‑ Limitation Act (IX of 1908), Art.113‑‑‑Specific performance of agreement to sell‑‑‑Limitation‑‑‑No date was fixed for performance of the contract and the same was to be performed only when the defendant would receive the title document which was Permanent Transfer Deed in the present case‑‑‑Plaintiff had no knowledge about the issuance of Permanent Transfer Deed in favour of the defendants‑‑‑Contention of the plaintiff was that they came to know about the same after the attestation of the mutation in year 1980, whereafter they had been asking the defendants for the performance of the contract‑‑‑Validity‑‑‑Where no date was fixed for performance of the contract, limitation would start from the notice when the performance was refused‑‑‑Suit filed in the year 1982, after the plaintiff attained the knowledge of the fact of issuance of the Permanent Transfer Deed was filed within time in circumstances.

Inam Naqshband v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314 ref.

(d) Limitation Act (IX of 1908)‑‑

‑‑‑‑Art.113‑‑‑Performane of contract‑‑‑No date fixed‑‑‑Effect‑‑‑Where no date was fixed for the performance of the contract within the meaning of first clause of the third column of Art. T13 of Limitation Act, 1908, the case was not governed by first clause of the third column of Art.113 of Limitation Act, 1908.

(e) Contract Act (IX of 1872)‑‑

‑‑‑‑S.55‑‑‑Time as essence of contract‑‑‑Time is never considered to be essence of the contract in cases of immovable property.

(f) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 79‑‑‑Document‑‑‑Proof of‑‑‑One of the witnesses had died and the other was aged more than 100 years and has also lost his mental balance‑‑‑Scribe appeared and had proved the execution of the document‑‑‑Such document was admitted to be a proved document in circumstances.

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

‑‑‑‑S.22‑‑‑Decree for specific performance‑‑Discretionary relief‑‑‑Where the petitioners had been in possession of the suit property since 1963 and had also paid the entire sale price discretion was to be exercised in their favour.

(h) Specific Relief Act (I of 1877)‑

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement to sell ‑‑‑Maintainability‑‑Agreement to sell was proved to be executed in favour of the plaintiffs and they were put in possession of the land under agreement to sell‑‑‑Trial Court decreed the suit while the Appellate Court allowed the appeal filed by the defendant and suit of the plaintiffs was dismissed‑‑‑Validity‑‑‑Where the plaintiffs had no document of title in their favour, suit in the form of specific performance of contract was maintainable‑‑‑Judgment and decree passed by the Appellate Court were set aside by High Court in circumstances.

1987 CLC 795; 1982 SCMR 75; PLD 1958 Dacca 132; 1986 CLC 770 and PLD 1971 Lah. 199 ref.

Mian Habib‑ur‑Rehman Ansari for Petitioner.

Muhammad Naveed Hashmi for Respondents.

Date of hearing: 14th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2649 #

2001 Y L R 2649

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Shewani, JJ

TARIQ MEHMOOD‑‑‑Appellant

versus

THE STATE‑ ‑‑Respondent

Criminal Appeal No. 154 of 1997 and Murder

Reference No. 142 of. 1996, heard on 10th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Complainant who was real brother of the deceased resided at a distance of two miles from the place of occurrence and his presence on the spot was doubtful‑‑‑Statement of the complainant was not corroborated by any other piece of evidence‑‑‑Wife of the deceased, star witness and inmate of the house, was a natural witness and she had not supported the prosecution version‑‑‑No other eye‑witness was available in the case‑‑Statement of the complainant regarding recovery of the weapon of crime could not be believed after his presence on the spot was disbelieved‑‑‑Recovery of rifle having not been 'effected at the instance of accused, positive report of the Fire‑arm Expert was of no avail to prosecution‑‑‑Even otherwise, recovery of weapon of offence and the crime empty was a corroborative piece of evidence, but not a conclusive proof of involvement of accused, particularly when the eye‑witness account was disbelieved‑‑Accused was acquitted in circumstances.

Ch. Muhammad Iqbal for Appellant.

Inam Muhammad Asghar for the State.

Date of hearing: 10th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2653 #

2001 Y L R 2653

[Lahore]

Before Ijaz Ahmad Chaudhary, J

AFZAL AHMED SIDDIQUI‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary, Housing, Physical and Environmental Planning Department, Lahore and 2 others‑‑‑Respondents

Writ Petitions Nos.5386, 5598, 5596 and 10675 of 1992, decided on 19th July, 2001.

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

‑‑‑ Art.l99‑‑‑Constitutional jurisdiction‑‑Scope‑‑‑Cancellation of allotment of plots‑‑Past and closed transaction, re‑opening of‑‑Petitioners were allotted plots in a Housing Scheme, over which they raised construction after fulfilling legal formalities‑‑‑Minister subsequently issued direction to Department to take back possession of such plots after demolishing construction raised thereon‑‑Contention was that such direction was illegal and without lawful authority‑‑Validity‑‑‑Allotment of plots in favour of petitioners was a past. and closed transaction as they had made payment and had become lawful owners. thereof, thus, no action would be taken retrospectively‑‑‑Order passed on the direction of Minister without hearing the petitioners had no legal sanctity‑‑‑High Court accepted the Constitutional petition am restrained the Department form demolishing the construction raised by the petitioners or the plots.

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

‑‑‑‑Art.199‑‑‑Constitutional petition Cancellation of allotment of plots‑Petitioners were allotted plots in a Housing Scheme situated in front of vacant plot reserved for water works‑‑‑Conveyance deeds were executed in favour of the petitioners by the Department and after getting possession of plots, they constructed houses thereon‑‑Department subsequently on directive of Chief Minister proceeded to carve out plots from reserved area of Housing Scheme and allotted them to private respondents-‑‑Contention was that such allotments were made in violation of rules and Department had no authority to change space reserved for water works into residential plots affecting right of passage, air, sun and other amenities and facilities attached to residential quarters of petitioners‑‑‑Validity‑‑‑Department was duty bound to provide facilities to residents of the Scheme‑‑‑Respondents had paid price of allotted plots and had obtained possession thereof, which could not be cancelled on the ground of infringing right of air and sun etc. ‑‑‑High Court disposed of the Constitutional petition with direction to Department to provide space for water scheme, if possible.

Muhammad Sarwar Awan . for Petitioners (in W.Ps. Nos.538b, 5598 and 5596 of 1992).

Ch. Abdul Rashid for Petitioners (in W .P. No, 10675 of.1992).

Abdul Ghafoor, Deputy Director, ‑H&PP, Lahore.

Said Muhammad, District Housing Officer, Lahore.

YLR 2001 LAHORE HIGH COURT LAHORE 2656 #

2001 Y L R 2656

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MAHBOOB AHMED and another‑‑‑Petitioners

versus

DISTRICT RETURNING OFFICER, LAHORE and 6 others‑‑‑Respondents

Writ Petition No. 13922 of 2001, decided on 3rd August, 2001.

Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 39, 40 & 70‑‑‑Constitution of Pakistan (1973), Arts.l99 & 225‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Election of Nazim and Naib‑Nazim‑‑‑Notification of returned candidates for Nazim and Naib‑Nazim seats was challenged on the ground of having used unfair means in the election and tabulation of result in violation of Rr.39 & 40 of Punjab Local Government Elections Rules, 2000‑‑Validity‑‑‑Rule 70 of Punjab Local Government Elections Rules, 2000 was similar to Art. 225 of Constitution‑‑Questions of fact involved in the case required recording of evidence for their resolution, which could not be decided under Constitutional jurisdiction‑‑‑Petitioner could avail of alternate remedy by filing election petition, which was an exhaustive, equal and effcacious remedy‑‑‑High Court dismissed the petition as being not maintainable in circumstances.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 395; Asghar Ali v. Punjab Local Councils Election Authority, Lahore and 4 others 1999 SCMR 1123; Ghulam Rabbani v. Malik Ahmad Khan and others 1999 SCMR 152; 2000 SCMR 149 and 2000 SCMR 998 ref.

Muhammad Kazim Khan for Petitioners.

Dr. A. Bashir for Respondents Nos.3 and 4.

Ch. Muhammad Jahangir Wahlah, A. A.‑G.

YLR 2001 LAHORE HIGH COURT LAHORE 2660 #

2001 Y L R 2660

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD FAROOQ and another‑‑‑Petitioners

versus

Mst. MUSSARAT‑‑‑Respondent

Civil Revision No.1568 of 2000, heard on 28th June, 2001.

Gift‑

‑‑‑‑Mutation‑‑‑Validity‑‑‑Entire share of four sisters including the respondent was got transferred by petitioners' mother in her favour through a gift mutation, which she after one month transferred in favour of her two sons, the petitioners‑‑‑Respondent by civil suit challenged both the mutations being based on fraud and misrepresentation‑‑‑Trial Court decreed the suit‑‑‑Appellate Court dismissed the appeal filed by petitioners‑‑Validity‑‑‑No independent delivery of possession had taken place in favour of mother of the respondent, as such one of the vital ingredients of gift was lacking rendering both the mutations without any foundation‑‑‑Just one month after the alleged gift by sister, transfer of their entire share by mother in favour of her two sons had made the genuineness of transaction of gift as doubtful‑‑‑Concurrent findings of fact recorded by Courts below were based on sound reasoning, wherein no misreading of evidence or misapplication of law had occasioned‑‑‑Revision petition was dismissed having no substance.

Syed Farooq Hassan Naqvi for Appellant.

Ch. Atta Muhammad for Respondent.

Date of hearing: 28th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2661 #

2001 Y L R 2661

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD SIDDIQ‑‑‑Petitioner

versus

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN and another‑‑‑Respondents

Writ Petition No.43/R of 1982, decided on 31st May, 2001.

(a) Constitution of Pakistan (1973)‑‑

‑‑‑ Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Orders of Tribunal or Authority having exclusive jurisdiction are not normally interfered with in exercise of jurisdiction under Art. 199 of Constitution, except when it failed to exercise jurisdiction vested in it or exercised jurisdiction on wrong assumption of law and facts.

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

‑‑‑‑S.10(b)‑‑‑Evacuee trust property‑‑Determination .of question, whether property was evacuee trust property or not, would only be for the purpose of deciding question, whether Evacuee Trust Property Board was entitled to recover price of property from the Settlement Department.

‑‑‑‑S.10‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.4(1)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Evacuee property, validation of transfer‑‑‑Chairman, Evacuee Trust Board vide order, dated 27‑2‑1978 declared the property transferred in favour of petitioner as evacuee trust property, which order was affirmed by Revisional Authority‑‑‑Contention was that after having paid entire sale price and dues much before the target date viz. 30‑6‑1968 in accordance with agreement of association, petitioner had become absolute owner of property irrespective of issuance of Permanent Transfer Deed on 26‑7‑1969‑‑Validity‑‑‑After deposit of entire sale price and State dues, petitioner was no longer required to perform any other act necessary for issuance of Permanent Transfer Deed, which was merely a formality to confirm such deposit‑‑‑Once transfer price had been deposited before target date, the property for all intents and purposes stood transferred to transferee‑‑‑Petitioner could not be penalized for lethargic attitude of Settlement Department in issuing Permanent Transfer Deed‑‑‑Settlement Department had treated the property as its own under the Settlement Laws‑‑‑No foul play had been alleged against petitioner in respect of agreement of association or payment of sale price etc., thus, transfer in his favour would be deemed to be bona fide‑‑‑High Court accepted the petition and set aside the impugned orders in circumstances.

Mst. Bani and 5 others v. Government of Pakistan through Secretary, Ministry of Religious and Minority Affairs, Islamabad and 4 others 1999 SCMR 2927 and Bashir Ahmad Khan v. Pakistan PLD 1997 Lahore 423 rel.

Thal Development Authority through Administrator Thal, Bhakkar v. Khushi Muhammad and another PLD 1994 Lah. 108; Abdul Bari v. Khushi Muhammad and others 1994 CLC .1576; Mst. Hafeez Begum v. Assistant Administrator, Evacuee Trust Property and 11 others PLD 1983 Kar. 374 ref.

Muhammad Ameer Bhatti for Petitioner.

Mian Noor Muhammad for Respondents Nos. l and 2.

Date of hearing: 29th May, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2666 #

2001 Y L R 2666

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD IMRAN BARNI‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Ministry of Communication and Information, Islamabad and 4 others‑‑‑Respondent's

Writ Petition No.1475 of 2001, decided on 3rd August, 2001.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), O.XXIX, R.1‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑ Constitutional petition filed by Vice‑President of a registered Association‑‑‑ Competency‑‑‑ Articles of Association did not show that Vice‑President could file Constitutional petition on behalf of the Association ‑‑‑Resolution of Association authorising petitioner to file Constitutional petition on its behalf was neither attached with the petition nor the fact of having any such authority by Vice‑President was mentioned therein nor in his affidavit‑‑Constitutional petition having been filed in violation of O.XXIX, C.P.C. was not maintainable in circumstances.

Messrs Ideal Life Insurance Co. Ltd. and others v. Khair‑un‑Nissa A.G. Mirza 1980 CLC 1375; Millat Tractors Ltd. v. Ch. Tawakal Ullah NLR 1993 UC 54; Millat Tractors Ltd. v. Ch. Tawakal Ullah NLR 1991 AC 432; Messrs M. Siddique Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 684; Iftikhar Hussain Khan v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Phool Muhammad v. Abdul Ghaffar 1982 CLC 2575; Group Captain A.M. Murad and another v. Mushtaq Ahmed and 9 others PLD 1975 Kar. 327; Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lab. 381 and Messrs Standard Hotels (Pvt.) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413 rel.

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

‑‑‑‑O.XXIX, R.1‑‑‑Suit by or against Corporation or Company‑‑‑Person instituting a suit, may he be Director of Company, if not having any valid authority, is not competent to file the same‑‑‑Company cannot orally authorise another person to sign a plaint on its behalf and even subsequent ratification would not cure the illegality committed at the time of institution of suit, which is nonexistent and nullity in the eye of law‑‑Company has to show that it decided to institute a suit and authorised the signatory to do so.

Abu Bakar Safely Mayet v. Abbot Laboratories and another 1987 CLC 367; Punjab Zamindars Bank Ltd., LvAlpur v. Madan Mohan Singh and others AIR 1936 Lah. 321; Notified Area Committee, Okara v. Kidar Nadi and others AIR 1935 Lah. 345; Turner Marrison & Co. Ltd. v. Hungerford Investment Trust Ltd. AIR 1972 SC 1311 and Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 rel.

‑‑‑‑Art. 199‑‑‑Constitutional petition-‑Provisions of Civil Procedure Code, 1908 are applicable to proceedings arising out of Constitutional jurisdiction.

Hussain Bakhsh v, Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.

Raja Abdur Rehman for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 2670 #

2001 Y L R 2670

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Mian ANSAR HAYAT‑‑‑Petitioner

versus

PUNJAB MINERAL DEVELOPMENT CORPORATION through Managing Director and 4 others‑‑‑Respondents

Writ Petition No. 14900 of 2001, decided on 9th August, 2001.

(a) Administration of justice‑‑‑

‑‑‑‑One who seeks equity must come to the Court with clean hands.

(b) Mala fides‑‑‑

‑‑‑‑ General allegation of‑mala fides has no force in eyes of law.

Saeed Ahmed and others' case PLD 1974 SC 151 rel.

‑‑‑‑Art.l99‑‑‑Constitutional jurisdiction ‑‑Maintainability‑‑‑Enforcement of contract‑‑Constitutional jurisdiction cannot be invoked for enforcement of contract‑‑‑Aggrieved party as alternative remedy can either invoke arbitration clause or file civil suit or appeal under the rules before Competent Authority.

Ghulam Rasool's case PLD 1971 SC 376; Pakistan Mineral Development Corporation Ltd. v. Pakistan Water and Power Development Authority and 2 others PLD 1986 Quetta 181; The Chandpur Mills Ltd. v. The District Magistrate, Tippera and others PLD 1958 SC 267; Messrs Momin Motor Company v. Regional Transport Authority, Dacca PLD 1962 SC 108; Muhammad Mumtaz Masud and 2 others v. House Building Finance Corporation and 2 others 1994 SCMR 2287; Messrs WAK Orient Power and Light Ltd. v. Government of Pakistan, Ministry of Water and Power and 2 others 1998 CLC 1178 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional ‑petition ‑‑‑Maintainability‑‑‑Cancellation of agreement‑‑Alternate remedy, non‑availing of‑‑‑Effect‑‑Petitioner executed agreement with Authority for‑ lifting coal from its Coal Project‑‑Authority issued him notice for cancellation of agreement for failure to lift required quantity of coal as per revised Schedule‑‑Petitioner challenged the notice by civil suit, which was dismissed by Trial Court‑‑Authority during pendency of appeal before District Judge, cancelled the agreement and forfeited security‑‑‑Petitioner challenged order of cancellation being mala fide and with ulterior motive by a Constitutional petition‑‑‑Validity‑‑‑By invoking arbitration clause in agreement, dispute between parties could better be resolved through an Arbitrator‑‑‑Order of cancellation of agreement was based on notice, with regard to which appeal of petitioner was pending before District Judge‑‑‑High Court had no jurisdiction to conduct roaming enquiry or collect evidence to determine disputed question of facts‑‑‑Petitioner had not brought on record sufficient material to show that alleged action of Authority was mala fide or with ulterior motive as general allegation of mala fide had no force in eyes of law‑‑Petitioner had failed to complete the work within extended period‑‑‑Authority had not acted with ulterior motive‑‑‑High Court dismissed the Constitutional petition being not maintainable in circumstances.

Project Director, Balochistan Miner Irrigation and Agricultural Development Project, Quetta Cann. v. Messrs Murad Ali & Company 1999 SCMR 121; Mumtaz Ahmed v. Zia Council, Sahiwal 1999 SCMR 117; Raja Muhammad Ramzan and 21 others v. Union Council Bajnial and another 1994 SCMR 1484; Ali Sher alias Ajab Ali v. The State 1994 SCMR 1884; Muhammad Younis's case 1993 SCMR 618; Saeed Nawaz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1981 Lah. 371; Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236 and C. Tanvir Ahmad Siddique v. Province of East Pakistan and others PLD 1968 SC 185 ref.

Tahir Attique Piracha for Petitioner

YLR 2001 LAHORE HIGH COURT LAHORE 2674 #

2001 Y L R 2674

[Lahore]

Before Muhammad Khalid Alavi, J

IFTIKHAR AHMAD and another‑‑‑Petitioners

versus

LAL KHAN and another‑‑‑Respondents

Regular Second Appeal No.828 of 1978, heard on 22nd June, 2001.

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

‑‑‑‑O. XLII, R.2 & S.100‑‑‑Second appeal‑‑Requirement of filing copy of judgment and decree of Trial Court alongwith memo. of second appeal in High Court is mandatory.

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

‑‑‑‑Para. 25(3)(d) [Land Reforms Regulations (Punjab Amendment) Ordinance (V of 1982)]‑‑‑Right of pre‑emption ‑‑‑Appellants filed suit for pre‑emption on the ground being sons of the vendor, which was decreed by Trial Court‑‑Appellate Court dismissed the suit holding that since "lessee" and "tenant" had equal right of pre‑emption, therefore, respondents being lessees had superior right of pre‑emption as against the appellants‑‑Validity‑‑‑Lessee could not be equated with a tenant to clothe him with right of pre‑emption under Para. 25 of M.L.R.115 as the former was not entitled to claim any right of pre‑emption‑‑‑Vendor had admitted the respondents as his lessees ‑‑‑Khasia Girdawari produced in evidence by respondents did not show that they were tenants over suit land prior to sale, rather it showed that one of the respondents was sharing the lease of suit land with another person‑‑‑High Court accepted the appeal, set aside judgment and decree of Appellate Court and restored that of Trial Court with direction to appellants to deposit the decretal amount within specified time, failing which their suit would stand dismissed.

Habib Roz Gujar v. Atta‑ul‑Haq 1990 MLD 80; Javed Akhtar v. Mst. Neelofer and others, 1992 CLC 1382; Faqir Muhammad and others v. Muhammad Rafiq and others 1986 CLC 1028 and Bakhtawar Shah and others v. Member, Board of Revenue and others 1985 SCMR 348 ref.

‑‑‑‑S.12(2) & S.5‑‑‑Civil Procedure Code (V of 1908), O.XLII, R.2‑‑‑Appeal‑‑‑Exclusion of time required for obtaining certified copies‑‑‑Expression "time requisite"Connotation and scope‑‑‑Impugned judgment and decree were passed on 5‑6‑1978, and appellant on the same date applied for their certified copies, but before their delivery, he made application on 10‑6‑1978 for obtaining certified copies of Trial Court's judgment and decree‑‑‑Judgment and decree of Appellate Court were delivered on 13‑6‑1978 and appeal was filed on 13‑9‑1978‑‑‑Contention was that appeal was barred by two days, and as appellant had not filed application under S.5 of Limitation Act, 1908 Court could not condone such delay‑‑‑Validity‑‑‑Requirement of filing copy of Trial Court's judgment and decree alongwith memo. of second appeal was mandatory, therefore, expression "time requisite" used in S.12(2) of Limitation Act, 1908 would also cover the , time spent in obtaining such copies‑‑‑Delivery of Appellate Court's judgment and decree on 13‑6‑1978 would not start running the period of limitation, as it had already been stopped through second application dated 10‑6‑1978‑‑‑Limitation would start running from 1‑7‑1978, when, copies of Trial Court's judgment and decree were delivered to, appellants‑‑‑Appellant had a vested right under S.12(2) of Limitation Act, 1908 to exclude the "time‑ requisite" from period of limitation, whereas provisions of S.5 of Limitation Act, 1908 were discretionary‑‑Neither question of making application under S.5 of Limitation Act, 1908 arose nor appellants were under obligation to make such application in such circumstances‑‑Appeal was held not barred by time.

Amir Hussain Shah v. Umra 1986 SCMR 880; Sh. Muhammad Sharif v.. Sh. Akbar Hussain PLD 1990 Lah. 229; Kala v. Allah Dad PLD 1977 Lah. 376 and Mst. Jamila Khatoon and another v. Mst Tajunnisa and others PLD 1984 SC 208 ref.

Abdul Ghafoor v. Sher Ahmad PLD 1961 Lah. 366 rel.

Syed Muhammad Ali Gillani for Appellant.

Mian Bashir Ahmed Bhatti for Respondent.

Date of hearing: 22nd June, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2679 #

2001 Y L R 2679

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

PA‑33286 Captain IFTIKHAR AHMED ‑‑‑Petitioner

versus

FEDERAL GOVERNMENT, MINISTRY OF DEFENCE, RAWALPINDI through

The Chief of the Army Staff, Rawalpindi ‑‑‑Respondent

Writ Petition No.110 of 2001, decided on 17th May, 2001.

Pakistan Army Act (XXXIX of 1952)‑‑‑

‑‑‑‑Ss. 16 & 55‑‑‑Pakistan Army Act Rules, 1954, R.9‑B(1)‑‑‑Army Regulations (Rules), 1986, Regln. 269‑A‑‑‑Constitution of Pakistan (1973), Art. 199(3)‑‑‑Constitutional petition‑‑‑Punishment of severe reprimand and removal from service on allegation of misconduct‑‑Punishment of severe reprimand was awarded to the petitioner for commission of an offence under S.55 of Pakistan Army Act, 1952, whereas the reason for his removal ,froth service was charge of misconduct under R.9‑B(1), Pakistan Army Act Rules, 1954‑‑‑Validity‑‑Federal Government could dismiss or remove from service any Army Officer if he in the opinion of Government had by reason of misconduct become unworthy of holding a commission in the Pakistan Army and would be liable to be removed from service‑‑‑For the purpose of removal of a person from service on the charge of misconduct if the Chief of Army Staff submitted a report without any inquiry as required under cl. (c) of 8.269‑A, Pakistan Army Act, 1952, the Federal Government could‑decide in either way‑‑Action of removal from service from the Pakistan Army against the petitioner being in relation to his service as a member of Armed Forces of Pakistan, the legality or validity of said action could not be questioned on any ground including mala fide action before the High Court due to bar contained under Art.l99(3) of Constitution of Pakistan (1973)‑‑‑Mala fide being mixed question of law and fact, unless it was proved that petitioner was awarded punishment due to personal malice, the malice in law could not be pleaded for such action because of some irregularity in the procedure or dispensation with the normal procedure in the exercise of powers under the law‑‑‑Petitioner, had failed to prove malice or mala fides in taking action against him‑‑‑Sentence of severe reprimand awarded to the petitioner by the Commandant Officer, 'would not create a bar‑for the Chief of Army Staff to take action against him in exercise, of‑ power available with him under Pakistan Army Act, 1952 read with Pakistan Army Act Rules, 1954 and Pakistan Army Regulations, 1986‑‑‑Contention .that petitioner having been awarded punishment of severe reprimand, he could not be awarded the punishment of dismissal from service, was repelled, in circumstances.

Muhammad Akram for Petitioner.

Qazi Ahmad Naeem Qureshi, Federal Counsel.

Lt.‑Col. Iqbal Hashmi, AJ.A.G. on behalf of Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 2683 #

2001 Y L R 2683

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD IMTIAZ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.377 of 1998, decided on 18th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Qanun‑e‑Shadahat (10 of 1984), Art. 37‑‑ Appreciation of evidence‑‑Prosecution case rested on circumstantial evidence i.e. extra judicial confession allegedly made by the accused before prosecution witness who was closely related to the deceased and on the statement of another witness‑‑‑Both the said witnesses were interested witnesses and their statements had not been corroborated from any other independent source‑‑‑Mere evidence of extra judicial confession itself was not sufficient to base conviction on it as the same could easily be procured‑‑‑Motive of the accused as narrated by witness was not believable‑‑Contradictions were found between the ocular account and the medical evidence‑‑Prosecution having failed to establish its case against the accused beyond shadow of doubt, benefit of doubt was extended in favour of the accused‑‑‑Conviction and sentence of the accused were set aside in circumstances.

Kh. Abdul Sami for Appellants.

Nazeer Ahmad Ch. for the State.

Date of hearing: 18th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2686 #

2001 Y L R 2686

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD HANIF‑‑‑Petitioner

versus

DEPUTY COMMISSIONER, KASUR and others‑‑‑Respondents

Writ Petition No.9813 of 2000, decided on 14th June, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/468/471‑‑‑Canal and Drainage Act (VIII of 1873), S.20‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Pending matters with regard to irrigation before the Civil Court, Deputy Commissioner ordered registration of criminal case against the petitioner‑‑‑Magistrate in his enquiry report in fact had made recommendation for registration of criminal case against the Government officials who had issued notification under S.20 of Canal and Drainage Act, 1873 but the case was registered against the petitioner who had filed application to the Authority in the Irrigation Department complaining that proper water was not being given to his land through the Mogha concerned ‑‑‑Validity‑‑ Deputy Commissioner had no authority to get a case registered against the petitioner or interfere into order passed by Canal Authority when he was neither the Appellate nor the Revisional Authority and even did not figure anywhere in the Canal and Drainage Act, 1873‑‑‑Even otherwise matter of F.LR. being sub judice before Court, same could not be registered against petitioner.

1997 MLD 2097; 1991 PCr.LJ Note 126 at p.92 and 2000 PCr.LJ 888 ref.

Ch. Din Muhammad Mayo for Petitioner.

Muhammad Hanif Khatana Addl, A.‑G. for Respondents.

Date of hearing: 14th June, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2691 #

2001 Y L R 2691

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD INAYAT‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.639 of 1993, decided on 19th February, 2001.

Prevention of Corruption Act (II of 1947)‑‑‑

‑‑‑‑S. 5‑‑‑Penal Code (XLV of 1860), S.161‑Appreciation of evidence‑‑‑Complainants had alleged that the accused had obtained the amount as illegal gratification from them on the pretext of allotment of State land to them, but neither he had done the needful nor had returned the amount to them‑‑‑No independent evidence was led in the course of inquiry or at the trial which could have proved demand or acceptance of amount by the accused‑‑Prosecution witnesses were closely related and one of the witnesses who initially had gone with the complainant, did not support the prosecution case‑‑Prosecution case was not to the effect that the accused had made demand or had received illegal gratification for doing something which he was required by law to do, but the complainant party itself was in pari delicto it wanted illegal gain from the transaction‑‑Where the complainant party itself was the delinquent in the matter, they could not have sought conviction of the accused in the transaction‑‑‑Complainant party itself having not approached the accused with clean hands nor, having good intention in the matter, benefit of the same ought to be given to the accused in the matter of his conviction‑‑‑Conviction of accused was quashed after extending him benefit of doubt-‑Appellant, was though acquitted on account of mala fides of the complainant party yet the Department concerned would be at liberty to proceed against the accused on administrative side, if so advised, on the strength of inquiry already on record.

Sh. Zia Ullah for Appellant.

Muhammad Hanif Saleemi for the

Date of hearing: 9th February, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2696 #

2001 Y L R 2696

[Lahore]

Before Jawwad S. Khawaja, J

NEW JUBILEE INSURANCE‑‑‑Petitioner

versus

A.C. CUSTOMS‑‑‑Respondent

Writ Petition No.21877 of 2000, decided on 14th June, 2001.

(a) Customs Act (IV of 1969)‑‑‑‑

‑‑‑‑Ss. 193, 195 A & 202‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Notice to pay amount‑‑‑Question as to whether the amount demanded through notice was an amount due under the Customs Act, 1969 and the question as to whether the said sum at all constituted "dues" under the said Act, fell within the ambit of S.193, Customs Act, 1969‑‑‑1u the presence of the departmental remedies by way of appeal under S.193, Customs Act, 1969 and revision under 5.195‑A of the Act, Constitutional petition was not maintainable.

Constructions Ltd., Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan, P.W.D., Thatta and another PLD 1975 Kar. 1059 ref.

(b) Constitution ofPakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Departmental remedies and procedure should not be short‑circuited by exercising Constitutional jurisdiction barring certain recognized exceptions‑‑‑Constitutional petition would not be maintainable when remedy by way of appeal or revision provided under the relevant law was not availed of.

Fakhar‑ud‑Din G. Ebrahim for Petitioner

Jawahar A. Naqvi on behalf of K.M, Virk for Respondent

Date of hearing: 14th June, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2698 #

2001 Y L R 2698

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

FARHAT ALI AKHTAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.601 of 1988, heard on 3rd May, 2001.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 409 do 511‑‑‑Appreciation of evidence‑‑‑No criminal misappropriation appeared on the part of the accused‑-‑No monetary loss admittedly was caused to the Bank‑‑‑Accusers had done everything to raise the deposits of the Bank as per practice of the Banks prevailing in the country‑‑Accused had remained in jail and suffered the agony of the trial for the last more than twelve years and at such stage it was not deemed to be proper to send him behind the bars Conviction of accused was maintained, but his sentence was reduced to the imprisonment already undergone by him in circumstances.

1972 SCMR 118 and 1997 SCMR 935 ref.

PLD 1995 Kar. 680 rel.

Ahmad Rauf for Appellant.

Kh. Shaukat Ali for the State.

Date of hearing: 3rd May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2701 #

2001 Y L R 2701

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

MUHAMMAD BASHIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.109 and Criminal Revision No. 74 of 1990, heard on 13th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑S: 302‑‑‑Appreciation of evidence‑‑Sentence‑‑‑Enhancement‑‑‑Accused alone was nominated in the F.I.R. who had caused fatal injury to the deceased‑‑‑Eye‑witnesses though were closely related to the deceased, yet they had no previous background of enmity with the accused party and being inmates of the house they were natural witnesses of the occurrence‑‑‑Case being one of single accused no question of his false involvement could arise‑‑‑Ocular account of occurrence was not only corroborated by medical evidence but by evidence of recovery also as the crime empty secured from the spot had matched with the gun recovered at the instance of accused‑‑‑Conviction of accused was maintained in circumstances‑‑‑Grounds given by the Trial Court for awarding lesser punishment to accused were not well founded‑‑‑False pretext regarding the motive was made to have the lesser sentence awarded to accused by showing that motive was shrouded in mystery which was not recognized by the criminal administration of justice‑‑‑Case against accused was not one of lesser sentence‑‑‑Sentence of imprisonment for life awarded to accused by Trial Court was enhanced to death accordingly.

Waris Khan v. The State 2001 SCMR 387 ref.

Muhammad Amir Wallana for Appellant.

Malik Sadiq Ali for the State.

Sh. Zameer Hussain for the Complainant.

Date of hearing: 13th August, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2704 #

2001 Y L R 2704

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

MUMTAZ KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.32 and Murder Reference No. 185 of .1996, heard on 13th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 460‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in the dark hours of the winter night‑‑‑No source of light was mentioned in the F.I.R.‑‑‑Parties were not known to each other‑‑‑No identification parade was held in the case‑‑Prosecution had taken two contradictory stands regarding the arrest of the accused and the recovery of the weapon of offence‑‑Injury attributed to accused in the F.I.R. was not supported by medical evidence‑‑‑Padding and improvement had been introduced in the site plan by showing an electric bulb at the place of incident‑‑‑Presence of eye‑witnesses on the spot at the relevant time was negated by the complainant herself‑‑‑Evidence from an unimpeachable source was not coming in the murder case which was full of doubts‑Accused was acquitted in circumstances.

Sardar Muhammad Ishaque Khan for Appellant.

Raja Muhammad Ayub Kayani for the State.

Date of hearing: 13th August, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2709 #

2001 Y L R 2709

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

MUHAMMAD NAZEER‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.62 and Murder Reference No.164 of 1994, heard on 6th August, 2001.

(a) Criminal trial‑

‑‑‑‑ Prosecution has to prove its own case and not to rely upon the weakness of the defence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(6)‑‑‑Appreciation of evidence‑‑Motive for the occurrence was not proved‑‑Eye‑witnesses were not found to be present at the scent of occurrence ‑‑Dying declaration made by the deceased was held to be a forged document‑‑‑Recovery of the weapon of offence had been disbelieved‑‑‑Occurrence had taken place in dark hours of the night‑‑‑Prosecution case was full of doubts, benefit of which was to go to the accused‑‑ Accused was acquitted accordingly.

Malik Mubeen Ahmad for Appellant.

Raja Muhammad Ayyub Kayani for the State.

Date of hearing: 6th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2712 #

2001 Y L R 2712

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, 1.1

MUHAMMAD GHIAS alias GHIASA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.369 of 1999, heard on 3rd August, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(6)‑‑‑Appreciation of evidence‑‑Delay in lodging the F.I.R. and non mentioning of the name of either the complainant or any other eye‑witness in the medico‑legal report having brought the injured to the hospital had proved that the eye‑witnesses were not present at the spot at the time of occurrence‑‑‑Fire‑arm had been planted on .the accused after his arrest and then by firing a shot from that fire‑arm both empty and the fire‑arm were sent to the Expert and the recovery of the fire‑arm and the empty were, therefore, disbelieved‑‑‑Six crime empties were recovered from the spot but the deceased had suffered only two injuries which had made the prosecution version doubtful as it was not the case of the prosecution that all the five accused had resorted to indiscriminate firing‑‑‑Motive for the occurrence was shrouded in mystery‑‑Accused was acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Benefit of doubt‑‑‑Principle‑‑‑When doubts are present benefit of the same has to be extended to the accused not as a matter of grace but as a matter of right.

Ch. Muhammad Shafique for Appellant.

Sh. Muhammad Rahim for the State, Date of hearing: 3rd August, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2728 #

2001 Y L R 2728

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

WAJID HUSSAIN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 14/T and Criminal Revision No.7 of 2000, heard on 8th August, 2001.

Penal Code (XLV of 1860)‑

‑‑‑Ss. 302(b)/34 & 398/34‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in dark hours of the night‑‑‑Nobody was named in the F.I.R. as accused‑‑‑Parties were not known to each other‑‑‑Description of accused was not given in the F.I.R.‑‑‑No identification parade was held in the case to identify the accused‑‑‑Accused had not looted anything from the house nor had made any attempt to do so‑‑‑Purpose for which the accused had committed the murder of the deceased was a mystery‑‑‑Lead bullet recovered from the body of the deceased was not sent to the Fire‑arm Expert to find out if the same was fired from the pistol recovered at the instance of the accused‑‑‑Recovery being in violation of the provisions of 5.103, Cr. P. C. was not believable‑‑‑Evidence in a case of capital punishment must have come from an unimpeachable source and the only inference which a Court could deh should be that the accused were the real culprits‑‑‑Police in order to show its efficiency and not to allow the case to go untraced, had falsely implicated the accused‑‑ Accused including the one who had not filed the appeal were acquitted in circumstances.

Ch. Muhammad Iqbal Khan for Appellants.

Aftab Ahmad Gujjar for the State.

Sabah Muhy‑ud‑Din Khan for the Complainant.

Date of hearing: 8th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2731 #

2001 Y L R 2731

[Lahore]

Before Khawaja Muhammad Sharif and Naeem U11ah Khan Sherwani, JJ

ARSHAD MAHMOOD and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 163 and Murder Reference No. 252 of 1996, heard on 6th August, 2001.

(a) Penal Code (XLV of 1860)‑

‑‑‑‑S. 302(b)134‑‑‑Appreciation of evidence‑‑Occurrence having taken place in broad daylight and the parties being known to each other, there was no question of mistaken identity‑‑‑Accused had given a single fire‑arm injury to the deceased on his abdomen which proved fatal‑‑‑Ocular evidence was corroborated by medical evidence ‑‑‑Eyewitnesses, no doubt, were related to the deceased, but they were not inimical towards the accused‑‑‑Accused had the knowledge and intention to commit "Qatl‑e‑Amd" of the deceased‑‑‑No mitigating circumstance existed in favour of accused‑‑‑Conviction and sentence of death awarded to accused were confirmed in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)134‑‑‑Appreciation of evidence‑‑Accused was the real brother of the, principal co‑accused‑‑‑No overt act except ineffective firing was attributed to accused‑‑‑No crime empty was recovered from the spot‑‑‑Case of accused was on the same footing as that of the acquitted co‑accused‑‑‑False implication of accused in the case, in circumstances, could not be ruled out‑‑‑Accused was acquitted on benefit of doubt accordingly.

Sardar M. Ishaque Khan and Tariq Masood Khan for Appellant.

Ayub Khan Kiani for the State.

Sabah Mohy‑ud‑Din for the Complainant.

Date of hearing: 6th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2736 #

2001 Y L R 2736

[Lahore]

Before M. Javed Buttur, J

Messrs ZEENAT and 4 others‑‑‑Appellants

versus

WAPDA through Chief Engineer/ Chairman, AEB, Islamabad and 5 others‑‑‑Respondents

First Appeal from Orders Nos. 18 and 19 of 2000, heard on 30th May, 2001.

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

‑‑‑‑S.1‑‑‑Civil Procedure (V of 1908)‑‑S.20(e) with Expln. II & O. VII, R.10‑‑‑Return of plaint‑‑‑Appellants/legal representatives of deceased, who died in a road accident, filed suit for recovery of damages at R. against WAPDA and its employees‑‑Respondents/defendants filed joint written statement‑‑‑After framing of issues, respondents made application under O. VII, R.10, C.P.C., which was accepted by trial Court and plaint was returned on account of lack of territorial jurisdiction with direction to appellants either to institute the suit at A, where occurrence had taken place and cause of action had arisen or at I, where Head Office of respondents was situated‑‑Validity‑‑‑Plaint showed that the vehicle in which deceased was being transported from R, to F J was defective, and as the journey started from R, therefore, cause of action partly arose at R‑‑‑Plea of non‑residence of some of respondents at R had no force in view of the fact that cause of action had partly arisen at R‑‑‑Stamp available on written statement itself shored that WAPDA had a subordinate office at R, thus, Civil Court at R had jurisdiction to try the suit‑‑‑High Court accepted the appeal, set aside the impugned order and directed the Trial Court to decide the suit in accordance with law within specified time.

Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 and WAPDA and 2 others v. Mian Ghulam Bari PLD 1991 SC 780 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Delay in filing appeal‑‑Condonation of delay on ground of filing appeals in wrong Court‑‑‑Sufficient cause‑‑Touchstone‑‑‑Memos of appeal were returned to appellants by Additional District Judge for its presentation to High Court on the ground that value of the suits, wherein impugned orders of return of plaint had been passed, exceeded Rs. 2, 00, 00'0‑‑‑Appellants re filed appeals before High Court alongwith application under Ss.5 & 14, Limitation Act, 1908‑‑‑Validity‑‑ Appellants had acted throughout with care and caution and their conduct did not smack of negligence‑‑Appeals were filed in wrong Court on account of mistaken advice of their counsel‑‑‑Had their counsel been vigilant and more careful, the mistake would have been avoided‑‑Appellants gained nothing by filing appeals in wrong Court, rather decision of their case had further been delayed‑‑‑Trial Court passed impugned orders on 1‑5‑1999 and appeals were filed before District Judge on 31‑5‑1999, and a period of two months was still available to appellants for filing appeals in High Court, thus, omission on the part of District Judge to take timely action was the major cause of delay in re filing of appeals' before High Court‑‑‑Appeals remained pending thereafter, before Additional District Judge for about 8 months‑‑‑Had Additional District Judge applied his judicial mind to record before him and returned memos of appeals to appellants without undue delay, they could have easily filed appeals in High Court within period of limitation‑‑Appeals were returned on 11‑2‑2000 and were presented in High Court on 14‑2‑2000‑‑Consumption of 3 days' time in re‑filing appeals before High Court could not be said to be a negligent conduct‑‑‑High Court condoned the delay in filing appeals on the touchstone of "sufficient cause".

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 rel.

Mumtaz Ali for Appellants.

Syed Moazam Ali Rizvi for Respondents Nos.1 to 3, 5 and 6.

Nemo for Respondent No.4.

Date of hearing: 30th May, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2741 #

2001 Y L R 2741

[Lahore]

Before Muhammad Khalid Alvi, J

Syed ANWAAR‑UL‑HASSAN‑‑‑Petitioner

versus

DISTRICT MANAGER, SMALL BUSINESS FINANCE CORPORATION BRANCH, VEHARI and 2 others‑‑‑Respondents

Writ Petitions Nos.3824 of 2001, 1686 of 2001, 1156 of 2001, 1684 of 2001, 2524 of 2001, 2170 of 2001, 2824 of 2001, 3270 of 2001, 3452 of 2001, 9978 of 1999, 9668 of 1999, 11070 of 1999, 9052 of 2000, 9069 of 2000, 1850 of 2001, 9564 of 2000, 2490 of 2001, 2488 of 2001, 4702 of 2001, 2492 of 2001, 2494 of 2001, 536 of 2001, 7071 of 2000, 1554 of 2001, 1522 of 2001, 2113 of 2001, 8936 of 2000, 10446 of 1998, 5892 of 1998, 4580 of 1999, 11658 of 1998 and 5962 of 1998, heard on 4th June, 2001.

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

‑‑‑‑Arts. 2A & 199‑‑‑Constitutional petition‑‑Liability to pay interest/mark‑up on loan‑‑Petitioners secured loan under various schemes of the Financial Institution through written agreement entered between them‑‑Contention was that petitioners were not required to pay interest/mark‑up which had been declared as un‑Islamic by Federal Shariat Court (PLD 1992 FSC 1) and Shariat Appellate Bench of Supreme Court (PLD 2000 SC 225)‑‑‑Validity‑‑Riba is Haram since the time of Holy Prophet (peace be upon him)‑‑‑Supreme Court had fixed 30‑6‑2001 as the target date, till such time law already governing the financial system would have its course‑‑Petitioners having willingly and knowingly entered into agreement, they were not entitled to wriggle out from those commitments/ agreements/ liabilities‑‑‑Petitioners, even under Islamic norms of justice were bound to honour their commitment/agreement‑‑‑High Court dismissed the Constitutional petition in circumstances.

Dr. Aslam Khaki v. Syed Muhammad Hashim and others PLD 2000 SC 225; Muhammad Ramzan v. Citibank N.A. 2001 CLC 158; Mrs. Farha Nasir v. Pakistan through Secretary to Government, Ministry of Economic and Commercial Affairs, Islamabad and 2 others PLD 2001 Lah. 668 ref.

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

‑Art.199‑‑‑Constitutional petition‑‑Enforcement of contractual obligation‑‑Scope‑‑‑Contractual rights and liabilities cannot be enforced or allowed to be wriggled out through Constitutional petition.

Messrs Mumtaz Masud and 2 others v. House Building Finance Corporation and 2 others 1994 SCMR 2287; Messrs Momin Motor Company v. Regional Transport Authority, Dacca and others PLD 1962 SC 108 ref.

‑‑‑‑ Contract‑‑‑Parties are bound to honour their commitment agreement under Islamic norms of justice.

Ch. Abdul Ghani for Petitioner.

Sajjad Hussain Malizai for Respondents, Date of hearing: 4th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2744 #

2001 Y L R 2744

[Lahore]

Before Maulvi Anwarul Haq, J

JAN MUHAMMAD alias JANA and 2 others---Petitioners

versus

AMIR and 28 others---Respondents

Civil Revision No.484 of 1986 and Regular Second Appeal No.272 of 1978, heard on 3rd July, 2001.

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

----S. 9---Pakistan Administration of Evacuee Property Act (XII of 1957), S.41---Displaced Persons (Land Settlement) Act, XLVII of 1958), S.22---Jurisdiction of Civil Court--Transfer of land by Settlement Authority--Validity---Civil Courts being Courts of plenary jurisdiction have authority to determine as to whether action of the forums appointed under Evacuee Property laws were with or without jurisdiction or according to said laws or not.

Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi PLD 1965 SC 698 and Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 rel.

(b) Punjab Tenancy Act (XVI of 1887)---

----S. 77(3) (d)---Civil Procedure Code (V of 1908), S.9---Bar of jurisdiction---Dispute as to legal status of parties---Provisions of S. 77(3) (d) of the Punjab Tenancy Act, 1887 would apply only when relationship of landlord and tenant between the parties was admitted, but these provisions would not apply in case there existed any dispute between parties as to such status.

----S. 42---Civil Procedure Code (V of 1908), S.9---West Pakistan Rehabilitation and Settlement Scheme, 1956, para. 31---Pakistan Administration of Evacuee Property Act (XII of 1957), S.3---Displaced Persons (Land Settlement) Act (XLVII of 1958), S.4---Land Settlement Manual, para. 173---Suit for declaration---Jurisdiction of Civil Court--Respondents through declaratory suit challenged transfer of suit land in favour of petitioners by Settlement Authorities, wherein respondents were already holding occupancy rights as "Taraddadkar"---Trial Court decreed the suit, against which petitioners' appeal was dismissed by Appellate Court--Contention was that Civil Court had no jurisdiction as matter in question fell within ambit of Authorities appointed under Pakistan Administration of Evacuee Property Act, 1957 and Displaced Persons (Land Settlement) Act, 1958---Validity---Only Civil Court could determine the question, whether or not Settlement Authorities were possessed of jurisdiction to transfer suit land in favour of petitioners ---Para. 31 of West Pakistan Rehabilitation and Settlement Scheme, 1956, had placed complete bar on transfer of land held by Muslim occupancy tenant by Settlement Authorities---Courts below on the basis of evidence on record had found that respondents were "Taraddadkar" and were holding occupancy rights in suit land--Transfer of suit land by Settlement Authorities in favour of petitioners was void, which had been rightly held so by both the Courts below---High Court dismissed the petition.

Faizuddin Ahmad v. Muhammad Yousaf and another 1988 SCMR 1289; Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textile Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209; Allah Ditta and another v. Muhammad Ali and 10 others PLD 1975 Lah. 429 ref.

Karam Khan and others v. Allah Bakhsh and others PLD 1995 Lah. 462 rel.

Syed Zainul Abidin for Petitioners.

Ch. Muhammad Zubair and Muhammad Rafiq Warraich for Respondents.

Date of hearing: 3rd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2748 #

2001 Y L R 2748

[Lahore]

Before Ch. Ijaz Ahmad and Akhtar Shabbir, JJ

MUBASHIR ALI and another‑‑‑Appellants

versus

INAYAT ALI and 14 others‑‑‑Respondents

Intra‑Court Appeal No.694 in Writ Petition No.11652 of 2001, decided on 31st July, 2001.

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr.39, 40 & 70‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Law Reforms Ordinance (X11 of 1972), S.3‑‑‑Intra‑Court appeal‑‑Allegation of corrupt and illegal practices‑‑Election of Nazim and Naib‑Nazim‑‑Recounting of votes‑‑‑Proof‑‑‑Appellants challenged the election of returned candidates for Nazim and Naib‑Nazim seats by filing election petition before Election Tribunal, where they, while abandoning other grounds, agreed that decision of election petition be made on the basis of recounting of ballotpapers of all the Polling , Stations of concerned Union Council‑‑‑Election Tribunal accepted the prayer and fixed the date for recounting of votes‑‑‑Returning candidates challenged order of Election Tribunal through Constitutional petition, which was accepted by the High Court declaring same to be illegal and without jurisdiction‑‑‑Validity‑‑‑Allegations of corrupt and illegal practice during election proceedings as levelled in election petition required recording of evidence by Election Tribunal in order to reach correct conclusion that election procedure or counting of votes had prejudiced result of appellants‑‑‑Appellants had to prove by producing record and evidence on the file of Election Tribunal that recount of ballot paper was necessary‑‑‑Neither any specific allegation was made in election petition nor any material was available on record to establish as to how many votes of appellants ‑ were illegally rejected and excluded from count or how many votes were illegally included in count of the returned candidates‑‑‑No illegality, material irregularity and jurisdictional defect was found in impugned order‑‑‑High Court had exercised discretion in accordance with law, to which no exception could be taken in Intra Court appeal, which was dismissed in limine.

Abdul Majid v. Election Tribunal, 1993 MLD 2523 and Muhammad Dilshad Khan v. Ch. Arshad Ali, Civil Judge/Election Tribunal, Town Committee, Sara‑e‑Sidhu, Kabirwala 1999 MLD 2874 ref.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R.70‑‑‑Election petition‑‑‑Recounting of votes‑‑‑Jurisdiction of Election Tribunal‑‑Scope‑‑‑Election Tribunal was competent to direct recounting of ballot papers subject to its satisfaction that case of recounting was made out, which after framing of issues in this regard could only be established by recording of evidence and perusal of relevant record pertaining to. election process‑‑Recounting of votes could not be claimed as of right, but if proper foundation was laid in election petition or application for recount and the Election Tribunal was satisfied that recounting was necessary, then relevant record would be summoned for inspection or recount.

Mian Muhammad Farooq v. Election Tribunal, Punjab 1988 MLD 2949; Jewan Khan v. Election Tribunal 1993 MLD 2519; Malik Munwar Khan v. Election Tribunal/District Judge, Lahore 1991 CLC 180 and Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 rel.

Mohsin Abbas for Appellants.

YLR 2001 LAHORE HIGH COURT LAHORE 2751 #

2001 Y L R 2751

[Lahore]

Before Muhammad Saeed Akhtar, J

MUHAMMAD HANIF‑‑‑Petitioner

Versus

Mst. SAKINA BI and 7 others‑‑‑Respondents

Civil Revision No. 116‑D of 1991, heard on 23rd July, 2001.

(a) Capital Development Authority Ordinance (XXIII of 1960)‑‑‑

‑‑‑‑Ss. 28(iii) & 36‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Apportionment of compensation‑‑‑Jurisdiction of Civil Court‑‑Deputy Commissioner awarded compensation to petitioner for acquisition of house, herein respondent also claimed her share no filed appeal before Commissioner, who directed her to approach Civil Court in this regard‑‑‑Both the parties filed suits, out of which petitioner's suit was decreed and respondent's suit was dismissed by Trial Court‑‑‑Appellate Court decreed the respondent's suit and dismissed the petitioner's suit‑‑‑Validity‑‑‑Dispute between the parties related to apportionment of compensation i.e. as to whom it was payable‑‑‑Deputy Commissioner under S.28(iii) of Ordinance was invested with powers to decide the question of apportionment of compensation amongst claimants and his order could be assailed under S.36 of Ordinance before Commissioner, whose order would be final‑‑ Commissioner could not evade his responsibility to decide the question of apportionment of compensation between parties and shift the same to Civil Court‑‑Both the Courts below could not arrogate the jurisdiction regarding apportionment of compensation‑‑‑Civil Court had jurisdiction only to see, whether order was passed in accordance with the provisions of Ordinance or not‑‑‑No such violation having been alleged in both the suits filed by parties‑‑High Court set aside both the judgments of Courts below and rejected plaints of both the parties holding that appeal of respondent would be deemed pending before Commissioner, who would decide same within specified time.

(b) Capital Development Authority Ordinance (XXIII of 1960)‑‑‑

‑‑‑‑Ss. 28(iii) & 36‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Apportionment of compensation‑‑‑Jurisdiction of Civil Court‑‑Deputy Commissioner under S.28(iii) of the Ordinance, has powers to decide the question of apportionment of compensation amongst its claimants‑‑‑Appeal is provided before Commissioner against such orders, under S.36 of Ordinance, whose order shall be final and cannot be called in question in any Court‑‑‑Civil Court has jurisdiction only to see, whether the orders are passed in accordance with the provisions of Ordinance or not but cannot assume jurisdiction regarding apportionment of compensation.

Muhammad Saleem for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2754 #

2001 Y L R 2754

[Lahore]

Before Mansoor Ahmad, J

PROVINCE OF PUNJAB through Secretary Excise & Taxation, Punjab, Lahore and others‑‑‑Petitioners

Versus

MUHAMMAD ISHAQ‑‑‑Respondent

Civil Revision No. 2340 of 1990, heard on 12th July, 2001.

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

‑‑‑‑S.9‑‑‑Jurisdiction of Civil Court‑‑‑Acts of executive or quasi judicial tribunal‑‑Remedy‑‑‑Civil Court is a Court of plenary jurisdiction, which can examine the act of executive or quasi judicial forum with an object to determine whether those were in accordance with law or suffered with any illegality‑‑‑Such assumption of jurisdiction by Civil Court would not be proper without holding as jurisdictional fact that Authorities or forums did not act according to law or transgressed their mandate or acted mala fide.

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

‑‑‑‑S.22‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Bar of jurisdiction contained under S.22 of West Pakistan Urban Immovable Property Tax Act, 1958, is not absolute‑‑‑Civil Court has jurisdiction to examine the acts of Excise and Taxation Department, but without determining any fact having the jurisdictional basis, it should ordinarily respect ouster of jurisdiction in regulating its plenary jurisdiction.

‑‑‑‑Ss. 5 & 22‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Annual rental value, determination of‑‑‑Jurisdiction of Civil Court‑‑‑Respondents filed suit for declaration challenging the assessment of annual rental value of property in question by Excise and Taxation Department being excessive‑ ‑‑Trial Court decreed the suit and Appellate Court dismissed the appeal filed against‑‑Validity‑‑‑Determination of annual rental value of property was the jurisdiction of Excise and Taxation Department under West Pakistan Urban Immovable Property Tax Act, 1958‑‑‑Both the Courts below did not point out any jurisdictional fault on the part of Department in ascertaining annual rental value of the property in question, thus, there did not exist any jurisdictional fact whereby they could exercise jurisdiction and in absence of any such fact, the .bar contained under 5.22, of the Act would come into play‑‑High Court set aside judgments of both the Courts below declaring them to be without jurisdiction. (p. 2756) C

Zahid Hussain Farani for Petitioners.

Nemo for Respondent.

Date of hearing: 12th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2757 #

2001 Y L R 2757

[Lahore]

Before Muhammad Nawaz Abbasi, J

PIRAN DITTA and 3 others‑‑‑Petitioners

Versus

KARIM DAD‑‑‑Respondent

Civil Revision No. 277 of 1989, heard on 28th March, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.15‑‑‑Pre‑emption suit‑‑‑Petitioners' suit was dismissed by Trial Court on 7‑11‑1986‑‑Appellate Court set aside the order and remanded the case to Trial Court, which decreed the suit on 29‑10‑1987‑‑‑Appellate Court again set aside the decree ‑‑‑Validity‑‑Petitioner had failed to get decree before target date (31‑7‑1987); in the light of observations made by apex Court in Nazir Begum's case (1999 SCMR 210) and Sardar Ali's case (PLD 1988 SC 287), petitioners would not be justified to plead on strength of decree in the form of dismissal of suit before target date that their suit would be governed under Punjab Pre‑emption Act, 1913‑‑‑In the interregnum period (i.e. from 31‑7‑1986 till promulgation of Punjab Pre-emption Act, 1990) the right of parties for purposes of pre‑emption would be determined under Islamic Law of Pre‑emption---Petitioners' suit for pre‑emption had been rightly dismissed by Appellate Court in circumstances.

Government of N.W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Nazir Begum and others v. Fazal Dad and others 1999 SCMR 210; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Ghulam Rasool and 2 others v. Faiz Bakhsh 1992 SCMR 1328; Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445; Muhammad Anwar and others v. Muhammad Afzal and others PLD 1995 SC 189 and Muhammad Mustafa and 3 others v. Muhammad Akbar and others 1990 SCMR 532 rel.

Maulvi Ijaz‑ul‑Haq for Petitioners.

Ahsan Hameed Lilla for Respondent.

Date of hearing: 28th March, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2759 #

2001 Y L R 2759

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. RUKHSANA YASMEEN‑‑‑Petitioner

Versus

MUHAMMAD IQBAL MIRZA and 2 others‑‑‑Respondents

Civil Revision NO‑1911 of 1990, heard on 30th March, 2001.

Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 118, 214 & 215‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Power of attorney‑‑‑Alienation of principal's property‑‑‑Husband, three months after getting power of attorney from his wife concerning her plot turned her out of his, house and divorced her‑‑‑About 2‑1 /2 months thereafter, husband executed agreement of sale of the said property in favour of his brother and received from him sale consideration‑‑‑Wife filed suit for cancellation of agreement alleging that she did not give her husband authority to sell her plot, and there was no question of her being consulted or her giving consent or receiving any consideration, when she had already been turned out of his house‑‑‑Suit was decreed by Trial Court, but Appellate Court set aside the decree in appeal filed by the purchaser‑‑‑Contention that Appellate Court's judgment and decree were against the law declared by Supreme Court in case of Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341)‑‑‑Validity‑‑‑Authority to alienate the plot, though contained in power of attorney was meaningless as it was inalienable as per terms of its allotment‑‑Husband's plea to have sold the plot with consent of wife and paid her sale consideration was not believable when according to his own showing she was living apart from him and was not agreeing to come back to his house and after leaving his house, he had accused her of theft and threatened her with registration of criminal case‑‑‑No prudent person in such circumstances, would believe that husband had acted in a manner required of him as attorney while proceeding to sell her plot to his brother‑‑‑Husband had failed to discharge his obligations as an attorney‑‑‑Wife had every right to repudiate said acts of her husband and attorney‑‑‑Impugned judgment being violative of law laid down by Supreme Court squarely fell within mischief of 5.115, C. P. C.‑‑‑High Court accepted revision petition with costs, set aside impugned judgment and decree and restored that passed by Trial Court decreeing the suit of wife.

Haji Faqir Muhammad v. Pir Muhammad and another 1997 SCMR 1811; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Fida Muhammad v. Pir Muhammad Khan through Legal Heirs and others PLD 1985 SC 341 rel.

Inayatullah Chaudhry for Petitioner.

Abdur Rashid Gujjar for Respondents.

Date of hearing: 30th March, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2762 #

2001 Y L R 2762

[Lahore]

Before Ch. Ijaz Ahmad and Akhtar Shabbir, JJ

SHAHEENA YASMIN and 2 others‑‑‑Appellants

Versus

MINISTRY OF EDUCATION, PUNJAB and 3 others‑‑‑Respondents

Intra‑Court Appeal No. 714 in Writ Petition No. 13215 of 2001, decided on 6th August, 2001.

(a) Calendar of the University of the Punjab‑

‑‑‑‑ Chap. 1, Cl. A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Law Reforms Ordinance (XII of 1972), S.J‑‑‑Educational institution‑‑Intra‑Court appeal‑‑‑Withdrawal of admission forms by Principal of the College‑‑‑Appellants submitted admission forms for M.A., Part II Physical Education Examination, which were subsequently withdrawn by the Principal of the College on account of shortage of attendance and they were advised to attend special classes‑‑Appellants filed Constitutional petition, but suppressed the fact of advice of the Principal to attend special classes‑‑‑High Court dismissed the Constitutional petition for having failed to show their attendance up to prescribed limit and not approaching the Court with clean hands‑‑‑Validity‑‑‑No rule and regulation of College or University were violated by taking action against appellants and they had clearly concealed material fact in Constitutional petition‑‑‑No application for redressal of their grievance was made before Vice‑Chancellor of the University, even though appellants were well within their rights to approach him‑‑‑High Court was justified not to exercise discretion in their favour in circumstances ‑‑‑Intra‑Court appeal filed by appellants had no merits, but it was disposed of with directions to the Vice‑Chancellor of the University to redress grievance of appellants on their application, if made any, strictly in accordance with law under parental jurisdiction keeping in view hardships of the appellants under hardship regulations.

Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir 1984 SCMR 433; Nawabzada Raunaq Ali's case PLD 1973 SC 236 and Bakhtiar Muhammad Kasuri v. Principal, Lahore Law College NLR 1980 Civil (SC) 36 rel.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑Scope‑‑‑High Court has no jurisdiction to resolve question of fact in exercise of Constitutional jurisdiction.

Muhammad Younas Khan and 12 others v. Government N.W.F.P. and others 1993 SCMR 618 rel.

‑‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Scope ‑‑‑Mala fides‑‑‑Question of mala fides cannot be resolved without recording of evidence, High Court has no jurisdiction to record evidence under Art. 199 of Constitution.

(d) Mala fides‑‑‑

‑‑‑ General allegations of mala fides are not sustainable in the eyes of law.

Saeed Ahmed Khan's case PLD 1974 SC 151 rel.

Tahir Munir Malik for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 2765 #

2001 Y L R 2765

[Lahore]

Before Syed Jamshed Ali, J

Syed TOSEEF HUSSAIN and 8 others‑‑‑Petitioners

Versus

MUNICIPAL COMMITTEE, BHERA and 5 others‑‑‑Respondents

Civil Revision No. 1536‑D of 1984, heard on 6th November, 2001.

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

‑‑‑‑Ss. 3 & 41‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 4(1)‑‑‑Evacuee property‑‑‑Declaration by Custodian‑‑Effect‑‑‑Municipal Committee in the year 1967, filed suit for declaration claiming to be owner in possession of disputed plot as it was part of public road and was being used as such since the year 1865, and in alterative, its title stood perfected on account of adverse possession for more than 60 years‑‑‑Suit was resisted on the grounds that disputed plot was owned by non‑Muslim evacuee, which was purchased by predecessor of petitioners in open auction held in year 1961 by Settlement and Rehabilitation Department and no objection was raised by Municipal Committee at that time; and the question, whether it was evacuee or non‑evacuee property could only be decided by Custodian of Evacuee Property under the provisions of Pakistan Administration of Evacuee Property Act, 1957‑‑‑Trial Court referred the matter to Custodian, who held the property as non evacuee‑‑‑Suit, therefore, came up for the determination before Trial Court and was decreed ‑‑‑Appellate Court upheld the decree‑‑‑Contention that unless Permanent Transfer Deed in favour of predecessor of petitioners was set aside, no declaration could be granted in favour of Municipal Committee‑‑‑Validity‑‑‑On objection taken in written statement by predecessor of petitioners, matter was referred to the Custodian under S.41 of Pakistan Administration of Evacuee Property Act, 1957, who found that disputed plot was not evacuee, thus, it did not form part of compensation pool under Displaced Persons (Compensation and Rehabilitation) Act, 1958 and it was plainly beyond the jurisdiction of Settlement and Rehabilitation Authorities to deal with the same‑‑‑Suit of Municipal Committee was rightly decreed‑‑‑Disputed plot was part of public road, thus, it could not be in exclusive and hostile possession of Municipal Committee‑‑High Court maintained the decree granted to Municipal Committee with modification that its prayer of adverse possession would be deemed to have been dismissed.

M.A. Zafar for Petitioners.

Badar‑ul‑Ameer for Respondent

Date of hearing: 6th November, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2767 #

2001 Y L R 2767

[Lahore]

Before Maulvi Anwarul Haq, J

Syed YAQOOB SHAH BOKHARI‑‑Appellant

Versus

Sheikh SHAH MUHAMMAD and others‑‑‑Respondents

Second Appeal from Order No. 55 of 2000, heard on 13th July, 2001.

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

‑‑‑‑S.13(2)(i)‑‑‑Default in payment of rent‑‑Rent of premises was agreed in writing to be paid in advance by 5th of each month‑‑Tenant deposited rent for month of September, 1999 on 12-11‑1999‑‑‑Rent Controller found the default as proved, which findings were upheld by the Appellate Court‑‑‑Contention was that the terms in agreement as to payment of rent in advance was void, as such no default was committed ‑‑‑ Validity ‑‑‑ According to S.13(2)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959, when time for payment of rent was fixed in agreement of tenancy, then the phrase "rent due by him" as used therein would mean the rent which had become due according to the terms of tenancy, and if it was not paid within 15 days after expiry of time fixed in agreement, then tenant would be liable to ejectment‑‑‑Intention of law. Was to preserve sanctity of mutual agreement as to time agreed upon for payment of rent‑‑If agreement had stipulated payment of advance rent by certain date, then rent would become due on that date‑‑‑Tenant having not paid or tendered rent due within 15 days after expiry of time fixed in agreement i.e. 5th day of September, 1999 his ejectment order was correctly passed‑‑‑Appeal was dismissed by the High. Court accordingly.

Muhammad Baqar Qureshi v. Mst. Razia Begum 1981 SCMR 18 and Mirza Abdul Aziz Baig v. Mushtaq Ahmed Sheikh 1980 SCMR 834 ref.

Sh. Zamir Hussain for Appellant.

Mumtaz Ali Khan for Respondents.

Date of hearing: 13th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2770 #

2001 Y L R 2770

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

SYDIA UZMA BUKHARI‑‑‑Appellant

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION FAISALABAD through Chairman and others‑‑‑Respondents

Intra‑Court Appeal No. 472 in Writ Petition No. 12049 of 1993, heard on 25th July, 2001.

(a) Board of Intermediate and Secondary Education (Faisalabad) Examination Rules‑‑‑

‑‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Educational institution ‑‑‑Intra-Court appeal‑‑‑Amendment of rules before the commencement of examination by taking away vested right‑‑‑Effect‑‑‑Appellant got admission in College in year 1990 and submitted her admission form through College in December, 1992, when original rules dated 19‑2‑1986 were in force, whereunder to qualify for grant of Intermediate Certificate, a student was provided with maximum three consecutive examination opportunities in case he/she qualified at least in the subjects carrying 600 marks in first attempt‑‑‑Before commencement of appellant's examination on 10‑4‑1993, Authorities amended the rules on 6‑3‑1993, whereby the right available to her in earlier rules was curtailed‑‑‑Appellant had to appear in all seven papers, but she did take four papers, while in the remaining three papers, she‑ was absent, but she was shown fail in the result card‑‑‑Appellant challenged vires of amended rules in Constitutional petition contending that it would not affect her case, but same was dismissed ‑‑‑Validity‑‑Notification could not be issued with a view to have retrospective effect in operation and to affect the vested right under the prior notification‑‑‑Act , of subordinate legislative authority could not be applied retrospectively unless law conferred power to do so ‑‑‑Intra‑Court appeal filed by appellant was accepted.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farooqi PLD 1969 SC 407 and Writ‑ Petitions Nos. 13305 and 15235 of 1993 ref.

(b) Interpretation of statutes‑

‑‑‑‑ An act of subordinate legislative authority cannot be applied retrospectively unless law confers power to do so.

Messrs M. Afzal & Sons and 2 others v. Federal Government of Pakistan through Secretary Finance and another PLD 1978 Lah. 468 rel.

‑‑‑‑ Notification could not be issued with a view to have retrospective effect in operation and to affect vested right under the prior notification.

Messrs Mardan Industries Ltd., Shahkot, Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Pesh. 47 rel.

(d) Notification‑‑‑

‑‑‑ Notification by Government could not impair an existing right or nullify the effect of a final judgment of a competent Court, even if notification was expressly so designed.

Commissioner of Sales Tax (West), Karachi v. Messrs Krudsons Ltd. PLD 1974 SC 180 fol.

S.M. Masud for Appellant.

Dr. M. Mohy‑ud‑Din Qazi for Respondents.

Date of hearing: 25th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2773 #

2001 Y L R 2773

[Lahore]

Before Nazir Ahmad Siddiqui, J

ALLAH WASAYA and 4 others‑‑‑Petitioners

Versus

FAIZ BAKHSH and another‑‑‑Respondents

Civil Revision No. 677‑D of 1988, decided on 29th June, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 11, 96 & O.XLI, R.1‑‑‑Appeal against one decree arising out of consolidated judgment in two cases‑‑‑Effect‑‑‑Two suits relating to same subject‑matter were consolidated and tried together on premises of consolidated issues and decided by one common judgment, wherein two separate decrees were prepared, but appeal was filed against one decree‑‑‑Appellate Court dismissed the appeal on the ground that one appeal against judgment and decree of Trial Court was not maintainable‑‑‑Validity‑‑‑Plea of not filing appeal against another decree was a mere technicality, which would not ordinarily prevent Courts from doing substantial justice between the partiesUn-appealed decree in such circumstances would not operate as res judicata‑‑ Appellate Court had dismissed the appeal on hyper-technical ground and had not touched merits of case‑‑‑High Court accepted the revision petition, and set aside the impugned judgment and decree, and remanded the case to Appellate Court for its fresh decision in accordance with law within specified time.

Abdullah v. Faqir Ullah and others 1981 SCMR 585; Manzoor Ahmad v. Additional Judge‑III, Rahimyar Khan and another 1988 CLC 436; Bahawal and 5 others v. Akbar Ali and 17 others 2000 YLR 1296; Mst. Lachhmee v. Mst. Bhulli AIR 1927 Lah. 289; Imam Gul v. Mst. Begum Gi 1980 CLC 530; AIR 1960 Mad. 57; Abdul Majeed and 6 others v. Mst. Haleema and 18 others 1987 CLC 2331; Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others 1988 CLC 514; Government of West Pakistan through Chief Secretary, Lahore and 4 others v. Niaz Muhammad PLD 1967 SC 271 and Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore PLD 1954 Lah. 490 ref.

Mirza Manzoor Ahmad for Petitioners.

M. Bashir Ahmad Sayal for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing: 13th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2789 #

2001 Y L R 2789

[Lahore]

Before Ch. Ijaz Ahmed and Mian Saqib Nisar, JJ

MUHAMMAD YOUNAS and others‑‑‑Appellants

Versus

Mst. MUHAMMAD BIBI and others‑‑‑Respondents

Regular First Appeal No. 207 of 1991, decided on 16th July, 2001.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 2(e)‑‑‑Agreement to sell‑‑‑Immovable property‑‑‑Agreement to sell does not create any title, right or interest in immovable property.

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

‑‑‑‑Ss.12 & 42‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Suit for declaration of title on basis of agreement to sell‑‑Maintainability‑‑Rejection of plaint under O. VII, R. I 1, C. P. C. ‑‑‑Contention of appellant was that agreement to sell did create an interest in property and on its basis, they could maintain ' suit for declaration and permanent injunction‑‑Validity‑‑‑Agreement to sell did not create any right title or interest in the property and on its basis, suit for declaration of title would not be maintainable‑‑‑Appellants should have filed suit for specific performance under Specific Relief Act, 1877 and S.42 thereof would not apply to their case‑‑‑Appellants never thought of amending the plaint and neither in trial Court nor before High Court made even oral request to allow conversion of declaratory suit into a suit for specific performance‑‑‑High Court dismissed the appeal as no infirmity or illegality was found in order passed by the trial Court.

Zafar Ahmad v. Mst. Hajran Bibi PLD 1986 Lah. 399 and G. Muhammad Custodian of Evacuee Property PLD 1966 Lah. 953 ref.

‑‑‑‑S.42‑‑‑Declaration can be sought either regarding plaintiff's right to any legal character or with respect to any right as to property claimed by him/her in a suit under S.42, Specific Relief Act, 1877.

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

‑‑‑‑S.54‑‑‑Registration Act (XVI of 1908), Ss. 17 & 49‑‑‑Unregistered sale‑deed like agreement to sell creates no title in property in view of clear bar provided under S.54 of Transfer of Property Act, 1882.

Abdul Aziz Qureshi for Appellants.

Mushtaq Mehdi Akhtar for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 2803 #

2001 Y L R 2803

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

SHAHID JAVAID and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 770, 840 and Civil Revision No. 537 of 1999 and Murder Reference No. 298‑T of 1999, heard on 25th September, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidenceF.I.R. was promptly recorded without any deliberation and consultation‑‑‑Eye‑witness in his statement recorded under S.161, Cr. P. C. had furnished full details of the occurrence who being employee of the Firm was a natural witness and .his statement inspired confidence which was corroborated by the recovery of the weapons of offence and positive report of the Forensic Science Laboratory‑‑‑Absence or weakness of motive in such circumstances was immaterial‑‑Medical evidence had further corroborated the prosecution version‑‑‑Prosecution witnesses including the complainant had no ill‑will, ulterior motive or enmity to implicate the accused falsely and to substitute them by letting off the real culprits‑‑Convictions and sentences of death of the accused was confirmed in . circumstances.

Imtiaz Ahmad v. The State 2001 SCMR 1334; Ali Ahmad alias Ali Ahmad Mia PLD 1962 SC 102; Shah Wali v. The Crown 1971 SCMR 273; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf alias Achhi v. The State 1971 SCMR 659; Allah Bakhsh v. The State PLD 1980 SC 225 and Abdul Nasir v. The State 1980 P Cr. L J 898 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Motive‑‑‑Absence or weakness of motive is immaterial if the prosecution case is otherwise proved by direct evidence.

Imtiaz Ahmad v. The State SCMR 1334 ref.

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑Solitary witness‑‑‑Conviction can be based on the evidence of solitary witness if he is absolutely dependable, natural, confidence inspiring and disinterested.

Ali Ahmad alias Ali Ahmad Mia PLD 1962 SC 102; Shah Wali v. The Crown 1971 SCMR 273; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf alias Achhi v. The State 1971 SCMR 659 rel.

(d) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑Quality of evidence and not the number of witnesses has to be considered for the decision of a, criminal case.

Allah Bakhsh v. The State PLD 1980 SC 225 and Abdul Nasir v. The State. 1980 P Cr. L J 898 ref.

Ch. Muhammad Hussain Chachar and M. Iqbal Bhatti for Appellants.

Ijaz Hussain Batalvi for the Complainant.

A. H. Masood for the State.

Date of hearing: 25th September, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2809 #

2001 Y L R 2809

[Lahore]

Before Maulvi Anwarul Haq and Naseem Sikandar, JJ

NIAZ AHMAD and others‑‑‑Petitioners

Versus

SETTLEMENT COMMISSIONER and others‑‑‑Respondents

Review Application No. 179 of 1975, decided on 24th January, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLVII, R. 1‑‑‑Review‑‑‑Practice and procedure‑‑‑Finding of fact rendered by the Single Judge of High Court could not be interfered with by Bench of High Court while hearing review application when no ground of such interference was made out‑‑Court, in review, was not under compulsion to set aside the order simply on the ground that the same was shown to be without jurisdiction.

Syed Shaukat Hussain Rizvi v. K.B. Dr. Yar Muhammad Khan and another PLD 1964 (W.P.) Lah. 469 ref.

Muhammad Safdar Yasin for Petitioners.

M. Bashir Ahmad Sial for Respondents.

Tahir Haider Wasti, A. A. G.

YLR 2001 LAHORE HIGH COURT LAHORE 2810 #

2001 Y L R 2810

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MANZOOR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 115 (BWP), 131, (BWP) and Murder Reference No. 17 of 1999, heard on 18th July, 2001.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302 & 302 (c)‑‑Appreciation of evidence‑‑‑Eye‑witnesses had not seen the occurrence as they were not present on the spot at the relevant time‑‑‑Prosecution version was, therefore, rejected and the defence version was accepted in its totality as required by law‑‑Accused had taken the plea in his statement that having lost his power of self‑control after seeing his sister‑in‑law in a compromising position with the deceased, he picked up a hatchet and killed both of them‑‑Injuries on both the deceased showed that it was the working of the mind of a person in extreme agitation having been provoked by family honour‑‑‑Conviction of accused was consequently converted to S. 302 (c), P. P. C. and the provocation being of extreme nature, his sentence was reduced to 15 years' R.1. with benefit of S. 382‑B, Cr. P. C.‑‑‑Sentence of payment of compensation to the legal heirs of the deceased was set aside in circumstances.

Malik Muhammad Aslam and Mumtaz Mustafa for Appellant.

Malik Dost Muhammad Awan for the Complainant.

Saleem Nawaz Abbasi, A.A.G. for the State.

Date of hearing: 18th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2818 #

2001 Y L R 2818

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

MUHAMMAD IQBAL and 4 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 10 and Murder Reference No. 13/T of 1999, heard on 1st October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 324/149 & 148‑‑‑Anti-Terrorism Act (XXVII of 1997), S.7‑‑Appreciation of evidence‑‑‑Accused had not caused any injury to any one of the three deceased and they had only been assigned the role of facilitating the commission of the offence by the principal co‑accused who had fired shots with his pistol‑‑‑No normal punishment of death could, therefore, be awarded to accused who deserved lesser punishment‑‑‑Death sentence awarded to each accused was consequently altered to imprisonment for life‑‑‑Other sentences awarded to accused were, however, maintained and all the sentences were directed to run concurrently‑‑‑Benefit of S.382‑B, Cr. P. C. was refused to accused as they had participated in the occurrence resulting in the death of three innocent persons.

Abdul Rehman v. Fateh Sher and 8 others 1996 SCMR 176; Iqbal Shah v. The State 1998 PCr.LJ 1177; Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25 and Muhammad Riaz and another v. The State 1999 SCMR 976 ref.

Muhammad Ali Sial with Ch. Muzaffar Ali Bhatti for Appellants.

Ashfaq Ahmad Ch. for the State.

Mian Muhammad Shafique Bhandara for the Complainant.

Date of hearing: 1st October, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2830 #

2001 Y L R 2830

[Lahore]

Before Muhammad Akhtar Shabbir, J

TALIB HUSSAIN and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1355 of 2000/BWP, decided on 9th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3) & 16‑‑‑Bail, grant of‑‑‑Accused, though were mentioned in the F.I.R. but allegation of Zina against them was not made out from the contents of the F.I.R.‑‑‑Case against the accused did not fall within the ambit of prohibitory clause of 5.497, Cr. P. C. because the offence under S.16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not punishable with death, life or 10 years' imprisonment‑‑‑Accused were no more required for further investigation by the police and the guilt of the accused was yet to be determined by the Court after recording the prosecution evidence‑‑‑Case of the accused being that of further inquiry, the grant of bail to the accused was a rule and refusal was exception‑‑‑Accused were entitled to grant of bail.

Abdur Rasheed Rashid for Petitioners

Nadeem Asif for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2832 #

2001 Y L R 2832

[Lahore]

Before Khawaja Muhammad Sharif, J

NIAZ ALI alias BABAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 7261/B of 2000, decided on 21st December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 392/412‑‑‑Bail, grant of‑‑‑Accused was not named in the F. I. R. and no identification parade was held due to inefficiency and negligence of the Investigating Officer‑‑‑After recovery of pistol and golden ornaments from the accused case against the accused at the most would fall under S. 411, P. P. C. providing sentence up to three years‑‑‑Bail was allowed to the accused, in circumstances.

PLD 1995 SC 34 ref.

Shahryar Sheikh for Petitioner.

S.A. Irshad for the State.

2001 Y L R 2839

[Lahore]

Before Sheikh Abdur Razzaq, J

SHAUKAT ALI and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 4625/B of 2001, decided on 19th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 3241 337‑A(i)/ 337‑F(i)/ 148/ 149‑‑‑Bail, grant of‑‑‑Considerations‑‑‑Order granting bail to the accused was recalled mainly on the ground that one of the offences against the accused was under 5.324, P.P.C. which fell within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Mere fact that offence against the accused fell under prohibitory clause of 5.497, Cr. P. C. would not disentitle the accused to the relief of bail claimed by them as it was not the maximum sentence which was to be kept in mind while adjudicating the matter, but the sentence which under the circumstances could be awarded, was to be taken into consideration.

Shah Ahmed Khan Baloch for Petitioners.

Sardar Muhammad Farooq for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2840 #

2001 Y L R 2840

[Lahore]

Before Bashir A. Mujahid, J

SHAHADAT‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 4454/B of 2001, decided on 19th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497.‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑Bail, grant of‑‑‑F.I.R was lodged with four days' unexplained delay‑‑‑No material progress had been made since arrest of the accused in conclusion of the trial‑‑‑All the alleged eye‑witnesses of the occurrence were real brothers of the complainant‑‑‑Allegation against the accused, prima facie, had not been corroborated by any other independent witness‑‑‑No useful purpose could be served by keeping the accused behind the bars for an indefinite period‑‑‑Accused was admitted to bail in circumstances.

Shah Ahmad Khan Baloch for Petitioner.

Kh. Muhammad Rasool for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2841 #

2001 Y L R 2841

[Lahore]

Before Shaikh Abdur Razzaq, J

MEHBOOB AHMED and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 4302/B of 2001, heard on 4th October, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/324/144/149‑‑‑Bail, grant of‑‑Injuries on the person of injured allegedly caused by the accused were of simple nature and no injury on the person of deceased had either been caused by or attributed to him‑‑Accused was armed with rifle, but he chose to cause injuries to the injured with the "butt" of his rifle‑‑‑Accused was in judicial lock‑up since his arrest‑‑‑Case against the accused needing further inquiry, he was admitted to bail.

Abdul Aziz v. The State 1996 SCMR 1693; Attaullah and 3 others v. The State and another 1999 SCMR 1320; Shamman v. The State 1996 PCr.LJ 1876 and Muhammad Nazeer and another v. The State 1996 PCr.LJ 1100 ref.

Shah Ahmad Khan Baloch for Petitioners.

Aziz Ahmad Chughtai for the State.

Muhammad Wasi Zafar Ch. for the Complainant.

Date of hearing: 4th October, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2844 #

2001 Y L R 2844

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ASHIQ HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 48 of 1998, decided on 11th September, 2001.

Prevention of Corruption Act (II of 1947)‑‑

‑‑‑‑S. 5‑‑‑Appreciation of evidence‑‑Photocopies of the documents exhibited in the case had been admitted as correct by the accused in his statement recorded under S.342, Cr. P. C. and he having not challenged non production of the original record before the Trial Court, could not do so now‑‑Prosecution evidence was neither discrepant nor contradictory‑‑‑Accused was proved on record to have been drawing salary at the same time as a Tube-well Operator and P.T.C., Teacher‑‑‑Conviction and sentence of accused were upheld in circumstances.

Qazi Muhammad Saleem for Appellant.

Ashfaq Ahmad Ch. for the State.

Date of hearing: 19th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2847 #

2001 Y L R 2847

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD IQBAL KHAN---Petitioner

Versus

SPECIAL JUDGE, ANTI-CORRUPTION, SARGODHA, CAMP AT FAISALABAD and others ---Respondents

Writ Petition No. 28161 of 1997, decided on 14th September, 2001.

Penal Code (XLV of 1860)---

----Ss. 420/468/471/409---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of proceedings---Case against accused fell under the scheduled offences which was pending before the Special Judge, Anti-Corruption---Mere investigation in the case having been conducted by local police was not sufficient to quash the proceedings---Provisions for conducting of investigation in such cases by the Anti-Corruption Department were not mandatory, but were directory---Registration of the criminal case against a 'civil servant could not be held to be mala fide merely on the ground that the investigation was conducted by local police as the Trial Court only had to take cognizance of the case and weigh the evidence---Even otherwise such question was not raised by the accused during the pendency of investigation and had now raised with mala fide intention at such a belated stage just to flout the proceedings on technicalities in order to avoid decision of the case on merits Constitutional petition was dismisses accordingly.

Saleem Hussain v. State PLJ 1991 Cr.C. (Lahore) 916; Bashir Ahmad v. The State 1992 PCr.LJ 795; Mirza Muhammad Iqbal and others v. Government of Punjab, PLD 1999 Lah. 109 and Rafique Ahmed. The State 2000 PCr.LJ 994 ref.

Syed Shamim Abbas Bukhari for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 2851 #

2001 Y L R 2851

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SOHAIL QAMAR and another---Petitioners

Versus

PROVINCE OF PUNJAB and 2 others---Respondents

Writ Petition No. 10379 of 2001, decided on 10th September, 2001.

(a) Agricultural-Pesticides Ordinance (II of 1971)---

----S.21-A---Agricultural Pesticides Rules, 1973, R. 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Quashing of F.I.R.---F.I.R. lodged against the petitioners by Competent Authority, showed that quantity of pesticides in the bottle was not found as had been mentioned on the label thereof---Label of the bottle which was taken into possession showed that content was 100 ml., but actually it was found to be only 80 ml. therein---Petitioners were agents of the company concerned and it was mandatory for all agents, storekeepers and the company concerned under R.3 of Agricultural Pesticides Rules, 1973 to sell the pesticides for which registration had been duly made by the Federal Government---Quantity of the pesticides being less than the quantity given on the label of the bottle, was violative of Rules and in contravention of law which was punishable under S.21-A of Agricultural Pesticides Ordinance, 1971--Prima facie case against the petitioners having been made out, in absence of any ground of its quashing the F.I.R. competently lodged, could not be quashed.

Muhammad Idrees and 2 others v. Chairman, Ghee Corporation of Pakistan Ltd. 1999 PCr.LJ 1025; Agha Nadim and another v. The Station House Officer, Police Station Lohari Gate and another 1998 P Cr. L J 181; Taufuq Ahmed v. S.H.O., Sialkot 1987 P Cr. L J 2384 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.

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

----Art. 199---Constitutional jurisdiction--Scope---Factual controversies could not be resolved in Constitutional jurisdiction of High Court.

Ashtar Ausaf Ali for Petitioner.

Muhammad Shan Gul, vice A.A.G. for Respondents. .

YLR 2001 LAHORE HIGH COURT LAHORE 2854 #

2001 Y L R 2854

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. ROQIYA BIBI‑‑‑Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION JANDANWALA, TEHSIL KALURKOT, DISTRICT BHAKKAR and another‑‑‑Respondents

Writ Petition No. 10607 of 2001, decided on 10th September, 2001.

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.‑‑‑Petitioner a lady had claimed that though a decree for dissolution of marriage was obtained by her, but during the Iddat period she had joined her husband just two months after the decree and they contracted "Sharee Nikah "‑‑‑Petitioner had further contended that as Talaq, could be revoked before the expiry of 90 days, she and her husband were living as husband and wife and FIR. against them had been lodged by the complainant/her father, with mala fide intention and ulterior motive‑‑‑Petitioner by joining her husband before effectiveness of Talaq had not committed any offence‑‑‑F.I. R. registered was abuse of process of law and same could not be allowed to continue ‑‑‑F.I.R. was quashed in circumstances.

Nawab Bibi and 14 others v. Mst. Anwar Bibi and 6 others PLD 1970 Lah. 1; PLD 1975 Lah. 1118 and 1980 PCr.LJ 122 ref.

Ch. Mumtaz Ahmed Bhalwana for Petitioner.

Khuda Dad Khan Barki for Respondent No. 2.

YLR 2001 LAHORE HIGH COURT LAHORE 2856 #

2001 Y L R 2856

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Mrs. RAFIA BEGUM‑‑‑Petitioner

Versus

PAKISTAN RAILWAYS‑‑‑Respondent

Writ Petition No. 16174 of 1997, decided on 16th October, 2000.

Punjab Land Acquisition Rules, 1983‑‑‑

‑‑‑‑R.14‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Constitutional petition‑‑‑Surrender of acquired land‑‑‑Petitioners/original owners of acquired land had sought direction to the Authorities to surrender the acquired land to the Collector as they were ready to refund the compensation of acquired land received by them and that Authority be directed to re‑transfer land to them‑‑‑No action from the side of the Authority had been taken under R.14 of Punjab Land Acquisition Rules, 1983‑‑‑Effect‑‑‑If at any stage the Authority would take action in accordance with law and under the Rules, the rights of the petitioners would remain fully protected in accordance with law‑‑Constitutional petition being premature was disposed of accordingly.

Muhammad Aslam Hayat for Petitioner.

Syed Muhammad Naqi for Pakistan Railways and Tariq Shamim for Ali Muhammad Ch., General Attorney of General Manager, Pakistan Railways, Headquarter Office, Lahore.

Haji Naseer Ahmad, Office Superintendent on behalf of the Deputy Commissioner; Lahore.

YLR 2001 LAHORE HIGH COURT LAHORE 2858 #

2001 Y L R 2858

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Malik NAZEER AHMAD and 2 others‑‑‑Petitioners

Versus

TARIQ NAVEED and 3 others‑‑‑Respondents

Writ Petition No. 7725 of 1991, decided on 10th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 401, 402, 402‑B & 402‑C‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Constitution of

Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Remission of sentence‑‑‑Sentence of imprisonment for life with fine awarded to the accused by the Trial Court was reduced to 7 years by the Appellate Court‑‑‑Chief Minister, on application of mother of the accused remitted sentence and directed immediate release of the accused from the Jail‑‑Validity‑‑‑Provisions of 5.402‑C, Cr. P. C. did not give power to Provincial Government, Federal Government or even to the President of Pakistan to remit the sentence under Ss. 401, 402 & 402‑B, Cr. P. C. without the consent of the victim or his heirs, while the Chief Minister had remitted sentence of the accused without obtaining said consent and without adopting proper procedure and remitted sentence under some political pressure‑‑‑Order remitting sentence passed without lawful authority was set aside by the High Court.

Ch. Muhammad Anwar Bhinder for Petitioner.

S. M: Masud for Respondent No. 2.

Ch. Muhammad Jahangir Wahla, A. A. G,

YLR 2001 LAHORE HIGH COURT LAHORE 2860 #

2001 Y L R 2860

[Lahore]

Before Ch. Ijaz Ahmad, J

FAZAL MUHAMMAD ‑‑‑Petitioner

Versus

MUHAMMAD ISMAIL and another‑‑‑Respondents

Civil Revision No. 14 of 1991, decided on 8th October, 2001.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 3, 5 & 23‑‑‑Reference of matter to Referee‑‑‑Decision of Referee‑‑‑Decision to be bound by the statement of the Referee was outcome of a contract between the parties who were at liberty to revoke the same before it was acted upon‑‑‑Where the statement of Referee was not clear, but was ambiguous, then the Court could hold further proceedings in the matter instead of deciding the controversy between the parties on the basis of the statement of the Referee‑‑‑Case was remanded for decision according to law.

Muhammad Khalid v. A.T.M. Corporation Ltd. 1988 CLC 2359; Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763; Mehr Din and 2 others v. Siraj Din and 2 others PLD 1980 BJ 45 and Sher Zaman v. Noor Zaman Khan and another PLD 1977 Lah. 672 ref.

Khalifa Shujaat Amin for Petitioner. Ch. Shahid Saeed for Respondents.

YLR 2001 LAHORE HIGH COURT LAHORE 2863 #

2001 Y L R 2863

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

ALI RAZA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 169-J and Murder Reference No. 94 of 1996, heard on 9th August, 2001.

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

----S.302---Appreciation of evidence---Motive set up by the prosecution was not proved--Recoveries effected in the case were found to be planted---Eye-witnesses were also not found to be present at the scene of occurrence and they had made improvements in their statements recorded earlier in order to bring the medical evidence in line with the ocular testimony---Prosecution case was full of material contradictions---Evidence led by prosecution did not come from an unimpeachable source in order to establish the case against accused beyond doubt--Benefit of doubt was given to the accused in circumstances and he was acquitted accordingly.

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

----S.302---Appreciation of evidence---Capital punishment---Court in a case of capital punishment has to see that the evidence must have come from an unimpeachable source leading to the inference that it was the accused who was responsible for the commission of the offence.

Barkat Ullah Khan for Appellant (at State expenses).

Syed B.H. Shah for the State.

Date of hearing: 9th August, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2868 #

2001 Y L R 2868

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ PERVAIZ AKHTAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 34 of 1988, heard on 8th August, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Witness before whom the accused had allegedly made extra judicial confession was neither related to nor had any connection or friendship with the accused, rather he had improved the story of the motive set up by the complainant in the F.I.R. for the murder of the deceased‑‑‑Even otherwise extra judicial confession was a weak type of evidence and the same did not inspire confidence‑‑‑Said witness of extra judicial confession had also become the witness of recovery of dead body, blood‑stained knife, and blood‑stained clothes of the accused and the deceased, and as such he seemed to be an interested witness for the prosecution in the case‑‑‑Accused could not be believed of wearing blood‑stained clothes at the time of his arrest‑‑‑Deceased being a fatty young man having a stout body, accused alone could not inflict ten injuries on the person of the deceased with a knife moreso when there were no injuries on the hands of the deceased for resisting infliction of injuries by the accused‑‑‑Owner of the place of recovery of the dead body was not the witness of the said recovery‑‑‑Death of the deceased had taken place at least 20 to 30 hours before the date and time mentioned by the prosecution‑‑‑Medical evidence was in conflict with the prosecution version about the time of occurrence‑‑‑Prosecution evidence did not lead to the only conclusion that the accused was guilty of the murder of the deceased‑‑‑Accused was acquitted in circumstances.

1977 SCMR 515; 1977 SCMR 525; 1999 SCMR 103; 1983 SCMR 958; 1999 PCr.LJ 549; 1998 PCr.LJ 72; 1977 PCr.LJ 1249; PLD 1964 (W.P.) Pesh. 167; 1968 SCMR 378; 1969 SCMR 558; PLD 1958 SC 313; 1999 PCr.LJ 2110; 1996 MLD 1665; Ali Khan v. The State 1999 SCMR 955 and Maqbool Ahmad alias Kaloo v. The State 1998 PCr. LJ 72 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Circumstantial evidence‑‑‑No link in the chain of evidence should be missing and all the circumstances must reach the guilt of the accused in a case based on circumstantial evidence.

Ali Khan v. The State 1999 SCMR 955 and Maqbool Ahmad alias Kaloo v. The State 1998 PCr.LJ 72 ref.

Raja Muhammad Akram for Appellant.

Aftab Ahmad for the State.

Sardar Muhammad Ishaque Khan for the Complainant.

Date of hearing: 8th August, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2874 #

2001 Y L R 2874

[Lahore]

Before Zafar Pasha Chaudhry and Mian Muhammad Jehangir, JJ

GULZAR alias MULTANI and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Murder Reference No. 531‑T of 1999 and Criminal Appeal No. 269 of 1999, heard on 26th September, 2001.

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

‑‑‑‑Ss. 10(4) & 16‑‑‑Appreciation of evidence‑‑‑Sentence of death having been provided for the offence under S. 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and there being no alternate punishment either, any doubt or suspicion touching the testimony of the prosecutrix would be treated as fatal to the prosecution‑‑Testimony of the victim girl was contradicted on material aspects by the medical evidence‑‑Prosecution had, thus, failed to prove the guilt of the accused‑‑‑Accused were acquitted in circumstances.

Hafiz Khalil Ahmad for Appellant No. 3.

Tahir Qureshi for the Remaining Appellants.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 26th September, 2001,

YLR 2001 LAHORE HIGH COURT LAHORE 2878 #

2001 Y L R 2878

[Lahore]

Before Zafar Pasha Chaudhry, J

Mst. RAZIA BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2297/B of 2001, heard on 17th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 302/109/34‑‑‑Bail‑‑‑Accused according to complainant was holding a match box in her hand and subsequently the deceased was set ablaze by her‑‑‑Deceased in her statement recorded in the hospital had also stated that the accused had set her on fire‑‑‑Occurrence admittedly had taken place in the house of the accused as the deceased was her daughter‑in-law being the wife of her son who was co-accused in the case‑‑‑Accused had committed a heinous offence of burning her daughter‑in-law in her own house‑‑‑Bail was declined to accused in circumstances.

Pervaiz Aslam Chaudhry for Petitioner.

Mirza Abdullah Baig for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 2879 #

2001 Y L R 2879

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM MUSTAFA ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 827 of 1998, decided on 11th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑F.I.R. had been lodged immediately after the occurrence attributing specific role to the accused‑‑‑Eye‑witnesses were consistent on the point of firing by the accused at the deceased and their testimony did not have any material contradiction‑‑‑Motive was not proved against the accused‑‑‑Medical evidence had supported the ocular account of occurrence‑‑‑Defence plea taken by accused at a belated stage under S.342, Cr. P. C. was neither convincing nor was borne out from the record‑‑‑Conviction and sentence of accused were upheld in circumstances.

PLD 1974 SC 87 and 2000 SCMR 223 ref.

Shaukat Rafique Bajwa for Appellant.

Ashfaq Ahmad Ch. for the State.

Date of hearing: 19th June, 2001.

2001 Y L R 2908

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD USMAN and another‑‑‑Petitioners

versus

KHUSHI MUHAMMAD and 2 others‑ Respondents

Writ Petition No.3018 of 1992, heard / on 26th September, 2001.

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

‑‑‑‑Ss.13 & 35‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Suit for pre-emption‑‑Issuance of notice of "Talbs "‑‑‑Rejection of plaint‑‑‑Plaint was sought to be rejected by the defendant/vendees on the ground that the plaintiffs had not made "Talbs" in accordance with provisions of S.13(3) of Punjab Pre‑emption Act, 1991‑‑‑Validity‑‑According to provisions of S.13(3), notice in writing had to be issued to the vendee within two weeks after making "Talb‑e‑Muwathibat" attested by two truthful witnesses under registered cover, acknowledgment due‑‑‑Suit was filed during the period when no such codified law of pre‑emption was in force and the plaintiff maintained action on the basis of principles of Islamic Common Law, which though required making of "Talbs" but not strictly in accordance with S.13(3), Punjab Pre‑emption Act, 1991, which was promulgated subsequently and which could not be retrospectively applied so as to non‑suit the plaintiffs for non fulfilment of its requirement‑‑‑Order rejecting plaint, was set aside in circumstances.

Malik Muhammad Akram Awan for Petitioners.

Sadaqat Mahmood Butt for Respondents.

Date of hearing: 26th September, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2915 #

2001 Y L R 2915

[Lahore]

Before Mian Hamid Farooq, J

MASHKOOR AHMAD alias MASHKOORHUSSAIN through Legal Heirs and others‑‑‑Petitioners

versus

ABDUL GI‑IAFOOR and 4 others‑‑‑Respondents

Writ Petition No.2625 of 1993, decided on 19th September, 2001.

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

‑‑‑‑S. 2(c)(i)‑‑‑ "Landlord" ‑‑‑Definition ‑‑Landlord and tenant, relationship of‑‑Proof‑‑‑Mode of‑‑ ‑Landlord under S.2 (c)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959, could be any person, who was for the time being, entitled to receive rent in respect of any building whether on his own account or on behalf of or for the benefit of any other person‑‑‑Not necessary that in order to fall within the definition of landlord, a person must be the owner of the building or rented land‑‑Person may not be the owner of the building,. but still could be its landlord and it could even be vice versa in the shape that a person could be the owner of the property, but he would not fall within the definition of "landlord" and as such could not claim to be the landlord of the building qua the tenant on the basis of his simple ownership‑ ‑‑Person who asserted himself as the landlord of the building and claimed that a particular person was tenant under him, had to establish either through documentary or unimpeachable oral evidence that the particular person was his tenant.

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

‑‑‑‑Ss.2(c)(i) & 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Landlord and tenant, relationship ‑of‑‑Proof‑‑‑Petitioner denied existence of relationship of landlord and tenant between the parties and prayed for dismissal of ejectment application filed against him‑‑Parties were banking upon oral evidence as neither the rent deed nor any other document was produced on record to show the existence of relationship of landlord and tenant between the parties‑‑‑Witnesses produced by the person who claimed himself to be owner and landlord of the premises in question; at the most had stated that he was the owner of the house‑‑‑ "Landlordship "and "ownership" of a person were two distinct expressions in law conveying different meanings‑‑‑Person could be the owner of the premises in question, but he had failed to establish that petitioner/alleged tenant, was tenant under him‑‑‑In the absence of any documentary evidence the statements of witnesses regarding the proof of relationship of landlord and tenant could not be relied upon‑‑Mere bald assertion regarding the relationship of landlord and tenant could be of no avail to the applicant of ejectment‑‑Onus of proving the solitary issue of existence of relationship of landlord and tenant between the parties was on the person who claimed to be landlord of the premises‑‑Applicant for ejectment having failed to discharge that onus Rent Controller and Appellate Court had wrongly decided that petitioner was tenant under the applicant/ respondent and proceeded to pass ejectment order against the petitioner‑‑‑High Court, in exercise of its Constitutional jurisdiction, set aside orders passed by the Rent Controller and Appellate Court below declaring same illegal.

Ch. Muhammad Sadiq for Petitioners.

Khalid Mehmood Ansari for Respondents.

Dates of hearing: 18th and 19th September, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2933 #

2001 Y L R 2933

[Lahore]

Before Ijaz Ahmad Chaudhary, J

FARRUKH AMIN, ADVOCATE‑‑‑Petitioner

versus

RIAZ AMIN and 4 others‑‑‑Respondents

Criminal Revision No.463 of 2000, decided on 11th September, 2001.

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

‑‑‑‑Ss. 200 & 537‑‑‑Examination of the complainant‑‑‑Failure an the part of Trial Court to examine the complainant on the day the complaint was fled is not an illegality but an irregularity which is curable under S. 537, Cr. P. C.

1996 MLD 604; Shamim v. The State PLD 1966 SC 178 and Zahid Khalil v. Wajid Ali and another 1990 PCr.LJ 713 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 419/ 420/ 406/ 409/ 468‑‑‑Criminal Procedure Code (V of 1898), Ss. 200, 537 & 439‑‑‑Non‑recording of the statement of the complainant by the Trial Court in his private complaint on the sane day as required under 5.200, Cr.P.C. was not an illegality but an irregularity curable under S. 537, Cr. P. C. ‑‑Trial Court had not decided the case on merits and had dismissed the complaint on technical reasons without applying its judicial mind which were not sufficient for dismissal of the complaint‑‑‑Impugned order was consequently set aside and the case was remanded to the Trial Court for fresh decision on merits‑‑‑Revision petition was accepted accordingly.

1996 MLD 604; Shamim v. The State PLD 1966 SC 178 and Zahid Khalil v. Wajid Ali and another 1990 PCr.LJ 713 ref.

Petitioner in person.

S.M. Nazim for Respondent No. 1.

Ch. Azmat Khan for Respondent No.2.

Khalid Navid Dar and Ch. Azhar Hamid for Respondent No.3.

YLR 2001 LAHORE HIGH COURT LAHORE 2948 #

2001 Y L R 2948

[Lahore]

Before Sheikh Abdur Razzaq, J

AMANAT ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 430 of 1998, heard on 11th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 (b) & 302 (c)‑‑‑Appreciation of evidence‑‑‑Occurrence almost stood admitted by the accused‑‑‑Death of the deceased was the result of injuries caused with scissors by the accused‑‑‑Prosecution had failed to establish the motive which remained shrouded in mystery‑‑‑Fatal blows had been caused to the deceased by scissors which was not a conventional weapon used for causing death‑‑‑No premeditation could be attributed to accused and he had not caused injuries to the deceased with the intention to commit his murder‑‑‑Conviction of accused under S. 302 (b), P. P. C. was altered to one under S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to 14 years' R.1. in circumstances.

Imtiaz Ahmad v. The State 2001 SCMR 1334 ref.

Syed Zahid Hussain Bokhari for Appellant.

Najam‑ul‑Hassan Gill for the State.

Mian Muhammad Sikandar Hayat for the Complainant.

Date of hearing: 11th September, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 2953 #

2001 Y L R 2953

[Lahore]

Before Ijaz Ahmad Chaudhary, J

M. ABBAS ‑‑‑Petitioner

versus

S.H.O. and another‑‑‑Respondents

Writ Petition No.14383 of 2001, decided on 16th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 406‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Accused and the complainant, according to the F.I.R., were doing some business and amount was due from the accused side‑‑‑Civil suit in this regard was pending before the Civil Court‑‑Complainant, prima facie, appeared to have tried to convert the civil proceedings into criminal proceedings by getting the present case registered against the accused with mala fide intention and ulterior motive‑‑‑Criminal proceedings initiated against, the accused were stayed till the final decision of the civil suit in circumstances‑‑‑Constitutional petition was disposed of accordingly.

Ch. Sadaqat Ali for Petitioner.

Waseem Majid Malik for Respondent No.2.

Zahid Farani Sheikh, Asstt. A.‑G.

YLR 2001 LAHORE HIGH COURT LAHORE 2961 #

2001 Y L R 2961

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

MUHAMMAD JAMIL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.713 of 1996, Murder Reference No.3 of 1997 and Criminal Revision No.443 of 1996, heard on 1st October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/364/34/337‑E(ii)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction of‑‑‑Broad daylight occurrence and the accused was nominated in promptly recorded F.I.R,‑‑Mere relationship of the prosecution witnesses inter se or with the deceased, was not a ground to discard their testimony as they had no previous enmity against the accused for his false implication or substitution by letting off the real culprits‑‑‑Ocular account furnished by the prosecution witnesses had been fully corroborated by the medical evidence and recovery of blood-stained dagger from the accused--Prosecution having successfully established its case against the accused, conviction recorded against the accused by the Trial Court could not be interfered with ‑‑‑ Accused was less than 18 years of age at the time of commission of offence ‑‑‑Co‑accused had been acquitted by the Trial Court by disbelieving the same evidence‑‑‑Accused had inflicted only one injury to the deceased and had not repeated the same though the deceased was at the mercy of the accused‑‑‑Pistol belonging to the deceased was also got recovered by the accused which had shown that the deceased might have come at the spot, while armed with pistol and the prosecution story as narrated by the complainant was not gospel truth‑‑‑Alleged motive had not been proved during the trial‑‑‑Case against the accused in circumstances, being not of capital punishment, same was reduced to life imprisonment which would meet the ends of justice.

Dr. A. Basit for Appellant.

M. Abdul Majid Sheikh for the State.

Nemo for the Complainant.

Date of hearing: 1st October, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2965 #

2001 Y L R 2965

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Saeed Akhtar, JJ

ABDUL HAQ and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.73 and Murder Reference No. 195 of 2000, heard on 5th July, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 (b) & 324‑‑‑Appreciation of evidence‑‑‑Sentence, reduction of‑‑‑Accused had admitted the occurrence in his statement under S.342, Cr.P.C. pleading to have acted in self‑defence‑‑‑Defence version was not plausible and was not supported by any evidence and the same was not introduced during course of investigation‑‑‑Prosecution version to the contrary was narrated by the wife of the deceased who was a natural witness and whose presence at the spot was not challengeable‑‑‑Wife of the deceased had no reason to make a false statement against the accused and she was a truthful witness whose testimony was even corroborated by the statement of the accused made in his defence‑‑‑Conviction of accused under S.302(b), P. P. C. was maintained accordingly‑‑‑Immediate cause which prompted the accused to fire at the deceased could not be known and he did not repeat the fire despite having the opportunity to do so‑‑Sudden occurrence appeared to have taken place in consequence of some altercation between the parties which lacked premeditation, hence, was a valid ground for withholding the extreme penalty of death‑‑Sentence of death awarded to accused was reduced to imprisonment for life in circumstances‑‑‑Accused had neither caused any damage to the complainant during the occurrence nor there was any allegation of his firing at her and the occurrence having been found a sudden affair, he was acquitted of the charge under S.324, P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Appreciation of evidence‑‑‑Accused was attributed the role of ineffective firing but no crime‑empty was recovered from the spot‑‑‑Principal accused had in his statement also excluded the presence of accused from the place of occurrence‑‑‑False implication of accused, therefore, could not be ruled out‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Tariq Azam Chaudhry for Appellants.

Aftab Ahmad Gujjar for the State.

Malik Muhammad Nawaz Khan for the Complainant.

Date of hearing: 5th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 2974 #

2001 Y L R 2974

[Lahore]

Before Maulvi Anwarul Haq, J

HAJI‑‑‑Petitioner

versus

ANARA and others‑‑‑Respondents

Civil Revision No. 167 of 1984, decided on 19th October, 2000.

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

‑‑‑‑O.XLI, R.1‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Right of appeal‑‑‑Suit having been decreed, the only defendant who contested the suit did not file appeal against judgment and decree of Trial Court‑‑‑Appeal was filed by another defendant who neither contested the suit nor filed any written statement‑‑‑Since said defendant was one of the defendants to the suit and the judgment and the decree of the Trial Court were against him, the right of appeal could not be denied to him.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115 & O. XLI, R.1‑‑‑Suit for declaration‑‑Revisional jurisdiction, exercise of‑‑‑Trial Court decreed suit taking into consideration evidence on record, but the‑Appellate Court set aside judgment and decree passed by the Trial Court even without taking into consideration mutation of inheritance and other evidence on record‑‑ Appellate Court below had grossly misdirected itself and had acted with material irregularity in the exercise of its jurisdiction while allowing the appeal against judgment and decree of the Trial Court‑‑‑High Court in exercise. of its revisional jurisdiction set aside judgment and decree passed by the Appellate Court below and restored that of the Trial Court with costs.

N.A. Butt for Petitioner.

Aftab Iqbal Chaudhry for Respondent No.7.

Nemo for the Remaining Respondents.

Date of hearing: 19th October, 2000.

YLR 2001 LAHORE HIGH COURT LAHORE 2980 #

2001 Y L R 2980

[Lahore]

Before Sayed Zahid Hussain, J

IBRAHIM and others‑‑‑Petitioners

versus

ADDITIONAL COMMISSIONER (CONS.), SARGODHA DIVISION, SARGODHA and others‑‑‑Respondents

Writ Petition No.295 of 1983, decided on 27th September, 2000.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑S.10‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.161, 163 & 164‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Allotment of land‑‑Implementation of allotment order by Revenue Authorities‑‑‑Allotment of land in dispute made in favour of allottees by Settlement Authority subsequently was confirmed by Authority and that confirmation remained intact up to the Supreme Court‑‑‑Matter of allotment in favour of allottees having finally been settled by the Supreme Court, Revenue Authorities being bound by judgment of Supreme Court, should have implemented same by making entries in Revenue Record, but mutations entered were rejected by Revenue Authority in view of claim of respondents in respect of said land despite respondents had failed to show any order of allotment in their favour‑‑‑Judgment of the Supreme Court which was final for all intents and purposes, had a binding effect and its efficacy could not be impaired by taking an erroneous view of the matter by Revenue Authorities‑‑‑Matter being that of implementation of judgment of Supreme Court had to be given effect to‑‑‑Order of Board of Revenue confirming the order of Appellate Authority below being not sustainable was declared illegal by the High Court in exercise of its Constitutional jurisdiction.

Munawar Hussain and others v. Messrs Nisar & Co. and others 1976 SCMR 239; Mst. Umar Bibi and another v. Officer on Special Duty, Central Record Office, Lahore and 3 others PLD 1986 Lahore 109; Wali Muhammad and others v. Settlement Commissioner (Land) and others 1982 CLC 816; Major Riaz Ahmad Rashid and others v. The State and others 1991 CLC 277; Laeeq Ahmad and another v. Maqsood Ahmad and another 1991 SCMR 465 and Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another 1974 SCMR 8 ref.

Muhammad Zain‑ul‑Abidin for Petitioners.

Abdul Aziz Sheikh for Respondents.

Date of hearing 27th September.

YLR 2001 LAHORE HIGH COURT LAHORE 2985 #

2001 Y L R 2985

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

M. INAYAT‑‑‑Appellant

versus

FAYYAZ AHMED and others‑‑‑Respondents

Criminal Appeal No.1932 of 2000, decided on 29th January, 2001.

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

‑‑‑‑S.417‑‑‑Penal Code (XLV of 1860), Ss.324/337/109/148/149‑‑‑Appeal against acquittal‑‑‑Accused were acquitted by the Court on the basis of affidavit sworn by the complainant himself in which he had stated that he had entered into a compromise with the accused‑‑‑Complainant had clearly stated in his affidavit that he had compounded the offence and that he had no interest in pursuing the case‑‑‑Complainant himself appeared in the Court and verified the affidavit on the day when the accused were allowed bail‑‑‑Conduct of the appellant/complainant was deplorable a3,, on the one hand he swore an affidavit and appeared before the Court to verify the contents of the same and on the other hand he alleged to be a victim of coercion‑‑‑Appeal filed against the acquittal was dismissed with special costs, in circumstances.

1998 SCMR 466 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Court has not to play in the hands of the unscrupulous litigants, but has to apply its independent mind and follow the law on the subject.

Shahid Hussain Kadri for Appellant.

YLR 2001 LAHORE HIGH COURT LAHORE 2987 #

2001 Y L R 2987

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD SHAFI and others‑‑‑Petitioners

versus

Mst. SAFIA BIBI‑‑‑Respondent

Civil Revision No.538 of 2000/BWP, decided on 27th November, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S. 12(2)‑‑‑Suit for declaration‑‑‑Decree and judgment were challenged on ground of fraud‑‑‑Suit was decreed and defendants filed appeal against judgment and decree of the Trial Court‑‑‑Two of the appellants/ defendants, during pendency of ‑the appeal, filed application to the effect that appeal to their extent be dismissed on the basis of compromise arrived at between them‑‑‑Court after recording statements of the appellants dismissed the appeal to their extent‑‑‑Said two appellants subsequently filed application under S.12(2), C.P.C. wherein they alleged that order against them had been obtained by practising fraud as they had not appeared in the Court and had not made any statement with regard to compromise‑‑ Appellate Court not only recorded the statements of the appellants, but also obtained their thumbempressions and got their statements verified from their counsel and also brought on record application for compromise regarding factum of compromise which was the subject-matter of issue at the relevant time‑‑Appellants having failed to prove alleged fraud, revision filed against judgment of Appellate Court, was dismissed.

Ismail Brothers v. Keval Ram PLD 1981 SC 545; Mian Muhammad Afzal Hussain v. Abdul Latif 1997 SCMR 1382; Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714 and Muhammad Hussain v. Mst. Razia Bibi and others 1999 MLD 3030 ref.

Nadeem Iqbal Chaudhary for Petitioners.

YLR 2001 LAHORE HIGH COURT LAHORE 2995 #

2001 Y L R 2995

[Lahore]

Before Sheikh Abdur Razzaq, J

MUNIR AHMAD‑‑‑Petitioner

versus

MANZOOR AHMAD & CO. ‑‑‑Respondent

Civil Revision No.533‑D of 2000/BWP, decided on 8th November. 2000.

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

‑‑‑‑S.115 & O. VII, R.2‑‑‑Partnership Act (IX of 1932), S.69(2)‑‑‑Suit for recovery of amount‑‑‑Maintainability‑‑‑Defendant had challenged the very institution of the suit on the ground that it was hit by S.69(2) of Partnership Act, 1932‑‑‑Such objection neither was raised by the defendant before the Trial Court nor before the Court of first appeal‑‑‑Same could not be raised for the first time in revision‑‑‑Admissibility of documents admitted in evidence without any objection on part of the defendant, could not be objected to for the first time in revision.

Mst. Shaista Begum v. Government of Sindh and 2 others 1994 MLD 274 and Abdul Hamid v. Riaz Brothers Commission Agents, Hafizabad 1986 CLC 242 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction; exercise of‑‑‑Scope‑‑‑Provisions of S.115, C. P. C. applied to cases involving illegal assumption, non‑exercise or irregular exercise of jurisdiction ‑‑‑Revisional jurisdiction could not be invoked against conclusions of law or fact, which did not, in any way affect the jurisdiction of the Court‑‑An erroneous conclusion of law or fact was liable to be corrected in appeal and revision would not be competent on such a ground, unless in arriving at such conclusion, an error of law was manifestly shown to have been committed.

Nadeem Iqbal Chaudhry for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 2998 #

2001 Y L R 2998

[Lahore]

Before Sheikh Abdur Razzaq, J

GHULAM RASOOL‑‑‑Petitioner

versus

NIAZ AHMED and others‑‑‑Respondents

Civil Revision No.485‑D of 2000/BWP, decided on 17th October, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for specific performance of agreement ‑‑‑Revisional jurisdiction, exercise of‑‑‑Courts below concurrently decreed suit on the basis of evidence brought on record‑‑Concurrent judgments and decrees of Courts below not suffering from any irregularity, material irregularity and jurisdictional defect; could not be interfered with by High Court in exercise of its revisional jurisdiction.

Roazi Khan and others v. Nasir and others 1997 SCMR 1849; Mansab Ali v. Hafizan and 5 others PLD 1993 Lah. 1; Fazal Mahmood and others v. Tajar Khan 1992 MLD 1439; Haji Muhammad Din v. Muhammad Abdullah PLD 1994 SC 291; Umar Dad Khan v. Tilla Muhammad Khan PLD 1970 SC 288; Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504; Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89; Abdul Hameed v. Ghulam Muhammad 1987 SCMR 1005 and Sh. Muhammad Bashir Ali v. Ghulam Mohi‑ud-Din 1996 SCMR 813 ref.

Muhammad Asghar Khan Malaria for Petitioner.

YLR 2001 LAHORE HIGH COURT LAHORE 3011 #

2001 Y L R 3011

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD YOUSAF‑‑‑Petitioner

versus

ASSISTANT COLLECTOR OF CUSTOMS, CFS CUSTOMS, THOKAR NIAZ BAIG, LAHORE and 3 others‑‑‑Respondents

Writ Petitions Nos. 14045 to 14073, 14079, 14615 to 14630 and 14641 of 2001, heard on 8th August, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.181‑‑‑Personal Baggage and Gift Scheme (Import of Vehicle) Rules, 2000, R.3 (4)‑‑‑S. R. O. No. 489(1)/2000, dated 17‑7‑2000‑‑‑Import Trade and Procedure Order, 2000, para. 15‑‑‑S. R. O. No.1374(I)198, dated 17‑12‑1998‑‑‑S. R. O. No.599(1)l93, dated 17‑7‑1993‑‑‑Imports and Exports (Control) Act (X= of 1950), S.3(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑ Constitutional petition‑‑Confiscation of vehicle‑‑‑Option to pay fine in lieu of confiscation ‑‑‑Entitlement‑‑Declarations of petitioners filed in respect of used imported vehicles were rejected by Assistant Collector being in contravention of R.3 (4) of Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000, without allowing them to get release of confiscated vehicles on payment of fine under 5.181 of Customs Act, 1969‑‑‑Validity‑‑‑Scheme for import of vehicles under Transfer of Residence Baggage Scheme as provided under S.R.O. No. 599(1)/93, dated 17‑7‑1993 had not been discontinued as the same found mention in para. 15 of Import Trade and Procedure Code, 2000, in pursuance of which Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000 were enforced, whereunder import of used vehicles under Transfer of Residence Scheme was allowed‑‑Mention of S.R.O. No.599(I)l93 in earlier S.R.O. No.1374(1)l98 would not affect the petitioners' right to obtain confiscated vehicles on payment of fine‑‑‑S. R. O. No.1374(I)/98 issued under S.181 of Customs Act, 1969 was still holding the field, whereunder importer could get the release of vehicle on payment of fine in event of any confiscation order passed for violation of any condition of Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000‑‑ Assistant Collector was legally bound to provide an option to the petitioners for payment of fine in lieu of confiscation, but for having failed to do so, he had not acted in accordance with law and had failed to exercise jurisdiction vested in him‑‑‑High Court set aside impugned orders and directed the Assistant Collector to release the confiscated vehicles on payment of 10% fine in lieu of confiscation besides prescribed customs duty, levies and taxes.

Muhammad Arif and others v. Collector of Central Excise and Land Customs, Quetta and others 1998 CLC 1664; Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 (W.P.) Kar. 280 and Riaz Hussain v. Board of Intermediate and Secondary Education and others 2000 SCMR 661 ref.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑S.195‑‑‑Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000, R.3 (4)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Adequate remedy‑‑‑Revision provided under S.195 of Customs Act, 1969 on executive sides might not be an adequate and efficacious remedy against order of confiscation of vehicle brought under Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000.

Mian Abdul Ghaffar Khan for Petitioner.

K.M. Virk for Respondent.

Date of hearing: 8th August, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 3025 #

2001 Y L R 3025

[Lahore]

Before Mrs. Nasira Iqbal, J

Mst. SAFIA BIBI‑‑‑Petitioner

versus

MULAZIM HUSSAIN and 2 others‑‑‑Respondents

Writ Petition No.10318 of 2001, heard on 25th September, 2001.

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

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑Dissolution of marriage on ground of Khula'‑‑‑Family Court dismissed the wife's suit for dissolution of marriage, but decreed the husband's suit for restitution of conjugal right‑‑‑Appellate Court dismissed the appeal filed by wife‑‑‑Validity‑‑‑Wife had levelled serious allegations of maltreatment against husband‑‑‑Husband had also levelled allegation of unchastity against wife, which had not been proved‑‑‑Protracted litigation was going on between the parties‑‑‑If wife had spent 17/18 years in misery while putting up with husband, there was no reason to condemn her to spend rest of her life in misery with a person whom she abhorred‑‑Reason, that marriage must be kept intact for the sake of children was not also valid in the present case, since the children had not been living with father nor was he maintaining them, but older boys were earning their own livelihood and were supporting their younger siblings‑‑‑Wife on Court's query had stated that she would rather die than live with the husband‑‑‑No likelihood of reconciliation between parties was found, and it would only add to her difficulties, if she was compelled to remain in a matrimonial tie which she clearly abhorred‑‑‑Both the Courts below had dismissed the suit of wife on irrelevant considerations‑‑‑High Court accepted Constitutional petition, set aside impugned judgments and decrees and decreed wife's suit for dissolution of marriage on basis of Khula' unconditionally as it was not shown that she had derived any benefit from husband during subsistence of marriage.

Abdul Aziz v. Mst. Malika and another 1997 SCMR 1599; Mst. Nasreen Bibi v. Atta Muhammad and 2 others PLD 1994 Lah. 276; Ahmad Nadeem v. Assia Bibi and another PLD 1993 Lah. 249 and Inamul Haque v. Mst. Sharifan Bibi and 2 others 1993 CLC 46 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.S & Sched.‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Where it was not shown that wife had received any benefit from husband during subsistence of marriage, then wife would be entitled to get Khula unconditionally and the question of return of benefit to husband would not arise.

‑‑‑‑Divorce‑‑‑Woman's right to divorce (Khula') and man's right to divorce‑‑Difference between‑‑‑Husband can divorce his wife without intercession of Court, while wife has to approach the Court to obtain dissolution of marriage‑‑‑Once wife approaches the Court for dissolution of marriage on basis of Khula', then Court has no option, but to accede to her request, because she is entitled to divorce on basis of Khula' ex debito justitiae (as of right).

Manzar Abbas Khokhar for Petitioner.

Nemo for Respondent.

Date of hearing: 25th September, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 3036 #

2001 Y L R 3036

[Lahore]

Before Zafar Pasha Chaudhary, J

KHIZAR HAYAT‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.166‑J of 2001, heard on 25th September, 2001.

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

‑‑‑‑Ss.10 & 11‑‑ Anti‑Terrorism Act (XIMI of 1997), S.7(ii)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Defence version on the face of it not only appeared to be false and total lie but was preposterous and unacceptable‑‑‑Victim was a grown‑up girl of ten years and she could not forget the identity of her assailant‑‑‑Accused had allured the victim to a deserted place which constituted the ofence of kidnapping‑‑‑Accused had also subjected the girl to indecent and immoral advances after removing her Shalwar and thus her molestation stood established‑‑-Hymen of the victim girl being intact and there being no mark of violence on her body, accused appeared to have kept on making advances in performance of sexual act, but no penetration was in fact made which was a necessary ingredient for the completion of the offence e‑‑‑Accused, however, had not committed the act with such a ferocity or wildness which could result in rupture or tearing of hymen of the girl, although his act was a barbaric one‑‑‑Convictions of accused were consequently maintained, but his sentence on each count was reduced to ten years' R.I. with reduction in fine in the circumstances‑‑‑All sentences were directed to run concurrently with benefit of S.382‑B, Cr. P.C.‑‑‑Sentence of whipping having been abolished was set aside.

Mansoor Ahmad Mian for Appellant (on State expense).

Ms. Iram Sajjad Gul for the State.

Date of hearing: 25th September, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 3040 #

2001 Y L R 3040

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Mian Saqib Nisar, JJ

MUAZZAM KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5710‑B of 2000, decided on 21st August, 2001.

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

‑‑‑‑S.497‑‑‑Bail‑‑‑Offence not hit by prohibitory clause of 5.497, Cr.P.C., discretion of bail still remains with the Court‑‑‑Fact that an offence was not hit by the prohibition contained in S.497(1), Cr. P. C. did not make the said offence a bailable one and the discretion still remains with the competent Court to consider whether the accused of such an offence did or did not deserve the concession of bail.

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

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S. 9(b)‑‑‑Bail‑‑‑Persons allegedly involved in spreading narcotics in the society are not entitled to any leniency or sympathy and do not deserve to be released on bail unless reasonable grounds existed to believe that they were not guilty of such offence or sufficient grounds were available warranting further inquiry into their guilt.

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(b)‑‑‑Bail‑‑‑Accused was unable to show as to why substantial quantity of "Charas " weighing one kilogram had been falsely planted on him which had been recovered from his possession‑‑‑Mere fact that the case had been registered by a police officer not authorised to do so was not fatal to the prosecution‑‑-Absence of the witnesses of the locality also did not demolish the prosecution case as they were generally reluctant to offer themselves as witnesses for any such case‑‑‑Even otherwise employees of the Police Department were competent witnesses in the eyes of law unless shown to have any motive in the matter and no serious exception could be taken to their testimony‑‑No sufficient grounds existed warranting further inquiry into the guilt of accused‑‑Bail was declined to accused in circumstances.

PLD 1997 SC 408 ref.

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

‑‑‑‑$.497‑‑‑Control of Narcotic Substances Act (JXV of 1997), S.9(b)‑‑‑Bail by general order‑‑‑Grant or refusal of bail is a judicial order which can be passed only after judicial application of mind to the facts of each given case‑‑‑Release of 86 accused persons on bail by the Sessions Judge in exercise of suo motu powers while making jail inspection who were involved in narcotics cases through general orders did not disclose proper judicial application of mind and was not envisaged by law and such practice must, therefore, be discontinued.

Ch. Anwaar Haq Pannu for Petitioner.

Muhammad Sarwar Awan for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 3043 #

2001 Y L R 3043

[Lahore]

Before Khalil‑ur‑Rehman Ramday, J

MUHAMMAD SHARIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.277 of 2000, heard on 11th July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.420, 406, 468, 379 & 427‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑Revision ‑‑‑Appreciation of evidence‑‑‑Accused had not removed any goods out of the possession of another and the ingredients of the offence of theft, therefore, were not satisfied‑‑‑Accused was acquitted of the charge under S.379, P. P. C. accordingly‑‑‑No evidence was available on record to show that the accused had deceived the complainant and had thereby fraudulently or dishonestly induced him to deliver the property in question to him which according to the complainant had been entrusted to the accused in the name of Allah on the request of the friends of the complainant‑‑‑No case of cheating, thus, was made out against the accused and his conviction and sentence under S. 420, P. P. C. were, therefore, set aside‑‑‑Accused had no intention to cause any wrongful loss or damage to the complainant, but his intention was to raise two rooms instead of one available at the premises in question ‑‑‑Mensrea vis‑a‑vis the offence of mischief was, thus, missing and the accused was acquitted of the charge under S.427, P.P.C.‑‑‑Accused, however, had converted to his own use the building material belonging to the complainant which was lying at the spot and offence under S.406, P. P. C. against him having been proved, his conviction and sentence thereunder were maintained accordingly‑‑‑Record did not show that the false affidavit made by accused was intended to be used or was in fact used by him for the purpose of cheating anyone which was an essential ingredient of S.468, P.P.C.‑‑Offence under S. 468, P. P. C., therefore, was not proved against the accused and his conviction thereunder was set aside, but instead he was convicted under 5.465, P. P. C. and sentenced to undergo one year's S.I.‑‑‑Sentences awarded to accused under Ss.406 & 465, P. P. C. were directed to run concurrently with the benefit of the provisions of S. 382‑B, Cr. P. C. ‑‑‑Revision petition was disposed of accordingly.

AIR 1926 Lah. 581; AIR 1928 Pat.326; PLD 1959 Dacca 931 and 1971 PCr.L.J. 1296 ref.

Nemo for Appellant.

M.Shan Gul on behalf of A.‑G., Punjab for the State.

Date of hearing: 11th July, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 3047 #

2001 Y L R 3047

[Lahore]

Before M. Javed Buttar and Bashir A. Mujahid JJ

2001 Y L R 3066

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MUMTAZ AKMAL and 3 others‑‑‑Petitioners

versus

SETTLEMENT COMMISSIONER (LAND) CLAIMS COMMISSIONER and 5 others‑‑‑Respondents

Writ Petition No. 258‑R of 1981 and Civil Miscellaneous No.2182 of 1992, heard on 24th September, 2001.

Scrutiny of Claims (Evacuee Property) Regulation, 1961 (M.L.R. 89)‑‑‑

‑‑‑‑Para. 7‑‑‑West Pakistan Rehabilitation and Settlement Scheme (Rural), 1956, Paras.64 & 68‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Proposal of allotment in favour of claimant ‑‑Effect‑‑‑After allotment of land against verified claim to the predecessor of petitioner entitlement certificate was revised and suitland was proposed to be allotted to him, which in absence of confirmation order stood reverted to Central Government by sanctioning correction mutation and was then allotted to private respondents‑‑‑Order of sanctioning correction mutation was set aside by High Court in Constitutional petition filed by predecessor of petitioner and case was remanded to Settlement Commissioner for its fresh decision in accordance with law keeping in view his entitlement‑‑‑Settlement Commissioner, after remand, upheld correction of mutation and allotment in favour of private respondents ‑‑‑Validity‑‑Chief Settlement Commissioner while passing impugned order had opted to go by statement of Patwari instead of looking into law and follow guidelines/observations contained in order of the High Court‑‑‑Absence of confirmation order in respect of proposed land would not derogate from right and interest vesting in its claimant‑‑‑Settlement Authority was statutorily bound to pass formal orders of confirmation and hand over possession of land proposed in favour of claimant after expiry of 15 days‑‑‑Fresh allotment had to include land previously allotted to predecessor of petitioners as per mandatory provisions of Para. 7(2) of Scrutiny of Claims (Evacuee Property) Regulation, 1961‑‑‑No lawful reason was shown in impugned order for cancellation of proposal, which was made in accordance with law prevalent at that tune‑‑‑High Court accepted Constitutional petition and declared impugned order, correction of mutation, report of Patwari, allotment made in favour of private respondents and its subsequent sale by them as illegal, void and without lawful authority.

Muhammad Iqbal and others v. Mst Sultana Begum and others 1987 CLC 582; Ahmad Bakhsh v. Mehro and others 1998 SCMR 462 and Mst. Inayat Bibi v. Assistant Settlement Commissioner‑ PLD 1978 Lah. 252 ref.

Muhammad Sarr Rana and Syed Kaleem Ahmad Khurshid for Petitioners

Zafar Ali Syed for Applicant (in C.M. No. 2182 of 1992).

Rana Muhammad Hanif for Respondent No. 1.

A.R. Shaukat for Respondents Nos.4 and 5.

Date of hearing: 24th September, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 3071 #

2001 Y L R 3071

[Lahore]

Before Asif Saeed Khan Khosa, J

BASHIR AHMAD and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1360‑B of 2001, decided on 10th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of had already been admitted to bail and the case against the accused was not in any manner dissimilar to or distinguishable from the case against co‑accused‑‑‑No reason existed as to why the accused could not be treated in the same manner in the matter of bail as the co‑accused who was already admitted to bail.

Tariq Zulfiqar Ahmad Chaudhary for Petitioners.

Arshad Ali Chohan for the Complainant.

Nazar Abbas Kanwar for the State.

Date of hearing: 7th October, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 3072 #

2001 Y L R 3072

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD YAKOOB and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 5168/13 of 2001, decided on 2nd October, 2001.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)/342/34‑‑‑Pre‑arrest bail‑‑Medical evidence did not support the prosecution version‑‑‑Complainant had tried to exaggerate the incident in order to involve the family members for redressal of his personal grievance‑‑‑Complainant had failed to show any reason for visiting the house of his ex‑in‑laws with whom he had strained relations as litigation between both the parries continued for a long period‑‑‑Accused and the complainant admittedly had grievances against each other on account of the divorce having been obtained by his daughter from the complainant‑‑‑Accused appeared to have been involved in the case due to previous litigation and with mala fide intention‑‑‑Interim pre‑arrest bail granted to accused was confirmed in circumstances.

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

‑‑‑‑S. 498‑‑‑Pre‑arrest bail ‑‑‑Where the case is found to have been registered against the accused with mala fide intention and ulterior motive due to previous enmity between the parties, bail before arrest shall be granted to such accused and .the opinion of the police that the occurrence has taken place in the manner as stated by the complainant is not binding on the Courts.

Anwar Ghuman for Petitioner.

Syed Hassam Qadir Shah for the Complainant.

Imtiaz Ahmad Chaudhary for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 3074 #

2001 Y L R 3074

[Lahore]

Before Bashir A. Mujahid, J

HINA GUL‑‑‑Petitioner

versus

BAHA‑UD‑DIN ZIKARIYA UNIVERSITY MULTAN through Vice Chancellor‑‑‑Respondent

Writ Petition No. 1 1684 of 2000, decided on 6th December, 2000, Educational institution‑‑‑

‑‑‑‑Examination‑‑‑Cancellation of paper‑‑Candidate appeared in examination and when the question paper delivered to the candidate was being solved by her alongwith other candidates Superintendent of the examination centre found that instead of paper for new course question paper for old course had been delivered to the candidate‑‑‑Answer sheet which was partly solved by the candidate was taken back by the Superintendent of the examination centre without providing her the paper for new syllabus‑‑‑When the result was declared the paper attempted by the candidate was cancelled and she was not given any marks in the said paper‑‑‑Candidate had prayed that either she should be awarded the marks of the paper she had already solved or she should be given average/aggregate marks as per result of other papers attempted by her‑‑Validity‑‑‑No separate seating arrangement was made by the University for old course and for new course candidates‑‑‑Confusion was created by not making adequate and proper arrangement by the University and for any lapse of the University, the candidates should not be punished‑‑‑Candidate had a good case in law and equity that she should be awarded marks in disputed papers instead of asking her to attempt said paper once again without any fault on her part.

PLJ 1993 Lah. 546 ref.

Muhammad Ashraf Sheikh Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

Date of hearing: 6th December, 2000

YLR 2001 LAHORE HIGH COURT LAHORE 3075 #

2001 Y L R 3075

[Lahore]

Before Ijaz Ahmad Chaudhary

GHULAM MURTAZA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 5364/8 of 2001 decided on 16th October, 2001.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/ 324/ _ 148/ 149/ 109---Bail---Injury attributed to accused was found to be an exit wound---Medical evidence had contradicted the ocular account to the extent of the involvement of accused in the case---Accused had beets found innocent during investigation and the discharge report had been prepared though the Magistrate did not agree with the same and directed for the submission of challan in the Trial Court---Submission of challan was not a bar for grant of bail if the accused had otherwise succeeded in making out the case of further inquiry--Case of accused fell within the purview of S.497(2), Cr.P.C. and he was admitted to bail accordingly.

PLD 1999 SC 203; PLD 1994 SC 65 and PLD 1972 SC 275 ref.

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

---S. 497---Penal Code (XLV of 1860), Ss.302/ 324/148/149/ 109---Bail---Submission of Challan in the Court is not a bar for the grant of bail to the accused, if he otherwise has succeeded in making out a case of further inquiry.

PLD 1994 SC 65 ref.

Ch. Aamir Rehman for Petitioner.

Mian Muhammad Ilyas for the Complainant.

Tasneem Amin for the State.

YLR 2001 LAHORE HIGH COURT LAHORE 3081 #

2001 Y L R 3081

[Lahore]

Before Karamat Nazir Bhandari, J

MUHAMMAD ABDUL QAYYUM KHAN‑‑‑Petitioner

versus

WATER AND POWER DEVELOPMENT AUTHORITY through its Chairman, Lahore and others‑‑‑Respondents

Writ Petition No. 16499 of 2001, heard on 12th September, 2001.

Electricity Act (IX of 1910)‑‑‑

‑‑‑‑S. 24‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Disconnection of electricity ‑‑‑Restoration‑‑Consumer had alleged that electricity of his premises had been disconnected in utter violation of the order of the Electric Inspector and statutory provisions contained in S.24(1), Electricity Act, 1910‑‑‑Validity‑‑‑Concerned Officer despite service of notice through special messenger, did not appear to justify disconnection of electricity‑‑‑In absence of any justification for disconnection, supply of the electricity was ordered to be restored directing implementation of order of Electric Inspector and heavy special costs were imposed upon the concerned officer.

Ch. Sardar Ali and Nafeer Ahmed Malik for Petitioner.

Nemo for Respondents, Date of hearing: 12th September. 2001

YLR 2001 LAHORE HIGH COURT LAHORE 3082 #

2001 Y L R 3082

[Lahore]

Before Dr. Munir Ahmad Mughal, J

RIAZ AHMAD‑‑‑Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 633‑B of 2001, decided on 9th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4‑‑‑Interim bail, confirmation of‑‑‑No positive report was on record against the accused‑‑‑Tentative assessment of circumstances and evidence on record had shown that protracted litigation was going on among the villagers and humiliation and insult of the accused was the main cause behind the alleged incident‑‑‑Bail earlier granted to the accused was confirmed.

PLD 1949 Lah. 21; PLD 1983 SC 82 and PLD 1984 SC 192 ref.

Arshad Ali Chuhan for Petitioner.

Abdul Rasheed for the State

Date of hearing: 9th April, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 3096 #

2001 Y L R 3096

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD RIAZ‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Revision No. 480 of 2001, decided on 10th October, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324/148/149‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.4‑‑Assumption of jurisdiction by Juvenile Court‑‑‑Validity‑‑‑No finding with regard to age of the accused was arrived at‑‑‑On the basis of the available data the probability of the accused being less than 18 years could not be ruled out and he, therefore, should have been tried by the Special Court constituted under the Juvenile Justice System Ordinance, 2000‑‑‑Trial Court considering that the age of the accused appeared to be less than 18 years at the time of occurrence had rightly concluded that the accused be tried under the Juvenile Justice System Ordinance, 2000‑‑‑Impunged order did not suffer from any illegality and the same was upheld accordingly.

Ahmed Khan v. The State and another 2000 PCr.L1 1985 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S.4‑‑‑Age of accused‑‑‑Where there is more probability of an offender being less than 18 years of age Court should tilt in his favour and he should be tried by the Special Court constituted under the Juvenile Justice System Ordinance, 2000.

Ch. Muhammad Ashraf Wahla for Petitioner.

Zafar Iqbal Chouhan for Respondent.

Date of hearing: 10th October, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 3103 #

2001 Y L R 3103

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD DIN‑‑‑Petitioner

versus

Mst. ZENAB BIBI and 3 others‑‑‑Respondents

Writ Petition No. 5791 of 1994, heard on 25th June, 2001.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑Ss. 8 & 9‑‑‑Suit for possession‑‑Essentials of a suit under S.9, Specific Relief Act, 1877‑‑‑Distinction between Ss. 8 & 9 of the Act‑‑‑Conditions to bring the suit within the ambit of provisions of S.9 of Specific Relief Act, 1877 were that the plaintiff was in possession; that he had been dispossessed by the defendant; that the dispossession was‑ without due process of law and that the dispossession took place within six months of the suit‑‑‑Relief provided under S.8 of said Act had stipulated distinct jurisdictional facts‑‑‑Suit under S.8 of the Act could be filed on the basis of title whereas in suit under S.9 there was no reference of title of the person dispossessed with regard to the property in question and suit could be filed within six months of dispossession, whereas in suit under S.8 there was no time limit within which the suit could be filed.

Ramdayal and others v. Mt. Saraswati and another AIR 1927 All. 526 ref.

Muhammad Iqbal Abid Chaudhary for Petitioner.

Rafique Ahmad Qureshi for Respondents.

Date of hearing: 25th June, 2001.

YLR 2001 LAHORE HIGH COURT LAHORE 3233 #

2001 Y L R 3233

[Lahore]

Before Zafar Pasha Chaudhary, J

Mst. ASMA SHAHEEN ‑‑‑Petitioner

versus

S.H.O. and others‑‑‑Respondents

Writ Petitions Nos. 15825 and 15727 of 2001, decid6d on 9th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑Ss. 161 & 164‑-‑Recording of statement under 5.164, Cr. P. C. or the confessional statement‑‑‑Statement under S.164, Cr. P. C. was to be treated as a voluntary statement made before a Magistrate and its authenticity against statement under 5.161, Cr. P. C. be taken to be of higher value.

Mst. Shahnaz v. The State and 3 others 1995 PCr.LJ 868 and Mst. Ishrat Bibi v. S.H.O. and another 1996 PCr.LJ 1019 ref.

Ch. Muhammad Zahoor Nasir and Ch. Nazir Ahmad Sadiq for Petitioner.

M. Bilal Khan, Addl. A.‑G.

YLR 2001 LAHORE HIGH COURT LAHORE 3274 #

2001 Y L R 3274

[Lahore]

Before Ijaz Ahmad Chaudhary, J

KHAN‑‑‑Appellant

versus

SAJJAD and 2 others‑‑‑Respondents

Criminal Appeal No. 698 of 1997, decided on 11 th September, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.354‑A‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Victim girl and the eye‑witnesses being closely related inter se, their statements required corroboration on each and every point through an independent source which was lacking‑‑‑Prosecution evidence did not inspire confidence and was not sufficient to connect the accused with the commission of the crime‑‑‑Reasons given by Trial Court for acquittal of accused were borne out from the evidence on record and the impugned judgment, was not based on surmises and conjectures and it did not suffer from any illegality or impropriety‑‑‑Appeal against acquittal of accused was dismissed accordingly.

1994 SCMR 570; 1992 SCMR 489; 1995 SCMR 635; PLD 1992 SC 254; PLD 1992 SC 336; PLD 1992 SC 863 and 1998 SCMR 1281 ref.

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

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), 5.354‑A‑‑‑Appeal against acquittal‑‑Principle‑‑‑Standard for appreciation of evidence in appeal against acquittal is different from that in appeal against conviction.

1992 SCMR 489; 1995 SCMR 635; PLD 1992 SC 254; PLD 1992 SC 336; PLD 1992 SC 863 and 1998 SCMR 1281 ref.

Mian Jamil Akhtar for Appellant.

Nazar Abbas Syed and Muhammad Gulzar Ahmad Khan Lashari for Respondents.

Date of hearing: 17th July, 2001

YLR 2001 LAHORE HIGH COURT LAHORE 3309 #

2001 Y L R 3309

[Lahore]

Before Abdul Shakoor Paracha, J

ALLAH WASAYA‑‑‑Petitioner

versus

THE STATE and 6 others‑‑‑Respondents

Writ Petition No. 3442 of 2001/BWP, decided on 2nd August, 2001.

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

‑‑‑‑S.10(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Transfer of case to Anti‑Terrorism Court‑‑‑Case was sought to be transferred to the Anti‑Terrorism Court on ground that allegation in the F.LR. was that two of the accused persons had committed Zina with the victim girl, thus it was a case of gang rape which was triable by the Anti‑Terrorism Court‑‑‑Complainant in his statement got recorded before the Judicial Magistrate had stated that one of the two accused who were alleged to have committed Zina was innocent and that the complainant had no objection if he was discharged from the case and on the said statement of the complainant the accused was discharged by the Magistrate‑‑‑Trial Court in circumstances, had rightly ordered that case was not triable by the Special Judge, but was triable by the Sessions Court.

Malik Sajid Feroze for Petitioner.

Malik Muhammad Aslam for the Accused.

M. Abdul Rasheed Rashid for Respondents.

Peshawar High Court

YLR 2001 PESHAWAR HIGH COURT 531 #

2001 Y L R 531

[Peshawar]

Before Nasirul Mulk and Ijaz‑ul‑Hassan, JJ

RAZA ALI MUSTAFA‑‑‑Petitioner

versus

DEPUTY INSPECTOR‑GENERAL POLICE, HAZARA DIVISION, ABBOTTABAD and 7 others‑‑‑Respondents

Writ Petition No.74 of 2001, decided on 4th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Quashing of proceedings‑‑Normally, every case should be allowed to proceed according to law and resort to provisions of S. 561‑A, Cr. P. C. should not be lightly made as that would tend to circumvent the due process of law‑‑‑Power is vested in the High Court to quash criminal proceedings if it is satisfied that a false case has been brought with mala fide intention and the process of Court is being abused not to advance the cause of justice, but to subject the adversary to unnecessary harassment‑‑High Court under S. 561‑A, Cr. P. C. could not quash F.I.R. on the ground of mala fides or on the ground that it disclosed civil liabilities.

Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317 and Ahmad Saeed v. The State and another 1996 SCMR 186 ref.

Malik Muhammad Asif for Petitioner.

Muhammad Ayub Khan, Dy. A.‑G. for Respondents Nos. 1 to 5.

Sardar Nasir Aslam Khan for Respondent No. 7.

Date of hearing: 4th July, 2001.

YLR 2001 PESHAWAR HIGH COURT 1975 #

2001 Y L R 1975

[Peshawar]

Before Sardar Muhammad Raza, C. J. and Shah Jehan Khan Yousafzai, J

AHMAD KHAN and others‑‑‑Appellants

versus

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

Regular First Appeals Nos.82 and 92 of 1997, decided on 13th March, 2001.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.18‑‑‑Compensation, fixation of‑‑‑Report of Local Commissioner‑‑‑Superstructure owned by objectors was demolished by the respondents to get the vacant possession of the site for the proposed scheme of extension of housing‑scheme and construction of 200 beds hospital‑‑‑Referee Court on the basis of report of the Local Commissioner enhanced the compensation as awarded by the Authorities‑‑‑Validity‑‑‑Where the Referee Court had elaborately discussed issues and the report of Local Commission was rightly relied upon, High Court declined to interfere with the rate of compensation so fixed‑‑ Appeal was dismissed in circumstances.

2001 CLC 33 ref.

Javed‑A‑Khan for Appellants.

M. Parvez Younas and Alam Khan for Respondents Nos.11 to 21 (in R.F.A. No.92 of 1997).

Date of hearing: 16th January, 2001.

YLR 2001 PESHAWAR HIGH COURT 1986 #

2001 Y L R 1986

[Peshawar]

Before Justice Mian Shakirullah Jan, Chairman, Muhammad Aslam Khan and

Syed Rehman Khan, Members

KHAN BAZ‑‑‑Appellant

versus

MUHAMMAD ASLAM KHAN MOHMAND, ADVOCATE‑‑‑Respondent

Appeal No.18 of 2001, decided on 8th June, 2001.

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

‑‑‑S. 41‑‑‑Complaint of misconduct‑‑Appeal‑‑‑Maintainability‑‑‑Where complaint filed by the appellant was not a complaint of misconduct, but only for recovery of the amount allegedly paid by the appellant to the respondent Advocate, the same was not maintainable under the Legal Practitioners and Bar Councils Act, 1973‑‑‑Appellant failed to establish his case against the respondent Advocate regarding professional misconduct‑‑ Appeal was dismissed in circumstances.

Appellant in person.

Tariq Javed, Dy. A.‑G. ‑ for the Government.

Respondent in person.

YLR 2001 PESHAWAR HIGH COURT 2039 #

2001 Y L R 2039

[Peshawar]

Before Nasirul Mulk and Ijaz‑ul‑Hassan, JJ

IJAZ KHAN‑‑‑Appellant

versus

THE STATE and another ‑‑‑ Respondents

Criminal Appeals Nos. 1 and 5 of 2001, decided on 6th July, 2001.

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

‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑Nothing was available on record to indicate that the accused had a hand in the smuggling or transportation of heroin and that he had the knowledge that the bag recovered from his car contained heroin‑‑‑Possibility of the accused having offered a lift to the co-accused without knowing about the real nature of the stuff contained in his bag could not be excluded‑‑‑Mere fact that the accused was driving the car in question from which the contraband had been recovered lying under the feet of co‑accused, by itself, was not sufficient to convict him with the guilt‑‑Car in question hired by the accused had not been confiscated to the State and the same had been discharged of its liabilities‑‑Accused was acquitted on benefit of doubt in circumstances.

Asghar Ali v. The State 1996 SCMR 1541; Muhammad Ibrahim v. The State 1996 PCr.LJ 1446; Mst. Nargis v. The State 1997 PCr.LJ 1093; Imran Akbar and another v. The State 2000 PCr.LJ 1792; The State v. Mst. Zuhra Bibi and another PLJ 1996 Cr.C. (Peshawar) 1839; Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785 and Rasool Bakhsh v. The State 2000 PCr.LJ 1975 and Tariq Parvez v. The State PLD 1995 SC 1345 ref.

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

‑‑‑‑S.9(c)‑‑ Appreciation of evidence‑‑‑Benefit of doubt‑‑‑One single circumstance throwing doubt ‑‑‑Sufficiency ‑‑‑Many circumstances are not necessarily required for creating doubt in the prosecution case‑‑‑One single circumstance creating a reasonable doubt in a prudent mind about the guilt of the accused is sufficient to snake hint entitled to benefit of doubt not as a matter of grace and concession but as a matter of right.

Tariq Parvez v. The State PLD 1995 SC 1345 ref.

‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑‑Bag containing 15 kilograms heroin was recovered from the car lying in the feet of accused which was verified by the Chemical ‑Examiner to be heroin‑‑‑Police had no reason to falsely associate the accused with the crime and foist upon him large quantity of heroin valuing millions of rupees in International Market‑‑‑Plea taken by accused about the recovered heroin having been given to him as washing powder by somebody was not substantiated by him on the file‑‑‑Recovery having been properly made in the presence of marginal witnesses, who had given a straightforward and consistent account it, support of prosecution version was valid‑‑Minor contradictions in prosecution evidence were inconsequential which did not impair the prosecution case in any manner‑‑Confessional statement of accused did not suffer from any illegality and absence of his signatures on it did not deprive it of its authenticity specially in the presence of supporting evidence on the record implicating him in the guilt‑‑‑Conviction and sentence of accused were upheld in circumstances.

Saeed Akhtar Khan and Masood Azhar for Appellant.

Abdul Jalil Usmani for Respondents.

Date of hearing: 27th June, 2001.

YLR 2001 PESHAWAR HIGH COURT 2051 #

2001 Y L R 2051

[Peshawar]

Before Tariq Parvez, J

INAMULLAH KHAN‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Bail Petitions Nos.78 and 87 of 2001, decided on 2nd July, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail‑‑‑Investigating Officer and the superior Police Officers had placed the accused in Column No. 2 of the challan on the basis of statements of thirteen witnesses recorded under S.161, Cr.P.C. as well as their duly attested affidavits from which they had not so far resiled‑‑‑Two sets of witnesses in the case had given different versions of the occurrence, one in favour of accused and the other against him‑‑‑Trial Court had an option under the law whether or not to issue process against the accused placed in Column No.2 of the challan for trial‑‑‑Accused was admitted to bail in circumstances.

1998 PCr. LJ 752 distinguished.

(b) Criminal trial‑‑‑

‑‑‑‑ Accused placed in Column No.2 of the challan‑‑‑Once an accused has been placed in Column No.2 of the challan then under the law option is left with the Trial Court whether or not to summon him and prosecute him‑‑‑Where such an accused is ultimately not summoned for trial by Trial Court, ‑keeping him in jail from the date he was placed in Column No. 2 until the date of commencement of trial would amount to curtailing the liberty of a citizen who has been found not guilty by the‑police.

S. Zafar Abbas Zaidi for Petitioner.

Sanaullah Khan Shamim for the State.

Khawaja Muhammad Khan for the Complainant.

Date of hearing: 2nd July, 2001.

YLR 2001 PESHAWAR HIGH COURT 2056 #

2001 Y L R 2056

[Peshawar]

Before Tariq Parvez and Muhammad Qasim Jan Khan, JJ

SAID REHMAN and another‑‑‑Applicants

versus

THE STATE and 3 others‑‑‑Respondents

Bail Cancellation Application No.56 of 2001, decided on 26th June, 2001.

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

‑‑‑‑S.497‑‑‑Bail‑‑‑Right of audience of complainant‑‑‑Complainant and victim have no statutory right of hearing because S.497, Cr. P. C. has not so far been amended whereunder notice is required to be given to the Public Prosecutor.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss. 324/148/149‑‑‑Cancellation of bail‑‑‑Eight persons had been charged by the complainant in the F.I.R. for small lacerated and punctured wounds located almost on the same part of the body‑‑‑No fire‑arm entry wound was found on either of the two injured persons who had been examined by the police under S.161, Cr. P. C. after five days of the occurrence in the hospital‑‑‑Complainant's son while giving information to the police had not charged any of the accused for the offence as according to him some unknown persons had started firing at their house‑‑‑Case of accused, in circumstances, needed further inquiry‑‑‑Bail allowed to accused was not recalled.

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss. 324/148/149‑‑‑Cancellation of bail‑‑Despite six accused having been charged for the occurrence no fire‑arm injury had been received by anybody‑‑‑Three accused had allegedly fired from the "Morchas" situate in their houses, but their identity was open to doubt unless proved at the trial‑‑‑Remaining accused had been attributed the role of ineffective firing‑‑‑Reasons advanced by Trial Court for allowing bail to the accused were neither perverse nor fanciful‑‑‑Petition for cancellation of bail was dismissed in circumstances.

Pir Liaqat Ali Shah for Petitioners.

Shaukat Hayat Khan Khakwani, Dy. A.‑G. for the State.

Dost Muhammad Khan and Muhammad Anwar for Respondents.

Date of hearing: 26th June, 2001.

YLR 2001 PESHAWAR HIGH COURT 2117 #

2001 Y L R 2117

[Peshawar]

Before Tariq Parvez and Shahzad Akbar Khan, JJ

ABDUL MUHAMMAD ‑‑‑Petitioner

versus

Malik ASAD and others‑‑‑Respondents

Writ Petitions Nos.964 and 987 of 2001, heard on 1st August, 2001.

(a) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑Preamble‑‑‑Object and scope‑‑Government in order to provide active participation to the general public in the democratic scheme of running the public affairs relating to their day‑to‑day problems at street, village, Tehsil and town level, decided to entrust the public representatives through devolution programme to participate in self‑governance‑‑‑North‑West Frontier Province Local Government Elections Ordinance, 2000, was promulgated to achieve the object and also to get good governance and a scheme for the administration of Local Government has been arranged in the manner that the elective offices start from the bottom i.e. Union Councils then go up and constitute Tehsil, Town and Zila Councils.

(b) North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑ "Aggrieved person "‑‑‑Raising of objection by voter‑‑‑Petitioner was an elected Councillor who raised objection to the nomination papers filed by the candidates for the seat of Zila Nazim and Naib‑Zila Nazim‑‑‑Plea raised by the candidate was that a voter was not aggrieved person, therefore, the petition was not maintainable‑‑‑Validity‑‑‑Voter had been given right of objection to the nomination papers and he had right of appeal against the acceptance of nomination papers under the provisions of North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑Voter would be a person "aggrieved" in terms of Art.199 of the Constitution notwithstanding the fact that he would not sustain any personal grievance.

‑‑‑R. 18‑‑‑Objection to nomination papers‑‑Right of voter‑‑‑Object and scope‑‑‑Voter is equipped with a right to eliminate any illegal contract between two or more contesting candidates where they may agree not to raise any legal objection qua their respective disqualifications though such disqualification may exist in them and thereby anyone of them may get elected despite such disqualification.

(d) Interpretation of Constitution‑‑‑

‑‑‑‑Constitution‑‑‑Object‑‑‑Constitution is the supreme law of the land and provides fundamental rights to the citizens of the country and different organs of the State namely, Executive, Legislature, Judiciary, their spheres of working, the parameters and domain of their jurisdiction.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Validity of law‑‑‑Where law enacted either by Provincial Assembly or Ordinance promulgated by Governor unless its vires are challenged and unless it is so declared the same remains a valid law.

(f) Interpretation of statutes‑‑‑‑‑‑

-----Construction of statute‑‑‑Inconsistency between statutes‑‑‑Where two different provisions are made to fulfil the requirements of two statutes they cannot be said to be inconsistent merely because they are different as they are intended to serve different purposes‑‑‑Where two different provisions not only contradict each other but also cannot coexist, inconsistency arises in such case.

(g) Interpretation of statutes‑‑‑

‑‑‑‑Anomaly in statute‑‑‑Removal of‑‑Jurisdiction of Court‑‑‑Legislature has to take steps to remove the anomaly, if any, where it is considered fit to do so‑‑‑Nothing can be added to the statute nor can be subtracted from it‑‑‑Court has to give effect to the law as it stands and should not depart from the plain meaning of the section even though serious anomalies may result where the provisions of the law are unambiguous‑‑‑Court of law has nothing to do with the reasonableness or unreasonableness of such statutory provisions.

Interpretation of Statutes by N.S. Bindra, IVth Edn., p.333 ref.

(h) Interpretation of statutes‑‑

‑‑‑‑ Construction of statute ‑‑‑Ab inconvenienti (principle of inconvenience) ‑‑‑Applicability‑‑Extending the scope of an Act‑‑‑Jurisdiction of Court‑‑‑Principle is only admissible in construing the provisions of law or statute where the meanings are obscure but where language is explicit, its consequences are for the Legislature law‑maker and not for the Court to consider‑‑‑Where a person/citizen feels suffering from such enactment such person must appeal for relief to the lawmaker‑‑‑It is not for the Court to extend the scope of an Act on the ground of convenience.

(i) Interpretation of statutes‑‑‑

‑‑‑‑ Heading of section‑‑‑Effect of‑‑‑Heading of section is not in all cases a determining factor regarding the interpretation of provisions of the section‑‑‑Where the language is clear, headings are not to be taken into consideration‑‑‑Due consideration must be given to the words of the section independent of the heading for arriving at a conclusion as to what was the purpose of enacting the section.

PLD 1966 BJ 30 ref.

(j) Interpretation of statutes‑‑‑

‑‑‑‑ Stopping the natural consequences of a statute‑‑‑Once the intention of the law‑givers becomes clear, no consideration of practical expediency or possibility of abuse should be allowed to stop the natural consequences flowing from the correct interpretation of statutory provisions.

PLD 1950 Lah. 985 ref.

(k) Interpretation of statutes‑‑‑

‑‑‑‑ Inappropriate language of statute‑‑Jurisdiction of Court‑‑‑Scope‑‑‑Court should keep the whole Act in mind and view while construing the provisions of law even if inappropriate language is used it would not justify the Court in adopting an interpretation which results to frustrate the very object of the statute‑‑‑Wisdom of law‑makers cannot be challenged unless vires of the statute itself are challenged‑‑‑Court cannot import into a statute anything which is not there.

(l) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 19‑‑‑Bar against dual membership‑‑Object‑‑‑Insertion of S.19 in the North‑West Frontier Province Local Government Elections Ordinance, 2000, is purposeful and the same does not disfranchise any citizen but bars a person already holding elective office to contest for another.

(m) Noah‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑Ss. 19 & 38‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Double membership‑‑‑Objection was raised to the nomination papers of the candidates on the ground that the candidates were already elected as Nazim of Union Council and they had filed papers for the seat of District Nazim‑‑‑Despite objection as to double membership, the nomination papers of the candidates were accepted merely on the basis of instructions issued by Chief Election Commissioner‑‑‑Validity‑‑‑Such instructions would not have any bearing in view of clear language of S.19 of North‑West Frontier Province Local Government Elections Ordinance, 2000‑‑‑No rules or orders framed or issued by Government or Chief Election Commissioner could stand if they were inconsistent with the provisions of North‑West Frontier Province Local Government Elections Ordinance, 2000, itself‑‑‑Power vested under S.38 of North‑West Frontier Province Local Government Elections Ordinance, 2000, was not for creating difficulties.

PLD 1978 SC 151; PLD 1982 SC 308; PLD 1964 SC 636; AIR 1982 SC 1473; 1989 MLD 2192; Interpretation of Statutes by M. Farani, 1974 Edn., 1974 p.391; 14 CWN 817; 71 C. 196(PC) and R. Titterton (1895) 2 QB 61 ref.

Barrister Jehanzeb Rahim for Petitioner.

Qazi M. Anwar for Respondents.

Date of hearing: 1st August, 2001.

YLR 2001 PESHAWAR HIGH COURT 2138 #

2001 Y L R 2138

[Peshawar]

Before Tariq Parvez, J

CHAIRMAN, WAPDA (POWER), WAPDA HOUSE, LAHORE and 3

others‑‑‑Appellants

versus

MUHAMMAD ALI KHAN and another‑‑‑Respondents

Regular First Appeal No.27 of 1996, decided on 21st June, 1999.

West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Filing of appeal in wrong Court‑‑Bona fide mistake‑‑‑Pecuniary jurisdiction of Appellate Court‑‑‑Value of plaint for the purpose of jurisdiction of Court was Rs. 4, 81, 900‑‑Appeal was filed in the High Court‑‑‑Effect‑‑‑Where the amount was within the pecuniary jurisdiction of Lower Appellate Court, appeal before High Court was not maintainable‑‑‑Appeal was filed within time but under bona fide mistake, the same was transferred/sent to the Lower Appellate Court for hearing.

PLD 1964 Pesh. 228 and 1999 SCMR 394 ref.

Saadat Hussain for Appellants.

M. Alain Khan for Respondents.

Date of hearing: 21st June, 1999.

YLR 2001 PESHAWAR HIGH COURT 2316 #

2001 Y L R 2316

[Peshawar]

Before Talaat Qayum Qureshi, J

MUNICIPAL CORPORATION, MINGORA---Appellant

versus

Haji MUHAMMAD SULEMAN--Respondent

Second Appeal from Order No.7 of 2000, decided on 11th May, 2001.

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

----S.13(2)---Unregistered rent deed--Effect---Terms and conditions agreed upon between the parties through unregistered rent deed could be acted upon for the purpose of West Pakistan Urban Rent Restriction Ordinance, 1959.

Messrs Syed Brothers v. Messrs Film Exhibitors Limited and 10 others 1984 CLC 3434 ref.

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

---Ss.13(2)(vi) & 15---North-West .Frontier Province Local Government Ordinance (IV of 1979), S.79---Ejectment of tenant on ground of reconstruction of premises ---Ejectment on such ground could be sought by landlord if the rented premises was reasonably and in good faith required by landlord for reconstruction and the landlord had obtained necessary sanction for reconstruction from the concerned Authority---Landlords in the present case, had shown bona fines by the fact that they were willing to invest a large amount of money in constructing 60 Shops over the property---Landlords on the expiry of period of tenancy not only served legal notice upon the tenants, but had also submitted the site plan for approval which neither was approved nor was rejected by the Authority which itself was a tenant, with the mala fide intention to be approved the landlords of the plea of reconstruction of their property---Building plan submitted by the landlords was to be approved or rejected within 60 days from its submission-- Authority/Municipal Corporation having not done so within prescribed period of 60 days, the site plan would be deemed to have been sanctioned to the extent to which it would not contravene the provisions of the Building Bye-Laws or of the Master Plan or Site Development Scheme--Site plan which was placed on record without any objection from the side of tenants would be deemed to have been approved after sixty days of its submission--Tenants could be ejected on ground of reconstruction claimed by the landlords---Rent Controller and Appellate Court had rightly accepted ejectment petition of landlords on ground of reconstruction---Findings of Courts below based on proper appreciation of evidence and material available on record were unexceptionable.

Haji Allah Ditta v. Mst. Shahzadi Bilqis and another 1980 SCMR 41 ref.

----Ss.3 & 13---Exemption from application of West Pakistan Urban Rent Restriction Ordinance, 1959---Ejectment application--Maintainability---Tenants had resisted ejectment application filed by the landlords on ground of reconstruction of property alleging that concerned Municipal committee (which was tenant of the landlords) was exempt from application of West Pakistan Urban Rent Restriction Ordinance, 1959--Contention wets repelled in view of the fact that said Municipal Committee was exempted from application of the law if it was owner/landlord of property in dispute whereas in the present case property in dispute was owned by private owners and was given on rent to the Municipal Committee through agreement for vegetable and fruit marketLandlords being owners of property in dispute had every right to get the same vacated---Exemption being not applicable in the case, ejectment petition was maintainable---Persons who were not tenants under the landlords, but were sub-tenants of the tenants even if they had purchased a portion of property in question and had become the owner of said portion, could not challenge status of landlords qua the suit property.

Muhammad Asghar v. 1kramuddin and another NLR 1981 UC 66; PLD 1973 SC 218; Abdul Hameed v. Haji Abdul Karim 1988 MLD 1887 and Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913 ref.

Sh. Wazir Muhammad for Appellant.

Sher Muhammad Khan for Respondent.

Date of hearing: 16th March, 2001.

YLR 2001 PESHAWAR HIGH COURT 2414 #

2001 Y L R 2414

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

RASHID KHAN‑‑‑Applicant

versus

THE STATE and another‑‑‑Respondents

Criminal Bail Application No. 19 of 2001, decided on 24th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail‑‑Accused had sustained fire‑arm injuries and had accepted his presence as well as presence of the complainant of the other case‑‑‑Venue of the crime, time of occurrence and the complainants of the two F.I.Rs. were the same‑‑‑ Visit of both the parties to the Mandi being without the knowledge of other, they appeared to have suddenly confronted each other and on account of previous blood feud and fear resorted to firing, it was, thus, yet to be determined as to which party was aggressor and which was aggressed upon‑‑Bail was allowed to accused in circumstances.

Dost Muhammad Khan for Applicant.

Shaukat Hayat Khan Khakwani, Dy. A.‑G. for the State.

Zafar Abbas Zaidi for the Complainant.

Date of hearing: 24th April, 2001.

YLR 2001 PESHAWAR HIGH COURT 2521 #

2001 Y L R 2521

[Peshawar]

Before Talaat Qayum Qureshi, J

ABDUL KHALIQ and another‑‑‑Petitioners

versus

FAZALUR REHMAN and others‑‑‑Respondents

Civil Revisions Nos.41 and 74 of 1995, decided on 26th December, 2000.

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

‑‑‑‑S.3‑‑‑Limited estate held by Muslim female‑‑‑Such estate held under customary law was terminated on promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962‑‑‑Limited estate after the promulgation, of the said Act was opened for succession amongst Sharia heirs of last full owner.

(b) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Adverse possession‑‑‑Title by adverse possession‑‑‑Where a party claims title on the basis of gift deed, such party cannot raise plea of acquiring title on the basis of adverse possession.

Abdur Rashid alias Muhammad Rashid and 5 others v. Muhammad Boota 1993 CLC 214 ref.

‑‑‑‑Gift‑‑‑Making of gift in excess of Shari share‑‑‑Effect‑‑‑Where the donor had executed the gift in excess of his share in the estate, gift in excess of Shari share was illegal and not binding on the remaining co‑owners.

Mst. Ali Begum v. Zardad Khan and 4 others 1994 SCMR 1140; Suba through Legal Heirs v. Mst. Fatima Bibi through Legal Heirs and others 1996 SCMR 158 and Haider Shah and 5 others v. Mst. Roshanai and 9 others 1996 SCMR 901 ref.

(d) Islamic Law‑‑‑

‑‑‑‑ Gift‑‑‑Illegal transaction ‑‑‑Limitation‑‑Where the gift deed was illegal, no limitation would run against the same.

(e) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S.3‑‑‑Limited estate‑‑‑Alienation of‑‑Transfer of entire estate by limited owner‑‑Last full owner of the suit property died issueless and whole of his property devolved upon his sister as limited owner who transferred the same in favour of the defendants vide registered gift deed‑‑‑By application of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the plaintiffs claimed to be the co-owners in the estate‑‑‑Trial Court dismissed the suit but decreed by the Appellate Court‑‑Validity‑‑‑Donor was limited owner under "custom" and on termination of limited estate held by her under customary law, with the application of West Pakistan Muslin: Personal Law (Shariat) Application Act, 1962, the estate of the original owners would be considered as the estate of deceased last full owner and would open for inheritance‑‑Donor, being sister of the deceased last full owner, was entitled under Islamic Law to inherit 1 /4th share in the property left by the deceased last full owner and the plaintiffs being reversionaries would be entitled to inherit 3/4th share‑‑‑Gift deed executed by the limited owner was valid only to the extent of 1 /4th share left by the deceased last full owner‑‑‑High Court declined to interfere with the judgment and decree passed by the Appellate Court.

Aslam and another v. Mst. Kamalzai and others PLD 1974 SC 207; Mst. Zarmina and others v. Munjawar and another 1975 SCMR 487; Ghulam Ali and 2 others v. Ghulam Sarwar Naqvi PLD .1990 SC 1; Muhammad Hussain alias Muhammad Yar v. Sardar Khan PLD 1993 Lah. 575 and Allah Ditta and 7 others v. Hussain Bibi 1993 CLC 228 ref.

Muhammad Aman Khan for Plaintiff.

Noorul Hakam Khan for Defendants.

Date of hearing: 26th December, 2000.

YLR 2001 PESHAWAR HIGH COURT 2585 #

2001 Y L R 2585

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

SADIQ‑UR‑REHMAN‑‑‑Petitioner

versus

GHULAM DAUD KHAN and 2 others‑‑‑Respondents

Criminal Miscellaneous Bail Cancellation No. 85 of 2000, decided on 8th May, 2001.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Bail, cancellation of‑‑‑Cross=cases were filed by the parties against each other but both were inconsistent as to how the occurrence started‑‑‑Accused persons who were directly charged in the FLR. earlier filed, had been allowed bail‑‑‑Question as to whether the case through subsequently filed F.LR. by the accused was cross‑case or not and whether the accused had sustained injuries at the hands of the co‑accused, would require evidence‑‑‑Charge had been framed and case was posted for evidence‑‑Observation on the factum of genuineness or otherwise of subsequently filed FLR at such a state could not be made‑‑‑Trial having already commenced, order of grant of bail to the accused, could not be interfered with‑‑Application for cancellation of bail was dismissed, in circumstances.

Dost Muhammad Khan for Petitioner.

Syed Zafar Abbas Zaidi and Shoukat Hayat Khan Khakwani, Dy. A.‑G. for the State.

Date of hearing: 8th May, 2001.

YLR 2001 PESHAWAR HIGH COURT 2589 #

2001 Y L R 2589

[Peshawar]

Before Malik Hamid Saeed and Shah Jehan Khan, JJ

SHAHZAR KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.37 of 1994, decided on 15th January, 1998

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 302/307/34‑‑‑Appreciation of evidence‑‑‑Delay in filing F.I.R. had sufficiently been explained by the complainant‑‑‑Motive of occurrence stood proved‑‑‑Report given by the doctor after examining the dead body of the deceased had fully supported the version of the prosecution and defence had failed to point out any conflict therein‑‑‑Complainant and the accused were real brothers and the injuries sustained the deceased had fully supported the prosecution case‑‑‑Both prosecution witnesses who were real brothers and nephew of the accused had given the true picture of the case and their credibility could not be doubted as they were natural and truthful witnesses and the accused had failed to bring on record any evidence to shatter their truthfulness‑‑‑Recoveries from the spot were effected in presence of independent witnesses‑‑‑Prosecution having been able to prove its case against the accused, conviction of the accused could not be interfered with‑‑‑Enhancement of sentence of life imprisonment to death sentence was not warranted in view of the old age of the accused and real brotherhood of the parties‑‑Complainant also could not prove any valid ground for awarding capital sentence of death to the accused‑‑‑Prayer of the complainant for enhancement of sentence awarded to the accused by the Trial Court, was rejected in circumstances.

1976 SCMR 368; 1974 PCr.LJ 385; 1984 SCMR 6 and 1989 MLD 3467 ref.

Dost Muhammad Khan for Appellant.

Muhammad Khan Khakwani for the State.

Abdul Latif Khan Baloch for the Complainant.

Date of hearing: 9th December, 1997

YLR 2001 PESHAWAR HIGH COURT 2595 #

2001 Y L R 2595

[Peshawar]

Before Abdul Rauf Khan Lughmani and Muhammad Azam Khan, JJ

Mir QAD AYAZ‑‑‑Appellant

versus

SHAMA NASRULLAH and another‑‑‑Respondents

Criminal Appeal No.106 of 1996, decided on 26th January, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑Two prosecution witnesses who claimed to be eye‑witnesses, were real brothers of the deceased‑‑‑Admission of previous enmity between the parties by the eye‑witnesses showed that they were interested witnesses and their evidence would require through scrutiny‑‑‑Said witnesses had given altogether a different stop of the occurrence at the which was full of improvements exaggerations‑‑‑Besides all improve‑menu/exaggerations and complete departure from initial story, the evidence of said witnesses was further discredited by the medical evidence‑‑‑Both eye‑witnesses had deposed,‑ at the trial that with the shots of acquitted accused, one minor child and one lady were injured but neither the said minor nor the lady were produced at the trial though those two who allegedly had stamp of fire‑arm injuries on their persons, were natural witnesses‑‑‑Said minor and the lady were closely related to the complainant party‑‑‑Prosecution having failed to establish the case against the accused beyond the reasonable doubt its benefit was extended to the accused and conviction and sentence awarded to him by the Trial Court, were set aside.

Muhammad Ilyas and another v. The State 1993 SCMR 1602 and Muhammad Banaras and another v. The State 1988 SCMR 931 ref.

Dost Muhammad Khan for Appellant.

S. Saeed Hassan Sherazi, A.A.‑G, for the State.

Khawaja Muhammad Khan for the Complainant.

Date of hearing: 26th January, 1999.

YLR 2001 PESHAWAR HIGH COURT 2603 #

2001 Y L R 2603

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

NOOR BAHADUR KHAN and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision Petition No.12 of 1997, heard on 23rd May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.514‑‑‑Forfeiture of bail bonds‑‑Trial Court reducing the liability of petitioners under surety bonds from Rs.40, 000 to Rs.20,000‑‑‑On default sureties were directed to deposit Rs.20, 000 each‑‑‑Contention was that when Trial Court had already reduced the amount of bail bond from Rs.40,000 to Rs.20,00a, liability of each surety would be Rs.10,000‑‑‑Validiq‑‑‑Original amount having been reduced to Rs.20,000, liability of each surer), would be Rs.10, 000 and not Rs. 20, 000.

Dost Muhammad Khan for Petitioners.

Shaukat Hayat Khan, Dy. A.‑G. for the State.

Date of hearing: 23rd May, 2001.

YLR 2001 PESHAWAR HIGH COURT 2910 #

2001 Y L R 2910

[Peshawar]

Before Nasirul Mulk and Ijaz‑ul‑Hassan, JJ

ISHTIAQ AHMED ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.2 of 1998, decided on 5th December, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S. 164‑‑‑ Confession‑‑‑ Retracted confession‑‑‑Evidentiary value‑‑‑Court in order to judge the evidentiary value of retracted confession is to advert to the question whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth and if the Court is satisfied on such aspects, same irregularities appearing in recording the confession would not warrant disregarding the same.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), 5.164‑‑‑Appreciation of evidence‑‑Accused immediately after his arrest had confessed his guilt before the Magistrate who had recorded his confessional statement properly after having fulfilled all legal requirements‑‑‑Confessional statement of accused was corroborated by medical evidence, recovery of crime weapon on the pointation of accused, recovery of crime empties and the reports of Chemical Examiner and Fire‑arm Expert‑‑‑Credentials of the recovery witnesses could not be assailed‑‑‑Mere fact that some of the witnesses belonged to different villages and some of them were related to the deceased, by itself, was no ground to discard their testimony when nothing was available on record to doubt their credentials‑‑‑Medical report had fully supported the prosecution version with regard to the dimensions and size of the injuries found on the dead body of the deceased‑‑‑Accused had even admitted his presence on the spot at the time of occurrence‑‑‑Conviction and sentence of accused were maintained in circumstances.

Abdullah Jan Mirza and Shad Muhammad for Appellant.

Addl. A.‑G. for the State.

S. Amjad Shah for the Complainant.

Date of hearing: 15th November, 2000.

YLR 2001 PESHAWAR HIGH COURT 2918 #

2001 Y R 2918

[Peshawar]

Before Ijaz‑ul‑Hassan, J

MUHAMMAD RIAZ‑‑‑Petitioner

versus

GULAB and 3 others‑‑‑Respondents

Criminal Miscellaneous No.52 of 2000, decided on 17th September, 2001.

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

‑‑‑‑S.497(S)‑‑‑Penal Code (XLV of 1860), S.337‑A(ii)l34‑‑‑Cancellation of bail‑‑Principle‑‑‑Considerations for grant of post arrest bail and cancellation of bail are entirely different‑‑‑Once concession of bail has been granted to an accused by a Court of competent jurisdiction it should not be recalled lightly unless it becomes necessary to deprive him of his liberty under the law.

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

‑‑‑‑S.497(S)‑‑‑Penal Code (XLV of 1860), S.337‑A(ii)l34‑‑‑Cancellation of bail‑‑Accused had been assigned a specific role of causing injury on the head of the complainant with the blunt side of his axe resulting in fracture of his skull‑‑‑Said injury had gone deep and had it been with a slightly more force, it would have smashed the brain‑‑Complainant had remained in two different hospitals for more than a week‑‑‑Brain of the complainant had shown haemorrhage according to his medical report‑‑‑Mere fact that the accused did not repeat the blow despite the complainant being at his mercy, by itself, did not constitute a valid ground for grant of bail‑‑‑No leniency in the matter of bail could have been shown to the accused‑‑Bail allowed to accused was cancelled in circumstances.

Muhammad Afzar v. Khial Mast and another PLD 1992 Pesh. 158; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97; Arab Gul and 3 others v. Amir Rabi and another 1999 PCr.L.J. 1675; Mst. Shafiqa v. Hashim Ali and another 1972 SCMR 682; Bachal and 6 others v. The State 1973 SCMR 102; S.Amanullah Shah v. The State and another'PLD 1996 SC 241; Bahadur v. The State and another 1998 PC.r.L.J. 695 and Usman v. Muhammad Azam and another 2001 PCr.LJ 1461 ref.

‑‑‑‑S.497(5)‑‑‑Penal Code (1Q,V of 1860), 5.337‑A(ii)l34‑‑‑Cancellation of bail‑‑Accused were charged for causing stick blows to the complainant at the instigation of their father (co‑accused)‑‑‑Bail had been granted to accused by lower Court for valid reasons which hardly warranted interference by High Court‑‑‑Petition for cancellation of bail was dismissed accordingly.

Malik Manzoor Hussain for Respondents Nos.1 to 3.

Ghulam Mustafa Khan Swati and Ghulam Younas Tanoli for the State.

Date of hearing: 17th September, 2001.

YLR 2001 PESHAWAR HIGH COURT 2921 #

2001 Y L R 2921

[Peshawar]

Before Ijaz‑ul‑Hassan, J

AFRASIAB‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.209 of 2001, decided on 19th October, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.382/337‑A(ii)l34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13-‑‑Bail‑‑ Accused had allegedly given "Chhuri" blows to the complainant in order to deprive him of his cash and belongings‑‑‑Accused was overpowered and apprehended at the spot and the "Chhurri " was snatched from him‑‑ Medical evidence and statements of the prosecution witnesses had fully supported the charge‑‑‑Record did not indicate false implication of accused in the case due to previous enmity with the complainant‑‑ Minority of accused was not apparent from the file‑‑‑Minority alone could not be a ground for bail in the presence of sufficient material on record against the accused connecting him with the offence ‑‑‑ Rule of consistency was not applicable to the case of accused as role attributed to him was quite distinguishable from the role of co‑accused already released on bail‑‑‑Accused was directly nominated in the promptly recorded F.LR. for the offence and prima facie he was associated with the crime‑‑‑Bail was disallowed to accused in circumstances.

Liaqat Shah v. The State 2001 P Cr. L. J 1723; Muhammad Yousaf v. The State 2000 MLD 1697 and Shahzad and 2 others v. The State 2000 PCr.LJ 1000 ref.

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

‑‑‑‑Ss.497/498‑‑‑Bail‑‑‑Minority of accused‑‑Minority of accused alone is not a ground for grant of bail if sufficient material is available on record to connect him with the offence.

Sheikh Mehmood Ahmad for Petitioner.

Ghulam Younis Khan Jamali for the State.

Malik Amjad Ali for the Complainant.

Date of hearing: 19th October, 2001.

YLR 2001 PESHAWAR HIGH COURT 3185 #

2001 Y L R 3185

[Peshawar]

Before Nasirul Mulk and Ijaz‑ul Hassan, JJ

FAREESH GUL‑‑‑Appellant

versus

ZARPARI and another‑‑‑Respondents

Jail Criminal Appeal No. 4 of 1997, decided on 11th October, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Motive for the incident had been Proved against the accused‑‑‑Eye‑witnesses being inmates of the house, their presence at venue of occurrence at the material time, could not be open to suspicion who had furnished consistent, coherent and trustworthy evidence‑‑‑Medical evidence, recovery of crime weapon at the instance of accused and reports of the Chemical Examiner and Fire‑arm Expert had further connected the accused with the n under of the deceased ‑‑‑FI.R. in the circumstances of the case could not be said to have been lodged with delay‑‑‑Stand taken by accused was an afterthought and was not substantiated on record‑‑‑Conviction and sentence of accused were upheld in circumstances.

Saeed Akhtar and others v. The State 2000 SCMR 383; Nazir and others v. The State PLD 1962 SC 269; Din Muhammad v. The Crown 1969 SCMR 777 and fqbal alias Bala and 2 others v. The State 1994 SCMR 1 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑Motive‑‑‑Existence of motive or its complete absence would be wholly immaterial if the prosecution proves its case by ocular evidence of unimpeachable character.

Saeed Akhtar and others v. The State 2000 SCMR 383 ref.

‑‑‑‑ Motive ‑‑‑Existence of motive or its complete absence would be wholly immaterial if the prosecution proves its case by ocular evidence of unimpeachable character.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑ Appreciation of evidence‑‑Interested witness‑‑‑Principle‑‑‑Evidence furnished by interested witnesses related to the victim or the deceased cannot be discarded simply because of their such relationship, but its corroboration has to be sought from other evidence present on record.

Nazir and others v. The State PLD 1962 SC 269 and Din Muhammad v. The Crown 1969 SCMR 777 ref.

(e) Criminal trial‑‑-

‑‑‑‑Evidence‑‑‑Interested witness ‑‑‑Principle‑Evidence furnished by interested witnesses related to the victim or the deceased cannot be discarded simply because of their such relationship, but its corroboration has to be sought from other evidence present on record.

(f) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Interested witness‑‑-Connotation‑‑‑Interested witness is one who has a motive for false implication of accused, is a partisan witness and is involved in the matter against the accused‑‑‑Friendship or relationship with the deceased, however, will not discredit a witness when he has no motive to falsely involve the accused.

Iqbal alias Bala and 2 others v. The State 1994 SCMR 1 ref.

(g) Criminal trial‑‑-

‑‑‑‑ Number of witnesses‑‑‑Prosecution is not bound to examine all the witnesses‑‑Emphasis is placed always on quality and not quantity.

Haji Sabir Hussain Tanoli for Appellant.

Muhammad Ayub Khan, A.‑A.G. for Respondents.

Date of hearing: 11th October, 2000

Quetta High Court Balochistan

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1668 #

2001 Y L R 1668

[Quetta]

Before Ahmed Khan Lashari, J

PASHTOON YAR‑‑‑Appellant

versus

THE STATE‑-‑Respondent

Criminal Appeal No.366 and Criminal Revision Petition No. 138 of 2000, decided on 26th June, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324/34 & 337‑D‑‑‑Appreciation of evidence‑‑‑Occurrence, place of occurrence and causing of bullet injuries by means of a pistol to the complainant were not denied by the accused, but he had pleaded that the incident had taken place in a different manner‑‑‑Plea taken by accused, however, was not proved on record‑‑ Accused had not explained on record as to why he remained absconder and did not report the matter to police for the offence allegedly committed by the complainant‑‑‑Trial Court, however, had not delivered the judgment in accordance with the provisions of S. 324, P. P. C. which was to be rectified‑‑‑After finding the offence under S. 324, P. P. C. against the accused having been proved, Trial Court should have convicted him for the injuries caused to the complainant apart from convicting him under S.324, P. P. C. ‑‑‑Medical Certificate showed that four injuries caused to the complainant had extended to the body cavity of the trunk which fell under S.337‑D, P.P.C. and provided punishment up to 10 years' R.I., as Ta'zir and payment of Arsh amounting to 1/3rd of Diyat‑‑‑Accused was consequently also convicted under 5.337‑D, P.P.C and sentenced to undergo three years' R.I. with payment of Arsh amounting to Rs. 94, 953 to the injured complainant ‑‑‑Co‑accused having been convicted and sentenced to 5 years' R.I. under S. 324, P. P. C. by High Court on the same allegations, sentence of seven years' R. I. awarded to accused under S.324, P. P. C. by the Trial Court was reduced to 5 years' R.I. keeping in view the law of consistency‑‑Both sentences were ordered to run concurrently with benefit of S.382‑B, Cr. P. C.

Muhammad Nawez Khan Barakzai for Appellant (in Criminal Appeal No. 366` of 2000).

Amanullah Kanrani for the Complainant (in Criminal Appeal No.366 of 2000).

Amanullah Kanrani for Appellant (in Criminal Revision Petition No. 138 of 2000).

Muhammad Nawaz Barakzai for the Private Respondent (in Criminal Revision Petition 138 of 2000).

Date of hearing: 1st June, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1803 #

2001 Y L R 1803

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Tariq Mehmood, J

FARZANA SARWAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.2010 of 2000, decided on 14th December, 2000.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 491‑‑‑Guardians and Wards Act (VIII of 1890), S. 25‑‑‑Custody of minor‑‑Jurisdiction of High Court for issuing directions in the nature of habeas corpus and jurisdiction of Family Court‑‑‑Nature and distinction‑‑‑Two matters one dealing with S.491, Cr. P. C. and the other under the Guardians and Wards Act, 1890 were entirely different and one did not exclude, destroy or overlap the other and there was no repugnancy between the two‑‑‑Provisions of S.491, Cr. P. C. were more appropriate, efficacious and speedy and if the High Court came to the conclusion that a person was illegally or improperly detained in public or private custody, it could restore the custody of the person in whom such custody vested prior to the improper deprivation of the custody‑‑‑Absolute Authority for determination of final custody of minor would vest in a Court under Guardians and Wards Act, 1890, which would finally decide the case of minor, though High Court enjoyed parental jurisdiction in respect of the minor and would keep into consideration the relevant law governing the minors‑‑Language of S. 491, Cr. P. C. showed that High Court could exercise the jurisdiction for issuing direction in the nature of habeas corpus only where a person was illegally or improperly detained in public or private custody within the limits of such High Court‑‑‑Facts of individual cases some times might be such that cover of proceedings of one sort was taken for advancing the substances of the proceedings and thereafter the proceedings were to be diverted to the appropriate channel, be it S.491, Cr.P.C. or one under Guardians and Wards Act, 1890.

Mst. Aisha Bibi v. Nazir and others 1981 SCMR 301; 1998 SCMR 289; Muhammad Javed Umrao's case 1988 SCMR 1891; PLD 1995 SC 633; 1997 SCMR 1480 and PLD 1994 Lah. 577 ref.

H. Shakeel Ahmed for Petitioner.

Mushtaq Anjum for the State.

Ashraf Khan Tanoli, A.‑G. (on Courts' Notice).

Date of hearing: 7th November, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1806 #

2001 Y L R 1806

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Tariq Mehmood, J

SHAHID KHALID‑‑‑Petitioner

versus

CHAIRMAN, SELECTION COMMITTEE, BOLAN MEDICAL COLLEGE, QUETTA and 3 others‑‑‑Respondents

Constitutional Petition No.807 of 2000, decided on 8th February, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Educational institution‑‑Admission in medical college‑‑‑Constitutional jurisdiction, exercise of‑‑‑Petitioner and one of the respondents applied for admission to first year M.B.B.S., in medical college against the reserved seats of District concerned‑‑‑On objection of petitioner that the respondent was not local resident of District concerned, local certificate of respondent was cancelled by the Authority and petitioner being the next candidate standing on merit list, was granted admission in the college‑‑‑High Court on filing Constitutional petition against order of the Authority remanded case for considering the cases of both the petitioner and respondent on merits‑‑‑Authority, according to Admission Policy granted admission to respondent who stood higher on merit as compared to the petitioner‑‑‑Validity‑‑‑Respondent was rightly granted admission on merits according to the Admission Policy of the college‑‑‑Contention that the petitioner having already attended the classes for a couple of months, High Court could make observation that he could be allowed to continue his . studies on equitable considerations, was repelled‑‑‑High Court while exercising its Constitutional jurisdiction could not increase/decrease number of the seats allocated for each District for admission in M. B., B. S., first year on merits on humanitarian grounds and against the express provisions of the Admission Policy‑‑‑Since the petitioner did not stand on merits as against the respondent his attending classes for two months would not create any right in his favour to enable him to continue studying in the college against a seat which did not exist.

Azizullah Kakar for Petitioner.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1812 #

2001 Y L R 1812

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Tariq Mahmood, J

Dr. MUHAMMAD NOOR BALOCH‑‑‑Petitioner

versus

SECRETARY, HEALTH DEPARMTENT, GOVERNMENT OF BALOCHISTAN, QUETTA ‑‑‑Respondent

Civil Petition No.636 of 2000, decided on 4th December, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.l99‑‑‑Writ of mandamus, issuance of‑‑‑Petitioner, who was a doctor was nominated for post‑graduation in a speciality for a period of nine months which period was further extended for fifteen months‑‑Petitioner, according to conditions of nomination, was entitled to house rent allowance admissible under the rules subject to the production of certificate from the Medical Superintendent of Hospital concerned to the effect that the petitioner had not been provided with any house/ Government residential accommodation‑‑Petitioner who allegedly was not provided with Government accommodation, stayed in a hotel during his training and claimed hotel charges and daily allowances for said period which claim was refused by the Authority on the ground that same was not admissible under the conditions of his nomination‑‑Petitioner had sought issuance of writ of mandamus against order of refusal by the Authority‑‑‑Validity‑‑‑Petitioner who under conditions of his nomination was entitled to have house rent allowance could not claim hotel charges and daily allowances‑‑‑Claim of the petitioner was rightly refused by the Authorities‑‑‑Even otherwise the writ of mandamus against the Government could be issued only in case of clear violation of something, having force of law while said condition was absent in case of the petitioner as he was not able to show any rule on the basis of which he could claim hotel charges/daily allowances for such a long period of two years.

PLD 1962 SC 367 ref.

Syed Ayaz Zahoor for Petitioner.

Ashraf Khan Tanoli, A.‑G. for Respondent.

Date of hearing: 27th November, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1820 #

2001 Y L R 1820

[Quetta]

Before Amanullah Khan Yasinzai and Ahmed Khan Lashari, JJ

FOUZIA REHMAN KHAN‑‑‑Petitioner

versus

SELECTION COMMITTEE and others‑‑‑Respondents

Constitutional Petition No.377 of 2000, decided on 30th October, 2000.

Educational institution‑‑‑

‑‑‑‑ Admission in medical college against the seats reserved for Doctors' children‑‑‑Three categories of Doctors were made in the Prospectus for admission‑ purpose: Teaching Staff of College concerned; Doctors serving the Provincial Health Department, and Doctors not employees of Provincial Government, but doing full‑time private medical practice‑‑‑Candidate applied for 'B' Category, but in that category another candidate having more marks was selected‑‑ In Category 'C' another candidate whose father was full‑time private practitioner and was not in Government service, was given admission‑‑‑Candidate after she was declined admission in Category 'B' raised objection against the other candidate who was given admission in Category 'C' contending that her father was in Government service‑‑‑Father of said other candidate who had been in Government service, was transferred to another place of working, but he did not join the service there and remained absent for a continuous period of four to five years from that service and neither received any salary nor joined duty even on service of notice on him and he worked as full‑time private practitioner‑‑‑Since at the time of granting admission to the said other candidate in Category 'C' it was proved that her father was full‑time private medical practitioner and was not in any Government service, ;she was rightly considered for admission in Category ' C'‑‑‑Candidate who could get admission in Category 'B' having not found eligible, would not be entitled for admission under Category 'C'.

H. Shakil Ahmed for Petitioner.

Ashraf Khan Tanoli A.G.

Syed Ayaz Zahoor for Respondents Nos. 1 and 3.

Chaudhry Mumtaz Yousaf for Respondent No.4.

Date of hearing: 4th October, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1831 #

2001 Y L R 1831

[Quetta]

Before Ahmed Khan Lashari, J

MUHAMMAD JAVED MALIK and another‑‑‑Petitioners

versus

DISTRICT MAGISTRATE/CHAIRMAN, PRICE CONTROL COMMITTEE

Respondent

Constitutional Petition No. 10 of 2001, decided on 18th January, 2001.

Balochistan Public Safety Regulation (I of 1947)‑‑‑

‑‑‑‑Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Fixation of rates of items of daily use ‑‑‑Notification‑‑District Magistrate, after having a meeting of District Price Committee which was attended by the dealers including the petitioners fixed rates of poultry items through notification for the month of Holy Ramzan in order to control the self‑fluctuation of prices of said items‑‑Notification was challenged by the petitioners in Constitutional petition alleging that same was issued unlawfully and without jurisdiction and that poultry items were not covered under the schedule of the Balochistan Public Safety Regulations, 1947 ‑‑Validity‑‑Increase in daily use items on one pretext or the other badly affecting the general public, must be checked and there must be check and balance in , order to prevent unjustified enhancement in the price of daily use items‑‑Contention that under Balochistan Public Safety Regulations, 1947, the Magistrate had no authority to fix the rates of unscheduled items, was repelled, because to meet unjustified price hike drastically District Magistrate apart from authority conferred on him under the Regulation, enjoyed powers to check unreasonable or arbitrary increase of rates‑‑‑Petitioner being not entitled to discretionary relief, Constitutional petition, was not maintainable.

Mujeeb Ahmed Hashmi for Petitioners.

Ghulam Mustafa Mengal, Asstt. A.‑G. for Respondent.

Date of hearing: 11th January, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1839 #

2001 Y L R 1839

[Quetta]

Before Javed Iqbal, C.J. and Amanullah Khan Yasinzai, J

Messrs CAMPAIGNER ASSOCIATES (PVT.) LTD. ‑‑‑Petitioner

versus

GOVERNMENT OF BALOCHISTAN and others‑‑‑Respondents

Constitutional Petition No. 1141 of 1999, decided on 14th December, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Article 199 of the Constitution casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within the framework of the Constitution against the infringement of law and Constitution by the Executive Authorities, and strike a rational compromise and a fair balance between the rights of the citizens and the action of the State Functionaries in the larger interest of society‑‑‑Such power was conferred on the High Court under the Constitution and same was to be exercised subject to Constitutional limitations‑‑‑While entertaining Constitutional petition and granting relief in equitable and discretionary jurisdiction, it was necessary not to be guided wholly by the technicalities of the law, but also by the substance of the controversy when the proceedings did not suffer from mala fides of fact‑‑‑Technicalities could not prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise the petitioner was found entitled to receive.

AIR 1950 SC 124 = 1950 SC 594; AIR 1951 Nag.58; AIR 1951 Mad. 70; AIR 1952 Punj. 70; AIR 1951 Madh. Bha.. 21; PLD 1991 SC 691; PLD 1968 SC 171 = 20 DLR (SC) 235; PLD 1968 Lah. 1030; PLD 1979 Lah. 73; 1979 Law Notes 60; PLD 1980 Kar.399; AIR 1951 SC 217; 1951 SCR 344 = 52 Cr.LJ 736; AIR 1953 Cal. 721; PLD 1972 Lah.201; AIR 1963 Cal.433; 51 Cr.LJ 1514; PLD 1988 Lah. 49; PLD 1988 Lah.49; 1991 SCMR 654 and PLD 1990 Lah. 121 ref.

Raja Rab Nawaz for Petitioner.

Ashraf Khan Tanoli for Respondents.

Date of hearing: 19th April, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1849 #

2001 Y L R 1849

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Tariq Mehmood, J

LAL BIBI‑‑‑Applicant

versus

TAJ MUHAMMAD, ASSISTANT PRESS INFORMATION

DEPARTMENT‑‑‑Respondent

Criminal Bail Cancellation No.315 of 2000, decided on 4th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 498 & 497(5)‑‑‑Penal Code (XLV of 1860), S.365‑A/34‑‑‑Anticipatory bail‑‑Cancellation of‑‑‑Incriminating evidence available on record had prima facie connected accused with the commission of the offence and delay in registration of case against the accused had been explained‑‑Incriminating material available on record coupled with the explanation about delay in registration of case, would disentitle the accused to the concession of anticipatory bail‑‑‑Order confirming anticipatory bail passed on unsustainable grounds was recalled.

1983 SCMR 645 ref.

Applicant in person.

Syed Ayaz Zahoor for Respondent.

Mrs. Ashraf Abbas for the State.

Date of hearing: 23rd November, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1855 #

2001 Y L R 1955

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Tariq Mehmood, J

Messrs QASIM & CO. and 2 others‑‑‑Appellants

versus

Messrs BOLAN BANK LIMITED through Manager, M.A. Jinnah Road Branch, Quetta‑‑‑Respondent

Regular First Appeal No.58 of 1999, decided on 4th June, 2001.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 171‑‑Term 'lien'‑‑‑Connotation‑‑‑Lien is a right in one man to retain that which is in his possession, but belongs to another till certain demands of the person in possession are satisfied.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 171‑‑Banker's lien‑‑‑Setting of demand‑‑‑Adjustment of joint and several accounts operated by two or more persons against one individual deposit of one of them‑‑‑For validity of banker's lien, there should be a mutuality of claim between Bank and the depositor‑‑‑In order that it should be permissible to set off one demand against another both must mutually exist between the same parties‑‑‑Joint and several accounts operated by two or more persons cannot be adjusted against the individual deposits of one of them‑‑‑Not open to the Bank to claim the deposit of one partner made on his separate account in order to utilize other deposit against the debt due from the firm‑‑Partnership deposits cannot be applied to the individual indebtedness of one of the partners‑‑‑Bank can exercise right of set off only when money owed by it is a sum certain, which is due, against his same customer, and where there is no agreement, expressed or implied, to the contrary‑‑‑Banker should always be guided by his knowledge of circumstances, and should be conscious in exercising right of set off in such cases.

PLD 1982 Kar. 200; PLD 1980 Kar. 115; Hussain Khan v. Barkat Ali and others PLD 1967 Kar. 829; Punjab National Bank Ltd. v. Arura Mal Durga Das AIR 1960 Punj. 632; .1997 SCMR 1849; Bran‑dao v. Barnett (1846) 12 CI & Fin. 787; N. Muhammad Hussain Sahib v. The Chartered Bank and another AIR 1965 Mad. 266; AIR 1956 Mad. 570; AIR 1928 Lah. 316 and AIR 1945 Mad. 447 ref.

‑‑‑‑ Contract between banker and customer‑‑Nature‑‑‑Such contract is between a debtor and creditor.

Practice and Law of Banking by Sheldon and Fidler 11th Edn., p.31 ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.37‑‑‑Pecuniary obligation arising out of contract‑‑‑Effect on legal representative of deceased party‑‑‑Such contract binds legal representative of deceased party to the extent of the estate of the deceased coming to his hands.

A.D.B.P. v. Sanaullah Khan PLD 1988 SC 67 and Keith do Elements of Law of Contract ref.

(e) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 171‑‑‑Banker's lien‑‑‑Adjustment of amount without consent of account‑holder‑‑Plaintiffs were maintaining and operating account with defendant‑Bank in their own right‑‑‑Amount of Rs.5.5 million was received by the plaintiffs in their own right and the same was remitted by plaintiffs themselves to the credit of their account‑‑‑Defendant‑Bank adjusted some amount towards a guarantee executed by father. of the plaintiffs in his lifetime‑‑‑Contention of the plaintiffs was that the defendant‑Bank had wrongly adjusted the amount and the same was done without their consent‑‑‑Trial Court on the basis of opinion expressed in letter by some official of State Bank of Pakistan dismissed the suit‑‑Validity‑‑‑ Where mutuality was essential to the validity of a set‑off but the same was lacking, question of banker's lien over the amount in dispute did not arise and defendant‑Bank could not claim it as a set‑off of the amount‑‑‑Approach of Trial Court was totally illegal as the Court was under a legal obligation to decide the validity of action of the defendant‑Bank with reference to law and not to base its decision, on the opinion 'expressed in the letter by some official of State Bank of Pakistan‑‑‑Action of defendant Bank was illegal and the plaintiffs were entitled to the amount claimed and transferred from their account‑‑‑Judgment and decree passed by Trial Court were set aside by High Court‑‑‑Suit of the plaintiffs was decreed against the defendant‑Bank with interest at the rate of 10% per annum from the date of institution of suit till the date of decree and from the date of decree till its realization.

Syed Ayaz Zahoor for Appellants.

H. Shakeel Ahmed for Respondent.

Date of hearing: 28th May, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1918 #

2001 Y L R 1918

[Quetta]

Before Ahmed Khan Lashari, J

Haji AHMAD DIN and 8 others‑‑‑Petitioners

versus

THE STATE and 7 others‑‑‑Respondents

Criminal Quashment Application No‑3 of 2001, decided on 27th April, 2001.

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

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), Ss. 337(A) (D) (F)/426/427/148/149/109/118/34‑‑‑Quashing of proceedings‑‑‑Accused had alleged that complainant was not present when F.I.R. was lodged and his signatures found in the F.I.R. were false and even during proceedings of the case the complainant had failed to appear before the Trial Court‑‑‑Complainant verified his signature on the complaint before the Trial Court‑‑‑Record had revealed that the complainant did appear before the Judicial Magistrate and got recorded his statement by involving the accused in the commission of alleged offence and on his complaint F.I.R. was got registered in his presence ‑‑‑Challan was submitted before the Trial Court on completion of investigation and charge was read over and nothing had been done in violation of law‑‑‑No illegalities or irregularities were found on the basis of which the proceedings could be ordered to be quashed‑‑‑Trial having commenced and certain prosecution witnesses having been examined, quashing of proceedings at such a stage would cause serious prejudice to the complainant party‑‑‑Trial Court thus, had rightly concluded that the grounds taken by the accused were not enough for dismissal of the case and the acquittal of the accused.

(b) Criminal Procedure (V of 1398)‑‑‑

‑‑‑‑S. 154‑‑‑Complaint‑‑‑Nature‑‑‑Complaint was a mere information to set the law in motion‑‑‑No legal bar or hard and fast rule existed providing that information or complaint should be made by only one person‑‑‑Contention that joint complaint was not tenable in the eye of law was repelled.

Basharatullah for Petitioners.

Asstt. A.‑G. for the State

Shakeel Ahmed and Iqbal Shah for the Remaining Respondents.

Date of hearing: 6th April, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1955 #

2001 Y L R 1955

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Tariq Mehmood, J

Messrs QASIM & CO. and 2 others‑‑‑Appellants

versus

Messrs BOLAN BANK LIMITED through Manager, M.A. Jinnah Road Branch, Quetta‑‑‑Respondent

Regular First Appeal No.58 of 1999, decided on 4th June, 2001.

(a) Contract Act (IX of 1872)‑‑‑

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑ Contract between banker and customer‑‑Nature‑‑‑Such contract is between a debtor and creditor.

Practice and Law of Banking by Sheldon and Fidler 11th Edn., p.31 ref.

(d) Contract Act (IX of 1872)‑‑‑

A.D.B.P. v. Sanaullah Khan PLD 1988 SC 67 and Keith do Elements of Law of Contract ref.

(e) Contract Act (IX of 1872)‑‑‑

Syed Ayaz Zahoor for Appellants.

H. Shakeel Ahmed for Respondent.

Date of hearing: 28th May, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1979 #

2001 Y L R 1979

[Quetta]

Before Tariq Mehmood, J

Haji ABDUL QADIR‑‑‑Appellant

versus

HAMAYUN JAFFAR and 4 others‑‑‑Respondents

First Appeal from Order Nos. 123 to 129, 136 and 137 of 2000, decided on 28th May, 2001.

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

‑‑‑‑S.13(2)(i)‑‑‑Tenancy agreement‑‑‑Form of‑‑‑Oral or written‑‑‑Scope‑‑‑Provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, do not contain any condition that the agreement must be in a particular form, it may even be verbal‑‑Agreement mentioned in provision of S.13 (2) (i) of West Pakistan Urban Rent Restriction Ordinance, 1959, has been interpreted as any type of agreement without any insistence on formalities‑‑‑Verbal agreement of tenancy has always been accepted as an agreement under the provisions of law‑‑‑Even oral agreement is binding on the parties as the same is neither in conflict with the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, nor opposed to Contract Act, 1872.

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

‑‑‑‑S.13(3)(ii), proviso‑‑‑Bona fide personal need of landlord‑‑ Advance rent received by the landlord‑‑‑Effect‑‑‑Tenancy for specified period ‑‑‑Effect‑‑‑Contention of the tenants was that the landlords had received advance rent and till the time the tenants could not be evicted‑‑‑Plea raised by the landlords was that in case the premises was vacated by the tenants, they were ready to return the advance rent‑‑‑Validity‑‑‑Provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, permitted freedom of contract based on equality of bargaining power in both parties‑‑ Landlords at the time of receipt of advance rent were supposed to know that they were bartering away their personal need‑‑ After accepting advance rent up to a specified date, landlords rendered themselves ineffectual because they had imparted to the tenants something more than the current tenancy‑‑‑After receipt of advance rent, the landlords were not competent to file eviction application against the tenants on the ground of personal requirement, till such time the amount received was adjusted‑‑‑Tenants could not be deprived of the benefit of the proviso to S.13(3)(ii) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Plea raised by the landlords was of no help to them as the purpose for which the amount had been paid was to cover the accruing rents‑‑‑Where tenancy was for a specified period, the eviction application against tenants on the ground of personal requirement was not competent‑‑‑Eviction order passed by Rent Controller was set aside‑‑ Appeal was allowed accordingly.

1992 SCMR 943; 1997 SCMR 1819 and Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 ref.

‑‑‑‑S.13(3)(ii), proviso‑‑‑Bona fide personal need of landlord‑‑‑Tenancy for specified period‑‑‑Ejectment of tenant‑‑‑Conditions specified‑‑‑Where tenancy was for a particular period, then the landlord could not evict the tenant before the expiry of that period, except on ground of damage, subletting, nuisance but not on the ground of personal requirement.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(2)(i) & (3).(ii), proviso‑‑‑Tenancy agreement, termination of‑‑‑Advance rent‑‑Where landlords were keeping the amount of advance rent with them, they could not be allowed to unilaterally terminate the agreement by offering return of balance amount to the tenants subject to vacant possession.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑S. 13 (2)(i)‑‑‑Tenancy agreement‑‑Validity‑‑‑Terms of agreement (may be oral) being not inconsistent to the Ordinance would be operative and binding upon landlord, and they would be bound by it.

Syed Ayaz Zahoor for Appellants.

Basharatullah and Tariq Ali Tahir for Respondents.

Date of hearing: 25th May, 2001:

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 1992 #

2001 Y L R 1992

[Quetta]

Before Fazal‑ur‑Rehman and Ahmed Khan Lashari, JJ

HAYJOO and others‑‑‑Petitioners

versus

MUHAMMAD BAKHSH and another‑‑‑Respondents

Constitutional Petitions Nos.284 and 285 of 2001, decided on 20th June, 2001.

(a) Balochistan Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 18 & 27‑‑‑Scrutiny of nomination papers‑‑‑Presence of candidate at the lime of scrutiny‑‑‑Presence of candidate is not necessary before Returning Officer at the time of scrutiny to raise objection on the nomination., papers of another candidate‑‑Where Returning Officer is satisfied that candidate is not qualified to be elected as a member, he himself is empowered under R.18(3), Balochistan Local Government Elections Rules, 2000, either suo motu or upon any objection, to reject the nomination papers.

(b) Balochistan Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 14(g)‑‑‑Balochistan Local Government Elections Rules, 2000, R.18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Disqualification of candidate‑‑Employee of Levies was employee of the Federal Government‑‑‑Contention of tile candidates was that they were holding hereditary post of Levies and were not in active service of Levies Force and they had appointed some other persons as Bazgeer in their place‑‑‑Validity‑‑‑Candidates were Levies Employees of the Federal Government and after Notification of Levies Rules, 1999, all the appointments were being made in accordance with the Rules on the basis of merits cum‑fitness through Competent Authority‑‑‑High Court, in exercise of discretionary relief in Constitutional jurisdiction, declined to enter into the disputed facts which needed evidence, thorough probe and deeper appreciation and refused to exercise Constitutional jurisdiction to grant the relief in favour of the candidates and did not interfere with the order of rejection of nomination papers of the candidates by District Returning . Officer‑‑Constitutional petition was dismissed in limine.

1986 CLC 939; PLD 1979 Quetta 113 and PLD 1970 Quetta 76 ref.

Muhammad Aslam Chishti for Petitioners (in both cases).

Muhammad Mohsin Javed, Ashraf Khan Tanoli A.‑G. and K. N. Kohli, Dy. A.‑G. for Respondent No. 1 (in both cases).

Date of hearing: 16th June, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 2004 #

2001 Y L R 2004

[Quetta]

Before Ahmed Khan Lashari, J

MUHAMMAD SAEED MUGHAL and 3 others‑‑‑Appellants

versus

Messrs NATIONAL AVIATION SERVICES (PVT.) LIMITED through Malik

Talat Mehmood‑‑‑Respondent

Civil Miscellaneous Appeal No.1 of 2001, decided on 23rd April, 2001.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Temporary injunction, grant of‑‑‑Pre‑conditions‑‑‑In matter of temporary injunction ‑instance‑of prima facie case is not only requirement, but Court is also required to examine the questions of balance of convenience, irreparable loss, conduct of the parties, nature of the controversy, the time likely to be absorbed, the stakes of the parties involved and the workability and reasonableness of the order proposed to be passed.

(b) Trade Marks Act (V of 1940)‑‑‑

‑‑‑‑S. 16(2)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Unregistered trade mark‑‑‑Resemblance of two trade marks‑‑Trade mark of defendants was not registered with the Competent Authority‑‑‑Mark owned by the plaintiffs was 'NESGAS' which was registered in the year 1978, while the disputed mark in use of the defendants was 'YESGAS' which was yet to be registered‑‑Trial Court passed interim injunction in favour of the plaintiffs and restrained the defendants from using their mark ‑‑‑Validity‑‑Plaintiffs had proprietary right to use the trade mark allotted in their favour by the Competent Authority and the defendants had no right to challenge the same or to bring any trade mark which seemed to resemble or was likely and identical to that of plaintiffs' trade mark, unless the same was not registered under the law by the Authority having jurisdiction‑‑‑Where the plaintiffs had made good prima facie case showing that if the defendants were not restrained, the plaintiffs would suffer irreparable loss, injury and damage to their goodwill, reputation and business by creating confusion and deception in the minds of the consumers/purchasers, High Court declined to interfere with the injunction order passed by the Trial Court.

1998 MLD 1234; 1992 CLC 1728; 1989 SCMR 361; PLD 1996 Kar. 122 and PLD 1973 SC 104 distinguished.

Hakimullah Siddiqi v. Messrs Alphaco (Pakistan), Karachi 1987 MLD 2569 and M/s. Khan Foundry and Workshop, Faisalabad v. The Registrar, Trade Marks Registry PLD 1994 Kar. 157 ref.

Kamran Murtaza for Appellants.

M. Riaz Ahmed for Respondent.

Date of hearing: 26th March, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 2014 #

2001 Y L R 2014

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Tariq Mahmood, J

SAIFULLAH‑‑‑Petitioner

versus

SELECTION COMMITTEE FOR ADMISSIONS through Chairman, Public

Service Commission, Ramsay Road, Quetta and 4 others‑‑‑Respondents

Constitutional Petition No.145 of 2001, decided on 11th June, 2001.

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

‑‑‑‑Art. 22(4)‑‑‑Safeguard as to educational institutions in respect of religion etc.‑‑Making provision for advancement of any socially or educationally backward class of citizens‑‑‑Jurisdiction of public authority‑‑Scope‑‑‑Public authority is empowered for making provisions for the advancement of socially backward class of the citizens under the provisions of Art. 22(4) of the Constitution.

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

‑‑‑‑Art. 22(4)‑‑‑Safeguard as to educational institutions in respect of religion etc. ‑‑Distribution of seats in any such educational institution on regional basis or on the basis of population‑‑‑Powers of public authority‑‑Scope‑‑‑Powers of public authority to distribute seats on regional basis or on the basis of population or to control any other type of provisions of reservation, which may be made in matter of admission to an educational institution is not limited by the provisions of Art.22(4) of the Constitution.

‑‑‑‑ Repealing of a statute‑‑‑Rights of parties‑‑‑When a law/bye‑law is altered or repealed during the pendency of an action, the rights of the parties are decided according to law as it existed when the action was initiated and not the law that existed at the time of the judgment or order.

(d) Interpretation of statutes‑‑

‑‑‑‑ Duty of Court‑‑‑Artificial and anomalous construction of statute‑‑‑Effect‑‑Court must make every effort not to declare as redundant any part of statue/bye‑law and must, if necessary, stretch language so as to give the same some meaning justified by its context and object‑‑‑Courts always lean in favour of saving a legislation, and place such construction upon its words as would give reasonable results and would avoid artificial and anomalous construction‑‑‑Question of applying the principle of interpretation as to reasonable results arises only where there is a case of doubtful significance, or where words of the statute admit of two meanings or present two possible constructions‑‑‑Where a statute uses plain words, which are clear and quite unambiguous in their import, there is no room for applying the principles of interpretation, which are merely presumptions in cases of ambiguity‑‑‑Law should be construed in accordance with the intention expressed in the law itself.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Retrospective effect of a statute‑‑‑Where a statute adversely affects existing rights of people, Court would decline to give the same retrospective effect unless compelled.

(f) Interpretation of statutes‑‑‑

‑‑‑‑ Conflict between two special provisions of law‑‑‑When there is a conflict between two special provisions, the Court should lean against repeal of earlier provision by implication.

(g) Prospectus of Bolan Medical College (1999‑2000)‑‑‑

‑‑‑‑Para. 7‑‑‑Word 'existing'‑‑‑Meaning‑‑Boundaries of districts at the time of issuance of Prospectus of Bolan Medical College for the year 1999‑2000 were altered later on‑‑Effect‑‑‑Change in boundaries of districts would not affect any legal proceedings or rights/privileges or liabilities‑‑‑Prospectus of Bolan Medical College for year 1999‑2000 was very clear that the distribution was on the basis of population and in accordance with the existing boundaries of the districts/agencies‑‑‑Word 'existing' as appeared in para.7 of the Prospectus of Bolan Medical College for year 1999-2000, meant which existed at the time of issuance of prospectus or inviting applications.

(h) Prospectus of Bolan Medical College (1999‑2000)‑‑‑

‑‑‑‑Paras. 39 & 45‑‑‑Selection Committee‑‑Status of‑‑‑Preparation of fresh merit list‑‑Failure to challenge the vires of Prospectus of Bolan Medical College for year 1999‑2000‑‑‑Effect‑‑‑Selection Committee was created under para. 45 of Prospectus of Bolan Medical College for year 1999‑2000 and under para.39 of the Prospectus Selection Committee was under obligation to decide the selection of candidates strictly on merit in each category of seats from amongst the applicants according to the conditions laid down in the Prospectus‑‑‑Where the candidate had not challenged the vires of the Prospectus, he was estopped to challenge any para. of the Prospectus‑‑‑Application by the candidate to the Selection Committee for preparation of fresh merit list was of no consequence in circumstances.

(i) Prospectus of Bolan Medical College (1999‑2000)‑‑‑‑

‑‑‑‑Paras. 4, 39, 50 & 52‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.6‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Educational Institution‑‑ Admission to medical college‑‑‑Change in boundaries of districts‑‑ At the time of preparation of final list by the Selection Committee, the district from where the candidate had applied was abolished and area falling in that district was attached to another district‑‑‑Candidate applied to the Selection Committee to prepare a fresh merit list on the basis of the newly formed districts‑‑‑Selection Committee declined to prepare fresh merit list as the result was compiled on the basis of the districts existing at the time of issuance of the Prospectus of Bolan Medical College for year 1999‑2000‑‑Validity‑‑‑Vested right had accrued in favour of the respondents at the time of issuance of prospectus and even at the time of interview or making recommendations by the Selection Committee‑‑‑Decision was announced by the Government after issuance of notification of change in the boundaries of districts and the same was of no effect, it could not take away rights of the respondents‑‑‑Where the right of admission in educational institution financed by Government accrued in favour of respondents, the same being a substantive right could not be deemed to have been lost by subsequent issuance of notification under S.6 of West Pakistan Land Revenue Act, 1967‑‑‑Constitutional petition was dismissed in limine.

H. Shakeel Ahmad for Petitioner.

Haji Ghulam Mustafa Mengal, Addl A.‑G. for Respondents. .

Date of hearing: 7th June, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 2114 #

2001 Y L R 2114

[Quetta]

Before Ahmed Khan Lashari, J

SHAHBAZ KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.23 of 2000, decided on 2nd July, 2001.

Prevention of Corruption Act (II of 1947)‑‑‑

‑‑‑‑S. 5(2)‑‑‑Appreciation of evidence‑‑‑No allegation against the accused that he dishonestly misappropriated, concealed or disposed of the property himself or wilfully allowed some other person to do so and thus, the charge of criminal breach of trust against him had not been established‑‑‑Accused on having been found innocent in the enquiry conducted by the Deputy Commissioner had been reinstated on his post during trial and till passing of the impugned judgment he was performing his duties‑‑‑Only offence presumed to have been committed by the accused was that while disposing of Government property he had ignored certain directions and the prescribed mode for procuring wheat from local Zamindars, but nothing was brought on record to specify the terms and conditions of the purchase of wheat from the said Zamindars in order to enable the Court to reach a definite conclusion‑‑Prosecution had failed to discharge the onus resting on it regarding advance payment of 200 bags of wheat in violation of any order or direction‑‑‑Accused was acquitted in circumstances.

1994 PCr.LJ 1116 ref.

Azizullah Kakar for Appellant.

Ghulam Mustafa Mengal, A.A.‑G. for the State.

Date of hearing: 18th May, 2001

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 2139 #

2001 Y L R 2139

[Quetta]

Before Fazal‑ur‑Rehman and Ahmed Khan Lashari, JJ

MUSA KALEEM‑‑‑Petitioner

versus

ABDUL SATTAR and 3 others‑‑‑Respondents

Constitutional Petition No.234 of 2001, decided on 14th June, 2001.

Balochistan Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 14(e)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Educational qualification of the candidate for election of Nazim of Union Council‑‑Academic qualification less than Matriculation or Secondary School Certificate‑‑‑Effect‑‑‑Mandatory provisions of S.14(e) of Balochistan Local Government Elections Ordinance, 2000, had disentitled the candidate from election of Nazim of Union Council‑‑‑Returning Officer had illegally allowed the candidate to participate in the election‑‑‑Nomination papers filed before Returning Officer were deemed to be submitted without having the requisite qualification of Matriculation or Secondary School Certificate or equivalent from recognized institution‑‑‑Candidate was not qualified to contest the election accordingly.

PLD 1980 Quetta 29 ref.

Kamran Murtaza and Mehmood Khokhar for Petitioner.

H. Shakeel Ahmed and Sultan Ali Shah for Respondent No. 1.

Akhtar Zaman, Addl. A.‑G. for Respondent No. 2.

K.N. Kohli, D.A.‑G. for Respondent No. 3.

Khadim Ali for Respondent No.4.

Date of hearing: 12th June, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 2150 #

2001 Y L R 2150

[Quetta]

Before Fazal‑ur‑Rehman, J

MUKHTAR HUSSAIN‑‑Petitioner

versus

WAHEEDA HABIB and another‑‑‑Respondents

Criminal Quashment No. 16 of 2000, decided on 12th July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.516‑A, 517 & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.420/504/506/396‑‑Petition for quashing the order ‑‑‑Superdari‑‑Pending proceedings, the complainant who claimed to be the owner of vehicle in question filed application for custodyl8uperdari of vehicle which was concurrently accepted by Courts below‑‑‑Magistrate under provisions of S.516‑A, Cr. P. C. was empowered to provide the interim custody of vehicle pending the trial‑‑‑Courts below having dealt with the matter regarding Superdari of vehicle to the complainant during pendency of proceedings, High Court could not substitute the . conclusions which were concurrently and reasonably drawn by the Courts' below‑‑‑No illegality having been pointed out and no justification having been made out for interference in the just concurrent judgments of Courts below, petition for quashing said order was dismissed.

Ghulam Shabbir Lashari v. The State 1991 PCr.LJ 287 ref.

H. Shakil Ahmed for Appellant.

Muhammad Riaz Ahmed for Respondents.

Date of hearing: 9th June, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 2451 #

2001 Y L R 2451

[Quetta]

Before Amanullah Khan Yasinzai, J

Haji GUL BARAN ‑‑‑Appellant

versus

Mst. REHANA MUSHTAQ‑‑‑Respondent

First Appeals from Order Nos. 132 and 133 of 2000, decided on 18th May, 2001.

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

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlady‑‑‑Personal requirement includes requirement of husband‑‑‑Personal requirement is nut only limited to the landlady or her children but it also includes the dependants of the landlady/ landlord‑‑‑No bar on the landlady for filing eviction application on the ground that the premises in dispute was required for the use and occupation of her husband as he was doing business in rented tenements.

Ghulam Mohiuddin v. Nazeer Bibi 1983 SCMR 715 and Masud Ahmed v. Anwar Begum 1983 CLC 1139 rel.

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

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlady‑‑‑Premises required by husband of the landlady‑‑‑Husband doing business in rented premises ‑‑‑Sufficient explanation had been given by the husband of the landlady that since he was doing business on the first floor in the‑ same vicinity and the shops in dispute were more suitable for his business as the same were situated on the ground floor‑‑‑Validity‑‑‑Statement of the attorney of the landlady and statement of her husband for whom the premises was required was in consonance with the averment made in the eviction application‑‑‑Tenant failed to point out any misreading or mis-appreciation of evidence‑‑‑Ample safeguard was provided to tenant under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, for if the landlord/landlady did not occupy the premises after vacating the same, the tenant could apply to the Rent Controller for putting him back into possession‑‑‑High Court declined to interfere with the order of eviction of the tenant passed by the Rent Controller‑‑‑Appeal Was dismissed: in circumstances.

Ghulam Mohiuddin v. Nazeer Bibi 1983 SCMR 715 and Masud Ahmed v. Anwar Begum 1983 CLC 1139 rel.

Sundar Dass for Appellant (in F.A.O. No. 132 of 2000).

Shaukat Rakshani for Respondent (in F:A.O. No. 132 of 2000).

Farrukh Malik for Appellant (in F.A.O. No. 133 of 2000).

Shaukat Rakhsani for Respondent (in F.A.O. No. 133 of 2000).

Date of hearing: 18th April, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 2724 #

2001 Y L R 2724

[Quetta]

Before Tariq Mehmood, J

KHALID HASSAN ‑‑‑Petitioner

versus

SECRETARY TO THE GOVERNMENT OF BALOCHISTAN and others‑‑‑Respondents

Constitutional Petition No.678 of 2000, decided on 10th October, 2000.

Balochistan Minor Minerals Concession Rules, 2000‑‑‑

‑‑‑‑R. 48‑‑‑Constitution of Pakistan (1973), An. 199‑‑‑Constitutional petition‑‑ Auction proceedings, cancellation of‑‑‑Principle of audi alteram partem‑‑‑Violation of‑‑‑Effect‑‑Petitioner was the highest bidder but the Authorities without any notice to tire petitioner cancelled the auction proceedings‑‑‑Validity‑‑‑Authority under R.48 of the Balochistan Minor Minerals Concession Rules, 2000, was competent as an Appellate Authority to cancel the auction proceedings‑‑‑Where neither any notice was issued to the petitioner, nor he was heard before cancellation of auction proceedings, such act of the Authority was against the principle of natural justice‑‑‑Maxim "audi alteram partem" (no one shall be condemned unheard) was applicable to judicial as well as quasi judicial and non judicial proceedings Order of cancellation of auction proceeding passed by the Authority was without law authority‑‑‑Constitutional petition was allowed accordingly. [Maxim].

Syed Ayaz Zahoor for Petitioner.

Ashraf Khan Tanoli, A.‑G. for Respondents.

Date of hearing: 3rd October, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3110 #

2001 Y L R 3110

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Fazal‑ur‑Rehman, J

GHULAM ALI and another‑‑‑Appellants

versus

MUHAMMAD AZAM and others‑‑‑Respondents

Criminal Acquittal Appeal No. 176 of 2000, decided on 11th September, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.337‑H(ii)/427/147/148/149/435‑‑Criminal Procedure Code (V of 1898), 5.417(2‑A)‑‑‑Appeal against acquittal ‑‑‑Eyewitness had made substantial material improvements in his evidence before the Court and no implicit reliance could be placed on his testimony without independent corroboration which was lacking‑‑‑Remaining evidence relating to recoveries being corroborative in nature, by itself, could not result in conviction of accused‑‑‑Incident could not be believed to have taken place in the described manner‑‑‑Trial Court had appraised the prosecution evidence as well as the defence evidence in its true perspective‑‑Impugned judgment of acquittal did not suffer from any illegality or impropriety and did not call for any interference‑‑‑Appeal against acquittal of accused was dismissed in limine accordingly.

1995 SCMR 1789; 1992 PCr.LJ 1963 and Ghulam Sakander and another v. Mamaraz and others PLD 1985 SC 11 ref.

Tahir Muhammad Khan for Appellants.

Date of hearing: 30th August, 2000,

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3115 #

2001YLR3115

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Fazal‑ur‑Rehman, J

SAIFAL and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 346 of 1999, decided on 21st August, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Appreciation of evidence‑‑‑Accused were well‑known to the injured witness and their identification on the spot by him in the headlight of the motor cycle could not be disbelieved‑‑‑Defence had not challenged or disputed the presence of the injured witness on the spot alongwith his father (deceased) on the motorcycle‑‑‑Record did not suggest any reason for the injured witness for involving' the accused falsely in the case and letting off the real culprits who killed his father and injured him seriously by firing‑‑‑Medical evidence had supported the prosecution version‑‑‑Presence of eyewitnesses on the spot at the relevant time was established and identification of accused by them was not open to any doubt‑‑‑Evidence of eye‑witness could not be discarded merely on account of his relationship with the deceased‑‑‑Recovery of blood‑stained earth from near the dead body of the deceased lying on the place of occurrence as a piece of circumstantial evidence had also furnished a limited corroboration to the prosecution case‑‑Trial Court on proper appraisal of evidence had appropriately found the accused to be guilty of the offence and the judgment passed by it was unexceptionable‑‑‑Appeal of accused was dismissed in circumstances.

Tariq Mehmood for Appellants.

Ghulam Mustafa Mengal, A.A.‑G. for the State.

Date of hearing: 11th April, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3128 #

2001 Y L R 3128

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Tariq Mahmood, J

SHAH GUL alias SHAH MUHAMMAD ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 164 of 2000, decided on 23rd October, 2000.

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

‑‑‑‑S. 13‑E‑‑‑Criminal Procedure Code (V of 1898), 5.103‑‑‑Non‑compliance of directive contained in S.103, Cr. P. C. ‑‑‑Appreciation of evidence‑‑‑Spy information having been received seven hours before conducting the raid sufficient time was at the disposal of the police to associate at least two respectable persons of the locality or of nearby areas to witness the search, but no attempt in this behalf was made nor any justification was offered for non‑compliance of the provisions of S.103, Cr.P.C. by any of the prosecution witnesses and as such the mandatory provisions of the law had been deliberately violated by the high ranking police officers including the raiding party and the Magistrate‑‑‑No search warrant had been obtained by the concerned police officers or the Authority responsible for holding the raid and carrying out search of residential houses during the odd hours of the night‑‑‑Even in the absence of any ill‑will, grudge or motive on the part of the police about the false implication of the accused, fabrication of alleged recovery of a Kalashnikov with eighteen rounds could not be excluded‑‑‑Accused was acquitted in circumstances.

Zahid Malik for Appellant.

Ashraf Abbas for the State.

Date of hearing: 16th October, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3133 #

2001 Y L R 3133

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Tariq Mahmood, J

ABDUL BARI ‑‑‑Appellant

versus

Syed ABDUL NAEEM and another‑‑‑Respondents

Criminal Appeal No. 155 of 2000, decided on 5th October, 2000.

Drugs Act (XXXI of 1976)‑‑‑

‑‑‑‑Ss. 27(i) & 23(i)(c) ‑‑‑ Appreciation of evidence‑‑‑In order to bring home the guilt to the accused onus was heavily on the complainant (Drug Inspector) to establish that he was involved in the business of the Medical Store in question or the same was owned by him or he had any interest in the said business or was found selling any drug or in any way was found connected with the sale of drugs of the said Medical Store where he was found present at the time of raid, but no evidence in support of the accusation about the sale of drugs or involvement of accused in the said business had been produced at the trial so as to attract the penal provisions of S.27 of the Drugs Act, 1976 on account of the alleged contravention of the provisions of S.23(i)(c) of the said ActComplainant had made material improvements in his evidence in order to prove the case against the accused‑‑‑Mere presence of accused at the relevant time in the Medical Store in absence of any other supporting evidence was not enough to prove the accusation that he was involved in illegal business of the Medical Store without any Drugs Sale Licence‑‑‑Accused was acquitted in circumstances.

Amanullah Kakar for Appellant.

Respondent No. 1 in person, Ghulam Mustafa Mengal, A.A.‑G. for the State.

Date of hearing: 5th October, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3198 #

2001 Y L R 3198

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Tariq Mahmood, J

Haji SHAUKAT ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.301 and Criminal Revision No. 157 of 1999, decided on 14th June, 2001.

(a) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Hostile witness ‑‑‑Principle‑‑Deposition of a hostile witness can be taken into consideration subject to corroboration‑‑‑Evidence of such witness needs to be scrutinized with great care and caution with a view to find out truth and to come to a just conclusion before relying on the same.

1996 PCr.LJ 1689 ref.

(b) Criminal trial‑--

‑‑‑‑ Evidence‑‑‑Hostile witness‑‑‑Appreciation of evidence given , by a hostile witness‑‑Principles.

1996 PCr.LJ 1689 ref.

‑‑‑‑Ss.302(c) & 302(b) ‑‑‑ Appreciation of evidence‑‑‑Dying declaration made by the deceased before her death to her father holding the accused guilty was corroborated by the recovery of revolver at the instance of accused, medical evidence, report of Fire arms Expert and circumstantial evidence relating to the conduct of the accused‑‑‑Dying statement of the deceased was true, genuine and voluntary and could be safely relied upon‑‑‑Accused himself had admitted that at the relevant time he was present in the house with a revolver from which a bullet went off and hit the deceased but said statement of the accused was negated by the fact that deceased had suffered multiple wounds of gun‑shot‑‑-Prosecution, thus, had established the charge of Qatl‑i‑Amd of the deceased against the accused beyond any shadow of doubt‑‑‑No mitigating circumstance was available on record in favour of accused and he was liable to normal sentence of death‑‑‑Conviction of accused under S. 302 (c), P. P. C. was consequently convened to S. 302(b), P. P. C. and he was sentenced to death.

PLD 1976 Pesh. 90; 1987 MLD 2638; PLD 1982 Lah. 577; 1992 SCMR 1625; PLD 1996 Quetta 40; 1996 PCr.LJ 1689; PLD 1982 Lah. 180; AIR 1940 Sind 53; 1998 PCr.LJ 216; 1982 SCMR 53; PLD 2001 SC 107; 1989 PCr.LJ 373; 1998 PCr.LJ. 837; PLD 2000 SC 12; 1995 SCMR 1776; Abdus Salam v. The State 2000 SCMR 338 and Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12 ref.

Criminal Appeal No. 301 of 1999

Muhammad Aslam Chishti for Appellant.

Mrs. Ashraf Abbas for the State.

Akhtar Zaman for the Complainant.

Criminal Revision No. 157 of 1999.

Akhtar Zaman for Appellant.

Muhammad Aslam Chishti for Respondent.

Mrs. Ashraf Abbas for the State.

Date of hearing: 11th April, 2001.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3234 #

2001 Y L R 3234

[Quetta]

Before Amanullah Khan Yasinzai, J

SOHBAT KHAN‑‑‑Petitioner

versus

ABDUL QADIR and another‑‑‑Respondents

Civil Revision No. 317 of 1999, decided on 9th May, 2000.

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

‑‑‑‑O. VII, R. 2‑‑‑Suit for recovery of amount of money‑‑‑Plaintiff through convincing evidence had proved that he had not received suit amount from the defendants and defendants who claimed that they had paid the amount to the plaintiff in advance at the time of taking land in question, had failed to prove their plea as their evidence was in contradiction with the stand taken by them in their written statement‑‑‑Trial Court after proper appreciation of evidence on record, had rightly decreed the suit holding that amount of money was outstanding against the defendants.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Where the Appellate Court below had reversed the well‑reasoned findings of the Trial Court without giving any cogent and substantial reason, High Court in its revisional jurisdiction would be well within its powers to set aside judgment of the Appellate Court below based on surmises and conjectures and restore well‑reasoned judgment of the Trial Court.

1995 MLD 45 ref.

Azizullah Kakar for Petitioner.

Mumtaz Hussain Baqri for Respondents.

Date of hearing: 10th April, 2000.

YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3323 #

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YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3342 #

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YLR 2001 QUETTA HIGH COURT BALOCHISTAN 3354 #

2001 Y L R 3354

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Fazal‑ur‑Rehman, J

MUHAMMAD HANIF and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.231 of 1999, decided on 16th August, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑Accused being residents of the same Mohallah and well‑known to the prosecution witnesses, identification test held by the Investigating Officer was worthless‑‑‑Nomination of accused almost after one month of the occurrence in the absence of any plausible explanation had created serious doubt on the version of the eye‑witnesses that they at the time of incident had identified the accused‑‑Said nomination of accused in the absence of any supporting evidence could not be implicitly relied upon‑‑‑Remaining evidence comprising of medical evidence, recovery of crime empties, blood‑stained clothes and earth could not independently warrant conviction of accused‑‑‑Accused were acquitted in circumstances.

Muhammad Aslam Chishti for Appellants.

Ghulam Mustafa Mengal, Asstt. A.‑G. for the State.

Date of hearing: 10th April, 2000.

Supreme Court Azad Kashmir

YLR 2001 SUPREME COURT AZAD KASHMIR 101 #

2001 Y L R 101

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Khawaja Muhammad Saeed, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and another‑‑‑Appellants

versus

KHURSHID AHMAD and another‑‑‑Respondents

Civil Appals Nos.40 to 44 of 1999, decided on 31st May, 2001.

(On appeal from the judgment and decree of the High Court dated 5‑4‑1999 in Civil Appeals Nos.55, 57, 58, 59, 60 and 61 of 1998).

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

‑‑‑‑O. VII, R. 11 (a) & (b)‑‑‑Rejection of plaint‑‑‑Undervalued plaint‑‑‑Where case fell within ambit of O. VII, R. 11 (a) & (b), C.P.C., the plaintiff must be required by the Court to correct the valuation and pay proper court fee within the time fixed by the Court‑‑If plaintiff or appellant failed to do the needful within the time fixed by the Court then the plaint or memorandum of appeal, could be rejected.

Messrs Nabi Bakhsh v. Pakistan PLD 1969 Kar. 566; M. Dodla Malliah v. The State of Andhra Pradesh AIR 1964 Andh. Pra. 216; Executive Engineer, Building Division, Mirpur v. Raja Muhammad Nawaz Khan PLD 1994 SC (AJ&K) 32; Manzoor Ahmad Naqashbandi v. M.A. Farooq 2000 YLR 2842; Sh. Muhammad Islam v. Adeeba Khanum 1985 CLC 1619; Secretary of State v. K.S. Bannerjee AIR 1927 Cal. 45 and Debi Din v. Secretary of State AIR 17939 All. 127 ref.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978‑‑

‑‑‑‑O.XIV, R. 10, O.XV R.5 & Sched.‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Appeal to Supreme Court‑‑‑Matter was governed by the Azad Jammu and Kashmir Supreme Court Rules, 1978 read with the relevant provisions contained in the Court Fees Act, 1870‑‑Appellants were bound under O.XIV of the Azad Jammu and Kashmir Supreme Court Rules, 1978 to fix definite value for the purpose of the court fee and pay the same according to Part II of Third Sched. to the Rules within 30 days after the direction of the Registrar, of the Supreme Court but the appellants did not make up the deficiency in the court fee and instead followed a contumacious attitude despite the directions of the Assistant Registrar of the Court‑‑‑Appeal which was filed by the Government entailed dismissal on that sole ground under R.5 of O.XV of Azad Jammu and Kashmir Supreme Court Rules, 1978.

‑‑‑‑Ss. 4, 23 & 34‑‑‑Determination of market value of acquired land‑‑‑High Court had relied upon eight sale‑deeds in its judgment for ascertaining the market value of the acquired land‑‑‑Contention that sale‑deeds relied upon by the High Court, related to smaller pieces of the land and thus could not constitute right criteria for ascertaining the market value of the land was repelled‑‑Where the sale‑deeds of larger pieces of land were not available, the market value could be fixed on the basis of sale‑deeds of smaller pieces of land.

Ch. Muhammad Sharif Tariq for Appellants.( in all the Appeals).

Ch. Muhammad Azam Khan, Raja Hassan Akhtar and Ch. Muhammad Anwar for Respondents (in all the Appeals).

Date of hearing: 24th May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 108 #

2001 Y L R 108

[Shariat Court (Azad J&K)]

Before Iftikhar Hussain Butt, J

NAMATULLAH and another‑‑‑Appellants

versus

THE STATE through Muhammad Hanif, and another‑‑‑Respondents

Criminal Appeal No.25 and Reference No.64 of 1999, decided on 13th June, 2001.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 307/34‑‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss. 5 & 15‑‑‑Appreciation of evidence‑‑‑Prosecution witnesses whose presence at the place of the occurrence was not doubted, had given first hand account of the occurrence before the Trial Court ‑‑‑Eyewitnesses were unanimous on the point that the deceased was done away with his life by inflicting injuries with a "Churri " by the accused‑‑‑Eye‑witnesses who had no enmity or grudge to falsely implicate the accused remained firm in cross‑examination and story narrated by said witnesses stood corroborated by medical and other corroborating and confirmatory evidence‑‑‑Eye‑witnesses were found "Adil" in purgation‑‑‑F.I.R. was lodged promptly and the prosecution case did not suffer from any material illegality or infirmity‑‑‑Motive of occurrence alleged by the prosecution stood proved by the evidence adduced by the prosecution‑‑‑Recovery of weapon of offence stood proved and recovery of blood‑stained grass and clay and other articles from the place of occurrence, had provided sufficient corroboratory evidence‑‑Report of Chemical Examiner had shown that recovered articles were stained with blood‑‑Version set up by the accused in defence seemed to be improbable, concocted and afterthought in view of the evidence and the circumstances‑‑‑Non‑explanation of any injury on the person of accused was not by itself sufficient to create any doubt in prosecution story‑‑‑Accused could not prove that the offence was committed under state of grave and sudden provocation‑‑‑No material irregularity was found which could injure the main story of the prosecution or damage the credibility of the eye‑witnesses‑‑‑Prosecution had brought guilt home to the accused beyond any shadow of doubt‑‑‑No mitigating circumstances having been found for lesser punishment to the accused "Qisas " being normal sentence of murder, would meet the ends of justice.

2001 P.Cr. LJ 524; Khalid and another v. The State PLJ 1983 SC (AJ&K) 98 and 1992 SCR 249 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Words 'Contradiction' and 'discrepancy' in evidence‑‑‑Meaning and distinction‑‑‑Clear distinction existed between expression 'contradiction' and discrepancy'‑‑‑Contradiction would mean the statement to the opposite or a denial or an inconsistent statement, whereas, mere discrepancy would not amount to an inconsistency and denial of facts expressed by a witness‑‑‑Very material discrepancy or glaring contradiction coming into conflict with the material probabilities would militate against the credibility of witnesses justifying the rejection of their testimony‑‑‑Some discrepancies in ordinary course of nature were inevitably bound to occur on account of lapse of memory and power of observation and perception‑‑‑Parrot‑like reproduction of statement could only be expected from the witnesses who went through several rehearsals and were well‑tutored‑‑‑If the ocular version was cogent, coherent and reliable about the main story of the prosecution, the minor discrepancies would not matter much.

Khalid and another v. The State PLD 1983 SC 73 ref.

(e) Criminal ProcedureCode (V of 1898)‑‑‑

‑‑‑‑S.154‑‑‑F.I.R., nature and purpose of‑‑F.I.R. was not a detailed document so as to include each and every detail of the incident reported therein‑‑‑Purpose of F.I.R. was to set into motion the legal machinery for registration and investigation of the case.

(d) Criminal trial‑‑

‑‑‑‑Evidence‑‑‑ Interested witness‑‑‑ Corroboration ‑‑‑Not a rule of law that the statement of an interested witness could not be relied upon without corroboration, but it was always the value of the testimony which would matter‑‑‑If the Court was satisfied that the statement of a witness was clear, natural, convincing and trustworthy, it could be relied upon without any corroboration‑‑Contention that the relationship of prosecution witnesses would make their evidence unreliable, was repelled‑‑‑Evidence of an interested witness was not always ignored‑‑‑Mere relationship of witness with the deceased, was not by itself enough to discard his statement and an interested witness was one who had an animus for false accusation‑‑‑If an interested witness was natural witness and his evidence rang true in the context and the circumstances of the case free from any fault and un-contradicted by the cogent circumstances emerging from the case, it must be relied upon as the basis for conviction, without any corroboration‑‑Evidence of the friends and related witnesses could not be thrown away because of mere relationship as conviction could be based even on evidence of interested witnesses without any corroboration, provided the evidence was coherent, satisfactory and worthy of credence‑‑‑Corroboration was insisted upon only by way of abundant caution to satisfy the mind of the Court so that no innocent person was being implicated.

(e) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Police Officer as witness‑‑Police Officers were also as good and reliable witnesses as other persons provided their deposition did not suffer from inherent defects.

Muhammad and others v. The State PLD 1981 SC 635 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑ Appreciation of evidence‑‑Sentence‑‑‑Motive‑‑‑Motive was not a sine qua non for proving an offence of murder‑‑‑If the motive was set up by the prosecution and was not proved by it, same would not damage its case, if otherwise commission of murder was proved by other evidence‑‑‑Weaknesses of motive or its absence or where it was alleged, but was not proved, would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances where the eye‑witnesses account was worthy of credence, unimpeachable and confidence inspiring.

Usman Khalid v. Muhammad Younas and another 1996. SCR 197; Waris Khan v. The State 2001 SCMR 387 and Nawaz Ali and another v. The State 2001 SCMR 726 ref.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.300‑‑‑Grave and sudden provocation‑‑Before claiming the benefit of grave and sudden provocation it was incumbent upon the accused to prove that the homicide provocation was so grave and sudden that it deprived the accused from their power of self-control‑‑‑Provocation should be such that it would upset not merely the hasty, hot-tempered and hyper‑sensitive person, but would upset also a person of ordinary senses and calmness‑‑‑Accused could not get benefit of provocation merely on the ground that the deceased had committed "Zyedati " with female related to the accused.

PLD 1988 SC (AJ&K) 134; PLD 1988 SC 207; 1992 SCMR 2047; PLD 1994 Lah.392; Munawar Ali v. The State 2001 SCMR 614; Dhanno Khan 1957 Cr.LJ 498; Muhammad Qasim alias Baga v. The State PLD 1984 SC (AJ&K) 21 and Muhammad Yousaf and others v. The State 1990 PCr.LJ 1390 ref.

(h) Criminal trial-‑‑

‑‑‑‑Evidence‑‑‑If a number of witnesses were on certain point, the prosecution was not obliged to produce all of them and non-production of same would not be necessary in the absence of anything else giving rise to the adverse inference against the prosecution.

1983 SCMR 341 and 2001 PCr.LJ 524 ref.

(i) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑If the testimony of a chance witness rang true, it could be relied upon without seeking any corroboration.

1992 SCR 249 and 2001 SCMR 424 ref.

Mirza Muhammad Nisar for Appellants.

Muhammad Riaz Alam for the Complainant.

Sardar Muhammad Ilyas Khan. A.A. ‑G. for the State.

YLR 2001 SUPREME COURT AZAD KASHMIR 132 #

2001 Y L R 132

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

MUHAMMAD ARIF and another‑‑‑Appellants

versus

Subedar MUHAMMAD RAFIQUE and 9 others‑‑‑Respondents

Civil Appeal No.22 of 2001; decided on 31st May, 2001.

(On appeal from the judgment of the High Court, dated 18‑11‑2000 in Civil Appeal No.36 of 2000).

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

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑‑‑Suit for perpetual injunction‑‑‑Grant of interim relief‑‑‑Vacation of order of interim relief‑‑‑Claim of plaintiff was that his father had entered into possession of the suit‑land and since many years back he had made improvements in the shape of construction of houses wherein he was living alongwith his family‑‑‑Plaintiff had prayed that he should, not be dispossessed from the suit‑land except through lawful means and his possession could not be disturbed by unlawful means‑‑‑Possession of the plaintiff and his father over the suit‑land was admitted by the defendants, but they had claimed that the possession of the plaintiff on the suit‑land was that of a trespasser‑‑Plaintiff having possessory title, though permissive in nature over the suit‑land wherein he had made improvements in the shape of construction of houses and was living therein since long, would. not be debarred from seeking requisite relief from the Court of competent jurisdiction‑‑‑Even a trespasser who was in occupation of a certain land or in the house built therein, could not be ejected from the said property except in due course of law‑‑‑Law would not recognise the unlawful and unfair means for the ejectment of a person who was in use of property‑‑‑Interim relief was rightly granted to the plaintiff by the Trial Court‑‑‑Appellate Court and High Court were not justified in observing that plaintiff was a trespasser in the suit‑land and no interim relief could have been granted to him‑‑‑Judgments passed by the High Court and Appellate Court below, were set aside, in circumstances.

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

‑‑‑‑O. VII, R.I‑‑‑Plaint‑‑‑Cause of action‑‑Averments made in the plaint were to be presumed to be correct for the purpose of giving cause of action to a Court of law and it was to be decided ultimately after the conclusion of the trial as to whether plaintiff had any cause of action to file the suit against the defendants.

‑‑‑‑O. XXXIX, Rr.l & 2‑‑‑Grant of stay order‑‑‑Points to be considered‑‑‑Court of law was not expected to examine closely the merits of the case of the parties at the stage of grant or refusal of stay order‑‑‑All that a Court had to see was whether the plaintiff had a prima facie case and the comparative balance of convenience, irreparable loss was likely to follow in case of refusal.

Bashir Ahmed and others v. Muhammad Qasim and others 1992 SCR 165; Muhammad Rasab and others v. Muhammad Siddique Chaudhry 1998 MLD 2045 and Jaffar Khan v. Mrs. Zeenat‑un‑Nisa and 7 others 1984 CLC 3019 ref.

Ch Muhammad Sharif Tariq for Appellants.

M Nisar Anjum for Respondents Nos. 2 to 5.

Date of hearing: 30th May, 200.

YLR 2001 SUPREME COURT AZAD KASHMIR 141 #

2001 Y L R 141

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Messrs KASHMIR POLYTEX LIMITED‑‑‑Appellant

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Secretary, Ministry of Industries and Commerce, Muzaffarabad and 8

others‑‑‑Respondents

Civil Appeal No. 112 of 2000, decided on 25th April, 2001.

(On appeal from the judgment of the High Court, dated 25‑3‑2000 in Writ Petition No.71 of 1996).

Central Excise Rules, 1944‑‑‑

‑‑‑‑R. 96‑ZZL ‑‑‑Central Excises Act (I of 1944), Ss.2(19), 3, 3‑C,3CC, 4 & 35 & First Sched.‑‑‑Excise duty, levy of ‑‑‑Assessee engaged in manufacturing polypropylene bags had contended that strips used in manufacturing bags as raw material, were not excisable as same did not fall in Hdg.54.04, Chap.54 of the First Sched. Of the Central Excises Act, 1944‑‑‑Validity‑‑Such strips were liable to be assessed for payment of excise duty under R.96‑ZZL of Central Excise Rules, 1944‑‑‑Strips having been claimed to bean "intermediary product" being vendible and having a distinct entity fell within scope of excisable goods‑‑Rule 96‑ZZL of Central Excise Rules, 1944, was not violative of Ss.3‑CC & 4 of the Central Excises Act, 1944‑‑‑Polypropylene strips being capable of being sold, the mere fact that they were not end products, was not enough to save them from levy of excise duty.

Commissioner of Income‑tax (Central), Karachi v. Messrs Fakir Cotton Ginning and Pressing Industries Limited, Gambat and another 1991 PTD 573; Commissioner of Sales Tax v. Crescent Pak Soap and Oil Mills Ltd. 1986 PTD 238; Messrs Central Insurance Company and others v. The Central Board of Revenue, Islamabad and others 1993 SCMR 1232; Messrs Kohinoor Raiwind Mills Ltd. and another v. Central Board of Revenue and others 2000 PTD 3351; Adil Polyproplylene v. The Federation of Pakistan and others 1997 MLD 2189; Sh. Fazal Elahi v. Federation of Pakistan and 3 others 1988 MLD 524; Nazim Poly Sack Limited and 5 others v. The Federation of Pakistan and others PLD 2000 Lah. 302 and Sh. Fazal Elahi v. Federation of Pakistan and 3 others 1988 MLD 524 ref.

Ch. Muhammad Afzal for Appellant.

Ch. Muhammad Mushtaq, Additional Advocate‑General for Respondent No. 1.

Umar Mehmood Kasuri for Respondents Nos.2 to 9.

Date of hearing: 25th April, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 155 #

2001 Y L R 155

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

JAWAD LIAQAT and 5 others‑‑‑Appellants

versus

Haji MUHAMMAD LAL and 5 others‑‑‑Respondents

Civil Appeal No. 17 of 2001, decided on 28th May, 2001.

(On appeal from the judgment of the High Court, dated 10‑11‑2000 in Writ Petition No.64 of 2000).

(a) Azad Jammu and Kashmir Rent Restriction Act, 1986‑‑‑

‑‑‑‑S. 14(2) (vi) ‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Reconstruction of premises ‑‑‑Non framing of issue ‑‑‑Effect‑‑‑Ejectment application filed by the landlord was accepted both by Rent Controller and Appellate Court below without framing issue with regard to bona fides of ejectment application‑‑‑Tenants at the time of framing issues did not raise any objection before the Rent Controller for recasting of the issues and did not take such plea in appeal‑‑‑Tenants also failed to take the plea that they were prejudiced by not framing the issue with regard to bona fides of application for ejectment filed by the landlord even before the High Court in the writ petition‑‑‑Tenants despite being alive to the vital point, having failed to raise plea in that respect before Rent Controller and Appellate Court below, it was also too late for the tenants to raise such plea while arguing the case before High Court that the tenants had been seriously prejudiced 6y non framing of the issue‑‑‑High Court in exercise of its writ jurisdiction was not vested with the power to sit as a Court of appeal against the judgments of the Tribunals of exclusive jurisdiction, moreso when the provisions of C. P. C. had no application to the proceedings of such cases‑‑‑Contention of tenants was repelled‑.in circumstances.

Haji Muhammad Ayub v. Syed Buzurag Shah and others PLD 1983 Pesh. 67; Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577; Badar & Brothers v. Muhammad Aslam and 2 others PLD 1977 Pesh. 80; Dr. Hassan v. Additional District Judge 1983 CLC 2446; Aziz Begum v. Guarantee Life and Employment Insurance, Lahore PLD 1975 Lah. 594 and Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206 ref.

(b) Azad Jammu and Kashmir Rent Restriction Act, 1986‑‑‑

‑‑‑‑S. 14(2)(vi)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Ejectment of tenant on ground of reconstruction of premises‑‑‑Facts to be pressed by landlord‑‑‑Landlord had to prove that premises was reasonably and in good faith required for reconstruction; and that the Authority concerned had granted sanction for reconstruction‑‑‑Passing of sanction order before date of filing ejectment petition was not a requirement of law‑‑‑Production of requisite sanction by landlord at proper stage was sufficient compliance of provisions of law‑‑‑Landlord seeking ejectment of tenant on ground of reconstruction, had placed on record sanction for reconstruction duly approved by Authority concerned and same was exhibited in evidence‑‑‑Such sanction was sufficient to prove that landlord's application for reconstruction of premises was bona fide especially when no objection was raised by the tenant with regard to its admissibility.

Haji Muhammad Ayub v. Syed Buzurag Shah and others PLD 1983 Pesh. 67; Badar & Brothers v. Muhammad Aslam and 2 others PLD 1977 Pesh. 80; Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577; Dr. Hassan v. Additional District Judge 1983 CLC 2446 and Aziz Begum v. Guarantee Life and Employment Insurance, Lahore PLD 1975 Lah. 594 ref.

‑‑‑‑S.42‑‑‑Plea not raised before the forums below could not be raised in appeal before Supreme Court for the first time.

M. Riaz Tabassum, Advocate for Appellants.

Liaquat Ali Khan, Advocate for Respondents.

Date of hearing: 23rd May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 161 #

2001 Y L R 161

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

JAWAD LIAQAT and 5 others‑‑‑Appellants

versus

ZAFAR IQBAL and 2 others‑‑‑Respondents

Civil Appeal No. 16 of 2001, decided on 28th May, 2001.

(On appeal from the judgment of the High Court, dated 10‑11‑2000 in Writ Petition No.82 of 2000).

Azad Jammu and Kashmir Rent Restriction Act, 1986‑‑‑

‑‑‑‑S. 14‑‑‑Ejectment of tenant on grounds of subletting, unauthorised alterations in the premises in violation of tenancy agreement and for reconstruction‑‑‑Bona fides of ejectment application‑‑‑Both Rent Controller and Appellate Court below concurrently accepted ejectment application on all three grounds, but High Court accepting writ petition against concurrent judgments remanded the case to the Rent Controller holding that it was for the landlord to prove that application for the ejectment of tenants was bona fide as onus to prove same was on the landlord and not on the tenant‑‑Validity‑ ‑‑Parties being alive to the subject-matter of issue, even if assumed that it was necessary to record the issue and change the onus of proof of said issue, that would not necessitate the remand of the case because the parties had led evidence in support of their respective contentions‑‑‑Tenants had failed to show as to how it was necessary for the landlord to prove the bona fides so far as the factum of subletting the premises and making alterations in the structure of the same in violation of agreement was concerned‑‑‑If the parties were alive to a point and led evidence in support and rebuttal of the same the wrote framing of issue or even non framing of the issue would not justify the remand of the case‑‑‑Onus of proof of the issue was immaterial when both the contesting parties were alive to the subject‑matter of the issue and led evidence in support of their respective contentions ‑‑‑Ejectment order passed by Rent Controller and affirmed by the Appellate Court below, could be maintained even on any one of three grounds of ejectment raised by the landlords in their ejectment application‑‑‑High Court was not justified in ordering the de novo trial of the issue‑‑Judgment of High Court was set aside by the Supreme Court and order concurrently passed by Rent Controller and Appellate Court below, was restored.

Syed Afaq Hussain Shah v. Chaudhry Sadaqat Ali PLD 1998 Lah. 431; Dr. Hassan v. Additional District Judge 1983 CLC 2446; Hanif v. Malik Ahmed Shah 2001 SCMR 577; Tariq Hussain Hashmi v. Master Ali Ammar 2001 SCMR 664‑ and Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206 ref:

M. Riaz Tabassum, Advocate for Appellants.

Liaquat Ali Khan, Advocate for Respondents.

Date of hearing: 23rd May. 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 175 #

2001 Y L R 175

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Mst. DILSHAD BANO‑‑‑Appellant

versus

IMTIAZ HUSSAIN and another‑‑‑Respondents

Shariat Appeal No.38 of 2000, decided on 23rd June, 2001.

(a) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S. 14‑‑‑Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R.22‑‑Limitation Act (IX of 1908), S.12(2)‑‑Appeal‑‑‑Limitation‑‑‑Exclusion of time spent in obtaining copy of judgment and decree appealed against‑‑‑Appeal which was to be filed within thirty days was filed after expiry of said period‑‑‑Provisions of S.12(2) of Limitation Act, 1908 whereby time spent in obtaining copy of judgment and decree appealed against was excluded in computing the period of limitation, being applicable to the case, appeal was not time‑barred as time spent by appellant in obtaining the copies of judgment and decree appealed against had to be excluded in computing period of limitation for filing appeal.

Mehboob's case 1992 SCR 338; Naseeb‑Ullah's case 1993 SCR 44 and Raja Muhammad Maqsood v. Mst. Kausar Nisar. 2000 YLR 2698 ref.

(b) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Suit for recovery of dower amount‑‑‑Relinquishment of dower‑‑Defendant by producing oral as well as documentary evidence on record had proved that plaintiff who was divorced on allegation of "Zina" had relinquished her dower in consideration for Khula'‑‑‑Remission of dower being an act of free consent given in a bilateral agreement, the plaintiff was bound by it‑‑‑Suit was rightly dismissed, in circumstances.

PLD 1997 Lah. 417; Mehboob's case 1992 SCR 338; Naseeb‑Ullah's case 1993 SCR 44; Raja Muhammad Maqsood v. Mst. Kausar Nisar 2000 YLR 2698 and Qasim Hussain v. Bibi Kaniz (1932) 54 All. 806 ref.

Mir Tanveer Hussain for Appellant.

Muhammad Zaffar Iqbal for Respondents.

YLR 2001 SUPREME COURT AZAD KASHMIR 180 #

2001 Y L R 180

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD SARWAR‑‑‑Appellant

versus

HASSAN SHAMSI‑‑‑Respondent

Civil Appeal No. 9 of 2001, decided on 25th May, 2001.

(On appeal from the judgment and decree of the High Court, dated 25‑5‑200() in Civil Appeal No. 60 of 1999).

(a) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S.6‑‑‑Repeal of amendment in law was to be taken about in the same sense so far as the application of S.6 of the General Clauses Act. 1897 was concerned‑‑‑No distinction existed between repealing laws and laws which merely professed to amend‑‑‑If the amendment of the existing law was small, it would he amendment and if it was extensive, it would repeal the law and re‑enact the same‑‑Different effect need not be given to repeal and amendment.

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

‑‑‑‑S.12‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑General Clauses Act (X of 1897), S.6‑‑‑Suit for specific performance of contract‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Amendment in law, effect of‑‑‑Suit was filed three years and four months after cause of action had arisen‑‑‑No separate application was filed or any ground was taken by the plaintiff in plaint seeking condonation of delay‑‑‑Article 113 of Limitation Act, 1908 providing three years' period for filing suit subsequently was amended and by the amendment the period of three years for filing suit was increased to six years‑‑‑Said amendment would not render previous provision of Limitation Act, 1908 void from the date of its inception‑‑Limitation period of three years provided in Art. 113 before its amendment was available to the plaintiff and he was not justified in law in filing suit after three years as the new law of limitation could not be construed retrospectively in case of plaintiff because that would destroy right vested in the defendant by lapse of time as remedy under law against him had become time‑barred.

‑‑‑‑S.42‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Scope‑‑‑Factual matters‑‑‑Question of fact could not be resolved in appeal by Supreme Court.

(d) Interpretation of statutes‑‑‑

‑‑‑‑'Repeal' and 'amendment'‑‑‑Distinction.

Kh. Ali Muhammad, Advocate for Appellant.

Ch. Muhammad Sharif Tariq, Advocate for Respondent.

Date of hearing: 3rd May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 236 #

2001 Y L R 236

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J and Muhammad Yunus Surakhvi, J

ABDUL AZIZ‑‑‑Appellant

versus

MUHAMMAD LAL and 2 others‑‑‑Respondents

Criminal Appeals Nos.4 and 5 of 2001, decided on 28th May, 2001.

(On appeal from the judgment of the Shariat Court, dated 17‑1‑2001 in Criminal Appeals Nos. 15 and 16 of 1997).

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑‑

‑‑‑‑Ss.3/24‑‑‑Appreciation of evidence‑‑‑Fact that the crime empty was not found to have been fired from the revolver recovered at the instance of the accused by the Fire‑arms Expert was immaterial in the presence of sufficient material on the record in the form of ocular evidence that the injury was caused with the revolver by the accused to the deceased from close range which resulted in his death‑‑‑Parties were closely related inter se and no deep‑rooted enmity existed between them to justify the inference that the eyewitnesses were partisan ‑‑‑Shariat Court had not given any reason whatsoever as to why the accused was not awarded capital punishment either as "Qisas" or as "Tazeer "‑‑‑Each accused in a free fight was responsible for his own act and there was no question of self‑defence‑‑‑Accused had caused death of the deceased who was unarmed by firing a revolver shot‑‑‑No ground was available to award the accused only the punishment of "Diyyat "for committing Qatli‑Amd‑‑ ‑Conviction of accused was upheld in circumstances‑‑‑Accused who was also injured in the incident did not deserve the punishment of "Qisas" or death‑‑Accused was sentenced to undergo twenty years' R.I. in circumstances.

Abdul Rahman v. The Pakistan State PLD 1959 Pesh. 74; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Khalil v. The State 1992 SCR 249; Thoba v. The State PLD 1963 SC 40; Hassan Muhammad v. The State 1996 SCR 95; Shafique Ahmad v. Muhammad Ramzan 1995 SCR 855; Ghulam Jaffar v. Allah Dad 1995 SCMR 173; Nusrat v. Zulfiqar PLD 1991 SC 158; State v. Naseer Ahmad PLD 1986 SC (AJ&K) 35; Kifayatullah v. The State PLD 1975 Pesh. 131; Muhammad Ramzan v. The State 1996 PCr.LJ 1076; Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146; Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23; Qazi Sirajud Din v. Misbahul Islam PLD 1977 SC 14; Muhammad Iqbal v. The State PLD 1993 SC 1; Misri v. The State 1999 PCr.LJ 116; Zahir Hussain Shah v. Shah Nawaz Khan 2000 SCR 123; Shabbir Ahmad v. The State 1997 PCr. LJ 1539 and Abdul Rashid v. Abdul Ghaffar 2001 PCr.LJ 524 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Related witness‑‑‑Evidence of a witness cannot be discarded merely on the ground of relationship, if his evidence rings trite and he cannot be disbelieved simply because he is related to the concerned party.

‑‑‑‑ Witness‑‑‑ Partisan witness‑‑‑ Partisan witness is one who has a motive to falsely implicate an accused person in the offence of murder.

(d) Criminal trial‑‑‑

‑‑‑‑Free fight‑‑‑Features and characteristics‑‑Each accused, in a free fight, was responsible for his own act and there is no question of self‑defence in such a case.

Muhammad Abdul Khaliq Ansari, Advocate for the Complainant.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Ch. Muhammad Mushtaq, Addl, A.‑G. for the State.

Date of hearing: 26th April, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 404 #

2001 Y L R 404

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

Civil Appeal No. 7 of 2001

Haji MUNSHI KHAN‑‑‑Appellant

versus

Haji MUHAMMAD SULEMAN and 30 others‑‑‑Respondents

(On appeal from the judgment of the High Court, dated 15‑11‑2000 in Revision Petition No.41 of 1999).

Civil Appeal No, 8 of 2001

Haji MUNSHI KHAN‑‑‑Appellant

versus

KARAMAT HUSSAIN and 30 others

Civil Appeals Nos.71 and 8 of 2001, decided on 30th April, 2001.

(On appeal from the judgment of the High Court, dated 15‑11‑2000 in Civil Appeal No. 21 of 2000)

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XXII, Rr.1 & 2‑‑‑Suit for declaration‑‑Death of one of the defendants‑‑‑Abatement of suit‑‑‑Two allottees/vendors of plot in dispute, initially transferred the same in favour of plaintiff through agreement of sale‑‑‑Plot was again transferred in favour of two different transferees one after the other and both vendors made statements in favour of last transferee before the Estate Officer and duly executed pro forma of transfer of plot in favour of last transferee‑‑‑One of the vendors who subsequently died had already affirmed the transfer of plot in favour of last transferee who was in possession of plot‑‑Original transferee filed suit against vendors/ defendants alleging that plot having been transferred to him in the ,first instance, subsequent two transfers should be declared as null and void against his rights‑‑‑One of the vendors/defendants who had already affirmed the transfer of plot in favour of last transferee having died during the pendency of suit an application was filed by last transferee to the effect that as the legal representatives of the deceased defendant had not been brought on record after his death within the prescribed period of limitation, the suit could be declared to have been abated‑‑Deceased defendant having relinquished all his legal rights vested in the plot in favour of applicant/last transferee, after death of defendant, last transferee would be deemed to represent the interest of the deceased in respect of plot since the plot could not be inherited by legal heirs of the deceased defendant in succession due to the transfer in favour of last transferee, question of bringing on record legal representatives of the deceased defendant would not arise and suit would not abate for non‑filing of application in time for bringing on record the legal representatives of the deceased defendant.

Lal Din v. Administrator (Land), Thal Development, Bhakkar and others 1981 SCMR 890; Sardar Nazir Ahmad Khan v. Muhammad Shaukat Khan and others 1999 MLD 1193; Mst. Hamiua Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Ahmad Din and 7 others v. Abdul Khaliq and others PLD 1979 Lah. 898; Dr. Arshad Mehmood v. Dr. Mumtaz Hussain PLD 1974 Lah. 312 and Khushi Muhammad v. Mst. Aziz Bibi PLD 1988 SC 259 ref.

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

‑‑‑‑O. XXII, Rr.1 & 2‑‑‑Abatement of suit‑‑On the death of defendant, plaintiff was required to bring on record his legal representatives within ninety days otherwise the suit would abate automatically.

Muhammad Yunus Tahir, Advocate for Appellant.

Raja Muhammad Siddique, Advocate for Respondents.

Date of hearing: 24th April, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 421 #

2001 Y L R 421

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

PUBLIC WORKS DEPARTMENT HIGHWAYS DIVISION through Chief

Engineer, Muzaffarabad and 2 others‑‑‑Appellants

versus

MUHAMMAD QAYYUM KHAN‑‑‑Respondent

Civil Appeal No.168 of 2000, decided on 10th May, 2001.

(On appeal from the judgment of the High Court, dated 28‑6‑2000 in Writ Petition No.35 of 1999).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Appeal to Supreme Court‑‑Raising law point for the first time before Supreme Court‑‑‑Validity‑‑‑Normally even a law point which had neither been raised nor argued before the High Court could not be allowed for the first time to be raised before the Supreme Court‑‑‑Law points which were not raised before the High Court, could, however, be allowed to be raised for the first time in Supreme Court with the permission of the Court.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Writ jurisdiction, exercise of‑‑‑ "Violation of law "‑‑‑Connotation‑‑Violation of contractual liability whether violation of law‑‑‑Violation of terms and conditions of proclamation published in newspaper inviting bids for the auction which were violated by the Authorities did not fall within the term "violation of law" as no law was violated by the appellant Authorities Dispute between the parties being clearly based on violation of contractual liability, same was not enforceable by filing a writ petition‑‑‑Judgment of High Court whereby writ petition was accepted, was set aside by the Supreme Court, in circumstances.

Azad Government v. Neelum Flour Mills 1992 SCR 381; Sufi Muhammad Ramzan, Contractor, Municipal Committee, Mianwali v. Secretary, Local Government and Rural Development, Punjab, Lahore and 2 others PLD 1987 Lah. 262; A. K. Trading Corporation, Muzaffarabad through Chief Executive, Syed Mumtaz Ali Gillani, Muzaffarabad v. Messrs Z.H. Construction (Pvt.) Ltd. through Chief Executive, Zaffar Iqbal, Islamabad and 2 others PLD 1998 SC (AJ&IQ 7; Rashid A. Khan v. West Pakistan Railway Board through its Chairman, Lahore and another PLD 1973 Lah. 733; Anjuman‑e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639 and Miss Tahira Mahmooda v. Chairman, Nomination Board and others PLD 1975 Azad J&K 108 ref.

Farooq Hussain Kashmiri, Advocate for Appellants.

Muhammad Sayab Khalid, Advocate for Respondents.

Date of hearing: 19th April, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 486 #

2001 Y L R 486

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD MAQSOOD and others‑‑‑Appellants

versus

MUHAMMAD NAIB and others‑‑‑Respondents

Civil appeals Nos. 121 and 122 of 2000, decided on 25th April, 2001.

(On appeals from the judgments and decrees of the High Court dated 19‑5‑2000 in Civil Appeals Nos.44 and 45 of 1999).

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

‑‑‑‑Ss. 8, 42 & 55‑‑‑Civil Procedure Code (V of 1908), O.III, R.4 & O.XVIII, R.18 ‑‑‑ Suit for declaration‑cum possession and mandatory injunction‑‑‑Inspection of property by the Court‑‑‑Counsel for the plaintiff, during pendency of suit, filed application and made statement in the Court that if the Presiding Officer of the Court got the area in dispute measured by the Revenue Authorities under his supervision and if it was found that plaintiff was in possession of land in excess of his entitlement, suits filed by the plaintiff could be dismissed by the Court‑‑‑Trial Court accepting request of the counsel of plaintiff, got the area measured by the Patwari who found that the plaintiff had in his possession one Marla in excess of his entitlement and the Court decided the suit accordingly‑‑‑Plaintiff had alleged that the counsel was not competent to make statement on the basis of which one of his suits was dismissed in toto while the other was dismissed partly‑‑ Plaintiff had also claimed that at the time when area was measured he was not present at the spot and only his son was present who could not be regarded to represent him in absence of any power of attorney‑‑‑Plaintiff had never pleaded that his counsel had made statement without his consent and said point had been raised for the first time in Supreme Court‑‑‑Such question being a question of fact, could not be raised for the first time in the Supreme Court‑‑‑Power of attorney executed by the plaintiff in favour of his counsel showed that the counsel had all the powers, including that of compromise and making statement on behalf of the plaintiff‑‑‑Contention that the statement made by the counsel was without authority and was made without consent of the plaintiff was repelled‑‑‑Objection that measurements made by Patwari were incorrect or not made in a particular manner, was repelled as being without proof and also for the reason that there was no condition to make measurements in a certain manner‑‑Plaintiff having consented to the result of the spot inspection notes could not turn round and reject the same as the spot inspection notes were the conclusive proof of the fact.

Muhammad Juman v. Mst. Aqlan PLD 1980 Kar. 108; Nur Muhammad v. Khushi Muhammad PLJ 1975 Lah. 178; Azad Jammu and Kashmir Government v. Sardar Muhammad Azad Khan 2000 YLR 2662; Khan Muhammad v. Abdul Aziz 1992 SCR 54 and Ghazanfar Hussain v. Rehmat Bibi NLR 1989 SCJ 262 ref.

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

‑‑‑‑O. XVIII, R.18‑‑‑Insepction of property by the Court‑‑‑Principle that the notes taken at the time, of spot inspection were not a substitute for the evidence; would be attracted only where a suit was disposed of on merits after recording evidence and not in a suit in which the parties consented to disposal of the suit on the basis of the result of said spot inspection.

Muhammad Sharif Tariq, Advocate for Appellants.

Abdul 'Ghafoor Qureshi, Advocate for Respondents.

Date of hearing: 23rd April, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 666 #

2001 Y L R 666

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

Sardar FAROOQ AHMAD KHAN and 2 others‑‑‑Appellants

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary, Muzaffarabad and 3 others‑‑‑Respondents

Civil Appeal No. 108 of 2000, decided on 7th May, 2001.

(On appeal from the judgment of the High Court, dated 12‑5‑2000 in Writ Petition No. 14 of 2000).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Appeal to Supreme Court‑‑Making out a new case ‑‑‑Validity‑‑Appellants set up case before Supreme Court which was contrary to the one taken by them in the High Court‑‑‑Point not taken by a party in its pleadings could not be considered even by the Court in which the proceedings were initiated‑‑‑Appellants could not be permitted to plead both hot and cold in the same breath by varying their case in the Supreme Court.

Messrs Jabeer Hotel, Mirpur v. Kashmir Council, Islamabad PLJ 2000 SC (AJ&K) 219; Azad Jammu and Kashmir Government v. Gohar Rehman 1996 SCR 112; Kh. Ghulam Qadir v. Divisional Forest Officer Demarcation 1996 SCR 161; Abdul Qadeer v. AJ&K University 2000 SCR 36; Abdul Qadir v. Abdul Karim 1999 PLC (C.S.) 947; Azad Government of the State of Jammu and Kashmir v. Haji Summandar Khan 1995 MLD 1350; Gul Bhar v. Revising Authority MDA 1993 SCR 327 and Muhammad Hussain v. Zafar Iqbal 1994 SCR 77 ref.

(b) Laches‑‑‑

‑‑‑‑Writ petition having been filed after about two years from the cause of grievance, same was rightly held by High Court to have been hit by laches.

‑‑‑‑Ss. 4 & 42‑‑‑Fundamental rights, violation of‑‑‑Contention that notification providing pre‑qualification for contractor was violative of Fundamental Rights Nos.8 & 15 guaranteed by virtue of S.4 of Azad Jammu and Kashmir Interim Constitution Act, 1974, was repelled for regulation of the profession of contract by calling them to satisfy particular conditions for pre‑qualification, could not be regarded as unreasonable restriction to practise their profession as was evident from provisions of the Fundamental Right No. 4‑‑‑Condition of pre‑qualification, therefore, was not unreasonable restriction on the profession of the contractors‑‑Notification providing pre‑qualification of contractors was not violative of Fundamental Rights.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 193 & 199‑‑‑Criminal Procedure (V of 1898), 5.476‑‑‑Azad Jammu and Kashmir

Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Perjury, proof of‑‑‑Appellants had contended that High Court was not justified in refusing to initiate proceedings against respondent under Ss.193 & 199, P. P. C. for his committing perjury‑‑‑Validity‑‑‑High Court was to see as to whether perjury was committed in relation to the proceedings before it or not and as to whether it was expedient to proceed against the respondent or not‑‑‑Decision to proceed against a person for making perjury could only be made if the Court concerned had given finding that in fact the perjury was committed before it‑‑Where writ petition filed by the appellant was dismissed and the contention of respondent was upheld, High Court could not proceed against the respondent especially so when it had been observed by the Court that it was not necessary to proceed against the respondent in circumstances of the case‑‑Court, before making a complaint in such a case, had to hold an inquiry under 5.476, Cr.P.C. after giving notice to the person who allegedly made the perjury‑‑‑In absence of such proceedings prayer of the appellants, that a direction should be issued by the Supreme Court to the High Court to proceed against respondent for committing perjury was repelled.

(e) Azad Jammu and Kashmir High Court Procedure Rules, 1984‑‑‑

‑‑‑‑R. 32(2)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Applicability of Azad Jammu and Kashmir High Court Procedure Rules, 1984 to writ proceedings‑‑‑Where attested copies of the impugned notification and the proclamation were not placed on record but only their photostat copies were placed, High Court had rightly concluded that violation of S. 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 had been committed‑‑‑Rule 32(3) was applicable to writ proceedings before the High Court as also to the civil proceedings in which an order was passed by the Courts subordinate to the High Court.

Sardar Muhammad Sayab Khalid, Advocate for Appellants.

Raja Muhammad Hanif Khan, Advocate for Respondents.

Date of hearing: 19th April, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 689 #

2001 Y L R 689

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

ABDUL RASHID ‑‑‑Appellant

versus

BARKATULLAH and 18 others‑‑‑Respondents

Civil Appeal No. 187 of 2000, decided on 18th May, 2001.

(On appeal from the judgment of the High Court dated 29‑9‑2000 in Civil Appeal No.29 of 1999).

(a) Interpretation of documents‑‑‑

‑‑‑‑ Intent and purpose of a document should be inferred from ‑the language employed and its ordinary meanings should be adhered to and given preference rather than the far fetched meanings.

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

‑‑‑‑S.2(2)‑‑‑Decree‑‑‑Decree which by itself was in-executable even if passed, was a nullity and non‑existent in the eye of law.

Bejoy Ranjan Kanoongo and others v. Khan Bahadur Khalilur Rehman PLD 1968 SC 342 and Abdul Shakoor Khan v. Administrator Municipal Committee, Multan PLD 1951 Lah. 32 ref.

‑‑‑‑Ss.14 & 21‑‑‑Suit for pre‑emption‑‑Possession of the suit land being admittedly with the defendants, the plaintiff was not at all entitled to a decree for pre‑emption without seeking a prayer for possession of the suit land as the decree for pre‑emption was always based on the prayer of possession‑‑Grant of‑ decree for pre‑emption in favour of plaintiff without seeking the prayer for possession would be in-executable in the eye of law and the same could not have been granted under any of the provisions of law.

(d) Azad Jammu and Kashmir Supreme Court Rules, 1978‑‑‑

‑‑‑‑O.XLIII, R.5‑‑‑Inherent powers of Supreme Court‑‑‑Supreme Court was vested with wide powers to make such orders as could be necessary for the ends of justice or to prevent abuse of process of Court.

Kh. Muhammad Nasim, Advocate for Appellant.

Sh. Abdul Aziz, Advocate for Respondent No. 1.

Date of hearing: 11th May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 725 #

2001 Y L R 725

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

SADIQ HUSSAIN SHAH and 6 others‑‑‑Appellants

versus

MUHAMMAD YOUSAF and 6 others‑‑‑Respondents

Civil Appeal No. 11 of 2001, decided on 2nd May, 2001.

(On appeal from the order of the High Court dated 27‑9‑2000 in Civil Revision No.4 of 1999).

Azad Jammu and Kashmir High Court Procedure Rules, 1984‑‑‑

‑‑‑‑R. 44‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Revision before High Court‑‑Maintainability‑‑‑Revision against judgment of Appellate Court was dismissed on ground that revision petition was not accompanied by the certified copy of the impugned order as required under R. 44 of Azad Jammu and Kashmir High Court Procedure Rules,' 1984‑‑‑Attested copy of said order which was to be filed within ninety days, was filed after one and a half years‑‑‑Petitioners neither had filed any affidavit nor given any plausible reason for failure to file the requisite copy of order of Appellate Court alongwith memorandum of revision petition to the High Court‑‑‑No application for condonation of delay was either submitted before the High Court or the Supreme Court‑‑‑Contentions raised by petitioner that they or their counsel were misled by any bona fide mistake was repelled, in circumstances.

Ali Haider Shah v. Ghulam Muhammad 1981 CLC 359; Sawar Khan and 2 others v. Noor Alain and another 1985 CLC 1082; Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others 1988 CLC 514; Mst. Safia Begum v. Taj Din and others 1990 CLC 1503; Abdur Rehman v. Muhammad Sharif and others PLD 1979 SC (AJ&K) 117; Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar, and 11 others 1999 YLR 1426 and, Raja Muhammad Ashgar Khan v. Muhammad Hafizullah and 5 others 2001 MLD 224 ref.

Ch. Muhammad Ilyas, Advocate for Appellants.

Abdul Majeed Mallick, Advocate for Respondent No. 1.

Date of hearing: 30th April, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1164 #

2001 Y L R 1164

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD MUSHTAQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.4 of 2001, decided on 14th June, 2001.

(On appeal from the judgment of the Shariat Court, dated 20‑1‑2001 in Criminal Appeal No.2 of 1990 and Criminal Revision Petition No. 130 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Principles‑Statement of a witness is to be read as a whole and then to draw an inference either in favour of the prosecution or against it.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Circumstantial evidence‑‑ Last seen evidence‑‑‑Last seen evidence, due to its inherent defects is fundamentally a weak type of evidence and even if it is believed to be true no conviction can be based on it unless there is some strong corroborative piece of evidence in support of the prosecution.

Muhammad Yunus alias Babu v. The State PLJ 1996 Sahariat Court (AJK) 145; Nazo alias Ali Nawaz v. The State 1977 SCMR 20; Rehmat alias Rehman v. The State PLD 1977 SC 515; Attygale v. The King AIR 1936 PC 169; Stephen Seneviratne v. The King AIR 1936 PC 289 and Naqibullah and another v. The State PLD 1978 SC 21 ref.

‑‑‑‑S.5‑‑‑Appraisal of evidence‑‑‑Prosecution case was based on circumstantial evidence consisting of the evidence of last seen and the recoveries‑‑‑Last seen evidence neither inspired confidence nor was worth explicit reliance‑‑‑Critical examination of said evidence showed that the witness had not herself seen the accused in the company of the deceased, on the other hand she was told by the deceased that he was going alongwith the accused out of his house and this statement was not challenged by the Public Prosecutor‑‑‑Even if some weight was to be given to the said statement same due to its intrinsic defects required strong corroboration by other circumstantial evidence which was not available on record‑‑Motive being far‑fetched and contradictory in nature did not support the last seen evidence‑‑‑Recoveries effected in the case allegedly at the instance of the accused also did not corroborate the prosecution version‑‑Incriminating material put to the accused under S.342, Cr.P.C. was either not the part of the prosecution story or none of the prosecution witnesses had deposed so and by seeking the explanation of the accused on such incriminating material without its being part of the prosecution file or being part of the prosecution evidence, he had been seriously prejudiced resulting into miscarriage of justice and against the accepted principles of fair play‑‑‑Material forming the part of the record on the contrary, was not put to accused under S.342, Cr.P.C.‑‑‑Such illegality committed by the Courts below was not curable‑‑Prosecution case was full of doubts and based on mere whims and conjectures‑‑‑Accused was acquitted in circumstances.

Qadeer Hussain v. The State 1995 PCr.LJ 789; Muhammad Yunus alias Babu v. State PLJ 1996 Sahariat Court (AJK) 145; Nazo alias Ali Nawaz v. The State 1977 SCMR 20; Rehmat alias Rehman v. The State PLD 1977 SC 515; Attygale v. The King AIR 1936 PC 169; in Stephen Seneviratne v. The King AIR 1936 PC 289; Naqibullah and another v. The State PLD 1978 SC 21; Muhammad Afsar v. The State PLD 1975 Azad J&K 12; Muhabbat and 2 others v. The State 1968 pCr.LJ 720; Bagh and 3 others v. The State PLD 1979 Kar. 261; Muhammad Siddique and another v. The State PLD 1983 FSC 173; Abdul Wahab v. The Crown PLD 1955 FC 88; Tani's case 20 CI.LJ 12 (Nag.); Alimuddin's case 52 Cal. 522; Muhammad Shafique v. The State PLD 1977 SC (AJ&K) 1; Al‑Qur'an Majeed: Sura A'raf, Aayats Nos. ll to 18 and 19 to 24; Sura Mumtahana, Verse Nol; Ali Khan v. The State 1995 SCMR 955; M. D. Nazir Hussain Sarkar and another v. The State 1969 SCMR 388 and Fazal Elahi alias Sajawal v. The‑Crown PLD 1953 FC 214 ref.

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

‑‑‑‑S.342‑‑‑Examination of accused‑‑Explanation of the accused is to be sought only on the incriminating material brought on record by the prosecution‑‑‑Extraneous circumstances not forming part of the prosecution evidence are not material for the purpose of conviction and the same cannot be taken into consideration.

(e) Criminal trial‑‑‑

‑‑‑‑ Circumstantial evidence‑‑‑All circumstances from which an inference adverse to the accused is sought to be drawn must be conclusively proved‑‑‑Since failure of one link breaks the chain, every one of the events in the series must be proved so that there remains no basis for an inference therefrom consistent with the innocence of the accused‑‑‑Incriminating facts must be shown to be inconsistent with the innocence of the accused and the same must not admit any other explanation upon any other reasonable hypothesis except that. of his guilt.

Sardar Mahmmad Sayab Khalid, Advocate for Appellant.

Kh. Attaullah, Addl. A.‑G. for the State.

Date of hearing: 14th May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1299 #

2001 Y L R 1299

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

Ch. MUHAMMAD BASHIR‑‑‑Appellant

versus

Ch. LAL DIN ARIF and 5 others‑‑‑Respondents

Civil Appeal No.25 of 2001, decided on 19th June, 2001.

(On appeal from the judgment of the High Court dated 12‑10‑2000 in Civil Appeal No.3 of 1999).

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

‑‑‑‑S.8‑‑‑Suit for possession of land‑‑‑Plea of adverse possession‑‑‑Plaintiff filing suit for possession of land on basis of sale of the said land in his favour, was not debarred from taking the alternate plea of adverse possession in case he failed to prove the transaction of sale in his favour‑‑‑Contention that plea of adverse possession being contradictory in nature, could not have been taken by the plaintiff, was repelled.

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

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Adverse possession‑‑‑Proof‑‑‑Plaintiff apart from claiming ownership of the plot in dispute on ground of being vendee of the said plot; had also claimed adverse possession thereon-‑Plaintiff after taking possession of suit plot from vendors thereof had been making overt acts and asserting his title over that plot as an owner‑‑‑When the plaintiff had entered into the possession of the plot and the entire documents of the same were handed over to him by the vendors, he had been considering himself the owner thereof, got it levelled and remained in its undisturbed possession for a period of more than 12 years, his possession over plot had ripened into ownership.

Mir Walayat Ali v. Standard Vacuum Oil Company PLD 1964 SC 220; Secretary of State and another v. Mahant Harcharan Das and others AIR 1926 Oudh 98; Jadgeo Singh v. Deputy Commissioner, Partabgarh and others AIR 1926 Oudh 431; Ahmad Khan v. Rasool Shah and others PLD 1975 SC 311; Inayat Begum and another v. Muhammad Latif and another 1999 CLC 1160; Muhammad Akbar v. Muhammad Hussain and others PLD 1984 SC (AJ&K) 120; Beero v. Mst. Said Bibi 1992 SCR 286 and Hasim Ali and others v. Abjal Khan and others AIR 1924 Cal. 1046 ref.

‑‑‑‑Defective document‑‑‑ Relevance‑‑Creation of title‑‑‑Defective document though could not create a title in favour of a person in whose favour it was executed, but it was always relevant for the collateral purposes.

Raja Muhammad Siddique, Advocate for Appellant.

Ch. Muhammad Azam Khan, Advocate for Respondents.

Date of hearing: 31st May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1527 #

2001 Y L R 1527

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD DIN and another‑‑‑Appellants

Versus

CUSTODIAN OF EVACUEE PROPERTY, AJ&K GOVERNMENT, MUZAFFARABAD and another‑‑‑Respondents

Civil Appeal No.20 of 2001, decided on 29th June, 2001.

(On appeal from the judgment of the High Court, dated 10‑10‑2000 in Writ Petition No.70 of 2000).

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑

‑‑‑‑Ss. 18‑A, 18‑B & 43(6)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Allotment of land, cancellation of‑‑‑Appellate jurisdiction of Supreme Court, exercise of‑‑‑Custodian vested with suo motu jurisdiction under S.43(b) of Pakistan (Administration of Evacuee Property) Act, 1957, cancelled allotment of land in dispute in favour of appellants/allottees observing that allottees and their father comprising one family were not entitled to the allotment beyond prescribed scale as they were minors at the time of allotment in their favour and were not the heads of their respective families‑‑‑Question of legality of an allotment can only be gone into by the Custodian of Evacuee Property in exercise of powers under S.43(6) and by no other authority‑‑‑Such finding being question of fort was based on a thorough inquiry made the Custodian and same was affirmed by the High Court‑‑Finding of fact recorded by Custodian which was the Tribunal of exclusive jurisdiction, and same having been affirmed by the High Court, could not be set aside by Supreme Court in appeal‑‑‑Mere fact that wrong section of the statute was mentioned in the application for cancellation of allotment of land in dispute, would not render the judgment of the Custodian invalid‑‑‑Pure question of fact neither raised earlier before Custodian nor before High Court, could not be allowed to be raised for the first time before Supreme Court especially when no ground respecting that aspect was either taken in the memo. of appeal or in concise statement.

Azmatullah and another v. Ali Bahadur and another 1996 CLC 254 and Gulab Khan and others v. Sardar Muhammad Mehtab Khan and others 1994 SCR 187 ref.

(b) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑

‑‑‑‑Ss. 18‑A, 18‑B & 43 (6)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Delay‑‑‑Implied condonation of delay‑‑‑Writ jurisdiction, exercise of‑‑‑If Authority at the time of decision was conscious of proceedings being barred by time and had decided the controversy on merits, it could be assumed that Authority had impliedly condoned the delay‑‑‑If the delay was condoned by the relevant Tribunal it could not be disturbed in writ jurisdiction of High Court.

Aftab Ahmed v. Khurshid Hussain and 3 others 1999 PLC (C.S.) 40; Muhammad Yusuf v. Member, Board of Revenue 1970 SCMR 170; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167 and Bashir Ahmed v. Custodian of Evacuee Property and others 1992 SCR 150 ref.

‑‑‑S. 44‑‑‑Writ jurisdiction, exercise of‑‑Said jurisdiction being a discretionary relief could not be exercised in aid of perpetuation of injustice or to protect ill‑gotten gains by a person‑‑‑Party seeking relief by invoking writ jurisdiction, must show that it had come with clean hands, and had a tangible right; if not a purely legal right, which had been violated.

Bashir Ahmed v. Custodian of Evacuee Property and others 1992 SCR 150 and Wali Muhammad v. Sakhi Muhammad PLD 1974 SC 106 ref.

Ch. Muhammad Sharif Tariq, Advocate for Appellants.

Ch. Shah Wali, Advocate for Respondents.

Date of hearing: 25th June, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1544 #

2001 Y L R 1544

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, J

NAZAKAT PERVEEN‑‑‑Petitioner

versus

IKHLAQUE AHMED ‑‑‑Respondent

Civil Petition for Leave to Appeal No.69 of 2001, decided on 29th June, 2001.

(On appeal from the judgment and decree of the Shariat Court, dated 13‑4‑2001 in Shariat Civil Appeal No. 5 of 2000).

(a) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S.17‑‑‑Civil Procedure Code (V of 1908), preamble ‑‑‑Qanun‑e‑Shahadat (10 of 1984), Preamble‑‑‑Proceedings before Family Court‑‑‑Provisions of Civil Procedure Code, 1908 and Qanun‑e‑Shahadat, 1984 had no applicability to the proceedings before the Family Court.

(b) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for recovery of dower amount‑‑Petition for leave to appeal before Supreme Court‑‑‑Appellate Court below had decreed the suit after appreciating evidence on record‑‑No misreading or non‑reading of evidence having been pointed out by the petitioner, judgment of Court below, could not be interfered with by the Supreme Court.

Muhammad Saeed v. Mst. Begum Noor 1999 CLC 1356 ref.

Ch. Muhammad Riaz Alam, Advocate for Petitioner.

M. Riaz Tabassum, Advocate for Respondent.

Date of hearing: 29th June, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1687 #

2001 Y L R 1687

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

KASHMIR COUNCIL, ISLAMABAD through Secretary and 3 others‑‑‑Petitioners

versus

Messrs JABEER HOTEL, MIRPUR through Ch. Muhammad Siddique, Proprietor, Jabeer Hotel and another‑‑‑Respondents

Civil Review Petitions Nos. 9 to 11 of 2000, Civil Miscellaneous Petitions Nos. 50 to 52 of 2000, decided on 19th June, 2001.

(In the matter of review from the judgment of the Supreme Court, dated 28‑4‑2000 in Civil Appeals Nos. 89, 90 and 91 of 1999).

Interpretation of statutes‑

‑‑‑‑ Validity of a statute‑‑‑Principles‑‑‑If a provision of a statute which had offended against the supreme law of the land was separable from the provisions which were legal, only the offending provisions would be struck down and not the statute as a whole‑‑If the provisions of an Act declared as invalid were inextricably bound up with the one which was valid and could not be severed from the rest same would be invalid as a whole, but where such provisions were independent and separable the statute would not be invalid as a whole‑‑‑Real intention of the Legislature was to be ascertained as to whether it intended that a statute must stand or fall together‑‑‑If the Court came to the conclusion that the Legislature would not have enacted the pan which was valid without enacting the part that was ultra vires the whole Act would fall, otherwise the ultra vires provisions would be struck down only to the extent of repugnancy to the Constitutional provisions.

The State of Bihar v. Sir Kameshwar Singh AIR 1952 SC 252; R.M.D. Chamarbaugwalla v. Union of India AIR 1957 SC 628; Messrs Devi Das Gopal Krishman v. State of Punjab AIR 1967 SC 1895; The State of Bombay v. F.N. Balsara AIR 1951 SC 318; Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation Muzaffarabad PLD 1978 SC (AJ&K) 42; The Province of East Pakistan v. Md. Mehdi Ali Khan PLD 1959 SC (Pak.) 387; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.‑W.F.P. PLD 1995 SC 66 and Das Khanna v. Emperor AIR 1944 Lah. 33 ref.

Zafar Hussain Mirza for Petitioners (in all the Petitions).

Kh. Ali Muhammad for Respondents (in all the Petitions).

Date of hearing: 31st May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1911 #

2001 Y L R 1911

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

AKBAR DAD KHAN‑‑‑Appellant

versus

MUHAMMAD SHARIF and 5 others‑‑‑Respondents

Civil Appeal No. 19 of 2001, decided on 29th June, 2001.

(On appeal from the judgment and decree of the High Court, dated 6‑12‑2000 in Civil Appeal No.48 of 1998).

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

‑‑‑‑O. XVIII, R.18 & O.XXVI, R.9‑‑‑Local inspection and appointment of Commission‑‑Court was empowered to make local inspection where it was felt necessary and useful for proper appreciation of the evidence produced by the parties‑‑‑Local inspection could not be the substitute of legal evidence and a judgment could not be based on the local inspection unless the parties agreed to adopt such a course‑‑‑Court had also got ample powers to appoint Commission for local investigation.

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

‑‑‑‑O. XVIII, R.18‑‑‑Spot inspection‑‑‑Spot inspection must be conducted by the Court in the presence of the parties or their counsel‑‑Presiding Officer of the Trial Court has to prepare inspection notes and keep the same on record for the perusal of Appellate Court.

R. Govindaswami Naidu v. G. Pushpalammal and another AIR 1952 Mad. 181; Kaliammal v. Pongiammal and others AIR 1958 Mad. 331 and Mst. Asia Begum v. Nehmat Ali and 6 others 1993 MLD 338 ref.

‑‑‑Ss.40, 41, 42 & 45‑‑‑Civil Procedure Code (V of 1908), O.XVIII, R.18‑‑‑Change of longstanding entries in record of right ‑‑‑Longstanding entries were changed without thorough inquiry and without attestation of mutation as was required by law‑‑‑Even oral evidence led by the parties had been misread‑‑Judgment was announced by the Trial Court after two months and seven days of the spot inspection‑‑‑Trial Court, in the circumstances, was not justified to record findings of the disputed issues between the parties in, the light of the facts observed by him at the local investigation‑‑‑Appellate Court had not discussed the evidence of the parties and High Court had totally ignored the documentary evidence which was produced by the appellant before it‑‑‑Courts below had misread and omitted to read the documentary as well as oral evidence of the parties‑‑‑Supreme Court, accepting appeal, set aside judgment of the High Court and of Courts below and remanded case to the Trial Court for afresh decision in accordance with law.

Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245 and Mst. Nishadah Begum and 3 others v. Muhammad Ayub Khan PLD 1988 SC (AJ&K) 203 ref.

(d) Administration of justice‑‑‑

‑‑‑‑Duty of Judicial Officers‑‑‑Judicial Officers were required by law to decide all issues in the light of the respective pleadings of the parties and evidence produced by them.

Raja Muhammad Siddique, Advocate for Appellant.

Ch. Muhammad Azam Khan, Advocate for Respondents.

Date of hearing: 31st May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1921 #

2001 Y L R 1921

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

RUKHSAR AHMED and another‑‑‑Petitioners

versus

THE STATE and 3 others‑‑‑Respondents

Criminal Revision No.25 of 2001, decided on 29th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.161 & 162‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 133 & 150‑‑‑Hostile witness‑‑Confrontation or contradiction with previous statement made before the police‑‑Prosecution though was at liberty, to cross-examine or re‑examine its own witness when he was declared as hostile, but it was not allowed to confront or contradict its own witness with the statement made by him before police during investigation.

Anis Mondal v. The State PLD 1959 Dacca 36: Sona Mia v. The State PLD 1959 Dacca 400; Fazlul‑Haque v. The State PLO 1959 Dacca 931 and PLD 1991 Azad J&K 76 ref.

A.K. Ansari for Petitioners.

Muhammad Azam Khan for the Complainant.

Aurangzeb Choudhry, Asstt. A.‑G. (P.P.) for the State.

Date of hearing: 29th May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 1924 #

2001 Y L R 1924

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

Criminal Appeal No.6 of 2001

MUHAMMADISHAQ‑‑‑Appellant

versus

THE STATE through Additional Advocate General and another‑‑‑Respondents

(On appeal from the judgment of the Shariat Court, dated 14‑2‑2001 in Criminal Appeals Nos. 8 and 14 of 1999).

Criminal Appeal No.8 of 2001

MUHAMMAD SHARIF‑‑‑Appellant

versus

MUHAMMAD ISHAQ and another‑‑‑Respondents

(On appeal from the judgment of the Shariat Court, dated 14‑2‑2001 in Criminal Appeals Nos.8 and 14 of 1999).

Criminal Appeals Nos.6 and 8 of 2001, decided on 29th June, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Reappraisal of evidence‑‑Deceased was last seen alive in the company of the accused and absconding co‑accused‑‑Recovery of weapon of offence and "Parna" belonging to the accused, at the instance of the accused, had been proved by recovery witnesses‑‑‑Recovery though was effected by the Police, no witness from the 'locality was forthcoming at the time of recovery as the place of recovery was a desolate place‑‑Courts below, in circumstances, had rightly relied upon the recoveries‑‑‑Real motive for murder though was shrouded in mystery, but deceased was last seen alive in the company of the accused‑‑‑Accused had the knowledge of the place where he had kept his pistol after the occurrence‑‑‑Crime empties found in the vehicle under the use of the deceased were fired from the pistol of the accused‑‑‑Courts below, in circumstances, had rightly found the accused responsible for the murder of the deceased‑‑‑Conviction and sentence awarded to the accused was not interfered with by the Supreme Court.

Lalan and 2 others v. The State 1976 PCr.LJ 52; Hamzo and 2 others v. The State 1972 PCiLJ 478; Maqbool Ahmed v. The State 1992 SCMR 2279; Ilam Jan v. The State 1997 PCr.LJ 169; Allah Ditta v. The Crown 1969 SCMR 558; Mir Muhammad v. The State 1995 $CMR 614; Allahditto v. The State 1968 SCMR 378; Muhammad Niaz Khan v. The State 2000 MLD 1419; Sardar Ali and others v. The State PLD 1967 SC 217; Nawab and others v. The State PLD 1965 SC 522; Safdar Abbas and 2 others v. The State PLD 1987 SC 467; The State v. Rab Nawaz and another PLD 1974 SC 87 anal The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Rule of universal application whether deducible from decision of a particular case‑‑‑Facts of two criminal cases could not be identical‑‑‑Every case of criminal nature would proceed on its own facts and circumstances and a rule of universal application could not be deduced from the decision of any particular case.

Liaquat Ali Khan, Advocate for Appellant (in Criminal Appeal No.6 of 2001).

Ch. Mushtaq, Addl. A.‑G. for the State (in Criminal Appeal No.6 of 2001).

Ch. Muhammad Reaz Alam, Advocate for Respondent No.2. (in Criminal Appeal No.6 of 2001).

Ch. Muhammad Reaz Alam, Advocate for Appellant No.2. (in Criminal Appeal No.8 of 2001).

Liaquat Ali Khan, Advocate for Respondent (in Criminal Appeal No.8 of 2001).

Ch. Muhammad Mushtaq, Addl. A.‑G. for the State (in Criminal Appeal No.8 of 2001).

Date of hearing: 19th June, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 2083 #

2001 Y L R 2083

[Shariat Court (AJ&K))

Before Sardar Muhammad Nawaz Khan, J

ABDUL KHALIQ‑‑‑Petitioner

versus

ABDUL SHAKOOR‑‑‑Respondent

Criminal Revision No.75 of 1999, decided on 29th May, 2001.

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

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss.324/337‑A, 337‑F, 341, 147, 148, 149 & 109‑‑‑West Pakistan Anus Ordinance (XX of 1965), S.13‑‑‑Grant of bail on ground of statutory delay‑‑‑Bail was granted to the accused during pendency of the trial on the ground that the accused remained under detention for period of more than one year continuously‑‑‑Validity‑‑‑No legal bar existed to, treat the bail application as the one moved on, the ground of statutory delay, though the accused had sought his bail on merits and no formal request was made by the accused to release him on bail on ground of statutory delay‑‑‑Court was competent to allow bail when it came to its notice that the period of continuous detention of the accused, was more than one year and the trial was yet to be concluded‑‑‑Formal application on ground of statutory delay was not necessary as Court was vested with the powers to release the accused on bail on statutory ground of delay without formal request if that fact .would come into notice of the Court through an application or otherwise‑‑‑Period of detention of the accused being more than one year, order of the Trial Court releasing the accused on bail would warrant no interference.

Muhammad Azam Khan for Petitioner.

Ch. Muhammad Younis Arvi for Respondent.

Auranzib Chaudhry, Asstt. A.‑G. for the State.

Date of hearing: 29th May, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 2109 #

2001 Y L R 2109

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

SHARAFAT HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.5 of 2001, decided on 2nd August, 2001.

(On appeal from the judgment of Shariat Court, dated 2‑2‑2001 in Criminal Revision No. 154 of 2000).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss.302/34 & 324/34‑‑‑Bail on ground of statutory delay ‑‑‑Shariat Court being a Court of appeal/revision against the order of District Criminal Court, the period of conclusion of trial to be looked into was the date on which the application for bail was moved by the accused‑‑‑Trial Court as well as the Shariat Court both were in agreement on the point that on the day when the accused had moved the bail application the statutory period of two years had not completed as yet‑‑‑Delay, if any, in the conclusion of the trial had been caused either due to the act or omission of the accused or his counsel‑‑Accused, therefore, was not entitled to the concession of bail as the statutory period for conclusion of trial had not been completed as yet‑‑‑Accused with a high velocity weapon like Kalashnikov by resorting to indiscriminate firing alongwith his companions had killed three persons instantaneously on the spot and injured four persons callously and mercilessly‑‑‑Such act of the accused was nothing but a highest stage of barbarism and high‑handedness which showed the desperate and hardened nature of his criminality‑‑‑Bail was declined to accused in circumstances.

Muhammad Jameel Khan v. Muhammad Shakeel and another Criminal Appeal No. 20 of 2000; Naeem Akram Khan v. Mumtaz Ahmed and another Criminal Appeal No .19 of 1999 and Muhammad Aziz v. State Criminal Appeal No.2 of 1998 ref.

Ashfaque Hussain Kiani, Advocate for Appellant.

Syed Ejaz Ali Gilani, Assistant Advocate‑General for the State.

Date of hearing: 26th July, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 2372 #

2001 Y L R 2372

[Azad J&K]

Before Muhammad Reaz Akhtar Chaudhry, J

AZIZ MUHAMMAD KHAN and 4 others‑‑‑Petitioners

versus

FEDERAL INVESTIGATING AGENCY, RAWALPINDI, ISLAMABAD and

others‑‑‑Respondents

Writ Petitions Nos.94 and 120 of 1998, decided on 19th May, 2001.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss.406, 409, 420, 468 & 471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 12, 21, 31 & 44‑‑ Jurisdiction of F.I.A. to register case‑‑ Registration of criminal case against petitioner by F.I.A. was challenged by the petitioners on ground that petitioner Mill was installed in Mangla, Mirpur, Azad Kashmir, its head office was situated at mirpur, transaction of loan had also taken place with the Bank at Mirpur and F.I.A. which being an institution under Government of Pakistan had no jurisdiction to register the case against the petitioners‑‑‑ValidityAzad Jammu and Kashmir Interim Constitution Act, 1974 contained two Legislative Bodies in Azad Jammu and Kashmir; one being the Azad Jammu and Kashmir Council; and the other Azad Jammu and Kashmir Legislative Assembly; Azad Jammu and Kashmir Council which had exclusive authority and power to enact laws under S.31(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974 in respect of the subjects which were included in the Council Legislative List whereas the Assembly had all powers to make laws on all other residuary matters not included in the Central Legislative List‑‑‑Constitution did not recognise that the Executive Authority of Azad Jammu and Kashmir Council would be exercised by the functionaries or officers of the Government of Pakistan‑‑‑Powers and functions available to officers under the Act of Parliament of Pakistan, could not be extended to Azad Jammu and Kashmir because they were not subordinate to the Council or the Government of Azad Jammu and Kashmir ‑‑‑F.I.A. which was an institution of Pakistan Government and was not subordinate to Azad Jammu and Kashmir, had no jurisdiction to register case against the petitioners at Rawalpindi, Pakistan, regarding the affairs of the Company registered and located at Mirpur Azad Kashmir‑‑‑Cases registered with F.I.A. against the petitioners were declared to be without lawful authority.

Jabeer Hotel, Mirpur v. Azad Jammu and Kashmir Council and others ref.

Abdul Majeed Mallik, Umar Mehmood Qasoori, Haji Muhammad Afzal and Ch. Muhammad Azam Khan for Petitioners (in both the Petitions).

Nemo for Non‑Petitioners Nos. 1, 3, 4 and 5 (in both the Petitions).

Khalid Mehmood for Non‑Petitioners Nos. 1, 2, 4 and 5 (in both the Petitions).

YLR 2001 SUPREME COURT AZAD KASHMIR 2398 #

2001 Y L R 2398

[Azad J&K]

Before Muhammad Reaz Akhtar Chaudhry, J

KHURSHID ANWAR ‑‑‑Petitioner

versus

CHAIRMAN EHTESAB BUREAU, AZAD KASHMIR, MUZAFFARABAD and

another‑‑‑Non‑Petitioners

Criminal Miscellaneous No. 3 of 2001, decided on 3rd July, 2001.

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

‑‑‑‑Ss.497/498‑‑‑Bail, application for‑‑Assessment of evidence‑‑Principle‑‑‑Court shall riot embark upon the meticulous appreciation of evidence while considering the bail application and shall make only its tentative evaluation‑‑‑Where such tentative assessment of allegations reveals that ultimately the merits of the case may not warrant such sentence, concession of bail shall be extended to accused.

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

‑‑‑‑S.497‑‑‑‑Bail‑‑‑No legal or moral compulsion exists to keep the accused person in detention merely on the allegation of having committed an offence punishable with death or imprisonment for life, find if the bail is allowed to him but ultimately he is convicted after the trial, the wrong caused by the grant of interim bail can be repaired, but no satisfactory reparation can be afforded to the accused for his unjust detention if he is acquitted after the trial.

PLD 1983 SC (AJ&K) 8 ref.

‑‑‑‑S.498‑‑‑Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001), S.11‑‑‑Pre-arrest bail‑‑‑Allegation against the accused was that he had utilized the accommodation of the Rest House‑‑‑Record did not reveal that the accused had ever made any request for reservation of the Rest House, but the reservation was arranged by the Prime Minister of AJ&K and the accused had resided in the Rest House as the guest of the Prime Minister‑‑‑Matter, thus, required further inquiry, whether the accused had himself obtained any reservation of the Rest House and the bill was to be paid by him or the Prime Minister‑‑‑Interim pre‑arrest bail allowed to accused was confirmed in circumstances.

PLD 1983 SC (AJ&K) 8 ref.

Abdul Majeed Malick for Petitioner.

Ch. Muhammad Ibrahim Zia, Chief Prosecutor for Non‑Petitioners.

YLR 2001 SUPREME COURT AZAD KASHMIR 2478 #

2001 Y L R 2478

[(Azad J&K)]

Before Chaudhry Muhammad Taj and Muhammad Reaz Akhtar Chaudhry, JJ

Prof. Dr. MUHAMMAD SARWAR CHAUDHRY and another‑‑‑Appellants

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Appal No.1 of 2001, decided on 7th July, 2001 .

(a) Appreciation of evidence‑‑‑

‑‑‑‑Corroboration‑‑‑Corroboration by another corroborative piece of evidence ‑‑‑Validity‑‑One corroborative piece of evidence cannot be used for the corroboration of another corroborative piece of evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409‑‑‑Criminal breach of trust‑‑Failure to discharge the responsibility for the safe custody of the property would not per se amount to establishment of offence of criminal misappropriation within the meaning of S. 409, P.P.C.‑‑‑Mere entrustment of property to the accused and its shortage is not enough to establish guilt of dishonest misappropriation.

1968 PCr.LJ 358 and 1994 PCr.LJ 1116 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Misappropriation‑‑‑No one can be held liable for the offences of misappropriation and under S.5(2) of the Prevention of Corruption Act, 1947, unless he himself has dishonesty misappropriation or deliberately allowed someone else to do so.

1968 PCr.LJ 358 and 1994 PCr.LJ 1116 ref.

(d) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Withholding of best available evidence‑‑‑Presumption‑‑‑If a party fails to produce the best evidence in its possession, it will be presumed that if such evidence had been produced it would have gone against the said party.

PLD 1958 Kar. 359 ref.

(e) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Expert opinion‑‑‑Evidence of an Expert even if considered as confirmatory or explanatory of direct evidence, can be a corroborative piece of evidence, but it cannot take place of direct evidence.

PLD 1974 SC 53 ref.

(f) Azad Jammu and Kashmir Ehtesab Act, 1998‑‑‑

‑‑‑‑‑. 4‑‑‑Penal Code (XLV of 1860), Ss.409/467/468/204/109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Appreciation of evidence‑‑‑Best evidence in the shape of Bank record despite being available had not been produced in evidence by the prosecution‑‑‑Entire prosecution case was based on presumptions, suspicions and conjectures which could not take place of legal evidence‑‑‑Reports relied upon by Trial Court were vague and self‑contradictory‑‑Best available evidence having been ,withheld, it could be presumed that in case it had been produced it would have gone against the prosecution version‑‑‑Accused were acquitted in circumstances.

2000 MLD 1522;1998 PCr.LJ 1865; 1998 PCr.LJ 2042; 1994 PCr.LJ 1114; PLD 1977 SC (AJ&K) 1; 1977 SCMR 109; 1968 SCR 244; 1968 PCr.LJ 358; 1994 PCr.LJ 1116; PLD 1958 Kar. 359; PLD 1974 SC 53 and PLD 1958 (W.P.) Lah. 242 ref.

Abdur Rasheed Abbasi and Muhammad Sharif Tariq for Appellants.

Sheikh Masood Iqbal, Deputy Chief Prosecutor for Respondents.

YLR 2001 SUPREME COURT AZAD KASHMIR 2642 #

2001 Y L R 2642

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, J

MUJAHID HUSSAIN NAQVI‑‑‑Petitioner

versus

DIRECTOR/DEPUTY DIRECTOR, ANTI-CORRUPTION and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No.6 and Civil Miscellaneous No.7 of 2001, decided on 13th September, 2001.

(On appeal from the judgment of the High Court dated 13‑6‑2001 in Criminal Miscellaneous No.74 of 2001).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.42(12)‑‑‑Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XIII, R. 1 and O.XXIII, Rr.1 & 2‑‑‑Petition for leave to appeal ‑‑‑Limitation‑‑‑Condonation of delay‑‑Petition for leave to appeal in criminal proceedings which was to be filed under R.2 of O.XXIII of Azad Jammu and Kashmir Supreme Court Rules, 1978 within thirty days was filed after expiry of 56 days‑‑‑Petition thus, was barred by limitation of 26 days‑‑Petitioner had sought condonation of delay contending that he was under the bona fide impression gathered by the general reading of Rr.1 & 2 of O.XXIII and O.XIII of Azad Jammu and Kashmir Supreme Court Rules, 1978 that the limitation for filing petitions for leave to appeal in criminal cases like the civil cases was sixty days‑‑‑Contention was repelled because a different period of limitation had been prescribed for lodging the appeals in criminal matters and in civil matters‑‑‑Order XXIII, Azad Jammu and Kashmir Supreme Court Rules, 1978 related to leave to appeal in criminal proceedings which had clearly provided period of limitation as thirty days whereas O.XIII of the said Rules related to leave to appeal in civil proceedings providing sixty days of limitation and these provisions of law were very clear and the petitioner who himself was one of the senior Advocates of the Supreme Court, could not be expected to have fallen in confusion by reading said clear provisions of law‑‑‑Even otherwise ignorance of law had never been considered as a valid ground for condonation of delay either in civil or in criminal matter‑‑Plea was raised by the petitioner during course of arguments that when petition for leave to appeal was filed it was summer vacation period and after deducting said period of vacation, petition would be deemed to be within the period of limitation‑‑Contention was repelled as said plea was not taken in petition for leave to appeal and ground not taken earlier in petition could not be taken into consideration for the first time at the time of arguments‑‑‑Conduct of the petitioner being contradictory in nature he did not deserve the condonation of delay in filing petition for leave to appeal before Supreme Court.

S.M. Sadiq v. Settlement Commissioner and others 1974 SCMR 149; Fazal Karim and another v. Ghulam Jilani and others 1975 SCMR 452;Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government, Muzaffarabad PLD 1990 SC (AJ&K) 23; Fateh Ali Khan v. Sub. Muhammad Khan 1970 SCMR 238 and Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and "3 others 2001 PLC (C. S.) 445 ref.

Petitioner in person.

Ch. Muhammad Ibrahim Zia, Chief Prosecutor, Ehtesab Bureau for Respondents Nos. l to 4.

Syed Ejaz Ali Gillani, Assistant Advocate‑General for Respondent No.5.

Date of hearing: 10th September, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 2923 #

2001 Y L R 2923

[Supreme Court (AJ&K))

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD JAVED‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 14 of 2001, decided on 8th August, 2001.

(On appeal from the judgment of Shariat Court, dated 27‑4‑2001 in Criminal Revision No.91 of 2000).

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Bail‑‑‑Assessment of evidence‑‑Evidence or material brought on record by the prosecution at bail stage is not to be appreciated in its minute details, rather the same is to be considered tentatively‑‑Appreciation of evidence and drawing of conclusions therefrom is the exclusive function of Trial Court and superior Courts should not anticipate it while dealing with bail matters.

Fazal‑ur‑Rehman v. The State PLD 1981 SC (AJ&K) 10 and Chiragh Din v. The State PLD 1967 SC 340 ref.

(b) Precedent‑‑‑

‑‑‑‑ Every criminal case is to be adjudged in the light of its own peculiar facts and circumstances‑‑‑Authority in one criminal case is hardly applicable in the other criminal case as the authority given in a certain case is relevant only in the facts and circumstances of that case and not in any other case.

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Names of rye‑witnesses had been mentioned in the F.LR. and they had unanimously stated that the accused had inflicted blow with the stone on the forehead of the deceased in consequence of which he died on the spot‑‑‑Weapon of offence i.e., the stone had been recovered at the instance of accused‑‑‑Both the post‑mortem reports had corroborated the prosecution version‑‑Accused in his statement recorded under S. 242, Cr. P. C. had admitted, the date, time and place of occurrence and the presence of the deceased and the eye‑witnesses on the spot by pleading a counter‑version which had not been substantiated even prima facie by any evidence‑‑‑Discretion exercised by the Courts below in declining bail to accused was neither perverse nor against the settled principles relating to bail matters and warranted no interference‑‑Bail was refused to accused accordingly.

Taylor's Prineiples and Practice of Medical Jurisprudence by A. Keith Mant, 13th Edn. at p.111; Fazal‑ur‑Rehman v. The State PLD 1981 SC (AJ&K) 10; Chiragh Din v. The State PLD 1967 SC 340; Haft Imam Bakhsh v. Muhammad Bakhsh and others NLR 1978 Criminal 535; Ch. Barkat Ali v. The State 1979 PCr.LJ 352; Muhammad Aslam and others v. The State PLD 1967 SC 539; Noor Ahmed v. The State PLD 1971 SC 174 and Shakeel Ahmed v. The State Criminal Appeal No. 15 of 1987 ref.

Ch. Muhammad Bashir v. Ch. Muhammad Zaman and 2 others PLD 1985 SC (AJ&K) 48 and Muhammad Abbas and another v. The State PLD 1988 SC (AJ&K) 14 distinguished.

(d) Penal Code (XLV of 1860)‑.

‑‑‑‑S. 302/,J4‑‑‑Appreciation of evidence‑‑Medical evidence‑‑‑Value of medical evidence is only for the purpose of corroboration and the same is in the nature of confirmatory evidence.

(e) Evidence‑

‑‑‑‑ Medical evidence‑‑‑Nature and value‑‑Value of medical evidence is only for the purpose of corroboration and the, same is in the nature of confirmatory evidence.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑Corroboration‑‑‑Conviction in a criminal case can be recorded even on the statements of eye‑witnesses without any corroboration, provided they are speaking the truth‑‑Corroboration is not a rule of law but is only a rule of prudence‑‑‑Corroborative evidence need not be of the same probative force as that of the direct evidence.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Reasonable grounds‑‑ Courts in order to ascertain whether reasonable grounds exist or not, do not have to probe into the merits of the case and they have to look only at the material placed before them by the prosecution to see whether some tangible evidence is available against the accused which, if left unrebutted, may lead to the inference of guilt‑‑‑Reasonable grounds, however, are not to be confused with mere allegations or suspicious nor with tested and proved evidence which the law requires for a person's conviction for an offence.

Noor Ahmed v. The State PLD 1971 SC 174 ref.

Raja Muhammad Khurshid Khan, Advocate for Appellant.

Syed Ejaz Ali Gilani, Assistant Advocate‑General for the State.

Ch. Muhammad Yusuf, Advocate for Respondent No.2.

Date of hearing: 16th July, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 2936 #

2001 Y L R 2936

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Khawaja Muhammad Saeed, J

STATE through Ehtesab Bureau, Azad Jammu and Kashmir, Muzaffarabad‑‑‑Appellant

versus

KHALIQUE‑UR‑REHMAN and 3 others‑‑‑Respondents

Criminal Appeal No. 12 of 2001, decided on 15th August, 2001.

(On appeal from the order of the High Court, dated 7‑4‑2001 in Criminal Revision Petitions Nos.34 and 35 of 2001).

Azad Jammu and Kashmir Ehtesab Act (VI of 1997)‑‑‑

‑‑‑‑S. 4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.51‑‑‑Azad Jammu and Kashmir Police Rules of Old Regime (Adoptation of Laws Resolution, 1948), Rr. 1 & 2‑‑‑Criminal Procedure Code (V of 1898), Ss.241 A & 256‑C‑‑‑Supply of copies of statements of witnesses and other documentary evidence to the accused‑‑Demand for supply of such documents free of cost‑‑‑Validity‑‑‑Sections 241‑A & 256‑C of Criminal Procedure Code, 1898 having not been adopted in Azad Jammu and Kashmir, accused could not demand the copies of statements of prosecution witnesses and any other documents free of cost‑‑‑Police Rules of Old Regime in Azad Jammu and Kashmir had been adopted through Resolution No. 638 on December 30, 1948‑‑‑Police Officer, under R.2 of the said Resolution in cognizable cases, while submitting challan, was bound to supply the copies of the statements of all the witnesses and other documentary evidence on which the charge was based to the Court for supplying to the accused persons‑‑‑Said Rules under S.51 of the Azad Jammu and Kashmir Interim Constitution Act had got the force of law and were carrying out the purposes of the Criminal Procedure Code, 1898‑‑‑Procedure contained in the Criminal Procedure Code, 1898 was followed in conducting trial under Ehtesab Act‑‑‑Accused, therefore, were entitled to claim free of cost copies of the statements of the prosecution witnesses and documents tendered in evidence against them‑‑‑Such being the legal requirement, prosecution was directed to supply the aforesaid copies to the accused‑‑‑Appeal was disposed of accordingly.

Chief Secretary Authority/Referring Authority Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95 ref.

Ch. Muhammad Ibrahim Zia, Advocate for Appellant.

Raja Muhammad Hanif Khan, Advocate for Respondents.

Date of hearing: 10th July, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 2955 #

2001 Y L R 2955

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD BASHIR and 3 others‑‑‑Appellants

versus

MANZOOR AHMED KHAN and another‑‑‑Respondents

Criminal Appeal No. 12 of 2001, decided on 2nd August, 2001.

(On appeal from the judgment of Shariat Court, dated 25‑4‑2001 in Criminal Revision No.1 of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/337/147/148/149‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail‑‑‑Accused had been attributed definite roles in the F.I.R. who had caused fire‑arm injuries as well as dagger and hatchet injuries to the prosecution witnesses which were grievous in nature‑‑Complainant and the injured witnesses had fully supported the prosecution version as mentioned in the F.I.R. and their statements recorded under S.161, Cr. P. C. ‑‑‑Accused, thus, were, prima facie, connected with the commission of the alleged offences‑‑‑Bail was refused to accused accordingly‑‑‑Allegation against co‑accused of having inflicted a dagger injury on the abdomen of a prosecution witness as entered in the F.I.R. was not supported by the medico‑legal report who according to the Doctor had received a simple blunt weapon injury‑‑‑Case of accused, thus, required further inquiry and he was admitted to bail in circumstances.

Liaqat Ali Khan, Advocate for Appellants.

Muhammad Yaqoob Mughal, Advocate and Kh. Attaullah, Additional Advocate‑General for Respondents.

Date of hearing: 23rd July, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 3001 #

2001 Y L R 3001

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J

ABDUL HAMEED‑‑‑Appellant

versus

MUHAMMAD NAJEEB‑‑‑Respondent

Civil Appeal No.37 of 2000, decided on 23rd November, 2000.

(On appeal from the judgment of the High Court dated 16‑2‑1999 in Civil Appeals Nos. 14 and 21 of 1996).

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

‑‑‑‑S.42‑‑‑Oaths Act (X of 1873), Ss. 8, 9, 10 & 11‑ ‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42‑‑‑Suit for declaration‑‑‑Recording of statement on special oath‑‑‑Suit was dismissed and the plaintiff filed appeal against judgment and decree of the Trial Court‑‑‑During pendency of appeal before High Court, the appellant/plaintiff made oral prayer which was accompanied by a written application to the effect that if respondent through an affidavit would state on oath that he had not transferred ,the house in dispute to the appellant and had not received its cost from the appellant, the appeal could be decided in favour of the' respondent‑‑‑Respondent accepted said offer and made a statement under special oath and the High Court dismissed the appeal in the light of said statement of the respondent‑‑‑Validity‑‑High Court did not record statement of the respondent on special oath which was a mandatory requirement‑‑‑Provisions of Ss. 8 & 11 of Oaths Act, 1873 had provided that special oath had to be administered while recording evidence, but in the present case no evidence was recorded when the offer to be bound by statement on oath was made‑‑‑Statement of respondent should have been recorded in the same way in which evidence was recorded and without recording of evidence, an oral statement would not lawfully bind the appellant ‑‑‑Judgment of the High Court passed in appeal was set aside by the Supreme Court and case was remanded to decide afresh after recording statement of the respondent properly.

(b) Oath Act (X of 1873)‑‑‑

‑‑‑‑Ss. 8, 9, 10 & 11‑‑‑Oath‑‑‑Offer and acceptance of oath amounted to a contract between parties even if evidence was not recorded.

Ch. Muhammad Sharif Tariq for Appellant.

Raja Muhammad Siddique for Respondent.

Date of hearing: 20th November, 2000.

YLR 2001 SUPREME COURT AZAD KASHMIR 3004 #

2001 Y L R 3004

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, J

CHAIRMAN, M.D.A., MIRPUR and another‑‑‑Petitioners

versus

Ch. MUHAMMAD SALIM ‑‑‑Respondent

Civil Petition for Leave to Appeal No. 116 of 2001, decided on 28th September, 2001.

(On appeal from the judgment and decree of High Court dated 30‑6‑2001 in Civil Appeal No.79 of 1998).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, R.I‑‑‑Appeal before High Court‑‑Memo. of appeal‑‑‑Documents to be appended‑‑‑Memo. of appeal in the High Court must be accompanied by the copy of the judgment and decree appealed against and copy of judgment of Court of first instance‑‑Discretion, however, was vested in the Court to disperse with the copy of judgment either of the Trial Court or of the Appellate Court, keeping in view the facts and circumstances of each case.

Muhammad Iqbal and others v. Khan Muhammad and others PLD 1999 SC 35; Mst. Safia Begum v. Taj Din and 2 others 1993 SCMR 882; Muhammad Baksh and others v. Ghulam Yasin arid others 2000 MLD 466; Liaqat Ali v. Chairman Municipal Corporation and others Civil Appeal No.5 of 1997; Muhammad Ozair v. Nasreen Akhter and others Civil Appeal No.80 of 1999 decided on 4‑12‑1999; Razia Begum and other v. Muhammad Zaman and others Civil P.L.A. No.93 of 2000; Muhammad Amin Shah v. Mehtab Din PLD 1996 SC (AJ&K) 11; Allah Ditta v. Sher Ahmed Khan 1993 SCR 325; Rafique Shah v. Muhammad Aslam 1993 SCR 444 ref.

Ch. Lal Hussain for Petitioners.

Ch. Muhammad Azam Khan for Respondent.

Date of hearing: 27th September, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 3106 #

2001 Y L R 3106

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Mir KHALID BASHIR‑‑‑Appellant

versus

NAZAR HUSSAIN and 2 others‑‑‑Respondents

Civil Appeal No. 30 of 2001, decided on 29th October, 2001.

(On appeal from the judgment of the High Court, dated 8‑11‑2000 in Writ Petition No. 180 of 1999).

Azad Jammu and Kashmir Rent Restriction Act, 1986‑‑‑

‑‑‑‑S. 2(d)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Landlord‑‑‑Definition‑‑ Appellant who was original owner of the shop in question had sold his shop to his brother who subsequently died and legal heirs of his deceased brother became the owners of the said shop‑‑‑Appellant after sale of shop in question filed ejectment application against tenant of said shop‑‑‑Appellant had nowhere pleaded that after transferring the shop in favour of his brother he had been receiving rent from the tenant on behalf of the heirs of his deceased/vendee brother‑‑ After transferring the shop in question in favour of his brother the appellant ceased to be landlord of shop and. had no cause of action to maintain ejectment application against the tenant.

Muhammad Sadiq v. Allah Dad 1996 SCMR 48; Irshad Ahmed and others v. Allah Ditta and others 1998 SCMR 948; Nasrullah v. Mrs. Fatima Begum 1991 CLC 2018 and Shabbir Hussain v. Mst. Shamim Khatoon 1985 MLD 124 ref.

Ch. Muhammad Anwer for Appellant.

Muhammad Yunus Tahir fpr Respondent No. 1.

Date of hearing: 25th October, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 3139 #

2001 Y L R 3139

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

CUSTODIAN OF EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR GOVERNMENT, MUZAFFARABAD and 7 others‑‑‑Appellants

versus

TARIQ MAHMOOD BUTT‑‑‑Respondent

Civil Appeal No. 23 of 2001, decided on 26th October, 2001.

(On appeal from the judgment of the High Court, dated 5‑10‑2000 in Writ Petitions Nos. 2 of 1998 and 55 of 1999).

(a) Pleadings‑‑‑

‑‑‑‑ Point which was not taken in the pleadings by a party, could not be made basis for giving him the relief:

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ jurisdiction, exercise of‑‑Aggrieved person would not be permitted to invoke the writ jurisdiction for the perpetuation of injustice or to save his illgotten gains.

Bashir Ahmad Khan v. Custodian of Evacuee Property, Muzaffarabad PLD 1992 SC (AJ&K) 49; Nawab Bibi v. Shamshad Begum C.P.L.A. No. 183 of 1998; Saif Ali v. Custodian Evacuee Property 1993 SCR 39; Abid Hussain Jafri v. Azad Government 1998 PLC (C.S.) 141; Bashir Ahmad v. Addit. Custodian of Evacuee Property 1998 CLC 692; Bashir Ahmad Khan v. Custodian 1992 SCR 149 and Kashmir Mining and Development Works v. Azad J&K Government 1997 CLC 1771 ref.

‑‑‑‑S. 11‑‑‑Res judicata‑‑‑Point not decided on merits in the earlier litigation, would not constitute res judicata.

Adalat Khan v. Mst. Begum Bibi 1991 SCMR 1381; Muhammad Jamiruddin Ahmed v. Muhammad Nurul Islam PLD 1967 Dacca 441; Phuluwa v. Laxmuchand Sitabrai AIR 1960 Madh. Pra. 138; Abdul Ghafoor v. Chief Settlement Commissioner 1985 SCMR 464 and Messrs Alpha Insurance Co. Ltd., Karachi v. Messrs M.A. Nawaz & Co. PLD 1972 Kar. 265 ref.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 42‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Scope‑‑‑Point which was not subject of controversy either before Authority below or the High Court, could not tie raised in appeal before the Supreme Court.

Ch. Shah Wali, Advocate for Appellant No. 1.

Ch. Muhammad Mushtaq, Advocate for Appellants Nos. 2 to 8.

Ch. Riaz Alam, Advocate for Respondent.

Date of hearing: 26th October, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 3167 #

2001 Y L R 3167

[Supreme Court (AJ&K)J

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Mst. SHAMIM AKHTAR and 14 others‑‑‑Appellants

versus

Mst. FATIMA BI‑‑‑Respondent

Civil Appeal No. 7 of 2001, decided on 19th November, 2001.

(On appeal from the order of the High Court, dated 23‑9‑2000 in Civil Revision No. 26 of 1997). .

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 35 & 35‑A‑‑‑Costs incurred in a suit‑‑Claim for‑‑‑Costs and expenses incurred in a suit by a litigant, could not be claimed by a separate suit after the decision of the suit in which costs were alleged to have been incurred.

Ali Asghar v. Fazal Akbar 1988 CLC 147; Haji Muhammad Shaft v. Mst. Hamidan Bibi 1990 MLD 597; Hafiz Abdullah v. Mangal Sain AIR 1932 Lah. 257 and Mohamed Amin v. Jogendra Kumar Bannerjee AIR 1947 PC 108 ref.

Sardar Shamshad Hussain Khan for Appellants.

Nemo for Respondent.

YLR 2001 SUPREME COURT AZAD KASHMIR 3173 #

2001 Y L R 3173

[Supreme Court (AJ&IQ)

Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvf, J

Mst. SHAMIM AKHTAR and 14 others‑‑‑Appellants

versus

Mst. FATIMA BI‑‑‑Respondent

Civil Appeal No. 6 of 2001, decided on 19th November, 2001.

(On appeal from the judgment and decree of the High Court, dated 23‑9‑2000 in Civil Appeal No. 12 of 1997).

Tort‑--

‑‑‑‑ Malicious civil proceedings‑‑‑Suit for damages‑‑‑Competence‑‑‑Suit for damages in civil malicious prosecution was not barred in all cases‑‑‑Such a suit would be competent if it was found that the concerned party could not be properly compensated by awarding costs in the original suit‑‑‑If the plaintiff in a malicious prosecution or a defendant would die, the right to sue would not survive and such a suit could not proceed‑‑‑No distinction between the malicious criminal prosecution and malicious civil prosecution so far as the question of bringing the legal representatives of the deceased party on the record was concerned‑‑‑Appeal against judgment of High Court was allowed in circumstances.

Mercantile Cooperative Bank Ltd. v. Messrs Habib & Co. PLD 1967 Kar. 755; Mohamed Amin v. Jongendra Kumar Bannerjee AIR 1947 PC 108; Rustomaji Dorabji v. W.H. Nurse AIR 1921 Mad. 1 and Sardar Muhammad Ali v. Pakistan PLD 1961 Kar. 88 ref.

Sardar Shamshad Hussain Khan, Advocate for Appellants.

Date of hearing: 10th January, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 3178 #

2001 Y L R 3178

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD ARSHAD and another‑‑‑Appellants

Versus

MUHAMMAD MUSHTAQ and 5 others‑‑‑Respondents

Criminal Appeal No. 19 of 2001, decided on 8th November, 2001.

(On appeal from the judgment of the Shariat Court, dated 8th August, 2001 in Criminal Misccllaneous No. 102 of 2001).

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

‑‑‑‑Ss. 497, 498 & 561‑A‑‑‑Penal Code (XLV of 1860), Ss. 302/324/337/458 & 34‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Grant of bail by Shariat Court‑‑‑Appeal to the Supreme Court‑‑‑Accused/respondents during pendency of bail application before District Qazi, moved a transfer application before the Shariat Court on the ground that as the District Qazi was not dealing with the case fairly and impartially, their bail application should be transferred to some other Court of competent jurisdiction ‑‑‑Shariat Court treating the said application as the one under Ss. 561‑A & 497/498, Cr. P. C. ordered the release of the accused ‑‑‑Validity‑‑‑Shariat Court in releasing the accused did not apply its judicial mind as to whether there were no reasonable grounds for believing the accused to have committed the alleged offences, but had simply followed the ipse dixit of police, which was not the requirement of law‑‑‑No embargo could be placed on the powers of investigation of police‑‑‑Even during the pendency of a challan the police was competent under law to initiate re‑investigation and submit a supplementary challan‑‑‑Courts of law, however, have to form their own independent judicial opinion as to whether at the stage of bail there were reasonable grounds for believing the accused to be guilty of commission of nonbailable offences as alleged by the prosecution‑‑‑Order passed by the Shariat Court whereby the accused were released, was set aside in appeal by the Supreme Court.

Muhammad Alam and another v. Additional Secretary to Government and 4 others PLD 1987 SC 103; Mirdad Khan v. Zahir Shah and 3 others 2000 PCr.LJ 1739; Farrukh Ahmad Chughtai v. Muhammad Imtiaz and 6 others PLJ 1995 SC (AJ&K) 1; Haji Inayatul Haq v. Said Muhammad Khan and another 1988 SCMR 1743; Muhammad Rashid and another v. The State PLD 1981 SC (AJK) 110; Mirad Hussain v. The State and another 1993 MLD 2402; F.S. Wahidud‑Din v. The Crown PLD 1956 (W.P.) Kar. 489; Hassan Arshad and others v. The State 1987 PCr.LJ 466; Haji Inayat‑ul‑Haq v. Said Muhammad Khan and another 1988 SCMR 1743; Atta Muhammad. Inspector‑General of Police and others PLD 1965 (W.P.) Lah.734; Zafar Sarwar v. The State 1969 SCMR 59 and Muhammad Shabir and 3 others v. Muhammad Ayyub PLD 1988 SC (AJ&K) 176 ref.

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

‑‑‑‑S. 156‑‑‑Police investigation ‑‑‑Scope‑‑Power of the police to investigate‑‑‑No embargo could be placed on the powers of investigation of police‑‑‑Even during the pendency of a challan the police was competent under law to initiate reinvestigation and to submit a supplementary challan‑‑‑No bar exists to the re‑investigation of a case by the police even though earlier report had been submitted by the police.

Ghulam Mustafa Mughal, Advocate for Appellants.

Sardar Abdul Hameed Khan, Advocate for Respondents Nos. 1 to 5.

Raja Ibrar Hussain, A.‑G. for the State, Date of hearing: 5th November, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 3190 #

2001 Y L R 3190

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD HANIF KHAN and another‑‑‑Appellants

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 22 others‑‑‑Respondents

Civil Appeal No. 53 of 2001, decided on 19th October, 2001.

(On appeal from the judgment of the High Court, dated 26‑1‑2001 in Writ Petition No. 129 of 1996).

(a) Azad Jammu and Kashmir Land Revenue Act, 1967‑‑‑

‑‑‑‑S.6‑‑ Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑Exclusion of a village from one District and inclusion in another‑‑‑Authority through notification excluded village in question from District 'B' and included the same in Tehsil 'R' of District 'P'‑‑‑Feeling aggrieved by said notification affectees of the village filed writ petition before High Court, but same was dismissed and dismissal order was challenged by the affected persons in appeal before the Supreme Court‑‑‑Contention of the appellants was that the village was part of District 'B' since long and had been included in District 'P' with mala fide intention in order to give undue benefit to respondents or the political elements in the coming election‑Appellants had further contended that according to geographical position and its location the village had common features with residents of District 'B' and it had been included in the other District a few days before elections‑‑‑Validity‑‑‑Notification had itself provided that same would take effect after the general elections‑‑‑Contention that impugned notification was issued with mala fide intention for giving undue advantage to the respondents in the coming election, had no legs to stand upon‑‑‑Point that notification which was not published in the Official Gazette, was a nullity in the eye of law, had not been raised in the writ petition, but was raised for the first time in replication of the appellants‑‑‑Respondents, in circum‑stances, had no opportunity to repudiate the said point‑‑‑Even otherwise point not raised in the pleadings could not be raised for the first time before the Supreme Court‑‑‑Contention of appellants, was repelled.

Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others PLD 1974 Lah 458; Muhammad Tariq Khan v. The State and another PLD 1998 SC (AJ&K) 17; Barkat Hussain v. Sardar Misri Khan PLD 1992 SC (AJ&K) 45; Azad Government of the State of Jammu and Kashmir and 3 others v. Nafees Bakers and 2 others PLD 1995 SC (AJ&K) 47 and Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others 2000 SCR 273 ref.

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

‑‑‑‑0. VIII, R.9‑‑‑Subsequent pleadings‑‑Provisions of O. VIII, R. 9, C. P. C. enable the Court to require a written statement or additional written statement from any of the parties at any time‑‑‑Court, after the amendment of the plaint should call upon the defendant to file an additional written statement if he would choose to do so, particularly after the newly‑added defendant's plea in his written statement‑‑‑Court was duty‑bound to give an opportunity to the original defendant after the plaint had been amended and new pleadings had been brought on record‑‑‑Object of the Civil Procedure Code was to decide the rights of the parties and not to punish them for the mistakes committed in the conduct of their cases‑‑‑Party could not be allowed to take a plea inconsistent with the plea taken earlier and the admission once made by a party could not be revoked without the leave of the Court‑‑‑No pleading subsequent to the written statement other than by way of defence of set‑off could be filed by a party as a matter of right‑‑‑New plea could not be taken even in the written statement except with the permission of the Court.

Muhammad Ibrahim v. Sindh Industrial Trading Estate Limited and 3 others PLD 1985 Kar. 95; Syed Mohsin Raza Bukhari and 4 others v. Syeda Azra Zenab Bukhari 1993 CLC 31; Zamani Begum v. Fazal‑ur‑Rehman AIR 1943 Lah. 241; Muhammad Sarwar v. Abdul Lateef PLD 1978 Lah. 391 and Mudassar Hussain v. Mst. Kaniz Fatima PLD 1986 Lah. 140 ref.

(e) Azad Jammu and Kashmir Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.6‑‑‑Rules of Business of Azad Jammu and Kashmir Government, R.23‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 12 & 42‑‑‑Exclusion of a village from one District and its inclusion in another district‑‑‑Notification whereby village was excluded from District 'B' and was included in District 'P' had been challenged on the ground that due to geographical position and historical background said village was part of District 'B'‑‑Appellants/affected people could not substantiate their said plea by bringing any evidence on record‑‑‑Executive Authority of the Azad Jammu and Kashmir Government was to be exercised in the name of the President by the Government consisting of the Prime Minister and the Ministers which was to be acted through the Prime Minister who was the Chief Executive‑‑‑Prime Minister in the performance of the functions, could act either directly or through Ministers under S.12 of Azad Jammu and Kashmir Interim Constitution Act, 1974‑‑‑Prime Minister issued notification with regard to change of District of the village, keeping in view the circumstances prevailing therein‑‑‑Contention raised by the appellants that the matter involving vital political policy under R.23 of the Rules of Business should have been placed before the Cabinet was repelled as the same was not raised in the pleadings‑‑‑Even otherwise there was hardly any political importance involved to place the same before the Cabinet‑‑‑Prime Minister in view of prevailing situation could pass orders even without asking for any report from any Sub-Committee‑‑‑Village in question was rightly included in the other District on the demand of all the members of the Union Council‑‑High Court having committed no illegality in dismissing writ petition filed against change of District of the village, judgment of High Court could not be interfered with in appeal by the Supreme Court.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellants.

Imdad Ali Mallick, Advocate for Respondents Nos. 7 to 10, 13 to 16, 19, 20, 22 and 23.

Date of hearing: 11th October, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 3237 #

2001 Y L R 3237

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Ch. MEHMOOD AHMED ‑‑‑Petitioner

versus

Haji MUHAMMAD IDREES and another‑‑‑Respondents

Civil Review Petition No. 6 of 2000, decided on 23rd June, 2000.

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

‑‑‑‑0. V, Rr. 1, 17 & O.,XL V11, R. l‑‑ Azad Jammu and Kashmir Supreme Court Rules, 1978, 0.1, R.5‑‑‑Review‑‑‑Service of summons‑‑‑Refusal of defendant to accept the summons‑‑‑Defendant who was proceeded ex parse for non‑appearance, had refused to receive summons of the Court which was sufficient service of summons and there was no other formality to be completed because if a person had refused to receive the summons, it would be deemed that he had been served‑‑Petitioner who absented himself from proceedings up to Supreme Court stated that he obtained knowledge of judgment of Supreme Court a short while after the same was announced without disclosing source of his information which he was bound to disclose‑‑‑Contention that in case of nonacceptance of service by the defendant the proper course was to affix the summons on the outer door of the defendant as provided under O. V, R.17, C. P. C. was repelled in view of the fact that it had clearly been provided in 0.1, R.5 of Supreme Court Rules, 1980 that the provision of Civil Procedure Code, 1908 would not apply to the proceedings in the Supreme Court.

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

‑‑‑‑S.114 & O. XLV7I, R. l ‑‑‑Review‑‑Competence‑‑‑Principles‑‑‑Review petition would be competent only if there was a mistake apparent on the face of record or for a reason which was analogous to the "apparent mistake "‑‑‑Finding given in appeal after considering the relevant material on record would not justify the review of an order or judgment‑‑‑Point finally resolved one way or the other, could not be re‑opened as the scope of review was very limited and it could not be treated as an appeal so as to reopen the points which stood already resolved‑‑‑Petitioner having failed to make out any case for admission of the review petition for regular hearing, petition stood dismissed.

Abdul Qadir and 2 others v. Abdur Rehman and 5 others 1999 PLC (SC) 947 and Alam Din v. Mayor Municipal Corporation, Mirpur and 4 others 2000 YLR 1891 ref.

Liaqat Ali Khan for Petitioner.

Abdul Majid Mallick for Respondent No. 1

Date of hearing: 30th May, 2000.

YLR 2001 SUPREME COURT AZAD KASHMIR 3241 #

2001 Y L R 3241

[Supreme Court (A.J&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD RASHID‑‑‑Appellant

versus

ZAIDULLAH and another‑‑‑Respondents

Criminal Appeal No. ‑23 of 1999, decided on 30th March, 2006.

(On appeal from the judgment of the Shariat Court, dated 25‑8‑1999 in Criminal Revision No. 79 of 1999).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Grant of bail on ground of illness‑‑‑Validity‑‑‑Bail was granted to the accused on ground of his illness on basis of Medical Certificate issued by an official doctor of D. H. Q. Hospital‑‑‑Nothing was on record to create any doubt in the Medical Certificate‑‑‑E. C. G. and X‑Rays of the accused who was a heart patient, were conducted at the hospital which showed that the accused had enlarged heart and that he suffered from heart failure and unstable angina‑‑‑Credence could also be given to the note written by the Medical Officer that the accused had been under treatment of a doctor who was Cardiologist of Armed Forces Institute of Cardiology‑‑‑Discretion exercised by the Court in granting bail to the accused did not appear to be arbitrary and the same having been exercised on the basis of official record, no case was made out for interference.

Noor Khan v. The State 1995 PCr.LJ 1249; Haji Mir Aftab v. The State 1979 SCMR 320 and Barkat Ali and 3 others v. The State 1981 PCr.IJ 274 ref.

Abdul Majid Mallick, Advocate for Appellant.

Sher Zaman Choudri, Advocate for Respondents.

Date of hearing: 28th February, 2000.

YLR 2001 SUPREME COURT AZAD KASHMIR 3248 #

2001 Y L R 3248

[Supreme Court (AJ&K]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, V

MUMTAZ HUSSAIN and 11 others‑‑‑Appellants

versus

MUHAMMAD FAZIL KHAN and another‑‑‑Respondents

Civil Appeal No. 99 of 2000, decided on 16th November, 2000.

(On appeal from the judgment of the High Court, dated 28‑4‑2000 in Writ Petition No. 11 of 1996).

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑

‑‑‑‑Ss. 18‑A & 43‑‑‑Second review petition‑‑Competency‑‑‑Limitation‑‑‑First review petition filed by the petitioner was dismissed by the Custodian and petitioner instead of filing an application for restoration of the review petition, filed another review petition about more than 3‑1 /2 years after the dismissal of the first review petition, which was dismissed by the Custodian as barred by time and being incompetent‑‑‑Petitioner contended that he being in Army service his counsel did not inform him of the judgment of the Custodian with regard to dismissal of first review petition‑‑‑No affidavit of the counsel in support of the said ground was filed before the High Court or Supreme Court‑‑-Contention was repelled because that was not one of the recognized grounds for condonation of delay as the negligence of a counsel would be deemed to be negligence of his client‑‑‑Petitioner had not only been negligent and sleeping over his right for filing the subsequent review petition for a period of more than three years, but he also failed to disclose a fresh ground for filing the subsequent review petition‑‑‑Second review petition was rightly dismissed by the Custodian, being hopelessly time‑barred and incompetent.

(b) Limitation‑‑‑

‑‑‑‑ Condonation of delay‑‑‑Dismissal of petition‑‑‑Petitioner contended that his counsel had not informed him about the dismissal of petition, therefore, delay in filing the petition be condoned‑‑‑Contention was repelled being not one of the recognised grounds for condonation of delay‑‑Negligence of the counsel would be deemed to be the negligence of client.

Nazir Ahmad Khan v. Custodian of Evacuee Property and others Civil P.L.A. No. 156 of 1998; Kh. Ghulam Qadir and another v. The Custodian of Evacuee Property and others Civil Appeal No. 10 of 1992 and Azmatullah and another v. Ali Bahadur and another 1996 CLC 254 ref.

M. Tabassum Aftab Alvi, Advocate for Appellants.

Sardar Rafique Mahmood Khan, Advocate for Respondent No. 1.

Farooq Hussain Kashmiri, Advocate for the Custodian.

Date of hearing: 13th November, 2000.

YLR 2001 SUPREME COURT AZAD KASHMIR 3253 #

2001 Y L R 3253

[Supreme Court (AJ&K]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD SAID KHAN and 32 others‑‑‑Petitioners

versus

ABDUL QAYYUM KHAN‑‑‑Respondent

Civil Review Petition No 10 of 2000, decided on 16th November, 2000.

In the matter of review from the judgment of this Court, dated 12th May, 2000 in Civil Appeals Nos. 143 and 144 of 1999 and Civil Miscellaneous No. 119 of 2000, decided on 16th November, 2000.

(a) Practice and procedure‑‑‑

‑‑‑‑ Unlike a criminal case, plaintiff in a civil case is not supposed to prove his case beyond any reasonable shadow of doubt, but the Court of law is expected to decide a dispute on the basis of preponderance of evidence‑‑‑When the evidence of both the parties is brought on record, the question of burden of proof becomes immaterial.

Hafiz‑ul‑Haq v. Haji Abdul Mastan PLD 1994 Pesh. 235 and Amirullah v. Surat Ali and 17 others PLD 1991 Pesh. 29 ref.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978‑‑‑

‑‑‑‑Rr. 4 & 5‑‑‑Powers of Supreme Court under Rr. 4 & 5 of Azad Jammu and Kashmir Supreme Court Rules, 1978‑‑‑Scope‑‑‑Powers available to the Supreme Court under Rr. 4 & 5 of Azad Jammu and Kashmir Supreme Court Rules, 1978, were not to be exercised in routine, but the same were available to the Court to do complete justice between the parties.

‑‑‑‑Art. 118‑‑‑When the evidence of both the parties is brought on record question of burden of proof becomes immaterial.

Imdad Ali Mallick, Advocate for Petitioners (in Civil Review Petition No. 10 of 2000).

Abdul Rashid Abbasi, Advocate for Respondent (in Civil Review Petition No. 10 of 2000).

Abdul Rashid Abbasi, Advocate for Applicant (in Civil Miscellaneous No.119 of 2000).

Imdad Ali Mallick, Advocate for Non‑Applicants (in Civil Miscellaneous No. 119 of 2000).

Date of hearing: 10th October, 2000.

YLR 2001 SUPREME COURT AZAD KASHMIR 3257 #

2001 Y L R 3257

[Supreme Court (AJ&K]

Present: Sardar Said Muhammad Khan, CJ, and Muhammad Yunus Surakhvi, J

AZAD GOVERNMENT and another‑‑‑Appellants

versus

Mirza ZAID ULLAH KHAN and 8 others‑‑‑Respondents

Civil Appeal No. 154 of 2000, decided on 18th December, 2000.

(On appeal from the judgment of the High Court, dated 2‑6‑2000 in Writ Petition No. 172 of 2000).

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. S‑‑‑Delay, condonation of‑‑‑Party seeking the condonation of delay had to satisfactorily explain the delay of each and every day and the explanation put forth must be reasonable and cogent.

Mehboob and another v. Muzaffar Din 1992 SCR 338; Muneer Hussain v. Custodian of Evacuee Property and 4 others 1995 SCR 349 and Azad Government of the State of Jammu and Kashmir v. Ch. Abdul Latif PLD 1983 SC (AJ&K) 70 ref.

Farooq Hussain Kashmiri, Advocate for Appellants.

Raja Muhammad Hanif Khan Advocate for Respondents.

Date of hearing: 15th December,

YLR 2001 SUPREME COURT AZAD KASHMIR 3261 #

2001 Y R 3261

[Supreme Court (AJ&K]

Present: Sardar Said Muhammad Khan, C. J, and Muhammad Yunus Surakhvi, J

AJ&K GOVERNMENT and another‑‑‑Appellants

versus

GHULAM RASOOL LOON and another‑‑‑Respondents

Civil Appeal No. 139 of 2000, decided on 21st December, 2000.

(On appeal from the judgment of the High Court, dated 3‑6‑2000 in Civil Appeal No. 9 of 2000).

Azad Jammu and Kashmir Law Department Manual, 1984‑‑

‑‑‑‑Rr. 17, 23 & 29‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Appeal to High Court‑‑-Maintainability‑‑‑Maintainability of appeal filed by Government in High Court against orders passed by the Court below in execution proceedings, was challenged on the ground that sanction was granted by the Government to file the writ petition before the High Court, but instead appeal had been filed which was liable to be dismissed as having been filed without proper authority‑‑‑High Court dismissed the appeal on the said sole technical ground‑‑‑Validity‑‑‑Under provisions of R.17 of Azad Jammu and Kashmir Law Department Manual, 1984, a proposal was to be submitted to the Government for the institution of an appeal or revision and expression "suit" under R.23 of said Manual included an appeal and applications for revision or review of execution of decree and any civil judicial proceedings in which State or Public Officer in his official capacity was a party or had any interest‑‑‑High Court by strictly construing the words "writ petition " which were misdescribed in the Government sanction, was not justified to dismiss appeal‑‑‑Such a narrow construction should not have been made by the High Court as it was at the most irregularity which was curable‑‑Supreme Court set aside order of the High Court and remanded case to decide afresh.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Sh. Abdul Aziz, Advocate for Respondents, Date of hearing 20th December, 2000,

YLR 2001 SUPREME COURT AZAD KASHMIR 3263 #

2001 Y L R 3263

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

Civil Appeal No. 152 of 1999.

Kh. TAUFIQUE QADIR‑‑‑Appellant

versus

Qazi KHALIL‑UR‑REHMAN and another‑‑‑Respondents

Civil Appeal No.. 153 of 1999.

Qazi KHALIL‑UR‑REHMAN‑‑‑Appellant

versus

REHMATULLAH REHMANI and another‑‑‑Respondents

Civil Appeals Nos. 152 and 153 of 1999, decided on 6th March, 2000.

(On appeals from the judgment of the High Court, dated 27‑7‑1999 in Revision Petition No. 61 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr. 1, 2 & S.151 ‑‑‑Interim iniunction, grant of‑‑‑Imposition of condition‑‑‑Inherent power of Court‑‑‑Order granting interim injunction by the Trial Court to the plaintiff was set aside in appeal by Appellate Court‑‑‑Revision against order of Appellate Court was dismissed by the High Court with direction that defendant would execute an undertaking that he would not demand compensation for the construction made over disputed land if the suit filed by the plaintiff against him was decided in favour of the plaintiff and against the defendant‑‑‑Defendant challenged order of High Court contending that High Court while deciding the matter pertaining to interim injunction could not impose such condition‑‑Validity‑‑‑Contention was repelled in view of the fact that such a condition could be imposed by the High Court, if not under OXXXIX C. P. C. in exercise of its inherent powers.

Messrs Qureshi Vegetable Ghee Mills Ltd., Mangla v. Habib Bank Limited, Mirpur 1994 MLD 912; Jamia Masjid Sharif Rara v. Mufti Khalil‑ur‑Rehman 1999 CLC 964; Haji Shahjahan Khan v. Aurang Zeb Khan PLD 1995 SC 462; Kh. Abdus Subhan v. Khurshid 2000 YLR 2898 and Khalil‑ur-Rehman v. Gohar Rehman in Civil Appeal No. 4 of 1987 ref.

Ashfaque Hussain Kiani, Advocate for Appellant (in Civil Appeal No. 152 of 1999 and for Respondent No. 1 (in Civil Appeal No. 153 of 1999).

Ghulam Mustafa Mughal, Advocate for Respondent No. l (in Civil Appeal No. 153 of 1999).

Date of hearing: 18th February,

YLR 2001 SUPREME COURT AZAD KASHMIR 3268 #

2001 Y L R 3268

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Sardar MUAHMAMD ISHAQ‑‑‑Appellant

versus

SPEAKER, AJK ASSEMBLY and 7 others‑‑‑Respondents

Civil Appeal No. 154 of 1999, decided on 3rd February, 2000.

(On appeal from the judgment of the High Court, dated 31‑7‑1999 in Writ Petition No. 81 of 1997).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.44‑‑‑Writ of quo warranto‑‑‑Laches‑‑-Question of laches was not relevant in case of writ of quo warranto‑‑‑Such question could only be considered alongwith other circumstances in the context of mala fides of the relator ‑‑‑High Court had not dealt with the grounds on which writ of quo warranto had been sought‑‑‑Supreme Court set aside the judgment passed by High Court and remanded the case for decision afresh.

Azad Government v. Sahibzada Ishaq Zafar 1994 SCR 323; Syed Manzoor Hussain Gillani v. Sain Mullah 1992 MLD 2424; Muhammad Ali v. Muhammad $ashir PLD 1962 Lah. 230 and Muhammad Yaqoob Khan v. Secretary, Forest/Tourism 1999 MLD 1862 ref.

Appellant in person.

Raja Shiraz Kayani, Advocate-General for Respondent Nos. 1 to 6.

Muhammad Farid Khan, Advocate for Respondent No.7.

Date of hearing: 1st February, 2000.

YLR 2001 SUPREME COURT AZAD KASHMIR 3271 #

2001 Y L R 3271

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD NAZIR KHAN‑‑‑Appellant

versus

AZAD GOVERNMENT and 4 others‑‑‑Respondents

Civil Appeal No. 131 of 1999, decided on 19th May, 2000.

(On appeal from the judgment of the High Court, dated 23‑4‑1999 in Writ Petition No. 23 of 1997).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.44‑‑‑Writ petition ‑‑‑Competence‑‑Reliefs claimed in the petition though were addressed to the Authority, but said Authority was not impleaded as a party in writ petition and the Chairman of the Authority was arrayed in petition as one of the respondents‑‑‑Chairman and the Authority having not the same entity for the purposes of a writ petition, petition suffered from fatal defect and was rightly dismissed by the High Court being incompetent.

Muhammad Resham Khan v. Chairman, Inspection Team and 4 others PLJ 1990 SC (AJ&K) 38; Qazi Liaquat Ali Qureshi v. Hafiz Muhammad Ishaq and 3 others 1998 PLC (C.S.) 15; Abdul Hamid v. Muhammad Zamir 1980 PSC 1014 and Mirza Lal Hussain v. Custodian of Evacuee Property 1992 SCR 214 ref.

Muhammad Sayab Khalid for Appellant.

Raja Shiraz Kayani, A.‑G. for Respondent No. 1.

Sardar Muhammad Sadiq Khan for Respondent No.2.

Date of hearing: 3rd May, 2000.

YLR 2001 SUPREME COURT AZAD KASHMIR 3280 #

2001 Y L R 3280

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD HUSSAIN ‑‑‑Appellant

versus

MUHAMMAD AFSAR and 5 others‑‑‑Respondents

Civil Appeal No. 35 of 2001, decided on 31st October, 2001.

(On appeal from the judgment and decree of the High Court, dated 19‑1‑2001 in Civil Appeal No. 4 of 1992)

(a) Azad Jammu and Kashmir Courts and Laws Code Act, 1949‑‑‑

‑‑‑‑S.36(2) (a)‑‑‑Forum of appeal on the basis of jurisdictional value‑‑‑Forum of appeal was to be determined on the jurisdictional value given in the plaint and not the subject‑matter of the appeal‑‑‑Value fixed in the original suit was to be considered while determining the forum of appeal.

Bans Gopal Singh v. Sheo Bardan Singh AIR 1944 Oudh 276 ref.

(b) Suits Valuation Act (V11 of 1887)‑‑‑

‑‑‑‑S.11‑‑‑Over‑valuation or under‑valuation of a suit or appeal‑‑‑If objection in respect of over‑valuation was not raised in the Trial Court before or at the time of framing the issues and in the Appellate Court in the memorandum of appeal, same could not be raised afterwards.

‑‑‑ Nobody could be penalized for the mistake of the Court or its officials.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Raja Muhammad Siddique Khan, Advocate for Respondents.

Date of hearing: 29th October, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 3287 #

2001 Y L R 3287

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Khawaja Muhammad Saeed, J

Mst. AMIR BEGUM and 7 others‑‑‑Appellants

versus

CUSTODIAN OF EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR GOVERNMENT, MUZAFFARABAD and another‑‑‑Respondents

Civil Appeal No. 12 of 2001, decided on 31st October, 2001.

(On appeal from the judgment of the High Court, dated 17‑6‑2000 in Writ Petition No. 52 of 1999)

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

‑‑‑‑S.43(6)‑‑‑Second review petition before Custodian‑‑‑ Maintainability‑‑‑ Limitation‑‑Second review petition on fresh ground could be filed before the Custodian within period of days.

Muhammad Sajid and 5 others v. Nazir Hussain and another 1999 YLR 1688; Makhan Jan and 5 others v. Custodian of Evaucee Property, Azad Jammu and Kashmir Muzaffarabad and 2 others PLJ 2001 SC (AJ&K) 368 and Sardar Ali and others v. Karamat Ali Khan and others 1993 SCR 226 ref.

M. Riaz Tabbasum for Appellants.

Ch. Shahwali for Respondent No. 1.

Muhammad Younus Tahir for Respondent No. 2.

Date of hearing: 29th October, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 3293 #

2001 Y L R 3293

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

Mst. ATTAR JAN and others‑‑‑Appellants

versus

Mst. RESHAM JAN and others‑‑‑Respondents

Civil Appeals Nos. 33 and 34 of 2001 decided on 8th November, 2001.

(On appeals from the judgment and decree of the High Court, dated 22‑12‑2000 in Civil Appeal No.65 of 1994 and Civil Appeal No. 4 of 1995).

(a) Practice and procedure‑‑‑

‑‑‑‑ Even a law point which was not raised in the concise statement filed by a party, could not be allowed to be raised for the first time during the course of arguments.

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

‑‑‑‑O.XLI, R.1‑‑‑Appeal against judgment and decree of the Trial Court before First Appellate Court ‑‑‑Non-filing of copy of judgment and decree sheet alongwith memo. of appeal‑‑-Appeal to High Court against judgment and decree passed by the Appellate Court below‑‑‑Objection was raised by the appellant that respondent who also filed appeal before Appellate. Court below against judgment and decree of the Trial Court, having failed to file copy of judgment and decree sheet alongwith memorandum of appeal his appeal was incompetent‑‑‑Such objection having not been raised before Appellate Court below, same could not be raised before the High Court‑‑‑High Court rightly refused to allow raising such point before it.

Muhammad Amin Shah v. Mehtab Din PLD 1996 SC (AJ&K) 11; Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K) 102; Muhammad Latif Butt v. Muhammad Usman 1999 YLR 704; Lutufur Rehman v. Zahoor PLJ 1999 SC 204; Mst. Fazal Bi v. Ghulam Hussain 1980 CLC 789; Rehmat v. Muhammad Suleman 2001 MLD 364; Muhammad Hanif v. Muhammad Latif Khan 2001 MLD 493; Gulzar Khan v. Mst. Shahzad Bibi PLD 1974 SC 204; Muhammad Afsar Khan v. Muhammad Rashid PLD 1986 Azad J&K 196 and PLD 1996 SC (AJ&K) 11 ref.

Raja Muhammad Hanif Khan for Appellant (in Civil Appeal No. 33 of 2001).

Ghulam Mustafa Mughal, Advocate for Appellants (in Civil Appeal No. 34 of 2001).

Syed Azad Hussain Shah, Advocate for Respondent No. 1 (in both Appeals).

YLR 2001 SUPREME COURT AZAD KASHMIR 3302 #

2001 Y L R 3302

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

SHAUKAT KHAN‑‑‑Appellant

versus

NOOR MUHAMMAD and 2 others‑‑‑Respondents

Civil Appeal No. X34 , of 2001,, decided on 25th October, 2001.

(On appeal from the judgment and decree of the High Court, dated 25‑11‑2000 in Civil Appeal No. 32 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XX, R.14‑‑‑Azad Jammu and Kashmir. Right of Prior Purchase Act (1993 B.K.), S.6‑‑‑Suit for pre‑emption‑‑ Delay in depositing pre‑emption money ‑‑‑ Condonation of‑‑‑Trial Court decreed the suit, but did not fix any specific date for depositing the preemption money and merely directed to deposit said money within thirty days, which was an ambiguous order‑‑‑Period to file appeal before Appellate Court was ninety days and the appeal for reduction in pre‑emption money was filed within said period‑‑Appellate Court accepting application, condoned delay of one day which occurred in depositing the pre‑emption money and allowed its deposit‑‑‑Validity‑‑ Appellate Court was fully empowered to extend time for depositing pre‑emption money, and had rightly exercised power to condone delay‑‑Provisions contained in O.XX, R.14, C. P. C. being of penal nature were not to be strictly construed.

Fateh Khan v. Boze Mir PLD 1991 SC 782 and Bhai Khan v. Allah Bakhsh 1986 SCMR 849 ref.

Nisar Anjum for Appellant.

Nemo for Respondents.

Date of hearing: 22nd October, 2001

YLR 2001 SUPREME COURT AZAD KASHMIR 3306 #

2001 Y L R 3306

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

RAOOF AHMAD and 3 others‑‑‑Appellants

versus

CUSTODIAN OF EVAUCEE PROPERTY and another‑‑‑Respondents

Civil Appeal No. 57 of 1998, decided on 2nd December, 1998.

(On appeal from the judgment of the High Court, dated 23‑4‑1998 in Writ Petition No. 9 of 1991).

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

‑‑‑‑Ss. 3 & 18‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Appeal to Supreme Court‑‑ Allotment of land‑‑‑Appellant had specifically raised point before the High Court that allottee of land was included in the family of his father and produced documentary proof in support of his contention, but the High Court did not give any finding as to whether the contention was correct or not‑‑‑Allotment of evacuee property could only be made in favour' of the head of the family and members of same family could not hold more than one allotment‑‑‑No finding was recorded ,by the High Court on the moot point as to whether allottee was disentitled to any allotment because he was member of "another family" and had no independent family of his own‑‑Such finding was necessary for the just decision of the case because if it was found that he had no separate family of his own, his allotment could be adversely affected‑‑Without finding of the High Court on the point, it was not possible for the Supreme Court to decide the appeal on merits‑‑Supreme Court set aside judgment of the High Court and remanded case to decide the matter afresh according to law.

Ch. Muhammad Azam Khan, Advocate for Appellants.

Ch. Shah Wali, Advocate for Respondent No. 1.

Raja Muhammad Siddique, Advocate for Respondent No.2.

Date, of hearing: 2nd December, 1998.

YLR 2001 SUPREME COURT AZAD KASHMIR 3310 #

2001 Y L R 3310

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUNICIPAL CORPORATION, MIRPUR‑‑‑Appellant

versus

Qazi MUHAMMAD FAROOQ and 2 others‑‑‑Respondents

Civil Appeal No. 50 of 1998, decided on 27th November, 1998.

(On appeal from the judgment of the High Court, dated 14‑3‑1998 in Civil Appeal No. 19 of 1995).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

---.S.42‑‑‑Appeal to Supreme Court‑‑‑Question of fact‑‑‑Question of fact could not be agitated for the first time in appeal before Supreme Court.

(b) Pleadings‑‑‑

‑‑‑‑ Question of fact‑‑‑Party could not make departure from his pleading and set up a new ‑case, particularly when such case needed investigation of question of fact.

Azad Government and others v. Qamr‑uz‑Zaman Khan Niezi 1998 MLD 2038; Deputy Collector, Excise & Taxation and others v. Abdul Hamid and others 1999 SCR 363; Muhammad Riaz and others v. Azad Government and others 1994 SCR 82 and Muhammad Akbar v. Mst. Fauzia Begum PLD 1982 SC (AJ&K) 62 ref.

Muhammad Riaz Inqalabi, Advocate for Appellant.

Muhammad Yunus Tehir, Advocate for Respondent No. 1.

Respondent No.3 in person.

Date of hearing: 26th November, 1998,

YLR 2001 SUPREME COURT AZAD KASHMIR 3315 #

2001 Y L R 3315

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

UMAR HAYAT and another‑‑‑Appellants

versus

MUHAMMAD ASGHAR and 2 others‑‑‑Respondents

Civil Appeal No. 75 of 1998, decided on 26th November, 1998.

(On appeal from the judgment and decree of the High Court, dated 3‑4‑1998 in Civil Appeal No. 40 of 1997).

Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)‑‑‑

‑‑‑‑Ss. 6 & 14‑‑‑Suit for pre‑emption‑‑-Question of waiver ‑‑‑Defendants/vendees though accepted preferential right of pre emption of the plaintiffs/pre‑emptors but had maintained that plaintiffs had lost their right by waiver as they were present at the time of sale of suit land‑‑‑Witnesses on the question of waiver were not relied upon by the Courts below‑‑‑Even otherwise mere presence of the plaintiffs at the time of bargain of the suit land, would not debar them from exercising their right of pre‑emption as there must be some positive overt act, such as active participation in the negotiations of the bargain of the land to show positively that they had lost their preferential rights by their conduct.

Ch. Riaz Alam for Appellants.

Liaqat Ali Khan for Respondents.

Date of hearing: 25th November, 1998,

YLR 2001 SUPREME COURT AZAD KASHMIR 3321 #

2001 Y L R 3321

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Younus Surakhvi, J

Mir MATI ULLAH and 6 others‑‑‑Appellants

versus

Ch. AHMED MISRI and 12 others‑‑‑Respondents

Civil Appeal No. 185 of 1998, decided on 16th February, 1999.

(On appeal from the judgment of the High Court, dated 24‑6‑1998 in Writ Petition No. 36 of 1994).

Azad Jammu and Kashmir Redemption and Restitution of Mortgaged Lands Ordinance, 1969‑‑‑

‑‑‑‑S.10‑‑‑Restriction of mortgaged land‑‑Powers of Collector ‑‑‑Usufructuary mortgage which was 20 years old or the period for which the land was mortgaged having expired, the Collector had the power to order its restitution‑‑‑Mortgage being more than 20 years old, the Collector had the jurisdiction to order the restitution of the same‑‑-Contention that mortgage could not be restored or redeemed before the expiry of 90 years was repelled.

Habibullah v. Mahmood 1984 CLC 309 ref.

Muhammad Yaqoob Khan Mughal, Advocate for Appellants.

Sh. Abdul Aziz, Advocate for Respondents.

Date of hearing: 12th February,

YLR 2001 SUPREME COURT AZAD KASHMIR 3348 #

2001 Y L R 3348

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

Ch. AJAIB HUSSAIN and another‑‑‑Appellants

versus

Mst. ZAREEN AKHTAR and 11 others‑‑‑Respondents

Civil Appeal No.62 of 2001, decided on 31st October, 2001.

(On appeal from the judgment of the High Court dated 7‑6‑2001 in Civil Miscellaneous No. 126 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.151‑‑‑Inherent powers of the Courts‑‑Scope‑‑‑Jurisdiction‑‑‑Objection to lack of jurisdiction of the Court‑‑‑Exercise of inherent powers by High Court and Supreme Court‑‑‑If a party has submitted itself before the jurisdiction of a Court and has never raised the objection of lack of jurisdiction of that Court, said party, in case judgment goes against him, cannot turn round and say that the Court hearing the cause had no jurisdiction to hear the same‑‑‑When a remedy was available to a party by way of appeal or revision the inherent powers could not be exercised in favour of that party by the High Court or the Supreme Court.

Government of Pakistan and another v. Tariq Hussain Farooqi and 3 others PLD 1984 SC (AJ&K) 47 ref.

Liaqat Ali Khan, Advocate for Appellants.

Ch. Muhammad Azam Khan, Advocate for Respondent No. 1.

Mian Muhammad Saeed, Advocate for Respondents Nos.2 to 5.

Ch. Muhammad Mushtaq, Advocate for Respondent No.6.

Date of hearing: 23rd October, 2001.

YLR 2001 SUPREME COURT AZAD KASHMIR 3367 #

2001 Y L R 3367

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ and Muhammad Yunus Surakhvi, J

ADMINISTRATOR, MUNICIPAL COMMITTEE, KOTLI and another‑‑‑Appellants

versus

MUHAMMAD ABDULLAH and 3 others‑‑‑Respondents

Civil Appeal No. 67 of 2000, decided on 27th February, 2001.

(On appeal from the judgment of the High Court, dated 8‑3‑2000 in Writ Petition No. 6 of 1999).

(a) Maid fides‑‑‑

‑‑‑‑Proof‑‑‑Person who challenges the bona fides of a public functionary contending that the public functionary had acted mala fide he is under an obligation to establish his case on person cannot succeed by leaving the matter in the air and to the ingenuity of his counsel in creating a mere atmosphere of suspicion which falls far short of legal proof‑‑Existence of mala fides on the part of Government, cannot be a matter of inference but must be established affirmatively.

Muhammad Ashraf Khan v. Revenue E.A.C. and 7 others 1980 CLC 1504; Abdul Razaq v. Collector, Lasbella District PLD 1986 Quetta 86; Government of Pakistan v. Sikandar Khan and others PLD 1987 Pesh. 68; Ajit Kumar Das v. Province of East Pakistan PLD 1959 Dacca 586; Sree Raja Kandregula Srinivasa Jagannadha Rao Pantula Bahaddur v. State of Andhra Kurnool and another AIR 1960 Andh. Pra. 343 and Walayat Khan and 2 others v. Muhammad Azam and 12 others PLD 1996 SC (AJ&K) 18 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Where an Act or Regulation would vest an executive authority with the power to decide as to what was necessary and expedient and that Authority made the decision, it was not within the competency of the Courts to investigate the grounds or the reasonableness of the decision in the absence of bad faith.

‑‑‑‑S.4‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Notification, cancellation of‑‑Notification issued by the Collector Land Acquisition under S.4 of Land Acquisition Act, 1894 could not be cancelled by the Prime Minister by passing an order on application of the owner of land to the effect that the land could be de‑awarded, but could be cancelled only by a notification as contemplated by S.21 of General Clauses Act, 1894‑‑‑Mere an order passed by the Prime Minister on application of the owner was not sufficient in the eye of law to stop the acquisition proceedings initiated by the Collector Land Acquisition.

Government of Punjab v. Sikandar Khan and others PLD 1987 Pesh. 68 ref.

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

‑‑‑‑Ss. 3(f) & 4‑‑‑Azad Jammu and Kashmir' Interim Constitution Act (VIII of 1974), S.44‑‑‑Acquisition of land‑‑‑Public purpose, determination of‑‑‑Writ jurisdiction, exercise of‑‑‑Question of public purpose could not be determined by the High Court in exercise of its writ jurisdiction as it was always the Collector Land Acquisition who could determine under S.4 of Land Acquisition Act, 1894 as to whether a purpose was a "public purpose " or not‑‑‑Public purpose would mean any purpose aiming at protection of general welfare‑‑‑Whether a purpose amounted to public purpose, was a matter for Government and not for the High Court to decide. (p. 33711 E & F

Muhammad Ashraf Khan v. Revenue E.A.C. and 7 others 1980 CLC 1504 ref.

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

‑‑‑‑Ss. 3 & 4‑‑‑Term "public purpose"‑‑Meaning stated.

Muhammad Ashraf Khan v. Revenue E.A.C. and 7 others 1980 CLC 1504 ref.

Ch. Muhammad Azam Khan, Advocate for Appellants.

Ch. Muhammad Riaz Alam, Advocate for Respondent No. 1

Date of hearing: 23rd February,

YLR 2001 SUPREME COURT AZAD KASHMIR 3372 #

2001 Y L R 3372

[Shariat Court (AJ&K))

Before Sardar Muhammad Nawaz Khan, J

MUHAMMAD SULAMAN and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 40 and 43 of 1998, decided on 29th September, 2001.

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

‑‑‑‑Ss. 242, 342 & 537‑‑‑Penal Code (AL V of 1860), S. 302/34‑‑‑Non‑examination of the accused under S. 242, Cr. P. C.‑‑‑Effect‑‑‑All the accused present in Court on the relevant date were examined under S. 242, Cr. P. C. but the statement of one of the accused under S.242, Cr.P.C. was not available on the file‑‑‑Whether or not said accused was examined was not certain‑‑‑Omission in examining the accused was not fatal to the proceedings of the trial unless failure of justice was caused‑‑‑Accused was being represented by a counsel and all the prosecution witnesses deposing against him were fully cross‑examined‑‑‑Accused was put to a detailed examination under 5.342, Cr. P. C. and all incriminating circumstances and direct evidence appearing against him were put to him and nothing was shown to have misled him in his defence‑‑‑No objection on either side was raised during the trial‑‑‑No prejudice, in circumstances, appeared to have been caused to the accused and the same did not vitiate the trial.

Iqbal Hussain v. The State PLD 1969 Lah. 217 and State v. Abrar Hussain Shah and two others 1986 PCr.LJ 2941 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Severe enmity on account of different murders existed between the parties prior to the incident‑‑‑Prompt lodging of F.I.R. by the complainant by itself had wiped out any chance of false implication of the accused‑‑Complainant, who was material witness had stated in a natural manner whatever she saw and her statement could not be discredited‑‑Two of the prosecution witnesses though were close relatives of the deceased, but third one was an independent witness‑‑‑Said witness though was declared hostile, but that fact by itself was not sufficient to discard his evidence totally‑‑‑Statement of an hostile witness to the extent it corroborated the other evidence, was reliable especially when he was found an 'Aadil' witness‑‑‑Time, date and place of occurrence as stated by one of the prosecution witnesses was the same as was disclosed by the other one‑‑‑Said witnesses, in circumstances were proved to be present at the time of occurrence‑‑‑Objection pertaining to the venue of occurrence to be different was never pleaded or raised during trial‑‑Accused were examined and they did not plead the place of occurrence to be different one‑‑‑Said objection could not be allowed to prevail at late stage in appeal‑‑‑Even otherwise the venue of occurrence when seen in the light of entire record on the file was also found the same as disclosed by the prosecution‑‑‑No ulterior motive or mala fides on the part of the police had been proved‑‑‑Sentence of Qisas though could not be awarded to the accused as standard of evidence in that respect was not available, but the accused could be sentenced of "Ta'azir" as the guilt of the accused had been proved by independent and natural witnesses‑‑‑Accused were rightly convicted in circumstances.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Statement of hostile witness‑‑Credibility‑‑‑Statement of hostile witness to the extent it corroborated the other evidence, was reliable especially when he was found an "Aadil witness".

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

‑‑‑‑S.156‑‑‑Investigation‑‑‑Purpose and intent of‑‑‑Purpose and intent of investigation was to find the truth and it was within competence of Investigating Agency to disbelieve any information totally or to accept any part of it after thorough investigation‑‑‑When the police after scrutiny of the statements of different witnesses in the light of their own information and attending circumstances, arrived at the conclusion that some persons were falsely implicated or there was no sufficient evidence against them, the police could release them and that ,fact would not discredit the entire prosecution case.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Each case has its own peculiar facts and circumstances‑‑‑Role of any individual appearing as witness would depend upon the angle of his thinking/attitude, character and boldness‑‑‑Not certain that every one would stand with his relatives or friends at odd hours, and that was something which would vary from nun to man‑‑‑Prosecution witness who had not been found as "Aadil " could not be disbelieved merely on that account and if his statement, in peculiar circumstances of the case was found convincing and stood supported in material particulars by the statement of truthful witness same would definitely bear weight.

Abdul Majid Mallick, Advocate for Appellants.

Sardar Muhammad Razaq Khan, Addl. A.‑G. for the State.

YLR 2001 SUPREME COURT AZAD KASHMIR 3379 #

2001 Y L R 3379

[Supreme Court of (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J

MUHAMMAD SHAFIAT KHAN‑‑‑Petitioner

versus

BQSTAN KHAN and 2 others‑‑‑Respondents

Criminal Original No. 5 of 1998, decided on 28th April, 2000.

(Application for contempt of Court proceedings).

Azad Jammu and Kashmir Contempt of Courts Act, 1993‑‑‑

‑‑‑‑S.4‑‑ Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 45‑‑Contempt of Court‑‑‑Civil suit filed by the accused against the applicant was dismissed up to Supreme Court and the applicant was concurrently found to be in possession of the land in dispute in his own right partly as cosharer and partly as donee thereof and the accused alongwith others who had some shares in Shamilat as co‑sharers to some extent could seek possession of their shares by seeking partition under law‑‑‑Accused instead of seeking partition of his share as laid down by the final judgment of the Supreme Court, involved the applicant in litigation before the Revenue Authorities in violation of judgment of the Supreme Court‑‑‑All others had tendered unqualified apology, but the accused had not given up litigation which amounted to contempt of Supreme Court and it was not possible to accept apology tendered by him‑‑Keeping in view old. age of the accused, lenient view was taken and he was awarded one month's simple imprisonment and fine of rupees five thousand‑‑‑Son of the accused who was not directly responsible for contempt of Court and acted under parental authority, offered unqualified apology which was accepted.

Raja Muhammad Siddique, Advocate for Petitioner.

Liaquat Ali Khan and Raja Hassan Akhtar, Advocates for Respondents.

Date of hearing: 19th April, 2000.