YLR 2003 Judgments

2003 Y L R 3278

[Board of Revenue, Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies), Board of Revenue

Raja KHALID GULZAR and others‑‑‑Petitioners

Versus

SECRETARY COLONIES, BOARD OF REVENUE, GOVERNMENT OF THE PUNJAB and others‑‑‑Respondents

R.O.R. Nos.1576, 1577 and 1578 of 2001, decided on 2nd January, 2002.

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

‑‑‑‑Ss. 10, 24 & 25‑‑‑Lease of land under Animal Breeding Conditions‑‑‑Termination of lease and resumption of said land‑‑‑Land of different sizes was leased out to lessee for a period of ten years under Animal Breeding Conditions in view of record of service of the lessee‑‑‑After expiry of lease period, lease of lessee was terminated and land was resumed‑‑‑Grounds of resumption other than termination expiry of period of lease, were not available on record‑‑‑Lessee had a right to renewal of lease in view of his performance during period of lease‑‑‑Performance of lessee during period of lease was strictly in accordance with terms' and conditions of grant of lease‑‑‑District Collector, was required to take into consideration conduct of lessee during lease and was required under law to serve a notice under S.24 of Colonization of Government Lands (Punjab) Act, 1912 to lessee and had to pass a speaking/detailed order by applying his conscious mind in passing order for resumption of land‑‑‑Such exercise having not been done in case of lessee, case was remanded to District Collector to be decided afresh in accordance with law.

1985 S C M R 9 ref.

Sahibzada Anwar Hamid for Petitioners.

2003 Y L R 2878

[Election Tribunal Sindh]

Before Muhammad Moosa K. Laghari, Election Tribunal

MUHAMMAD ASLAM MUJAHID---Petitioner

Versus

MAHMOOD AHMED QURESHI and 9 others---Respondents

Election Petition No. 182 of 2002, decided on 19th June, 2003.

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

----Ss. 68, 69, 70, 55 & 52---Election petition seeking declaration that the election of returned candidate was void as the same was procured by corrupt and illegal practice--­Burden to prove illegal and corrupt practice lay heavily on the petitioner---Petitioner who challenged the election of a returned candidate, in order to prove the charges, was required under the law to state full particulars of corrupt practice or any other illegality committed by the returned candidate during the process of election giving details of the same in the list attached or in his statement before the settlement of issues--­Facts and record, in the present case, made it abundantly clear that the election petition was devoid of full particulars of illegal practices or illegal acts as envisaged under S.55 of the Representation of the People Act, 1976---Such failure on the part of the petitioner to show as to how the election was procured by means of illegal practice had rendered the election petition to be causeless, as the same did not furnish cause of action--­Material facts having not been pleaded and no material having been placed on record, in this behalf no meaningful purpose would be served to allow the petitioner to lead further evidence.

Muhammad Saeed v. Election Petitions Tribunal PLD 1975 SC 91 ref.

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

----Ss. 63, 64, 62, 54 & 55---Civil Procedure Code (V of 1908), Preamble---Criminal Procedure Code (V of 1898), Ss. 476, 480 & 482---Election petition could be summarily dismissed by the Election Tribunal in exercise of the powers under Civil Procedure Code and appropriate orders under C.P.C. could be passed if the same had not furnished cause of action or the mandatory requirements enjoined by the provisions of Representation of the People Act, 1976 to incorporate the material facts in the election petition were not complied with---Principles.

As provided under section 63 of the Representation of the People Act, 1976, the Election Tribunal shall dismiss an election petition during trial if---(a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62. Section 55 ibid provides that, every election petition shall contain---(a) a precise statement of the material facts on which the petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner.

Apart from above, Election Tribunal possesses all the powers of Civil Court trying a suit under the Code of Civil Procedure, 1908 and shall be deemed to be a Civil Court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898, as contemplated under section 64 of the Representation of the people Act, 1976. In an ordinary civil- litigation the Court readily exercises the powers to eject a plaint if it does not disclose any cause of action. Powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so the litigation comes to an end at the and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections.

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

----Ss. 52, 68, 69, 70 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--­Election petition seeking declaration of the election of returned candidate void on the basis that the election of the returned candidate was procured by corrupt and illegal practice with an application for injunction under O.XXXIX, Rr.1 & 2, C.P.C.---Returned candidate died during pendency of proceedings before the Election Tribunal---Schedule of bye-elections on account of the death of the returned candidate had already been notified whereby the elections in the constituency were scheduled to be held in the same month---Petitioner admittedly had been associated with the election process since the time when it was in full swing and petitioner was running his election campaign vigorously ---Effect--­Petitioner, in circumstances, acquiesced in the matter, and thereby disentitled himself for grant of injunction on this ground apart from various other grounds---Petitioner, in circumstances, was estopped by his conduct and it was also unjust, unfair and, unwise rather against equity to abruptly disrupt the process of elections, which was entering in concluding phase.

Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others, PLD 1989 SC 166 ref.

Muhammad Junaid Farooqi for Petitioner.

Kazi Khalid Ali, Additional Advocate-General, Sindh (on Court's Notice).

Dates of hearing: 16th and 18th June, 2003.

2003 Y L R 3021

[Election Tribunal Sindh]

Before Justice Muhammad Moosa K. Laghari, Election Tribunal

MUHAMMAD ASLAM MUJAHID‑‑‑Petitioner

Versus

MAHMOOD AHMED QURESHI and 9 others‑‑‑Respondents

Election Petition No. 182 of 2002, decided on 19th June, 2003.

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

‑‑‑‑Ss. 69, 68 & 63‑‑‑Election petition‑‑­Petitioner had sought declarations to the effect that election of respondent, as a Member of National Assembly was void and that the petitioner having secured highest votes amongst lawfully contesting candidates be declared as elected and duly returned candidate or alternatively the entire election be declared as void and fresh election be ordered‑‑‑Validity‑‑‑Election Tribunal before making any such declaration had to satisfy itself that the nomination of the returned candidate was invalid; the returned candidate was not, on the nomination day, qualified for, or was disqualified from being elected as member or the election of the returned candidate had been procured or induced by any corrupt or illegal practice or that a corrupt or illegal practice had been committed by the returned candidate or his election agent against or by any other person with the consent and connivance of the candidate or his election agent.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 69, 68, 55 & 63‑‑‑Election petition‑‑­ Allegation of irregularities, illegalities and corrupt practices against the returned candidate‑‑‑Burden of proof‑‑‑Petitioner was required to state full particulars of corrupt practice or any other illegality committed by the returned candidate during the process of elections‑‑‑Where the election petition was devoid of full particulars of illegal practice or illegal acts as envisaged under S.55 of the Representation of the People Act, 1976 and petitioner had failed to show as to how the election was procured by means of illegal practice, the election petition was causeless as the same had not furnished the cause of action‑‑‑Material facts were not pleaded and no material had been placed on record‑‑Schedule of bye‑elections in the constituency having been announced and petitioner, in the present case, having accepted nomination to his candidature for the said election and having been associated with the election process since then, process of election was in full swing and petitioner was participating and zealously contesting the election and running his election campaign vigorously, and thus he had acquiesced in the process and thereby disentitled himself for the grant of injunction on such ground‑‑­ Petitioner was also estopped by his conduct‑‑‑Election Tribunal held that no meaningful purpose would be served to allow the petitioner to lead further evidence in the case‑‑‑Election petition was dismissed.

Muhammad Saeed v. Election Petitions Tribunal PLD 1975 SC (Pak.) 91 and Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166 ref.

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

‑‑‑‑S. 63‑‑‑Dismissal of election petition by the Election Tribunal during trial‑‑­Conditions enumerated.

As provided under section 63 of the Representation of the People Act, 1976, the Tribunal shall dismiss an election petition during trial if (a) the provisions of sections 54 and 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62. Section 55 ibid. provides that, every election shall contain‑‑‑(a) a precise statement of the material facts on which the petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and

(c) the relief claimed by the petitioner.

(d) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S. 64‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Election Tribunal possesses all the powers of Civil Court trying a suit under Civil Procedure Code, 1908‑‑‑Scope.

Election Tribunal possesses all the powers of Civil Court trying a suit under the Code of Civil Procedure, 1908 and shall be deemed to be a Civil Court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898, as contemplated under section 64 of the Representation of the People Act, 1976. In an ordinary civil litigation the Court readily exercises the powers to reject a plaint if it does not disclose any cause of action. Powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matter pertaining to elections.

Muhammad Junaid Farooqi for Petitioner.

Kazi Khalid Ali, Addl. A.‑G., Sindh (on Court's Notice).

Dates of hearing: 16th and 18th June, 2003.

2003 Y L R 3032

[Election Tribunal Sindh]

Before Justice Muhammad Moosa K. Laghari, Election Tribunal

JAMIL AHMED ‑‑‑Petitioner

Versus

Mir MEHBOOB ALI and others‑‑‑Respondents

Election Petition No.30 of 2002, decided on 23rd June, 2003.

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

‑‑‑‑Ss. 62, 63, 52, 53, 54 & 55‑‑‑C. E. C. Notification No. F. 1(7)/85‑Cord dated 17‑3‑1985‑‑‑Election petition, trial of‑‑­Procedure‑‑‑Powers of Election Tribunal‑‑­Scope‑‑‑Provisions of the Notification issued by the Chief Election Commissioner being directory in nature, failure to file affidavit and other documents with election petition could not be a ground for dismissal of the election petition‑‑‑Technicalities not to create hurdles in the way of substantial justice and not to be interpreted to thwart the same‑‑­Principles.

Clauses (1) and (2) of the Notification No. 1(7)/85‑Cord dated 17th March, 1985 pertaining to the procedure of trial of Election Petitions as prescribed by the Election Commission, inter alia, provide that every Election Petition shall be accompanied by all such documents and affidavits of witnesses as are desired to be produced by the petitioner. As soon as the petition is presented before the concerned authorities in the Election Commission, the same shall be processed by the Secretary, Election Commission and in case it does not fulfill the requirements, as stated above, it shall not be entertained and the petitioner shall be informed accordingly. However, if the petition is found to be in order, the Secretary shall fix the date of hearing.

The exercise of scrutiny before the Election Petition is entertained, is the function and responsibility of Secretary, Election Commission. As per provisions of section 56 of the Representation of the People Act, 1976, Chief Election Commissioner is competent to dismiss the petition if he finds that any provision of sections 52, 53 or 54 of the Act has not been complied with and in case the Election Petition is not dismissed the Chief Election Commissioner shall refer it for trial to a Election Tribunal. In the present case the process of scrutiny was completed by the Secretary, Election Commission and the petition was entertained. Consequently the petition was referred by the Chief Election Commissioner to the Tribunal for adjudication. Election Tribunal has been conferred with the powers to dismiss an Election Petition in summary manner if the provisions of section 54 or section 55 of the Act have not been complied with or when the petitioner has failed to make further deposit as required under subsection (4) of section 62 of the Act.

The procedure laid down by the Election Commission under section 62 of the Act is primarily meant for expeditious adjudication of the Election Petitions. Non­compliance of procedural requirements such as non‑filing of affidavit and the documents has not been made a ground for dismissal of an Election Petition as even the provisions of the notification are apparently directory in nature, having no consequential provision, thus will not render the Election Petition liable to dismissal.

Technicalities shall not create hurdles in the way of substantial justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the Courts to do substantial justice and not to deny the same on mere technicalities.

Mere technicalities, unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.

Mst. Arshad Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318 and Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181 fol.

Ali Ahmed Junejo for Petitioner.

Abdul Hafeez Lakho for Respondent No.1.

Date of hearing: 23rd June, 2003.

2003 Y L R 3039

[Election Tribunal Sindh]

Before Justice Amir Hani Muslim, Election Tribunal

MUHAMMAD SHABBIR ABU TALIB ‑‑‑ Petitioner

Versus

Dr. ABDUL AZIZ BANTWA and 18 others‑‑‑Respondents

Election Petition No. 152 of 2002, decided on 3rd June, 2003.

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

‑‑‑‑S. 55‑‑‑Election petition‑‑‑Allegation of corrupt and illegal practice against the returned candidate and his workers and election functionaries under their influence‑‑­Burden of proof‑‑‑Requirements and criterion‑‑‑Petitioner under S.55, Representation of the People Act, 1976 was obliged to state the full particulars of corrupt and illegal practice or any other illegality committed by the candidate during the process of elections‑‑‑Burden of proving the corrupt practice was on the petitioner‑‑­Evidence in proof of such practice must be restricted to the charges or instances mentioned in the petition and the particulars; and ingredients of a corrupt practice so charged must be affirmatively proved, by evidence direct or circumstantial; and that where the evidence was wholly circumstantial, Election Tribunal before finding a corrupt practice was proved must exclude all reasonable hypothesis which were consistent with the corrupt practice having not been committed‑‑‑Criterion for proof of a fact in an Election Petition was that of a criminal trial and benefit of doubt was always extended to the returned candidate in the event of the charges of alleged corrupt practices were not proved‑‑‑Principles‑‑­'Petitioner having failed to prove the charges of corrupt practice against the returned candidate in terms of S.55, Representation of the People Act, 1976 and having also failed to place sufficient material justifying Election Tribunal to intervene, Election Petition was dismissed.

Ejaz Shafi v. Ali Asghar Shah PLD 1995 SC 43 and Sheela B. Charles v. Qaisar Ifraeem Soraya 1996 SCMR 1455 ref.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S.55‑‑‑Representation of the People (Conduct of Election) Rules, 1977, Rr.24 & 25‑‑‑Election petition‑‑‑Re‑count of votes‑‑­Party seeking re‑count of votes was required to place on record material in the nature of Forms XIV and XV with such discrepancies which might lead to change the complexion of results if re‑count was ordered‑‑‑No such material having been placed on record, in the present case, re‑counting could not be ordered.

M.S. Qureshi for Petitioner.

Qazi Khalid Ali for Respondent No.1.

Date of hearing: 3rd June, 2003.

2003 Y L R 3327

[Election Commission Sindh]

Before Justice Muhammad Ashraf Leghari, Election Commission

AYZA MALIK‑‑‑Appellant

Versus

MEMBERS OF ELECTION COMMISSION and others‑‑‑Respondents

Senate Appeal, decided on 6th February, 2003.

Senate (Election) Act (LI of 1975)‑‑‑

‑‑‑‑Ss. 11(2) (e) & 13 (5) (6)‑‑‑Conduct of General Election Order [Chief Executive's Order No.7 of 2002], Art.8A‑‑‑Rejection of nomination papers‑‑‑Candidate filed nomination papers for contesting Senate Election on Technocrat/Ulema Seat‑‑­Candidate alongwith his nomination papers, had produced his certificate in 'Bachelor of Business Administration', issued by West Coast Institute of Management and Technology, Perth, Western Australia'‑‑‑Said certificate was sent to University Grants Commission for verification and after verification it was found that said University/College was non‑accredited and degree issued by said University/College was not recognized by Higher Education Commission as equivalent to corresponding degree from Pakistan‑‑‑Nomination papers fled by candidate on the basis of said certificate were rejected by the Returning Officer Institution from which candidate had obtained degree being non‑accredited Institution and said degree having not been recognized as equivalent to the corresponding degree from Pakistan, candidate in view of S.11(2) (e) of Senate (Election) Act, 1975, was not qualified to contest Senate Election on General Seat‑‑‑Nomination papers/form of candidate had ,rightly been rejected by Returning Officer‑‑­No interference was called for in appeal.

Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan and others C.P. No.29 of 2002 + 2002 PSC 1618; Awami National Party v. Chief Executive of Islamic Republic of Pakistan C.P. No. 30 of 2002; Pakistan Awami Party v. Chief Executive of Islamic Republic of Pakistan C.P. No.31 of 2002; Khuda‑e‑Noor, Senior Vice‑President Jamhoori Watan Party v. Chief Executive of Islamic Republic of Pakistan C.P. No.32 of 2002; Ch. Muhammad Ilyas v. Chief Executive of Islamic Republic of Pakistan C.P. No.33 of 2002; Ejaz Ahmed Shaffi v. Federation of Pakistan and others C.P. No. 1615 of 2002; Zafarullah Khan Domki v. Saleem Jan Khan Mazari and others C.P.S. No. 1658 of 2002; Syed Ali Bux Shah v. The Election Tribunal and others C.P. No. 1626 of 2002; Abubakar Sheikhani v. The Election Tribunal and others C.P. No.1673 of 2002; Ghulam Akbar Lasi and others v. Returning Officer for NA‑270 Awaran‑cum­Lasbella at Uthal and another PLD 2003 Quetta 1 and Waqas Akram v. Dr. Muhammad Tahirul Qadri and others 2003 SCMR 145 ref.

Raja Qureshi for Appellant, Nawab Mirza and S. Shoaib Bukhari for Respondents Nos.2 and 8.

Farooq Hamid Naek and S. Zaki Muhammad, D.A.‑G. for Respondent No.4.

Tanveer Khalid, for Respondent No.9.

Date of hearing: 6th February, 2003.

2003 Y L R 65

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

NADEEM alias GITTA and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.36/K, 54/K and 56/K of 2001, decided on 28th February, 2002.

Penal Code (XLV of 1860)‑‑--

‑‑‑‑Ss. 397 & 395‑‑‑Appreciation of evidence‑‑‑Facts and circumstances of case had made out an offence under S. 395, P. P. C° against the accused‑‑‑Conviction of accused under 5.397, P. P. C. was consequently altered to S. 395, P. P. C. ‑‑‑Accused had remained in jail for a period beyond four years and their sentence of seven years' R.I. was reduced to the imprisonment already undergone by them with fine now imposed upon them in circumstances‑‑‑Appeals were disposed of accordingly.

Syed Khalid Shah for Appellants (in Criminal Appeal No.36/K of 2001).

Javed Akhtar for the State (in Criminal Appeal No.36/K of 2001).

Agha Zafir Ali for Appellant (in Criminal Appeal No. 54/K of 2001).

Javed Akhtar for the State (in Criminal Appeals Nos.54/K and 56/K of 2001).

Miss Aftab Bano for Appellant (in Criminal Appeal No.56/K of 2001).

Date of hearing: 28th February. 2002.

2003 Y L R 110

[Federal Shariat Court]

Before Fazal Ilahi Khan. C. J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ

SHER DIL and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos.38‑I, 40‑I, and Criminal Revisions Nos.6‑1, 5‑P and Criminal Appeal 24‑P of 1999, decided on 8th October, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.133‑‑‑Penal Code (XLV of 1860), S.396‑‑‑Appreciation of evidence‑‑­Unchallenged statement‑‑‑Where the statement of a witness which was material to the controversy is not challenged, then such statement should be given full credit and usually accepted as true, unless displaced by trustworthy and sound evidence.

Mst. Noor Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; 'Qamar‑ud‑Din through his Legal Heirs v. Hakim Mahmood Khan SCMR 819; Muhammad and others v. State 1993 PCr.LJ 1632; Kaleem Ahmad and others v. The State PLD 1993 Kar. 13; Amjad Pervez v. State 1992 ALD 269(2); Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465; Karim‑ud‑Din Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545; Muhammad Ibrahim v. Haji Raza Hussain 1987 MLD 515; Muhammad Mujeeb‑ur­Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537; Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110 and Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Interested witness‑‑‑Interested witness is one who has of his own a motive to falsely implicate the accused‑‑‑Term "interested" postulates that the witness must have some direct interest in having the accused, some‑how or the other, convicted for some animus or for some other reason.

Saeed Akhtar and others v. The State 2000 SCMR 383; Allah Wasaya and another v. The State 2000 SCMR 746; Malkhan Singh v. State of U.P. AIR 1994 SC 1443; Shankar Lal v. State of M.P. 1996 SC (Crl.) 740; Iqbal alias Bala and 2 others v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161 and Allah Ditta and others v. The State 1970 SCMR 734 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 396‑‑‑Appreciation of evidence‑‑­Related witness‑‑‑Relationship in itself is not a yardstick or standard for discarding evidence which otherwise is trustworthy and comes from one who normally could have been expected to have witnessed the occurrence.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.396‑‑‑Appreciation of evidence ‑‑‑In­terested witness‑‑‑Testimony of an interested witness even cannot be brushed aside unless it is proved that he had involved the accused for some ulterior motive.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Muhammad Sarwar v. The State 1999 SCMR 2428 and Abdul Ghafoor v. The State 2000 SCMR 919 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 396‑‑‑Appreciation of evidence‑‑­Interested and partisan witness‑‑‑Testimony of interested witness may he evaluated with more than ordinary care and the same rule applies to a partisan witness.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 396‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.40‑‑‑Criminal Procedure Code (V of 1898), 5.417‑‑‑Appeal against acquittal‑‑­Accused had not been acquitted on the same evidence on which the principal accused was convicted‑‑‑Confessional statements allegedly made by the accused were inadmissible in evidence‑ ‑‑Disclosure made by the principal accused regarding participation and involve­ment of accused in the crime was also not admissible in view of Art.40 of the Qanun‑e­-Shahadat, 1984‑‑‑Eye‑witnesses had neither uttered a single word against the accused nor identified them in Court‑‑‑Neither features of the accused were given in the F.I.R. nor specific roles were attributed to them there­in‑‑‑No identification test parade was held soon after the arrest of accused which was essential in the circumstances. of the case‑‑­Testimony of eye‑witnesses who had only, fleeing glimpses of the accused at the time of occurrence was not safe to base conviction‑‑­Appeals against acquittal of accused were dismissed accordingly.

(g) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 40‑‑‑Essential‑‑‑Prosecution in order to bring the case within the ambit of Art. 40 of the Qanun‑e‑Shahadat, 1984. must establish that the information conveyed by the accuse actually led to the discovery of some fact; that the fact was unknown to the police and it was for the first time derived from the accused, and that the discovery of the fact must relate to the commission of the offence or connect the accused with the crime.

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

‑‑‑‑Art. 22‑‑‑Identification parade‑‑‑When necessary‑‑‑Where the accused was not previously known to the witness and the witness had only a fleeing glimpse of the accused, holding of the test identification parade becomes essential.

(i) Criminal trial‑‑‑

‑‑‑‑Identification of accused at the trial‑‑­Evidence of identification of an accused person at the trial for the first time is inherently of a very weak character.

(j) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 396‑‑‑Appreciation of evidence ‑‑‑F.I. R. was promptly lodged‑‑‑Eye‑witnesses were natural and truthful witnesses whose presence at the scene of occurrence could not be doubted which otherwise had been established‑‑‑Mere close relationship of the eye‑witnesses with the deceased would not discredit them who had in pith and substance corroborated each other on all material points‑‑‑Ocular testimony was supported by the incriminating recoveries and medical evidence‑‑‑Crime‑empties were found by the Fire Arms Expert to have been fired from the pistol recovered from the accused ‑‑‑Eye­ witnesses had no enmity or motive for false implication of accused in the case, rather he was a stranger to them‑‑‑Accused had committed the murder of the deceased during the attempt to commit robbery intentionally without any justification and he deserved adequate and deterrent punishment‑‑­Conviction of accused was upheld in circumstances and his sentence of 25 years' R.I. was enhanced to death accordingly.

Mst. Noor Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Qamar‑ud‑Din through his Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819; Muhammad and others v. State 1993 PCr.LJ 1632; Kaleem Ahmad and others v. The State PLD 1993 Kar. 13; Amjad Pervez v. State 1992 ALD 269(2); Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465; Karim‑ud‑Din Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545; Muhammad Ibrahim v. Haji Raza Hussain 1987 MLD 515; Muhammad Mujeeb‑ur­Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537; Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110; Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138; Saeed Akhtar and others v. The State 2000 SCMR 383; Allah Wasaya and another v. The State 2000 SCMR 746; Malkhan Singh v. State of U.P. AIR 1994 SC 1443; Shankar Lal v. State of M.P. 1996 SC (Crl.) 740; Iqbal alias Bala and 2 others v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Muhammad Sarwar v. The State 1999 SCMR 2428; Abdul Ghafoor v. The State 2000 SCMR 919; Zahir Khan and others v. The State 1995 SCMR 1793; Ahmad Sher v. The State PLD 1995 FSC 20; Muhammad Riaz v. The State PLD 1994 Pesh. 102; Ram Kishan Mithan Lal Sherma v. State of Bombay AIR 1955 SC 104; Earabhadsappa v. State of Karnatak AIR 1983 SC 446; Arshad Mahmood v. The State 1989 PCr. LJ 574 Mahabir Mandal v. State of Bihar AIR 1972 SC 1331; Danial Boyd (Muslim name Saifullah) 1992 SCMR 196; State through Advocate‑General, Sindh v. Farman Hussain and others PLD 1985 SC 1; Muhammad Yaseen and 2 others v. The State 2002 SCMR 391; Anees Ahmad alias Muhammad Umat and another v. The State 2002 SCMR 1431; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294; Sakhawat v. The State 2001 SCMR 244; Muhammad Fazal v. Ghulam Asghar and others PLD 2000 SC 12; Ch. M. Yousaf and another v. The State 1992 SCMR 983; Waris Ali alias Dulli and others v. The State 1999 SCMR 1469; Pervez and others v. The State 1998 SCMR 1976; Noor Muhammad v. The State 1999 SCMR 272; Mst. Bismillah and other v. M. Jabbar and others 1998 SCMR 862 and Muhammad Sharif v. Muhammad Javed alias Jedda Tedi PLD 1976 SC 452 ref.

(k) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 396‑‑‑Sentence‑‑‑Normal penalty of death has to be imposed for murder in the absence of any extenuating or mitigating circumstance.

Abdullah Jan Mirza for Appellant (in Criminal Appeal No.38‑I of 1999).

M. Sharif Janjua for the State (in Criminal Appeal No.38‑I of 1999).

Malik Rab Nawaz Noon for Appellant (in Criminal Appeal No.40‑I of 1999).

Date of hearing: 22nd May, 2002.

2003 Y L R 173

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

A.S.I. IMTIAZ HUSSAIN and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revisions Nos.3‑K to 5‑K of 2000, decided on 22nd March, 2001.

Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss. 211 & 193‑‑‑Constitution of Pakistan (1973), Art. 203‑DD‑‑‑Revision petitions‑‑­Trial Court had directed to proceed against the complainant police officials (petitioners) under the law who had lodged false cases and perjured themselves on oath in judicial proceedings‑‑‑Said impugned direction being not illegal, provisions of Art. 203‑DD of the Constitution were not attracted‑‑‑Accused S. H. O. having been examined during the trial as a Court‑witness and from his admission in evidence Trial Court had rightly come to the conclusion that he was a party to the registration of the false F.I.Rs. and that the A. S.Is. being his subordinates had acted under his instructions‑‑‑Revision petitions were dismissed in limine in circumstances.

1969 PCr.LJ 241 and 1996 PCr.LJ 514 distinguished.

Imadad Ali Awan assisted by Shaikh Amanullah for Petitioners.

Fazal‑ur‑Rehman Awan for the State.

2003 Y L R 184

[Federal Shariat Court]

Before Fazal Ilahi Khan, C. J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ

SHAUKAT ALI alias TAYYAB ALI and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Jail Criminal Appeal No.34‑K of 1998 and Criminal Revision No. 10‑K of 1997, decided on 7th October, 2002.

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

‑‑‑‑S. 17(4)‑‑‑Penal Code (ALV of 1860), Ss.302(b), 392 & 412‑‑‑Appreciation of evidence‑‑‑Confessional statements made by accused were corroborated by the recovery of the stolen property at the instance of accused, recovery of crime weapon and the blood­stained clothes of accused from the store of the house of occurrence‑‑‑Principal accused was straightaway nominated in the promptly lodged F.I.R.‑‑‑Silence and disappearance of the main accused from the scene of occurrence had led to the only inference that the prosecution version was true‑‑‑Both the co‑accused in their confessional statements had taken the similar stand as was of the main accused with the exception that it was the main accused who had inflicted knife blows to both the deceased ladies‑‑‑No proof of theft liable to Hadd being available, conviction of accused under S.17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was set aside and instead they were convicted under S.302(b), P. P. C. read with 5.392, P. P. C.‑‑‑Main accused was sentenced to death under S.302(b), P.P.C. and the other two accused who had not caused knife blows to the, deceased ladies were sentenced to imprisonment for life each thereunder‑‑‑All the accused were also awarded ten, years' R.I. each with fine under S.392, P.P.C.‑‑­Conviction , of accused under S. 412, P. P. C. was set aside as the same person could not be a robber as well as receiver of the pillage.

Muhammad Yaseen and 2 others v. The State 2002 SCMR 391; Anees Ahmad alias Muhammad Umar and another v. The State 2002 SCMR 1431; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294; Sakhawat v. The State 2001 SCMR 244; Muhammad Fazal v. Ghulam Asghar and others PLD 2000 SC 12; Ch. M. Yousaf and another v. The State 1992 SCMR 983; Waris Ail alias Dulli and others v. The State 1999 SCMR 1469; Pervez and others v. The State 1998 SCMR 1976; Noor Muhammad v. The State 1999 SCMR 272; Mst. Bismillah and others v. M. Jabbar and others 1998 SCMR 862 and Muhammad Sharif v. Muhammad Javed alias Jedda Tedi PLD 1976 SC 452 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Sentence‑‑‑When an offence is proved against the accused, Court should never hesitate to award punishment for that offence, even if it is a capital punishment.

Muhammad Yaseen and 2 others v. The State 2002 SCMR 391; Anees Ahmad alias Muhammad Umar and another v. The State 2002 SCMR 1431; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294; Sakhawat v. The State 2001 SCMR 244; Muhammad Fazal v. Ghulam Asghar and others PLD 2000 SC 12; Ch. M. Yousaf and another v. The State 1992 SCMR 983; Waris Ail alias Dulli and others v. The State 1999 SCMR 1469; Pervez and others v. The State 1998 SCMR 1976; Noor Muhammad v. The State 1999 SCMR 272; Mst. Bismillah and others v. M. Jabbar and others 1998 SCMR 862 and Muhammad Sharif v. Muhammad Javed alias Jedda Tedi PLD 1976 SC 452 ref.

Mrs. Aftab Bano Rajput for Appellants (in Jail Criminal Appeal No.34‑K of 1998).

Arshad Lodhi, Asstt. A.‑G., Sindh for the State (in Jail Criminal Appeal No.34‑K of 1998).

Muhammad Mustafa Hussain for the Complainant (in Criminal Revision No. IO‑K of 1997).

Date of hearing: 7th October, 2002.

2003 Y L R 263

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ

Mst. RIZWANA BIBI and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 91‑I of 2001, 47‑I of 1999 and Criminal Revision No. 8‑I of 1999, decided on 5th November, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 308 & 302 (b)‑‑‑Appreciation of evidence‑‑‑Although the confessional statement of accused did not indicate that she had killed the deceased herself, yet it implied that she had not only planned to get her husband killed but had master‑minded the entire episode and in order to get rid of the deceased she besides instigating co‑accused to commit the crime had facilitated and aided him by providing a shot gun and opening the door of the room wherein the deceased was sleeping‑‑‑Accused was not only sharing guilty intention with the other accused persons but was fully involved in the crime‑‑­Recovery of the shot gun as well as the empties allegedly thrown by her in the field had not only corroborated the prosecution version but led to the inference that her confessional statement was true which was further supported by the medical evidence and the Serologist's report about the incriminating articles secured from the room of occurrence‑‑‑No sooner the accused caused death of her husband she seized to be his heir and was precluded to waive the right of Qisas or compound the offence‑‑‑Conviction of accused under S. 308, P. P. C. was consequently set aside and instead she was convicted under S. 302 (b), P. P. C. and sentenced to imprisonment for life, as she had not killed the deceased herself br4, had simply abetted the offence.

Javed Masih v. The State PLD 199‑1 SC 314; The State v. Asfandyar Wali and others 1982 SCMR 321; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Abdul Majid v. The State 1980 SCMR 935; Muhammad Haleem Chauhan v. The State 1980 PCr.LJ 128; Fakhruddin v. Emperor AIR 1925 Lah. 435; Muhammad Nadeem v. The State 1997 SD 412; Mst. Zafran v. The State 1997 PCr.LJ 163; Fazal Ghafoor v Chairman, Tribunal Land Dispute Deer 1991 SCMR 1073; Mahiya and others v. Shahyua and others PLD 1991 SC 724; Ameenullah v. The State PLD 1982 SC 429; Mst. Baigman and 2 others v. Saru and another PLD 1961 (W.P.) Lah. 451; Syed Muhammad Nawa7 Shah v. Ameer Hussain Shah 1989 CLC 1712; Lal Hussain v. Noor 1982 CLC 92; Shahzad and 3 others v. State and another 2001 PCr. LJ 1636 and Kenshava Kom Sanyellappa Hosmani and another v. Girimallapa Somasagor AIR 1924 PC 209 ref.

(b) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S.308‑‑‑Punishment in Qatl‑i‑Amd not liable to Qisas etc.‑‑‑Third proviso of S.308(1), P.P.C. cannot be detatched and read independently, but has to be interpreted in the light of main provision of S.308, P. P. C. as a whole.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 43‑‑‑Consideration of proved confession affecting person making it and others jointly under trial for same offence‑‑­Though judicial confession of an accused person may be taken into consideration against another accused under Art. 43 of the Qanun‑e‑Shahadat, 1984, yet that alone cannot warrant his conviction unless it is strongly corroborated by any other independent source or reliable piece of evidence.

Javed Masih v. The State PLD 1994 SC 314; The State v. Asfandyar Wali and 2 others 1982 SCMR 321; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Abdul Majid v. The State 1980 SCMR 935; Muhammad Haleem Chauhan v. The State 1980 PCr.LJ 128; Fakhruddin v. Emperor AIR 1925 Lah. 435; Muhammad Nadeem v. The State 1997 SD 412 and Mst. Zafran v. The State 1997 PCr.LJ 163 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑-

‑‑‑‑Arts. 40, 38 & 39‑‑‑Article 40 of Qanun‑e­-Shahadat, 1984, is an exception to the rule enacted in Arts. 38 & 39 and in order to bring the case within the ambit of Art. 40 the prosecution must establish that firstly, the information conveyed by the accused actually led to the discovery of same fact and secondly. the fact was unknown to the police and it was for the first time derived from the accused, and thirdly, discovery of the fact must relate to commission of the offence to connect the accused with the crime.

Muhammad Aslam Uns for Appellant (in Criminal Appeal No. 91‑I of 2001).

Muhammad Sharif Janjua for the State (in Criminal Appeal No.91‑I of 2001).

Malik Rab Nawaz Noon for Appellant (in Criminal Appeal No.47‑I of 1999).

Sacred Akhtar Khan for Respondents (in Criminal Appeal No.47‑I of 1999).

Malik Rab Nawaz Noon for Petitioner (in Criminal Revision No. 8‑I of 1999).

M. Aslam Uns for Respondent No.1 (in Criminal Revision No.8‑I of 1999)

Muhammad Sharif Janjua for the State (in Criminal Revision No.8‑I of 1999).

Date of hearing: 3rd June, 2002.

2003 Y L R 298

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

NADEEM alias GITTA and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No. 35/K, Jail Criminal Appeals Nos.48/K and 55/K of 2001; decided on 28th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑--S. 382‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979, Ss. 13/14‑‑‑Appreciation of evidence‑‑‑Appeals were not pressed on merits and a request for reduction in sentence of accused was only made‑‑‑After having considered the facts and circumstances of the case the Court maintained the conviction of accused‑‑­ Accused having remained in jail for a period of four years their sentence of seven years' R. I. was, however, reduced to the imprisonment already undergone‑ by them in circumstances of the case‑‑‑Sentence of fine of accused was also reduced‑‑‑Appeals were disposed of accordingly.

Syed Khalid Shah for Appellants (in Criminal Appeal No. 35/K of 2001).

Javed Akhtar for the State (in Criminal Appeal No.35/K of 2001).

Laeeq Ahmad Jafri for Appellant (in Jail Criminal Appeal No.48/K of 2001).

Javed Akhtar for the State (in Jail Criminal Appeals Nos.48/K and 55/K of 2001).

Miss Rifat Bano for Appellant (in Jail Criminal Appeal No.55/K of 2001).

Date of hearing: 28th February, 2002.

2003 Y L R 565

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, J

Mst. RIFFAT YASMEEN‑‑‑Petitioner

Versus

SARFRAZ HANIF and 3 others‑‑‑Respondents

Criminal Revision No. II/I of 2002, decided on 11th December, 2002.

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

‑‑‑‑S. 10(4)‑‑‑Penal Code (XLV of 1860), S.392/342/506/109/34‑‑‑Criminal Procedure Code (V of 1898), S.203‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑‑Partial dismissal of complaint‑‑‑Validity‑‑‑Trial Court after recording the evidence of the complainant issued process against two accused only and did not summon the other three accused persons nominated in the complaint without assigning any reason in that behalf‑‑‑Complainant was legally entitled to know as to why her complaint was dismissed against three accused and for what reasons so that she might consider to approach the Revisional Court and her being kept in ignorance of the reasons had prejudiced her right to avail remedy against such order, and if the matter was taken to the Revisional Court it would render the task before the Court even more difficult‑‑‑Trial Court had neither assigned any reason as to why issue of process against the rest of the accused persons was withheld, nor had specified as to whether the complaint to their extent was dismissed, nor the application filed by the complainant in that regard was decided on merits‑‑‑Impugned order was set aside in circumstances with the direction to Trial Court to proceed with the case after deciding the application filed the complainant for summoning the rest of the accused persons in accordance with law‑‑­Revision petition was allowed accordingly.

Ms. Zeba Bakhtiar v. Arshad Sami Khan and 5 others 1988 SCMR 922; Kedar Ram and others v. Ram Bharosa AIR 1952 Vind. Pra. 49; Ratanshah Kavasji v. Keki Behramsha and others AIR 1945 Bom. 147 and Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another AIR 1963 SC 1430 ref.

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

‑‑‑‑S. 203‑‑‑Dismissal of complaint‑‑­Recording of reasons mandatory‑‑‑Use of word "shall " in latter part of S.203, Cr. P. C. denotes that the provision is not permissive but imperative and recording of reasons is the condition precedent for dismissal of the complaint‑‑‑Non‑recording of the reasons, therefore, would make the order a nullity, because dismissal of complaint requires a judicial order.

Ms. Zeba Bakhtiar v. Arshad Sami Khan and 5 others 1988 SCMR 922; Kedar Ram and others v. Ram Bharosa AIR 1952 Vind. Pra. 49; Ratanshah Kavasji v. Keki Behramsha and others AIR 1945 Born. 147 and Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another AIR 1963 SC 1430 ref.

Muhammad Sharif Bhatti for Petitioner.

Mumtaz Hussain Bazmi for Respondents.

Muhammad Sharif Janjua for the State.

Date of hearing: 28th May, 2002.

2003 Y L R 745

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

MUHAMMAD ARIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.100/Q of 1998, decided on 19th November, 2002.

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

‑‑‑‑S.10‑‑‑Criminal Procedure Code (V of 1898), S.367‑‑‑Appreciation of evidence‑‑­Trial Court had failed to determine whether the offence, if believed to have taken place, was one of Zina‑bil‑Jabr or one of Zina‑bil­-Raza and which of the subsections of S.10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was applicable for which the accused was convicted and it had mentioned only S.10 in the charge as well as in the judgment‑‑‑Such conduct of the Trial Courts had been deprecated by the superior Courts to the extent of even setting aside of the judgments being not in accordance with the requirements of S.367, Cr.P.C.‑‑‑Sole eye‑witness in the case was examined by the police for the first time after 5/6 days of the occurrence‑‑‑No F.I.R. in respect of commission of Zina by the accused with the victim was ever' registered ‑‑‑Incident having taken place at mice‑night with that any source of light, clear identification of accused by the said eye‑witness was not proved on record by the evidence and circumstances‑‑‑Testimony of the eye‑witness was not corroborated by any other evidence who could have mistaken himself in identifying the accused‑‑‑ Victim with whom the accused had allegedly committed Zina having been killed within three days of the occurrence, her own version in this regard had not come on record‑‑‑Case against accused, thus, was not free from doubt‑‑‑Accused was acquitted in circum­ stances.

Mudassar alias Jimmi v. The State 1996 SCMR 3; Ali Nawaz and another v. The State 1998 PCr.LJ 1202; Hameedullah v. The State 2000 PCr. LJ 472; Salim Akhtar and another v. The State 1995 PCr.LJ 233 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

Taj Muhammad Mengal for Appellant.

Habib Tahir for the State.

Date of hearing: 19th November. 2002.

2003 Y L R 1339

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD AKBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.71-K and Murder Reference 1-K of 2000, decided on 13th December, 2002.

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

----Arts.203-DD & 203-F(2-A)---Appeal to Federal Shariat Court---Scope--Where charge was framed against an accused under any provision pertaining to Hudood Laws, with or without any other section of P. P. C. and the Trial Court came to the conclusion that charge under Hudood Laws could not be maintained for want of evidence or other reasons and proceeded to convict tile accused for any other offence under provisions of P.P.C. and acquitted him from charge under Hudood Laws, appeal against that judgment would lay to the Federal Shariat Court--­Jurisdiction which was conferred upon Federal Shariat Court by Constitution as well as the relevant enactment in Hudood Laws still holds the field and could not be taken away by any judgment of a Court unless relevant provisions were amended---Federal Shariat Court was empowered to call for and examine record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for purpose of satisfying itself as to the correctness and legality of any finding, sentence or order recorded or passed by such Court and could also direct that execution of any sentence be suspended and if a accused was in confinement he could be released on bail or on his own bond pending examination of record---Provisions of Art.203-F(2-A) of the Constitution provided that appeal would lie to Supreme Court from any judgment, final order or sentence of Federal Shariat Court and on appeal an order of acquittal of an accused could be reversed and he could be sentenced to death or imprisonment for life or for a term exceeding fourteen years.

Atta Ullah v. Abdul Razzaq and another PLD 2002 SC 534; 1997 PCr.LJ 1900; 1998 PCr.LJ 438; 2001 SCMR 1083; 2001 SCMR 129; 1995 PCr.LJ 74; PLD 1997 Quetta 65 and PLD 1983 FSC 11 ref.

(b) Penal Code (XLV of 1860)-

----S.302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(4), 20 & 24---Appreciation of evidence---Pistol was recovered from the accused on the spot and it was duly secured vide recovery memo by Investigating Officer and empties were also recovered from the site and secured vide memo.---Both pistol and empties were sent to Forensic Science Laboratory where those were duly matched and positive reports of said Laboratory was duly tendered in evidence---Evidence produced before Trial Court in respect of pistol and empties was unbiased and same inspired confidence---Non production of independent eye-witnesses who were attracted to the spot after occurrence, would not have adverse bearing on the case of prosecution, because prosecution witnesses were the only eye-witnesses who were natural witnesses of the whole occurrence and had no motive for false implication of the accused---One of said eye-witnesses was servant of deceased and other one was his partner and their presence on the spot was natural, especially when one of them also got injured during the occurrence---Statements of said eye-witnesses inspired confidence---Said eye-witnesses arrested the accused on the spot immediately at the time of occurrence---Eye-witnesses stated whatever was observed by them without any addition and did not try to make improvement---Alleged contradictions pointed out by defence in the case were not at all material and did not have any adverse bearing on case of prosecution in any manner---Eye-witnesses had no motive for false implication or substitution of real accused---Statements of prosecution witnesses were fully consistent in material particulars and inspired confidence---Ocular evidence furnished by eye-witnesses, arrest of accused on the spot, recovery of amount as well as pistol from possession of accused, positive report of Forensic Science Laboratory and post-mortem report had left no doubt about involvement of accused in commission of murder of deceased by the accused--­Prosecution having successfully established case against the accused conviction and sentence awarded to him by Trial Court, were maintained.

Muhammad Akbar Khan and S.A. Ghaffar for Appellant.

Raja Qureshi, A.-G. Sindh with Arshad Lodhi, A.A.-G. for the State.

Muhammad Zaki Ahmad, Dy. A.-G. for the Federal Government.

Abdul Latif Ansari for the Complainant.

Date of hearing: 24th April; 8th, 9th and 11th October, 2002.

2003 Y L R 2759

[Federal Shariat Court]

Before S.A. Manan and Saeed-ur-Rehman Farrukh, JJ

MUHAMMAD FAISAL and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.29-I and Criminal Revision No. 15/L of 2002, decided on 12th June, 2003.

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

----S. 12---Penal Code (XLV of 1860), Ss.377, 377/109 & 292---Appreciation of evidence---Father of the victim boy who had accompanied him to the police station for lodging the F.I.R. had neither been cited as a prosecution witness nor produced at the trial in support of prosecution case---Cot on which the act of sodomy had allegedly been committed, bed sheet lying on the cot and the clothes of the victim were not taken into possession by the police---Victim of sodomy was not subjected to medical examination--­No marks of violence admittedly were available on the body of the victim---Nude photographs of the victim neither supported the prosecution version, nor connected the accused with the commission of the offence--­Eye-witnesses including the complainant appeared to be youngsters of morbid character and their statements could not be safely believed and relied upon---Owner of the Haveli in which offence was allegedly committed was not joined in investigation by the police---Persons who had allegedly entered the said Haveli after scaling over the wall had not been produced before the Trial Court in support of the prosecution case--­Defence plea that political vendetta between two factions in the village was sought to be satisfied through the aforesaid youngsters had force---Accused were acquitted in circumstances.

Malik Rab Nawaz Noon for Appellants.

Sahibzada Ahmad Raza Qasuri for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 11th June, 2003.

2003 Y L R 2832

[Federal Shariat Court]

Before Zafar Pasha Chaudhry, J

NADEEM IQBAL and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.21/L of 2003 and Criminal Appeal No.32/L of 2003, decided on 17th July, 2003.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--­Appreciation of evidence---Medical evidence did not lend support to ocular evidence and report of Chemical Examiner had also negatived eye-witness account---Medical report showed that two swabs both from external and internal area of anal canal were obtained and were sent to Chemical Examiner for detection of semen---Chemical Examiner's Report was in the negative and it had been found that swabs were not stained with semen---Four persons allegedly committed sodomy with complainant one after the other, even then absence of semen inside or outside the anal area, was extremely significant and noteworthy---Non-detection of semen on anal swabs, had created serious doubt in prosecution story---Even if victim had been subjected to sodomy, it was not only difficult, but also practically impossible to pick up culprit out of the four accused---All four accused were alleged to be equally guilty, no distinction or difference had been made by prosecution in respect of said four accused persons---To pick the real culprit, would just .be based on guesswork or conjecture in such a situation and conviction could not be based on mere conjecture or guesswork---Accused were acquitted extending them benefit of doubt.

Abdul Qadus Rawal and Syed Hissam Qader for Appellants.

Asghar Ali Hashmi for the State.

Date of hearing: 17th July, 2003.

2003 Y L R 3142

[Federal Shariat Court]

Before Fazal Ilahi Khan, C. J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD BASHARAT and others‑‑--Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No.286‑L and Criminal Revision No.50‑L of 2000, decided on 25th September, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/324/337‑F(i)/148/149‑‑‑Appre­ciation of evidence‑‑‑Delay in lodging F.I.R. could not be viewed with suspicion as there was no indication that registration of case was delayed by police purposely in order to give time or facilitate the complainant party to concoct the story‑‑‑Two witnesses though were not produced by the prosecution, but their non production could not in any manner, affect merits of the case; firstly because prosecution was neither bound to examine each and every witness of the crime nor any adverse inference could be drawn on account of non production of some or any prosecution witness, nor it could, in any manner, affect the credibility of those witnesses who had been examined‑‑‑Only question relevant was as to whether evidence produced at the trial was sufficient to prove the charge‑‑‑Not the number of witnesses but quality 'and credibility of evidence was to be considered‑‑‑Deceased though was related to most of eye‑witnesses, but relationship in itself was not a yardstick or standard for discarding evidence which otherwise was trustworthy and had come from one who normally could have been expected to have witnessed the occurrence‑‑‑Testimony of even an interested witness, could not be brushed aside unless it was proved that witness had involved accused for some ulterior motive‑‑­Related witnesses some times, particularly in murder cases, could be found more reliable because they, due to their relationship with' the deceased, would not let go the real culprit or substitute an innocent person for him‑‑‑Prosecution, in the present case, had been successful in establishing guilt of accused without any shadow of doubt‑‑­Participation of all accused in the offence had been proved, through statements of eye­witnesses‑‑‑One of the eye‑witnesses though was declared hostile, but his statement proved that eye‑witnesses were not only present at the plea of occurrence, but some of accused persons too were present there‑‑Medical evidence also rendered support to statements of witnesses regarding seats of injuries available on person of deceased as well as the injured witnesses and also with regard to nature of weapons used by accused persons‑‑­Recovery of offensive weapons from accused person had strengthened prosecution case‑‑­Medical evidence, report of Chemical Examiner, Serologist report and report of Forensic Science Laboratory also lent support to the testimony of eye‑witnesses‑‑‑History of murder and previous quarrels between the parties, although were available on record but the present case did not appear to be substitution of accused persons‑‑‑Accused, in circumstances; were rightly convicted and sentenced‑‑‑Penalty of death rightly was not awarded to accused by Trial Court in view of the fact that all injuries inflicted on the deceased were on non‑vital parts of his body‑‑‑Liability of accused persons being constructive and no fatal shot having been attributed to any particular accused, infliction of death sentence on accused persons would have been harsh‑‑‑Conviction and sentences as awarded by Trial Court were maintained.

Muhammad Ashraf v. The State 2000 SCMR 741; Muhammad Akhtar Ali v. The State 2000 SCMR 727; Saeed Akhtar v. The State 2000 SCMR 383; Muhammad Ahmed and another v. The State 1997 SCMR 89; Ziaullah v. The State 1978 SCMR 136; Zar Bahadul v. The State 1993 SCMR 155; The State v. Mushtaq Ahmed PLD 1973 SC 418; Allah Yar v. Crown PLD,1952 FC 148; Saeed Akhtar and others v. The State 2000 SCMR 383; Allah Wasaya and another v. The State 2000 SCMR 746; Malkhan Singh v. State of U.P. AIR 1994 SC 1443; Shankar Lal v. State of M.P. 1996 (Crl.) 740; Iqbal alias Bala and 2 others v. The State 1994 S.CMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmed v. The State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Muhammad Sarwar v. The State 1999 SCMR 2428; Abdul Ghafoor v. The State 2000 SCMR 919; Allah Dad and another v. The State 1995 SCMR 142; Atta Muhammad v. The State 1985 SCMR 181; Saeed and others v. The State 1984 SCMR 1069; M. Anwar v. The State 1997 PCr.LJ 321; Sarfraz and others v. The State (sic) PCr.LJ 205; Fiaz Muhammad v. The State 1986 PCr.LJ 973 and Godho and 7 others v. The State 1968 PCr.LJ 791 ref.

Abdul Wahid Chaudhry and Hasnat Ahmad Khan for Appellants (in Criminal Appeal No.286‑L of 2000).

Ch. Muhammad Din for Petitioner (in Criminal Appeal No.286‑L of 2000).

Muhammad Sharif Janjua for the State (in Criminal Appeal No.286‑L of 2000)

Ch. Muhammad Din Ansari for Petitioner (in Criminal Appeal No.50‑L of 2000).

Rai Bashir Ahmad for Respondents (in Criminal Appeal No.50‑L of 2000).

Date of hearing: 25th September, 2002.

2003 Y L R 24

[Karachi]

Before Rahmat Hussain Jafferi, J

SAIFUDDIN SIDDIQUI‑‑‑Applicant

Versus

MUHAMMAD SADIQ‑‑‑Respondent

Civil Revision Application No.14 and Civil Miscellaneous Applications Nos.125 and 1834 of 2000, decided on 25th September, 2002.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of pleadings­ Discretionary power of Court, exercise of‑­Principles

Order VI, rule 17, C.P.C., is divided into two parts; first part is discretionary, whereas second part is mandatory. Under first part, if the Court comes to the conclusion at any stage of the suit that amendment is just and proper and will go to real matter ir. controversy, then under second part the amendment should be allowed, provided the other party is not prejudiced.

Faiz Muhammad and others v. Jawahir and others 1996 SCMR 1959 and Atlantic Steamers Supply Company v. M.V. Tistisee and others PLD 1993 SC 88 rel.

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

‑‑‑‑Ss. 54 & 42‑‑‑Civil Procedure Code (V of 1908), O. VI, R.17 & O.XIV, Rr. 1 & 5‑‑‑Suit for injunction‑‑‑Amendment of plaint to include relief of declaration ‑‑‑ Plaintiff claiming to be co‑sharer in disputed shop filed suit for injunction to restrain defendant from dispossessing him without due process of law‑‑‑Defendant denied that plaintiff had any title, right or interest in disputed shop‑‑­Trial Court dismissed suit as not maintainable on the ground that as title of plaintiff was disputed, he should have filed suit for declaration of his title and share in disputed shop‑‑‑Appellate Court accepted appeal filed by plaintiff and allowed him to amend the plaint‑‑‑Defendant's contention was that amendment had changed the complexion of suit from suit for injunction to suit for declaration and injunction‑‑­Validity‑-‑Plaintiff had prayed for injunction on the basis of his right of ownership in disputed shop, which fact had been specifically denied by defendant in written statement‑‑‑Real controversy in suit was ownership of disputed shop‑‑‑Injunction based on such right could not be granted without deciding the point of ownership‑‑­Trial Court ought to have framed issue in that respect as required by O. XIV, R.1, C. P. C. ‑‑­If ownership rights of plaintiff were taken out, then only prayer for injunction as a consequential relief would fail‑‑‑When Trial Court came to the above conclusion during course of writing judgment, then under O. XIV, R. 5, C. P. C. , the Court should have framed additional issue on such point before pronouncing judgment and would have decided the same in accordance with law‑‑­No new cause of action had been introduced as real controversy between parties was with regard to ownership of the shop‑‑‑Relevant documents had already been produced and parties had led evidence on such point to some extent, thus, no new case had been introduced and no prejudice had been caused to defendant in allowing amendment‑‑­Appellate Court was justified in allowing amendment‑‑‑No illegality or irregularity was found in impugned order ‑warranting any interference‑‑‑High Court dismissed revision petition in circumstances.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

Baboo Khan v. Municipal Committee, Murree and another 1969 SCMR 29 ref.

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

‑‑‑‑O. XI V, R. 1, O. XVIII, R.2 & O. XX, R.5‑‑­Framing issues, purpose of‑‑‑Duty of Court stated.

Evidence is led after framing of issues. The stage of framing of issuing is very important in trial of civil suit, because at that stage the real controversy between parties is summarised in the shape of issues and narrowing down the area of conflict and determining where the parties differ and then parties are required to lead evidence on said issues. The importance of framing correct issues can be seen from the fact that parties are required to prove issues and not pleading as provided by Order XVIII, rule 2, C.P.C The Court is bound to give decision on each issue framed as required by Order XX rule 5, C.P.C. Therefore, the Courts while framing issues should pay special attention to Order XIV of C.P.C. and give in depth consideration to the pleadings etc., for the simple reason that if proper issues are not framed, then entire further process will be meaningless, which will be wastage of time energy and would further delay the final decision of suit. The issues are framed after the admission and denial of parties arc recorded as per Order X of C.P.C.

Syed M. Akbar for Appellant.

M. Younus for Respondent.

Dates of hearing: 30th August and 2nd September, 2002.

2003 Y L R 35

[Karachi]

Before Mushir Alam, J

Messrs CRESCENT GLASS WORKS‑‑‑Appellant

Versus

Messrs HASHWANI SALES AND SERVICES LTD. ‑‑‑Respondent

First Rent Appeal No. 754 of 1983, decided on 13th September, 2002.

(a) Practice and procedure‑‑‑

‑‑‑‑ No party can claim any right in a forum that is available to hear a particular cause that may have arisen in a particular matter.

(b) Jurisdiction‑‑‑

‑‑‑‑ Change in forum‑‑‑Effect‑‑‑Where special law confers exclusive jurisdiction on a Court/forum/tribunal created for the purpose or takes away such jurisdiction and/or confers the same on another Court/forum/ tribunal already existing or especially created to adjudicate and decide a particular cause, then it is the Court/forum/tribunal, which at the point of time, when the cause is ripe for hearing, will have jurisdiction to hear and decide such cause, unless it is provided otherwise in law effecting change in forum.

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

‑‑‑‑S.4‑‑‑Jurisdiction‑‑‑Creation of special jurisdiction or conferring power on a Special Court or designated forum‑‑‑Effect‑‑‑In such case, unless a contrary intention is expressed in amending law, jurisdiction in respect of pending cause would stand conferred on and transferred to such newly created forum or Court‑‑‑Such process would not prejudice substantive right that might have accrued to a person.

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

‑‑‑‑Ss. 150, 12(2) & O.IX, R.13 ‑‑‑ Transfer of business‑‑‑Jurisdiction of transferee Court to entertain and decide all incidental applications including application under S. 12 (2) or Off, R. 13, C. P. C. ‑‑‑Scope.

Where entire business of Court is transferred to jurisdiction of another Court, then transferee Court upon which such jurisdiction is conferred by transfer of business under law also has jurisdiction to hear and decide all incidental applications and proceedings arising therein including application for setting aside of judgment and decree either under Q. IX, R. 13 or S. 12(2), C.P.C. as the case may be.

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

‑‑‑‑Ss. 21 & 21‑A (as inserted by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Civil Procedure Code (V of 1908), Ss. 4, 12(2) & 150‑‑‑Judgment passed in First Rent Appeal by High Court‑‑­Application under S.12(2) read with S.151, C. P. C., for setting aside such judgment after insertion of S.21‑A in Sindh Rented Premises Ordinance, 1979‑‑‑Maintainability‑‑‑Remedy by way of an application under S.12(2), C. P.C., would lie before Appellate Authority as all such proceedings could be entertained and disposed of in first appeal by District Judge now vested with such jurisdiction‑‑­High Court sent such applications to the District Judge for disposal on merits.

Amanullah Khan Leghari v. Adib Shaikh Ahmed First Rent Appeal No. 423 of 1995 and United Bank Limited v. Messrs J. Tylor & Co. Ltd. 2002 CLD 917 ref.

Zubaida Khatoon v. Administrator, Union Council Uch Gillani, Tehsil and District Bahawalpur and another 1996 MLD 1689; Mst. Asia Bano v. The Rent Controller, Gujranwala etc. 1991 MLD 813; Muhammad Yousuf through legal heirs and others v. Noor Din and others PLD 2002 SC 391; Abid Kamal v. Muddassar Mustafa and others 2000 SCMR 900 and Pakistan Burmah Shell v. Hashwani Sales and Services Ltd. F.R.A. No. 748 of 1983 ref.

Maqbool Baqar for Appellant.

Zafar Hadi Shah for Respondent.

Dates of hearing: 7th and 8th August, 2002.

2003 Y L R 42

[Karachi]

Before Zia Perwez, J

MUHAMMAD MUZAFFARUDDIN KHAN‑‑‑Plaintiff

Versus

Brig. (Rtd.) ZAHEER QADIR and others‑‑‑Defendants

Suit No. 708 and Civil Miscellaneous Application No.6269 of 2002, decided on 1st October, 2002.

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

‑‑‑Ss. 42 & 54‑‑‑Sindh Public Property (Removal of Encroachments) Act (II of 1975), S. 3, 4, 9 & 11‑‑‑Civil Procedure Code (V of 1908), S. II & O. VII, R.11‑‑‑Suit for declaration, injunction and damages‑‑­ rejection of whole plaint, whether permissible‑‑‑Authority demolished unauthorised construction raised on disputed lot‑‑‑Plaintiff challenged such action of authority in Constitutional petition, but same was dismissed‑‑‑Plaintiff then filed petition for leave to appeal before Supreme Court, but withdrew the same and filed the present suit‑‑‑Authority sought rejection of plaint being hit by S. 11, C. P. C., as well as Ss. 4, 9 & 11 of Sindh Public Property (Removal of Encroachments) Act, 1975 ‑‑‑ Plaintif's contention was that suit included relief of damages, thus, whole suit could not be rejected under O. VII, R. 11, C. P. C. ‑‑­Validity‑‑‑Inclusion of relief of damages in itself was not sufficient to assume that same was a new cause of action‑‑‑Relief in form of damages was a consequential relief‑‑‑Until and unless plaintiff established his claim over disputed land, he could not claim damages‑‑‑Plaintiff's claim for damages would evaporate in thin air, if it was found that he had no claim over disputed land‑‑­Objection was overruled in circumstances.

Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183; Salahuddin v. Federation of Pakistan and others 2002 CLC 1275 and Salima Begum and others v. Mst. Sardaran Bibi and others PLD 1995 SC 406 ref.

(b) Islamic Jurisprudence‑‑‑-

‑‑‑‑ Islamic law and jurisprudence cannot be subordinated to any other principle, which comes in clash with the same.

Sakhi Muhammad v. Munshi Khan PLD 1992 SC 256 fol.

(c) Encroacher‑‑‑

‑‑‑‑Status of‑‑If a person purchases some land from an encroacher, he steps into the shoes of such encroacher and cannot become lawful owner at any time.

(d) Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑Ss. 42 & 54‑‑‑Sindh Public Property (Removal of Encroachments) Act (II of 1975), Ss. 3, 4, 9 & 11‑‑‑Civil Procedure Code (V of 1908), S.11 & O. VII, R.11‑‑‑Suit for declaration,' injunction and damages‑‑­Rejection of plaint ‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Plaintiff being an encroacher was offered for regularization of some area subject to fulfilment of certain conditions‑‑‑Authority on plaintiff's failure to fulfil conditions of offer, withdrew such offer and demolished his factory‑‑‑Plaintiff challenged such action of authority in Constitutional petition, but same was dismissed‑‑‑Plaintiff then filed petition for leave to appeal before Supreme Court, but withdrew the same and filed the present suit‑‑‑Authority sought rejection of plaint being hit by S. 11, C. P. C. as well as Ss. 4, 9 & 11 of Sindh Public Property (Removal of Encroachments) Act, 1975‑‑‑Validity‑‑‑Offer made to plaintiff had been withdrawn and his attempt to challenge its withdrawal before High Court and Supreme Court had also failed‑‑‑Plaintiff in such circumstances could not claim any title or interest in the disputed plot‑‑‑Suit was hit by principle of res judicata as its subject‑matter already stood decided by high Court in Constitutional petition‑‑Proceedings for eviction of encroacher had commenced under S.3 of Sindh Public Property (Removal of Encroachments) Act. 1975‑‑‑Suit was premature for plaintiff not having first availed remedy of appeal under S.4 of Sindh Public Property (Removal of Encroachments) Act, 1975‑‑‑High Court allowed application under O. VII, R. 11, C. P. C., and rejected the plaint in circumstances.

Tariq Transport Co. v. Sargodha‑ Bhera Bus Service and others PLD 1958 SC 437 fol.

Pir Bakhsh through Legal Heirs v The Chairman, Allotment Committee PLC 1987 SC 145; Muhammad Anwar v. Mst Nawab Bibi and others 1989 SCMR 836: Ziauddin v. Pakistan Defence Housing Authority 1999 CLC 723; Fairoz Din and others v. Muhammad Sher Khan 1979 CLC 742 and Begum Atiya Hashimi and others v. Mst. Aamee and others 1987 MLD 305 ref.

(e) Administration of justice‑‑‑

‑‑‑‑Where a statute creates a right and also provides a machinery for enforcement of such right, the party complaining of a breach of statute must first avail himself of the remedy provided by statute for such breach before he applies for any other remedy.

Tariq Transport Co. v. Sargodha ­Bhera Bus Service and others PLD 1958 SC 437 fol.

Akhlaq Ahmed Siddiqui for Plaintiff.

Nazar Hussain Dhoon for Defendant No. 1.

Ch. Muhammad Rafiq, A.‑A.G. for the State.

Date of hearing: 26th September, 2002.

2003 Y L R 73

[Karachi]

Before Syed Zawwar Hussain Jafri, J

MUHAMMAD USMAN SABHAYO‑‑‑Applicant

Versus

FATUHAL KHAN and another‑‑‑Respondents

Criminal Miscellaneous Application Nos.S‑104 of 2002, decided on 4th September, 2002.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 161/34‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Contradictions in the F.I.R., direct complaint and the Constitutional petition filed by the complainant were fatal to the prosecution and disclosed that no prima facie case was made out against the accused and his co‑accused‑‑‑Pendency of criminal cases against the complainant revealed that he was a habitual offender‑‑‑Complainant had deliberately avoided to appear before the S. S. P. for the purpose of recording his statement as directed by High Court, as he knew that the actual facts would come out and he preferred a direct complaint against the accused persons in the Special Court‑‑­Mala ,fides and ulterior motive, thus, were clear on the part of the complainant for false implication of the accused police officials‑‑­Evidence of the complainant and his witnesses being in conflict with the documentary evidence brought on record, his case having no legs to stand, was bound to end ultimately in acquittal of the accused‑‑­Proceedings pending against the accused and other co‑accused were quashed in circumstances as the allegations as contained in the complaint against them were similar.

Zaheer Ahmed and 2 others v. The State PLD 1979 Kar. 186; Muhammad Sadiq v. Anverr Majeed and another 1989 PCr.LJ 1223; Muhammad Anwar and others v. The State 1976 PCr.LJ 1325; Mirza Naseem Baig v. Muhammad Iqbal and others 1981 SCMR 315; Sanaullah Barni and others v. The State 1980 PCr.LJ 728; Mehmood Ahmed v. The State 1996 PCr.LJ 72 and Syed Muhammad Haseenuddin and 2 others v. The State 1987 PCr.LJ 2096 ref.

Khalid Iqbal Memon for Applicant.

Roshan Ali Solangi for Respondent No. 1.

Ali Azhar Tunio, A.A.‑G.

Date of hearing: 4th September, 2002.

2003 Y L R 100

[Karachi]

Before Zia Perwez, J

BABAR AZIZ KARIM ‑‑‑Plaintiff

Versus

K.B.C.A. and others‑‑‑ Defendants

Suit No.662 and Civil Miscelaneous Applications Nos. 4173 and 4989 of 2002, decided on 27th September, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42, 54 & 56(d)‑‑‑Civil Procedure Code (V of 1908), O. VII, R. I1‑‑‑Karachi Buildings and Town Planning Regulations, 1978, Regln.16‑‑‑Sindh Buildings Control Ordinance (V of 1979), S.19‑Sindh Buildings Control (Amendment) Ordinance (XJXVII of 2001), S.2‑‑‑Suit for declaration and injunction‑‑‑Plaintiff filed such suit‑to protect his construction re‑erected after 23‑1‑2002 in deviation of approved plan‑‑­Contention of plaintiff was that his case was covered by provisions of Sindh Ordinance (XXXVII of 2001), dated 3‑12‑2001 allowing regularisation of such construction‑‑­Validity ‑‑‑Sindh Buildings Control (Amendment) Ordinance (XXXVII of 2001) related to such construction as existed on 3‑12‑2001 and were , required to be regularised‑‑‑Any construction raised in contravention of law without any approved plan after promulgation of Sindh Buildings Control (Amendment) Ordinance (XX,XVII of 2001) would not fall within its purview as same had been promulgated for purposes of regularisation of certain existing structures‑‑­Such illegal acts of plaintiff carried on despite proper action on the part of Karachi Buildings Control Authority, could not be protected by recourse to present proceedings‑‑‑Plaintiff had approached the Court with mala fide intention without a valid cause of action ‑‑‑Reliefs claimed were not covered by the Building Regulations and could not be allowed under Ss.42 & 56(d) of Specific Relief Act, 1877‑‑‑Plaint was rejected under O. VII, R.11, C. P. C.

Muhammad Ismail Memon for Plaintiff.

Mansoor Ahmed Khan for Defendants.

2003 Y L R 136

[Karachi]

Before Khilji Arif Hussain, J

AMEERUDDIN‑‑‑Plaintiff

Versus

FAZALUR RAHIM KHAN‑‑‑Respondent

Suit No. 1407 of 1989, decided on 6th September, 2002.

(a) Tort‑‑‑-

‑‑‑‑ Malicious prosecution ‑‑‑Liability‑‑ Essential conditions stated.

Malicious prosecution is a tort, the liability of which consists in improperly instituting unsuccessful criminal proceedings for an improper purpose and without reasonable and probable cause.

Every one has a right to set in motion judicial machinery for protection of his rights, but such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigation.

(b) Tort‑‑‑-

‑‑‑‑ Malicious prosecution, action of‑‑­Essentials to be proved by plaintiff:

In order to succeed in an action of malicious prosecution, plaintiff must in first instance prove two things: that defendant was malicious, and that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrong‑headed a prosecutor may be, if he honestly thinks that accused had been guilty of a criminal offence, he cannot be the initiator of a malicious prosecution. But malice alone is not enough, there must also be shown to be absence of reasonable and probable cause.

Raja Braja Sunde Singh Deb v. Ramdeb Das alias Pattanaik AIR 1944 PC 1 fol.

(c) Tort‑‑‑

‑‑‑‑ Malicious prosecution, action of‑‑‑Claim for Rs. l6, 65,000 as damages for loss of reputation and health, financial loss in business and legal expenses for conducting criminal cases‑‑‑Defendants tried to involve plaintiff in false cases in order to get possession of shop from plaintiff, which wife of defendant failed to get in due course of law as rent cases filed by her were dismissed‑‑­Defendant filed five criminal cases/complaints one after the other against plaintiff, which were decided against defendant‑‑‑Plaintiff filed such suit within one year from date of termination of malicious prosecution‑‑­Plaintiff appeared in witness‑box and made statement on oath giving details of criminal cases filed by defendant, in which plaintiff not only remained behind the bars, but was also humiliated in market, where he was doing his business‑‑‑Defendant did not dispute such evidence of plaintiff as he not only failed to cross‑examine plaintiff, but also failed to give any evidence in rebuttal‑‑‑Held: Prosecution of plaintiff was malicious and defendant had acted without any probable cause‑‑‑Court decreed plaintiff's claim in sum of Rs.3,65,000 with costs, which would fairly compensate his loss of reputation, business and health.

(d) Tort‑‑‑-

‑‑‑‑ General damages‑‑‑Proof‑‑‑Assessment of such damages‑‑‑Guidelines stated.

In case of general damages, well­-established principle is that damages must be such, which would compensate the injured as far as money is concerned.

It is true that loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non‑pecuniary losses may not be accurately calculated in terms of coins, but for this reason alone, Courts do not decline to grant compensation and still the Courts have formulated certain parameters and devised principles for evaluation of assessment of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to victim. There is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, who may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who has suffered such a damage. The general damages are those, which law will imply in every violation of a legal rights. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of Court should be satisfied that damages awarded would, if not completely, satisfactorily compensate aggrieved party. However, adequate care should be taken in this regard while dilating on the quantum of awards. Courts should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be air indicator of abstemious parsimony, but Courts should give aggrieved party what it consider in all the circumstances a fait and reasonable compensarion for his loss.

Abdul Karim Siddiqui for Plaintiff.

Nemo for Defendant.

Date of hearing: 30th August, 2002.

2003 Y L R 166

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jaffari, JJ

TAHA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Spl. A. T. A. No.12 of 2000, decided on 11th September, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 353 & 324/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence ‑‑‑Complainant had not only made an improvement but a modification by changing the story and nominating the accused for the first time after recording of the F.I.R. and imputing the allegation against him of having joined the accused persons‑‑‑Identification of an unseen assailant at the identification parade did not carry any evidentiary value‑‑‑Three co ­accused had already been acquitted by the High Court on the ground that the prosecution witnesses had made variations while nominating them‑‑‑Admittedly no blood‑stained earth was collected from the place of occurrence or from the vehicle and, thus, the place of incident was not proved by the prosecution ‑‑‑Identification of accused through the complainant in the identification test was meaningless as the complainant knew him by name and had nominated him in his examination‑in‑chief alongwith other accused‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Moharram Ali's case PLD 1986 SC 1450; Muhammad Faisal v. State 2000 MLD 1374; Naseer v. State 1994 SCMR 995; Saeed Muhammad Shah v. State 1993 SCMR 550 and Amir Zaman v. Mahboob 1985 SCMR 685 ref.

(b) Identification parade‑--

‑‑‑‑ Evidentiary value‑‑‑Identification test is a very weak piece of evidence and any doubtful circumstance may wholly damage its evidentiary value.

Mahmood A. Qureshi for Appellant.

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

2003 Y L R 196

[Karachi]

Before S. Ali Aslam Jafri, J

TAHIR A. KHAN‑‑‑Petitioner

Versus

CENTRAL BOARD OF REVENUE and others‑‑‑Respondents

Suit No.1649 of 1999, decided on 16th September, 2002.

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

‑‑‑‑Ss. 42 & 54‑‑‑Income Tax Ordinance (XXXI of 1979), 5.162‑‑‑Civil Procedure code (V of 1908); S.79 & O. VII, R. II‑‑­Constitution of Pakistan (1973), Art. 174‑‑­Suit for declaration and injunction challenging vires of demand raised under Income Tax Ordinance, 1979‑‑‑Plaintiff filed such suit against Central Board of Revenue, Income Tax Recovery Officer and two other officials without impleading "Pakistan " as party/defendant‑‑‑When Court took up the point regarding non‑compliance of S.79, C. P. C: and its consequences, plaintiff did not make any effort to seek amendment. in plaint, so as to bring same in proper form‑‑‑Such suit filed against Government officials in their official capacity without impleading "Pakistan " as defendant was bad in form and not maintainable‑‑‑Such suit was also barred under S. 162 of Income Tax Ordinance, 1979‑‑‑Plaint was rejected under O. VII, R.11, C. P. C. being not maintainable and barred under law.

Batala Engineering Company Ltd. v. I.T.O., Lahore 1973 SCMR 282; Releigh Investment Company Ltd. v. Governor ­General‑in‑Council PLD 1947 PC 19; Commissioner of Income‑tax, West Punjab v. Tribune Trust PLD 1947 PC 247; Province of Punjab through Member, Board of Revenue, Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147 ref.

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

‑‑‑‑S. 79‑‑‑Constitution of Pakistan (1973), Art. 174‑‑‑Suit: against Government functionaries in their official capacity and by their official designation or title‑‑­Maintainability‑‑‑Such suit was bad in form and must fail.

Secretary, B. & R. Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Manahem S. Yeshoova v. Union of India and others: AIR 1960 Bom. 196 and Province of Punjab through Member, Board of Revenue, Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147 rel.

Plaintiff and his counsel called absent.

Raja Muhammad Iqbal for Defendant No. 1.

Muhammad Farid for Defendant No.2.

Date of hearing: 16th September. 2002.

2003 Y L R 205

[Karachi]

Before Zia Perwez, J

Messrs ZAFAR ENTERPRISES‑‑‑Plaintiff

Versus

KARACHI PORT TRUST‑‑‑Defendant

Suit No.835 of 1998, decided on 11th September, 2002.

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

‑‑‑‑S. 43‑B‑‑‑Notification under S.43‑B of Karachi Port Trust Act, 1886‑‑‑Effective date of its operation‑‑‑Conditions precedent‑‑­Before a notification could have the force of law, two requirements were to be fulfilled i.e. sanction and publication‑‑‑After first mandatory condition of sanction by Government notification was subject to second mandatory requirement of publication in official Gazette‑‑‑Charges would be recoverable after such sanction and publication of rates in official Gazette and not only from date of sanction.

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

‑‑‑‑Ss. 43‑A & 43‑B‑‑‑Wharfage and storage charges, levy of‑‑‑No charges could be recovered at an enhanced rate with retrospective effect‑‑‑Where continuous services were being rendered over a prolonged period of time, storage charges would be liable on consignments, subject to storage at wharves of Karachi Port Trust at the rates in pursuance of notification from the date of its publication in official Gazette.

Sheikh Fazal Ahmed and others v. Claims Commissioner, Lahore PLD 1964 SC 494 and Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652 ref.

Javed Farooqui for Plaintiff.

Muhammad Shoaib Abidi for Defendant.

Date of hearing: 11th September, 2002.

2003 Y L R 226

[Karachi]

Before Rehmat Hussain Jafferi, J

SULEMAN MALA and others‑‑Petitioners

Versus

Khawaja MUHAMMAD RAMZAN and others‑‑‑Respondents

Constitutional Petitions Nos.S‑492 and 493 of 2002, decided on 13th September, 2002.

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

‑‑‑‑S. 21(3) [as amended by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Abolition of second appeal to High Court‑‑‑Legislative intent behind the amendment‑‑Object of the amendment was to make first appeal final and same should not be subjected to further appeal in High Court and that decisions in rent matters should be reached expeditiously and end at lower levels‑‑‑Right of second appeal to High Court had been taken away by virtue of S.21(3) of the Sindh Rented Premises Ordinance, 1979‑‑‑Such purpose could not be allowed to be frustrated by exercising Constitutional jurisdiction, which was not meant to avoid the legislative intent.

Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court and appellate jurisdiction‑‑­Distinction‑‑‑Both the two jurisdictions are separate and distinct‑‑‑What can be done in appellate jurisdiction, cannot be done under the Constitutional jurisdiction.

Muhammad Hussain Muneeb and others v. Sikandar and others PLD 1974 SC 139 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Findings of fact properly reached‑‑‑High Court would not review such findings.

Muhammad Hussain Muneeb and others v. Sikandar and others PLD 1974 SC 139 ref.

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

‑‑‑‑S.21(3) (as amended by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]---‑Abolition of second appeal to High Court‑‑‑Added responsibility of First Appellate Court indicated.

Absence of right of second appeal to High Court in such matters has added further responsibility upon lower Courts to carefully examine and analyse evidence present before them before they arrive at decisions, and every bit of the matter that has been placed before them has to be taken note of and given due weight.

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

‑‑‑‑S.15‑‑‑Transfer of Property Act (IV of 1882), S.53‑A‑‑‑Ejectment application‑‑­Relationship of landlord and tenant, denial of‑‑‑Petitioner (landlord) after receiving full occupancy value of premises executed sub­lease in favour of respondent requiring him to pay only taxes and other Government dues to the extent of his share‑‑‑No rent had been paid after sub‑lease nor same had been claimed by the petitioner‑‑‑Petitioner could not prove cancellation of sub‑lease and adjustment of amount paid thereunder towards future rent‑‑‑Sub‑lease impliedly showed that respondent would continue to remain in possession of premises as owner and would not be required to pay rent except such taxes‑‑‑Respondent continued his possession in part performance of sub‑lease with implied consent of petitioner and had paid as co‑owner all such taxes‑‑‑All requirements of S.53‑A of Transfer of Property Act, 1852 had been estblished‑‑­Sub‑lease clearly established that tenancy rights between parties had been terminated‑‑­Rent Controller, thus, had no jurisdiction to eject respondent in circumstances.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Concurrent findings of fact arrived at by two Courts below of competent and exclusive jurisdiction‑‑‑Such decisions could not be interfered with on the ground that same were wrong.

Syed Safdar Hussain for Petitioner (in Constitutional Petitions Nos.S‑492 and S‑493 of 2002).

2003 Y L R 256

[Karachi]

Before Syed Zawwar Hussain Jafri, J

MAZARI‑‑‑Applicant

Versus

FAKIRO and 3 others--‑‑Respondents

Criminal Miscellaneous Application No.214 of 2001, decided on 21st August, 2002.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Cancellation of bail‑‑‑Accused were directly and specifically charged in the F. I. R. for having caused hatchet blows to the deceased‑‑‑Hatchets had been recovered from the accused during investigation‑‑‑Ocular evidence was corroborated by medical evidence‑‑‑Incident being of broad daylight, no question of mistaken identity of accused could arise‑‑‑Accused who were armed with deadly weapons had made .a pre planned attack and killed the deceased in furtherance of their common intention‑‑‑All the injuries attributed to accused were fatal‑‑­Promptly recorded F.I.R. had eliminated the possibility of deliberation and fabrication‑‑‑Bail allowed to accused by Sessions Court was cancelled in circumstances.

State v. Hussain and others PLD 2002 Kar. 1; Javaid Iqbal and others v. State 1998 SCMR 903 and Ajmal Khan v. Liaquat Hayat PLD 1998 SC 97 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 34‑‑‑Joint liability‑‑‑Test‑‑‑Common intention is the sole test of joint liability under S. 34, P. P. C.

Ali Nawaz Ghanghro for Applicant.

Habibullah . G. Ghori for Respondents Nos. 1 to 3.

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

Date of hearing: 21st August, 2001.

2003 Y L R 461

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

EXCELSIOR COTTON COMPANY‑‑‑Plaintiff

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LTD. and another‑‑‑Defendants

Suit No. 360 of 2001, decided on 23rd September, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.34‑‑‑Stay of legal proceedings‑‑­Arbitration clause in agreement to refer dispute to arbitration in foreign country‑‑­Enforcement of‑‑‑Contract had been entered into at K, where entire evidence of both parties was available‑‑‑Plaintiff (a foreign company) had itself invoked jurisdiction of Court at K‑‑‑Defendant was a Pakistani company, thus, there was no question of betraying confidence or trust of a foreign company‑‑‑Defendant had not filed affidavit-­in‑rejoinder‑‑‑Plaintiff's assertion that direction for having resort to arbitral proceedings at Liverpool (England) would be too expensive and inconvenient to both parties, had gone unchallenged‑‑‑Purpose of arbitration proceedings was to provide expeditious, inexpensive and speedy justice to the parties‑‑‑Such purpose would not be served by staying proceedings and directing parties to resort to arbitral proceedings at Liverpool, rather same would amount to compelling them to bear huge expenses and undergo inconvenience, which would not serve purpose of justice‑‑‑Application for stay of proceedings was dismissed in circumstances.

Akbar Cotton Mills Ltd. v. Messrs VES/Ojuanoji Objedinenije Tech/Amesh Export 1984 CLC 1605; Messrs V/O Techmash‑Export v. Messrs Akbar Cotton Mills Ltd. 1987 MLD 600; M.M. Yaseen v. Messrs Irving R. Boddy & Co. PLD 1957 Kar. 756; Messrs Aslo Marines Ltd. v. M.T. Magda PLD 1985 Kar. 745; Eckhardt & Company Marine GmbH, West Germany v. Muhammad Hanif PLD 1986 Kar. 138 and Messrs Eckhardt & Co., Marine GmbH v. Muhammad Hanif PLD 1993 SC 42 rel.

Manzoor Textile Mills Ltd. v. Nichimen Corporation 2000 MLD 641 distinguished.

(b) Arbitration‑‑‑

‑‑‑‑ Purpose of‑‑To provide expeditious, inexpensive and speedy justice to parties.

Ms. Sana A. Minhas for Plaintiff.

Salman Hamid for Defendant No. 1.

Date of hearing: 23rd September, 2002.

2003 Y L R 466

[Karachi]

Before Ata‑ur‑Rehman, J

Messrs UNIQUE SERVICES, SOLE PROPRIETORSHIP CONCERN through Manager‑‑‑Appellant

Versus

OCCUPANT OWNERS WELFARE ASSOCIATION through General Secretary‑‑Respondent

First Regular Appeal No. 4 and Civil Miscellaneous No. 1233 of 2002, decided on 20th November, 2002.

(a) Cantonments Rent Restriction Act (XV of 1963)‑‑‑-

‑‑‑‑S. 17(8) (9) & 24‑‑‑Eviction of tenant‑‑­Tentative rent order, non‑compliance of‑‑­Application for extension of time, grant of‑‑­Effect‑‑‑Tenant holding over after expiry of lease‑‑‑Tenant was directed through order, dated 19-6‑2001 to deposit arrears within twenty days and future rent on or before 5th January of every year of succeeding year‑‑­Tenant did not comply with such order, but made application for extension of time, which was allowed till 25‑7‑2001‑‑‑Tenant deposited cheque on 25‑7‑2001, which was encashed on 27‑7‑2001‑‑‑Landlord made two applications under S.17(8) of the Act alleging that tenant had committed default by not complying with order, dated 19‑6‑2001; and that Rent Controller had no jurisdiction to extend time fixed in order, dated 19‑6‑2001‑­Rent Controller accepted applications and struck off defence of tenant ‑‑‑Validity‑‑­Tentative rent order was to be passed on tentative assessment by seeing documents and pleadings of parties and obedience to such orders could not be shelved on any reason‑‑­Ejectment application had been filed on the basis of expired tenancy agreement, where under rent was payable in advance on yearly basis‑‑‑Tenant's contention that since agreement had expired, its terms and conditions were not applicable, was without force‑‑‑Second order extending time for compliance of first order, dated 19‑6‑2001 was without lawful authority‑‑‑Tenant had deposited cheque on last date i. e. 25‑7‑2001 and was encashed after two days on 27‑7‑2001‑‑‑Tenant had committed default in depositing rent in view of dictum of Supreme Court reported as 1995 SCMR 287‑‑‑Tenant had committed default in depositing future rent under terms of agreement, which he was directed to pay in advance for year 2002 on or before 5th of January, 2002‑‑‑Tentative rent order, dated 19‑6‑2001 was in consonance with terms of tenancy agreement, whereunder tenant was required to deposit future rent in advance, which had not been done‑‑­Impugned order was legal and did not require interference‑‑‑High Court dismissed appeal in limine.

Mrs. Zarina Khawaja v. Agha Mehboob Shah PLD 1988 SC 190;. Shuja­uddin Qureshi v. Mst. Husan Ara Begum PLD 1964 (W.P.) Lah. 292; Mst. Akhtar Jehan Begum v. Muhammad Azam Khan PLD 1983 SC 1; Messrs Ansari Brothers v. Holy Trinity Church PLD 1971 SC 700 and Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 ref.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑--

‑‑‑‑S. 17(8)‑‑‑Tentative rent order, passing of‑‑‑Method‑‑‑Such order had to be passed on tentative assessment by seeing documents and pleadings of parties and its obedience could not be shelved on any reason.

(c) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S.17(8)‑‑‑Tentative rent order‑‑‑Extension of tune for compliance of such order, grant of‑‑‑Validity‑‑‑Second order extending time for compliance of first tentative rent order would be without lawful authority.

Messrs Ansari Brothers v. Holy Trinity Church PLD 1971 SC 700 and Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 rel.

(d) Cantonments Rent Restriction Act (XI of 1963)‑‑‑-

‑‑‑‑S.17(8)‑‑‑Tentative rent order‑‑‑Deposit of rent under such order‑‑‑Mode‑‑‑Deposit of rent only in cash or through pay‑order or Bank draft emphasised‑‑Principles.

Rent law allows tender of rent by tenant to landlord by payment through cheque, if so agreed between parties, but such mode is not allowed at the time of passing of tentative rent order, for which it is specifically stated that Controller shall direct tenant to deposit in his office before specific date the rent due from him.

Misbaullah Khan v. Mahmoona Taskinuddin 1995 SCMR 287; Messrs Peoples Steel Mills Ltd., Karachi v. Hafzuddin and 7 others PLD 1981 Kar. 739 and Younus Rizwani Sheikh and others v. Pakistan State Oil Co. Ltd. PLD 1988 Kar. 338 rel.

In prevailing law and order situation, it is almost difficult to move with heavy amounts of cash from one place to another. In these circumstances, the safest mode of payment could be through pay‑order or bank draft. The pay‑order and bank draft are as good as cash as their payment is guaranteed by bank to payee. In case of cheque, there is no guarantee for its encasement. What Legislature wants is that amount ordered in tentative order should be deposited with the office within prescribed period such purpose can be achieved either by depositing pay­ order/bank draft or cash within prescribed period.

M. Ahmed Peerzada for Appellant.

Altaf Hussain for Respondents,

2003 Y L R 499

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

ACHAR alias BHAI KHAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals (ATAs) Nos. 51 to 54 and Conf. Case No. 2 of 2001, decided on 17th September, 2002.

Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss. 302 (a) & 302 (b)‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 7(i) (ii) & 7(b)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Appreciation of evidence‑‑‑In a fierce gun battle between police and dacoits; where several bullets were consumed by both the sides it was humanly difficult to point out as to whose fire shot hit whom‑‑‑Ballistic Expert's Report was positive‑‑‑Delay in sending the fire‑arms to Ballistic Expert would not vitiate or destroy such evidence‑‑­Securing of less number of crime empties than fired would not have any adverse effect on the prosecution case as even one or two empties might be sufficient for the purpose of matching with the recovered weapon‑‑­Occurrence was not denied and medical evidence was not challenged by the defence‑‑­Prosecution witnesses had no animosity or motive for false implication of accused and they even had no special interest in their conviction‑‑‑Recoveries had been made in a realistic manner‑‑‑Refusal of people to offer themselves as witnesses was now a well known and judicially recognized fact‑‑‑Many material parts of the statements of the prosecution witnesses having not been challenged and left un rebutted had attained evidentiary value‑‑‑No mitigating circumstance was available in favour of accused to award lesser sentence‑‑‑Conviction of accused under S.302(a), P.P.C. being erroneous was altered to S. 302(6), P. P. C. ‑‑­Conviction and sentences of accused were upheld in circumstances.

1990 MLD 1116; 1994 PCr.LJ 555; 1978 SCMR 49; PLD 1975 Pesh. 205; 1985 PCr.LJ 2854; PLD 1968 Lah. 437; 1985 SCMR. 1573; 1988 SCMR 857, 2000 SCMR 1582; 2000, SCMR 1859, 1995 SCMR 127; 1993 SCMR.160; 1994 PCr.LJ 938; 1983 PCr.LJ 162; 2001 MLD 477; 2001 SCMR 1328; 2000 SCMR 1758; Usman Shah v. The State PLD 1972 Kar. 77; Rab Rakhio v. The State 1992 SCMR 793; Sikandar and 2 others v. The State PLD 1981 SC 477; Wazir v. State PLD 1960 Kar. 676; Noor Alam v. State PLD 1978 SC 137; Muhammad v. State 1993 PCr.LJ 1632 and Amrood Khan v. State 2002 SCMR 1568 ref.

Abdul Fattah Malik for Appellants (for Achar and Abdul Aziz).

Abdul Latif Memon for Appellant (for Bashir Ahmad).

Aijaz Ali Maitlo for Appellant (for Achar and Abdul Aziz in Appeals in Arms Cases).

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

2003 Y L R 550

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD ALI ‑‑‑Petitioner

Versus

S. H. O., POLICE STATION AZIZ BHATTI and others‑‑‑Respondents

Constitutional Petition No.S‑56 of 2002, decided on 10th September, 2002.

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

‑‑‑‑S. 154‑‑‑Information in cognizable case‑‑­Direction of law‑‑‑Police Officer under 5.154, Cr. P. C. is duty bound to register the report of cognizable offence and has no option to refuse the same.

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

‑‑‑‑Ss. 156(3) & 200‑‑‑Procedure‑‑‑Trvo courses for Magistrate‑‑‑When the informant approaches the Magistrate with an oral or written complaint, Magistrate has to o alternative' courses open to him and can follow either of them at his option‑‑­Magistrate may record the statement of the complainant on oath under S.200, Cr. P. C. and then pass orders as required under 5.202, Cr.P.C. as deemed fit by him, or he may simply direct the police to register the case and investigate the same under S.156(3) Cr.P.C.‑‑‑Once the Magistrate had recorded the statement of the complainant on oath and taken cognizance of the case then the course as required under S.156(3), Cr.P.C. is not available to him.

AIR 1956 Cal. 76; AIR 1959 Assam 231; PLD 1975 Lah. 577 and 1990 PCr.LJ 1547 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), Ss.156(3) & 200‑‑‑Constitutional petition‑‑‑Competency‑‑‑Petitioner had sought direction from High Court for the police to register his case under its Constitutional jurisdiction‑‑‑Same powers, however, could be exercised by the . Magistrate under S.156(3), Cr. P. C. more expeditiously than through the Constitutional petition, because as soon as the complaint was received by thr Magistrate whose Court was situated near the scene of the incident or the residence of the complainant, he would immediately pass orders as deemed fit to him either adopting the course of Chap. XVI or Chap. XIV of the Code of Criminal Procedure, 1898‑‑‑Adequate and more efficacious remedy, as such, being available to the petitioner, Constitutional petition was not competent and the same was dismissed accordingly.

AIR 1956 Cal. 76; AIR 1959 Assam 231; PLD 1975 Lah. 577 and 1990 PCr.LJ 1547 ref.

Umar Farooq Khan for Petitioner, Choudhry Muhammad Rafique, Addl. A.‑G., Sindh for Respondents.

Date of hearing: 29th August, 2002,

2003 Y L R 558

[Karachi]

Before Syed Zawwar Hussain Jafri, J

ILLAHI BUX‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.532 of 2002, decided on 28th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail‑‑‑Accused had allegedly fired at the complainant with a fire‑arm but neither the complainant nor any other person received any injury‑‑‑Enmity admittedly existed between the parties which was mentioned in the FLR.‑‑‑Charge‑sheet had already been filed in the Court‑‑‑State Counsel had conceded to grant of bail to the accused‑‑‑Bail was allowed to accused in circumstances:

Ghulam Murtaza v. State 2001 PCr.LJ 1691 ref.

Asif Ali Abdul Razak Soomro for Applicant.

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

Date of hearing: 28th August, 2002.

2003 Y L R 582

[Karachi]

Before Ghulam Nabi Soomro, J

HAJI SOOMRO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.50 of 2002, decided on 20th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑,‑S. 514‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Applicant had stood surety for the accused involved in the case registered under S.13‑D of the Arms Ordinance, 1965‑‑‑Accused had remained absent from the Court for only three hearings on account of his illness which was supported by a Medical Certificate‑‑‑Impugned order imposing penalty of Rs.10,000 on the applicant was set aside in circumstances.

Ghulam Qadir Siyal v. The State 1997 PCr.LJ 554 ref.

Yousuf Ali for Applicant.

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

2003 Y L R 592

[Karachi]

Before Saiyed Saeed Ashhad, C. J.

and Ghulam Rabbani, J

Messrs SAADI CEMENT LTD. ‑‑‑Appellant

Versus

Messrs PIONEER CABLES LTD. ‑‑‑Respondent

High Court Appeal No.334 of 2000, decided on 23rd October, 2002.

Arbitration Act (X of 1940)‑‑--

‑‑‑‑Ss. 14 & 17‑‑‑Making award rule of Court‑‑‑Opportunity of hearing‑‑‑Award was filed in Court on 3‑6‑1999‑‑‑Appellant after service of notice of filing 'award appeared in Court through counsel on 28‑10‑1999 and on his request three weeks time was allowed for filing objections to award‑‑‑Appellant or his counsel thereafter neither appeared in Court nor filed objections to award‑‑‑Matter came up for hearing before Court on 6‑3‑2000, when award was made rule of Court‑‑‑Appellant in view of such facts was not entitled to any further opportunity for filing objections as he had acted in a most careless, negligent and imprudent manner‑‑­No exception could be taken to impugned order‑‑‑High Court dismissed appeal in circumstances.

Mukhtar Ahmed Kuber for Appellant.

Rao M. Shakir Naqshbandi for Respondent.

2003 Y L R 617

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujibullah Siddiqui, JJ

ABDUL AZIZ MEMON‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Accountability Appeals Nos. 58 and 59 of 2002, decided on 6th November, 2002.

(a) Interpretation of statutes‑‑‑

‑‑‑‑Intention of the Legislature, ascertainment of‑‑‑In order to ascertain the intention of Legislature the entire scheme of law is to be examined in its totality and the entire statement is to be considered.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Preamble‑‑‑Function of‑‑‑Preamble is not a substantive part of the statute, however, it is forerunner of the law and walks in ahead of the substantive provision of the law‑‑­Preamble not being a part of the substantive law itself, cannot be enforced or implemented by its own force but it is always helpful in ascertaining the intention of Legislature and the purpose of enacting a law.

(c) National Accountability Bureau Ordinance (XVIII of 1999)‑‑

‑‑‑‑Preamble, Ss. 4, 5, 9 & 20‑‑‑Scope and applicability of National Accountability Bureau Ordinance, 1999 is wider in terms and is applicable to all citizens of Pakistan and all persons including the holders of public office‑‑‑Principles.

A perusal of the first para. of preamble of the National Accountability Bureau Ordinance, 1999 shows that it envisages setting‑up of National Accountability Bureau so as to eradicate corruption and corrupt practices and to hold accountable all those persons accused of such practices and matter ancillary thereto. In this para. the purpose of setting‑up of National Accountability Bureau has been given very. vividly which is to "hold accountable all those persons accused of such practices and matters ancillary thereto". Thus, the purpose of setting up of National Accountability Bureau is not confined to eradication of corruption committed by the holders of public offices only but to hold accountable to all those persons who are found involved' in corruption. Again in section 4 of the NAB Ordinance, dealing with the application of said Ordinance, it is provided that, "it extends to whole of Pakistan and shall apply to all persons in Pakistan". Again it is stated by the Legislature in very clear and unambiguous terms that the NAB Ordinance extends to all persons in Pakistan. Thus, no section or group of persons or individuals have been excluded from the applicability of the NAB Ordinance. Section 5 of the NAB Ordinance contains the definitions. In clause (a) of section 5, the term "accused" has been defined to include a person in respect of whom there are reasonable grounds to believe that he is or has been involved in the commission of any offence triable under the Ordinance. Here again the term accused is not confined to the holder of public office only. In clause (c) of section 5, the expression "assets" has been defined to mean any property owned, controlled by or belonging to any accused whether directly or indirectly or held benami in the name of his spouse or relatives or associates, whether within or outside Pakistan, for which they cannot reasonably account for, or for which they cannot prove payment of full and lawful consideration". In this definition also the properties owned, controlled by or belonging to any accused, his spouse or relatives or the associates are required to be reasonably accounted for and the burden of giving reasonable account and to prove the payment of full and lawful consideration is on all those persons and the accountability is not restricted to the holder of public office only. Here it is pertinent to note that the term "assets" has been defined with the expression "means" while the expression "accused" has been defined with the word "include". Thus, the definition of the term "assets" is conclusive while the definition of term "accused" is inclusive and thus, the definition of term "accused" is wider in its import. In clause (d) of section 5, the expression "associates" has been defined. In this definition any individual who is or has been managing the affairs or keeping accounts of the accused has been included. An association of persons, body of individuals, partnership firms and private limited companies are also included in which such a person is or has been a member, partner or director or which have been promoted, floated, established or run by the ‑same group of persons. It also includes any Trustee of a private Trust or any person who ostensibly holds or is in possession of any property of an accused or his behalf for the benefit and enjoyment of the accused. Clause (m) of section 5, contains the definition of holder of public office.

Clause (r) of section 5 contains the definition of "wilful default" and a bare reading of this provision shows that this particular provision is applicable to the persons other than holders of public offices as well. Clause (n) of section 5 contains the definition of offence. According to this definition the offence for the purpose of NAB Ordinance means offence of corruption and corrupt practices as defined in the NAB Ordinance and includes the offences as specified in the Schedule to the NAB Ordinance. This provision is to be read with section 9 of the NAB Ordinance, which defines the expression "corruption and corrupt practices". Various acts and omissions have been enumerated in paras. (i) to (ix). It provides that, a holder of public office, or any other person (emphasis provided by us), is said to commit or to have committed the offence of corruption and corrupt practices, if the acts and omission specified in paras. (i) to (ix) of clause (a) of section 9 are committed. If the opening sentence of section 9(a) of the NAB Ordinance is read with para.. (v) it reads as follows:

"A holder of public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices, if he or any of his dependents or Benamidars owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for."

The word 'he' used in para. 5 above, is a reference to holder of public office as well as any other person. Thus, the act specified in section 9(a)(v) is not confined to holder of public office only but is extended to any other person as well. Section 20 of the NAB Ordinance, is also pertinent in this behalf.

A perusal of section 20 shows that it starts with the non-obstante clause and is comprehensive so as to include every bank account without any exception. It is not confined to the bank accounts of the holders of public offices only. It enjoins upon the Manager of Bank or Director of a financial institution about all the transactions by any account‑holder constituting or relating to illegal or illicit activities, corruption or corrupt practices. Clause (c) of section 20 also speaks of an assets of 'a person' acquired through corruption or corrupt practices and provides that if no other likely source of acquiring such assets or part thereof is furnished there shall be a presumption unless proved to the contrary by the accused persons that such assets or part thereof are acquired/generated through corruption and corrupt practices. Thus, the provisions contained in section 20 of the NAB Ordinance are also leading to the conclusion that the scope and applicability of the NAB Ordinance is not confined to the holders of public offices only.

The scope of NAB Ordinance is wider in terms and is applicable to all citizens of Pakistan and all persons including the holders of public offices. The result is that, the appellants are accountable for acquiring the assets from the year 1985 till the year 1996, the period for which they were tried.

(d) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

-----Ss.16, 17 & 18‑‑‑Criminal Procedure Code (V of 1898), Ss. 221, 222, 223, 225, 282, 535 & 537‑‑‑Reference‑‑‑Contention of the accused was that in the reference and charge framed by the Trial Court accused was described as a holder of public office and therefore, he was accountable for the period in between the years 1993 and 1996 when he was holder of a public office by virtue of being Member of National Assembly‑‑­Validity‑‑‑Such being a material error by virtue of Ss. 535 & 537, Cr. P. C. the Court had to consider as to whether any error, omission or irregularity had occasioned a failure of justice and in this direction the pertinent point to consider was if the accused person was misled or any prejudice was caused to him in defending the charge for which he was convicted‑‑‑Report under S.173, Cr. P. C. and copies of reference supplied to the accused in the present case, contained a detailed prosecution version in respect of the known sources of income of the accused from the year 1970 to the year 1996 and the assets held by him during the said entire period‑‑‑Accused, though in the charge had been described as holder of the public office but the charge was to be read with reference to the context‑‑­Accused, in circumstances, was not referred to trial by the Accountability Court for the period between the years 1993 and 1996 only when he was holding a public office‑‑­Principles.

By virtue of the provisions contained in section 17 of the NAB Ordinance, the provisions pertaining to the framing of charge and trials before High Court and Courts of Sessions contained in Cr.P.C. shall be applicable. It is provided in section 221, Cr.P.C. that every charge under Cr.P.C. shall state the offence with which the accused is charged and if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only and if the law does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. Section 222, Cr.P.C. deals with the particulars which shall be contained in the charge. According to this section, the time, place of the alleged offence, and the person against whom; the offence was committed, if any, or the thing (if any) in respect of which, the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged should be contained in the charge. Section 223, Cr.P.C. further takes care of the sufficient notice to accused of the matter with which he is charged and provides that if the particulars mentioned in sections 221 and 222, Cr.P.C. do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which alleged offence was committed as will be sufficient for that purpose. The crux of these sections is that, an accused person should be fully made conversant of the particulars constituting offence for which he is tried, so that no prejudice is caused to an accused in defending himself of the charge. Section 225, Cr.P.C. provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. The intention of Legislature is very clear to the effect that any error or omission in the charge which does not occasion any failure of justice shall be considered as material. The effect of material error has been dealt with in section 232, Cr.P.C. Sections 535 and 537, Cr.P.C. are also directed in this behalf and have been enacted with the same purpose.

Reference under section 18(a), NAB Ordinance, the copies whereof were supplied to the accused and the contents of charge contained in report under section 173, Cr.P.C. a detailed prosecution version in respect of the known sources of income of the accused from the year 1970 to the year 1996 and the assets held by him during this entire period.

A reading of sections 535 and 537, Cr.P.C. shows that the moot point for consideration for the count was whether any error, omission or irregularity had occasioned a failure of justice and in this direction the pertinent point was whether an accused person was misled or any prejudice was caused to him in defending the charge for which he was convicted.

Accused in circumstances were not referred for trial by the Accountability Court for the period between the years 1993 and 1996 only when he was holding a public office. No doubt in para. 6 of the reference accused was described as holder of public office but in para. 4 of the reference it was specifically stated that the investigation was held for the period since 1985 onwards. It was sufficient to put the accused to notice that they were sent up to face trial to explain the acquiring/owning of properties/assets for the entire period from 1985 onwards. Although in the charge accused had been described as holder of public office but it was to be read with reference to the context. The first para. of the charge contained that accused was employed with a Bank during the period 1972 to 1993 and then proceeded on to state that he was Member of National Assembly from 1993 to 1996 and being holder of public office he abused his official position and authority and using corruption and corrupt practices accumulated movable/immovable properties in his name. Details of all the properties held by the accused were contained in the charge and the trial Court had not considered any property other than mentioned in the charge for the purpose of recording conviction and therefore, the trial Court made substantial compliance with the requirement of law pertaining to the framing of charge. Accused was not able to demonstrate that any failure of justice was occasioned or the accused was misled in leading his defence. The contention of the accused that there was no nexus between the charge and conviction or there was any material error or omission whereby the accountability of the appellants may be restricted to the years between 1993 and 1996 only, was not tenable.

(e) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss.9(v), 10(a) & 14(e)‑‑Corruption and corrupt practices‑‑‑Punishment—Presumption against accused accepting illegal gratification‑‑‑Accused person holding/possessing an asset shall give satisfactory account of holding/possessing the same and property/pecuniary resources are not disproportionate to his known sources of income‑‑‑If an accused person is facing trial for the offence of corruption and corrupt practices for holding/possessing right or title in any movable or immovable property or for having pecuniary resources disproportionate to his known sources of income or in respect of any properties held by his dependants or Benamidars, the presumption under S.14(c), National Accountability Bureau Ordinance, 1999 shall be available to the prosecution if the accused is not able to give any explanation which is reasonable, logical and convincing‑‑‑If the accused is not able to show that, the properties held by him or his dependants/Benamidars are not disproportionate to his known sources of income, the Court shall be legitimately entitled to presume that the accused person is guilty of the offence of corruption or corrupt practices and his conviction therefore, shall not be invalid by reason only that, same is based solely on such a presumption‑‑­Principles.

Chamber's 20th Century Dictionary, 1983 Edn. ref.

(f) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.14(c)‑‑‑Presumption against accused accepting illegal gratification‑‑‑Burden on accused shall be discharged by disclosing the known sources of his income and not by the disclosure of sources of his income which have no nexus within his income or which are not logical, convincing and free from doubt‑‑­If the sources disclosed do not provide interpretation of an act, such as the disclosure of source which leads to a name lender only shall never be treated as reasonable, satisfactory accounting of holding/possessing the assets and pecuniary resource.

(g) Interpretation of statutes‑‑‑

‑‑‑‑Words used in a statute‑‑‑Mode of giving meanings to the words‑‑‑No word is to be read in isolation and the words used in a statute take colour and complexion from the context in which they are used and every word used in the statute has to be given a meaning and the effect of a provision of law is to be considered in its totality and in the context of the entire scheme in a particular statute.

(h) National Accountability Bureau Ordinance (XVIII of 1999)‑‑

‑‑‑‑Ss.9(v), 10(a) & 14(c)‑‑‑Corruption and corrupt practices‑‑‑Punishment‑‑‑Presumption against accused accepting illegal gratification‑‑‑Burden of proof‑‑‑Benefit of doubt‑‑‑Principles relating to the burden of proof and benefit of doubt as applicable to an ordinary criminal trial are not applicable to the white collar crimes and the cases dealing with the corruption and corrupt practices‑‑­Ordinary crimes and white collar crimes are to be placed within two separate and distinct categories‑‑‑Prosecution is initially required to establish the possession of the properties or pecuniary resources of the accused disproportionate to known sources of his income in respect of offences of corruption and corrupt practices defined in S. 9(a) (v) and the presumption in law as contained in S.14(c) of the Ordinance‑‑‑Once such fact is established by production of evidence or with the admission of accused person, the onus shifts to the accused person to prove the contrary and give satisfactory account of holding/possessing the properties or pecuniary resources failing which the Court shall be justified in presuming the accused persons to be guilty of offence of corruption and/or corrupt practices and award the conviction provided in law‑‑‑Principles and reasons given with illustrations.

Precedent law dealing with the concept of benefit of doubt in a criminal trial involving the ordinary offences are not applicable to the trial for the offences of corruption and corrupt practices. The reason being that, in ordinary criminal trial the prosecution is always required to establish its case beyond reasonable doubt and the burden is always. on the prosecution to establish its case. As it is for the prosecution to establish its own case beyond reasonable doubt, therefore, if any accused person succeeds in creating a doubt in the prosecution case, he becomes entitled to acquittal by extension of the benefit of doubt. However, in corruption cases and particularly under the NAB Ordinance, such principles of ordinary criminal trial are not attracted. In the ordinary criminal trial there is no concept of presumption against an accused, while in the cases tried under the NAB. Ordinance, the prosecution is initially required to establish that certain properties or pecuniary resources are held/possessed by an accused person and once this fact is established then the burden is on accused person to satisfactory account for the holding of property or pecuniary resources and to further show that they are not disproportionate to his known sources of income or if there is any accretion to the pecuniary resources or property he must satisfactorily account for it, failing which the Court shall presume that the accused person is guilty of the offence of corruption and/or corrupt practices. Reading of the provisions contained in section 5(c), section 9(a) and section 14(c) of the NAB Ordinance, leads to the above conclusion. The expression "the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practices", are further indicative of the fact that in the cases of corruption or corrupt practices tried under the NAB Ordinance, the prosecution has to discharge the initial burden that the accused person is holding/possessing the properties or pecuniary resources disproportionate to his known sources of income and once it is established, the contrary: is to be proved by the accused. The expression "unless the contrary is proved" indicates that like other ordinary criminal cases, the accused shall not be entitled for acquittal by merely creating some doubts in prosecution case but shall be required to prove that the properties/pecuniary resources held by him were not disproportionate to his known sources of income and has to account for the same in a reasonable and satisfactory manner.

The principles relating to the burden of proof and benefit of doubt as applicable to an ordinary criminal trial are not applicable to the white collar crimes and the cases dealing with the corruption and corrupt practices. The ordinary crimes and white collar crimes are to be placed within two separate and distinct categories.

The ratio of the judgments in ordinary criminal cases pertaining to the benefit of doubt are not attracted to the case coming within the purview of white collar crime and particularly pertaining to the corruption and corrupt practices. The laws as well as the principles governing their interpretation and application are not static. The law is a living organism and the Courts should always have the dynamic approach, which is not possible by remaining oblivious to the objective conditions prevailing in a society at a given time. Thus, in respect of the offence of corruption and corrupt practices defined in section 9(a)(v) and the presumption in law as contained in section 14(c) of NAB Ordinance, the prosecution is initially required to establish the possession of properties or pecuniary resources disproportionate to known sources of income. Once this fact is established by production of evidence or with the admission of accused persons, the onus shifts to the accused person to prove the contrary and give satisfactory account of holding/possessing the properties or repecuniary resources failing which the Court shall be legitimately justified in presuming the accused persons to be guilty of offence of corruption and/or corrupt practices and award the conviction provided in law. Mere disclosure of a source for acquiring an asset would not be deemed sufficient to discharge the onus laid on an accused person under NAB Ordinance. The source disclosed by an accused person should be reasonable, logical, satisfactory and known, meaning thereby that not merely the immediate source should be disclosed but the ultimate source from where the funds emanated shall also be disclosed. For instance if a person discloses that he received a gift from a particular person, it would not be sufficient accounting for the properties and would not be treated as reasonable and satisfactory source of income. If the donor is merely a name lender and has no known and visible sources of income/funds the plea shall not be acceptable as it would neither be reasonable nor logical. Likewise if a person claims to have purchased a property by selling the Saving Certificates or Foreign Exchange Bearer Certificates, it may be treated as immediate source but it would not be sufficient per se to hold the same as a reasonable and satisfactory known source of income. An accused person taking such plea, is further required to prove the source of acquiring the Saving Certificates/F.E.B.Cs. and if there is a chain of sources it should be traced up to original source. A mere creation of smoke screen would not be sufficient discharge of burden to ward of the assumption under section 14(c) of the NAB Ordinance.

Irshad Ahmad Shaikh v. State 2000 SCMR 814 and Imtiaz Ahmad v. State PLD 1997 SC 545 ref.

Siraj v. The Crown PLD 1956 FC 123; Hurjee Mull v. Imam Ali Sircar 8 CWN 278 and Mujibur Rehman v. The State PLD 1964 Dacca 330 distinguished.

(i) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 9, 14 & 16‑‑‑Economic Reforms Act (XII of 1992), Preamble‑‑‑Foreign Exchange Bearer Certificates Rules, 1992‑‑‑Corruption and corrupt practices‑‑‑Protection/immunity under the Economic Reforms Act, 1992 and Foreign Exchange Bearer Certificates Rules, 1992 are not extended to a criminal trial under the National Accountability Bureau Ordinance, 1999 as provisions contained in the said Ordinance have overriding effect.

Hakim Ali Zardari v. State PLD 2002 Kar. 369 and Irshad Ahmed Shaikh v. The State 2000 SCMR 814 ref.

Khalid Anwar for Appellants.

S.M. Zafar for the State.

Date of hearing: 27th August, 2002.

2003 Y L R 673

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

ZAFAR IQBAL‑‑‑Applicant

versus

SHER MUHAMMAD and 3 others‑‑‑Respondents

Civil Revision No.86 of 2002, decided on 17th December, 2002.

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

‑‑‑Ss.42 & 55‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Suit for specific performance of agreement and permanent injunction‑‑­Limitation ‑‑‑Notice to the plaintiff that performance of agreement was being refused--- Plaintiff had stated that he had approached the deceased defendant through one of his heirs end through Nekmards after lapse of two months continuously; up to the period of two years after execution of sale agreement‑‑‑Such statement of the plaintiff clearly showed that he had approached the deceased defendant who died 8 years before the filing of the suit and continued to persist for the execution of the sale‑deed but the defendant did not perform the agreement‑‑­ Such conduct of defendant, held, was sufficient notice to the plaintiff that the performance of the agreement was being refused.

(b) Registration Act (XVI of 1908) ‑‑

‑‑‑‑S.17‑‑‑Qanun‑e‑Shahadat (10 . of 1984), Arts. 79 & 17‑‑‑Sale agreement‑‑‑Not required to be registered or necessarily attested by the Notary Public‑‑‑Sole requirement of law was that such agreement should be signed by the parties and be attested by at least two attesting witnesses.

Sahib Khan v. Muhammad Panah PLD 1994 SC 162 ref.

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

‑‑‑‑S.115‑‑‑Revision‑‑‑Scope‑‑‑Even if there is a possibility of arriving at any other conclusion on fresh assessment and appreciation of evidence, the Revisional Court shall not resort to such exercise and shall not come to any other conclusion, until and unless the impugned finding of the lower Court is totally perverse or against the principles of appreciation of evidence or is the result of non‑reading and misreading of the evidence.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

--Art, 79-‑‑Execution of document, proof of --- Requirements of Art.79, Qanun-e-Shahadat, 1984 stated.

It is the requirement of Article 79 of Qanun‑e‑Shahadat, 1984, that if the document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least, have been called for the purpose of proving its execution, if they are alive, and subject to the process of the Court and capable of giving evidence. The explanation provides that it shall not be necessary to call the attesting witnesses in proof of the execution of any document, not being a will, which has been registered it: accordance with the provisions of Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. In the present case the sale agreement was not registered document and the plaintiff had produced one attesting witness only, but the other attesting witness was not called for the purpose of proving the execution of the sale agreement. The plaintiff had stated in his cross examination that one witness died four years after the execution of the sale agreement. However, he had conceded that no death certificate or any other evidence had beer, furnished to prove the death of the second attesting witness. Since calling of at lea« two attesting witnesses to prove the execution of a document, was mandatory requirement of law under Article 79 of Qanun‑e‑Shahadat, 1984, the burden was on the person who .wanted to prove the execution of document to produce the evidence that one or more attesting witnesses had died. In the absence of such evidence the requirement of Article 79 of the' Qaaun‑e­-Shahadat, 1984, would not be taken to have been fulfilled.

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

---S,115---Qanun-e-Shahadat (10 of 1984), Art 79- Revision –Scope---Execution of sale agreement---‑Proof‑‑No attesting witnesses were produced---Effect---Where the two Courts below had not adverted to the mandatory requirement of law, High Court, in revision was not precluded from taking the same into consideration.

David Lawrence for Applicant.

Respondent No. l in person.

Date of hearing: 17th December, 2002.

2003 Y L R 709

[Karachi]

Before Ghulam Rabbani, Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ

Sheikh IMRAN LIAQUAT HUSSAIN ‑‑‑Petitioner

versus

ELECTION TRIBUNAL‑1 and 2 others‑-‑Respondents

Constitutional Petition No. 1644 of 2002, decided on 20th September, 2002.

(a) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss.12 & 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Rejection of nomination papers on the ground that candidate was not proposed and seconded by voters belonging to the constituency of the candidate ‑‑‑Validity‑‑­Provision of S.12(1) of Representation of the People Act, 1976, provided that only elector of the constituency could propose or second any qualified person to be a member for that constituency and under S.12(2) of the said Act nomination papers needed to be signed by both proposer and seconder ‑‑‑Provisions of S.14(3) of the Representation of the People Act, 1976 had empowered Returning Officer, either of his own motion or upon ‑ any objection, to conduct such summary enquiry as he deemed fit and could reject nomination papers if he was satisfied that the proposer or seconder was not qualified to subscribe to the nomination papers‑‑‑Contention of candidate that Returning Officer under proviso (ii) to S.14(3) (d) of Representation of the People Act, 1976 could have allowed substitution of seconder in exercise of his discretionary powers, was repelled because under the said proviso Returning Officer could only allow rectification of defect which was not of substantial nature, but Returning Officer while processing nomination papers was not competent to allow such substitution‑‑­Nomination papers of candidate were rightly rejected by Returning Officer in circumstances.

Ishaq Dar v. The Election Tribunal (Punjab), Lahore and others KLR 1998 Civil Cases 374 ref.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss.12(4) & 14(3)(d), proviso (i)‑‑­Nomination in same constituency‑‑‑Number of nomination papers‑‑‑Person within terms of S.12(4) of Representation of the People Act, 1976, could be nominated in the same constituency by not more than five nomination papers as provided by proviso (i) to S.14(3) (d) of Representation of the People Act, 1976‑‑‑Rejection of a nomination paper would not invalidate nomination of candidate by any other valid nomination paper.

S. M. Iqbal for Petitioner.

Khursheed A. Hashmi, Dy. A.‑G.

Syed Ziauddin Nasir, Standing Counsel.

Sarwar Khan, A.A.‑G.

Date of hearing: 19th September, 2002.

2003 Y L R 715

[Karachi]

Before Muhammad Moosa K. Leghari, J

QAIM DIN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 641 of 2000, decided on 30th November, 2000.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.457/380‑-‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail, grant of ‑‑‑F.I.R. had been lodged after a delay of about eleven hours, however, it was not fatal as it was the Court property that had been stolen, therefore, the matter would have – been brought to the notice of the higher Authorities and then the F.I.R. would have been lodged‑‑‑Complainant had damaged the entire case by giving a false statement in the F. L R. and ‑ subsequently recording supplementary statement before the police just after two hours of the lodging of F. I. R. thereby controverting the contents of the F.I.R.‑‑‑Contradictory versions given by the complainant had caused fatal blow to the case of the prosecution ‑‑‑ Mashimama of recovery did not contain denomination of the currency notes alleged to have been recovered from the accused‑‑‑Recovery had been effected nearly after a month of registration of F.I.R. and fifteen days after the arrest of the accused‑‑Case of the accused calling for further inquiry, he was granted bail.

(b) Civil service‑‑‑

‑‑‑‑ Departmental proceedings‑‑‑ Criminal proceedings and departmental proceedings are distinct and different in nature, these can go side by side and will have no bearing on each other‑‑‑Even acquittal in criminal cases is no bar in conducting departmental proceedings.

Abdul Waheed Siddiqui for Applicant.

Muhammad Azeem Panhwar for the State.

2003 Y L R 721

[Karachi]

Before Sayied Saeed Ashhad, C.J., Sabihuddin Ahmed and Mushir Alam, JJ

GHULAM MURTAZA JATOI‑‑‑Petitioner

Versus

ELECTION TRIBUNAL, SUKKUR and others‑‑‑Respondents

Constitutional Petition No. 1616 of 2002, decided on 24th September, 2002.

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

‑‑‑‑S.99(1)(cc)‑‑‑Conduct of Elections Order [Chief Executive's Order No. 7 of 20021, Art‑8A ‑‑‑Nomination papers, rejection of‑‑­Candidate had claimed to have obtained "Sanads " of "Fragh " and "Shahadatul Aalmiya Fil‑Uloomul Arabia Wal Islamia " from Madarisal Anwarul Uloom Education Society, Hyderabad whereby he was eligible to contest election as he possessed Sanadldegree recognized as equivalent to a 'Bachelor Degree' as required under Art. 8A of Conduct of Elections Order, 2002‑‑‑Candidate had placed reliance on equivalence certificate issued by Assistant Registrar (General), University of Sindh‑‑­"Sanad‑e‑Fragh" and "Certificate of Shahadtul Aalmiya " issued by any or every Madarisah " or Institution was not to be considered as valid/proper Sanad/Certificate under a notification dated 25‑7‑2002 by the University but only “Wafaq-ul Madrisa/Tanzim‑ul‑Madrisa" and individual institution specified in said notification won, be competent to issue requisite "Sanads "/"Certificates " which would t recognized by University Grants Commission. and only such Sanad of "Shahadatul Aalmiya fil‑Uloomul Arabic Wal Islamic" would be considered equivalent to B.A. in Arabic/Islamic Studies ‑‑‑Validity/genuinenes of equivalence certificate issued by University of Sindh was also assailed on the ground that such certificate could have bee issued only by University Grant Commission under Art. 8A of Conduct of Elections Order 2002‑‑‑Propriety‑‑‑Sanads issued to candidal otherwise proved to be invalid as Head c; Madrasa .which allegedly issued the said Sanads was involved in forgery case‑­Candidate, in circumstances, did not posses valid Sanads which could be treated at pa with a Bachelor's Degree as envisaged in Art. 8A of Conduct of Election Order, 2002 of S.99(1)(cc) of Representation of the People Act, 1976‑‑‑Nomination papers of candidate, in circumstances, had rightly been rejected.

Abdul Hafeez Pirzada for Petition, Rasheed A. Rizvi for Respondents Nos. 6 and 7

Muhammad Younas Behan for Respondent No. 8.

Allahando shah in person.

Date of hearing : 19th September 2002

2003 Y L R 736

[Karachi]

Before Sarmad Jalal Osmany, J

ALI MARDAN‑‑‑Appellant

Versus

MUHAMMAD BUX and others‑‑‑Respondents

Criminal Acquittal Appeal No. 8 of 1998, decided on 7th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.430‑‑‑Criminal Procedure Code (V of 1898), Ss. 202 & 249‑A‑‑‑Second complaint by complainant after dismissal of first complaint and vacation of stay order granted to respondent in civil suit ‑‑‑Maintainability‑‑ Second complaint was not maintainable, as matter had attained finality after dismissal of criminal revision filed by complainant against respondent‑‑‑Second complaint had been filed after vacation of stay order, which was operative for six months‑‑‑Complainant after expiry of six months was free to obstruct respondent from using water from disputed watercourse, which; was not to say that respondent had previously not been using such water and had given a fresh cut to water course after expiry of six months‑‑‑Conviction respondent was not possible for the reason at not only matter was of civil nature being ab judice before Civil Court, but nature of offence itself was such, for which no detail had been given‑‑‑High' Court dismissed complainant's appeal filed against acquittal of respondent.

Muhammad Sadiq v. The State and others 1999 MLD 2549; Malik Muhammad Ibrahim v. The State and 4 others 1985 PCr.LJ 929; Abdul Haleem v. The State and others 1982 SCMR 988; Muhammad Akram v. Mir Afzal and 4 others 2000 MLD 862; Zafaruddin Ahmed Zubeir and 2 others v. The State and another 1999 MLD 909; Achar and 6 others v. The State 1999 PCr. LJ 181; Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904; Muhammad Salim and 4 others v. Fazal Muhammad and another 2001 SCMR 1738; Kenneth Marshal v. The State 1997 Cr.LJ 694 and Javid Hamid v. Hassam Jan and 2 others PLD 1991 Pesh. 121 ref.

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

‑‑Ss. 249‑A & 265‑K‑‑‑Acquittal of accused‑‑‑Proper stage‑‑‑Acquittal of accused could be recorded at any stage, provided Trial Court had reached conclusion that there was no possibility of any conviction.

State v. Ashiq Ali Bhutto 1993 SCMR 523 fol.

Abdul Qadir Shaikh for Appellant.

A.M. Mobeen Khan and Mumtaz Ali Siddiqui for the State.

Date of hearing: 11th October, 2001.

2003 Y L R 749

[Karachi]

Before Ghulam Rabbani, Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ

NISAR AHMED KHUHRO‑‑‑Petitioner

Versus

ELECTION TRIBUNAL‑II and 3 others‑‑‑Respondents

Constitutional Petition No.1645 of 2002, decided on 21st September, 2002.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Words used in the Statute were to be accorded their ordinary meaning unless context otherwise exhibited a different intention of the Legislature‑‑‑When question of interpretation of some penal provision of law would arise; it should be construed strictly and in case of possibility of two equally rational and logical interpretations, one favouring the subject should be preferred over the other.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S.99(1‑A) (s)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Disqualification of candidate ‑‑‑Disqualifica­tion of candidate provided under Cl. (s) of S. 99(1‑A) of Representation of the People Act, 1976, would only be attracted when the loan of two million rupees or more obtained by a candidate in his own name or in the name of his spouse or any of his dependants would remain unpaid for more than one year from due date or same was got written off‑‑­By providing loan limit of two million rupees or more Legislature had given benefit to the defaulters up to less than two million rupees and saved them from being disqualified ‑‑‑ By providing time frame of one year or more from due date, the intention of Legislature could not be construed to provide perpetual disqualification in case of default in payment of dues for one year or more‑‑‑Such proposition was strengthened by the language of para.53 of Manual of Instructions issued by Election Commission of Pakistan which had instructed the Returning Officer not to reject nomination papers of a candidate in case of clearance/payment of loan, taxes or utility charges by candidate before rejection of his nomination papers‑‑‑Candidate, in the present case, had not only disputed the loan liability, but before rejection of his nomination papers Val sum unpaid was less than Rs.2 million, orders disqualifying candidate from contesting election, were not sustainable in law‑‑‑Orders rejecting nomination papers of candidate were set aside by the High Court declaring those to be illegal.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of –High Court‑‑‑Scope‑‑‑Constitutional petition‑‑‑High Court in exercise of its Constitutional jurisdiction would not investigate into factual controversies involved in the matter.

Abdul Hafeez Pirzada and Gohar Iqbal for Petitioner.

S. Zaki Muhammad, Dy. A.‑G.

Sarwar Khan, Addl. A.‑‑G.

Date of hearing: 19th September, 2002.

2003 Y L R 785

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

PAROO alias MUHAMMAD PARIYAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No. D‑7 of 2002, heard on 24th September, 2002.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 21‑J & 23‑‑‑Penal Code (XLV of 1860), S.216‑‑Transfer of case to regular Court‑‑‑Accused stated to be harboured as envisaged by S. 21J of the Anti‑Terrorism Act, 1997, must be an accused of an offence under the said Act‑‑‑Admittedly the person alleged to be harboured by the accused had not committed any offence under the aforesaid Act‑‑‑Case pending trial before the Anti‑Terrorism Court was consequently withdrawn and transferred to ,Sessions Court.

Shaikh Abdul Ghani, M. B. Khagaija and Qurban Ali Malano for Applicant.

Sher Muhammad Shar, Assa. A.‑G.

Date of hearing: 24th September, 2002.

2003 Y L R 797

[Karachi]

Before Zahid Kurban Alvi, J

HAZAR KHAN and another‑‑‑Petitioners

Versus

THE STATE‑‑Respondent

Miscellaneous Applications Nos.928, 929, 930 and 1202 of 2002 in Criminal Jail Appeal No. S/57 of 2002, decided on 1st October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Suspension of sentence‑‑‑Accused were pursuing the case since the year 1990 and were, in Jail since the year 1999‑‑‑All the accused were involved in the incident being armed with "Lathies" and hatchets and some of them had only been convicted under S.323, P. P. C. ‑‑‑Accused were not hardened and dangerous criminals and they had fought with the complainant party only over the land which resulted in death of certain persons‑‑­Sentence of accused was suspended in circumstances and they were admitted to bail accordingly.

Asif Ali Abdul Razzak Soomro for Petitioners.

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

2003 Y L R 798

[Karachi]

Before Syed Zawar Hussain Jaffri, J

BERO alias KAREEM BUX and 5 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑593 of 2002, decided on 5th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/353/403/147/148/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑­Bail‑‑‑One accused in the. case who was already in judicial lock‑up had been shown as an accused in the present case and according to F.I.R. on his pointation the complainant party had appeared at the scene of occurrence where 16 persons were firing‑‑‑Injury sustained by the Head Constable attributed to one accused had been declared as Shujjah‑e­Khafifah which was bailable and did not fall under the prohibitory clause of S.497(1), Cr. P. C.‑‑‑Although 800 rounds had allegedly been fired during exchange of firing, yet nobody had sustained any injury nor any body was arrested at the spot on the day of incident‑‑‑State Counsel had rightly conceded in favour of accused for grant of bail‑‑­Accused were admitted to bail in circumstances.

Asif Ali Abdul Razak Soomro for Applicants.

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

2003 Y L R 833

[Karachi]

Before, Ghulam Rabbani, J

NADEEM and another‑ ‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.238 and 379 of 2002, decided on 23rd July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Accused were neither named in the F.I.R. nor any role was assigned to them ‑‑‑Co‑accused against whom suspicion was shown by the complainant and his close relatives in the F.I.R. had been let off during investigation under S.169, Cr. P. C.‑‑‑Nobody had seen the accused causing death of the deceased‑‑Only allegation in 161, Cr.P.C. statements of the relatives of the complainant was that some people had informed them that the accused were seen coming out of the place of occurrence some time before the incident‑‑­Recovery of a country‑made pistol had allegedly been made from the accused after eleven days of his arrest‑‑‑Case against accused needed further probe in circumstances and they were allowed bail accordingly.

Muhammad Khan v. The State 2001 PCr.LJ 1628; Abdul Saleem v. The State 1998 SCMR 1578 and Abdul Salam Irfan v. The State 2000 PCr. LJ 842 ref.

Shafi Muhammad Memon for Applicants (in Criminal Bail Application No.238 of 2002).

Faiz Muhammad Qureshi for Applicants (in Criminal Bail application No.379 of 2002).

Mashooque Samo, Asstt. A.‑G., Sindh.

2003 Y L R 838

[Karachi]

Before Muhammad Moosa Leghari, J

SHARIF alias MUHAMMAD SHARIF‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.697 of 2002, decided on 23rd December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Accused according to F.I.R. was empty‑handed and admittedly he did not take any active part in the commission of murder‑‑‑Specific role had been attributed to co‑accused who had allegedly fired at the deceased‑‑‑Vicarious liability of the accused could be determined by the Trial Court after recording evidence‑‑‑Case of accused fell within the ambit of further inquiry as contemplated under S. 497(2), Cr. P. C. ‑‑­Accused was admitted to bail in circumstances.

Faraz Akram v. The State 1999 SCMR 1360 ref.

Abdul Rasool Abbasi for Applicant.

Muhammad Azeem Panhwar for the State.

2003 Y L R 846

[Karachi]

Before Sarmad Jalal Osmani, J

KHALID and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.617 and 618, Miscellaneous Applications Nos. 10, 171 and 172 of 2002, decided on 29th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497/498‑‑‑Penal Code (XLV of 1860), S.337‑A(i)1337‑A(ii)/337‑F(i)/337‑H(ii)/ 147/148/114/506/504‑‑‑Bail‑‑‑Investigation was complete and challan had been submitted in the Court‑‑‑Offences with which the accused were charged were not hit by the prohibitory clause of S. 497(1), Cr. P. C. ‑‑‑Because of enmity existing between the parties, possibility of false implication of accused could not be ruled out‑‑‑Question as to who had actually caused injuries to the witness could only be determined by the Trial Court‑‑‑Bail was granted to accused in circumstances.

Shafi Muhammad Memon for Applicants.

Rasheed Ahmad Qureshi, Asstt. A.‑G. for the State.

2003 Y L R 879

[Karachi]

Before Zia Perwez, J

SHIPYARD K. DAMEN INTERNATIONAL, KARACHI‑‑‑Plaintiff

Versus

KARACHI SHIPYARD AND ENGINEERING WORKS LTD., KARACHI‑‑‑Defendant

Suit No. 1639 of 1999. and Civil Miscellaneous Application No.3083 of 2000, decided on 5th July, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VII, R.11‑‑‑Rejection of plaint‑‑‑Power of Court‑‑‑Power to reject plaint under provisions of O. VII, R.11, C. P. C. (being a penal provision), was to be construed strictly after considering statements made in the plaint in the light of law applicable‑‑‑Power to reject plaint was not to be resorted to, unless conditions for exercise for such drastic powers were fully satisfied.

Muhammad Akhtar and others v. Abdul Hadi and others 1981 ~SCMR 878; Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited and 3 others 1996 MLD 593; N.E.D. University of Engineering and Technology v. Tari Ali and 2 others PLD 1993 Kar. 626; Civil Aviation Authority, Karachi v. Data International (Data Baggage House), Karachi and 2 others PLD 1993 Kar. 700 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref.

H. A. Rehmani for Plaintiff.

Muhammad Sharif for Defendant No. 1.

2003 Y L R 882

[Karachi]

Before Sarmad J. Osmany and Faiz Muhammad Qureshi, JJ

ABUL FAIZ M. GHUFRAN ZAHIDI and others‑‑‑Appellants

Versus

MUSLIM COMMERCIAL BANK LTD. and others‑‑‑Respondents

High Court Appeal No. 116 of 1990, decided on 2nd August, 2001.

Civil Procedure Code (V of 1908)--‑‑‑

‑‑‑‑O.XXI, R.10‑‑‑Cooperative Societies Act (VII of 1925), S.55‑‑‑Execution of decree against Cooperative Society ‑‑‑Objection‑‑­Suit filed by Bank against Cooperative Housing Society having been decreed, Bank filed execution application which was disposed of as the decree had been satisfied‑‑­Objectors considering themselves aggrieved by disposal of execution application, filed objection petition‑‑‑Validity‑‑‑If the objectors had a dispute with Cooperative Housing Society concerned, their remedy lay under S.55 of Cooperative Societies Act, 1925‑‑‑. Objectors, in circumstances should follow up that matter and obtain their remedy from the Registrar Cooperative Societies.

Appellant No.1 in person.

Amir Malik for Respondent No. 1.

Jamil Ahmed for Respondent No.2.

Arif Khilji for Respondent No.3.

2003 Y L R 893

[Karachi]

Before Sabihuddin Ahmad and Zahid Kurban Alavi, JJ

MUHAMMAD SHAFI and others‑‑‑Petitioners

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petition No.580 of 2000, decided on 11th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.144‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­ Prohibitory order‑‑‑District Magistrate had. Passed prohibitory order against petitioners who were manufacturers and suppliers of 'Gutka' and 'Manpuri' and after expiry of period of two months from passing of said order, District Magistrate again passed identical order against the petitioners‑‑­ Prohibitory order under S.144(1) Cr. P. C. could be passed by District Magistrate only for a period of two months and if restriction was necessary to operate for a further period in cases of danger to human life, health, safety or there was likelihood of a riot, then only Provincial Government could pass order under S.144(6), Cr. P. C. but District Magistrate could not pass order of the same nature after expiry of two months' period from passing of .earlier order‑‑‑Order in­ competently passed by District Magistrate, was declared by High Court to be without lawful authority and of no legal effect.

Ch. Abdul Aziz v. District Magistrate, Sukkur PLD 1980 Kar. 333 and Niaz Muhammad v. District Magistrate, Bahawalpur PLD 1975 BJ 36 ref.

Raja Mir Muhammad Khan for Petitioners.

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

2003 Y L R 907

[Karachi]

Before Anwar Zaheer Jamali, J

MIR ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.435 and Miscellaneous Application No.813 of 2002, decided on 10th December, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(1), first proviso---Penal Code (XLV of 1860), S. 302/34---Bail on medical ground---Seven members of the Special Medical Board had certified that the accused was suffering from hypertension and ischaemiac heart disease and his stay in jail might be detrimental to his life---Accused was admitted to bail on medical ground in circumstances.

Zakhim Khan Masood v. State 1998 SCMR 1065 and Munawar Hussain Manj v. State 2000 SCMR 1585 rel.

Banaras v. State 1978 SCMR 191 ref.

Madad Ali Shah Syed for Applicant.

Anwar Ansari, State Counsel.

2003 Y L R 909

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

Haji AKRAM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.674 and Miscellaneous Application No. 1307 of 2002. Decided on 6th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.3021 337-A(ii)l 337-F(i)l 324/ 148/149--­Bail---Four co-accused in the case had already been released on bail by High Court on the ground that the case was of two versions, that both parties had concealed the facts and that the other party had also received injuries---Case of accused was identical with the case of said co-accused--­State Counsel in view of the legal and factual position of the case had conceded in favour of accused for grant of bail---Bail was allowed to accused in circumstances.

Abdul Salam v. The State 1980 SCMR 142; Fazil Khaliq alias Hafiz v. The State through Advocate-General 1996 SCMR 364; Shoib Mehmood Butt v. Iftakharul Haq and 3 others 1996 SCMR 1845 and Muhammad Murad v. The State 2002 PCr.L1 1051 ref.

Asif Ali Abdul Razak Soomro for Applicant.

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

2003 Y L R 914

[Karachi]

Before Rahmat Hussain Jafferi, J

BULAND SHAH and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 772 and Miscellaneous Application No. 1515 of 2002, decided on 31st December, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, grant of---Injured had leveled allegation that he had received injuries with sharp side of hatchet blow caused by accused, but said allegation was in conflict with medical evidence because according to medical certificate injured had not received any injury caused by sharp side of hatchet, but all injuries were caused by hard and blunt substances ---Co-accused in similar circumstances had already been granted bail---Accused was entitled for concession of bail do rule of consistency.

Muhammad Saleem G.N. Jessar for Applicants.

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

2003 Y L R 918

[Karachi]

Before Rahmat Hussain Jafferi, J

KHAWAND-DINO alias DADOO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.603 of 2002, decided on 31st December, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/353/148/149---Bail, grant of--­Encounter between accused and police party continued for 25 minutes, but no empties were secured from the side of police party in which complainant/police official fired 50 shots from his rifle, apart from shots fired by other Police Officials which were found to be more than 200---F. I. R. had revealed that one culprit also had a rifle---Contention that provisions of Ss.324 & 353, P. P. C: were not attracted in the case, could be thrashed out in trial but at bail stage no definite finding in that respect could be given---Accused, in circumstances, was entitled to grant of bail.

Muhammad Ayaz Soomro for Applicant.

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

2003 Y L R 923

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD IMRAN RAJA and another---Applicants

versus

THE STATE---Respondents

Criminal Bail Application No.923 and Miscellaneous Application No. 1781 of 2002, decided on 4th October, 2002.

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

----497---Penal Code (XLV of 1860), Ss.302/397/109/34---Bail---Significance of the evidence of the wife of the deceased who was yet not be examined by the Trial Court could not be underrated at such stage being of immense importance, because she was in the house at the time of incident, had seen the assailants and the deceased had also spoken to her---Two other witnesses, not examined so far, had seen the culprits while running away---Trial Court, therefore, was fully justified to decline bail to accused at such premature stage---List of the prosecution witnesses prepared separately had been appended to the challan which for all practical purposes had formed a part of the challan under S.173, Cr. P. C. on the basis of which cognizance was taken by the Trial Court---Courts of law would not recognize hyper-technicalities and would not decide bail plea on such trivial objections--,Material collected by the prosecution did not suggest that there were no reasonable grounds to believe that the accused were prima facie, not responsible for the offences charged with--­Bail was declined to accused in circumstances.

Mahboob Khan v. State 2002 PCr.LJ 340 and Abdullah Shah v. State PLD 1962 Kar. 633 distinguished.

(b) Bail---

---- Hypertechnicalities are not to be recognized by Courts while deciding bail matters.

Amanullah Khan, for Applicants.

Habib Ahmad, Asstt. A.-G. for the State.

2003 Y L R 927

[Karachi]

Before Muhammad Moosa K. Leghari, J

JUMAN---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.47 of 1996, decided on 22nd October, 2002.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence--­Investigation conducted in the cognizable offence before the registration of the F.I.R. had rendered the entire proceedings patently illegal---Sole eye-witness in the case had nor supported the prosecution case---Judicial confession of accused was not only delayed but was also not recorded in a lawful manner---Admission of the recovery Witness in the Court that his signatures had been obtained by the police on all the recover, memos. at the Police Station had made the recovery of the crime weapon valueless--­Inordinate and unexplained delay in sending the crime weapon to the Chemical Examiner had rendered his report absolutely inconsequential---Trial Court despite having serious doubts about the guilt of accused had convicted him in gross violation of the established principles of dispensation of criminal justice and such approach was quite harmful---Impugned judgment having been recorded in disregard of law and against evidence was patenty illegal and the same was consequently set aside---Accused was acquitted accordingly.

Appellant in person.

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

Date of hearing: 26th July, 2002.

2003 Y L R 930

[Karachi]

Before Sarmad Jalal Osmany, J

ABBAS ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.215 of 2000, decided on 22nd May, 2002.

Penal Code (XLV of 1860)---

----S.302(b)/34---Appreciation of evidence--­Contradictions were found in ocular account, the foremost being the time of lodging of F.I.R. and time of arrival of police at tire place of accident as given by prosecution witnesses and Investigating Officer---FI.R. besides three accused nominated three others but in deposition of eye-witnesses only three accused were present at the scene of incident and had caused murder of deceased---Said said other three co-accused had been added by the Police on their own---Said version of eye-witnesses had been corroborated by one of the prosecution witnesses in his statement under S.164, Cr.P.C.---Motive as given in F. I. R. was enmity between parties as accused party had held responsible the relative of complainant party having committed murder of a person of accused party---Doctor who conducted post-mortem of two deceased in his report had stated that deceased had received injuries- on their heads with hard substances such as, Lathi or Danda and that time between death and post-mortem was about 12 to 13 hours---Said piece of medical evidence had corroborated ocular evidence--­Recoveries had also corroborated ocular version---Corroboration of ocular version by way of medical report and recoveries, however, was not sufficient in circumstances of the case when recoveries in question were not made either from the accused or at his stance, but were found lying at place of incident---All prosecution witnesses were related inter se and in background of enmity between parties, independent corroboration was necessary as witnesses were also chance witnesses, but such corroboration was not forthcoming at all because prosecution had failed to examine natural witnesses who admittedly were available as scene of crime was only a short distance away from . a populated village and a hotel was also situated nearby---Incident occurred at about sunset in failing day light and as per prosecution version deceased were walking about 75 feet ahead of eye-witnesses, it would thus be difficult to recognize assailants who attacked and murdered deceased at that distance at about sunset time---Prosecution, in circumstances, had failed to establish its case against accused beyond any shadow of doubt --- Judgment of Trial Court was set aside and accused was acquired and was ordered to be released.

Ata Muhammad v. The State 199:­SCMR 599; Inamuddin v. The State 199: NLR 656; Ghulam Qasim v. The State 199 PCr.LJ 1652; Muhammad Achar v. The State 1991 PCr.LJ 522; Riaz Ahmed v. The State 1994 PCr.LJ 1044; Ghulartl Nabi v. The State 2001 PCr.LJ 1859: State v. Muhammad Shareef 1995 SCMk 635 and Sajjad Hussain v. The State 1997 SCMR 174 ref.

H. B. Solangi for Appellant.

Javed Akhtar for the State

Dates of hearing: 23rd November 2001; 21st, 28th January 4th and 11th February, 2002.

2003 Y L R 936

[Karachi]

Before Muhammad Sadiq Leghari, J

MUNAWAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.262 of 2002, heard on 19th September, 2002.

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

----S. 87---Absconding of accused--­Presumption of guilt---Proceedings for declaring accused as proclaimed offender under S. 87, Cr. P. C. ---Not essential for treating such accused as absconder for purpose of raising any presumption of guilt against him.

PLD 1978 SC 102 fol.

PLD 1969 Kar. 200 not approved.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had played very important and vital role in the incident, though he was not alleged to have fired at or caused any injury to the deceased---Accused had brought his brother (co-accused) duly equipped with pistol at the venue of offence and after giving a chase to the victim, he had taken away his brother--- Accused in such events could not be said to be on innocent mission while being with his brother---Section 34, P.P.C. was fully attracted to the case---Concession of bail was refused to the accused.

1994 SCMR 2161 and 2001 PCr.LJ 1349 ref.

Mushtaque Hussain Shah and Nusrat Hussain Memon for Applicants.

Muhammad Sadiq Ansari for the Complainant.

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

Date of hearing: 19th September, 2002.

2003 Y L R 943

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

IMRAN RAZA SHAIKH and 5 others---Appellants

versus

Mst. ZARINA GUL and 4 others---Respondents

High Court Appeal No. 173 of 2002, decided on 6th November, 2002.

(a) Karachi Development Authority Order [P.O. 5 of 1957]---

----Arr.131---Suit against Karachi Development Authority---Written notice---Pre-condition---Bar contained under Art, 131 of Karachi Development Authority Order, 1957, is that the proceedings cannot be initiated bra a person against Karachi Development Authority, if the Authority is not put to notice of such proceedings and a period of one month has not lapsed from the date of service of such notice on the Karachi Development Authority.

(b) Karachi Development Authority Order [P.O. 5 of 1957]---

----Art.131---Civil Procedure Code (V of 1908), O.VII, R.11---Suit against Karachi Development Authority--- Plaint, rejection of---Mandatory notice---Plea of non­compliance of Art.131, Karachi Development Authority Order, 1957 raised by only private defendants---Trial Court, on such plea rejected the plaint under O. VII, R.11 C.P.C.---Plaintiffs before filing of the suit, had addressed a notice through their counsel to Karachi Development Authority stating therein that the plaintiffs being neighbour were concerned about the illegal conversion for the residential premises into commercial b, the private defendant---Plaintiffs had clearly. stated in the notice that establishing school in the premises was violative of the terms of Karachi Development Authority lease and ii: case the derivate defendant failed to give up the idea of opening the school, the plaintiff would approach High Court by impending, Karachi Development Authority as one of the parties who was bound to take immediate action against the violation of the terms of their lease against the owner of the premises---Copy of the notice was endorsed to the Karachi Development Authority as well a., to the Cantonment Board who were, defendants in the suit---Contention of the plaintiffs was that the Trial Court ha," wrongly rejected the plaint as the plea of bar contained in Art. 131 of Karachi Developer Authority Order, 1957, was not raised by the authority itself---Validity---Endorsement such notice upon Karachi Development Authority was substantial compliance of Art.131 of Karachi Development Authority Order, 1957---Bar contemplated under Art.131 of Karachi Development Authority Order, 1957, could only be invoked by Karachi Development. Authority itself and the benefit of the provision could not be extended to cover the private defendants if they were arrayed as defendants---Order of rejecting the plaint by the Trial Court was set aside by High Court.

Vellayan Chettiar v. Madras Province PLD 1947 PC 160; Mrs. A.V. Isaacs v. Federation of Pakistan PLD 1954 Lah.800; Federation of Pakistan v. Ehsan Elahi PLD 1955 Lah.303; Muhamamd Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785; National Bank of Pakistan v. Fakir Muhammad PLD 1977 Kar.256; Karachi Development Authority v. Evacuee Trust Board PLD 1984 Kar.34; Muhamamd Rashid Bhatti v. K.D.A. PLD 1986 Kar. 130; Orangi Pilot Project v. M.A.J.Z.A.T. (Regd.) 1987 MLD 541; Institute of Bankers in Pak. v. Zainul Abedin 1987 MLD 549; Zainab Hajiani v. Al-Hilal Cooperative Housing Society Ltd. PLD 1978 Kar.848; Pakistan Railways v. K.D.A. PLD 1992 Kar.71; Zia-ur-Rehman Alvi v. Allahabad Cooperative Housing Society Ltd. PLD 1995 Kar.399; National Fibres Ltd. v. Karachi Development Authority 1996 MLD 76 and Sualeh Sons (Private) Ltd. v. Karachi Development Authority 1997 CLC 893 ref.

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

----O.VII, R.II---Plaint, rejection of---Suit barred under law against one of the defendants---Principles---Plaint cannot be rejected in parts---If, in a suit, there are more than one defendants and the suit, is barred either under some law or otherwise against one of the defendants only, such defendant can be struck off from the array of defendants---Plaintiff cannot be required to file fresh suit against those defendants against whom the proceedings were not barred under any provision of law.

Samiuddin Sami for Appellants.

Saeeduddin Nasir for Respondents Nos. l and 2.

Date of hearing: 6th November, 2002.

2003 Y L R 961

[Karachi]

Before Ghulam Nabi Soomro, J

MUHAMMAD SHAFI‑‑‑Petitioner

Versus

ABDUL RASHEED and others‑‑ ‑Respondents

Constitutional Petition No.S‑1107 of 2001 and Civil Miscellaneous Applications Nos.2335, 2336 of 2002, decided on 18th October, 2002.

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

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Bona fide personal need of landlord‑‑‑Default in payment of monthly rent‑‑‑Concurrent findings of fact by the Courts below‑‑‑Landlords had no other property and one of them had been working in motor workshop for last ten years‑‑‑Tenant admitted that the landlord wanted to start 4he business of motor workshop in the premises‑‑­Rent was remitted by the tenant through money order after filing of the case‑‑‑Rent Controller allowed the ejectment application and the eviction order was maintained by the Appellate Court‑‑‑Validity‑‑‑Concurrent findings record by the competent forums below on both the issues, which were evidently issues of fact, did not suffer from any legal infirmity, nor raised any question of law‑‑‑Finding on the issues did not call for any interference by High Court in the Constitutional jurisdiction‑‑‑Bona fide personal requirement of the landlords in respect of the shop in question had been adjudicated as proved‑‑‑Concurrent findings of the Courts of competent jurisdiction were maintained by High Court.

1988 CLC 1041; PLD 1985 Kar 741 and 1983 CLC 237 distinguished.

2001 CLC 548; 2001 CLC 494 and 2001 MLD 548 ref.

Abdul Qadir Shaikh and Abdul Ghafoor Mirani for Petitioner.

Muhammad Nawaz Kolachi for Respondents.

Date of hearing: 20th September, 2002.

ORDER

Respondent Abdul Rasheed and three other co‑respondents/landlords filed an ejectment application against the petitioner Muhammad Shafi, on the ground that shop on the ground floor of city survey plot No. D 611 situated at Shikarpur Road, Sukkur was required for their personal use and occupation and also on the ground of default for 35 months i.e. from January, 1986 to November, 1988 and that the cause of action arose in the first month of 1986 when the petitioner failed to pay the rent, at the rate of Rs.200 per month which he used to pay; but after 1985 December, he failed to pay the rent and consequently the respondents were constrained to file ejectment application before the Rent Controller. The matter was contested by the petitioner‑tenant, who in his written statement stated that he was a tenant of the shop in question since 1948, at the rate of Rs.20 per month which rent money he used to pay to Abdul Hameed, the predecessor‑in‑interest of the respondents. His case was that no written receipts used to be issued to him. He also denied that he was a defaulter in the payment of rent and also the personal bona fide use of the shop in question by the respondents. The learned Rent Contor1ler on the pleadings of the parties framed the following issues:‑‑

(1) Whether the opponent has committed wilful default in payment of rent?

(2) Whether the disputed shop required for personal use of the applicant No.3 in good faith after reconstruction?

(3) What should the order be?

The parties led evidence in support of their cases. Accordingly the respondents Abdul Rasheed and Abdul Hafeez filed their own affidavits in support of their case whereas the petitioner‑tenant Muhammad Shafi filed his own affidavit only in support of his case.

The learned Rent Controller found both the issues in favour of the respondents and allowed the application, directing the petitioner to vacate the disputed shop within three months from the date of the order. The petitioner filed F.R.A. No.53 of 1993 before this Court which in view of amendment vide Sindh Ordinance No.XIV of 2001 was sent to the District Judge for disposal, in accordance with law, where the F.R.A. was renumbered as Rent Appeal No.21 of 2000. In the appeal the order of the Rent Controller was maintained and the petitioner's appeal was dismissed. Hence this petition under Article 199 of the Constitution (1973).

Learned counsel appearing in support of the petitioner has mainly contended that there are contradictions in the evidence of the respondents and same were not properly noticed and appraised. Had the same been properly examined the decisions would have been the reverse to the impugned one. And that the two Courts below have acted in excess of their jurisdiction. Reliance was placed on: 1988 CLC 1041, PLD 1985 Karachi 741 and 1983 CLC 237.

The contention on behalf of the respondents was that the learned lower Courts have properly exercised their jurisdiction and have not committed any error in appreciating the evidence on record. Reliance was placed upon: 2001 CLC 548; 2001 CLC 494 and 2001 MLD 548.

I have heard the learned counsel for the parties and examined their contentions. The respondent Abdul Hafeez has stated that "We require the said premises for personal bona fide need as I am working presently in a motor workshop at Sukka Talaab but now I want to start my motor workshop in the said shop. That I am well‑experienced, and competent in the said mechanical work: I have sufficient money to start my workshop". He has further stated that the opponent‑tenant has committed wilful default in payment of rent since month of January till date. And that in spite of repeated requests and promises the opponent has failed to pay the rent and arrears of the shop in question. Similar is the evidence of the respondent Abdul Rasheed. It has, however, come in cross‑examination of the above two respondents that their father Abdul Hameed died in the year 1976. The opponent was a tenant at the rate of Rs.20 per month and he used to pay the rent at the same rate of Rs.20 to the respondent Abdul Rasheed regularly. It has also come in cross­examination that the respondents have no other property and that the respondent Abdul Hafeez is working in motor workshop since about ten years.

The petitioner on the other hand has not denied that the applicant Abdul Hafeez does not want to start the business of motor workshop in the disputed (sic) vacated from the opponent". He has also admitted that "it is a fact that I have remitted the money order after filing of this case".

The above statement of the petitioner has in actual fact supported the case of the respondents. The concurrent findings recorded by the competent forums below, on both the issues, which are evidently issues of fact do not suffer from any legal infirmity, riot give rise to any question of law. Such finding on the above issues does not call for any interference by this Court in its Constitutional jurisdiction. The bona fide personal requirement of the respondents in respect of the shop in question has been adjudicated as proved as aforesaid. Resultantly the petition being without merit is dismissed along-with listed applications with no order as to costs. The above petition was disposed of by a short wider, dated 20‑9‑2002 and these are the reasons for the same.

Q.M.H./M‑433/K Petition dismissed.

2003 Y L R 974

[Karachi]

Before Zia Perwez, J

QADIR BUX and others‑‑‑Appellants

Versus

NAWAZ ALI and others‑‑‑Respondents

First Appeal No.61 of 1997, decided on 22nd October, 2002.

(a) Islamic Law‑‑‑

‑‑‑‑ Pre‑emption‑‑‑ Shafi‑i‑Khalit‑‑‑ Proof‑‑­Pre‑emptors had not produced any map or any witness to prove that their lands were situated on the same watercourse as of the suit lands ‑‑‑Pre‑emptors failed to prove their right of pre‑emption as Shafi‑i‑Khalit in circumstances.

(b) Islamic Law‑‑‑

‑‑‑‑ Pre‑emption‑‑ Talb‑i‑Ishhad‑‑‑ Necessary ingredients‑‑‑While making the second demand (Talb‑i‑Ishhad), reference to the first demand (Talb‑i‑Muwathibat) is to be expressly made ‑‑‑Talb‑i‑Ishhad without making reference to Talb‑e‑Muwathibat is not a valid Talb‑i‑Ishhad.

Jadal v. Abdul Majeed PLD 1978 Kar. 732 ref.

(c) Islamic Law ‑‑‑

‑‑‑‑Pre‑emption‑‑‑Exercise of right of pre­emption ‑‑‑More than one pre‑emptors ‑‑‑Non­appearance of all pre‑emptors before the Trial Court‑‑‑Three pre‑emptors had jointly filed the suit‑‑‑Three pre‑emptors were in the suit and only one of them appeared in the witness‑box to prove his right of pre‑emption supported by two witnesses‑‑‑Other two pre­emptors neither appeared to depose before the Trial Court nor any satisfactory explanation for their non‑appearance had been pointed out from the record‑‑‑Such non‑appearance of the two pre‑emptors before the Trial Court was violative of Islamic law on the subject.

Muharnmadan Law by Sir D. F. Mullah, S.235 ref.

(d) Islamic Law ‑‑‑

‑‑‑‑Pre‑emption‑‑‑Talb‑i‑Muwathibat and Talb‑i‑Ishhad‑‑‑ Proof‑‑‑Three pre‑emptors had jointly filed the pre‑eruption suit and only one appeared before the Trial Court as witness‑‑‑Effect‑‑‑Pre‑emptor who appeared as witness had simply used the singular pronoun 'I' in examination‑in‑chief as well as in cross‑examination which showed that he had only made demand on his own behalf ‑‑If the pre‑emptor was also making demand on behalf of other pre‑emptors then he should have disclosed his authority as well as specifically made the demand on behalf of other pre‑emptors ‑‑‑Other two pre‑emptors had not made any demand (Talb)‑‑‑Pre­emptors and their witnesses had failed to specifically state that they had made Talb‑i-­Muwathibat and Talb‑i‑Ishhad‑‑‑Talb‑i­Muwathibat was to be made at the earliest possible opportunity and at the time of making Talb‑i‑Ishhad, reference to Talb‑i-­Muwathibat was necessary to be made‑‑­Mandatory demands (Talb) were not proved in circumstances.

Hussain Bux v. Mir Muhammad and others PLD 1985 Kar. 161; Budho v. Karim Bux and others 1985 CLC 1037; and Nazar Hussain Shah and others v. Mst. Khurshid Bibi and others 2002 SCMR 49; Loung through L.Rs. v. Dur Muhammad and another PLD 1987 Kar. 515; Mst. Akbari Begum v. Nadeem Ahmad and others 1993 CLC 353; Muhammadan Law by Sir D. F. Mullah, S.235; Jadal v. Abdul Majeed PLD 1978 Kar. 732; Ghulam Jilani and others v. Ghulam Muhammad and others 1991 SCMR 2001 and Syed Muhammad Munir and another v. Member (Judicial), Board of Revenue, Punjab and others PLD 1972 SC 346 ref.

(e) Islamic Law ‑‑‑

‑‑‑‑Pre‑emption‑‑‑Suit under‑valued‑‑‑Three pre‑emptors had jointly filed the suit and only one appeared before the Trial Court as witness ‑‑‑Vendee objected to the valuation of the suit‑‑‑Trial Court after having found the suit under‑valued, dismissed the same‑‑­Contention of the pre‑emptors was that the Trial Court instead of dismissing the suit, should have provided an opportunity to make up the deficiency in court‑fee ‑‑‑Validity‑‑­Valuation of the suit land was not fixed bona fide and same was aimed at pressurizing the vendees for the ulterior motives‑‑‑Trial Court had rightly found that the suit at the time it was instituted and at the time when the issues were framed was under‑valued‑‑‑High Court maintained the findings of the Trial Court, and declined to interfere with the judgment and decree passed by the Trial Court.

Muhammad Saleem for Appellants.

K. B. Bhutto for Respondents.

Date of hearing: 15th June, 2002.

2003 Y L R 1086

[Karachi]

Before Zia Perwez, J

SHENI C.B.B. and others‑‑‑Plaintiffs

Versus

K.B.C.A. and others‑‑‑Defendants

Suit No.958 and Civil Miscellaneous Application No. 6417 of 2002, decided on 21st October, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & SS‑‑‑Sindh Buildings Control Ordinance (V of 1979), Ss.6(2) & 20‑‑­Karachi Building and Town Planning Regulations, 2002, Ss.6(1), 6(2) & Sehed., Conditions 4a, 4b‑‑‑Suit for declaration and permanent injunction in respect of construction of a commercial building after conversion of plot‑‑‑Application for restraining defendants from construction during pendency of suit‑‑‑Construction in question had been raised in accordance with the approved building plans; no additional construction in violation of the building plans had been raised; one of the defendants after purchase of the property was already enjoying the title under duly executed documents; property was situated on a main road already commercialised to a great extent; though the plaintiffs were residents of the same Society, they were not the immediate neighbours; the regularisation plan had already been submitted; provisions of relevant law had not only been complied with but in pursuance of the objections the construction in question was sealed by the Authorities on more than one occasion and it was only after a detailed inquiry and consideration that the construction was de-sealed; plaintiffs were fully aware of the conversion of the plot throughout but allowed significant time to elapse before challenging the same‑‑‑Held, allowing the application for permanent injunction to restrain the Authorities from exercising the powers conferred upon them at this stage would be contrary to the public purpose for which the special law viz. the Sindh Buildings Control Ordinance, 1979 had been enacted‑‑‑Defendant who was owner of the building, however, was restrained from allowing any further occupation of the building in contravention of S.6(2) of Sindh Buildings Control Ordinance, 1979 till such time as the occupancy certificate, as required under S.6 (2) of the Ordinance, was issued by the Authority‑‑‑Provisions of S.20, Sindh Buildings Control Ordinance, 1979 were not attracted to the case of Authorities and the party enjoying title and occupying the premises on purchase from the owner.

Abdul Razak v. Karachi Buildings Control Authority and others PLD 1994 SC 512; PLD 2001 SC 514; 2001 MLD 1101; 2001 CLC 1187; 1990 MLD 563; PLD 1963 SC 486; PLD 1961 SC 105; 1995 SCMR 723; 1985 CLC 974; 1993 MLD 521; 1987 SCMR 1119; PLD 1990 Kar. 9; 1997 MLD 1934; 1999 MLD 175; 1999 MLD 331; 1999 MLD 268; 1998 MLD 1278; 1987 CLC 558; 1990 CLC 83; 1993 SCMR 1510; 1999 MLD 3209; 1990 CLC 448; PLD 1998 Kar. 283; 1993 SCMR 1654; 1995 SCMR 339; 1994 SCMR 279; 1997 SCMR 1901; 1991 SCMR 483; PLD 1972 SC 279; PLD 1983 Kar. 387; PLD 1994 SC 512; AIR 1969 SC 430; AIR 1957 SC 529; (1975) 1 All ER, 2001 MLD 92; 2001 MLD 224; 1999 MLD 3209; PLD 1998 Kar. 373; PLD 1973 SC 49; PLD 1989 SC 26; 1998 MLD 1771; 1999 MLD 3199; 1992 MLD 527; 1999 SCMR 2883; PLD 1988 Kar. 283; 1996 CLC 417; 2001 CLC 1312; 2000 SCMR 1748; 1992 CLC 2540; PLD 1993 Kar. 631; Ghulam Muhammad and others v. Hafiz Ahmad and others PLD 1960 Lah. 1179 and Muhammad Siddiq v. Punjab Province and others PLD 1958 Lah. 458 distinguished.

Naeem‑ur‑Rehman and Ms. Rizwana Ismail for Plaintiffs.

Ms. Zahida Naqvi for Defendant

Aziz Malik for Defendant No.5.

Liaquat Merchant for Defendant No.6.

2003 Y L R 1093

[Karachi]

Before Muhammad Afzal Soomro, J

Mst. NASREEN BEGUM‑‑‑Petitioner

Versus

ABDUL RASHID and another‑‑‑Respondents

Constitutional Petition No.750 of 2002.

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

‑‑S. 15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Bona fide personal need of landlady‑‑‑No prayer for ejectment of tenant, from rented premises was made, which was mandatory requirement of filing rent application solely on ground of personal bona fide use‑‑‑Landlady after death of her husband had got rent enhanced on humanitarian grounds before expiry of legal period for increasing rent‑‑‑Security amount demanded thereafter from tenant had also been paid to the landlady‑‑‑Such facts suggested that demised premises was not required by landlady for personal bona fide need of her son, otherwise she would not have demanded enhancement of rent and further security amount from the tenant‑‑­Landlady had failed to establish bona fide personal use of demised premises‑‑‑Rent application had rightly been dismissed by the Courts below‑‑‑High Court dismissed Constitutional petition being devoid of merit.

Muhammad Aslam's case 1987 CLC 686 and Mst. Shamim Akhtar's case 1998 CLC 410 ref.

A.M. Mobeen Khan for Petitioner.

2003 Y L R 1101

[Karachi]

Before Muhammad Sadiq Leghari, J

SIRAJ KHAN‑‑‑Appellant

Versus

TAJ MUHAMMAD ‑‑‑Respondent

First Rent Appeal No.427 of 1995, heard on 5th September, 2002.

(a) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17(4)‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Landlord did not examine himself, but his attorney deposed on question of his personal need‑‑‑Validity‑‑‑Examination of landlord was not essential for establishing such plea‑‑‑Landlord was only required to substantiate such plea by producing satisfactory admissible evidence.

1984 CLC 3093 ref.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17(2)‑‑‑Default in payment of rent‑‑­Security deposit, adjustment of ‑‑‑Scope‑‑­After expiry of tenancy agreement, security deposit could not be adjusted towards defaulted rent‑‑‑Adjusting security against default was impermissible and unlawful—­Default would remain as such, notwithstanding security deposit with landlord‑‑‑Covenant in each agreement as to security would' be construed according to agreement itself‑‑‑Where agreement contained that advance security would not, be returned before expiry of period of tenancy, then same could not be adjusted towards arrears of rent absolving tenant's liability from eviction for default in payment of rent.

PLD 1988 SC 190 ref.

(c) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17(2)‑‑‑Default in payment of rent‑‑­Termination of agreement of tenancy‑‑­Effect‑‑‑Despite expiry of period of rent agreement, terms thereof would not totally become irrelevant for regulating tenancy‑‑­When terms of expired agreement governed tenancy, then default in payment of rent within fifteen days of expiry of time fixed for payment would be valid ground for ejectment ‑‑‑Even assuming that terms of expired agreement did not regulate tenancy, then non‑payment of rent within sixty days from the due date would warrant eviction.

PLD 1976 Kar. 1075; 1996 CLC 16 and PLD 1957 (W. P.) Kar. 204 ref.

PLD 1988 SC 190 rel.

Ashraf Hussain Rizvi for Appellant.

Muhammad Sher Awan for Respondent.

Date of hearing; 5th September, 2002.

2003 Y L R 1109

[Karachi]

Before Khilji Arif Hussain, J

Mrs. YASMEEN‑‑‑Plaintiff

Versus

Messrs BEACH DEVELOPERS through Managing Director and another‑‑‑Defendants

Suit No.1151 and Civil Miscellaneous Application No. 10578 of 1999, decided on 18th December, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 2(a)‑‑‑Contract Act (IX of 1872), Ss. 2(e), 11, 14 & 29‑‑‑Arbitration agreement‑ Essentials‑‑‑ Arbitration agreement or an arbitration clause in an agreement was like an agreement between parties, which required that same should be executed with consent of parties competent to contract‑‑‑Contracting parties must be shown to be at ad idem with reference to essential terms of contract‑‑‑Contract would fail, if there was any vagueness or uncertainty incapable of being made certain.

(b) Pakistan Defence Officers' Housing Authority Order (7 of 1980)‑‑‑

‑‑‑‑Arts. 2(b) & 4‑‑‑Authority constituted under the Presidential Order‑‑‑Not a person, but a body corporate‑‑‑Management of such body corporate vested in Governing Body consisting of Secretary‑General, Ministry of Defence as Chairman, Vice‑Chief of Staff of three services or one Principal Staff Officer from each of three services to be nominated by respective Chiefs etc.

(c) Arbitration---

----Arbitrator---Corporate body is a legal person and cannot act as arbitrator as its constitution can be changed at any time‑‑­Only a natural person(s) can act as arbitrator, so as to hear parties and give decision/award after applying mind to same.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑Stay of suit for referring dispute to arbitration‑‑‑Arbitration clause in agreement was vague, uncertain and parties were not ad idem about definition of term "Authority", and as to which "Authority", had to act as arbitrator‑‑‑Corporate body could not act as an arbitrator‑‑‑Pakistan Defence Officers' Housing Authority was not party to such agreement between plaintiff (allottee) and defendant (builders)‑‑‑Application under S.34 of Arbitration Act, 1940 by defendant Housing Authority was not maintainable‑‑­Application was dismissed.

Mustafa Lakhani for Plaintiff.

Zamiruddin for Defendant.

Date of hearing: 19th November, 2002.

2003 Y L R 1121

[Karachi]

Before Muhammad Moosa K. Leghari, J

YASEEN and others‑‑‑Applicants

Versus

KALU alias HASHIM ALI and others‑‑‑Respondents

Revision Application No. 144 of 1987, decided on 15th November, 2002.

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

‑‑‑‑O. XLVII, R.1 & S.9‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 25‑‑‑Review of decree‑‑‑Suit for declaration that plaintiffs as legal heirs of deceased were entitled to inherit evacuee property allotted to him‑‑‑Trial Court on 30‑3‑1972 dismissed suit for want of jurisdiction and proof, but successor Judge while allowing review application decreed the suit‑‑‑Appeal filed by defendants was dismissed by Appellate Court ‑‑‑Validity‑‑‑Heirship of deceased had already been determined by Settlement Authorities being competent to determine same as provided under S.10 of Displaced Persons (Land Settlement) Act, 1958‑‑‑Trial Court in its judgment, dated 30‑3‑1972 had rightly observed that declaration sought by plaintiffs, if given, would render such decision of Rehabilitation Authorities in regard to inheritance as ineffective; plaintiffs had not alleged in plaint that Rehabilitation Authorities had acted mala fide or contrary to legal provisions; and that jurisdiction of Civil Court was barred‑‑‑Re‑hearing of case by Reviewing Judge was beyond scope of review‑‑‑Review could not be equated with remedy of appeal‑‑‑Reviewing Judge had committed gross illegality in observing that same was an error of law‑‑‑Even an error of law would not confer jurisdiction upon Reviewing Judge to re-appreciate evidence already minutely discussed by his predecessor, who had passed judgment on merits and dismissed suit‑‑‑Reconsideration and re‑appreciation of evidence on record in review proceedings was an illegality‑‑­Appellate Court had repeated findings recorded by Reviewing Judge and had not applied its own independent mind to matter‑‑­Impugned judgments were erroneous having resulted in miscarriage of justice‑‑‑Courts below had committed jurisdictional defects rendering thereby perverse judgments‑‑‑High Court accepted revision petition and set aside impugned judgments, resultantly suit stood dismissed.

1991 MLD 1456; PLD 1998 Lah. 239 and PLD 1988 Kar. 261 ref.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑S. ‑ 25‑‑‑Jurisdiction of Civil C'ourt‑‑­Specifically barred in matters relating to Settlement Authorities.

PLD. 1965 Lah. 580; PLD 1960 SC 229 and Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR 829 ref.

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

‑‑‑‑O. XLVII, R. 1 ‑‑‑Review‑‑‑Scope‑‑‑Scope of review is very limited as apparent from plain reading of O. XLVII, C. P. C. itself.

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

‑‑‑‑O. XLVII, R.1‑‑‑Review‑‑‑Scope‑‑‑Review is not an appeal and cannot be allowed to be treated as an appeal‑‑‑Ground that Court had fallen into error in deciding on a particular question or that a new ground, which could have been urged, was not urged at original hearing, would not be a ground for review­--Review is not a rehearing of Case‑‑‑Review is available only in certain special circumstances, namely, where some relevant evidence has been discovered, which could not, in spite of due diligence, have been known to party or be produced at time of hearing or Court has overlooked some material questions of fact or law, which would have a bearing on decision or there is otherwise some apparent mistake or error on the face of record.

1975 SCMR 115 and Muhammad Ramzan's case 2002 SCMR 1336 ref.

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

‑‑‑‑O. XLVII, R.1‑‑‑Review‑‑‑Scope‑‑‑Neither arguments previously canvassed can be re­examined nor the material or evidence previously considered can be reconsidered in review proceedings.

Mazhar Hussain v. Mst. Zohra Bibi PLD 1990 SC 924 rel.

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

‑‑‑‑O. XLVII, R.1‑‑‑Review‑‑‑Scope‑‑­Rehearing of case is beyond scope of review as contemplated in O.XLVII, R.1, C. P. C. ‑‑­Review cannot be equated with remedy of appeal.

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

‑‑‑‑O. XLVII, R.1‑‑‑Review‑‑‑Scope‑‑‑Even an error of law would not confer jurisdiction upon Reviewing Judge to re-appreciate evidence already discussed by his predecessor.

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

‑‑‑‑O. XLVII, R.1‑‑‑Review‑‑‑Scope‑‑­Reconsideration and re-appreciation of evidence on record in review proceedings is an illegality.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Meant to rectify errors made by subordinate Courts.

Hassan Mehmood Baig for Applicants.

Nemo for Respondents.

Date of hearing: 15th November, 2002.

2003 Y L R 1133

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

NAWAB ALI alias NAWAB‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 122 of 2002, heard on 8th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail, grant of‑‑‑Counter cases‑‑­Accused persons in both the cases were acquitted except one accused‑‑‑Only adverse factor against said accused was his abscondence‑‑‑Case of the accused was identical to case of accused persons who had been acquitted on similar charge‑‑­Abscondence of the accused in circumstances of case would not be treated as a bar to his release on bail.

Raja Ram Mandhyan for Applicant.

Sher Muhammad Sher, A.‑A.G. for

ORDER

2003 Y L R 1137

[Karachi]

Before Rehmat Hussain Jafferi, J

NAZEER and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑07 of 2003, heard on 28th January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss. 324/114/34‑‑‑Pre‑arrest bail, confirmation of‑‑‑Prosecution had stated that injured had received only one injury on his shoulder which was swelling and accused had not caused any injury to the injured‑‑‑Role assigned to the accused was yet to be determined at the time of trial as no empty bullet was secured from the Wardat to prove the fact of firing from the rifle of accused‑‑‑No empty having been secured from the Wardat, question of firing from rifle of one of the accused was yet to be determined at the trial‑‑‑Allegation against other accused was only proverbial instigation and no specific role was assigned to him‑­Old enmity existed between the parties‑‑‑All such points were to be thrashed out at the time of trial and case was made out for grant of bail to the accused‑‑‑State having no objection to confirmation of bail‑‑‑Interim pre‑arrest bail already granted to accused, was confirmed, in circumstances.

Muhammad Saleem C.N. Jessar for Applicants.

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

2003 Y L R 1142

[Karachi]

Before Muhammad Sadiq Leghari, J

ZAFAR ALI LASHARI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 34 of 2003, decided on 21st January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of ‑‑‑F.I.R. was registered two months after the incident‑‑‑Role attributed to accused was only of his presence with Danda and he was not alleged to have used that weapon ‑‑‑Co‑accused allegedly armed with rifle had already been released on bail‑‑‑Accused too in circumstances, had a case for bail‑‑‑Bail was granted to accused.

Abdul Rasool Abbasi for Applicant.

Anwar Ansari for the State.

2003 Y L R 1143(2)

[Karachi]

Before Atta‑ur‑Rehman, J

AFSREEN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No. 131 of 2002, decided on 10th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497(5), 497 & 439‑‑‑Bail grant of‑‑­Bail was cancelled on the affidavit of widow of the deceased to the effect that the accused were issuing threats to her and that the accused were delaying the decision of the case‑‑‑Validity‑‑‑No police report had been filed to substantiate the said affidavit‑‑‑Case diaries showed that on most of the occasions the case was adjounred for non‑issuance of process or absence of the witnesses‑‑‑One witness was present on the date and case was adjounred as counsel of accused was to appear before another Court‑‑‑Order of cancellation of bail was set aside and accused were granted bail in circumstances‑‑‑Bail would be deemed to have been automatically cancelled if any further adjournment was sought.

Khalil ‑ur‑Rehman for Applicant.

Fazalur Rehman for the State.

2003 Y L R 1149

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD SALEEM and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 471 of 2001, decided on 6th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 117(3)‑‑‑Prevention of breach of peace or disturbance of public tranquillity‑‑‑Bare possibility and breach of peace was not sufficient to justify the proceedings under S.117(3), Cr.P.C.‑‑‑At least a reasonable probability of such breach was a must to be established by the prosecution before taking any such action against the accused‑‑­Proceedings under S. 117(3), Cr. P. C. could not be taken on mere vague surmises of breach of peace‑‑‑Proceedings under Chap. VIII, Cr. P. C. were in a nature of preventive action and any person against whom any such proceedings were initiated, could not be treated an accused of any offence as action under Chap. VIII, Cr. P. C. was not for any offence, either according to P.P.C. or in reference to any other special law‑‑‑Order under S.117(3), Cr. P. C. for furnishing surety at once with a threat to the accused to face judicial remand in case of failure to furnish surety without taking proper proceedings, could not be passed by Magistrate.

2000 PCr.LJ 1534; 1982 PCr.LJ 750; 1997 MLD 3274; 1992 PCr.LJ 2187 and 1989 MLD 2657 ref.

Javed Haider Kazmi for Applicants.

Fazalur Rehman Awan for State.

2003 Y L R 1154

[Karachi]

Before Muhammad Ashraf Leghari, J

ASIF‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 747 and 744 of 2002, decided on 14th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13/14/18/19(2)‑‑‑Bail, grant of‑‑‑Record had shown that complainant police official was on routine round in the area and reached the venue upon receiving spy information‑‑­Complainant entered the house by scaling the wall and peeped through ventilation and found that three couples were engaged in committing Zina‑‑‑Nowhere in F. I. R. it was stated that other companions of complainant had also entered the house or had seen the incident‑‑‑Action taken by the complainant was allegedly at the night time and Mohallah people had allegedly reached there, but no one from them had seen the alleged commission of Zina‑‑‑Accused were not got medically examined for substantiating allegation made in F.I.R.‑‑‑Allegations leveled against the accused being yet to be established by the prosecution, accused were admitted to bail.

Abdul Waheed Siddiqui for Applicants.

Mehmood A. Qureshi for Applicant (in Criminal Bail Application No.747 of 2002).

Arshad Lodhi, A.A.‑G. for the State.

2003 Y L R 158

[Karachi]

Before Sarmad Jalal Usmani and Muhammad Moosa K. Laghari, JJ

MUHAMMAD HUSSAIN ‑‑‑Petitioner

Versus

MEMBER (JUDICIAL), BOARD OF REVENUE, SINDH, HYDERABAD and others‑‑‑Respondents

Constitutional Petition No. D‑234 of 2002, decided on 27th November, 2002.

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

‑‑‑‑S. 164‑‑‑Review‑‑‑Jurisdiction of Board of Revenue‑‑‑Scope‑‑‑Board of Revenue, instead of touching the merits of the case and adverting to the legal issues with regard to the jurisdiction of the Commissioner and the point of limitation raised by the petitioner, set aside the order passed by the Commissioner on the sole ground that judgment/order by the Commissioner was announced after three months of the hearing of arguments which rendered said order of the Commissioner to be illegal and bad in law‑‑‑Validity‑‑‑Held, Revenue Authorities were quasi judicial Tribunals and though the proceedings before such Authorities were not judicial in the strict sense yet order passed by the Commissioner was set aside only on technical grounds‑‑­Causes of parties were to be decided on merits, and technical knockouts were to be sparingly resorted to‑‑‑Statutory Tribunals were required to address the real controversy and to arrive at a just and reasonable conclusion in order to resolve the disputes, rather than remanding the matter on hypertechnical grounds‑‑‑Order passed by the Board of Revenue being perfunctory was liable to be declared invalid‑‑‑Case was remanded to the Board of Revenue for passing afresh order on merits.

PLD 1976 Pesh. 66; PLD 1977 Lah. 461; PLD 1978 Kar. 958; PLD 1994 Lah. 334; 1992 MLD 2436; PLD 1991 SC 691; PLD 1992 SC (AJ&K) 45 and Sajawal Khan's case 2002 SCMR 134 ref.

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

‑‑‑‑S. 164‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑‑Land Reforms Regulation, 1972 (MLR 1151‑‑‑Review‑‑‑Jurisdiction of Board of Revenue/Commissioner‑‑‑Scope‑‑‑Orders passed under repealed Evacuee Laws and Land Reforms Regulation, 1972 (MLR 115) could not be challenged under S.164, of the West Pakistan Land Revenue Act, 1967.

Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR 829 and Government of Sindh v. Zafarul Islam 2002 SCMR 447 ref.

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

‑‑‑‑S. 164‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Powers of Board of Revenue/Commissioner to review its order‑‑‑Scope‑‑‑Limitation‑‑‑Where the mutation was effected in the year 1990 while the application under S.164 of the Act was made in 1999 i.e. after the expiry of 9 years and neither such inordinate delay was explained nor any application for condoning the same was made, High Court, in its Constitutional jurisdiction set aside/quashed the order‑‑‑Principles.

The perusal of the provisions contained under section 164 of the West Pakistan Land Revenue Act, 1967 will show that the Board of Revenue or the Commissioner can call for the record of any case pending before or disposed of by any subordinate Revenue Officer. These powers can be exercised by the Board of Revenue/ Commissioner either (i) on its own motion, or (ii) on application made to it. The section further stipulates that if the action is taken by the Board of Revenue/Commissioner, it may be taken 'at any time' however if it has to be taken on an application, it has to be made 'within thirty days'.

In the present case the action was taken by the Board of Revenue/Commissioner on the application made to it. Admittedly mutation was effected in the year 1990 while the application was made in the year 1999 i.e. after the expiry of 9 years. Neither such inordinate delay was explained nor there was any application for condoning the same. The application was miserably barred by time.

The proceedings, in ,circumstances, initiated in the matter under section 164 of the Land Revenue Act, 1967 were without lawful authority and of no legal effect which were set aside/quashed by the High Court.

Aijaz Ali Hakro for Petitioner, Masood A. Noorani Addl. A.‑G. for the Official Respondents.

Jagdesh R. Mullani for Private Respondents Nos. 4 to 24.

Date of hearing 12th November,

2003 Y L R 1163

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

WAZIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 37 and Miscellaneous Application No. 122 of 2003, decided on 31st January, 2003.

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

‑‑‑‑Ss.9(b)(c) & 51‑‑‑Bail, grant of‑‑­Allegation against accused was that two Kgs. of Charas and five Kgs. of Bhang were recovered from his possession‑‑‑Case of accused fell under S.9(c) of Control of Narcotic Substances Act, 1997 which was punishable with death whereas from the possession of each of the remaining accused 1 Kg. of Charas was recovered‑‑‑Case of said co‑accused fell under S.9(b) of Control of Narcotic Substances Act, 1997, which was punishable with seven years‑ ‑‑Case of co­ accused being distinguishable from the case of accused, rule of consistency would not be applicable in the case of accused‑‑‑Bail could not be granted to an accused under provisions of S.51 of Control of Narcotic Substances Act, 1997 where his offence was punishable with death‑‑‑Punishment under S.9(c) of Control of Narcotic Substances Act, 1997 being death, case of accused fell under prohibitory clause of S.51 of the said Act‑‑­Accused in circumstances was not entitled for Concession of bail.

Abdul Rasool Abbasi for Applicant.

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

2003 Y L R 1172

[Karachi]

Before Rehmat Hussain Jafferi, J

AZIZULLAH and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 709 of 2002, decided on 21st January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11/16‑‑Interim bail, confirmation of‑‑‑Complainant had alleged that accused had abducted the girl, whereas accused had claimed that alleged abductee had entered into valid marriage with co‑accused and that alleged abductee had appeared before the Court and had sworn affidavit to the effect that she was not abducted, but she had contracted marriage with co‑accused with her free will‑‑­Affidavits of alleged abductee sworn before Judicial Magistrate and before High Court were on record‑‑‑When High Court granted interim bail to the accused, alleged abductee was present in Court and on enquiries she owned affidavits‑‑‑There being two versions in the case, it was yet to be determined as to which version was correct‑‑‑Accused were entitled for concession of‑bail ‑‑‑Interim bail already granted to the accused was confirmed on the same terms and conditions.

Azizullah Buriro for Applicants.

Muhammad Hashim Chandio for the Complainant.

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

2003 Y L R 1176

[Karachi]

Before Mushir Alam, J

DHANI BUX‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 390 of 2002. decided on 8th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324‑‑‑Bail, grant of‑‑‑No inordinate delay took place in lodging F.I.R.‑‑‑Memo. of recovery had described weapon used in occurrence as .12 bore repeater‑‑‑Any deeper appreciation on the face of such recovery memo. as to the identity of the weapon could not be undertaken more particularly when a .12 bore empty cartridge was recovered from the scene of occurrence and as per post­mortem report one pellet of. 12 bore was also recovered from the body of deceased‑‑­Contention that medical evidence did not corroborate the ocular evidence, was repelled because where deceased succumbed to the injuries which were found six in number on his body there must be some agitations and commotions resulting in minor discrepancies as to the number of shots which could not be lost sight of‑‑‑One passerby who was injured in incident had given exonerating affidavit in favour of accused‑‑‑Such exonerating affidavit at bail ‑stage was deprecated‑‑‑Even otherwise credibility of said passerby had been questioned as he in his affidavit of exoneration had mentioned his address different than the one given in statement under S.161, Cr. P. C. ‑‑‑Accused had been assigned specific role‑‑‑Enmity existed between the parties and counter‑cases were registered against each other‑‑‑Such enmity was double‑edged weapon‑‑‑No glaring discrepancy was found in the evidence of which benefit of doubt could be extended to the accused‑‑‑Accused being not entitled to grant of concession of bail, his bail application was dismissed.

PLD 1972 SC 277; 1999 PCr.LJ 1884; 1997 PCr.LJ 1593; 1998 SCMR 358 and Naseer Ahmed v. State PLD 1997 SC 347 ref.

Madad Ali Shah Syed for Applicant.

Rasheed Ahmed Qureshi, Asstt A.‑G. with Miss Nasreen Qadri for the State.

2003 Y L R 1181

[Karachi]

Before Rahmat Hussain Jafferi, J

DILBAR ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑31 of 2003, decided on 28th January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497‑‑-Penal Code (XLV of 1860), Ss.324/353/393/34‑‑‑Bail, grant of‑‑‑Alleged incident having taken place near Police picket, apparently it was not appealing to the common sense that accused alongwith three other culprits would go near the police picket and try to rob the vehicles‑‑‑If accused wanted to commit such type of offence; then natural course for them would have been to commit such offence at afar away place from police picket so that they could not be stopped from committing such offence‑‑‑Said point, however, could be thrashed out at the time of trial‑‑‑Place of incident was seen at 9‑00 a.m. in the morning at day time on the next day of incident and it was mentioned in the Mashirnama that in. the light of Police mobile, place of Wardat was examined and empty cartridges and blood were found there‑‑‑Prosecution case was that place of Wardat was seen during day time, if that was so then how empties were secured in the light of Police mobile‑‑‑Probability was that either place of Wardat was seen during night time or Mashirnama of Wardat was not prepared at the place of Wardat‑‑‑Such aspect had created doubt in the recovery made from the Wardat‑‑‑Said point, however, could be examined properly at the time of trial when prosecution would try to explain that discrepancy and then decision could be given in the light of such explanation‑‑‑Accused, was found entitled for concession of bail, in circumstances.

Muhammad Saleem, G.N. Jessar for Applicant.

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

2003 Y L R 1185

[Karachi]

Before Wahid Bux Brohi, J

Messrs GREEN VALLEY TRADING COMPANY‑‑‑Appellant

Versus

ADDITIONAL DIRECTOR OF ADJUDICATION, STATE BANK OF PAKISTAN and another‑‑‑Respondents

Criminal Revision No. 123 of 1997, decided on 20th December, 2002.

(a) Foreign Exchange Regulation Act (VII of 1947)‑‑‑--

‑‑‑‑S.23‑J‑‑‑Penal Code (RLV of 1860), S.53‑‑‑Recovery of Penalty‑‑‑Provisions for recovery of penalty embodied in S. 23‑J of the Foreign Exchange Regulation Act, 1947, empower recovery of penalty through Collector of the District as arrears of land revenue, but said section does not, by itself equate the penalty with fine nor does it provide any imprisonment in lieu thereof‑‑­""Penalty" cannot be treated as 'fine" within the meaning of S.53 P. P. C. unless a statute by necessary intendment and treats it, as fine.

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

‑‑‑‑Ss.1(2) & 5(2)‑‑‑Applicability to matters governed by any special or local law‑‑‑Joint reading of the provisions of Ss. 1(2) & 5(2), Cr. P. C. indicates that the Code of Criminal Procedure is not applicable to the matters governed by any special or local law unless expressly provided making it applicable to such special or local law wholly or to any extent.

(c) Foreign Exchange Regulation Act (VII of 1947)‑‑‑

‑‑‑‑Ss.12(1)/23‑B, 23‑A & 23‑C‑‑‑Criminal Procedure Code (V of 1898), Ss.435/439‑‑­Revision petition‑‑‑Maintainability‑‑‑Criminal Procedure Code, 1898, had been extended only to the Tribunal constituted under S. 23‑A of the Foreign Exchange Regulation Act, 1947, which essentially was the Sessions Judge exercising the powers under the Code of Criminal Procedure within the territorial limits of his jurisdiction and would not extend to the forum of Adjudicating Officer established under S. 23‑B of the Foreign Exchange Regulation Act, 1947 and the Appellate Board constituted under S.23‑C of the said Act, which are neither criminal Courts nor Courts of inferior jurisdiction within the meaning of S. 435, Cr. P. C. ‑‑­Even if the Adjudicating Board had used the terminology of "charge" and "conviction ", the proceedings were manifestly beyond the criminal jurisdiction of High Court under Ss. 4351439, Cr. P. C. ‑‑‑Revision petition was consequently not maintainable and the sane was dismissed accordingly.

Nasirud Din v. The State PLD 1956 (W.P.) Lah. 1082; Abdul Hamid Arif v. State PLD 1974 Kar. 167; Muhammad Rafiq State PLD 1980 Lah. 708; Fida Muhammad v. State Bank of Pakistan 1982 PCr.LJ 779 and Federation of Pakistan v. Aitzaz Ahsan PLD 1989 SC 61 ref.

Suhail Muzaffar for Applicants.

H.A. Rehmani for Respondents.

2003 Y L R 1191

[Karachi]

Before S. Ali Aslam Jafri, J

RASHID HUSSAIN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1495 of 2002, decided on 27th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail‑‑‑Difference in timings shown in the F.I.R. and the medico‑legal certificate about the occurrence had been fully explained by the State Counsel‑‑‑Record did not indicate anything to justify false implication of accused who being on visiting terms with the complainant side was already known to them‑‑‑Ocular version of the injured lady was corroborated by medical evidence and the recovery of blood‑stained "Chhuri "from the accused and his blood‑stained shirt‑‑‑Eye witnesses being the neighbours were the natural witnesses who had seen the accused running away alongwith the blood‑stained "Chhuri " soon after tire incident‑‑‑No grounds, prima facie, were available to suggest that the accused had not committed the alleged offence‑‑‑Bail was declined to accused in circumstances.

1992 PCr.LJ 2806; 1999 PCr.LJ 582; 1999 MLD 939 and 1999 MLD 1206 ref.

Shakeel Ahmed for Applicant, Mumtaz Ali Khan Deshmukh for the state.

2003 Y L R 1201

[Karachi]

Before Ghulam Nabi Soomro and Syed Zawwar Hussain Jaffri, JJ

WALI MUHAMMAD ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 47 and Confirmation Case No.7 of 1995, heard on 5th April, 2002.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Site plan, importance of‑‑‑Site plan by itself has no evidentiary value, but it is. important to determine the location of the incident as well as the ‑position of the witnesses if the same are challenged.

1998 SCMR 1813; Taj Muhammad v. Muhammad Yusuf PLD 1976 SC 234 and Mst. Shamim Akhtar v. Faiz Akhtar PLD 1992 SC.211 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Ocular evidence was corroborated by medical evidence and recovery of crime empties from the place of occurrence‑‑‑Presence of complainant and the eye‑witnesses on the scene of incident was established‑‑­Prosecution evidence did not suffer from any contradiction and discrepancies which was reliable and trustworthy and had linked the accused with the commission of the offence‑‑­F.I.R. having been lodged after 20 minutes of the occurrence, false implication of accused was not possible‑‑­Conviction and sentence of death awarded to accused were confirmed in circumstances.

Bati Khan v. Gulzar 1988 SCMR 279; Anil Phukan v. State of Assam 1993 SCMR 2236; Shahnaz Kausar v. S.H.O. NLR 1998 Cr.LJ 228; Shah Muhammad v. State 2000 PCr.LJ 390; Sardar Khan v. State 1998 SCMR 1823; 1998 SCMR 1813; Taj Muhammad v. Muhammad Yusuf PLD 1976 SC 234 and Mst. Shamim Akhtar v. Faiz Akhtar PLD ]992 SC 211 ref.

Ahmed Ali Sheikh for Appellant.

Safdar Ali Bhutto for the Complainant.

Ghulam Sarwar Korai, Addl. A.‑G. for the State.

Date of hearing: 5th April, 2002.

2003 Y L R 1208

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

QURBAN ALI JATOI‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No. 379 of 2002, decided on 4th December, 2002.

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

‑‑‑‑S. 265‑K‑‑‑Object of S. 265‑K, Cr. P. C. ‑‑­Object of S.265‑K, Cr.P.C. is to acquit the accused if the Court considers that there is no probability of his being convicted of an offence and such an order can be passed at any stage of the case including the stage even before conclusion of the trial.

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

‑‑‑‑Ss.9/10‑‑‑Criminal Procedure Code (V of 1898), Ss.265‑K & 561‑A‑‑‑Quashing of proceedings‑‑‑Trial in the case having been concluded it would be absolutely absurd to advert to the provisions of S.265‑K, Cr.P.C. only‑‑‑Even for the purpose of an exercise under S. 265‑K, Cr. P. C. the Court could not ignore the evidence recorded at the trial and it would have to examine, scan and assess the entire material and then to pass a fair and just order in accordance with law‑‑‑Unfair for the accused to circumvent the final result of the trial and compel the Court to consider the only aspect of his acquittal within the meaning of S.265‑K, Cr. P. C. ‑‑‑Law abhorred fragmentary and piecemeal resolution of causes‑‑‑Petition was dismissed in limine in circumstances.

Anwar Saifullah's case PLD 2001 SC 7 and Mohtarma Benazir Bhutto v. State PLD 1999 SC 937 ref.

(c) Administration of justice‑‑‑

‑‑‑‑Piecemeal resolution‑‑‑Law abhors fragmentary and piecemeal resolution of causes.

Syed Nadeem Hussain Shah for Applicant.

Nemo for the State.

Date of hearing: 4th December, 2002.

2003 Y L R 1215

[Karachi]

Before Wahid Bux Brohi, J

SHAHID ALI ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail No. 1200 of 2002, decided on 29th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/436/34‑‑‑Bail‑‑‑Delay of 14 months in lodging the F.I. R. was the most outstanding feature of the case‑‑‑Injured witness in his statement under S.161, Cr. P. C. at the earliest stage had categorically stated that the bakery had perhaps caught fire because of electric short circuit and that they had no enmity with anyone and did not suspect anybody to have committed criminal mischief‑‑‑No direct evidence was available in the case‑‑‑Accused had also faced with equal magnitude the hazard in consequence of fire‑‑‑Case against accused in circumstances required further inquiry‑‑‑Accused was admitted to bail accordingly.

Muhammad Khan v. State 1993 PCr.LJ 2060 ref.

M. Khalil Dogar for Applicant.

Zafar Ahmed Khan for the Complainant.

Habib Ahmed for the State.

Date of hearing: 29th November, 2002.

2003 Y L R 1227

[Karachi]

Before Sarmad Jalal Usmani and Muhammad Moosa K. Laghari, JJ

SAIFAL KHAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 31 of 2001, decided on 7th November, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑­ Solitary witness‑‑‑Conviction can be awarded on the basis of testimony of a single witness if it is found trustworthy, credible and confidence‑inspiring.

Muhammad Mansha v. State 2001 SCMR 199 and Rana Shahbaz Ahmed and 2 others v. State 2002 SCMR 303 ref.

(b) Precedents‑‑‑

‑‑‑‑Principle‑‑‑Rule laid down in certain criminal case cannot be applied universally as every case proceeds on its own facts and circumstances which would hardly resemble with diverse facts of the precedent case.

Tariq Mehmood v. State 2002 SCMR 32 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302 & 337‑F(v)‑‑‑Appreciation of evidence‑‑‑Complainant had resiled from the version given in the F.I.R.‑‑‑Other eye­witnesses including the injured witness did not support the prosecution case and even did not identify the accused in the Court‑‑‑Only witness who had implicated the accused had simply stated of injuries caused to the deceased and sustained by him, but he did not see as to who had caused injuries to remaining injured persons and his testimony was not reliable having not been corroborated, particularly when he had himself admitted that the parties were on inimical terms ‑‑‑Co‑accused from whom crime weapons were recovered had been acquitted by Trial Court‑‑‑Prosecution case, thus, was doubtful‑‑‑Accused were acquitted in circumstances.

Muhammad Mansha v. State 2001 SCMR 199; Rana Shahbaz Ahmed and 2 others v. State 2002 SCMR 303; Tariq Mehmood v. State 2002 SCMR 32 and Tariq Parvaiz v. State 1995 SCMR 1345 ref.

(d) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Single circumstance is enough to entitle the accused to benefit of doubt as a matter of right if it creates reasonable doubt in a prudent mind.

Tariq Parvaiz v. State 1995 SCMR 1345 ref.

Syed Maddad Ally Shah For Appellants.

Anwar Ansari for the State, Date of hearing 7th November, 2002.

2003 Y L R 1247

[Karachi]

Before Zia Perwez, J

Messrs PEACE DEVELOPERS‑‑‑Plaintiff

Versus

K.B.C.A.‑‑‑Defendant

Suit No. 1793 of 1999, decided on 20th November, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXIII, R.1‑‑‑Withdrawal of suit‑‑‑High Court while disposing of Constitutional petition and appeal allowed defendant to raise such questions in suit filed by plaintiff‑‑­Request to withdraw suit made thereafter‑‑­Validity‑‑‑After passing of judgment in Constitutional petition and appeal, defendant had acquired an interest in suit to extent enunciated therein‑‑‑If plaint was allowed to be withdrawn at such stage, same would amount to force an unwilling party to relinquish his rights‑‑‑Plaintiff under O.XXIII, R. I, C.P.C., could withdraw his suit unconditionally, but there were exceptions to such rule, in which case Court could refuse withdrawal‑‑‑After order in appeal, all facts and pleas raised by both parties had merged in the suit‑‑‑Any party willing to relinquish his claim would be at liberty to do so by not pressing specific issue‑‑‑Application for withdrawal of suit was dismissed.

Messrs Hindustan Sanitary and Drainage Works v. Shabbir Burhani and others PLD 1992 Kar. 21; B. Z. Kaikaus v. Federal Government of Pakistan and others PLD 1982 SC 254; Inayat and another v. KBCA 1997 CLC 2039; Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others PLD 1959 SC (Pak.) 287; Asman Vaman Yadav and others v. Gappat Tukaram and another AIR 1938 Bom. 443 and Kadar Nath and others v. Chandra Kiran and others AIR 1962 All. 263 ref.

Faisal Kamal for Plaintiff.

Miss Rizwana Ismail for Defendant No.2.

2003 Y L R 1250

[Karachi]

Before Anwar Zaheer Jamali, J

AHMED KHAN and others‑‑‑Applicants

Versus

GHULAM ALI and others‑‑‑Respondents

Revision Application No. 94 of 1989, decided 27th December, 2002.

(a) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Children of predeceased son, right of‑‑‑Such children would be excluded from succession in presence of their uncles and aunts (i.e. sons and daughters of deceased)‑‑‑Illustration.

If son dies leaving his children before opening of succession, such children will be excluded from succession in presence of their uncles and aunts. If there are many sons and daughters of a deceased, out of whom one son had died, then in presence of other sons and daughters, who will be uncles and aunts of grandchildren of the deceased, grandchildren will not be entitled to inherit any share from the deceased.

Moolla Cassim Bin Moolla Ahmed. v. Moolla Abdul Rahim and others 32 IA 177 and Abdul Bari Khan and another v. Nasir Ahmed Khan and others 150 IC 330 fol.

(b) Islamic Law‑‑‑‑‑‑‑

------Inheritance‑‑‑Deceased left behind a daughter and two grand children from his predeceased son‑‑‑Sister of deceased would not be entitled to inherit any share from him.

Principles of Mahomedan Law Tenth Edn., Chap. VII, S.52 by D.F. Mulla rel.

Mahomedan Law Tenth Edn., by D.F. Mulla ref.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 120‑‑‑Entries made in Revenue Record fraudulently‑‑‑Limitation, starting point of‑‑‑Under Art. 120 of the Limitation Act, 1908 prescribed period of limitation would be computed from the time, when right to sue accrued to a party‑‑‑Suit filed within 2/3 days from date of gaining knowledge about fraudulent entries in Revenue Record would be well within time‑‑‑Where such entires were found to be without jurisdiction, void and nullity in eye of law, then question of limitation would not come in way of plaintiff in challenging such fraudulent action of defendant.

Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434; Jamal Bhai and 2 others v. Administrator, Evacuee Trust Property and 6 others 1985 CLC 1411 and Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962 rel.

Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462 ref.

M. Abdul Sattar Shaikh for Applicant. .

Jhamat Jethanand and Sundardas for Respondents.

Date of hearing: 10th, 17th, 20th and '3rd December, 2002.

2003 Y LR 1263

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

GHUFRANULLAH and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No. 100 and Confirmation Case No. 35 of 1999, decided on 4th December, 2002.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b) & 337‑F (iii)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S. 7(i) (a)‑‑‑Appreciation of evidence‑‑‑Entire prosecution case was based on the identification of accused in the Court by the witnesses without holding any identification test‑‑‑Sufficient light at the scene of incident being not available to see the faces of the culprits clearly, identification of the accused in Court after one year of the incident was highly doubtful and it could not be made the basis for conviction‑‑­Accused were acquitted in circumstances.

Farman Ali v. State PLD 1995 SC 1; Sahdeo Gosain v. Emperor 46 CC.LJ 1945, Asghar Ali v. State 1992 SCMR 2088 and Tayyab v. State 1995 SCMR 412 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 22‑‑‑Identification parade‑‑ ‑‑‑ Purpose and object‑‑‑Identification parade is held to ascertain whether the witnesses can identify the culprits seen by them at the time of incident‑‑‑First and the foremost condition for such test is that the witnesses had no occasion or opportunity to see the culprits before the identification test is held which gives strength and sanctity to it‑‑‑Such strength and sanctity cannot be given to the identification of the culprits in the Court if the possibility of seeing the culprits in the Court by the witnesses before such identification cannot be ruled out.

Farman Ali v. State PLD 1995 SC 1, Sahdeo Gosain v. Emperor 46 Cr.LJ 1945; Asghar Ali v. State 1992 SCMR 2088 and Tayyab v. State 1995 SCMR 412 ref.

S. Mahmood Alam Rizvi for Petitioners.

Habib Ahmad, A.A.‑G. for the State.

Dates of hearing: 16th October; 5th and 13th November, 2002.

2003 Y L R 1271

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

ABDUL RAZZAK and another‑‑‑Applicants

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous Nos. 97 and 98 of 2002, decided on 11th November, 2002.

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

‑‑‑‑S. 403‑‑‑Persons once convicted or acquitted not to be tried for the same offence‑‑‑Bar contained under S. 403, Cr. P. C. for retrial of a person Will be applicable only when, inter alia, the predominant conditions are satisfied i.e. that the accused has beer tried by a Court of competent jurisdiction; that he has been convicted or acquitted for such offence, and that his conviction or acquittal is still in force.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409/34‑‑‑Prevention of Corruption Act (II of 1947), S.5 (2)‑‑‑Constitution of Pakistan (1973), Art. 13(a)‑-‑Criminal Procedure Code (V of 1898), Ss. 403 & 561‑A‑‑­Quashing of proceedings‑‑‑Order passed by the Prosecutor in Dubai was actually an observation that no penal action be initiated against the accused owing to lack of evidence ­and incorrectness, which was no prosecution in a Court on a criminal charge in the eye of law and it could not be equated with criminal trial‑‑‑Admittedly, accused had not been prosecuted by a Court of competent jurisdiction as envisaged by S.403(1), Cr. P. C. and the Special Court trying the case had, for the first time, taken cognizance of the offence and the plea of "autre fois acquit " founded on the said observation of the Prosecutor of Dubai, was not applicable‑‑­Similarly protection against double punishment provided by Art.13(a) of the Constitution did not apply to the case of accused and the contention: on the basis of double jeopardy was patently misconceived‑‑­Accused, even otherwise, were still absconders and Courts would not act in aid of fugitives from justice who lose some of their normal privileges/rights and thus the belated plea of staying the main criminal proceedings pending against them in the Trial Court was not entertained, inter alia, for the same reason‑‑‑Record did not suggest that if reliance was placed on the same the trial would be an exercise in futility and no charge could be sustained‑‑‑Petitions for quashing of proceedings were dismissed accordingly.

Muhammad Akbar v. State PLD 1968 SC 281; Abdul Shakoor Kaloodi v. State SBLR 2002 Sindh 1263; Chan Shah v. Crown PLD 1956 FC 43; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Sher Ali v. State 1998 SCMR 190 and Syed Muhammad Ahmed v. State 1972 SCMR 85 ref.

(c) Criminal trial‑‑‑

Absconder‑‑‑Fugitive from justice loses some of his normal privileges/rights otherwise available to him.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Sher Ali v. State 1998 SCMR 190 ref.

M.A. Kazi for Applicants, Khalid Anwar for Respondent No.4, Khurshid Hashmi, D.A.‑G

2003 Y L R 1290

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD ADNAN and another---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No. 53 of 2000 and Special Anti-Terrorism Jail Appeal No. 57 of 2000, decided on 23rd October, 2002.

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

----Ss. 10(4) & 10(2)---Anti-Terrorism Act (XXVII of 1997) Ss. 6 (c) & 7(ii)--­Appreciation of evidence---Reduction in sentence---Age of the victim girl according to medical evidence was between 15 and 16 years, but the possibility of her being the age of 16 years or above could not be ruled out and even otherwise she having already attained puberty was an adult within the meaning of S.2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979--­No marks of violence were found on the body of the victim girl and according to medical evidence she was already used to sexual intercourse and was not a virgin at the time of incident---Statement of the victim with regard to sexual intercourse committed with her by the accused was fully corroborated by the medical evidence and the Chemical Examiner's report showing her clothes and the Shalwar of the accused being stained with semen which was enough to convict the accused---Since the victim did not resist the action of the accused and she remained a passive partner like a consenting party, it was not a case of Zina-bil-Jabr--- Conviction of accused under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was consequently set aside and instead they were convicted under S.10(2) of the said Ordinance read with Ss. 6(c) & 7(ii) of the Anti-Terrorism Act, 1997, and their sentences were substantially reduced accordingly.

Abid Javed alias Mithu v. The State 1995 PCr.LJ 1161; Muhammad Nawaz v. Abdul Rashid and others PLD FSC 251; Abdu Rashid v. State PLD 1983 FSC 204; Liaquat Ali and 2 others v. The State PLD 1988 FSC 119; Asad Abbas v. The State 1996 MLD 782; Muhammad Safdar v. State 1994 PCr.LJ 62; Mst. Amir Bano v. Ghulam Hussain and another 1997 SD 420; Yousaf v. State 1975 PCr.LJ 936 and Banney Khan v. State 1975 PCr.LJ 453 ref.

S. Mehmood A. Rizvi for Appellants (in Spl. A.T.A. No: 53 of 2000).

M. Waheed Kazi for Appellant (in Spl. A.T. Jail Appeal No.57 of 2000.

Habib Ahmad for the State.

Dates of hearing: 7th and 23rd October, 2002.

2003 Y L R 1316

[Karachi]

Before Rahmat Hussain Jafferi, J

MOULA BUX alias MOULEDINO---Petitioner

Versus

S.H.O. POLICE STATION HATRI GHULAM SHAH and 2 others--­Respondents

Civil Petitions Nos.S-473, 491, 494, 508, 509, 512, 513, 534, 535, 542, 543, 544, 546, 547 and 549 of 2002, decided on 6th February, 2003.

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

----Art.199---Constitutional jurisdiction, exercise of---If an adequate remedy was available under relevant law then jurisdiction of High Court as provided under Art. 199 of the Constitution could not be invoked.

Muhammad Naseem Khan v. Government 1990 CLC 1693; Gaman v. S.H.O., Datar Dino, Police Station New Paujdari, Shikarpur 1993 PCr.LJ 1286; Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar.119; Jamshed Khan v. Government of Sindh 1999 PCr.LJ 512; Mst. Malka Jan v. Inspector General of Police, N.-W.F.P., Peshawar 2000 PCr.LJ 320; Mazhar Hussain Naqvi v. Zafar PLD 2001 Kar. 269; Ghulam Muhammad Shalgiri v. S.H.O., Shahdadkot 2002 MLD 1898; Muhammad Yousaf v. Dr, Madad Ali alias Gulab Laskani PLD 2002 Kar. 328; Ghulam Hussain Jeelani v, Government of Sindh PLD 2001 Kar 169: Hazoor Bakhsh v. Senior Superintendent of Police, Rahim Yar Khan PLD 1999 Lah. 417; Muhammad Ali v. The S.H.O., Police Station Aziz Bhatti SBLR 2002 Sindh 1490: Chief Administrative of Okaf v. Muhammad Ramzan PLD 1994 SC 102; Abdul Rehman v. Meer Ahmed PLD 1987 SC 21; Allah Bux v. Muhammad Ismail 1987 SCMR 810 and Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha PLD 1966 SC 639 ref.

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

----S. 154---Penal Code, (XLV of 1860), S.166---Information to Police in cognizable cases---Provisions of S.154, Cr. P. C. were mandatory in nature which directed that the Police Officer should register F.I.R. and such officer violated said direction, he would expose himself to prosecution under S.166, P.P.C.

Mazher Hussain v. Zafar PLD 2001 Kar. 269 ref.

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

---S.200---Lodging of direct complaint---If a direct complaint was lodged before the, Magistrate under S. 200, Cr. P. C. than under subsection (1) of S.202, Cr.P.C., Magistrate was empowered to direct the Police to investigate the case and in such event the Investigating Officer of Police was authorized to exercise all powers available to him in the Criminal Procedure Code for investigating the case including the power to arrest the accused persons.

Mrs. Ghanwa Bhutto v. The Government of Sindh PLD 1977 Kar.119 and Inayat-ur-Rehman v. Assistant Commissioner PLD 1992 Pesh. 138 ref.

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

----S.22-A(6) [as amended by Code of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)]---Sessions Judge as an Ex Officio Justice of Peace---Power to issue appropriate directions to Police Authorities---After insertion of subsection (6) to S.22-A, Cr. P. C. a Sessions Judge who was an Ex Officio Justice of Peace, could issue appropriate directions to the Police Authorities concerned on the complaint of non-registration of F.I.R., by directing them to register F.I.R. if cognizable offence was found to have been committed.

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

----Ss.22-A(6), 154, 156(3) & 200---Refusal of Police to register F.I.R.---Remedy---If Police would refuse to register F.I.R. then aggrieved party would have adequate remedy; either by approaching Sessions Judge who was Ex Officio Justice of Peace for exercise of powers under S. 22-A (6), Cr. P C., or by approaching the Magistrate for exercise of power under S.156(3), Cr.P.C. or by filing a direct complaint under S. 200, Cr. P. C.

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

----Art.199---Criminal Procedure Code (V of 1898), Ss. 22-A(6), 156(3) & 200--­Constitutional petition---Maintainability--­Refusal of Police to register F.I.R.--­Remedy---Sessions Judge as Ex Officio Justice of Peace and Magistrate in exercise of powers conferred upon them under Ss.22-A(6) & 156(3), Cr.P.C. respectively could direct police to register F.I.R. on receipt of complaint that Police had refused to register F.I.R.---Complainant also could file direct complaint under S.200, Cr. P. C.---Such alternate adequate remedies being available to the petitioner, provisions of Art. 199 of Constitution of Pakistan (1973) could not be invoked.

Muhammad Yousuf v. Madad All PLD 2002 Kar. 328; Muhammad Ali v. S.H.O., Police Station Aziz Bhatti SBLR 2002 p. 1490; 1979 SCMR 112 and Hazoor Bux v. S.S.P. PLD 1999 Lah. 417 ref.

Ali Nawaz Ghanghro for Petitioners (in C.Ps. Nos. S-473, 508 and 512 of 2002).

Jai Jai Veshnu Mange Ram for Petitioners (in C.P. No.491 of 2002).

Nizamuddin Baloch for Petitioner (in C.P.No.494 of 2002).

Khalid Iqbal Memon (in C.P.No.546 of 2002).

Abdul Rehman Bhutto (in C.P. No.534 of 2002).

Abdul Hayee Bhutto (in C.Ps. Nos.535, 544, 547 and 549 of 2002).

Ali Gohar Khan D. Baloch (in C.P. No.542 of 2002).

Muhammad Saleem G.N. Jesar (in C.P. No.543 of 2002).

Nizamuddin Abro (in C.P. No. 513 of 2002).

Deedar Ali Khajar (in C.P. No.509 of 2002.

Anwar Mansoor Khan, A.-G Sindh assisted by Ali Azhar Tunjo, Asstt. A.-G., Sindh.

Date of hearing: 21st January, 2003.

2003 Y L R 1348

[Karachi]

Before Sarmad Jalal Osmany, J

UMAR ZAREEN---Applicant

Versus

THE STATE---Respondent

Criminal Revision No.37 of 2002, decided on 22nd October, 2002.

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

----S.13-D---Criminal Procedure Code (V of 1898), S.514---Forfeiture of bond---Before imposing a penalty on the surety under S.514(1), Cr. P. C. the surety bond had to be forfeited giving reasons therefore, and only thereafter, the penalty could be imposed, if warranted---Trial Court had failed to follow the said procedure---Trial Court had also acquitted the accused vide the same judgment and the surety had been discharged--­Impugned order imposing the penalty on the petitioner was neither justified nor in accordance with law in circumstances and the same was set aside accordingly---Case was remanded to the Trial Court for holding an inquiry under S. 514(1), Cr.P.C. after issuing notice to the applicant surety and passing a reasoned and appropriate order.

Qaiser v. The State 1968 PCr.LJ 781

S.M. Aamir Naqvi for Applicant

Fazlur Rehman for the State.

Date of hearing 22nd October, 2002.

2003 Y L R 1468

[Karachi]

Before Muhammad Sadiq Laghari, J

CHIEF ADMINISTRATOR AUQAF, SINDH, HYDERABAD and another---Applicants

Versus

ALLAH BACHAYO and 3 others---Respondents

Civil Revision Petition No.76 to 81 of 1992 decided on 12th March, 2003.

Civil Procedure Code (V of 1908)---

----O. VII, R. 10---West Pakistan Civil Courts Ordinance (II of 1962), S.24---Specific Relief Act (I of 1877), S.8---Suit for possession--­Territorial jurisdiction of Court---Return of plaint---Suit was filed in Court at place 'H'-­-Plaint was returned to the plaintiffs for presenting the same before the Court having jurisdiction holding that as the subject-matter of suit was situated at place 'T.M.', Civil Court at 'TM.' had the jurisdiction over the matter---Order of return of plaint was challenged on the ground that though subject­-matter of suit was situated at 'T.M. ', but since Province of Sindh and two Public Officers were party to the suit, Court at place TM. would have no jurisdiction in view of bar imposed by S.24(1)(2) of West Pakistan Civil Courts Ordinance, 1962---Plea of plaintiffs was that West Pakistan Civil Courts Ordinance, 1962 being a special law would override general provisions of Civil Procedure Code 1908---Subsection (1) of S.24 of West Pakistan Civil Courts Ordinance, 1962 had made it clear that in suits in which Pakistan or any of its Provinces or any public officer was party, jurisdiction of only that Civil Court would be barred which would not have unlimited jurisdiction as regards the value in original suit, which would mean that jurisdiction of Civil Court having unlimited pecuniary jurisdiction, was not barred in such suits--­Subsection (2) of S.24 of West Pakistan Civil Courts Ordinance, 1962 also spoke of institution of such suits in the Court of Civil Judge having jurisdiction in original suit without limits as regards value---Plot which was subject-matter of suit, was situated within territorial jurisdiction of Court at place 'T M.' which had unlimited pecuniary jurisdiction, in view of this position, the Court at place 'T.M.' would have jurisdiction over the suit---Plaint, in circumstances, was rightly returned for presenting the same before Court at place 'T.M.' having the jurisdiction.

Khalil ur Rehman v. Town Committee, Rabwah PLD 1990 SC 792 ref.

Shaukat Ali Jafferi for Applicants.

Nemo for Respondent No. 1.

Masood A. Noorani, Addl. A.-G., Sindh for Respondents Nos. 2 to 4.

Date of hearing: 12th March, 2003.

2003 Y L R 1473

[Karachi]

Before Sabihuddin Ahmad and Amir Hani Muslim, JJ

WELFARE ASSOCIATION OF THE FIELD ORGANIZERS OF WEEKLY BAZAR, KARACHI and another---Petitioners

Versus

KARACHI DEVELOPMENT AUTHORITY and others---Respondents

Constitutional Petitions Nos. D-1806 of 2000, 2293 of 2001, 452 and 573 of 2002, heard on 15th October, 2002.

Price Control and Prevention of Profiteering and Hoarding Act (XXIX of 1977)---

----Ss.3 & 6---Sindh Local Government Ordinance (XXVII of 2001), S.180--­Organising of Bachat or Weekly Bazaar-­Obtaining of "No-Objection Certificate" from the authority---Scope---Nobody could be allowed to carry on business on property belonging to City District Government without its permission and assume to have a right to carry on business on property of another without permission of its owner---Arty. person might carry on business of Bachat Bazaar only after obtaining permission from owner of the property---Where owner was a public authority, same would exercise discretion of allowing a person to conduct such business honestly, fairly and without any discrimination, but subject to restriction to be imposed in public interest and for protection of property---Such business would not be allowed to be conducted on amenity plots or any other property on which conduct of business was restricted by law---Person wanting to organize a Bachat Bazaar on his own plot could not be called upon to obtain any "No-Objection Certificate "---Business of organizing Weekly Bazaars could be carried without a "No-Objection Certificate" from any public authority, but subject to permission from owner with or without conditions and subject to any restriction as regards use of plot imposed by any law--­Successor of Bureau of Supply or any other public authority would have right to monitor prices and quality control, if so permitted by law.

Muhammad Anwar Tariq, Khalid Jawaid Khan and Khalid Shah for Petitioners.

Manzoor Ahmad for City District Government.

Abbas Ali, Addl. A.-G. for Government of Sindh.

Ali Nawaz Memon for the Intervenor.

Sarfraz Ali holding brief for Muzaffar Imam for K.D.A.

Date of hearing: 15th October, 2002.

2003 Y L R 1478

[Karachi]

Before Zia Pervez, J

Mst KHURSHEED BEGUM and 92 others---Plaintiffs

Versus

KARACHI DEVELOPMENT AUTHORITY and others---Defendants

Suit No. Nil of 2002 decided on 19th September, 2002.

Specific Relief Act (I of 1877)---

---Ss.42, 54 & 56(d)---Civil Procedure Code (V of 1908), O. VII, R. 11 & O. XXXIX, Rr. 1 & 2---Sindh Public Property (Removal of Encroachment) Act (V of 1975), Ss.3 & 4--Suit for declaration and injunction—­Temporary injunction, grant of --­Construction of Express Way---Execution of lease deeds in favour of plaintiffs in unauthorised manner and construction raised without approved plan ---Plaintiffs could not claim to be lawful owner of plots in question and respondents were 'free to cancel lease upon payment of amount paid by them--­ Grant of injunction in such circumstances would amount to interference with official duties of public officers falling within provisions of S.56(d) of the Act---Prayer in suit could not be granted---Plaint was rejected in circumstances.

Shakeer Ahmad Khan Yousafzai v. Nazim Union Council, Karachi and others C.P. No.D-2257 of 2001 ref.

Mustafa v. Karachi Municipal Corporation and others C.P. No.D-460 of 1998 fol.

Syed Ansar Hussain for Plaintiffs.

Manzoor Ahmed for City Government, Karachi/K.M.C.

Suleman Habibullah, A.A.-G. and Abbas Ali, A.A. -G. for the State.

Sarwar Muhammad Khan for Defendants Nos.6 to 12.

2003 Y L R 1487

[Karachi]

Before Muhammad Sadiq Laghari, J

TEHRIK-I-JADID ANJUMAN AHMEDIA, PAKISTAN---Applicant

Versus

PROVINCE OF SINDH and others ---Respondents

Revision Application No. 115 of 2002, decided on 5th March, 2003.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Suit involved the amount of Rs. 27,12, 545 and maximum court-­fee of Rs.15,000 was paid on it---Value of suit was much beyond the pecuniary jurisdiction of Appellate Court which was up to Rs.5,00,000 only---Proceedings m appeal before Appellate Court and judgment passed in it, were without jurisdiction---Judgment passed by Appellate Court being without jurisdiction, was not sustainable.

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

----S.115---Revisional jurisdiction ---Scope--­Once the High Court was seized of the case in exercise of its revisional jurisdiction, it could in accordance with S. 115, C. P. C. make such order in the case as it would think fit---High Court had to examine legality of the judgment and decree of the Trial Court for passing an appropriate order in the case.

2000 CLC 414 and 1997 SCMR 919 ref.

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

----Paras. 13, 18 & 21---Specific Relief Act (I of 1877), Ss.42 & 54---Resumption of land--­Suit for declaration and permanent injunction---Land owned by petitioner/Anjuman was resumed under M.L.R.115 and after resumption was leased out to petitioner/Anjuman which had been regularly paying lease money to the Authority---Petitioner/Anjuman subsequently in its suit had prayed that certain paras. of Land Reforms Regulation, 1972 [M.L.R. 115] having been declared repugnant to Injunctions of Islam had ceased to have any effect from 23-3-1990 and thus resumption of land in question had become nullity in the eye of law and that the Authority was liable to refund amount recovered as lease money from the petitioner/Anjuman after 23-3-1990 and that the petitioner be declared exclusive owner of the suit land---Suit was decreed ex parte and on filing appeal against judgment and decree of Trial Court, Appellate Court set aside judgment and decree of Trial Court and remanded the case to be decided afresh after allowing respondent to file written statement within specified time---Validity---Lease of land in question was granted to the petitioner after its resumption under para. 21, part (v) of Land Reforms Regulation, 1972 [M.L.R.115] relating to utilization of surrendered and resumed land---Lease could be granted after vesting of land in Government under para. 13, part (iv) of Land Reforms Regulation, 1972 [M.L.R. 115]---Land in question having vested in Government/Authority before grant of its lease to petitioner/Anjuman, fact that some paragraphs of Land Reforms Regulation, 1972 [M.L.R.115] ceased to have effect from 23-3-1990 would not affect its resumption in any way---Land in question having become Government property under Land Reforms Regulation, 1972 [M.L.R.115], petitioner/Anjuman had no title over the same---Trial Court, in circumstances, had decreed the suit filed by petitioner in flagrant disregard of law and by passing such a perverse judgment and decree, Trial Court had transgressed its legal limit---Judgment and decree passed by Trial Court and judgment of Appellate Court were set aside by High Court in revision.

Shaikh Muhammad v. Mst. Hashmat Sultana 1989 SCMR 34 and Manager, Jammu and Kashmir State Property in Pakistan v. Khudayar and others PLD 1975 SC 678 ref.

Jhamat Jethanand and Basharat Ahmed Jatt for Applicant.

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

Date of hearing: 17th February; 2003.

2003 Y L R 1501

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Sheikh GHULAM SHAH---Petitioner

Versus

K.D.A. and another---Respondents

Civil Petition No.D-255 of 1989, decided on 10th April, 2002.

(a) Karachi Development Authority (Disposal of Land) Rules, 1971---

----R.10---Karachi Development Authority (Disposal of Land and Estate) Regulations, 1965, Regln. 6---Commercial plot, allotment of---Method---Karachi Development Authority is a statutory body and its property can be disposed of in accordance with statute--­Commercial plot has to be disposed of through open auction---Chief Minister has no power to make allotments.

(b) Karachi Development Authority (Disposal of Land) Rules, 1971---

---R.15---Power of Government to relax rules---Scope---Power to deviate from normal rule could only be exercised, when circumstances warranting its use objectively existed:

(c) Administration of justice---

----Where parties were in pari delieto, then benefit would go to the defendant.

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

----Art.199---Discretionary relief under Art.199 of the Constitution---Could be granted only to a party, who had approached High Court with clean hands.

Mansoorul Arfin for Petitioner.

S. Jamiluddin Ahmed for Respondent No. 1.

Imran Ahmed for Respondent No.2.

Date of hearing: 10th April, 2002.

2003 Y L R 1507(1)

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Messrs PAKISTAN OXYGEN LTD. ---Petitioner

Versus

CITY DISTRICT GOVERNMENT and another---Respondents

Civil Petition No.2488 of 2001, heard on 7th August, 2002.

Sindh Local Government Ordinance (XXVII of 2001)---

----S.195(2) & Sixth Sched., cl. (64)---Lease for land/building---Enhancement of rent with retrospective effect---Validity---Local Council has no power to give retrospective effect to its resolution, which must operate prospectively.

Ms. Mehrunnisa for Petitioner.

Suleman Habibullah, Add1.A.-G.

Manzoor Ahmed for Respondent No.2.

Date of hearing: 7th August; 2002.

2003 Y L R 1513

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

KARACHI COOPERATIVE HOUSING SOCIETIES UNION LTD. ---Petitioner

Versus

GOVERNMENT OF SINDH and another---Respondents

Civil Petition No.D-479 of 1990, heard on 18th October, 2001.

(a) Sindh Cooperative Housing Authority Ordinance (V of 1982)---

----S.6(1)---Sindh Cooperative Housing Authority Rules, 1986, R.4(2)---Society was allegedly indulged in mismanagement of its affairs---Order for an enquiry ---Pre­conditions---Satisfaction of Government as to failure of Society to perform its duties according to law or mismanagement of its affairs or having acted in a manner contrary to interest of its members are pre-conditions for taking action under S.6(1) of the Ordinance i.e. either to issue directions to Society or order an enquiry into its affairs--­Law places power to order an enquiry at par with power to issue appropriate directions--­Possibility of infringement of rights or privileges of Society does exist if order under S.6 (1) is passed---Such order can be passed only if there is some material available with authority establishing a prima facie nexus with allegations made and after affording an opportunity to Society to present its version.

(b) Natural justice, principles of---

----Principles of natural justice are to be read into every statute, unless made inapplicable by express provisions or necessary intendment.

Iqbal Kazi for Petitioner.

Muhammad Sarwar Khan, A.A.-G. for Respondents.

Date of hearing: 18th October, 2001.

2003 Y L R 1520

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Mushir Alam, J

MUSHTAQ HUSSAIN SHAH---Petitioner

Versus

SINDH BAR COUNCIL and others---Respondents

Civil Petition No.D-588 of 2001, heard on 15th January, 2002.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S.16(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Vacancy of Provincial Bar Council, filling of---Such vacancy falling vacant on any account would be filled by a person, who had received highest number of votes in the same election and from the same district or group of districts, as the case may be, after the person/member whose seat was to be filled--­Principles illustrated.

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

----Ss.5 & 13(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Vancancy of Provincial Bar Council, filling of---Order passed by Advocate-General in his capacity as Chairman, Provincial Bar Council, wherein Members of Bar Council had no say, could neither be said to be an order/decision of Provincial Bar Council nor same could be challenged in appeal being not within categories of orders/decisions enumerated in S.13(2) of the Act---Only option available to petitioner would be to approach High Court by way of Constitutional petition.

Abrar Hasan for Petitioner.

Mustafa Lakhani for Respondent No.

Sarwar Khan, A.A.-G. for Respondent No. 2.

Imdad Ali Awan for Respondent No.3.

Date of hearing: 15th January, 2002.

2003 Y L R 1523

[Karachi]

Before Mushir Alam, J

CIVIL AVIATION AUTHORITY, QUAID-E-AZAM INTERNATIONAL AIRPORT, KARACHI---Claimant

Versus

AER RAINTA INTERNATIONAL PAKISTAN (PVT.) LTD., KARACHI---Respondent

Suit No.931 of 2002, decided on 29th January, 2003.

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

----S. 11 --- "Misconduct " by arbitrator/umpire---What implies.

In legal parlance with reference to arbitration proceedings misconduct implies failure to perform the essential duty of maintaining impartiality, equal treatment, just and proper assessment evaluation and consideration of facts, circumstances, evidence and material produced and relied upon by the parties. If the Arbitrator or Umpire while delivering an award abdicates such duties one can safely say that he mis-conducted himself. Courts have identified both moral and legal misconduct which implies favoures for financial or other extraneous consideration or culpable and deliberate act of omission or commission on the part of Arbitrator or Umpire prejudicially affecting the interest of any party to the Arbitration. Legal misconduct does not cast doubt on the integrity or moral attribute of the Arbitrator or Umpire. It implies where the Arbitrator or Umpire with all honest intention and belief, adopts a procedure or delivers the award or any part of the award not warranted by law, resulting in substantial miscarriage of justice.

Ghulam Rasood Lone v. Azad Jammu and Kashmir Government PLD 1971 Azad J&K 127 ref.

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

----Ss. 18 & 19---Contract procured by any representation, which is not correct, though innocent and unintentional and honestly believed to be correct is said to have been procured by misrepresentation in terms of S.18, Contract Act, 1872---Where one could infer in any representation element of deceit and malice with intent and purposeful object to defraud and gain advantage over the other then such representation enters into realm of fraud---Agreement procured either by misrepresentation or by playing fraud is voidable at the option of a party whose consent was so procured---Consequence of contract so procured are spelled out in S.19 of the Act---Exception to S. 19, Contract Act, 1872 provides protection against avoidances of the contract on such pretext, where it is shown tat a consenting party seeking to avoid contract on the pretext of misrepresentation or fraud had means to discover the truth with ordinary diligence before entering into a contract.

Ghulam Muhammad v. Fateh Muhammad 1987 CLC 2244 ref.

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

----S. 18---Misrepresentation--- "Forecast "--­Concept---Representation by a 'forecast" cannot be termed as "misrepresentation " in terms of S. 18, Contract Act, 1872 and be used as a cloak to avoid contract--­Principles.

The forecast as defined in Chamber's 20th Century Dictionary means, to contrive or reckon beforehand; to foresee; to predict to form schemes beforehand. From the meaning as referred, it could very well be said that the forecast is nothing but mere opinion, assessment, expectation, speculation or evaluation of certain future events, trend, happening or result. Invariably before undertaking any project, venture or task some objective assessment, feasibility, opinion or one may call, forecast is made. It is based on study of various variable factors as may be considered relevant for that specific project, venture; task or study. It is not always necessary nor one could guarantee that, such opinion, assessment, expectation, speculation or evaluation may materialize in future as anticipated, assessed, opined or forecast.

A forecast is not a matter of fact it is merely speculative in nature proximity of its turning into reality depends on the happening of variable contingencies in anticipated direction, with result different than what is opined, speculated or anticipated with which is not unusual but inherent. The misrepresentation as defined under section 18 of the Contract Act, is said to be in respect of existing facts, where it does not relate to an existing fact it cannot be said to be a misrepresentation in terms of section 18 of the Contract Act. Forecast as the word "itself" denotes is one's opinion as to future happening or occurrence as discussed above, where both the parties are aware of the true nature of the "representation" and knowingly not only enter into contract but act upon it for more than one year. Such representation cannot be termed as "misrepresentation" in terms of section 18 of the Contract Act and be used as a cloak to avoid contract. Where both the parties worked out their own respective assessment of happening of various variables that were considered necessary for viability of the project and their respective assessment did not come out to be as expected then one party cannot blame the other for the negative outcome or impact of the result, if any.

Chamber's 20th Century Dictionary ref.

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

----S. 18---Misrepresentation---Party seeking refuge behind plea of fraud or misrepresentation to avoid contract must be prompt in doing so, any delay in this context goes against the party who intends to avoid the contract on such pretext.

Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd., Karachi and 4 others PLD 1985 Kar. 481 ref.

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

----Ss. 33 & 30---Objection to award---No extraneous plea could be raised while hearing objections to the award---Court while hearing the objections to an award does not sit as a Court of appeal---Court of law leans in favour of upholding award---Court can examine the documents and material placed on record before the Arbitrator/Umpire not with intention to re-appraise or to re-evaluate the evidence which certainly cannot normally be undertaken in such findings---Such exercise can be carried out by the Court to satisfy itself that the Arbitrator/Umpire had taken note of each and every documents and arguments as pointed out and urged before the Court---Court, finding no merits in the objections, can order the award to be made rule of the Court.

Messrs Aslam Saeed & Co. v. Messrs Trading Corporation of Pakistan Ltd. PLD 1985 SC 69; K.P. Poulose v. State of Kerala and another AIR 1975 SC 1259; Government of N.-W.F.P. through Secretary Forests, Peshawar and 4 others v. Azizur Rehman 1991 MLD 422; Shaikh Muhammad Sadiq Muhammad Afzal v. Ministry of Industries, Department of Supply and Development, Government of Pakistan, Karachi PLD 1966 (W.P.) Kar. 412; Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sindh and 6 others PLD 1977 SC 237; West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi PLD 1973 SC 222; Messrs Hafeez Construction Co. v. Messrs Javedan Cement Ltd. 1989 CLC 885; Thawardas Pherumal and another v. Union of India AIR 1955 SC 468; House Building Finance Corporation v. Shahinshah Humayan Cooperative House Building Society and others 1992 SCMR 19; Ghee Corporation of Pakistan (Pvt.) Limited v. Borken Hill Proprietary Company Limited through their Local Agents PLD 1999 Kar.112; Province of Sindh and 4 others v. Waseem Construction Co. 1991 CLC 66; Bissett v. Wilkinson and another 1926 All ER 343; With v. O Flanagan 1936 All ER 727; Esso Petroleum Co. Ltd. v. Mardon (1976) 2 All ER 5; Howard Marine & Dredging Co. Ltd. v. A Oqden & Sons (Excavations) Ltd. (1978) 2 All ER 1134; Pakistan Tobacco Co. Ltd. .v. Pakistan, Cigarette Labour Union and another PLD 1977 Kar.586; Abdul Sattar & Co., Karachi v. Messrs Dada Ltd., Karachi PLD 1979 Kar.88; Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others 1994 MLD 1612; Inter-trade Ltd., Karachi v. Trading Corporation of Pakistan Ltd. and another PLD 1976 Kar.496; Haq Nawaz Khan and others v. Muhammad Yaqoob and others 1991 CLC 1606; Zaka­ullah Khan v. Muhammad Aslam and others 1991 SCMR 2126; Federation of Pakistan v. Messrs Al-Farooq Flour Mills Ltd. 2000 CLC 215; Ghulam Rasood Lone v. Azad Jammu and Kashmir Government PLD 1971 Azad J&K 127; Ghulam Muhammad v. Fateh Muhammad 1987 CLC 2244; Chamber's 20th Century Dictionary; Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd., Karachi and 4 others PLD 1985 Kar. 481 and Pakistan Shaheen Containers Services (Pvt.) Ltd. v. Trustees of Port of Karachi PLD 2001 Kar. 30 ref.

(f) Words and phrases---

--- "Forecast "---Definition.

Chamber's 20th Century Dictionary ref.

Zahid F. Ebrahim for Claimant.

Anwer Mansoor Ahmed Khan for Respondent.

Dates of hearing: 27th, 30th, 31st December, 2002; 1st and 2nd January, 2003.

2003 Y L R 1535

[Karachi]

Before Amir Hani Muslim, J

AL-ABDULLAH CONSTRUCTION (PVT.) LTD.---Plaintiff

Versus

WAPDA---Defendant

Suit No. 385 of 2001, decided on 29th January, 2003.

(a) Contract---

---- Interpretation of agreement---Language of provision of a contract, has to be interpreted in a manner so as to gather the intent of the parties but at the same time, the eventualities which are not covered should also be read into it by examining the conduct of the parties---Any person who has failed to discharge his liability cannot seek benefit of a provision of a contract unless it is shown that he has discharged his obligations under the contract.

(b) Contract--

---- Installation of electric line by the contractor---Inordinate delay on the part of the Authorities to carry out inspection and commission of work done by the contractor could not be made ground to withhold "substantial completion certificate" nor could the contractor be made liable to make good loss of such stolen material which was installed by the contractor under the garb of any clause of the contract---No justifiable explanation was given by the Authorities which could appeal to the reason that the contractor was liable to make good the loss in the given circumstances---Effect---No party could be allowed to take advantage of its own wrong---Authorities, in circumstances, were in default and could not recover any loss under the pretext of the insurance policies which was the responsibility of the contractor for a certain period of time and such liability could not be extended to indefinite period---If the Authorities had failed to inspect the site and commission the installation for years together then the responsibility/liability would continue in the terms of clauses of agreement that of the Authorities---Delay of the nature by the Authorities, in circumstances, had bearing on the duties of case by the contractor under the clause of agreement.

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

---Ss. 30, 33 & 17---Objection to award--­Contention was that no opportunity was provided to the objectors in the proceedings---Validity---Both the parties had led evidence by producing documents and were further allowed to produce additional evidence---Parties had admittedly not offered oral evidence before the arbitration proceedings---Held, it was unfair, in circumstances, on the part of the objector to raise objection before the Court that they had not been provided opportunity.

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

----Ss.30, 33 & 17---Objection to award--­Contention was that the Arbitrators had given their findings beyond the terms of reference--­Validity---Contents of the written reference made by the objector and claim before the arbitrators showed that controversy had been decided within the terms of the reference--­Findings of the Arbitrators, in circumstances, were not beyond the terms of reference.

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

----Ss. 30, 33 & 17---Objection to award--­Contention was that the arbitrators were influenced by the reasoning of another award while giving the impugned award and had adopted their reasonings therein without applying their independent mind ---Validity--Arbitrators had discussed in detail the entire material which the parties had placed before them and thereafter in the last paragraph of their findings they had concurred in addition to such material with the findings of the Arbitrators in the other award---Such course by itself, held, was no ground to set at naught the impugned award.

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

----Ss. 30, 33 & 17---Objection to award--­Contention was that the plaintiffs had not filed any counter-affidavit to the application under S. 30 read with S.33 of the Arbitration Act, 1940, therefore, it amounted to admission on the part of the plaintiffs and they were estopped in law from arguing the matter otherwise---Validity---Affidavits were sworn in regard to the facts which were within the knowledge of deponents---Party was required under the law to plead a fact and not the proposition of law---Arbitration proceedings were governed by the general principles of C.P.C. and therefore, non filing of a counter-affidavit in regard to the legal controversy raised in the application under S.30 read with S. 33 of the Act, could not be termed as admission.

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

----Ss. 17, 30 & 33---Examination of award did not show any finding therein which was based on import of any agreement which did not exist between the parties---Findings were based on construction of clauses and specifications of the agreement---Court, could not substitute its own view even if a different view was possible to upset the findings of Arbitrators which findings were otherwise very correctly based on the material produced before the Arbitrators---Court, by overruling the objections ordered the award to be made rule of the Court in circumstances.

James Finlay & Co. v. Gurdayal AIR 1924 Sind 91; R.B. & C. Ltd. v. Muhammad Amin Muhammad Bashir Ltd. 1987 .CLC 83; Farida Malik v. Khalida Malik 1998 SCMR 816; Abdul Hafeez Abbasi v. M.D., PIA 2002 SCMR 1034; Ghulam Nabi v. Khuda Bux PLD 1984 Kar. 245; Aslam Saeed & Co. v. Trading Corporation of Pakistan Ltd. PLD 1985 SC 69; Pakistan v. Rajistan Alloy & Steel Ltd. 2002 CLD 61; Muhammad Hayat Khan v. Rehma Khatoon 2002 SCMR 473; Amir Ali Malik v. Transpak Corporation Ltd. 2002 CLC 129; Tribal Friends v. Province of Balochistan 2002 SCMR 1903; Joint Venture KG/RIST v. Federation of Pakistan PLD 1996 SC 108; National Construction Co. v. WAPDA PLD 1987 SC 461; Ghulam Abbas v. Trustees of Port of Karachi PLD 1987 SC 393; Ashfaq Ali Qureshi v. Municipal Corporation 1985 SCMR 597 and Lahore Development Authority v. Messrs Khalid Javed & Co. 1983 SCMR 718 distinguished.

Muhammad Masood Khan for Plaintiff.

Samiuddin Sami for Defendant.

Dates of hearings: 22nd, 23rd, 27th, 28th and 29th January of 2003.

2003 Y L R 1547

[Karachi]

Before Anwar Zaheer Jamali, J

PK MUHAMMAD ---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY---Respondent

Revision Application No. 93 of 1999, decided on 17th February, 2003.

(a) Specific Relief Act (1 of 1877)---

----Ss.42 & 55---Suit for declaration and permanent injunction---Legal character of plaintiff---Determination---Plaintiff, claiming himself to be an old tenant on ground floor of building, filed suit against a notice issued by the Building Control Authority to the effect that structure of the said building was ruinous and dangerous beyond the repair and directed that existing ground floor of the building be removed forthwith failing which the Authority shall cause the same to be done at the plaintiff's risk and cost without further notice---Validity---Notice, by the Building Control Authority, impugned by the plaintiff, was a threat of his dispossession from the rented property, which was natural consequence of demolition of ground floor of the building in his possession---Tenant, in such circumstances, was well within his rights to challenge the legality of such action proposed to be taken by the Building Authority by filing a suit for declaration and permanent injunction---Even the landlord of a property could not dispossess his tenant from the rented property, except in due process of law---Tenant or lawful occupant had legal character as contemplated under S.42, Specific Relief Act, 1877 to protect his possession and avoid dispossession without due process of law---Case was remanded to the lower Court for disposal in accordance with law.

Messrs Haji Khuda Bux v. Karachi Building Control Authority and others PLD 1998 Kar. 307 ref.

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

----O.VII, R.11---Rejection of plaint--­Requirements---For the purpose of examining the question of rejection of plaint the prayers made in the plaint are not to be read in isolation from other contents but the averments of the plaint including prayers, are to be examined as a whole, keeping in mind that it is the substance rather than form which is material for the purpose.

K.B. Bhutto for Applicant.

Mrs. Saba Siddiqui for Respondent.

Date of hearing 17th February, 2003.

2003 Y L R 1550

[Karachi]

Before Sabihuddin Ahmed, J

NISAR AHMED ---Petitioner

Versus

ANWAR RAEES and another---Respondents

Constitutional Petition No. 698 of 2002, decided on 17th February, 2003.

(a) Counsel and client--

---- High Court issued a word of caution to the effect that greater amount of rectitude and fairness was expected from members of the Bar and it was important that instead of lawyers being swayed by the desire of their clients they ought to accord due importance to the dignity and stature of the noble legal profession.

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

----Ss.14, 15 & 2(f)---Ejectment application filed by rent collector ---Validity---"Landlord "--Definition---Landlord expressly includes anybody authorized or entitled to receive rent i.e. a rent collector---No serious objection, therefore, can be taken to the filing of an application for ejectment by the rent collector.

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

----Ss.15(1)(vii) & (2)(f)---Bona fide personal need of landlord---Filing of ejectment petition on the ground of bona fide need of landlord by the rent collector who also happened to be the son of landlord ---Validity---Ejectment application by the son of the owner would be competent on the ground that premises was required for his need in such capacity--­Principles.

Ejectment cannot be ordered merely on the ground of personal need of a mere rent collector. Indeed section 15(1)(vii) of the Sindh Rented Premises Ordinance, 1979 permits ejectment on the ground of requirement in good faith for occupation or use of landlord, his spouses or his children. The above provision would be applicable only when the premises is required by the owner or his spouses or children and not for an outsider who may be designated as a Rent Collector. Nevertheless, it is apparent from the record that in the present case Rent Collector was admittedly a son of the alleged owner and an ejectment application would be competent on the ground that the premises was required for his need in such capacity.

It was contended that there was no evidence as to the nature of business required to be performed in the tenanted premises. This, however, was not fatal.

Rent Collector, therefore, had made out a case for ejectment on the ground of personal need and no interference in Constitutional jurisdiction was called for.

Saira Bai v. Syed Anis-ur-Rehman 1989 SCMR 1366 ref.

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

----Ss. 15 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Petitioner assailing the ejectment order passed against him on the ground of personal bona fide need of the landlord and default--­Contention of the petitioner was that the ground of willful default had not been proved and such aspect might be considered--­Validity---Held, it was not necessary to do so to every case inasmuch as one of the grounds for ejectment had been duly proved before the statutory Tribunal---High Court dismissed the petition accordingly.

Feroze Hassan Shaikh for Petitioner.

Khalid Javed for Respondent No. 1.

2003 Y L R 1552

[Karachi]

Before Muhammad Moosa K. Laghari, J

TRUST MASJID-E-SHAHOODA---Petitioner

Versus

FIDA HUSSAIN and others---Respondents

Constitution Petitions Nos.S-857 to 870 of 2002, decided on 25th February, 2003.

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

----Ss. 13, 14 & 15---Ejectment of tenant--­Landlord and tenant, relationship of---When admittedly the person who claimed himself to be landlord had never collected rent or alleged tenant had never paid rent to him, it could not be said that relationship of landlord and tenant existed between the parties---Evidence on record also did not establish the relationship of landlord and tenant between the parties---Entitlement of a person claiming himself to be landlord to collect rent was subject-matter of a separate suit pending in the Civil Court---Rent Controller, in circumstances, had rightly dismissed the application for ejectment of tenant holding that there did not exist relationship of landlord and tenant between the parties.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdic­tion was a discretionary jurisdiction meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course either as an additional remedy or to disturb the findings of fact, correctly recorded by the forums below---Where the judgment passed by the lower forum did not suffer from any perversity, illegality or infirmity, no interference was warranted under Art. 199 of the Constitution.

S. Shamim Ahmed Petitioner.

2003 Y L R 1555

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

UBEDULLAH KHAN and another--Petitioners

Versus

MUHAMMAD AYOOB and 10 others --- Respondents

Civil Petition NoD.555 of 2002, decided on 20th November, 2002.

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

----S. 14---Sindh Local Government Elections Rules, 2000, R.16(3)(ii)---Qualifications for candidates and elected members--­Declaration of returned candidates void--­Returned candidate was a Government servant and had not yet completed six months before his participation in the election Material date on which period of six months as required under S.14(g) of Sindh Local Government Ordinance, 2000 would end--­Determination---Material day for the candidate would be nomination day--­Principles.

Section 14 of the Sindh Local Government Ordinance, 2000 does not specify the cut off date. Rule 82 clause(b) of sub-rule (1) of Sindh Local Government Elections Rules, 2000 clearly provides that the material day for determination of the period would be the nomination day. Such provision is further strengthened by the Nomination Form III(B) wherein in its part 'D' both the candidates have to declare on solemn affirmation, inter alia, that they are fully qualified under section 14 of the Ordinance to be elected as such. This declaration by the candidates is on solemn affirmation on the day on which the Nomination Form is filed.

Nomination Form in the present case was filed by the candidate on which date the period of six months, as required under section 14, was short by six days. Candidate thus as per his own solemn affirmation on the day of filing of the Nomination Form was not qualified to contest such seat. His declaration as aforesaid in Part 'D' of the Nomination Form turned out to be a mis-declaration or a wrong declaration. Clause (b) of the rule 82 makes it very clear, by providing that the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member or Nazim or Naib Nazim, as the case may be.

The candidate having not completed the period of six months on the day of filing of Nomination Form suffered from disqualification as envisaged under section 14(g) of the Ordinance (X of 2000), and the rules framed thereunder.

Muhammad Saad Shibli v. Commissioner 1985 CLC 2190; Ch. Muhammad Hussain v. Election Tribunal and another 1982 SCMR 307 and PLD 1986 Kar. 46 distinguished.

1998 SCMR 2419; 1985 CLC 2190; 1982 SCMR 1086; PLD 1986 Kar. 46; 1988 SCMR 2419 and Muhammad Mansha and others v. Government of Punjab 1984 CLC 2231 ref.

(b) Interpretation of statutes-

---- Interpretation of an enactment has to be natural, appropriate and should give the words their ordinary meaning.

(c) Interpretation of statutes---

---- Rules under a statute---Force---Rules have the same force as the provisions of the statute under which those are framed.

Lachhman Das for Petitioner.

S. Manzar Alam for Respondents Nos. 1 and 2.

Date of hearing: 20th November, 2002.

2003 Y L R 1560

[Karachi]

Before Ata-ur-Rehman and Muhammad Mujeebullah Siddiqui, JJ

PAKISTAN STEEL MILLS CORPORATION LTD. ---Appellant

Versus

Messrs MUSTAFA SONS (PVT.) LIMITED---Respondent

High Court Appeals Nos. 125 and 136 of 2000, decided on 27th March, 2002.

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

----S. 30---Application for setting aside the award on the ground that claim of the party was barred by time---Validity---Contract of construction work---Award and judgment of the Court revealed that Arbitrator had discussed each and every point raised by the objector before him, more particularly the ground of limitation---Arbitrator had taken into consideration the contention raised by the parties as to which of the Articles i.e. 65 or 115 of the Limitation Act, 1908 was applicable and after discussing the scope of Arts.65 & 115, Limitation Act, 1908 and relevant clauses of the contract found that the starting points of the limitation in the Arbitrations were the dates on which plaintiff received the maintenance certificate from the Authorities---Held. Court while examining validity of the award would not act as a Court of appeal---Where the reasons recorded by the arbitrator were challenged as perverse, the perversity in the reasons had to be established with reference to the material considered by the arbitrator in the award--­Arbitrators were to decide all questions of law and fact which included the point of limitation---Determination of question of limitation entirely depended upon assessment of evidence---Where neither the findings of the arbitrator nor that of the Trial Court were perverse or suffering from any illegality, interference was declined by the High Court in appeal.

Joint Venture KG v. Federation of Pakistan PLD 1996 SC 108 and State Life Insurance Corporation v. Abdul Latif Construction Company and others 1984 CLC 155 ref.

(b) Administration of justice---

----Speedy and inexpensive justice—­Adjudication of disputes between the parties through arbitrations and by forums other than by the ordinary Courts---High Court noticed that despite the declared policy of the Government for ensuring speedy and inexpensive justice even Government Departments and statutory bodies, so frequently, were indulging in wasteful and unnecessary litigation; and that it was at their behest that in all contracts entered into by them a clause was inserted to the effect that any dispute which may arise during the completion of the contract between the parties would be decided through arbitration and forums other than by the ordinary Courts.

L.D.A. v. Khalid Javed & Co. 1983 SCMR 718 ref.

Akhtar Ali Mahmood for Appellant.

Khalid Jawaid Khan for Respondent.

Date of hearing 27th March, 2002.

2003 Y L R 1562

[Karachi]

Before Gulzar Ahmed, J

SHAKEEL AHMED ‑‑‑Petitioner

Versus

IV‑ADDITIONAL DISTRICT JUDGE (CENTRAL), KARACHI and another‑‑‑Respondents

Constitutional Petition No.598 of 2002, decided on 3rd January, 2003.

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

‑‑‑‑S. 14(1)‑‑‑Bona fide personal need of landlord ‑‑‑Ejectment application by landlord retired on Golden Handshake Scheme from Bank‑‑‑Maintainability‑‑‑Term "retire" as used in S.14 of the Ordinance is used independent of the age of landlord‑‑‑Age of sixty years has been separately made a ground for seeking delivery of the possession of the premises‑‑‑Term "retire", therefore, has to be interpreted in its ordinary sense‑‑­Provision of S.14(1), Sindh Rented Premises Ordinance, 1979 being applicable to the case of voluntary resignation, application for ejectment of tenant by a landlord, who had retired from Bank under Golden Handshake Scheme, was maintainable under S.14, Sindh Rented Premises Ordinance, 1979‑‑‑Princi­ples.

(b) Words and phrases‑‑‑

-----"Retirement " and "resignation "‑‑‑Meaning.

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

‑‑‑‑S. 2(g)‑‑‑ "Tenant "‑‑‑Person who continues to be in possession or occupation of the premises after termination of tenancy, remains a "tenant".

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

‑‑‑‑S. 14‑‑‑Bona fide personal need of landlord‑‑‑Contention of the tenant was that landlord had got possession of another shop and had let out the same during the pendency of ejectment proceedings against him‑‑­Validity‑‑‑Entering into a fresh agreement with the sitting tenant did not create fresh tenancy but was merely a continuation of already existing tenancy on same terms and conditions‑‑‑Landlord, in circumstances, did not get possession of the shop from the sitting tenant and let out the same to him again.

Hafiz Abdul Baqi for Petitioner.

Shabbir Ahmed Shaikh for Respondent.

Date of hearing 23rd September, 2002.

2003 Y L R 1567

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

MUHAMMAD RAFIQ‑‑‑Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY through its Secretary/D.G. and 14 others‑‑‑Respondents

Suit No.803 of 1997, decided on 3rd February, 2002.

Civil Procedure Code (V of 1908)‑‑­

‑‑‑‑O. VII, R. 11‑‑‑Rejection of plaint‑‑‑Technical ground‑‑‑Plaint could not be rejected on technical ground without giving an opportunity to the plaintiff for rectifying the technical defect.

Ms. Kauser Amin for Plaintiff.

Syed Muzafar Imam for Defendant No.4.

Khalid Mahmood for Defendant No.5.

2003 Y L R 1570

[Karachi]

Before Sabihuddin Ahmed and Syed Ali Aslam Jafri, JJ

MUHAMMAD SHAKEEL‑‑‑Petitioner

Versus

KARACHI DEVELOPMENT AUTHORITY through Director­ General‑‑‑Respondent

Constitutional Petitions Nos.D‑1826, 1827 and Miscellaneous Application No.6047 of 2001, heard on 20th May, 2002.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.39‑‑‑Cancellation of document‑‑­Provision of S.39, Specific Relief Act, 1877 enables any person apprehending that a written instrument, which is void or voidable, and if left outstanding may cause him serious injury, to approach a competent Court for getting the document so adjudged.

Ms. Kausar Amin for Petitioner.

Syed Muzaffar Imam for Respondent.

2003 Y L R 1582

[Karachi]

Before S. Ali Aslam Jafri, J

ZAHEER BEHZAD and others---Applicants

Versus

THE STATE---Respondent

Criminal Revision No. 102, Criminal Miscellaneous Applications Nos.406, 407, 408, 414 and 460 of 2000, decided on 13th January, 2003.

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

----Ss. 409/261/262/263/34---Sindh Enquiries and Anti-Corruption Act (VIII of 1991), Ss.8 & 9---Sindh Enquiries and Anti-Corruption Rules, 1993, R.11---Pakistan Criminal Law (Amendment) Act (XL of 1958), S.4--­Criminal Procedure Code (V of 1898), Ss. 439 & 561-A---Quashing of proceedings ---F.I.R. in the case was registered with Police Station, on the basis of a written complaint from S. P. of Crime Branch Police and it was neither transferred to the Anti-Corruption Police under sub-rule (5) of R.11 of Sindh Enquiries and Anti-Corruption Rules, 1993, nor it was investigated by any officer of Anti-­Corruption Establishment---Sub-rules (1), (2), (4) & 5 of R.11 of the said Rules placing embargo on registration and investigation of a case without approval of the Competent Authority did not stand covered by Sindh Enquiries and Anti-Corruption Act, 1991--­Rule-making Authority seemed to have taken upon itself the functions of Legislature--­Rules were made by Executive Authorities and not by Legislature and the same had to remain within the parameters of the Statute and the moment they or some of them travelled beyond the provisions of the parent law, they were to be struck down as ultra vires---Said sub-rules could be dubbed as an exercise of legislation and an act of usurupation by the rule making authority--­Provisions of the Sindh Enquiries and Anti­Corruption Act, 1991, according to its S.8 were in addition to and not in derogation to the provisions of any other law for the time being in force---Trial Court had already taken cognizance of the case under S.4(1) of the Pakistan Criminal Law Amendment Act, 1958---Petitions for quashment of proceedings pending against the accused in the Court of Special Judge, Anti-­Corruption (Provincial), Karachi, were dismissed in circumstances.

Syed Murad Ali Shah and others v. Government of Sindh and others PLD 2002 Kar. 464 distinguished.

Miraj Khan v. Gull Ahmed and others 2000 SCMR 122; Mian Munir Ahmad v. The State 1985 SCMR 257; Shahnaz Begum. v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Adamjee Insurance Company Limited v. Assistant Director Economic Enquiry Wing 1989 PCr.LJ 192; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Saleem Hussain v. The State PLJ 1996 Criminal Cases Lahore 916; Mahboob Ali v. The State and 3 others PLD 1996 Lah. 454; Tariq Latif Butt and others v. The State and 4 others 1996 MLD 1874; Muhammad Sharif v. S.H.O., P.S. City, Hafizabad PLD 1997 Lah.692 and Province of Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

(b) Constitution of Pakistan (1973)--

----Art. 189---Decisions of Supreme Court binding on other Courts---Rule laid down and the law declared by Supreme Court by virtue of Art. 189 of the Constitution is binding on all Courts and Authorities in Pakistan ---Any judgment passed by any Authority or Court contrary to the law laid down by the Supreme Court shall be a judgment per incuriam.

S.M. Aamir Naqvi for Applicant (in Revision No. 102 of 2000).

Abdul Mujeeb Pirzada and S. Khalid Shah for Applicants (in Criminal Miscellaneous Applications Nos.406 and 407 of 2000).

Muhammad Nasrullah Siddiqui for Applicant (in Criminal Miscellaneous Application No.414 of 2000).

Ch. Iftikhar Ahmed for Applicant (in Criminal Miscellaneous Application No.460 of 2000).

Messrs Jawed Akhtar and Fazlur Rehman Awan for the State (in all the above six Cases).

Dates of hearing: 14th May; 20th August 2001; 16th September and 18th 2002.

2003 Y L R 1625

[Karachi]

Before S. Ali Aslam Jafri, J

Syed SAKHAWAT ALI SHAH---Petitioner

Versus

Mst. SHABANA SHAH and 2 others---Respondents

Constitutional Petition No.771 of 2002, decided on 8th October, 2002.

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

----S.5 & Sched.---Guardians and Wards Act (VIII of 1890), S.25---West Pakistan Family Courts Rules, 1965, R.6---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minor---Territorial jurisdiction of Family Court---Mother after obtaining custody of a suckling baby at Karachi by filing habeas corpus petition filed case for custody of second child---Family Court at Karachi returned the case for want of jurisdiction as minor by that time was residing with grandmother at Kohat--­Appellate Court set aside such order--­Validity---Marriage of parties was solemnized at Karachi, where they were still residing--­Both children were born at Karachi, where they were available, when habeas corpus petition was filed---Second minor had been shifted to Kohat thereafter---Shifting of minor by father to Kohat in circumstances would not divest Courts at Karachi of its powers to entertain and deal with the matter--­Jurisdiction in such circumstances would lie with Family Court at Karachi---High Court dismissed Constitutional petition.

Khalilur Rehman v. Mst. Tajunnisa and others 1991 CLC Note 62 at p.46 and Anne Zahra v. Tahir Ali Khilji and 2 others 2001 SCMR 2000 ref.

Abid Hussain and Aurangzeb for Petitioner.

Adnan Ahmed for Respondent No. 1.

2003 Y L R 1647

[Karachi]

Before Rehmat Hussain Jafferi, J

NIZAMUDDIN and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.494 of 2002, decided on 5th March, 2003.

Criminal Procedure Code (V of 1898)---

----S.497----Penal Code (XLV of 1860), Ss.302/324/148/149 --- Bail --- Incident had taken place in the street in which the parties resided---Accused alongwith six other accused persons while armed with deadly weapons made a firing at the deceased and caused injuries to the prosecution witnesses with "Lathis" with common intention to commit the murders---Bail was refused to the accused in circumstances---Accused who had not been assigned any role of causing injuries to any body, was admitted to bail accordingly.

Criminal Bail Application No.D-821 of 2001; Criminal Bail Application No. 154 of 2002 and Nazar Muhammad v. Talib Hussain 1991 SCMR 1320; Aminul Haque v. The State 1994 MLD 1017 and Inayat v. The State 2002 SCMR 129 ref.

Ali Nawaz Ghanghro for Applicant.

Muhammad Ayaz Soomro for the Complainant.

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

2003 Y L R 1664

[Karachi]

Before S. Ali Aslam Jafii, J

DARAIUS COOPER---Petitioner

Versus

Mrs. SOONU F. KANDAWALA and others---Respondents

Revision Application No.194 of 2001, decided on 3rd February, 2003.

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

----O. VIII, R. 1 ---Written statement could not be deemed to be a substantive evidence in a suit where defendant did not appear to support the pleas raised therein and to offer himself for cross-examination on facts stated in the written statement, hence the pleas raised therein could not be relied upon--­Before the Court could be called upon to make any presumption of the kind, it was for the plaintiff to satisfy the Court that he had made out a prima facie case---Question as to what was 'prima facie' was to be seen from the evidence and the material available on the record---Where the plea of the plaintiff, prima facie, did not appear to have any nexus with that of the defendant, non-appearance of the said defendant in support of his plea taken in the written statement denying the case of the plaintiff was immaterial and shall not justify the drawing a presumption against him.

Mst. Maryam Mirza v. M.M. Kazi and others 1988 MLD 1651 ref.

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

----S.70---Obligation of person enjoying benefit of non-gratuitous act---Agreement need not be in writing always---Where a person, even in the absence of an agreement, lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation, to the former in respect of or to restore the thing so done or delivered.

Messrs Ahmed Constructions v. Messrs Neptune Textile Mills and another PLD 1990 Kar. 216 ref.

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

----S.70---Brokerage---Entitlement to claim and recover his commission/brokerage by a broker/claimant---Test.

The following is test in order to ascertain whether a broker/claimant for his commission/brokerage is entitled to recover the same in view of the facts of case. The test in such cases is whether the broker, who claims brokerage, is the effective and efficient cause of the completion of the transaction. The causa causans and not the causa sine qua non of the deal. If the transaction has resulted only as a casual and remote consequence of the broker's intervention, that would not be sufficient: further if the negotiations on the part of the broker have completely ceased and have been abandoned "at the time his employment as a broker has ceased, the agency of the broker ceased too, and with it the right to claim remuneration.

Thus, it will have to be seen (1) whether the plaintiff/broker was effective and efficient cause of the completion of the transaction i.e. the causa causans (the immediate cause) and not the causa sine qua non (a necessary and inevitable cause)? (2) whether the broker shall be entitled to his commission even if the transaction had resulted only as . a casual and remote consequence of the broker's intervention? (3) Whether negotiations on the part of broker had completely ceased and had been abandoned and he had ceased to be a broker?

Haji Qabool Muhammad Shah v. Pir Sarfraz Ahmed PLD 1974 Kar. 334 ref.

M. Zubair Qureshi for Applicant.

R. F. Virjee for Respondents Nos. 1 to 3.

Abdul Sattar Usman Memon for Respondent No.7.

Date of hearing: 27th November, 2002.

2003 Y L R 1673

[Karachi]

Before Muhammad Moosa K. Laghari, J

AURANGZEB---Plaintiff

Versus

Messrs SUI SOUTHERN GAS COMPANY LTD.- --Defendant

Suit No.24 of 1998, decided on 8th February, 2002.

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

----Ss. 42, 54, 55 & 56---Suit for declaration, mandatory injunction and damages--­Contention of the plaintiff was that the defendant-Company had disconnected his gas connection on the allegation that he was using unmetered gas by installing a device in the meter fixed at his premises; that the supply of gas was illegally disconnected as he had refused to pay Bhatta to the personnel of the defendant-Company; that he had suffered losses of business, respect and goodwill on account of false and manufactured ground of theft of gas, his prestige was lowered down in the eyes of his customers, friends, relatives and as such he, was entitled to the damages--­Validity---None of the witnesses produced by the plaintiffs were able to prove the allegation with regard to demand of Bhatta by any of the staff members of the defendant-­Company---Names of the particular person/staff member was neither mentioned in the plaint nor in the affidavit-in-evidence by the plaintiff---Plaintiff in fact was consuming the gas in an illegal manner by using unfair means and had also levelled vaxatious allegations against the defendants for demanding Bhatta which could not be substantiated by him---Plaintiff having no legal character was not competent to maintain suit under S.42, Specific Relief Act, 1877 and further having approached the Court with unclean hands, he was not entitled to discretionary relief of declaration and injunction.

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

----S. 42---Suit for declaration---Plaintiff can come to the Court for the declaratory relief with regard to his "legal character" or any right to property--- "Legal character" or "status " as mentioned in S.42 of the Act denotes a character or status conferred by law and not conferred by, contract---Provision of S.42, Specific Relief Act, 1877 applies only to a legal character or status apart from a contract.

PLD 1968 Kar. 222; Pakistan International Airlines Corporation and 5 others v. M. Izharul Aahsan Qureshi PLD 1979 Kar. 640; Agricultural Development Bank of Pakistan and 3 others v. Anwar Hussain Jatoi PLD 1982 Kar.313; PLD 1998 Kar.59; PLD 1978 Lah.113; 1998 CLC 165 and 1999 CLC 1719 ref.

Choudhry Muhammad Iqbal for Plaintiff.

Raja Sikandar Khan Yasir for Defendant.

Dates of hearing: 24th, 25th and 31st October, 2001.

2003 Y L R 1696

[Karachi]

Before Mushir Alam, J

NATIONAL ENGINEERING SERVICES PAKISTAN (PVT.) LTD.---Plaintiff

Versus

STEEL MILL CORPORATION---Defendant

Suit No. 1217 of 1998, decided on 10th February, 2003.

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

----S. 30---Limitation Act (IX of 1908), Art. 158---Filing of objections ---Limitation--­Objections cannot be said to be beyond the limitation if there is no material to show that defendants were served otherwise on a date before the date of filing of Vakalatnama.

A.K. Fazalul Quader Chaudhry v. Syed Shah Nawaz and others PLD 1966 SC 108 distinguished.

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

----S. 30---Objection to award---Non filing of affidavit in support of objections---Effect--­Merely because the objections were not supported by affidavit, will not ipso facto be sufficient to throw out the objections.

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

----S. 41---Civil Procedure Code (V of 1908), Preamble ---Qanun-e-Shahadat (10 of 1984), Preamble---Procedure and powers of Court--­Provision of S. 41, Arbitration Act, 1940 though provided that Code of Civil Procedure was applicable to the arbitration proceedings, but the rigours of Civil Procedure Code and so also intricacies of the Qanun-e-Shahadat could not be invoked by virtue of S. 41 of the Arbitration Act, 1940.

Ismail Brother v. S.M. Fazail & Co. PLD 1958 (W.P.) Kar. 158 and Azad Government of the State of J&K v. Muhammad Aslam PLD 1981 Azad J&K 71 and PLD 1981 Azad J&K 77 ref.

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

----S. 34---Provision of S. 34, Arbitration Act, 1940 is not a barring provision on its own application---Bar to adjudicate upon only comes into play when one of the parties to the suit, who is also a party to arbitration agreement seeks to enforce the arbitration clause then usually the Court enforces such arbitration clause and stays its hands off from the dispute, leaving it open to the arbitrator to decide the same in accordance with the wishes of the parties---When a plaintiff who has filed a suit agrees to a proposal made by the defendant to resolve the dispute through agreed medium of arbitration then it is up to the plaintiff either to make reference in respect of subject-matter of the suit to the arbitration or may make reference including all other claims or disputes as may be ripe for the purpose of making reference.

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

----S. 2(a)--- "Arbitration agreement "--­Definition---Definition as given in S. 2(a) of the Act postulates submission of present or future differences---Plural use of difference clearly indicates that there can be more than one differences that may arise, if such being the case then each may be subject-matter of separate reference which of course depends on the nature of the contract.

Azad Government of the State of J&K v. Muhammad Aslam PLD 1981 Azad J&K 71 and PLD 1981 Azad J&K 77 ref.

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

----S. 21---Civil Procedure Code (V of 1908), S.11---Reference---Res judicata---When a party exercises its option to convert a dispute into a reference, other party is obliged to enter into the arbitration and subject to limitation, same cannot be resisted on the ground that it was not raised at a particular point of time ---Res judicata, principle of--­Applicability---Scope.

It is only a dispute that had been referred to arbitration, whether an award was given or not, cannot be the subject-matter of a subsequent reference and to that extent such dispute may be -hit by the principle of res judicata and not otherwise. Disputes, which could have been raised when making a reference but, were not raised, could not be said to be hit by the principle of constructive res judicata. There can be successive claims depending on nature of contract, maturing into a difference and at the option, of party to the agreement, may be subject-matter of reference. The moment a party exercises its option to convert a dispute into a reference, other party is obliged to enter into the arbitration and subject to limitation, same cannot be resisted on the ground that it was not raised at a particular point of time.

Azad Government of the State of J&K v. Muhammad Aslam PLD 1981 Azad J&K 71 and PLD 1981 Azad J&K 77 ref.

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

----S. 34---Once a party exercises the option to invoke arbitration clause in terms of S. 34, Arbitration Act, 1940 that is manifestation of its readiness and willingness to do all things necessary to the proper conduct of the arbitration---Readiness and willingness to do all things necessary to the proper conduct of the arbitration, is one of .the pivotal considerations for the Court to stay the proceedings at the motion of the party who seeks to invoke S. 34 of the Act---Once a plaintiff is driven to, the arbitration, it does not lie in the mouth of defendant to object to the authority or jurisdiction of the arbitrator to entertain the reference provided dispute urged before the arbitrator is covered by the arbitration clause.

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

----S. 21, 20 & 34---Reference to the arbitrator that may confine to the claim in suit is postulated when such reference is made under S. 21, Arbitration Act, 1940---Where reference is made to arbitrator either by invoking S. 20 or S. 34 of the Act, such limitation would not apply and party seeking a reference pursuant to S. 20 and/or S. 34 tray make reference covering dispute beyond claims made in suit, provided such dispute do not travel beyond disputes covered under the arbitration clause---Reference to the arbitrator could include all the claims as may be considered ripe for reference by a party to the agreement.

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

----S.210 & First Sched., Table A, Regln. 53-­Contract made by a corporate body--­Requirements---Directors of a Company may delegate authority to its members as they may deem fit---Object of S.210, Companies Ordinance, 1984 appears to protect third party/outsider, dealing with a corporate authority as, such person cannot be expected to be aware of the internal arrangement of a corporate management---Any person dealing with a company must bona fide believe that the person with whom he is dealing has or could have been delegated such authority--­Company is bound by commitment made by a person having ostensible authority to represent the Company.

Sanaullah v. Muhammad Rafiq 2003 CLC 138; Hely Hutchinson v. Brayhead Ltd. (1966) 2. All ER 14 and The Pakistan Employees Co-operative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474 ref.

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

----S.210 & First Sched., Table A, Regln.53-­Arbitration Act (X of 1940), S.21--­Arbitration proceedings---Factors to be demonstrated by a third party or a stranger dealing with a Company, stated---Disowning of an act of omission and commission of person who represents the Company---Effect.

A third party or stranger dealing with a company has to demonstrate:

(1) That the relationship of a person acting on behalf of the Company, prima facie, is so proximate that one may bona fide tend to believe that he possesses due authority either under the Charter of the Company or by way of delegation to transact such business.

(2) Transaction must be bona fide, in good faith and in usual course of Company's business.

(3) Transaction must be in relation to or incidental to the object/business of the corporate entity.

(4) Company despite being aware of the transaction did not repudiate it nor dis­puted the authority of its agents.

If a Corporate Body is allowed to disown the act of omission and commission of person who represents the Company then no sanctity could be attached to any transaction that may be entered into by such Corporate Body running its day to day affairs through its directors and managers.

In absence of any evidence to the contrary, any unequivocal commitments made by the officers of the Corporation will have to be honoured as, otherwise, it would amount to deceiving the other side by making false promises. Equity must prevail in arbitration proceedings unlike the process of the Court where the strict principles of law might hold sway.

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

----S. 37---Arbitration---Limitation---Limitation by virtue of S. 37, Arbitration Act, 1940 applies to arbitration as it applies to proceedings in Court---Limitation would begin to run only when claim is repudiated and not otherwise.

Salman Talibuddin for Plaintiff.

Akhter Ali Mehmood alongwith Tanvir Sibtain Mahmud for Defendant.

Date of hearing: 22nd January, 2003.

2003 Y L R 1721

[Karachi]

Before Wahid Bux Brohi, J

SOOMRO alias SOOMAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.733 of 2002, decided on 7th January, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324/337-A(ii)/337-F(i)/147/148/149/ 114/504---Bail---Witnesses according to medical certificates had received only gun shot injuries and not any bullet injury---No revolver was recovered from the accused--­Memo. of place of occurrence did not speak of any empty shell lying there---Case against accused, in circumstances, required further inquiry into his guilt---Accused was admitted to bail accordingly.

Allah Rakha v. State 1993 SCMR 1994 and Shoaib Mehmood Butt v. State 1996 SCMR 1845 ref.

Ms. Bushra Malik for Applicant.

Riazuddin Siddiqui for the State.

Date of hearing: 7th January, 2003.

2003 Y L R 1742

[Karachi]

Before S. Zawwar Hussain Jafri, J

HUSEINALI J. MERCHANT---Petitioner

Versus

THE STATE and 2 others Respondents

Criminal Miscellaneous No.289 of 2000, decided on 28th October, 2002.

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

----Preamble---Condonation of delay--­Criminal Procedure Code, 1898, does not contain any provision for condonation of delay.

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

----S.145---Procedure where dispute concerning land etc. is likely to cause breach of peace---Provisions of S.145, Cr. P. C are designed to meet an emergent situation only causing threat to the peace and the same cannot be used for settling the rights of the parties on their claim of title.

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

----Ss.145 & 561-A---Quashing of orders of lower Courts---Civil litigation regarding the property in dispute was pending between the parties in which status quo order had already been passed and record did not reveal any apprehension of breach of peace---Parties being real brothers inter se were jointly in possession of the said property---Notice under S.145(1), Cr. P. C. was not issued within two months next before the date of alleged dispossession---Magistrate, in circumstances, had rightly dropped the proceedings initiated under S.145, Cr. P. C. by means of the speaking order---Order passed by Sessions Court upholding the order of Magistrate was also based on proper appreciation of facts and law which did not suffer from any illegality or infirmity---Petition was dismissed accordingly.

PLD 1966 (W. P) Lah. 16; PLD 1964 SC 236; PLD 1994 SC 879; 1995 SCMR 429; PLD 1959 (W.P) Lah. 264; 1986 CLC 288; 1994 MLD 871; 1988 CLC 2063 and 2001 PCr.LJ 1515 ref.

Petitioner in person.

Mehmood A. Qureshi for Respondents Nos.2 and 3.

Habib-ur-Rasheed for the State.

2003 Y L R 1760

[Karachi]

Before Amir Hani Muslim, J

Mrs. SULTANA AHMED ---Plaintiff

Versus

SINDH INDUSTRIAL TRADING ESTATE LTD. through Managing Director and 2 others---Defendants

Suit No.1001 of 1998, decided can 31st January, 2003.

(a) Specific Relief Act (1 of 1877)---

----S. 39---Cancellation of instruments--­Requirements---Registered instrument cannot be cancelled by a party without intervention of the Court of competent jurisdiction---Such instrument could only be cancelled by having recourse of proceedings under S. 39, Specific Relief Act, 1877 and unless there is decree by the competent Court the registered instrument remains intact, besides the fact that such property was, otherwise, mortgaged.

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

----Ss. 42 & 55---Suit for declaration, injunction, cancellation of deed, possession, mesne profits and damages---Lease of the plaintiff had been illegally cancelled by the Leasing Authority : no show-cause notice was issued to the lessee before cancellation of the lease; lessee had the permission of the lessor Authority to sublet the leased land and subsequent lease of the land to another party by the Leasing Authority was not legal and valid---Validity---Held, the present case was of extreme highhandedness by the Officers of the Leasing Authority who had abused their authority being public functionaries by concealing the record from the Court which was subsequently brought to the notice of the Court by way of comments---Public functionaries were obliged in law to discharge their duties fairly and in the present proceedings the officers appeared to have overstepped all the nouns of law in order to deprive the plaintiff from her valuable rights to enjoy her property which she had lawfully acquired by virtue of a registered document and in that respect the Officers had shown undue favour to the defendant---Action of the Officers clearly fell within the mischief of "maladministration" as defined under S. 2(2) of the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991---Plaintiff had suffered mental agony for which the Leasing Authority was directed by the Court to compensate her by making payment in the sum of Rs.30, 000 per year from the date of cancellation of the lease of the plaintiff till the date of judgment on account of their illegal acts with mark-up at the prevalent Bank rate till the entire amount was paid to the plaintiff---Office was further directed to refer the matter to the Ombudsman under S. 9 of the said Act to investigate the actions of the Officers in regard to cancellation of lease of the plaintiff and subsequent execution of lease in favour of the defendant and he may join any other Officer of the Department whom he felt was also instrumental in the said act of maladministration and may pass appropriate orders in terms of the Act as the matter ex facie fell within the mischief of maladministration ---Suit was decreed accordingly.

Arshad Tayebally for Plaintiff.

S.A. Samad Khan for Defendant No. 1.

H.A. Rehman for Defendant No.2.

Zubair Qureshi for Defendant No. 3.

Date of hearing: 31st January, 2003.

2003 Y L R 1779

[Karachi]

Before Mushir Alam, J

HAMEED GUL---Plaintiff

Versus

MUHAMMAD AZAM and 3 others---Defendants

Suit No.908 of 1991, decided on 21st January, 2003.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Penal Code (XLV of 1860), S.323(2)---Motor Vehicles Act (IV of 1939), S.95(2)(a)---Insurance Ordinance (XXXIX of 2000). S.77---Fatal accident---Suit for recovery of compensation by father of the deceased---Liability---Principles---Deceased, a fifteen years old boy boarded mini bus and was on the foot board when the driver rashly and in a most negligent manner suddenly applied the brakes and on account of sudden jerk and jolt the boy fell down, suffered fatal injuries and succumbed on the spot--­Assertions of the plaintiff about the incident had gone un-rebutted---Pecuniary benefit that could have been drawn by the plaintiff would come to Rs.4, 67,100 which the defendants were jointly and severally liable---Ownership of the vehicle was established therefore the owner was vicariously liable for the acts and deeds of his servant, the driver---Mere delivery of the vehicle on Superdari from the police station or from the Court to the driver, ipso facto would not establish title to the vehicle---Vehicle being insured, contention of the insurer was that the maximum liability of the. Insurance Company under the relevant provisions of Motor Vehicles Act, 1939 was Rs. 20, 000 and that too would be payable only if the claim against the insured/owner was established and the insurance policy was proved---Endorsement on the insurance policy was, however, reflective of the condition that the Insurance Company had contracted to reimburse the owners of the vehicle or the insured against any claim to the extent of the value of Diyat amount in terms of S. 223, P. P. C. ---When the insurer had assumed the liability in terms of Motor Vehicles Act, 1939 or under S. 223(b), P.P.C. as mentioned at the foot of the Schedule to the Policy, construction of such endorsement as was beneficial, to the insured/policy holder was to be preferred over the c6nstruetion that may favour the insurer---Held Insurance Company was liable to pay the compensation to the extent of the value of Diyat amount in terms of S. 323(2), P. P. C. as declared in the Notification dated 5-6-1991 and the balance amount was to be recovered from the owner of the vehicle and the driver jointly and severally with equalizer @ 6% per annum from the date of decree.

M.R. Transport Company v. National General Insurance Company 2001 CLC 1618 fol.

Kulsoom v. Jalil Ahmed Khan and another PLD 1964 Kar. 72; Ghulam Mustafa v. Trevor A Robertson and another PLD 1966 Kar. 271; Eastern General Insurance Company Limited, I.I. Chundrigar Road, Karachi v. Syed Mahmood Hussain and 2 others 1987 CLC 772 and Messrs Crescent Sugar Mills and Distillery Ltd. v. American Export Isbrandtsen and others H.C.A. No.70 of 1982 ref.

Ali Ahmed Jan Bangash for Plaintiff.

M.A. Rauf for Defendants.

Date of hearing: 20th August, 2002.

2003 Y L R 1798

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

WASIM --- Appellant

Versus

THE STATE--Respondent

Special Anti-Terrorism Appeals Nos. 104, 111 and Confirmation Case No.37 of 1999, decided on 6th November, 2002.

(a) Explosive Substances Act (XI of 1908)---

----Ss.3/34 & 4/34---Penal Code (XLV of 1860), Ss.302(b)/34 & 324/34---Qanun-e­Shahadat, (10 of 1984), Art.37--­Appreciation of evidence---Self-exculpatory confession---Worth---Prosecution had failed to connect the accused with the person who was seen by the witnesses boarding the bus with a plastic bag in his hand and alighting from the bus without the said plastic bag---Contents of the above mentioned plastic bag were not even proved by the prosecution and it was presumed that it might be containing a bomb which had exploded in the bus ---Self­-exculpatory confession of the accused had no evidentiary value---Accused were not in any way connected with the commission of the crime---Accused were acquitted in circumstances.

Pervaiz Iqbal v. The State PLD 1976 Kar. 583 ref.

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

----Art. 37---Confession---Self-exculpatory confession cannot be regarded as a confession and it is of little value even against its maker.

Pervaiz Iqbal v. The State PLD 1976 Kar. 583 ref.

M. Ilyas Khan for Appellant (in Special A. T. A. No. 104 of 1999).

Mehmood A. Qureshi for Appellant (in Special A. T. A. No. 111 of 1999).

Habib Ahmad, A.A.-G. for the State.

Date of hearing: 25th September, 2002.

2003 Y L R 1821

[Karachi]

Before Muhammad Moosa K. Laghari, J

EBRAHIM SOBANI and others---Applicants

Versus

NASEEM AKHTAR SOOFI and others---Respondents

Revision Application No. 111 of 2000, heard on 28th February, 2001.

(a) Administration of justice---

----Judicial Officer is expected to pass orders after applying his mind in a judicious manner, and not to act mechanically in order to non-suit the parties without any just, fair and reasonable cause.

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

----O.VII, R.10 & S. 12(2)---Application under O. VII, R.10, C. P. C. was dismissed by the Senior Civil Judge solely on the ground that because the case file was received by the Court by way of transfer through an administrative order by the District Judge and since the execution application was not instituted before him, he was not empowered to transfer the case/execution application--­Validity---Held, the manner in which the application was summarily dismissed by the Court could be termed to be neither judicious nor reasonable---Application was dismissed in a slipshod manner without proper application of mind by passing a non-speaking order, rendering the same to be invalid and unsustainable---Application, in the present case, was moved under O. VII, R.10; C.P.C. for return of application under S.12(2), C.P.C. alongwith the suit and execution to be presented before the competent Court and there was absolutely no request for transfer, thus, the order of Senior Civil Judge was patently misconceived and misdirected---Case was remanded to the Senior Civil Judge and application under O. VII, R.10, C. P. C. as well as one under S.12(2), C.P.C. moved by the applicants would be deemed to be pending and will be disposed of on merits by passing appropriate orders in accordance with the law after hearing the parties.

1995 SCMR 105; 1997 SCMR 1635; PLD 1996 SC 246; PLD 1975 SC 331; PLD 1985 SC (AJ&K) 1; 1999 CLC 362; 1999 CLC 1127; 1999 CLC 713; PLD 1996 Lah. 99; 1999 CLC 331; Messrs Haji Ahmed & Company v. Muhammad Siddique and others PLD 1965 (W.P.) Kar. 293; Heera Lal Patni v. Siri Kali Nath AIR 1962 SC (Ind.) 199; Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640 and American Express v. M.N. Beg, Advocate 1999 YLR 1498 ref.

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

----Ss.42 & 47---Powers of executing Court--­Scope---Executing Court was competent to decide the question whether it possessed the jurisdiction, including pecuniary jurisdiction to execute the decree, as a void decree could be challenged even in execution proceedings---Principles.

The provisions relating to the execution of decrees are enumerated, in Part-II under sections 36 to 47 of the Code of Civil Procedure. Section 42 of the Code of Civil Procedure regulates the powers of the Court executing transferred decrees, while section 47 of the Code empowers the Court executing the decree to determine all questions relating to the execution, discharge or satisfaction of the decree. The Executing Court was competent to decide the question whether it possessed the jurisdiction, including pecuniary jurisdiction to execute the decree as a void decree can be challenged even in execution proceedings.

The validity of a decree can be challenged in, execution proceedings if it is passed by a Court entirely lacking in jurisdiction in respect of subject-matter of the suit.

Executing Court cannot go behind the decree and has to execute it as it is unless the decree is patently a nullity.

PLD 1996 Lah.99; 1999 CLC 331; Messrs Haji Ahmed & Company v. Muhammad Siddique and others PLD 1965 (W.P.) Kar. 293; Heera Lal Patni v. Siri Kali Nath AIR 1962 SC (Ind.) 199 and Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640 ref.

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

----S. 115---Revision--- Scope--- Appellate Court having acted illegally by overlooking the provisions of law, and passing an arbitrary order, the revision was maintainable and the powers under S.115, C. P. C. could competently be exercised.

American Express v M.N. Beg, Advocate 1999 YLR 1498 ref.

M. Naeem-ur-Rehman for Applicants.

Qamar Muhammad Khan for Respondents Nos. 1, 3 and 4.

Date of hearing: 28th February, 2001.

2003 Y L R 1837

[Karachi]

Before Muhammad Moosa K. Laghari, J

Mrs. UNSIA BANG and others---Plaintiffs

Versus

Messrs SHELL PAKISTAN LTD. and others---Defendants

Suit No.807 of 2001, decided on 8th February, 2002.

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

----S. 9---Suit by person dispossessed of immovable property---Action under S. 9, Specific Relief Act, 1877---Ingredients being that the person suing must have been dispossessed; that such dispossession must be from immovable property; that the dispossession should be without his consent and that the dispossession should be otherwise than in due course of law.

1982 SCMR 741 and 2001 SCMR 345 ref.

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

----S. 9---Suit by person dispossessed of immovable property----Limitation---Where a person who is in lawful possession of the property is dispossessed, his possession shall be restored irrespective of the title in the property within the prescribed limit of six months.

1981 CLC 654 and 2001 SCMR 345 ref.

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

----O. VII, R.II---Rejection of plaint---While rejecting a plaint, normally the Court had to consider averments made in the plaint.

1991 MLD 1312 ref.

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

----S. 9---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & O. VII. R. 11---Suit for possession and permanent injunction--­Application for rejection of plaint by the defendant---Plaintiffs, who had claimed to be in possession of a petrol station and were dispossessed by the defendants, could not point out anything from the record which they could urge that on the specified date they were in possession of the suit property--­Plaintiffs, in this behalf could have at least submitted any utility bill having been paid by them in respect of the suit property which being a petrol station was a commercial establishment and could not be run without necessary utilities, such , as telephone, electricity, water drainage etc. which according to them remained in their 'actual possession' up till the specified date viz. the date on which they were allegedly dispossessed by the defendants without their consent---Plaintiffs, even at the time of hearing of the proceedings in the present suit were not in a position to place on record any proof from which they could ex facie show that the plaintiffs retained the possession of the suit property till the crucial date---Such a position, in circumstances, knocked out the case of the plaintiffs completely and they had no cause of action to institute the suit--­Suit, having not disclosed cause of action and being barred by time as well, application of defendant under O. VII, R. 11, C. P. C. was allowed and plaint was rejected.

1987 CLC 1566; 1994 MLD 527; 2000 CLC 1267; AIR 1984 Ker. 224; AIR 1975 Raj. 178; PLD 1999 Kar. 181; AIR 1967 J&K 52; 1981 CLC 654; 1991 MLD 1312; 1982 SCMR 741 and 2001 SCMR 345 ref.

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

----S. 9---Limitation Act (IX of 1908), Art. 3--­Suit for dispossession and permanent injunction---Limitation---Article 3, Limitation Act, 1908 provides a limitation of six months from the date of dispossession.

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

----Preamble---Law of limitation, which is a statute of repose, is designed to quieten title and to bar stale and water­logged disputes and is to be strictly complied with---Courts cannot refrain from applying the law of limitation whenever it is applicable.

Waqar Muhammad Khan for Plaintiff.

Ms. Rizwana Ismail for Defendant No.2.

2003 Y L R 1866

[Karachi]

Before Mushir Alam, J

MAQSOOD ALI KHAN Applicant

Versus

M. TEHSEEN KHAN---Respondent

Revision No. 184 of 2002, decided on 22nd January, 2003.

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

----Art. 17(2) (a)---Authenticity of a document---Burden of proof---Case of both the parties hinged on the authenticity and validity of a receipt---Heavy burden was cast on the plaintiff to prove such receipt beyond reasonable doubt ---[Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 dissented from].

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 dissented from.

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

----Art. 17(2) (a)---Authenticity and validity of a commercial transaction creating future obligation---Burden of proof---Held, to establish and prove authenticity and validity of matter pertaining to commercial transaction reduced into writing creating future obligation, may it be financial or otherwise, law required that the same shall be attested by two men or one man and two women so that one may remind the other; if necessary and evidence shall be led accordingly ---[Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 dissented from].

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 dissented from.

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

----Arts.79 & 17---Transfer of Property Act (IV of 1882), S.3---Attesting witness in term of Art. 79, Qanun-e-Shahadat, 1984 read with S.3, Transfer of Property Act, 1882 was a person who had witnessed the execution of the instrument by the executants and also signed the instrument for the purpose of attesting signature of executant---Person who was direct party and beneficiary of the document could not be treated as attesting witness.

Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367 and Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 ref.

S. Mukhtar Hussain Naqvi for Applicant.

Rao M, Shakir Naqeshbandi for Respondent.

Date of hearing 10th December, 2002.

2003 Y L R 1884

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

WAZIR---Appellant

Versus

GHULAM MUSTAFA and 2 others---Respondents

Criminal Miscellaneous Application No. 187 of 2002, decided on 24th March, 2003.

(a) Precedent---

---- Facts and circumstances of two criminal cases are seldom on all fours to each other--­While following observations made in the judgments of superior Courts in criminal cases, particular circumstances of the case are always required to be kept in view and only such finding has the force of precedent having binding effect by which some principle of law is decided or deduced.

(b) Criminal trial---

---- Appreciation of evidence---Principle--­Consideration of the isolated facts separating them from the chain of events would, be against the principle of appreciation of the facts in any judicial proceedings---If different allegations are considered in isolation instead of considering the same in the totality of the transaction, it is likely to lose its entire impact.

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

----S.497(S)---Penal Code (XLV of 1860), Ss.302/149/148/114---Bail, cancellation of--­Two accused persons had conveniently throttled the deceased because the deceased was made totally helpless by four other accused who were holding him from his legs and arms---Holding of legs of the deceased by the accused (respondents) clearly amounted to facilitation of the commission of his murder and the accused could not be absolved of the responsibility of committing the murder of the deceased---Sessions Court was misdirected in granting bail to the accused by ignoring the principle of vicarious liability enshrined in the Penal Code and by unnecessarily extending the concession of further inquiry to the accused without adhering to the condition precedent of holding that no reasonable grounds existed for believing the accused being guilty of commission of a non-bailable offence---Impugned order was consequently set aside and the bail granted to accused was cancelled in circumstances.

Abdul Latif v. State 2002 PCr.LJ 702; Shahid v. State 1994 SCMR 393; Mst. Barkat Bibi v. Gulzar 1979 SCMR 65; Hakim v. State 1979 SCMR 114; Gul Bahar v. State 2002 PCr.LJ 1277; Basheeran Bibi v. Nisar Ahmed Khan and others PLD 1990 SC 83; Nazar Muhammad v. The State and another PLD 1978 SC 236; Muhammad Ismail v. Patten Malak and others 1979 SCMR 91; Mehboob Akhter's case 1995 SCMR 310; Arbab Ali v. Khamiso and others 1985 SCMR 195; Muhammad Akbar v. State 1978 SCMR 7; Muhammad Yousuf v. State 2002 PCr.LJ 1645 and Munawar v. State 1981 SCMR 1092 ref.

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

----S.497(2)---Bail---Further inquiry---Intent and import---No Court is empowered to release an accused on bail on the ground of further inquiry without first coating to the conclusion that there are no reasonable grounds for believing that the accused has committed non-bailable offence.

Muhammad Hamzo Buriro for Applicant.

Mumtaz Ali Siddiqui for Respondents Nos. 1 and 2.

Abdul Sattar Soomro for Respondent No.3.

Date of hearing: 24th March, 2003.

2003 Y L R 1898

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Laghari, JJ

MUHAMMAD MEHMOOD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1271 of 2002, decided on 13th November, 2002.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.420/468/471/409/34---Pre-arrest bail--­Accused had been involved in the case only on the basis of N.I.C. number appearing on the Account Opening Form bur with photo of some other person---No other incriminating material was available with prosecution--­Investigating Officer had stated that the Accounts Opening Form, Cheque and the Signature Card with specimen signature of the accused detained before the Judicial Magistrate had been referred to the Hand Writing Export and his opinion was awaited---Further inquiry, thus, was required in the matter with regard to the involvement of accused in the offence---Pre-arrest bail was allowed to accused in circumstances.

Mehmood A. Qureshi for Applicant.

Syed Tariq Ali and Bashir. Ahmed Shaikh for the State.

2003 Y L R 1906

[Karachi]

Before Ghulam Nabi Soomro, J

NAWAZO---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-40 of 2002, decided on 16th September, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 513 & 514---Forfeiture of surety bond---Accused for whom petitioner stood surety having absconded, surety bond of petitioner was forfeited and surety was directed to pay full bond amount---Petitioner had challenged order forfeiting his surety bond contending that on the date of hearing the accused were present in the Court and that petitioner on that date made application to the Trial Court that as accused for whom he stood surety were likely to abscond, they should be taken into custody, but Trial Court had failed to take the accused in custody and discharged the surety/petitioner---Petitioner had further contended that as he was bound to produce the accused only before the Court before which he had executed surety bond, he was not bound to produce the accused before the Court where the case was transferred--­Trial Court found it fit to issue notice to accused persons with direction to them to arrange for another surety and further directed petitioner/surety to appear on the next date of hearing---Validity---Neither any provision of law nor any precedent was shown on the point that Court was duty bound to oblige surety and discharge him from his liability, the moment he prayed to be discharged---Surety would be bound by his liability till he was discharged by the Court--­Nothing would prevent Trial Court to postpone order on application of surety--­Trial Court, however, was within its discretion to allow time to the accused to bring another surety on date of hearing--Interest of justice and fair play demanded that accused were allowed some time to arrange for their fresh surety as they were under-trial prisoners.

1992 PCr.LJ 2238; 1990 MLD 2076 and 1999 PCr. LJ 2108 ref.

Saifuddin Shah for Applicant.

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

2003 Y L R 1915

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmad, JJ

ABDUL WAHAB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-713 of 2002, decided on 23rd January, 2003.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/337-H(2)---Bail, grant of--­Further inquiry---Motive had been assigned to co-accused---In F.I.R. no allegation had been levelled against accused of causing injury to deceased or to any prosecution witness---Allegation against accused was of fire-arm shots in the air and that too 1vlaile running away---Two co-accused who were also absconding for 3 years and their case was also similar to that of accused, were granted bail---Rule of consistency required that accused should also be granted bail--­Stand of prosecution was that accused was present at place of Wardat with gun and while running away he fired from his gun in the air---Such stand of prosecution had been disproved from Mashirnama of Wardat as no empties of .12 bore gun were found available or secured from the place of Wardat---Case of accused required further inquiry into his guilt as to whether he had committed non-bailable offence or not---Mere abscondence of accused in circumstances of case, would not disentitle him from grant of bail when same could be claimed as a matter of right---Accused being entitled to grant of bail, was granted bail.

Faraz Akram v. The State 1999 SCMR 1360; Muhammad v. Fazal Baqi and another 1998 SCMR 454; Muhammad Saddiq v. The State 1996 SCMR 1654; Ali Nawaz v. The State 1995 PCr.LJ 1316; Ibrahim v. Hayat Gul and others 1985 SCMR 382 and Sher Ali alias Sheri v. The State 1998 SCMR 190 ref.

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

----S.87---Abscondence---Fugitive from law--­Declaring a person as absconder---Procedure to be followed---Right of fugitive --- Accused could be declared absconder only when an order under subsection (3) of S.87, Cr.P.C. was passed by the Court, issuing proclamation under the said section after complying the required formalities and that proclamation was duly published on a specified date---Only after taking such steps accused could be legally termed as absconder and thereafter such abscondence could be used as a corroborative piece of evidence against him---All other persons, if they concealed themselves would be called fugitives from law or absconders, but not falling within provisions of S.87, Cr.P.C.

Sirajuddin v. Kala PLD 1964 SC 26 and Ameenullah v. State PLD 1976 SC 629 ref.

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

----Ss.87 & 497---Abscondence---Types--­Effect---Abscondences were of two types; abscondence having guilty conscience and abscondence of innocent persons in order to save themselves from the excesses of investigation agencies because of lack of confidence in such agencies or to face the ordeal of criminal trial---Cases of both sets of accused, were to be dealt with differently--­Two aspects were prominent in abscondence; putting prosecution in disadvantageous position during course of investigation and trial and creating a corroborative and circumstantial evidence against him---In the first case through abscondence an accused destroyed, concealed or allowed any valuable evidence to disappear, such as recovery of weapon, blood stained clothes, discovery of dead body or place of incident, reducing the value of identification test---While in the second case accused by abscondence created a corroborative and circumstantial evidence which could be used against him during trial, if an order under S.87(3), Cr. P. C. was passed by the Court---Different yardstick, in circumstances was to be used to treat both sets of accused---If an accused absconded by which valuable piece of evidence was lost or concealed or allowed to be destroyed, then he was not entitled for any concession, but if an innocent person became fugitive from law or absconded, then if it was found that his case fell within provision of S.497(2), Cr. P. C. then his case was to be considered differently---Fugitive from law and Courts would lose some normal rights granted by procedural and substantive laws.

Nasij Gul v. Khalid Khan 1989 SCMR 899 and Sher Ali alias Sher v. The State 1998 SCMR 190 ref.

Mazhar Ali Siddiqui for Applicant.

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

Date of hearing: 21st January, 2003.

2003 Y L R 1923

[Karachi]

Before Sarmad Jalal Osmany and Wahid Bux Brohi, JJ

MUHAMMAD HANIF and another---Appellants

Versus

THE STATE---Respondent

Miscellaneous Applications Nos.220 and 532 of 2003 and Criminal Accountability Appeal No.19 of 2000, decided on 21st March, 2003.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a) (iv), (v) & 10---Criminal Procedure Code (V of 1898), S.426---Suspension of sentence---Applications for---Accused had mainly urged that as per jail record they had undergone major portion of their sentence and that since they had earned remission allowed to them in accordance with law, they could be granted the same concession of suspension of sentence as was allowed by Supreme Court to the main accused persons---Supreme Court while suspending sentences of the main accused persons during pendency of their appeals, had mainly considered that hearing of appeals was not likely to take place in near future which in the case of applicants/accused, the Bench that had partly heard one of the appeals, was not again constituted---Accused, in circumstances were justified in attempting to invoke application of principles laid down in cases of train accused persons, on the premises that hearing of their appeals was not likely to take place in near future---Accused were involved in case on allegation that they had aided/abetted/ assisted---Main accused had already been granted bail by Supreme Court and even one of accused in the case had been released on parole---Ground that accused had served out major portion of their sentence, though was not the sole factor for deciding question of suspension of their sentence, but in view of peculiar circumstances, a case of suspension of sentence of accused had been made out--­Application of accused for suspension of their sentences, were allowed and their sentences were suspended.

Khan Muhammad Mehar's case 2003 SCMR 22; Abdul Khaliq v. State PLD 1990 Kar. 448 and Zulfiqar Ali v. State 1994 SCMR 548 ref.

M. L. Shahani and M.A. Kazi for Appellants.

Syed Zaki Muhammad, D.A.-G: for the State.

2003 Y L R 1930

[Karachi]

Before Maqbool Baqar, J

Mst. RAHEEMA---Applicant

Versus

THE STATE---Opponent

Criminal Bail Application No.421 of 2002, decided on 30th September, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(1), first & second provisos---Penal Code (XLV of 1860), Ss.302/109 --- Bail, grant of---Further inquiry---No direct evidence was available to show that there was any conspiracy or participation in commission of offence on the part of accused---Accused being a woman, her case fell under first proviso to S.497(1), Cr. P. C. and circumstances of the case required further inquiry in the guilt of accused---Accused was entitled to grant of bail.

1985 SCMR 1050; 1985 SCMR 1847; 1996 PCr.LJ 283; 2001 PCr.LJ 1831 and 1996 SCMR 1553 ref.

Abdul Rasool Abbasi for Applicant.

Mashooq Ali Ghulam Mustafa Samo, A.A.-G. for the State.

2003 Y L R 1948

[Karachi]

Before Ata-ur-Rehman, J

Rear Admiral (Retd.) Syed HAMID KHALID and others---Applicants

Versus

THE STAGE---Respondent

Criminal Revisions Nos.34, 35, 36 and Criminal Miscellaneous Application No.553 of 2002, decided on 11th November, 2002.

(a) Prevention of Corruption Act (II of 1947)---

----S.5(2)---Penal Code (XLV of 1860), S. 21---Criminal Procedure Code (V of 1898), Ss. 249-A, 435 & 439---Charitable Endowments Act (VI of 1890), S.4--­Appreciation of evidence---Public servant, determination of---Petitioners/accused who were proceeded against for an offence under S.5(2) of Prevention of Corruption Act, 1947, filed applications under S.249-A, Cr. P. C. which were dismissed by Trial Court and petitioners had challenged said order in revision---Petitioners who were Managing Director and Director respectively of a 'Foundation' had contended that said 'Foundation' being not owned, controlled and set up by the Government, its employees being not public servants, could not be proceeded against under S.5(2) of Prevention of Corruption Act, 1947---Contention of petitioners was repelled because through Notification issued by the Federal Government Social Welfare Wing, the Foundation had been set up under Charitable Endowments Act, 1890 with permission of the Government, Ministry of Defence on application of Chief of Naval Staff--­Petitioners during their employment were entrusted with administration and finance of Foundation in question---Petitioners being employees/officers of said Foundation, would be treated as public servants as defined under S.21, P.P.C.---Provisions of S.5(2) of Prevention of Corruption Act, 1947, were applicable to cases of petitioners.

Dattatraya Malhar Bidkar v. Emperor AIR 1937 Bom. 28; State of A.P. v. A.P. Pottries AIR 1973 SC 2429; Anwar Aziz Chaudhary v. The State 1991 SCMR 994 and Aqa S. Asghar Hussain v. The State 1981 SCMR 1112 ref.

(b) Interpretation of statutes---

---- Language of provision of law ought not to be violated in order to bring people within it, but ought rather to take care that no one was brought within it who was not brought within it by express language.

Khawaja Naveed Ahmed for Applicants.

Nadeem Azhar Siddiqui, D.A. -G.

Yaseen Azad and Abdul Hafeez for the State.

Date of hearing: 11th November, 2002.

2003 Y L R 1957

[Karachi]

Before S. Ali Aslam Jafri, J

RAJAB ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.33 of 2003, heard on 24th February, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.379/401/511/34---Pre-arrest bail, confirmation of---Bail was not to be granted in all cases not falling within the prohibitory clause of S. 497, Cr. P. C. as a rule of law--­No universal applicability of law existed in criminal cases as facts and circumstances of each case differed from each other---F.I.R., in the present case showed that seven persons were arrested from the place of incident who allegedly disclosed the names of other eleven culprits who had run away from the place of Wardat after seeing the police party---Names of said eleven accused did not appear in the F.I.R.---Offence allegedly committed was shown to be an attempt to commit theft which would fall under Ss.379/511, P.P.C., punishable with one half of longest term of imprisonment for S.379, P. P. C. ---Ingredients of S.401 also appeared to be lacking--­Challan had already been submitted and accused was not required for further investigation---Accused had not been declared as proclaimed offender---Interim pre-arrest bail granted to accused, was confirmed in circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 34; Imtiaz Ahmad and another v. The State PLD 1997 SC 545; Mir Nawaz and another v. The State 2002 PCr.LJ 510 and Ayaz Ahmad v. The State 2002 PCr.LJ 965 ref.

S. Ahmad Ali Shah for Applicant.

Fazalur Rehman Awan for the State.

Raja Ali Asghar for the Complainant.

Date of hearing: 24th February, 2003.

2003 Y L R 1966

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD MOOSA CHHUTO and 4 others---Appellants

Versus

THE STATE---Respondent

Special A.T. Appeal No.95 and Confirmation Case No. 12 of 2000, decided on 20th March, 2003.

Penal Code (XLV of 1860)---

----Ss. 365-A/148/149/109 --- Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Evidence of alleged abductee had been supported and corroborated by prosecution witnesses which went unchallenged---Unchallenged statement of complainant and prosecution' witnesses had established that after abduction of the abductee, accused persons demanded a ransom amount from father of the abductee and that three accused persons had actually abducted the abductee and other two guarded the house where the abductee was kept--­Accused persons had been proved to have shared common object to commit the offence---All witnesses were subjected to cross-examination in which details of incident and clarification were obtained---No enmity was suggested between the accused persons and prosecution witnesses and no motive was suggested to the said witnesses to falsely implicate accused persons by witnesses--­Record showed that police officials had asked persons available at the place of arrest of accused persons to act as Mashir, but they declined to do so---In absence of mala fides established against police officials in the case, evidence of police officials was reliable, as police officials were also good witnesses like other citizens---Contradictions in evidence of prosecution witnesses as pointed out by the accused persons were minor in nature by which completion of case and story of prosecution had not been changed---Such type of contradictions which could occur in evidence, could be overlooked---Contention that witnesses had seen the accused before identification test, was repelled, because no such evidence had been pointed out wherein such fact was admitted by prosecution witnesses, but on the contrary such suggestions were made to witnesses, but they denied the same---No plausible defence had been taken by the accused persons nor any evidence had been led to substantiate their defence---Accused did not examine themselves on oath nor examined any witness in their defence on any point asserted by them or in rebuttal of evidence led by the prosecution--­Prosecution having proved its case against the accused beyond any shadow of doubt, they had rightly been convicted by Trial Court---Conviction of accused was maintained with modification in sentences awarded to them by Trial Court.

Muhammad Naeem v. State 1991 SCMR 1617 ref.

Muhammad Atif Khudai Ansari and Muhammad Amin Memon for Appellants.

S. Mahmood A. Rizvi for the State.

Date of hearing: 22nd November, 2002.

2003 Y L R 1977

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

AHMED SHAH and another---Appellants

Versus

THE STATE---Respondent

Special A.T.J. Appeal No. 101 and Confirmation Case No.36 of 1999, decided on 20th March, 2003.

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

----S.345---Penal Code (XLV of 1860), Ss. 30213241392 --- Anti-Terrorism Act (XXVII

of 1997), Ss. 7(i) & 32---Compounding of offence---Scope---Offence punishable under S. 302, P. P. C. wets compoundable by legal heirs of victim whereas offence under S.324, P. P. C., was compoundable by person against whom offence was committed---Offences under S. 7(i) of Anti-Terrorism Act, 1997 and offence under S. 392, P. P.C., having not been shown in the first and second Columns of Table of S. 345, Cr. P. C., those were not compoundable offences under provisions of S. 345, Cr. P. C.

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

----Ss.6, 7, 8 & Sched.---Jurisdiction of Anti­-Terrorism Courts---Where offences mentioned in the Schedule of Anti-Terrorism Act, 1997 had nexus with the object mentioned in Ss.6, 7 & 8 of said Act---Anti-Terrorism Courts would have jurisdiction to try the case---If an offender with intention to strike terror in the people or in a section of people would commit scheduled offence then only he would be subject to jurisdiction of Anti-Terrorism Court.

Muharam Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

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

----Ss.302/324/392/34---Anti-Terrorism Act (XXVII of 1997). Ss.6, 7, 8 & 23--­Appreciation of evidence---Jurisdiction of Anti-Terrorism Court---Intention of accused persons in the present case was to commit robbery, but when the v were pursued by police and the people, they, in order to save themselves from being captured fired at the police party which hit two children who were present at the place of Wardat---Intention of accused persons, in circumstances, was not to strike terror in the people or the section of the people while committing robbery---Intention of the accused was to commit a simple offence of robbery, but when they were put in different situation, they fired from their weapons in order to save themselves--­Ingredients of S.6 of Anti-Terrorism Act, 1997, in circumstances, were missing from the case---Anti-Terrorism Court, in circumstances, had no jurisdiction to try the case---Conviction and sentences awarded to accused by Anti-Terrorism Court, were set aside and case was remanded to Trial Court for its transfer to regular Court having jurisdiction in the matter as required under S.23 of Anti-Terrorism Act, 1997.

Naqi Mirza and Shaukat Hussain Zubedi for Appellants.

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

2003 Y L R 1989

[Karachi]

Before Rahmat Hussain Jafferi, J

TAGHIAL---Applicant

Versus

GHOUS BUX and another--- Respondents

Criminal Miscellaneous/Cancellation Applica­tion No. 13 of 2003, decided on 4th March. 2003.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.302/324/147/148/149---Bail, cancellation of---Application for ---F.I.R. was promptly lodged within half an hour of the incident in which name of accused with specific role of causing fire-arm injuries to deceased had been mentioned---Deceased had received two fire-arm injuries as per medical report and said injuries had been attributed to both the accused and his co-accused---Statement made in F. I. R. was fully supported and corroborated by medical evidence---Deceased had received one fire-arm injury on his neck which was attributed to co-accused, but when deceased thereafter tried to run, accused fired at him which hit him on his neck---Accused, in circumstances, first instigated co-accused to commit murder of deceased and on said instigation co-accused fired from his pistol at the deceased and when deceased started running then accused himself fired upon the deceased---All such facts had indicated that accused had fully participated in the commission of crime with full knowledge and, assistance---Prima facie strong case having been made out against the accused for his involvement in the case, he was not entitled for concession of bail---Trial Court had granted bail to accused on the ground that it was yet to be determined as to which of the two injuries was fatal---Said observation of Trial Court was against facts of case as, deceased had died on account of .said injuries and there was specific allegation against the accused of causing fire-arm injuries to deceased which hit hint on his back--­Intention of accused appeared to be very clear that he wanted to murder the deceased--­Accused who shared common intention with co-accused, was equally responsible for committing murder of the deceased---Order granting bail passed by Trial Court was set aside and bail granted to hint was cancelled.

Sono Khan v. Sikandar 2000 PCr.LJ 614: Muhammad Nazir Awan v. Muhammad Aamer Baig 1997 PCr.LJ 1393; Taiba Bibi v. Abdul Latif 1997 PCr.LJ 1957 and Mazhar Mehmood v. Basit 1997 SCMR 915 ref.

Jai Jai Veshno Mange Rain for Applicant.

Mazhar Ali M. Siddiqui for Respondent No. 1.

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

Date of hearing: 4th March, 2003.

2003 Y L R 1997

[Karachi]

Before Muhammad Roshan Essani and Anwar Zaheer Jamali, JJ

Messrs MARBLE AND MARBLE (PVT.) LTD. ---Petitioner

Versus

K. E.S.C.---Respondent

Constitutional Petition No.B-108 of 2003, decided on 30th January, 2003.

(a) Electricity Act (IX of 1910)---

----S.39---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973), Art. 199---Quashing of case--­Constitutional jurisdiction of High Court --­Scope---Applicant/accused without first approaching the Trial Court under S. 249-A, Cr. P. C., had directly filed Constitutional petition for quashing of criminal case against him---Validity---Petitioner had not exhausted remedy before proper forum provided under the law---Constitutional jurisdiction was not an additional or' alternate remedy and if alternate remedy was available, Constitutional jurisdiction of High Court could not be invoked---Powers of High Court under Constitutional jurisdiction were though very wide, but were not supposed to be exercised to override express provisions of law---High Court was not to weigh, assess or evaluate the evidence of prosecution or defence under Constitutional jurisdiction--­Evaluation of evidence was function of Trial Court---Delay in lodging of F.I.R. could not be held to be a valid ground for quashing of proceedings in each and every case--­Question of delay and its consequent effect on, prosecution case could only be considered and determined by Trial Court at the time after prosecution witnesses were examined and cross-examined---Prayer of petitioner/accused for quashing of proceedings in respect of criminal case pending against him, was misconceived and consequently was dismissed.

A. Habib Ahmed v. M.K. alias Scott Christian PLD 1992 SC 353 ref.

(b) Electricity Act (IX of 1910)---

----S.39---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973), Art.199---Quashing of F.I.R.--­Constitutional jurisdiction of High Court--­Scope ---Matter was at investigation stage and case against the accused had not been sent up to the Court--If case after investigation was sent up in the Court and petitioner/accused was challaned, he could avail of remedy before Trial Court under S. 249-A, Cr. P. C. for his acquittal after proving that charge was groundless or there was no probability of his conviction---High Court could not quash F.I.R. when investigation was not completed no challan had been submitted in the Court and no proceedings were pending in the Court ---Mala fides or fact that the F.I.R. disclosed civil liability could not be the grounds for quashing the F.LR.--'High Court could not interfere in the investigation undertaken by police.

Shehnaz Begum v. Honourable Judges of High Court of Sindh and Balochistan PLD 1971 SC 677 and Ahmed Saeed v. The State 1996 SCMR 186 ref.

Abdul Karim Khan for Petitioner.

Date of hearing: 30th January, 2003.

2003 Y L R 2007

[Karachi]

Before Rehmat Hussain Jafferi, J

RANG MIRANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.78 of 2003, decided on 26th February, 2003.

Criminal Procedure Code (V of 1898)---

----Ss.497, 233, 235 & 239---Federal Capital Criminal Circular, R. 7(i), Chap. VII---Penal Code (XLV of 1860), Ss.324/353/427--­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1) (4)---Bail, grant of---Separation of case of accused from co-accused---Accused was in jail since his arrest and even charge in the case had not been framed---Case of accused was being delayed as co-accused who was declared a dangerous criminal was not being produced and Trial Court had shown its inability and helplessness to proceed with the case due to such reason---If some of the accused were not attending the Court, then case of remaining accused could be separated so that an early decision could be given which was a constitutional right of the accused---Trial Court could invoke provisions of Ss. 233, 235 & 239, Cr. P. C. ---Trial Court had discretion to try each offence and each accused separately, but such discretion had to be exercised judiciously---Trial Court was directed to separate case of accused from co-­accused who were not attending the Court so that early hearing should be given to the case of accused---Accused could not make out case for grant of bail---Bail application was dismissed with direction to Trial Court to separate case of accused from co-accused and proceed with the same.­

Noor Ahmad v. State PLD 1964 SC 120 ref.

Ali Nawaz Ghanghro for Petitioner.

Abdul Hakeem Brohi for the State.

Date of hearing: 26th February, 2003.

2003 Y L R 2012

[Karachi]

Before Muhammad Sadiq Leghari, J

NASIR AHMED and 2 others---Petitioners

Versus

Mrs. ZAHEER and others ---Respondents

Constitutional Petitions Nos.95, 96, 199 and 200 of 2003, decided on 2nd May, 2003.

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

----Ss.4(3) do 15---West Pakistan Civil Courts Ordinance (II of 1962), Ss. 10 & 15--­Constitution of Pakistan (1973), Art.199--­Constitutional petition ---Ejectment applica­tion ---Territorial jurisdiction of Rent Controller--Transfer of application--­Premises sought to be vacated by landlords were situated within territorial jurisdiction of Rent Controller different to the one before whom ejectment applications were filed---On objection of tenant about territorial jurisdiction, Rent Controller before whom ejectment applications were filed, made reference to District Judge for transfer of ejectment applications to Rent Controller of competent territorial jurisdiction and District Judge transferred the applications to Rent Controller in whose jurisdiction premises were situated---Tenants challenged reference of Rent Controller and order of District Judge transferring application alleging that on coming to know that premises were not situated within territorial jurisdiction of Rent Controller before whom ejectment applications were filed, proper procedure for him was to return ejectment applications to the landlord for presenting before Rent Controller having jurisdiction, but Rent Controller had adopted illegal course by sending reference to the District Judge--­Validity---Reference made by Rent Controller to District Judge and administrative order transferring ejectment applications, passed by District Judge, did not suffer from any legal defect because under S.4(3) of Sindh Rented Premises Ordinance, 1979, District Judge was competent to transfer any case from one Rent Controller to another--­Legislature did not want to put limitation upon powers of District Judge in respect of transfer of cases from one Rent Controller to another---Neither reference made by Rent Controller for transfer of ejectment applications nor order of District Judge transferring ejectment applications suffered from any jurisdictional or other legal defect.

Sharaf Faridi v. M.L. Shahani PLD 1975Kar 59 and Jamil Ahmed v. Syed Muhammad Ali and others PLD 1977 Kar. 901 ref.

Jamil Ahmed for Petitioners (in C.Ps. Nos.95 and 96 of 2003).

Miss Firdous Farride for Petitioners (in C. Ps. Nos. 199 and 200 of 2003).

Mumtaz A. Shaikh for Respondents.

2003 Y L R 2029

[Karachi]

Before Ghulam Nabi Soomro, J

SOOBAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.383 of 2002, decided on 12th September, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/114/148/149/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---Only ground pressed by accused for grant of bail was the conduct of prosecution witnesses who evidently had kept themselves away for more than a year and did not appear despite process of summonses and issuance of' bailable and non-bailable warrants to them---Said ground would since to entitle accused to his release on bail--­Accused was granted bail, in circumstances.

Maqbool Ahmed Awan for Applicant.

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

2003 Y L R 2040

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

GHEE CORPORATION OF PAKISTAN (PVT.) LTD. ---Appellant

Versus

BROKENHILL PROPRIETARY CO. LTD. ---Respondent

High Court Appeal. No. 249 of 2000, decided on 19th March, 2003.

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

---Ss. 17 & 29---Civil Procedure Code (V of 1908), O.XXI, R.2 & S.151---Award made rule of Court by awarding interest--­Execution of decree---Objection of decree­-holder as to powers of arbitrators and Court to award such interest---Satisfaction of decree was recorded by Executing Court on basis of ex parte statement of decree-holder's witness in absence of its counsel while refusing its request for adjournment---Application of decree-holder's counsel for recalling such ex parte statement was not placed before Court while passing such order---Validity---Both parties, by filing suits against each other, had disputed amount paid by judgment-debtor to satisfaction of decree---Executing Court had disposed of application in haste without considering powers of Arbitrators and the Court to award interest on claim and relevant provisions of Arbitration Act, 1940 or requiring any one of the parties to address Court on legal issues involved in the matter--­Court should have sought assistance of at least one counsel present in Court on legal issues involved particularly when decree­-holder's application seeking setting aside of ex parse statement of its witness was pending---High Court allowed appeal and set aside impugned order and remanded case for passing fresh order after hearing both the parties.

Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393; 1991 CLC 66; 2001 NLR (SC) 1 and PLD 1995 Kar. 301 ref.

(b) Administration of justice---

----Duty of Court to apply correct law, whether litigant should draw its attention to same or not.

PLD 1965 SC 691 and 1972 SCMR 359 rel.

Samiuddin Sami for Appellant.

Abid T. Japanwalla for Respondent.

Date of hearing: 5th March, 2003.

2003 Y L R 2048

[Karachi]

Before Muhammad Moosa K. Laghari, J

TRADING CORPORATION OF PAKISTAN---Plaintiff

Versus

Messrs COWASJEE & SONS---Defendant

Suit No. 1287 of 1980, heard on 2nd April 2002.

Contract Act (IX of 1872)---

----Ss.182 & 211---Civil Procedure Code (V of 1908), O. VII, R. 2---Suit for recovery of amount for short delivery of goods--­Responsibility of agent---Short landing certificate showed that goods were short delivered and plaintiff claimed compensation for shortage of goods from the defendant, who was acting as agent of the carrier--­Defendant denied to be the agent of carrier and claimed that as owner of vessel having not been sued, suit against defendant alone in the capacity of agent it-as not maintainable--­Validity---Plea of defendant was totally fallacious and belied by documents produced during the evidence---Defendant, in presence of said documents, could not deny that he had not acted as agent of carrier/charter--­Evidence on record showed that shortage in the delivery of goods to plaintiff out of total consignment had been proved---Plaintiff, in circumstances was entitled to relief of getting amount equivalent to cost value of short delivery at the rate prevailing at the time of transaction or at the rate in market on the date of payment---Suit was decreed accordingly and defendant would be at liberty to make payment of decretal amount either in relevant foreign currency or in Pak rupees equivalent to decretal amount at the rate of exchange prevalent on date of payment.

Terni S.P.A. v. PECO (Pakistan Engineering Company) Ltd. 1992 SCMR 2238 and Sandoz Limited and others v. Federation of Pakistan and others 1995 SCMR 1431 ref.

Samiuddin Sami for Plaintiff.

Ghulam Abbas Pishori Defendant.

Date of hearing: 2nd April, 2002.

2003 Y L R 2069

[Karachi]

Before Muhammad Sadiq Leghari, J

TANVIR RAJPUT and others---Petitioners

Versus

Mst. RAKIA DADA and others---Respondents

Constitutional Petition No.240 of 2003, decided on 25th April, 2003.

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

----S.2(f)(j)---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Landlord and tenant, relationship of---Tenant had entered the house of landlady under tenancy agreement which was for seven months---On the very day the tenancy agreement was executed, landlady also executed an agreement of sale in favour of tenant agreeing thereby to sell her house to the tenant---Out of agreed amount of sale, part payment was paid by the tenant to landlady and balance was to be paid at the time of signing transfer documents and possession of house was to be delivered to tenant as vendee together with all documents on full and final payment on or before stipulated date---Tenant continued to be in possession of the house after expiry of tenancy period of seven months---Tenant, in circumstances was tenant of landlady under S.2(j) of Sindh Rented Premises Ordinance, 1979 and his status would not convert automatically into occupant in capacity of purchaser/agreement holder, especially when agreement of sale itself contained that possession of house would be delivered to tenant/vendee against full and final payment of sale price which even legal heirs of deceased tenant did not claim to have been trade to landlady---Legal heirs of deceased tenant who came into possession of house after death of tenant, became statutory tenants in respect of house under S.2(ii), Sindh Rented Premises Ordinance, 1979---Relationship of landlord and tenant between the parties having been established, Rent Controller rightly did not consider it necessary to frame issue regarding relationship of landlord and tenant between the parties and record evidence thereon--­When denial of relationship of landlord and tenant would appear to be frivolous and with ulterior motives to prolong proceedings and existence of said relations was evident from material on record, no formal issue regarding relationship of landlord and tenant and recording of evidence thereon was necessary.

Q. Qureshi v. Sardar Ranjhay Khan Farooq 1980 CLC 1457 ref.

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

----Ss.15 & 16(1)(2)---Constitution of Pakistan (1973), Art. 199--Constitutional petition ---Ejectment of tenant---Striking off defence of tenant---Tenancy agreement between original tenant and landlady was for seven months and tenant paid entire rent of seven months in advance, but after expire of stipulated period of seven months tenant neither vacated the house of landlady nor paid monthly rent---Even after death of tenant his legal heirs who had become statutory tenants had neither paid arrears of rent nor monthly rent of house to the landlady---Rent Controller on ejectment application vide tentative rent order directed the statutory tenants to deposit arrears of rent for three years and to continue depositing figure monthly rent---Statutory tenants having failed to comply with tentative rent order, their defence was struck off directing them to hand over vacant possession of house to landlady within stipulated period---Validity---Tenancy of legal heirs of deceased tenant was not independent tenancy, but they had become tenant under Statute for being heirs of deceased tenant ---Statuory tenants, on succeeding to tenancy of deceased, had definitely succeeded to default also and they were bound by default committed by their deceased father---Direction issued to legal heirs of deceased tenant for payment of arrears and future rent, was in accordance with the scheme of S.16(1) of Sindh Rented Premises Ordinance, 1979 and they having failed to deposit arrears of rent and also to pay monthly rent, their defence was rightly struck off for non-compliance of tentative rent order and they were rightly directed to vacate house of landlady.

Safdar Ahmed and 5 others v. Mst. Farukhnisa PLD 1985 Kar. 633; Muhammad Aslam v. Pakistan Steel and another 1990 CLC 849; Muhammad Azim and others v. Shaikh Muhammad Nawaz and others PLD 1966 SC 182; Ali Jan v. Shujauddin PLD 1985 Kar. 698 and Shaikh Fazal-ud-Din v. Dawood Rehman and others 1983 CLC 470 ref.

Muhammad Anwar Tarique Petitioner.

H. Haroon for Respondent No. 1.

2003 Y L R 2076

[Karachi]

Before Wahid Bux Brohi and Muhammad Moosa K. Laghari, JJ

RAMESH M. UDESHI---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeal No.10 of 2000, decided on 25th February, 2003.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9, 10, 14, 25 & 32---Sindh Government Rules of Business, 1986, Rr.17, 25 & 28--­Appreciation of evidence---Allegation against accused, who at the relevant time was Secretary, Land Utilization Department, Provincial Board of Revenue, was that he, in connivance with other accused, fraudulently and with criminal intent to provide wrongful gain to accused/beneficiary of land in question and by causing loss to Government had floated favourable summary for Chief Minister for conversion of land in question--­Said summary was routed, in due course, through all concerned---Secretary, Industries Department. Finance Secretary and Advisor to Chief Minister for Finance, had recorded their notes thereon and no illegality was committed by the accused---No benefit was acquired by the accused nor he was in any manner related to or interested in any beneficiary of land in question---Such land had already been surrendered by beneficiary on plea-bargaining under S.25 of National Accountability Ordinance, 1999 and there was no loss to the National Exchequer--­Additional amount deposited by the beneficiary had been forfeited to Government---Evidence on record had shown that hectic exercise was undertaken by the accused in floating said summary each time with full observation of prescribed procedure and obtained relevant report of Deputy Commissioner and brought every fact to the notice of his high ups through the said summary---Each time Chief Secretary laid hands on summary and recorded his note and even final order was passed by the Chief Minister on basis of view taken by the Chief Secretary---On legal plane, no act was committed by accused in violation of Sindh Government Rules of Business, 1986---Entire evidence on record spoke of unblemished acts on part of the accused which proved his innocence---Conviction and sentences awarded to accused by Trial Court, were set aside, in circumstances.

Ms. Ismat Mehdi for Appellant.

Muhammad Anwar Tariq, D.P.G. for NAB.

Date of hearing: 6th February, 2003.

2003 Y L R 2087

[Karachi]

Before M. Ashraf Leghari, J

MUHAMMAD SHAHZAD---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.121 of 2002, decided on 4th March, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 173, 195(1) & 249-A---Penal Code (XLV of 1860), S.182---Quashing of proceedings---Giving false information to police for registration of criminal case--­Applicant lodged F.I.R. under Ss.506-B & 109, P.P.C. stating therein that while he was going in his car, two young motorcyclists, armed with T. T. pistols stopped him and abused him and issued threats as to why he had launched dispute against a certain person---Police took up investigation and submitted the report under S.173, Cr. P. C. to the Judicial Magistrate, who by his order accepted report of police and recommended that action under S.182, P.P.C. be initiated against the applicant for giving false information to police and that F.I.R. filed by him be disposed of in 'B' class---Said order of the Magistrate was maintained by the Sessions Judge in revision---Applicant had preferred application under S.561-A, Cr.P.C. against orders of the Magistrate duly affirmed by Sessions Judge and for setting aside action against him under S.182, P. P. C.---Validity-­Concurrent orders passed by Magistrate and Sessions Judge could not be interfered with as initial order was passed by Magistrate on police report submitted under S.173, Cr. P. C. on administrative side and said order could not be challenged by way of revision---Order of Magistrate did not suffer from any illegality or irregularity which could amount to an abuse of process of Court---Revision against order of Magistrate was not maintainable---Application filed by applicant under S.561-A, Cr.P.C., having no merit, stood dismissed, in circumstances.

Shereen v. The State 2002 PCr. LJ 1427; The State v. Muhammad Ayub Khan 1994 PCr.LJ 698; The State v. Saleem Ahmad Malik 1994 PCr.LJ 1316; Haji Muhammad and another v. Noor Hussain Alwani and others 1993 PCr.LJ 767; Muhammad Boota Anjum v. The State 1990 PCr.LJ 1538; Nazir Ahmed and 9 others v. Illaqa Magistrate First Class, Samundri, District Faisalabad and others 1997 PCr.LJ 634; Bahadur and another v. The State PLD 1985 SC 62 and Muhammad Sharif and 8 others v. The State 1997 SCMR 304 ref.

Muhammad Irfan for Applicant.

Waheed Kazi for Respondent No.2.

Sardaruddin Qureshi for the State.

Date of hearing: 13th January, 2003.

2003 Y L R 2097

[Karachi]

Before S. Ali Aslam Jafri, J

AMEERULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.11 and 12 of 2003, decided on 24th February, 2003.

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

----S.144 [as amended by Code of Criminal Procedure (Amendment) Ordinance (XXVII of 2001)], Ss.195 (1) (a) & 561-A---Penal Code (XI, V of 1860), S.188---Powers under S.144, Cr. P. C., exercise of---Powers under S.144, Cr. P. C., after the amendment of said section (13-8-2001) could be exercised only by a Zila Nazim---Secretary, Home Department or any other Authority, had no jurisdiction to exercise such powers to enforce and promulgate S.144, Cr. P. C. in a particular area---Order passed by Secretary, Home Department imposing ban under S.144, Cr. P. C. (as amended) was without lawful authority and jurisdiction and would amount to usurpation of powers which stood conferred upon 'Zila Nazim'.

Muhammad Inamul Haq v. The State 1998 PCr.LJ 93 and Syed Abdur Rehman Shah and others v. S.H.O., Police Station Mansehra and others 1996 PCr.LJ 483 ref.

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

----S.561-A---Quashing of proceedings--­Powers of High Court under S. 561-A, Cr. P. C. ---High Court in appropriate cases was competent to exercise its inherent powers under S.561-A, Cr.P.C. directly without waiting for an order from Trial Court in the first instance.

Adnanul Karim for Applicant.

Fazlur Rehman Awan for A.-G. for the State.

Date of hearing: 24th February, 2003.

2003 Y L R 2117

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

BILAWAL and another- Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.D-101 and D-102 of 2002, heard on 30th January, 2003.

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

----Ss.l3-D & 13-E---Appreciation of evidence---Both prosecution witnesses were subjected to cross-examination, but nothing had come on record to discredit their evidence nor any discrepancy or contradiction had been pointed out by accused---Said witnesses had no enmity with accused and no enmity was suggested to witnesses for falsely involving him in the case---Police witnesses had no motive to falsely involve the accused in crime---Prosecution had proved recoveries of unlicensed weapons from possession of the accused ---C.I.A. Police by itself had no power to investigate a case, but in the present case S.H.O. had clearly stated that under orders of S. P., he (S. H. O.) received investigation of crime and in pursuance of said investigation recoveries were made--­C.I.A. Police, in circumstances, were duly authorized by S. P. to conduct investigation--­No other discrepancies were found in the case except non-sealing of weapon at the place of incident and not sending the property to Ballistic Expert ---Merely because of said two lapses on part of police, entire case of prosecution could not be thrown out of consideration in presence of overwhelming evidence connecting the accused with commission of crime.

PLD 1997 SC 408; Abdul Sattar v. State 2002 PCr.LJ 51; Ashique Ali v. State 2002 PCr.LJ 450; Fareed Ahmed Langra v. State 1998 PCr.LJ 1368 Loung v. State 1999 PCr.LJ 595 and State v. Muhammad Amin 1999 SCMR 1367 ref.

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

----S. 13-D---Appreciation of evidence--­Sealing of weapon--Contention of accused was that weapon recovered from the accused having neither been sealed at the spot nor sent to Ballistic Expert for examination, case of prosecution was doubtful---No other discrepancies were pointed out in the case--­Merely because of such two lapses on part of Police, entire case of prosecution could not be thrown out of consideration in presence of overwhelming evidence connecting accused with commission of crime---Wisdom behind sealing the weapons at place of incident was to eliminate the possibility of manipulation of evidence after recovery of weapon---Sealing of weapon would become essential in cases, when it was alleged that weapon was used in commission of crime and empties were secured from Wardat and in such situation empties were required to be sealed after its recovery and so also the weapon secured from the possession of accused and then both the properties were to be sent to Ballistic Expert for examination and report so as to connect' empties with the weapon secured from possession of accused in order to prove that such weapon was used in the commission of crime; if weapon or empties were not sealed at their respective places of recoveries then possibility of tampering with said piece of evidence could not be ruled out for the simple reason that after recovery of pistol, empties could be manipulated by firing from pistol and then if those manipulated empties of pistol were sent to Ballistic Expert then definitely report of Ballistic Expert would be in positive---In order to avoid possibility of manipulation, recoveries or weapon, the Court always insisted upon that property should be sealed at place of Wardat so as to discard any possibility of manipulation or tampering with evidence---In such situation it was essential that property should be sealed at the place of recovery and sent to Ballistic Expert---In the present case no allegation was forthcoming that weapon was fired at place of the incident or empties were secured from there place of incident so as to connect weapon with said empties and accused could be involved through that piece of evidence.

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

----Ss.3(1)(b)(iv), 8, 9 & 13-D, E--­Appreciation of evidence---Possession of unlicensed weapon---If any person would violate provisions of Ss.8 & 9 of West Pakistan Arms Ordinance, 1965 then he would be committing an offence punishable under Ss. 13-D and 13-E of said Ordinance--­Mere going armed or possessing unlicensed arms and ammunition were offences by itself and for that purpose there was no need for sealing the property at place of incident or sending the same to Ballistic Expert for examination and report that the weapon was in working condition---Any part of an unlicensed arms as defined under Cls. (1), (2), (3) of S.3(b) of West Pakistan Arms Ordinance, 1965 would come within definition of "arms "---If any person would go armed with any part of unlicensed weapon or possessing any such part of unlicensed weapon then he would be breaching provision of Ss.8 & 9 of West Pakistan Arms Ordinance, 1965 and would be liable to punishment under Ss.13-D & 13-E of the Ordinance---Not necessary that report of Ballistic Expert should be obtained in order to prove that said arm was in working condition.

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

----Ss.13-D & 13-E---Criminal Procedure Code (V of 1898), S.103 --- Qanun-e-Shahadat

(10 of 1984), Arts.37, 39 & 40----Appreciation of evidence---Accused had alleged that provisions of S.103, Cr. P. C. had been violated as no private persons had been made Mashirs in the case---Provisions of S.103, Cr. P. C. would make it clear that it was applicable in a case if search of a house was made---Police officials, in the present case, had not gone to any house to conduct search so as to procure an evidence, but police on information supplied by the accused went to respective places and accused themselves had produced the weapons--­Information furnished by accused that they would produce weapons which were used in commission of crime and in pursuance of said information a discovery was made which was admissible in evidence---Such information was protected under Art.40 of Qanun-e-­Shahadat, 1984---Confession made before a Police Officer, was not admissible, but Art. 40 of Qanun-e-Shahadat, 1984 was an exception to Arts. 37 & 39 of Qanun-e-Shahadat, 1984 under which confession so far as it related to discovery of evidence, could be proved and it had been trade admissible---Information supplied by accused to police while they were in custody, was admissible in evidence--­Same had been proved through Police Officer and through that information, unlicensed weapons were secured---Such evidence could be validly and legally used against accused.

Laxmi Shaw v. State AIR 1955 SC 104 and Ashique Hussain Chandio v. State PLD 1992 Kar. 5 ref.

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

----Ss.13-D, 13-E & Sched---Penal Code (XLV of 1860), S.365-A---Anti-Terrorism Act (XVIII of 1997), S.7---Appreciation of evidence---Jurisdiction of Anti-Terrorism Court---Accused had contended that bore of weapon in question was not determined so as to attract jurisdiction of Anti-Terrorism Court---Validity---Item No.5 of Schedule appended to Anti-Terrorism Act, 1997 showed that if any offence punishable under West Pakistan Arms Ordinance, 1965 was committed conjointly with any other offence of Anti-Terrorism Act, 1997, then said offence was also triable by Anti-Terrorism Court--­Offence under West Pakistan Arms Ordinance, 1965 having been committed conjointly with offence punishable under S.365-A, P. P. C. and S.7 of Anti-Terrorists Act, 1997, offence under West Pakistan Arms Ordinance, 1965 was triable by Anti­-Terrorism Court---Contention of accused was repelled.

Asif Ali Abdul Razzak Soomro for Appellants (in both Appeals).

Ali Azhar Tunio, Assistant Advocate-General Sindh for the State (in both Appeals).

Date of hearing: 30th January, 2003.

2003 Y L R 2131

[Karachi]

Before Ghulam Nabi Soomro, J

JUMMAN alias JUMMOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1 of 2003 and M.As. 3 and 4 of 2003, decided on 7th February, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324/337-H(2)/147/148/149---Bail, grant of---Accused had contended that thigh of injured on which fire-arm injury was allegedly caused by him was not a vital part of the body---Contention of accused was repelled because every part of the body of a person would be a vital part in relation to sustaining of a fire-arm injury--­Medical certificate had shown a fire-arm injury upon the thigh of injured which had supported the F.I.R. version --- Co-accused were granted bail as their cases were distinguishable from the case of accused--­Accused in circumstances was not entitled to bail.

Noor Muhammad Shaikh for Applicant.

Aziz Ahmed Khuwaja for Complainant.

Ghulam Shabir Shar for the State.

2003 Y L R 2136

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD YOUSUF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 106 of 2001, decided on 17th January, 2003.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence--­Ocular evidence comprised of testimonies of four family members who were present in the house where incident took place---Said four prosecution witnesses had by and large given a common version that accused made fire and he wanted to repeat the same, but he was overpowered by one of the prosecution witnesses and pistol was snatched from him by the complainant---Said prosecution witnesses, who had smoothly laid down account of occurrence, though related to the deceased, but were also equally related to the accused---People of Mohallah also reacted very sharply and with immediate response stoned the accused---Presence of accused at the place of incident had fully been proved--­Injury was proved to have been caused to the deceased by the accused by fire-arm and that fact was supported by medical evidence--­Motive was fully described by eye-witnesses and same could be spelt out even from the statement of accused made on oath---Delay, if any, in lodging F.I.R. had fully been explained---Even otherwise delay in lodging F.I.R. was not always fatal to the case--­Testimonies, in the case, could not be disbelieved simply because of delay of few hours in lodging the F. I. R. ---Guilt of accused for offence of Qatl-i-Amd having fully been proved, Trial Court had rightly recorded conviction and sentence of accused under S.302(b), P.P.C.---Conviction and sentence of imprisonment for life awarded to accused by Trial Court, was maintained.

Muhammad Waqar v. The State 1991 PCr.LJ 197; Afzal Hussain v. The State 1989 PCr. LJ 471; Abdul Haq v. The State PLD 1996 SC 1 and Muhammad Yousuf v. State PLD 2000 Kar. 94 ref.

Jawaid Haider Kazmi for Appellant.

Fazalur Rahman Awan for the State Counsel.

2003 Y L R 2148

[Karachi]

Before Wahid Bux Brohi, J

GULAB and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 13 and 21 of 2003, decided on 1st April, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/337-A (i)/337-F(i)/337-D (i)/337-H (ii)/147/148/149---Criminal Procedure Code (V of 1898). Ss. 221 & 222---Appreciation of evidence---Two cases were registered at police station, and another case was an outcome of direct complaint while another case was a counter-case---Common charge was framed in the cases got registered at police station, and private complaint while in the counter-case charge had been framed separately---Two trials proceeded simultaneously and witnesses were examined in each case separately, but at the conclusion of both the trials, cases were disposed of by a common judgment and accused persons were convicted---Validity---Gross miscarriage of justice had been caused in the case as evidence of one case had been read in the other and crucial finding had been given on one and a common point---Charge framed in each case did not satisfy requirements of Ss. 221 & 222, Cr. P. C. as a number of different offences had been jumbled up in a single narration without mentioning specifically required particulars and descriptions---Such defects had gone deep to the root of case and had affected the merits of trial whereby a failure of justice had occasioned---By consent, bath appeals were allowed, conviction and sentence were set aside and cases were remanded for retrial in accordance with law right from stage of framing of the charge.

1981 SCMR 435 ref.

Abdul Hakeem Khan Bijarani, Abdul Rehman Bhutto and Nadeem Ahmed Tunio for Appellants.

Muhammad Daud Baloch for Appellants in Criminal Appeal No.21 of 2003.

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

Date of hearing: 1st April, 2003.

2003 Y L R 2154

[Karachi]

Before Rahmat Hussain Jafferi, J

BEERO and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.S-02 of 1999, decided on 20th January, 2003.

Penal Code (XLV of 1860)---

----S.394/34---Appreciation of evidence--­Ocular testimony furnished by complainant remained unchallenged as no cross­-examination was conducted to belie the evidence of complainant---Second eye-witness had not been examined on the ground that he was not traceable---Incident of robbery had been proved, in circumstances---Prosecution did not examine Mashirs or Magistrate before whom identification test was held-­Prosecution, thus had failed to prove identification of accused persons before the Magistrate---Complainant had claimed that he had identified the accused persons in Court as accused present in the Court were the same---Identification test of accused in the Court had got no value---Identification test was allegedly held before the Magistrate and in presence of two Mashirs---Prosecution examined one Mashir who did not support said identification test and no other witness was examined to prove the identification--­Even complainant in his deposition, had not stated that he had identified the accused persons in the identification test held before Magistrate---Passport of complainant and other articles allegedly secured from the possession of accused, were not produced before the Court for identification---Property available in Court was of common nature which was easily available in open market--­Property allegedly recovered was never put to identification test through complainant before a Magistrate---Even that property was not shown to the complainant for identification when his statement was recorded to identify that it was same property which was robbed from him---Recovery of articles, in circumstances, had no value as the same had not been connected with the commission of crime---Identification of footprints of accused took place after 15 days of incident and that too from the memory of witness---Such type of identification had no value--Prosecution, in circumstances, had failed to prove case against accused---Conviction and sentence awarded to accused by Trial Court were set aside and they were acquitted of charge against them.

Ghulam Nabi v. The State 2000 PCr.LJ 920; Mushtaq Ahmed v. The State 2000 PCr.LJ 1136; Sahdeed Gosain v. Emperor 46 Cr.LJ 1945; Asghart Ali v. The State 1992 SCMR 2088; Tayyab v. The State 1995 SCMR 412 and Shafu alias Shafi Muhammad v. The Crown 1971 SCMR 200 ref.

Ali Nawaz Ghanghro for Appellants.

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

Date of hearing: 20th January, 2003.

2003 Y L R 2160

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

SIKANDAR ALI ---Applicant

Versus

THE STATE --- Respondent

Criminal Bail Application No.60 of 2003, decided on 27th February, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860) Ss.302/324---Offences Against Property, (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Statement of injured who was the only eye-witness in the case had been recorded after more than two months of the incident and said eye-witness had disclosed the facts to another prosecution witness three days after incident and police did not record statements of witnesses---Such fact had created doubt in veracity of statements of witnesses---Investigating Officer very well knew that injured was admitted in hospital in unconscious condition and he did not know as to how incident took place and by whom---Investigating Officer who could not get information from Wardat, had himself lodged F.I.R. against unknown culprits--­Investigating Officer was obliged to have ascertained condition of the injured in the hospital for obtaining information about incident and names of culprits---Injured after discharge from the hospital did not go to Police Station for recording his statement--­Delay in recording statement under S.161, Cr.P.C., in circumstances, had not been explained at all which apparently had affected case of the prosecution---Said points though were to be thrashed out at time of trial, but a doubt had been created in case of prosecution---An unexplained and unreported explanation of delay in recording statement of witnesses would affect veracity of statement of such witnesses and were required to be ruled out of consideration---Reasonable grounds existed to believe that accused was entitled for concession of bail, same was granted to him.

Muhammad Yousaf v. State 2002 PCr.LJ 293; Abdul Majeed v. State 2002 PCr.LJ 844; Saeed Muhammad Shah v. State 1993 SCMR 550; Sikandar v. The State PLD 1963 SC 17; Ismail and others v. The State 1983 PCr.LJ 823; Sirajuddin v. Kala and another PLD 1964 SC 26 and Elahi Bux v. State 1972 SCMR 683 ref.

Abdul Fatah Malik for Applicant.

S. Mehboob Ali Shah for the State.

Date of hearing: 27th February, 2003.

2003 Y L R 2168

[Karachi]

Before Rehmat Hussain Jafferi, J

GHULAM ALI alias SADORO and others --- Petitioners

Versus

S.H.O., POLICE STATION VEEHAR, DISTRICT LARKANA and others---Respondents

Constitutional Petitions Nos.S-473, 491, 494, 508, 509, 512, 513, 534, 535, 542, 543, 544, 546, 547 and 549 of 2002, decided on 6th February, 2003.

Criminal Procedure Code (V of 1898)---

----Ss.22-A(6), 154, 156(3) & 200--­Constitution of Pakistan (1973), Art.199--­Constitutional petition---Direction to police to register F.I.R.---Petitioners in their Constitutional petitions had prayed that police be directed to register their F.I.Rs.--­Petitioners had alleged, that they had approached S. H. Os. of their respective Police Stations for registration of F.I.Rs. as cognizable offences were committed, but police had refused to register the same--­Validity---Constitutional jurisdiction could be exercised, if High Court was satisfied that no other adequate remedy was provided by law---If other adequate remedy was provided under relevant law then provisions of Art. 199(1) of Constitution could not be invoked---If police had refused to register F.I.Rs. then petitioners had adequate remedies under Criminal Procedure Code, 1898 which were; by approaching District and Sessions Judge, Ex-Officio Justice of Peace for exercise of powers under S. 22-A (6), Cr. P. C.; by approaching the Magistrate for exercise of powers under S.156(3), Cr. P.C.; and by filing a direct complaint under S.200, Cr.P.C.---District and Sessions Judges as Ex-Officio Justice of Peace and Magistrates on receipt of the complaints in exercise of powers conferred upon them under S.22-A(6) & 156(3), Cr.P.C., respectively could direct Police to register F.I.Rs.--­Adequate remedy being available to the petitioners, provisions of Art. 199 of Constitution could not be invoked--­Constitutional petitions filed by petitioners were dismissed being not maintainable and they were directed to adopt any one of the said three modes to redress their grievance.

Muhammad Naseem Khan v. Government 1990 CLC 1693; Gaman v. S.H.O. Datar Dino, Police Station New Faujdari Shikarpur 1993 PCr.LJ 1286; Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119; Jamshed Khan v. Government of Sindh 1999 PCr.LJ 512; Mst. Malka Jan v. Inspector-General of Police, N.-W.F.P., Peshawar 2000 PCr.LJ 320; Mazhar Hussain Naqvi v. Zafar PLD 2001 Kar. 269; Ghulam Muhammad Shalgirl v. S.H.O. Shahdadkot 2002 MLD 1898; Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani PLD 2002 Kar. 328; Ghulam Hussain Jeelani v. Government of Sindh PLD 2001 Kar. 169; Mazhar Hussain Naqvi v. Dr. H. Zaidi, Vice Chancellor, Karachi University, Karachi PLD 2001 Kar. 269; Hazoor Bakhsh v. Senior Superintendent of Police, Rahimyarkhan PLD 1999 Lah. 417; Muhammad Ali v. The S.H.O. Police Station Aziz Bhatti 2003 YLR 550; Chief Administrative of Okaf v. Muhammad Ramzan PLD 1994 SC 102; Abdul Rehman v. Meer Ahmed PLD 1987 SC 21; Allah Bux v. Muhammad Ismail 1987 SCMR 810; Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner Sargodha OLD 1966 SC 639; Inayat-ur-Rehman v. Assistant Commissioner PLD 192 Pesh. 138 and 1979 SCMR 112 ref.

Ali Nawaz Ghanghri for Petitioners (in C.P. Nos.S-473, 508 and 512 of 2002).

Jai Jai Veshnu Mange Ram for Petitioner (in C.P. No.491 of 2002).

Nizamuddin Baloch for Petitioner (in C.P. No.494 of 2002).

Khalid Iqbal Memon for Petitioner (in C.P. No.546 of 2002).

Abdul Rehman Bhutto for Petitioner (in C.P. No.534 of 2002).

Abdul Hayee Bhutto for Petitioners (in C.P. Nos.535, 544, 547 and 549 of 2002).

Ali Gohar Khan D. Baloch for Petitioner (in C.P. No.542 of 2002).

Muhammad Saleem G.N. Jesar for Petitioner (in C.P. No.543 of 2002).

Nizamuddin Abro for Petitioner (in C.P. No.513 of 2002).

Deedar Ali Khajar for Petitioner (in C.P. No.509 of 2002).

Anwar Mansoor Khan, Advocate-­General Sindh assisted by Ali Azhar Tunio, Assistant A.-G. Sindh Larkana for Respondents.

Date of hearing: 21st January, 2003.

2003 Y L R 2175

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

KHAN MUHAMMAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.D-41, Criminal Jail Appeal No. D-42 and Confirmation Cases Nos.3 and 4 of 1999, decided on 30th January, 2003.

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

----Ss.302/365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Qanun-e­Shahadat (10 of 1984), Art. 91---Appreciation of evidence---Entire case was based upon judicial confession of accused persons which had been proved to be true and voluntary, supported and corroborated by other pieces of evidence---Magistrate had complied with all the requirements of law which were required to have been taken for recording a judicial confession---Confessional statements of accused having been recorded in accordance with law, those were to be presumed to be genuine documents within meaning of Art. 91 of Qanun-e-Shahadat, 1984---Confessional statements of accused persons had shown that accused had fired shot each at deceased which hit him and he died at the spot---Said statement had been fully supported and corroborated by medical evidence---Revolver and empty bullets recovered from the accused were sent to the Chemical Analyser for examination---Report of Chemical Analyser had revealed that bullet was fired from revolver recovered from the accused---Defence taken by accused proved to be an afterthought and was of no help to the accused---Accused had alleged that investigation having been completed before lodging of F.I.R., case of prosecution was not reliable---Part of investigation was conducted by police before actually lodging of F.I.R. in order to ascertain correctness of report received by Sub-Inspector of Police and in such circumstances, at the most F.I.R. recorded before preliminary investigation, could be termed as inadmissible evidence, but that irregularity by itself was not sufficient to discard the prosecution case as a false--­Prosecution having proved its case against accused persons beyond any reasonable doubt, accused were rightly convicted and sentenced by Trial Court---Judgment of Trial Court could not be interfered with in circumstances.

Mehram Ali v. The State PLD 1998 SC 1445; Hassan v. State 1989 PCr.LJ 809 and Karim Bux v. State 1976 PCr. LJ 911 ref.

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

----Art.37---Confession---Retracted confession of accused person should be supported and corroborated by other evidence on material particulars.

Muhammad Gul v. The State 1991 SCMR 942 ref.

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

----Art.43---Confession---When more persons than one were being tried jointly for the same offence and a confession made by one of such persons was proved, then the Court could take into consideration such confession as circumstantial evidence against other accused persons---Confession made by each accused could be taken into consideration as circumstantial evidence against other co-­accused and through those confessions the confession of other accused were supported and corroborated.

(d) Criminology---

---- To become a criminal, was by itself an unnatural act as no sensible or law-abiding citizen would prefer to be a criminal---Person could become a criminal on various counts such as economical condition, mental pressure, excess of police, and other acts of the Society---When a person becomes a criminal, his thinking attitude and action would be changed from attitude, thinking and acts of a normal and law-abiding citizen---An act which was natural for normal sensible and law-abiding citizen would become unnatural for a criminal and an act which was natural for a criminal would be viewed as unnatural from the angle of a normal and sensible person---Criminal people had different phenomenon to assert their position by showing their superiorty over like minded persons, like courageous act which from their angle would put them in a higher position in the Society of criminal people and different and unusual acts were done by a criminal to assert their position.

Asif Ali Abdul Razzak Soomro for Appellants.

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

Date of hearing: 30th January, 2003.

2003 Y L R 2201

[Karachi]

Before Rehmat Hussain Jafferi, J

BHUTTO and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.83 of 2000, decided on 24th February, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Appreciation of evidence---Evidence of two prosecution witnesses was unreliable and untrustworthy because their statements were recorded after more than one month without furnishing any explanation as to why they kept quiet for such a long time---Said defect having affected the veracity of said witnesses, their evidence was to be ruled out of consideration---Other material defects in the statements of said prosecution witnesses were found with regard to denial of their relationship with other prosecution witnesses and material contradictions in their statements---If statements of said two witnesses were taken out of consideration, no evidence was left to connect accused with commission of crime--­Prosecution having failed to prove case against accused persons beyond any reasonable doubt, conviction and sentence awarded to accused by Trial Court were set aside and accused were acquitted.

Saeed Muhammad Shah v. State 1993 SCMR 550; Sikandar v. The State PLD 1963 SC 17; Ismail and others v. The State 1983 PCr.LJ 823; Sirajuddin v. Kala and another PLD 1964 SC 26; Muhammad Siddique v. State PLD 1960 SC 223; Sahib Gul v. Ziarat Gul 1976 SCMR 236 and Muhammad Iqbal v. State 1984 SCMR 930 ref.

Ali Nawaz Ghanghro for Appellants.

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

Date of hearing; 24th February 2003.

2003 Y L R 2206

[Karachi]

Before Muhammad Roshan Essani, J

ABDUL KHALIQ DOOSANI---Petitioner

Versus

Mst. FARIDA SABA ---Respondent

Constitutional Petition No.S-95 of 2002, decided on 27th November, 2002.

Maxim---

---- "Audi alteram partem "---Principle and applicability of---No man should be condemned unheard---Under principle 'Audi alteram partem', enshrined in our judicial system, order affecting the right of a party could not be passed without providing opportunity of hearing to that party---Such principle would be read into relevant law unless its application was excluded by express words.

Ghulam Mustafa Jatoi v. Returning Officer and others 1994 SCMR 1299 and Shaukat Ali v. The State 1980 PCr.LJ 718 ref.

Ali Gohar Soomro for Petitioner.

Raja Aftab Ahmed Khan for Respondent No. 1.

Date of hearing: 5th November, 2002.

2003 Y L R 2213

[Karachi]

Before Sarmad Jalal Osmany and Rehmat Hussain Jafferi, JJ

AKBAR JAWED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.334 of 2003, decided on 16th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497, first proviso---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471, 477-A & 34--­Prevention of Corruption Act (II of 1947), S.5(2)---Grant of bail on medical ground--­Accused had sought bail on medical ground contending that he was suffering from disease known as 'scabis' which was a contagious disease treatment of which was not possible in jail hospital and that his remaining in jail would be hazardous to his life---In order ascertain correct position about disease of accused he was referred to be examined Medical Board and Board after examination of accused in its report had recommend certain medicines and creams which were t be applied by accused and that no further specialized treatment was required--From report of Medical Board his disease was not found hazardous to his life an medicines recommended by Board could be used by him in jail or in hospital-­Accused, in circumstances, held, was no entitled for concession of bail.

Muhammad Yousafullah Khan v. State PLD 1995 SC 58; Manzoor Ahmad Wattoo v. State 2000 SCMR 107 Muhammad Saeed Mehdi v. State 2002 SCMR 282 and Hakim Ali Zardari v. State Accountability Appeal No.60 of 2002 ref.

I. A. Hashmi for Applicant.

Syed Mehmood Alam Rizvi, D.A.­G. for the State.

Date of hearing: 11th April, 2003.

2003 Y L R 2216

[Karachi]

Before Sarmad Jalal Osmany, J

Syed SULTAN ALI---Plaintiff

Versus

Sahibzada FROGH NAJAM NAJMI and 2 others---Defendants

Civil Suit No.765 of 1999, heard on 22nd November, 2000.

Cooperative Societies Act (VII of 1925)---

----Ss.54 & 70-A---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint--­Dispute over a plot of land/part whereof situated in a Cooperative Housing Society and each party claimed to be its owner--­When a dispute touching the business of a Cooperative Society arises between a member or past member of the Society or any person claiming through a member or past member, same has to be, referred to the Registrar, Cooperative Societies for its decision in view of S.54, Cooperative Societies Act, 1925--­Suit being barred in terms of Ss. 54 & 70-A of the Cooperative Societies Act, 1925, plaint was rejected.

Muhammad Ikram Siddiqui for Plaintiff.

Mrs. Salima Nasiruddin for Defendant No. 1.

Date of hearing: 22nd November, 2000.

2003 Y L R 2224

[Karachi]

Before Ghulam Rabbani, J

Messrs YAHYA COOPERATING HOUSING SOCIETY LIMITED through

President---Applicant

Versus

KARACHI DEVELOPMENT AUTHORITY through Director-General and 2

others---Respondents

Civil Revision No. 115 of 2000, decided on 13th December, 2000.

Civil Procedure Code (V of 1908)---

---O. VII, R.11---Rejection of plaint---Trial Court not having pecuniary jurisdiction was incompetent to pass order under O. VII, R.11, C.P.C.---Such order being not legal, High Court while setting aside the impugned order allowed the plaintiff to present the plaint before the Court of competent jurisdiction.

Azizullah Khan for Applicant.

Muzaffarul Islam for Respondent No. 1.

Nemo for Respondent No. 2.

Muhammad Ikram Ahmed Siddiqui for Respondent No. 3.

Date of hearing: 13th December, 2000.

2003 Y L R 2226

[Karachi]

Before Mushir Alam, J

KARACHI ELECTRIC SUPPLY CORPORATION LIMITED through Secretary---Applicant

Versus

Messrs HAJI HASHIM HAJI AHMED BROTHERS---Respondent

Civil Revision Application No. 175 of 1993, decided on 6th September, 2000.

(a) Jurisdiction---

---- Lack of justice---Once a Court comes to the conclusion that some other Authority or forum possess the jurisdiction to adjudicate the controversy raised in the suit and the Court itself is bereft of jurisdiction then best course is to desist from expressing its opinion or attempting to decide the controversy in any manner that may prejudice the case of either party before the forum or Tribunal having the ultimate jurisdiction.

Mst. Samra Ashfaq v. Government of N..-W.F.P. through Secretary, S&GAD, 1996 SCMR 273 ref.

(b) Electricity Ac (IX of 1910)---

----Ss.54-C & 26(6)---Specific Relief Act (I of 1877), Ss. 42 & 56---Suit for declaration and permanent injunction impugning supple­mentary electricity bill together with consequential relief against the recovery and disconnection of the electricity supply to the plaintiff---Trial Court, after recording evidence came to the conclusion that suit was barred under S.54-C of the Electricity Act, 1910 and under Ss.42 & 56 of Specific Relief Act, 1877, but decreed the suit partially for settlement of accounts and referred the matter to the Electric Inspector who was the Authority competent under S.26(6) of Electricity Act, 1910, for settlement of such demand---Electric Inspector gave its findings and submitted a report to the Trial Court, which was accepted by the Court, despite objection by the appellant, and the same order was upheld by the Appellate Court--­Validity---Trial Court, after coming to the conclusion that it had no jurisdiction rightly referred the controversy to the Electric Inspector for deciding the controversy and appropriate course left to the Court was to leave the parties to contest the matter before hierarchy provided under Electricity Act, 1910, but Trial Court stepped over its jurisdiction and entered into the domain of other functionary while sitting over the report of Electric Inspector as an appellate forum and deciding the objections filed against it and giving its findings on the same and said error was repeated by Appellate Court--­Decree passed by both the Courts below could not be sustained.

(c) Jurisdiction----

----Trial Court despite coming to the conclusion that it had no jurisdiction regarding the matter, passed preliminary decree for accounts which relief was not prayed for---Court though possessed jurisdiction to mould relief in an appropriate case in order to meet the ends of justice but not where the Court itself was bereft of jurisdiction over the 'lis' before it.

(d) Electricity Act (IX of 1910)---

----Ss.54-C & 26(6)---Limitation Act (IX of 1908), S.14---Jurisdiction of Electric Inspector---Civil Court bereft of jurisdiction but decreed the suit---Parties were deprived of their right to appeal before the Provincial Government against the decision of Electric Inspector---Validity---No party should be prejudiced for the act of the Court---Parties may impugn the findings of Electric Inspector before hierarchy provided under the Electricity Act, 1910---Question of limitation may be considered by the appellate forum favourably in consonance with the equitable principles contained in S.14 of the Limitation Act, 1908.

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

----S.14---Equitable principles contained in S.14 of Limitation Act, 1908 give sufficient protection against the bar of limitation to a person honestly and diligently pursuing his case before the Court not seized of the jurisdiction.

Muhammad Ikram Siddiqui for Applicant.

Atif Awan for Respondent.

2003 Y L R 2231

[Karachi]

Before Anwar Zaheer Jamali, J

Messrs HABIB BANK LIMITED through Principal Officer ---Applicant

Versus

MUHAMMAD RAFIQ and 6 others ---Respondents

Execution Application No.150 of 1999 decided on 1st April, 2002.

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

----S.53---Execution application---Applicant's claim was that he was bona fide purchaser of disputed property---Equitable mortgage was proved because original sale deeds of disputed property, in favour of judgment-­debtors, were in the possession of decree­-holder Bank---Sale transactions having taker, place during the pendency of the suit, after passing of preliminary decree/final decree in the suit, such transactions would nor pass any valid title in respect of disputed property in favour of applicant/subsequent purchaser.

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

----S.53---Property in dispute was mortgaged with the decree-holder Bank and decree for its sale was passed---Assertion of applicant claiming its title was based on some subsequent transaction---Validity---Such transaction could not tie accepted bona fide--In the absence of original sale deed in favour of judgment-debtors.

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

----S.47---Execution of decree---Decree for sale of mortgaged property in the suit---Such decree could not be nullified by the executing Court by refusing its sale.

Badar Alam for the Decree-Holder.

Muhammad Ilyas Khan Tanoli for the Objector.

Date of hearing 1st April, 2002.

2003 Y L R 2258

[Karachi]

Before Gulzar Ahmad, J

MUHAMMAD IMRAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 137 of 2002, decided oh 18th November, 2002.

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

------S.13-E---Criminal Procedure Code (V of 1898), Ss. 342 & 439---Appreciation of evidence---Trial Court while recording statement of accused under S.342, Cr.P.C., did not at all confront him with alleged recovered pistol and bullets nor accused was asked question as to whether he possessed licence of the recovered arm---Trial Court was bound to put to accused during course of his statement under S. 342, Cr. P. C. of incriminating piece of evidence which in the case of accused was .30 bore pistol and 5 bullets and also to question him whether he possessed, licence of such recovered pistol--­Such having not been done, mandate of law in that regard had not been complied with which was, a serious flaw in the prosecution case---Conviction and sentence of accused on such defective proceedings could not be maintained---Conviction and sentence of accused recorded by Trial Court and maintained by Appellate Court were set aside and accused was acquitted of the charge.

Nazar Muhammad v. The State 1996 PCr.LJ 1410; Fareed Ahmed Langrra v. The State 1998 PCr.LJ 1368; Sarwar Khan v. The State 2000 PCr.L1 779; Perana v. The State 1972 PCr.LJ 165; Sajjad Ahmed and another v. The State 1992 SCMR 408 and Munawar Hussain v. The State 1996 SCMR 1601 ref.

Niamat Ali Randhawa for Petitioner.

Qazi Wali Muhammad for the State.

Date of hearing: 18th November, 2002.

2003 Y L R 2273

[Karachi]

Before Sarmad Jalal Osmany and Rehmat Hussain Jafferi, JJ

GHULAM WARIS---Appellant

Versus

THE STATE- -Respondent

Special Anti-Terrorism Appeal No. 109 and Confirmation Case No. 12 of 2001, decided on 22nd May, 2003.

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

----Ss.302(a)/324--- Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10 --- Anti-Terrorism Act (XXVII of 1997), Ss.6(c) & 7(ii)---Appreciation of evidence---Statement of sole prosecution witness who claimed to be eye-witness of the occurrence showed that there were four accused persons, but it was not known as 'to who was responsible for causing murder of the deceased and at what point of time deceased had -received the fire-arm injuries—Prosecution witness, in circumstances could not be said to be eye-witness of the incident--­Prosecution tried to connect accused with the offence of murder through recovery of a pen­ pistol on pointation of accused, but on empty bullet of any fire-arm weapon was secured from the place of Wardat---Even Mushirnama of Wardat was silent with regard to recovery of empty bullet from the said place---Accused, in circumstances, could not be connected with commission of offence of murder through recovery of pen-pistol ---Trial Court had convicted accused for murder of deceased on presumption that when accused was found guilty of Zina-bil-Jabr with the complainant, accused was also found to have committed murder of the deceased---Conviction on capital charge could be based 'upon substantive evidence and could not be based on merely presumption and surmises---For proving charge against accused under S.302(a), P. P. C., evidence as required under S. 304, P. P. C., was to be led, but same had not been done in the case of accused--­Conviction and sentence awarded to accused by Trial Court under S. 302 (a), P. P. C. without cogent, substantive and reliable evidence, was not justified and was set aside---Injury on person of prosecution witness was found to be "Ghair Jaifah Badiha" and said witness in her entire statement had not assigned the part of causing the said injury to the accused, but co­ accused had caused said injury on her--­Ingredients of S.324, P. P. C. being not attracted from facts of case, accused could not be convicted and sentenced under S.324, P. P. C.---Victim/prosecution witness had categorically implicated accused with commission of rape with her and her statement was fully supported and ,corroborated by medical evidence--­Prosecution, however, could not prove charge of Zina-bil-Jabr against accused as it had not been, proved that force was applied by accused before or during course of rape--­Accused, in circumstances, had committed offence of Zina as defined under S.4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 punishable under S.10(2) of said Ordinance read with S.7(ii) of Anti­ Terrorism Act, 1997 and was liable to be convicted and sentenced according to the said provisions of law---Conviction and sentence of accused under Ss. 302 (a) & 324, P. P. C. were set aside, whereas his conviction under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S. 6(c) of Anti-Terrorism Act, 1997, was converted to S.10(2) of said Ordinance read with S.7(ii) of said Act, and he was sentenced accordingly.

Muhammad Asghar v. The State PLD 1985 FSC 1; Bahadur Shah v. The State PLD 1987 FSC 11; Muhammad Ikram alias Munji v. State 1997 PCr.LJ 1079; Muhammad Adnan and another v. The State SBLR 2003 Sindh 403 and State v. Farman Hussain and others PLD 1995 SC 1 ref.

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

----Art.22---Penal Code (XLV of 1860), S.302(a)/324---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10--­Identification test---Where a witness had fleeting glimpse of an unknown culprit, then identification test was necessary, but if accused was known to the witness previously or he had seen accused several times or had ample opportunity to see accused then in such situation such identification test was not, necessary.

Khawaja Naveed for Appellant.

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

Date of hearing: 2nd April, 2003.

2003 Y L R 2313

[Karachi]

Before Muhammad Ashraf Leghari, J

GHULAM MUHAMMAD alias GULLO---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. 1552 of 2002, decided on 31st January, 2003.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/334/34---Bail, grant of---Further inquiry---Accused was not found armed with any weapon, had not caused any injury to the deceased and no overt act had been attributed to him---Vicarious liability of accused under S. 34, P. P. C. was yet to be established at the time of trial---Accused was yet to be proved that he was involved in a case covered by prohibitory clause of S. 497(1), Cr: P. C. --­Case of accused falling under scope of further inquiry within the contemplation of S.497(2), Cr. P. C., he was granted bail.

Muhammad Khalil Dogar for Applicant.

S. Sardar-ud-Din Qureshi for the State.

2003 Y L R 2323(2)

[Karachi]

Before Sarmad Jalal Osmany and Rehmat Hussain Jafferi, JJ

MUHAMMAD ARIF and others---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos.88, 102 and 103 of 2001, decided on 22nd May 2003.

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

----Ss. 302/324/319/337(F)/353/392/411/453/34---Anti-Terrorism Act (XXVII of 1997), S.6---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Appreciation of evidence--­Case of prosecution was that a large number of police officials were present at the place of incident in order to apprehend accused persons who firstly, were found inside a house, subsequently shifted to house of complainant and thereafter the accused were seen firing from the car at the police and then police also started firing at the accused--­Prosecution witnesses gave said details, but none had deposed that they had seen the co­ accused armed with rifle or firing from the car---Involvement of co-accused in the case had been made on the ground that he had deposited short ammunition at police station ---Prosecution evidence showed that it could only be gathered that rifle of co­ accused was used in commission of crime, but no evidence was on record to show that co ­accused was seen holding said rifle or firing from the car---Rifle and short ammunition deposited by co-accused at police station, in circumstances, was only a corroborative piece of evidence and not a substantive piece of evidence and such evidence by itself was not enough to connect co-accused with commission of crime---Prosecution, in circumstances, had failed to prove case against the co-accused---Conviction and sentences recorded against said co-accused by trial Court were set aside---Evidence on record had fully proved that main accused alongwith other accused persons entered into the house of complainant and on gun point put complainant in car and forced him to drive the same and to help them in escaping from scene of incident---Said main accused was correctly picked out in identification parade---All pieces of evidence having connected main accused with the commission of crime, he was rightly convicted and sentenced---In absence of any mitigating circumstances, sentence awarded to main accused could not be reduced---Prosecution had also proved case under S.13-D of West Pakistan Arms Ordinance, 1965 against main accused and one of his co-accused---Said main accused and his co-accused had rightly been convicted and sentenced.

Nur Hussain v. The State 1993 SCMR 1608; Muhammad Naeem v. State 1992 SCMR 1617; State v. Muhammad Amin 1999 SCMR 1367 and State v. Muhammad Amin 1999 SCMR 1367 ref.

(b) Criminal trial---

---- Corroborative evidence---Corroborative evidence was meant to judge the veracity of the ocular testimony---Both corroborative and ocular evidence were to be read together and not in isolation of each other.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Saifullah v. State 1985 SCMR 410 and Mutawakil Shah v. Muhammad Din 1980 SCMR 96 ref.

(c) Criminal trial----

---- When from evidence on record two theories were emerging, the theory which was favouralbe to the accused was to be accepted.

Muhammad Sultan v. Muhammad Aslam 1988 SCMR 857; Ghulam Hussain v. State PLD 1994 SC 31; Furqan Haider v. State PLD 1959 SC 480 and Ashiq Hussain v. State PLD 1994 SC 879 ref.

Fahim Riaz Saddique for Appellants (in Spl. A.T.A. No.88 of 2001).

Habib Ahmad, A.A.-G. for the State.

Mehmood A. Qureshi for the Complainant.

Dates of hearing: 9th, 11th and 18th April, 2003.

2003 Y L R 2335

[Karachi]

Before Gulzar Ahmed, J

MAKHDOOM AHMED alias ZAMEER AHMAD---Applicant

Versus

NOOR AHMED and another---Respondents

Criminal Miscellaneous Application No. 197 of 2002, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss.561-A & 249-A---Penal Code (XLV of 1860), Ss. 419, 463, 465 & 468---National Database and - Registration Authority Ordinance (VIII of 2000), Ss. 18, 30 & 31--­Application for quashing of complaint--­Respondent, who was brother of applicant/accused, filed private complaint against applicant alleging that applicant through cheating and forgery had obtained another National Identity Card with different name---Application of applicant fled under S.249 A, Cr. P. C. for his acquittal having concurrently been dismissed by Trial Court and also by Appellate Court in revision, he fled application under S.561-A, Cr. P. C. for quashing of concurrent orders of Courts below---Trial Court dismissed application filed by applicant under 5.249-A, Cr.P.C. simply on the ground that it was premature, without giving any finding on the point of law argued before it---Revisional Court dismissed revision fled against order of Trial Court without examining legal question about maintainability of complaint and disposed of the same by observing that matter required recording of evidence---Respondent/ complainant had already filed suit seeking cancellation of second National Identity Card issued to applicant/accused which was pending adjudication---Complaint against applicant being of forgery and cheating in respect of National Identity Card, offence against applicant/accused was covered by S.30(a) (c) (e) of National Database Registration Authority Ordinance, 2000--­Complaint was not competently filed by respondent against applicant/accused as under S.31 of National Database Registration Authority Ordinance, 2000, complaint for offence under said Ordinance had to be filed by Authority itself or by a gazetted officer authorized by it in that behalf---National Identity Card being property of the Federal Government, any wrong committed in respect thereof was an offence against the State and Authority had been designated to file complaint for such offence---On filing suit by respondent for cancellation of second National Identity Card, Authority in its reply had stated that said revised second National Identity Card was correct and had been issued after complying with necessary formalities---Charge against applicant being baseless no probability existed for his conviction---Complaint otherwise incompetently filed was not maintainable and was quashed under S. 561-A, Cr. P. C. in circumstances.

Haji Ilyas v. The State 2002 MLD 1038; Muhammad Ali v. Muhammad Aslam 2002 MLD 726; Sanaullah Khan v. The State PLD 2001 Pesh 89; Muhammad Idrees v. The State 2001 PCr.LJ 593; Muhammad Ayub alias Ranjha v. District Magistrate/ Deputy Commissioner, Multan 2001 PCr.LJ 1039; Malik Muhammad Ayub Awan v. Akhtar Lodhi, S.H.O., Police Station Shahrah-e-Faisal, Karachi 2001 PCr.LJ 1196; Muhammad Akram v. The State PLD 2001 Kar. 112; Manzoor Hussain Shah v. The State 1998 SCMR 265; Mst. Said Khan v. Munsif Khan PLD 1992 Pesh. 71 and Haji Ghulam Qadir v. Ghulam Rasool 1998 PCr.LJ. 1031 ref.

M. Niamat Ali for Applicant.

Mehmood-ul-Hassan for Respondent

Mumtaz Ali Khan, A.A.-G.

Date of hearing: 14th February,

2003 Y L R 2513

[Karachi]

Before Muhammad Ashraf Leghari, J

IMAM BUX---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 159 of 1995, decided on 11th March, 2003.

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

----S.409---Prevention Corruption Act (II of 1947), S.5(2)---Appreciation of evidence--­After framing the charge prosecution failed to examine prosecution witnesses despite -repeated process and same could not be returned served or un served---Prosecution within period of 10 years could only examine three witnesses---Side of prosecution was closed and statement of accused was recorded under S.342, Cr.P.C.---Charge contained that accused being public servant was entrusted store articles worth heavy amount for which he could not account for and thereby had committed criminal breach of trust, though prosecution case was totally different---Charge against accused was defective and important prosecution witnesses had not been examined to prove the charge against accused---Proceedings in trial continued right from year 1983 up to 1995 when accused was convicted in the case--­Since the very charge was defective, case for said reason -suffered from patent irregularity which would cast serious doubts upon the prosecution story---Prosecution having failed to prove its case beyond doubt, conviction and sentence recorded against accused by Trial- Court were set aside.

Muhammad Abbas v. The State 1974 SCMR 445 ref.

(b) Criminal trial---

---- Not safe to convict the accused on the basis of testimony of a sole witness who was not trustworthy and against whom serious allegations had been levelled.

Abdul Mujeeb Pirzada for Appellant.

Mahmood Alam Rizvi, Standing Counsel for the State.

Date of hearing: 11th March, 2003.

2003 Y L R 2524

[Karachi]

Before M. Ashraf Leghari, J

MUHAMMAD IBRAHIM ---Applicant

Versus

THE STATE---Respondent

Criminal Bail No.78 of 2003, decided on 28th February, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry--­Incident was unwitnessed and dead body of the deceased was found from drainage 10 days after his missing---F. I. R. was lodged by son of the deceased wherein no witness was cited by him---Three times further statements of complainant were recorded, but each time he gave different version---Complainant exonerated his mother who was alleged to have killed deceased/father of complainant alongwith other accused person and thereafter complainant in his statement had also exonerated said two other accused---Two prosecution witnesses who were examined by police had disclosed suspicion against accused and wife of .deceased/mother of complainant---Police, in view of bristling statements of complainant, let off his mother as well as other two accused persons--­Nothing incriminating had been recovered from the possession of accused---Accused. In circumstances was not guilty of offence covered under prohibitory clause S. 497(1), Cr. P. C. ---Case of accused requiring further inquiry, he was admitted to bail.

Jamil Ahmed Virk for Applicant.

Khadim Hussain for the State.

Date of hearing: 28th February, 2003.

2003 Y L R 2536

[Karachi]

Before Muhammad Ashraf Leghari, J

NAVEED AKHTAR alias CHANDA---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. 246 of 2003, decided on 8th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.324134---Bail, grant of---Further inquiry--­Complainant was not an eye-witness, but details of incident had been conveyed to him by some other person and according to police statement said other person had not seen the accused causing injuries to the injured--­Police statement of injured had disclosed that injured was given Chhuri blows by other co-accused and accused facilitated them by catching hold of the injured---Complicity of accused under vicarious liability was yet to be established when evidence would be recorded---Accused had not caused any injury to the injured and statement of injured had nowhere shown that accused was armed with Chhuri---Accused was in custody since his arrest and nothing incriminating had been recovered from his possession---Case of accused was altogether different to that of co­ accused---Case of accused being of further inquiry, he was admitted to bail.

Ejaz Khattak for Applicant.

Habibur Rashid for the State.

2003 Y L R 2586

[Karachi]

Before Shabbir Ahmed, J

Haji MUHAMMAD QASIM---Plaintiff

Versus

GOVERNMENT OF SINDH through Honourable Secretary, Board of Revenue and

3 others---Respondents

Suit No. 1047 of 2000, decided on 24th June, 2003.

(a) Easements Act (V of 1882)---

----S.52---Licence, kinds of---Concept of licence explained with illustrations.

Licence may be of two kinds, namely, a bare licence which is purely a matter of personal privilege and a licence coupled with grant or interest. 'A bare licence without more is purely a personal matter between the grantor and the grantee of the licence. Such a licence is to be lapsed with the death of the licensor or of the licensee.

A licence is not annexed to the property in respect of which it is enjoyed nor it is a transferable or heritable right but a right purely personal between the grantor and the licensee.

The licensee never had and does not have judicial possession. This is apparent from the very definition of licence in section 52 of Easements Act, as being grant of mere right to do upon the property of another, something which would, in absence of such right, be unlawful. That is indeed one of the essential characteristics that distinguishes a licence from lease. In the case of a licence, the legal possession continues with owner, though a licensee may or may not have actual possession of the property of which he is permitted to use, he certainly does not have legal or judicial possession of the same.

The following are some of the illustrations of the Act, which, in the circumstances in which they took place, are the evidence of mere user not amounting to legal possession:--

(1) Tethering cattles.

(2) Using the land for storing/throwing refuse.

(3) Keeping fodder, grain and earth;

(4) Erection of temporary Otha or shed for cows, goats and fowls; and

(5) Using the land for short duration for threshing purposes in a year.

Permission to stack coal in station yard is a licence likewise, permission to keep carts on land amounts to a licence.

Alagiri Chitty v. Muthusawami Chitty AIR 1940 Mad. 102; Chinnan v. Rangethamal AIR 1931 Mad. 216; Mangam Lal Radia v. State of Meharashtra 1971 Mah. Law Jour. 57; Acting Secretary of Board of Revenue v Agent South Indian Railway Co. Limited, Trichinopoly AIR 1925 Mad. 434 and Ram Prasad Mondal v. Smt. Snehalata Ghosh AIR 1967 Cal. 369 ref.

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

----S. 42---Easements Act (V of 1882), S.52--­Land Revenue Act (XVII of 1967), S.42--­ Sindh Government GR; R.D. Notification No.3005/28, dated 7-3-1930---Sindh Revenue Department Standing Order No. 7---Suit for declaration of entitlement of "Khori right" of the plaintiff ---Maintainability---Khori right, a licence--- "Khori right " is permission to fishermen of the area/locality to use sea foreshore for the purpose of drying their fish, fishing nets and fishing boat repairing etc. and it is a mere licence to the fishermen--­ Such licence does not create any interest in the land and is not annexed to the property in respect of which it is enjoyed nor the same is a transferable or heritable right but a right purely personal between the grantor and the licensee and any effigy built with regard to the right in the property, based on agreement or sale between the private individuals will not create any title, interest and/or any right in the property itself---Plaintiff, on the basis of agreement and sale-deed, in absence of0 any right, cannot claim any right, title and interest so conveyed because a person cannot convey what he does not possess--Entry in Record of Rights is also not an evidence-of title---Suit for declaration, in absence of any right in the property, is not maintainable when the plaintiffs' forefathers were merely the licensee and the licence was revocable--­Principles.

In the present case, plaintiff's claim was based on two private documents, i.e. agreement dated 8-12-1871 and another undated whereby transfer of sixth share in 'fishing' and 'Khori right' was effected between private individuals. 'Khori right' is permission to fishermen of the area/locality to use sea foreshore for the purpose of drying their fish, fishing nets and fishing boat repairing etc. It is a mere licence to the fishermen to use sea foreshore for the purpose of drying fishing nets or repairing of fishing boats without specifying an area, such licensee is like other licences for tethering cattles, using the land for storing/throwing refuse, keeping fodder, grain and for threshing purposes. Such general permission does not create any interest in the land as it is merely a leave to dry fish nets etc. on sea foreshore, such licence is not annexed to the property in respect of which it is enjoyed nor it is a transferable or heritable right but a right purely personal between the grantor and the licensee and any effigy built with regard to the right in the property, on agreement or sale between private individuals, will not create any title, interest and or any right in the property itself. A person cannot convey what he does not possess---Plaintiff, on the basis of agreement and sale-deed in absence of any grant, cannot claim any right, title and interest so conveyed.

The entry in the Record of Right is not an evidence of title.

The plaintiff's own case is that his forefathers were permitted to use the sea foreshore for the purpose of drying fish, nets or repairing of the boats, it was a simple licence, without interest in the property/land, the same was not transferable nor inherit­able---Any agreement or sale by registered sale-deed between the individuals will not create any interest or title, nor the mutation in record of rights will confer the ownership right on the plaintiff. Therefore, the plaintiff had no right in the property and had no cause of action to bring the suit on issuance of show-cause notice for the removal of hut/ construction raised by him which amounted to revocation of licence.

The suit for declaration in terms of section 42 of the Specific Relief Act, in absence of any right in the property, is not maintainable when the plaintiff's forefathers were merely the licensee, such licence is revocable. The plaintiff also cannot claim relief of injunction.

Oxford Sindhi to English Dictionary s by A.T. Shahani of A One Publication, Hyderabad; Nirman Singh v. Rudra Partab Narain Singh AIR 1926 PC 100; Ram Sarup Rai v. Charitter Rai AIR 1927 All. 338; Rasulan Bibi v. Nand Lal AIR 1930 All. 521; Mahaded Singh v. Jagmohan Singh AIR 1914 Oudh 235; Kaniz Fatima v. Member, Board of Revenue PLD 1973 Lah.495 and Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245 ref.

Nemo for Plaintiff.

Abbas Ali, Addl. A.-G., Sindh for Defendants.

Date of hearing: 17th February, 2003.

2003 Y L R 2596

[Karachi]

Before Muhammad Moosa K. Leghari, J

Messrs IFTIKHAR ZAIDI ASSOCIATES---Plaintiff

Versus

Messrs PAKISTAN STEEL MILLS CORPORATION---Defendant

Suit No.631 of 1998, decided on 27th May, 2003.

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

----S. 17---Court while examining the validity of award does not act as Court of appeal and is not vested with the powers to undertake reappraisal of evidence in order to discover any error or infirmity in the award--­Supervisory role of the Court in the Scheme of Arbitration Act, 1940 is out of question.

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

----Ss. 15 & 30---Award may be modified or corrected when the same falls within the scope of S.15, Arbitration Act, 1940 and can be set aside if governed by S.30 of the said Act.

Messrs Waheed Brothers (Pakistan) Limited v. Messrs Izhar (Pvt.) Limited 2002 SCMR 366 ref.

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

----Ss.16 & 17---Court is empowered to remit the award to the arbitrator for reconsideration---Where, however, the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court is empowered under S.17 of the Arbitration Act, 1940 to proceed to pronounce the judgment according to the award.

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

----S.17---Award is to be made rule of the Court only if the Court sees no reason to remit or set aside the award, and the award does not suffer from patent illegality or defect necessitating either setting aside of the same or its remission to the arbitrator---Court is bound to see that there is no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award---While exercising supervisory jurisdiction, Court is vested with enough powers to satisfy itself with regard to legality, validity and propriety of the award.

Ascon Engineers (Pvt.) Limited v. Province of Punjab 2002 SCMR 1662 ref.

(e) Compensation---

----Grant of---Consultancy Service Agreement---Consultancy being merely an intellectual service, cost of work could not be the basis for grant of compensation to the consultant for the reason that no financial stake of the consultant firm was involved insofar as the cost of the work was concerned.

(f) Compensation---

---- Grant of---Principles.

Compensation is payable for the actual loss or damage caused; the loss or damage must be the proximate result, of the breach, and foreseeable by the defendant. In estimating the loss or damage, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. Generally the underlying principle is restitutio in integrum. There is no specific rule upon the matter, and it is left to the good sense of the Court to assess, as best it can, what it considers to be an adequate recompense for the loss suffered by the plaintiff. Every injury, although without loss of damage, would entitle the plaintiff to judgment. It is not always necessary that actual damage should be proved in order that damages may be awarded. In action for breach of contract nominal damages are recoverable although no actual damage can be proved.

West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi PLD 1973 SC 222 ref.

(g) Compensation---

---- Grant of---Consultancy Service Agreement---Delay of forty months took place which was eight times beyond the period fixed in the agreement for completing the work---Arbitrator had granted compensation at the rate of ten per cent. of the value of, the work which in the circumstances was correspondingly inadequate and comparatively below proportion--­Consultants had to retain the technical staff and had also maintained the establishment and incurred overhead expenses for the extended period of time and consultants themselves had to engage themselves in the work---Loss suffered by the- consultants, in circumstances, was thus inevitable--­Consultants were always ready and willing to, perform their 'part of duty, as no neglect,', laxity or refusal was attributed to them--­Consultants, therefore, were entitled to equitable amount of compensation-7 Compensation awarded to the consultants by the Arbitrator, being unjustly insufficient, the same needed to be enhanced---No hard and fast rule was laid down for ascertaining the compensation nor there was a yardstick or formula to measure the monetary loss suffered by a claimant in the matter of awarding compensation---Consultants, in the present case, remained admittedly engaged for forty months over and above the period of contract, they were thus entitled to an extra amount, totaling to the extent of forty per cent. of their professional fees which had been determined by the Arbitrator in his award--­Award was made rule of the Court with the modification.

Bilal A. Khawaja for Plaintiff.

Akhtar Ali Mahmood for Defendant.

Date of hearing: 28th April, 2003.

2003 Y L R 2610

[Karachi]

Before Wahid Bux Brohi and Muhammad Mujeebullah Siddiqui, JJ

ABDUL FATAH and 8 others---Petitioners

Versus

NISAR AHMED and 3 others---Respondents

Constitutional Petition No.D-6 of 1997, decided on 2nd July, 2003.

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

-----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional petition was not a substitute for the appeal or revision.

Saifullah v. Muhammad Bux 2003 MLD 480 approved.

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

-----Art. 199---Constitutional jurisdiction of High Court---Scope---Issues pertaining to the facts were beyond the scope of Constitutional petition.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Order passed in revision, without jurisdiction and not in accordance with law could be assailed in the Constitutional. petition.

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

----S.12(2)---Validity of a judgment, decree or order on a plea of fraud, misrepresentation or want of jurisdiction could only be challenged by an application to the Court which had passed the final judgment, decree or order.

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

----S.12(2)---While deciding the application under S.12(2), C.P.C. assailing the validity of a judgment, decree or order on a plea of fraud or misrepresentation, evidence in support or rebuttal of the contents of the application, shall have to be led.

North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418; Ghulam Muhammad v. M. Ahmad Khan and others 1993 SCMR 662; Haji Abdul Ghafoor v. Abdul Qayyum and 3 others 1996 SCMR 1524 and Abdul Razzaq v. Muhammad Islam and others 1999 SCMR 1714 ref.

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

-----S. 12(2)---Proceedings under S.12(2), C. P. C.---Nature---Duty of Court ---Fraud--­ Concept--Application on behalf of legal representatives had to be restricted to the grounds which the deceased, if alive could have asserted--Principles.

Although the proceedings under section 12(2), C.P.C. are not a separate suit but they partake the character and salient features of the suit, barring the application which is not bona fide and is dismissed as non-maintainable without full-fledged and elaborate inquiry. A Court to which such application is submitted, is required to formulate the issues/points for determination and give opportunity to both the parties to lead evidence in support and rebuttal of the contents of such application. The allegations of fraud and misrepresentation are to be established by an elaborate inquiry. The fraud envisaged under section 12(2), C.P.C. includes untrue statements and active concealment of facts. In this regard an application on behalf of legal representatives has to be restricted to grounds which the deceased, if alive, could have asserted.

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

----S.12(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Application under S.12(2), C.P.C.---Record showed that Trial Court had adopted a proper procedure; had provided full opportunity to the parties and showed every indulgence---Trial Court as well as the revisional Court had not committed any illegality or even material irregularity in exercise of jurisdiction under section 12(2), C. P. C. and had proceeded with all care and caution---Petitioners, in spite of full opportunity provided to them, deliberately withheld the best evidence available to them on both the contentious issues of facts—Trial Court as well as the revisional Court had correctly appreciated the evidence brought on record during the proceedings under S.12(2), CP.C---Impugned order of the Trial Court arid the judgment of the revisional Court, in circumstances, was not open to exception---Constitutional petition was dismissed.

Mohan Lal K. Mokhijani for Petitioners.

Rehmat Ali Rajput for Respondent No. 1.

Nemo for Respondents Nos.2, 3 and 4.

Dates of hearing: 24th April and 8th May, 2003.

2003 Y L R 2635

[Karachi]

Before Muhammad Moosa K. Laghari, J

ABDUL GHAFFAR MAHENTI and 2 others---Plaintiffs

Versus

KATHIAWAR COOPERATIVE HOUSING SOCIETY LIMITED and an others---Respondents

Suit No.259 of 2003, decided on 2nd July, 2003.

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

----O.VII, R.II---Rejection of plaint---Power of Court---Scope---Court not only empowered but is under obligation to reject the plaint, even without application from a party, if the same is hit by any of the clauses mentioned under R. 11 of O. VII, C. P. C.

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

----O.VII, R.11---Specific Relief Act (1 of 1877), S.42---Cooperative Societies Act (VII of 1925), Ss. 70-A & 70---Application for rejection of plaint on the grounds that the plaint was barred by Ss. 70 & 70-A of the Cooperative Societies Act, 1925 and S.42 of the Specific Relief Act, 1877 as none of the plaintiffs had a' legal character to file the suit---Validity---Such grounds for rejection of plaint necessitated factual investigation and could be adjudicated upon only on the basis of evidence to be led by the parties, in support of their pleadings and the points urged and in given circumstances, further discussion of the merits of the subject-matter was neither expedient nor justified at the present stage lest that might prejudice the case of either party---Just, fair and appropriate action on the part of the Court would be to allow the parties to lead their evidence on the same and issues framed accordingly---Principles.

In the present case defendant sought the order of rejection of plaint by invoking the ground mentioned in clause (d) of rule 11, of Order VII, C.P.C.

If a plaint is rejected on any' of the grounds stated in clauses (a), (b) and (c) of rule 11, C.P.C. it is on technical ground and in such cases, the plaintiff is not deprived of a right to claim his relief by instituting a fresh suit. However, the legal position with regard to the rejection of plaint under clause (d) of rule 11 of Order VII, C.P.C. is significantly different. According to this clause if a plaint is rejected, it amounts to dismissal of a suit as in such case the plaintiff is precluded from filing a fresh suit.

Only the contents of a plaint are to be looked into and the plaint is to be maintained or rejected on the basis of its recitals or those documents on which it was founded. It would be in rare and exceptional cases that the Court might travel beyond this. In the circumstances, the question of rejecting the plaint under the above provisions shall arise, only if from the statement in the plaint, the Court comes to the conclusion that the suit is patently barred by any law.

If, however, the Court deems it necessary, it may frame preliminary issues with regard to the maintainability of the suit, and after bringing the relevant material on record in accordance with the law, decide preliminary issues first before proceeding with the suit.

In the present case a bare perusal of the contents of the plaint shows that there is a serious controversy.

The main plea which has been taken by the defendant for rejection of the plaint is that the suit relates to a dispute touching the business of the Cooperative Society and, therefore, the same was claimed to be barred under section 70-A of the Cooperative Societies Act. However, in order to prove this plea the defendants have annexed a copy of the agreement purported to have been executed by the Society whereby the premises had been rented out to a party. The fact as to whether the dispute touches the business of the society or not can simply be thrashed out by allowing the parties to lead evidence.

Regarding the other plea raised by the defendant to contend that the suit is barred by section 42 of the Specific Relief Act as none of the plaintiffs had a legal character to file the present suit, suffice it to say, that it necessitated factual investigation and could be adjudicated upon only on the basis of evidence to be led by the parties, in support of their pleadings and the points urged.

In the given circumstances, further discussion on the merits of the subject-matter did not seem to be expedient and justified at this stage, as it might prejudice the case of either party.

It appeared just, fair and appropriate to frame preliminary issues, to allow the parties to lead their evidence on the same. Accordingly, following preliminary issues were framed:--

(i) Whether the suit was barred under section 70 and/or section 70-A of the Cooperative Societies Act, 1925?

(ii) Whether none o the plaintiffs had any legal character to maintain the suit and the suit was barred under section 42 of the Specific Relief Act?

The parties might lead evidence on the above said preliminary issues.

1990 MLD 25; PLD 1967 Dacca 190; PLD .1968 Kar. 222; 1989 CLC 694; PLD 1973 Pesh. 13; PLD 1978 Lah. 113; PLD 1985 Kar. 481 and Messrs Hoechst Pakistan Limited v. Messrs Cooperative Insurance Societies and others 1993 MLD 2464 ref.

Shamsuddin Khalid for Plaintiff.

K.B. Bhutto for Defendant.

Manzoor Ahmad for the Proposed Intervenor.

Date of hearing: 27th May, 2003.

2003 Y L R 2662

[Karachi]

Before Wahid Bux Brohi, J

HIDAYATULLAH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision Application No.S-15 of 2003, decided on 21st April, 2003.

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

----Ss. 302/324/114/148/149---Anti-Terrorism Act (XXVII of 1997), S.39-B (as inserted by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001)]---Appreciation of evidence---Transferring case to Special Court---F.I.R. showed that two of accused persons fired from their Kalashnikovs---Prima facie, evidence was available to show that during commission of offence of Qatl-i-Amd Kalashnikovs were used and for sole purpose of determining jurisdiction, material was conceivably sufficient to lead an inference that case fell within the ambit of Suppression of Terrorist Activities (Special Courts) Act, 1975 at relevant time---Sessions Judge, in circumstances was wholly justified in directing that papers challan of case be returned to concerned police for presenting same before Court having jurisdiction at the relevant time---Sessions Judge while dealing with case noticed that accused were armed with Kalashnikovs and offence was a scheduled offence within meaning of Suppression of Terrorist Activities (Special Courts) Act, 1975 and that Sessions Court had no jurisdiction---Interpretation of Cl. (b) of S.39-B of Anti-Terrorism Act, 1997 would lead to positive conclusion that case being a scheduled offence, was exclusively triable by Special Court---Contention that Kalashnikovs were not recovered, therefore, incident would not fall within purview of scheduled offence, was repelled, because other material on record had indicated that some of accused persons were armed with Kalashnikovs--­Order sending case to Special Court passed by Sessions Judge, being free from any legal infirmity or drawback, could not be interfered with.

Allah Din v. State 1994 SCMR 717 ref.

(b) Interpretation of statutes---

---- Amending provision of law was not to be interpreted as to defeat the purpose and object for which it was introduced.

Altaf Hussain Surahio for Applicants.

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

2003 Y L R 2674

[Karachi]

Before Wahid Bux Brohi, J

ABDUL KARIM and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 196 of 2003, decided on 7th May, 2003.

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

---Ss. 497(2) & 190---Penal Code (XLV of 1860), Ss.380/409/34/120-B---Bail, grant of---Further inquiry---Entire property was secured from one of the accused persons during the investigation--Challan was submitted in Court showing accused persons in Coiumn No. 2 as they were found to be innocent, but Magistrate while taking cognizance, joined them as accused persons and remanded them to custody---Joining of some persons as accused in a criminal case within meaning of 5.190, Cr.P.C., was not bard, but there should be material on record with the prosecution to enable Court to reach at conclusion that accused, prima facie were involved in commission of offence--­Prosecution on the basis of police papers though had not been able to point out such substantive piece of evidence, but did not question joining of accused in the case--­Opinion of police was not binding on , the Court while taking cognizance of the case, ultimately the material on record was to be examined---Ground for holding the case of accused persons of further inquiry existed--­Trial Court was' to decide the rest of the points at trial---Accused were admitted to bail in circumstances.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63 ref.

(b) Criminal trial---

---- Opinion of police---Binding force of--­Opinion of police was not binding upon Court while taking cognizance and material on record was to be examined.

Ali Nawaz Ghanghro for Applicants.

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

Date of hearing: 7th May, 2003.

ORDER

2003 Y L R 2682

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD HASHIM and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.37 of 2003, decided on 20th February, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.394/511---Bail, grant of---No evidence whatsoever connecting the accused had been collected by prosecution---Accused having case for grant of bail was admitted to bail--­Bail application of other accused having not been pressed by his counsel, same was dismissed as not pressed.

Shafi Muhammad Memon for Applicants.

Anwar H. Ansari for the State.

2003 Y L R 2686

[Karachi]

Before Rehmat Hussain Jafferi, J

SIKANDAR ALI and others---Petitioners

Versus

MUHAMMAD SHARIF and others---Respondents

Civil Revision No.39 of 1998, decided on 26th February, 2003.

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

----S.12(2)---Application for setting aside the judgment and decree or order on the ground of fraud, misrepresentation or want of jurisdiction shall he moved to the Court which passed the final judgment, decree or order and not by separate suit.

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

----S.12(2)---Final order---Order in question was not passed after considering the facts and law involved in the appeal nor the Appellate Court had given any finding on the, question of facts or law or in reversal or confirmation of the findings of the Trial Court---Such order could not be termed as adjudication of the controversy involved in the appeal on the factual or legal aspects of the case, as such, the said order could not be termed as "final order" in terms of S.12 (2), C. P. C.

Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516; Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062; Mrs. Alice Walter v. Islamuddin Qureshi PLD 1968 Kar. 19; Mubarik Ali v. Fazal Muhammad and another PLD 1995 SC 564; Baz Muhammad and others v. Mst. Zelekha and others PLD 1997 SC 300; Shabir Hussain v. Mst. Anwar Sultan through 3 Legal Heirs 1986 CLC 903; Haji Muhammad Siddik v. Pir Bux and another 1983 CLC 1949; Muhammad Yakoob v. Mst. Nooran and others 1983 CLC 48; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 and Sarfraz v. Muhammad Aslam Khan 2001 SCMR 1062 ref.

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

----S.12(2)---Final order---If the appeal is dismissed in limine, or in default or for having been insufficiently stamped or because no appeal actually lay or was withdrawn or had abated and the decision was not given on merits, in such an eventuality, the decree of the Trial Court would not be merged in the orders above-mentioned---Where the appeal was. dismissed for non prosecution and for non-deposit of the cost of paper book, the judgment and decree of the Trial Court could not be merged in the said order, particularly, when the decision was not given on merits--­Order of the Appellate Court, in circumstances, could not be termed as final order within meaning of S.12 (2), C. P. C.

Sarfraz v. Muhammad Aslam Khan 2001 SCMR 1062 and Mrs. Alice Walter v. Islamuddin Qureshi PLD 1968 Kar. 19 ref.

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

----S. 115--- Revision--- Maintainability--­Court has to examine as to whether or not the lower Court had exercised its jurisdiction vesting in it by law, to allow revision.

(e) Jurisdiction---

---- Point of jurisdiction could be raised at any stage of the proceedings.

Ghulam Jillani v. Government of Pakistan PLD 1967 SC 373; Rasheed Ahmad v. The State PLD 1972 SC 271 and Wali Dad v. Deputy Commissioner, Karachi and 2 others PLD 1975 Kar. 202 ref.

Mohan Lal. K. Makhiljani for Petitioners.

Ghulam Sarwar Abbasi for Respondents.

Date of hearing: 26th February, 2003.

2003 Y L R 2692

[Karachi]

Before Muhammad Ashraf Leghari, J

ZAFAR alias GUNJA alias ASLAM and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.297 and 327 of 2003, decided on 21st April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/34/147/148/149---Bail, grant of--­Further inquiry---Evidence on record had shown' that corner meeting in respect of election campaign was being held by complainant party when accused persons alongwith other terrorists assaulted the participants---Accused belonged to rival political group and their names were appearing in F.I.R.---Injured in the occurrence had specifically taken names of both accused persons in his statement--­Enmity was a motive for commission of incident---Accused opened indiscriminate firing which hit seven persons including passersby---Plea that no specific part had been assigned to the accused, had no force as all accused armed with fire-arms had opened fire as a result of which seven persons sustained injuries---Case under S.324, P. P. C: was covered by prohibitory clause of S. 497(1), Cr. P. C. and case of the accused did not come under scope of further inquiry and they did not deserve bail.

Shahid Naseem v. The State 1998 PCr.LJ 1998; Ikramullah v. Sami Ullah and another 1998 MLD 1184; Muhammad Ishaque and another v. The State 1992 PCr.LJ 594; Gohar Ali and another v. The State 2000 PCr.LJ 1052; Noor ur Rehman v. The State 2000 PCr.LJ 1603; Abdul Saleem v. The State 1998 SCMR 1578 and Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 ref.

Raza Muhammad Raza for Applicant (in Criminal Bail Application No.297 of 2003).

Saadat Hassan for Applicant (in Criminal Bail Application No.327 of 2003).

Habibur Rashid, State Counsel.

Date of hearing: 21st April, 2003.

2003 Y L R 2694

[Karachi]

Before Wahid Bux Brohi, J

SULLEMAN and others---Applicants

Versus

THE STATE---Opponent

Criminal Bail Applications Nos. 179 and 180 of 2003, decided on 29th April, 2003.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/337-H(ii)l 452/ 504/ 147/ 148/ 149/ 114---Bail---Case of accused fell within the prohibitory clause of S.497(1), Cr.P.C.--­Specific role of causing fire-arm injuries had been attributed to the accused---Was premature to hold that his case would call for further inquiry---Bail was declined to accused in circumstances.

Muhammad Anwar v. State 1976 SCMR 168 and Muhammad Afsar v. State 1994 SCMR 2051 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/337-H(ii)l 452/ 504/ 147/ 148/ 149/ 114---Bail---Accused was only alleged to have fired in the air---State Counsel had not opposed the bail application---Accused was admitted to bail in circumstances.

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

----S. 498---Penal Code (XLV of 1860), Ss.324/337-H(ii)/452/ 504/ 147/ 148/ 149/ 114---Pre-arrest bail---Allegation against accused was that he had instigated others at the time of occurrence---State counsel had no objection to grant of bail to accused---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Appellant in Person (in Criminal Bail Application No. 179 of 2003).

Abdul Rasool Abbasi for Applicants.

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

Date of hearing: 29th April, 2003.

2003 Y L R 2699

[Karachi]

Before Wahid Bux Brohi, J

ZULFIQAR ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 143 of 2003, decided on 5th May, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Accused had contended that no Mashirnama of place from where buffaloes were allegedly secured, was prepared by police, but only house of the complainant was inspected where buffaloes were standing and that no weapon had been recovered from accused and no overt act had been ascribed to him---State had conceded to grant of bail---Guilt of accused, in circumstances called for further inquiry---Bail was granted to accused, in circumstances.

Nisar Ahmed Abro for Applicants.

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

Date of hearing: 5th May, 2003.

2003 Y L R 2710

[Karachi]

Before Wahid Bux Brohi, J

GUL MUHAMMAD alias GUL HASSAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.96 of 2003, decided on 6th May, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/34/114/148/149 --- Bail, grant of---Further inquiry---Act of making direct fire from Kalashnikovs was alleged against two accused as mentioned in the FI-R. Nos. whereas name of the accused/ petitioner was also mentioned in the F.I.R.--­ Only allegation against the accused was their presence at the spot with fire-arms and making fire in the air---Vicarious liability of said accused persons was yet to be ascertained---Fatal shots were not attributed to the accused persons and only on account of their presence and making fires in the air, their vicarious liability would call for further inquiry--Accused were admitted to bail, in circumstances.

Jai Jai Veshno Mange Ram for Applicants.

Syed Mehboob Ali Shah for the State.

Date of hearing: 6th May, 2003.

2003 Y L R 2711

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD AFZAL MAGSI and another---Applicants

Versus

THE STATE---Respondent

Special Criminal Bail Applications Nos.3 and 6 of 2003, decided on 29th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), S.156(1)(14)(82)---Bail---Accused were the Appraising Officer and the Treasury Officer, Customs, and none of them had either held the auction proceedings or issued any cheque---Allegation against the accused was that in connivance with co-accused they had conducted the auction illegally ---Co-accused who was the beneficiary was still absconding---Active involvement of the accused in the crime was yet to be established at the trial---Documents had already been taken into possession by the police---Case against the accused did not fall within the, prohibitory clause of S.497(1), Cr.P.C.--­Accused were allowed bail in circumstances.

Wajid Ali v. The State 2000 MLD 1572; Younus Habib v. The State 2000 PCr.LJ 721 and Haji Wali Muhammad v. The State 1969 SCMR 233 ref.

Rana M. Shamim for Applicant (in Special Criminal ,Bail Application No.3 of 2003).

Khawaja Sharful Islam for Applicant (in Special Criminal Bail Application No.6 of 2003).

Mahmood Alam Rizvi, Standing Counsel.

Date of hearing: 22nd April, 2003.

2003 Y L R 2721

[Karachi]

Before M. Ashraf Leghari, J

SHAFIQ AHMED ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.415 of 2003, decided on 22nd April, 2003.

Criminal Procedure Code (V of 1898)--

----S. 497--Penal Code (XLV of 1860), S.392---Bail---Complainant had no enmity with the accused to involve him in a fare case---Not only the robbed motorcycle was recovered from the possession of accused but the T. T. Pistol was also secured from him--­Complainant had rightly picked up the accused in the identification test---Offence with which the accused was charged was hit by the prohibitory clause of S.497(1), Cr. P. C. ---Bail was refused to accused in circumstances.

Wazir Hussain Khoso for Applicant.

Habibur Rashid for the State

Date of hearing: 22nd April, 2003.

2003 Y L R 2734

[Karachi]

Before Muhammad Ashraf Leghari, J

Syed SHAHID ALI SUBZWARI ---Applicant

Versus

THE STATE----Respondent

Special Criminal Bail No.5 of 2003, decided on 29th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), S.156(1)(14)(82)/32---Bail---Accused was Treasury Officer and he had not signed any document for auctioning the goods---Record did not show that the accused had opened any account with the Bank ---Co-accused who was the beneficiary was still absconding--­Relevant record had been taken into possession by the police---Section 32 of the Customs Act, 1969, was not attracted to the case---Remaining charges were not hit by the prohibition contained in S. 497(1). Cr. P. C. --­Offence with which the accused was charged was punishable with three years' R.I.---Accused was admitted to bail in circumstances.

Saeed Ahmad v. The State 1995 SCMR 170; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Sikandar A. Karim v. The State 1995 SCMR 387; Ch. Muhammad Aslam v. The State 1992 MLD 880 and Noorul and others v. The State 1976 SCMR 190 ref.

Khawaja Sharful Islam for Applicant.

Mahmood Alam Rizvi, Standing Counsel.

Date of hearing: 22nd April, 2003.

2003 Y L R 2746

[Karachi]

Before Muhammad Ashraf Leghari, J

Mirza SARFARAZ ALI BAIG and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.95 and Criminal Revision No.4 of 2001, decided on 25th April, 2003.

Penal Code (XLV of 1860)---

----Ss. 337-L(2) & 337-L(1)---Appreciation of evidence---Appeal was time-barred by 82 days for which no plausible explanation was furnished---Injuries received by the witness had been declared "Jarah-e-Jaifa" and he had remained in hospital for 19 days--­Offence committed by accused, thus, would fall under S.337-L(1), P. P. C. and not under S.337-L(2), P.P.C.---Two injured witnesses had fully implicated the accused and their testimony was supported by medical evidence---Complainant and the accused were closely related to each other---Conviction of accused under S.337-L (2), P. P. C. was altered to S. 337-L(1), P. P. C. in circumstances and their sentence to pay Daman amount of Rs.15, 000 each awarded by the Trial Court was enhanced to one year's R.I. each with a fine of Rs.5,000 each---Appeal filed by accused was dismissed.

Bashir v. The State 1985 PCr.LJ 1997; Muhammad Afzal alias Ajoo v. The State 1985 PCr.LJ 1803; Muhammad Saleh and another v. The State 1987 PCr.LJ 17; Liaquat Ali v. The State 1990 PCr.LJ 403 and Mahmood ur Rehman v. The State 1993 PCr.LJ 1729 ref.

M. Shafi Rajput for Appellant.

M. Akbar Khan for Respondent.

Habibur Rashid for the State.

Date of hearing: 19th March, 2003.

2003 Y L R 2778

[Karachi]

Before Rahmat Hussain Jafferi, J

GULSHER---Applicant

Versus

CIRCLE OFFICER, ANTI-CORRUPTION ESTABLISHMENT, LARKANA and 2 others---Respondents

Criminal Miscellaneous Application No.S-01 of 2003, decided on 17th February, 2003.

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

---Ss. 201/218/120(b)/477-A/34---Prevention of Corruption Act (II of 1974), S. 5(2)----Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---F.I.R. against the accused had been properly registered in accordance with law under proper approval of the Competent Authority---­F.I.R. had disclosed a cognizable offence allegedly committed by the accused which was to be investigated by the Anti-Corruption Police---No challan had been submitted in the Trial Court as the investigation in the case had not yet been completed ---F.I.R., thus, could not be quashed under S.561-A, Cr. P. C.---Petition was dismissed accordingly.

Ahmad Saeed v. The State 1996 SCMR 186; Bashir Ahmed v. State 2002 MLD 746; Mairaj Khan v. Gul Ahmad 2000 SCMR 122; Mian Muneer Ahmad v, State 1985 SCMR 257; Emperor v. Nazir Ahmad AIR 1945 PC (sic); AIR 1938 Mad. 129; Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 and Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 ref.

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

---S. 561-A---Inherent jurisdiction of High Court---Quashing of F.I.R.---Investigation cannot be interfered with by the Judicial Forum and F.I.R. cannot be quashed if cognizable offence is made out from the facts mentioned in it.

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

----S. 561-A---Inherent jurisdiction of High Court---Quashing of F.I.R.---FI.R. cannot be quashed under S.561-A, Cr. P. C. when no challan has been submitted before the Court.

Abdul Rehman A. Bhutto for Appellant.

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

Date of hearing: 17th February, 2003.

2003 Y L R 2806

[Karachi]

Before S. Ali Aslam Jafri, J

ZULFIQAR ALI MAHAR ---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 165 of 2002, decided on 14th April, 2003.

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

----S. 21(2)---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---None of the ingredients of S.21(1) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was attracted to the facts of the case and to the contents of the F. I. R. ---No offence punishable under S.21(2) of the said Ordinance, therefore, appeared to have been made out---Taking the present case to be an exceptional one High Court exercised the powers under S. 561-A, Cr. P. C., directly and quashed the proceedings pending before the Trial Court in pursuance to the impugned F.I.R. as the same if allowed to be continued would have amounted to abuse the process of law and an exercise in futility---Petition was accepted accordingly.

Gulnaz v. State and 3 others 1996 PCr.LJ 486 and Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 ref.

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

----S.561-A---Inherent power of High Court--­Exercise of jurisdiction---High Court indeed before invoking jurisdiction under S.561-A, Cr.P.C. normally and usually insists that Trial Court should be moved under S.249-A or 265-K, Cr. P. C. in the first instance for acquittal of accused, but in appropriate cases High Court can exercise such jurisdiction directly without waiting for an order from Trial Court.

Gulnaz v. State and 3 others 1996 PCr.LJ 486 and Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 ref.

Mazhar Ali M. Siddiqui for Applicant.

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

Date of hearing: 21st October, 2002.

2003 Y L R 2826

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD SIDDIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.780 of 2003, decided on 15th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Pre-arrest bail--- Complainant had named the accused in the F.I.R. due to suspicion---Complainant, admittedly had a dispute with the accused over landed property---Dead body of the deceased was found in an abandoned room constructed on a mountain---No ocular evidence was available in the case---No evidence was available against the accused to connect him with the crime and his arrest apparently would be mala fide---Apprehension that police in connivance with the complainant party would cause mental torture to accused and would humiliate him had force---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Government of Sindh through The Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782 and Tariq Perwaiz v. The State 1988 SCMR 28 ref.

Khawaja Sharful Islam for Applicant.

Habibur Rashid, State Counsel.

Mazhar Ali B. Chohan for the Complainant.

Date of hearing: 15th April, 2003.

2003 Y L R 2893

[Karachi]

Before Gulzar Ahmed, J

Mirza ABID BEG‑‑‑Petitioner

Versus

Mrs. ZARINA SHAMS and 2 others‑‑‑Respondents

Constitutional Petition No.810 of 2002, decided on 2nd May, 2003.

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

‑‑‑---Ss. 14 & 15‑‑‑Widow, owner of premises under different tenancies of same character cannot get all the tenancies vacated but is entitled to get only one tenancy vacated under S.14 of the Sindh Rented Premises Ordinance, 1979‑‑‑Provision of S.14 of the Ordinance being special in nature creating restricted right cannot be extended to other tenancies even though the premises got vacated may not be sufficient for the requirement of the landlord‑‑‑For the purpose of obtaining possession of premises on the ground of bona fide personal need, the landlord has remedy to file application under S.15 of the Ordinance.

Mst. Razia Khatoon v. Dr. Roshan H. Nanji 1991 SCMR 840; Shaikh Muhammad Khalid v. Fakhruddin 1992 CLC 2307; Muhammad Ali Ahmed Khan v. Messrs Touseef Engineering Works 1991 CLC 1051; Abdul Rasheed v. Khalid Yousaf Company 1992 MLD 1654; Khawaja Shahzad Hassan v. District Sessions Judge, Rawalpindi 1992 MLD 1574; Laldin Masih v. Mst. Sakina Jan 1985 SCMR 1972; Saeed Ahmed v. Tariq Nazir Butt 1987 SCMR 220; Mst. Saeeda Begum v. Muhammad Nawabuddin 2001 SCMR 1584; Mst. Wahabun Nisa v. Haji Abdul Sattar 1989 CLC 517; Dr. S.C. Kou v. Mst. Khursheed Begum PLD 1997 SC 842; Muhammad Mansha v. Sabir Ali 1999 SCMR 1782; Syed Hasan Askari v. Muhammad Aziz PLD 1989 SC 1; A.R. Tahir v. Muhammad Ali & Sons 1992 MLD 2234; Qamaruddin v. Hakim Mehmood PLD 1983 Kar. 570; Mst. Syeda Hyderi v. Aftab Ahmed 1986 CLC 1534; Mst. Husna Begum v. Haji Din Muhammad 1999 CLC 1399; Muhammad Bux v. Karim Bux alias Kamanlala 1987 CLC 475; Muhammad Bux v. Karim Bux alias Kaman Lala 1987 CLC 13: Mrs. M.S. Baroba v. Manzoor Ahmed 1992 SCMR 1158; Salim Ahmed Khan v. Mst. Jamila Latif 1990 SCMR 1117; Iqbal Book Depot v. Khatib Ahmed 2001 SCMR 1197; Matloob v. Mst. Saeeda Khatoon 1988 SCMR 1575; Mst. Akhtar Sultana v. Syed Abdul Qayyum 1985 CLC 534 and Muhammad Ashfaq v. Suleman 1985 CLC 2374 ref.

Umar Qureshi for Appellant.

S.A. Jalib Choudhry for Respondent No. 1.

Date of hearing: 23rd April, 2003.

2003 Y L R 3094

[Karachi]

Before S.A. Sarwana and Anwar Zaheer Jamali, JJ

Messrs A & B FOOD INDUSTRIES (PVT.) LIMITED, KARACHI‑‑‑Petitioner

Versus

CENTRAL BOARD OF REVENUE and others‑‑‑Respondents

Constitutional Petition No.D‑2886 of 1993, decided on 14th March, 2001.

Constitution of Pakistan (1973)‑‑‑

‑-‑‑Art 199(4‑A)‑‑‑Constitutional petition‑‑­Application for vacation of stay‑‑‑Stay granted was sought to be vacated on ground that more than six months had expired since its grant‑‑‑Validity‑‑‑Held, it was not necessary to pass a formal order for vacating stay order because under Art. 199(4‑A) of the Constitution stay order granted by Court would cease to have effect on expiry of a period of six months following the date on which it was made.

Zahoor Textile Mills Ltd. v. Federation of Pakistan and others PLD 1999 SC 880 ref.

Ms. Sonia holding brief for Muhammad Farid for Petitioner.

Shakeel Ahmed for Respondent.

2003 Y L R 3095

[Karachi]

Before Shabbir Ahmed, J

THARPARKAR SUGAR MILLS LTD. ‑‑‑Plaintiff

Versus

Messrs ALI INTERNATIONAL (REGD.)‑‑‑Defendant

Civil Miscellaneous Application No. 1870 of 2002 in Suit No. 147 of 2000, decided on 11th November, 2002.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss.126, 128 & 230‑‑‑Right of creditor to sue guarantor without impleading principal debtor‑‑‑Plea raised by the defendant was that he was agent and he could not be sued independently, whereas the defendant had issued cheques on behalf of the principal debtor‑‑‑Validity‑‑‑Defendant having issued cheques for repayment of amount due from principal, the defendant's position was that of guarantor‑‑‑Guarantor could be sued independent of debtor in circumstances.

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

‑‑‑‑O.XXXVII, R.3‑‑‑Leave to appear and defend the suit‑‑‑Fact requiring evidence‑‑­Dispute between the parties was with regard to the payment of amount‑‑‑Plea raised by the plaintiff was that the amount received by hint was against export by buyer and was arranged through third party only to save the period of limitation for claim of duty, draw­back‑‑‑Validity‑‑‑Such fact required evidence whether the amount had been released or not and the same could not be decided at the stage of deciding application for leave to defend‑‑‑Leave to appear and defend was allowed in circumstances.

Munawar Hussain for Plaintiff.

Raja Sikandar Khan Yasir for Defendants.

2003 Y L R 3099

[Karachi]

Before Khilji Arif Hussain, J

SHER MUHAMMAD and others‑‑‑Plaintiffs

Versus

DIN MUHAMMAD and others‑‑‑Defendants

Suit No.1191 of 1991, decided on 4th February, 2003.

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

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for recovery of compensation‑‑‑Negligence, determination of‑‑‑ "Composite negligence "‑‑‑Concept‑‑­When negligence of two or more persons results in some damage, the same is said to be "composite negligence" and persons responsible for causing such negligence are known as "composite tortfeasors " and were jointly and severally liable.

Andhra Marine Exports (P) Ltd. v. P. Radhakrishan and others AIR 1984 Mad. 358; Seth's Law Relating to Traffic Offences and Accidents Claim; Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848 and Qazi Arifuddin and another v. Government of Sindh and others PLD 1991 Kar. 291 ref.

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

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for compen­sation‑‑‑Parties entitled to compensation‑‑­Such suit can be filed only for the benefit of the wife, husband, father, mother and child which includes son and grandson, granddaughter and step‑daughter‑‑‑Brothers and sisters of the deceased were not entitled to claim compensation.

Zahid Hamid for Plaintiffs.

Taza Gul Khattak for Defendants.

Date of hearing: 20th December, 2002.

2003 Y L R 3104

[Karachi]

Before Muhammad Roshan Essani and S. Ali Aslam Jafri, JJ

SHARIQ IMRAN KHAN‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.D‑1911 of 2002, decided on 6th January, 2003.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑S.2‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑Consitutional petition‑‑‑Placing a citizen on exit control list‑‑‑Furnishing of security to ensure return to Pakistan‑‑­Petitioner's name was placed on Exit Control List and he was ready to furnish surety or security as desired by the Authorities to ensure his return to Pakistan and to appear before the Authorities as and when required on a notice through his counsel ten days prior to the date of hearing ‑‑‑Validity‑‑­High Court accepted the offer and directed the petitioner to furnish solvent security‑‑‑High Court further' directed the petitioner to execute undertaking in writing to appear before the Authorities on a notice to him through his counsel ten days prior to the date of hearing‑‑­Constitutional petition was disposed of accordingly.

Saleem Akhtar v. Federation of Pakistan and another PLD 1999 Kar. 177; Baber Khan Ghori and another v. Federation of Pakistan and others PLD 1999 Kar. 402; Wajid Shamsul Hassan v. Federation of Pakistan PLD 1997 Lah. 617 and Ms. Naheed Khan v. Government of Pakistan and another PLD 1997 Kar. 513 ref.

Munir A. Malik, Zaiul Haq Mukhdoom and Azhar Ali Khan for Petitioner.

Nadeem Azhar Siddiqui, D.A.‑G, for Respondent No. 1.

Agha Faqir Muhammad for Respondent No.2.

2003 Y L R 3126(1)

[Karachi]

Before Saiyed Saeed Ashhad, CJ

Mst. HAYAT BIBI‑‑Applicant

Versus

STATE‑‑‑Respondent

Pre‑arrest Bail Application No.1093 of 2001, decided on 3rd September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Protective bail, grant of‑‑‑Case was still at the stage of investigation and challan had not yet been submitted‑‑‑Case was triable by the Sessions Court and accused ought to have appeared before said Court for pre‑arrest bail if it was considered fit to move such an application‑‑‑Even if on the date when accused approached the concerned Sessions Court, same was surrounded by police, accused could have approached said Court on subsequent dates as police would not be surrounding the building of Sessions Court every day‑‑‑No case, in circumstances, had been made out for grant of protective bail.

Agha Zafir Ali for Applicant.

Arshad Lodhi, A.A.‑G. for the State.

Date of hearing: 3rd September, 2001.

2003 Y L R 3139

[Karachi]

Before Muhammad Roshan Essani, J

Haji MANZOOR AHMED and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.336 of 2002, decided on 30th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 561‑A, 107, 112, 114, 117 & 151‑‑­Quashing of proceedings‑‑‑Family dispute was going on between son, his step‑mother and real father‑‑‑Proceedings were initiated upon statement of son against applicants who were his step‑mother and real father which resulted in remand of applicants to jail by the Magistrate‑‑‑Proceedings under Chap. VIII of Criminal Code, 1898, were not Procedure penal, but punitive‑‑‑Magistrate was not supposed to act mechanically upon the report of Police while taking cognizance of matter under Chapt. VIII, Cr. P. C. ‑‑‑Magistrate should be doubly conscious and he was required to apply his judicial mind before taking any action‑‑‑Report/information for taking action must be clear and unambiguous and it should disclose tangible information under S.107, Cr. P. C. which had contemplated that there must be sufficient grounds for proceedings against the party‑‑­Applicants were not arrested under S.151, Cr.P.C. but were produced before Magistrate with a report under Ss. 107 & 117, Cr. P. C.-- No move was made by prosecution under S.117(3), Cr. P. C. before the Court and no order under S.112, Cr. P. C. was passed by the Magistrate‑‑‑Condition precedent for taking cognizance was that if a person proceeded against was present in the Court, order under S.112, Cr. P. C. was to be passed and read over to him and if he desired, substance of order would be explained to him arts if person proceeded against was not present before the Court, a copy of order under S.112, Cr.P.C. would be sent to him with summons or warrants issued under S.114, Cr. P. C. through the officer executing the same‑‑‑Remand of applicants to jail without any order under S.112 or S. 117(3), Cr. P. C. was illegal‑‑‑Liberty of a person was cherished one and it could not be curtailed in a mechanical way‑‑‑Court was under bounden duty to follow procedure as laid down under the statute and any departure from the same would result in miscarriage of justice‑‑­Proceedings under Ss.107 & 117, Cr.P.C. pending before Trial Court against applicants, Were quashed, in circumstances.

Ali Gohar Soomro for Applicants.

Qazi Wali Muhammad for A.‑G. for the State.

Date of hearing: 17th October, 2002.

2003 Y L R 3166

[Karachi]

Before Ghulam Nabi Soomro, J

ALI MURAD and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.354 of 2003, decided on 11th July, 2003.

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

‑‑‑‑S.497‑‑‑ Penal Code (XIV of 1860), Ss. 302/148/149‑‑Bail, grant of‑‑‑Earlier bail application of accused was dismissed ns withdrawn by High Court‑‑‑Considering case of the accused persons as one of hardship as they were then in custody without trial for more than two and a half years, case against accused was withdrawn from the Court and was transferred to another Court for expeditious disposal‑‑‑Specific directions were issued to transferee Court in the transfer order to examine material witnesses within a period of 30 days, but transferee Court had failed to examine any witness according to direction and had failed to take any special efforts in procuring attendance of prosecution witnesses‑‑‑Only purpose of transferring the case was expeditious trial of accused which could have been held on day to day basis and Trial Court ought not to have adjourned the case to longer dates‑‑‑Nothing was on record to suggest that Trial Court dealt with the case on priority basis, which it was to do in view of directions given to it‑‑‑Accused could not be punished for slackness which had not occurred due to any act on their part‑‑‑Bail was granted by High Court in similar circumstances to another accused‑‑‑Bail was granted to accused persons, in circumstances.

Muhammad Ayaz Soomro for Applicants.

Muhammad Bachal Tonyo, Addl. A.‑G.

Date of hearing: 11th July, 2003.

2003 Y L R 3172

[Karachi]

Before Rehmat Hussain Jaffari, J

NAUKAF‑‑‑Applicant

Versus

SHER ALI and another‑‑‑Respondents

Criminal Miscellaneous No. 131 of 2002, decided on 17th July, 2003

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

‑‑‑‑S.497(5)‑‑‑ Penal Code (XLV of 1860), S.302/34‑‑‑Bail, cancellation of‑‑‑Name of accused was mentioned in F.I.R. and specific role of causing fire‑arm injuries had been assigned to him in respect of both deceased‑‑­Medical evidence had supported the ocular version‑‑‑Prosecution witnesses in their statements under Ss. 161 & 164, Cr. P. C. had supported prosecution case and implicated the accused with commission of crime­ Reasonable grounds existed in circumstances for believing that accused was involved in the case and 'Trial Court was not justified to grant bail to the accused‑‑‑Order granting bail to accused, was set aside and bail granted to accused was cancelled.

Muhammad Ayaz Soomro for Applicant.

Ali Aawaz Changhzo for Respondent No. 1.

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

2003 Y L R 3218

[Karachi]

Before Sarmad Jalal Osmany, J

PERVAIZ alias BHOORA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1137 of 2002, decided on 16th September, 2002.

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

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑­Bail, grant of‑‑‑Further inquiry‑‑‑Police had recommended release of co‑accused which recommendation was allowed by the Magistrate‑‑‑Medical report was only to the extent that complainant was not a virgin and Chemical Certificate was silent as regards any particle of semen which could have been available on the recovery of pieces of cloth and bed sheet‑‑‑Case being of further inquiry, bail was granted to accused.

Ashraf Ali Butt alongwith Imran Butt for Applicant.

Qazi Wali Muhammad for the State.

2003 Y L R 3231

[Karachi]

Before Muhammad Afzal Soomro, J

JURIO---Applicant

Versus

THE STATE ‑Respondent

Criminal Bail Application No.225 of 2003 decided on 11th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑ Penal Code (XLV of 1860), S.307/34‑‑‑Bail, grant of‑‑‑Accused had contended that case against him was false as he had been involved in the background of enmity and suspicion and that according to F.I.R. accused was alleged to be armed with gun and was alleged to have fired at the complainant but no medical evidence was on record to substantiate the claim of the complainant‑‑‑Accused remained behind the bars for nearly two years, but there was no likelihood of case being concluded in foreseeable future‑‑‑Accused had also contended that two co‑accused during course of investigation were let off by police who were disclosed to be armed with hatchet which would adversely reflect on version of prosecution story as a whole‑‑‑Contentions raised by accused were more weighty in comparison to points raised by the prosecution‑‑‑Bail was granted to accused, in circumstances.

2003 PCr.LJ 73; 2003 MLD 19; 1989 PCr.LJ 244; 1985 SCMR 382 and 2003 MLD 1191 ref

Muhammad Ayaz Soomro for Applicant.

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

2003 Y L R 3241

[Karachi]

Before Khilji Arif Hussain, J

MUHAMMAD YOUSAF‑‑‑Plaintiff

Versus

ISLAMIC REPUBLIC OF PAKISTAN and others‑‑‑Defendants

Suit No.310 of 1991, decided on 24th. December, 2002.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for damages‑‑­Evidence produced on record had fully proved that accident which resulted in death of deceased had occurred due to negligence of defendants‑‑‑Suit filed by plaintiff was decreed and amount of compensation to be given to legal heirs of deceased was determined keeping in view age, earning capacity of deceased, etc.

Nasir Maqsood for Plaintiff.

Akhlaq Ahmad Siddiqui, Ikram Ahmed Ansari and Imtiaz Ahmed Ansari for Defendants.

Date of hearing: 12th December, 2002.

2003 Y L R 3251

[Karachi]

Before Muhammad Roshan Essani and Sarmad Jalal Osmany, JJ

SOOMAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals (ATA) Nos.51 and 78 of 2000, decided on 16th May, 2002.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss.324/392/393/394/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Anti­Terrorism Act (XXVII of 1997), S.7(b)‑‑­Appreciation of evidence‑‑‑Accused did not press their appeal against judgment of Trial Court on merits, but had requested that sentence awarded to them by Trial Court be reduced‑‑‑Contention was that one of the accused was young man and was not previous convict and belonged to a very poor family and was victim of circumstances he had repented over the act committed by him and had also decided not to indulge in such activities in future‑‑‑Validity‑‑‑Sentences of co‑accused, in the same matter, having been reduced, such a lenient view could also be taken in respect of the accused‑‑‑Counsel appearing on behalf of State had conceded to the contention of the accused stating that conviction and sentence of five years and fine would meet ends of justice‑‑‑Sentence awarded to accused in circumstances was re­duced accordingly.

Province of Sindh and others v. Din Muhammad 1993 SCMR 1551; Tariq Pervez v. The State 1995 SCMR 1345; Saee and others v. The State 1984 SCMR 1069; Soomar v. The State 1977 PCr.LJ 70; Ashiq v. The State 1979 PCr. LJ 480; Shahbaz Ahmed and another v. The State 1994 PCr.LJ 1127; Murid Abbas and others v. The State 1992 SCMR 338; Ghulam Nabi v. Thakur Singh and others AIR 1926 Lah. 239 (1); Abdul Hameed v. The State 1988 SCMR 1772; Samandar Khan and others v. The State 1996 SCMR 380; Muhammad Riaz and another v. The State 1996 SCMR 1089; Shamoon Masih v. The State 2001 PCr.LJ 57 and Muhammad Afzal alias Papu v. The State 1987 PCr. LJ 100 ref.

Saathi M. Ishaque for Appellant.

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 16th May, 2002.

2003 Y L R 3258

[Karachi]

Before Ata‑ur‑Rehman, J

Mst. AISHA BIBI‑‑‑Appellant

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No. 141 of 1999, decided on 26th August, 2002.

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

‑‑‑‑S.417‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Appeal against acquittal‑‑‑Case against accused was based mainly on the evidence of deceased's last seen with accused person, followed by recovery of crime weapon and blood‑stained clothes including Banyan of the deceased‑‑‑Trial Court had discussed each piece of evidence and minutely examined the material and legal aspect of the matter‑‑‑Even the evidence of the prosecution witnesses who alleged to have last seen the deceased with the accused, suffered from contradictions and improvements, which did not inspire confidence‑‑‑Trial Court in circumstances had rightly come to the conclusion that corroborative evidence was not of the quality which would make evidence of deceased's last seen with accused, reliable or connecting them with offence‑‑‑Trial Court neither had given a perverse or wrong finding nor had misread or ignored the important portions of evidence‑‑‑No miscarriage of justice appeared to have taken place calling for interference into judgment of Trial Court‑‑‑Appellate Court, while dealing with appeal against acquittal, was to give due weight to opinion of Trial Court‑‑‑Appeal against acquittal was dismissed in circumstances.

The State v. Abdul Ghaffar 1996 SCMR 678 ref.

Saathi M. Ishaque for Appellant.

Mirza Hayat Baig for Respondents.

Habib Rasheed for the State.

Date of hearing: 26th August, 2002.

2003 Y L R 3289

[Karachi]

Before Mushir Alam, J

Syed MUKHTAR HUSSAIN NAQVI‑‑‑Plaintiff

Versus

Mst. Hajiani ZUBEDA and another‑‑‑Defendants

Suits Nos.434 of 1993 and 1014 of 1996, decided on 19th May, 2003.

(a) Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑Ss.21 & 30‑‑‑Reference to arbitration at motion of both parties to suit in absence of written application‑‑‑Validity‑‑‑Requirement of making application for reference to arbitration not mandatory, but merely directory‑‑‑Award could not be invalidated on ground of absence of written application‑‑­Making or non‑making of written application would matter little, where parties agreed to refer subject‑matter of suit to arbitration‑‑­Once parties to suit expressed their desire for resolution of dispute through arbitration and consent order to such effect was passed, then one party could not resile from the bargain.

Messrs S.M. Qasim & Co. v. Mess Sh. Azimuddin PLD 1962 (W.P.) Lah. 95: Kissen Gopal Nathani v. Murlidh Chowdhury AIR 1962 Cal. 581; Ghulam Jilani and others v. Muhammad Hussain (1901) 29 IA 52 (PC) ref.

S.M. Qasim & Company PLD 196 (W.P.) Lah. 95 and Bashir Akhter v. Muhammad Bashir 1981 CLC 423 fol.

PLD 1964 Lah. 365 and Muhammad Ebrahim Khan v. Behram 1972 SCMR 60 rel.

(b) Practice and procedure‑‑‑--

‑‑‑‑Party leaving Court to deviate from normal procedure would normally be estopped from challenging order passed be Court on consent of such party.

Abdul Wahab and others v. Habit Ali and others PLD 1969 Lah. 365; Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279 and WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Company PLD 1990 SC 359 ref.

PLD 1964 Lah. 365 fol.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.21 & 30‑‑‑Award, setting aside of‑‑­Reference to arbitration in suit with consent of counsel of parties‑‑‑Plaintiff's objection that his counsel had not consented to such reference, was overruled by Trial Court and Appellate Court‑‑‑Held, plaintiff could not raise such objection by way of objections to award and challenge award on such premise.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.3, 20, 21, 28 & First Sched.‑‑­Reference to arbitration with or without intervention of Court or in pending suit‑‑­Time for making award by Arbitrator not fixed/specified in reference‑‑‑Statutory period of four months as fixed in para. 3 of First Sched. of Arbitration Act, 1940‑‑­Applicability‑‑‑Implied terms and conditions as set out in the Schedule would apply with full force to all such references by virtue of S.3 of the Act, unless different intention was expressed in arbitration agreement.

Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar and another (1890‑1891) 18 IA 55 (PC); Robindra Deb Manna v. Jogendra Deb Manna AIR 1923 Cal. 410; Ramakrishnamma v. Lashmibayyamma AIR 1958 Andh. Pra. 497; Sowaran Singh v. Municipal Committee, Patlrankot and another AIR 1963 Punj. 427; Messrs Universal Corporation v. Messrs S.A. Rauf & Co. PLD 1953 Sind 18 and WAPDA v. Naeem Trading Co. 1982 CLC 353 ref.

Nusserwanjee Pestonjee and others v. Meer Mynoodeen Khan Wullud Meersubroodeen Khan Bahadoor (1854‑1857) 6 IA 134 (PC) distinguished.

(e) Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑Ss.28(2), 30 & First Sched. para. 3‑‑­Award made after expiry of statutory period without seeking extension of time from Court‑‑‑Validity‑‑‑Party participating in proceedings before Arbitrator without objecting as to time frame could not agitate such issue subsequently‑‑‑Extension of time would be presumed from such conduct of parties.

WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Company PLD 1990 SC 359 and Engro Chemicals of Pakistan Ltd. v. Trading Corporation of Pakistan 1996 CLC 344 rel.

(f) Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑Ss.21 & 30‑‑‑Award, setting aside of‑‑­Non joinder of necessary party in proceedings‑‑‑Such contention raised in suit was repelled by Court as same could not be raised by way of an objection to award.

Manu alias Mehthar and others v The State PLD 1964 (W.P.) Kar. 34 ref.

(g) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.11 & 30‑‑ Award, setting aside of‑‑­Bias on part of Arbitrator‑‑‑Plaintiff's contention was that unsuccessful attempt on his part seeking removal of Arbitrator through Court had prejudiced his mind‑‑­Validity‑‑‑Arbitrator being a former Judge of Supreme Court could not be said to have been influenced by exercise of legitimate right by plaintiff to seek his removal.

(h) Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑S.30‑‑‑Award, setting aside of‑‑‑Scope‑‑­Award could not be set at naught, unless perversity on the face of record was shown.

J.F.C. Gollaher v. Samad Khan 1993 MLD 726 and Messrs Joint Venture KG/Rist through D.P. Giesler G.M. Bongard Strasse 3, 4000, Dusseldorf‑30, Federal Republic of Germany c/o Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan through Secretary Food, Agricultural and Coop. and another PLD 1996 SC 108 ref.

(i) Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑S.30‑‑‑Award, setting aside of‑‑‑Opinion expressed by Arbitrator‑‑‑Validity‑‑‑Where two opinions in respect of same situation were possible, then Court would not sit as Court of Appeal to substitute its own opinion, unless opinion expressed by Arbitrator was shown to be perverse and in utter disregard of settled principles of law.

J.F. C. Gollaher v. Samad Khan 1993 MLD 726; Messrs Joint Venture KG/Rist through D.P. Giesler G. M. Beongard Strasse 3, 4000, Dusseldorf‑30, Federal Republic of Germany c/o Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan through Secretary Food, Agricultural and Coop and another PLD 1996 SC 108 ref.

Muhammad Sharif for Plaintiff.

Khalil‑ur‑Rehman for Defendants

Dates of hearing: 10th, 16th, 23rd, April, 2002, 8th, 17th and 24th, May, 2002 6th and 7th August, 2002 and 12th May, 2003.

2003 Y L R 3301

[Karachi]

Before Muhammad Moosa K. Laghari, J

Haji NASRULLAH AFGHANI‑‑‑Plaintiff

Versus

FAZAL WADOOD and 3 others‑‑‑Defendants

Suit No. 1085 of 2000, decided on 10th September, 2003.

(a) Malicious prosecution‑‑‑

‑‑‑‑ Proof to be provided by the plaintiff detailed.

In an action for malicious prosecution plaintiff must prove;

(i) That he was prosecuted by the defendant;

(ii) that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating;

(iii) that the prosecution was instituted against him without any reasonable or probable cause;

(iv) that the prosecution was instituted with a malicious intention that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact;

(v) that he has suffered damage to his reputation or to the safety of person, or to the security of his property.

(b) Malicious prosecution‑‑‑

‑‑‑‑Proof‑‑‑Plaintiff, in order to prove his case, must adduce oral as well as documentary evidence‑‑‑Evidence means and includes such statements of witnesses which were produced in a Court in relation to a case tried by such Court and also documents which were produced in the Court‑‑‑Ex parte decree passed merely on the ground that defendants were absent, without any evidence having been recorded, had no value in law‑‑­Plaintiff, in the present case, had not produced a single document either original or photostat copy to prove the averments made in the plaint‑‑‑Effect‑‑‑Plaintiff could only succeed on the strength of his own case and not upon the weakness of the opponent's case‑‑‑Plaintiff having failed to prove his case the suit for malicious prosecution was dismissed.

1970 SCMR 130; PLD 1994 SC 50 and PLD 1958 PC 161 ref.

Afaq Ali for Plaintiff.

Nemo for Defendants.

Date of hearing: 10th September 2003.

2003 Y L R 3304

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD SALEEM‑‑‑Plaintiff

Versus

WAQF MUHAMMAD MEHER ELAHI through Mutawalli‑‑‑Defendant

Suit No.1016 of 2001, decided on 4th August, 2003.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O. VII, R. 11‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 115‑‑‑Suit for declaration and possession of property‑‑‑Application for rejection of plaint‑‑‑Landlord and tenant‑‑­Estoppel, principle of‑‑‑Applicability‑‑‑Plaint showed that the plaintiff had himself admitted in very clear words that the defendant had rented out the subject premises to him and handed over the possession of the property to him in pursuance of the tenancy agreement and that a monthly rent was agreed and the plaintiff started paying the rent accordingly‑‑­In presence of such clear admission in the plaint, no other material or document was needed to be considered by the Court and the estoppel contained in Art. 115 of Qanun‑e-­Shahadat, 1984 became applicable and plaintiff was estopped from challenging the title of defendant so long the tenancy agreement was in existence‑‑‑If, however, the plaintiff intended to challenge the title of the defendant, he could do so after surrendering the subject premises to the defendant which shall have the effect of determining the tenancy agreement between the parties‑‑­Plaintiff, in circumstances, could not be permitted to continue with the possession of the subject premises in pursuance of tenancy agreement and at the same time to challenge the title of the defendant, for such a situation would be in violence to the concept of estoppel contained in Art.115, Qanun‑e­-Shahadat, 1984‑‑‑Application under O. VII, R.11, C.P.C. for rejection of plaint by the defendant was allowed and the plaint was rejected.

Muhammad Rafique Malik v. Mst. Surriyya Khanum 1995 CLC 1933 fol.

Latif A. Shakoor for Plaintiff.

Shahenshah Hussain for Defendant No. 1.

Date of hearing: 4th August, 2003.

2003 Y L R 3309

[Karachi]

Before Muhammad Moosa K. Laghari, J

Messrs GETCO TRADING LTD. through Local Agent‑‑‑Plaintiff

Versus

GOVERNMENT OF PAKISTAN through Director‑General and 2 others‑‑‑Defendants

Suit No.209 of 1998, decided on 10th September, 2003.

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

‑‑‑S.9‑‑‑Suit is liable to be dismissed if the same is found to be incompetently instituted.

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

‑----O. VI, R.14‑‑‑Pleadings, verification of‑‑­Pleadings can only be verified by duly authorised person.

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

‑‑‑‑O. VII, R.14‑‑‑Pleadings, verification of‑‑‑Authority to bring a suit was a question of principle‑‑‑Plaintiff had to state in the plaint that the signatory was duly' authorised to do so‑‑‑Documents filed alongwith the plaint in the present case did not show that the signatory of the plaint was a duly constituted attorney of the plaintiff and the said signatory had also failed to make mention in the plaint of his authorization, if any‑‑‑Witness of the plaintiff had not stated anything about the institution of the suit and the authority of the said signatory to verify the pleadings‑‑­Plaint, in circumstances, was devoid of pleading as it failed to indicate that the signatory was a duly authorised attorney.

Bisheshar Nath v. Emperor (1918) 40 All. 147; Secretary of State v. Dinshano Navrrji and another AIR 1925 Sind 275; AIR 1925 Lah. 338; Messrs Gulf Air v. Messrs Shakil Air Express (Pvt.) Ltd. PLD 2003 Kar. 156 and PLD 1947 PC 180 fol.

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

‑‑‑‑O. VI, R.14‑‑‑Pleadings, verification of‑­Signature on the plaint‑‑‑Purpose‑‑‑Object of the signature on the plaint was to prevent, as far as possible, dispute as to whether the suit was instituted with the plaintiff's knowledge and authority and that such authority may be established by other means besides the signature.

Basdeo v. John Smidt (1899) 22 All 55 = 1899 AWN 172 fol.

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

‑‑‑‑O. VI, Rr. 2 & 14‑‑‑Pleadings to state material facts‑‑‑Every pleading was to contain a statement in a concise form of the material facts on which the party pleading relied for its claim‑‑‑Fact that the person why signed the plaint of the plaintiff was duly authorized to do so, was a material fact and such facts ought to have been pleaded in the plaint‑‑‑All the facts, which though not necessary to establish the cause of action or defence, but which the party pleading was required to prove at the trial, were also material facts‑‑‑Rule that material facts should be pleaded was not a mere technicality ‑but omission to observe the same deprived pleadings of most of their value and might increase difficulty of the Court in its task of ascertaining the rights of the parties.

PLD 1947 PC 180 fol, (f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VII, R.14‑Pleadings, verification of‑‑­Mere mention of name of a person as local agent of the plaintiff in the title of plaint would not be enough to show that the suit was competently instituted as the title of the suit could never be treated as part of the plaint, as the same was not covered by the verification appended at the foot of the plaint.

AIR 1974 All. 413 and Ch. Sultan Ahmad through Legal Heir and others v. Salima Begum and others PLD 1994 Lah. 111 ref.

Neel Keshav for Plaintiff.

Syed Tariq Ali, Standing Counsel for Defendants Nos. 1 and 2.

Masood Shaharyar for Defendant No.3.

Date of hearing: 11th August, 2003.

2003 Y L R 3314

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

SWISS BANK CORPORATION through Attorney‑‑‑Appellant

Versus

Messrs TEMUKA NAVIGATION COMPANY (PVT.) LTD. through Local Agents and 5 others‑‑‑Respondents

High Court Appeal No.24 of 1999, decided on 26th August, 2003.

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

‑‑‑‑O.VII, R.11‑‑‑Application for rejection of plaint‑‑‑Appreciation of facts‑ ‑‑Principles‑‑­No fact or law was to be considered in isolation and out of context‑‑‑Totality of the facts and the context in which a particular fact had taken place or was alleged to have occurred: was necessarily to be considered for the purpose of deducing the correct conclusion‑‑‑Facts alleged, in the present case, were that the bill of lading was endorsed in favour of "D" subject to fulfillment of conditions enumerated in the letter written by the Bank (annexed with the plaint) and "D" had agreed to accept the same‑‑‑Conditions so accepted, however, were not fulfilled by "D" and consequently the Bank (plaintiff continued to hold right and title in the bill of lading as the last endorsee‑‑‑Genuineness or otherwise of said documents was a matter of evidence and no conclusive findings could be given in respect of the question of fact, while considering rejection of plaint under O. VII, R.11, C. P. C.

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

‑‑‑‑O.VII, R.2‑‑‑Limitation Act (IX of 1908) Art. 36‑‑‑Money suit‑‑‑Suit for compensation on account of malfeasance and misfeasance was governed by Art. 36, Limitation Act 1908‑‑‑Principles.

(c) Limitation Act (IX of 1908)‑‑‑--

‑‑‑‑Art. 31‑‑Applicability of Art. 31 Limitation Act, 1908‑‑-Scope.

Aamer Aziz Saiyid for Appellant.

Muhammad Naim for Respondent No. 1.

Mazhar Imtiaz Lari for Respondent No.6.

Date of hearing: 6th August, 2003.

2003 Y L R 3321

[Karachi]

Before Mushir Alam, J

AL‑ABDULLAH CONSTRUCTORS (PVT.) LTD., KARACHI‑‑‑Plaintiff

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chief Engineer (Water) South, WAPDA Offices, Hyderabad ‑‑‑Defendant

Suit No. 119 of 2001, decided on 6th March, 2003.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.16‑‑‑Issue or controversy to be determined by arbitrator‑‑‑Scope‑‑‑Arbitrator could only enter into reference and decide controversy, which was raised and urged before him arising out of arbitration agreement.

(b) Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑S.16‑‑‑Pare seeking remission of award to arbitrator‑‑‑Essential conditions to be satisfied.

Any party seeking remission of award must satisfy the Court that‑‑

(a) arbitrator has not decided a dispute referred for settlement; or

(b) decided a dispute not referred to arbitration in a manner that such dispute is not separable without effecting determination of dispute that was referred; or

(c) it is indefinite to an extent that it is rendered incapable of execution; or

(d) where illegality is floating on the face of award.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.2(a)‑‑‑Commercial contract—Arbitration clause‑‑‑Scope‑‑‑Commercial contracts are in fact serial contracts, wherein there is always a possibility of multiple differences and disputes at different points of time, which can be subject‑matter of more than one reference before arbitrator, of course, at the option of party, who may intend to invoke arbitration clause.

Abdul Sattar Mandokhal v. Port Qasim Authority 2001 YLR 758 rel.

(d) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑S.7 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]‑‑­Sindh Civil Courts (Amendment) Ordinance (XXX of 2002), S.4‑‑‑Pecuniary jurisdiction of High Court in civil suits/proceedings‑‑­Extent‑‑‑High Court is Court of unlimited. pecuniary jurisdiction‑‑‑Sindh Civil Courts (Amendment) Ordinance, 2002 has not taken away jurisdiction of High Court, but has only enhanced pecuniary jurisdiction of District Judge.

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

‑‑‑‑S.7 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]‑‑­Civil Procedure Code (V of 1908), S.15‑‑‑ Pecuniary jurisdiction of Sindh High Court‑‑­Requirement set out in S.15, C.P.C.‑‑­Effect‑‑‑Such procedural requirement would not rob High Court of its unfettered and unlimited pecuniary jurisdiction to hear and decide matter less than its own pecuniary jurisdiction.

Saif‑ur‑Rehman and 2 others—v. Fateh Muhammad PLD 2002 Kar. 511 rel.

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

‑‑‑S.15 & O. VII, R.1(i)‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.9‑‑­Pecuniary jurisdiction of Civil Court‑‑­Ordinarily determined by valuation put upon subject‑matter of suit in plant.

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

‑‑‑S.15‑‑‑Pecuniary jurisdiction of Court of lower grade‑‑‑Scope‑‑‑Such Court could not be coated with same jurisdiction to decide matter, which was beyond its pecuniary jurisdiction.

(h) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 3 (c), 14 (2) & 31‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.7 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]‑‑‑Civil Procedure Code (V of 1908), S.15‑‑‑Filing of award‑‑­Conflict of pecuniary jurisdiction of Courts‑‑­Remedy‑‑‑Where award was on legal/ preliminary issue or of a declaratory nature nr an interim award, then overall financial implication that might ultimately be involved, would be determining factor for purpose of jurisdiction and in such situation to avoid conflict of pecuniary jurisdiction, award would be filed in a. Court, which might otherwise be possessed of jurisdiction to decide major or higher claim/dispute that was likely to arise or raised under any particular contract between parties.

Muhammad Masood Khan for Plaintiff.

Samiuddin Sami for Defendant.

2003 Y L R 3334

[Karachi]

Before Anwar Zaheer Jamali and Gulzar Ahmed, JJ

COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOM HOUSE, KARACHI‑‑‑Appellant

Versus

Messrs AL‑MUQEET INTERNATIONAL (PVT.) LTD. and another‑‑‑Respondents

Special Custom Appeal No.81 of 2000. decided on 4th April, 2003.

Customs Act (IV of 1969)‑‑‑-

‑‑‑‑S. 196‑‑‑Order passed by Customs, Excise and Sales Tax Appellate Tribunal had been challenged on the ground that said order was sketchy and non‑speaking order inasmuch as various grounds urged by the appellant were neither noted nor answered by the Tribunal‑‑­Order passed by Appellate Tribunal did not meet the requirements of a judicial order which must contain contentions raised before Tribunal and its reasoning for recording some conclusion‑‑‑Sketchy and non‑speaking order of Appellate Tribunal, was set aside and matter was remanded to Tribunal to decide afresh in accordance with law within stipulated period.

Raja M. Iqbal for Appellant.

Date of hearing: 4th April, 2003.

2003 Y L R 51

[Lahore]

Before Mrs. Fakhar un Nisa Khokhar, J

NIAMAT ALI and 3 others‑‑‑Petitioners

Versus

Mst. SARDARAN BIBI and 4 others‑‑‑Respondents

Civil Revision No. 1321 of 1998, heard on 18th September, 2002.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), Ss.l2(2), 11, O. VII, R.11 & O.XXXIX, R.1‑‑‑Rejection of plaint ‑‑‑Reagitation of same matter ‑‑‑Res judicata, principle of‑‑­ Applicability‑‑‑Suit for declaration challenging validity of decree, dated 24‑4‑1971, in respect of which application under S.12(2), C.P.C. earlier filed by plaintiff was dismissed after recording evidence of parties‑‑‑Prayer for grant of temporary injunction was referred by Trial Court‑‑‑Appellate Court dismissed appeal filed against refusal of temporary injunction and rejected plaint under O.VII, R.11, C. P. C. ‑‑‑Validity‑‑‑Plaintiff could not reagitate same matter in same Court between same parties about same subject‑matter on the pretext that at the time of passing such decree dated 24‑4‑1971 provisions of S.12(2); C. P. C. were not available‑‑‑Suit was barred by O. VII, R. 11, C. P. C. ‑‑‑Order of Appellate Court was unexceptionable‑‑‑High Court dismissed revision petition in circumstances.

Ghulam Zohra and others v. Faisal Farooq and others 2000 YLR 1971 and Jewan and others v. Federation of Pakistan 1994 SCMR 826 ref.

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

‑‑‑‑O. XLI, R.33 & O. VII, R.II‑‑‑Rejection of plaint‑‑‑Power of Appellate Court‑‑‑Appellate Court while deciding appeal exercises all the powers of Trial Court and can reject plaint under O. VII, R.11, C. P. C.

Sardar Muhammad Ramzan for Petitioners.

S. Abid Mumtaz Tirmizi for Respondents.

Date of hearing: 18th September, 2002.

2003 Y L R 52

[Lahore]

Before Mrs. Fakhar un Nisa Khokhar, J

MUHAMMAD NAEEM‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB‑‑‑Respondent

Civil Revision No. 1450 of 1995, decided on 18th November, 2002.

Colonization of Government Lands (Punjab) Act (IV of 1912)‑--

‑‑‑‑S. 36‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54‑‑‑Grant of proprietary rights‑‑­Jurisdiction of Civil Courts, bar against‑‑­Concurrent findings of fact by the Courts below‑‑‑Order of grant of proprietary rights issued in favour of the plaintiff were recalled and the Revenue Authorities declined to grant the proprietary rights‑‑‑Plaintiff preferred declaratory suit against the orders passed by the Revenue Authorities which was dismissed by the Trial Court and appeal was also dismissed by the Appellate Court ‑‑‑Validity‑‑­Jurisdiction of Civil Courts was specifically barred under S.36 of Colonization of Government Lands (Punjab) Act, 1912‑‑­Order passed against the plaintiff by the District Collector had merged into the order of Additional Commissioner and the plaintiff was very much within his right to agitate the matter before the Revenue Authorities for the reason that the Board of Revenue from time to time issued Notifications and letters which carried the force of law and plaintiff was still possessed with the remedy to agitate the same before the Revenue forum subject to the right of adverse party‑‑‑High Court declined to interfere with the concurrent findings of fact by the Courts below‑‑‑Revision was dismissed in circumstances.

Ch. Muhammad Yaqoob Sindhu for Petitioner.

Miss Aliya Neelam for Respondent.

Date of hearing: 12th November, 2002.

2003 Y L R 55

[Lahore]

Before Mian Saqib Nisar, J

BASHIR AHMED and another‑‑‑Petitioners

Versus

HUSSAIN INDUSTRIES (PVT.) LTD. ‑‑‑Respondent

Civil Revision No.650 of 2001, decided on 21st October, 2002.

(a) Specific Relief Act (1 of 1877)‑‑‑-

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.2(2)‑‑‑Decree for specific performance of contract, either allowing or dismissing suit‑‑­Nature‑‑‑Such decree completely disposes of .suit by determining the rights of parties with regard to all matters in controversy in suit, and nothing is left outstanding for further adjudication by Court and the lis between parties terminates at trial stage‑‑‑Same would be the position in case, where decree allowing the suit is passed.

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

‑‑‑‑S. 2(2)‑‑‑Words "matters in controversy in the suit' as used in S.2(2), C.P.C.‑‑­Connotation‑‑‑Such words are synonymous and interchangeable with expression "matters in issue "‑‑‑Issues of law and fact involved in a suit, upon which verdict of Court was sought and predicated, were matters in controversy‑‑‑Decree would be final, when a final adjudication thereupon was made by Court completely disposing of the suit.

(c) Words and phrases‑‑‑

--------Matter in issue "‑‑‑Meaning.

Black's Law Dictionary, 6th Edn. ref, (d) Specific Relief Act (I of 1877)‑‑‑-

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908). S.2(2)‑‑‑Decree for specific performance of agreement to sell‑‑Nature‑‑‑Deposit of sale price and supply of requisite stamp papers by decree‑holder for execution of conveyance deed by judgment‑debtor or Court would not make such decree preliminary in nature‑‑‑All such steps being the follow‑up in pursuance of decree would fall within domain and realm of execution process‑‑‑None of such steps would remain a matter of controversy between parties in suit, but would be questions for execution, satisfaction and discharge of decree‑‑‑If such decree was treated preliminary in nature, then every decree executable under law, such as decree for possession simpliciter, would be a preliminary decree and such approach would be directly in conflict with the definition of decree.

(e) Specific Relief Act (I of 1877)‑‑‑-

‑‑‑‑Ss. 12 & 35‑‑‑Decree for specific performance of agreement to sell‑‑‑Payment of sale price under decree, whether time therefor specified in decree or not ‑‑‑Non­ fulfilment of such condition‑‑‑Rescission of such agreement, how and when would take place‑‑‑Principles.

Provisions of section 35 of Specific Act, 1877 would only be applicable, if no time in decree had been fixed and decree­ holder within reasonable time failed to make payment, the judgment‑debtor, had a right under section 35 to seek rescission of contract on the equitable principle that vendee being not ready and willing to perform his part of agreement, without awaiting for lapse of period provided for execution he could rescind. But where it has been commanded in the decree itself that suit shall automatically stand dismissed, if payment was not made within stipulated period, then agreement to sell per se would stand rescinded by Court without requiring judgment‑debtor to seek rescission independently.

Shah Wali v. Ghulam Din PLD 1966 SC 983; Sultan Ali v. Khushi Muhammad PLD 1983 SC 339; Ilam Din v. Abdul Hamid 1980 CLC 807; Inayat Hussain v. Fazal Dad PLD 1981 Azad J&K 36; Amir Ali v. Gul Muhammad PLD 1968 Pesh. 106; Iftikhar Ahmed, v. Nilofer PLD 2002 Lah. 176; Jaya Div v. Latlta Parshad AIR 1936 All. 477; Beni Parshad v. Om Parkash AIR 1938 All. 497; Bengal Central Bank v. Bezone AIR 1951 Cal. 299; Narayanan v. Govindan AIR 1952 Tra.‑Co. 440; Sita Raman v. Patia AIR 1958 Mad. 453;Muhammad Ismail v. Muhammad Akbar Bhatti PLD 1997 Lah. 177; Asim Hussain Qadri v. Muhammad Umar 1999 MLD 1466; Nasir Ahmed v. Muhammad Yousaf PLD 1994 Lah. 280; Muhammad Riaz Qamar v. Umar Din and 3 others 1995 CLC 474 and Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177 ref.

Muhammad Ismail v. Muhammad Akbar Bhatti PLD 1997 Lah. 177 fol.

(f) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.148‑‑‑Decree for specific performance of agreement to sell‑‑‑Non payment of sale price within stipulated time‑‑‑Extension of time by Court without issuing notice to judgment­ debtor calling upon him or enabling hint to file reply to application for extension of time‑‑‑Validity‑‑‑Such order being violative of principles of natural justice would be void and liable to be set aside.

Mian Dilawar Mahmood for Petitioner.

Ghulam Murtaza Bhatti for Respondent.

Date of hearing: 9th October, 2002.

2003 Y L R 61

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SADIQ and another‑‑‑Petitioners

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT, GOVERNMENT OF THE PUNJAB, LAHORE and 6 others‑‑‑Respondents

Writ Petitions Nos.2292, 2822, 2337, 2447 and 2543 of 2002, heard on 24th September, 2002.

Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑-----S. 140(4) (c)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Holding of Cattle Markets‑‑‑Dispute between two Tehsil Councils of the same District‑‑­Such dispute being between two Local Governments of the same District could be resolved by Mushavirat Committee under S.140(4) (c) of the Punjab Local Government Ordinance, 2001 whereunder petitioner had adequate remedy‑‑‑Constitutional petition would not be maintainable without resorting to such remedy‑‑‑Parties were also at variance as to place and time of holding of earlier cattle market‑‑‑Such factual controversy could not be resolved without recording of evidence‑‑‑High Court disposed of Constitutional petitions with direction to panes to seek their remedy before Mushavirat Committee.

Ch. Masood Ahmed Bajwa for Petitioner.

Maqbool Elahi Malik, A.‑G. for Respondent.

Ch. Muhammad Ashraf, A.A.‑G. for Respondent No. 1.

Tariq Shamim for Respondent No. 3.

Ijaz Ahmed Ansari for Respondents Nos. 3 and 4.

Muhammad Aslam Khan Dukhar for Respondent No. 5.

Mian Anwar‑ul‑Haq for Respondents Nos.6 and 7.

Date of hearing: 24th September, 2002.

2003 Y L R 63

[Lahore]

Before Maulvi Anwarul Haq, J

REHIM KHAN‑‑‑Petitioner

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, RAWALPINDI and another‑‑‑Respondents

Writ Petition No.2813 of 2002, heard on 30th October, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199, 4 & 25‑‑‑Constitutional petition‑‑‑Natural justice, principles of‑‑­Applicability‑‑‑Blacklisting of petitioner, a registered/listed contractor of respondent­ Department‑‑‑Such action had been taken against petitioner without affording him any opportunity to show cause‑‑‑Blacklisting had the effect of preventing a person from privilege and advantage of entering into lawful relationship with Government for purposes of gains‑‑‑Since a disability is created by the order of blacklisting, principles of fairplay required. that person should be given an opportunity to represent his case before he was put on the blacklist‑‑­High Court allowed Constitutional petition and declared blacklisting order to he without lawful authority and set aside same.

Joseph Vilangandan v. The Executive Engineer (P.W.D), Ernakulam and others AIR 1978 SC 930; Dawood Corporation (Private) Limited and another v. The Director‑General, Department of Supplies, Government of Pakistan, Ministry of Industries, Karachi and 2 others 1988 CLC 788; Tristar Shipping Lines Limited v. Government of Pakistan through Secretary, Ministry of Food, Agriculture and Livestock and 2 others 1997 CLC 1475; Government of Sindh and others v. Mst. Najma 2001 SCMR 8 and Muhammad Asim Kurd v. Assistant Commissioner‑cum‑Returning Officer and another 1996 CLC 1772 ref.

Shamshadullah Cheema for Petitioner.

Ms. Shaista Altaf for Respondents.

Dates of hearing: 29th and 30th October, 2002.

2003 Y L R 67

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

UMAR DIN and others‑‑‑Petitioners

Versus

MUHAMMAD ANWAR and others ‑‑‑Respondents

Civil Revision No. 186‑D of 1992/BWP, heard on 7th October, 2002.

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

‑‑‑‑S. 42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Suit for declaration‑‑­Sale effected through registered sale‑deed dated 21‑6‑1947 was‑ incorporated and sanc­tioned in Revenue Record on 14‑2‑1990‑‑­Such mutation was cancelled by Collector on 26‑11‑1990 in appeal filed by defendant, on which plaintiff filed suit on 8‑12‑1990‑‑‑Suit was dismissed by Trial Court as time‑barred which was upheld by Appellate Court‑‑­Validity‑‑‑Possession of plaintiff over suit land had been admitted by defendant‑‑‑Party in possession was never out of time‑‑‑Suit filed on 8‑12‑1990 after cancellation of mutation by Collector on 26‑11‑1990 was well within time‑‑‑Registered sale‑deed was still intact as defendant had not instituted legal proceedings for its cancellation‑‑Not open to defendant to bring up any collateral attack on validity of registered sale‑deed Question of limitation raised in the present case should not have been premature decided by Courts in haste ‑‑‑Impugned judgments were not sustainable in eyes law‑‑‑High Court accepted revision petition set aside impugned judgments and remanded case to Trial Court for its fresh decision r accordance with law after recording evidence of parties.

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

‑‑‑‑S. 42‑‑‑Mutation, attestation of‑‑­Limitation‑‑‑Registered sale‑deed‑‑‑No period of limitation prescribed for entry and attestation of mutation on basis of registered sale‑deed‑‑‑Duty of Registration Authorities after admission of sale‑deed for registration was to suo motu send a "Parcha Registry " to concerned Revenue Authorities for entry and attestation of mutation on its strength‑‑­Where vendee or transferee did not present registered deed for entry of mutation, then duty of Revenue Authorities was to enter an appropriate mutation in Revenue Record on the basis of such "Parcha Registry" directly sent by Registration Authorities.

(c) Limitation Act (IX of 1908)‑‑‑-

‑‑‑‑S.3‑‑‑Limitation‑‑‑Party in possession was never out of time.

(d) Limitation‑‑‑

‑‑‑‑Question of‑‑‑Mixed question of law and fact‑‑‑Trial or disposal of question of limitation could not be permitted to be undertaken without allowing opportunity of producing evidence pro and contra to contesting parties.

1992 SCMR 1828 and 1999 SCMR 2396 ref.

A.M. Farani for Petitioner.

Nadeem Iqbal Chaudhry for Respondents.

Date of hearing: 7th October, 2002.

2003 Y L R 70

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. SAIQA‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 2 others‑‑‑Respondents

Writ Petition No.2163 of 2002, heard on 23rd October, 2002.

(a) Islamic Law‑‑‑

‑‑‑‑Dower‑‑‑Marriage, consideration of‑‑­Dower a precondition and prerequisite of a valid matrimonial contract‑‑‑Relationship between husband and wife could not be legitimized and would be regarded as a sinful union in absence of dower.

(b) Islamic Law‑‑‑-

‑‑‑‑ Khula'‑‑‑Return of dower, gift or benefit to husband in consideration of obtaining Khula' divorce by wife‑‑‑Scope and principles stated.

Gift or benefit, which is to be restored to husband by wife in ,lieu of obtaining Khula is in essence a gratuitous offering, which may be bestowed by husband on wife. Such gift or benefit is not in order to fulfil any legal obligation, but is merely voluntary in nature.

Viewed in such perspective, dower, whether paid or unpaid can never be in the nature of a benefit or gift, which is liable to be restored in consideration of granting Khula' divorce.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973) Art.199-----Constitutional petition-----Dissolution of marriage on ground of Khula'‑‑‑Suit for recovery of dower and maintenance allowance by wife‑‑‑Family Court consolidated all the three suits anti decreed them, but decree for dissolution of marriage through Khula' was passed subject to return of received dower amount and foregoing unpaid dower amount and" maintenance decreed in favour of wife‑‑­Validity‑‑‑Dower whether paid or unpaid could never be in the nature of a benefit or gift liable to be restored in consideration of granting Khula' divorce‑‑‑Impugned order was not ‑sustainable to the extent of making grant of Khula subject to condition of repayment of paid amount of dower by wife to husband and to obligate her to forego unpaid dower amount‑‑‑Family Court had itself found wife entitled to maintenance‑‑‑Such maintenance was neither in nature of a gift or benefit, but was an undeniable legal obligation of husband to maintain his wife which he could not avoid without any just cause‑‑‑Such would be a contradiction in terms, if on one hand, Court found a wife legally entitled to claim maintenance and on other hand directed her to forego same in lieu of Khula'‑‑‑High Court accepted Constitutional petition and upheld the decree for dissolution of marriage through Khula' while striking down said conditions thereto.

Ziafat Hussain Cheema for Petitioner.

Respondent No.3 in person.

Date of hearing: 23rd October, 2002.

2003 Y L R 79

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SADIQ‑‑‑Petition, Versus

SHAHID PARVAIZ and 6 others‑‑‑Respondents

Civil Revision No.1674 of 1999, heard on 23rd October, 2002.

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

‑‑‑‑S. 8‑‑‑Right of pre‑emption ‑‑‑Such right could be exercised jointly or separately by any class or group of persons‑‑‑Where suits were separate and rival pre‑emptors had equal right of pre‑emption, then it would be necessary under principles of justice that both the suits be taken together and decided as such.

(b) Punjab Pre‑eruption Act (IX of 1991)‑‑‑-

‑‑‑‑S. 30‑‑‑Limitation Act (IX of 1908), S.3­Limitation, plea of‑‑‑Non‑raising such plea c initial stage‑‑‑Effect‑‑‑Question of limitation, was a mixed question of law and facts‑‑‑Face necessary for determination of such plea were neither pleaded nor proved‑‑‑Plea of limitation was neither raised before Court nor it had given any finding thereon. Plea in question dependent on fat determination had been raised be Appellate Court‑‑‑.Such plea could not be decided by Appellate or revisional Court as a pure question of law.

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

‑‑‑‑S. 13(3)‑‑‑Talb‑i‑Ishhad‑‑‑Minor discre­pancy in such notice‑‑‑Effect‑‑‑Where pre­emptor had proved Talb‑i‑Muwathibat as well as Talb‑i‑Ishhad, then minor discrepancy of a name appearing in notice of Talb‑i‑Ishhad about the fact that who approached vendee after Talb‑i‑Muwathibat was made by pre­emptor, would be insignificant and would have no serious bearing or reflection on pre­emptor.

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

‑‑‑‑Ss. 5, 8 & 9‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Two suits for pre‑emption in respect of sale‑‑‑Petitioner's suit was decreed on 3‑4‑1991 on the basis of conceding statement of vendee, whereas respondent filed suit on 2‑4‑1991 against vendee in respect of same sale, who in written statement disclosed the factum of decree in favour of petitioner‑‑‑Respondent then impleaded petitioner as defendant in his suit‑‑‑Trial Court found both petitioner and respondent equally entitled to pre‑empt suit‑land and decreed suit of respondent accordingly while declaring decree in favour of petitioner as collusive and ineffective against rights of respondent‑‑‑Contention of petitioner was that decree in his favour could be challenged only by filing application under S.12(2), C. P. C. but not in the present suit‑‑­Validity‑‑‑Suit of petitioner was pending, when respondent had filed suit on 2‑4‑1991‑‑­Joint hearing and decision of both such matters was, thus, necessary‑‑‑If petitioner was assumed to have knowledge about filing of suit by respondent, even then decree obtained by him would not affect right of respondents for having brought suit during limitation period‑‑‑Petitioner had collusively obtained decree, because respondent had issued notice of Talb‑i‑Ishhad to vendee, who on coming to know of his intention to pre­emption sale had hastily entered into a settlement with petitioner and conceded his suit‑‑‑Such collusive decree could not defeat rights of respondent, who was not supposed to challenge the same separately under S.12(2), C. P. C. ‑‑‑High Court dismissed revision petition in circumstances.

Muhammad Aslam Khan Buttar for Petitioner.

Makhdoom Ghulam Shabbir for Respondents Nos. 1 to 4.

Ch. Muhammad Hussain Chatha for Respondents Nos. 5 to 7.

Date of hearing: 23rd October, 2002.

2003 Y L R 82

[Lahore]

Before Mrs. Fakhar un Nisa Khokhar, J

Mst. NAZIRAN BIBI‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No.20294 of 2001, decided on 8th November, 2002.

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

‑‑‑‑Ss. 2(b), 5, 7 [as amended], 17 & Sched.‑‑‑Civil Procedure Code (V of 1908), 5.151‑‑‑Inherent powers of Family Court to consolidate different family suits in one suit‑‑­Scope‑‑‑Family Court is a Judicial Court in every sense‑‑‑Family Court is a Civil Court despite exclusion of C.P.C. in its application to proceedings before Family Court‑‑‑All Civil Courts under C.P.C., nave inherent powers under S.151, C. P. C. ‑‑‑Family Court being Civil Court also enjoys the provisions of 5.151, C. P. C. having inherent power to consolidate different disputes in different family suits arising out of the wedlock of spouses‑‑‑No specific exclusion is provided under law.

Mst. Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1448 and Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161 ref.

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

‑‑‑‑S. 151‑‑‑Inherent powers of Court‑‑ Consolidation of suits‑‑‑Purpose and scope‑‑­ Consolidation was desired in the interest of justice to avoid likelihood of contradictory and conflicting judgments and decrees‑‑­Where cases of like nature and disputed questions, subject‑matter in dispute and litigating parties were identical then consolidation would be necessary for the ends of justice.

Muhammad Zafar Chaudhry for Petitioner.

2003 Y L R 87

[Lahore]

Before Sayed Zahid Hussain, J

MANZOOR HUSSAIN ‑‑‑Petitioner

Versus

MEMBER, BOARD OF REVENUE (CONSOLIDATION), LAHORE and 5 others‑‑‑Respondents

Writ Petition No.270/R of 1986, heard on 29th October, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Delay, condonation of‑‑‑Discretion, exercise of‑‑‑Validity‑‑‑Question whether delay should be or should not be condoned, lies ‑within the discretion of Authority before whom a matter is agitated‑‑­Such discretion cannot be interfered with unless same has been exercised illegally or arbitrarily.

Irtiqa Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722 and Naseem Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others 1995 SCMR 1655 ref.

(b) West Pakistan Consolidation of Holding Ordinance (VI of 1960)‑‑--

‑‑‑‑S. 13‑‑‑Consolidation Scheme, change in‑‑‑Scope‑‑‑Various considerations had to be kept in view by Authorities under the West Pakistan Consolidation of Holding Ordinance, who were then to make adjustments and amendments in Wandas of parties‑‑‑Statutory Authorities up to the Board of Revenue could make amendment, and adjustments keeping in view the facts and circumstances of the case.

(c) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑--

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973). Art. 199‑‑‑Constitutional petition‑‑­Consolidation Scheme‑‑‑Changes and alterations made in Scheme by Collector had neither affected or reduced entitlement or the holding of petitioner, rather his scattered land had been brought together by restoring him previous area‑‑‑Additional Commissioner in appeal had redressed grievance of petitioner that respondent would compensate him for tubewell and construction raised by him‑‑‑Direction of Additional Commissioner to Collector for assessment of such compensation was quite right‑‑‑All aspects relevant to matter had been kept in view by the Board of Revenue in passing the order qua the entitlement and rights of the parties‑‑‑No valid justification was found to interfere with orders passed by Authorities in the matter‑‑‑High Court dismissed the Constitutional petition with direction that while assessing compensation for tubewell and construction raised by petitioner, the offer made by respondent that he would pay double compensation so assessed, would be kept in view.

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

‑‑‑‑O.X, R.1‑‑Non‑impleading of a party at preliminary stage of the case ‑‑‑Effect‑‑­Natural justice, principles of‑‑‑Such defect was curable, provided aggrieved person was heard by next higher Court.

(e) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (19773), Art. 199‑‑‑Consolidation Scheme ‑‑‑Inter­ference by High Court in Constitutional jurisdiction‑‑‑Scope‑‑‑High Court could not upset adjustments made by Consolidation Authorities and findings recorded by them in such matter.

Ghulam Qadir v.. Member, Board of Revenue, West Pakistan, Lahore and 4 others 1970 SCMR 292; Muhammad Hussain Munir' and others v. Sikandar and others PLD 1974 SC 139; Falak Sher and others v. Sharif and others 1989 SCMR 1096; Allah Rehman and others v. Amtul Qayyum and another 1989 SCMR 1817 and Muhammad Bashir and 9 others v. Sultan and 3 others 1993 SCMR 1568 ref.

Sh. Abdul Aziz for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondent No. 1.

Dr. Abdul Basit for Respondents Nos.2 to 5.

Date of hearing: 29th October, 2002.

2003 Y L R 90

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD DIN‑‑‑Petitioner

Versus

MUHAMMAD RASHEED alias ABDUR RASHEED‑‑‑Respondent

Civil Revision No. 1791 of 1997, heard on 13th November, 2002.

Oaths Act (X of 1873)‑‑‑-

‑‑‑‑Ss. 9 & 11‑‑‑Agreement between parties for decision of case on the basis of oath on Holy Qur'an to be taken by a third person‑‑­Taking or non‑taking of oath by such third person‑‑‑Essential consequences stated.

If such third person comes and take oath, the decision of case can be made on the basis of the same. As such, the oath shall be deemed to be the evidence conclusively against the person offering to be bound by it in terms of section 11 of Oaths Act, 1873. But if a person or whose oath the parties had soughs decision of case, refuses to take oath, then agreement between parties on the basis of which they sought the decision of case, stands frustrated and is no more enforceable.

Muhammad Ali v. Maj. Muhammad Aslam PLD 1990 SC 841; Akhtar Ali and others v. Ejaz Ahmed and others 2002 CLC 1829; Mukhtar Ahmed Khan v. Mushtaq Ahmed 1998 SCMR 2049, Muhammad Mansha and others v. Abdul Sattar and others 1995 SCMR 795 and Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241 ref.

Hasnat Ahmed‑Khan for Petitioner.

Rana Abdul Hameed Khan for Respondent.

Date of hearing: 13th November, 2002.

2003 Y L R 156

[Lahore]

Before Ali Nawaz Chowhan and Mian Muhammad Jahangier, JJ

ZAFAR IQBAL and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.632, Criminal Revision No. 386 and Murder Reference No.275 of 1998, heard on 23rd October, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Burden of proof ‑‑‑Principle‑‑­ Prosecution is duty bound to prove its case and if defence plea is raised and is not established, no benefit accrues to the prosecution, nor does it diminish the essential duty of the prosecution to establish its case.

Ashiq Hussain v. The State 1993 SCMR 417 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(6)‑‑‑Appreciation of evidence‑‑­Accused had accepted his participation in the occurrence, but had raised the plea of having killed the deceased under grave and sudden provocation which he did not take in his first defence before the Investigating Officer‑‑­Accused had furnished no proof of his formal engagement with the girl whom he found with the deceased in a compromising position‑‑‑Large number of injuries had been caused to the deceased by the accused and he was responsible for the brutal murder which might be on account of some other reasons like jealousy and hate etc. ‑‑‑Conviction and sentence of death of accused were confirmed in circumstances.

Ashiq Hussain v. The State 1993 SCMR 417 ref.

Aftab Farrukh for Appellants.

Asghar Khan Rokhari for the Complainant.

Abdul Qayyum Anjum for the State.

Dates of hearing: 22nd and 23rd October, 2002.

2003 Y L R 239

[Lahore]

Before Mian Nazir Akhtar, Actg. C J

TARIQ MAHMOOD‑‑‑Petitioner

Versus

MUHAMMAD JEHANGIR GORAYIA and 2 others‑‑‑Respondents

Writ Petition No. 13623 of 2002, decided on 31st July, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Petroleum Act (XXX of 1934), Ss.2/23‑‑‑Petroleum Rules, 1971, Rr.2(b), 26, 35, 36, 38, 43 & 44‑‑‑Quashing the F.I.R.‑‑‑Deputy District Coordination Officer, conducted raid at accused's premises, took certain quantity of diesel and mobil oil and lodged F.I.R. against the accused‑‑‑Deputy District Officer Co­ordination was not empowered to act as Competent Authority under Petroleum Act, 1934 or the Rules framed thereunder‑‑­Competent Authority in such a case was Director of Oil Operations Natural Resources as well as Deputy Commissioner‑‑‑Raid conducted by Deputy District Officer Co­ordination, recovery made by him and F.I.R. lodged against accused, were wholly without lawful authority and of no legal effect ‑‑‑FI.R. registered against accused was quashed in circumstances.

Liaqat Ali v. State 1993 MLD 2279 and Naeem Akhtar and others v. The State through S.H.O., P.S. City Sargodha 1993 MLD 577 ref.

M. Azmat Ali for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G.

2003 Y L R 240

[Lahore]

Before Mian Muhammad Jahangier, J

MANZOOR HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.432 and Criminal Revision No. 239 of 2000, heard on 9th October, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)‑‑­Appreciation of evidence‑‑‑Material discrepancy over time of occurrence as alleged by the accused could not be justified which had led to the belief that the defence version was an afterthought‑‑‑If the alleged incident as introduced in the defence version had taken place in daylight then any witness from the neighbourhood could have been produced to establish that a person hidden under the cot in the room of accused's house had grappled with the accused and had been seen fleeing from the spot and in the same way deceased woman should have been seen while running towards her parent's house‑‑‑No independent witness had been produced in support of the defence version.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of burden‑‑‑Defence version‑‑‑Solitary statement of accused‑‑‑If the defence version advanced by the accused is simply in the shape of a solitary statement, it may not be believed due to lack of corroborative piece of evidence, moreover, the solitary statement of an accused person cannot be given any importance as compared to the prosecution version which is based on different sets of sound evidence.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)‑‑­Appreciation of evidence ‑‑‑Motive‑‑­Prosecution had alleged that accused had killed his wife when parents of the deceased lady stopped maintaining his wife and children‑‑‑Accused might have sufficient resources and might never have been challaned in any case but all these circumstances would not be sufficient to believe that accused was a noble man‑‑‑In fact circumstances prevailing inside the family determined the character of the husband because he might be having sufficient wealth with him but there were persons in the society who forced the wives to bring money and other commodities from their parents‑‑‑Determination of the character of the accused, in circumstances, was not from his general reputation which he had been having outside his house but keeping in view the circumstances prevailing inside the family‑‑‑Defence had not rebutted the version of the complainant or the observations by the Invetigating Officer, Trial Court had rightly found that the motive stood proved and analysed the prosecution evidence and convicted and sentenced the accused‑‑‑Appeal of the accused was dismissed and sentence was maintained.

Malik Saeed Hassan for Appellant.

Gohar Razzaq Awan for the Complainant.

Qazi Zafar Iqbal for the State.

Date of hearing: 9th October, 2002.

2003 Y L R 245

[Lahore]

Before Asif Saeed Khan Khosa. J

SAKHAWAT ALI ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Writ Petition No. 18350 of 2002, heard on 9th October, 2002.

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

‑‑‑‑Ss.173 & 250‑‑Surrender of Illicit Arms Act (XXI of 1991), S.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Cancellation of case‑‑‑Sessions Judge had entertained a miscellaneous application submitted by the mother of the accused whereby order passed by the Area Magistrate refusing to cancel F.I.R. was set aside, said F.I.R. was ordered to be cancelled and an order was passed under S. 250, Cr. P. C. directing the petitioner to pay compensation of Rs.15, 000 to the accused person on account of falsely implicating him in the said criminal case‑‑‑Aggrieved with the order of the Sessions Judge, petitioner had filed criminal petition before the High Court‑‑‑Validity‑‑‑Sessions Judge had no jurisdiction to entertain a miscellaneous application submitted by the mother of the accused person whose case was pending trial before a Magistrate and then to pass impugned order on the said application as even a revision petition was not maintainable before the Sessions Judge against an order passed by a Magistrate refusing to discharge accused person or to cancel an F.LR. as such an order was only an administrative order and not a judicial order amenable to revisional jurisdiction‑‑‑Cancellation of F. I. R. was not permissible after taking of cognizance of the case and of the offence by a Trial Court‑‑‑Provisions of S.250, Cr.P.C. would come into play where an accused person had been formally acquitted by a Magistrate which was not the position in the p‑resent case as trial against accused was pending before the trial Magistrate when the Sessions Judge had passed the impugned order‑‑‑Cancellation of F.I.R. was totally different from acquittal of an accused person by the Trial Court‑‑‑Impugned order passed by the Sessions Judge was devoid of jurisdiction and without lawful authority‑‑­High Court, consequently, set aside the impugned order.

Ashiq Hussain v. Sessions Judge, Lodhran and others PLD 2001 Lah. 271. ref.

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

‑‑‑‑Art.175‑‑‑Jurisdiction of Court‑‑‑No Court has any jurisdiction save as is or may be conferred on it by the Constitution or the law.

Saif‑ul‑Malook for Petitioner.

Rana Muhammad Zahid, Addl. A.‑G. for the respondents.

Date of hearing: 9th October, 2002.

2003 Y L R 249

[Lahore]

Before Ch. Ijaz Ahmad, J

ARIF MANZOOR QURESHI‑‑‑Petitioner

Versus

RAEES AHMAD KHAN, DIRECTOR LEGAL, L.D.A. GENERAL ATTORNEY OF D.G./L.D.A., LAHORE and another‑‑‑Respondents

Criminal Miscellaneous No. 1613‑M of 2002 in Writ Petition No. 11307 of 2002, decided on 14th October, 2002.

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

‑‑‑‑S.476‑‑‑Penal Code (XLV of 1860), Ss. 197 & 198‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­ Cognizance of offence committed in, or in relation to a proceeding in any civil, revenue or criminal Court‑‑‑Petitioner had alleged that, they respondents had concealed the fact in the affidavit filed alongwith the petition that they had earlier filed an objection petition before the Executing Court which was dismissed‑‑‑Petitioner had prayed that proceedings be initiated under S.476, Cr. P. C. against the respondents for playing fraud with the High Court‑‑‑Perusal of S.476, Cr. P. C. showed that it was the discretion of the Court to take cognizance of the offence or not‑‑‑Respondents had mentioned all the material facts qua the controversy in the main Constitutional petition except the objections filed by the respondents before the Executing Court but the respondents had mentioned that they had filed application under S.12(2), C. P. C. for setting aside the judgment and decree passed by the Trial Court and had challenged the vires of the order of the Courts below‑‑‑Contention of the petitioner was repelled for the reasons that there was no reasonable probability for the conviction of the respondents and it was not expedient in the interest of justice to order the prosecution of the respondents‑‑‑Constitutional petition was dismissed accordingly.

Abdul Rahman v. Noor Muhammad and others PLD 1951 BJ 85 ref.

(b) Administration of justice‑‑‑-

‑‑‑‑Court has to be extra‑cautious to ensure that the prosecution is undertaken in the interest of justice and not to satisfy private grudge of a litigant.

State v. Mian Fazal Elahi PLD 1970 Lah. 383 ref.

Mushtaq Ahmad Qureshi for Petitioners.

Mian Muzaffar Hussain, Legal Adviser of L.D.A.

2003 Y L R 259

[Lahore]

Before Mian Saqib Nisar and Mian Hamid Farooq, JJ

MUHAMMAD MANSHA‑‑‑Appellant

Versus

Dr. MUNAWAR HUSSAIN and another‑‑‑Respondents

Regular First Appeal Case No 96 of 1994 heard on 8th May, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 8 & 42‑-‑Contract Act (IX of 1872) S.226‑‑‑Suit for declaration and for possession in respect of same plot‑‑‑Plaints.‑- claimed to be owner of plot allotted to defendant for having purchased same through his attorney‑‑‑Defendant filed suit seeking ‑ possession of plot‑‑‑Trial Court consolidated both the suits and dismissed the suit for declaration ‑‑‑ Validity ‑‑‑ Attorney appointed by defendant had authority to sell the plot‑‑‑Attorney before revocation of his power of attorney had sold the plot to plaintiff by making application Development Authority as per its policy for completion of transfer‑‑‑Plaintiff after obtaining sanction of site plan had raised construction over the plot and got utility connections in his name‑‑‑Plaintiff had become owner of plot the moment same was sold by attorney of defendant on the basis of power of attorney containing a clause empowering him to sell the plot and such sale had been completed before revocation of his authority‑‑‑High Court allowed the appeals, set aside impugned judgments and decrees, resultantly suit for declaration filed by plaintiff was decreed, whereas suit for possession filed by defendant was dismissed.

Muhammad Adeel Aqil Mirza for Appellant.

Sardar Nazar Muhammad Dogar for Respondent No. 1.

Fakhar‑uz‑Zaman Tarar for Respondent No. 3.

Date of hearing: 8th May, 2002.

2003 Y L R 275

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL RAZZAQ ‑‑‑ Petitioner

Versus

MUHAMMAD RIAZ and 5 others‑‑‑Respondents

Civil Revision No.606‑D of 2002, decided on 27th September, 2002.

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

‑‑‑‑O. XX, R. 18‑‑‑Private partition of joint property‑‑‑Proof‑‑‑Reliance on survey record of Excise and Taxation Department‑‑­Validity‑‑‑Copy of P.T.1, survey report of Excise and Taxation Department cannot be relied upon for the purpose of proving the fact that the property has been privately partitioned‑‑‑Survey Register maintained by the local Authorities is for the purpose of collecting the property tax.

(b) Partition‑‑‑

‑‑‑‑ Partition of joint property‑‑‑Parties were co‑owners of the suit property left by their predecessor‑in‑interest‑‑‑Defendant produced copy of P. T. 1 survey report to establish that private partition had already taker, place and the plaintiffs were estopped to file the suit‑‑­Validity‑‑‑From the facts pleaded and documents produced by the parties, it could not be said that family settlement if any had been acted upon and all the co‑sharers were occupying the land under the private partition and, therefore, could not be considered to be ostensible owners of the land and property according to their shares‑‑‑Both the Courts of competent jurisdiction below had concurrently recorded the fact that the property had not been privately partitioned and the same was still joint between the parties‑‑‑Judgments and decrees passed by both the Courts below for possession through partition had been awarded in accordance with the shares of the parties which did not call for any interference in exercise of revisional jurisdiction of High Court under S.115. C. P. C.

Muhammad Ibrahim v. Muhammad Sharif and 7 others 1980 CLC 296; Fazal Muhammad and others v. The Settlement and Rehabilitation Commissioner and others PLD 1967 Lah. 402; Abdul Wahab Khan v. Tilakdhari Lal and others AIR 1927 PC 208 and Sharaf Sultan v. Sher Muhammad PLD 1963 Lah. 606 ref.

Razzaq A. Mirza for Petitioner.

2003 Y L R 281

[Lahore]

Before Maulvi Anwarul Haq, J

AL‑JIHAD TRUST (Regd.) through Raees Al‑Mujahideen Habib‑ul‑Wahab ul Wahab‑el‑Khairi and another‑‑‑Petitioners

Versus

HOUSE BUILDING FINANCE CORPORATION through Managing Director Blue Area, Islamabad and 3 others‑‑Respondents

Writ Petitions Nos. 1058 of 1993, 1210 of 1999, 2469 of 1999, 1374 of 2000, 1375 of 2000, 2324 of 1999, 2283 of 2000 and 2284 of 2000, heard on 18th September, 2002.

House Building Finance Corporation Act (XVIII of 1952)‑‑‑-

‑‑‑‑S. 24(20) [as substituted by House Building Finance Corporation (Amendment) Ordinance (LXV of 2001)]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Recovery of loan‑‑‑Diminishing Partnership Scheme, as introduced by Council of Islamic Ideology ‑‑‑Applicability‑‑­Federal Shariat Court declared the provisions of S.20 of House Building Finance Corporation Act, 1952, as repugnant to the Injunctions of Islam‑‑‑Judgment passed by the Federal Shariat Court was upheld by Supreme Court and a cut off date was given by Supreme Court to implement the judgment­‑‑Grievance of the petitioners was that the benefit of Diminishing Partnership Scheme was not extended to them‑‑‑Authorities contended that the benefit would be available to the petitioners from the cut off date as fixed by the Supreme Court in its judgment‑‑­Validity‑‑‑Supreme Court in its judgment had disposed of the matter by observing that a date was fixed when the decision would take effect and in the meanwhile, the Supreme Court directed the Authorities to settle the past matters and provisions of interest were declared repugnant to the Injunctions of Islam‑‑‑Amendment in the House Building Finance Corporation Act, 1952, was made pursuant to the judgment passed by Supreme Court‑‑‑Diminishing Partnership Scheme was applicable to the cases of the petitioners‑‑­High Court directed the Authorities to work out the rental payable by the petitioners and the purchase instalments in the manner directed by the Supreme Court as enacted in S.24(20) (as substituted by House Building Finance Corporation (Amendment) Ordinance (LXV of 2001)) of House Building Finance Corporation Act, 1952‑‑‑High Court further directed the Authorities that recovery proceedings would be initiated against the defaulter after they failed to repay the loan as calculated under the Diminishing Partnership Scheme‑‑‑Constitutional petition was allowed accordingly.

PLD 1992 FSC 501 and House Building Finance Corporation v. Raja Muhammad Sharif and 4 others PLD 2000 SC 760 ref.

Habibul Wahab El‑Khairi for Petitioners.

Sardar Muhammad Ashfaq Abbasi for Respondents.

Date of hearing: 18th September, 2002.

2003 Y L R 284

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

SHAUKAT‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 111, 120 and Murder Reference No.137 of 1997, heard on 31st October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 302(c)/34‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in broad daylight in the thick of the locality and admittedly in the house of the accused‑‑­Accused had the motive to cause the death of the deceased‑‑‑Other accused sharing the intention of the principal accused had facilitated the murder by calling the deceased to his house where the occurrence took place and he also had twisted the arm of the deceased before he was inflicted blows with Chhuri‑‑‑Chhuri had been recovered at the instance of principal accused‑‑‑Prosecution witnesses had no enmity with the accused nor any intention to involve them falsely in the case‑‑‑Question of family honour, according to the prosecution itself, was involved in the commission of the offence‑‑‑Conviction of accused under S. 302 (b)134, P. P. C. was consequently set aside and instead they were convicted under S.302(c)134, P.P.C. and sentenced to imprisonment for life each in circumstances.

Dr. Z. Babar Awan for Appellant.

Ch. Riaz Ahmad for the State.

Arshad Mahmood for the Complainant.

Date of hearing: 31st October, 2002.

2003 Y L R 290

[Lahore]

Before Sayed Zahid Hussain, J

Ch. ABDUL MAJEED and 6 others‑‑‑Petitioners

Versus

ADDITIONAL DEPUTY COMMISSIONER (GENERAL), SHEIKHUPURA and another‑‑‑Respondents

Writ Petition No.65/R of 1999, heard on 14th October, 2002.

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

‑‑--‑S. 2‑‑‑Civil Procedure Code (V of 1908) O.XXVI, R.10(2) ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition Allotment of evacuee property‑‑‑Reducing the area of property allotted to petitioner ­Report of Local Commission‑‑‑Failure to give decision on objections raised to the report filed by Local Commission‑‑‑Dispute was with regard to reducing of area of property allotted in favour of the petitioner‑‑‑Notified Officer relied on the report of Local Commission‑‑‑Application form filed petitioner and orders passed by the Settlement Authorities showed that the petitioner had applied for the whole property and question‑‑‑Transfer Order issued to the petitioner showed that the property transferred to him was full and the Transfer Order was given effect to in the Revenue Record by sanctioning mutation in ,favour of the petitioner‑‑‑Transfer in favour of the petitioner was not challenged by any one at all and the allotment was not even disputed by the Department itself‑‑‑Quantum of the price determined and paid by the petitioner supported that the property in full' and as whole had been transferred to him‑‑­Petitioner contended that the Notified Officer had wrongly relied on the report of Local Commission as objections were filed against the report and without the decision of the objections, the Notified Officer had reduced the area of the property allotted to the petitioner‑‑‑Validity‑‑‑Findings of the Notified Officer were contrary to and not supported by any cogent material‑‑‑Notified Officer was wrongly impressed by the report of Local Commission which was neither warranted nor apt as the report was subject to objections by the petitioner but without awaiting the decision on the objections, the petition fled by the respondent was withdrawn‑‑‑Held, such report of Commission had no legal efficacy‑‑‑Finality was attached to the Transfer Order which had retrained unchallenged for long time, and same could not be eroded on the basis of assumptions‑‑­Resumption of area by Notified Officer was set aside by High Court in circumstances.

Haji Muhammad Sharif and others v. Ijazuddin Ahmad and others 1988 MLD 1457; Messrs Kausar & Co. v. Messrs Universal Insurance Co. (Pvt.) Ltd. 1991 MLD 1774; Nabi Bakshh v. Liaqat Ali 1988 CLC 1114 and Akbar Ali and others v. Province of Punjab and others 1990 CLC 718 ref.

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

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Allotment of evacuee property‑‑‑Past and closed transaction‑‑‑Increase in area of property allotted to petitioner‑‑‑Petitioner claimed that the area allotted to him was less and the remaining area had been encroached upon by the respondent‑‑‑Notified Officer declined to increase the area allotted to the petitioner‑‑­ High Court, in an earlier Constitutionalpetition, had observed that the property allotted to the petitioner measured 2 Kanals and 17 Marlas only and the judgment passed by High Court was maintained by Supreme Court‑‑‑Effect‑‑‑No addition or deletion could either be made nor was permissible as the Permanent Transfer Deed issued to the petitioner related to the property allotted to him in full'‑‑‑Properties allotted to the parties were independent and distinct thus transferee of each property could not lay claim beyond what had been allotted to him‑‑‑After issuance of Transfer documents and repeal of Settlement Laws the matter could not be reopened and the parties should have been content with what had been transferred to them ‑‑‑Notified Officer had rightly found the petitioner to confine himself to an area measuring 2 Kanals and 17 Marlas‑‑‑High Court declined to interfere with the order passed by the Notified Officer.

Haji Muhammad Sharif and others v. Ijazuddin Ahmad and others 1988 MLD 1457; Messrs Kausar & Co. v. Messrs Universal Insurance Co. (Pvt.) Ltd. 1991 MLD 1774; Nabi Bakhsh v. Liaqat Ali 1988 CLC 1114 and Akbar Ali and others v. Province of Punjab and others 1990 CLC 718 ref.

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

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Locus standi‑‑‑Past and closed transaction‑‑­Allotment, subject‑matter of the proceedings was made in the year 1968, and the Permanent Transfer Deed was duly issued Allotment was assailed on the ground of fraud‑‑‑Validity‑‑‑Petitioner had no locus standi to challenge transfer which had assumed finality with the issuance of Permanent Transfer Deed in the year 1968‑‑­High Court declined to re‑open the matter‑‑­Constitutional petition was dismissed in circumstances.

Ch. Khurshid Ahmad and Abdul Wahid Ch. for Petitioner.

Ch. Mushtaq Masood for Respondent No. 1.

Ch. Qadir Bakhsh for Respondent No.2.

Date of hearing: 14th October, 2002

2003 Y L R 300

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ANWAR alias LALU‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.22 of 2002, decided on 18th September, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.365‑A‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑­Statements of the complainant and the abductee were consistent as regards major details of the incident and recovery of the abductee‑‑‑Defence had not been able to point out any major or material contradiction inter se their statements as well as any improvement at the trial‑‑‑Defence plea that the accused had been falsely involved as the complainant had wanted to use him against his rival by manoeuvring a case against him but he refused, was without any substance‑‑­Evidence of the defence witnesses had rightly been rejected as it was in line with the said plea‑‑‑Evidence of the complainant and the abductee was independent and worth reliance‑‑‑Evidence of the Investigating Officer and recovery of the car used by the accused in the commission of crime had led to the belief that the accused had committed crime for ransom‑‑‑Non‑recovery of the ransom amount had been of no adverse effect to the prosecution case as the involvement of the accused in the abduction of the abductee for ransom stood established‑‑‑Trial Court had drawn right conclusions from the prosecution evidence‑‑‑Appeal of accused against his sentence as passed by the Trial Court was dismissed in circumstances‑‑­Sentence of the accused was maintained.

Abdul Aziz Khan Niazi for Appellant.

Syed Shamsuddin for the State.

Date of hearing: 16th September, 2002.

2003 Y L R 306

[Lahore]

Before Muhammad Farrukh Mahmud, J

ZAFAR IQBAL alias AZHAR -----Appellant

Versus

THE STATE ‑‑‑ Respondent

Criminal Appeal No. 298 of 2002 heard on 15th August, 2002

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

‑‑‑‑S. 7(c)‑‑ Appreciation of evidence‑‑‑No on, from the general public had been made a witness in the recovery proceedings, although public witnesses were available at the relevant time‑‑‑Private person whose name was mentioned in the recovery memo. as a witness was not a resident of the locality and had not supported the prosecution case he had instead appeared as a defence witness‑‑‑Recovered pistol had never been sealed and parcel was not made at the spot and same had never been sent to any arms expert to prove that the pistol was in working condition‑‑‑Recovered pistol had not been found loaded nor any bullets had be recovered‑‑‑Nothing was available on record to show that the pistol recovered had been in possession of the accused prior to the target date which had been fixed for deposit Surrender of Illicit Arms Act, 1991 were not attracted in circumstances‑‑‑Conviction and sentence passed against the accused were set aside by the High Court and accused was acquitted of the charge.

Mian Arshad Ali Mahar for Appellant.

Iftikhar Ibrahim Qureshi for the State.

Date of hearing: 15th August, 2002.

2003 Y L R 315

[Lahore]

Before Rustam Ali Malik, J

AHMAD KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No. 853 of 2002, heard on 18th October, 2002.

(a) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S.7‑‑‑Age, determination of‑‑‑Provisions of S.7 of Juvenile Justice System Ordinance, 2000 are not to be invoked on each and every case mechanically, rather it is only where a question with respect to the age of an accused person cannot be answered through any documentary evidence that an inquiry is called for under the said law.

Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633 rel.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑-

‑‑‑‑S.7‑‑Penal Code (AL V of 1860), S.302‑‑‑ Age, determination of‑‑‑Petitioner had not challenged validity of the document available on record before the Trial Court and had prayed through an application for getting the age of the accused determined through a Medical Board‑‑‑Order of the Juvenile Court, whereby application of the petitioner. had been dismissed, assailed‑‑‑Petitioner had not challenged the genuineness and validity of the School Leaving Certificate of the accused either before the Trial Court or before the High Court‑‑‑Order passed by the Sessions Court/Juvenile Court did not appear to be perverse, fanciful or against any provision of law‑‑‑High Court refused to interfere in the impugned order in exercise of revisional jurisdiction.

Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633 and Muhammad Ishaque v. Muhammad and another 2002 SCMR 440 rel.

Hassan Zafar v. The State 2001 PCr.LJ, 1939 and Ahmad Ali v. State 2001 MLD 1191 ref.

Shah Ahmed Khan Baloch for Petitioner.

Muhammad Ahsan Bhoon for Respondent.

Date of hearing: 18th October, 2002.

2003 Y L R 321

[Lahore]

Before Mian Muhammad Jahangir, J

MUHAMMAD NAEEM‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No. 793 of 2002, decided on 8th October, 2002.

(a) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S.7‑‑‑Age, determination of‑‑‑If a dispute arises as to whether the accused before the Court is covered by the definition of the "child" under the Juvenile Justice System Ordinance, 2000, the Court is bound to record the findings after inquiry which shall also include a medical report on the age of the child‑‑‑In order to resolve the controversy the Court must collect the medical evidence but it does not mean that Court shall have sole reliance on the medical evidence‑‑‑Court has to examine all the material available including the medical evidence‑‑‑Besides the medical evidence the other material may consist of birth entry, School Leaving Certificate and any other entry in the record which could convince that the entry being genuine is worth reliance.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

--‑S. 7‑‑ Age, determination of‑‑‑Opinion of Medical Board‑‑‑Opinion of the Medical Board is not helpful for exact determination of the age because based on it, whatsoever is the assessment made by the Court, it would not be a conclusive proof about the age whereas the Birth Certificate (undisputed) always provides the conclusive proof about the age, therefore, when there is no dispute about the genuineness of the Birth Certificate, the medical evidence cannot .be given preference over it.

(c) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S.7‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Age, determination of‑‑‑Trial Court had preferred to rely on birth entry and School Leaving Certificate than upon opinion of Medical Board‑‑‑Aggrieved with the order of the Trial Court, petitioner filed revision before the High Court‑‑‑Validity‑‑‑Order passed by the Trial Court was in accordance with law and facts on the record‑‑‑If the Trial Court had fulfilled the requirements of S.7 of the Juvenile Justice System Ordinance, 2000 by inviting the opinion of the Medical Board which was simply a part of the inquiry and even after inviting such‑like opinion the Court was fully competent to believe or not to believe the medical evidence and to believe or disbelieve any other document but the findings must be based upon the recognized principles of appreciation of evidence-­Impugned order passed by the Trial Court called for no interference as the same did not suffer from any illegality or irregularity.

Siraj Din v. Saghir Din alias Goga and another 1970 SCMR 30; Ahmad Ali v. The State 2001 MLD 1191; Hassan Zafar v. State 2001 PCr.LJ 1939; Messrs Arshad & Company v. Capital. Development Authority, Islamabad through Chairman 2000 SCMR 1557; Messrs Arshad & Co. v. Capital Development Authority, Islamabad through its Chairman 2004 SCMR 1557; Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633; Bashinoo v. Abdul Hakim 1975 PCr.LJ 732 and Muhammad Anwar and others v. The State 1976 PCr.LJ 1325 ref.

Pervaiz Inayat Malik for Petitioner.

Fawad Malik for the Complainant.

Mian Shahid Rasool for the State.

2003 Y L R 324

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHAFI‑‑‑Petitioner

Versus

ABDUL RAZZAK and 2 others‑‑‑Respondents

Criminal Miscellaneous No. 242/Q of 1999, decided on 30th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 516‑A & 520‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Order of the Additional Sessions Judge whereby he had accepted the revision petition of the respondent under S.520, Cr. P. C. suspending the order of the Magistrate under S.516‑A, Cr.P.C. granting Superdari of a Peter Engine to the petitioner assailed‑‑‑Validity‑‑‑Revision petition filed by the respondent before the Additional Sessions Judge was not competent under S.520, Cr. P. C. as revision under S.520, Cr. P. C. was competent only against the order passed by the Magistrate under Ss. 517, 518 & 519, Cr. P. C. ‑‑‑Impugned order passed by the Additional Sessions Judge being without lawful authority, same was set aside by the High Court.

Mst. Gulshan v. State 1971 PCr.LJ 1279; Malik Saifulah v. Ch. Rehmat Ali, S.‑I. 1993 MLD 542; Haji Ghulam Kadir v. State 1974 PCr.LJ 228 and Mst. Mumtaz Akhtar v. State 1977 PCr.LJ 168 ref.

Rana Muhammad Aware for Petitioner.

Imtiaz Ali Shahid for Respondent No. 1.

M.A. Zafar: Amicus curie.

2003 Y L R 325

[Lahore]

Before Tanvir Bashir Ansari, J

SHAMROZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 1179/B and 1080‑B of 2002, decided on 9th October, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/34/109‑‑‑Bail‑‑‑F.I.R. had been lodged without delay‑‑‑Occurrence had taken place in daylight‑‑‑Identification of accused was not open to any doubt‑‑‑Specific role of firing direct at the deceased was attributed to accused in the F.I.R. and to his co‑accused‑‑­Deceased had received fire‑arm injuries on his head, chest, abdomen and legs‑‑‑Police opinion regarding innocence of accused itself was dubious and was not sufficient for extending the concession of bail to accused‑‑­Opinion of the Investigating Officer primarily based on the affidavits of certain persons could not be safely relied upon‑‑‑Evidentiary value of such affidavits would only be determined at the trial‑‑‑Said affidavits, even otherwise, had been executed mechanically without much application of mind‑‑‑Grant of bail on the plea of minority alone was not an inflexible rule of law‑‑‑Bail was refused to accused in circumstances.

Siraj Din v. Saghir‑ud‑Din alias Goga and another 1970. SCMR 30; Muhammad Hayat and others v. The State 1988 SCMR 474; Mst. Safeena v. The State 1992 PCr.LJ 554; Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Abdur Rehman v. The State 1994 PCr.LJ 1020; Syed Ikhlaq Hussain Shah and another v. The State 1997 PCr.LJ 610; Muhammad Ramzan v. The State NLR 1997 Criminal 76; Mst. Zulekha Bibi v. Abdul Samad and another 1995 PCr.LJ 1730 and Bashir Ahmad v. The State NLR 1993 UC (Criminal) 454 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/34/109‑‑‑Bail‑‑‑Accused according to F.I.R. had only abetted the occurrence and in view of the enmity between the parties the abetment was a matter of further inquiry‑‑­Statements of two prosecution witnesses recorded by the police eleven days after the occurrence was not a conclusive evidence of abetment ‑‑‑Accused was admitted to bail in circumstances.

Syed Amanullah Shah v. State and another PLD 1996 SC 241 and Wajid Ali v. Mumtaz Ali Khan and another 2000 MLD 1172 ref.

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

‑‑‑‑S. 497(1), first proviso‑‑‑Bail minority‑‑­Grant of bail on the plea of minority alone is not an inflexible rule of law.

Malik Rab Nawaz Noon for Petitioner.

Saba Mohy‑ud‑Din for Complainant.

Zafar Abbas for the State.

2003 Y L R 334

[Lahore]

Before Mian Muhammad Najum uz Zaman and Bashir A. Mujahid, JJ

TARIQ ABDULLAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1217 and 1218 of 2001, decided on 31st October, 2002.

(a) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S. 10‑‑‑Appreciation of evidence‑‑‑Accused in his statement recorded under S.342, Cr. P. C. had admitted to have received an amount of Rs.63,16,150 credited into his account for which he had failed to discharge the onus that in what connection he had received the same‑‑‑Accused was the true beneficiary‑‑‑Conviction and sentence of accused were upheld in circumstances.

(b) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S. 10‑‑‑Appreciation of evidence‑‑‑Accused was allegedly the signatory of the Bills, but he had not taken any step to get his signatures compared with his admitted signatures to prove the plea that his signatures thereon were forged‑‑‑Bank had accepted the signatures of the accused as genuine and the said plea taken by him had no value‑‑‑Accused was responsible for embezzlement of the amount‑‑‑Conviction of accused was maintained in circumstances‑‑­However, as nothing was recovered from possession of accused and he had not obtained any financial gain, his sentence was substantially reduced.

S.M. Masud Appellant.

Ahmer Bilal Soofi, D.A.‑G. for the State.

Dates of hearing: 24th and 30th October, 2002.

2003 Y L R 339

[Lahore]

Before Sayed Zahid Hussain, J

AMJAD IKRAM‑‑‑Petitioner

Versus

LAHORE CANTT. COOPERATIVE HOUSING SOCIETY, LTD. (Now D.H.A.)

LAHORE CANTT. through Secretary and another‑‑‑Respondents

Criminal Original No.1351‑W of 2002 in Writ Petition No.2414 of 1995, decided on 29th November, 2002.

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

‑‑‑‑Art. 204‑‑‑Contempt of Court Act (LXIV of 1976), S.3/4‑‑‑Contempt of Court‑‑‑Chief Executive's Order could not have authorized anyone to flout or disobey the orders of the Court nor the same could be construed like that, nor such intention could be attributed‑‑­Orders of the High Court in question did not suffer from any obscurity nor there was any doubt about their efficacy and had thus to be obeyed‑‑‑Admittedly, the premises were being used as a school where several students were studying and getting education which had been interrupted and stopped with the abrupt action taken by the respondent by using its authority and mighty force‑‑‑Loss so occasioned to the youth of the nation was not measureable and calculable‑‑‑Only reason for such an action was that the school was within the residential locality and a cause of nuisance to the residents of the area‑‑‑As the school was functional since long, any further continuance of sealing and stoppage of the same could only aggravate the problem‑‑­High Court besides the provisions of Ss. 94 & 151, C. P. C. being vested with the inherent power could set the wrong right and not to allow the perpetuation of wrong doing ­Premises, thus, were directed to be released forthwith in order to allow the educational institution to function at least till the hearing of the writ petition‑‑‑Respondent, however, had chosen for himself to decide not to obey the order of the Court and taken a risk of facing the consequences thereof, although number of opportunities had been made available to him to mend the situation‑‑­Respondent, thus, had prima facie rendered himself liable for proceedings of committing contempt‑‑‑Notice was consequently directed to be issued to the respondent as to why he should not be held for committing contempt of the Court and be sentenced in accordance with law.

Chiragh Din and another v. Chairman, Thal Development Authority 1970 SCMR 29; Constitutional Law of Pakistan, Text Case‑law and Analytical Commentary, Vol. II, p.1212; Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfiqar Ali Bhutto and 2 others PLD 1975 SC 383; Syed Mansoor Ahsan and others v. Kardeshir Cowasjee and others PLD 1998 SC 823 and Muhammad Idrish and another v. The East Pakistan Timber Merchants Group and another 1968 SCMR 1404 ref.

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

‑‑‑‑Art. 204‑‑‑Contempt of Court Act (LXIV of 1976), Ss.3/4‑‑‑Contempt of Court ‑‑‑Purpose and philosophy of law of contempt‑‑‑One of the most important powers and functions of a Court of law is its power to pronounce and pass orders i.e., commanding a person to do something or restraining him from doing something‑‑‑If, however, someone disobeys, Court has the power to enforce its orders for which purpose it has at least in the words, of Lord Denning "one weapon in its armoury which it can use and punish him for contempt of Court "‑‑‑Once an order has been passed, by the Court it has got to be obeyed by the litigants and they cannot arrogate to themselves the right to decide whether the Court's order was proper or not ‑‑‑Litigants certainly can have resort to the remedies available to them under the law, but they cannot with impunity flout orders of the Courts on their own construction of the orders, as in doing so they clearly run the risk of becoming liable to punishment for contempt in the event of th­e construction turning out ultimately to be erroneous.

Muhammad Idrish and another v. The East Pakistan Timber Mechants Group and another 1968 SCMR 1404 ref.

Mubashar Latif for Petitioner.

Maqbool Sadiq for Respondents.

2003 Y L R 353

[Lahore]

Before Maulvi Anwarul Haq, J

OIL AND GAS DEVELOPMENT CORPORATION, ISLAMABAD through

Chairman‑‑‑Appellant

Versus

Messrs CLOUGH ENGINEERING LTD. and another‑‑‑Respondents

First Appeal from Order No. 27 of 1997, decided on 12th November, 2002.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 39, 41, 20 & Second Sched., paras. 3 & 4‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1, 2, Ss. 115, 94 & 151‑‑‑High Court (Lahore) Rules and Orders, Vol. V, Part A, Chap. III, R.2(i)(a)‑‑‑Application to file arbitration agreement in Court alongwith application under S.41 read with paras. 3 & 4 of the Second Sched. to the said Act read with O. XXXIX, Rr. 1, 2, Ss. 94 & 151, C. P. C. ‑‑‑Trial Court, in the first instance, took up and allowed the application under S.41 of the Arbitration Act, 1940 read with paras. 3 & 4 of the Second Schedule to the said Act and with O.XXXIX, Rr.1, 2, Ss. 94 & 151, C. P. C. and issued restraint order in respect of Bank guarantee but thereafter noting that dispute was duly covered by the arbitration clause of the agreement, directed to submit the original agreement‑‑‑First appeal from said order of the Trial Court was filed before the High Court both against the acceptance of application under S.20, and the restraining order in respect of the Bank guarantee‑‑‑Maintainability of appeal before High Court‑‑Provisions of S.39, Arbitration Act, 1940 provide that appeal against orders made appealable does lie, in the present case, in the High Court and is to be heard by a Division Bench but appeal against the restraint order of the nature passed by the Trial Court does not lie at all, however, provisions of S.115, C.P.C. have been left intact under S.39(2) of the Arbitration Act, 1940 and High Court would not require an application to take congizance of the matter under S.115, C. P. C. as the said order purported to have been passed by the Trial Court under S.41 of the Arbitration Act, 1940 is prima facie violative of the settled law‑‑­High Court, in circumstances, ordered the office to draw up proceedings under S.115, C. P. C. accordingly while the connected matters were ordered to be relisted before a Division Bench dealing with all such matters.

Upon plain reading of section 39 of Arbitration Act, 1940, the appeal against order, made appealable does lie in the present case in .the High Court and is to be heard by a Division Bench; that an appeal against restraint order of the nature passed by the trial Court does not lie at all.

In the present case the trial Court started with application under section 41 and somewhere on his way to decide the said matter abruptly came to hold that the dispute was covered by arbitration clause and arbitration agreement be filed, thus changing entire texture of the said order. The end result of the said exercise undertaken by the trial Court was that High Court was faced with an order whereby appellant had been directed to file arbitration agreement and at the same time an order in terms of section 41 of Arbitration Act, 1940 had been passed.

Upon reading of section 39, Arbitration Act, 1940, it is evident that appeal from the orders listed in section 39 is to be heard by a Court which is authorised by law to hear appeal from original decree of the Court passing the order. Now in case original decree is passed by the Civil Judge 1st Class and amount exceeds the pecuniary jurisdiction of the District Judge, the appeal comes before the High Court and is heard by a Bench comprising more than one fudges. This appeal is to be heard by a Division Bench of this Court, of course, this refers to the appeal inasmuch as it deals with the matter of direction to the appellant to file arbitration agreement in Court.

Notwithstanding the reference to Order XXXIX and other provisions of C.P.C., fact remains that the trial Judge was empowered to pass the order as prayed for under section 41 read with said Second Schedule of the Arbitration Act, 1940 and it will be deemed that the order has been passed under said section 41. Now it may not be possible to treat one part of this appeal as regular appeal in terms of section 39 of Arbitration Act, 1940 and other part under section 41 of the said Act to be a revision, that will not be possible. However, at the same time the provisions of section 115, C.P.C. have been left wholly intact under subsection (2) of the said section 39. High Court would not require an application to take cognizance of the matter under section 115, C.P.C. as the said order purported to have been passed by the trial Court under section 41, Arbitration Act, 1940, is prima facie, violative of the settled law.

Municipal Corporation of Greater Bombay v. Patel Engineering Company Ltd. AIR 1994 Born. 80; The State of Himachal Pradesh and another v. Messrs H.S. Sobti & Co. AIR 1973 Him. Pra. 1; Puppalla Ramulu v. Nagidi Appalaswami and others AIR 1957 Andh. Pra. 11; Jute Corproation of India Ltd. v. Messrs Konark Jute Ltd. and others AIR 1986 Orissa 238; Messrs Sharma Ice Factory v. Messrs Jewel Ice Factory and others AIR 1975 J&K 25; Smt. Krishnawati Devi and another v. Lala Harjas Mal Misra and others AIR 1974 All. 209; Messrs Banwari Lal Radhey Mohan, Delhi v. The Punjab State Coop. Supply and Marketing Federation Ltd. AIR 1983 Delhi 402; Union of India and others v. Messrs N.K. Pvt. Ltd. and another AIR 1972 Delhi 202; Muhammad Esoof v. V.R. Subratnanyam and another AIR 1957 Mys. 78; Messrs Payar and Powar and others v. C.B.C.I.O, Society AIR 1983 Kar. 77; Union of India v. Manipur Builders Association AIR 1977 Gauhati 5; The Union of India v. The Mohindra Supply Co. AIR 1962 SC 256; Balde Pentaiah v. Balaganti Mallaiah AIR 1968 Andh. Pra. 228; NLR 1980 AC 542; Haral Textiles Ltd. v. Banque Indosuez Belgium S.A. and others 1999 SCMR 591 and Messrs National Construction Ltd. v. Aiwan‑e‑Iqbal Authority PLD 1994 SC 311 ref.

Aamer Raza A. Khan for Appellant

Abdul Hafeez Pirzada and Hassan Aurang Zeb for Respondents.

2003 Y L R 358

[Lahore]

Before Farrukh Lateef, J

GHULAM FAREED‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No. 8976 of 2002, decided on 14th November, 2002.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Suit for jactitation of marriage by wife and suit for restitution of conjugal rights by husband‑‑‑Consolidation of‑‑‑Scope‑‑‑Issues informer suit were framed on 14‑2‑2002 and was at evidence stage, when the latter suit was filed on 20‑2‑2002‑‑­Family Court on the request of husband did not consolidate both the suits ‑‑‑Validity‑‑­Family Court had not committed an illegality in not consolidating such suits‑‑‑Apart from that, not mandatory for Family Court to have consolidated suit for restitution of conjugal rights with that of jactitation of marriage as identical questions of law and facts were not involved.

(b) West Pakistan family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 10, 12 & Sched.‑‑‑Suit for jactitation of marriage‑‑‑Pre‑trial and post-­trial reconciliation proceedings‑‑‑Object and necessity‑‑‑Re‑conciliation is necessary where marriage admittedly subsisted as its object is to try to arrange a compromise for harmonious union of spouses with a view to save matrimonial life from further deterioration‑‑‑Re‑conciliation proceedings would be meaningless in a suit for jactitation of marriage due to denial of existence of a valid marriage.

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 10 & 12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Scope‑‑‑Non‑compliance with provisions of Ss. 10 & 12 of the Act by Family Court‑‑­Such objection, if not raised in appeal before Appellate Court, would not constitute a ground for exercise of Constitutional jurisdiction by High Court.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Evidence, production of‑‑‑Order of Family Court declining adjournment or extension of time for production of evidence absolutely discretionary and could not be interfered with in Constitutional jurisdiction.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court could neither substitute findings of facts recorded by Courts below nor give its opinion regarding adequacy of evidence‑‑‑Such matters should be decided by Courts below vested with Jurisdiction to decide the same.

(f) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Assessment of evidence‑‑‑Family Court was vested with, exclusive jurisdiction to decide such matter‑‑‑Concurrent findings recorded by Family Court and Appellate Court could not be interfered with in Constitutional petition in absence of misreading or non-­reading of any material piece of evidence.

Mehar Masood Ahmad for Petitioner.

2003 Y L R 360

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD TUFAIL‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER/DISTRICT COLLECTOR, SHEIKHUPURA and

others‑‑‑Respondents

Writ Petition No. 18961 of 1998, decided on 31st October, 2002.

(a) Practice and procedure‑‑‑

‑‑‑‑Departmental action and criminal proceedings‑‑‑ Principle‑‑‑ Characteristics‑‑­Both the proceedings are independent of each other and can go on side by side and may even end in varying results.

Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and The D.I.‑G. Police and others v. Anis‑ur‑Rehman Khan PLD 1985 SC 134 ref.

(b) Punjab Stamp Rules, 1934‑‑‑

‑‑‑‑R.29‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Stamp vendor licence, cancellation of‑‑‑Principle of natural justice‑‑‑Applicability‑‑‑Licence of the petitioner was cancelled on the basis of inquiry report without issuance of any notice to him‑‑‑Validity‑‑‑Competent Authority was not allowed under R.29 of Punjab Stamp Rules, 1934, to cancel the licence without issuing notice to the petitioner‑‑‑Such act of the Authorities was hit by the principle of natural justice and the same was set aside‑‑­Constitutional petition was allowed in circumstances.

Zakir Ahmad v. University of Dacca PLD 1965 SC 90; Pakistan and others v. Public‑at‑large, and others PLD 1987 SC 304; "Pakistan Chrome Mines Ltd. v. Inquiry Officer and others 1983 SCMR 1208 and Syed Mir Muhammad v. N.‑W.F.P. Government through Chief Secretary PLD 1981 SC 176 ref.

(c) Natural justice, principles of‑

‑‑‑‑ Principles of natural justice must be read in each and every statute until and unless it is prohibited by wording ‑of statute itself.

Commissioner of Income‑tax Fazal‑ur‑Rehman PLD 1964 SC 410 ref.

Malik Sarfraz Hussain for Petitioner.

Muhammad Hanif Khatana, A.‑G. for Respondents.

2003 Y L R 362

[Lahore]

Before Farrukh Lateef, J

ABDUL GHAFFAR‑‑‑Petitioner

Versus

BASHIR AHMAD and others‑‑‑Respondents

Civil Revision No. 958‑D of 2002, decided on 23rd October, 2002.

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

‑‑‑‑O.XX, R. 18(2)‑‑‑Registration Act (XVI of 1908), Ss. 17 & 49‑‑‑Partition suit‑‑­Defendant's plea was that private partition had already been effected between previous owners through partition deed, thus, plaintiffs being successor‑in‑interest of previous owner were bound by such private partition‑‑‑Trial Court after recording evidence passed preliminary decree, which was upheld by Appellate Court ‑‑‑Validity‑‑­Authenticity of partition deed had not been proved‑‑‑Same being an unregistered agreement of partition would not operate to create any right or title‑‑‑Record did not show that such agreement had ever been acted upon or given effect to‑‑‑Defendant being not party to such agreement was not bound by the same‑‑‑Such agreement at the most could be deemed as an agreement regarding family arrangement or private settlement, but not a deed of partition‑‑‑Half share of plaintiff in joint property had not been denied‑‑‑Defendant was not entitled to retain possession of more than his half share‑‑‑Concurrent findings of Courts below that actual partition between parties had not been proved, were based on evidence and sound reasoning, which could not be disturbed in revisional jurisdiction‑‑‑High Court dismissed revision petition in circumstances.

(b) Partition possession‑‑‑

‑‑‑‑Hissadari possession by way of family settlement would not amount to ultimate partition.

Malik Sharif Ahmad for Petitioner.

Muhammad Naveed Hashmi for Respondent.

Date of hearing 23rd October, 2002.

2003 Y L R 365

[Lahore]

Before Mian Muhammad Jahangir, J

MUHAMMAD ANWAR and another‑‑‑Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE (MISS UZMA AKHTAR

CHUGHTAI) and 2 others‑‑‑Respondents

Writ Petition No. 1498 of 2002, decided on 3rd October, 2002.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Preamble‑‑‑Object and scope of West Pakistan Family Courts Act, 1964‑‑‑Act has exclusive concern with the disputes relating to marriages and family affairs and for matters connected therewith‑‑‑Forum has been provided to spouses for grant of better remedies under the Act.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.2(d)‑‑‑Term 'party'‑‑‑Connotation‑‑­Term 'party' is not confined only to the spouses but its meanings are wider in sense‑‑­If there is a suit for recovery of dowry articles and the dowry articles are in the custody of father of husband then even in lifetime of the husband, his father may also be impleaded as a party as the presence of the father may be considered necessary for a proper decision of the dispute‑‑‑Since the dowry articles are exclusively in the ownership of wife and same are also recoverable even after the death of the husband then whosever is in possession of such articles may be impleaded as a party as due to the death of the husband the responsibility of the legal heirs for return of dowry articles is not vanished‑‑‑When the suit for recovery of dowry articles is within exclusive jurisdiction of Family Court, it is to be finally disposed of by the Family Court.

Muhammad Alam and another v. Shamas un Nisa and others NLR 1979 Civil 67 (Lah.) ref.

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 2(d) & 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Dowry articles, recovery of‑‑‑Arraying relatives of spouses as necessary parties‑‑­During the pendency of suit filed by wife, the husband was murdered and the legal heirs of the deceased husband were impleaded as defendants‑‑‑Family Court returned the plaint on the ground that the Family Courts could deal exclusively with family matters between the spouss and after the death of husband, the nature of the suit had changed‑‑‑Appellate Court remanded the case to the Family Court with the direction to determine the possession of the dowry articles and to proceed further‑‑‑Plea raised by the legal, heirs of the husband was that the Family Court was to settle the dispute exclusively amongst the spouses and there was no provision in the West Pakistan Family Courts Act, 1964, to extend the cause of action towards the close relatives of spouses‑‑­Validity‑‑‑High Court by an example explained that if surety in case of dower was a necessary party for the just decision of the case, then after the death of husband the legal heirs of the deceased were also necessary party for proper adjudication upon the matter and that on the same line if wife died during the pendency of a suit for recovery of dowry articles her legal heirs would be considered necessary party for the proper decision of the suit and such legal heirs would be impleaded as plaintiffs and the suit would proceed further on the same platform i.e. Family Court‑‑‑Legal heirs of the deceased husband, in the present case, were necessary party and High Court declined to interfere with the remand order passed by the Appellate Court.

Muhammad Alam and another v. Shamas un Nisa and others NLR 1979 Civil 67 (Lah.) ref.

Abdul Hameed Cheema for Petitioner.

Saif ud Din Chughtai for Respondent No.3.

2003 Y L R 369

[Lahore]

Before Mian Saqib Nisar and Mian Hamid Farooq, JJ

JAMEELA BIBI and others‑‑‑Appellants

Versus

AHMADI KHANAM and others‑‑‑Respondents

Regular First Appeal No. 155 of 1994, heard on 9th September, 2002.

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

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement to sell‑‑‑Proof‑‑‑Defendant denied to have executed such agreement‑‑‑Plaintiff examined scribe of agreement as witness, but did not examine its marginal witnesses in affirmative without any valid reason‑‑‑Scribe of agreement did not personally know defendant, but identified him through his identity card without mentioning its number on agreement‑‑‑Such agreement was not incorporated in any register of scribe‑‑­Plaintiff examined a marginal witness in rebuttal‑‑‑Onus to prove valid execution of agreement in affirmative was on plaintiff‑‑­Examining such witness in rebuttal would not be of any help to the plaintiff‑‑‑Other witnesses produced by plaintiff to prove bargain were neither direct witness of agreement to sell nor they had stated about part payment of consideration in their presence‑‑‑Plaintiff had failed, to prove execution of agreement to sell:

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.182‑‑‑Agent‑‑‑Authority of attorney must be strictly proved for a valid transaction entered into by hint.

(c) suit‑‑‑

‑‑‑‑ Institution of‑‑‑Proof‑‑‑Denial of institution of earlier suit by a party‑‑‑Mere placing on record certified copies of such proceedings, and decision of Court would not be sufficient to discharge the onus about institution of such suit and proceedings conducted therein‑‑‑Such fact could be ascertained by examining the party allegedly to have filed earlier suit, the witness, who had appeared and made statement therein and the Advocate, who had appeared on their behalf and had identified them.

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

‑‑‑‑S.42‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Mutation‑‑‑Dismissal of suit for specific performance of agreement to sell‑‑­Plaintiff could riot seek mutation of sale in absence of decree in his favour.

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

‑‑‑‑Ss. 12 & 27(b)‑‑‑Suit for specific performance of agreement to sell‑‑‑Defendant claimed to be bona fide subsequent purchaser through registered document for valuable consideration without any notice of prior agreement to sell in favour of plaintiff‑‑­Defendant appeared in Court and made statement to such effect‑‑‑Plaintiff did not lead any evidence in rebuttal to disprove such fact and to establish in positive terms that defendant had knowledge of prior agreement to sell and had purchased property with due notice and were not bona fide purchasers‑‑­Suit of plaintiff was hit by principle laid down in Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25.

Muhammad Aslam Khan Buttar for Appellants.

Sh. Muhammad Siddique for Respondents Nos. 1 and 3 to 8.

Muhammad Amir Sohail Saleemi for Respondent No.9.

Muhammad Zain ul Abidin for Respondent No. 10.

Date of hearing: 9th September, 2002.

2003 Y L R 374

[Lahore]

Before M. Akthar Shabbir and Mian Muhammad Jahangir, JJ

Makhdoom Syed ALI RAZA SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1 and 925/M of 2002 in Criminal Appeal No. 23‑E of 2002 (Rwp.), decided on 19th August, 2002.

(a) National Accountability Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 32, 15, 25, 18 & 24‑‑‑Plea bargaining‑‑‑Disqualification to contest elections or hold public office ‑‑‑Appreciation of evidence‑‑‑Accused had contended that his case was not covered under the proviso to Ss. 15 & 25 of the NAB Ordinance‑‑‑Accused had deposited rupees two lacs on 24‑1‑2000, on the report and objection of Public Accounts Committee of the National Assembly, prior to the proceedings of plea bargaining with the Chairman, NAB on 18‑5‑2000‑‑‑Accused had contended that the Judge Accountability Court had not issued any notice to him convicting and disqualifying him under S.15 of the National Accountability Bureau Ordinance, 1999‑‑­Validity‑‑‑Accused had made application on 12‑6‑2000 to the Chairman, NAB praying therein to settle the reference out of the Court and offering to deposit the amount charged against him‑‑‑Plea bargain proceedings had been conducted upon his application and after satisfying the illegal gains obtained by the accused through corruption/corrupt practices and misuse of his authority as a holder of public office, the Special Prosecutor for NAB had applied to the Court for release of the accused‑‑‑Even if the accused had deposited rupees two lacs on the report and objection of the Public Accounts Committee of the National Assembly, even then there had been a huge amount outstanding against him which he had to pay to the NAB after filing of reference against him and the whole amount had been adjusted or repaid by the accused on his own application submitted to the Chairman, NAB on 12‑6‑2000‑‑‑Accused had not contested the reference rather he had opted to return the gains acquired by him through illegal means and the accused had not been able to rebut the allegations leveled by the Chairman, Public Accounts Committee and reiterated in the present reference filed against him‑‑‑Accused had finalised a deal after the filing of reference against him‑‑­Accused was a convict as a 'consequence of his own bargaining with, the NAB‑‑­Arguments of the accused were repelled as being misconceived and devoid of force‑‑­Conviction and, sentence passed against the accused were maintained and his prayer to allow him to participate in the forthcoming general elections was refused in circum­stances.

(b) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.15‑‑‑Disqualification to ‑contest elections or to hold public office‑‑‑Show‑cause notice, want of‑‑‑Perusal of S.15 of the National Accountability Bureau Ordinance, 1999, reveals that there is no special provision for the issuance of show‑cause notice for disqualifying the accused person‑‑‑Person who avails of the benefit of S.25 shall automatically be deemed to have been convicted for an offence under the Ordinance and shall forthwith cease to hold the public office held by him and shall be disqualified for a period of 21 years, besides he would be disentitled to avail of the financial facility as provided in S.15 of the said Ordinance‑‑­Special Public Prosecutor NAB had applied to the Court for the release of the accused under plea‑bargain under S. 25 of the National Accountability Bureau Ordinance, 1999 on 15‑7‑2000‑‑‑Notice had been issued to the accused by the Accountability Court for the said date and he had been present in the Court when a copy of the application filet by the NAB had been handed over to the accused and after hearing the arguments from both sides, Court had passed the impugned order‑‑‑Contention of the accused that he had not been issued a show‑cause notice before being disqualified was repelled in circumstances.

(c) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.25‑‑‑Voluntary return (plea bargain­ing) ‑‑‑Scope‑‑‑National Accountability Bureau would make plea bargaining or effect settlement with the accused if he comes forward voluntarily to return the illegal gain acquired or loss caused by him to the State exchequer through corruption/corrupt practice‑‑‑If the offer to return illegal gain is made by the accused after the commencement of trial, the Chairman NAB may release the accused with the approval of the Court or if the bargaining is made before taking cognizance by the Accountability Court, then the Chairman NAB will be competent to accept the offer and determine the amount of illegal gain or loss caused and after deposit of the same with the NAB, discharge such person‑‑‑Chairman NAB is not competent to release a person without his own offer to return the acquired illegal gains or make good loss caused by him.

Kh. Tariq Rahim, Mirza Abbas and Mehr Muhammad Iqbal for Petitioner.

Malik Abdul Haq, Special Prosecutor for NAB.

2003 Y L R 380

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

TALAT MAHMOOD and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 115 and Murder Reference No. 257 of 1998, heard on 2nd December, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑No motive was ascribed to the accused and the probability was there that he did not hold the deceased while the deceased was being fired at by the co‑accused in view of the apparent risk‑‑‑No other role was ascribed to accused for causing injuries to the deceased who could have received the injuries at the hands of a single assailant being armed with a pistol‑‑‑Keeping in view the probabilities and the presumptions existing in favour of the accused, his case was not free from doubt‑‑­Accused was acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Pistol recovered from the accused was found wedded with the crime empties secured from the place of occurrence‑‑‑Accused had acted cruelly in firing so many shots at his brother-­in‑law and killing him in broad daylight‑‑­Motive part of the story that the deceased was married to the sister of the accused was true and whether he disliked said marriage pertained to his intention ‑‑‑Accused's own case was that he was 17 years and 7 months old, but he had not raised plea of his minority before the Trial Court and even did not produce his Birth Certificate at present stage‑‑‑Mentioning of age in the statement of accused under S.342, Cr. P. C. was invariably a perfunctory exercise without application of mind‑‑Case against accused was one of Taazir and of a gruesome murder and he was not entitled to any reduction in his sentence of death‑‑‑Conviction and sentence of accused were upheld in circumstances.

Sohail Iqbal v. The State 1993 SCMR 2377; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Shaukat Masih v. The State PLD 1982 FSC 19 and Raheem Bakhsh v. Abdul Subhan and others 1999 SCMR 1190 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 306 & 308‑‑‑Punishment in Qatl‑i‑Amd not liable to Qisas‑‑­Determination of age of accused is a mixed question of law and fact for purposes of the Penal Code‑‑‑Has to be first established factually that the accused was a minor and then to ask for concessions as provided under Ss. 306 & 308, P. P. C.

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

‑‑‑‑S.342‑‑‑Examination of accused‑‑‑Age given in the statement‑‑‑Mentioning of age of accused in his statement under S.342, Cr. P. C. is invariably a perfunctory exercise where there is no application of mind.

(e) Precedent‑‑‑

‑‑‑‑Everything said in a judgment, parti­cularly in a case judgment was to be understood with reference to the facts of that particular case.

Sardar Muhammad Ishaque for Appellants.

Malik Anwarul Haq for the State.

Date of hearing: 2nd December, 2002.

2003 Y L R 400

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

RAFAQAT MASIH‑‑‑Petitioner

Versus

MAQSOOD BIBI‑‑‑Respondent

Civil Revisions Nos. 1515 and 1516 of 2002, decided on 18th December, 2002.

(a) Christian Marriages Act (XV of 1872)‑‑‑

‑‑‑‑S. 4‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.5‑‑‑Christian marriages and Muslim marriages‑‑‑Distinction‑‑‑Marriage under Christian Marriages Act, 1872 is a sacrament unlike Muslim marriages which are purely civil contract between the spouses.

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

‑‑‑‑O. XLI, R. 33‑‑‑Power of Court of appeal‑‑‑Object of O.XLI, R.33, C.P.C. was to empower Court to do complete justice and readjust the rights of other parties‑‑­Ordinarily an Appellate Court would not take notice of events that had taken place after judgment of lower Court, but in order to shorten litigation and to attain ends of justice, Appellate Court could take note of events subsequent to passage of impugned decree or order‑‑‑Appellate Court could pass a decree or order which ought to have been passed and where issues were not framed, but allegations made in plaint were challenged in written statement and Court allowed evidence to be led, then decision rendered without framing of issues, was not illegal.

Ala‑ud‑Din v. Mst. Farkhanda Akhtar PLD 1953 Lah. 131; Mst. Baigan v. Abdul Hakeem and another 1982 SCMR 673; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; PLD 1978 SC 220; PLD 1991 SC 218; 1991 SCMR 515; PLD 1976 SC 634 and 1985 CLC 1527 ref.

(c) Divorce Act (IV of 1869)‑‑‑

‑‑‑‑S. 10‑‑‑Christian Marriages Act (XV of 1872), Ss.4, 10 & 19‑‑‑Dissolution of marriage‑‑‑Suit for‑‑‑Both plaintiffs' wives appeared before Court and stated that they would rather prefer to die than to go with husbands‑‑‑One of the plaintiffs had alleged that her marriage was solemnized during her minority and under undue influence exercised by a "Peer"‑‑‑Parties were litigating since 1995 and according to statement of parties they were going through agonizing and painful situation and plaintiff women appearing before Court had refused to go with their husbands‑‑‑Effect‑‑‑No religion would allow a hateful union which was not based on true consent of parties, especially in Christian Marriages Act, 1872 where marriage was a sacrament and at the time of marriage both parties vow to stand together in sorrow and happiness till death would depart them‑‑‑Evidence had established beyond doubt that vital role in marriage between spouses who were Christians was performed by one Muslim "Peer" under whose influence parties were wedded‑‑‑Trial Court was not justified to dismiss the suit‑‑­Appellate Court had rightly decreed the suit of the ladies by setting aside judgment and decree of Trial Court‑‑‑High Court declined interference in circumstances.

Alla‑ud‑Din v. Mst. Farkhanda Akhtar PLD 1953 Lah. 131 ref.

Khalil Ahmad for Petitioner.

Ijaz Ahmad Chaudhry for Respondent.

Date of hearing; 10th December, 2002.

2003 Y L R 406

[Lahore]

Before Tanvir Bashir Ansari, J

MUSHTAQ AHMED MALIK ‑‑‑Appellant

Versus

MUHAMMAD SUNAWAR CHOUDHARY and another‑‑‑Respondents

First Appeal from Order No. 134 of 2002, heard on 18th November, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 133‑‑‑ Order of examination‑‑­Scope‑‑‑Voluntary statement by a witness in cross‑examination has no legal evidentiary value‑‑‑Witness is not permitted to foist into his answer statement any material which is not in answer to or explanatory of his answer to the questions put to him‑‑‑Such voluntary evidence is denominated as "irresponsive" testimony and the introduction of such evidence shall be against the rule of re­-examination as contemplated under Art.133 of Qanun‑e‑Shahadat, 1984‑‑‑Principles.

According to Article 133 of the Qanun‑e‑Shahadat Order, 1984, the order of examination of witnesses has been set down. The witnesses shall be first examined‑in‑chief and then if the adverse party so desires shall be cross‑examined. The re‑examination, however, is limited to the explanation of matters referred to in‑cross‑examination and if permission in this respect is granted by the Court. It would thus, be seen that the voluntary statement by a witness in cross-­examination has no legal evidentiary value. It is not permissible for a witness to foist into his answer statement any material which is not in answer to or explanatory of his answer to the questions put to him. In jurisprudence, such voluntary evidence is denominated as "irresponsive" testimony and the introduction of such evidence shall be against the rule of re‑examination as contemplated under Article 133 of the Qanun‑e‑Shahadat Order, 1984.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Landlord having a number of shops, choice of landlord has to be a guiding factor to decide as to which shop he wanted to occupy‑‑‑Landlord is not obliged to disclose the nature of business for which he wanted to utilize the premises‑‑‑When, however, it is found that it is not a question of mere exercise of choice but landlord has been letting and re‑letting his tenement on his whims which is not suitably explained through evidence, he is not entitled to an order of eviction in his favour.

Nazar Hussain through Legal Heirs and another v. Ali Akbar 1995 CLC 452 ref.

M. Asghar Khan‑I for Appellant.

Hafiz Saeed Ahmad Sheikh Respondent No. 1.

Date of hearing: 18th November, 2002.

2003 Y L R 417

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. RAZIA BEGUM‑‑‑Petitioner

Versus

FAZAL HUSSAIN ‑‑‑Respondent

Civil Revision No.606 of 1994, heard on 29th October, 2002.

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

‑‑‑‑Ss. 5, 13, 14 & 35(2) ‑‑‑ Pre‑emption suit‑‑‑Superior right of pre‑emption ‑‑‑Such suit was filed during the interregnum‑‑­Limitation ‑‑‑Pre‑emptor lady had stated in the plaint that she was a co‑sharer in the suit land and when the knowledge of sale was acquired, her General Attorney made Talb‑e­-Muathibat and thereafter in presence of the persons mentioned In the plaint a demand was made to the vendee to accept the price and to transfer the land to her‑‑‑Appellate Court dismissed the suit and reversed the decree passed by the Trial Court ‑‑‑Validity‑‑­Pre‑emptor lady had stated that she owned property both agricultural and residential in several revenue estates, where the suit‑land was located‑‑‑All possible authority had been conferred on the attorney who was husband of the pre‑emptor including filing of suits and in connection with the said suits to perform all relevant acts ‑‑‑Pre‑emptor lady, inter alia had authorised the attorney to deposit and to withdraw the same as' well‑‑‑In the context of the ownership by the lady of the said land in the relevant revenue estate and authorising the attorney to file suits with power to make the deposits included the power to file a pre­ emption suit relateable to the ownership of the suit‑land and even on the "strict construction" the said intention of the lady was glaring on the face of the said document‑‑‑Lady had claimed to be a co­ owner and consequently to be possessed with a superior right of pre‑emption against the vendee on the basis of ownership of the land in several estates in the area where the land in question was located ‑‑‑Talbs had been proved and were complete for the purposes of exercising the right of pre‑emption under the Law‑‑‑Suits which were filed or were pending during the interregnum containing the complete pleadings and also where the right claimed was recognised by the Islamic law were saved‑‑‑Limitation period for such suit being one year Appellate Court had erred in a manner so as to affect its jurisdiction when it had held that the suit filed about five months after the sale was barred by time‑‑‑Judgment and decree by the District Judge was set aside and the one passed by the Trial Court was restored by the High Court.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 ref.

Haji Mitha Khan v. Mst. Nafeez Begum and 2 others 1995 CLC 896 distinguished.

Sardar Tariq Anees for Petitioner.

Malik Qamar Afzal for Respondent.

Date of hearing: 29th October, 2002.

2003 Y L R 421

[Lahore]

Before Maulvi Anwarul Haq, J

Col. (Retd.) SULTAN SURKHORU‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revisions Nos. 175 and 185 of 2001, heard on 25th October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/148/149/341/342/365/427‑‑‑Criminal Procedure Code (V of 1898), Ss. 169, 190(3), 193(1), 204(1) & 439‑‑‑Revision‑‑‑Accused having already been mentioned in Column No.2 of the first incomplete challan, he was not required to be again mentioned in Column No.2 of the supplementary challan submitted in the Court against co‑accused and it, therefore, could not be said that the accused was not sent up for trial‑‑‑First challan having been sent up by the Magistrate to the Sessions Court alongwith the second supplementary challan, Sessions Court was not debarred from taking cognizance of the case and there was no violation of S.193(1), Cr.P.C. read with S.190(3), Cr. P. C. ‑‑‑Summons admittedly had been issued to the accused for trial and S.204(1), Cr.P.C. was not violated‑‑­Discharge of an accused did not have the effect of his acquittal, police could always commence further proceedings and Trial Court was not bound by the said order as S.169, Cr. P. C. could never confer judicial powers on any Police Officer‑‑‑Trial commenced by the Sessions Court did not suffer from any legal infirmity‑‑‑Revision petition was dismissed accordingly.

Waqarul Haq alias Nithoo and another v. State 1988 SCMR 1428 and Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 ref.

Dr. Z. Babar Awan for Petitioner.

Sardar Muhammad Ishaq Khan and Mukhtar Ahmad Gondal for the Complainant.

2003 Y L R 424

[Lahore]

Before Abdul Shakoor Paracha, J

Raja MUHAMMAD IKRAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1219‑B of 2002, decided on 24th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34/109‑‑‑Bail‑‑‑F.I.R. had been promptly lodged on the complaint of the deceased himself just after 35 minutes of the occurrence‑‑‑Question whether F.I.R. was a dying declaration or not and whether belated statements could not be taken as evidence of abetment, needed deeper appreciation which could not be made at bail stage‑‑‑Accused, according to F.I.R. had extended threats to the deceased through his driver and gunman for closing the Bus Adda and he had a motive for the occurrence‑‑‑Statements of witnesses recorded under S.161, Cr. P. C. had implicated the accused‑‑‑Two co‑accused who were armed with rifles were still absconders‑‑‑Accused admittedly was involved in many other cases‑‑‑Every case of criminal nature was to be decided at bail stage keeping in view the attending circumstances of that particular case‑‑‑Bail was declined to accused in circumstances.

Abdul Majid alias Maja v. State 1976 PCr.LJ 545; Allah Bakhsh v. The State 1989 PCr.LJ 2384; Malik Muhammad Iqbal v. Syed Abid Hussain Shah and 2 others 2000 PCr.LJ 1171; Syed Amanullah Shah v. The State PLD 1996 SC 241 and Mst. Hanifan Bibi v. Zulfiqar PLD 2001 Lah.123 ref.

Sabah Mohy‑ud‑Din Khan for Petitioner.

Sardar Muhammad Ishaq Khan for the Complainant.

2003 Y L R 427

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and 12

others‑‑‑Respondents

Writ Petition No. 18234 of 2002, decided on 23rd October, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑­Disputed question of fact‑‑‑Contractual liability‑‑‑Grievance of the petitioner was that although the authorities agreed to confer proprietary rights of disputed shop to the petitioner yet the price demanded by them was exorbitant‑‑‑Authorities produced a document allegedly thumb‑marked by the petitioner whereby the price demanded by the Authorities had been agreed to by the petitioner‑‑‑Petitioner denied execution of such document‑‑‑Validity‑‑‑In view of conflicting and counter‑assertions of the parties about the execution of the document, it had become a controversial and disputed question of fact which could only be resolved after thorough prove and inquiry into the matter‑‑‑Such exercise was beyond the pale of jurisdiction of High Court under Art. 199 of the Constitution, therefore, remedy for the petitioner for settling such controversy falling within the factual realm was elsewhere‑‑‑Petitioner had agreed for the grant of proprietary rights through private treaty and he alongwith others agreed to the price, thus the same gave rise to a contractual arrangement between the parties and in any case invocation of Constitutional jurisdiction of High Court was not the remedy that could be resorted to by the petitioner‑‑­Constitutional petition was dismissed in circumstances.

Shaukat Haroon for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondent.

2003 Y L R 428

[Lahore]

Before Mian Muhammad Jahangir, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

BASHIR AHMED and 25 others‑‑‑Respondents

Civil Revision No. 345 of 1997, heard on 28th June, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.47‑‑‑Executing Court, jurisdiction of‑‑­Scope‑‑‑Parties to execution proceedings‑‑­Section 47, C. P. C. determines the limit of jurisdiction of Executing Court‑‑‑Both plaintiff, whose suit has been dismissed and defendant against whom suit has been dismissed are parties for purpose of S.47 C. P. C. ‑‑‑Executing Court has to decide each and every question raised by either plaintiff or defendant‑‑‑If defendant is a judgment‑debtor and he raises some objections or moves an application to consider his right, then Executing Court cannot direct him to file separate execution petition‑‑‑Any such direction would be against the sprit of S.47, C. P. C.

Muhammad Ilyas Sheikh Petitioner.

Zaheer Ansari for Respondents.

Date of hearing: 28th June, 2002.

2003 Y L R 432

[Lahore]

Before Mian Saqib Nisar, J

SULEMAN through Legal Heirs‑‑‑Petitioner

Versus

REHMAT ALI‑‑‑Respondent

Civil Revision No. 3366 of 1994, heard on 15th October. 2002.

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

‑‑‑‑Ss. 39 & 42‑‑‑Suit for declaration and cancellation of sale‑deed on ground of being fraudulent and forged‑‑‑Defendant's plea was that he had purchased land from plaintiff about 10/12 years ago and had obtained its possession then and raised construction thereon‑‑‑Trial Court decreed the suit, whereas Appellate Court dismissed the suit in appeal filed by defendant‑‑‑Validitly‑‑‑Scribe of sale‑deed as witness had admitted affixation of thumb‑impression of plaintiff thereon‑‑‑All the witnesses including the scribe and marginal witness had denied the payment of sale price to plaintiff in their presence‑‑‑None of the witnesses had stated that contents of documents were read over to plaintiff and he after understanding its contents and nature had thumb‑marked the same‑‑‑Plaintiff though was a Lambardar, but was not able to sign‑‑‑Such fact was sufficient proof that plaintiff was a illiterate person‑‑‑Defendant had not proved taking over possession of suit land at the time of alleged payment of sale price‑‑‑Payment of sale price to plaintiff in the "Baithak" of a person as stated by defendant in cross­-examination was not corroborated by examining such person‑‑‑Findings of Appellate Court were erroneous being the result of gross misreading and non‑reading of evidence on record‑‑‑High Court accepted revision petition, set aside impugned judgment and decree and restored that of Trial Court, resultantly suit stood decreed.

(b) Document‑‑‑

‑‑‑‑ Execution of ‑‑‑Proof‑‑‑Executant an illiterate person‑‑‑Principles.

Mere appendage of thumb‑impression on a document would not tentamunt to a valid execution of a document, particularly in the case of an illiterate person, untill and unless the document is read over to the person in the language he understands and is made to understand as to the nature of the transaction.

Tariq Masood for Petitioner.

Ch. Abdul Majeed for Respondent.

Date of hearing: 15th October, 2002.

2003 Y L R 435

[Lahore]

Before Ch. Ijaz Ahmad, J

MASHHADI WELFARE ASSOCIATION, CHUNGI AMER SIDHU LAHORE

through President Syed Shabbir Hussain Shah‑‑‑Petitioner

Versus

GOVERNMENT OF PUNJAB through Special Secretary Schools, Civil Secretariat, Lahore and 5 others‑‑‑Respondents

Writ Petitions Nos. 11304, 13101, 13102, 13519, 11718, 15100, 15099, 17822, 17927, 15101 and 9885 of 2002, decided on 6th November, 2002.

(a) Calendar Board of Intermediate and Secondary Education, Lahore‑‑‑

‑‑‑‑ Reglns. IV.3, IV.4 & 31.11(a) ‑‑‑ Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss. 11, 12 & 33(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Demand of endorsement fee and recognition fee/affiliation fee‑‑‑Community participation project introduced by Government of the Punjab, under which private sectors could upgrade existing Government Schools and run them in the afternoon‑‑‑Secretary, Provincial Education Department directed Board of Intermediate and Secondary Education not to charge affiliated fee from such upgraded schools for a period of five years‑‑‑Petitioner executed agreement with Government to such effect‑‑‑Demand of recognition fee/application for by Board from petitioners‑‑­Validity‑‑‑Agreement executed between petitioners and Government was not binding on the Board being a statutory body‑‑‑Board had framed regulations qua recognition of institutions and had prescribed rate therefore‑‑‑Such rates were increased by Board from time to time‑‑‑Government had not prohibited Board from charging endowment fee from petitioners, but had deferred only affiliation fee for a period of five years by Board‑‑‑Petitioners had not challenged vires of letters on the basis of which Board had issued impugned notice to them‑‑‑Petitioners could not point out any clause of policy having been violated by respondents‑‑­Constitutional petition was not maintain able‑‑‑High Court disposed of constitutional petition with direction to Secretary, Education Department to look into the matter personally and pass an appropriate order strictly in accordance with law within specified time.

Federal Government Employees Housing Foundation v. Muhammad Akram Alizai, Deputy Controller, P.B.C., Islamabad PLD 2002 SC 1079 = 2002 PLC (C.S.) 1655; Messrs Airport Support Services v. The Airport Manager, Karachi Airport 1998 SCMR 2268; PLD 2001 SC 166 and Ali Mir's case 1984 SCMR 433 ref.

(b) Precedent‑‑‑

‑‑‑‑Every case is to be decided on its own peculiar facts.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Challenge to Government policy‑‑‑Constitution of Pakistan was based on trichotomy‑‑‑High Court had only jurisdiction to interpret the law, but had no Jurisdiction to take the role of policy maker‑‑‑Constitutional petition would not be maintainable to challenge policies of Government.

Zameer Ahmad's case PLD 1975 SC 667 and Zameer Ahmad's case 1978 SCMR 327 ref.

Ikram‑ud‑Din Khan, Muhammad Safdar Sheikh and Ms. Rabia Bajwa for the Petitioners.

Ms. Shama Zia, Law Officer for Respondent No. 3.

Shahid Waheed for Respondent No.4.

Muhammad Hanif Khatana, Addl. A.‑G.

2003 Y L R 440

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

ABID HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 149 and Criminal Revision No. 60 and Murder Reference No.265 of 1998, heard on 28th November, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(6)‑‑‑Appreciation of evidence‑‑­Accused's version with respect to the possession of the premises was not believable and it did not demolish the complainant's assertion‑‑‑Natural ocular testimony could not be discarded‑‑‑Accused had not denied his participation in the occurrence, but had given a different story which did not appear plausible in the perspective of the incident‑‑­Probabilities on which five co‑accused in the case had been acquitted by Trial Court were possible‑‑‑Merely because a part of the prosecution story was disbelieved did not mean that the entire story had to be disbelieved‑‑‑Rule of 'falsus in uno falsus in omnibus" being not applicable, Court was required to sift grain from the chaff‑‑­Prosecution version was more plausible and sensible‑‑‑After failure of the accused side in establishing that they were justified in protecting their possession, accused was guilty of manslaughter not amounting to murder under S.302(b), P.P.C.‑‑‑Conviction and sentence of death of accused were upheld in circumstances.

Sardar Muhammad Ishaq Khan for Appellant.

Malik Muhammad Nawaz Khan for the Complainant.

Date of hearing 28th November, 2002.

2003 Y L R 449

[Lahore]

Before Abdul Shakoor Paracha, J

Dr. KAMRAN MASOOD‑‑‑Appellant

Versus

Ch. SAADAT KHALID‑‑‑Respondent

Second Appeal from Order No. 31 of 2001, heard on 24th September, 2002.

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

‑‑‑‑Ss. 2(i) 8c 13(2)(i)‑‑‑Tenant holding over after determination of lease‑‑‑Time for payment of rent‑‑‑Terms and conditions‑of previous lease agreement ‑‑‑Applicability‑‑­Such tenant must be deemed to be governed by terms and conditions of previous agreement‑‑‑Where previous agreement contained condition as to date of payment of rent, which stipulated to be payable in advance on first of every month and if not so paid or tendered within fifteen days after expiry of specified date, then tenant would be deemed to have committed default and could not claim sixty days allowed in case under later part of S.13(2)(i) of the Ordinance.

Mst. Iqbal Begum and 4 others v. Mian Manzoor‑ul‑Islam 1978 SCMR 365;

Muhammad Ashraf v. Muhammad Sharif and 3 others PLD 1971 Lah. 610; Mst. Iqbal Begum and 4 others v. Mian Manzoor‑ul‑Islam 1978 SCMR 365; Abdur Razzaq v. Mst. Shahida Nasreen and 2 others 1987 CLC 1530; Haji Noor‑ul­-Hassan v. District Judge, Dera Ismaeel Khan and others 1985 CLC 2620; Mst. Zarina Khawaja v. Agha Muhmood Shah PLD 1988 SC 190; Muhammad Yousaf v. Abdullah PLD 1980 SC 298; Muhammad Younas Malik v. Zahida Irshad 1980 SCMR 184 and Dr. Surraya Mateen and others v. Mst. Akhtar‑un‑Nisa 1995 MLD 456 ref.

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

‑‑‑‑S.13(2)(i)‑‑‑Default in payment of rent by tenant holding over after determination of lease‑‑‑Monthly rent fixed in previous agreement was Rs. 3, 900 payable by 5th of each month‑‑‑Nothing was available on record to show that tenant had offered to landlord. rent of alleged. period for payment within fifteen days after expiry of specified date‑‑‑Tenant had not placed on record application for deposit of rent or order of Rent Controller granting such permission‑‑­Challans showing payment of rent placed on record did not show, when rent for alleged period had been deposited‑‑‑Tenant had taken contradictory stand regarding rate of rent before Rent Controller at the time of passing the order under S.13(6) of the Ordinance‑‑­Had tenant paid rent at agreed rate after obtaining permission from Rent Controller, he would have not disputed rate of rent with plea that rate of rent was Rs.2, 000 per month, which was being deposited by him‑‑­Fixation . of tentative rent Q Rs.3,000 by Rent Controller negated such plea of tenant‑‑­Default in payment of rent had been proved‑‑­High Court upheld order of eviction of tenant passed by Appellate. Court.

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

‑‑‑S.13(3) (ii)‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Disputed shop formed part of building, wherein school was being run by landlord‑‑‑Landlord required shop in good faith for purpose of school‑‑‑Statement of landlord on oath with regard to his personal bona fide need had not been shaken in cross ­examination‑‑‑Protection of S.13(4) of the Ordinance would be available to tenant, in case shop was not occupied by landlord after its vacation‑‑‑High Court dismissed appeal of tenant and upheld order of his ejectment passed by Appellate Court.

PLD 1997 SC 564 rel.

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

‑‑‑‑Ss. 13(6) & 15‑‑‑Tentative rent order passed under S:13(6) of the Ordinance, non­ compliance of‑‑‑Rent Controller rejected application of landlord for striking off defence of tenant‑‑‑Appellate Court reversed such finding of Rent Controller ‑‑‑Validity‑‑­ Rent Controller had not exercised jurisdiction vested in him under law to strike off defence of tenant‑‑‑Appellate Court had rightly observed that tentative rent order had been violated and tenant had committed default in payment of rent, thus, had proceeded to record finding against him‑‑‑High Court dismissed appeal of tenant in circumstances.

Abdur Razaq v. Shahida Nasreen 1987 CLC 1530; Ghulam Yasin v. Bakhshu Mal PLD 1973 Kar. 228; Muhammad Hussain and another v. Mehraj Din and another PLD 1965 Lah. 179 and Syed Haji Abdus Samad v. Ghulam Rasul and others 1988 SCMR 1832 ref.

(e) Appeal (civil)‑‑‑

‑‑‑‑ Appeal in continuation of original proceedings of Civil Court‑‑‑Appellate Court has same powers, which are enjoyed by Court of original jurisdiction.

Sheikh Muhammad Ilyas for Appellant.

Babar Ali for Respondent.

Date of hearing: 24th September, 2002.

2003 Y L R 457

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD JAMIL‑‑‑Petitioner

Versus

Mst. IRSHAD BEGUM‑‑‑Respondent

First Appeal from Order No. 32 of 2002, decided on 5th November, 2002.

(a) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S.17‑‑‑Bona fide personal need of landlady‑‑‑Landlady residing at place T wanted to shift to place M in disputed house‑‑‑Plea of tenant was that landlady wanted to sell the house after its vacation as she had executed an agreement to sell with another lady; and that her son studying at M was staying in Hostel‑‑‑Rent Controller accepted ejectment petition‑‑‑ Validity‑‑­Alleged sale agreement had not been produced in evidence‑‑‑Stamp vendor produced by tenant to prove sale agreement had admitted that stamp paper was purchased in the name of landlady but that landlady had never come to him regarding sale agreement and he had not entered same in his register‑‑‑Register of stamp vendor did not contain signature or identity card number of landlady‑‑‑Such solitary statement of stamp vendor had not been corroborated by any other independent evidence‑‑‑Landlady while appearing as witness had in clear words stated that she intended to shift to M and wanted to reside there in disputed house‑‑­Assuming that landlady owned an independent house at place T even then law did not give either to tenant or Rent Controller power to determine, where she should personally reside‑‑Landlady as her own witness was the best witness to make out the case of personal bona fide need‑‑­Landlady had proved that she wanted to live in the disputed house with her children, who had grown up‑‑‑Disputed house was not exclusively required for landlady's son for purpose of studying at M‑‑‑High Court dismissed appeal in circumstances.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑-

‑‑‑‑S. 24‑‑‑ Appeal‑‑‑ Application for production of additional, evidence‑‑­Documents sought to be produced by appellant were neither essential nor necessary for enabling Appellate Court for pronouncing judgment‑‑‑Application was dismissed in circumstances.

Ch. Habib Ullah Nehang for Appellant.

Syed Muhammad Ali Shah for Respondent.

Date of hearing: 23rd October, 2002.

2003 Y L R 472

[Lahore]

Before Mian Muhammad Jahangier, J

ABDUL REHMAN‑‑‑Petitioner

Versus

Haji GHAZAN KHAN‑‑‑Respondent

Civil Revision No.370/D. of ‑1995, heard on 27th June, 2002.

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

‑‑‑‑Ss.6 & 13‑‑‑Demands of pre‑emption‑‑­Talb‑i‑Muwathibat, Talb‑i‑Ishhad and Talb‑i­Khusumat‑‑‑Failure of pre‑emptor to make such Talbs in accordance with law‑‑‑Effect‑‑­Pre‑emptor having superior right of pre­emption on basis of any qualification would carry no weight and his such right would stand extinguished on his failure to make Talbs.

Nadir Khan v. Itebar Khan 2001 SCMR 539; Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others PLD 2002 Pesh. 21 and Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179 ref.

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

‑‑‑‑S. 13‑‑‑Pre‑emption suit ‑‑‑Talb‑i‑Muwa­thibat‑‑‑Mentioning or non‑mentioning of particulars of such Talb in pleadings‑‑­Effect‑‑‑Proof of such Talb‑‑‑Essential ingredients stated.

When Talb‑i‑Muwathibat is alleged to have been made, it means that pre‑emptor has to establish at the stage of evidence the particulars of Majlis, the person who provided knowledge for sale and the place where the meeting was held. If these ingredients of Talb‑i‑Muwathibat are not fulfilled by pre‑emptor by appearing himself in witness‑box and by producing relevant witnesses, it would mean that he had failed to fulfil the Talb‑i‑Muwathibat. These ingredients may not be mentioned in pleadings, but if these ingredients are mentioned generally in pleadings, then evidence of pre‑emptor should not be contradictory to the facts incorporated in plaint reflecting on Talb‑i‑Muwathibat and if there are material contradictions and any material witness is withheld by the pre‑emptor, it shall be presumed that he had failed to make Talb‑i‑Muwathibat and that had he produced any witness connected with Talb‑i‑Muwathibat, he might have deposed against pre‑emptor.

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

‑‑‑‑S.13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 129(g)‑‑‑Pre‑emption suit ‑‑‑Talb‑i­Ishhad‑‑‑Proof‑‑‑Establishing date of knowledge essential for successfully fulfilling such Talb‑‑‑Where date of knowledge was not established, then sending of notice through registered AID attested by two truthful witnesses would carry no importance‑‑­Withholding two truthful witnesses at the stage of evidence would give rise to presumption that had they appeared, they would have deposed against pre‑emptor‑‑­Mentioning of time, date, place and name of informer in plaint was not essential‑‑‑Where requirement of Talbs were mentioned in plaint, then such facts must be compared with evidence and benefit of doubt would be given, if same arose out of material contradiction.

(d) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 129(g) ‑‑‑ Pre‑emption suit ‑‑‑ Talb‑i‑Ishhad and Talb‑i‑Muwathibat‑‑‑Proof‑‑‑Name of informer about sale was not mentioned in plaint and notice of Talb‑i‑Ishhad‑‑‑Pre­ emptor while in witness‑box named someone as informer, but did not produce him in evidence‑‑‑Held, non‑mentioning of name of informer in plaint and then mentioning his name in evidence was an improvement in the claim of pre‑emptor ‑‑‑Withholding informer would mean that had he appeared as witness, he would have deposed against pre‑emptor‑‑­ Pre‑emptor had ,failed to fulfil the requirement of Talb‑i‑Muwathibat in circumstances.

Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651 and Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 ref.

Razzaq A. Mirza for Petitioner, Mujeeb-ur‑Rehman Kiani for Respondent.

Date of hearing: 27th June, 2002.

2003 Y L R 477

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD AFZAL---Petitioner

Versus

MANZOOR ELAHI---Respondent

Civil Revision No.572 of 1998, heard on 18th October, 2002.

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

----S.13---Evidence---Drawing of other view of deposition ---Talb-i-Muwathibat---Date of knowledge of sale ---Proof---Pre-emptor or his witness did not state the specific date of knowledge as had been mentioned in the plaint but they failed to adhere to the same and made loose statement---Judgment and decree passed by the Trial Court in favour of the pre-emptor was set aside and the suit was dismissed by the Appellate Court ---Pre­emptor contended that being a layman of ordinary prudence, his as well as his witness's deposition could not be interpreted in the manner as it had been done by the Appellate Court---Validity-- Assertion in the plaint was that the pre-emptor came to know about the sale on 18-2-1993, but while appearing as witness, the pre-emptor did not state like that and instead a loose deposition was made that it was a year and nine months from the day when the evidence was recorded---Such statement did not coincide with the assertion made and the date pleaded in the plaint---Statement of the witnesses were recorded on 14-11-1994, the Appellate Court rightly calculated the period and came to the conclusion that the date of knowledge would have been 14-2-1993, and not 18-2-1993, as was asserted in the plaint thus it was not a case of making jumping demand (Talb-i­Muwathibat) as was envisaged by S.13 of Punjab Pre-emption Act, 1991---Appellate Court, in the present case, did not mis-read or non-read the depositions made by the pre­emptor or his witness---Mere possibility of another view of the depositions made by the witnesses would not render the finding given by the Court as illegal ---Pre-emptor or his witness could quite easily state the date of knowledge as had been mentioned in the plaint but they failed to adhere to the same and made a loose statement---Such loose statement had to be interpreted by the Court---Appreciation of evidence made and the view taken by the Appellate Court was consistent with the law on the subject which did not need interference by High Court in revisional jurisdiction.

Muhammad Ayub Khan v. Muhammad Zaman and another PLD 1990 Pesh. 181; Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883; Muhammad Ajiab and another v. Muhammad Afzal and 2 others 1998 SCMR 2396; Mst. Amir v. Soini 1997 MLD 2376 and Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651 distinguished.

Ch. Mumtaz Ahmad Bhalwana for Petitioner.

Ch. Inayatullah Cheema for Respondent.

Date of hearing: 18th October, 2002.

2003 Y L R 480

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD DIN CHAUDHRY‑‑‑Petitioner

Versus

BORDER AREA COMMITTEE through Chairman and, another‑‑‑Respondents

Writ Petition No.69‑R of 2001 and Civil Miscellaneous No. 1 of 2002, heard on 24th October, 2002.

West Pakistan Land Reforms Regulation, 1959 [M. L. R. 64]‑‑‑

‑‑‑‑Para. 9‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Principle of res judicata‑‑‑Applicability‑‑­Past and closed transaction‑‑‑Scrutiny of allotment Border Area Committee, jurisdiction of‑‑‑Land subject‑matter of the Constitutional petition was situated in border belt‑‑‑Petitioners had purchased the land from a person in whose favour the allotment was finalized‑‑‑Application against the allotment was moved before the Border Area Committee fifteen years after the allotment alleging fraud and illegalities committed by the allottee‑‑‑Border Area Committee reopened the matter and cancelled the allotment for the reason that the proposal of allotment was neither confirmed nor any such allotment could be made ‑‑‑Validity‑‑­Allotment had already been scrutinized by the Border Area Committee and upheld by it vide order dated 25‑4‑1982‑‑‑Border Area Committee could not review its earlier adjudication or nullify the legal efficacy thereof‑‑‑Mere existence of power to scrutinize did not authorize the Committee to make repeated scrutiny leaving the matter of allotment all the time open for scrutiny and leaving' the sword hanging on the head of allottee‑‑‑Unending scope for litigation was neither envisaged nor warranted by law‑‑­Though doctrine of res judicata might not apply directly, yet the principle underlying the same was appropriately attracted in such like matters‑‑‑Allotment was wrongly cancelled by the Border Area Committee and the same was of no legal efficacy.

Bashir Ahmad v. Kamaluddin and others 1981 SCMR 1180; Mardan Khan v. Mst. Bushri and others 1989 SCMR 452; Hussain Bibi and others v. Settlement Commissioner and others 1988 CLC 2289; Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Chahat v. Border Allotment Committee 1987 CLC 2378 and Nazir Ahmad and others v. Border Area Committee 1988 CLC 2277 ref.

Ch. Muhammad Anwar Khan for Petitioner.

Ch. Din Muhammad Meo for Applicants (in C. M. No. 1 of 2002).

Aamir Zahoor Chohan for Respondent No. 1

Nemo for Respondent No. 2.

Date of hearing: 24th October, 2002.

2003 Y L R 482

[Lahore]

Before :Mian Saqib Nisar, J

MUHAMMAD SHAFI and 5 others---Petitioners

Versus

MUHAMMAD SHARIF and 9 others---Respondents

Writ Petition No.5602 of 1997, heard on 9th October, 2002.

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

----S.115---Revision application, withdrawal of---Applicant withdrew his revision application with the object to approach the proper forum because, during the pendency of revision application before Appellate Court, the law was changed and the revision could only be filed and adjudged by High Court--­Revision was refiled in the High Court and was duly entertained---Law was again changed and matter had been entrusted to Lower Appellate Court for disposal ---Effect--­Withdrawal of revision application from Appellate Court by the applicant was not with an object to abandon and give up his claim in circumstances.

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

----S. 115---Revision application, refiling of---Limitation---Inclusion of the period when revision was pending before Appellate Court, towards initial period of filing of revision--­Applicant withdrew his revision application with an object to approach the proper forum because, during the pendency of revision application before Appellate Court, the law had changed and the revision could only be filed and adjudged by High Court---Revision was re-filed within 26 days and the same was duly entertained by High Court---Plea raised by the respondent was that entire time during which the matter remained pending before the Appellate Court should be counted towards the limitation of the applicants invoking the revisional jurisdiction of High Court--­Validity---Revision application was filed before the Appellate Court which was then the competent forum---Applicant had re-filed the revision application within 26 days which was a reasonable time which had been availed for refiling of the revision---Plea raised by the respondent was unfounded and the same was not accepted by High Court---Revision applica­tion was not barred by time in circumstances.

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

----Arts. 23 & 199---Specific Relief Act (1 of 1877), S.21---Civil Procedure Code (V of 1908), O. VII, R.11 --- Constitutional petition---Protection to property---Contract not specifically enforceable---Rejection of plaint---Imposing of condition under agreement to restrain owner of a property from alienating the property---Dispute between the parties was that the suit property was mortgaged in favour of the petitioner and a condition was imposed on the owner of the property that he could not sell the property till the same was redeemed---Owner of the property sold the same in favour of respondents---Petitioner assailed the sale made in favour of the respondents on the ground that the property could not be sold by the owner---Trial Court rejected the plaint and the Appellate Court maintained the order passed by the Trial Court---Validity---No clog/condition could be imposed under any agreement/instrument between the parties regarding sale of property which was against the fundamental right of owner, to sell and dispose of the property---Suit filed on the basis of the condition in the mortgage was violative of fundamental right and the condition was void ab initio and was not enforceable under law---Where the suit of petitioners was incompetent, lacking cause of action, the plaint had been rightly rejected by the Trial Court---High Court in Constitutional jurisdiction declined to interfere with the judgment passed by Appellate Court below.

Dilmir v. Ghulam Muhammad and others PLD 2000 SC 403; Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and Muhammad Riaz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397 ref.

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

----O.XXI, R.32---Execution of decree--­Principle---Where no decree has been passed in favour of plaintiff, such decree cannot be enforced under the provisions of O.XXI, R. 32, C. P. C.

Ch. Zafar Iqbal and Sh. Shaharyar for Petitioners.

Ch. Hafeez Ahmed for Respondents.

Date of hearing: 9th October, 2002.

2003 Y L R 487

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL KARIM ‑‑‑Petitioner

Versus

ALAM SHER and another‑‑‑Respondents

Civil Revision No.2569 of 1996, heard on 7th November, 2002.

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

‑‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.31‑‑‑Requisite Talb, performing of‑‑‑Failure of Trial Court to advert to the reasoning on issues‑‑‑Suit was decreed by the Trial Court in favour of the pre‑emptor while the Appellate Court allowed the appeal and dismissed the suit‑‑‑Plea raised by the pre­emptor was that the Appellate Court without adverting to the reasoning of the Trial Court on the issue of performance of requisite Talb dismissed the appeal‑‑‑Validity‑‑‑Such judgment of Appellate Court was not in accordance with the dictum laid down by Supreme Court in case titled Madan Gopal and 4 others reported as PLD 1969 SC 617‑‑­Judgment and decree passed by the Appellate Court was set aside and the case was remanded to Appellate Court for deciding the appeal afresh.

Madah Gopal v. Maran Bepari PLD 1969 SC 617 fol.

Muhammad Sharif v. Abdul Majid 1982 CLC 208; Munawar Hussain v. Ali Hussain 1979 CLC 838; Alloo v. Sher Khan and others PLD 1985 SC 382; Muhammad Zubair v. Saleh Muhammad 1993 CLC 1047; Muhammad Ilyas v. Muhammad Siddique 1989 SCMR 1496; Muhammad Bashir v. Allah Rakha 1990 CLC 1,715; Haji Noor Muhammad v. Abdul Ghani 2000 SCMR 329; Muhammad Aslam v. Muhammad Hussain 1999 SCMR 1332; Khalid Hussain v. Muhammad Baqir and others PLD 2002 Lah. 280; Muhammad Hanif v. Mst. Munawar Bibi 1999 SCMR 2230; 1995 CLC 769; Altaf Hussain v. Abdul Hameed and others 2000 SCMR 314 and Mst. Amir Begum v. Muhammad Naeem Khan PLD 2000 SC 839 ref.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Material irregularity committed by Appellate Court‑‑‑Effect‑‑‑Where the Appellate Court has committed material irregularity, High Court has ample jurisdiction to disturb such findings of facts.

Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 fol.

Sh. Naveed Sheryar for Petitioner.

A. G. Tariq Chaudhry for Respondent.

Date of hearing: 7th November, 2002.

2003 Y L R 492

[Lahore]

Before Maulvi Anwarul Haq, J

IBRAR HUSSAIN ‑‑‑Petitioner

Versus

ASSISTANT COMMISSIONER, GUJAR KHAN and 3 others‑‑‑Respondents

Writ Petition No.2665, 2757 of 2000 and 109, 108 of 2001, heard on 4th October, 2002.

Land Record Manual‑‑‑-

‑‑‑‑ Chap. 3, Part 4, Para. 3.12‑‑­ Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition ‑‑‑Patwari, selection of ‑‑‑Patwaris appointed were non‑residents of Tehsil in which appointment was made‑‑­ Petitioners, who were candidates for the posts of Patwaris their grievance was that, the Authorities, instead of selecting Patwaris from the candidates of the Tehsil in which they were to be appointed, selected the candidates residents of other Tehsil‑‑Validity‑‑‑Instructions contained in Chap. 3, Part 4, Para. 3.12 of Land Record Manual were still existing and were being followed continuously over decades‑‑‑Object of selecting person from the same Tehsil was that it was the village official who being at the lowest rung of the Revenue hierarchy of Province, was responsible for collecting as well as providing the requisite information for maintaining the Revenue Records, some of which were prepared on periodical basis and some like Khasra Girdawaris were to be prepared crops‑wise and thereafter the daily transactions were to be recorded in Roznamcha Waqiati‑‑‑Such a person had to be from the vicinity in respect whereof the Revenue Records and other documents were to be prepared‑‑‑High Court observed that such long standing instructions could not be ignored‑‑‑Rules were there to prescribe the qualifications for appointment to the posts of Patwaris and the Rules were to be strictly followed in the matter of appointment of Patwaris‑‑‑High Court directed the Authorities to fill the vacancies from the petitioners on the basis of their seniority position or as per their position in the list of Patwar pass persons being maintained by the Sub‑Division‑‑‑High Court further directed the Authorities that in future also the vacancies should only be filled from the bona fide residents of the Tehsil under the provisions of para. 3.12 of Land Record Manual.

Malik Asif Taufique Awan for Petitioner.

Raja Saeed Akram, A.A.‑G. for Respondents.

Date of hearing: 4th October, 2002.

2003 Y L R 495

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

SHABNAM ASHRAF‑‑‑Appellant

Versus

MUHAMMAD M. IQBAL‑‑‑Respondent

Regular First Appeal No. 1 of 1999, heard on 7th October, 2002.

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

‑‑‑‑S.116‑‑‑Tenant holding over ‑‑‑Mesne profits‑‑‑Lease of the tenant had expired and lessee was entitled to possession ‑‑‑Mesne profits could be given for the damages for a trespasser against the tenant, who was holding over after lawful determination of her tenancy ‑‑‑Mesne profit could be claimed from the date when the tenant ceased to hold the premises in dispute as tenant had become trespasser.

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

‑‑‑‑S.116‑‑‑Registration Act (XVI of 1908), Ss. 17 & 49(a)‑‑‑Tenant was in occupation of the house under the lease agreement which was not a registered document ‑‑‑Effect‑‑­Instrument requiring compulsory registration but not registered,, would not operate to create, declare, assign limit or extinguish any right, title or interest in any immovable property‑‑‑Such instrument could be received in evidence for collateral purpose.

1982 SCMR 1056 and Messrs Rehman Cotton Factory v. Messrs Nichimen Company Limited (formerly Messrs Japan Cotton and General Trading Co. Ltd.), Karachi PLD 1976 SC 781 ref.

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

‑‑‑‑Preamble‑‑‑Applicability of Act in Capital Territory of Islamabad‑‑‑Transfer of Property Act, 1882 though was not applicable to the Capital Territory of Islamabad yet its principles would apply.

1982 SCMR 1056 ref.

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

‑‑‑‑S.116‑‑‑Tenant by sufferance‑‑‑Lease of the tenant had expired and was not renewed and tenant was served with the notice to vacate the house‑‑‑Person who had purchased the property during existence of the tenancy had not accepted the rent‑‑‑Status of the tenant, in circumstances, was of a "tenant by sufferance" and not of "holding over"‑‑­Tenant, therefore, was a trespasser after the expiry of lease and issuance of notice.

1982 SCMR 1056; 1984 SCMR 444; Dr. Mrs. Nasreen v. Pakistan and others 2001 CLC 1025; Messrs Rehan Cotton Factory v. Messrs Nichimen Company Limited (formerly Messrs Japan Cotton and General Trading Co. Ltd.), Karachi PLD 1976 SC 781; Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi PLD 1970 Lah. 455; Sultan Muhammad v. Muhammad Ashraf and 4 others 1991 CLC 269 and Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad v. Mst. Ismat Qayyum Malik PLD 1994 Lah. 360; 1982 SCMR 1056 and Sh. Liaqat Ali v. Riaz Ahmad C.P.L.A. No. 1322 of 1999 ref.

Malik Qamar Afzal for Appellant.

Malik A. Rashid Awan for Respondent.

Date of hearing: 7th October, 2002.

2003 Y L R 507

[Lahore]

Before Muhammad Farrukh Mahmud and Farrukh Lateef, JJ

MICHEAL MASIH and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 400 of 1999 and Murder Reference No. 468 of 1999, heard on 28th August, 2002.

(a) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss. 302/324/34/114‑‑‑Appreciation of evidence‑‑‑First accused had not pressed his conviction as his infliction of dagger blows on the person of the complainant had been fully proved‑‑‑Eye‑witnesses and the complainant had given straightforward account of the occurrence and their statements had been supported by the medical evidence and corroborated by the recovery of blood‑stained dagger at his instance‑‑­Appeal qua the said accused was dismissed by the High Court‑‑‑‑Second accused was empty­ handed and had been assigned the same role as to the acquitted co‑accused‑‑‑Section 34, P. P. C. had not been found applicable and if the same had not been available against the acquitted co‑accused, same could also not be applied against the second accused‑‑‑Incident was a sudden flare up and each individual was liable for its own action‑‑‑No appeal or revision had been, preferred against the acquitted co‑accused and against the first accused although both had been acquitted of the charge under S. 302/34, P. P. C. ‑‑‑Conviction and sentence passed against the second accused were set aside in circumstances and he was acquitted of the charge by giving him benefit of doubt.

(b) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss. 302/324/34/114‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑­Complainant having received injuries on his person had fully implicated the third accused‑‑‑Evidence of the complainant could not be rejected as he was a natural witness whose presence at the spot could not be denied‑‑‑Other eye‑witness had been resident of the village and was not related to the deceased or the complainant and had no motive to falsely implicate the third accused‑‑‑Ocular evidence qua the third accused had been corroborated by medical evidence and the recovery of blood‑stained dagger at the instance of the third accused‑‑­Complainant party had been proved to have reached the place of occurrence and had sought explanation from the co‑accused as to why he had given beating to their brother and evidence had shown that it led to the exchange of hot words and fighting had ensued sudden flare up had taken place and no previous enmity existed between the parties‑‑‑Occurrence had not been a pre­meditated one and it was a case of individual liability of each accused‑‑‑Matter had not been reported to the police either by the complainant or the prosecution witnesses on the date of occurrence‑‑‑Conviction of the third accused was maintained but his sentence was altered from death penalty to life imprisonment under S.302(b), P. P. C. in the pecular circumstances of the case.

Ch. Muhammad Yaqub Kung for Appellant.

Masood Sabir for the State.

Dates of hearing: 26th, 27th and 28th August, 2002.

2003 Y L R 512

[Lahore]

Before Muhammad Farrukh Mahmud, J

NAZAR HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 446 of 2000, heard on 10th September, 2002.

Prevention of Corruption Act (II of 1947)‑‑

‑‑‑‑S.5(2)‑‑‑Penal Code (XLV of 1860), 5.161‑‑‑Appreciation of evidence‑‑­Prosecution case revolved around the statement of only one prosecution witness i.e. the complainant‑‑‑Allegations made by the complainant at the very first instance had been explained and rebutted by the accused when his statement was recorded by the Magistrate‑‑‑Statement of the complainant to the extent that he had wanted the loan sanctioned in his favour and Rs. 2, 000 had been demanded from him by the accused was not supported by any other evidence oral or documentary‑‑‑Evidence of the complainant and the Circle Officer was relevant to the extent that a marred note had been recovered from the accused but the accused had come out with a plausible explanation‑‑‑Only witness who could state about the conversation which had taken place between the complainant and the accused had not been produced and his statement had not been recorded by the Magistrate‑‑‑Case of the prosecution was not free from doubt‑‑­Impugned judgment was set aside and accused was acquitted by extending him benefit of doubt.

Ch. Faqir Muhammad for Appellant.

Sh. Muhammad Raheem for the

Date of hearing: 10th September

2003 Y L R 516

[Lahore]

Before Ch. Ijaz Ahmed, J, SHAKEEL AHMAD and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 6614/B of 2002, decided on 29th October, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 452/354/440/148/149‑‑‑Bail‑‑‑Section 452, P. P. C. was not attracted in the case as the accused was in possession of the house in dispute and nobody was injured from the complainant side‑‑‑Other offences mentioned in the F.LR. did not fall within the prohibitory clause of S.497(1), Cr.P.C.‑‑­Civil litigation regarding the house in question was pending between the parties‑‑­Case against accused required further inquiry and bail could not be withheld as punishment‑‑ Accused were admitted to bail accordingly.

Amir v. State PLD 1972 SC 277; Manzoor and 4 others v. The State PLD 1972 SC 81 and Ch. Abdul Malik v. The State PLD 1968 SC 349 ref.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Benefit of doubt‑‑‑Benefit of doubt has to be given to accused at bail stage and bail would not be withheld by way of punishment.

Amir v. State PLD 1972 SC 277; Manzoor and 4 others v. The State PLD 1972 SC 81 and Ch. Abdul Malik v. The .State PLD 1968 SC 349 ref.

Safdar Hussain Tarar for Petitioner.

Muhammad Hanif Khatana, Addl. A.G.

2003 Y L R 518

[Lahore]

Before Bashir A. Mujahid, J

FEHMIDA BEGUM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 996 and 784 of 2001, heard on 8th November, 2002.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑­Evidence of last seen furnished by the real brothers was not corroborated by any other independent source and it was not sufficient to maintain the conviction of accused for murder‑‑‑Only evidence against the female accused was of motive which had remained unproved during the trial‑‑‑Complainant had himself exonerated the accused during the investigation and had implicated another set of accused for the murder of the deceased‑‑‑Accused were acquitted in circumstances.

Ch. Khurshid Anwar Bhinder for Appellant.

Saifullah Khalid for the State.

Aamar Shahzad Mir for the Complainant.

Date of hearing: 8th November, 2002.

2003 Y L R 522

[Lahore]

Before Khawaja Muhammad Sharif and Riaz Kayani, JJ

IFTIKHAR AHMED alias KHARI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 753, 757, 758 and Murder Reference No. 217‑T of 1998 of 1998, heard on 16th December, 1999.

Explosive Substances Act (XI of 1908)‑‑‑-

‑‑‑‑Ss. 3, 6 & 4‑‑‑Appreciation of evidence‑‑­Accused had been apprehended at the spot after the blast and incriminating recoveries had been effected from him‑‑‑Conviction of accused was maintained accordingly‑‑­Accused was 13 years of age at the time of occurrence and his sentence of death was altered to imprisonment for life in circumstances ‑‑‑Co‑accused were not apprehended at the spot and from them only explosive material was recovered‑‑‑No body had seen the co‑accused causing explosion with the explosive substance‑‑‑Conviction and sentence of co‑accused under Ss. 3 & 6 of the Explosive Substances Act, 1908, were consequently set aside and instead they were convicted under S.4 of the said Act and sentenced to 14 years' R.I each in circumstances.

Pervaiz Inayat Malik for Appellant.

Ch. Muhammad Bashir, A.A.‑G. for the State.

Date of hearing: 16th December, 1999.

2003 Y L R 529

[Lahore]

Before Abdul Shakoor Paracha, J

DILDAR HUSSAIN ‑‑‑Petitioner

versus

NASEEB KHAN and 7 others‑‑‑Respondents

Criminal Miscellaneous No. 440/13 of 2002, decided on 4th November, 2002.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss. 337‑A(iii)l 337H(ii)11471 1481149‑‑‑Boil, cancellation of‑‑‑Neither any specific role nor any injury on the vital part of the body of the injured witness was attributed to the accused‑‑‑One accused was 70 years old‑‑­Previous enmity existed between the parties‑‑­No reasonable ground was available to believe the accused being guilty of the offence for which they were charged‑‑‑Impugned order granting bail to accused did not call for any interference‑‑‑Petition for cancellation of bail was dismissed accordingly.

PLD 2002 SC 590; PLD 1997 Pesh. 173; PLD 1986 SC 179 and 1999 PCr.LJ 1260 ref.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.337‑A(iii)l 337‑H(ii)l 14711,48/149‑‑‑Bail, cancellation of‑‑‑Grounds of delay in submission of the challan, recovery being fake and doubtful and one accused having been declared innocent in investigation, were all of superficial and fictitious nature‑‑­Magistrate had granted bail to accused on conjectures and surmises by holding that their guilt required further inquiry‑‑‑Bail allowed to accused was cancelled in circumstances.

PLD 1982 SC 182; Shah Mir v. The State 1994 PCr. LJ 2151; Muhammad Saleem v. The State 1994 PCr.LJ 2283 and 1999 PLJ 2990 ref.

Sh. Muhammad Ahmad for Petitioner.

Raja Zahur Ahmad for Respondents.

Najam Akhtar Bhatti for the State.

2003 Y L R 533

[Lahore]

Before Ch. Ijaz Ahmad, J

NAJAM SETHI ‑‑‑Petitioner

versus

Kari SHAMIM AHMED ANJUM and another‑‑‑Respondents

Writ Petition No. 26415 of 1997, heard on 20th November, 2002.

(a) Administration of justice‑‑

‑‑‑‑When a thing is to be done in a particular manner it must be done in that particular manner and not otherwise.

Khalid Nawaz v. State 1999 PCr.LJ 391; Muhammad Malik alias Maloo v. State 1989 PCr.LJ 599 and Atta Muhammad Qureshi v. The Settlement Commission PLD 1971 SC 61 ref.

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

‑‑‑‑S. 202‑‑‑Postponement of issue of process‑‑‑Duty of Magistrate‑‑‑Magistrate before issuing process to the accused in private complaint is under statutory obligation to satisfy himself for the purpose of ascertaining the truth or falsehood of the complaint.

J.S. Daver v. Iqbal Qadir and another PLD 1962 (W.P.) Pesh. 167 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 500, 501 & 502‑‑‑Criminal Procedure Code (V of 1898), Ss. 200 & 202‑‑­ Constitution of Pakistan (1973), Art. 199‑‑­ Constitutional petition‑‑‑Quashing of private complaint‑‑‑Reducing the substance of the examination of the complainant to writing and its having been signed by the complainant and also by the Magistrate was an essential requirement of S.200, Cr.P.C.‑‑­ Magistrate was also under obligation to satisfy himself after applying his independent mind about a prima facie case having been made out against the accused before summoning him‑‑‑Magistrate having initiated the proceedings against the accused without following the mandatory provisions of law were ill‑founded ‑‑‑Complaint filed by the respondent was consequently quashed and the Constitutional petition was allowed accordingly.

Khalid Nawaz v. State 1999 PCr.LJ 391; Muhammad Malik alias Maloo v. State 1989 PCr. LJ 599; Atta Muhammad Qureshi v. The Settlement Commissioner PLD 1971 SC 61; J.S. Daver v. Iqbal Qadir and another PLD 1962 (W.P.) Pesh. 167; Saffar v. Qadar and another PLD 1963 (W.P.) Kar. 15; Anwar Mahmood and others v. Rashid‑uz­-Zaman PLD 1959 (W.P.) Lah. 186; Gulzar Ahmad v. Sindh‑Punjab Goods Transport Co. PLD 1966 (W.P.) Kar. 253 and Gulab Khan v. Fazal Hussain and another 1968 PCr.U 730 ref.

Ms. Asma Jahangir for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G.

Date of hearing: 20th November, 2002.

2003 Y L R 535

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL KHATTAB‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1249/B in Criminal Appeal No. 463 of 2002, decide on 31st October, 2002.

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

‑‑‑‑S. 426‑‑‑Suspension of sentence‑‑­Principle‑‑‑Court, no doubt, cannot enter into reappraisal of evidence which should be considered at the hearing of appeal, but where the impugned judgment suffers from any legal or jurisdictional error High Court would be competent under S. 426, Cr. P. C. to suspend the sentence of accused and grant him bail without even discussing the merits of the case and appreciating the evidence.

Noor Abdullah and others v. State 1981 SCMR 85; Jamshed Azam v. State 1990 SCMR 1393 and Farhat Azeem v. Waheed Rasool PLD 2000 SC 18 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑Ss. 3, 4 & 5‑‑‑Trial of the child‑‑­Complete procedure and mechansim is provided for the trial of the child under the Juvenile Justice System Ordinance, 2000, and if such provision of the said Ordinance is not followed, the trial will become illegal.

(c) Jurisdiction‑‑‑

‑‑‑‑ Total absence of jurisdiction can never be waived by the parties, nor an illegality in the order can be cured by consent of the parties.

Sultan Ali v. Khushi Muhammad 1983 SCMR 243; Peer Sabir Shah v. Shah Muhammad Khan PLD 1996 SC 66 and Khooshamonai Khan v. Provincial Government N.‑W.F.P. 2000 SCMR 1657 ref.

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

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), S.308‑‑‑Supension of sentence‑‑‑Additional Sessions Judge after the promulgation of the Juvenile Justice System Ordinance, 2000, on 1‑7‑2000, had no jurisdiction to record the evidence‑‑‑Recording of evidence of prosecution witnesses statement of the accused under S. 342, Cr. P. C. and defence evidence, had seriously prejudiced the case of the accused which was quite illegal‑‑‑Such illegality apparent on the record could not be overlooked even at ball stage‑‑‑Sentence of accused was suspended in circumstances and he was admitted to bail accordingly.

Sultan Ali v. Khushi Muhammad 1983 SCMR 243; Peer Sabir Shah v. Shah Muhammad Khan PLD 1996 SC 66; Maulvi Noor Muhammad and others v. The State 2000 PCr.LJ 1583; Khooshamonai Khan v. Provincial Government N.‑W.F.P. 2000 SCMR 1657; Noor Abdullah and others v. State 1981 SCMR 85; Jamshed Azam v. State 1990 SCMR 1393 and Farhat Azeem v. Waheed Rasool PLD 2000 SC 18 ref.

Malik Muhammad Rafique Khan for Petitioner.

Mukhtar Ahmad Gondal for the State.

2003 Y L R 540

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

RAFIA BEHRAM and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 2‑E of 2002, heard on 16th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.514‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss. 9/10‑‑‑Penal Code (XLV of 1860), Ss.409 & 109‑‑­ Prevention of Corruption Act (11 of 1947), S.5‑‑‑Forfeiture of surety bonds ‑‑‑Validity‑‑­ Petitioners had stood sureties for the accused in the Court of Special Judge and he was released on bail‑‑‑On reinvestigation of the matter by the NAB Authorities a Reference had been filed against the accused on the same allegations in the Accountability Court which due to non‑appearance of accused forfeited the bail bonds and directed the petitioners to make payment within one month through the impugned order ‑‑‑Validity‑‑­ Petitioners were not bound to produce the accused before the Accountability Court, or for that matter before the transferee Court where the matter was not at all transferred‑‑­ Impugned order passed by the Accountability Court, thus, was illegal and the same was set aside accordingly.

1994 PCr.LJ 1335; Anil Kumar Chatterjee and another v. The Crown PLD 1954 Dacca 175; Haji Abdul Ghani v. State PLD 1970 Kar. 46; Muhammad v. State 1977 PCr.LJ Kar. 46; Hassan v. State 1990 ALD 455(2); Haji Muhammad Amin and 3 others v. State 1996 PCr. LJ 311; Muhammad Amanullah v. State PLJ 1992 Cr.C. (Lah.) 319; Ballabhdas Motiram Gupta v. Emperor AIR 1943 Bom. 178; Bhoop Singh Kheri Singh v. State of Madhya Bharat AIR 1954 Madh. Bha. 8 and Amanullah's case PLD 1992 Lah. 347 ref.

Dr. Z. Babar Awan for Petitioner.

Tanveerul Islam Khan for the State.

Date of hearing: 16th October, 2002.

2003 Y L R 545

[Lahore]

Before Khawaja Muhammad Sharif J

A. RAHEEM and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5748/B of 2002, decided on 9th September, 2002.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss. 506/454/459‑‑‑Pre‑arrest bail‑‑‑Matter pending between the parties based on a written agreement was purely of civil nature, but efforts had been made to convert the same into criminal litigation‑‑‑Accused, according to F. I. R. were armed with fire‑arms, hatchets and Dandas but not a single scratch was sustained either by the complainant or any of the prosecution witnesses‑‑‑No detail of the articles allegedly taken away by the accused from the spot had been given‑‑‑Accused seemed to be respectable businessmen and the mala fides of the complainant and the police were floating on the surface‑‑‑Liberty of seven individuals was involved in the case which, prima facie, seemed to be outcome of the mala fides of the complainant who in connivance with the local police had got the same registered against the accused‑‑‑Interim bail already granted to the accused was confirmed in circumstances.

Muhammad Iqbal. Bhatti for Petitioners.

Maqbool Ahmad Qureshi for the State.

Shahid Mobeen for the Complainant.

2003 Y L R 546

[Lahore]

Before Sayed Zahid Hussain, J

Mirza MUHAMMAD ASIF through Legal Heirs‑‑‑Petitioner

versus

Soofi PEER MUHAMMAD‑‑Respondent

Civil Revision No.532‑D of 1998, heard on 12th November, 2002.

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

‑‑‑‑Ss. 6 & 13‑‑‑Suit for pre‑emption‑‑­Making of Talbs, proof of‑‑‑Notice of Talb‑i‑Ishhad issued by plaintiff one month after sale was silent as to where he acquired knowledge of sale of suit‑land, in whose presence and when‑‑‑Suit filed after about two months from issuance of notice of Talb‑i­Ishhad also did not disclose the date, place, time and persons in whose presence plaintiff had acquired knowledge or made Talb‑i­Muwathibat‑‑‑Important and essential aspect of the matter as to when and in whose presence Talb‑i‑Muawathibat was made by plaintiff, was totally missing the plaint‑‑­Pleadings, though need not contain evidence, but in case of that nature where essential ingredients and particulars about the very basis of right of pre‑emption i. e. making of Talbs were absent such omissions in notice and pleadings would attain significance as failure of making of Talbs in accordance with law, would result in extinguishment of right of pre‑emption ‑‑‑Trial Court, in circumstances, rightly, dismissed suit as plaintiff had failed to prove that he had made Talbs in accordance with law and Appellate Court below was not justified to reverse finding recorded by Trial Court.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Ikram‑ud‑Din and others v. Ghulam Ahmad Khan and others 1995 MLD 1689; Mumtaz Hussain and another v. Muhammad Achar and 2 others 1991 CLC 209; Ghulam Jilani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001; Mst. Sooban Bibi and 3 others v. Mst. Khatoon and 3 others PLD 2001 Lah. 245; Muhammad Gul v. Muhammad Afzal 1999 SCMR 724; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Nadir Khan v. Itebar Khan 2001 SCMR 539; Khalid Hussain through Aftab Hussain v. Muhammad Baqir and 2 others PLD 2002 Lah. 280 .and Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219 ref.

(b) Practice and procedure‑‑‑

‑‑‑‑ Party who had taken a particular stand before the Court, any contradiction in his stance could only be explained by him during the course of examination and it was not for Court to assume possible reason for such a material contradiction.

Ch. Aamir Rehman for Petitioner.

Mehdi Khan Chohan for Respondent.

Date of hearing: 12th November, 2002.

2003 Y L R 556

[Lahore]

Before Maulvi Anwarul Haq, J

IMTIAZ AHMED LONE‑‑‑Petitioner

Versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY through Vice­ Chancellor, Taxila and 2 others‑‑‑Respondents

Writ Petition No. 1457 of 2002, heard on 5th November, 2002.

Prospectus of University of Engineering and Technology, Taxila‑‑‑-

‑‑‑‑Cl. 34.5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Educational institution‑‑­Admission‑‑‑Expulsion‑‑‑Rule of locus poenitentiae‑‑‑Candidate who migrated from Indian‑held Kashmir and secured 521 out of 1100 marks in F Sc. Pre‑Engineering was admitted in the University‑‑‑Candidate was registered as a regular student vide letter issued to him and he started attending his classes, but after about four months of his admission, he was expelled from University on the ground that his marks in F. Sc. Engineering were below minimum standard for admission in University‑‑‑Validity‑‑‑Under cl.34.5 of Prospectus of University of Engineering and Technology, Taxila, a candidate could only be expelled if he had been provisionally admitted and any document or certificate filed by him was proved to be false, fake or fabricated at a later stage‑‑University had not alleged that any document filed by candidate was found to be false, fake or fabricated, it could not, in circumstances, be said that candidate was guilty of any acts stated in cl.34.5 of Prospectus of University so as to authorise University to expel him‑‑‑Matter of less marks in FSc., was to be checked by University before granting admission to the candidate and not thereafter‑‑‑Rule of locus poenitentiae being applicable in the case of candidate, he could not have been expelled by University‑‑‑High Court set aside order of University whereby candidate was expelled from the University.

Mujeebur Rehman Kiani for Petitioner.

Mumtaz Ahmad Bilal for Respondents.

Date of hearing: 5th November, 2002.

2003 Y L R 560

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. WALAYAT BEGUM and 6 others‑‑‑Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY through Director‑General, L.D.A. Plaza, Egerton Road, Lahore and another‑‑‑Respondents

Civil Revision No.2697 of 2001, heard on 12th November, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VIII, R. 10‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Non filing of written statement‑‑‑Striking off defence of defendant‑‑‑Summons were issued to defendants and on the date fixed for appearance of defendants, counsel for defendants entered appearance and submitted his power of attorney‑‑‑Copy of plaint was handed over to the counsel of defendants and he was directed to file written statement on adjourned date of hearing‑‑‑On adjourned date of hearing counsel failed to file written statement and requested more time to file the same which was granted by Trial Court‑‑­Two more opportunities were granted to the defendants for filing written statement subject to imposing penalty/costs‑‑‑Trial Court provided last opportunity to defendants to. file written statement, but on that date defendants also having failed to file written statement, Trial Court struck off their defence and after recording statement of their attorney, adjourned the case and on adjourned date of hearing decreed the suit‑‑‑Appellate Court accepting appeal filed by defendants, set aside judgment and decree passed by Trial Court‑‑‑Validity‑‑‑Provision of striking off defence, required greater care on the part of the Court as it would shut out one party to defend itself and virtually it would be at the merry of other party, to do justice between parties‑‑‑If party had failed to file written statement judgment could be pronounced against such party, but that judgment would not mean decreeing the suit ipsi dixit without any proof whatsoever‑‑‑Court was obliged to give reasons indicating application of mind and it was appropriate that case be decided on merits after recording evidence‑‑‑Court must exercise its discretion judicially while pronouncing judgment under O. VIII, R.10, C. P. C., but Trial Court, decreed suit in violation of the principle of law without applying its independent mind‑‑‑Appellate Court, in circumstances, had rightly set aside judgment and decree passed by Trial Court.

Azad Hussain v. Haji Muhammad Hussain 1994 CLC 1817; Muhammad Fayyaz Butt v. M.C.L. through Administrator 1997 CLC 55; Muhammad Anwar Khan and others v. Chaudhry Riaz Ahmad PLD 2002 SC 491; Col. (R.) Ayub Ali Rana v. Dr. Carite S. Pune and another PLD 2002 SC 630; Mst. Najma Yasmin and another v. Mst. Firdaus Khalid and 2 others 2002 CLC 1085; The Secretary, Board of Revenue, Punjab, Lahore and others v. Khalid Ahmad Khan 1991 SCMR 2527; Nisar Ahmad and another v. Habib Bank Ltd. 1980 CLC 981; Haji Muhammad Moosa and others v. Provincial Government of Balochistan 1986 CLC 2951; Im‑tiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Muhammad Ashraf and others v. Mst. Iqbal Begum and others 1986 MLD 486; Sh. Abdul Saboor & Brother v. Ganesh Flour Mills PLD 1976 Lah. 779; Mst. Bushra Bano and others v. Muhammad Hassan and others 1992 MLD 1116 and Project Director, Development Area v. Latif Gull 1992 MLD 2026 ref.

Ch. Riyasat Ali for Petitioners.

Mian Muzaffar Hussain, Legal Advisor of Respondent (LDA).

Date of hearing: 12th November, 2002.

2003 Y L R 570

[Lahore]

Before Muhammad Akhtar Shabbir, J

NOOR KHAN‑‑‑Petitioner

Versus

GHULAM QASIM and another‑‑‑Respondents

Civil Revision No.211 of 1995, heard on 16th May, 2002.

(a) Words arid phrases‑‑‑

‑‑‑‑ "Immediate ", defined and explained. (p. 5731 A

(b) Punjab Pre‑eruption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Suit for pre‑emption‑‑­Making of Talbs‑‑‑Words "immediate" and 'jumping", meaning and distinction‑‑‑Words "immediate" and 'jumping" would denote same meaning i.e. act immediately, suddenly or a sudden rise or movement‑‑‑ "Jumping demand" would mean immediate demand made by the ,pre‑emptor in the same meeting and sitting without any loss of time as soon as he received the information about sale‑‑­Plaintiff, in the present case, received information at his house whereas he declared his intention to pre‑empt the suit‑land when he reached at the land in dispute which was at a distance of 200 yards from his house, which would mean that it took some time to reach there‑‑‑Making of demand of Talb‑i­Muwasibat, in circumstances, would not mean that plaintiff had made the demand of "Talb‑i‑Muwasibat " immediately on receipt of information about sale‑‑‑If jumping demand was not proved by plaintiff, second demand, Talb‑I‑Ishhad if proved, would not give any benefit to him, because if the person who had sought a decree for pre‑emption had failed to perform all three requirements of "Talbs ", was not entitled for grant of decree‑‑‑Plaintiff having failed to establish on record all three requirements of Talbs in accordance with prescribed procedure as provided in S.13 of Punjab Pre‑emption Act, 1991, Courts below had rightly dismissed suit filed by the plaintiff‑‑‑Question of fact being involved in the matter, same would not be interfered with by High Court in exercise of its revisional jurisdiction as it could not re­ appreciate or re‑examine evidence of parties even if it could take a different view.

Rashid Ahmad v. Bashir Ahmad through Legal Heirs 1995 CLC 1924; Rana Muhammad Tufail v. Munir Ahmad and another PLD 2001 SC 13; Muhammad Hassan and 2 others v. Shaft‑ud‑Din and 2 others PLD 1995 Quetta 29; Salma and another v. Manzoor Hussain and another 1996 CLC 623; Dilmeer and others v. Amir NLR 1996 Civil (Lahore) 627; Mst. Amir v. Soini 1997 MLD 2376; Nazir Ahmad v. Boota 1989 SCMR 450; Riaz v. Muhammad Salim 1989 SCMR 1491; Guldar Khan v. Isa Khan 1993 SCMR 2099 and Haji Muhammad v. Malik Muhammad Abdullah PLD 1994 SC 291 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Scope‑‑‑Question of fact being involved in the matter, same would not be interfered with by High Court in exercise of its revisional jurisdiction as it could not re‑appreciate or re‑examine evidence of parties even If it could take a different view.

Rana Muhammad Tufail v. Munir Ahmad and another PLD 2001 SC 13; Muhammad Hassan and 2 others v. Shaft‑ud‑Din and 2 others PLD 1995 Quetta 29, Salma and another v. Manzoor Hussain and another 1996 CLC 623, Dilmeer and others v. Amir NLR 1996 Civil (Lahore) 627 and Mst. Amir v MLD 2376 ref.

(d) Words and phrases‑‑‑

‑‑‑‑ "Immediate " and 'jumping "‑‑‑Meaning and distinction.

Ch. Afrasiab Khan for Petitioner.

Sh. Zameer Hussain for Respondent.

Date of hearing: 16th May, 2002.

2003 Y L R 574

[Lahore]

Before Ijaz Ahmad Chaudhary and Mian Muhammad Jahangir, JJ

MUHAMMAD RASHAD and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.2003 of 2000, heard on 28th November, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(6)‑‑‑Appreciation of evidence‑‑­F.I.R. had been lodged promptly with every detail of the occurrence‑‑‑Eye‑witnesses were found to be present at the spot who had seen the incident‑‑‑Ocular testimony was consistent without any contradiction regarding the place, time and manner of occurrence‑‑‑Close relationship of eye‑witnesses with the deceased, in the absence of any previous enmity between them, was not sufficient to discard their evidence‑‑‑Eye‑witness account was corroborated by medical evidence‑‑­Crime empties of different weapons were recovered from the spot by the Investigating Officer‑‑‑Accused throughout the investigation had taken the stand of having participated in the occurrence‑‑‑No extenuating circumstance warranting lesser punishment was available‑‑‑Deceased had been done to death after being chased who had received 21 fire‑arm injuries on his person‑‑‑Age mentioned by one accused in his statement under 5.342, Cr. P. C. was not a conclusive proof of his minority for awarding him a lesser sentence‑‑‑Conviction and sentence of death of each accused were confirmed in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑­Plea of innocence and alibi taken by the accused immediately after his arrest had been supported by numerous persons during investigation ‑‑‑Co‑accused while making inculpatory statements before the police had excluded. the accused from the occurrence‑‑­Only general allegation of firing at the deceased had been levelled against the accused alongwith the co‑accused‑‑‑No recovery was effected from the accused‑‑­Extreme enmity existed between the accused and the complainant party‑‑‑Ocular testimony was not corroborated by any independent evidence‑‑‑Accused was acquitted on benefit of doubt in circumstances.

(c) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑-

‑‑‑‑S. 7‑‑‑Determination of age‑‑‑Age given in 342, Cr. P. C. statement‑‑‑Worth‑‑‑Age mentioned by an accused in his statement under S. 342, Cr. P. C. cannot be termed as a conclusive proof of his age for the purpose of Juvenile Justice System Ordinance, 2000.

Khawaja Sultan Ahmad for Appellants.

Kazim Iqbal Bhangoo for the State.

Date of hearing: 28th November, 2002.

2003 Y L R 580

[Lahore]

Before Sayed Zahid Hussain, J

MUSHTAQ AHMED ‑‑‑Appellant

Versus

MUHAMMAD YOUNAS‑‑‑Respondent

Regular Second Appeal No.48 of 1999, heard on 1st November, 2002.

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S. 12‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Suit for specific performance of agreement of sale‑‑‑Execution of agreement‑‑­ Essential elements of agreement‑‑‑Agreement of sale on which suit was based, had merely authorised plaintiff to seek possession of the suit house from occupant thereof and that plaintiff would be considered owner in possession‑‑‑Nothing was shown in the agreement about the price settled paid' or 'unpaid'‑‑‑Agreement was also silent as to how the same was to be enforced ‑‑‑Effect‑‑­ Agreement of sale was a document of unique type for which Courts below had to examine the same deeply and point out various inherent infirmities therein‑‑‑Such document by no standard could be regarded as an agreement of sale for enforcement of which the . Court could exercise its discretionary jurisdiction of specific relief under Specific Relief Act, 1877‑‑‑Oral agreement though could be enforced by Court, but such an oral agreement had to be proved by positive, clear and convincing evidence of credible nature‑‑­Mere assertion of plaintiff regarding payment of price of suit property which otherwise remained uncorroborated by any confidence­ inspiring evidence, could not be believed‑‑­Alleged agreement being silent about many essential aspects of an agreement of sale, Courts below, in circumstances, had rightly dismissed the suit concurrently based on such an agreement‑‑‑In absence of any misreading or non‑reading of evidence or illegality committed by two Courts below, concurrent judgment of the Courts, could not be 'interfered with in second appeal.

Bashir Ahmad v. Muhammad Yousaf represented by Muhammad Shafique 1993 SCMR 183; Balabhadra Misra v. Srimati Nirmala Sundari Devi and others AIR 1954 Orissa 23; Pritam Singh and others v. Jagannath Sarawgi and others AIR 1947 Pat. 1; Kauleshar Prasad Misra v. Abadi Bibi AIR 1915 All. 347; Anandibai Ram Pai v. Hari Suba Pai (1911) 10 IC 911; Kashi Das Gosain v. Chithru Patras Uraon (1913) 23 IC 813; Thakur Raghubar Singh v. Gajraj Singh and another (1918) 47 IC 920; Subbayyar v. Moniem Subbamania Ayyar and 3 others ILR (1911) 36 Mad. 8 ref.

S.M. Masood for Appellant.

Ishfaq Qayyum Cheema for Respondent.

Date of hearing: 1st November, 2002.

2003 Y L R 583

[Lahore]

Before Muhammad Sair Ali, J

Mian MUHAMMAD HANIF through Legal Heirs and another‑‑‑Petitioners

Versus

Mst. SHAMIM ANJUM and 7 others‑‑‑Respondents

Civil Revision No.2870/D of 1996, heard on 18th November, 2002.

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

‑‑‑‑Ss. 2(a), 5 & 35‑‑‑Punjab Pre‑emption Ordinance (XVIII of 1990), Ss.2(a), 5 & 36‑‑‑Immovable property situated within municipal area‑‑‑Right of pre‑emption, exercise of‑‑‑Revival of suit after promulgation of new pre‑emption law subject to determination later as to whether such suit could proceed under the existing laws of pre­emption‑‑‑Validity‑‑‑Such suit‑land was beyond the definition of immovable property as per S.2(a) of Punjab Pre‑emption Ordinance, 1990, or S.2(a) of Punjab Pre­emption Act, 1991‑‑‑Only such suits were to be decided afresh under S.36 of Punjab Pre­emption Ordinance, 1990, or under S.35 of Punjab Pre‑emption Act, 1991, in which the right of pre‑emption was claimed as was then available under the provisions of Punjab Pre‑emption Ordinance, 1990, or under the provisions of Punjab Pre‑emption Act, 1991, as the case might be‑‑‑Suit‑land fell within municipal area and was not covered by the definition of "immovable property ", therefore, right of pre‑emption under S.5 of Punjab Pre‑emption Act, 1991, did not accrue upon sale of such immovable property ‑‑‑Pre‑emptors had no claim to right of pre‑emption under S.36 of Punjab Pre‑emption Ordinance, 1990, or under S.35 of Punjab Pre‑emption Act, 1991.

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

‑‑‑‑Ss. 5 & 35‑‑‑Raising of new plea ‑‑‑Non­ availability of right of pre‑emption at the time of application for revival restoration of suit by Trial Court‑‑‑Failure to raise such plea‑‑­Effect ‑‑‑Vendees did not raise the plea which was basic and essential for maintenance of suit for pre‑emption, before the Courts below and raised the same before High Court in revision application ‑‑‑Validity‑‑‑Vendees could not be debarred from raising such admitted and legally established fact at the revisional stage‑‑‑Plea was maintainable in circumstances.

(c) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 35‑‑‑Filing of pre‑emption suit during interregnum‑‑‑Prerequisites enumerated.

Following are' the prerequisites for filing pre‑emption suit during interegnum:‑‑

(i) Suit was filed between the period from 1‑8‑1986 and 28‑3‑1990 and

(ii) right of pre‑emption, as claimed in such suit was available under Punjab Pre­emption Ordinance, 1990, or Punjab Pre­emption' Act, 1991, to the plaintiffs/pre­emptors.

(d) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 2(a), 5 & 35‑‑‑Punjab Pre‑emption Ordinance (XVIII of 1990), Ss.2(a), 5 & 36‑‑‑Pre‑emption suit filed during interregnum‑‑‑Suit‑land situated in municipal limits ‑‑‑Pre‑emption suit was restored by the Trial Court subject to determination as to whether the suit could proceed under the provisions of Punjab Pre‑emption Ordinance, 1990‑‑‑Trial Court dismissed the suit being not maintainable‑‑‑Judgment and decree passed by the Trial Court was maintained by the Appellate Court ‑‑‑Pre‑emptors admitted that the suit‑land was situated in the municipal limits but relied on judgment passed by Supreme Court in Haji Rana Shabbir Ahmad Khan v. Government of the Punjab, reported as PLD 1994 SC 1 and contended that pre‑emption suit against sale of land situated in municipal limits was maintainable‑‑‑Validity‑‑‑Till 31‑12‑1993, S.2(a) of Punjab Pre‑emption Act, 1991, was effective and was binding part of the statute book, whereunder, the suit‑land, being within the municipal area, did not fall in the definition of "immovable property" and the sale of suit‑land was not pre‑emptible under S.5 of Punjab Pre‑emption Act, 1991‑‑‑Right of pre‑emption was not available to the pre­emptors under the provisions of Punjab Pre­emption Ordinance, 1990‑‑‑Both the Courts below had rightly dismissed the suit filed by the pre‑emptors.

Haji Rana Shabbir Ahmad Khan v. Government of the Punjab PLD 1994 SC 1 distinguished.

Mst. Nighat Kausar alias Nighat Yahyah v. Mushtaq Ahmed and 2 others 1999 YLR 407; Mst. Shamim Akhtar v. Muhammad Nawaz 1999 YLR 2556 and Qazi Muhammad Shahab‑ud‑Din v. Muhammad Qasim 1996 CLC 480 ref.

Ch. Muhammad Rasheed Vehra for Petitioners.

Jahangir A. Jhojha for Respondents.

Date of hearing: 18th November,

2003 Y L R 587

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. ASMA NAZ‑‑‑Petitioner

Versus

MUHAMMAD YOUNAS QURESHI‑‑‑Respondent

Civil Revision No.536 of 2001, decided on 25th October, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 64‑‑‑Opinion on relationship‑‑‑Relevancy‑‑‑Proof‑‑‑Witness was not family member of the person whose parentage was to be decided‑‑‑Effect‑‑‑Where the witness was not member of the family and had no special means of knowledge on the subject, statement of such witness would not be taken as relevant fact to the opinion to the relationship of the persons under question.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 91‑‑‑Public documents‑‑‑Presumption of truth ‑‑‑Scope‑‑‑Nikahnama, National Registration B‑Form, Identification Card and Nomination Card were produced by plaintiff in support of his claim‑‑‑Effect‑‑‑Documents produced by the plaintiff were though from the record maintained by public authorities and presumption of truth was attached to the documents, yet the same was rebuttable.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 30 & 36‑‑‑Admission of fact‑‑­Relevancy‑‑‑Extent‑‑‑Admission of facts are only relevant and not conclusive and, therefore, may be shown to be wrong.

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

‑‑‑‑Arts. 30, 36 & 64‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54‑‑‑Declaration to relationship‑‑‑Admission made in ignorance of fact‑‑‑Concurrent findings of both the Courts below‑‑‑Plaintiff claimed herself to be a legitimate daughter of defendant‑‑‑To prove the relationship, the plaintiff produced her father‑in‑law who was neither member of the family nor had special means of knowledge on the subject‑‑‑Plaintiff also produced certain public documents to prove her claim in which the defendant admitted the plaintiff as his daughter‑‑‑Defendant denied his relationship with the plaintiff and produced copy of application signed by plaintiff herself wherein she had denied to be the daughter of defendant‑‑‑Trial Court discarded the oral as well as documentary evidence produced by the plaintiff and relying on the defendant's evidence, dismissed the suit‑‑‑Judgment and decree passed by the Trial Court was maintained by Appellate Court ‑‑‑Validity‑‑­Admission which was wrong on the point of fact and made in ignorance of legal right had no binding effect on the person making it‑‑­Admission made by the defendant in the documents produced by the plaintiff were not binding on him, on the contrary, the admission made by the plaintiff by submitting application before the police was of binding nature from which she could not wriggle out‑‑‑Concurrent findings on facts against the plaintiff by two Courts of competent jurisdiction on the basis of evidence could not be interfered with by High Court in exercise of revisional jurisdiction‑‑‑Judgments and decrees passed by both the Courts below were maintained.

Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 and Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 distinguished.

Ahmad Khan v. Rasool Shah PLD 1979 SC 311 (sic) and 2001 SCMR 1147 ref.

Raja Muhammad Hanif Satti for Petitioner.

Muhammad Asif Chaudhry for Respondent.

2003 Y L R 594

[Lahore]

Before Mian Saqib Nisar and Jawwad S. Khawaja, JJ

INSTITUTION OF ENGINEERS PAKISTAN, ENGINEERING CENTRE, GULBERG‑III, LAHORE‑‑‑Appellant

Versus

PAKISTAN ENGINEERING COUNCIL through Engineer Major‑General (Retd.) Javed Anwar Hashmi, Registrar PEC and 3 others‑‑‑Respondents

Intra‑Court Appeal No.700 of 2001, heard on 22nd October, 2002.

(a) Pakistan Engineering Council Act (V of 1976)‑‑‑

‑‑‑‑Ss 2(m), 10, 14 & 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Constitutional petition‑‑‑Withdrawal of recognition granted to appellant, issuance of show‑cause notice for‑‑‑Pakistan Engineering Council issued such notice on report of Inspectors pointing out deficiencies in appellant's set up such as lack of proper training and laboratory facilities necessary for full structured course of studies‑‑‑Constitutional petition challenging vices of such notice was dismissed by High Court‑‑Validity‑‑­Appellant had failed to fulfil and adhere to mutually agreed and settled criteria of qualification‑‑‑Council had rightly taken decision of de‑recognition of appellant‑‑­Council had power to appoint Inspector for purpose of considering issue of recognition or otherwise of institution‑‑‑Such Inspector could examine sufficiency of examination conducted, course of studies and facilities for teaching provided by institution at different stages in respect of such examination‑‑­Requisite steps for appointing Inspector had been fully followed by respondents in the present case‑‑‑Vital deficiencies mentioned in report of Inspectors consisting of experts were sufficient in view of Council for purpose of de‑recognition of the appellant‑‑‑Impugned judgment was well‑reasoned, wherein no legal or factual infirmity was found ‑‑‑Intra­ Court Appeal was dismissed in circumstances.

(b) Pakistan Engineering Council Act (V of 1976)‑‑‑-

‑‑‑‑Ss. 2(m), 10, 14 & 15‑‑‑Granting recognition to an institution‑‑‑Principles to be kept in view stated.

Recognition is not to be granted to an individual candidate, but to the institution as a whole and the principle behind is to judge the ability and capability of the institution qua imparting/giving education, coaching and training to its students and if the institution is in a position to produce capable persons, then the degree/diploma issued by such institution should be recognized, but where deficiencies are so glaring and apparent and without providing which, no capable student/candidate can be produced by institution, it is ridiculous to conceive that instead of standard of having full facility in the institution, recognition question must be judged on the basis of interview/ examination of students of such institution.

(c) Pakistan Engineering Council Act (V of 1976)‑‑‑-

‑‑‑‑Ss. 2, 14 & 15‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑­Recognition or non‑recognition of an institution‑‑‑Decision of Pakistan Engineering Council‑‑‑Jurisdiction of High Court to quash order/action of the Council‑‑‑Scope‑‑‑Council was an expert body to decide issue about recognition or non‑recognition of an institution‑‑‑Decision taken by Council not shown to be without jurisdiction, perverse or arbitrary‑‑‑High Court in exercise of its authority in judicial review could not sit as a Court of appeal to quash order/action of expert body based upon proper expert and technical consideration.

Dr. Abdul Basit for Appellant.

Abid Hassan Minto‑for Respondents, Date of hearing: 22nd October,

2003 Y L R 599

[Lahore]

Before Tanvir Bashir Ansari, J

MUNAWAR IQBAL SATTI‑‑‑Petitioner

Versus

Mst. UZMA SATTI and 2 others‑‑‑Respondents

Writ Petition No. 1534 of 2002, heard on 14th November, 2002.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Suit for recovery of dowry‑‑‑Family Court decreed suit, which decision was upheld by Appellate ‑ Court‑‑‑Validity‑‑‑Both Courts below had evaluated evidence on record and had arrived at just and fair conclusion‑‑­Contention put forward by petitioner that dowry articles were purchased with money provided by his father as loan had been correctly disbelieved by Courts below‑‑­Courts below had applied their conscious mind to value and quantum of dowry articles and their conclusion was neither perverse nor fanciful or arbitrary‑‑‑High Court would be loath to interfere in concurrent findings of fact‑‑‑Constitutional petition being devoid of merits was dismissed in circumstances.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Decree for grant of Khula' divorce subject to return of Haq Mehr (dower) by wife as Zar‑e‑Khula'‑‑‑ Validity‑‑­Haq Mehr was a sine qua non of a valid marriage, without which union between spouses could not be legal, but would rather lead to self‑destroying and hazardous legal consequences ‑‑‑Haq Mehr was in its essence not a benefit returnable to husband in consideration of grant of Khula' divorce‑‑­Gift or a benefit was always something, which was gratuitous and voluntary in nature bestowed by one upon another without any consideration ‑‑‑Haq Mehr could not be regarded as a benefit or gift which could be restored to the husband in consideration for Khula' divorce.

(c) Islamic Law‑‑‑

‑‑‑‑ Dower (Haq Mehr)‑‑‑Sine qua non of a valid marriage‑‑‑Union between spouses could not be legal without Haq Mehr, but would rather lead to self‑destroying and hazardous legal consequences.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 10(4), proviso (as added by Family Courts (Amendment) Ordinance (LV of 2002)] & Sched.‑‑‑constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Decree passed on 30‑5‑2001 for grant of Khula' divorce subject to return of Haq Mehr as Zar­e‑Khula'‑‑‑ Appellate Court in appeal filed by wife set aside such condition attached with decree‑‑‑Contention of husband was that under proviso to S.10(4) of the Act as added by Family Courts (Amendment) Ordinance, 2002 promulgated on 1‑10‑2002, he was entitled to return of Haq Mehr received by wife‑‑‑Validity‑‑‑Such amendment relating to right of Haq Mehr was substantive in nature and not merely procedural‑‑‑Such amendment would operate prospectively and not restrospectively‑‑‑High Court dismissed Constitutional petition in circumstances.

Raja Ali Akber for Petitioner.

Raja Muhammad Tariq for Respondents.

Date of hearing: 14th November, 2002.

2003 Y L R 603

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MEHAR BHARI and 5 others‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB through Collector Chakwal and another‑‑‑Respondents

Civil Revisions Nos.26 and 27 of 1995, heard on 1st October, 2002.

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

‑‑‑‑Ss. 42. & 54‑‑‑Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.3‑‑­Displaced Persons (Land Settlement) Act (XLVII of 1958), S.4‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.58‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Suit for declaration and permanent injunction‑‑­Evacuee property‑‑‑Suit property was owned by a Muslim (predecessor of petitioner), but Settlement Authorities treated the same as evacuee and allotted to predecessor of respondent and issued P. T. O. and P.T.D. in her favour ‑‑‑Allottee, later on through a consent decree transferred suit property to respondent‑‑‑Both petitioner and respondent claiming to be owners of suit property filed suits, which were consolidated‑‑‑Trial Court and Appellate Court decreed suit filed by respondent because of issuance of P. T. O. and P.T.D. in favour of his predecessor‑‑­Validity‑‑‑Predecessors of petitioners were throughout recorded in Jamabandis as owners of suit‑land‑‑‑Non‑Muslim was recorded in column of Lagan of Jamabandi as non‑occupancy tenant not paying any rent and claiming sale in his favour‑‑‑Presumption of correctness was attached only to entries in column of ownership and possession, but no such presumption was attached to column of Lagan‑‑‑Person recorded as tenant in column of possession would be deemed to be a tenant, unless and until he proved entries in column of Lagan in his favour‑‑‑No allegation, plea or proof on record showing that petitioners or any of their predecessor had ever sold land to non‑Muslim‑‑‑Under Evacuee Laws, only evacuee interest vested in Custodian and later was acquired by Federal Government‑‑‑Non‑Muslim was a non­ occupancy tenant, who was of course not paying any rent‑‑‑In absence of any proof of sale, non‑payment of rent would not extinguish title of Muslim lawful owner‑‑­Nothing on record was available to show that Custodian or any other Competent Authority had ever made a conscious adjudication as to treatment of such property as evacuee‑‑Only material available on record was P. T. O. and P. T. D. issued by Deputy Settlement Commissioner‑‑‑Suit property, by all means a Muslim property, could not have been transferred and such documents were without lawful authority and liable to be declared as such‑‑‑Decree in favour of respondent being based on void documents was coram non judice and was liable to be set aside‑‑‑High Court allowed revision petitions, set aside impugned judgments/decrees and decreed suit filed by petitioner and dismissed suit filed by respondent.

Ahmad Khan and 5 others v. Member, Board of Revenue and 3 others 1986 CLC 1677: Sh. Fazal‑ur‑Rehman v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others 1987 SCMR 1036; Syed Abdul Hakim v. Muhammad Azam Khan and another 1991 SCMR 1976; Shah Muhammad v. Khan Poor PLD 1986 SC 91 and Muhammad Ismail v. Abdul Haq and others 2001 SCMR 1350 ref.

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

‑‑‑‑S. 42‑‑‑Record of rights (Jamabandi)‑‑­Entries in column of ownership, possession and Lagan‑‑‑Presumption of correctness‑‑­Extent‑‑‑Presumption of correctness was attached only to entries in column of ownership and possession, but no such presumption was attached to column of Lagan‑‑‑Person recorded as tenant in column of possession would be deemed to be a tenant, unless and until he proved entries in column of Lagan.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 58‑‑‑Judgment and decree based on void documents is coram non judice and liable to beset aside.

Ehsan Muhammad G. Khawaja for Petitioners.

Sardar Muhammad Aslam for Respondent No.2.

Date of hearing: 1st October, 2002.

2003 Y L R 608

[Lahore]

Before Ch. Ijaz Ahmad, J

KHALIL AHMAD and 3 others‑‑‑Petitioners

Versus

MUHAMMAD AMEER‑‑‑Respondent

Civil Revision No.916‑D of 1997, decided on 5th November, 2002.

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

‑‑‑‑S. 15‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.49‑‑‑Pre‑emption suit‑‑‑Relationship of pre‑emptor with vendor, proof of ‑‑‑Pre­ emptor produced pedigree‑table through counsel without giving any corroborative evidence‑‑‑Suit was concurrently decreed by Trial Court and Appellate Court ‑‑‑Validity‑‑­Pre‑emptor had not mentioned even a single word in his evidence with regard to family or pedigree‑table‑‑‑Non‑considering such fact by Courts below was violative of law ‑‑‑Vendee was co‑sharer in Khata at the time of purchase of land in question‑‑‑Courts below had given concurrent findings of fact against vendee by misreading and non‑reading of record, and thus, had committed material irregularity‑‑‑High Court accepted revision petition and set aside judgments of Courts below‑‑‑Resultantly suit of pre‑emptor was dismissed.

Naseer Ahmad v. District Judge, Multan and 4 others PLD 1992 Lah. 92; Rehman v. Noora through his Legal Heirs 1996 SCMR 300; Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026; Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Abdullah v. Abdul Karim PLD 1968 SC 140; Mst. Zainab v. Mst. Balqees PLJ 1991 SC 100(sic); Abdul Ahmad and others v. Roshan Din and others PLD 1979 SC 890 and Nawab Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 ref.

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

‑‑‑‑S. 115‑‑‑Concurrent findings of fact---­Revisional jurisdiction of High Court‑‑­Scope‑‑‑High Court had ample jurisdiction to disturb findings of facts where such decision was based on no evidence or inadmissible evidence or was so perverse that grave injustice would result therefrom.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 ref.

Muhammad Shahzad Shaukat for Petitioners.

Hassan Ahmad Khan Kanwar for Respondent.

Date of hearing: 5th November, 2002.

2003 Y L R 613

[Lahore]

Before Tanvir Bashir Ansari, J

Major (Retd.) SHABBIR AHMAD and another‑‑‑Petitioners

Versus

ELECTION TRIBUNAL FOR RAWALPINDI, DISTRICT ATTOCK and 4

others‑‑‑Respondents

Writ Petition No.3206 of 2002, decided on 4th December, 2002.

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 80, 81 & 83‑‑‑Declaring election of returned candidate as void‑‑‑Corrupt or illegal practice, charge, of‑‑‑Proof‑‑‑Before imposing extreme penalty of declaring election as void, charge of commission of illegal practice against returned candidate must be proved beyond reasonable doubt‑‑­Tribunal must satisfy itself that corrupt or illegal practice had been committed by or with the consent or connivance of returned candidate or his election agent‑‑­Tribunal would not be justified to declare election as void in absence of such proof.

Abdul Samee v. Abdul Ghaffar PLD 1990 Lah. 378 ref.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 80‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction‑‑­Scope‑‑‑High Court in exercise of its Constitutional jurisdiction would neither substitute its own opinion in place of one expressed by Election Tribunal nor' re­appraise evidence.

Mian Zia‑ud‑Din v. Punjab Local Government Election Tribunal 1984 CLC 1544 and Kohinoor Industries Limited v. Government of Pakistan 2001 CLC 494 ref.

(c) Jurisdiction‑‑‑

‑‑‑‑ Special Tribunal having jurisdiction in a matter would decide controversy rightly and in accordance with law.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 rel.

Shoukat Aziz Siddiqi for Petitioners.

M. Younas Bhatti for Respondents.

Date of hearing: 3rd December, 2002.

2003 Y L R 672

[Lahore]

Before Farrukh Lateef, J

Mst. SAKINA‑‑‑Petitioner

versus

S.S.P. and others‑‑‑Respondents

Writ Petition No. 6501 of 2002, decided on 19th November, 2002.

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

‑‑‑‑Ss.10/16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Quashing of F.I.R.‑‑‑After the withdrawal of the suit for dissolution of marriage by the lady accused there was no bar or impediment on her previous Nikah‑‑‑Presently there were two Nikahs of the accused lady and during subsistence of her previous Nikah she could not contract another valid marriage‑‑­Accused in the changed scenario could not claim her second Nikah as valid merely because when it was contracted there was no bar‑‑‑Cohabitation of the accused with her second husband would obviously be deemed as adultery with logical implication and inference of illicit sexual intercourse with him and precisely same was the allegation in the F.I.R. which was sought to be quashed‑‑‑No case for quashment of the FLR., thus, was made out‑‑‑If the accused did not want to live with her former husband the only way out for her was to seek separation on the principle of Khula' from the competent Court and till the decree was granted in her favour, to stay apart from her second husband‑‑­Constitutional petition was dismissed accordingly.

Malik Javed Iqbal for Petitioner.

Tariq Murtaza Malizai for Respondents Nos. 1 and 2.

Bashir Ahmed Bhatti for Respondent No.3.

2003 Y L R 677

[Lahore]

Before Tanvir Bashir Ansari, J

SAEED ANWAR and others‑‑‑Petitioners

versus

SECRETARY, MINISTRY OF HOUSING AND WORKS and others‑‑‑Respondents

Writ Petition No.2600 of 2002, heard on 2nd December, 2002.

(a) Pakistan P. W. D. Contractors (Classification, Categorisation, Enlistment and Evaluation of Performance) Rules, 2000‑‑‑

‑‑‑‑Preamble & Cl.III‑‑‑Notifications dated 19‑5‑1979 and 23‑12‑1999‑‑‑Constitution of Pakistan (1973), Arts.18, 25 & 199‑‑­Constitutional . petition‑‑‑Contractors categorisation of‑‑‑Increase in Monetary Limits, Security Deposits and Registration/ Renewal fee made by Notification dated 25‑6‑2002 known as Pakistan P.W.D. Contractors (Classification, Categorisation, Enlistment and Evaluation of Performance) Rules, 2000‑‑‑Validity‑‑‑First Notification for such increase was promulgated on 19‑5‑1979, but the same was revised through Notification, dated 23‑12‑1999 due to increase in nature, volume and magnitude of contracts awarded by the Department‑‑­Comparison of rates under such two notifications would show a marked difference‑‑‑Value of projects had multiplied manifold with increase in commercial and industrial activity‑‑‑Both Government and contractors were conscious of the fact that only a financially sound contractor would ensure fulfillment of its contractual obligations‑‑‑Comparison of Notifications dated 19‑5‑1979, 23‑12‑1999 and impugned Notification would show that categorization, monetary limit and registration/renewal fee had been progressively revised‑‑‑Impugned notification was applied to all enlisted contractors uniformly‑‑‑No discrimination either in contents of impugned notification or in its application was found‑‑‑Fixation of categorization etc., had nothing to do with individual performance of any contractor‑‑­Fact that some contractors would not be able to meet monetary limit of categoriza­tion might be a result of revised notification, but not its cause‑‑‑No alteration in any substantive law or legal right had been effected through impugned notification‑‑‑Competent Authority could lawfully regulate a trade or business and in doing so procedural amendments take place from time to time‑‑‑Revision of monetary list or alteration in registration/ renewal fee could not, be challenged on ground of retrospectively of legislation‑‑­High Court dismissed Constitutional petition having no merit.

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

‑‑‑‑Art.l8‑‑‑Freedom of trade, business or profession‑‑‑Scope‑‑‑Fundamental right guaranteed under Art. 18, though entrenched in Constitution as inviolable right, but was not absolute‑‑‑Such freedom was subject to such qualifications as might be prescribed by law and was further subject to regulation of trade etc., by. a licensing system.

(c) Notification‑

‑‑‑‑ Notification is only prospective in nature, unless retrospectively is accorded to same by a specific intent.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Procedural laws are retrospective in nature.

Sahibzada Ahmed Raza Khan Qasuri for Petitioners.

Barrister. Sultan Mansoor, Dy. A.‑G. for Respondents.

Date of hearing: 2nd December, 2002.

2003 Y L R 690

[Lahore]

Before Muhammad Sair Ali, J

RASHID AHMAD and another‑‑‑Petitioners

versus

MUHAMMAD SADIQ and 14 others‑‑‑Respondents

Civil,Revision No. 3118 of 1994, heard on 22nd November, 2002.

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

‑‑‑‑O. 1, R. 8‑‑‑Representative suit‑‑­Essentials‑‑‑Permission of Court was required to proceed with suit in a representative capacity to represent village community‑‑­Notice was required to be served upon persons, whom plaintiff sought to represent or sue in such suit.

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

‑‑‑‑O.1, R.8‑‑‑Representative suit‑‑­Permission of Court‑‑‑Formal order, requirement of‑‑‑Such permission could be presumed, where Court, after receiving written statement had proceeded with the suit, framed issues and recorded evidence‑‑­Express order in such cases should not be insisted upon in the interest of justice.

Adam Khan v. Gulla Mir and others PLD 1982 SC 120; The Tattei:alls Club v. S.M. Suleman PLD 1956 Sindh 49; Punjab Cooperative Bank Ltd., Lahore v. Hari Singh and others AIR 1933 Lah. 749; Saleh Muhammad and 2 others v. Haji Juma Khan Agha and 4 others 1983 SCMR 587 and Abdul Latif and others v. Muhammad Khan and others 1986 CLC 1994 ref.

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

‑‑‑‑O.1, R.8‑‑‑Representative suit‑‑‑Notice to persons sought to be represented by plaintiff, issuance of‑‑‑Mandatory‑‑‑In absence of such notice, suit would become incompetent and proceedings before Trial Court would be vitiated. (pp. 693, 6941 C & E

The Tattersalls Club v. S. M. Suleman PLD 1956 Sindh 49 and Punjab Cooperative Bank Ltd., Lahore v. Hari Singh and others AIR 1933 Lah. 749 rel.

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

‑‑‑‑O.1, R.8 & S.115‑‑‑Specific Relief Act (1 of 1877), Ss. 8 & 54‑‑‑Representative suit‑‑­Plaintiffs claiming to be representatives of village community filed suit for possession and injunction in respect of land reserved for utilization by village community‑‑‑Suit was dismissed by Trial Court, but decreed by Appellate Court‑‑‑Contention of defendants was that in absence of mandatory notice to inhabitants of village, suit having become incompetent could not be decreed‑‑‑ Validity‑‑­Defendants had not raised such objection in written statement or revision petition‑‑­Defendants could not rebut overwhelming evidence produced by plaintiffs that suit land was jointly owned by village owners and received for welfare of village community, and defendants had trespassed thereon‑‑­Defendants .had not denied that they were proceeded against in an earlier suit for disobedience of injunctive order and they had taken possession of suit land during currency of status quo order‑‑‑Defendants were, thus, not entitled to discretionary and equitable relief under 5.115, C. P. C. ‑‑‑Defendants had not challenged findings of Trial Court that they were trespassers over the suit land, which was collectively owned by village community‑‑‑Such findings had become final‑‑‑No useful purpose would be served in remanding case to Trial Court for issuance of requisite notice under O.1, R.8, C. P. C. and to recommence proceedings of suit thereupon‑‑‑In absence of right in defendants to possess suit land, justice had been done by restoring right to village community in general‑‑‑Notice provisions under O.1, R.8, C.‑P. C. , no doubt were mandatory, but demands of justice were equal, if not more sacrosanct‑‑‑Grant of relief to defendants in revision petition would amount to‑approval to and perpetuation of their illegal occupation of suit land‑‑‑Such illegality could not be sanctioned through relief to defendants under S 115, C. P. C.‑‑‑High Court dismissed revision petition in circumstances.

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

‑‑‑‑O.1, R.8 & 5.115‑‑‑Representative suit‑‑­Absence of notice required to be issued to persons under O. 1, R. 8, C. P. C. ‑‑‑Question of law‑‑‑Could be raised, dealt with and decided even at revisional stage as absence of such notice was germane to assumption of jurisdiction by Trial Court.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Powers under 5.115, C. P. C. could be utilized to effect complete justice, preserve, protect and ensure equitable dispensation‑‑‑Such powers could be exercised to prevent abuse of process of law and Courts, and to remove oppression and mal-administration of procedural demands.

(g) Administration of justice‑‑‑

‑‑‑‑Assistance of Court could not be extended to persons having committed breach and violation of injunctions of another Court, which was an arm of same legal system‑‑­Civil Procedure Code (V of 1908), 5.115 & O. XXXIX, Rr. 1, 2.

Mian Hameed‑ud Din Kasuri for Petitioners.

Muhammad Naeem for. Respondents.

Date of hearing: 22nd November, 2002.

2003 Y L R 696

[Lahore]

Before Farrukh Lateef, J

AKHTAR ZAMAN‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No. 9196 of 2002, decided on 27nd November, 2002.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 10 & Sched. ‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional etition‑‑‑Ex parse decree for recovery of maintenance allowance‑‑‑Defendant was proceeded ex parte, when none appeared on his behalf on the date fixed to provide him last opportunity for filing written statement‑‑­Family Court decreed the suit after recording evidence of plaintiff‑‑‑Defendant's plea for setting aside decree was that he was not aware about its, passing and that power of attorney filed in Court was not executed by him, thus, decree was collusive‑‑‑Family Court dismissed application after recording evidence, which order was upheld by Appellate Court‑‑Validity‑‑‑Defendant had not alleged in application for setting aside decree that he was not served‑‑‑Fact not alleged in application could not be raised before higher forum‑‑‑Appearance of defendant in Court had been proved, thus, service or non‑service of summons was of no legal consequence‑‑‑Defendant while appearing as witness had stated that counsel, who filed power of attorney on his behalf during trial was his maternal uncle, with whom his terms were not good‑‑‑Such facts were an afterthought as same had not been alleged in application for setting aside the decree‑‑‑Defendant had option to seek. comparison of his alleged signatures on power of attorney with his admitted signatures from Handwriting Expert, but he had not made any such request to Family Court‑‑-Defendant in order to corroborate his statement had not produced those persons as witnesses, from whom he allegedly came to know about passing of ex parse decree‑‑­Findings of Courts below were based on evidence, which neither suffered from jurisdictional defect nor violated any provision of law nor based on erroneous assumption of facts‑‑‑High Court dismissed Constitutional petition in limine.

Mst. Aneela v. Qari Abdul Majid and 2 others 2000 CLC 320 ref.

(b) Practice and procedure‑‑‑

‑‑‑‑ Fact not alleged in a petition before lower Court could not be raised before higher forum.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 84‑‑‑Disputed signatures, comparison of‑‑‑Duty of a party contending that document did not contain his genuine signatures‑‑‑Such party should request Court for sending such document for comparison to Handwriting Expert at his expense‑‑‑Not duty of Court in civil cases to incur such expenditure at State expense.

(d) West Pakistan Family Courts Rules, 1965‑‑‑

‑‑‑‑R.12‑‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.5 & Sched.‑‑‑Ex parte decree for recovery of maintenance, setting aside of‑‑‑Family Court granted five adjournments for filing written statement, whereafter last opportunity was provided on request of defendant's counsel‑‑‑Neither defendant nor his counsel appeared on the date fixed‑‑‑Family Court proceeded ex parte against defendant and after recording plaintiff's evidence decreed the suit‑‑­Contention of defendant was that decree was void as having been passed without affording him opportunity of hearing ‑‑‑Validity‑‑­Opportunity of being heard was the right of defendant‑‑‑Such opportunity could not be deemed not to have been provided to defendant, as in such circumstances. Family Court was left with no option, but to proceed ex parte against the delinquent.

(e) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 10, 14 & Sched.‑‑‑Family Court and Appellate Court, jurisdiction of‑‑­Scope‑‑‑Family Court had jurisdiction to entertain and decide family suits as well as petitions for setting aside ex parte decrees‑‑­Additional District Judge had jurisdiction to decide appeals filed against orders of Family Court‑‑‑Where Additional District Judge passed an order in appeal filed by a party, then such party could not‑contend that he had no lawful authority to pass such order.

(f) West Pakistan Family Courts Rules, 1965‑‑‑

‑‑‑‑R‑.13‑‑‑Ex parte decree, setting aside of‑‑­Grounds‑‑‑Such decree could be set aside on two grounds: Non‑service of summons and sufficient cause for non‑appearance.

(g) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 14 & Sched.‑‑‑Ex parte decree of maintenance in favour of wife and minor son, setting aside of‑‑‑Appellant did not dispute decree to extent of minor son, thus, filed appeal without impleading him as party‑‑­Validity‑‑‑Not logical to contend in such circumstances that ex parte decree to the extent of minor son was valid, but to the extent of wife was without jurisdiction and without lawful authority.

Qari Abdul Karim Shahab for Petitioner.

2003 Y L R 812

[Lahore]

Before M. Javed Buttar and Syed Jamshed Ali, JJ

Malik IRSHAD HUSSAIN and another‑‑‑Appellants

Versus

MUHAMMAD ASHRAF NAGRA and 12 others‑‑‑Respondents

Intra‑Court Appeal No.346 of 2002 in Writ Petition No.6087 of 2002, heard on 19th December, 2002.

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 65‑‑‑Election record, inspection of‑‑­Powers of Election Tribunal‑‑‑Election Tribunal has been empowered under R.65 of Punjab Local Government Elections Rules, 2000, to order opening of packets of counterfoils and certificates or the inspection of any counted ballot papers.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑‑Rr. 65 & 70‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal ‑‑‑Re­counting of votes‑‑‑Principles‑‑‑Parties contested elections for the office of Nazim and Naib Nazim‑‑‑Appellants were notified as returned candidates but the election was assailed in Election petition‑‑‑Election Tribunal directed the Authorities to produce the polling record for the purpose of recounting of ballot papers‑‑‑Appellants assailed the order of Election Tribunal before High Court in Constitutional petition‑‑‑High Court dismissed the Constitutional petition on the ground that the appellants could raise all available objections after passing of final order by the Election Tribunal‑‑‑Validity‑‑‑In case of only dispute about re‑counting of ballot papers, the election record itself was the best evidence‑‑‑Power to direct re‑count of ballot papers had to be exercised if a proper factual foundation was laid down in the petition and the Election Tribunal was satisfied that a case for re‑counting was made out‑‑‑Election Tribunal duly applied its mind to the respective contentions of the parties and directed re‑count of the votes‑‑‑Such direction was within the discretion of the Election Tribunal and the Tribunal had not exercised the same in an arbitrary manner‑‑­Election dispute was not necessarily a lis inter se parties because it involved the entire constituency, therefore, all efforts were required to be made to expeditiously dispose of an election petition and an election petition was not to be treated like a civil suit‑‑‑Power to re‑count ballot paper could be exercised at any stage of the proceedings by the Election Tribunal‑‑‑Interference with the judgment passed by High Court was declined and Intra­-Court Appeal was dismissed in circumstances.

Kanwar Ijaz Ali v. Irshad Ail and 2 others PLD 1986 SC 483; Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC 867; Dilawar Hussain Butt v. Sheikh Zulfiqar Ali and 4 others 1999 MLD 2602; Sardar Rehmat Ullah Dogar v. Additional District Judge. Kasur and 10 others 1999 MLD 2847 and Sheikh Iftikhar­-ud‑Din and others v. District Judge, Bahawalpur exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523 distinguished.

Muhammad Zulqarnain Muhammad Anwar and others 1990 CLC 736 fol.

(e) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 72‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Election dispute‑‑‑Interim order passed by Election Tribunal‑‑‑Not an inflexible rule that against an interim order of an Election Tribunal, a Constitutional petition would not be competent in any case‑­Matter depends on the facts and circumstances of each case as to whether an interim order of Election Tribunal is found to be arbitrary or against an express provision of law‑‑‑Such interim order is open to judicial review in exercise of Constitutional jurisdiction.

Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC 542 distinguished.

Chaudhry Muzammal Khan for Appellants.

Muhammad Shan Gul for Respondents Nos. 1 and 2.

Date of hearing: 19th December: 2002.

2003 Y L R 817

[Lahore]

Before Farrukh Lateef, J

ABDUL SATTAR HAIDRI‑‑‑Petitioner

Versus

Rana M. HANIF ‑‑‑ Respondent

Civil Revision No.1049 of 2002, decided on 14th November, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, R.2‑‑‑Suit for recovery of money‑‑‑Trial Court had passed a decree against the defendant‑‑‑Claim of the defendant was that according to the settlement reached between the parties decretal amount was to be paid in instalments of Rs.10.000 after every six months therefore, the defendant could not be directed to pay the decretal amount in monthly instalments of Rs.5, 000 and that executing Court had no jurisdiction to vary or to modify the term's of the settlement to made between the parties regarding execution of the decree ‑‑‑Validity‑‑­Said settlement was flouted by the defendant that he did not pay a single instalment despite a lapse of 2/1‑2 years; defendant did not bother to convey to the executing Court about his alleged ailment and his inability to pay the instaments; he did not furnish any evidence regarding the said ailment or any receipt for the purchase of medicines by him; his conduct was not above board and he moved the application for the first time after he was summoned on the application of the plaintiff/decree‑holder through bailable and then non‑bailable warrants‑‑By non‑payment of instalments the settlement was revoked by the defendant and he could not claim execution in accordance‑with said settlement‑­‑Certificate produced by the plaintiff and issued by Manager of a Bank showed that after the settlement was made in the Court, the defendant had deposited in connection with some other liability, in the Bank Rs.1,99,768 plus Rs. 25,.632 after about three months of the date when his first instalment of Rs.10,000 was due which was not paid by him on the pretext of ailment and paucity of funds‑‑‑Contention of the defendant that he was ill and had become pauper due to ailment was false‑‑‑Impugned order of the executing Court did not suffer from any legal infirmity and was consequently maintained by the High Court.

Ch. Muhammad Ashfaque for Petitioner.

Bashir Ahmad Chaudhry for Respondents.

Date of hearing: 14th November. 2002.

2003 Y L R 828

[Lahore]

Before Sayed Zahid Hussain, J

UMAR HAYAT‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through District Officer, Revenue, Jhang and

another‑‑‑Respondents

Civil‑ Revisions Nos. 1381 to 1383 of 2002, heard on 20th January, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.30, 28 & First Sched.‑‑‑Qanun‑e­-Shahadat (10 of 1984), Art. 114‑‑‑Award, setting aside of‑‑‑Grounds raised by respondents were that arbitrator was not competent to make award; that arbitrator had mis-conducted; and that award had been made after three years instead of within four months‑‑‑Trial Court without considering such grounds in their correct perspective set aside award as being time‑barred ‑‑‑Validity‑­Award had to be judged on the touchstone of relevant provisions of Arbitration Act, 1940‑­Clear and specific findings had to be recorded about misconduct of arbitrator in rendering award‑‑‑Such a disposition of matter, particularly in a dispute arising in arbitral matter was not legal‑‑‑Respondents were estopped by their conduct as they had waived their right by taking part in proceedings despite expiry of time prescribed in First Schedule of the Act and not raising any objection before arbitrator for taking a chance to enable him to decide in their favour‑‑‑Award, thus, could not be set aside as being time‑barred‑‑‑High Court accepted revision petition and remanded the case to Trial Court to decide all issues afresh except issue of limitation.

WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Co. PLD 1990 SC 359 and Maj. (Retd.) Humayun Akhtar v. Pakistan Defence Officers Housing Authority PLD 2002 Kar. 427 rel.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 30, 28 & First Sched.‑‑‑Qanun‑e­-Shahadat (10 of 1984), Art. 114‑‑‑Award, setting aside of‑‑‑Award not made within agreed period of four months ‑‑‑Validity‑‑­Conduct of parties in continuously taking part in proceedings before arbitrator could not be ignored.

WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Co. PLD 1990 SC 359 rel.

M. Shahid Maqbool for Petitioner.

Mian Muhammad Athar for Respondents.

Date of hearing: 20th January, 2002.

2003 Y L R 831

[Lahore]

Before Sayed Zahid Hussain, J

SAKINA BIBI and another‑‑‑Petitioners

Versus

MUHAMMAD ANWAR ‑‑‑Respondent

Civil Revision No. 1650‑D of 1998, heard on 8th January, 2003.

(a) Benami transaction‑‑‑

‑‑‑‑ Criteria to determine a transaction to be benami or not‑‑‑Factors to be considered: Source of consideration from whose custody original title deed and other documents came in evidence; who was in possession of suit property and motive for benami transaction.

Salman Asharf v. Begum Asmatun Nisa 1997 CLC 176 and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 rel.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction ‑‑‑Scope‑‑­Concurrent findings of fact‑‑‑Such findings would ordinarily be considered as final and binding‑‑‑Re‑appraisal of evidence would not be undertaken in revisional jurisdiction.

(c) Benami transaction‑‑‑

‑‑‑‑‑ Wife denied husband's claim to be real owner of the property‑‑‑Husband's suit decreed by Trial Court was upheld by Appellate Court‑‑‑Validity‑‑‑Sale consi­deration had passed on to vendor through wife, but source of consideration was her husband‑‑‑Bargain had been struck with husband according to attorney of the vendor and attesting witnesses of sale‑deed‑‑‑Motive of husband to have purchased property in his wife's name was that he was a Government servant‑‑‑Wife had stated that she had paid sale consideration, which she had been saving and had sold a buffalo‑‑‑Wife had admitted that she was illiterate house‑wife, her relation with husband had been strained and she had no resources‑‑‑Courts below had recorded a finding that husband was in possession of property, which had been built by him; and title deed was in possession of the husband, who had produced the same in the Court‑‑‑Such findings as to benami nature of transaction had been recorded on consideration of evidence in its totality, wherein no misreading or non‑reading of any material evidence was found‑‑‑Such a declaration granted by Courts below would hardly call for interference by High Court.

Ghulam Nabi Bhatti for Petitioners.

Dilshad Muhammad Nasir for Respondent.

Date of hearing: 8th January, 2003.

2003 Y L R 836

[Lahore]

Before Khawaja Muhammad Sharif, J

Rao JAMSHAD ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.553 of 2002, decided on 17th October, 2002.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), Ss. 173 & 439‑‑ Revision‑‑‑Accused neither named in Column No.2, nor in column No.3 of the challan, summoned by Trial Court‑‑‑Validity‑‑‑Accused was neither named in the FI.R. nor in Column No.2 or No. 3 of the challan and he was not sent up for trial by the Magistrate to the Sessions Court‑‑‑Complainant, however, had implicated the accused in his supplementary statement recorded two months after the occurrence‑‑‑Sessions Court had summoned the accused without recording any evidence on the record‑‑‑Accused discharged by the police could not be summoned by the Trial Court without recording evidence and satisfying itself about existence of a prima facie case against him‑‑‑Impugned order being illegal was set aside and the revision was accepted accordingly.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63 distinguished.

1985 SCMR 1314 and Muhammad Ibraheem v. Qudrat Ullah Ruddy and others PLD 1986 Lah. 256 ref.

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

‑‑‑‑Ss. 173, 190 & 193‑‑‑Report of Police Officer‑‑‑Cognizance by Trial Court‑‑­Accused person discharged by the police cannot be summoned unless the evidence of an eye‑witness is recorded by the Trial Court including his cross‑examination and it finds sufficient material on record against the accused.

Muhammad Ibraheem v. Qudrat Ullah Ruddy and others PLD 1986 Lah. 256 ref.

Rao Naeem Hashim Khan for Petitioner.

Muhammad Jehangir Wahla, A.A.‑G.

Zahid Nawaz Chheena for the Complainant.

2003 Y L R 839

[Lahore]

Before Mian Saqib Nisar, J

GHEE CORPORATION OF PAKISTAN (PVT.) LTD. Through

Secretary‑‑‑Petitioner

Versus

Mst. SURRAYA JAN and 8 others‑‑‑Respondents

Civil Revision No. 1573/D of 1996, heard on 12th November, 2002.

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

‑‑‑‑O.XX R.18‑‑‑Limitation Act (IX of 1908) S.28‑‑‑Hydrogenates) Vegetable Oil Industry, (Control and Development) Act (LXV of 1973), S.27‑‑‑Suit for partition as co‑sharer‑­Concurrent findings of Courts below‑‑‑Trial Court had found that the plaintiffs were the joint owner of the suit property to the extent of 5/6th share and the alienation of their share by a certain co‑sharer in favour of another person and any other further transfer of the proprietary rights by the latter to a company was illegal and unauthorized as there was no valid transaction of sale, therefore, plaintiff continued to be the co-­owner of the suit property ‑‑‑Validity‑‑­Foundation of the defendant's defence in the suit was the agreement dated 8‑8‑1960 allegedly executed by the said co‑sharer having 1/6th share of suit property in favour of said person‑‑‑Such document was unregistered and had never been given effect in the Revenue Record by virtue of am mutation‑‑‑Defendant had failed to show to the Court any entry in the entire Revenue Record which had its genesis in the said agreement‑‑Document in question was an unfitness/unattested one and did not bear signatures of the plaintiffs who were admittedly the co‑owners of the suit property having 5/6th share alongwith the said co sharer‑‑‑No explanation was on the record to show as, to how and under what authority the said co‑owner could agree or alienate the shares of the plaintiffs (some of them being minors) in the suit property in favour of another person and as to how subsequently the said buyer had transferred the suit‑land in favour of the company‑‑‑No sale/transfer initiation existed‑‑‑Entry at the bottom of the Jamabandi for the year 1965‑66, much relied upon by the defendant was not shown to be based upon the sanctioning of sale mutation by the Revenue Officer in favour of the company‑‑‑No Jamabandi was available on record in which the name of the defendant had been incorporated as the owner‑‑­Plaintiffs had neither been proved or to have received any consideration from the person to whom the suit property had been allegedly sold nor got the compensation of suit‑land an account of nationalization of the company, even this was not the case of the defendants‑‑­Neither the company had been able to prove its continuous possession over the land for 12 years nor it had been shown, proved or established through any documentary or oral evidence that such possession for the requisite period was hostile and adverse to the rights of the actual owners‑‑‑Fact remained that the alleged possession of the company in any form remained to be permissive as possession of one of the co‑owners would be deemed to be the possession of the others and in such circumstances co‑owner could never set up a plea of adverse possession‑‑‑Plaintiffs having established themselves to be the co‑owners of the suit property, findings of the Courts below did not suffer from any legal infirmity and were accordingly maintained.

(b) West Pakistan Land Revenue Act (X VII of 1967)‑‑‑

‑‑‑‑S. 52 ‑‑‑ Jamabandi ‑‑‑ Presumption of correctness is though attached to a Jamabandi but it is only when a change in ownership has been shown to have been legally and competently made according to law.

(c) Adverse possession‑‑‑

‑‑‑‑ Permissive possession can never he converted to adverse possession, until the possession is surrendered and illegal re‑entry is made.

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

‑‑‑‑O.XX, R.18‑‑‑Limitation Act (IX of 1908), S.7‑‑‑Suit for partition as co‑sharer‑‑­Limitation‑‑‑No period of limitation for a co­-owner to seek decree for partition‑‑­Contention that the suit having been brought after 12 years of alleged agreement to sell or three years on attaining the majority by the defendants (minors) were misconceived and had no force.

Najaf Shah for Petitioner.

Muhammad Aslam Riaz and Ashter Ausaf Ali for Respondents.

Date of hearing: 12th November, 2002.

2003 Y L R 844

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

NOOR AHMAD‑‑‑Petitioner

Versus

MEMBER, BOARD OF REVENUE‑‑‑Respondent

Writ Petition No.272 of 1992/BWP, heard on 18th December, 2002.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Factual controversy‑‑­Consolidation of lands‑‑‑Grievance of the petitioner was that the land allocated to the petitioner was not adjacent to his remaining land‑‑‑Validity‑‑‑Factual controversy was involved in the case and the same could not be resolved by High Court in the exercise of extraordinary Constitutional jurisdiction‑‑­High Court declined to interfere with the land allocated by Revenue Authorities in consolidation proceedings‑‑‑Petition was dismissed in circumstances.

Ch. Habib Ahmad Mand for Petitioner.

Mian Muhammad Bashir, A.A.‑G.

Date of hearing: 18th December, 2002.

2003 Y L R 847

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. SARDAR ALI‑‑‑Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN and another‑‑Respondents

Writ Petition No.6278 of 2002 heard on 30th April, 2002.

(a) Interpretation of statutes‑‑‑

‑‑‑‑Anomaly is to be resolved in favour of the provisions of parent law itself.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14(1) & (2) [as added by Punjab Local Government Elections (Amendment) Ordinance (X of 2001)]‑‑‑Qualification of candidates‑‑‑Determination‑‑‑Jurisdiction of Chief Election Commissioner ‑‑‑Scope‑­Finding to be recorded by Chief. Election Commissioner to decide as to whether or not a person has contravened any of the provisions of S.14(1) which is primarily a finding of fact‑‑‑Chief Election Commissioner has to find if candidate has contravened the provisions of S.14(1) of Punjab Local Government Elections Ordinance, 2000, before such person ceases to be an elected member or to hold the office of such member and stands disqualified from being a candidate for an election for a period of four years.

(c) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14(1) (e)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Qualification of candidate ‑‑‑Determination‑‑­Jurisdiction of Chief Election Commissioner‑­Objection to the qualification of the candidate was raised at the time of filing of nomination papers, the objection was rejected by the Returning Officer and appeal a well as Constitutional petition filed by the objector were also dismissed‑‑‑Petitioner was declared as returned candidate and the election was assailed before Election Tribunal on the ground that the petitioner was not a Matriculate‑‑‑During the pendency of election petition, the respondent filed application before Chief Election Commissioner who found that the petitioner was not qualified as he had not acquired the academic qualification as required by S.14(1)(e) of Punjab Local Government Elections Ordinance, 2000, and was disqualified from the election‑‑‑Order passed by the Chief Election Commissioner was based upon an inquiry report submitted by an official‑‑‑Plea raised by the petitioner was that he had been condemned unheard‑‑‑Validity‑‑‑No trial and no inquiry was held and the petitioner was not even confronted with copy of the inquiry report‑‑‑Report was only an opinion of the person making the inquiry and minimum requirement was that the person must appear in the witness‑box and allow himself to be subjected to cross‑examination‑‑‑Chief Election Commissioner had been vested with all powers in the matter of elections, High Court, in circumstances, set aside the order passed against the petitioner and remanded the case to the Chief Election Commissioner for proceeding in the matter according to law.

Ch. Nazir Ahmed and others v. Chief Election Commissioner and 4 others PLD 2002, SC 184 ref.

S. M. Masood for Petitioner.

Fauzi Zafar, A.A.‑G.

Rana Muhammad Akram for Respondent No.2.

Date of hearing: 30th April, 2002.

2003 Y L R 852

[Lahore]

Before Khawaja Muhammad Sharif, J

JAAFAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.83‑J of 2001, heard on 18th September, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑F.I.R. was belated by three days‑‑‑No eye­witness was available in the case‑‑‑Dead body was not recovered on the pointation of accused‑‑‑Except evidence of last seen no other evidence was brought on record by the prosecution on which four co‑accused had already been acquitted‑‑‑Conviction of accused could not be sustained simply on the evidence of suspicion and motive as alleged by the prosecution in the case which was shrouded in mystery and was full of doubts‑‑‑ Accused was extended benefit of doubt and acquitted in circumstances.

Hussain Aziz Bhatti for Appellant.

Ch. Muhammad Nazir for the State.

2003 Y L R 861

[Lahore]

Before Mian Nazir Akhtar, J

NISAR AHMAD SABRI‑‑‑Petitioner

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and 5 others‑‑‑Respondents

Writ Petitions Nos.2549 of 1988 and 14182 of 1994, heard on 23rd May, 2002.

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

‑‑‑‑Ss. 4 & 17(4)‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition ‑‑­Maintainability‑‑‑ Laches‑‑‑Applicability‑‑­Acquisition of land‑‑‑Initial notification of acquisition of land was issued on 14‑12‑1980 and Constitutional petition was filed on 14‑11‑1994‑‑‑Entire issue regarding determination of the price was alive and had to be decided in accordance with law‑‑­Validity‑‑‑Constitutional petition did not suffer front laches to the extent of determination of price of the land by the Board of Revenue‑‑‑Constitutional petition was maintainable in circumstances.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑­Written statement, non‑filing of‑‑‑No written statement was fled on behalf of respondent after admission of the petition for regular hearing‑‑‑Effect‑Facts stated In the Constitutional petition were deemed to have been admitted In circumstances.

(c) Land Acquisition Act (I of 1894)‑‑‑-

‑‑‑‑Ss. 4 & 17(4)‑‑‑Land Acquisition Rules, 1983, R.12‑‑‑Approval of the estimated cost of the land by the Board of Revenue‑‑­Retrospective effect of Land Acquisition Rules, 1983‑‑‑Applicability‑‑‑Acquisition in the present case was completed in the year 1981‑82, therefore, Lad Acquisition Rules, 1983, which were prospective in nature had no application to the same.

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

‑‑‑‑Ss. 4 & 17(4)‑‑‑General Clauses Act (X of 1897), S.22‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Principles of audi alteram partem and locus poenitentiae‑‑ Applicability‑‑‑Land owned by petitioners was acquired under S.17(4) of Land Acquisition Act, 1894‑‑‑Matter was referred to the Government in view of guidelines issued by Government in the year 1970, regarding acquisition of land, as the case involved cost exceeding Rs.500,000 and Board of Revenue granted approval to the assessment of the cost after thorough inquiry‑‑‑Board of Revenue recalled its earlier order and the estimated cost of the land was increased from Rs. 102.93 to Rs.1,016 per Maria‑‑‑Approval granted by the Provincial Government had been communicated to the Authorities with a direction to arrange deposit of amount of cost‑‑‑Approved estimated cost was subsequently reduced ,without any notice to the petitioners interested landowners‑‑­Validity‑‑‑After the direction was communicated to the Authorities, the Government was no longer competent to review or recall the order by resorting to the provisions of S.22 of General Clauses Act, )894, because a decisive step had been taken after passing the first order and power of receding could not be exercised by means of the order‑‑‑Petitioners in the present case, had felt satisfied with the rate of Rs.1,016 per Marla and the award could have been passed on the basis of the same‑‑‑Subsequent review of the earlier order and reduction of price was in violation of the principle of audi alteram partem (no one should be condemned unheard) and was a nullity in the eye of law‑­Order passed by Board of Revenue was without lawful authority and of no legal effect‑‑‑High Court restored the earlier determination of the cost of disputed land by the Revenue Department which was fixed at the rate of Rs.1,016 per Maria‑‑­Constitutional petition was allowed accordingly.

Muhammad Hussain and others v. Member (Revenue), Board of Revenue, Punjab and others 1988 CLC 1745; Pir Khan through his Legal Heirs v. Military Estate Office, Abbottabad and others PLD 1987 SC 485; Behram Khan and 54 others v. Military Estate Officer and 2 others 1988 SCMR 1160; Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others 1989 SCMR 812; I.C.I. Pakistan Limited v. Salahuddin and others 1991 SCMR 15; Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193; Mtan Atta Ullah v. Lahore Development Authority Tribunal and 5 others 1996 CLC 1943; Government of N.‑W.F.P. and others v. Mst. Jamshed Bibi and another PLD v. 1997. Pesh. 19; Nazir Ahmad v. The State 1997 MLD 2641; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Makhdoom Ahmad Chauns v. Chariman, Town/Municipal Committee, Qadipur Rawn, Multan and 3 others 1993 MLD 1987 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 ref.

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

‑‑‑‑S. 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Proceedings under S.18 of Land Acquisition Act, 1894‑‑‑Scope‑‑­Detertnination of cost of land‑‑‑Power of High Court in exercise of Constitutional jurisdiction‑‑‑Extent‑‑‑Objection to the maintainability of the Constitutional petition was raised on the ground that reference had been filed in the Court and the cost of land could be decided there‑‑‑Land owners had agreed to the cost of land fixed by the Board of Revenue but the cost was subsequently reduced unilaterally‑‑‑Landowners had assailed such reduction in cost and the Constitutional petition was filed before filing of the reference‑‑‑Validity‑‑‑Only after the announcement of the award, the provisions of S.18 of Land Acquisition Act, 1894, could come into play‑‑‑Reference could be filed by the interested parties on the basis of their objections to the measurement of the land, the amount of compensation, the persons to whom it vas payable or the apportionment of the compensation among the persons interested‑‑‑When question of determination of the cost of land was under consideration the Competent Authority before the announcement of the award, the provision of S.18 of Land Acquisition Act, 1894, was not applicable‑‑‑High Court could competent!,, decide the question regarding determination of the cost of land made by the Board of Revenue‑‑‑Constitutional petition was main­tainable in circumstances.

A. R. Shaukat for Petitioner.

Ch. Khurshid Ahmad for Respondent No.5.

Muhammad Hanif Khitana, Addl. A.‑G.

Date of hearing: 23rd May, 2002.

2003 Y L R 870

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. ATIA WAHAB and another‑‑‑Petitioners

Versus

MUNIR AHMED and 2 others‑‑‑Respondents

Writ Petition No. 12013 of 1999, heard on 7th November, 2002.

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

‑‑‑‑Ss.5, Sched., 14(2) (c) & 17‑‑‑Civil Procedure Code (V of 1908), S.11‑‑-Suit for maintenance‑‑‑Second suit, maintainability of‑‑‑Suit for maintenance filed on' behalf of minors was decreed in their favour fixing Rs.200 per child per month and said decree was maintained up to the High Court‑‑­Plaintiff minors filed another suit in which they had prayed for enhancement of their maintenance allowance on ground of devaluation in currency and other expenses‑‑­Trial Court decreed the suit and enhanced the maintenance allowance from Rs.200 to Rs.300 per 'child per month‑‑‑Said decree was not challenged by the defendant, father of minors, but plaintiffs filed appeal praying that even enhanced amount of maintenance allowance was very measure and same should further be enhanced and said appeal was dismissed by the Appellate Court of the ground that same was not maintainable in view of S.14(2) (c) of West Pakistan Family Courts Act, 1964‑‑‑Defendant had contended that second suit was not maintainable as second suit on the same cause of action was barred under S.11, C.P.C. at contemplated by S.17 of West Pakistan Family Courts Act, 1964‑‑‑Validity‑‑‑Contention of defendant was repelled firstly, because the objection was never raised by defendant before Courts below; secondly, that decree passed by Trial Court in second case was never challenged by the defendant either through ah appeal or a Constitutional petition or whatever remedy was available to him; and lastly that even if second suit was barred, same could be treated as miscellaneous application and proceeded in accordance with law‑‑‑Plaintiffs could not be non‑suited merely on such technical objection.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss.5, Sched., 14 & 17‑‑‑Constitution of, Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for maintenance‑‑‑Appeal against judgment and decree of Family Court‑‑‑Plaintiffs who in earlier suit were granted Rs.200 per month per child and in second suit amount of Rs.200 was enhanced up to Rs.300 per month had not challenged the decree of maintenance passed by Family Court in appeal, but they had only challenged in appeal the decision given by Family Court regarding amount of the maintenance‑‑‑Case of plaintiffs, in circumstances, would fall under S.14(1) of West Pakistan Family Courts Act, 1964 and decision of Family Court with respect to amount fixed by Family Court, could be examined by Appellate Court under the said section‑‑‑Bar of appeal was only available against defendant, father of plaintiff minors who wanted to challenge the very decree itself in which amount of maintenance was less than Rs.500, if he would question the very passing of decree of maintenance against him‑‑‑Legislature could not be imputed with an intention that minors or wife who had already been granted a meagre amount of maintenance, would also be deprived of a right of appeal as well‑‑­Order of Appellate Court dismissing appeal of plaintiffs on ground that same was not maintainable was set aside by High Court declaring the same to be illegal‑‑‑Appeal filed by plaintiffs before Appellate Court would be deemed to be pending ‑ and would be disposed of in accordance with law.

Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 ref.

Athar Rehman Khan for Petitioners.

Muhammad Zafar Khan Sial for Respondents.

Date of hearing: 7th November, 2002.

2003 Y L R 874

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

FAQIR MUHAMMAD ‑‑‑Petitioner

Versus

ZAHOOR AHMAD and 6 others‑‑‑Respondents

Civil Revision No.447 of 1996, heard on 19th November, 2002.

(a) Guardians and Wards Act (VIII of 1890)‑‑‑--

‑‑‑‑Ss.6 & 7‑‑‑Contract Act (IX of 1872), S.11‑‑‑Appointment of guardian of minor‑‑­Authority of guardian‑‑‑After death of original owner; his property was devolved upon his widow and minor children‑‑‑Widow of deceased was appointed a person guardian of minors and thereafter said guardian herself and on behalf of minors appointed a person as a general attorney and said attorney sold the property of deceased to a person who further sold same to another person without permission of Guardian Judge ‑‑‑Validity‑‑­Widow after having been appointed as guardian of minors, was to act within four corners of terms of her appointment and under provisions of Guardians and Ward Act, 1890‑‑‑Guardian appointed by Judge of Guardian Court and having been conferred authority by the Court could not further delegate his/her powers to any other person without permission of the Judge of Guardian Court‑‑‑Power of attorney, in circumstances was void being without lawful authority.

Muhammad Sohail and 2 others v, Government of N.‑W.F.P. and others 1996 SCMR 218; Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145; Nana Oforiatta II v. Nana Abu Bonsra II PLD 1958 PC 68 and Mst. Khurshid Begum and others v. Ghulam Kubra and others 1982 SCMR 90 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.11‑‑‑Contract by minor‑‑‑Validity Contract by a minor was void and that fact did not need a declaration by a Court or any incidental proceedings‑‑‑Once it was admitted or proved before a Court that a minor was party to a contract sought to be enforced against him same could not be enforced against him on ground that it was void contract.

Mujeeb‑ur‑Rehman Kiani for Petitioner.

Subah Sadiq Bhutta for Respondents Nos. 1 to 5.

Nemo for other Respondents.

Date of hearing: 19th November, 2002.

2003 Y L R 883

[Lahore]

Before Farrukh Lateef, J

Mst. SAKINA‑‑‑Petitioner

Versus

MUHAMMAD EJAZ BUTT and another‑‑‑Respondents

Writ Petition No.6500‑F of 2002, decided on 19th November, 2002.

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

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Suit for dissolution of marriage‑‑‑Ex parse decree, setting aside of‑‑‑Restoration of suit‑‑‑Suit for dissolution of marriage by wife was decreed ex parte in her favour‑‑‑Plaintiff (wife) after observing 'Iddat' contracted second Nikah with another person‑‑‑­Defendant, thereafter moved an application for setting aside ex parte decree against him which was accepted by Family‑ Court and after setting aside ex parte decree, suit wets restored‑‑‑Plaintiff, however, withdrew the suit (which was restored) and order of setting aside ex parte decree and restoration of suit was assailed by her by a Constitutional petition‑‑‑Validity‑‑‑Suit for dissolution having been withdrawn by the plaintiff Constitutional petition had become infructuous‑‑‑Even if order impugned. in the Constitutional petition, was set aside, ex parte decree of dissolution of marriage passed in favour of plaintiff would not be restored because the very suit which had fructuated in form of ex parte decree, stood withdrawn, with the result that ex parte decree of dissolution of marriage which owed its existence by virtue of said suit, would also become non‑existent.

Malik Javed Iqbal for Petitioner.

Bashir Ahmad Bhatti for Respondent No.2.

2003 Y L R 884

[Lahore]

Before Farrukh Lateef, J

ABDUL MAJID‑‑‑Petitioner

Versus

JUDGE FAMILY COURT, KEHROR PACCA and 2 others‑‑‑Respondents

Writ Petition No.3323 of 2002, decided on 18th September, 2002.

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

‑‑‑‑Preamble & S.17‑‑‑Object and purpose of West Pakistan Family Courts Act, 1964‑‑­Jurisdiction of Family Courts‑‑‑West Pakistan Family Courts Act, 1964 was enacted with the object to create a Special Court for the decision of matters mentioned therein; real inquisitional jurisdiction was given to Family Courts by introduction of special procedure‑‑­Family Court under the said Act had to regulate its own proceedings in accordance with the provisions of that Act and in doing so it had to proceed on the premises that every procedure was permissible, unless a clear prohibition was found in law‑‑‑When circumstances so demanded, Family Court could exercise its own power to prevent the course of justice being deflected from the path‑‑‑West Pakistan Family Courts Act, 1964 was enacted in 1964 and Qanun‑e-­Shahadat, 1984 being subsequent legislation,. could not be anticipated in 1964 during enactment of West Pakistan Family Courts Act, 1964‑‑‑Since purpose, object and intention behind S.17 of West Pakistan Family Courts Act, 1964 was to exclude application of law of evidence (Qanun‑e­Shahadat) to the proceedings before any Family Court, it was immaterial, if later on law of evidence was replaced by Qanun‑e­Shahadat, 1984‑‑‑Bar contained in S.17 of West Pakistan Family Courts Act, 1.964, in circumstances would apply to provisions of law of evidence irrespective of the fact whether it was amended, repealed and replaced by subsequent legislation and was given another name‑‑‑Family Court was not legally bound to accept a document as true and genuine merely because it was a certified copy of public record‑‑‑Family Court could refuse to attach weight to said document in view of other convincing evidence to the contrary and it could take notice of any material on record in connection with question of controversy between the parties and was legally competent to evaluate that evidence.

Mst. Bakht‑e‑Rawida v. Ghulam Habib and 2 others PLD 1992 Kar. 46 ref.

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

‑‑‑‑Ss. 5, Sched. & 17‑‑‑Suit for main­tenance ‑‑‑Age of plaintiffs‑‑‑Family Court on basis of evidence on record including Radiological Examination Report, concluded that plaintiffs were minors‑‑‑Finding of Family Court to the effect that both plaintiffs were minors, was unexceptionable and no illegality was committed by Family Court in not placing reliance on copy of Register of Birth entry because in view of evidence produced on record said document did not appear to be authentic and genuine.

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss.5, Sched. & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Appraisal of evidence was the function of Family Court which was vested with exclusive jurisdiction in this regard‑‑­Finding of fact recorded by Family Court could not be interfered with in Constitutional jurisdiction of High Court when it was not shown to be based on misreading and non­ reading of material evidence and reasons had been given in support of conclusion arrived at‑‑‑High Court under its Constitutional jurisdiction could not assume role of Appellate Court for arriving at its oii‑7; conclusion after reappraisal of evidence adduced before Family Court.

Malik Javed Akhtar Wains for Petitioner.

Nemo for Respondents Nos.2 and 3.

Date of hearing : 5th September 2002.

2003 Y L R 889

[Lahore]

Before Mian Saqib Nisar, J

RAFIQUE AHMAD through Legal Heirs and 10 others‑‑‑Petitioners

Versus

MUHAMMAD ANWAR ‑‑‑Respondent

Civil Revision No.1321 of 1996, heard on 20th November, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.112(g)‑‑‑Judicial notice‑‑‑Public holiday‑‑‑Reason advanced by a party for not getting the document drafted by deed writers was that on the day when the document was scribed, it was Sunday and the deed writers were not available‑‑‑Effect‑‑‑From the calendar of the relevant year, the Trial Court had taken a judicial notice that it was neither Sunday nor a national or local holiday‑‑­Justification for not getting the document drafted by licensed deed writer who could have incorporated the agreement in his official register had been repelled in circumstances.

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

‑‑‑‑Ss.8 & 12‑‑‑Qanun‑e‑Shaadat (10 of 1984), Art.59‑‑‑Execution of document‑­Proof‑‑‑Report of Finger Print Expert‑‑‑Two suits were filed by the parties, plaintiff filed suit for possession while the defendant had filed suit for specific performance of agreement to sell‑‑‑Contention of the defendant was that an agreement to sell the suit land was executed in his favour with the delivery of possession which was denied by the plaintiff‑‑‑Thumb‑impression on the ­document was disputed and the same was examined by Finger Print Expert ‑‑‑ Witness, who produced the report in the Trial Court was not the author of the report nor he had examined the document or given his opinion thereto‑‑‑Trial Court dismissed the suit filed by the defendant and that of the plaintiff for possession was decreed‑‑‑Appellate Court reversed the findings of Trial Court on the issue of execution of document on the assumption that because tote plaintiff has failed to prove the forcible possession of the defendant and the report of the expert had established the thumb‑impression, therefore, appeal filed by the defendant was allowed‑­Plea raised by the plaintiff was that the report of Finger Print Experts was not proved in accordance with law as the same was signed by three officers of the Finger Print Bureau but the experts who had examined the thumb‑impression were not examined a witnesses‑‑‑Validity‑‑‑Defendant failed to prove the report of Finger Print Expert, therefore, judgment and decree passed by the Appellate Court was a result of material irregularity and erroneous exercise of jurisdiction‑‑‑Judgment and decree passed by the Appellate Court were set aside and that of the Dial Court was restored‑‑‑Revision was allowed' circumstances.

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

‑‑‑‑Ss. 115 & 151‑‑‑Revision‑‑‑Maintainability‑‑‑Term case decided ‑‑­Applicability,‑‑Consolidation of suits ‑‑‑ Two suits filed by both the parties were consolidated and single appeal was fled, against the judgment and decree passed by the Trial Court‑‑‑Revision was ,filed against the judgment and decree passed by the Appellate Court‑‑‑Objection was raised to the effect that single revision was not maintainable‑‑‑Validity‑‑‑Appellate Court having` not passed two decree sheets, the petitioners were riot required to file two revision petitions‑‑‑Under S.115, C. P. C. it is the 'case decided'‑ by the subordinate Court which is to be assailed unlike the decree in appeal arid if the decision is set aside, automatically the decree based thereupon goes away‑‑‑Objection raised by the respondent was repelled by High Court‑‑­Revision was maintainable in circumstances.

Ch. Muhammad Maqsood Ahmad for Petitioners.

S. M. Tayyab for Respondents.

Date of hearing: 20th November, 2002.

2003 Y L R 902

[Lahore]

Before Mrs. Fakhar un Nisa Khokhar, J

PROVINCE OF PUNJAB and others---Petitioners

versus

QURBAN ALI ---Respondent

Civil Revision No.717 of 1998, heard on 22nd January, 2003.

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

----S.115---Limitation Act (IX of 1908), S.5--­Delay in filing revision, condonation of--­Provisions of S.5, Limitation Act, 1908--­Applicability---Revision filed by petitioner admittedly was time-barred by 122 days and no substantial reasons had been shown for such delay---Each day was to be explained and there must be cogent and substantial reasons to condone delay as delay in filing revision would give a right of dismissal to the adverse party---Provisions of S.5 of Limitation Act, 1908, otherwise being not applicable to revision petition, revision filed with considerable delay, was dismissed as time-barred.

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

----Ss.10 & 30(2) (b)---Grant of tenancy under Tarbela Dam Oustees Scheme---Resumption of land---Validity---Board of Revenue was empowered to resume land in respect of which proprietary rights had been acquired by fraud or misrepresentation or on account of ineligibility of a lessee---Order tainted with fraud or misrepresentation could not be allowed to attain finality, but grant of tenancy which was not in accordance with statement of conditions under S. 10 of Colonization of Government Lands (Punjab) Act, 1912 so as to enable the grantee to acquire proprietary rights in land, suo Motu action taken by Member, Board of Revenue under S.30(2)(b) of Colonization of Government Lands (Punjab) Act, 1912, was not justified without hearing the respondents/oustees from the Tarbela Dam Oustees Scheme---Provisions of S.30(2) (b) of Colonization of Government Lands (Punjab) Act, 1912 did not give open handed authority to Board of Revenue to set aside a deed at any time without determining the eligibility of the allottee and giving him hearing and also keeping in view terms and conditions of Scheme under which allottee was holding the proprietary rights when proprietary rights were not tainted with fraud or misrepresentation---In absence of any material irregularity or an error of jurisdiction in concurrent findings of Court below, same could not be interfered with in revision before High. Court.

Commissioner of Income-tax v. Rais Pir Ahmad Khan 1981 SCMR 37; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 and The State v. Hashim through Muhammad Amir and others 1996 MLD 258 ref.

Ch. Ghulam Hussain for Petitioners.

Ch. Atta Ullah for Respondent.

Date of hearing: 22nd, January, 2003

2003 Y L R 905

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

SHAHZAD GHAFFAR---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No.549 of 2001, heard on 11 th December, 2002.

Control of Narcotic Substances Act (XXV of 1997)___

----S.9(c)---Appreciation of evidence---Sample of narcotic alllegedly recovered from the accused was sent for analysis to the Chemical Examiner after a delay of three months and twenty days---Two co-accused had been acquitted on the same evidence and their acquittal had not been challenged---F.I.R. under the direction of High Court had been registered against the Investigating Officer in the case---Case against accused, thus, was of doubtful nature---Accused was acquitted on benefit of doubt in ,circumstances. [p. 907] A

1999 PC. LJ 1572 and PLD 1997 SC 408 ref.

Mian Muzaffar Ahmad for

Petitioner.

M. Bilal Khan, Addl. A.-G. with Miss Zarqa Bashir for the State.

Date of hearing: 11th December. 2002.

2003 Y L R 940

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

Mst. KASAM KHATOON and others---Petitioners

versus

QAIM DIN and others---Respondents

Civil Revision No.20-D of 1991/BWP, heard on 18th December, 2002.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.11---Suit for declaration---Principle of res judicata---Applicability---Earlier suit for possession through pre-emption was filed by the predecessor-in-interest of defendant qua the suit-land---Plaintiffs were party in the earlier suit which was decreed in favour of the defendants and the plaintiff received sale price---Judgment and decree passed in the earlier pre-emption suit was not assailed before any forum and the same had attained finality---Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed in favour of the plaintiffs--­Plea raised by the defendants was that the suit was hit by principle of res judicata--­Validity---Plaintiffs remained silent for about 11 years after the earlier judgment which showed that they had admitted the judgment in pre-emption suit to be correct---Plaintiffs could not file the fresh suit and the same was hit by principle of res judicata---Judgment and decree passed by the Appellate Court were set aside and the suit filed by the plaintiff was dismissed.

Ch. Naseer Ahmad for Petitioners.

Raja M. Sohail Iftikhar for Respondents.

Date of hearing: 18th December, 2002.

2003 Y L R 948

[Lahore]

Before Ch. Ijaz Ahmad and Sayed Zahid Hussain, JJ

Chaudhary JAVED ILLAHI---Appellant

versus

Mrs. SHAFAQAT MALIK and 2 others---Respondents

Regular Mist Appeal No.20 of 1992, heard on 21st May, 2002.

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

----Art.189---Judgment passed by Supreme Court has prospective effect.

Muhammad Yousaf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore PLD 1968 SC 101 ref.

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

----S.35(2)---Pre-emption suit filed during interregnum---Suit filed on 10-5-1989--­Validity---Such suit, under the provisions of S.35(2) of Punjab Pre-emption Act, 1991, was within time.

Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah.200 and Muhammad Khan v. Subah Sadiq and another 1999 YLR 923 ref.

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

----S.6(2)---Civil Procedure Code (V of 1908), S.96---"Zaroorat" or avoidance of "Zarar"---Non-raising of such plea ---Effect--­Suit was fled on 10-5-1989 when no law of pre-emption was in existence---During the pendency of the suit Punjab Pre-emption Act, 1991 was promulgated wherein it was a mandatory, requirement for pre-emptor to prove plea of "Zaroorat " or avoidance of "Zarar"---Provision of S.6(2) of Punjab Pre­emption Act, 1991 having been declared as repugnant to Injunctions of Islam by the Federal Shariat Court and the same ceased to have effect on 31-12-1993---Trial Court dismissed the suit on 14-12-1991---Plea raised by the pre-emptor was that as the provisions of S.6(2) of Punjab Pre-emption Act, 1991, had been struck off, the same was not required to be proved---Validity---All the stages during the trial of the present case, the provisions of S.6(2) of Punjab Pre-emption Act, 1991 were part of the statute and the pre-emptor had led no evidence on the score of "Zaroorat " or to avoid "Zarar "--­Conditions prescribed under S.6(2) of Punjab Pre-emption Act, 1991, were to be fulfilled by the pre-emptor before he could bring a suit for pre-emption ---Pre-emptor having failed to fulfill the mandatory conditions prescribed by law, the suit was not maintainable---Judgment and decree passed by the Trial Court was upheld by High Court---Appeal was dismissed in circumstances.

Said Kamal Shah's case PLD 1986 SC 360; Muhammad Ismail Qureshi and others v. Government of Punjab and others PLD 1991 FSC 80; Muhammad Ishaque and 2 others v. District Judge, Sargodha and 3 others PLD 1993 Lah. 456; Ch. Abdul Majeed v. Ch. Inayat Ali and 4 others PLD 2001 Lah. 194; Mst. Ulfat Butt v. Muhammad ' Rafique and others 2000 YLR 2753; Haji Rana Muhammad Shabbir Ahmed Khan's case PLD 1994 SC 1; Sardar Khan and others v. Muhammad Siddique 2000 MLD 616; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200; Muhammad Ali v. Muhammad Hussain 1995 MLD 5; Fazal Elahi and 26 others v. District Judge, Attock and 3 others 1993 CLC 85 and Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870 ref.

Muhammad Nawaz Bhatti for Appellant.

Talat Farooq Sh. and S.M. Nazim for Respondents.

Date of hearing: 21st May, 2002.

2003 Y L R 953

[Lahore]

Before Rustam Ali Malik, J

Mst. GHULAM BIBI---Petitioner

versus

SABIR HUSSAIN and another---Respondents

Civil Revision No.2795 of 1996, heard on 2nd October, 2002.

Civil Procedure Code (V of 1908)--

----Ss.l2(2), 1,51 & Off, R.13---Challenging decree on allegations of fraud and misrepresentation---Holding of enquiry--­Necessity---Judgment-debtor filed application for setting aside decree passed against her in suit for specific performance of agreement alleging that such decree was the result of collusion between her general attorney and plaintiff/decree-holder---Not mandatory .that in all applications filed under S.12(2), C.P.C. an inquiry be necessarily held and frivolous application could be dismissed even summarily, but in case applicant having clearly alleged fraud and misrepresentation while challenging the decree in question, holding of an inquiry was a must---Court in the present case, while decreeing the suit did not frame issues and decided the application without recording evidence of parties, which had resulted in failure of justice---Question of limitation could only be decided after recording evidence of parties when the applicant had claimed that decree in question had never come to her knowledge previously and that she had filed application as soon as it came to her notice---Order dismissing application filed under S. 12(2), C.P.C. was set aside by High Court and case was remanded with direction to decide the application after framing issues arising out of pleadings of the parties and after recording evidence.

Akhtar Masood Khans for Petitioner.

Farooq Hassan Naqvi for Respondents.

Date of hearing: 2nd October, 2002.

2003 Y L R 956

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

IQRAR HUSSAIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.551 of 2001, decided on 26th April, 2002.

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

----Ss. 302(b)/148/452/149---Appreciation of evidence---Interested witnesses---Accused was not named in F.I.R., but his name was included through supplementary statement of complainant recorded after eighteen days of occurrence---Clear record was not available as to how and when complainant had come to know about identity of appellant---Entire case of prosecution rested upon statements of two eye-witnesses (father and wife of deceased)--­Such witnesses were interested as their enmity with accused party was established---Strong corroborative evidence was required to rely, upon statements of such witnesses ---F.I.R. had been lodged within one hour of the occurrence---Complainant (eye-witness) in his statement had admitted that complaint on the basis of which F.I.R. was got registered, had been drafted by an Advocate summoned from another place after occurrence---Such fact had made authenticity of F.I.R. doubtful and had shaken credibility of prosecution case--­Medical evidence as to fire-arm injuries on person of deceased did not support prosecution story---Empties recovered from spot did not match with weapon recovered from accused---Not safe to rely upon statements of interested eye-witnesses, in circumstances---Accused was entitled to get benefit of doubt---High Court accepted appeal of accused and set aside his conviction and sentence.

(b) Criminal trial---

---- Interested witness---Eye-witnesses having enmity with accused party fell within category of interested witnesses---To rely upon their statements, one must look for corroborative piece of evidence for safer administration of justice.

Muhammad Aurangzeb Mir for Appellant.

Sh. Khalid Habib for the State.

Date of hearing: 26th April, 2002.

2003 Y L R 963

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

MUHAMMAD ISMAIL ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 114 of 1997, heard on 6th November, 2002.

Penal Code (XLV of 1860)‑‑‑

‑--S. 302‑‑‑Appreciation of evidence‑‑F.I.R. in view of the course of events and the distance of the police station from the place of occurrence had been promptly lodged‑‑­Eye‑witness account was consistent and cogent‑‑‑Complainant party and accused party were inter‑related‑‑‑Ocular testimony was supported by medical evidence, motive and recovery of gun at the instance of accused from his house‑‑‑Specific stand taken by accused in his defence was not supported by the evidence on record‑‑‑Accused had committed double murder in cold‑blood in daylight‑‑‑No mitigating circumstance was available in favour of accused warranting lesser sentence‑‑‑No case of provocation or loss of self‑control was made out‑‑‑Conviction and sentence of death of accused were confirmed in circumstances.

Muhammad Younas v. The State 1992 SCMR 1592; Muhammad Nazir v. Tariq and another 1992 SCMR 983; Muhammad Sharif and another v. The State PLD 1995 Lah.593; Muhammad Iqbal v. The State 1995 PCr. LJ 1587; Manzoor Ahmed alias Manzoor Hussain v. The State 1996 PCr.LJ 216; Sakhawat v. The State 2001 SCMR 244 and Muhammad Sharif v. Muhammad Javed alias Jeda Tedi PLD 1976 SC 452 ref.

Sardar M. Latif Khan Khosa for Appellant.

Malik Rab Nawaz Noon for the Complainant.

Haji Miran Malik for the State.

Date of hearing: 6th, November, 2002.

2003 Y L R 971

[Lahore]

Before Khawaja Muhammad Sharif, J

SAMUEL MASIH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1519 of 2002, heard on 17th October, 2002.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S.7(b)‑‑‑Penal Code (XLV of 1860), S.353‑‑‑Appreciation of evidence‑‑‑Case seemed to be an example of highhandedness of the police‑‑‑Accused was alleged to have tried to give knife injuries to the complainant police functionary (A.S.‑I.) and a constable, but none of them had received a single scratch on his body‑‑‑Actually it was the accused who had received injuries and according to the complainant A. S.‑I. passerby had caused injuries to the accused with brick bats, but none of them had been produced by the prosecution‑‑‑One passerby was hit by the shot fired by the complainant A.S.‑I. and he being the most natural witness in the case was not examined by the prosecution‑‑‑Recovery of knife from the accused was proved through a police official and not by any public witness‑‑‑Version put by the accused was snore plausible, convincing and nearer to truth than that of the complainant‑‑‑Case against accused was full of doubts, benefit of which was to be given to the accused‑‑‑Accused was acquitted accordingly.

Tahir Mehmood Padhiar for Appellant.

Tauqeer Sadiq Ch. for the State.

Date of hearing: 17th October, 2002.

2003 Y L R 981

[Lahore]

Before Muhammad Khalid Alvi and Nazir Ahmad Siddiqui, JJ

Mst. GHULAM JANNAT by Legal Heirs and another‑‑‑Appellants

Versus

ALLAH DITTA‑‑‑Respondent

Regular First Appeal No.90 of 1987, decided on 2nd October, 2002.

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

‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S.35‑A‑‑‑Suit for specific performance of agreement of sale‑‑‑Amount of costs‑‑­Deduction from decretal amount‑‑‑Principle of equitable set off, applicability of‑‑‑Suit was decreed with costs subject to payment of balance decretal amount ‑‑‑Plaintiff/decree-­holder deposited balance amount after deducting amount of costs granted to him against defendant/judgment‑debtor‑‑­Validity‑‑‑Suit of plaintiff having been decreed with costs, it would have been absurdity in law, if plaintiff had been required to deposit decretal amount including costs to which he was entitled under the decree‑‑‑Defendant, if would withdraw amount including amount of costs from the Court, then plaintiff again would have to file execution petition for the refund of amount of costs from the defendant‑‑‑If plaintiff had already deducted amount of costs it was fully protected under principle of 'equitable set off'.

Altaf Hussain and 2 others v. Muhammad Nawaz and 2 others 2001 SCMR 405; Muhammad Afzal and 8 others v. Haji Fazal‑ul‑Haq and another PLD 1971 SC 162; Nasir Ahmad v. Muhammad Yousaf PLD 1994 Lah. 280 and Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177 ref.

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

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement‑‑‑Execution of agreement was not denied by defendants, but suit was resisted by defendants on the ground that marginal witnesses of agreement of sale having not been produced by the plaintiff, neither execution of agreement nor payment of earnest money was proved‑‑‑Payment of earnest money to defendants by plaintiff had fully been proved as same was made before Sub‑Registrar at time of registration of agreement to sell and that fact was endorsed by Sub‑Registrar on agreement of sale‑‑­Payment of earnest money, was otherwise admitted by defendants in their application‑‑‑In presence of such evidence, plaintiff was not obliged to produce marginal witnesses who otherwise were not ready to depose as they were closely related to defendants‑‑‑Plaintiff always being ready to perform his part of contract, suit was rightly decreed by Trial Court.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 Lah. 6 ref.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.55‑‑‑Time as essence of contract‑‑‑Time had never been an essence of the contract for the sale of immovable property, unless parties had made it so by express words and conduct‑‑‑Merely fixing a date for finalization/registration of sale‑deed would not make the time as essence of contract.

Kanwar Akhtar Ali for Appellants.

Malik Javed Akhtar Wains for Respondent.

Date of hearing: 2nd October, 2002.

2003 Y L R 986

[Lahore]

Before M. Naeemullah Khan Sherwani, J

KHADIM HUSSAIN and others‑‑‑Petitioners

Versus

THE STATE Respondent

Criminal Miscellaneous No.6826‑B of 2002 decided on 29th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/337‑A(i)/337‑L(2)/109/334/34‑‑­Bail‑‑‑Accused by virtue of their relationship and commanding positions in the family were by all means capable of inciting the co-­accused to commission of the offence and in view of the facts apparent on record they were to be designated as inciters whose participation through inaction was self­-evident‑‑‑Right arm of the injured witness had been amputated by the Surgeon because of severe complications of the injury caused by co‑accused with a Chhuri which had' necessitated surgical intervention on more than two occasions‑‑‑Sufficient material was, prima facie, available to link the accused with the commission of the offence­ Complainant side having remained busy in making necessary arrangements in different hospitals, delay in reporting the matter to the police was of no consequence‑‑‑Bail was declined to accused in circumstances.

Zafar Iqbal Chohan for Petitioners.

Miss Irum Sajjad Gul for the State.

Mian Shahid Iqbal for the Complainant.

2003 Y L R 988

[Lahore]

Before Maulvi Anwarul Haq, J

SAIDAN BEGUM and 3,others‑‑‑Petitioners

Versus

GHULAM ALI and 3 others‑‑‑Respondents

Civil Revision No. 122 of 1994, heard on 23rd October, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Arts. 142 & 144‑‑‑Punjab Tenancy Act (XVI of 1887), S.5‑‑‑Suit for possession of land on the basis of title‑‑‑Plaintiffs were recorded as owners in Revenue Record, wherein defendants were recorded as "non­-occupancy tenants without payment of rent "‑‑‑Suit was dismissed by Trial Court, but decreed by the Appellate Court ‑‑‑Validity‑‑­Plaintiffs had proved their title, but not their alleged dispossession‑‑‑Defendants had raised plea of adverse possession‑‑‑Neither there was plea nor any evidence that defendants had purchased the land‑‑‑Entries in column of "Lagan" had remained unproved, thus, entry in column of possession would take effect‑‑­Defendants thus would be deemed to be tenants under the plaintiffs‑‑‑Mere non­payment of rent for any length of time would not convert possession into adverse possession for purposes of limitation.

Shad Muhammad v. Khan Poor PLD 1986 SC 91 and Said Amir and others v. Ashraf Khan and others PLD 1986 SC 113 fol.

Sohara and others v. Muhammad Nawaz and others 1996 SCMR 1719 ref.

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

‑‑‑‑S.39‑‑‑Punjab Tenancy Act (XVI of 1887), S.5‑‑‑Record of rights‑‑‑Presumption of correctness is attached to columns of ownership and possession, but not to the column of Lagan".

Shad Muhammad v. Khan Poor PLD 1986 SC 91 and Said Amir and others v. Ashraf Khan and others PLD 1986 SC 113 fol.

Sohara and others v. Muhammad Nawaz and others 1996 SCMR 1719 ref.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 144‑‑‑Adverse possession‑‑‑Mere non­payment of rent for any length of time would not convert possession into adverse possession for purpose of limitation.

Ch. Sultan Mansoor for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd October, 2002.

2003 Y L R 991

[Lahore]

Before Ch. Ijaz Ahmad and Sayed Zahid Hussain, JJ

AMIN‑UD‑DIN KHAN‑‑‑Appellant

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 3 others‑‑‑Respondents

Intra‑Court Appeal No.748 of 2002, decided on 2nd October, 2002.

(a) Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3(2)‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Intra Court appeal‑‑‑Delay, condonation of‑‑‑Constitutional petition filed by appellant having been dismissed, appellant filed review application which was dismissed as time‑barred‑‑‑Appellant filed intra‑Court appeal after more than three months from dismissal of his Constitutional petition without filing any application for condonation of such delay‑‑‑Validity‑‑‑Court could not condone delay without filing application for condonation of delay under S.5 of Limitation Act, 1908.

Ataullah's case PLD 1964 SC 236 ref.

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

‑‑‑‑S.3(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Intra‑Court Appeal‑‑‑Transfer of Constitutional petition to other Bench‑‑­Appellant who had himself filed Constitutional petition at Principal seat, had prayed in his Intra‑Court Appeal that his Constitutional petition be transferred to the other Bench‑‑‑Appellant could not raise such plea on principle of approbate and reprobate, estoppel and waiver ‑‑‑Intra‑Court Appeal otherwise was not maintainable as appellant had himself availed remedy of review against judgment of High Court passed in Constitutional petition prior to filing of appeal.

Syed Ahmad Ali Rizvi v. The State PLD 1995 SC 500 and Ghulam Rasool's case PLD 1971 SC376 ref.

Sh. Asghar Ali for Appellant.

2003 Y L R 992

[Lahore]

Before Abdul Shakoor Paracha, J

Mrs. G.C. NELSON and 3 others‑‑‑Petitioners

Versus

Mst. SABINA SAMEEN BASHARAT ALVI and another‑‑‑Respondents

Writ Petition No. 1643 of 2002, heard on 3rd October, 2002.

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

‑‑‑‑S.2(2)‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10 & Sched.‑‑‑Permanent Transfer (Houses and Shops) Rules, 1961, R.4‑‑‑Civil Procedure Code (V of 1908), S.9‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Demarcation of property after issuance of P.T.D:‑‑­Jurisdiction of Settlement Authorities‑‑­Scope ‑‑‑Petitioner was transferred property on the basis of possession‑‑‑‑Respondent purchased property in open auction, but was not sure as to which property was transferred to him‑‑‑Notified Officer in post remand proceedings had failed to locate petitioner's property before giving finding that property in possession of petitioner was property purchased by respondent in open auction‑‑­Notified Officer had relied on record of Municipal Corporation and Excise and Taxation Department, but had not considered survey rules framed by the Department‑‑­Properties claimed by parties after issuance of P. T. D. in their favour had gone out of compensation pool‑‑‑Settlement Authorities thus had become functus officio to determine and demarcate property except to the extent provided in P.T.D. or Rules‑‑‑Since Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been repealed, High Court deemed it appropriate to give an opportunity to both the parties to prove their case by producing evidence before Civil Court, which was the ultimate Court of jurisdiction‑‑‑High Court accepted Constitutional petition and set aside impugned order with observation that parties might approach Civil Court for determination of their rights qua disputed property.

Siraj Din and others v. Amanullah Qureshi and another PLD 1980 SC 1; Anwar Hussain Sani v. Sarfraz Ahmad and others PLD 1971 SC 669; Abdul Hamid v. Gulab Khan 1981 SCMR 188; Abdul Haq v. Mst. Mustajaba Bano and others 1982 SCMR 1103 and Muhammad Bashir's case 1987 SCMR 999 ref.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S.10 & Sched.‑‑‑Permanent Transfer (Houses and Shops) Rules, 1961, Rr.4, 6 & 7‑‑‑Demarcation of property‑‑‑Jurisdiction of Settlement Authorities‑‑‑Scope‑‑‑Issuance of P. T. D. ‑‑‑Effect‑‑‑Property goes out of compensation pool after issuance of AT.D.‑‑­Settlement Authorities, become functus officio to determine and demarcate property except to extent provided in P.T.D. or Rules.

Anwar Hussain Sani v. Sarfraz Ahmad and others PLD 1971 SC 669; Abdul Hamid v. Gulab Khan 1981 SCMR 188 and Abdul Haq V. Mst. Mustajaba Bano and others 1982 SCMR 1103 rel.

Noor Muhammad Niazi for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd October, 2002.

2003 Y L R 998

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SALEEM ULLAH and another‑‑‑Petitioners

Versus

ADDITIONAL DISTRICT JUDGE (SYED NASIR ALI SHAH), GUJRANWALA and others‑‑‑Respondents

Writ Petition No. 1777 of 1997 and Civil Revision No. 719 of 1998, decided on 22nd July, 2002.

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

‑‑‑‑S. 11 & O. VII, R.11‑‑‑Plaint, rejection of‑‑‑Principle of res judicata‑‑‑Applicability‑‑‑Scope‑‑‑High Court in an earlier proceedings had given positive finding against the petitioners and in favour of the respondents‑‑‑Effect‑‑Courts below were justified to reject the plaints of the petitioners filed subsequently in view of S.11 of C. P. C.

Abdul Majeed and others v. Abdul Ghafoor Khan PLD 1982 SC 146; Asif Jan Siddiqui v. Government of Sindh PLD 1983 SC 46; Ch. Rehmat Ellahi v. Haji Jan Muhammad 1993 SCMR 1109 and Nazar Ahmad v. Abdullah and others 1997 SCMR 281 ref.

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

‑‑‑‑S.11 & O.I R.10‑‑‑Judgment passed by High Court in earlier proceedings‑‑­Applicability‑‑‑Plea raised by the petitioners was that they had filed application before High Court in earlier proceedings to become party which was rejected, therefore, judgment passed by High Court was not binding on them‑‑‑Validity‑‑‑Plea raised by the petitioners had no force.

(c) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 3‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Civil Procedure Code (V of 1908), S.11 & O. VII, R.11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Principles of lis pendens and constructive res judicata‑‑‑Applicability‑‑­Transfer of total holding by widow as owner of limited estate‑‑‑Plaintiff purchased the land in question from the donees to whom the widow as owner of limited estate had gifted the whole land in question‑‑‑Such gift was made during the pendency of proceedings where the entitlement of the widow was under question‑‑High Court in an earlier round of litigation had found the widow as owner only to the extent of her Sharai share and after having been unsuccessful in the earlier round of litigation, the plaintiffs instituted the present suit for declaration on the basis of bona fide purchasers for valuable consideration‑‑‑Both the Courts below rejected the plaint for the reason that the matter had already been decided by superior Courts‑‑‑Validity‑‑‑Plaintiffs having purchased the land in question during the pendency of litigation, principle of lis pendens was applicable‑‑‑Plaintiffs were placed in the place of donees therefore, in case the donees failed up to the level of Supreme Court and subsequently their suit for declaration was rejected by Trial Court as well as by the Appellate Court, principle of bona fide purchaser was not attracted in their case High Court in the earlier round of litigation had declared defendants as collaterals of original owner, therefore, Courts below were justified to reject the plaint of the plaintiffs‑‑‑Plaintiffs in the revision petition before the Appellate Court did not bring on record all the cards therefore, principle of constructive res judicata was attracted‑‑‑High Court declined to interfere with the orders passed by the Courts below‑‑‑Petition was dismissed in circumstances.

Sufi Dilawar Hussain Chishti's case 1990 SCMR 705; Nawab Din v. Mst. Jewni 1990 MLD 725 and Dost Muhammad's case 1995 SCMR 1014 distinguished.

Kh. Muhammad Yousaf v. Federal Government 1999 SCMR 1516; Sardar Muhammad v. Faqir Muhammad 1996 CLC 916; Kala Chand Banerji v. Jaganath Marvari and another AIR 1927 PC 108; Mir Sublhan Ali v. Imami Begum AIR 1925 PC 184; Sultan Mahmood v. Ahmad Khan AIR 1933 Lah.1016; Government of Pakistan v. Aquail Ahmad PLD 1969 Dacca 930; Mst. Kaniz Fatima v. M.B.R. PLD 1973 Lah.495; Ghafoor Bakhsh v. Haji Muhammad Sultan 2001 SCMR 398; Province of Punjab v. Malik Ibrahim 2000 SCMR 1172; Pir Bakhsh v, Chairman, Allotment Committee PLD 1987 SC 145 and Nazir Ahmad v. Abdullah 1997 SCMR 281 ref.

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

‑‑‑‑S. 115 ‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Revisional jurisdiction and Constitutional jurisdiction‑‑‑Constitutional petitions/revision petitions are discretionary in nature‑‑‑Where substantial justice had been done between the parties, in view of the long standing litigation between the parties, High Court declined to exercise its discretion in favour of the petitioner.

Nawabzada Raunaq Ali's case PLD 1973 SC 236 ref.

S. M. Masood for Petitioners.

C.M. Latif Rawn for Respondent.

Date of hearing: 22nd July, 2002.

2003 Y L R 1006

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. SAKINA BIBI‑‑‑Petitioner

Versus

MUHAMMAD LATIF and others‑‑‑Respondents

Writ Petition No.6553 of 1997, heard on 31st May, 2002.

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

‑‑‑‑S. S & Sched.‑‑‑Constitution of Pakistan (1973, Art.199‑‑‑Constitutional petition‑‑­Maintenance allowance to wife‑‑‑Dispute between the parties was that the wife was living separately and was not performing her marital obligations‑‑‑Family Court fixed the maintenance of the wife‑‑‑Lower Appellate Court reversed the findings of the Family Court and did not find the wife eligible for maintenances as she was not willing to join her husband‑‑‑Wife contended that the judgment passed by the Appellate Court was based upon surmises and conjectures‑‑­Validity‑‑‑Appellate Court recorded the finding that the wife had not given cogent reasons for her separate residence‑‑‑If a wife refuses, without any lawful justification, to live with her husband, she is not entitled to any maintenance‑‑‑High Court declined ‑to interfere with the judgment passed by the Appellate Court‑‑‑Constitutional petition was dismissed in circumstances.

Habib‑Ullah Khan Chaudhry for Petitioner.

Nemo for Respondent No.2.

Date of hearing: 31st May, 2002.

2003 Y R 1008

[Lahore]

Before Karamat Nazir Bhandari, J

WAPDA through Chairman and another‑‑‑Petitioners

Versus

Messrs SUPER STEEL MILLS (PVT.) LIMITED and 2 others‑‑‑Respondents

Writ Petition No.7749 of 1996, heard on 13th May, 2002.

Electricity Act (IX of 1910)‑‑‑

‑‑‑‑S.26(6)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Phrase shall be referred to the Provincial Government' occurring in S.26(6) of the Electricity Act, 1910‑‑‑Connotation‑‑‑Non­filing of appeal by consumer to the Advisory Board‑‑‑Dispute between the parties was referred to Electric Inspector for decision‑‑­Copy of the decision was sent by the Electric Inspector to the Advisory Board‑‑‑Grievance of the Authorities was that the sending of copy of decision to the Advisory Board was deemed to be that the consumer did not accept the correctness of the order of the Electric Inspector and the Board should have proceeded to decide the matter on merits‑‑­Validity‑‑‑If either a licensee or a consumer was not satisfied and therefore, did not accept the decision of Electric Inspector, it could refer the matter to Provincial Government‑‑‑Language used in the provisions of S.26(6) of Electricity Act, 1910, did not say that either the consumer or the licensee could file appeal‑‑‑High Court while explaining the object of the words 'shall be referred to the Provincial Government' was of the view that the words had to be construed as conferring a right of reference, in other words, a right of appeal on the dissatisfied party‑‑‑If the Authorities had not accepted the fresh order of the Electric Inspector, they could have shown their non‑acceptance by filing a reference/appeal before the Advisory Board‑‑‑In absence of any reference/appeal by a dissatisfied party, the Advisory Board could not proceed to examine the correctness and legality of the order of Electric Inspector‑‑‑Non filing of any reference would give a power of revision to the Advisory Board which power had not been conferred by the Statute on the Board‑‑‑Reference to the Provincial Government could only mean the petition/motion/appeal of the party who had not accepted the decision of Electric Inspector‑‑‑High Court declined to interfere with the order passed by the Electric Inspector‑‑‑Petition was dismissed in circumstances.

M. Saleem Chaudhry for Petitioners.

Abdul Aziz Akhtar for Respondent "No.

Date of hearing: 13th May, 2002.

2003 Y L R 1010

[Lahore]

Before Maulvi Anwarul Haq, J

Dr. NAZIR AHMAD QURESHI through Legal Heirs‑‑‑Appellant

Versus

RASUL BAKHSH BAHADUR KHAN LEAGHARI, ADDITIONAL DISTRICT JUDGE, SIALKOT‑‑‑Respondent

Regular Second Appeal No.1044 of 1969, decided on 3rd June, 2002.

(a) Evidence Act (I of 1872)‑‑‑

‑‑‑‑S‑65‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 76‑‑‑Sankalip Nama (document creating grant of land for religious purpose under Hindu Law)‑‑‑Proving document through secondary evidence‑‑‑Procedure‑‑‑Plaintiff on the basis of Sankalip Nama executed in favour of his predecessor‑in‑interest asserted to be owner of the suit property‑‑‑Original document was not produced in the Court and instead attested copy of the document was admitted in evidence by the Court‑‑‑Trial Court decreed the suit in favour of the plaintiff which order was maintained by the Appellate Court‑‑‑Contention of the defendant was that the Trial Court without recording evidence regarding loss/destruction of original document proceeded to admit the disputed document in evidence‑‑‑ Validity‑‑­Document had to be proved by primary evidence which was only a document unless and until a case for leading secondary evidence could be made out under S.65 of Evidence Act, 1872 (Art. 76 of Qanun‑e-­Shahadat, 1984)‑‑‑As no such evidence of loss or destruction of the original document was available on the record, the admission of the document in evidence was illegal and without jurisdiction‑‑‑Judgments and decrees passed by both the Courts below were set aside and suit was dismissed.

Basant Singh and others v. Brij Raj Saran Singh and others AIR 1935 PC 132; Shripuja v. Kanhaya Lal AIR 1918 Nag. 114; Muhammad Azam and others v. Muhammad Yar and others 1988 CLC 2388; Mst. Karam Bibi v. Hussain Bakhsh 1992 PR 1901 and Maine's Book on Hindu Law ref.

(b) Evidence Act (I of 1872)‑‑‑

‑‑‑‑S. 90‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 100‑‑‑Attested copy of thirty years old document‑‑‑Admitting such copy without proof‑‑‑Validity‑‑‑No presumption of valid execution is attached to the copy of the document under S.90 of Evidence Act, 1872 (Art.100 of Qanun‑e‑Shahadat, 1984)‑‑­Presumption contemplated by the provision of S.90 of Evidence Act, 1872 (Art. 100 of Qanun‑e‑Shahadat, 1984) is attached only to an original document.

(c) Hindu Law‑‑‑

‑‑‑‑ Sankalip Nama‑‑‑Such document creating grant of land for religious purpose is permissible under Hindu Law.

Maine's Book on Hindu Law ref.

(d) Title‑‑‑

‑‑‑‑ Revenue Officer is not competent to decide the question of title.

Nadim Afzal Lone for Appellant

Sh. Ziaullah for Respondents.

Dates of hearing: 24th April; 2nd, 8th, 14th, 17th and 20th May, 2002.

2003 Y L R 1017

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD RAMZAN‑‑‑Appellant

Versus

ALLAH DITTA and others‑‑‑Respondents

First Appeal from Order No.398 of 2002, decided on 27th August, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Imposing condition while granting injunction‑‑‑Trial Court accepted application for grant of interim injunction in a suit for specific performance of agreement, with direction that applicant would deposit the balance amount in Court within specified period‑‑‑Said direction had been challenged by applicant in appeal contending that discretion had been illegally exercised by Trial Court while granting interim injunction to him subject to deposit of balance amount in Court‑‑‑Contention was repelled because Court had ample power to impose condition of deposit of money while exercising jurisdiction for granting interim injunction.

1994 CLC 12; Manzoor Ahmad and 6 others v. Hamid Shah Gilani and another 1997 SCMR 1443; Fateh Muhammad v. Muhammad Hanif and another PLD 1990 Lah. 82 and Khizar Hayat Khan v. Mussarat Rabbani PLD 1995 Lah. 438 ref.

Malik Noor Muhammad Awan for Appellant.

2003 Y L R 1018

[Lahore]

Before Maulvi Anwarul Haq, J

CHIEF ADMINISTRATOR OF AUQAF, PUNJAB‑‑‑Appellant

Versus

Haji MUHAMMAD ASHRAF‑‑‑Respondent

First Appeal from Order No. 109 of 1986 (LHR), heard on 26th August, 2002.

Auqaf (Federation Control) Act (XLVI of 1976)‑‑‑

‑‑‑‑S. 11‑‑‑West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S.7‑‑‑Taking over structures standing on land which was declared as Waqf property‑‑‑Validity‑‑‑Applicant vendee challenged Notification whereby Auqaf Department took over superstructure raised by applicant on the land duly purchased by him vide a registered sale­-deed for consideration, from vendor who claimed to be owner thereof‑‑‑Applicant had asserted that at the time he raised structure on land in dispute, he was not aware that land was Waqf property‑‑‑Land purchased by applicant was recorded in Revenue Record to be in the ownership of vendor and in earlier record of father of the vendor‑‑‑No evidence was available to rebut the plea of applicant that he was not aware of nature of land when he made construction thereon‑‑‑Land though subsequently was proved to be Waqf property, but structure raised thereon belonged to the applicant‑‑‑Land though was Waqf property, but not the construction thereon ‑‑‑Auqaf Department was competent to recover ground rent and to take other steps according to law‑‑‑Appellate order was dismissed, but Auqaf Department would be competent to recover ground rent regarding land underneath the shops constructed by applicant and take other steps in accordance with law.

PLD 1981 Lah. 722; Haji Ghulam Rasul and others v. Chief Administrator of Auqaf, West Pakistan, Lahore PLD 1966 Lah. 978; Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376; Narayan Das Khettry v. Jatindra Nath Roy Chowdhry and others AIR 1927 PC 135 and Chief Administrator of Auqaf, Punjab, Lahore v. Mian Ghulam Fareed and others 1993 SCMR 643 ref.

Muhammad Saleem Shehnazi for Appellants.

Ashtar Ausaf Ali with Ahmed Shahzad Farooq for Respondents.

Date of hearing: 26th August, 2002.

2003 Y L R 1023

[Lahore]

Before Mian Muhammad Jahangir, J

WAHEED AKHTAR‑‑‑Petitioner

Versus

ABID PERVAIZ and 3 others‑‑‑Respondents

Writ Petition No. 13917 of 2002, decided on 3rd October, 2002.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.I, Rr.3 & 10‑‑‑Suit for declaration‑‑­Necessary party‑‑‑Determination‑‑‑When it is to be determined that any person is a party or not, the provisions of O.I, R.2, C. P. C. is to be read alongwith the provisions of O.I, R.10, C. P. C. and not exclusively the provisions of O.I, R.3, C. P. C.

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

‑‑‑‑O.I, Rr.3 & 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Suit for declaration‑‑‑Necessary party, impleading of‑‑Plaintiff claimed the disputed street as a thoroughfare and defendant asserted the same as a private passage‑‑­Assertion of the plaintiff was that as the street in question was constructed by the Municipal Committee and it was in use of the parties, therefore, the Municipal Committee was a necessary party‑‑‑Application for impleading the Committee was allowed by the Trial Court and the order was upheld by the Appellate Court‑‑‑Plea raised by the defendants was that both the Courts had wrongly impleaded the Municipal Committee as a defendant as it was not a necessary party ‑‑‑Validity‑‑­Municipal Committee, in the present case, might not be interested in the subject because sometime with the consent of the parties, a private place could be made as a road by having soling over there or a Pacca road at the spot but if a specific passage was to be shown as a public street in accordance with rules otherwise, mere installation of bricks at the spot would not make the private passage as a public street‑‑‑If the Municipal Committee was impleaded as a defendant in the suit the same would negate the multiplicity of the suit and if the Municipal Committee failed to establish its ownership over the passage in dispute there would be no harm to the defendant‑‑‑Trial Court had rightly impleaded the Municipal Committee and the order called for no interference‑‑­Constitutional petition was dismissed in circumstances.

Ch. Muhammad Aslam Zia for Petitioner.

Dr. Asghar Ahmed Rana for Respondents.

2003 Y L R 1025

[Lahore]

Before Mian Nazir Akhtar, J

Messrs UNITED AWAN CONSTRUCTION COMPANY through Proprietor‑‑‑Petitioner

Versus

FAISAL RAZA and others‑‑‑Respondents

Civil Revision No.1341 and R.A. No.24‑C of 2002, decided on 12th April, 2002.

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

‑‑‑‑S.96, O.XXIII, R.1 & O.XLI, R.22‑­Consent decree‑‑‑Appeal against—Cross-­objections of respondent‑‑‑Appellant challenged consent decree passed by Trial Court and respondent/decree‑holder filed cross‑objections‑‑‑Appellate Court dismissed appeal, but accepted cross‑objections holding that suit was decreed and not disposed of by Trial Court‑‑‑Decree passed by Trial Court being a consent decree was not open to appeal‑‑Appellate Court ‑ had rightly dismissed appeal holding same to be incompetent in view of S.96(3), CP.C‑--­Once it was found that appeal was incompetent, Appellate Court had no option, but to dismiss cross‑objections file by respondent as well being equally incompetent in eye of law‑‑‑if an appeal was filed before Competent Court of law, then mere withdrawal of appeal would not divest Appellate Court of its jurisdiction to decide cross‑objections on merits.

Messrs Galadari Cement (Gulf) Ltd. v. District Judge, Khuzdar and 6 others 1986 CLC 10; Mahmud Hassan and others v: Lauti Ram and others AIR 1927 All. 453; Hira Nand v. Sheikh Mahbub Ilahi AIR 1944 Lah. 174 and Rammohanbai v. Somabhai AIR 1950 Bom. 161 ref.

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

‑‑‑‑O. XLI, R.22(1)(3)(4)‑‑‑Words "Appellate Court" and "Court", meaning of‑‑‑Use of words "Appellate Court" and "Court" in sub-­rules (1), (3), (4) of R. 22 of O. XLI, C. P. C. would mean a Court which was competent to entertain and decide appeal.

Riaz Karim Qureshi for Petitioner.

Aziz Ahmad Malik for Respondent No. 1.

Muhammad Hanif Khatana, Addl. A.G.

Date of hearing: 12th February, 2002.

2003 Y L R 1028

[Lahore]

Before Ch. Ijaz Ahmad, J

AHMAD KHAN‑‑‑Appellant

Versus

Mst. NAZIRAN BIBI and others‑‑‑Respondents

First Appeal from Order No. 115 of 1997, heard on 5th August, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.2(c), 5 & 41 (a)‑‑‑Civil Procedure Code (V of 1908), S.107(2)‑‑‑Appointment of arbitrator with consent of parties by Appellate Court‑‑‑During pendency of appeal against judgment and decree of Trial Court, Appellate Court appointed arbitrator with consent of parties and arbitrator announced the award‑‑‑Respondent who filed application before Appellate Court under S.5 of Arbitration Act, 1940 for revocation of authority of arbitrator, had alleged that Appellate Court below had erred in law in appointing the arbitrator with consent of parties‑‑‑Contention was repelled as power to appoint arbitrator with consent of parties could be exercised by Appellate Court as was envisaged by S.107(2), C.P.C. and S.41(a) of Arbitration Act, 1940.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 5 & 21‑‑‑Revocation of authority of arbitrator appointed with consent of parties‑‑‑During pendency of appeal against judgment and decree passed by Trial Court, Appellate Court with 'consent of parties appointed arbitrator nominated by parties for resolution of the disputed question of facts‑‑­Arbitrator so appointed announced his award and respondent, after five days from announcement of award, filed application under S.5 of Arbitration Act, 1940 for revocation of authority of arbitrator without bringing on record any evidence to show any misconduct of the arbitrator‑‑‑Application for revocation of authority of arbitrator filed by respondent was not bona fide, but was an attempt to hold up arbitration proceedings‑‑­Application in circumstances, was liable to be dismissed‑‑‑Section 5 of Arbitration Act, 1940 did not empower Court to revoke authority of an arbitrator, but only empowered the Court to give leave to a party to revoke.

Wajid Ali's case 1985 SCMR 401; Pakistan Trading Company v. M.M. Asfani Ltd. and others PLD 1960 Dacca 81; West Pakistan through Executive Engineer, Rawalpindi v. Messrs Azhar Brothers PLD 1977 Lah. 1013 and Morgan Walker & Co. v. Khardah Co. Ltd. AIR 1959 Cal. 169 ref.

(c) Malice‑‑‑

‑‑‑‑ General allegation of malice was not sustainable in eye of law.

Saeed Ahmad Khan's case PLD 1974 SC 151; Amanullah Khan's case PLD 1990 SC 1092; K.D. Bali's case 1989 MLD 2434 and Messrs Industrial Machine's case PLD 1978 Lah. 829 ref.

Akhtar Masood Khan for Appellant.

Dost M. Kahot for Respondent.

Date of hearing: 5th August, 2002.

2003 Y L R 1032

[Lahore]

Before Maulvi Anwarul Haq, J

ABDALIANS COOPERATIVE HOUSING SOCIETY LTD. Through Secretary‑‑‑Petitioner

Versus

MUHAMMAD BILAL ANWAR and others---Respondents

Civil Revision No.3308 of 1994, heard on 28th August, 2002.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 6 & 17‑‑‑Acquisition of land‑‑‑Land was acquired by Authority for Society, entire amount of compensation of acquired land was assessed and paid and possession was also delivered to the Society‑‑‑Land in circumstances came to vest in the Society‑‑­One of the land owners demanded that a plot be allocated to him from the land which admittedly vested in the Society‑‑‑No legal provisions obliged the Society to allocate land as claimed by the landowner‑‑‑Even otherwise the Society which had become owner of land could not be divested of the same otherwise than in accordance with law‑‑‑If the Society had agreed to exempt plots after negotiations with some landowners whose land was acquired, that would not at all mean that the Society was under obligation to allot land to every land‑owner‑‑‑Trial Court decreed suit filed directing the Society to exempt a plot in favour of the landowner and judgment of Trial Court was upheld by Appellate Court‑‑­Validity‑‑‑Concurrent judgment and decree of Courts below passed without lawful authority, could not be sustained‑‑‑High Court in exercise of revisional jurisdiction set aside concurrent judgment and decree of Courts below and suit filed by respondent was dismissed.

Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. PLD 1983 Lah. 552 ref.

Abid Aziz Sheikh for Petitioner.

Ch. Sardar Ali‑I, for Respondents.

Date of hearing: 28th August, 2002.

2003 Y L R 1035

[Lahore]

Before Raja Muhammad Sabir and Bashir A. Mujahid, J

MUNAWAR HUSSAIN MANJ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1227 and 1230 of 2001, decided on 28th January, 2003.

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

‑‑‑‑Ss.9(c) & 15‑‑‑Appreciation of evidence‑‑­Judicial confession of co‑accused involving the accused had been recorded .in clear violation of law and without observing the legal formalities‑‑‑Even otherwise co‑accused had resiled from their confessional statements during the trial‑‑‑Prosecution had failed to prove any relation of the co‑accused with the accused who were stated to be his official gunman and Munshi‑‑‑Car in which the narcotics were carried was not proved to be owned by he accused or to have ever remained in his use‑‑‑Admittedly accused was not accompanying the co‑accused at the time of their apprehension by the Anti‑Narcotic Force‑‑‑Private witnesses had not supported the prosecution case against accused‑‑‑No evidence had come on record that the accused was equally liable for conviction being abettor, associate or counselling with his co-­accused‑‑‑Every person was liable for his individual act and no one could be convicted for the act of his employee or servant‑‑‑Plea of accused throughout before the Investigating Officer as well as in the Court was that he had been implicated due to local political rivalry which was not denied by prosecution‑‑‑Accused was acquitted in circumstances.

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

‑‑‑‑Ss.9(c) & 15‑‑‑Appreciation of evidence‑‑­Sentence, reduction in‑‑‑Accused were found in the car carrying huge quantity of narcotics who resorted to firing and were arrested in injured condition at the spot and were found in possession of 30 Kgs. of heroin and 35 Kgs. of Charas‑‑‑Prosecution had no ill‑will for false implication 'of accused or substituting them by letting off real culprits‑‑­Counsel for accused was justified in not challenging their conviction which was maintained in circumstances‑‑‑Case of prosecution itself was that the accused were only the carriers‑‑‑Accused had no capacity or means to purchase such a huge quantity of narcotics and they were not previously involved in any similar case‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances‑‑­Offence being heinous and rising in society, benefit of S. 382‑B, Cr. P. C. was refused to accused.

(c) Criminal trial‑‑‑

‑‑‑‑ Every person is liable for his individual act and no one can be convicted for the act of his employee or servant.

Sardar Muhammad Latif Khan Khosa and Rana Habib‑ur‑Rehman Khan for Appellant.

M. Bilal Khan, Addl. A.‑G. and M. Suleman Khan, A.‑G. for the State.

Dates of hearings 27th and 28th January, 2003.

2003 Y L R 1041

[Lahore]

Before Abdul Shakoor Paracha, J

Dr. GHULAM FAREED MALIK ‑‑‑Appellant

Versus

IKRAM SAQLAIN HAIDER and another‑‑‑Respondents

Criminal Appeal No.358 of 2000, heard on 11th December, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 320, 279 & 427‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Limitation Act (IX of 1908), Ss. 5 & 29(2) (a) (b)‑‑‑Appeal against acquittal‑‑‑Appreciation of rh6mce‑‑‑Report contained in the Roznamcha and the statement of the witness travelling in the same vehicle in which the deceased was seated had clearly mentioned that the accident took place due to slipperiness of the road because of rain‑‑­Such witness had not supported the case of the prosecution‑‑‑Conviction could not have been recorded on the uncorroborated statement of another witness‑‑‑No chance of conviction existed on the facts and circumstances of the case‑‑‑Trial Court was empowered under S. 249‑A, Cr. P. C. to acquit the accused at any stage of the proceedings‑‑­Impugned order did not suffer from any legal infirmity and was consequently maintained by the High Court.

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

‑‑‑‑S. 417(2‑A)‑‑‑Limitation Act (IX of 1908), Ss.5 & 29(2) (a) (b)‑‑‑Penal Code (XLV of 1860), Ss.320/279/427‑‑‑Petition for special leave to appeal against acquittal before High Court ‑‑‑Limitation‑‑‑Condonation of delay‑‑­Scope‑‑‑Appeal filed before wrong forum‑‑­Complainant had initially filed a revision petition under S.435, Cr.P.C. challenging the order of acquittal passed by the Magistrate‑‑­Revision petition was dismissed by the Sessions Judge for lack of jurisdiction‑‑­Validity‑‑‑Sessions Court had dismissed the revision against acquittal of the accused on 9‑8‑2000 being not maintainable‑‑­Complainant had applied for copy of the order on 10‑8‑2000 which was delivered to him on 18‑8‑2000‑‑‑High Court had no power contained in S.29(2) (a) (b) of Limitation Act and if at all jurisdiction could be exercised for condonation of delay, each day had to be explained by the complainant‑‑‑Delay in filing the appeal could be condoned up to the announcement of judgment of the Sessions Court dated 9‑8‑2000 or up to supply of the copy of the order dated 9‑8‑2000 up to 18‑8‑2000 but the complainant had not explained the delay from 18‑8‑2000 till the filing of the appeal before the High Court on 8‑9‑2000 resulting in delay of about 21 days‑‑‑Application filed for condonation of delay was dismissed in circumstances.

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

‑‑‑‑S. 417(2‑A)‑‑‑Limitation Act (IX of 1908), Ss. 5 & 29(2) (a) (b)‑‑‑Appeal against acquittal‑‑‑Limitation‑‑‑Period of 30 days for filing an appeal against acquittal has been prescribed by S.417, Cr. P. C. itself and S.5 of the Limitation Act, 1908 cannot be made applicable to such an appeal filed under S.417(2‑A), Cr.P.C.‑‑‑Provisions of S.29 of the Limitation Act, 1908 were fully attracted in this respect‑‑‑Section 5 of the Limitation Act, 1908 is not applicable to the acquittal appeal filed under subsection (2‑A) of S.417, Cr. P. C. in view of the bar contained under S.29(2) (a) & (b) of Limitation Act, 1908.

Muhammad Sharif v. Jamshed Ali and others PLD 1996 Lah. 471; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330; Hussain Bakhsh v. Allah Bakhsh and others PLJ 1981 SC 619 and The State v. Zahid Hussain 1999 SCMR 164 ref.

Muhammad Amir Khan for Appellant.

Date of hearing: 11th December, 2002.

2003 Y L R 1045

[Lahore]

Before Muhammad Farrukh Mahmud, J

GUL BAHAR‑‑‑Petitioner

Versus

FAYYAZ AHMAD and 7 others‑‑‑Respondents

Criminal Miscellaneous No.804/Q of 2002/BWP, heard on 3rd October, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 337‑A(i)‑‑‑Criminal Procedure Code (V of 1898), Ss. 561‑A, 355 & 356‑‑‑Quashing of proceedings‑‑‑Accused and his co‑accused were summoned as accused to face trial in a complaint case before a Judicial Magistrate‑‑‑Aggrieved, accused had filed revision before Sessions Judge which was dismissed‑‑‑Validity‑‑‑Statement of the complainant was corroborated by the statement of the injured witness and two other witnesses‑‑‑Medico‑legal Certificates relating to the injured had also been placed on record‑‑‑Sufficient ground existed for the Trial Court to proceed further with the case and accused were rightly summoned to face trial‑‑‑Mere fact that the statements of the witnesses were not recorded by the Magistrate himself would not diminish the criminality of the accused‑‑‑Such irregularity had not resulted in failure of justice.

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

‑‑‑‑Ss. 355 & 356‑‑‑Penal Code (XLV of 1860), S.337‑A(i)‑‑‑Contention of the accused was that proceedings against him be quashed for the sole reason that statements of the witnesses were recorded by the Reader of the Magistrate during inquiry proceedings and not by the Magistrate himself as required under Ss.355 & 356, Cr.P.C.‑‑‑Validity‑‑­Contention was without force as basic essential requisite was the presence of the Magistrate or the Sessions Judge while the evidence was being recorded‑‑‑Statements of witnesses contained the signatures of the trial Magistrate and it was apparent from the record that the statements were .recorded in the presence of the Magistrate as all the statements contained the observation "Read over and accepted "‑‑‑Presumption arose that statements of the witnesses were recorded in the presence, hearing and under personal direction and supervision of the Magistrate.

Muhammad Zafar Iqbal v. The State and others 1997 PCr.LJ 959; Qazi Muhammad Ali and another v. Muhammad Ayub Fazlani and another 1997 PCr.LJ 999; Jan Muhammad and others v. Gaman Khan 1995 PCr.LJ 1371; Anwar Mahmood and others v. Rashid‑uz‑Zaman PLD 1959 (W.P.) Lah. 186; Fateh Khan v. The State PLD 1957 (W.P.) Pesh. 122; Hazrat Jamal and another v. The State PLD 1958 SC (Pak.) 383 and Riaz Ahmad v. Khalid 2000 PCr.LJ 1527 ref.

Malik Muhammad Aslam for Petitioner.

Malik M.H. Zafar Missen for Respondent No. 1.

Mian Muhammad Bashir, A.A.‑G. assisted by M.A. Farazi for the State.

Date of hearing: 3rd October, 2002.

2003 Y L R 1049

[Lahore]

Before Muhammad Khalid Alvi, J

AHMAD DIN‑‑‑Petitioner

Versus

ILLAQA MAGISTRATE, POLICE STATION SADDAR, KHANEWAL and 3 others‑‑‑Respondents

Writ Petition No.9659 of 2001, heard on 11th December, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑A 337‑A(ii)1337‑F(i)134 ‑‑‑ Criminal Procedure Code (V of 1898), S.63‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑­Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Accused had been discharged by order of the Magistrate upon recommendations of the various Investigating Agencies‑‑‑Subsequently police had filed application before the Illaqa Magistrate for obtaining warrant of arrest of accused which was allowed by the Magistrate ‑‑‑Validity‑‑­Under S.24‑A of the General Clauses Act, 1897, any Authority whether judicial or quasi judicial and even an executive Authority who was vested with any power to pass an order, was required to give reasons‑‑­Impugned order was based on only one word "allowed " which could not be termed as judicial or speaking order with application of mind‑‑‑Impugned order passed by the Magistrate was declared to be illegal and without lawful authority‑‑‑Application filed by the police before the Magistrate would be deemed to be pending before the Magistrate which would be decided after hearing the parties.

PLD 2001 Lah. 271; Sardar Ghulam Baqir Ali Khan v. Secretary to Government of Punjab, Cooperative Department, Lahore and 2 others 2000 CLC 1783 and 1999 SCMR 2744 ref.

Mian Muhammad Arshad Latif for Petitioner.

Qazi Abdul Latif for Respondent No.2.

Date of hearing: 11th December, 2002.

2003 Y L R 1050

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ISHFAQ MEHBOOB‑‑‑Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR, SHUJABAD, MULTAN and 9 others‑‑‑Respondents

Writ Petition No.8383 of 2002, decided on 23rd October, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1) (b) (i)‑‑‑Habeas corpus petition ‑‑‑Abductee was allegedly taken away by the petitioner ‑‑‑Nikah of petitioner with alleged abductee was not solemnized by, the parents and no relation of the said abductee had been cited as a witness in the Nikah‑‑­‑Prima facie, the present case was that of paramour who wanted the recovery of the alleged wife, the abductee‑‑‑Whether Nikahnama was genuine or not, was a question which could not be resolved in Constitutional jurisdiction by the High Court as those were factual controversies‑‑‑Alleged abductee who was living with her parents, could not be said to be in an illegal confinement‑‑‑Petitioner could seek alternate remedy available to him under law‑‑‑Court should avoid issue of writ in favour of paramour for the reasons that if the parents were directed to produce their daughter and ultimately the allegations, so levelled were not found genuine, then parents would suffer an irreparable loss to their family honour.

Shaukat Ali's case 197 SCMR 398 ref.

Rashid Rehman Khan for Petitioner.

2003 Y L R 1052

[Lahore]

Before Muhammad Sayeed Akhtar, J

ABDUL RAUF‑‑‑Petitioner

Versus

MANAGER, SMALL BUSINESS FINANCE CORPORATION and

others‑‑‑Respondents

Criminal Miscellaneous No. 18/H of 2002, decided on 11th February, 2002.

(a) Small Business Finance Corporation Act (XXIX of 1972)‑‑‑

‑‑‑‑Ss.21 & 22‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 24 & 82‑‑‑Criminal Procedure Code (V of 1898,), S.491 ‑‑‑ Habeas corpus petition‑‑‑Petitioner had sought his release from alleged illegal custody on the ground that he was only a guarantor/surety of the original loanees and without initiating legal proceedings against the original borrowers the coercive measures had been adopted against the petitioner without observing the formalities under Ss. 82 & 24, West Pakistan Land Revenue Act, 1967‑‑­Borrowers and the other surety could not be traced and warrants of arrest of t6 petitioner were issued and he was arrested‑‑‑No suit before a Competent Authority had been filed by the Corporation nor determination of the amount of the arrears had been made by the Competent Authority in accordance with law‑‑‑Validity‑‑‑Determination of amount due by the Competent Authority having not been made nor provisions of law having been observed, petition for habeas corpus was accepted by the High Court.

(b) Small Business Finance Corporation Act (XXIX of 1972)‑‑‑

‑‑‑‑Ss. 21 & 22‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.24 & 82‑‑­Recoveries‑‑‑Coercive measures ‑‑‑Corpora­tion without initiating proceedings for recovery of outstanding loan straightaway proceeded to recover the amount as arrears of Land Revenue‑‑‑Alleged amount was merely a claim and had not been determined by the Competent Authority‑‑‑Validity‑‑‑Machinery provisions of the West Pakistan Land Revenue Act, 1967 could only be set into motion after the claim had actually ripened into dues and determined on the basis of some adjudication in accordance with law and justice‑‑­Principles.

Muhammad Akbar Cheema v. The Province of West Pakistan 1984 SCM'R 1047 and Agricultural Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67 fol.

Raja Altaf Hussain Satti for Petitioner.

Miss Mubeen Qureshi for Respondent.

2003 Y L R 1054

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and Rustam Ali Malik, JJ

ARFAN ALI ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 112/J of 1998, heard on 20th January, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑­Recovery‑‑‑No empty was recovered from the spot and there was no evidence on record to show that the weapon recovered from the accused was ever used during the occurrence‑‑‑Recovery evidence was of no significance.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑­Motive‑‑‑Dispute between the parties was over some land which was not denied by the accused‑‑‑Accused and the complainant party were related inter se and possibility that the said motive had been used by the prosecution to falsely involve the accused could not be ruled out.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence ‑‑‑Eye­witnesses were closely related to the deceased and their enmity with the accused was also established from the record‑‑‑Both the eye­witnesses were residents of a locality situated about 60/70 miles away from the place of occurrence and their presence at the spot was doubtful‑‑‑Delay of seventeen hours in lodging the F.I.R. in circumstances of the case was fatal‑‑‑Giving benefit of doubt to the accused, his conviction and sentence were set aside in circumstances and he was acquitted of the charge.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), SS. 87/88‑‑‑Appreciation of evidence‑‑­Abscondence‑‑‑Accused was directed to appear before the Court on 26‑6‑1996‑‑­Record indicated that the accused was taken into custody on 3‑6‑1996 and was produced before the Magistrate for physical remand‑‑‑Proceedings for issuance of proclamation as required under Ss.87/88, Cr. P. C. were never completed‑‑‑Evidence about abscondence of the accused could not be relied upon by the prosecution in circumstances.

Raja Muhammad Anwar and Raja Muhammad Arif for Appellant.

Abdul Salam Awan for the Complainant.

Muhammad Anwar Tiwana for the State.

Date of hearing: 20th January, 2002.

2003 Y L R 1067

[Lahore]

Before Abdul Shakoor Paracha, J

Syed TAHSEEN RAZI‑‑‑Petitioner

Versus

Dr. FARHANA SHAHEEN and another‑‑‑Respondents

Writ Petition No. 1105 of 2002, heard on 22nd October, 2002.

Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Custody and welfare of minors‑‑­Minors lived with their mother since their birth‑‑‑Mother was a Doctor by profession and was an educated lady and had a source of income and was imparting good education to the minor children‑‑‑If minors were given to father who was getting only Rs.6, 000 p.m., it would affect the welfare of minors‑‑­Personal law of the parties though was to be considered while deciding the question of custody of minor, but paramount consideration was welfare of minor‑‑­Guardian Judge could exercise parental jurisdiction over the ward, whittle exercising jurisdiction of custody‑‑‑Personal Law would not be followed blindly or in automatic fashion, but must be decided objectively‑‑­Right of father to claim custody of minor son was not absolute right‑‑‑Father could disentitle himself to custody of minors on account of his conduct in the light of facts and circumstances of each case.

Syed Ali Mehdi v. Baqar Ali Rana, Additional District Judge and others 1998 MLD 1003 and Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 ref.

Raja Muhammad Shakil Abbasi for Petitioner.

Tariq Mahmood Jehangir for Respondent.

Date of hearing: 22nd October, 2002.

2003 Y L R 1070

[Lahore]

Before Tanvir Bashir Ansari, J

SAIMA SADAF‑‑‑Petitioner

Versus

FEDERATION through its Secretary, Ministry of Health, Federal Secretariat, Islamabad and 4 others‑‑‑Respondents

Writ Petition No.3115 of 2002, decided on 3rd December, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1) (a) (i) (c) & (5)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioner, who was daughter of one who was proposed to be inducted as one of the Trustees of an Educational Trust and not Founder Trustee, had claimed that she was entitled to receive free admission into any institution of the Educational Trust‑‑‑Claim of petitioner was declined on the ground that the Institute which was managed by the Trust, was a non­profitable organization and was neither managed nor controlled by Federation, a Province or a Local Authority nor it was performing any function in connection with the affairs of Federation, Province or a Local Authority‑‑‑Trust being neither a "Person" nor an "Authority " as contemplated in Art. 199(a) of the Constitution extraordinary jurisdiction of High Court under Art. 199 of Constitution of Pakistan could not be invoked‑‑‑Person to whom a direction could be issued by High Court under Art. 199 of the Constitution, must be a person performing functions in connection with the affairs of Federation, a Province or a Local Authority as envisaged in Art. 199(1)(a)(i) ‑‑‑ Petitioner had failed to bring any material on record for enforcement of any of the fundamental rights enumerated in the Constitution‑‑‑Contention that a person could be implied to mean even a natural person, was in direct conflict with the requirement of context as provided in Art.199 of the Constitution‑‑­Constitutional petition was incompetent, in circumstances and was liable to be dismissed.

M. Tariq Asad for Petitioner.

Abdul Rashid Awan for Respondents.

Date of hearing: 2nd December, 2002.

2003 Y L R 1075

[Lahore]

Before Tanvir Bashir Ansari, J

HASSAN USMANI, SOLE PROPRIETOR and another‑‑‑Petitioners

Versus

T.F. PIPES LIMTIED through Managing Director‑‑‑Respondent

Civil Revision No.459 of 2002, heard on 17th December, 2002.

(a) Interpretation of statutes‑‑‑

‑‑‑Words in a statute‑‑‑Effect‑‑‑No word in a statute is redundant and has to be given the specific meaning which it intends to convey.

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

‑‑‑‑O. VIII; R.1, first proviso‑‑‑First proviso to O. VIII, R. 1,. C. P. C. is directory and not mandatory in nature‑‑‑Word "ordinarily "‑‑­Connotation‑‑‑Legislature has specifically incorporated the word "ordinarily" to convey that the period of 30 days cannot be adhered to in all circumstances‑‑‑Use of term "ordinarily" gives a discretion to the Court to extend the period in suitable cases.

(c) Words and phrases‑‑‑

‑‑‑‑Ordinarily‑‑‑Applicability‑‑‑Where doing of an act is bound by time but is qualified by the term "ordinarily" it necessarily implies that such provision of law is intended to be directory only.

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

‑‑‑‑O. VIII, R.1, first and second provisos‑‑­Written statement, filing of‑‑‑Provisos first and second to O. VIII, R.1, C. P. C. ‑‑‑Object, scope and applicability‑‑‑Prohibitory command conveyed by the second proviso to O. VIII, R.1, C. P. C. is primarily directed to further the cause of first proviso to O. VIII, R. I., C. P. C. ‑‑‑If the second proviso to O. VIII, R.1, C. P. C. is treated as mandatory, then the letter and intent of the first proviso to O. VIII, R. 1, C. P. C. would be defeated rather than promoted‑‑‑Second proviso to O. VIII, R.1, C. P. C. should not be interpreted, so as to give it greater effect than the interpretation and construction of the first proviso to O. VIII, R. 1. C. P. C. itself.

(e) Interpretation of statutes‑‑‑

‑‑‑‑Different provisions of statutes, interpretation of‑‑‑Principles‑‑‑Provisions of statutes should be construed harmoniously, so as to advance the purpose of a substantive provision of law‑‑‑No provision can be pressed into service in order to defeat the real object of the main provision.

(f) Administration of justice‑‑‑

‑‑‑‑Procedural laws‑‑‑Scope‑‑‑All procedural laws are designed to promote the ends of justice‑‑‑Courts of law never take a fetish of technicalities, so as to lose sight of the main purpose of administration of justice which is to decide a lis in accordance with the respective rights of the parties.

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

‑‑‑‑O. VIII, R.1‑‑‑Striking off defence‑‑­Failure to file written statement in two adjournments‑‑‑Recovery suit for big amount was filed against the defendant‑‑‑Defendant failed to file written statement on two dates as required under O. VIII, R.1, C. P. C. resultantly the Trial Court struck off the right of defence of the defendant‑‑‑Validity‑‑‑If a narrow and rigid construction was placed upon the second proviso to O.VIII, R.1, C. P. C. it would amount to granting a decree of a huge amount even without allowing the defendant to contest the claim on merits when the record did not disclose any contumacious act which was attributed to the defendant‑‑­Order passed by the Trial Court was set aside subject to costs and case was remanded to Trial Court for decision on merits after providing the defendant a chance to file written statement.

Messrs Allied Group Ventures Limited v. Quality Vision (Pvt.) Limited and others PLD 2002 Lah. 274 distinguished.

Raja Muqsit Nawaz Khan for Petitioner.

Syed Masood Ahmad Shah for Respondent.

Date of hearing: 17th December, 2002.

2003 Y L R 1079

[Lahore]

Before Raja Muhammad Sabir and Bashir A. Mujahid, JJ

ZULFIQAR alias ZULA and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.53 of 1995 and Murder Reference No.304 of 1997, heard on 21st January, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑­Accused had been nominated in the promptly recorded F.I.R.‑‑‑Eye‑witnesses had sufficiently explained their presence at the scene of occurrence‑‑‑Mere relationship of eye‑witnesses with the deceased was no ground to discard their testimony, as impartial persons usually did not come forward to depose against the criminals‑‑­Prosecution witnesses had no previous, enmity for false implication of accused or their substitution by letting off the real culprits‑‑­Defence counsel, thus, was justified in not challenging the conviction of accused which was maintained‑‑‑Motive alleged by the complainant in the F.I.R. was not proved and the matter of previous beating was not reported to the police‑‑‑Complainant party had compromised with the other accused in the case‑‑‑Accused had been convicted in the trial conducted in the private complaint and were in death cell since the year 1995 and had expectancy of life‑‑‑Death sentence of accused was altered to imprisonment for life in circumstances.

Muhammad Amin v. M. Khan and others 2002 SCMR 1473 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑­Ocular testimony was not corroborated by medical evidence or the recovery of weapon of offence‑‑‑Statement of the doctor showed that the relevant injuries could be the result of one fire‑shot‑‑‑Accused was extended the benefit of doubt and acquitted in circumstances.

Erum Sajjad Gul for Appellants.

Ch. Muhammad Azam for the State.

Date of hearing: 21st January, 2003.

2003 Y L R 1091

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAFAR IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3297/B of 2002, decided on 14th January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑­Pre‑arrest bail‑‑‑Allegation against the accused was that he and his co‑accused had been indulging in Zina‑bil‑Raza‑‑‑ Such allegation having not been found correct in investigation, case against accused was recommended for cancellation, but the Magistrate did not agree and on his direction challan had been submitted in the Court‑‑­Lady co‑accused according to her medico-­legal report was a virgin and her viginal swabs according to the Chemical Examiner were not stained with semen‑‑‑Case against accused fell within the ambit of S.497(2), Cr. P. C. and warranted further probe into his guilt‑‑‑Ad interim pre‑arrest bail already granted to accused was confirmed in circumstances.

Mehr Najaf Ali Chowhan for Petitioner.

Sh. Nasim Rashid for the State.

Sardar Muhammad Sarfraz Dogar for the Complainant.

2003 Y L R 1097

[Lahore]

Before Mian Muhammad Jahangier, J

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 2

others‑‑‑Respondents

Writ Petition No.8 of 2002, decided on 7th May, 2002.

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

‑‑‑‑S. 173‑‑‑Report of Police Officer‑‑­Submission of challan in the Court within the prescribed period ‑‑‑Illaga Magistrate (Judicial) has control over the conduct of investigation of the cases registered at the police station within his jurisdiction‑‑­Section 173, Cr. P. C. speaks about the Control of the Judicial Magistrate over the conduct of investigation as he is the only authority to ask as to why the report was not being submitted.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 324‑‑‑Criminal Procedure Code (V of 1898), S.173‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Despite the investigation having been completed in the case up to the level of I.‑G. Police, the matter was statedly being prolonged with mala fide intention just to cause pressure upon the petitioner for compromise‑‑‑Direction for submission of challan in the Court though had been given about one year back, yet no interim report was even sent by the local police to the Ilaqa Judicial Magistrate, otherwise he might have commenced the trial and in this way the petitioner could be saved from the financial burden of travelling hither and thither‑‑­Sessions Judge, in circumstances, was directed to hold an inquiry to find out as to who was responsible for not having submitted the interim report as required under S.173, Cr. P. C. and also recommend for an action against the defaulter‑‑‑Sessions Judge was also directed to order for submission of the interim report in the Court within shortest possible time‑‑‑Constitutional petition was disposed of with the said directions.

Qaisar Iqbal v. I.‑G. Police, Punjab and 3 others 2001 PCr.L.J 320; Muhammad Yousaf y. Inspector‑General of Police and 4 others PLD 1997 Lah. 135; Muhammad Siddique Rana v. D.S.P. and others NLR 1999 Criminal 31; Ch. Shah Muhammad, Inspector, C.I.A. and another v. Mst. Ramzan Bibi and 2 others NLR 1998 Criminal 204 and Raja Rustam Ali Khan v. Muhammad Hanif and others 1997 SCMR 2008 ref.

Ch. Afrasiab Khan for Petitioner.

Syed Sajjad Hussain Shah, A.A.‑G. for the State.

2003 Y L R 1105

[Lahore]

Before Sayed Zahid Hussain, J

BARKAT BIBI‑‑‑petitioner

Versus

ZAHIDA PARVEEN and 2 others‑‑‑Respondents

Writ Petition No. 11399 of 1996, heard on 16th January, 2003.

(a) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Custody of minor ‑‑‑Principles‑‑While settling a matter of custody of minor the supreme consideration is the welfare and betterment of minors rather than the claims and wishes of the respective contenders‑‑­Wishes of minors have also to be kept in view by the Court, if the minor is grown up enough to form an intelligent opinion.

(b) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑After the death of father of minors, the custody of minors remained with their maternal‑grandmother throughout and the minors were brought up and educated by her‑‑‑Mother of the minors had married a person not in a prohibitory degree to the minors‑‑‑Both the Courts below had given custody of male children to the mother while the custody of the female child remained with the grandmother‑‑‑Validity‑‑‑Matter related to a family unit and the minors had developed extreme love and affection with each other where their sister had also been brought up‑‑­Any effort to break the family unit would have adverse effect qua minors' welfare‑‑‑Lack of interest of mother in minors was apparent and obvious‑‑‑Guardian Court in such matter when placed in locus parents position could not ignore such aspects and the custody of the minors could not be thrust on an unwilling contender‑‑‑Welfare of minor besides material, intellectual, moral and spiritual well being included various other things‑‑­Any force applied in the matter of custody against their wishes when they had attained sufficient maturity in exercising their preference would not be consistent with their welfare and rather might have adverse effects‑‑‑ Courts below were not justified in ordering the custody of two male minors in favour of their mother as they were well looked after by their maternal ­grand mother‑‑‑Judgments passed by both the Courts below were set aside by the High Court and the custody of all the minors remained with the maternal‑grandmother‑‑­Constitutional petition was allowed accordingly.

Maj. Zafar Iqbal v. Mst. Rehmat Jan and another 1994 SCMR 339; Muhammad Nafees Abbas v. Guardian Judge, Lahore and others NLR 1994 Civil 4; Syed Hameed Ali Shah v. Shaista Sultana and 2 others 1994 CLC 81; Muhammad Afzal v. Mst. Sameena Akhtar and another 1995 CLC 1519; Ch. Nazir Ahmad v. Additional District Judge‑III, Sahiwal and others 1988 SCMR 1359 and Mahomedan Law by D.F. Mulla ref.

Malik Abdul Wahid for Petitioner.

Nemo for Respondent.

Date of hearing: 16th January, 2003.

2003 Y L R 1112

[Lahore]

Before Muhammad Sayeed Akhtar, J

SALIM ULLAH FARIDI and 8 others‑‑‑Appellants

Versus

AMJAD SHARIF QAZI and 7 others‑‑‑Respondents

Regular Second Appeal No.2 of 1997, heard on 20th November, 2002.

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

‑‑‑‑S. 12‑‑‑Limitation Act (IX of 1908), Art.113‑‑‑Specific performance of agreement to sell‑‑‑Limitation‑‑‑ Computation‑‑­Agreement, according to its terms was to be performed after obtaining Permanent Transfer Deed and notice through registered post was to be issued after obtaining Permanent Transfer Deed for execution of sale‑deed‑‑‑Nothing was placed on record to show the date of issuance of Permanent Transfer Deed‑‑‑Suit was not barred by time in the absence of such notice.

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

‑‑‑‑S. 58‑‑‑Mortgage‑‑‑Pre‑conditions‑‑‑Tran­saction cannot amount to a mortgage by conditional sale unless the same fulfils the conditions of S.58 of Transfer of Property Act, 1882‑‑‑Sale is made a mortgage, if the mortgagor ostensibly sells the mortgaged property on conditions that on certain date the sale shall become absolute or that on such payment being made the sale shall become void or that on transfer of property to seller, the transaction, though in the garb of a sale, is in the eye of the law, a mortgage by conditional sale‑‑‑Sale with an independent covenant for repurchase has a resemblance to the class of ostensible sales‑‑‑Where a mortgagor has ostensibly sold his property on condition that on payment of the mortgage money, under S.58 of Transfer of Property Act, 1882, the buyer can transfer the property to the seller, the transaction is a mortgage by conditional sale‑‑‑In an agreement if none of the conditions has been fulfilled, such agreement is sale and not a mortgage by conditional sale.

AIR 1927 All. 321 rel.

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

‑‑‑‑Ss. 12 & 22‑‑‑Transfer of Property Act (IV of 1882), Ss.54, 58 & 67‑‑‑Contract Act (IX of 1872), S.10 ‑‑‑ Qanun‑e‑Shahadat (10 of 1984), Arts. 72 & 79‑‑‑Specifc performance of agreement to sell‑‑Redemption of mortgage property‑‑‑Document whether a sale or mortgage‑‑‑Proof‑‑‑Failure to produce two marginal witnesses‑‑‑Suit property was initially mortgaged vide registered mortgaged deed by the predecessor‑in‑interest of the plaintiffs in favour of the predecessor‑in-­interest of defendants‑‑‑Suit for redemption of mortgaged property was instituted by the plaintiff and in response, the defendants filed a suit for specific performance of agreement to sell‑‑Assertion made by the defendants was that subsequent to execution of mortgaged deed, the predecessor‑in‑interest of the plaintiffs had agreed to sell the suit property and the mortgaged money was converted into part payment of consideration amount‑‑­Predecessor‑in‑interest of both the parties since being dead, they could not appear as witness‑‑‑Scribe was produced to prove the document who did not know if any other witness signed the said document in his presence‑‑‑Such witness was silent as to contents of document and had also not said a word about the sale consideration and other stipulations‑‑‑Trial Court dismissed the suit filed by the plaintiffs and decreed that of the defendants‑‑‑Judgments and decrees passed by the Trial Court were maintained by the Appellate Court‑‑‑Validity‑‑‑In the absence of the marginal witnesses, the alleged sale was not proved‑‑‑Agreement was initially for mortgage of property which allegedly had been converted into a contract of sale of mortgaged property‑‑‑Defendants ‑ having remained silent for 23 years, the Courts below wrongly granted the discretionary relief for specific performance of the alleged contract‑‑‑Judgments and decrees passed by both Courts below were set aside and the suit of the plaintiffs for redemption of the mortgage was decreed and that of the defendants for specific performance of the agreement to sell was dismissed‑‑­High Court passed preliminary decree for payment of mortgage money accordingly.

1990 SCMR 28; 1992 SCMR 417; 1990 PSC 852; PLD 1997 SC 353; PLD 1980 SC 1049; 1988 SCMR 1765; SCMR 1696 and 1985 SCMR 359 ref.

(d) Document‑‑‑

‑‑‑ Invalid document‑‑‑Effect‑‑‑Document which was not valid any superstructure built upon such document also falls to ground.

(e) Document ‑‑‑

‑‑‑‑Iqrarnama‑‑‑Effect‑‑Every 1qrarnama does not create legal relationship between the parties.

PLD 1985 Lah. 637 ref.

(f) Contract Act (IX of 1872)‑‑

‑‑‑‑S. 10‑‑‑Valid contract‑‑‑Unilateral docu­ment ‑‑‑Agreement relied upon by the beneficiary of the document was a unilateral document in his own favour and other document which was Iqrarnama was also not signed by the executant, signifying his acceptance‑‑‑Effect‑‑‑Minds of the parties did not meet and the document created no legal relationship between them‑‑‑Such document did not ripe into an agreement.

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

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984) Arts. 117 & 120‑‑‑Ownership/title of immovable property‑‑‑Proof‑‑‑Record of Excise and Taxation Department ‑‑‑Validity‑‑­Copies of assessment from Register P. T‑1 are not documents of ownership/title of the property.

(h) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 22‑‑‑Specific performance of contract, grant of‑‑‑Power of Court‑‑‑Scope‑‑‑Court is not bound to grant specific performance of a contract in every case as the same is discretionary matter under S.22 of Specific Relief Act, 1877.

Syed Arif Shah v. Abdul Hakim PLD 1986 Kar. 189 and Sirbaland v. Allah Loke and others 1996 SCMR 575 ref.

Sheikh Naveed Shahryar, Mian Muhammad Athar and Qureshi Muhammad Hafeez for Appellants.

Khawaja Abrar Majal, Mian Nisar Ahmad, Ch. Muhammad Bakhsh and Waqar Saleem Malik for Respondents.

Date of hearing: 20th November, 2002.

2003 Y L R 1126

[Lahore]

Before Ch. Ijaz Ahmed, J

ABDUL KHALIQ‑‑‑Petitioner

Versus

SUBA and 6 others‑‑‑Respondents

Civil Revision No.2555 of 2002, decided on 6th January, 2003.

(a) Qanun-e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 70 & 72‑‑‑Evidence‑‑‑Documentary evidence takes precedence over oral evidence.

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

‑‑‑‑Ss. 42 & 45‑‑‑Registration Act (XVI of 1908), S.17‑‑‑Mutation‑‑‑Report in Roznamcha (Daily Book), a proof of sale‑‑­Mutation in favour of the plaintiffs were cancelled by the Revenue Authorities on the ground that the defendants had produced registered sale‑deed in their favour regarding the suit land‑‑‑Plaintiffs claimed to be owners of suit land by way of purchase and to prove the sale in their favour, the plaintiffs intended to produce Roznamcha of Revenue Authorities‑‑‑Both the Courts below concurrently dismissed the suit and appeal filed by the plaintiffs ‑‑‑Validity‑‑‑Roznamcha was not admissible in evidence for the reason that it was not a document signed by the parties nor the same was recorded by any of the Revenue Authority‑‑‑Registered sale‑deed must be given due weight unless the same is rebutted by cogent evidence‑‑‑Plaintiffs having failed to rebut the contents of registered sale‑deed, the findings of both the Courts below were in accordance with law‑‑­Judgments and decrees passed by the Courts below did not suffer from any misreading and non‑reading of record‑‑­Petition was dismissed in circumstances.

Mehrban v. Hamid Khan 1985 CLC 1780; Mires Muhammad Sharif's case 1993 SCMR 462 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction ‑‑‑Con­current findings of fact by the Courts below‑‑­Scope‑‑‑High Court has very limited jurisdiction to disturb the concurrent findings of fact while exercising jurisdiction under S.115, C.P.C. unless and until the same is the result of misreading and non‑reading of record or is in violation of principles laid down by superior Courts.

N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 ref.

Agha Saleem Khurshid for Petitioner.

2003 Y L R 1134

[Lahore]

Before Bashir A. Mujahid, J

SHER ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 2004 and Criminal Revision No. 882 of 2001, heard on 28th October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (c)‑‑‑Appreciation of evidence‑‑­Sentence‑‑‑Sentence, reduction in‑‑­Occurrence had taken place at night in the house of accused and accused had pleaded that he acted under grave and sudden provocation‑‑‑Accused was justified in not challenging the conviction recorded by the Trial Court against him‑‑‑Case against the accused which fell under S.302(c), P.P.C., and maximum sentence being 25 years, Trial Court had already taken lenient view in awarding sentence of 10 years' R.I. on each count for murder of two persons which sentences were to run concurrently‑‑‑In absence of any ground to further reduce the sentence, appeal and revision filed by accused, were dismissed.

1993 SCMR 208 ref.

Ch. Ali Muhammad for Appellant.

Hafiz Khalil Ahmad for the Complainant.

Muhammad Younis Rana for the State.

Date of hearing: 28th October, 2002.

2003 Y L R 1138

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

KHALIL YOUSAF and 2 others ‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.627‑A of 1994 and 120/SAC/L of 1993, heard on 14th January, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.392/34‑‑‑Appreciation of evidence‑‑­Complainant who was' Headmistress of a school and prosecution witness who was also a teacher of said school, absolutely had no animus or ill‑will against accused so as to falsely implicate him in a case of such a nature‑‑‑Both said eye‑witnesses had made consistent statements before Trial Court and their statements inspired confidence‑‑‑Both the witnesses had not only identified the accused before the Police, but had also identified him before Trial Court without any mistake‑‑‑Another prosecution witness knew the accused quite well and he had not only seen the said accused coming with his companions to the place of occurrence, but had also seen him at the spot at the time of occurrence‑‑‑Said witness also chased the accused and his companions when they were running away from the spot after occurrence‑‑‑Defence had failed to bring anything on the record so as to discredit the witness‑‑‑Ornaments recovered from the possession of accused during investigation of the case had been identified by the complainant before Trial Court to be her's‑‑­Another prosecution witness had deposed about giving two motorcycles on hire to the accused and his co‑accused which motorcycles had been used by them for committing the offence‑‑‑All said witnesses had made consistent as well as categorical statements fully incriminating the accused and there was no reason to doubt veracity of those witnesses‑‑‑Plea of false implication on account of political rivalry and party faction in the locality taken by the accused had been found to be vague and unreliable‑‑‑Prosecution, in circumstances, had succeeded in bringing guilt of accused home‑‑‑Appeal filed by accused against his conviction and sentence, was dismissed, in circumstances.

M.A. Zafar and Mirza Muhammad Aziz‑ur‑Rehman for the Appellants in Criminal Appeal No. 627‑A of 1994.

Muhammad Jahangir Wahlah, Asstt. A.‑G. for Appellant (in Criminal Appeal No. 120/SAC/L of 1993 and Criminal Appeal No.627‑A of 1994).

Mrs. Zarqa Bashir for the State.

Date of hearing: 14th January, 2003.

2003 Y L R 1143(1)

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD TUFAIL and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 420/B of 2003, decided on 24th January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/337‑H(2)/148/149‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Only aerial firing having been attributed to the accused persons, their case was covered by subsection (2) of S.497, Cr.P.C. which required further inquiry into the guilt‑‑‑Accused were allowed bail, in circumstances.

M.A. Zafar for Petitioners.

Tanveer Haider Jalib for the State.

2003 Y L R 1144

[Lahore]

Before Khawaja Muhammad Sharif, J

MAQSOOD AHMAD ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 2054 and 1955 of 2000 and Criminal Revision No. 151 of 2001, heard on 17th January, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑­Case was of broad daylight occurrence‑‑‑No injury whatsoever was attributed to acquitted co‑accused and it was the accused who caused fatal injury on the vital part of the deceased‑‑‑Two eye‑witnesses produced by prosecution though were closely related to the complainant, but they were natural and independent witnesses‑‑‑Occurrence had taken place in front of house of eye‑witnesses and there was no previous background of enmity whatsoever‑‑‑Trial Court had already taken a lenient view by not awarding death sentence for the reason that prosecution had failed to prove motive‑‑‑Ocular account was fully corroborated by medical evidence‑‑‑Principle to sift grain from chaff was fully applicable to the case‑‑‑Trial Court was right in acquitting the co‑accused‑‑‑Eye‑witnesses produced by prosecution were natural and independent‑‑­Prosecution having proved its case against the accused appeal filed by accused against his conviction and sentence being merit-less, was dismissed.

Suhail Dar and Mirza Abdullah Baig for Appellant (at State expenses).

M.A. Zafar for the Complainant.

Khan Muhammad Bashir for the State.

Date of hearing: 17th January, 2003.

2003 Y L R 1152

[Lahore]

Before Ijaz Ahmed Chaudhry, J

KHUSHI MUHAMMAD and another‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No., 361‑M of 2002, heard on 10th December, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 411 & 457‑‑‑Criminal Procedure Code (V of 1898), Ss. 439‑A & 561‑A‑‑‑Quashing of judgment‑‑‑Sessions Court while exercising its revisional jurisdiction under S.439‑A, Cr. P. C. had given no finding regarding enhancement of sentence awarded to accused by the Trial Magistrate under S. 411, P. P. C. but had convicted them under S.457, P. P. C. and sentenced them to two years R.I. with fine‑‑‑Trial Magistrate having omitted to mention the offence under S.457, P. P. C. while convicting the accused under S.411, P. P. C., it might be presumed that they had been acquitted from the offence under 5.457, P.P.C.‑‑‑Sessions Court in its revisional jurisdiction under S.439‑A, Cr. P. C. was not competent to convert a finding of acquittal into conviction‑‑‑Impugned judgment was ambiguous as it did not even disclose the consideration on which the accused were convicted under S.457, P. P. C. ‑‑‑Said judgment was set aside in circumstances and the case was remanded to Sessions Court for decision afresh in accordance with law in the light of the above observations.

Altaf Ibrahim Qureshi for Petitioners.

Ch. Muhammad Iqbal for Respondent No. 2.

Syed Altaf Hussain Bokhari for the State.

Date of hearing: 10th December, 2002.

2003 Y L R 1156

[Lahore]

Before Mian Muhammad Jahangier, J

ASGHAR ALI and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1137 of 1999, heard on 13th December, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 299(b), (d), (e) & 331‑‑‑Arsh, Daman and Diyat payable in lump sum or in instalments ‑‑‑Arsh, Daman and Diyat basically are three forms of compensation and are quasi‑civil damages provided in different conditions‑‑‑If the amount of Diyat is payable in lump sum or in instalments then Arsh and Daman can also be paid in lump sum or in instalments.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324, 337‑F(v), 337‑F(iii), 299 & 331‑‑‑Appeal‑‑‑Accused in addition to different terms of imprisonments, were also sentenced by the Trial Court to pay different amounts of Arsh and Daman to the injured prosecution witnesses‑‑‑Defence counsel did not wish to press the appeal if the amounts of Arsh and Daman imposed on the accused were directed to be deposited in equal instalments as required by S.331, P. P. C. ‑‑‑if the amount of Diyat was made payable in lump sum or in instalments under 5.331, P. P. C. then Arsh and Daman could also be paid in lump sum or in instalments‑‑‑Accused were, therefore, directed to deposit the amounts of Arsh and Daman in 36 equal instalments Within a period of three years with the Sessions Judge concerned for disbursement, with further necessary directions‑‑‑Appeal was disposed of accordingly.

Syed Zahid Hussain Bokhari for Appellants.

Date of hearing: 13th December, 2002.

2003 Y L R 1164

[Lahore]

Before Ch. Iftikhar Hussain and Ijaz Ahmad Chaudhry, JJ

GHULAM HAIDER and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 378 and 379 of 1999, heard on 11th and 14th November, 2002.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss.302/324/148 & 149‑‑‑Suppression of Terrorist Activities (Special Courts) Act (X of 1975), S.7‑‑‑Appreciation of evidence‑‑­Medical evidence had negated the prosecution version as the Doctor while conducting post­mortem examination of the two deceased had not found any piece of undigested food in the stomaches of both the deceased who were allegedly taking meals at the time of incident‑‑‑Presence of the eye‑witnesses was further negated by the site plan prepared at the instructions of the prosecution witnesses as empties had not been recovered from the place from where they were allegedly fired and had been found from a place which was fifty feet away from the point from where the accused had allegedly fired‑‑‑Prosecution story that all the accused had come at the spot on three motorcycles was doubtful for the reason that while eye‑witnesses were attracted by the noise, the deceased did not turn towards the accused and they continued taking their meals with their backs towards the accused receiving injuries on their backs‑‑‑Identical enmity and grudge existed against the complainant which was against both the deceased, but he was not fired at which cast doubt on the prosecution story‑‑­When both the eye‑witnesses were admittedly interested witnesses due to previous enmity between the parties proved on record, non ­production of the only injured prosecution witness whose presence at the spot could not be doubted, cast serious doubt on the prosecution story‑‑‑Non‑sending of crime empties to the Forensic Science Laboratory immediately after their recovery coupled with non‑mentioning of crime empties in the inquest reports was sufficient to draw an inference that the crime empties were manoeuvred after the recovery of alleged weapons of offence from the accused‑‑­Prosecution had failed to bring home guilt against the accused beyond any shadow of doubt‑‑‑Impugned judgment of conviction and sentence was set aside and the accused were acquitted of the charge by giving them benefit of doubt.

2002 SCMR 1428 and 2002 SCMR 1851 ref.

Sahibzada Farooq Ali and Muhammad Iqbal Khan Khichi for Appellants.

Sardar Balakh Sher Khosa for the Complainant.

Muhammad Saleem Akhtar for the State.

Dates of hearing, 11th and 14th November, 2002.

2003 Y L R 1173

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHOAIB and 6 others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No. 309 of 2000, heard on 6th November, 2002.

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

‑‑‑‑Ss. 528 & 439‑‑‑Penal Code (XLV of 1860), Ss. 324/ 334/ 337‑F(ii)/ 337­F(vi)/148/149‑‑‑Transfer of case from Judicial Magistrate to Court of Additional Sessions Judge for trial‑‑‑Sessions Judge on application of complainant, withdrew case from the Court of Judicial Magistrate and entrusted the same to the Court of Additional Sessions Judge for trial ‑‑‑Accused had challenged order passed by Sessions Judge through criminal revision filed under S.439, Cr.P.C.‑‑‑Offences under Ss. 324, 334 & 336, P. P. C. were punishable with Qisas or Arsh which punishment could be enforced by a Court of Session‑‑‑Trial in the present case was conducted by Judicial Magistrate and on conclusion thereof if Judicial Magistrate would find that accused were to be awarded sentence which he was not empowered to award, the case would have to be transferred to the Court of Session‑‑‑Sessions Judge, in circumstances, had rightly withdrawn the case from the Court of Judicial Magistrate and entrusted the same to the Court of Additional Sessions Judge‑‑‑Accused could not be given a right to choose Court of his choice for trial‑‑‑Contention that accused would lose one forum of appeal, was repelled as ‑ accused, if was convicted by Sessions Court, could file appeal before High Court and that would be heard and decided on the same principles available to the accused in the Sessions Court as Appellate Court‑‑‑No prejudice, in circumstances, was likely to be caused to the accused by transfer of the trial‑‑‑In absence of any illegality in order passed by Sessions Judge, such order could not be interfered with by High Court in exercise of its revisional jurisdiction.

Khan Khuda Bakhsh Khan for Appellant.

Sh. Nasim for the State.

Nafees Ahmad Ansari for Respondent No. 2.

Date of hearing: 6th November, 2002.

2003 Y L R 1178

[Lahore]

Before Ch. Ijaz Ahmad, J

NAEEM SARWAR‑‑‑Petitioner

Versus

THE STATE and 6 others‑‑‑Respondents

Writ Petition No. 21699 of 2002, decided on 14th January, 2003.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Main­tainability‑‑‑Constitutional petition is not maintainable in the presence of alternative remedy.

Phali Gul v. Shams‑ul‑Arifin and another PLD 1994 Pesh. 171 and Ch. Muhammad Ismail's case PLD 1996 SC 246 ref.

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

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Conversion of Constitutional proceedings into criminal revision‑‑­Constitutional proceedings can be converted into criminal revision.

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

‑‑‑‑S.265‑F(2) (3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Investigation Officer, examination of‑‑‑Constitutional petition‑‑­Complainant had filed application before the Trial Court for summoning of the Investigating Officer as a witness to whom investigation had been transferred subsequently‑‑‑Accused had contended that police had not submitted any supplementary challan and the said Investigating Officer had not recorded any fresh statement under S.161, Cr. P. C. or prepared site inspection note‑‑‑Trial Court had rejected the application of the complainant ‑‑‑Validity‑‑­Complainant filed an application for summoning of the Investigating Officer qua his opinion‑‑‑Said Investigating Officer did not record any statement under S.161, Cr. P. C. and did not collect any material‑‑­Trial Court was justified to dismiss the application of the complainant which was in accordance with S.265‑F(3), Cr. P. C. as opinion of the police was not binding upon the Court‑‑‑Complainant had not approached the Court with clean hands‑‑‑Constitutional petition was devoid of merits and same was dismissed accordingly.

Muhammad Ibrahim v. State 1984 PCr.LJ 2950; Mahmob v. State and 3 others 1989 PCr.LJ 2050; Syed Nawab Raunaq Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR 1482 ref.

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

‑‑‑‑S.265‑F(3)‑‑‑Opinion of the Police Officer has no binding effect on the Court.

Masood Mirza for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondent No. 1.

Syed Zahid Hussain Bokhari for Respondents Nos. 4 to 7.

2003 Y L R 1183

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. ZUBEDA MAI and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1970‑B of 2002, decided on 29th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑­Bail, grant of‑‑‑Case of two Nikahs one alleged by the complainant and the other owned by the accused with the co‑accused lady ‑‑‑Accused had admittedly brought suit for jactitation of marriage against the person with whom she was alleged to have been married and the same was decreed in her favour‑‑‑Contention of the complainant that the application to set aside the decree had been moved, therefore, the same be not considered was repelled as the decree still held the field as having not been set aside‑‑­Validity or otherwise of the Nikah was to be gone into by a competent Family Court‑‑­Case against the accused called for further inquiry, interim pre‑arrest bail granted to the accused was confirmed in circumstances.

Ghulam Ghaus v. Muhammad Amin and others 1997 SCMR 37 ref.

Malik Muntazir Mehdi and Syed Asad Abbas for the State.

Khan Hafiz Ahmad Khan and Mian Muhammad Akram for the Complainant.

2003 Y L R 1190

[Lahore]

Before Rustam Ali Malik, J

NASEER AHMED and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 4311/B of 2002, decided on 26th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Ad‑interim pre‑arrest bail, grant of‑‑‑Accused had stated that they were respectable citizens and had been falsely implicated in case with a mala fide intention and with ulterior motives‑‑‑Accused had further stated that they were ready and willing to furnish sufficient security for their appearance before the Court and also to join investigation whenever so required by the Police‑‑‑Accused had requested that they be allowed ad‑interim pre‑arrest bail so as to enable them to put in appearance before the Court concerned‑‑‑Request of the accused being genuine, they were admitted to ad­ interim pre‑arrest bail‑‑‑Accused could file a proper application for pre‑arrest bail before Court concerned and also to join the investigation.

Malik Muhammad Imtiaz Mahl for Petitioner.

2003 Y L R 1194

[Lahore]

Before Ijaz Ahmed Chaudhry and Ch. Iftikhar Ahmad, JJ

MUBARAK ALI and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1 of 2003 in Criminal Appeal No. 420 of 2002, decided on 6th February, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426‑‑‑Penal Code (XLV of 1860), S.302(b)‑‑‑Suspension of sentence‑‑‑Accused had not caused any injury to the deceased or to any prosecution witness‑‑‑Whether or not the accused had shared common intention with other accused would be seen at the time of hearing of the main appeal‑‑‑Appeal was not likely to be heard in near future and the accused, if ultimately acquitted, could not be compensated for the period he would undergo in jail due to pendency of appeal‑‑‑Sentence of imprisonment far life of accused was suspended in circumstances and he was released on bail accordingly.

Muhammad Mumtaz Malik for Appellant.

Sh. Muhammad Rahim for the State.

Date of hearing: 6th February, 2003.

2003 Y L R 1198

[Lahore]

Before Khawaja Muhammad Sharif, J

NASAR IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1282 of 2002, heard on 27th January, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(c)‑‑‑Appreciation of evidence‑‑­Sentences, reduction in‑‑‑Accused, his brother and father were named in the F.I.R., but brother and father of accused were acquitted by the Trial Court and no appeal against their acquittal was filed by the State or by the complainant‑‑‑Conviction of accused under S.302(c), P.P.C. had also not been challenged either by the complainant or by State‑‑‑Trial Court had disbelieved presence of eye‑witnesses and had relied upon the statement of Court‑witnesses who were sister and mother of the accused‑‑‑If versions of prosecution and the accused were put in a juxtaposition then version of the accused seemed to be more plausible and convincing‑‑‑When prosecution evidence was disbelieved, then version of accused was to be accepted in totality‑‑‑Conviction of accused under S.302(c), P.P.C. was maintained, but sentence awarded to accused was reduced from 20 years' R.I. to 7 years' R.I. with benefit of S. 382-B, Cr. P. C. ‑‑‑Order with regard to payment of compensation by accused, was also set aside because in cases of right of self‑defence or under sudden provocation neither fine nor compensation was to be awarded to the accused.

1993 PCr.LJ 557: 1992 SCMR 2047 and PLD 1982 SC 294 ref.

Pervaiz Iqbal Tarar for Appellant.

M. Jahangir Wahla, A.A.‑G. for the State.

Date of hearing: 27th January, 2003.

2003 Y L R 1211

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD BASHIR‑‑‑Appellant

Versus

Mst. REHMAT BIBI through Legal Heirs and other‑‑‑Respondents

Second Appeal from Order No. 7 of 1996, heard on 29th January, 2003.

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

‑‑‑‑S.13‑‑‑Default in payment of rent and bona fide personal need of landlord‑‑‑Denial of relationship of landlord and tenant‑‑‑Rent Controller found that such relationship existed between the parties, but dismissed ejectment petition on other issues‑‑‑Appellate Court accepted appeal by landlord‑‑­Validity‑‑‑Findings of Rent Controller qua existence of relationship of landlord and tenant between parties had become final as tenant had not challenged the same in appeal‑‑‑Such findings could not be agitated in second appeal‑‑‑Tenant could not point out any material error or illegality committed by Courts below in rendering concurrent findings of fact qua existence of such relationship‑‑‑High Court dismissed appeal and allowed one year's time to tenant to vacate shop subject to payment of rent for one year in advance.

Muhammad Mobin Siddiqui's case 1982 SCMR 233; Nasir Ahmad v. Nazar Muhammad PLD 1974 Lah. 489; Muhammad Bux and others v. Ghulam Rasool PLD 1982 Kar. 28; Muhammad Bashir v. Ghulam Hussain 1998 CLC 1085; Muhammad Anwar and others v. Mst. Balqees and others 1984 CLC 1506; Haji Abdul Hameed v. Ch. Muhammad Islam 1983 CLC 970; Messrs Yameen Riaz's case 1999 SCMR 432 and Al‑Karim (Pvt.) v. East and West Insurance Company Ltd. Civil Appeals Nos. 1627 to 1652 ref.

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

‑‑‑S.15(6)‑‑‑Second appeal‑‑‑Concurrent findings of fact‑‑‑Interference in such findings could be made by High Court only when evidence was misread and finding was based on surmises and conjectures or on inadmissible evidence or there existed an error or defect in proceedings, which might possibly have introduced an error or defect in decision on merits.

Ch. Muhammad Hassan for Appellant.

Ch. Ikram‑ul‑Haq for Respondents.

Date of hearing: 29th January, 2003.

2003 Y L R 1217

[Lahore]

Before Ch. Ijaz Ahmad, J

Raja BINYAMIN‑‑‑Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, LAHORE‑‑‑Respondent

Writ Petition No. 1542 of 2003, decided on 3rd February, 2003.

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑--

‑‑‑‑S.14(e)‑‑‑Punjab Local Government Elections Rules, 2000, Rr.70 & 80‑‑‑ Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Election Tribunal declared election of returned candidate for office of Naib Nazim as void for filing forged Matric Certificate with the nomination papers‑‑‑Validity‑‑‑Election Tribunal had given such findings after recording evidence‑‑‑High Court had no jurisdiction to substitute its own findings in place of findings of the Tribunal‑‑‑Constitutional jurisdiction being discretionary, he who seeks equity must come to Court with clean hands‑‑‑Petitioner had not approached the High Court with clean hands as he had filed nomination papers with forged certificate‑‑‑Petitioner was not entitled to any discretionary relief‑‑‑High Court dismissed Constitutional petition being devoid of merits.

Tariq Mehmood v. District Returning Officer 2001 SCMR 1991; Board of Intermediate and S.E. v. M. Mussadaq Naseem PLD 1973 Lah. 600; Syed Azmat Ali v. The Chief Settlement and others PLD 1964 SC 260; Nawab Syed Raunaq Ali v. Chief Settlement Committee PLD 1973 SC 236; Rana Muhammad Arshad v. Additional Commissioner and others 1998 SCMR 1462; Abdur Rashid v. Pakistan and others 1969 SCMR 141 and Principal, K.E.M., Lahore v. Ghulam Mustafa etc. 1983 SCMR 196 rel.

Shafqat Mehmood for Petitioner.

2003 Y L R 1219

[Lahore]

Before Sayed Zahid Hussain, J

UBEDUL HAQ and 4 others‑‑‑Petitioners

Versus

MUHAMMAD TUFAIL and another‑‑‑Respondents

Civil Revision No. 1262 of 1995, heard on 23rd January, 2003.

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

‑‑‑‑S.117‑‑‑West Pakistan Land Revenue Rules, 1968, R.67‑A‑‑‑High Court (Lahore) Rules and Orders, Vol. 1, Chap. I‑M(i), Rr.1, 2, 3 & 4‑‑‑ "Hadd Shikni cases ", procedure in‑‑‑Suit for recovery of possession of land encroached upon by defendants, Courts below dismissed the suit‑‑‑Validity‑‑‑Controversy spelt out from pleadings of parties was about correct and real identification and demarcation of land‑‑‑Appellate Court had not given weight to demarcation report for not being carried out in accordance with R. 67‑A of West Pakistan Land Revenue Rules, 1968‑‑‑Real controversy as to whether defendants had encroached upon land owned by plaintiffs had remained unresolved and was still shrouded in mystery‑‑‑Specific procedure to be followed in such‑like cases was provided in High Court (Lahore) Rules and Orders, Vol.I, Chap.I‑M(i)‑‑‑Such procedure had neither been followed by Trial Court nor suggested by either of the parties‑‑­Court was obliged to follow correct procedure‑‑‑Non‑compliance of and non ­adherence to such a course and procedure had resulted in illegality and material irregularity by Courts below and such concurrent judgments of Courts below would not stand in way of High Court for curing such illegality by setting aside same‑‑‑High Court set aside impugned judgments, resultantly suit would be deemed to be pending for decision afresh in accordance with procedure laid down in High Court (Lahore) Rules and Orders and the law.

Nooruddin and 11 others v. Abdul Wahid 2000 SCMR 91 and Anwar Club and another v. Muhammad Sarwar PLD 1992 Lah. 63 fol.

Syed Muhammad Zain‑ul‑Abdin for Petitioners.

Syed Shamim Abbas Bokhari for Respondents.

Date of hearing: 23rd January, 2003.

2003 Y L R 1222

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH DITTA and others‑‑‑Petitioners

Versus

AKBAR ALI and others‑‑‑Respondents

Civil Revision No. 596‑D of 1994, heard on 22nd January, 2003.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.28, Arts. 144 & 148‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑­Plaintiffs claimed to have become owners of suit land for being in continuous possession thereof for more than sixty years as mortgagees‑‑‑Defendants denied factum of mortgage and claimed to have all along been in possession of land‑‑‑Suit was dismissed by Trial Court, but was decreed by Appellate Court‑‑‑Validity‑‑‑Evidence on record showed that possession had never been delivered to plaintiffs, but had remained with defendants‑‑‑Section 28 of Limitation Act, 1908 was not attracted as defendants were not required to file suit for possession of land, which was possessed and owned by them‑‑‑Appellate Court had misread the evidence‑‑‑Impugned judgment was without jurisdiction for having extinguished title of defendants‑‑‑Period of sixty years had expired in 1955‑‑‑Even if some title had accrued to the defendants, same stood extinguished on principle contained in S.28 of Limitation Act, as they were required, to file suit for possession within 12 years of acquisition of title, but suit had been filed in year 1987 i.e. after twenty two years‑‑High Court accepted revision petition, set aside impugned judgment and decree and restored that passed by Trial Court.

(b) Limitation Act, (IX of 1908)‑‑‑--

‑‑‑‑S.28-‑‑Extinguishment of right in property‑‑‑Essential conditions‑‑‑Right of owner in property would be extinguished only, if he was required to file suit for its possession and time prescribed for such suit stood expired and not where owner did not part with its possession.

Sh. Naveed Shahryar for Petitioners.

Arshad Mahmood Chaudhry for Respondents.

Date of hearing: 22nd January, 2003.

2003 Y L R 1224

[Lahore]

Before Sayed Zahid Hussain, J

LAHORE CANTT COOPERATIVE HOUSING SOCIETY LTD. Through Secretary‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others‑‑‑Respondents

Writ Petition No. 12194 of 1994, heard on 28th January, 2003.

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

‑‑‑‑O. I, R.10(2) & S.115‑‑‑Revision‑‑­Application for impleading as party‑‑­Plaintiff had not impleaded applicant (his real brother) as party to suit and had excluded him from contest to his prejudice affecting his rights and interest‑‑‑Applicant was necessary party to the litigation‑‑‑High Court allowed such application and impleaded applicant as party to revision petition.

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

‑‑‑‑O.I, Rr.1, 3, 9 & O.XLI, R‑‑‑Parties to suit‑‑‑Necessary party, absence of‑‑‑Effect‑‑­No effective adjudication could take place in absence of necessary party‑‑‑Adjudication made in absence of a necessary party would be nullity and of no legal effect‑‑‑Where a person was party before lower Court, he could not be left out in appeal or revision before higher forum as omission of his name from array of parties would render such proceeding incompetent.

Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Province of the Punjab through Member, Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147; Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others 1986 CLC 1706 and Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387 ref.

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

‑‑‑‑O.IX, R.13 & S.115‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Ex parte decree, setting aside of‑‑­Petitioner (one of the defendants) for setting aside ex parte decree trade application to Trial Court and also filed appeal‑‑‑Trial Court accepted application and set aside ex parte decree, against which plaintiff filed revision petition, wherein he omitted to implead one of the defendants‑‑‑Additional District Judge accepted revision petition filed by plaintiff and overruled objection about non‑impleading one‑ of the defendants as party, while another Additional District Judge dismissed appeal filed by petitioner for non‑impleading one of the defendants‑‑­Validity‑‑‑Contradictory approach had been adopted by two Judicial Officers, one while deciding revision petition and other while deciding appeal .arising out of same suit‑‑­Such a contradiction crept into judicial orders due to non‑application of mind, cryptic approach and disregard of law on the subject‑‑‑Defendant made party in suit had to retrain so throughout the proceedings till final conclusion‑‑‑Revision petition filed by plaintiff without impleading defendant was defective and not legally constituted and competent‑‑‑Order passed in revision petition in absence of necessary party was illegal, and was rightly declared so‑‑‑Resultantly, order of Trial Court setting aside ex pane decree would hold the field and suit would be heard and tried in accordance with law after notice to all concerned.

Tariq Masood for Petitioner.

Muhammad Ilyas Anjam for Respondent No.2

Javed Asghar for Respondent No.4.

Date of hearing: 28th January, 2003.

2003 Y L R 1231

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD BAKHSH‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through Collector Jhang and 2 others‑‑‑Respondents

Civil Revision No. 1108 of 1999, heard on 15th January, 2003.

Oaths Act (X of 1873)‑‑‑

‑‑‑‑S.8‑‑‑Civil Procedure Code (V of 1908), O.XXXII, R.7‑‑‑Dismissal of suit on basis of special oath taken by defendant's son on acceptance of plaintiffs' offer‑‑‑One of the plaintiffs being minor filed appeal contending that his next friend had acted against his interest and made such offer without leave of Court under O.XIWI, R.7, C.P.C.‑‑­Appellate Court accepted appeal and remanded case for trial on merits ‑‑‑Validity‑‑­Minor plaintiff was sued through his father, who had made such offer alongwith his counsel‑‑‑Father of minor plaintiff was also his guardian‑ad‑litem in civil revision and had engaged counsel opposing civil revision‑‑‑Nothing was available on record to suggest that father had any interest adverse to his minor son or he had acted negligently or he was in collusion with defendant or other plaintiff‑‑‑Some of the plaintiffs were uncles of minor, while others were his brothers‑‑‑High Court accepted revision petition and set aside impugned judgment/decree while restoring that passed by Trial Court dismissing the suit of plaintiffs.

Jaffar Abbas and 2 others v. Ahmad and another PLD 1991 SC 1131 and Talah Safdar and another v. Bashir Ahmad and others 1997 CLC 601 fol.

Khalid Ikram Khatana for Petitioner.

Nemo for Respondents Nos. 1 to 3

Seerat Hussain Naqvi and Gulshad Hussain for Respondents Nos.4 to 9.

Date of hearing: 15th January, 2003.

2003 Y L R 1233

[Lahore]

Before Mian Saqib Nisar, J

ROHAIL and 11 others‑ Appellants

Versus

AHMAD and 25 others‑‑‑Respondents

Second Appeal from Order No. 177 of 2000, heard on 8th November, 2002.

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

‑‑‑‑S.13‑‑‑Ejectment proceedings‑‑‑Rent Controller, jurisdiction of‑‑‑Land underneath the cinema premises was rented out to the tenant and not the superstructure, equipped with any machinery, fixtures, fittings and furniture, etc.‑‑‑Effect‑‑‑Rent Controller had the jurisdiction under the law to entertain, try and decide such ejectment petition.

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

‑‑‑‑S.13(2)(i)‑‑‑Ejectment of tenant‑‑‑Wilful default‑‑‑Deposit of rent in Court ‑‑‑Effect‑‑­When the rent had been deposited with the Rent Controller, the tenants could not be held to be wilful defaulters.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.5‑A‑‑‑Increase of rent‑‑‑Provisions of S.5‑A of Punjab Urban Rent Restriction Ordinance, 1959 are confined only to non ­residential building.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Expression defined in statute ‑‑‑Scope‑‑­ Whenever a word or expression defined in a statute appears in the main provision it has to be given the same meaning as in the definition clause.

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

‑‑‑‑Ss.5‑A & 13 (2) (i)‑‑‑Ejectment of tenant‑‑­Wilful default in payment of statutory increase in rent‑‑‑Land underneath the cinema premises alone was rented out by the landlords and the superstructure alongwith its fitting, fixtures, etc. was owned by the tenant‑‑‑Landlords sought eviction of the tenant from the premises on the ground that he had failed to pay the statutory increase in the rent‑‑‑Validity‑‑‑Rented land or residential building were conspicuously missing in S.5‑A of West Pakistan Urban Rent Restriction Ordinance, 1959, meaning thereby that the statutory increase of rent, according to the provision, was only confined to non‑residential building‑‑‑Both the Courts below had wrongly held that the tenant had failed to make the statutory increase of rent and was a defaulter‑‑‑Such findings of the Courts below were the result of misapplication of provision of S.5‑A of West Pakistan Urban Rent Restriction Ordinance, 1959, and were set aside by the High Court in circumstances.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(2)(iv)‑‑‑Ejectment of tenant‑‑­ "Nuisance "‑‑‑Cinema premises‑‑‑Boozing in and showing of blue films‑‑‑Nuisance attributed to the tenant was boozing in cinema premises and also showing of blue films‑‑‑None of the occupants of the neighbouring building had been examined to prove that the alleged acts in any manner caused any nuisance to them‑‑‑Effect‑‑‑Such conduct or act by no means could fit in the definition of "nuisance" given in the law‑‑Both the Courts below had wrongly found the tenant guilty of nuisance and the findings were set aside accordingly.

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

‑‑‑‑S.13(2) (iii) ‑‑‑Ejectment of‑--tenant‑‑­ Impairing the utility or value of premises‑‑­ Cutting of trees‑‑‑Land was rented out to the tenant for the use as cinema‑‑‑Trees standing on the land were cut down by the tenant‑‑­ Plea raised by the landlords was that by cutting of the trees, the value or utility of the land had been impaired ‑‑‑Validity‑‑­ Landlords had failed to prove that on account of cutting of the trees, ‑the value or utility of land had been materially impaired‑‑­ Landlords having failed to establish the ground for ejectment of tenant, findings of the Courts below on the relevant issue were set aside.

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

‑‑‑‑S. 13(2)(ii)‑‑‑Ejectment of tenant‑‑ Subletting of premises‑‑‑Land underneath the cinema premises only was rented by the landlords and the superstructure alongwith its fittings, fixtures, etc. was owned by the tenant‑‑‑Both the Courts below had found the tenant guilty of sub‑letting the premises‑‑­ Validity‑‑‑Lease deed showed that the tenant had only given the contract of running the cinema business to a third party and the same did not tantamount to subletting of the rented land, because the cinema and its business was owned by the tenant‑‑ Premises was not sublet by tenant in circumstances.

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

‑‑‑‑S. 13 (2)(ii)‑‑‑Ejectment of tenant‑‑­ "Subletting" of premises‑‑‑Giving of canteen, tuck shop, stall and parking area on contract to other persons‑‑‑Land underneath the cinema premises was only rented by the landlords and the superstructure alongwith its fittings, fixtures, etc. was owned by the tenant‑‑‑Both , the Courts below found the tenant guilty of sub‑letting the premises‑‑ Validity‑‑‑Superstructure upon the rented land, was admittedly owned by the tenant and it was the constructed portions­ which which were given by the tenant to its licensee/contractor, thus such acts of the tenant did not fall within the domain of "subletting "‑‑‑Findings of both the Courts below on the issue of subletting, were against the evidence on the record and were set aside by High Court in circumstances.

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

‑‑‑‑S. 13(2(vi)‑‑‑Ejectment of tenant‑‑‑Plea of "reconstruction "‑‑‑Failure to produce approved construction plan‑‑‑Landlords failed to establish, if they had got approved the plans for the construction of the rented land‑‑‑Effect‑‑‑No approved plan for the construction being available which was condition precedent for seeking ejectment on the ground of reconstruction, the case of landlords failed‑‑‑Findings of both the Courts below on the issue of "reconstruction " were set aside in circumstances.

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

‑‑‑‑S.13(3) (a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Land underneath the cinema premises only was rented by the landlords and the superstructure alongwith its fittings, fixtures, etc. was owned by the tenant‑‑‑Only one of the landlords appeared before the Rent Controller and he too in very vague and general terms stated that some of the landlords required the land for the purpose of their residence and business after the construction‑‑‑No specific particulars and details had been given as to who, out of the landlords, wanted to raise the construction in the nature of residential premises and such landlords were not already in possession of suitable premises for their abode or were living in some rented premises‑‑‑None of the landlords who required the land for their residence had been examined to prove their bona fides‑‑‑Same was the position with regard to the portion of the area which was claimed by the landlords for the purpose of non‑residential building‑‑‑Both the Courts below found that‑the landlords required the premises bona fide‑‑‑Validity‑‑‑Although, the statement of the landlord on the ground of personal requirement must be given considerable weight, yet at the same time, a landlord was not absolved of his legal duty to appear before the Court and put forth the genuineness of his demand ‑‑‑Co‑landlords for whose requirement, the property had been claimed, had failed to appear before the Court, and the statement of one of the landlords was insufficient to prove the bona fides of their demand‑‑‑Bona fides could only be spelt out from the material/ evidence brought on the record, as the person for whose personal requirements, the premises were allegedly required had not been examined and the particulars of their specific need had not been proved‑‑General and vague statements of other witnesses that the landlords required the rented land for their personal requirement was not in line and spirit. of the law on the subject of personal need‑‑‑Courts below on the issue of bona fide personal need of landlord had not considered the case on the basis of evidence and the law developed so far, therefore, such finding of fact being erroneous and against the record, and the law laid down by the superior Courts, could not be sustained‑‑­ Eviction orders passed by Rent Controller and maintained by Appellate Court were set aside by the High Court in circumstances.

Messrs Rahman Cotton Factory v. Nichimen Co. Ltd. PLD 1976 SC 781; Mst. Fatima and. others v. Malik Abdul Wahid 1990 SCMR 1221; Ahmed Aziz Zia v. Muhammad Siddique and others PLD 1982 Lah.37 and Muhammad Khan and others v. Mst. Alamtab and others PLD 1973 Quetta 28 ref.

Syed Muhammad Kaleem Ahmed Khurshid for Appellants.

Hassan Ahmed Khan Kanwar for Respondents.

Date of hearing: 8th November, 2002

2003 Y L R 1245

[Lahore]

Before Sayed Zahid Hussain, J

HABIB MASIH and another‑‑‑Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another‑‑‑Respondents

Writ Petition No. 17762 of 1999, heard on 13th January 2003.

(a) Jurisdiction‑‑‑

‑‑‑‑ Raising of question of jurisdiction‑‑­Scope‑‑‑Such question can be raised by the party at any stage of the proceedings even if not taken before a lower Tribunal or the Appellate Court.

Haji Abdul Sattar v. Additional District Judge, Rawalpindi and others 1984 SCMR 925 ref.

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

‑‑‑‑S. 13‑‑‑Cantonments Rent Restriction Act (XI of 1963), S.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Ejectment proceedings‑‑‑Premises situated in cantonment area‑‑‑Plea of jurisdiction, raising of‑‑‑Property was situated within the cantonment limits but ejectment proceedings were initiated under West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Ejectment petition was dismissed by the Rent Controller while the Appellate Court allowed the appeal and eviction order was passed against the tenant‑‑‑Plea of jurisdiction was raised by tenant first time before the High Court in Constitutional petition‑‑‑Validity‑‑‑Property was situated within cantonment limits to which Cantonments Rent Restriction Act, 1963, was applicable and the Rent Controller Cantonment Board could only exercise jurisdiction under the law‑‑‑Point of jurisdiction was not dependent upon any question of fact and could be allowed to be raised and entertained for the first time by High Court in Constitutional jurisdiction‑‑­Jurisdiction exercised by Rent Controller and Appellate Court under West Pakistan Urban Rent Restriction Ordinance, 1959; had no legal efficacy‑‑‑Adjudication of the ejectment petition by the Rent Controller or Appellate Court did not stand on better footing than that of a forum without jurisdiction which had no legal effect‑‑‑Assumption of jurisdiction in the matter was unwarranted by law and the ejectment petition filed by the landlord being incompetent before the Senior Civil Judge/Rent Controller, was returned for presentation before the proper forum for its adjudication in accordance with law.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Sindh Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref.

Arshad Ahmad Cheema for Petitioners.

Muhammad Hanif Khatana, Addl. A.G. for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 13th January, 2003.

2003 Y L R 1257

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. RAJAN through Mst. Kaneez Fatima ‑‑‑Petitioner

Versus

IBRAR HUSSAIN ‑‑‑Respondent

Civil Revision No‑404 of 1995, heard on 23rd October, 2002.

Islamic Law‑‑‑

‑‑‑‑‑Gift‑‑‑Mutation of gift‑‑‑Proof‑‑‑Failure to produce Revenue Record of Revenue Authorities in evidence‑‑‑Plaintiff claimed to be co‑owner of the suit‑land as the same was owned by her brother‑‑‑Gift mutation in favour of the defendant was assailed on the ground that no gift of suit‑land was made in favour of defendant‑‑‑Defendant neither produced original mutation nor the same was summoned‑‑‑Neither Patwari who entered the mutation nor the officer who attested the same were produced as witness before the Trial Court‑‑‑No evidence on record was available regarding factum of gift itself‑‑­Witnesses produced by the defendant had neither stated that the possession of the suit­ land was delivered to the defendant under the gift by the deceased, nor the deceased made a declaration of gift in favour of the defendant‑‑‑Trial Court decreed the suit in favour of the plaintiff but the Appellate Court allowed the appeal and the suit was dismissed‑‑‑Validity‑‑‑Since no evidence on record in support of the alleged gift in favour of the defendant by the deceased owner existed‑‑‑Appellate Court had committed a material irregularity in exercise of jurisdiction while reversing the judgment and decree of the Trial Court and holding that a valid gift was made in favour of the defendant by the deceased owner‑‑‑High Court set aside the judgment and decree passed by the Appellate Court and that of the Trial Court was‑ restored.

Muhammad and others v. Sardul PLD 1965 Lah. 472 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

Mian Inamul Haq for Petitioner.

Sh. Zamir Hussain for Respondent.

Date of hearing: 23rd October, 2002.

2003 Y L R 1268

[Lahore]

Before Ijaz Ahmad, J

Sh. NAVEED YAQOOB and another‑‑‑Petitioners

Versus

FEDERAL GOVERNMENT through Secretary of Defence, Islamabad and 4 others‑‑‑Respondents

Writ Petition No. 18495 of 2002, decided on 14th January, 2003.

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

‑‑‑‑Art: 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Pendency of civil suit ‑‑­Effect‑‑‑If a civil suit qua the same subject ­matter is pending adjudication before Civil Court, Constitutional petition is not maintainable.

A.D.B.P. v. Sh. Siraj‑ud‑Din and 2 others 1993 MLD 2381 rel.

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

‑‑‑‑S. 116‑‑‑Cantonments Rent Restriction Act (XI of 1963), S.3 (b)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Recovery of possession‑‑­Land owned by Cantonment Board‑‑­Provisions of S.116 of Transfer of Property Act, 1882, and S.3(b) of Cantonments Rent Restriction Act, 1963‑‑‑Applicability‑‑­Petitioner who was lessee of Cantonment Board and eviction notice was issued to him by the Board contended that the Board could neither issue the notice nor possession could be recovered from him without ejectment proceedings under Cantonments Rent Restriction Act, 1963‑‑‑Validity‑‑‑Property was owned by Cantonment Board, therefore, provision of S.3(b) of Cantonments Rent Restriction Act, 1963, was applicable‑‑‑Board had taken action in public interest to remove traffic hazards‑‑‑Constitutional jurisdiction being discretionary in character, High Court declined to exercise discretion in favour of the petitioner and refused to interfere with the order passed by Cantonment Board.

Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of Karachi Port Trust 1987 CLC 591; Nur Shah v. Azmat Nabi and others PLD 1966 (W.P.) Pesh. 159 and Ch. Tanbir Ahmad's case PLD 1968 SC 185 distinguished.

Syed Nawab Raunaq Ali's case PLD 1973 SC 236 rel.

(e) Practice and procedure‑‑‑

‑‑‑‑Special law excludes the general law.

M. Imam‑ud‑Din v. Mst. Surriya Khanum PLD 1991 SC 317; I.‑G. of Police and others v. Mushtaq Ahmad Warraich PLD 1985 SC 159 and Zia‑ur‑Rehman's case PLD 1973 SC 49 rel.

Ch. Muhammad Aslam Zia for Petitioners.

Rana Nasrullah Khan for Respondents.

2003 Y L R 1277

[Lahore]

Before Ch. Ijaz Ahmad and M.A. Shahid Siddiqui, JJ

PAKISTAN INDUSTRIAL PROMOTERS LTD. through Company Secretary---Appellant

Versus

NAWAZISH ALI JAFARI---Respondent

Regular First Appeal No. 91 of 1999, decided on 23rd January, 2003.

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

---Ss.12(2), 96, 115 & O. IX, R.13---Appeal/ revision ---Limitation---Ex parte decree was passed by Trial Court on 27-7-1998, against defendant---Defendant filed application under Off, R.13 and S.12(2), C. P. C. on 30-9-1998, for setting aside ex parte decree---Trial Court dismissed the application on 18-1-1999, filed by the defendant---Plea raised by the plaintiff was that the appeal was barred by limitation as the ex parte judgment and decree was passed on 27-7-1998---Validity---Ex pate judgment and decree passed by Trial Court was merged in the order of 18-1-1999---Revision petition filed by defendant before High Court on 3-2-1999, was converted into appeal and the same was not tithe-barred---Appeal was maintainable in circumstances.

Hashim Khan v. National Bank of Pakistan 1992 SCMR 707; Qazi Muhammad Tariq v. Hasin Jahan 1993 SCMR 1949; Azad Hussain v. Haji Muhammad Hussain 1994 CLC 1817; 1992 MLD 2026; Multali v. Manzoora PLD 1994 Lah. 298; Rehman Weaving Factory v. I.D.B.P. PLD 1971 SC 21; Syed Razi Raider Naqvi v, Wasi Ali 1985 CLC 2330; State Life Insurance Corporation v. Messrs Ibrahim Management 1990 CLC 206; Tariq Mahmood v. Zarda Begum 1995 CLC 1102; Abdul Ghani v. Haji Saley Muhammad PLD 1960 (W.P.) Kar. 594; Abdul Rauf v. Abdul Razzak PLD 1984 SC 476; Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365; Sindh Industrial Estate Ltd. v. Provincial Ombudsman and others 1993 SCMR 949; Executive Engineer v. Messrs Tour Muhammad and Sons and others 1983 SCMR 619; Federation of Pakistan v. United Sugar. Mills, Karachi PLD 1977 SC 397; Rehman Weaving Factory v. Industrial Development PLD 1981 SC 22; Lahore Art Press v. N.B.P. PLD 1990 Lah.300; Federation of Pakistan v. Gul Hassan Khan 1989 CLC 656; Chief Personnel Officer v. Anjum Farooq and 6 others 1997 SCMR 860; Jiwan Das. v. Rekhmat Din and another AIR 1941 Lah.212; P. Rama Chandra Rao v. Agricultural I.O. AIR 1961 Ker. 110; Government of Sindh. v. Ch. Fazal Muhammad PLD 1991 SC 197; Pak. through Secretary v. Messrs Azhar Brothers Ltd. PLD 1990 SC 1059; Sikandar A. Karim, v. The State 1991 SCMR 396; Chief Land Commissioner v. Makhdoom Syed Nazar 1975 SCMR 352; Muhammad Akram v. Farman Bai PLD 1989 Lah. 200 and Manzoor Ahmad Bhatti v. Road Transport Corporation PLD 1973 Lah. 659 distinguished.

Muhammad Rafique v. Qamar Ali and 8 others 2003 MLD 52 rel.

(b) High Court (Lahore) Rules and Orders---

---- Vol.1, Chap.1, R.2---Civil Procedure Code (V of 1908), O. XX, Rr. 1 & 3--­Correction in judgment after announcement--­Validity---After announcement of judgment and decree, the Trial Court had become functus officio, therefore, correction made by Trial Court subsequent to its pronouncement was not sustainable in the eyes of law--­Judgment passed by Trial Court was in violation of O.XX Rr. 1 & 3, C. P. C. read with R.2 of Chap. I, Vol.1 of High Court (Lahore) Rules and Orders---High Court set aside the judgment in circumstances.

Lachmandas v. Central Government of Pakistan PLD 1973 SC 379; Muhammad Yousaf v. Allahyar PLD 1987 Lah. 101; Rukan Din and others v. Hafeezud Din and others PLD 1962 Lah. 161 and Matloob Hussain's case 1992 MLD 1675 rel.

(c) Practice and procedure---

----Order without lawful authority ---Effect--­When the basic order is without lawful authority, then the superstructure has to fall automatically on the ground.

Crescent Sugar Mills v. Central Board of Revenue and others PLD 1962 Lah. 1 and Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104 rel.

(d) High Court (Lahore) Rules and Orders-----

---- Vol. I Chap. 1, R.2 (4)---Civil Procedure Code (V of 1908), Ss. 12(2) & O. IX, R.13-­Ex parse decree, passing of---Act of Court--­Correction made in judgment and decree after the same was pronounced and signed---Case was adjourned on 20-7-1998, for 25-7-1998 but was not taken on the adjourned date and ex parte judgment and decree was passed by Trial Court on 27-7-1998, against the defendant---Defendant filed application under O. IX, R.13 read with S.12(2), C. P. C. on 30-9-1998, for setting aside ex parte decree---Trial Court corrected its error regarding date of judgment and decree on 18-1-1999, and dismissed the application filed by the defendant---Validity---Case was not taken up on the adjourned date i.e. 25-7-1998, therefore, Trial Court erred in law to dismiss the application of the defendant under O. IX, R. 13 read with S.12(2), C.P.C.---No body should be penalized by the act of Court ---Ex parte judgment and decree passed by the Trial Court and order of dismissing application under O.IX, R.13 read with S.12 (2), C. P. C. were set aside and the case was remanded to Trial Court for decision afresh.

Mian Irshad Ali's case PLD 1975 Lah. 7 ref.

Ijaz Ali Sabazwari for Appellant

Shaukat Javed Malik for Respondent.

Dates of hearing: 22nd and 23rd January, 2003.

2003 Y L R 1285

[Lahore]

Before Ch. Ijaz Ahmad, J

FAQIR MUHAMMAD ---Petitioner

Versus

ATTA MUHAMMAD and another---Respondents

Civil Revision No. 934 of 1994, heard on 27th January, 2003.

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

----Ss. 8 & 42---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for declaration and suit for possession---Consolidation of both the suits---Respondents filed suit for declaration claiming to have inherited suit house, whereas petitioner filed suit for possession claiming to have purchased suit house from predecessor-in-interest of respondents---Both suits were consolidated---Trial Court decreed respondents' suit, but dismissed petitioner's suit---Appellate Court dismissed appeal filed by petitioner---Validity---Petitioner claimed his title on the basis of sale-deeds/agreements to sell, which he failed to prove by producing two attesting witnesses thereof, which was a mandatory requirement in view of Art.79 of Qanun-e-Shahadat, 1984---No misreading of evidence or violation of law was pointed out in impugned judgments---High Court dismissed revision petition having no merits.

Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and others PLD 1973 SC 160; Messrs Agro Marketing Corporation v. Pakistan and others PLD 1982 Lah. 20; S. Hifazat Hussain v. State 1987 PCr.LJ 363; Subedar Fazal Hussain v. Qazi Muhammad Bashir PLD 1982 SC (AJ&K) 89; Ali Ahmed v. State PLD 1962 SC 102; Gustad Manechji Shekdar v. State PLD 1959 Dacca 756; PLD 1966 Kar. 76; Salman Ali v. Maqbool Hussain and others 2000 YLR 1938; Ghulam Yasin Butt and others v. Manzoor Hussain and others 2000 YLR 915; N.S. Venkatagire Ayyanger and others v. Hindu Religious Endowments Board, Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 rel.

(b) Practice and procedure---

---- No party could get benefit of weaknesses of the case of other side.

Rana Muhammad Sarwar for Petitioner.

Mobeenud Din Qazi for Respondents.

Date of hearing: 27th January, 2003.

2003 Y L R 1302

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SADDIQUE and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2002 in Criminal Appeal No.434 of 2002, decided on 4th December, 2002

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss.302 & 331(2)---Suspension of sentence--­Accused had served out their entire substantive sentence, but were detained for want of payment of Diyat amount only--­Accused had requested that their sentence be suspended and they be released on bail to enable them to pay payment of Diyat as they had no means to pay to the same because of their detention in jail---Convicts who had no source of income to pay amount of Diyat, were ordered to be released on bail under S.331(2), P. P. C. subject to their furnishing bail bonds/surety bonds to the tune of Diyat amount.

Muhammad Iqbal and others v. The State 2001 MLD 1100 and Abdul Majeed v. The State NLR 2000 Lah. 418 ref.

Ch. Muhammad Jamil for Petitioners.

Zafar Mahmood Anjum for the State.

2003 Y L R 1303

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD AKHTAR and another---Petitioners

Versus

FAROOQ AHMED and 2 others---Respondents

Writ Petition No.395 of 2003, decided on 26th February, 2003.

Punjab Local Government Elections Rules, 2000---

----R.78---Civil Procedure Code (V of 1908), O.XIX, R.2---Qanun-e-Shahadat (10 of 1984), Art.133---Constitution of Pakistan (1973), Art.199---Election petition ---Cross­examination---Cross-examination of witnesses who had filed affidavits was refused to the petitioners by Election Tribunal---Order refusing the witnesses to be cross-examined being not in accordance with the provisions of O. XIX, C. P. C. and Art.133, Qanun-e­Shahadat, 1984, petitioners were allowed to cross-examine the witnesses by the High Court.

Writ Petition No.11273 of 2002; Writ Petition No.11273 of 2002; The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585; Khan Salah-ud-Din Khan v. The Frontier Sugar Mills and Distillery Limited PLD 1957 Lah. 844; Zafar Mir v. Mst. Naushina Amir Ali PLD 1993 Kar. 775 and Rehmat Ullah v. Tufail Hussain and others 1987 CLC 792 ref.

Iftikhar Ahmad Mian for Petitioner.

Khawar Ikram Bhatti for Respondents:

2003 Y L R 1305

[Lahore]

Before Ch. Iftikhar Hussain and M.A. Shahid Siddiqui, JJ

ZULFIQAR ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2002 in Criminal Appeal No.636 of 2002, decided on 12th December, 2002.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.302(6)/34---Suspension of sentence---Only evidence against the accused was of last seen and the same had not been found to be trustworthy by the Trial Court---Sentence of imprisonment for life awarded to accused by Trial Court was suspended in circumstances and he was admitted to bail accordingly.

Sahibzada Farooq Ali for Petitioner.

Hasan Rizvi for the State.

2003 Y L R 1324

[Lahore]

Before Maulvi Anwarul Haq, J

IFTIKHAR-UL-HAQ and 5 others---Petitioners

Versus

KHAIR DIN and others---Respondents

Civil Revision No.3673-D of 1994, heard on 10th February, 2003.

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

----Ss.12 & 42---Limitation Act (IX of 1908), Art. 113---Civil Procedure Code (V of 1908), O. I. R.10(S)---Suit for specific performance of agreement to sell-- Limitation---Defendant agreed to sell house to plaintiff and executed power of attorney in favour of plaintiff's son---Plaintiff initially filed suit for declaration claiming to be in possession in part performance of agreement, but later on amended plaint and added relief for specific performance of agreement---Trial Court decreed suit, which decree was upheld by Appellate Court---Validity---No time for performance had been fixed in agreement, rather undertaking was that upon issuance of clearance certificate, house would be transferred to plaintiff---Only overt act attributable to defendant which nun be interpreted as notice of refusal to perform agreement was, cancellation of power of attorney---Plaintiff had pleaded absence of notice of cancellation---Assuming that plaintiff had notice of such cancellation effected on 24-6-1978, suit having been filed on 30-1-1980 was within period of three years prescribed by Art. 113 of Limitation Act, 1908---Amendment had not necessitated impleadment of any additional party so as to attract provisions of O.I., R. 10(5), C. P. C. to govern question of limitation---No question of limitation arose---High Court dismissed revision petition.

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

----O. VI, R.17---Amendment of pleadings--­Unless and until very nature of suit was changed and cause of action itself stood substituted, amendment should not be refused merely on ground that defendant would be deprived of defence of limitation.

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

----O. VI, R.17---Amendment of pleadings--­Would take effect from date, when pleadings were initially filed and not from date of order allowing amendment or filing of amended pleadings.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

Ch. Shehbaz Khurshid for Petitioners.

Ch. Muhammad Ramzan for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 10th February, 2003.

2003 Y L R 1327

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YOUSAF alias FAYYAZ HASHMI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.528 of 2000, decided on 12th November, 2002.

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

----S.302---Appreciation of evidence---Both the eye-witnesses were not residents of the same locality where the occurrence had taken place, therefore, their presence at the spot was doubtful---Occurrence had taken place in the Abadi but nobody who could be a natural witness nearby the place of occurrence, was introduced as a witness---Nothing was on record indicating the place where the deceased was residing at the time of occurrence or distance of that place from his residence---Possibility could not be ruled out that the post-mortem examination was got conducted with a delay of more, than twelve hours without any explanation which was sufficient to draw an inference that the complainant was not present at the time of occurrence and was called for and then made a witness whereafter dead body was sent to the mortuary and the post-mortem examination was conducted---Conduct of both the eye-witnesses was doubtful as the accused quarrelled with the deceased before the firing of shot at him but the eye-witnesses did not try to separate them or to save the deceased from the clutches of the accused---Deceased was an. unmarried man and the presence of condom on his penis at the odd hours of the night led to an inference that the occurrence had not taken place in the manner as narrated by the prosecution witnesses and there was possibility that the deceased might be murdered anywhere else but his dead body was thrown at the place of occurrence and on finding the same the witnesses were subsequently introduced by the police--­Ocular account was not in conformity, with the medical evidence---Possibility could not be ruled out that two persons had participated in the killing of the deceased one armed with a blunt weapon and the other with a fire-arm as multiple abrasions were found on the person of the deceased along with a fire-arm injury---Accused who was aged about 60 years and his urine was to pass through catheter was not in a position to quarrel with the deceased who was a young man---Recovery of pistol was of no consequence as no empty was recovered from the spot and even the pistol recovered from the accused was not sent to the Forensic Science Laboratory to ascertain whether it was in a workable condition---Prosecution had failed to bring home guilt of the accused beyond any shadow of doubt---Conviction and sentence passed against the accused were set aside in circumstances and he was acquitted of the charge.

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

----S.302---Qanun-e-Shahadat (10 of 1984), Art. 21---Appreciation of evidence--­Identification parade---Witnesses of identification had admitted that the other persons standing with the accused at that time were not of the same structure, age and they were wearing clothes of different colours--­Consistent stand of the accused was that he was kept in the police station for three days and then was sent to Central Jail and was also shown to the witnesses---Identification parade had lost its sanctity due to the reason that it was held after more than three months and features of the culprit were not mentioned in the statements before the police by the witnesses---Mere claiming that they could identify the culprit if appeared before them, could not be held sufficient to believe that they were in a position to correctly identify the accused.

Syed Mushtaq Ahmad Zaidi for Appellant.

Muhammad Rafique Rajput for the State.

Date of hearing: 29th October, 2000.

2003 Y L R 1332

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUHAMMAD BASHIR---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.165 of 1998, decided on 4th February, 2003.

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

----O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Essential conditions---Plaintiff has to show a prima facie arguable case, balance of convenience and inconvenience to him resulting in irreparable loss in case of refusal.

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

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration--­Plaintiff claiming to be owner in possession of land sought declaration that levy of Tawaan by Government was illegal--­Temporary injunction sought by plaintiff was refused by Trial Court and Appellate Court--­Validity---Disputed land was Shamlaat Deh and ownership thereof vested in Central Government, now transferred to Provincial Government---Petitioner's name in record of rights was recorded as "tenant under Federal Government" and he was not having ownership possessory rights in his independent capacity ---Tawaan had been levied for illegal cultivation---Plaintiff had not proved his prima facie arguable case--­High Court dismissed revision petition in circumstances.

Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another PLD 1974 SC 193 ref.

(c) Shamlat Deh---

----Ownership of specific numbers could not be earmarked without partition of Shamilat Deh.

Awan Muhammad Hanif Khan for Petitioner.

Muhammad Mazhar Sher Awan, A.A.-G. for Respondents.

Date of hearing: 30th January, 2003.

2003 Y L R 1333

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAUKAT ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.66 of 2000, heard on 15th October, 2002.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence--­Medical evidence was not in line with the ocular evidence---Both the eye-witnesses were though not inimical to the accused but had annoyance against him as he had previously taken away the deceased aged 17 years to live with him against the wishes of the complainant and those of the other eye-witnesses who were the father and uncle of the deceased respectively---Possibility of introduction of false story by concocting prosecution version could not be ruled out--­None of independent witnesses despite their availability proved on record, was even joined by the Investigating Officer nor anyone was made a witness except the two real brothers who were the alleged eye­witnesses---Nothing was recovered from the accused in order to provide corroboration to the ocular account---No other circumstances were available which could be used as corroboration to the statements of the eye­witnesses---Registration of the F.I.R. seemed to be in a doubtful manner and after thorough investigation---Contradictions on material points had been duly confronted---One of the eye-witnesses was a chance witness and had failed to show plausible explanation regarding his presence at the time of occurrence---Ocular evidence alone was not sufficient to connect the accused with the crime, when the presence of the eye-witnesses at the spot was doubtful unless it was corroborated by other circumstances--­Prosecution had failed to bring home the against the accused beyond any shadow of doubt---Accused was acquitted of the charge by extending him benefit of doubt and sentence passed against him was set aside in circumstances.

Sahibzada Farooq Ali Khan for Appellant.

Aftab Ibrahim Qureshi and Shaukat Riaz for the State.

Date of hearing: 15th October, 2002.

2003 Y L R 1358

[Lahore]

Before Bashir A. Mujahid and Muhammad Sayeed Akhtar, JJ

Mst. ALLAH RAKHI---Petitioner

Versus

MUHAMMAD SALEEM and 2 others---Respondents

Criminal Revision Nos. 148 and 159 of 2001, decided on 19th June, 2002.

Penal Code (XLV of 1860)---

----S.302---Criminal Procedure Code (V of 1898), Ss. 345 & 439---Revision petition--­Suspension of execution of death sentence on the basis of compromise with only one legal heir of the deceased---Validity---Execution of death sentence of accused had been suspended on the basis of compromise only with the daughter of the deceased vide the impugned order passed by the Sessions Court---Accused had neither confessed his guilt before the Trial Court, nor the witnesses were put to the test of Tazkiya-tul-Shahood, therefore, the death sentence had not been awarded to him as Qisas but as Tazir--­Sentence of death awarded for murder as Tazir could be compounded by all the legal heirs of the deceased with the permission of the Court and the same could not be sub­stituted-or altered on the basis of compromise by one of the legal heirs i.e., daughter of the victim---Impugned order was consequently set aside being not sustainable under the law---Revision petition was accepted accordingly.

Abdus Salam v. The State 2000 SCMR 338; Manzoor and others v. The State and others 1992 SCMR 2037; Sana Ullah v. The State PLD 1991 FSC 186; Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Faqir Ullah v. Khalil uz Zaman and others 1999 SCMR 2203; Muhammad Ashraf v. The State PLD 1991 Lah. 347; Muhammad Jamil v. The State 2001 PCr.LJ 130; Manzoor Ahmad alias Shami v. The State 1991 PCr.LJ 1480; Abid Hussain v. The State 2000 YLR 793; Nisar Ahmad and 2 others v. The State 1994 PCr.LJ 1587; Khalid Nawaz v. The State 1999 SCMR 933 and Baz Muhammad v. The State 2000 PCr. LJ 553 ref.

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

----Ss.302, 309 & 310---Criminal Procedure Code (V of 1898), S.345---Compromise--­Scope---Sentence awarded for murder as Tazir can be compounded but by all the legal heirs of the deceased with permission of the Court concerned---Death sentence awarded as Qisas, however, can only be undone under S. 309 or 310, P. P. C.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307 ref.

Raja Shafqat Abbasi for Petitioner.

Ch Mehmood Akhtar Khan for Respondent.

Aftab Ahmad Gujjar for the State

2003 Y L R 1362

[Lahore]

Before Mian Saqib Nisar, J

SHAH NAWAZ---Petitioner

Versus

MUHAMMMAD HAYAT---Respondent

Civil Revision No.2040 of 1998, decided on 6th November, 2002.

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

----Arts.59, 72, 78, 79 & 84---Eexcution of agreement---Proof---Document not signed in presence of witnesses---Failure to refer the document to Handwriting Expert---One of the marginal witnesses of the document denied execution of the same in his presence while the other marginal witness was not produced in evidence---Parties made no request for seeking opinion of Handwriting Expert to disprove the execution of the document--­Effect---In order to prove execution of a document when disputed, the person deposing in proof of the execution should be the direct witness of the execution by the person to whom the execution was attributed---No request was made by the defendant to prove the execution, therefore, no inference on account of the same could be drawn against the defendant---Both the Courts below had misread the statements of the plaintiff witnesses and wrongly decreed the suit in favour of plaintiff---Judgments and decrees passed by both the Courts below were set aside and suit of the plaintiff was dismissed in circumstances.

PLD 1956 Dacca 14 ref.

Muhammad Farooq Qureshi Chishti for Petitioner.

Malik Zahid Altaf Awan for Respondent.

Date of hearing: 6th November, 2002.

2003 Y L R 1364

[Lahore]

Before Bashir A. Mujahid and Muhammad Sayeed Akhtar, JJ

ZAFAR IQBAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 107 and Murder Reference No. 147 of 1997, heard on 27th June, 2002.

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

----S.302/34---Appreciation of evidence--­Accused were not nominated in the F.I.R.--­Other persons were also admittedly interrogated in the case---Prosecution case was based on circumstantial evidence---Last seen evidence which was a weak type of circumstantial evidence could not be made basis for conviction on murder charge when the witness was related to the deceased and his testimony was not corroborated by any other evidence---No satisfactory explanation was furnished by the prosecution for recording belated confessional statement of accused after seven days of his arrest which even otherwise, was not lawfully recorded by the Magistrate---Accused were extended the benefit of doubt and acquitted in circum­stances.

Ch. Barkat Ali v. Maj. Karam Elahi Zia 1992 SCMR 1047; Muhammad Fayyaz v. The State PLD 1984 SC 445; Ali Khan v. The State 1999 SCMR 955; Ghulam Mustafa v. The State PLD 1991 SC 718; Naqeeb Ullah v. The State PLD 1978 SC 21; Azeem Shah v. The State PLJ 1987 Quetta 96; Liaqat Bahadur v. The State PLD 1987 FSC 43 and Abdul Latif v. The State PLD 1999 SC 264 ref.

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

----S.302/34---Appreciation of evidence--­Circumstantial evidence---Last seen evidence is not enough to sustain conviction on murder charge when the witness has some connection with the deceased and independent corroboration is required to rely upon it.

Ghulam Mustafa v. The State PLD 1991 SC 718 ref.

Tariq Azam Ch. and Ch. Muhammad Iqbal for Appellants.

Razaq A. Mirza and Zafar Hussain Janjua for the State.

Date of hearing 27th June, 2002.

2003 Y L R 1377

[Lahore]

Before Khawaja Muhammad Sharif, J

ASHRAF JAVED---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No.727 of 2002, decided on 8th August, 2002.

Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Determination of age of the accused---Provision of having a medical report in S.7 of the Juvenile Justice System Ordinance, 2000, was mandatory in nature--­Trial Court, therefore, was under an obligation to have ordered for constitution of a Medical Board to determine the age of the accused for the purpose of the said Ordinance and it had erred in not getting such medical report---Order of Sessions Court failing to order constitution of Board was consequently set aside and case was remitted back for decision afresh in accordance with law after having a report from a Board of Doctors with regard to the age of the accused.

2001 MLD 1191 and 2001 PCr.LJ 1939 ref.

Rao Munawar Khan for Petitioner.

Muhammad Ramzan Chaudhary for Respondents Nos. 2 and 3.

Muhammad Jehangir Wahla, A.A.-G.

2003 Y L R 1378

[Lahore]

Before Ch. Iftikhar Hussain, J

JAMSHAID AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2796-B of 2002, decided on 21st November, 2002.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/452/109/148/149---Bail, grant of--­Further inquiry---Only role attributed to the accused was of Lalakara and no overt act--­Question of vicarious liability of accused was to be determined at the time of trial---Case of accused, in circumstances, was covered under S.497(2), Cr.P.C. requiring further inquiry into his guilt---Although pre-arrest bail was declined to accused earlier but considerations for pre-arrest bail were different than those for after-arrest bail---Accused who was behind the bars for the last more than seven months, was stated to be previous non-­convict---If accused was involved in other cases, same could not be a ground for refusal of bail to him---If case of accused was otherwise found fit for bail on merits, he could not be refused bail even if he had remained absconder and accused in the present case had not been declared absconder---Commencement of trial, was not a clog in the way of grant of bail when accused was found entitled to same--­Accused was granted bail in circumstances.

Muhammad Rafique v. The State 1997 SCMR 412 ref.

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

----Ss.497 & 498---Considerations for pre­-arrest bail and after-arrest bail, not the same---Considerations for pre-arrest bail were different than the one for after-arrest bail.

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

----S.497---Grant of bail ---Principles--­Abscondence---If case of the accused was otherwise found fit for bail on merits, he could not be refused bail even if he had remained absconder- --Commencement of trial was not a clog in the way of grant of bail when accused was found entitled to bail.

Munir v. The State 2002 MLD 712 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Ch. Pervaiz Aftab for Petitioner.

Iftikhar Ibrahim Qureshi for the State.

Sahibzada Farooq Ali Khan for the Complainant.

2003 Y L R 1380

[Lahore]

Before Muhammad Farrukh Mahmud, J

KHAN MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 152 or 1998/BWP, heard on 27th January, 2003.

Penal Code (XLV of 1860)---

----Ss.302(b), 302(c), 337-D & 337- F(v)--­Appreciation of evidence---sentence, reduction in---Matter had suddenly flared up between the parties on the day of occurrence due to the existing dispute over agricultural land and both sides had sustained injuries--­Injuries of the co-accused were not mentioned at all in the F. I. R. and prosecution witnesses had to admit the same during trial--­Complainant as well as the accused had suppressed the truth---Trial Court had rightly concluded that the case was one of individual liability---Accused had given a single blow to the deceased with the blunt side of his weapon and did not repeat the same--­Conviction of accused under S.302(b), P. P. C. was altered to S. 302 (c), P. P. C. in circumstances and his sentence thereunder was reduced to the imprisonment already undergone by him which was 18 years and 8 months and was sufficient to meet the ends of justice---Injured witness had received injuries with blunt weapon at the hands of accused whereby his two ribs were fractured--Injuries were not caused to the said witness by any sharp-edged weapon or fire-arm and the same were also not punctured wounds---Conviction of accused under S. 337-D, P. P. C. was consequently set aside and instead he was convicted' under S.337F(v), P.P.C. and sentenced to undergo five years' R.I.--­Both the sentences were directed to run concurrently.

Syed Ali Bepari's case PLD 1962 SC 502 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

Mumtaz Mustafa for Appellant.

Sardar Muhammad Hussain for the Complainant.

M.A. Farazi for the State.

Date of hearing 27th January, 2003.

2003 Y L R 1386

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL NASIR and another---Petitioners

Versus

ELECTION TRIBUNAL and 10 others---Respondents

Writ Petition No.12173 of 2002, decided on 15th August, 2002.

Punjab Local Government Elections Ordinance (V of 2000)---

----S.5---Punjab Local Government Elections Rules, 2000, Rr.29, 70 & 83---Constitution of Pakistan (1973), Art. 199---Election petition---Declaring whole election as void and ordering for re-election---Election Tribunal declared whole election as null and void and ordered for re-election on ground that due to "Halla Gulla " or disturbance at ladies Polling Stations, election remained stopped for about five hours and voters had gone to their homes and due to the terror so created, lady voters had avoided to approach Polling Stations for casting their votes--­Statement of Presiding Officer and other members of staff showed that it had been established beyond any doubt that a procession had come at the Polling Stations which started "Halla Gulla" or disturbance and due to fear and terror created by said procession, Polling Staff went inside the room and locked themselves---One of the witnesses got lodged a case on basis of which petitioners/returned candidates had been nominated as accused persons and were found responsible for disturbance---Statement of said witness was also supported by other witnesses---Voters were not provided free access to cast their votes in an independent and impartial manner, but due to terror they had to leave Polling Stations---Even if polling re-started, same was not sufficient to hold that polling was held in an independent and free atmosphere especially when numbers of ballot papers were found scattered at the place which were taken into possession by Police and ballot boxes remained lying in Ahata inside---Election Tribunal had rightly found that "Halla Gulla " had materially affected the polling and in circumstances, declared the whole election as null and void and ordered for re-election.

Malik Muhammad Afzal Awan v. Election Tribunal 2002 YLR 1395; 1997 CLC 1716; 1994 CLC 1366; 1996 SCMR 1455; PLD 1983 Lah. 778 and 1999 MLD 2793 ref.

Pervaiz Inayat Malik for Petitioners.

Ch. Muhammad Khan and Rana Muhammad Saleem Akhtar for Respondents Nos. 2 and 3.

2003 Y L R 1390

[Lahore]

Before Muhammad Akhtar Shabbir, J

Raja ABDUL LATIF---Appellant

Versus

Sufi SAKANDAR and 2 others---Respondents

Criminal Appeal No.98 of 2000, heard on 17th February, 2003.

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

----Ss. 324/379/ 440/427/ 337-H(ii)134--­Criminal Procedure Code (V of 1898), Ss.249-A & 417 (2-A)---Appeal against acquittal---Impugned order of acquittal having been passed by the Trial Court by suo motu invoking its powers under S.249 A, Cr.P.C., in the absence of any such application moved by the accused, was not sustainable in law---Trial Court had passed the impugned order without issuing any notice to the complainant of the F.I.R. and to the prosecutor and without providing an opportunity of hearing to them---Magistrate had passed the said order in a hasty and unusual manner on the last working day when he was to relinquish the charge due to his transfer which was a clear violation of law--­Investigating Officer did not appear in the Court to support the prosecution case and it was incumbent upon the Court to procure his attendance by adopting coercive measures--­Four prosecution witnesses had supported the prosecution version who were not cross­-examined by the accused and their examination-i-chief was deemed to be admitted under the law---Trial Court had nowhere observed that the charge against the accused was groundless or that there was no probability of their conviction in the case--­No sufficient reasons had been assigned by the Trial Court to support its order which had been passed without application of judicious mind to the facts and circumstances of the case---Impugned order of acquittal was set aside in circumstances and the case was remanded to the Trial Court to try the same afresh from the stage it was decided.

The State v. Muhammad Afzal 2000 MLD 220; M. Saleem Anjum v. Majid Nizami 1990 MLD 206; S.C. Subjally v. A. Hamid Khan and another 1999 MLD 1645; The State v. Sarwar Khan PLD 1984 SC 428; Abdullah Jan Khan v. Saifur Rehman Khan 1997 PCr.LJ 973; The State v. Asif Ali Zardari 1994 SCMR 798; Zahoor-ud-Din v. Khushi Muhammad 1998 SCMR 1840 and Aarub Khan v. Haris M.B. Ahmad and others PLD 1996 Kar. 253 ref.

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

----Ss.249-A & 265-K---Powr of Court to acquit accused at any stage ---Essentials-- While passing the order of acquittal under Ss. 249-A & 265-K, Cr. P. C. the only requirements to be fulfilled are: That hearing is to be given to the prosecutor and counsel of accused and that reasons are to be recorded in support of the conclusion that charge is groundless or that there is no probability of the accused being convicted.

The State v. Asif Ali Zardari 1994 SCMR 798; Zahoor-ud-Din v. Khushi Muhammad 1998 SCMR 1840 and Aarub Khan v. Haris M.B. Ahmad and others PLD 1996 Kar. 253 ref.

Malik Rabnawaz Noon for Appellant.

Malik Nawaz Khan for Respondents

M.D. Shahzad for the State.

Dated of hearing 17th February, 2003.

2003 Y L R 1393

[Lahore]

Before Ch. Iftikhar Hussain, J

TARIQ BASHIR---Petitioner

Versus

SHAUKAT BAKHSH and another---Respondents

Writ Petition No.8248 of 2002, decided on 9th October, 2002.

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

----S.13---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Ejectment petition filed through general attorney--­Neither general power of attorney nor copy thereof was annexed with ejectment petition nor produced in evidence---Rent Controller dismissed petition for being filed through unauthorized person, but Appellate Court set aside such order---Validity---Tenant had not raised such plea in reply to ejectment petition, rather raised same in evidence, which would be not in conformity to his pleading ---Ejectment petition had been signed by attorney and filed through counsel engaged by attorney---Attorney was brother of landlord's wife---Attorney in his evidence had stated to be attorney of landlord---Tenant had not denied that attorney was appointed through registered deed, rather had showed ignorance---Tenant had admitted that he had got house on rent from landlord in presence of attorney; he had been paying rent to attorney on asking of landlord; and he had earlier sued landlord through attorney---Landlord had not denied status of his attorney---Attorney had placed on record general power of attorney before Appellate Court---Conclusion drawn by Appellate Court was neither erroneous nor against evidence on record---High Court dismissed Constitutional petition in limine.

Rafaqat Ali Khan v. Fida Muhammad Khan PLD 1986 Pesh. 50 ref.

(b) Pleadings---

---- Parties could not be allowed to set up case beyond pleadings.

Tariq Zulfiqar Ahmad Choudhary for Petitioner.

2003 Y L R 1395

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

MUHAMMAD FEROZE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.83 and Murder Reference No.145 of 1997, heard on 4th November, 2002.

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

----Ss.302(b) & 460---Appreciation of evidence ---F.I.R. was lodged without any inordinate or inexplicable delay which might denude the prosecution case from credibility to any extent---Complainant had witnessed the occurrence himself and recognized the accused in the light of the electric bulb present in the courtyard---Ocular testimony was consistent with medical evidence---Crime empty collected from the spot. had matched with the licensed gun recovered at the instance of accused---Motive alleged by the prosecution for the incident had been proved---Accused had fired the solitary shot from point blank range at the vital part of the body of the deceased knowing fully well that it was sufficient to cause death---Conviction and sentences of accused were maintained in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and Muhammad Yasin and 2 others v. The State

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

----Ss.302(b) & 460---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Accused according to prosecution case itself was empty-handed at the time of occurrence---Role attributed to accused was only of raising "Lalkara " which did not seem to be of a commanding nature as admittedly he was the son of the principal accused---Impugned judgment acquitting the accused did not call for any interference---Appeal was dismissed accordingly.

Ch. Mehmood Akhtar Khan and Dr. Z. Muhammad Babar Awan for Appellant.

Haji Miran Malik for the State.

Date of hearing 4th November, 2002.

2003 Y L R 1402

[Lahore]

Before Tassaduq Hussain Jilani, J

Miss RABIA MUSHTAQ---Petitioner

Versus

UNIVERSITY OF PUNJAB through Controller and another---Respondents

Writ Petition No.223 of 2003, decided on 7th February, 2003.

(a) Educational institution---

---- Rectification mistake in tabulation by Examiner---Scope---Candidate was short of only one mark in examination to qualify for grace marks, which would have ultimately declared her passed---Neither the candidate had asked for nor report of Examiner had mentioned re-evaluation of answers--­Examiner had merely rectified a mistake in tabulation, which act was not hit by resolution of Board of Studies---Such revision of result made by Examiner could not be classified as a revision without any "reasonable ground", which was prohibited under resolution of Board of Studies---Such correction of result was not unprecedented--­High Court accepted Constitutional petition with direction to respondent to issue final result in terms of report of examiner--­Constitution of Pakistan (1973), Art.199.

Writ Petition No. 1795 of 1998 rel.

(b) Educational institution---

---- Re-evaluation or re-assessment of marks and re-checking of answer books--­Distinction ---Rectification of mistake in answer books---Principles.

Re-evaluation or re-assessment of marks is different from drat of re-checking of the paper for purpose of correction of clerical mistake and such other omission in the record. Therefore, the mistake in the papers as well as in record prepared by concerned authorities not relating to re-assessment or re­evaluation of marks can be rectified at any stage.

Writ Petition No. 1795 of 1998 fol.

Muhammad Ilyas Khan for Petitioner.

Syed Mohsan Abbas, Standing Counsel for the Punjab University.

M. Bilal Khan, A.A.-G (on Court's call).

2003 Y L R 1405

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL HAMID--Petitioner

Versus

ELECTION TRIBUNAL (KASUR)/DISTRICT AND SESSIONS JUDGE, OKARA and 14 others---Respondents

Writ Petition No. 10989 of 2002, heard on 21st February, 2003.

Punjab Local Government Elections Rules, 2000---

----R.79---Civil Procedure Code (V of 1908), O. V, Rr. 17, 18, 19 & O.IX, R.6--­Constitution of Pakistan (1973), Art.199--­Constitutional petition---Election petition--­Service of notice---Ex parte order against the petitioner, setting aside of----Election Tribunal passed ex parte order against the petitioner on the basis of report of Process Server, on the very next day and finally accepted the election petition---Report of Process Server did not contain his affidavit--­Validity---Ex part order was passed in violation of mandatory provisions of election laws and provisions of Civil Procedure Code---Ex parte order being without lawful authority, superstructure would fall on the ground automatically---Order passed against the petitioner was set aside by High Court and Election Tribunal was directed to decide the petition strictly in accordance with law.

Mian Shabbir Ahmad v. Muhammad Iqbal 1991 CLC 1830; Feroze Khan v. Muhammad Shoaib 1994 CLC 1462; Crescent Sugar Mills v. C.B.R. PLD 1982 Lah. 1 and Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104 ref.

Mahmood Ahmad Alwari for Petitioner.

Muhammad Hanif Khattana, Addl. A.-G. for Respondents Nos. 1 to 3.

Chaudhry Muhammad Khurshid, Advocate: Amics curiae.

Date of hearing.21st February, 2003.

2003 Y L R 1411

[Lahore]

Before Maulvi Anwarul Haq, J

SECRETARY, GOVERNMENT OF THE PUNJAB, HOUSING AND PHYSICAL PLANNING DEPARTMENT, LAHORE and 4 others—Petitioners

Versus

MUHAMMAD TOHEED --- Respondent

Civil Revision No. 1365 of 1999, heard on 15th January, 2003.

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

----S.42---Suit for declaration---Auction of plot---Auction purchaser had deposited total amount of bid which was rejected by the Auction Committee without giving notice to the bidder---Auction purchaser contended that he, being successful bidder rejection of his bid without notice was illegal, void and that he was entitled to get ownership of the auctioned plot---Validity---Contract would come into existence after acceptance of offer---Offer of auction purchaser was not accepted by the Auction Committee as such no contract existed between the parties--­Contention of auction purchaser was repelled and his suit for declaration was dismissed.

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

----S. 2(b)---Contract---Offer and acceptance---Petitioner invited bids/offers for the plots---Respondent made an offer which was not accepted---Effect---Offer having not been accepted, no contract came into existence between the patties.

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

----Art.199---Specific Relief Act (I of 1877), Ss. 12 to 21---Constitutional petition--­Judicial review of an executive act---Suit for specific performance of contract--­Distinction---Judicial review of an executive act is on different plank from the civil suit, seeking specific performance of contract­ Contract in existence could be ordered to be specifically performed by a Court in accordance with the provisions of Specific Relief Act, 1877.

Mian Ghulam Hussain for Petitioners.

Tallat Farooq Sh. for Respondent.

Date of hearing: 15th January, 2003.

2003 Y L R 1431

[Lahore]

Before M. Akhtar Shabbir, J

Raja SAHADAT NAWAZ---Petitioner

Versus

SUPERINTENDENT OF POLICE (INVESTIGATION), RAWALPINDI and 5 others---Respondents

Writ Petition No.215 of 2003, heard on 6th February, 2003.

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

----S.420/468/471---Constitution of Pakistan (1973), Art.199---Quashing of F.I.R.--­Allegation against the accused was that he had tampered with the chassis and engine numbers of the vehicle in question---Accused was the bona fide purchaser of the said vehicle of which the custom duty had been paid and the documents contained the same engine, model and chassis numbers as entered in the registration certificate and the F. I. R.--­Report of the Forensic Science Laboratory was not worth reliance as the same was antedated, manoeuvred and got prepared by the respondents with the connivance of the officials of the said laboratory and the prosecution story was belied by their own record---Documents produced by the accused had established his ownership over the vehicle in question and the respondents had failed to controvert their gennuineness--­Offences under Ss. 420, 468 & 471, P. P. C. were not constituted against the accused, nor any evidence was available with the prosecution to involve him in the same---No complaint or case was ever registered against the accused in respect of the vehicle in dispute which had been taken into possession by the police under S.550, Cr. P. C. without any legal justification, which was sufficient to establish mala fides on the part of the police functionaries---F.I.R. registered against the accused was quashed in circumstances.

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

----Art. 199---Constitutional petition--­Quashing of F.I.R.---F.I.R. in Constitutional jurisdiction can be quashed if the case is of no evidence, or no offence is constituted from the contents of the F.I.R., or the F.I.R. has been registered on mere mala fides of the police.

Farid Nawaz Chaudhry for Petitioner.

Raja Muhammad Saeed Akram, A.A.-G. for Respondents.

Date of hearing: 6th February, 2003.

2003 Y L R 1434

[Lahore]

Before M. Akhtar Shabbir, J

MUHAMMAD RAFIQUE and 2 others---Petitioners

Versus

NOOR KHAN---Respondent

Civil Revision No.341 of 1995, heard on 3rd June, 2002.

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

---S.8---Punjab Pre-emption Act (IX of 1991), S.6---Civil Procedure Code (V of 1908), S.47---Suit for possession---Suit was filed on the basis of judgment and decree passed in their favour in a suit for pre-emption--­Plaintiff, in compliance of pre-emption decree had deposited sale price which had been received by defendant, but as petition for execution of decree was not filed by the plaintiffs, defendant did not deliver possession of suit property to plaintiffs---Suit was resisted by defendant contending that plaintiffs having not filed execution petition of decree for pre-emption within prescribed time, suit filed by plaintiffs was not maintainable---Validity---Provisions of S.47, C.P.C. did not bar availing the remedy, but only had regulated the forum for enforcement of rights so as to channelize, all matters relating to execution, discharge or satisfaction of decree through Executing Court---No execution proceedings had been filed for satisfaction of pre-emption decree, in the present case, but terms of decree had been complied with by plaintiffs/decree-holders by depositing decretal amount---Decree passed in favour of plaintiffs having not been set aside by any Court, same still held field--­Plaintiffs though did not file execution proceedings, they had become owners of the suit property when judgment and decree had been passed in their favour and defendants/judgment-debtors ceased to be owner of suit property---Suit for possession having been filed by plaintiffs within a period of twelve years, they could not be non-suited merely because they defaulted in filing execution petition for satisfaction of decree of pre-emption ---Suit for possession under S.8 of Specific Relief Act, 1877 could be filed on the basis of title and plaintiffs had already obtained title in respect of suit property---Suit was rightly decreed by Trial Court and Appellate Court was not justified to set aside findings of Trial Court and dismiss the suit---Judgment and decree passed by Appellate Court were set aside by High Court.

Mst. Rahim Noor and others v. Wazir Muhammad and others PLD 1955 Pesh. 56 ref.

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

----S.47---Execution of decree---Questions to be determined---Section 47, C.P.C. does not bar a person from availing remedy, but only regulates forum for the enforcement of rights so as to channelize all matters relating to execution, discharge or satisfaction of decrees through Executing Court---Bar contained in S. 47, C. P. C. was only attracted to cases where execution proceedings had been filed for satisfaction of decree and if execution proceedings were pending then no fresh suit would be filed and all questions would be determined by the Executing Court, wherein party could file objections---Object of S.47, C.P.C. was to afford speedy relief to parties in the Matters arising out of execution of decree.

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

----S.47 & O.XXI, R.10---Specific Relief Act (I of 1877), S.8---Decree-holder---Legal remedies available to a decree-holder--­Decree-holder could file execution petition for implementation of decree of possession; could apply to Revenue Officer for implementation of decree in Revenue Record in their favour; could file a suit for ejectment against defendant/judgment-debtor under Punjab Tenancy Act as after passing of decree of pre­emption in favour of plaintiffs/decree-holders defendant either would acquire status of an illegal occupant or as a tenant under decree-­holder; and could file a suit for possession under S.8, of Specific Relief Act, 1877 on the basis of title which they had acquired through decree.

Ali Ahmed and another v. Muhammad Fazal and another PLD 1973 Lah, 207 ref.

Ch. Mehmood Akhtar Khan for Petitioners.

Ch. Ifrasiab Khan for Respondent.

Date of hearing: 3rd June, 2002.

2003 Y L R 1438

[Lahore]

Before Khawaja Muhammad Sharif, J

MANZOOR HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1889 and Criminal Revision No.892 of 2001, heard on 12th September, 2002.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c) --- Appreciation of evidence---Prosecution story having been disbelieved, version of the accused had to be accepted in toto---Accused according to his statement under S.342, Cr.P.C. had killed the deceased under grave and sudden provocation on having seen him in objectionable position with his daughter--­Version put forth by the accused was more probable and nearer to the truth than the prosecution version and it was so held even by the Trial Court---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 14 years' R.I. in circumstances.

Ch Abdul Majeed Gondal for Appellant.

Muhammad Jahangir Wahla, A.A. -G. for the State.

Date of hearing 12th September, 2002.

2003 Y L R 1441

[Lahore]

Before Mrs. Fakhar un Nisa Khokhar, J

MAZHAR HUSSAIN ---Petitioner

Versus

NAZIM UNION COUNCIL, BHALWAL and others---Respondents

Writ Petition No. 16588 of 2002, decided on 4th February, 2003.

Muslim Family Laws Ordinance (VIII of 1961)---

----S.5---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.7-- Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Registration of marriage, seeking cancellation of ---Validity--­ No provisions existed under the Muslim Family Laws Ordinance, 1961 and Rules to cancel registration on marriage --- Nazim of concerned Union Council had no jurisdiction to cancel the same---Legal sanctity was attached to such certificate under R.7 of the Rules---Solemnization of marriage in Pakistan was not disputed by spouses, which was a valid marriage---Marriage Certificate had not been challenged by any party, thus, there was no need to correct the same---High Court disposed of Constitutional petition accordingly.

Muhammad Akram Gondal for Petitioner.

Muhammad Mazhar Sher Awan, A.A.-G. for Respondents.

Date of hearing: 4th February, 2003.

2003 Y L R 1442

[Lahore]

Before Jawwad S. Khawaja, J

BBJ PIPE INDUSTRIES (PVT.) LTD. ---Petitioner

Versus

SUI NORTHERN GAS PIPELINES LTD. ---Respondent

Writ Petition No. 17111 of 2002, decided on 19th September, 2002.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition --­Laches---Contract for supply of pipes--­Authority after floating tender accepted respondent's bid, while petitioner's application for pre-qualification was under process---Validity---Petitioner, if aggrieved of delay by authority in processing its application, ought to have approached High Court before opening of bids---Authority had completed entire process for procurement of requisite supply---Too late for petitioner to seek cancellation of contract and non-­issuance of purchase order to respondent--­Commercial and business affairs of authority could not be allowed to be stymied by such belated petition---No equities were in favour of petitioner---High Court dismissed Constitutional petition in limine being hit by laches.

Jawad Hassan for Petitioner.

2003 Y L R 1443

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SALEEM and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1906 and Criminal Revision No.917 of 2001, heard on 16th August, 2002.

Penal Code (XLV of 1860)---

----Ss.302(b) & 201---Appreciation of evidence---Prosecution version that the deceased had given a loan of Rs.1,00,000 to the accused was totally false and unbelievable---Evidence of prosecution witnesses regarding extra judicial confession allegedly made by accused was inadmissible-­No evidence of last seen was available against the accused and nothing incriminating was recovered from them--­State Counsel had rightly conceded the case against accused being of no evidence--­Accused were acquitted in circumstances.

Malik Rashid Awan for Appellant.

A.G. Tariq Chaudhry for the Complainant.

Saleem Shad for the State.

Date of hearing: 16th August, 2002.

2003 Y L R 1445

[Lahore]

Before Sayed Zahid Hussain, J

AHMED BILAL KAHLON---Petitioner

Versus

SECRETARY, IRRIGATION AND POWER DEPARTMENT and 4 others---Respondents

Writ Petition No. 12517 of 2002, heard on 28th January, 2003.

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

----Art.199---Violation of mandatory requirement of law as to notice and hearing-­Violation of principles of natural justice--­High Court could appropriately invoice its jurisdiction and undo such violation of law and remedy the wrong.

(b) Canal and Drainage Act (VIII of 1873)---

----S.20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Passing order without issuing notice to petitioner or hearing him---Contention of respondent was that question, whether any notice had been issued to petitioner or not being a question of fact could be dealt with by Civil Court--­Validity ---Petitioner's assertion stood proved from official record and stance taken by respondent---Petitioner had not been issued any notice and he had been condemned unheard by Department---Forcing petitioner to file suit before Civil Court, would be a futile exercise in view of such facts and circumstances---Impugned order being contrary to law and principles of natural justice, was not sustainable---High Court remitted matter to Divisional Canal Officer for deciding same afresh in accordance with law.

Jalal Khan v. Zulfiqar Ali and others NLR 1985 UC 330; Muhammad Afzal and others v. Ch. Abdul Rehman Wahla and others 1994 CLC 921 and Qaim Khan and 17 others v: Superintending Canal Officer, Depalpur Canal Circle and 2 others 1982 CLC 804 ref.

Jawwad Hassan for Petitioner.

Muhammad Hanif Khatana for Respondents Nos. 1 to 4.

Ch. Taj Muhammad for Respondent No.5.

Date of hearing: 28th January, 2003:

2003 Y L R 1447

[Lahore]

Before Khawaja Muhammad Sharif, J

MUKHTAR AHMED and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1507 of 2001, heard on 7th August, 2002.

Penal Code (XLV of 1860)---

----S.302/34--Appreciation of evidence--­Occurrence was an un-witnessed one and the case was of circumstantial evidence--­Prosecution witnesses of last seen evidence, though mentioned in the F.I.R., had been declared hostile and solitary statement of the complainant in this regard, who was real uncle of the deceased could not be made basis to maintain the conviction of accused on a capital charge---Witness of recovery of dead body on the pointation of accused had also been declared hostile and it being a joint recovery, even otherwise, was inadmissible in evidence---Complainant had tried to improve his statement before the Trial Court with regard to the extra judicial confession made by accused also before him, but he had neither stated so in the F.I.R. nor in his statement under S.161, Cr. P. C. ---Recovery of weapons of offence at the instance of accused had lost its significance in the absence, of recovery of any crime empty from the place of occurrence---Accused were acquitted in circumstances.

Hafiz Khalil Ahmad for Appellants.

A.H. Masood for the State.

Date of hearing: 7th August, 2002.

2003 Y L R 1450

[Lahore]

Before Muhammad Sayeed Akhtar, J

ZAWAR PATROLEUM‑‑‑Petitioner

Versus

O.G.D.C. and others‑‑‑Respondents

Civil Revision No.436 of 2002, heard on 23rd July, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.41(b) & 20‑‑‑Application to file arbitration agreement in Court and for grant of interim injunction‑‑‑Procedure and powers of Court‑‑‑Scope.

Under section 41(b) of the Arbitration Act, 1940, the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court. Under the Second Schedule, the Court has the power, to issue interim injunction.

Before an interlocutory injunction is granted, the plaintiff must‑‑

(i) have an extremely strong prima facie case;

(ii) show actual or potential damage of a very serious nature i.e. irreparable loss. The order should not be sought as a fishing expedition; and

(iii) the balance of convenience must favour the grant of interim injunction.

Messrs Jamia Industries Ltd. v. Pakistan Refinery Ltd., Karachi PLD 1976 Kar. 644; Messrs Hatta Construction Company (Pot.) Ltd. v. Faisalabad Development Authority, Faisalabad through Director and another 1995 CLC 1877; Syed Rahim Shah v. Kasim and another 1992 MLD 1751; Muhammad Yakoob v. Health Officer, Municipal Committee, Hyderabad and another 1973 SCMR 184 and East Pakistan Inland Water Transport Authority v. Haji Abdul Jalil Bepan and others PLD 1969 Dacca 832 ref.

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

‑‑‑‑S.21‑‑‑Contract not specifically enforceable‑‑‑Award of damages‑‑‑Loss, measurement of‑‑‑Principles‑‑‑Injunction cannot be issued to prevent the breach of a contract which cannot be specifically enforced.

Under section 21 of the Specific Relief Act, 1877, a contract will not be specifically enforced where its non­performance can be adequately compensated by award of damages, Pecuniary compensation would be adequate relief to the petitioner and it would be oppressive to grant an injunction at such stage. Refusal to grant interim injunction will do no real harm to the petitioner.

The loss can be easily measured in terms of money. Any unauthorized expenditure in the execution of the agreement can be easily traced and, therefore, damages are an adequate substitution for it. Mere annoyance to the feelings is no ground for substantial loss. No injunction can be issued to prevent the breach of a contract which cannot be ordered to be specifically enforced.

Nooruddin and 3 others v. Messrs Sindh Industrial Trading Estate Ltd. and 3 others 1993 CLC 2204; 17 IC 219; Jamia Industries Ltd. v. Pakistan Refinery Ltd., Karachi PLD 1976 Kar. 644 and Messrs Petrosin Products (Pvt.) Ltd. v. Government of Pakistan 2000 MLD 785 distinguished.

(c) Contract‑‑‑

‑‑‑Joint venture‑‑‑Concept.

A Joint Venture involves the pooling of resources of two or mote enterprises. It cannot be lightly assumed that their objectives and motivations for entering into Joint Venture are necessarily identical. A successful Joint Venture therefore, requires a precise and unequivocal articulation of common objectives and a mutuality of interest. Such mutuality of interest will be assumed by compatibility of partners, unequivocal ‑‑ on long term objectives of the Venture, trust between the parties, mutual compromise, respect and commitment and the avoidance of mistakes. The investors with the best strategies would avoid the worst pitfalls. Mistrust had occurred between the parties which might land them where angels feared to tread. Conflicting interests might mar the entire project.

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

‑‑‑S.115‑‑‑Revision petition was dismissed by the High Court‑‑‑Counsel of the petitioner after announcement of the order by the High Court orally made a prayer that till the filing of petition for leave to appeal before the Supreme Court the operation of High Court order may be suspended‑‑‑Validity‑‑‑High Court allowed the request and directed the respondent not to implement the order for a period of two weeks from the date of announcement of the judgment of the High Court.

Khalid Siraj Textile Mills Ltd. v. Federation of Pakistan and others 1990 ALD 446(1) ref.

Abdul Hafeez Pirzada, Saleem

Zulfiqar Khan, Hassan Aurangzeb and Iftikhar Ahmad for Petitioner.

Waseem Sajjad for Respondents.

Dates of hearing 15th, 16th, 17th, 18th, 22nd and 23rd July, 2002.