YLR 2004 Judgments

2004 Y L R 1742

[Election Tribunal Punjab]

Before Justice Mian Hamid Farooq, Election Tribunal

MUHAMMAD ASHRAF RASOOL‑‑‑Petitioner

Versus

ALI ABBAS 13 others‑‑‑Respondents

Election Petition No.70 of 2002, decided on 5th December, 2003.

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

‑‑‑‑Ss. 55(3) & 66‑‑‑Election petition‑‑­Verification‑‑‑Maintainability‑‑‑Necessary components of verification of the numbered paragraphs with reference to petitioners' own knowledge and upon information received and believed to be true were conspicuously lacking; and petition was not verified by the Oath Commissioner‑‑­Effect‑‑‑Such petition was in violation of mandatory provisions of S. 55(3) of Representation of the People Act, and thus was not maintainable in law.

Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 quoted.

S. M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486 and Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 distinguished.

Malik Waqar Saleem for Petitioner.

Hamid Ali Shah and Riaz Hussain Khan for Respondent No. 1.

Respondents Nos.2 to 14 proceeded ex part vide order dated 28‑2‑2003.

Date of hearing: 6th November, 2003.

2004 Y L R 21

[Election Tribunal Sindh]

Before Justice Muhammad Moosa K. Legharim, Election Tribunal

TASNEEM‑UL‑HASAN FAROOQI‑‑‑Petitioner

Versus

Hafiz MUHAMMAD NAEEM and 12 others‑‑‑Respondents

Election Petition No. 187 of 2002, decided on 28th August, 2003.

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

‑‑‑‑Ss.8, 52 & 70‑‑‑Election petition‑‑­Delimitation of constituencies‑‑--Declaring election as a whole void‑‑­Petitioner/unsuccessful candidate in his election petition had prayed that election of returned candidate, who was declared successful in constituency concerned. on securing highest number of votes, be declared as a whole void as Election Commission vide Notification had delimited the constituency by making some changes therein‑‑‑Election Commission before making certain changes/delimitation in constituency concerned invited objections from the general public, but petitioner did not file any complaint or objection against said delimitation of constituency published in Notification and accepting the same he had contested election‑‑‑Petitioner by his said conduct was estopped to raise any objection with, regard to delimitation of constituency at such belated stage‑‑‑Even otherwise no violation of Representation of the People Act, 1976 and relevant rules had been committed by the Competent Authority in issuing Notification with regard to disputed delimitation of constituency‑‑­Returning Officer, in circumstances had rightly and competently established Polling Stations in the constituency concerned according to final list of Polling Stations duly published in the official Gazette fifteen days before polling day‑‑‑Provisions of law having been fully complied with, Returning Officer could not be said to have violated provisions of S.8 of Representation of the People Act, 1976‑‑‑Provisions of S.70 of Representation of the People Act, 1976 provided that election could be declared as a whole void if Election Tribunal was satisfied that results of election had materially been affected‑‑‑Burden to prove that results of election had been materially affected lay on petitioner who had challenged election, but petitioner had failed to discharge that burden‑‑‑Election of Returned Candidate, could not be declared as a whole void, in circumstances.

PLD 1974 Note 93 at p. 143; AIR 1959 Assam 128; AIR 1954 SC 513; PLD 1967 Lah. 722; PLD 1968 SC 331 and PLD 1966 (W.P.) Lah. 839 ref.

Fazle Ghani Khan for Petitioner.

Shoa‑un‑Nabi for Respondent No. 1.

Date of hearing: 24th June, 2003.

2004 Y L R 132

[Election Tribunal Sindh]

Before Justice Muhammad Moosa K. Leghari, Election Tribunal

MUHAMMAD FAROOQ QURESHI‑‑‑Petitioner

Versus

ABDUL REHMAN RAJPUT and 13 others‑‑‑Respondents

Election Petition No.140 of 2002, decided on 28th August, 2003.

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

‑‑‑‑S. 52‑‑‑Election petition‑‑‑Application for summoning of Returning Officer ‑‑‑Un­ successful candidate filed application for summoning of Returning Officer to give evidence regarding process/conduct of Polling, counting of votes and to produce entire record including election list, counting of votes etc.‑‑‑Reason for summoning Returning Officer and production of record was that bogus vote of one dead person and of a woman who was in Iddat: was‑ cast‑‑‑Neither name of the woman who :"was allegedly in Iddat nor identity of lady who attempted to tender bogus vote was disclosed by applicant in his affidavit‑in‑evidence‑‑‑Copies of applications alleged to have been offered to the Presiding Officer could not be received in evidence after evidence of witness having already been recorded‑‑‑Matter had already concluded and was at the stage of final arguments‑‑‑Summoning of Returning Officer and production of entire record at such belated stage, was uncalled for, in circumstances as it would prolong the matter and was bound to cause disadvantage to the case of Returned Candidate and grant of prayer of applicant would amount to abuse of process of Court instead of advancing cause of justice.

Mst. Bashir Bibi v. Aminuddin and 9 others 1972 SCMR 534 ref.

Munib Ahmed Khan for Petitioner.

M. S. Qureshi for Respondent No.2.

Date of hearing: 25th August, 2003.

2004 Y L R 381

[Election Tribunal Sindh]

Before Justice Ghulam Rabbani, Presiding Officer, Election- Tribunal

MUHAMMAD HASHIM SIDDIQUI---Petitioner

versus

IQBAL MUHAMMAD ALI KHAN and others---Respondents

Election Petition No.206 of 2002, decided on 10th July, 2003.

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

----Ss. 55, 63 & 67---Election petition--­Unsuccessful candidate had challenged election of returned candidate alleging that returned candidate was guilty of corrupt and illegal practices, rigging and bogus voting and other irregularities--­Petitioner/unsuccessful candidate had also levelled allegations against the Returning Officer, Polling Staff and other concerned persons---Petitioner had given a long list of allegations against returned candidate, but he had failed to furnish material facts on which he had relied---Evidence of petitioner and his witnesses was vague, sketchy and devoid of any substance to inspire confidence---Petitioner had not examined any Polling Staff or any other officer to support his case and no official record had been summoned or produced by petitioner in support of his case---Petitioner neither had stated nor proved as to how his election was materially affected on account of non­compliance of provisions of the Act and Rules framed thereunder---Petitioner had failed to furnish full particulars with names, places and the time of .alleged corrupt or illegal practice or of any other illegal act as alleged by him to get a verdict in his favour---Petitioner or his witnesses had not named either any voter who was allegedly victimized or name of any person who was unduly allowed to vote---Petitioner also had not given name of any. Polling Staff who extended help to returned candidate--­Petitioner, in circumstances, had failed to prove his case in whatever form advanced by him---Election petition in circumstances, merited no consideration and was dismissed accordingly with costs to be paid to the returned candidate.

Munubhai Namdlal Amarsey v. Popatial Manilal Joshi AIR 1969 SC 734; Capt. Syed Muhammad Ali v: The Returning Officer, P.S. 89, District Court, Karachi and 11 others 1999 CLC 2039; Muhammad Saeed and others v. Election Petition Tribunal West Pakistan and others PLD 1957 SC (Pak.) 91; Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 and Syed Saeed Hasan v. Piyar Ali and 7 others PLD 1975 SC 6 ref.

S.M. Qureshi for Petitioner.

A. Iqbal Quadri Respondent No.1.

Ahmed Pirzada Additional Advocate-General.

Date of hearing: 10th July, 2003.

2004 Y L R 489

[Federal Shariat Court]

Before Zafar Pasha Chaudhary and S.A. Rabbani, JJ

MUHAMMAD ILYAS BHATTI and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.98/L of 2002, decided on 8th October, 2003.

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

----S. 10(4)---Penal Code (XLV of 1860), Ss. 337-A(ii) & 342---Appreciation of evidence ---Prosecutrix being a married woman, her medical examination regarding rape having been committed on her was not of much help---Chemical Examiner's Report about the stains of semen was in the negative---Husband of the victim being a known criminal was required in many serious cases which were under investigation by the police and the possibility could not be ruled out that she might have made a false allegation in order to exert pressure on the police---Nobody had witnessed the commission of Zina with the victim---Offence under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, being an extremely grave one, unimpeachable and absolutely trustworthy evidence was required to support the accusation which was not available on record---Accused in the given circumstances could not be safely convicted on the solitary uncorroborated statement of the victim and they were acquitted of the charge under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Conviction of accused under Ss.337-A(ii) & .M2, P.P.C. was supported by the oral as well as documentary evidence---Medical evidence had also supported the ocular testimony---Conviction and sentence of accused under Ss. 337-A(ii) & 342, P. P. C. were consequently maintained--­Appeal was disposed of accordingly.

M.A. Zafar and Dr. Babar Awan for Appellants.

M. Sharii Janjua for the State:

Date of hearing: 24th September, 2003.

2004 Y L R 500

[Federal Shariat Court]

Before Zafar Pasha Chaudhary and S.A. Rabbani, JJ

ZAHOOR AHMAD---Appellant

Versus

MUMTAZ KHAN and 3 others---Respondents

Criminal Appeal No.69/I of 2003, decided on 11th November, 2003.

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

----Ss. 10 & 11---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Victim girl was subjected to fairly lengthy cross-examination, but she could not be detracted from her statement nor any 'of her assertion could be falsified---Trial Court relying upon statements made by Investigating Officer during his cross-examination, bulk of which otherwise was not even admissible in evidence, had observed that contradictions existed between various statements made by victim during' course of investigation---Such observations being not borne out either from the record or from the evidence, Trial Court had fallen in serious error by relying upon statements made by Investigating Officer---Trial Court having based finding of acquittal on totally inadmissible part of evidence of the Investigating Officer, judgment of acquittal based on material which, neither was part of evidence nor same had come on record, was. not only illegal, but would be treated as perverse and arbitrary---Victim girl who was aged about nine years made rational reply to all questions put to her before examining her as a witness---Consistent statement made by victim girl had inspired confidence--­Statement of victim girl was fully supported by medical examination conducted by the Doctor-.-By taking stock of all evidence and material on record, there was no doubt in believing that victim had been kidnapped by the main accused and was subjected to Zina-bil-Jabr---Main accused was convicted and sentenced accordingly under Ss. 10(3) & 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Appeal against judgment of acquittal passed by Trial Court was allowed to the extent of main accused and he was convicted and sentenced--­Victim girl herself had stated that two co­ accused of main accused neither accompanied main accused nor they had committed any other offence---Appeal against acquittal to the extent of said co ­accused was dismissed.

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

----S. 156---Investigation---To carry out investigation was a legal duty of the Police or other authorised agencies---Such power could not be delegated to any private person or body.

Sanaullah Zahid for Appellant.

Riaz Ahmad Khalil for Respondents.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 11th November, 2003.

2004 Y L R 515

[Federal Shariat Court]

Before Zafar Pasha Chaudhary and S.A. Rabbani, JJ

MUHAMMAD AFZAL alias KAKA---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.31-I of 2003 decided on 14th November, 2003.

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

----Ss. 302/377---Offence of Zina (Enforce­ment of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---No evidence was available to suggest that any witness had seen the accused committing sodomy with the deceased or killing him after committing sodomy---Prosecution Produced two pieces of evidence to connect the accused with commission of offence; one being that the children informed the complainant that accused had taken deceased to 'Dera'/place of alleged occurrence; and the other that after some time accused was seen by the witnesses coming out from the 'Dera' whereafter dead body of deceased was found in the `bera'---Witness who allegedly was present with complainant, did not support the version of complainant---Presumption, in circumstances, would be against the Prosecution story---Complainant had not given names of those two children who allegedly informed him about taking away of - his deceased son---Evidence about Information to complainant about taking away deceased by accused, was not free from doubt---Trial Court had not been careful throughout the -proceedings--­Additional Sessions Judge who framed charge in the case mentioned wrong name of deceased and he did not care to frame charge about offences of kidnapping and sodomy---Additional Sessions Judge who succeeded the previous Additional Sessions Judge, proceeded with the trial without caring to rectify or amend the charge--­Trial Court also recorded wrong name of witness---Report of Chemical Examiner did not help the prosecution case---Trial Court had observed in its judgment that no evidence was available which could establish that there was any mitigating or extenuating circumstance in favour of the accused and that extreme penalty of death has not being awarded to accused for the sake of safe administration of justice---Evidence of prosecution was defective and inadequate and charge against accused was not proved beyond any reasonable doubt---Accused, in circumstances, was entitled to benefit of doubt---Conviction and sentence awarded to accused by Trial Court were set aside and he was released.

M. Yousaf Zia for Appellant.

M. Sharif Janjua for the State.

Date of hearing: 28th October, 2003.

2004 Y L R 580

[Federal Shariat Court]

Before Zafar Pasha Chaudhary and S.A. Rabbani, JJ

ABDUL SATTAR---Appellant

Versus

SHER AMJAD and another---Respondents

Criminal Appeal No. 198/I of 2002, decided on 8th October, 2003.

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

----S. 12---Penal Code (XLV of 1860), S.377-- Appeal against acquittal---Medical Officer on the basis of medical examination as well as the Chemical Examiner's Report had given a definite opinion that no sodomy was committed with the victim---Evidence of the complainant was of no help to prosecution as he had only stated what was told to him by his son---Contention that in the absence of positive medical evidence at least a case of attempt -of commission of sodomy was proved, was not acceptable because the victim himself had not alleged that only an attempt was made---With the acquittal of accused by the Trial Court double presumption of innocence having accrued in his favour, very strong reasons were required to be shown by the prosecution for his conviction, which were not available in the case---Impugned judgment did not need any interference--­Appeal against acquittal of accused was dismissed accordingly.

Muhammad Ayub v. The State 1986 PCr.LJ 268; Muhammad Inayat and others v. The State 1978 PCr.LJ 865; The State v. Muhammad Aslam and others 1999 MLD 335 and The State v. Syed Mazhar Alam and others PLD 2003 Kar. 122 distinguished.

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

----S. 367---Contents of judgment ---Guide­ lines---Section 367, Cr. P. C. requires that a judgment shall contain the points for determination, the decision thereon and the reason for the decision which is a mandatory requirement, but the practice appears to be that without mentioning as to what are the points for determination in the case, the Trial Courts discuss the evidence of witnesses whereafter they give a finding that the charge is proved or is not proved--­Mere discussion of evidence does not logically prove or disprove the charge--Trial Court should mention the relevant points for determination in the judgment and should give their findings on each point---Cumulative effect alone of the decision and findings on the said points may prove or disprove the charge.

Malik Itaat Hussain Awan for Appellant.

Sh. Ihsan-ud-Din for Respondent No. 1.

Syed Muzahir Naqvi for the State.

Date of hearing: 8th October, 2003.

2004 Y L R 602

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J. and S.A. Manan, J

GULSHER and another---Appellants

versus

THE STATE---Respondent

Jail Criminal Appeal No.65/1 of 2003; decided on 15th October, 2003.

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

----Ss. 16 & 10(3)---Appreciation of evidence---Recoveries in the case having been made in consequence of information and pointation of accused, provisions of 5.103, Cr. P. C. were not applicable to the case---Medical evidence showing the medical examination of the abductee after five days of the occurrence did not help the accused as semen could remain active and alive in the vagina up to 17 days---Accused had not made any statement under S. 340(2), Cr. P. C. and failed to produce a plausible defence in their favour in rebuttal of the confidence-inspiring prosecution evidence available on record proving their guilt---Impugned judgment passed by Trial Court did not suffer from any legal infirmity---Convictions and sentences of accused were upheld in circumstances with the exception that sentence of 18 years' R.1. awarded to the accused under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was reduced to 15 years' R.I.

Muhammad Maskin v. Satbar Khan 2001 PCr.LJ 1932; Mir Muhammad v. The State 1994 SCMR 614; The State v. Shanker 1997 SCMR 1000; Muhammad Akber v. The State 1995 SCMR 6.93; Yousaf v. The State and another 2000 PCr.LJ 1386; Mst. Tahira Khanum and 2 others v. The State 1990 ALD 62(2) and Mst. Sharman v. The State 2002 PCr.LJ 831 ref.

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

----S. 103---Qanun-e-Shahadat (10 of 1984), Art. 40---Application and scope--­Provisions of 5.103, Cr. P. C. apply to a case where the police conducts search of a house or place to recover an article /or which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused which is relevant under Art.40 of the Qanun-e-­Shahadat, 1984---Association of two respectables of the locality is not required where the accused himself leads the police to a particular place and gets the article recovered.

Mir Muhammad v. The State 1994 SCMR 614 and Yousaf v. The State and another 2000 PCr.LJ 1386 ref.

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

----S. 10---Zina or Zina-bil-Jabr---Medical evidence---Semen remains active and alive in the vagina up to 17 days at the best and can stay there up to 21 days.

Mst. Tahira Khanum and 2 others v. The State 1990 ALD 62(2) and Mst. Sharman v. The State 2002 PCr.LJ 831 ref.

M. Saliheen Mughal for Appellants.

M. Sharif Janjua for the State.

Date of hearing: 15th October, 2003.

2004 Y L R 619

[Federal Shariat Court]

Before Zafar Pasha Chaudhry, J

SHOUKAT ALI and another---Appellants

versus

THE STATE---Respondent

Jail Criminal Appeals Nos.15/I and 22/1 of 2003, decided on 22nd October, 2003.

(a) Criminal trial---

----Onus of proof---When an accused was charged with an offence, then entire onus had to be discharged by the prosecution and it was obligatory that offence should be proved beyond any reasonable doubt-.-Onus would never shift to the defence.

Safdar's case PLD 1953 PC 93 ref. '

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

----Ss. 10(2)/16---Penal Code (XIV of 1860), Ss. 468/471---Appreciation of evidence---Allegation against female accused was that she, during existence of her marriage, had developed illicit relation with the co-accused---Case of Zina and abduction Was registered against accused persons---Female accused had alleged that her-previous husband had divorced her and that after her divorce she had validly married with the co-accused --- Accused had produced a copy of divorce deed and also subsequent Nikahnama evidencing marriage with the co-accused---Prosecution case was that alleged Talaqnama of previous husband of the accused was forged .and female accused having entered into marriage with co-accused during existence of a marriage, second marriage of accused lady was void and that both the accused were living in adultery and were guilty of commission of Zina---Validity---Talaqnama had been thumb-marked by previous husband of female accused and his National Identity Card number had also been recorded on the-same ---Apart from previous husband of accused it had been witnessed by three persons who had either put down their signature or had axed thumb­impression on the same---Neither said persons were examined as witnesses nor anything was on record to indicate that their signatures or thumb-marks were bogus---Prosecution could not prove that thumb-impression of previous husband of accused was bogus and said failure of prosecution could not be treated a mere lapse, but same appeared to be deliberate---Presumption, in circumstance, would be against the prosecution and in favour of the accused that Talaqnama did bear thumb-impression of previous husband of the accused and same was valid--­Divorce of previous husband to accused, in circumstances, could safely be accepted as genuine---Both accused had admitted solemnization of marriage---Fact that record of concerned Union Council about registration of Nikah had not been produced, could not operate only against the accused, but also equally against prosecution because no evidence to disprove said Nikah had been collected by the prosecution---Presumption, in all probabilities when accused had admitted solemnization of Nikah, would be in favour of the accused persons and marriage between them would be treated as valid and same was the spirit of Shariah as well as of Islamic Principles on the subject--­Prosecution had failed to prove the guilt of accused under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and after accepting Talaqnama as genuine, conviction of accused under Ss.468/471, P.P.C. could not be sustained---Accused were acquitted of the charge against them.

(c) Document---

----Execution---Validity---Once a person admitted affixation of his thumb-impression or signature on a document, said document normally was accepted as valid unless the same was established that 'it had been procured under duress or through deceit.

(d) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7---Talaq---Ingredients of Talaq--­Failure to follow prescribed procedure--­Effect---Provisions of S.7 of Muslim Family Laws Ordinance, 1961 had stipulated three steps to pronounce Talaq; firstly it had to be verbally pronounced; as mandated by Shariat; secondly the same be pronounced in any form whatsoever, which would mean that in any prevalent mode i.e. one's own language or in Arabic as some sects prescribed in that behalf; thirdly, verbal pronouncement of Talaq had to be reduced into writing and had to be conveyed to the Chairman of Union Council with a copy to the wife---Failure to strictly comply with said procedure would not, invalidate Talaq---Necessary requirement or ingredients of Talaq was a conscious and wilful pronouncement of Talaq with intention to release wife from marriage bond---Failure to follow said procedure could entail or be followed by punishment prescribed under succeeding subsection (2) of S.7 of Muslim Family Laws Ordinance, 1961, but validity of Talaq or separation of spouses from the marriage bond would not be affected.

(e) Islamic Law---

---- Marriage---Marriage of a woman before completion of Iddat---Marriage of a woman before completion of her Iddat, was irregular and not void---Irregular marriage could have its own consequences under personal law, but same could not be treated as void and could not be regarded as un-Islamic or against the Shariah.

Allah Dad v. Mukhtar and another 1992 SCMR 1273 ref.

Muhammad Yousaf Zia for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 22nd October, 2003.

2004 Y L R 1592

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, GJ., Dr. Fida Muhammad Khan and Saeed‑ur‑Rehman Farrukh, JJ

AMJAD PERVEZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No33/K of 2002 L/W Criminal Reference No.1/K of 2002, decided on 22nd September, 2003.

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

‑‑‑‑Ss. 17(3)/9(1)‑‑‑Penal Code (XLV of 1860), S.397‑‑‑Appreciation of evidence‑‑­Ocular testimony was consistent, coherent and confidence‑inspiring‑‑None of the eye­witnesses had any motive for false implication of accused who had been arrested red‑handed soon after the occurrence‑‑‑Prosecution had established its case beyond any doubt‑‑‑However, appointment of one Muzakki by the Court for all the prosecution witnesses who included not only the two shopkeepers but other victims of the case who happened to be there at the relevant time, could not sufficiently satisfy the legal requirements, as he with all his piety was having only superficial acquaintance with the prosecution witnesses‑‑‑Although the law did not specify any particulars procedure, but obviously at least one Muzakki needed to be appointed for each witness who should have verified his character, behaviour and dealings‑‑‑Moreover the same persons were also required to be present at the time of questioning the prosecution witnesses‑‑‑Books of Islamic Fiqh had provided all these details‑‑­Procedure adopted by trial Court, thus, hardly fell within the legally convincing mode of "Tazkiya‑al‑Shuhood "‑‑‑Addition­ally, Holy Prophet (Peace be upon him) had, on more than one occasion, stressed the need to ward off Hadd punishment as far as possible, if any scope was found for it‑‑‑Prosecution evidence being short of meeting the required standard, conviction and sentence of Hadd were not sustain­able‑‑‑Conviction of accused under S.17(3) read with S.9(1) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, was consequently altered to S.397, P. P. C. and he was sentenced to ten years' R. I. Thereunder with benefit of S.382‑B, Cr. P. C.

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

‑‑‑‑S. 7‑‑‑Proof of theft liable to Hadd‑‑­"Tazkiya‑al‑Shuhood "‑‑‑Connotation and procedure‑‑‑"Tazkiya‑al‑Shuhood" is a mandatory requirement for the imposition of Hadd punishment and it shall be conducted in all cases wherein the sentence of Hadd is awarded irrespective of the fact whether the accused raises any objection about the probity and credibility of a witness or not‑‑­Court is bound to conduct an open or secret inquiry for this purpose‑‑‑According to Islamic Fiqh it would be desirable if the witnesses are scrutinized through credible persons preferably of the same walk of life to which the witness belongs if they happen to know or could gather correct information about their dealings, conduct and behaviour‑‑‑Since the person who conducts the inquiry as Muzakki is loaded with a very heavy responsibility it would be imperative for the Court to appoint only such persons who themselves are highly credible, trustworthy and well aware of the antecedents of the witnesses appearing on behalf of prosecution‑‑‑Inquiry made by said persons may not be necessarily open or confidential but it should be fully sufficient to convince the Court about the credibility or otherwise of the witnesses.

Masood Shaharyar for Appellant.

M. Arshad Lodhi, Assistant Advocate‑General for the State.

Date of hearing: 22nd September, 2003.

2004 Y L R 8

[Karachi]

Before Muhammad Roshan Essani, J

ARBELO alias ARBOO ‑‑‑Applicant

Versus

THE STATE‑‑‑Opponent

Criminal Bail Application No.205 of 2003, heard on 25th August, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302 & 114‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 10(7) & 12‑‑‑Bail grant of‑‑‑Accused apparently was a "child" within meaning of provisions Juvenile Justice System Ordinance, 2000‑‑‑Accused was in jail for the last more than 2 years and his trial was not started, even charge had not been framed in the case‑‑‑Accused was granted bail, in circumstances.

Siraj Din v. Saghiruddin alias Goga and another 1970 SCMR 30; Yousif v. The State 1975 PCr.LJ 936; Raja Amanullah and another v. The State 2002 MLD 1817; Mansoor Ahmed and others v. The State 2002 PCr.LJ 657; Asghar Ali v. The State 2002 MLD 1566 and Attaullah v. The State Cr.B.A. No.57 of 2003 ref.

Abdul Rasool Abbasi for Applicant.

Masood A. Noorani, Addl. A. ‑G on behalf of the State.

Hidayatullah Abbasi and Madad Ali Shah: Amicus curie.

2004 Y L R 12

[Karachi]

Before Azizullah Memon, J

MUHAMMAD ILYAS‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.328 of 2003 decided on 29th August, 2003.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/201/34‑‑‑Bail, grant of‑‑‑Report of Chemical Analyser had shown that tests performed for detection of substances detailed therein were found negative, pertaining to articles referred to Chemical Analyser for such analysis and report‑‑­Report ‑of Special Medical Board which had examined deceased boy was in the negative showing that no poison was administered to him, in any form for the purpose of his murder‑‑‑Only evidence against accused was that of female who alleged that accused had threatened her to shut her mouth pertaining to incident otherwise she would be murdered‑‑‑Accused was admitted to bail, in circumstances.

Tahseen Ahmed Qureshi for Applicant.

Anwarul Hassan Ansari for the State.

2004 Y L R 33

[Karachi]

Before Sarmad Jalal Osmany and Rahmat Hussain Jafferi, JJ

MUHAMMAD ARIF and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent.

Special Criminal Anti‑Terrorism Appeals Nos.88, 102 and 103 of 2001, decided on 16th May, 2003.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss.319/34 & 337‑F‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.6‑‑‑Appreciation of evidence‑‑‑Nobody had seen the accused armed with a rifle or firing at the car‑‑­Accused had been involved in the case on account of deposit by him a rifle and short ammunition at the police station which was a corroborative piece of evidence and by itself was not sufficient to connect him with the commission of the offence‑‑‑Specific plea taken by accused that at the time of incident he was neither having the rifle nor had fired at the deceased or the injured witness, but was driving .the mobile van, was fully supported by .the prosecution's own witness who was a senior police officer and heading the police party‑‑‑Two theories being available on record, the one favouring the accused was to be accepted‑‑­Accused was acquitted in circumstances.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Saifullah v. State 1985 SCMR 410; Mutawakil Shah v. Muhammad Din, 1980 SCMR 96; Muhammad Sultan v. Muhammad Aslam 1988 SCMR 857; Ghulam Hussain v. State PLD 1994 SC 31; Furqan Haider v. State PLD 1959 SC (Pak.) 480 and Ashiq Hussain v. State PLD 1994 SC 879 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence ‑‑‑Principles‑‑­Corroborative evidence is meant to see the veracity of the ocular‑ testimony‑‑‑Both corroborative and ocular evidence are to be read together and not in isolation with 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‑‑‑

‑‑‑‑ Appreciation of evidence ‑‑‑Principles‑‑­When two theories emerge from the evidence on record regarding the event, the theory favourable to the accused is 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 (Pak.) 480 and Ashiq Hussain v. State PLD 1994 SC 879 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.392/34, 453/34, 353/34 & 365‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.6‑‑‑Appreciation of evidence‑‑­Accused had entered the house of the complainant and on gun point made him, his wife and children hostages, put them in a car and forced the complainant to drive the same and help them in escaping from the scene of incident‑‑‑When the car came outside the house accused fired at the police whereupon the police also fired at them‑‑­Accused had also snatched golden bangles from the wife of the complainant who had correctly picked up the accused in the identification parade‑‑‑All the aforesaid facts had been proved on record from the evidence of the complainant and his wife which had connected the accused with the commission of the crime‑‑‑Unlicensed pistols having been recovered from the accused on their arrest from a public place, provisions of S.103, Cr.P.C. were .not attracted‑‑‑Evidence of recovery inspired confidence‑‑‑Convictions and sentences of accused were upheld in circumstances.

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.

Fahim Riaz Siddique for Appellant (in Special ATA No.88 of 2001).

Habib Ahmed, A.A.‑G. for the State.

Mehmood A. Qureshi for the Complainant.

Dates of hearing: 9th, 11th and 18th April, 2003.

2004 Y L R 46

[Karachi]

Before Wahid Bux Brohi and Muhammad Moosa K. Leghari, JJ

REHMATULLAH BAIG ALVI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Accountability Appeals Nos.15, 16, 17, 19 and 20 of 2002, decided on 3rd March, 2003.

(a) Criminal trial‑‑‑--

-----Appreciation of evidence‑‑‑Evidence recorded in one case could not be read in another case unless same was produced and exhibited in later case in accordance with rules of evidence Qanun‑e‑Shahadat, 1984.

Noor Ahmed v. State PLD 1964 SC 120 ref.

(b) National Accountability Ordinance (XVII of 1999)‑‑‑

‑‑‑Ss.16, 17, 18 & 32‑‑‑Remand of case to Trial Court‑‑‑Bail, grant of‑‑‑Appellate Court, setting aside conviction and sentence awarded to accused by Trial Court, remanded the case to Trial Court for retrial‑‑‑Good portion of sentence had been served out by each of the accused persons and then were in custody since long‑‑­Pending' trial, accused were released on bail with direction that‑ trial in cases of accused should be conducted within specified period.

Farid Gul Khan for Appellant (in Criminal Accountability Appeals Nos. 15, 16 and 17 of 2002).

Shahadat Awan for Appellant (in Criminal Accountability Appeals Nos. 19 and 20 of 2002).

Muhammad Anwar Tariq, D.P.‑G., NAB.

2004 Y L R 59

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Messrs SINDH ENGINEERING (PVT.) LTD. ‑‑‑Appellant

Versus

OTIS ELEVATOR COMPANY and others‑‑‑Respondents

High Court Appeal No.255 of 2000, decided on 28th May, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑ O. VII, R.11, O.II, R.2 & O.XXIII, R.1‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Suit for declaration and injunction‑‑‑Withdrawal of suit‑‑‑Filing of subsequent suit‑‑‑Rejection of plaint‑‑­Earlier suit filed by plaintiff was withdrawn by plaintiff unconditionally by filing application under O.XXIII, R.1, C. P. C. ‑‑­Plaintiff after about two years of such withdrawal unconditionally filed suit against the same defendant for recovery of amount‑‑‑High Court, on filing application by defendant under O. VII, R.11, C. P. C. , rejected the plaint‑‑‑Contention of plaintiff was that earlier suit was filed by him for declaration and injunction only, whereas in the subsequent suit plaintiff having claimed damages against defendant, same was based upon different cause of action and that High Court was not justified in rejecting the plaint‑‑‑Plaintiff, in earlier suit which was withdrawn unconditionally, while seeking declaration, had also claimed amount of damages‑‑‑Amount claimed by plaintiff in subsequent/present suit was due and payable on the date when earlier suit was filed which was withdrawn unconditionally by plaintiff‑‑‑Entire claim in subsequent suit pertained to agency agreement arrived at between the parties which was terminated earlier‑‑‑Plaintiff had withdrawn his earlier suit unconditionally without reserving right to file fresh suit in respect of any claim pertaining to agency agreement between parties‑‑‑Plaintiff, even in plaint in subsequent suit had not stated that cause of action had accrued to plaintiff after withdrawal of earlier suit‑‑‑Plaintiff could not file fresh suit on cause of action earlier available to him which he intentionally either relinquished or had been incorporated though not specifically, by claiming damages‑‑‑High Court in its well‑reasoned order had rightly concluded that present suit was not maintainable and that plaint was liable to be rejected under O. VII, R. 11, C. P. C.

Muhammad Jameel for Appellant.

Khalid Rehman for Respondents.

Date of hearing: 29th April, 2003.

2004 Y L R 77

[Karachi]

Before Muhammad Mujeebullah Siddiqui , J

Mir GHULAM ABID through Attorney and 9 others‑‑‑Appellants

Versus

LAND ACQUISITION OFFICER/COLLECTOR, NOW DEPUTY DISTRICT OFFICER (REVENUE), KHAIRPUR ‑‑‑Respondent

1st Civil Appeal No.5 of 2003, decided on 30th April, 2003.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.28‑A & 54‑‑‑Acquisition of land‑‑­Additional compensation ‑‑‑Entitlement‑‑­Decree‑holders/landowners had prayed for granting them additional compensation under S.28‑A of Land Acquisition Act, 1894, but their prayer was refused by Executing Court for the reasons that said amount was not claimed by decree‑holders in their original claim and that additional compensation had not been awarded in the decree‑‑‑Validity‑‑‑Intervention of Court and adjudication, was not required for payment of additional compensation under S.28‑A of Land Acquisition Act, 1894‑‑­Omission on part of decree‑holders/land owners to claim additional compensation to which they were entitled under mandate of law itself or omission of Court to grant the same, was totally immaterial and of no consequence‑‑‑Decree‑holders/landowners were entitled to additional compensation under S.28‑A of the Land Acquisition Act, 1894 which could be granted by Executing Court while executing the decree‑‑­Statement filed by decree‑holders before Executing Court during course of execution proceedings containing claim for additional compensation at 15% per annum under S. 28‑A of Land Acquisition Act, 1894, was correct and payable in law to which they were entitled to claim.‑‑‑Respondent being bound to pay additional compensation to appellants/decree‑holders, they were ordered to deposit said amount within specified period.

Dilawar Hussain v. Province of Sindh and 2 others PLD 1993 Kar. 578; Province of West Pakistan v. Mehboob Ali PLD 1976 SC 483 and Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472 ref.

Ghulam Rasool Qureshi and Ghulam Mohi‑ud‑Din for Appellants.

Ghulam Shabbir Shar, State Counsel.

Date of hearing: 30th April, 2003.

2004 Y L R 99

[Karachi]

Before Azizullah M. Memon, J

ABDUL SHAKOOR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.74 of 2003, decided on 13th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 514‑‑‑Forfeiture of surety bond‑‑­Reduction in penalty amount‑‑‑Surety amount deposited by surety on the direction of Court was forfeited as accused for whom surety bond was executed had failed to appear in the Court on each and every date of hearing‑‑‑On request of surety that he was a poor man and could not afford to pay full amount of penalty, forfeited, Court reduced penalty amount of Rs. 25,000 to Rs.15,000 with direction to deposit the amount within specified period.

Abdul Haleem and another v. The State 2003 SCMR 929 ref.

Shafi Muhammad Memon for Applicant.

Riazuddin Siddiqi for the State.

2004 Y L R 104

[Karachi]

Before Ata‑ur‑Rehman and Maqbool Baqar, JJ

SULEMAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.428 of 2002, decided on 25th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/353/147/149‑‑‑Bail, grant of‑‑­Further inquiry‑‑Allegation against accused was that when police party raided house of accused for recovery of narcotics, it was attacked by persons present over there including the accused‑‑‑No one was injured in the incident and it was ineffective firing by persons present on the spot‑‑‑Other co-­accused almost on the similar ground had been released on bail‑‑‑Accused had finally been acquitted in the case against him under S.13‑D of West Pakistan Arms Ordinance, 1965‑‑‑In view of rule of consistency and fact that it was allegedly ineffective firing and that accused had been acquitted by Trial Court under S. 13‑D of West Pakistan Arms Ordinance, 1965, case against accused .was of further inquiry‑‑­Accused was admitted to bail, in circumstances.

Abdul Rasool Abbasi for Applicant.

Muhammad Azim Panhwar for the State

2004 Y L R 107

[Karachi]

Before Muhammad Moosa K. Leghari, J

ASHRAF and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.33 of 2002, heard on 19th August, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a)/34/324/316‑‑‑ Appreciation of evidence‑‑‑Accused though were armed with hatchets, but they had inflicted blows from wrong side of the hatchet‑‑‑Even main accused, who caused blow on head of deceased, did not use sharp side of hatchet‑‑‑Doctor who was produced in evidence had deposed that it was a case of Neurology and deceased who remained in hospital for 4 days, had died because of lack of Neurological treatment‑‑‑No strong motive existed for causing the murder‑‑­Fact that accused persons intended to cause Qatl‑i‑Amd of deceased could not be established‑‑‑Accused having used back side of hatchet, which, in ordinary course of nature, was not likely to cause death, but only to cause harm to the body, offence of accused persons, was punishable under S.316, P. P. C. ‑‑‑Element of vicarious liability of other three accused persons was missing as no evidence was available to that effect‑‑‑Evidence on record was not sufficient to show that any intention was to kill deceased and according to evidence on record said three accused caused injuries to prosecution witnesses and said injuries were simple in nature and were covered under S.337‑A(i), P. P. C. for which accused were liable to Daman and punishment to the extent of two years as Tazir‑‑‑Sentence awarded to accused under Ss.302/324, P. P. C. were set aside and they all were acquitted of the charge‑‑‑Main accused was convicted under S. 316, P. P. C. and was sentenced to suffer for 5 years and he would also be liable to payment of Diyat in accordance with law.

Madad Ali Shah for Appellants.

Muhammad Azeem Panhwar for the State.

Date of hearing: 19th August, 2002.

2004 Y L R 113

[Karachi]

Before Wahid Bux Brohi, J

MASHOOQUE ALI KHOSO‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.207 of 2003 decided on 9th July, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/337‑H(ii)‑‑‑Bail, grant of‑‑‑Accused fired only, in the air which was sufficient to display his intention not to cause injury to any person‑‑‑Case against accused was not of Qatl‑i‑Amd during lurking house‑trespass‑‑‑Accused was entitled to bail in circumstances.

1999 SCMR 360; Muhammad Sadiq v.‑State 1996 SCMR 1654; Abdul Aziz v. State 1996 SCMR 1693; Mumtaz Hussain v. State 1996 SCMR 1125; Sharbat v. State 2003 MLD 1191; Shafi Muhammad v. State 1999 PCr.LJ 890; 1990 PCr.LJ 1457 and Ghulam Nabi v. State 1996 SCMR 1023 ref.

Syed Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for the State.

2004 Y L R 121

[Karachi]

Before Azizullah M. Memon, J

SHER MUHAMMAD and 3 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 208 of 2003, decided on 18th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/337‑A(i)/337‑F(ii)/147/148‑‑‑ Bail grant of‑‑‑Out of four accused persons, bail application of two accused was not pressed and bail application to the extent of said two accused was dismissed as withdrawn‑‑­Remaining two accused were alleged with general allegation of having inflicted hatchet and Lathi blows on the person of deceased and injured person‑‑‑No specific role had been attributed to said two accused in F.I.R. and question in that behalf was yet to be determined by evidence during trial of case‑‑‑Said two accused were admitted to bail, in circumstances.

1980 SCMR 784 and 1997 SCMR 251 ref.

Anwar H. Ansari for Applicants.

Muhammad Azeem Panhwar for the State.

2004 Y L R 122

[Karachi]

Before Amir Hani Muslim, J

AQUIL USMAN DHADUK and another‑‑‑Applicants/Objectors/Plaintiffs

Versus

JAMIL AKHTAR KIYANI and 5 others‑‑‑Defendants

Judicial Miscellaneous No.44 of 2001 and Suit No.553 of 2000, decided on 26th May, 2003.

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

‑‑‑‑S. 144‑‑‑Doctrine of restitution‑‑‑Scope and implications.

The scope of application under section 144, C.P.C., is limited and the doctrine of restitution implies that on reversal of a decree, the law imposes an obligation on the party to suit, who received unjust benefit of the erroneous decree to make restitution to the other party of what he has lost. This obligation arises automatically on reversal and/or modification of decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree. The Courts in making restitution are bound to restore the parties, so far as they can be restored, in the same position as they were at the time when Court, by its erroneous action had displaced them from. Provision in C.P.C., governing application for restitution does not confer any new substantive right, but it merely regulates the power of Court in that behalf.

Abdul Bari v. Muhammad Rasheed Khan 1995 S C M R 851; Malik Yar Muhammad and others v. Muhammad Farooque Khan and others 2003 SCMR 767; Sultan Bibi v. Gul Baran PLD 1999 Quetta 56 and Haulsbury's. Laws of India, p.675 ref.

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

‑‑‑‑S. 144‑‑‑Application for restitution, granting of‑‑‑Essential conditions to be satisfied by Court stated.

In order to grant restitution, the Court has to satisfy itself with three conditions: (1) the restitution sought must be in respect of the decree or order, which has been reversed or varied; (2) the party applying for restitution must be entitled to benefit under reversing decree or order, and (3) the relief claimed must be properly consequential on the reversal or variation of the decree or order. In other words, there must be an erroneous judgment, the benefit of that erroneous judgment must have been received by one party and the erroneous decree must have been reversed. If these conditions are satisfied, the Court must grant restitution.

Under section 144, C.P.C., one acquires the right to seek restitution only when impugned decree is actually varied or set aside.

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

‑‑‑‑O. XIX, R.2‑‑‑Provision of O.XIX, R.2, C. P. C. ‑‑‑Scope‑‑‑Very limited‑‑‑Provision of O.XIX, R.2, C.P.C. is not substitute of regular trial‑‑‑Law does not authorize a party to resort to provision of O.XIX, R.2; C. P. C. , for cross‑examination, when parties have yet to lead evidence as same would amount to trial within trial.

Khawaja Shamsul Islam for Applicant.

Shaikh Mir Muhammad for Respondent/Plaintiff.

Adrian Ahmed for Respondents Nos. 1 and 2.

Dates of hearing: 14th, 16th and 19th May, 2003.

2004 Y L R 151

[Karachi]

Before Mushir Alam, J

ALLIED BANK OF PAKISTAN LTD.‑‑‑Decree‑Holder

Versus

TRISTAR SHIPPING LINES LTD. and others‑‑‑Judgment‑Debtors

Execution No.102 of 2000, decided on 30th May, 2003.

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

‑‑‑‑O. XXI, Rr.1 & 2‑‑‑Satisfaction, adjustment or discharge of liability‑‑­Procedure‑‑ Duty of Executing Court‑‑­Where any amount payable under decree was paid out of Court or where decree was adjusted in whole or in part to "the satisfaction of decree‑holder, Court would record decree‑holder certification‑‑‑Where such settlement was claimed in terms of O. XXI, R. 2 (2), C. P. C., then judgment-­debtor would inform the Court‑‑‑Court, after notice to decree‑holder, might record discharge, satisfaction or adjustment in whole or in part .as the case might be‑‑‑Where payment was not paid in accordance with O.XXI, R.1, C. F. C. , or where adjustment was not made in writing Court was not obliged to record satisfaction, adjustment or discharge of liability.

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

‑‑‑‑O.XXI, R.1(1)(c)‑‑‑Word "otherwise" as used in O.XXI, R.1(1)(c), C.P.C.‑‑­Connotation.

New Oxford Dictionary of English and Sardar Abdul Ghafoor v. Federal Land Commission PLD 1979 Lah. 375 fol.

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

‑‑‑‑O.XXI, R.2‑‑‑Payment to decree‑holder out of Court‑‑‑Validity‑‑‑Mere handing over possession of property mentioned in decree or shares script would not be sufficient in terms of O.XXI, R.2, C.P.C.‑‑‑Adjustment of decree either in whole or in part could only be recorded subject to satisfaction of decree‑holder.

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

‑‑‑‑O.XXI, Rr.1 & 2(2)(3)‑‑‑Adjustment of decree claimed through settlement arrived at out of Court‑‑‑Validity‑‑‑Executing Court in view of bar under O.XXI, R.2(2)(3), C. P. C. could not acknowledge any settlement arrived at except in the manner provided for under O.XXI, R.I., C.P.C.

Asim Mansoor for the Decree Holder.

Aziz‑ur‑Rehman for the Judgment-Debtors.

Date of hearing: 30th May, 2003.

2004 Y L R 163

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD HAKIM KHAN‑‑‑Applicant

Versus

SARDAR KHAN and others‑‑‑Respondents

Civil Revision No. 116 of 1992, decided on 27th March, 2003.

Specific Relief Act (I of 1877)‑-‑

‑‑‑‑Ss.8, 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration, perpetual injunction and possession‑‑‑Plea pf minority of one of the defendants was not taken by the plaintiff either before the Trial Court or before Appellate Court‑‑‑Said plea could not be taken before High Court under its revisional jurisdiction‑‑‑Plaintiff hart also failed to make City Survey Officer as party in the suit as according to plaintiff disputed property was mutated in the Record of Right in the year 1977 by the City Surveyor whereas Iqrarnama in question in respect of said property was allegedly executed in the year 1963, long after 14 years of execution of Iqrarnama‑‑­Plaintiff also having not prayed in his suit for cancellation of said entries, the very suit of plaintiff was barred under S. 42 of Specific Relief Act, 1877‑‑‑Plaintiff having failed to point out any illegality or irregularity which could justify High Court to reverse the concurrent findings of two Courts below in its revisional jurisdiction, revision petition was dismissed.

Mst. Shakooran v. Abdul Rashid through his L.Rs. and another 1993 CLC 1270; Abdul Khalique v. Administrator, M.G. Rawalpindi and others 1982 CLC 1837; National Insurance Corporation through Chairman v. Muhammad Sadiq 2000 CLC 1244; Nabi Bux and others v. Syed Mumtaz Ali Shah and another 2000 MLD 1318; Asadullah Khan v. Abdul Karim 1995 CLC 1889; Syed, Iftikhar‑ud-­Din Haider Gardezi and 9 others v. Central Bank of India Ltd. 1996 SCMR 699; Nabi Bux and 2 others v. Muhammad Ibrahim and 7 others PLD. 1976 Kar 882; Mamila Marry v. Sharif Mashin NLR 1979 Civil Lah. 542 and John through L.Rs. v. Abdul Majeed 2000 CLC 37 ref.

S. Manzar Alam for Applicant.

S. Bahadur Ali Shah for Respon­dents.

Date of hearing: 27th March, 2003.

2004 Y L R 170

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL HAYEE and others ‑‑‑Applicants

Versus

GHULAM MEHDI and others‑‑‑Respondents

Civil Revisions Nos.35 and 36 of 1998, decided on 23rd January, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss.12(2) & 115‑‑‑Concurrent judgments and decrees on plea of fraud and misrepresentation‑‑‑ Applicant under S.12 (2), C. P. C. had challenged the concurrent judgments and decrees passed by Trial Court and Appellate Court alleging that same were obtained by fraud and misrepresentation‑‑‑Said application having been rejected, applicant filed revision against rejection order‑‑‑High Court, after considering arguments of parties and perusing record, had found no substance in revision to interfere in judgments of Courts below‑‑‑Even otherwise revision filed by applicant was barred by time and no plausible explanation about such delay had been given by the applicant‑‑Revision was dismissed in limine.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; 2000 SCMR 346; Mst. Jamila Khatoon and another v. Mst. Tajannisa and others PLD 1984 SC 208; Mst. Maqbool Begum and others v. Ghullan and others PLD 1982 SC 46; Laxmishankar Harishanker Bhatt v. Yashram Vasta by Legal Heirs 1993 SCMR 2149; Muhammad Abdul Rehman v. Abdul Jabbar and others PLD 1962 Dhaka 665; Akhtar Ali Khan and another v. Settlement Commissioner Peshawar and 4 others 1989 SCMR 506; 1990 MLD 1633 and Munawar Sultana v. Ahsanullah Khan and others PLD 1966 Kar. 359 ref.

Abdul Fateh Malik for Applicants.

A. M. Mobeen Khan for Respondents Nos. 1, 2, 3 and C to G.

Abdul Stattar Chohan for Respondent. No.7.

Date of hearing: 15th November, 2002.

2004 Y L R 179

[Karachi]

Before Muhammad Afzal Soomro, J

Haji ABDUL RAZAQUE and others‑‑‑Petitioners

Versus

Mst. ZAHIDA BEGUM ‑‑‑Respondent

Constitutional Petition No.S‑623 of 2002, decided on 30th May, 2003.

(a) Administration of justice‑‑‑

‑‑‑‑Prime object of Court of law was to protect the interest of parties and technicalities would not be allowed to defeat the ends of justice.

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

‑‑‑‑S.15(2) (vii)‑‑‑Bona fide personal need of landlord ‑‑‑Ejectment application filed by landlady on ground of her bona fide personal need of shop in question, was resisted by the tenant contending that the shop was not required by her in good faith, but her demand was based in bad faith as she had other premises and that she simply wanted to enhance the rent‑‑‑Contention .of the tenant was repelled because it was the right of landlady to select any premises for her use or for the use of her son and tenant was not supposed to give advice to landlady in this behalf‑‑‑Plea of tenant that landlady wanted to enhance the rent and that on refusal of tenant, landlady had filed ejectment application, would also not be a valid ground to deny prayer of landlady on personal bona fide use of shop in question.

Keshavlal Lalhubhai Patel and others v. Lalbhai Trikumlal Mills Ltd. AIR 1958 SC 512; Haji Mitha Khan v. Mst. Nafees Begum and 2 others 1995 CLC 896; Ghulam Ali and 26 others v. Samail and 21 others 2002 CLC 1411; Abdul Rehman v. Mst. Khatoon and 2 others 1989 CLC 1979; Shahabuddin and others v. Mst. Mariam Bibi and others 1995 MLD 45; Muhammad Afsar Khan v. Khadim Hussain and 3 others PLD 1978 SC (AJ&K) 143; Murid Hussain and others v. Muhammad Sharif through his L.R. 1996 CLC 161; Syed Abdul Rasheed v. Mst. Tajunnisa 1982 CLC .954; Muhammad Kashif Kamal Siddiqui v. Mirza Farooq Baig 1990 MLD 1009; A.H. Alvi v. Muhammad Tariq PLD 2001 Kar. 389; Sher Afgan v. Shaikh Anjum Iqbal 1997 MLD 98; Mst. Fatima Bai v. Sheikh Muhammad Zaki and 6 others 1990 CLC 1064; Noor Ahmed and another v. Khawaja Imran and another 1988 CLC 1041; Mst. Nawab Khatoon v. Saddardin 1990 MLD 10196; Orient Pakistan (Pvt.) Ltd. v. Abdul Majid Karim 1992 MLD 58(1); Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Khawaja Muhammad Munawar v. Nisar Ahmed and 2 others 1985 CLC 1613; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480; Syed Khursheed Ali Jaffery v. Jamaluddin Siddiqui 1993 CLC 2511; Aamil Moin Farooqui v. Mst. Aasia Khalid and another 1997 MLD 3248; Qadir Bakhsh and 10 others v. Kh. Nizamuddin Khan and 4 others 2001 SCMR 1091; Mst. Saira Bai v Syed Anis-ur‑Rehman 1989 SCMR 1366; Harqon Nara and others v. Abdul Karim 1998 CLC 1273; Pak Sanitary Engineering Co. v. Mst. Sughra Bai through L.Rs. 2000 MLD 261; Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903 and Ishratullah Siddiqui v. Bhoy 1996 SCMR 1833 ref.

Abdul Qadir, Shaikh for Petitioners.

Abdul Naeem for Respondent No. 1.

Dates of hearing: 10th, 28th April and 2nd May, 2003.

2004 Y L R 192

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

ALL PAKISTAN TEXTILE MILLS ASSOCIATION and others‑‑‑Petitioners

Versus

PROVINCE OF SINDH through SECRETARY and others‑‑‑Respondents

Civil Petitions Nos.D‑730 of 1991, 2407 and 2679 of 1992, decided on 30th May, 2003.

Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S. 62(1)‑‑‑Constitution of Pakistan (1973), Arts. 77, 127 & 199‑‑‑Constitutional petition‑‑‑Increase in conservancy tax‑‑­Validity‑‑‑Authority, in purported exercise of power under S.62(2) of Sindh Local Government Ordinance, 1979, made increase in conservancy tax‑‑‑Petitioners, had been paying conservancy charges at the rate of 5% of annual rental value of the property, but through the impugned notification, Authority in purported compliance of directives of the Provincial Government, de-linked conservancy charges from net annual rental value and such charges were made payable at 50% of water charges‑‑‑Such increase was challenged on the ground that power to levy a tax, rate, toll or fee available to a Local Council was liable to be exercised only in accordance with Sindh Local Councils (Imposition of Taxes) Rules, 1980, but procedure provided under said Rules had not been adopted while imposing the impugned levy‑‑‑Validity‑‑‑Contention of petitioners was repelled because under S.62(1) of Sindh Local Government Ordinance, 1979, tax or fee was to be levied under direction of Government and such overriding provisions of 562(1) mandated the Chief Executive of the Local Council to issue notification in terms of such directions notwithstanding, anything contained in the Ordinance‑‑‑Words "under the Authority" in Art. 77 of Constitution, had clearly shown that Legislature could always authorize another institution such as Local Council to levy a tax‑‑‑When levy was in the nature of fee for service rendered, rates must necessarily be left to be determined by agency responsible for performing such services‑‑‑Since the levy in question could only be imposed for the purposes of Sindh Local Government Ordinance, 1979, which were clearly specified in the statue, sufficient guidelines did exist so as to forestall any challenge on the ground of excessive delegation‑‑‑Levy being only in the nature of fee for municipal services rendered, clear guidance existed to indicate that rates should have a reasonable nexus with value of services rendered‑‑‑Constitutional petitions were allowed to the extent that conservancy rates claimed by the Authorities w.e.f July, 1990 up to 5th August, 1992 were declared to be unlawful, but rates effected from 6th August, 1992 at the rate of 50% of water charges were held to be valid‑‑‑Authorities would be entitled to collect conservancy tax accordingly from the amount deposited by petitioners in the Court and remainder alongwith profits earned would be returned to petitioners.

U.S.A. v. Grinaud 220 US 506; Corporation of Calcutta v. Liberty Cinema AIR 1965 SC 1107; Devidas v. State of Punjab AIR 1967 SC 1895; AIR 1965 SC 1 107; East and West Steamship Company v. Pakistan PLD 1958 SC (Pak.) 41; District Magistrate, Lahore v. Raza Kazim PLD 1961 SC 178; Muhammad Ismail & Company v. Chief Cotton Inspector PLD 1966 SC 388; Province of East Pakistan v. Sirajul Huq Patwari PLD 1966 SC 854; Zaibtun Textile Mills v. Central Board of Revenue PLD 1983 SC 358; Government of N.‑W.l~.P. v. Rahimullah 1992 SCMR 750; Collector of Customs v. Shaikh Spinning Mills 1999 SCMR 1402; Benazir Bhutto v. President of Pakistan PLD 1992 SC 492 and Abdul Baqi Baloch v. State PLD 1968 SC 313 ref.

Muhammad Ali Sayeed and Khalil ur‑Rehman for Petitioners.

Makhdum Ali Khan, Attorney-­General for Pakistan and Sulleman Habibullah, Addl. A.‑G for Respondent No. 1.

Manzoor Ahmed for Respondent No.2.

Abrar Hassan and Abdul Karim Khan for Respondent No.3.

Date of hearing: 8th May, 2003.

2004 Y L R 201

[Karachi]

Before Mushir Alam, J

DARYA KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.391 of 2003, decided on 8th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, grant of‑‑­Accused was allegedly apprehended from thickly populated area; but all witnesses were Police Officials and no independent witness from locality was associated while effecting recovery of weapon and other incriminating articles‑‑‑Requirements of S.103, Cr.P.C. were not complied with‑‑­Offence against accused did not fall within prohibitory clause of S.497(1), Cr.P.C.‑‑­Accused was granted bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Bachal Tonyo, Addl. A.‑G.

2004 Y L R 206

[Karachi]

Before Ata‑ur‑Rehman and Azizullah M. Memon, JJ

HABIB alias HABIBUR REHMAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.219 and Criminal Appeal No.227 of 2001, decided on 14th April, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Motive‑‑‑Prosecution is under an obligation to prove the motive alleged by it, failure wherein adversely affects its case, benefit of which has to go to accused.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Sentence‑‑‑Motive having not been proved, capital sentence cannot be awarded to accused.

Amin alias Muhammad Amin Brohi v. The State 2001 PCr.LJ 845 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302/34/114‑‑‑ Appreciation of evidence‑‑‑Motive for the occurrence was not proved‑‑‑No ocular evidence was available against the accused‑‑‑Extra-­judicial confession allegedly made by accused before the police officials was inadmissible in evidence‑‑‑No evidence of entering into conspiracy by the accused to murder the deceased was brought on record‑‑‑Accused admittedly being known to the prosecution witnesses since before the incident, identification parade was of no material value‑‑‑Recovery of blood‑stained nylon rope in the case alone could not be made basis for conviction of accused‑‑­Occurrence according to the F.I.R. itself was an unseen incident‑‑‑Conviction of accused by the Trial Court was not based on sound reasons‑‑‑Accused were acquitted in circumstances.

Amin alias Muhammad Amin Brohi v. The State 2001 PCr.LJ 845; Muhammad Khan and another v. The State 1990 SCMR 1220; Muhammad Akram v. The State 2001 PCr.LJ 1300; Muhammad Aslam alias Shin v. The State 2001 PCr.LJ 86 and Haq Nawaz and others v. The State and others 2000 SCMR 785 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑-Qanun‑e‑Shahadat (10 of 1984), Art.37‑‑‑Confession before police inadmissible‑‑‑Any confession or extra-­judicial confession made by the accused before the police officials is inadmissible in evidence and no conviction can be based thereon.

Muhammad Akram v. The State 2001 PCr.LJ 1300 ref.

Mehmood A. Qureshi for Appellant (in Criminal Jail Appeal No.219 of 2001).

Syed Saeed Hassan Zaidi for Appellant (in Criminal Appeal No.227 of 2001).

Jawed Akhtar for the State.

Date of hearing: 27th March, 2003.

2004 Y L R 216

[Karachi]

Before Shabbir Ahmed and Azizullah M. Memon, JJ

GUL MUHAMMAD alias GULOO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appe41 No. 171, Confirmation Case No.6 and Criminal Appeal No.120 of 2000, decided on 31st May, 2003.

(a) Penal Code (XLY of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑­Prosecution evidence suffered from infirmities and improbabilities‑‑‑Conduct and behaviour of the prosecution witnesses at the time of occurrence did not inspire confidence‑‑‑Three eye‑witnesses 'had seen the accused throwing the pistol in a corner of the room after having fired the same on the deceased, yet they did not make any effort to catch him and instead allowed him to go away‑‑‑Motive in the absence of its details could neither be believed nor was proved by the prosecution‑‑‑Prosecution version was belied by medical evidence as the injury sustained by the deceased had excluded his possibility to, speak or to narrate the facts of the incident‑‑‑None of the independent witnesses was examined by the prosecution to support its case and the presumption was that had they been produced they would not have supported the case of prosecution, benefit of which was to be given to the accused‑‑‑Accused was acquitted in circumstances.

2000 SCMR 727; 2000 SCMR 919; 2003 SCMR 231; Modi's Jurisprudence (Pakistan Edition); Mukhtar Ahmed v. The State 2001 YLR 1673; Haq Nawaz and others v. The State and others 2000 SCMR 785 and Muhammad Khan and others v. The State 1999 SCM.R 1220 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Non­-production of independent witnesses‑‑­Effect‑‑‑Presumption‑‑‑Where despite availability of independent witnesses, none of them was produced to act as witness of incident, the presumption would be drawn that had they been produced they would not have supported the prosecution story and its benefit was necessarily to be awarded to the accused.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑­Principles‑‑‑Benefit of doubt‑‑‑Benefit of even a single doubt created by defence in the prosecution case would go to accused and he need not show that the prosecution case suffered from more than one doubts.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑­Quality of evidence and not its quantity has a bearing on the fate of the prosecution case.

Haq Nawaz and others v. The State and others 2000 SCMR 785 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑­Principles‑-Conviction of an accused must be based on unimpeachable evidence and certainty of his guilt, and any doubt arising in the case of prosecution must be resolved in his favour.

Muhammad Khan and others v. The State 1999 SCMR 1220 ref.

Mehmood A. Qureshi for Appellant.

Jawaid Akhtar State Counsel assisted by A. Shakoor Abbasi for the Complainant.

Dates of hearing: 7th and 21st March, 2003.

2004 Y L R 232

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Messrs SUBHANALLAH & COMPANY and 8 others‑‑‑Petitioners

Versus

CITY GOVERNMENT through City Nazim and another‑‑‑Respondents

Constitutional Petition No.D‑740 of 2002, decided on 30th September, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Writ of mandamus‑‑‑Allotment of plot‑‑‑Plot in question initially was allotted to petitioner-­Company at the price of Rs.15, 000 per sq. yd., but subsequently said rate was reduced to Rs.2,500 per. sq. yd. by the then Chief Minister‑‑‑Upon dissolution of Government led by the said Chief Minister allotment in favour of the company was cancelled and reference was filed against the then Chief Minister and the Managing Director of the company regarding undue favour accorded to the company by reducing rate of plot in question‑‑‑Company having agreed to pay price of plot according to original rate, proceedings against the company were dropped and on making payment according to original rate, allotment was restored in its favour‑‑‑Authority, despite receiving payment of amount which covered difference between initial market rate and amount earlier paid by the company on reduced rate, did not make formal allotment to the company‑‑‑High Court observed that there was no reason to prolong the agony of the Company in leaving them at the mercy of officers of Authority and directed them to allot the plot in question to petitioners within specified period.

Mansoor‑ul‑Arfin for Petitioners.

Manzoor Ahmad for Respondents.

Dr. Kazi Khalid Ali, Addl. A.‑G. Sindh.

2004 Y L R 234

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD KHAN KALHORO and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1553 of 2002, decided on 25th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.395/34‑‑‑Bail, grant of‑‑‑Delayed identification test held after twelve days of the arrest of accused had raised doubt about their false involvement in the case‑‑­Remand order showed that accused had been maltreated‑‑‑Certain case diaries were in contravention of the prosecution case‑‑­No recovery was made from the accused‑‑­Accused were in custody for the last 34 months‑‑‑Bail was granted to accused in circumstances.

Mahmood A. Qureshi for Applicants.

Habibur Rashid for the State.

Date of hearing: 25th April, 2003.

2004 Y L R 235

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

MUHAMMAD IRFAN‑‑‑Petitioner

Versus

PROVINCIAL GOVERNMENT OF SINDH through Secretary, Housing and Town Planning and 4 others‑‑‑Respondents

Constitutional Petition No.D‑1038 of 2001, decided on 16th September, 2003.

Administration of justice‑‑‑

‑‑‑‑When law confers functions upon a public Authority, such functions must be discharged within a reasonable time.

Mansoorul Arfin for Petitioner.

Dr. Qazi Khalid Ali, Addl. A.‑G., Sindh for Respondent No.1.

S. Muzaffar Imam for Respondent No.2.

Manzoor Ahmad for Respondent No.3.

Anwar Ali Shah for Respondent No.4.

2004 Y L R 236

[Karachi]

Before Muhammad Ashraf Leghari, J

MEHMOOD HUSSAIN ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Special Criminal Bail Application No.2 of 2003, decided on 13th May, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Customs Act (IV of 1969), S.156 (1) (8) (14) (9)‑‑‑Bail, grant of‑‑­Documentary evidence had been placed before the Court to show that the accused had never absconded and was available in the city serving in an Electronic Company‑‑‑Accused was in custody for the last more than three months‑‑‑Prosecution had not opposed the bail application‑‑‑Bail was allowed to accused in circumstances.

Mahmood A. Qureshi for Applicant.

Mahmood Alam Rizvi, Standing Counsel.

2004 Y L R 238

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD ASIF‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.496 of 2003, decided on 5th May, 2003.

Criminal Procedure Code (V of 1898)---

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/147/148/149‑‑‑Bail, grant of‑-­Accused had received serious injuries during the occurrence and was admitted in the hospital‑‑‑Accused was even unable to speak on account of paralysis‑‑‑Injured witness had stated in the Court that they tad compromised with the accused and had no objection to the grant of bail to him‑‑Accused was admitted to bail in circumstances.

Mahmood A. Qureshi for Applicant.

Javed Akhtar, State Counsel.

2004 Y L R 249

[Karachi]

Before S. Ahmed Sarwana and Maqbool Baqar, JJ

FAZAL ‑‑‑ Petitioner

Versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Constitutional petition No.D‑826 of 2001, decided on 13th May, 2003.

(a) Government Grants Act (XV of 1895)‑‑‑

‑‑‑‑S. 2‑‑‑Land Grant Policy dated 20‑11‑1972, Condition 24‑‑‑Land Acquisition Act (I of 1894), S.23‑‑‑Land in possession of grantee‑‑‑Acquisition of such land by Government‑‑‑Method and mode for determination of amount payable to grantee‑‑‑Not exactly the same as compensation payable under Land Acquisition Act, 1894‑‑‑Amount determined according to guidelines laid down in Condition No.24 of Land Grant Policy would be less than compensation payable under Land Acquisition Act, 1894.

(b) Government Grants Act (XV of 1895)---

----S. 2---Land Grant Policy dated 20-11-1972, Condition 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Land granted to petitioner-- Acquisition of land---Petitioner claimed compensation as determined under award---Respondent alleged award having been obtained by petitioner in collusion with Land Acquisition Officer, who had been suspended and relieved from service--­Validity---Petitioner's claim had been denied and challenged by respondent--­Dispute regarding validity of award and mode of determination of compensation had arisen, which could not be decided without recording evidence---Disputed questions of fact could not be decided in a petition filed under Art. 199 of the Constitution---High Court dismissed Constitutional petition as being misconceived.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed questions of fact---Could not be decided in a petition filed under Art. 199 of the Constitution.

Ghulam Rasool Qureshi for Petitioner.

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

Hakim Ali Siddiqui for WAPDA.

Date of hearing: 22nd April, 2003.

2004 Y L R 252

[Karachi]

Before S. Ahmed Sarwana and Maqbool Baqar, JJ

Ch. GHULAM NABI and 2 others---Petitioners

Versus

GOVERNMENT OF SINDH through Chief Secretary and 3 others---Respondent

Constitutional Petition No.D-781 of 2001, decided on 6th May, 2003.

(a) Natural justice, principles of---

----No body should be condemned unheard.

(b) Establishment of the Office of the Ombudsman for the Province of Sindh Ordinance (V of 1991)---

----S.32---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Repre­sentation to Governor against order of Ombudsman---Acceptance of representa­tion without giving personal hearing to the petitioner---Validity---High Court set aside impugned order with observations that petitioner would be at liberty to file written comments/reply to such representation after receipt of its copy.

Eijaz Ali Hakro for Petitioners.

Masood Noorani, Addl. A.-G.

Date of hearing: 6th May, 2003.

2004 Y L R 254

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

ABD-E-ALI NAFAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.567 and 548 of 2003, decided, on 18th June, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 420/468/471/34---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5(7) --- Bail, grant of---Trial Court had refused bail to accused on complete misreading of the material on record---Judicial Officers were expected to apply their minds with greater care and circumspection in the matters involving liberties of citizens---Accused were admitted to bail in the amount of Rupees one million each with P.R. bond in the like amount, as suggested -by counsel for the accused, to the satisfaction of the Trial Court---Such order was not passed because the subject of S.5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, appeared to secure the interest of the Bank and as long as security for recovery of the amount allegedly misappropriated was available there was no need to put further burden on the accused in violation of S. 498, Cr. P. C.

Muhammad Saleem Thepdawala for Applicant (in Criminal Bail Application No.567 of 2003).

S. Muhammad Nehal Hashmi for Applicant (in Criminal Bail Application No.548 of 2003).

Khurshid A. Hashmi, Deputy Attorney-General for the State.

Date of hearing: 18th June, 2003.

2004 Y L R 268

[Karachi]

Before Azizullah M. Memon, J

UNION COUNCIL, BOLHARI through Nazim at Balhari---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Department of Labour, Karachi and 3 others---Respondents

Constitutional Petition No.S-506 of 2002, Miscellaneous Applications Nos. 1299 and 1300 of 2003, decided on 17th November, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1---Review--­Review of judgment passed in Constitu­tional petition---Case-law pronounced by Supreme Court had not been cited for consideration at the time of passing judgment under review---High Court accepted review application and set aside judgment under review being contrary to decision of Supreme Court.

Rasool Bux M. Unar for Petitioner.

Masood A. Noorani, Addl. A.-G. for Respondents Nos. 1 and 2.

Abdul Ghani Khan for Respondent No. 3.

Nemo for Respondent No.4 despite Notice.

2004 Y L R 326

[Karachi]

Before Khilji Arif Hussain, J

Messrs SINGER PAKISTAN LIMITED---Petitioner

versus

Mst. ANWARI BEGUM and 2 others ---Respondents

Constitutional Petition No.S-145 of 2003 decided on 25th June, 2003.

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

----S.14---Ejectment of tenant---Right of widow---Scope---Even if the property is let­out by landlady, the same does not disentitle her to file the application under S.14 of the Sindh Rented Premises Ordinance, 1979, provided she has not let­out the premises after she became widow.

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

----Ss.14 & 15(vii)---Ejectment of tenant--­Bona fide personal need of landlord--­Terms 'need' and 'requires the premises in good faith'---Proceedings under Ss.14 & 15(vii) of Sindh Rented Premises Ordinance, 1979---Distinction---Summary remedy to specified classes of persons like retired person, widow or orphan has been provided in S.14 of Sindh Rented Premises Ordinance, 1979, to get possession of the premises owned by them if they need the same for personal use---Right to seek ejectment by such specified persons has been curtailed if they have let-out the premises -after the retirement or attaining the age of sixty years or on becoming widow or orphan or they were occupying other premises in the same locality--­Landlord can ask for ejectment of tenant under S.15(vii) of Sindh Rented Premises Ordinance, 1979, if he requires the premises in good faith for his own occupation or for the occupation or use of his spouse or any of his children--­Legislature in its wisdom has not used the word 'good faith' in S.14 of Sindh Rented Premises Ordinance, 1979, and intentionally used the word 'need'---Term `need' used in S.14 of Sindh Rented Premises Ordinance, 1979, cannot be equated with the term 'required the premises in good faith' used in S.15 of Sindh Rented Premises Ordinance, 1979--­Retired person/widow/orphan or a person aged over sixty years normally cannot be asked to establish his bona fide requirement on the same scale as it is required under S.15 of Sindh Rented Premises Ordinance, 1979.

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

----S.14---Constitution of Pakistan (1973), Art. l99---Constitutional petition --­ Ejectment of tenant ---Maintainability--­ Need of premises by widow---Filing of ejectment petition without joining „other legal heirs as party---Widow sought ejectment of tenant on the ground of personal need after the death of landlord--­ Both the Courts below had passed eviction order against the tenant---Plea raised by the tenant was that the petition was not maintainable as the same had been filed without joining the other legal heirs--­ Validity---Summary remedy was provided in S.14 of Sindh Rented Premises Ordinance, 1979, to a widow to get the possession of the premises from tenant---No restriction was imposed on the right of widow to file the application without joining the other legal heirs of the deceased--­Widow, before filing ejectment application, did not have to file no objection of the other legal heirs---None of the legal heirs had come forward to object to the maintainability of the case filed by the widow being one of the legal heirs---Other legal heirs had consented for filing of the case by the widow as one of the co-sharers in the property---Tenant had not produced even photograph of the premises to prima facie establish that on the ground floor there were more than two shops and one of them was in occupation of the widow---Eviction orders passed by the two Courts below were maintained and Constitutional petition was dismissed in limine.

Arshad Butt v. Manzoor Ahmed 1992 CLC 723; Dr. Roshan H. Nanji v. Mst. Razia Khatoon 1984 CLC 2343; Mst. Syeda Hyderi Khatoon v. Aftab Ahmed 1986 CLC 1534; Mst. Jamila Lateef v. Saim Ahmed Khan 1988 SCMR 895; Ghulam Muhammad v. Zahir Ahmed Khan 1986 CLC 681; Messrs Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi PLD 1985 Kar. 201; Mst. Amina v. Mehar Ghulam Dastagir PLD 1978 SC 220 and Ghaffar Impex, Karachi v: Mst. Hajira 1998 MLD 788 ref.

S. Jahangir Hussain Shah for Petitioner.

Abdul Hai Khan Pathan for Respondent No. 1.

2004 Y L R 344

[Karachi]

Before Muhammad Ashraf Leghari, J

YAHYA POLARI RANOR---Petitioner

versus

Mst. SOFIA AFTAB---Respondent

Constitutional Petition No. 1128 of 2002, decided on 19th August, 2003.

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

----Ss.15 & 18---Constitution of Pakistan (1973), Art.199---Default in payment of monthly rent---Change of ownership notice, non-receipt of---Tenant paid rent up to June, 1996 and thereafter stopped paying the rent up to October, 1996---Tenant, in the year 1997, sent money orders and then started depositing the rent before Rent Controller in the name of the new owner--­Ejectment petition was dismissed by the Rent Controller but Appellate Court allowed the appeal and eviction order was passed---Plea raised by the tenant was that no notice under S.18 of Sindh Rented Premises Ordinance, 1979, was given to him after change of ownership ---Validity--­Default was already committed when the tenant had failed to pay rent till October, 1996---Tenant had already paid rent to the new owner and had recognized as her landlady---Judgment passed by the Appellate Court needed no interference by High Court under the Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Muhammad Nawab and 4 others v. Postmaster General, Karachi and 2 others 1990 CLC 1708; Ghayasuddin Ahmed v. Abdul Wali 1986 CLC 1513; Mubarik alias Mubarik Hussain and 3 others v. Mst. Soofia Aftab 1997 MLD 923; Mazharul Islam v. Mst. Mafia PLD 1991 SC 835 and Mehar Khan v. Jamil Ahmed Khan and another 1989 CLC 853 ref.

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

----Ss.15 & 18---Ejectment of tenant--­Change of ownership---Effect---If during pendency of ejectment proceedings on the ground of default, the property is sold, the purchaser can continue to prosecute such proceedings for his benefit---Ejectment petition does not abate in circumstances.

Mazharul Islam v. Mst. Mafia PLD 1991 SC 835 ref.

I. H. Zaidi for Petitioner.

Ashiq Hussain for Respondent.

Date of hearing: 19th August, 2003.

2004 Y L R 353

[Karachi]

Before Muhammad Ashraf Leghari, J

PAK SPORTS WRITER FEDERATION---Petitioner

versus

SARDAR KHAN RANOR---Respondent

Revision Application No. 169 of 2003, decided on 4th August, 2003.

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

---S.115 & O. VII, R.II---Rejection of plaint---Defendant, instead of filing written statement filed application under O. VII, R.11, C.RC.---Plaintiff filed certain documents alongwith his reply to such application---Contention of defendant was that such documents should have been produced alongwith the plaint, thus, their subsequent production had no evidentiary value---Validity---Plaintiff was not supposed to place all his documents, which he wanted bring through evidence---Plaintiff produced documents, denied by the defendant---Such documents could not be rejected straightaway which were to be accepted or rejected after, some evidence was adduced by the parties--­Contention of the defendant had no force.

Mst. Begum Jan alias Maim Jan v. Muhammad Latif Khan and 4 others 1999 MLD 1236 and Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279 ref:

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

---O. VII & R.11---Rejection of plaint--­Contents of plaint only would be taken into consideration for such purpose.

Ch. Abdul Rashid for Applicants.

Dr. Farogh Naseem for Respondent.

Date of hearing: 4th August, 2003.

2004 Y L R 356

[Karachi]

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

SHAUKAT ALI ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. J/133 of 1999, decided on 19th March, 2001.

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

----S.9---Appreciation of evidence---Delay of two months and one day in sending the substance recovered from the accused to the Chemical Expert was not explained--­Constable who had taken the said substance to the Chemical Laboratory had not been examined by the prosecution at the trial--­Time of incident given by the prosecution was different from the time mentioned in the charge framed against the accused---Weight of narcotics mentioned by the prosecution did not tally with the weight of the same given in the Chemical Report---Failure of the prosecution to produce in Court the Entry No. 6 of the Daily Diary of the Police Station had led to the inference that the police party did not leave the police station and every thing had been done at the police station---Despite the place of incident being a thickly populated area police had not associated two respectable Mashirs of the locality in recovery proceedings---Quantity of narcotics remaining with the police was not produced in Court---Entire prosecution case was replete with material contradictions and doubts---Accused was acquitted in circumstances.

2000 PCr.LJ 1360; 1996 MLD 428; 1996 PCr.LJ 1410; 1998 PCr.LJ 1368; PLD 1996 SC 574 and 1995 SCMR 1345 ref.

Syed Madad Ali Shah Appellant.

Aslam Parwaiz, Prosecutor for the State.

Date of hearing: 15th March, 2003.

2004 Y L R 373

[Karachi]

Before Anwar Zaheer Jamali, J

KAMARUDDIN VALIKA---Plaintiff

versus

GOVERNMENT OF SINDH and others---Defendants

Suit No.806 of 1987 and Civil Miscellaneous Application No.4161 of 2003, decided on 21st August, 2003.

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

----S. 12---Civil Procedure Code (V of 1908), O. VII, R.11(a)---Rejection of plaint---Cause of action---Suit instituted plaintiff was trot mere)), a writ for specific performance but in alternative claim of compensation/damages had also been set up by the plaintiff---Plaintiff had given in the plaint necessary details regarding correspondence between him and some of the defendants which prima facie showed existence of some commitment/agreement between them about transfer of some land in favour of plaintiff on payment of sale consideration at the rate as mentioned in the documents annexed with the plaint--­Defendants sought rejection of plaint on the ground that the plaint did not disclose any cause of action against them---Validity---At such early stage it could not be said that plaintiff had no cause of action for filing the suit for specific performance---Even if plaintiff failed to prove his case for specific performance of contract against the defendants, still, a decree for compensation/damages could be passed against them---High Court declined to reject the plaint.

Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K) 102; Hakeem Muhammad Boota and another v. Habib Ahmed and others PLD 1985 SC 153 and Allah Rakhio v. Khus Mir Khan and 4 others 1986 CLC 1828 ref.

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

----O. VI, Rr. 5, 17 & O. VII, R. 3--­Incomplete description of property---Suit, maintainability of---Effect---If upon perusal of plaint the Court finds its contents insufficient to identify the suit property then for that purpose recourse can be had to the provisions of O. VI, R.5, C. P. C. by calling upon the plaintiff to provide such better particulars which may enable the Court to identify the suit property or even the provisions of O. V1, R.17, C. P. C. can be followed in appropriate cases for this purpose.

United Bank of India Ltd. v. Azirannessa Bewa PLD 1965 SC 274 ref.

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

----O. VI, Rr. 5, 17 & O. VII, Rr. 3, 11--­Rejecting of plaint--Incomplete description of property---Defendants sought rejection of plaint on the ground that description of suit property was incomplete ---Validity--­Plaintiff could avail benefit of provisions of O. VI, Rr.5 & 17, C. P. C. or could also provide better particulars of suit property in his evidence---Plaint could not be rejected due to non-compliance of the provisions of O. VII, R. 3, C. P. C. ---Plaint was not rejected in circumstances.

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

----O. VII, R.11---Rejecting of plaint--­Limitation---Joining of a defendant as party to the suit at late stage of the proceedings---Contention of such defendant was that the suit against him was time­barred and the same was to be rejected--­Validity---Point of limitation was to be examined with reference to the facts that when plaintiff acquired knowledge of the relevant facts which constituted cause of action against such defendant for impleading him as party to the suit and what relief was sought against him in the suit and not with reference to merely the date of institution of the suit---If some defendant had been joined only as pro forma or proper party to the suit to avoid multiplicity of litigation and no relief was sought against him then the suit would not fail against such defendant due to the mere delay in adding his name in the array of defendants---Plaint was not rejected in circumstances.

A.H. Mirza for Plaintiff.

Zafar Iqbal for Defendants Nos. l to 4.

Chowdhary Muhammad Jamil for Defendant No.5.

Date of hearing: 21st August, 2003.

2004 Y L R 400

[Karachi]

Before Sarmad Jalal Osmany, J

Mst. FATIMA---Applicant

versus

ABDUL MAJID and 2 others---Opponents

Criminal Miscellaneous Application No. 136 of 1997, decided on 26th July, 1999.

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

----Ss. 497/498---Bail---Assessment of evidence---Principles---Exercise of sifting the evidence at bail stage by the Court being a preliminary one is restricted to a tentative sifting of evidence on the record as opposed to an elaborate sifting of the same.

Khalid Javed Gillan v. The State PLD 1978 SC 256 and Saeed Akbar v. Gul Akbar 1996-SCMR 931 ref.

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

----S. 497(1)---Bail---Cases falling in prohibitory clause---Court in cases where the prescribed punishment is ten years, life imprisonment or death, has to be very careful while granting bail to the accused--­Bail in such cases being not a matter of right Court has to give a definite finding that the case is one of further inquiry on the basis of which the accused, prima facie, cannot be connected with the crime.

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

----S. 497(5)---Cancellation of bail--­Commencement of trial---Effect---Fact that the accused's trial had commenced was no ground for disregarding applications for cancellation of bail in appropriate cases.

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

----S. 497(5)---Penal Code (XLV of 1860), 5.302/34---Cancellation of bail--Incident was one of broad daylight murder which was witnessed by at least two eye-witnesses who although were related to the complainant, their evidence was as good as of any other witness when no independent eye-witnesses were available---Trial Court had erred in sifting the evidence by going into the merits of the case----Contradiction between the ocular testimony and medical evidence, reliability of the eye-witnesses and possibility of false implication of accused based on enmity between the parties, were the issues which could safely be left to the Trial Court to appreciate at the trial itself and not at the bail stage--­ Accused, prima facie, was connected with the crime and his case did not require further inquiry---Bail allowed to accused by Trial Court was cancelled in circumstances.

Muhammad Sharif v. Shafqat Hussain 1999 SCMR 338; Muhammad Wasi Qureshi v. Abdul Majeed 1993 MLD 212; Muhammad Akbar v. Shahzaman PLD 1993 Kar.55; Imran v. The State 1998 PCr.LJ 1022; Ibrahim and others v. The State 1982 SCMR 434; Muhammad Afzal v. Ghulam Haider 1984 PCr.LJ 590; Manzoor Hussain v. Talib Hussain 1991 SC,MR 1894; Shoib Mahmood Butt v. Iftikhar ul Haq 1996 SCMR 1845; Muhammad Usman Mahar v. The State 1997 PCr.LJ 1009; Rahim Buksh v. The State 1997 PCr.LJ 1450; Ali Nawaz v. Ali Muhammad 1997 PCr.LJ 1897; Mst. Badari Jamila v. Khushdil Khan 1998 PCr. LJ 1652; Abdul Hayee v. The State 1996 SCMR 555; Muhammad Mansha v. The State PLD 1996 SC 229; Anwar Hussain Shah v. Muhammad Mansha 1996 PCr.LJ 839; Haji Ghullu Khan v. Gul Draz Khan 1995 SCMR 1765; Muhammad v. The State PLD 1996 Kar. 483; Khan Dad v. Khudai Mir 1988 SCMR 1919; State v. Rashid Ahmed 1988 SCMR 1129; Mst. Irshad Begum v. Muhammad Afzal 1985 SCMR 1691; v. Muhammad Rafique PLD 1989 SC 585; Muhammad Sadiq v. The State 1980 SCMR 203; Mian Dad v. The State 1992 SCMR 1418; Khushi Muhammad v. Rab Nawaz 1996 SCMR 172; Sharif Khan v. Seenar Gul 1990 PCr.LJ 142; Mir Muhammad v. The State 1995 SCMR 610; Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Ghulam Nabi v. The State 1998 PCr.LJ 968; Muhammad Rahim v. The State 1996 PCr. LJ 1165; Nazar Muhammad. v. The State 1977 PCr.LJ 277; Qazi Ashiq Hussain v. The State 1996 PCr.LJ 205; Khalid Javed Gillan v. The State PLD 1978 SC 256 and Saeed Akbar v. Gul Akbar 1996 SCMR 931 ref.

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

----Ss. 497/498---Bail---Elaborate sifting of evidence---Necessity and propriety--­Conflict in the ocular account and the medico-legal evidence can be given due weight by the Trial Court after recording evidence which cannot be assessed in depth at bail stage.

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

----S. 497(2)---Bail--- "Further inquiry "--­Connotation--- "Further inquiry" is a question which should have a nexus with the result of the case and the same should show or tend to show that the accused is not guilty of the crime with which he is charged for which purpose a preliminary inquiry has to be undertaken whereby a tentative assessment of the material on the record is to - be made to reach such conclusion---Such exercise is entirely different as opposed to appreciation of evidence which is the sole prerogative of the Trial Court.

Shoib Mahmood Butt v. Iftikhar ul Haq 1996 SCMR 1845 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Cancellation of bail---Firing in the air only was alleged against the accused---Fact regarding common intention could only be established at the trial by the Trial Court---Impugned order granting bail to accused did not warrant any interference---Application for cancellation or bail allowed to accused by High Court was dismissed accordingly.

Abdul Hai M. Memon for Applicant.

S.Madad Ally Shah for Opponents.

Anwar Ansari for the State.

Date of hearing: 19th March, 1999.

2004 Y L R 416

[Karachi]

Before S. Ahmed Sarwana, J

TAHIR A. KHAN---Appellant

versus

Messrs UNITED AIR TRAVELS LTD. and others-- -Respondents

First Appeal No.43 of 1994, decided on 24th February, 2003.

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

----O. XXXVII, R.4---Limitation Act (IX of 1908), Art. 181---Decree, setting aside of--­Limitation---No period of limitation having been provided in Limitation Act, 1908, for filing application under O.XXXVII, R.4, C. P. C. ; therefore, Art.181 of Limitation Act, 1908, which provides a period of three Years was applicable in respect of such application.

Habib Bank Limited v. Musarat Ali Khan PLD 1987 Kar. 86 rel.

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

-----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), Ss. 79 & 80---Suit on the basis of negotiable instruments--­Recovery of interest---Scope---Plaintiff, in all suits filed on the basis of bills of exchange, Hundis, or promissory notes, is entitled to payment of the principal sum due on the instrument and interest calculated in accordance with the provisions of Ss. 79 & 80 of Negotiable Instruments Act, 1881, as the case may be.

Habib Bank Ltd. v. Kaycee Corporation PLD 1980 Kar. 143 ref.

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

----O.XXXVII, Rr.3 & 4---Decree, setting aside of---Special circumstances---Leave to defend the suit, grant of---Passing of decree against Director of limited company--­Director of the company sought setting aside of decree on the ground that he could not be made responsible for the debts of the company---Trial Court dismissed the application under O.XXXVII, Rr.3 & 4, C. P. C.---Validity---Director of the company could not be made responsible for the debts of the company unless he had in any way guaranteed the payment of the same--­Special circumstances had been made out which had been overlooked by the Trial Court---Judgment and decree passed by the Trial Court was contrary to established law, without jurisdiction and the same was set aside---Leave to defend the suit was granted to the Director of the Company and the case was remanded to Trial Court for decision on merits---Appeal was allowed accordingly.

Muhammad Yousuf v. Abdul Majeed PLD 1993 Lah. 244 and Haji Khuda Bux Nizamani v. Election Tribunal and others C.P. No.D-1605 of 2002 rel.

I.H. Zaidi for Appellant.

M. Ilyas Khan for Respondent No. l (absent).

Dates of hearing: 3rd and 24th February, 2003.

2004 Y L R 704

[Karachi]

Before Ghulam Nabi Soomro, J

NASIR HUSSAIN SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 688 of 2002, decided on 8th January, 2003.

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

-----S.497---Penal Code (XLV of 1860), S.336---Anti-Terrorism Act (XXVII of 1997), S.6(b)---Bail, refusal of --Accused had allegedly caused eleven injuries on the person of the student girl by throwing acid on her face while she was on her way to school---Act of accused, besides causing severe burns on the face of the victim girl, had disfigured her permanently and must have created fear, insecurity and anguish in the minds of a great section of public particularly the entire community of girl students and their parents---Case against accused fell within the ambit of S.6 of the Anti-Terrorism Act, 1997, and was triable by Anti-Terrorism Court---Bail was declined to accused in circumstances .

Tariq Bashir v. The State PLD 1993 SC 34; 1997 SCMR 449; Cr. P.L.A. No.112-P of 2002 and Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 ref.

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

----S.6(b)---Terrorist act---Intent and import---Commission of a terrorist act might have not necessarily created panic and terror among the people and it had to be seen whether the same had the tendency to create sense of fear or insecurity in the minds of the people or any section of the society and its psychological impact thereon---Terrorist act also need not be necessarily committed within the view of general public---An act having taken place in a barbaric and gruesome manner creating fear and insecurity would certainly come within the purview of the Anti-­Terrorism Act, 1997.

Cr. P.L.A. No. 112-P of 2002 and Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 ref.

Sajjad Hussain Kolachi for Applicant.

Abdul Sattar Soomro for the State.

Date of hearing: 8th January, 2003.

2004 Y L R 772

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD SIDDIQUE and others---Applicants

Versus

Haji MUHAMMAD URIS and another---Respondents

Criminal Miscellaneous No.75 of 2003, decided on 10th October, 2003.

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

----S. 190(1)---Cognizance of offences by Magistrate---Trial Court is competent to call or to summon any person and to join him as an accused during the trial if sufficient material connecting him with the alleged offence is available on record.

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

----Ss. 190(1) & 561-A---Penal Code (XLV of 1860), Ss.337-A(i)/337-A(iii)/337-L(2)/ 504---Quashing of revisional order of Sessions Court---Trial Court was under an obligation to dilate upon each and every aspect of the matter falling within its jurisdiction while taking cognizance of the offence and summoning the accused placed in Column No. 2 of the Challan---Recording of evidence at the first instance to ascertain as to whether a prima facie case was made out against the accused was not required by law---Trial Court while passing the order in respect of issuance of process to accused had lost sight of such aspect of the matter--­Sessions Court had rightly set aside the said order with the direction to implead the accused let off by the police during investigation in the case to face the trial regarding the allegation contained in the prosecution case---Impugned order was based on proper appreciation of prosecution case and did not suffer from any illegality or infirmity---Petition was dismissed accordingly.

Inayatullah v. State 1999 PCr.LJ 731; Shah Murad and others v. State Criminal Petition No.105-K of 2002; Muhammad Sharif v. State 1997 SCMR 304; Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Falak Sher v. State PLD 1967 SC 425; Muhammad Akbar v. State 1972 SCMR 335; Saeed Muhammad Shah v. State 1993 SCMR 550; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain 1986 SCMR 1736; Khusbakhtur Rehman v. State 1985 SCMR 1314; Muhammad Hanif v. State 1979 PCr.LJ 1078; Nur Illahi v. State PLD 1966 SC 708 and Waqarul Haq alias Nithoo v. State 1988 SCMR 1428 ref.

Ali Nawaz Ghanghro for Applicants.

Muhammad Saleem JN Jessar for Respondent No. 1.

Muhammad Bachal Tonyo, Addl. A.-G.

Date of hearing: 17th September, 2003.

2004 Y L R 789(1)

[Karachi]

Before Sarmad Jalal Osmany, J

SHEHZAD RAZA and others---Petitioners

Versus

ATIF ZESSHAN---Respondent

Revision Petition No.45 of 2003, heard on 30th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 439---Revision petition---Application moved by the petitioners under S.249-A, Cr. P. C. had been dismissed by the Trial Court through the impugned order--­Respondents mentioned in the order at least, prima facie, being not accused persons could not be arrayed as accused in the criminal complaint, for the simple reason that they-were not the respondents in the main case in which the applicant was reinstated---Notice was issued by High Court in circumstances---Proceedings before the lower Court were also suspended in the meanwhile.

Muhammad Ali Khan, Advocate.

Date of hearing: 30th September, 2003.

2004 Y L R 806

[Karachi]

Before Zahid Kurban Alvi and Maqbool Baqar, JJ

GHULAM RASOOL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-764- of 2003, decided on 5th December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/364 436/427/109/148/149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)--­Bail---Dacoits, according to F.I.R. had acted on the instructions of the accused and three other persons who had abetted the offence being supervisors of the dacoits--­Accused was charged by the complainant only with the said accusation and until such specific allegation was proved against accused it was not proper for him to be behind the bars on a mere allegation- --Bail was allowed to accused in circumstances.

Muhammad Ayaz Soomro for Applicant.

Ubaidullah Awan for the State.

2004 Y L R 814

[Karachi]

Before Muhammad Afzal Soomro, J

QUTBUDDIN and 5 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 289 of 2002 decided on 6th March, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/324/364/396/148/149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)--West Pakistan Arms Ordinance (XX of 1965), S.13-D---Pre-arrest bail, confirmation of--­Accused though armed with Klashnikovs had allegedly fired in the air or if fired at the complainant party the same did not hit any body---Nothing incriminating was recovered from the accused---Case being of two versions it was yet to be determined as to which party had acted in aggression--­Eye-witnesses in their statements under S.164, Cr. P. C. had not supported the prosecution case---State Counsel had not opposed the bail application--- Interim bail granted to accused was confirmed in circumstances.

Amir v. State PLD 1972 SC 277; Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682; Muhammad Shafi v. Hakim Ali 1978 SCMR 346; Ghulam Farooq and another v. State PLD 1989 Kar. 37; Zaheeruddin and others v. State PLD 1990 SC 959; Shaheeb Mahmood Bhutt v. Iftikharul Haq 1996 SCMR 1845; Ibrahim and others v. State 1997 PCr.LJ 762; Maqsood Ahmed v. State 199? PCr.LJ 834; Awal Gul and another v State 1999 PCr.LJ 1731; Muhammad Sadiq v. Tariq Mahmood and others 1999 SCMR 2621, Muhammad Murad v State 2002 PCr.LJ 1051 and Criminal Bail Application No.501 of 2002 (unreported) ref.

Imdad Ali Awan and Rana Asif Kamal for Applicants.

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

2004 Y L R 843

[Karachi]

Before Sarmad Jalal Osmany and S. Ali Aslam Jafri, JJ

MUHAMMAD YOUSAF---Applicant

Versus

THE STATE---Respondent.

Criminal Bail Application No. 586 of 2003, decided on 11th December, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/337/148/149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Ground of hardship---Charge was not framed for more than two years---No progress in the case was made by the Trial Court despite the direction of High Court to examine at least the material witnesses within a period of three months---Case diaries had revealed that the prosecution witnesses despite being fully aware of the dates of hearing, were not attending the Court and the process was always being returned un-served---Accused, thus, was being deprived of his right of conclusion of trial without any unnecessary delay and it was a case of hardship---Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Bachal Tonyo, Addl. A.-G.

2004 Y L R 870

[Karachi]

Before Ghulam Nabi Soomro, J

GHULAM ALI MALGHANI---Applicant

Versus

THE STATE---Respondent

Bail Application No. 480 of 2003, decided on 24th November, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Delay in trial--­Accused was stated to be in continuous custody for the last two years, four months and twenty days---During this period only two formal witnesses had been examined--­Despite coercive process of bailable warrants having been issued against the prosecution witnesses for more than one year, they did not appear in the Court and their conduct was indicative of their ulterior motive to see the accused in jail for as much time as possible---State Counsel had conceded to the grant of bail to the accused---Bail was allowed to accused in circumstances.

2003 YLR 2029 ref.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2004 Y L R 875

[Karachi]

Before Sarmad Jalal Osmany, J

ARIF and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 373, of 2003, decided on 11th November, 2003.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss.302/337-A(ii)/147/148/149---Bail, grant of---Case being of two versions, it was vet to be determined as to which of the parties was the aggressor---Allegation against the accused and their co-accused was of general nature regarding causing of Lathi and hatchet injuries to the members of the complainant party---Hatchet injuries were not borne out from the medical evidence as far as the accused were concerned--­Accused per allegations contained in the F.I.R. had not participated in the deadly attack on the deceased and the matter regarding their common intention required further inquiry---Accused were allowed bail in circumstances.

Muhammad Ayaz Soomro for Applicants.

Muhammad Ismail Bhutto for the State.

2004 Y L R 894

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ISMAIL and another---Appellants

Versus

THE STATE ---Respondent

Criminal Appeal No. 168 of 2003, decided on 22nd November, 2003.

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

----S. 9(c)---Appreciation of evidence--­Property received by the Chemical Analyser appeared to be a different property from the property sealed as sample at the place of incident---Prosecution had failed to explain the said discrepancy in the evidence and the report of the Chemical Analyser---Nylon bag containing the slabs of "Charas" constituting the case property was not shown to the complainant during his examination and he did not identify the same to be the same property which was secured from the pick-up and sealed at the spot---Property produced in the Court in the nylon bag did not appear to be the same property secured and sealed at the place of occurrence which had falsified the oral evidence---Prosecution case, thus, was replete with doubts as regards the Chemical Analyser's Report, the sample taken out from the bag and the veracity of the witnesses---Accused were acquitted in circumstances.

Mehmood A. Quershi for Appellants.

Jawed Akhtar for the State.

Date of hearing 19th November, 2003.

2004 Y L R 943

[Karachi]

Before S. Ali Aslam Jafri, J

ALI MUHAMMAD KALHORO---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 135 of 2003, decided on 20th October, 2003.

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

----Ss. 516-A & 517---Order for custody and disposal of property---Application and scope---Property claimed by an actual owner in respect whereof some offence had been committed could be restored even on personal bond what to say of the surety or security---Discretion, however, is to be exercised by the Court while passing such orders after keeping in view the facts of each case which usually differed from each other, but the order should not be so harsh which virtually nullified its effect.

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

----Ss. 516-A & 561-A---Quashing of order---Sessions Court instead of asking the applicant to furnish surety for taking his motorcycle on Superdari ordered him for furnishing security in the sum of Rs. 50,000 to the satisfaction of the Magistrate--­Property claimed by an- actual owner in respect whereof some offence had been committed could be restored even on personal bond under the law, what to say of the surety or security---No justification appeared in demanding cash security or Bank guarantee from the applicant whose title was itself got verified by the Appellate Court while hearing his revision petition before passing an order in his favour--­Impugned order being harsh and unjustified vas modified to the extent that the word "security" was substituted by the word "surety "---Petition was allowed accordingly.

Arjandass Ladhani for Applicant.

Ghulam Sarwar Korai for the State.

Date of hearing: 20th October, 2003.

2004 Y L R 1030

[Karachi]

Before Azizullah M. Memon, J

PARYAL---Appellant

Versus

THE STATE ---Respondent

Criminal Appeal No. 118 of 1998, heard on 19th December, 2003.

Penal Code (XLV of 1860) ---

----S. 399---Appreciation of evidence---No overt act whatsoever was attributed to the accused to indicate that he had made any preparation towards commission of dacoity---Mere assembling of the accused with the co-accused in the jungle would not indicate that he had the intention to commit the dacoity---State counsel had not even supported the impugned judgment---Accused was given the, benefit of doubt in circumstances and he was acquitted accordingly.

Shameer and others v. The State 1989 PCr.LJ 1256 ref.

Shafi Muhammad Memon Appellant.

Muhammad Azeem Panhwar for the State.

Date of hearing: 19th December, 2003.

2004 Y L R 1056

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.239 of 2003, decided on 14th October, 2003.

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

----S.13 (d)---Criminal Procedure Code (V of 1898), S.103 --- Appreciation of evidence---Prosecution evidence being unanimous on each and every aspect of the case without any material contradiction or discrepancies, inspired­ confidence---Place of incident being a Highway, provisions of S.103, Cr. P. C. were not required to be strictly complied with---Accused having not challenged the foot of leaving the police station by the police officers and their being on patrolling duty at the time of incident, non production of station diary in evidence had not affected adversely the prosecution case---Possessing unlicensed arms and ammunition being an offence by itself, sealing of the property for that purpose by the police officer at the place of incident was not required under the law---Report of Ballistic Expert to prove that the arms recovered from the accused were in working condition was not necessary as it was immaterial whether the same were in working condition or not--­ Defence plea taken by accused was not proved on record---Conviction of accused was maintained in circumstances---Accused had suffered mentally, physically and financially for six years of trial and had remained in Jail for two and a half years, his sentence of five years' R. I. was reduced to three years' R.1. accordingly.

Wazir v. State 2003 PCr.LJ 359; Abdul Sattar v. State 2002 PCr.LJ 51; Ashique Ali v. State 2002 PCr.LJ 450; Arif Khan v. State 1998 PCr.LJ 1287; Nazar Muhammad v. State 1996 PCr.LJ 1410; State v. Muhammad Amin 1999 SCMR 1367; Muhammad Akhtar v. Manna 2001 SCMR 1700; Waqar v. Fakir Ali 1969 SCMR 189; Said Munir v. State PLD 1964 Pesh. 194; Malik Muhammad Iqbal v. State 1987 PCr.LJ 247; Bilawal v. State. Criminal Appeal No.D-101 of 2002; Musadiq v. State PLD 2003 Kar. 216 and Ashiq Ali v. State 2002 PCr.LJ 450 ref.

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

----Art.133---Evidence---Cross-examina­tion---Where any piece of evidence is not challenged in cross-examination, it is presumed to be accepted as true by the other side.

Muhammad Akhtar v. Manna 2001 SCMR 1700; Waqar v. Fakir Ali 1969 SCMR 189; Said Munir v. State PLD 1964 Pesh. 194 and Malik Muhammad Iqbal v. State 1987 PCr.LJ 247 ref.

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

----S. 13 (d)---Criminal Procedure Code (V of 1898), S.156---Investigation---Sealing of the property at the place of incident is not the requirement of law where the charge is of possessing the arms and ammunition and not the use thereof.

Musadiq v. State PLD 2003 Kar. 216 ref.

Naimt Ali Randhawa for Appellant.

Jawaid Akhtar for the State.

Date of hearing: 9th September, 2003.

2004 Y L R 1066

[Karachi]

Before S. Ahmed Sarwana, J

ASGHAR ALI KHAN ---Applicant

Versus

Mst. FEROZA BEGUM and others---Respondents

Civil Revision Application No.31 of 2003, heard on 4th November, 2003.

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

----Ss. 2(2), 12(2), 104, 115 & O.XLIII, R.1---Appeal against an order passed on application under S.12(2), C. P. C.--­Maintainability---Order passed on such application would not culminate in decree, but would simply be an order passed on a miscellaneous application filed under one of lite many provisions of C. P. C. ---No appeal lies against such order under provisions of C.P.C.---Appeal against such order, thus, would not be maintainable---Only remedy of a party aggrieved of such order would be to file revision under S.115, C.P.C.

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

----Ss. 35-A---Frivolous and vexatious arguments by counsel for respondent--­Court advised such counsel to be short and confine his arguments to law points only--­Such counsel in spite of advice and thereafter several warnings of imposition of costs persisted to advance such arguments, thus; wasted more than one hour of Court's time, which could be more fruitfully utilized in hearing and disposing of other matters fixed in the Cause List of the day---High Court directed respondent to pay Rs. 3, 000 as compensatory costs under S.35-A, C. P. C., which on petitioner's statement was directed to be deposited in High Court Medical Fund.

Hassan Akbar for Applicant.

Jamil-ur-Rehman for Respondents.

Date of hearing: 4th November, 2003.

2004 Y L R 1070

[Karachi]

Before Shabbir Ahmed and Gulzar Ahmed, JJ

KARACHI ADMINISTRATION EMPLOYEE COOPERATIVE HOUSING SOCIETY LTD.---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.1353 of 1998 and Constitutional Petition No. 177 of 1002, decided on 10th ,October, 2003.

Cooperative Societies Act (VII of 1925)---

----S. 43---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Inquiry by Registrar into the Constitution, working and financial condition of a society--­ Scope---Registrar either suo motu or at request of persons mentioned in S.43(2) of Cooperative Societies Act, 1925, can hold such inquiry either himself or through duly authorized person---Registrar can exercise such power on the basis of complaint alleging mismanagement in running of Society against its constitution or utilization of its finances for purposes other than the purpose of Society on subjective assessment of such allegations---Exercise of such powers, in absence of any reason or material warranting, would be an action in excess of jurisdiction and liable to be struck down.

KMC Officers Cooperative Housing Society .v. Government of Sindh and others Suit No.1646 of 1997; KAD Officers Cooperative Housing Society Ltd., v. The Deputy Registrar, Cooperative Housing Societies and , another Civil Petition No.D-323 of 2000 and Pir Illahi Bukhash Cooperative Housing Society Ltd., Karachi and others v. Registrar Cooperative Societies, Karachi 1968 SCMR 423 ref.

S. Irteza Hussain Zaidi for Petitioners.

Muhammad Sarwar Khan, Additional Advocate-General, Sindh for Respondents.

Date of hearing: 26th September, 2003.

2004 Y L R 1076

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

AZAD KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1 and 2 of 2003, decided on 23rd September, 2003.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.353---Qanun-e-Shahadat (10 of 1984), Arts. 70 & 71---Appreciation of evidence---After recording the statements of witnesses in one case, their copies were prepared and placed on the record of the other case---Such procedure was in violation of the provisions of S.353, Cr. P. C. and Arts. 70 & 71 of the Qanun-e-­Shahadat, 1984---Trial Court, thus, had read the evidence of one case in the other case which was not permissible under the law --Mode adopted by Trial Court in conducting the trial of cases was-illegal which had vitiated the trials---Convictions and sentences of accused were consequently set aside and both the cases were remanded to Trial Court for retrial from the stage of recording of evidence.

Noor Muhammad v. State PLD 1981 Lah. 60; Alam Sher v. State 1977 PCr.LJ 1078; Muhammad Younis v. State PLD 1953 Lah. 321; Nur Illahi v. State PLD 1966 SC 708; Abdul Waheed v. State 1968 PCr.LJ 776 and Qalandar Khan v. State PLD 1971 Pesh. 119 ref.

Muhammad Ashraf Kazi and Zubair Ahmed Rajput for Petitioners.

Jawed Akhtar A.-G. for the State.

Date of hearing: 19th September, 2003.

2004 Y L R 1084

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD NAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.615 of 2003, decided on 9th February, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/460/337-H(ii)/34---Bail---Story given in the F.I.R. lodged within a few hours of the occurrence was clear in which the accused was shown as a witness as he was sleeping in the house at the time of incident---Complainant ten months thereafter in his supplementary statement, however, gave a new version of the occurrence implicating the accused which was totally different from the one mentioned in the F.I.R.---No blood or crime empties were secured from the place of incident--­Guilt of accused called for further probe in circumstances and he was admitted to bail accordingly.

Tahir Abbas v. State 2003 SCMR 426; Muhammad Javed v. State 1995 SCMR 1178; Shahzado v. State PLD 2002 Kar. 402 and Zahid Shah v. State 2001 PCr.LJ 134 ref.

Asif Ali Abdul Razak Soomro for Applicant.

Altaf Hussain Surahio for the Complainant.

Mushtaq Ahmed Kourejo for the State.

Date of hearing: 9th February, 2004.

2004 Y L R 1086

[Karachi]

Before Muhammad Sadiq Leghari, J

ARIF MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.222 of 2002, heard on 31st March, 2003.

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

----Ss. 394/398/34---Appreciation of evidence---Complainant and prosecution witnesses had fully implicated accused in the case---Witnesses were cross-examined and suggestions were put to them that no incident of robbery had taken place and that they had falsely implicated accused which was denied by the said witnesses without any reservation---Nothing could be extracted from said witnesses in cross­ examination which could give rise to a slightest doubt about their evidence---All were natural witnesses having no ill-will against the accused---No justification existed to doubt such witnesses especially when their evidence got support from evidence of Police Officers who captured after necessary injuries at their police officers had fully supported evidence of witnesses---Evidence of prosecution witnesses was also confirmed materially by two Doctors---Defence plea any support and appeared to be story which could not be giver, any weight against huge evidence on prosecution side---Trial Court, in circumstances, had rightly convicted and sentenced accused.

Umer Farooq Khan for Appellant.

Mumtaz Ali Khan Deshmukh for the state.

Date of hearing: 31st March, 2003.

2004 Y L R 1094

[Karachi]

Before Muhammad Sadiq Leghari, J

BIN YAMEEN KHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.355 of 2003, decided on 8th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/328/34---Bail, grant of---Application made by complainant on basis whereof F.I.R. was registered, did not indicate any criminal role of accursed and said accused was subsequently implicated---Contents of F.I.R had also shown that deceased before her death did not implicate the accused--­Said accused had a case for grant of bail--­Co-accused who did not press his bail application had stated that he would file bail application after some of material witnesses were examined---Bail plea of co ­accused was dismissed as not pressed.

Khawaja Naveed Ahmed for Applicants.

Muhammad Muzaffar for the Complainant.

Mumtaz Ali Khan Deshmukh for the State.

2004 Y L R 1105

[Karachi]

Before Muhammad Sadiq Leghari, J

ADEEL-UR-REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1039 of 2003, decided on 17th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/411/34---Bail, grant of--­Complainant had claimed that only two persons had committed robbery in his house, but police had challaned four persons---No identification test was arranged by the Investigating Officer---Only some of the robbed jewellery was alleged to have been recovered from accused nearly about 40 days after the alleged robbery--­Apparently for the present, recovery had constituted offence under S. 411, P. P. C. which was punishable for three years--­Embargo put by S.497, Cr.P.C. being not attracted in the case, accused was granted bail.

Mumtaz Ali Khan Deshmukh and Farooq Hayat for Applicant.

Miss Akhtar Rehana for the State.

Date of hearing: 17th September, 2003.

2004 Y L R 1111

[Karachi]

Before S. Ali Aslam Jafri, J

ASLAM MASIH and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 1395 of 2002, decided on 4th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.321---Bail, grant of---Further inquiry--­Nothing was available to show that construction of wall was being raised under an approved plan, but it was a Katchi Abadi and accused being owners of the property were not expected to use poor material for their own construction---Only it was by chance that the lady was passing through the street and received injuries by falling of the wall under construction which resulted in her death---Deceased, before death had denied that any threats were given to her by the accused and according to her it was an afterthought on the part of complainant---Even otherwise no occasion existed for issuance of such threats and no proof was produced for the same---In absence of any motive or enmity, it appeared to be a case of further inquiry as contemplated under S. 497(2), Cr. P. C. ---Bail was granted to accused, in circumstances.

Ms. Raana Khan for Applicants.

Mumtaz Ali Khan Deshmukh for the State.

2004 Y L R 1118

[Karachi]

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

NAWAZ ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.705 of 2003, decided on 13th January, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail---Although private persons were not required to witness the recovery of narcotic substances as provided under the Control of Narcotic Substances Act, 1997, yet the place of recovery and the time of recovery had to be kept in view to prevent false implication of innocent people, looking to the general conduct of police---Maximum punishment provided for the alleged offence being seven years' R.1., the case did not fall within the prohibitory clause of S. 497(1), Cr. P. C. --­Accused was behind the bars for the last four months---Bail was allowed to accused in circumstances.

Shafi Muhammad Memon for Petitioner.

Rasheed Qureshi Asstt. A.-G. for the State.

2004 Y L R 1132

[Karachi]

Before Faiz Muhammad Qureshi, J

DIL MURAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.352 of 2001, decided on 1st June , 2001.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Accused were allegedly found at the spot with Lathi and hatchet and no overt act was attributed to them---Fatal injuries were attributed to co-accused who fired from his gun on the deceased and some injuries were borne out from the post­mortem report which had also been examined by the Court---Matter of accused required further inquiry and their vicarious liability was to be seen by the Trial Court and their case fell within purview of S. 497(2), Cr. P. C. ---Accused were granted bail,, in circumstances.

Jai Jai Veshno Mange Ram for Applicants.

Muhammad Ismail Bhutto for the State.

2004 Y L R 1159

[Karachi]

Before Wahid Bux Brohi, J

MUMTAZ ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-579 of 2003, decided on 13th January, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.16/10---Bail, grant of ---Abductee in her statement recorded under S.164, Cr. P. C. had exonerated the accused---Although the abductee had given same details of the occurrence in her statement under S.161, Cr.P.C., yet even there she had not spoken much against the accused---Zina was attributed only to co-accused---Further inquiry, thus, was required into the guilt of accused---Accused was admitted to bail in circumstances.

Ali Nawaz Ghanghro and Muhammad Saleem Jessar for Applicant.

Akber Ali Dahar for the Complainant.

Muhammad Ismail Bhutto for the State.

2004 Y L R 1161

[Karachi]

Before Zia Perwaz, J

MODERN TERMINAL OPERATORS ---Plaintiff

Versus

CITY DISTRICT GOVERNMENT and others---Defendants

Suit No.924 of 2002, decided on 6th October, 2003.

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

----Ss.18, 25 & 27---Powers of Board of Trustees with regard to disposal of property--Scope---Board of Trustees was empowered under S.18 of Karachi Port Trust Act, 1886 to lease, sell or otherwise transfer any movable or immovable property which could, for the purposes- of said Act, had become vested in it or been acquired by the Board---Properties owned by Karachi. Port Trust were divisible in two broad categories viz. those vested in it, and the ones acquired by it---Properties which were vested in Karachi Port Trust by Federal Government were those properties which vested in the Trust at the time of promulgation of Karachi Port Trust Act, 1886 by virtue of S.27 thereof-and Sched. "A" thereto and the other were those properties which were acquired by Karachi Port Trust directly through agreements under S.25 of Karachi Port Trust Act, 1886 or` acquired through proceedings initiated by Federal. Government on behalf of Karachi Port Trust under Land Acquisition Act, 1894---In both such eventualities, it was incumbent upon the Karachi Port Trust to pay the price, or as the case may be, compensation in respect of property so acquired---Board of Trustees was empowered under S.25 of Karachi Port Trust Act, 1886 to acquire and hold movable and immovable property whether within or without the limits of the port or cite of Karachi.

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

----Ss.18, 25 & 27---West Pakistan Land Revenue Act (XVII of 1967), S.2-­Applicabilih of West Pakistan Land Revenue Act, 1967 to lands of Karachi Port Trust---Contention that West Pakistan Land Revenue Act, 1967 did not apply to the lands of Karachi Port Trust as the same was a Federal Subject, was misconceived as mere declaration of limit, ipso facto, would not mean that all lands falling within the limits of a Local Authority which was the subject-matter of Federal Government, would be excluded from the operation of West Pakistan Land Revenue Act, 1967--­For the purpose of exemption of certain lands from the operation of any or all provisions of West Pakistan Land Revenue Act, 1967, it was mandatory - that a Notification be issued by. Competent Authority granting such exemption---Section 2 of West Pakistan Land Revenue Act, 1967 had clearly provided that said Act would apply to the whole of West Pakistan except the Tribal Areas.

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

----Ss. 3, 25, 26 & 27---Power to define and alter the limits of Port---Provisions of S.3 of Karachi Port Trust Act, 1886 had provided for declaration of the limits of the Port of Karachi for the purpose of said Act---Karachi Port Trust Act, 1886 had specifically mentioned that the limits could extend to any part of the navigable approaches to the Port and could include any wharves tramways, warehouses, sheds and other works made on behalf of public for convenience of traffic, for safety of vessels or for the improvement, maintenance and good governance of the Port---Demarcation of the limits of Karachi Port Trust would not ipso facto mean that Karachi Port Trust owned all the property located within the limits---Object of S.3 of Karachi Port Trust Act, 1886 was only with regard to the administration of the area within the limited scope of powers available to Karachi Port Trust under the said Act--­Declaration of limits of the Port of Karachi, would not give any proprietary rights to Karachi Port Trust to lease or sell all the Property within, its limits---For such Purpose a clear title to such property was necessary by showing that either same was transferred to Karachi Port Trust by virtue of Sched. `A' to Karachi Port Trust Act, 1886 or it had been under S.25 or 26 of said Act---Notification under S.27 of Karachi Port Trust Act, 1886 would be subject to cl (i) of subsection (2) of S.27 of said Act which had provided for resolution of a question arising between Federal Government and Board of Trustees as to boundaries of any portion of such property.

(d) Wards and phrases---

---- Limit' andowner', defined and explained.

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

----S.3---Limits of Karachi Port Trust, detailed.

(f) Words and phrases---

----`Estuary'---Defined and explained.

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

----S. 24-A---Functions of public functionaries---Public functionaries were required to act within the parameters of authority conferred upon them under the low and they could not claim any inherent power or jurisdiction and every Executive Authority had to justify its actions with reference to some contemporary law--­Public and executive functionary were required to act reasonably, judiciously and with justice, equity, fairness and in accordance with spirit of provision under which powers were sought to be exercised.

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

---Sched. A' & Ss.25, 26---Specific Relief Act (I of 1877), Ss.42 & 54--- Suit for declaration and permanent injunction--­Karachi Port Trust which had leased out plot in dispute, could not establish from any of the documents available on record that the same vested in Karachi Port Trust by virtue of Sched.A' to Karachi Port Trust Act, 1886 or at any time---Said plot was in the charge of persons mentioned in Part III of Sched. `A' to Karachi Port Trust Act, 1886 or it was acquired under Ss.25 & 26 of said Act---Plaintiff/lessee of plot in dispute was not entitled to any of the prayers made in plaint---Suit was dismissed.

Haji Ghulam Zamin and another v. A.R. Khondkar and others PLD 1965 Dacca 156; Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607; Province of Punjab through its Home Secretary and others v. Gulzar Hassan and others PLD 1978 Lah. 1298; Federation of Pakistan and others v. Shankar Ali Mian and others PLD 1999 SC 1026; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Independent Newspapers Corporation (Pvt.) Limited and another v. Chairman, Fourth Wage Board and others 1993 SCMR 1533 and Mandviwalla Entertainment (Pvt.) Limited and others v. Dy. Commissioner, Karachi South and another 1999 CLC 908 ref.

Mushtaq A. Memon for Plaintiff.

Manzoor Ahmed for Defendants Nos. 1 and 2.

Qaiser Jamil for Defendant No.3.

Abbas Ali, A.A.-G. for Defendants Nos.4 and 6.

S. Izhar Haider Rizvi for Defendant No. 5.

Dates of hearing: 11th, 18th, 29th April, 6th, 14th, 22nd and 23rd May, 2003.

2004 Y L R 1192

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

SHAUKAT and others---Petitioners

Versus

CONTROLLER, KARACHI BUILDING CONTROL AUTHORITY and others--Respondents

Constitution Petition No. D 803 of 1998, decided on 3rd April, 2002.

(a) Sindh Buildings Control Ordinance (X of 1979)---

----Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Laches--­Construction raised in violation of Sindh Building Control Authority---Rights of transferee of building---Building in question was raised when Sindh Buildings Control Ordinance, 1979 had come into effect--­Construction of building having been raised in violation of Sindh Buildings Control Ordinance, 1979, no laches would be attracted to Constitutional petition filed to challenge such construction---Building having been raised without approval of Sindh Building Control Authority, transferee of rights in such building, would not be entitled to any protection.

Ardeshir Cawasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Muhammad Saleem v. Administrator, KMC 2000 SCMR 1748 ref.

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

----S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Fraud and misrepresentation---Application filed under S.12(2), C.P.C. to challenge order passed by High Court in Constitutional petition, was dismissed as applicant had failed to show that said order had been procured by any fraud or misrepresentation or otherwise was without jurisdiction.

Nasim Qamar for Petitioners.

Suleman Habibullah, A.A.-G.

Aleem Akbar Shaikh for Respondent No. 3.

K.A. Wahab for Applicant.

2004 Y L R 1244

[Karachi]

Before Anwar Zaheer Jamali, J

SHIREEN BANO---Appellant

Versus

D.J. CENTRAL---Respondent

M.A. No.53 of 2002, decided on 17th October, 2003.

Succession Act (XXXIX of 1925)-----

----Ss. 370 & 384---Issuance of Succession Certificate regarding claim of group insurance of deceased---Amount of group insurance neither being TARKA' of deceased nor covering by termsdebit' and `security', but merely being a grant in favour of nominee of deceased, Succession Certificate in respect thereof could not be issued.

Wafaqi Hukumat Pakistan v. Awamunnas PLD 1991 SC 731; Mst. Shamim Akhter and others PLD 1994 Kar. 237; -Muhammad Mumtaz v. Mst. Umra Bevi 1999 CLC 806 and Messrs Pakistan International Airlines Corporation v. Mst. Alia Siddiqa and 3 others 2001 MLD 1 ref.

Mahmood Habibullah for Appellant.

Mirza Sarfraz Ahmed for Legal Heirs of deceased.

Date of hearing: 17th October, 2003.

2004 Y L R 1321

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Ch. GULZAR AHMAD and another---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.267 of 2001, decided on 27th January, 2001.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 409/420/468/471/34---Quashing of proceedings---Application for---Nine persons were granted agricultural lease of land in normal course of Land Granting Policy of Government---Value fixed for such grant was duly paid by grantees and they were put into possession of their respective grants---Grantees of land being lawful owners of land, sold same to accused for valuable consideration and accused made development over said land after spending heavy amount---Said land finally was regularized in the names of accused--­Accused, in circumstances had not committed offence alleged against them as initially land in dispute was duly granted to grantees/vendors and no evidence was on record indicating that grantees were fictitious persons or they had committed forgery, fraud or criminal breach of trust--­Accused, in circumstances had also not committed any breach of trust---State counsel had also conceded that proceedings pending against accused deserved to be quashed and had stated that land in question had been regularized in favour of accused and they had deposited differential amount in State Bank towards regularization and no amount was outstanding against them---Land in question having been: regularized in the names of accused, trial of accused before Anti ­Corruption Court, would tantamount to harassment and further proceedings in the Court on basis of F.I.R. against accused would be sheer wastage of time---Pro­ceedings pending against accused pursuant to F.I.R., were quashed, in circumstances.

The State v. Gulzar Muhammad and others 1998 SCMR 873; Zahoor-ud-Din v. Khushi Muhammad and 6 others 1998 SCMR 1840; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Agha Saifuddin and another v. Dr. Muhammad Ashfaq Piracha and another 1986 CLC 1819; Agha Fakhruddin v. Muhammad Paryal and others PLD 1989 SC 16; Markazi Union Lambardaran, Punjab Province and 10 others v. Board of Revenue Punjab, Lahore and another 1997 CLC 1146; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; The Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474; Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354 and Yasin Siddiqui v. The State 2001 Cr.LJ 1331 ref.

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

----Ss. 249-A, 265-K & 561-A---Acquittal of accused---Quashing of proceedings--­Jurisdiction of Trial Court---Trial Court under S.249-A, Cr. P. C. and S. 265-K, Cr. P. C. could acquit accused as the case may be, at any stage of proceedings, in the circumstances of each of the case--­Appropriate remedy was moved by accused in Trial Court, but Trial Court did not apply proper mind in respect of matter whether accused were entitled to be acquitted in terms of S.249-A, Cr. P. C.--­Jurisdiction under Ss.249-A, 265-K and 561-A, Cr. P. C. were co-extensive---Trial Court was duty bound to look into the prosecution case, other material and legal aspects of the case by exercising such powers to find out whether the Trial Court should have acquitted accused under S. 249-A, Cr. P. C. without recording evidence at all.

(c) Criminal Trial-----

----Every criminal case should be judged on its own facts---Facts of one case being different from the other, no rule of universal application could be allowed in one case to be made applicable to other cases.

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

----S. 561-A---Quashing of proceedings--­Principle had been recognized that High Court in exceptional cases could exercise jurisdiction under S.561-A, Cr. P. C. to quash proceedings when no offence was made out against accused---Main consideration to be kept in view would be whether continuance of proceedings would be wastage of time and abuse of process of the Court or not---Where on basis of fact admitted and patent on record, no offence could be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.

K.M. Nadeem for Applicants.

Muhammad Anwar Tariq, D.P.G.A., NAB and Fazlur Rahman Awan for the State.

Date of hearing: 27th January, 2003.

2004 Y L R 1339

[Karachi]

Before Ata-ur-Rehman, J

Miss MAHENAU AGHA through her Mother---Decree Holder

Versus

UNITED LINER AGENCIES OF PAKISTAN LTD. and 12 others---Judgment-debtors

Execution Application No.249 of 2000, decided on 15th March, 2004.

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

----O. XXI, Rr.11, 32, 43 & 54---Execution of decree---Application for---Date for execution of decree---Determination of--­The date for execution of decree in case would be the date when appeal of Decree ­holder was allowed and the suit was decreed.

A.I. Chundrigar and Khalid Jawed Khan for Decree-Holder.

Kamaluddin Azfar and Saadat Yar Khan for Judgment-Debtors Nos. 1, 2 and 13.

Sultan Japanwala for Judgment­ Debtors Nos.4 to 6.

2004 Y L R 1345

[Karachi]

Before Muhammad Roshan Essani, J

ALLAH BACHAYO and 3 others---Applicants

Versus

HAJI JARO and another---Respondents

Criminal Miscellaneous Application No.3 of 1993, decided on 27th January, 2000.

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

----Ss. 561-A, 177 & 179---Penal Code (XLV of 1860), Ss.380/34 --- Quashing of proceedings---Territorial jurisdiction of Court—Determination of---Alleged theft was committed at place 'S' and accused allegedly retained stolen, articles at place 'B'---Complaint, in circumstances either could have been filed in Court at place 'S' or in Court at place 'B' and Trial Court at place 'D' in which direct complaint was filed by complainant, had no jurisdiction to take cognizance---Trial Court at place 'D' being devoid of jurisdiction, entire proceedings had become void, ab initio--­Prosecution case suffered from legal and factual infirmities arid there appeared no possibility of conviction of accused Proceedings in case suffering front jurisdictional defect continuation of proceedings, would be abuse of process of the Court---Proceedings pending against accused under Ss. 380/34. P.P.C. in Court at- place 'D', were quashed, in circum­stances.

Mirza Muhammad Jaffar v. Mirza Dildar Hussain and 2 others 1976 PCr.LJ 1293; Mir Ghullam Abbas Khan Talpur v. The State 1978 PCr.LJ 125; Mst. Ghulam Zohra v. The State 1969 PCr.LJ 67; Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775; Muhib Ali and 3 others v. The State 1988 PCr.LJ 402; Amir Zia v. The State 2. Government of Pakistan NLR 1999 Cr. 314 and Muhammad Saleh and others v. Muhammad Ali 1991 MLD 1430 ref.

Syed Madad Ally Shah for Applicants.

Rasheed A. Qureshi, Assistant Advocate-General for Respondents.

Date of hearing: 20th January, 2000.

2004 Y L R 1355

[Karachi]

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

GUL SHER and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.128, 129, 131, 132, 133 and 134 of 2003, heard on 17th February, 2004.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 324/353/365‑A/149‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.6 (d)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑­Appreciation of evidence‑‑‑No private person was associated to witness the arrest of accused and to testify about recovery‑‑­Na person from the locality .was made Mashir of place of occurrence and no Mashirnama of place of occurrence was prepared‑‑‑Parents of allegedly abducted boy were handed over custody of the boy at the police station‑‑‑Allegation was of encounter with police, but admittedly neither the empties were secured from the place of Wardat nor anybody from either side was injured‑‑‑Absolutely no evidence was to show that accused had kidnapped the boy‑‑‑Victim boy neither was produced in Court nor accused were got identified‑‑­Allegation was that boy had certain scratches on his body; but neither any Mashirnama in that respect was prepared nor boy was medically examined‑‑‑No statement of victim boy was recorded by police under S.161, Cr. P. C. ‑‑‑One of accused person, who was not arrested on the spot, but was arrested subsequently, was not put to identification test ‑‑‑Co­ accused were acquitted by Trial Court‑‑­Record had revealed that weapons were foisted upon accused by police and they were involved in S.13(d) of West Pakistan Arms Ordinance, 1965‑‑‑No reliable evidence was to believe that victim boy was recovered from possession of accused and absolutely no evidence was to show that any demand ‑ of ransom was made from complainant party by accused‑‑‑Entire story was shrouded in mystery and case of prosecution was marred by inherent infirmities and credible evidence was badly lacking‑‑‑Reasoning given by Trial Court itself was sufficient to arrive at a conclusion that judgment was absolutely unsustainable‑‑‑Prosecution case was highly doubtful and judgment of Trial Court was totally against evidence on record and out­ rightly unsustainable which warranted to be set aside‑‑‑Allowing appeal accused were acquitted.

Allah Bachayo Soomro for Appellant in Criminal Appeals Nos. 128 and 129 of 2003.

Syed Madad Ali Shah for Appellants in. Criminal Appeals Nos. 131 and 132 of 2003.

Aslam Pervaiz Khan for Appellant in Criminal Appeals Nos.133 and 134 of 2003.

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

Date of hearing: 17th February, 2004.

2004 Y L R 1370

[Karachi]

Before Ghulam Nabi Soomro, J

KHALIQ DAD‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Bail Application No. 199 of 2004, decided on 9th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.435‑‑‑Bail. grant of‑‑‑Accused who were son and .father, were alleged in F.I.R. to have set on fire dowry articles received by accused from complainant/father‑in‑law of son, on account of certain dispute‑‑­Offence against accused was punishable up to seven years' R.I. only‑‑‑Fire broke out due to some electric short circuit and no witness was available of such incident‑‑‑Loss which occurred due to alleged burning was shown to be about Rs.4, 000 to Rs.5, 000‑‑‑Keeping in view sentence prescribed for alleged offence and amount of loss allegedly caused and in absence of any witness, accused were admitted to bail.

Fida Muhammad Khan Khel for Applicant.

Habib Rasheed for the State.

Date of hearing: 9th March, 2004.

2004 Y L R 1371

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Leghari, JJ

SIDDIQUE BUDHANI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1335 of 2002, decided on 29th October, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 406/420/484/471/109‑‑‑Bail, grant of‑‑­Only evidence against accused seas that, he in the capacity of General Manager of Company concerned, had signed the Account Opening Form of Current Account opened in the name of Company‑‑‑Accused by signing account opening Form is the capacity of General Manager did not play am role in financial Scam and he had never signed at document relating to financial facility in question‑‑‑State counsel did not controvert said position‑‑‑Case of accused seas identical to co‑accused who had already been granted bail‑‑‑Accused also deserved same concession in view of doctrine of consistency.

Salim Salam Ansari for Applicant.

Mahmood Alam Rizvi for Respondent.

Date of hearing: 27th October, 2003.

2004 Y L R 1469

[Karachi]

Before Sarmad Jalal Osmany, J

KHANDO alias ABDUL REHMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 143 of 1998, decided on 23rd September, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑­Parties appeared to be inimical towards each other over matrimonial matters‑‑­Complainant and other eye‑witness being related inter se as well as to the deceased necessarily needed corroboration which was lacking‑‑‑Discrepancies in the ocular testimony with regard to the availability of both the eye‑witnesses at the same time at the scene of incident, distance between the prosecution witnesses and the deceased, probability of the eye‑witnesses seeing the accused escaping from the place of occurrence surrounded by thick bushes and failure of the prosecution witnesses to assist the deceased at the relevant time, had not been explained by the prosecution‑‑‑Gun recovered from the accused having been sent to the Ballistic Expert after a delay of one year and three months, positive report of the Expert regarding matching of the crime empty with the same could not be relied upon‑‑‑Deceased though remained alive for a sufficiently long time after the occurrence and was in a position to speak, yet he did not make any statement regarding the incident‑‑‑Cumulative effect of the aforesaid infirmities in the prosecution case had made the accused entitled to benefit of doubt‑‑‑Accused was acquitted accordingly.

Ashiq Hussain v. The State 1993 SCMR 417; Bashir Ahmed v. The State 1999 SCMR 114; Arif Ali v. Muhammad Ramzan alias Janan 1991 SCMR 331; Feroze Baiq v. Abdul Halim 1996 SCMR 516; Budho v. The State PLD 1965 Kar. 76; Muhammad Ilyas v. The. State 1993 SCMR 1602; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274; Maqsood Ahmad v. The State 1995 SCMR 359; Hassan Muhammad v. The State 1534 SCMR 1212; Noor Muhammad v. The State 1993 SCMR 208 and Shamoon v. The State 1995 SCMR 1377 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Appreciation of evidence—­Retention of crime empties in Malkhana for a long time‑‑‑Effect‑‑‑Retention of the crime empties in the Malkhana for about a month before sending the same for Ballistic Test raises an inference that they might have been doctored in order to match the crime weapon.

Bashir Ahmed v. The State 1999 SCMR 114 ref.

Makhdoom Mujtaba Shah for Appellant.

Abdul Ghaffar Samo for the State.

Dates of hearing: 13th, 16th, 21st, 22nd and 23rd January, 2003.

2004 Y L R 1485

[Karachi]

Before Muhammad Ashraf Leghari and Wahid Bux Brohi, JJ

MIR DOST‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.573 and 575 of 2001, decided on 11th December, 2001.

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

‑‑‑‑S. 497‑‑‑Explosive Substances Act (VI of 1908), Ss. 2, 4 & 5‑‑‑Bail, refusal of‑‑­Accused were found sitting in the but where explosive substance was kept‑‑‑Police recovered explosive substance in presence of Mashirs which weighed seven Kilogram and two hundred and fifty grams‑‑­Recovered substance was sent to Chemical Analyser whose report in respect thereof was positive‑‑‑Police had no animosity against accused‑‑‑Offence with which accused had been charged was punishable for imprisonment for life‑‑‑One of the accused persons had confessed his guilt before Mukhtiarkar and F.C.M. concerned‑‑‑Case against accused had not yet proceeded‑‑‑Sufficient material had come on record to show that accused were guilty of offence with which they had been charged‑‑‑Offence was heinous and punishable to imprisonment for life‑‑‑Accused did not deserve any leniency‑‑‑Bail was declined to accused with direction to Trial Court to conclude the trial within specified period.

Muhammad Yousif Leghari and Abdul Sattar Kazi for Applicant.

Abdul Rasheed Qureshi, Assistant A.‑G. for the State.

2004 Y L R 1487

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDUL RAZZAQ and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Transfer Application No.47 of 2003 and M.A. No. 1140 of 2003, decided on 17th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 526‑‑‑Transfer of case‑‑‑Case was sought to be transferred on the ground that Sessions Judge who had proceeded with the trial of case had been transferred while the case was fixed for judgment‑‑Accused were in jail since July 2002‑‑‑Contention was that either the In charge Sessions Judge should be directed to record the judgment in the case or the matter be transferred to some other Additional Sessions Judge for announcement of judgment‑‑‑Since the trial had concluded and the complainant had not supported the prosecution case as the parties had compromised in the matter outside , the Court and accused were rotting in jail for announcement of judgment only, case was transferred to another Additional Sessions Judge who would proceed with the case according to law.

Abdul Rasool Abbasi for Applicants.

Rasheed Ahmed Qureshi, Assistant A.‑G. for the State.

2004 Y L R 1490

[Karachi]

Before Muhammad Afzal Soomro, J

MANZOOR AHMED CHACHAR ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.716 of 2003, decided on 20th January, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.120(b), 324, 34‑‑‑Bail, grant of‑‑‑Name of accused did not find place in F.I.R. and no description or features of accused had been given therein‑‑‑Nothing incriminating was secured from possession of accused and no specific part was assigned to accused‑‑­No certificate had been appended at the foot of the memo of identification test in the light of law laid down by the Superior Courts‑‑‑Identification test was held after the delay of five days of the arrest of accused‑‑‑Accused was admitted to bail, in circumstances.

Mehmood Ahmad v. State 1995 SCMR 127; Imamdine v. Pathan 2001 PCr.LJ 1892 and Shafique Ahmed v. State 2002 PCr.LJ 518 ref

Muhammad Iqbal Kalhoro for Applicant.

Muhammad Azeem Panhwar for the State.

Date of hearing: 20th January, 2004.

2004 Y L R 1492

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD HASHIM and 14 others‑‑‑Applicants

Versus

THE STATE--‑‑Respondent

Criminal Revision Application No.03 of 2004, decided on 19th January, 2004.

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

‑‑‑‑S. 426(2)‑‑‑Penal Code (XLV of 1860), Ss. 337‑A(ii)/148‑‑‑Application for suspen­sion of sentence‑‑‑Appeal had been fixed for final hearing, but it was not clear if the paper‑book had beers prepared for the purpose of a regular hearing of the case of applicant/accused‑‑‑Preparation of paper ­book could take some time and sentence awarded to accused was short being not more than one year‑‑‑Application by accused for suspension of sentence was allowed and he was released on furnishing surety.

Muhammad Khan Shahid v. State PLD 1997 SC 1; Abdul v. State 2001 Cr.LJ 502; Kamran Ali v. State 2000 YLR 3008 and Saeeda Bilques v. State 2000 PCr.LJ 548 ref.

Muhammad Ayaz Soomro for Applicants.

Mushtaq Ahmed Kourejo for the State.

Date of hearing: 19th January, 2004.

2004 Y L R 1497

[Karachi]

Before Muhammad Afzal Soomro, J

SAJJAN‑‑‑Applicant

Versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No.43 of 2004, decided on 16th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑­ Name, description or features of accused, did not find place in F.I.R. ‑‑‑Accused was involved in the case on disclosure of prosecution witnesses in their statements, recorded under S.161, Cr. P. C. at the belated stage‑‑‑Nothing incriminating had been secured from the possession of accused ‑‑‑Co‑accused had been released on bail by police and following the principle of consistency, accused was also entitled to the grant of bail‑‑‑Accused having been able to make out a case for bail, was granted bail.

Abdul Rasool Abbasi for Applicant.

Anwar A. Ansari for the State.

Date of hearing: 16th March, 2004.

2004 Y L R 1499

[Karachi]

Before Wahid Bux Brohi, J

NOOR HUSSAIN ‑‑‑Applicant

Versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No.24 of 2004, decided on 26th January, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/504/114/148/149‑‑‑Bail, grant of‑‑­Case against accused did not make progress at the trial as no charge had been framed against the accused‑‑‑From the circumstances of the case, it could not be gathered as to what were the reasons for not framing the charge and not commencing the trial‑‑‑Twelve co‑accused, were still absconding and their arrest was awaited‑‑­Right of trial of accused was not to be frustrated and delaying the commencement of trial simply because other accused were yet to be arrested was of no use‑‑­Essentially the trial should commence against those who were present before the Court‑‑‑Accused was granted bail, in circumstances.

Punhal v. State 2004 PCr.LJ 90; Abdul Hameed v. State 2003 MLD 19 and Behram v. State 2003 PCr.LJ 73 ref.

Pirbhulal U. Goklani for Applicant.

Mushtaq Ahmed Kourejo for the State.

Date of hearing: 26th January, 2004.

2004 Y L R 1507

[Karachi]

Before Wahid Bux Brohi, J

MIR alias ABDUL QADIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.634 of 2003, decided on 6th January, 2004.

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‑‑‑No identification test had been held through complainant or any other person in respect of robbed articles to lay a claim that gold ornaments recovered from accused were the same which were forcibly taken away at the time of occurrence‑‑‑No claim had been recorded by Investigating Agency to say that those articles belonged to the complainant‑‑‑Case against accused from that point of view would require further inquiry‑‑‑Evidence with regard to identification of accused met with apparent setback for in his further statement, which though had no probative value by itself, but at least it was version given by complainant naming accused with specific identity that he was resident of same Muhalla‑‑­Identification test was held in respect of a known person who bad already been named by complainant in his further statement‑‑­Such aspect of case also called for further inquiry‑‑‑Accused was granted bail, fn circumstances.

Shahzada v. The State PLD 2002 Kar.402 ref.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

Abdul Rehman Bhutto for the Complainant.

Date of hearing: 6th January, 2004.

2004 Y L R 1515

[Karachi]

Before Rahmat Hussain Jafferi, J

MARKAF‑‑‑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‑‑‑Bail, cancellation of‑‑‑Name of accused was mentioned in the F.I.R.‑‑­Specific role of causing fire‑arm injuries had been assigned to accused in respect of both deceased‑‑‑Medical evidence supported the ocular version‑‑‑Prosecution witnesses in their statements under Ss.161 & 164, Cr. P. C. had supported prosecution case and implicated accused with commission of crime‑‑‑Reasonable grounds existed for believing that accused was involved in the case‑‑‑Trial Court, in circumstances was not justified in granting bail to accused‑‑­Bail granting order was set aside in circumstances.

Muhammad Ayaz Soomro for Applicant.

2004 Y L R 1533

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Leghari, JJ

Malik AMIR SULTAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1428 of 2002, decided on 14th November, 2002.

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

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Bail was sought by accused on two grounds; firstly in view of rule of consistency as co‑accused was granted interim bail before arrest; and secondly on Medical ground‑‑‑Bail on ground of rule of consistency could not be granted to accused as interim bail granted to co‑accused was yet to be confirmed‑‑­Accused was stated to be a heart patient and that his detention in jail would be detrimental to his life‑‑‑State counsel had conceded to the grant of bail on medical ground provided amount involved in case be deposited by accused with the Nazir of the Court in addition to surety‑‑ Accused having accepted contention of the State counsel, he was admitted to bail accordingly.

Rana M. Shamim for Petitioner.

Khursheed A. Hashmi, D.A.‑G. for the State.

2004 Y L R 1535

[Karachi]

Before S. Ali Islam Jafri, J

Mst. FEROZA‑‑‑Applicant

Versus

ANJUMAN‑E‑ITTEHAD‑E-BALUCHAN, and others‑‑‑Respondents

Revision Application No.199 of 2000, decided on 13th January, 2003.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑O.XX, R.5 & O.XI, R.31 ‑‑‑ Judgment, mandatory requirements of‑‑‑Failure to give issue‑wise finding‑‑‑Trial Court, failed to give issue‑wise findings‑‑‑Appellate Court while maintaining the judgment passed by the Trial Court did not frame points for determination‑‑‑Effect‑‑‑Trial Court had not followed the provisions of O.XX, R.5, C. P. C. and the Appellate Court ignored the mandatory requirements of O.XLI, R. 31, C. P. C. ‑‑‑Judgments and decrees passed by both the Courts below were set aside and the case was remanded to Trial Court for decision afresh.

Ali Muhammad v. Muhammad Hayyat and others 1982 SCMR 816 and Mst. Sahib Noor v. Manzoor Haider Shah PLD 1989 SC 568 rel.

Anwer Hussain for Applicant, Abdul Karim Siddiqui for Respondent No. 1.

2004 Y L R 1538

[Karachi]

Before Ghulam Nabi Soomro, J

NIAZAL alias NIAZ ALI‑‑‑Applicant

Versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No.496 of 2003, decided on 23rd December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, refusal of‑‑‑Bail was sought by accused on ground of age contending that on the date of incident he was aged 14 years and 8 months‑‑‑Medical certificate of accused produced on record had shown that age of accused was more than 16 years on date of incident‑‑‑Accused had failed to show as to why age of accused as per medical certificate should not be given preference‑‑‑Age certificate produced by accused stood belied by Medical Certificate which was issued by a Radiologist Accused had confessed the crime, as an act of chivalry, before Magistrate through his judicial confession‑‑‑Accused was not entitled to bail‑‑‑Bail application of accused was dismissed, in circumstances.

1970 SCMR 30; PLJ 1975 Cr.C. (Karachi) 511; 1983 SCMR 1001; 1996 PCr.LJ 1171 and 1997 SCMR 1381 ref.

Imdad Hussain Abbasi for Applicant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 23rd December, 2003.

2004 Y L R 1543

[Karachi]

Before Anwar Zaheer Jamali, J

AIJAZ alias MEER and another‑‑‑Applicants

Versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No.72 of 2000, decided on 6th April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/504/34‑‑‑Bail, grant of‑‑Further enquiry‑‑‑Accused were in custody since 29‑8‑1999‑‑‑Injuries attributed to accused dad been certified by the Doctor as `Shuj‑e­‑Madiah' which prescribed maximum punishment of five years and 'Shuja‑e­-Khafifa' which was bailable ‑‑‑Accused at he time of occurrence were armed with 'lathies' and none was there who could nave saved the complainant in case, accused had any intention to kill him‑‑­Injury caused on the head of complainant had not been specifically attributed to any of three accused‑‑‑Case of accused, in circumstances needed further inquiry‑‑­Accused were entitled for concession of bail.

Madad Ali Shah Syed for Applicants.

Muhammad Azeem Panhwar, A.‑G. for the State.

Ahmed Ali Sheikh for the Complainant.

2004 Y L R 1546

[Karachi]

Before Muhammad Moosa K. Leghari and Azizullah M. Memon, JJ

YAWAR ALI KHAN‑‑‑Petitioner

Versus

AABID HUSSAIN RAJPUT and others‑‑‑Respondents

C.P. No.D‑342 of 2003, decided on 11th December, 2003.

Sindh Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr.39, 40, 73, 74 & 79‑‑‑Constitution of, Pakistan (1973), Art. 199‑‑jinstitutional petition‑‑‑Recounting of votes‑‑‑Powers of Election Tribunal‑‑‑Election of returned candidate was challenged by unsuccessful candidate through Election petition‑‑­Application of unsuccessful candidates for recounting of votes, initially was dismissed by Election Tribunal, but subsequently when matter was fixed for pronouncement of judgment, Election Tribunal on perusal of record arrived at the conclusion that recounting of ballot papers of two Polling Stations was essential‑‑‑Election Tribunal passed suo motu order for recounting of votes of said two Polling Stations‑‑‑Said order of Election Tribunal was challenged by returned candidate alleging that Election Tribunal had no power to recount the ballot papers and that Election Tribunal had committed illegality in reviewing its own order‑‑‑Validity‑‑‑Certain restrictions though had been imposed on the powers of Returning Officer in respect of recounting, but Election Tribunal had ample powers to scrutinize the validity of ballot papers and votes polled in favour of contestants‑‑‑Election Tribunal having assigned very cogent and plausible reasons for recounting of votes, its order not suffering from any illegality or impropriety, could not be interfered with.

Iftikharuddin and another v. The State 2002 SCMR 1523 ref.

Anwar Jamal for Petitioner.

N.H. Pirzada for Respondent No. 1

Masood A. Noorani, Addl. A.‑G.

Date of hearing :11th December, 2003.

2004 Y L R 1549

[Karachi]

Before Muhammad Moosa K. Leghari and Azizullah M. Memon, JJ

Syed FARMAN ALI SHAH‑‑‑Petitioner

Versus

MUHAMMAD AYOOB and others‑‑‑Respondents

Constitutional Petition No.D‑204 of 2003, decided on 2nd December, 2003.

(a) Sindh Local Government Election Rules, 2000‑‑‑--

‑‑‑‑Rr.39, 40, 73, 74 & 79‑‑‑Constitution o Pakistan (1973), Art. 199‑‑‑Constitutiona petition‑‑‑Calling record of certain Polling Station‑‑‑Powers of Election Tribunal‑‑­Application by unsuccessful candidate wherein record of election of Nazim and Naib Nazim in respect of certain Polling Stations was sought to be called and Ballot Papers Form was sought to be perused after opening the seal of bags, was accepted by Election Tribunal‑‑‑Purpose behind moving said application for summoning record was to determine the valid votes and to segregate same from invalid votes and to check the forgeries, if any, committed during the counting of votes‑‑‑Election Tribunal had the power to summon the record and to scrutinize the ballot papers‑‑­Scrutiny of each ballot paper by the Tribunal was to examine and verify as to whether Presiding Officers of all Polling Stations had correctly counted the Ballot Papers or trot and was in the interest of justice and fairplay‑‑‑Application of un­returned candidate was rightly accepted by Election Tribunal.

Sheikh Iftikhtar‑ud‑Din v. District Judge 2002 SCMR 1523 ref.

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

‑‑‑‑O.XLVII, R.1‑‑‑Review of judgment‑‑­Scope‑‑‑Review was restricted to some mistake or error apparent on the face of record; discovery of new or important matter or evidence, which, despite due diligence, was not within the knowledge of petitioner, when order was passed‑‑‑Order in the present case, having been passed by consent of parties and in their presence, none of the said grounds was available to the petitioner to maintain review petition‑‑­Petition for review was rightly dismissed, in circumstances.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑ Scope‑‑‑Constitutional jurisdiction was a discretionary jurisdiction and was meant to advance the cause of justice which in no case was to be exercised to thwart the process of law and to perpetuate injustice‑‑­No injustice having been caused to petitioner, no interference in Constitutional jurisdiction was warranted‑‑‑Constitutional petition being devoid of merit, was dismissed.

Ejaz Ali Hakro for Petitioner.

Kamal‑ud‑Din for Respondents Nos. 1 and 5.

Masood A. Noorani, Addl. A.‑G. on Court notice.

Date of hearing: 2nd December, 2003.

2004 Y L R 1553

[Karachi]

Before Muhammad Moosa K. Leghari, J

NASIR HUSSAIN ‑‑‑Applicant

versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No. 629 of 2003, decided on 5th December, 2003.

(a) Practice and procedure‑‑‑

‑‑‑‑Criminal proceedings were not barred in presence of civil proceedings‑‑‑Verdict in criminal proceedings however, could not be pronounced till the result of civil case.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.420/489‑F/506(2)‑‑‑Bail, grant of‑‑­Complainant had also filed a summary suit for recovery of amount in which leave to defend suit had been granted to accused subject to condition of furnishing security and said security had been deposited by accused‑‑‑Offence alleged against accused was punishable by three years and criminal case against accused was not expected to be disposed of expeditiously‑‑‑Accused, who remained in custody for a period of five months, was entitled to grant of bail.

Syed Madad Ali Shah for Applicant.

Anwar H. Ansari for the State.

Allah Bachayo Soomro for the Complainant.

2004 Y L R 1557

[Karachi]

Before Muhammad Afzal Soomro, J

ALI MUHAMMAD and 6 others‑‑‑Applicants

versus

THE STATE ‑‑‑Respondent

Criminal Bail Applications Nos. 31 and 64 of 2004, decided on 26th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/337‑A(i), F(I), L(1)l504/147/148/ 149‑‑‑Bail, grant of‑‑‑Names of some accused persons, no doubt found place in F.I.R. and they associated with co‑accused, but remaining accused had not been assigned any specific role except that either they were armed with lathi or caused kicks and fists blows to complainant party‑‑‑Trial Court was directed to conclude the trial within a period of six months, but not a single witness was stated to have been examined so far‑‑‑Accused having been able to make out case for bail, they were granted bail.

Abdul Aziz v: The State 1996 SCMR 1693; Allah Dino v. The State 1999 SCMR 1320; Faraz Akram v. The State 1999 SCMR 1360; Muhammad Aslam v. The State 1999 SCMR 2147; Farzad Ali v. Taj and others 2000 SCMR 1854; Shahin v. The State 2003 MLD 1715 and Sher Muhammad and others v. The State 2004 YLR 121 ref.

Syed Madad Ali Shah for Applicants.

Mumtaz Alam Leghari for the State.

2004 Y L R 1562

[Karachi]

Before Raja Qureshi and M. Shaiq Usmani, JJ

GUL HASSAN alias NADEEM‑‑‑Applicant

versus

THE STATE ‑‑‑Respondent

Criminal Bail Applications Nos.347 and 395 of 1998, decided on 5th August, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Explosive Substances Act (VI of 1908), Ss. 3, 4 & 7‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i), 427 & 147‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Nothing was available on record to attribute to accused any act of subversion or sabotage‑‑‑Even reports of Experts were not available on record to demonstrate that damage caused to the glasses of Bus was in consequence of an explosive substance or some other material or whether substance applied for causing such damage as alleged in F.I.R. was serviceable or not‑‑‑All such aspects would render case of accused to fall within scope of further inquiry as contemplated by subsection (2) of S. 497 Cr. P. C. ‑‑‑Accused were admitted to bail, in circumstances.

Ihsanullah v. The State PLD 1995 Pesh. 106 ref.

Faiz Muhammad Qureshi for Applicant (in Cr. B.A. No.347 of 1998).

S. Madad Ali Shah for Applicant (in Cr. B.A. No.395 of 1998).

Ghulam Shabir Memon for the State.

2004 Y L R 1564

[Karachi]

Before Rasheed A. Razvi, J

Mst. ERUM SAGHIR KHAN‑‑‑Petitioner

Versus

Khawaja IMRAN‑UD‑DIN and others‑‑‑Respondents

Constitution Petition No.S‑42 of 1999, decided on 12th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus Petition‑‑­Custody of female child‑‑‑Petitioner, who was mother of the alleged female detenue (aged 5‑1 /2 years) had filed petition under S. 491, Cr. P. C. against her husband/father of alleged detenue‑‑‑Petitioner claimed that custody of minor/alleged detenue always remained with her and one day respondent obtained custody of minor from petitioner with the assurance to send minor to school on re‑opening of school after Eid holidays, but did not send the minor to school‑‑‑Facts and circumstances of the case had fully supported claim of petitioner that she had the custody of minor and as a temporary arrangement custody of minor was delivered to respondent with clear understanding that after Eid holidays he would send minor to school, which was not done by him‑‑‑On filing petition by petitioner under S.491, Cr.P.C., and after issuance of notice to respondent in that respect, respondent filed suit against petitioner to frustrate proceedings of petition under S.491, Cr.P.C.‑‑‑Both parties belonged to Sunni faith and according to that faith, petitioner/mother of female minor was entitled to custody of female child until her age of puberty‑‑­Alleged detenue was suffering from some eye‑disease, for which supervision of mother was very necessary‑‑‑Minor was handed over to petitioner and arrangements were made whereby respondent was permitted to have custody of minor on specified day from house of petitioner and to return her there.

Mst. Tauqir Fatima v. Iqbal Shah and another 1990 PCr.LJ 342; Mst. Mukhtar Mai v. Allah Rakhia NLR 1998 Cr.LJ 217; Mst. Dilbar Jan v. Khan Muhammad 1992 PCr.LJ 683; Mst. Naziran Bibi v. Shamira and 2 others 1998 PCr.LJ 1027; Mst. Zubaida Khatoon alias Aqleema Hatoon alias Parveen v. Saadullah A. Siddiqui and 4 others 1992 PCr.LJ 690; Jamshed Burke v. Jalal Masih 1996 PCr.LJ 1453; Mudabbir Ali Qureshi v. Mrs. Surriya Mudabbir and others 1995 PCr. LJ 30; Mst. Pari Bai v. Amrat Lal and others 1997 PCr.LJ 105; Mst. Khalida Begum v. Muhammad Altaf 1983 CLC 678; Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268; Muhammad Javed Umroa v. Miss Uzma 1988 SCMR 1891; Muhammad Khalil‑ur‑Rehman v. Miss Shabana Rahman and another PLD 1995 SC 633; Saadia Ahmed v. The State and 3 others 1996 MLD 30; Hina Jilani v. Sohail Butt PLD 1995 Lah. 151; Mst. Nasim Akhtar v. Sheikh Gulzar Ahmed and 4 others 1995 PCr.LJ 474 and Muhammad Hiroku v. Muhammad Latif 1994 MLD 1682 ref.

Ms. Aftab Bano Rajput for Petitioner.

Haseebur Rehman for Respondent No. 1.

2004 Y L R 1572

[Karachi]

Before Muhammad Roshan Essani, J

RAMZAN‑‑‑Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.315 of 2003, decided on 11th August 2003.

Criminal Procedure Code (V of 189R)‑‑‑--

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.392/412‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Neither any F.I.R. was registered with regard to alleged robbery of motorcycle nor any person appeared before police and claimed motorcycle to be stolen property, even the charge sheet was silent in that context‑‑‑Name of alleged owner of motorcycle did not transpire in the charge‑sheet‑‑‑Case had been sent up for trial and accused was no more required for the purpose of investigation‑‑‑Case required further inquiry as contemplated under S.497(2), Cr. P. C. ‑‑‑Accused was admitted to bail, in circumstances.

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

Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for the State.

2004 Y L R 1573

[Karachi]

Before Muhammad Moosa K. Leghari J

AHMED KHAN and 2 others‑‑‑Appellants

Versus

CHATRO and 2 others‑‑‑Respondents

Criminal Appeals Nos.36 of 1998 and 41 of 2000, heard on 2nd December, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 220/337‑E(i)‑‑‑ Appreciation of evidence‑‑‑Charge, in the case was framed under S.337‑E(i), P.P.C. which carried definitions of the offences, while the punishment in respect of said offences had been provided under S.337‑F, P. P. C. ‑‑­Charge, in circumstances was defective which had vitiated the trial‑‑‑Conviction of accused recorded under S.337‑E(i), P.P.C. was also unsustainable‑‑‑Judgment of conviction passed against accused, was set aside and case was remanded to Trial Court for proceeding afresh after framing a proper charge in accordance with law.

Madad Ali Shah for Appellants.

Respondent Mevo in person, while Chatro is reported to be dead.

Date of hearing: 2nd December, 2003.

2004 Y L R 1576

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

AMIR ALI‑‑‑Plaintiff

Versus

INDUS ENTERTAINMENT (PVT.) LTD., and others‑‑‑Defendants

C.M.A. No.3065 of 2003 (in Suit No.370 of 2003), decided on 15th September, 2003.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑O. XII, R.6‑‑‑Judgment on admission‑‑­Admission by defendant‑‑‑Grievance of plaintiff was that defendant was using residential plot for commercial purposes‑‑­Assertion made by the plaintiff in the plaint was admitted by the defendant but his defence was that the proceedings for change of use of the plot were pending decision before the authorities‑‑­Effect ‑‑‑Clear and unambiguous admission of the fact on the part of the defendant being on record, suit was decreed under O. XII, R. 6, C. P. C.

Khalid Jawaid for the Plaintiff.

Zayyad Khan Abbasi for Defendant No. 1.

Raja Sikandar Khan Yasir for Defendant No.4.

2004 Y L R 1580

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD RAFIQ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.62 of 1999, decided on 13th August, 2003.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 409, 420, 468 & 471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑­Appreciation of evidence‑‑‑Complainant having taken over the charge of his post much after the incident and being not present at the relevant time, his oral evidence being hearsay evidence was inadmissible in evidence‑‑‑Best relevant piece of evidence on the subject had been Withheld by the prosecution for the reasons best known to it and a presumption under the law could fairly be drawn that had the same been recorded it would have not supported the prosecution case‑‑­Prosecution witnesses either had not fully supported the case of prosecution against the accused or their evidence being defective in many respects did not prove his guilty conscience‑‑‑Something more was required to prove the allegations against the accused which was missing‑‑­Documentary evidence placed on record did not prove that the accused had misappropriated any amount‑‑‑Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

(b) Criminal trial‑‑‑

‑‑‑‑ Withholding of evidence by prosecu­tion ‑‑‑Presumption‑‑‑If a best piece of evidence available with the prosecution is withheld, then it is presumed that the prosecution has some sinister motive behind it.

Sayed Suleman Badshah for Appellant.

Khurshid A. Hashmi, D.A.‑G. for the State.

Date of hearing: 13th August, 2003.

2004 Y L R 1597

[Karachi]

Before Shabbir Ahmad and Azizullah M. Memon, JJ

Qazi MAHFOOZ AHMED ‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH‑‑‑Respondent

Civil Petition No.D‑1798 of 2000, decided on 19th March, 2003.

Constitution of Pakistan (1973)‑‑--

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑­Maxim audi alteram partem‑‑Applic­ability‑‑‑Judicial order striking down by administrative order‑‑‑Provincial Board of Revenue, while passing judicial order, directed the authorities to allot a plot to the petitioner‑‑‑Authorities informed the petitioner that plot could not be allotted to him‑-‑Contention of the petitioner was that the judicial order had been struck down by the administrative order without notice to him‑‑‑Petitioner further contended that judicial order could not be set aside on the administrative side‑‑‑Validity‑‑‑Orders of the authorities passed against petitioner whereby direction of Board of Revenue passed on judicial side .had been rescinded without notice to petitioner offended the principles of natural justice enshrined in audi alteram partem‑‑‑Orders passed by the authorities were illegal, without lawful authority and were set aside‑‑­Constitutional petition was allowed accordingly.

Muhammad Muzzaffar‑ul‑Haq for Petitioner.

Nemo for Respondent.

2004 Y L R 1598

[Karachi]

Before Muhammad Ashraf Leghari, J

KHAIR MUHAMMAD ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.663 of 2003, decided on 15th December, 2003.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1850), Ss.302/324/504/147/148/149‑‑‑Pre‑arrest bail, grant of‑‑‑One of the accused persons had also sustained injuries at the hands of complainant party and accused party had also lodged F.I.R. against complainant party which was prior in time‑‑‑Injuries to accused had been suppressed by complainant in the F.I.R.‑‑‑No overt act had been attributed to the accused‑‑­Accused was allegedly armed with `Danda' which had not been used by him‑‑‑Vicarious liability of accused was yet to be established at the time of trial‑‑‑Accused, in circumstances of the case appeared to have been implicated due to his relationship with main accused and his arrest at the hands of police was mala fide and for ulterior motive‑‑‑Pre‑arrest bail, was granted to accused, in circumstances.

Abdul Rasool Abbasi for Applicant.

Miss Parvin Chachar for the State.

2004 Y L R 1605

[Karachi]

Before Muhammad Afzal Soomro, J

GULZAR and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.482 of 2003; decided on 17th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑‑Accused were apparently involved in the case in the background of enmity between the parties‑‑­Name of accused persons did not find place in the F.I.R. and no identification test had taken place in presence of the Magistrate‑‑­Nothing incriminating was secured from possession of accused‑‑‑Only piece of evidence against accused persons was the evidence of last seen‑‑‑Accused having been able to make out a case for bail, they were granted bail in circumstances.

Muhammad Jamil v. Shaukat Ali and another 1996 SCMR 1685; Abdul Saleem v. The State 1998 SCMR 1578 and Mir Hazar Malik v. The State 1999 SCMR 1377 ref.

Abdul Rasool Abbassi for Applicants.

Mumtaz Alam Leghari for the State.

2004 Y L R 1606

[Karachi]

Before Muhammad Sadiq Leghari, J

Mst. QURESHIA BEGUM‑‑‑Applicant

Versus

MUHAMMAD SUALEHEEN and others‑‑‑Respondents

Revision Application No.44 of 2002 decided on 12th August, 2003.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Rejection of plaint‑‑­Declaration of title, non‑seeking of‑‑­Plaintiff, was mother of defendant and dispute between them was with regard to purchase of suit property‑‑‑Plaintiff claimed to have purchased the property and got the general power of attorney executed, in favour of the defendant for the purposes of looking after the affairs of the property‑‑­Defendant denied the assertions made by the plaintiff and claimed to be the purchaser of the property‑‑‑Vendor admitted the averments trade by the plaintiff in her plaint‑‑‑Both the Courts below rejected the plaint for the reason that no declaration of title was sought by the plaintiff rather only declaration regarding purchase of the suit property was sought‑‑­Validity‑‑‑Title documents were yet to be issued, therefore, the prayer for declaration that the plaintiff and not the defendant was purchaser of the suit property was in fact declaration of ownership by way of purchase‑‑‑Both the Courts below had wrongly held that no declaration relating to the ownership had been asked for‑‑‑Two Courts below could not record finding relating to power‑of‑attorney ignoring the pleadings of plaintiff in her plaint and without providing her opportunity to adduce evidence on the issue‑‑‑Both the Courts below while rejecting the plaint had acted illegally‑‑‑Case was remanded to Trial Court for decision on merits.

Muhammad Ali Waris for Applicant.

Muhammad Nasrullah Siddiqui for Respondent.

2004 Y L R 1648

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

CITIZEN ADVICE FORUM‑‑‑Petitioner

Versus

HANIEF and others‑‑‑Respondents

Civil Petition No.D‑1891 of 2001, decided on 8th October, 2003.

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

‑‑‑‑Ss. 35 & 40‑‑‑Sindh Buildings Control Ordinance (V of 1979), Ss. 6, 7‑A, 16 & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­ Functions of Zila Council‑‑Prima facie, the functions of Provincial Government in the area of Master Planning Land Use, Zoning, Urban Design Building Rules and Planning Standards, stood devolved upon Zila Council in city Districts under Ss.35 & 40 read with Part `D' of the Ist Schedule to Sindh Local Government Ordinance, 2001‑‑‑Provisions of Sindh Buildings Control Ordinance, 1979, however, would remain on Statute Book and continue to remain operative‑‑‑Even if it be assumed that all powers available to the Provincial Government stood transferred to City District Government, fact would remain that Provincial Government itself could only exercise such powers, which were available to it under the Law‑‑‑Provisions of Ss. 7‑A & 6 of Sindh Building Control Ordinance, 1979 had made it obligatory upon Karachi Building Control Authority to enforce the law by demolishing any building where violation of S.6(1) of the Ordinance, 1979 had taken place‑‑‑Such duty was not optional, but had been enforced by High Court as well as by Supreme Court in a large number of cases‑‑‑City District Government or City Nazim had no jurisdiction to undertake scrutiny of cases where factum of violation of law had been established‑‑‑Duty to demolish a building constructed in violation of S.6 of Sindh Building Control Ordinance, 1979, would continue to rest with Karachi Building Control Authority and directions of City District Nazim requiring that every case of demolition should be put up before him, were unlawful‑‑‑Where appeals had been preferred against the orders passed by Karachi Building Control Authority under S.16 of Sindh Buildings Control Ordinance, 1979 and such appeals were required to be heard by Nazim under the relevant rules, he could have necessary concomitant‑‑­Karachi Building Control Authority was required to take appropriate action under S. 7‑A of Sindh Buildings Control Ordinance, 1979 unless restrained from doing so by a Court of law or competent Appellate Authority.

Shahid Jamiluddin Khan and Anwar Ali Shah for Respondent No.2.

Manzoor Ahmad for Respondent No. 3.

Dr. Qazi Khalid Ali, Additional Advocate‑General.

2004 Y L R 1666

[Karachi]

Before Amir Hani Muslim, J

RAMJI KOLHI ‑Petitioner

Versus

SHRIMATI BADI KOLHI and others‑‑‑Respondents

Civil, Petition No.S‑119 of 2002 decided on 8th September, 2003.

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

‑‑‑‑S. 5 & Sched.‑‑‑Civil Procedure Code (V of 1908), O.XXXII, R.7‑‑‑Constitrttion of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage by Hindu wife‑‑‑Suit was filed by Hindu wife against her husband on grounds of impotency, imbalance of mind, cruelty, harshness and danger to her life from his hands‑‑‑Trial Court, after hearing parties, decreed the suit‑‑‑Judgment of Trial Court, though was not a reasonable and/or a detailed judgment, but when allegations of danger to life, ground of impotency and unsound mind of defendant husband had been raised by plaintiff, then defendant should have volunteered for examination as provided under O.XXXII, R.7, C.P.C. whereby he could be referred to for medical examination‑‑‑Question of impotency of defendant was of material concern, but no issue was framed in that respect‑‑‑Even if judgment of Trial Court was unreasoned, it had done substantial justice by reaching appropriate findings‑‑‑Proposition that in Pakistan, Family Courts should be abolished and authority be given to the Punchayat of Hindu Community to decide matrimonial disputes between parties, who were Hindus, could not be accepted‑‑­Parties could easily approach a Court of Law rather than to persuade a Punchayat for decision‑‑‑Even otherwise West Pakistan Family Courts Act, 1964 fully took note of all customs practiced in any religion, which included Hindu Religion‑‑­Substantial justice having been done to plaintiff, Constitutional petition against judgment of Trial Court, was dismissed.

1991 S C M R 681; AIR 19,85 Del. 14; AIR 1958 A.J. 611; AIR 1941 Bom. 298 and AIR 1968 SC 142 ref.

Syed Muhammad Haroon Rashid for Petitioner.

Msood A. Noorani, Additional A.-G. and Jhamat Jethanand as (Amicus curiae) for Respondents.

Date of hearing: 8th September, 2003.

2004 Y L R 1725

[Karachi]

Before Muhammad Sadiq Leghari, J

Mst. SHIRIN BAI‑‑‑Petitioner

Versus

FAMOUS ART (PVT.) LTD. and others‑‑‑Respondents

Constitutional Petition No.S‑1124 of 2002, decided on 18th August, 2003.

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

‑‑‑‑S. 15 (2) (vii)‑‑‑Bona fide personal need of landlord‑‑‑Shifting of business by landlord from rented premises to the premises in question‑‑‑Landlady filed ejectment application against tenant on ground that her two sons, who were running Computer Training Institute in a rented premises wanted to shift their business to premises in question‑‑­Landlady, though had prerogative of choosing any of her premises for personal use, but the prerogative of landlady and her evidence relating to her personal need had to be reasonable and convincing‑‑‑In cases of shifting the business, the principle of reasonableness was fully applicable and it was to be seen as to whether the premises where an established business was to be shifted were relatively preferable and suitable‑‑‑Hardly two years before the filing of ejectment application, sons of landlady had selected an area for starting their Computer Institute‑‑‑Evidence on record had proved that after starting the business they had established the same‑‑‑Nothing was on record which could indicate that start of business and establishment thereof were all temporary and had to be shifted to premises in question, nor was anything in the evidence that environments at area where they started business were no more suitable for business‑‑‑Place where sons of landlady started their business was an ideal location for said business as in that area many computer related firms/institutions and markets were available besides many prestigious educational institutions‑‑‑Plea of shifting of established business from that environment to the premises in question which was surrounded by noisy printing presses where no computer related firm or institution was existing, was not acceptable ‑‑‑Ejectment application filed by landlady being merit less, was rightly dismissed by Rent Controller and Appellate Authority below.

Abul Inam for Petitioner.

Mushtaq A. Memon for Respondent No.1.

Date of hearing: 18th August, 2003.

2004 Y L R 1738

[Karachi]

Before Ghulam Nabi Soomro, J

Mst. ZAHRA BANO‑‑‑ Petitioner

Versus

Mst. BILQEES QADIR and others‑‑‑Respondents

Constitution Petition No.S‑1029 of 2002, decided on 29th October, 2003.

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

‑‑‑‑S. 15 (2) (vii)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Bona fide personal need of landlady‑‑­Question of title in respect of premises in question‑‑‑Tenant had asserted that landlady seeking ejectment of tenant on ground of her personal need, first of all, was required to prove that she was owner of the premises in question‑‑‑Tenant had not challenged landlady's title as owner of premises in question either in written statement filed before Rent Controller or before Appellate Court‑‑‑Tenant, in circumstances was not entitled to raise such question in the Constitutional petition.

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

‑‑‑‑S. 15 (2) (vii)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­ Bona fide personal need of landlady‑‑­Insufficiency of accommodation ‑‑‑Proof—Sufficiency or insufficiency of accommodation depended upon facts and circumstances of each case, the nature and extent of necessity and living style of the owner of premises and other like considerations‑‑‑Evidence on record was properly appreciated both by Rent Controller and Appellate Court‑‑‑Tenant had not disputed status of respondent as owner of premises in question‑‑­ Respondent/landlady's claim with regard to her personal need in respect of premises in question, could not be dislodged on sole ground of her failure to bring herself in the witness‑box‑‑‑No material irregularity or any jurisdictional error or defect in concurrent findings of Courts below of competent jurisdiction, having been pointed out, Constitutional petition against their concurrent judgments, was dismissed.

2001 MLD 1183; PLD 1978 Kar.188; PLD 1985 SC 1; 1981 SCMR 1081; 1973 SCMR 893; 2000 SCMR 1613; 1999 SCMR 1796; 2000 SCMR 1960 and 2002 SCMR 429 ref.

Mirza Waqar Hussain for Petitioner.

Moula Bux Khoso for Respondent No. 1.

Date of hearing: 6th October, 2003.

2004 Y L R 1805

[Karachi]

Before Muhammad Sadiq Leghari, J

Mst. MALKA‑‑‑Petitioner

Versus

YASMIN CARIM and others‑‑‑Respondents

Constitutional Petition No.274 of 2003, decided on 24th October, 2003.

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

‑‑‑‑S. 15(ii) & (iii)(a)‑‑‑Ejectment of tenant on ground of default in payment of rent and subletting of premises‑‑‑Default in payment of rent of premises for one month had fully been established‑‑‑Tenancy in respect of shops in question was in the individual name of tenant and in her personal capacity‑‑‑Induction of other company in said shops legally would amount to be parting with personal possession of tenant which amounted to subletting‑‑‑Admittedly rent for three months was deposited in the account of landlord by said other company which was not accepted by landlord and tenant had to deposit said rent herself‑‑­Evidence on record, in circumstances had established subletting of shops in question‑‑‑Tenant being responsible for default in payment of rent and subletting of shops was liable to ejectment on said two grounds.

Manek J. Mobed and another v. Shah Behram and others PLD 1974 SC 351 and Roshan Ali v. The Standard Insurance Co. Ltd. 1986 CLC 953 ref.

Zafar Alam Khan for Petitioner.

Abdus Samad for Respondent No. 1.

Date of hearing: 3rd September, 2003.

2004 Y L R 1811

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

Mst. NISHAT MUSHTAQ‑‑‑Appellant

Versus

KARACHI DEVELOPMENT AUTHORITY and others ‑‑Respondents

H.C.A. No.66 of 1991, decided on 15th January, 2004.

(a) Karachi Development Authority Order (P.O.V of 1957)‑‑‑--

‑‑‑Art.131(1)‑‑‑Disposal of Lands and Estates Regulations, Regln.23—Law Reforms Ordinance (XII of 1972), S.3‑‑Intra‑Court‑Appeal‑‑‑Adjacent land­ Entitlement to allotment‑‑‑Precondition of prior notice of suit against Authority‑‑­Object and scope‑‑‑Plaintiff was owner of plot adjacent to the disputed piece of land for which he applied to Karachi Development Authority for its allotment‑‑­Authority declined to allot the plot to the plaintiff` on the ground that the same was reserved for some other purpose‑‑­Subsequently, on the direction of Chief Minister, the disputed piece of land was carved into a residential plot and the same was allotted to the defendant‑‑‑Plea raised by the Authority was that the plaintiff had not given notice was required under Art. 131 of Karachi Development Authority Order, 1957‑‑‑Validity‑‑‑Object of prior notice under Art.131(1) of Karachi Development Authority Order, 1957, was only to enable the Authority to rectify its mistakes before embroiling itself in litigation‑‑‑Once a notice had been served, there was no need to serve fresh notices before institution of any proceedings founded upon the same cause of action‑‑‑Provisions requiring notice to a party as, precondition for initiating proceedings had to be liberally construed‑‑‑Different construction of Art. 131(1) of Karachi Development Authority Order, 1957, would amount to make a fetish of a technicality‑‑‑Scheme in which the suit‑land was situated, as it originally stood did not provide any plot of area as of the disputed piece of land, therefore, it did not fulfill one of the material ingredients of Regln.23 of Disposal of Lands and Estates Regulations‑‑ Allotment was made on the direction of the then Chief Minister, after assurance of the Authority to the plaintiff that the disputed piece of land would not be allotted either to him or to any other person‑‑ Law did not recognize the allotment as the same was the domain of either of the Allotment Committee or the Governing Body of Karachi Development Authority to allot the land‑‑‑Neither the Chief Minister nor Provincial Government were empowered under Karachi Development Authority Order, 1957, either to allot or to, give direction regarding allotment of any plot‑‑‑Creation of independent residential plot of less area was against the spirit of scheme and the same was with the sole object to deprive and defeat the right of the plaintiff for allotment of the extra land—Karachi Development Authority in law had no discretion to allot such extra land to the defendant by creating independent residential plot‑‑Allotment of the disputed area in favour of the defendant was bad in law and was violative of Regln. 23 of Disposal of Land and Estate Regulations‑‑­Allotment/lease of disputed land in favour of the defendant and its subsequent transfer were without lawful authority‑‑‑Judgment and decree passed by the Judge in Chambers was set aside and the suit was decreed in favour of the plaintiff‑‑‑Intra­ Court Appeal was allowed in circum­stances.

Munawar and Co. (Pvt.) Ltd. v. Karachi Development Authority 1998 MLD 1771; Bachan Khan v. Fasahat Ali Civil Appeal No.83‑K of 1987; Bhagchand v. Secy. Of State AIR 1927 Privy Council 176: Someshwar v. Tribhawan AIR 1934 Privy Council 130 and Flour Mills Employee's Union v. Karachi Steam Roller Flour Mills Co. Ltd. PLD 1964 Kar. 587 ref.

(b) Specific Relief Art (I of 1877)‑--

‑‑‑‑‑Ss.8 & 9‑‑‑Recovery of possession of immovable property‑‑‑Principle‑‑‑Recovery of possession under S.9 of Specific Relief Act, 1877, must be preceded by dispossession without the consent of: the plaintiff, who may recover the possession in a particular manner‑‑‑Person entitled to possession may recover the same under S.8 of Specific Relief Act, 1877, in the manner prescribed in Civil Procedure Code, 1908.

(c) Words and phrases‑‑‑--

‑‑‑‑Title‑‑‑Meaning.

Black's Law Dictionary ref.

Iqbal Kazi for appellant.

Syed Muzaffar Imam for Respondent No. 1.

Muhammad Sharif for Respondents Nos. 2 to 4.

Date of hearing: 18th, 20th November 2003, 2nd and 9th December, 2003.

2004 Y L R 1826

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD MUSTAQEEM‑‑‑Petitioner

Versus

Mst. SHAHEEN AKHTAR and others‑‑‑Respondents

Constitution Petition No.S‑76 of 2003, decided on 21st February, 2003.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Suit for dissolution of marriage, payment of maintenance and dower‑‑‑Plaintiff herself appeared in Court to depose in support of her pleadings and by leading adequate evidence had fully proved maltreatment of husband towards her, non‑maintenance and non‑payment of dower amount to her‑‑‑Wife was duly cross‑examined by defendant, but her evidence on said points remained unshaken‑‑‑Defendant on the other hand opted not to lead any evidence before Trial Court in rebuttal‑‑‑Family Court and Appellate Court, in circumstances had rightly decreed the suit‑‑‑In absence of any perversity, illegality or infirmity, concurrent judgments and decrees of Courts below, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Constitutional jurisdiction was discretionary in nature which was meant to foster justice and to remedy the wrong, but could not be allowed to be invoked in routine course as an additional remedy to hamper the finding of fact correctly recorded by forums below.

S.M. Zafar for Petitioner.

Date of hearing: 21st February, 2003.

2004 Y L R 1835

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD KHALID‑‑‑Applicant

Versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No.453 of 2002, decided on 1st September, 2003.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.335‑‑‑Pre‑arrest bail, grant of‑‑­Application for‑‑‑Not only name of accused was mentioned in F.I.R., but a specific role had been assigned to him‑‑‑Section 335, P.P.C. with which accused had been charged having provided punishment up to 10 years in addition to 'Arsh', prohibitory clause in S. 497(1), Cr.P.C. was applicable to the case‑‑‑Since there was partial dislocation of teeth, same was declared to be permanent damage and Itlaf‑e-­Salahiyat‑e‑Udw i.e. tooth for tooth‑‑­Interim bail granted to accused, could not be confirmed, in circumstances.

Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380 and Rana Phool Muhammad Khan and others v. The State 1975 SCMR 137 ref.

Nooruddin Sarki and Nizamuddin Memon for Applicant.

Sardaruddin for the State.

Mehmood A. Qureshi for the Complainant.

2004 Y L R 1838

[Karachi]

Before Muhammad Afzal Soomro, J

ATTA MUHAMMAD and others‑‑‑Applicants

Versus

THE STATE ‑‑‑Respondent

Criminal Bail No. 1103 of 2003, decided on 28th October, 2003.

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

‑‑‑‑S. 497‑‑‑Prevention and Control of Human Tracking Ordinance (LIX of 2002), Ss.3(iii) & 4‑‑‑Bail, grant of‑‑­Children had themselves disclosed that they left Pakistan while they were 3‑4 years old with their uncle and after about six years when they became 9‑10 years old arrived in Pakistan‑‑‑According to children their uncle accompanied them who on reaching Karachi Airport disappeared leaving them alone‑‑‑Children had further disclosed that while they were in Abu Dhabi they used to live in a Camel compound and their Shaikh (Kafeel) used to pay 500 to 600 Rival p.m. salary to them which was being directly received‑by their uncle who used to send same to the parents of children in Pakistan‑‑‑Both children used to work as Camel Jockey‑‑‑Said facts had revealed that father of both children including carrier (uncle of children) knowingly transported said children to Abu Dhabi, detained them there for the purpose of exploitative entertainment and had received monitory benefit in lieu of services‑rendered by their children as Camel Jockey, through coercion‑‑‑Bail, could not be granted to accused.

K. Ali Nazar for Applicant.

S. Mehmood Alam Rizvi, Standing Counsel for the State.

Date of hearing: 28th October, 2003.

2004 Y L R 1906

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

BARKAT ALI---Appellant

Versus

MAZAR and another ---Respondents

Criminal Acquittal Appeal No.24 of 2003, decided on 26th August, 2003.

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

----S.417---Penal Code (XLV of 1850), S.382---Appeal against acquittal---Incident was unwitnessed---Complainant/appellant had stated that he approached S.H.O. on several occasions, but his F.I.R. was not recorded---Complainant, however conceded that no application was made to Higher Authorities about the conduct of S.H.O. for non-recording of F.I.R. and had submitted that only telegram was sent to S. S. P. and D.C.--Direct complaint was directed by complainant after more than 10 days of alleged commission of offence---Case of prosecution being deficient in to ocular testimony, benefit of doubt was to be extended to accused---Conflict was, between evidence of complainant and prosecution witnesses---State-counsel also had submitted that acquittal judgment was based on proper appreciation of evidence--­Appellant/complainant was unable to cite any illegality of infirmity or non- appreciation of evidence, by Trial Court and view taken by Trial Court was based on proper appreciation of fact and law---There was conflicting evidence regarding commission of offence---Acquittal judgment, could not be set aside unless there was misreading of evidence or any other illegality committed by Trial Court ,while holding the Trial--In absence of said, mis­reading of evidence or any other illegality, appeal against acquittal was dismissed.

Raboo v. The State KLR 2002 Criminal (H/abad) 51 ref.

(b) Criminal Trial---

----Benefit of doubt---For giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts---If there was circumstance which had created reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to benefit of such doubt, not as a matter of grace, but as a matter of right---Where evidence would create doubt about the truthfulness of prosecution story, its benefit had to be given to accused without any reservation--­Benefit of doubt was a right of accused.

Muhammad Ilyas v. The State 1997 SCMR 25 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Abdul Rehman Bhutto for Appellant.

Altaf Hussain Surahiyo for Respondent No.1.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 26th August, 2003.

2004 Y L R 1991

[Karachi]

Before Muhammad Afzal Soomro, J

ALI KHAN---Applicant

Versus

PROVINCE OF SINDH through Secretary, Government of Sindh Works and Communications Department and 5 others---Respondents

Civil Revision Application No.234 of 2003,­ decided on 12th April, 2004.

(a) National Highway Authority Act (IV of 1991)-----

----S. 12---Recovery of possession--­Jurisdiction of Authority---Scope--­Authority has power under S.12 of National Highway Authority Act, 1991, to summarily eject any unauthorized occupant of National Highway or strategic road or proposed site thereof and demolish and remove any structure thereon.

(b) National Highway Authority Act (IV of 1991)---

----Ss. 12 & 20---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), S.115 & O. VII, R. 11 --- Plaint, rejection of---Factual controversy ---Non­ 4recording of evidence---Exercise of suo motu powers by Trial Court---Plaintiff claimed to be the owner of suit-land but the Authority intended to eject him in exercise of powers under S.12 of National Highway Authority Act, 1991---Plaint was rejected by the Trial Court on the ground that the Authority could eject the plaintiff under the provisions of National Highway Authority Act, 1991---Order passed by the Trial Court was maintained by Appellate Court--­ Validity---Point regarding lawful ownership of the suit-land or being unauthorized occupant whom National Highway Authority could eject under S.12 of the National Highway Authority Act, 1991, could only be decided after recording of evidence without which justice could not be dispensed with to either of the parties---Trial Court was not supposed to pass the judgment rejecting plaint under O. VII, R. 11, C. P. C. suo motu while deciding application fled under O.XXXIX, Rr. 1 & 2, C. P. C. by plaintiff for getting interim stay---Such judgment was passed without putting the plaintiff on notice enabling him or his counsel to come prepared on such point---High Court condemned such practice of getting disposal of cases in short-cut manner as in the opinion of High Court the same had become common in the Lower Judiciary and the Judges mostly try to get the units to be shown to High Court on its administrative side, reject the plaints under O. VII, R. II, C. P. C. without considering 'that their hasty order could cause irreparable loss to the plaintiffs---Trial Court either having poor knowledge about the law of interpretation or for getting the units, had passed the judgment in hasty manner without providing opportunity to the plaintiff or his representative to come prepared and argue on the point of maintainability of the suit--­Both the Courts below had wrongly applied S.30 of National Highway Authority Act, 1991, as the suit of the plaintiff was maintainable---Judgments passed by both the Courts below were set aside and the case was remanded to Trial Court for deciding the suit on merits after providing the parties opportunity to lead their evidence---Revision was allowed accord­ingly.

(c) National Highway Authority Act (IV of 1991)---

----S. 12---Term 'good faith'--­Applicability---Plaintiff claiming to be the legal owner and possessed of the documents, had tried to apprise the Authority of his ownership by producing original documents but the Authority intended to eject him from the suit-land--­Validity---Action taken by the Authority under the provisions of National Highway Authority Act, 1991, could not be defined to be in accordance with 'good faith' in circumstances.

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

---S. 151---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy, remedy against---Whenever remedy is not available to citizen, he is always at liberty to knock at the door of High Court under its Constitutional jurisdiction---Where the case is based on factual controversy which cannot be agitated in Constitutional petition, the only remedy remains with the citizen is to approach Civil Court which has got inherent powers under S.151, C. P. C.

M. Islam Leghari for Applicant.

Muhammad Qassim Mirjat, A.A. -G. for Respondent No. 1.

Nisar A. Mujahid for Respondents Nos.2 to 6.

Date of hearing: 12th April, 2004.

2004 Y L R 1999

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD ABID---Plaintiff

Versus

Mst. NASREEN YOUSUF and another---Defendants

Suit No.998 of 1999, decided on 6th May, 2004.

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

----Art.132(2)---Cross-examination---Object and scope---Non-appearance of a party in witness-box for cross-examination--­Effect---Cross-examination is a continuing part of the whole statement, rather more important than the examination-in-chief--­Effect of non-appearance of a party in witness-box for cross-examination is that his whole statement cannot come on record---Where a party has abstained from giving evidence in his own case about the facts in his personal knowledge, presumption is that the truth was on the other side---Contesting parties are under obligation to undergo the test of cross­ examination---Power and opportunity to cross-examine is one of the principal tests which the law has devised for the ascertainment of truth and this is a most efficacious test which means that the situation of the witness with respect to the parties and the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discerning facts in the first instance and his capacity for retaining and describing them are fully investigated and ascertained and submitted to the consideration of the Court‑‑‑Where witness fails to tender himself for cross‑examination, evidence of such witness would be inadmissible.

Mukhtar Ahmed v. The State 2003 SCMR 1374 and Attaullah Malik v. The Custodian Evacuee Property and others PLD 1964 SC 236 ref.

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

‑‑‑‑O. XIX, R.1, proviso‑‑‑Affidavit in evidence‑‑‑Cross‑examination of such witness‑‑‑Principle‑‑‑When any party bona file desires, the production of a witness who has given evidence by affidavit for cross‑examination, the Court may direct the production of such a witness‑‑‑Affidavit in evidence is of no legal value and consequence, if it's deponent does not make himself available for cross‑examination‑‑­Party against whom affidavit is produced, is entitled to have deponent put in witness and to cross‑examine him‑‑‑If a deponent fails to submit to cross‑examination, the affidavit, in such circumstances loses all its force as a probative piece of evidence in the case and cannot be acted upon.

Abdul Hameed v. Karam Dad PLD 1966 Lah. 16 and The President v. Mr. justice Shoukat Ali PLD 1971 SC 585 ref.

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XIX, R.1‑‑‑Specific performance of agreement to sell‑‑‑Discretionary power exercise of‑‑Affidavit in evidence ‑‑‑Non­appearance of one of the parties in witness­ box for cross‑examination‑‑‑Owner of the suit property denied execution of agreement to sell and alleged that the plaintiff was a dummy purchaser set up by the defendant‑‑­Owner of the suit property made such allegation on oath‑‑‑Defendant after giving affidavit in evidence did not appear in witness‑box for cross‑examination and produced his mother as witness ‑‑‑Effect‑‑­Imperatively incumbent upon the defendant to have appeared in the witness‑box to refute such allegations‑‑‑But for the undisclosed reasons the defendant decided not to appear as his own witness‑‑‑Mother of the defendant could not successfully refute the allegations leveled against the individual conduct of the defendant which reflected adversely upon him‑‑‑Plaintiff had failed to rebut the assertion made on oath by the owner that he was a dummy purchaser set up by the defendant and the defendant had also failed to rebut the allegation of the owner made against him‑‑­Sale transaction of the suit property was invalid and not binding upon the owner of the suit property‑‑‑High Court declined to exercise discretionary power for‑ grant of specific performance in favour of the plaintiff‑‑‑Suit was dismissed in circum­stances.

Mir Hashmat Ali v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56 ref.

Muhammad Sharif for Plaintiff.

Khalilur Rahman for Defendant No. 1.

Adnan Ahmed for Defendant No.2.

Dates of hearing: 8th and 13th April, 2004.

2004 Y L R 2015

[Karachi]

Before Gulzar Ahmed, J

MANSOOR and another—Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑159 of 2004, decided on 22nd March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss‑302 & 504/34‑‑‑Bail, grant of‑‑‑No overt act had been assigned to accused persons and only fire‑arm injury to deceased was attributed to co‑accused‑‑‑Accused persons were alleged to be armed with hatchets, but medical evidence did not show injury on deceased by hatchet ‑‑Accused having succeeded in making out a case for grant of bail, they were admitted to bail.

1999 SCMR 1360 ref.

Abdul Rasool Abbasi for Applicants.

Mushtaq Ahmed Kourejo for the State.

2004 Y L R 2020

[Karachi]

Before Wahid Bux Brohi, J

ASHIQUE alias ASHOO HINGORO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑119 of 2004, decided on 15th March, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑H(ii)/504/148/149‑‑‑Bail, grant of‑‑‑Person who had allegedly fired fatal shot and had also received injuries, had been granted bail while accused stood on same footing‑‑‑Case of accused would be governed by rule of consistency‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Aslam v. State 1997 SCMR 251; Mst. Shafiqan v. Hashim Ali 1972 SCMR 682; M. Ashrafuddin v. State 1997 PCr.LJ 530 and Shah Muhammad v. State PLJ 1984 Cr.C Lah. 17 ref.

Abdul Rasool Abbasi for Applicant.

Muhammad Ismail Bhutto for the State.

2004 Y L R 2024

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD HASSAN and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑118 of 2004, decided on 8th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 490--West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail grant of‑‑‑Accused persons in the main case registered against them under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, had already been granted bail‑‑‑State Counsel was not aware if any case under West Pakistan Arms Ordinance, 1965 had been registered against accused‑‑‑Allegation against accused was only of ineffective firing though it was said that exchange of fires continued for about 25 minutes‑‑‑Accused had remained in jail for a period of more than one year and one month‑‑‑Accused were entitled to bail, in circumstances.

Abdul Rasool Abbasi for Applicants.

Mushtaque Ahmed Kourejo for the State.

2004 Y L R 2027

[Karachi]

Before Zahid Kurban Alvi, J

MANTHAR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.241 of 2003, decided on 19th May, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss,302/324/504/147/148‑‑‑Bail, grant of‑‑­Two rival F.I.Rs. with different versions‑‑­Case being of counter‑version, bail was granted to accused.

Muhammad Aslam v. State 1997 SCMR 251; Mst. Shafiqan v. Hashim Ali 1972 SCMR 682; M. Ashrafuddin v. State 1977 PCr.LJ 530 and Shah Muhammad v. State PLJ 1984 Cr.C (Lah.) 17 ref.

Safdar Ali Bhutto for Applicant.

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

2004 Y L R 2036(1)

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD RAMZAN and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Miscellaneous Application No.295 of 2004 in Criminal Revision Application No. 19 of 2004, decided on 16th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), 5.379‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Suspension of, sentence‑‑­Sentence awarded to accused was short being nine months and there was no likelihood of revision application to be heard and decided in a foreseeable future‑‑­Sentence was suspended and accused were directed to be released on bail.

Abdul Rasool Abbasi for Applicants.

Anwar H. Ansari for the State.

2004 Y L R 2044

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Messrs S.H. ENTERPRISES‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

C.Ps. Nos.D‑809, D‑983, D‑986, D‑1019 and D‑1111 of 2003, heard on 30th September, 2003.

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Art.199‑‑‑ Constitutional petition‑‑­Lease under Old Grant Policy‑‑‑ Occupancy rights in certain properties in Cantonments Area were conferred upon civilians under Old Grant Policy‑‑‑Authority, in 1996, had issued a policy to enable such occupants to obtain lease‑hold rights for a period of 99 years in their respective properties upon fulfillment of certain conditions‑‑‑Policy revealed that an Evaluation Committee was required to determine market value of said properties within six months and occupants (Prospective Lessees) could complete formalities within one year after finalization of market rates, failing which properties were liable to be resumed‑‑‑Petitioners were aggrieved by Notices issued by Military Estates Officer requiring petitioners to pay huge amount within a short span of time at the risk of resumption of properties‑‑‑Validity‑‑‑Impugned order of Military Estate Officer was tainted with mala fide as one day's rime was granted only to ensure that nobody should be able to make required deposit of huge amount‑‑­Policy requiring Evaluation Committee to determine market value of properties within six months, but it was not shown whether amount claimed by the Authority from petitioners, was premised on market price within relevant period or on that which was made at the time of issuance of ‑impugned notices‑‑‑Impugned notices, in circumstances were liable to be set aside‑‑­Authorities were expected to finalize evaluation within six months.

Ms. Rizwana Ismail for Petitioner.

Abid S. Zuberi for Petitioner.

Abid S. Zuberi holding brief for Yousaf Moulvi for Petitioner.

Faisal Kamal Alain for Petitioner.

Arshad Tayebaly for Petitioner.

Nadeem Azhar Siddiqui, D.A.‑G. with Amir Niazi, S.D.O. of Military Estates Office.

Dr. Kazi Khalid Ali, Addl. A.‑G. Sindh.

Date of hearing: 30th September, 2003.

2004 Y L R 2047

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

MUNIR AHMAD GHULAM MUHAMMAD AKHTAR‑‑‑Petitioner

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY (DHA)‑‑‑Respondents

C.P. No.D‑482 of 2000, heard on 11th November, 2003.

Pakistan Defence Officers Housing Authority Order [President's Order 7 of 1980]‑‑‑

‑‑‑‑Art.17‑‑‑General Clauses Act (X of 1897), S. 21‑‑‑Bye‑Laws of Defence Officers Housing Society, Bye‑Law No. 7‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Locus poenitentiae, principle of‑‑‑Applicability‑‑‑Cancellation of allotment of plat‑‑‑Petitioner, who had joined Pakistan Military Accounts Services in 1951, was confirmed in 1972‑‑‑Petitioner on basis of being civilian officer, who was paid from Defence Services in terms of Bye­ Laws of the Society, was granted membership of Pakistan Defence Co­operative Housing Society and was allotted residential plot‑‑‑Subsequently, when the Authority constituted under President's Order No.7 of 1980 took over assets, liabilities and functions of the Society, petitioner was also allotted commercial plot‑‑‑Later on said plot was ca4eelled from his name on the ground that his allotment was made in contravention of Bye Laws of the Society as petitioner was not eligible to become Member of the Society under its Bye‑Laws being not paid from Defence Estimates‑‑‑Validity‑‑‑Petitioner was not entitled to membership of Society and residential plot earlier allotted to him could be cancelled under Proviso (i) to Art. 17(h) of Pakistan Defence Housing Authority Order (President Order of 1980)‑‑‑No provision enabled the Society to cancel allotments made in favour of petitioner by its own Executive Board‑‑­When vested rights had been matured pursuant to an order passed by Authority, said Authority would lose locus poenitentiae to recall the same‑‑‑Once discretion had been exercised which had resulted in creating rights, it could not be recalled‑‑‑Order canceling allotment of petitioner, was set aside, in circumstances.

Iqbal Ahmed and Asim Iqbal for Petitioner.

Nazar Hussain Dhoon for Respondent.

Nadeem Azhar Siddiqui, D.A.‑G. on Court Notice.

Date of hearing: 11th November, 2003.

2004 Y L R 2050

[Karachi]

Before Mushir Alam, J

MUHAMMAD KHALID and others‑‑‑Plaintiffs

Versus

Messrs YOUSAF SONS and others‑‑‑Defendants

Suit No.576 of 1998, decided on 24th December, 2003.

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

‑‑‑‑O. XXXIX, Rr.1, 2 & 4‑‑‑Contempt of Court Act (LXIV of 1976), Ss.3 & 4‑‑­Specific Relief Act (1 of 1877), S.42‑‑­Contempt of Court‑‑‑ Suit for declaration of title‑‑‑Defendant despite injunctive order of the Court had withdrawn the rent from the Court of Rent Controller and continued to receive rent from the other defendant‑‑­Other defendant was directed by the Court to continue to deposit rent with Rent Controller, but despite such restraining order and directions said ‑defendant had not only consented to withdrawal of rent by the defendant, but was continuing to pay rent to him‑‑‑Defendants had thus committed contempt of Court‑‑‑Disobedience of the order of the Court was indeed a serious matter‑‑‑Contumacious conduct of contemners called for stern action‑‑‑Litigants, more particularly the parties to the suit were bound to obey orders of the Court‑‑‑When a Court passed an order or gave any direction, putting parties on terms aimed at regulating the conduct of the parties or preservation of subject matter of suit, such order or directions were to be followed in letter and spirit without more ado‑‑‑Party if had considered that any injunctive order was causing inconvenience of a greater magnitude or that circumstances had changed to warrant variation, modification or recalling such an order, then remedy was provided under Order XXXIX, R.4, C. P. C. itself‑‑‑Whims and fancy of either of the parties were not to act contrary to the directions and orders of the Court.

Bakhtawar v. Amin 1980 SCMR 89; Muhammad Aslam v. Mahmood Ali PLD 1992 SC 104; Emirates Bank International Ltd. v. Adamjee Industries Ltd. 1993 CLC 489; M.O. Ghani v. A. N. M. Mahmood PLD 1966 SC 802 and Bhawal v. State PLD 1962 SC 476 ref.

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

‑‑‑‑O.XXXIX, Rr.1, 2, 3 & 4‑‑­Interpretation of O.XXXIX, C.P.C.‑‑­Interim order‑‑‑Scope‑‑‑Courts under O.XXXIX, C. P. C. regulated conduct of parties during pendency of proceedings and could also order interim sale, detention, preservation or inspection of subject matter of the suit, and direct deposit of money‑‑­Court, on application, could discharge, vary or set aside injunctive order‑‑‑Court, in case of disobedience or of breach of any term of injunctive order, could also attach property of the person guilty of such disobedience and detain such person for a term not exceeding six months‑‑‑Order XXXIX, C. P. C., in circumstances was a complete Code, regulating grant, discharge enforcement as well as penal consequences for disobedience‑‑‑In presence of such specific provision, provisions of Contempt of Court Act, 1976 or for that matter Art. 204 of the Constitution should not ordinarily be invoked‑‑‑Civil Procedure Code, 1908 does not lay down special procedure for the trial of the persons guilty of disobedience of injunctive order passed by Civil Courts in terms of O.XXXIX, Rr.1 & 2, C. P. C.

M. O. Ghani v. A. N. M. Mahmood PLD 1966 SC 802 and Emirates Bank International Ltd v. Adamjee Industries Ltd. 1993 CLC 489 ref.

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

‑‑‑‑O.XXXIX, Rr.1, 2 & 4‑‑‑Contempt of Court Act (LXIV of 1976), Ss.3 & 4‑‑­Disobedience of order of the Court‑‑­Contempt proceedings ‑‑‑Procedure‑‑­Looking at the gravity and nature of disobedience, Court could evolve its own procedure‑‑Such procedure, however, must commensurate with minimum standard of principles of natural justice‑‑‑Since the injunctive order, in the present case was visited with penal consequences of attachment as well as detention, alleged contemner must at least be given a notice to answer the charges of disobedience and as far as possible, minimum standard of principles of natural justice were to be adhered‑‑‑By adherence to minimum standard of principles of natural justice, it would not necessarily mean that, Court should inevitably embark on full fledged trial with elaborate enquiry and record detailed evidence‑‑‑In some cases, matter could be decided on affidavit, Counter affidavit, rejoinder and admitted material, if any, brought on record‑‑‑In some cases, site inspection and Commissioner's report could be conducive to correct decision and in appropriate cases, even evidence could also be recorded‑‑‑No universal formula could be prescribed in this behalf‑‑‑Court could adopt and follow such procedure in its discretion as the circumstances of a case demanded.

Rashid Rizvi for Plaintiffs Nos. 1 and 3.

Muhammad Ali Jan for Plaintiffs Nos.2 and 4.

Muhammad Ashraf Kazi for Defendant No. 1.

Syed Sami Ahmed and M.M. Baig for Defendant No.2.

Muhammad Tamil for Defendant No.3.

Date of hearing: 10th November, 2003.

2004 Y L R 2062

[Karachi]

Before Shabbir Ahmed and Azizullah M. Memon, JJ

SHAHID SAYEED KHAN and another‑‑‑Appellants

Versus

PRINZ (PVT.) LIMITED ‑‑‑Respondent

H.C.A. No.233 of 2001, heard on 18th March, 2004.

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

‑‑‑‑S. 3‑‑‑High Court appeal‑‑‑Scope Appeal had been filed against exercise of discretion by Single Judge of High Court‑‑­Appellate Court, in such appeal, would not interfere with exercise of discretion except where discretion had been shown to have been exercised arbitrarily, capriciously, perversely or where the Court had ignored settled principles of law regulating grant or refusal of interlocutory orders‑‑‑Appeal against exercise of discretion was said to be an appeal on principle‑‑‑Appellate Court would not reassess the material and seek to reach a conclusion different from the one reached by Trial Judge if the one reached by the Trial Judge was reasonably possible on the material produced before him‑‑‑Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion‑‑‑If the discretion had been exercised reasonably and in a judicious manner the fact that Appellate Court would have taken a different view would not justify interference with exercise of discretion.

Bishamberdas & Co. v. Sachoomal Kotoomal AIR 1941 Sind 178; Bedanand Rai v. Nabo Kumar Singh AIR 1938 Pat. 161; Macgregor v. Cawnpore Sugar Works, Limited 11 CLJ 19; Hussain A. Haroon and others v. Mrs. Laila Sarfraz and others 2003 CLC 771 and Charles Osenton and Co. v. Jhanton 1942 AC 130 ref.

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

‑‑‑‑O.XXXVIII, R.5‑‑‑Attachment before arrest‑‑‑Provisions of R.5 of O.XXXVIII, C. P. C. referred not to the past, but to the future and to a defendant who with a particular intent was about to dispose of the whole or part of his property‑‑‑Nothing was in O.XXXVIII, R.5, C.P.C. which made a transfer subsequent to the institution of suit a condition precedent to its application‑‑­Fact that defendant had done so after institution of the suit, could be a strong evidence of the future intention provided he had any property left, but the transfer before institution of the suit, could be evidence of intention, after the institution of the suit.

Ejaz Ahmed for Appellants.

Abid S. Zuberi for Respondent.

Date of hearing: 18th March, 2004.

2004 Y L R 2071

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

KARACHI PARSI COOPERATIVE HOUSING SOCIETY LTD.‑‑‑Plaintiff

Versus

Mrs. DINA S. HAZARI and others‑‑‑Defendants

Suit No.392 and C.M.A. No.3110 of 2000, decided on 26th January, 2004.

Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑Ss.54 & 70‑A‑‑‑Specific Relief Act (1 of 1877), Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Suit for declaration and permanent injunction, etc.‑‑‑Rejection of plaint‑‑‑Application for‑‑‑Defendant who was neither member of plaintiff Co‑operative Society nor ever had applied for membership of said Society, had sought rejection of plaint on the ground that plaintiff had filed suit in respect of an issue which had touched the business of Society for which jurisdiction of High Court was barred under mandatory provisions of Ss.54 & 70‑A of Cooperative Societies Act, 1925‑‑‑Main contesting party in the suit was defendant who had submitted application for rejection of plaint while he was not member of plaintiff Cooperate Society‑‑‑Matter being between non‑member of Society and Society, plaint could not be rejected, especially when several complicated questions of law were involved in case which could be properly decided by the Court only and not by Registrar Cooperative Societies.

Shahid Agencies v. Collector of Customs 1989 CLC 1938; Sajjad Hussain‑Khan v. Muhammad Hanif Siddiqui 1990 MLD 25; Haji Shafi Muhammad Jamote v. Finshermen Cooperative Society Limited 1999 MLD 1668; Amir Ali Hussam Shalwani v. Ismaili Masalwala 2001 YLR 2537 and Muhammad Waheedullah Ansan v. Zubeda Sharif PLD 2002 Kar. 414 ref.

Agha Faisal for Plaintiff.

Faisal Arab for Defendant No.8.

Date of hearing: 19th January, 2004.

2004 Y L R 2077

[Karachi]

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

NAZIM, U.C. ALLAH BACHAYO SHORE‑‑‑Petitions

Versus

THE STATE ‑‑‑ Respondent

C.P. No.D‑278 of 2003, 9th October, 2003.

Pakistan Environmental Protection Act (XXXIV of 1997)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Arts.9, 14, 38(a) & 199‑‑‑Consti­tutional petition‑‑‑ Expression "life"‑‑­ Connotation ‑‑‑Security of person‑‑ Preserving and protecting dignity of man Securing well‑being of people‑‑‑No person should be deprived of life or liberty save in accordance with law‑‑‑Word "life" had to be given an extended meaning and could not be restricted to vegetative life or mere animal existence‑‑‑In hilly areas where access to water was scarce, difficult or limited, the right to have water free from pollution and contamination was a right to life itself, that would not mean that person residing in other parts of the country where water was available in abundance, would not have such right‑‑‑Right ‑to have unpolluted water, was the right of every citizen wherever he lived‑‑‑Wide meaning should be given to the word "life" to enable man not only to sustain life, but to enjoy it‑‑‑Fundamental right to preserve and protect the dignity of man under Art. 14 of Constitution was unparalleled and could be found only in few Constitutions of the world‑‑‑Constitution of Pakistan; had guaranteed dignity of man also as the right to life under Art. 9 of the Constitution‑‑­Authorities constituted under Pakistan Environmental Protection Act, 1997 were equally responsible to prosecute concerned Industries for willfully violating provisions of the said Act‑‑‑Under provisions of Art.38(d) of the Constitution, it was the primary duty of Government to provide people basic necessities of life which included unpolluted water for their consumption.

General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore 1994 SCMR 2062 ref.

Masood A. Noorani Addl. A.-G for the State.

Date of hearing: 9th October, 2003.

2004 Y L R 2085

[Karachi]

Before Zahid Kurban Alvi and Maqbool Baqar, JJ

MUNAWAR ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.D‑120 and Criminal Conformation No.D‑11 of 2000, heard on 18th September, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(a)‑‑‑Appreciation of evidence‑‑­Sentence, reduction in‑‑‑Prior to incident, accused and the deceased had an altercation as deceased hail reprimanded accused for not doing his work properly‑‑­Harsh words and tone was used‑‑­Complainants evidence confirmed that when accused was reprimanded, then there was exchange of hot words between deceased and accused‑‑‑Same statements were also brought on record through evidence of eye­witnesses‑‑‑Accused in his statement under S. 342, Cr. P. C. had alleged that he was abused and humiliated by deceased in public‑‑‑Element of sudden provocation of the accused existed, prior to the incident‑‑‑Mitigating circumstances were present, in circumstances‑‑‑Death sentence awarded to accused by Trial Court was converted into life imprisonment‑‑‑Appeal was allowed to that extent and original judgment was modified according.

Abbas Ali and others v. The State and others 1987 SCMR 1855; Nazeer Ahmed v. The State 1994 SCMR 92; Abdul Haque v. The State PLD 1996 SC 1; Abid Hussain v. The State SCMR 1994 SC 641 and Muhammad Nasrullah 2003 SCMR 189 ref.

Habibullah Shaikh for Appellant.

Ubedullah Awan for Respondent.

Rukunddin Kasmi for the Complainant.

Date of hearing. 18th September, 2003.

2004 Y L R 2090

[Karachi]

Before Wahid Bux Brohi, J

ABDUL LATIF and others‑‑‑Appellants

Versus

THE STATE ‑‑‑Respondent

Criminal Appeal No.65 of 2001, decided on 11th February, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.325, 337‑A(iii) & 34‑‑‑Appreciation of evidence‑‑‑Trial Court had relied upon evidence of prosecution .witness who had fully supported prosecution case‑‑‑Evidence of said witness being trustworthy, could not be rejected‑‑‑Evidence of one prosecution witness, if inspired confidence and it was established that he had witnessed the occurrence, was enough to warrant conviction‑‑‑Medical evidence had also‑supported prosecution ‑‑‑Except accused, other two co‑accused remained in jail for a period of more than two years and on conviction all of them were remanded to custody‑‑‑Accused also remained in custody for quite some time‑ ‑‑Maintaining conviction, sentence awarded to accused persons was reduced to what they had already undergone, keeping in view prolonged agony sustained by them during last twenty one years in facing trial.

Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 ref.

Shamsuddin Kobhar for Appellants.

Muhammad Ismail Bhutto for the State.

Date of hearing: 11th February, 2004.

2004 Y L R 2094

[Karachi]

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

Haji ABDUL SATTAR and another ‑‑‑Appellants

Versus

THE STATE ‑‑‑Respondent

Criminal Appeals Nos. 188 and 189 of 2003, decided on 21st January, 2004.

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

‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑‑Mere non production of Roznamcha entry would not by itself render prosecution story doubtful, if otherwise the evidence was reliable and no such objection for non­ production of Roznamcha was raised at the proper stage‑‑‑Neither any such suggestion was made nor was there anything on record to suggest that police did not leave Police Station or that it left Police Station without making such entry, especially, when entry number had been incorporated in FI.R. itself‑‑‑No material contradiction had been pointed out and evidence led by prosecution, was consistent and confidence inspiring‑‑‑No justifiable or probable cause was shown for false implication of the appellant‑‑‑Judgments passed by Trial Court were unexceptionable and needed no interference.

(b) Criminal trial‑‑‑

‑---Appreciation of evidence‑‑‑Prosecution could not be forced to bring all witnesses for evidence‑‑‑Giving up of a prosecution witness, in all circumstances, was not fatal to prosecution‑‑‑Only requirement was that prosecution had to prove the guilt of accused‑‑‑Prosecution was to produce witnesses as deemed fit and proper to establish the accusation‑‑‑Not the quantity, but the quality of evidence was needed to establish a case.

Nek Nawaz Khan Awan for Appellants.

Muhammad Azeem Panhwar for Respondent.

Date of hearing: 21st January, 2004.

2004 Y L R 2097

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Syed ABDUL QADEEM‑‑‑Petitioner

Versus

ADDITIONAL SECRETARY AND MEMBER JUDICIAL, GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

C.P. No.D‑1344 of 1991, decided on 12th August, 2003.

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑­Scope‑‑‑High Court, in exercise of its Constitutional jurisdiction, would rarely interfere with concurrent findings of facts recorded by Statutory Tribunals unless it could be shown that such finding was recorded without there being any evidence to support it or a material part of evidence adduced was completely ignored by the Tribunal below‑‑‑Three concurrent findings of facts, being present in the case, no room was left for interference in Constitutional jurisdiction by the High Court.

(b) De facto, doctrine of‑---

‑‑‑‑ Illegality in appointment of Public Officer would not per se vitiate any order passed by him and that no such illegality could be allowed to be questioned in collateral proceedings.

Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91; Yousuf Ali v. Muhammad Aslam PLD 1958 SC 104; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Pir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.‑W.F.P and another PLD 1995 SC 66 ref.

S.M. Aamir Naqvi for Petitioner.

Nadeem Azhar Siddiqui, D.A.G for Respondents.

Date of hearing: 12th August, 2003.

2004 Y L R 2099

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

IMRAN AMEEN and another‑‑‑Appellants

Versus

THE STATE ‑‑‑Respondent

Criminal Appeals Nos. 244 and 261 of 2002, decided on 20th February, 2004.

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

‑‑‑‑Ss.6/9(c)/14 & 15‑‑‑Appreciation of evidence‑‑‑Special Prosecutor had not supported conviction and sentence awarded to accused by Trial Court in view of the fact that no evidence was available against the accused ‑‑‑Co‑accused had himself admitted the raid at his house and recovery of huge quantity of Charas from his house‑‑­Conviction and sentence awarded to accused, being not sustainable, was set aside and he was acquitted of the charge against him‑‑‑Conviction and sentence awarded to co‑accused being not open to any exception, was upheld.

Muhammad Farooq and Ch. Abdul Rasheed for Appellants.

S. Mehmood Alam Rizvi, Special Prosecutor for A.N.F.

Date of hearing; 20th February 2004.

2004 Y L R 2101

[Karachi]

Before Azizullah M. Memon, J

S. MATI‑UR‑REHMAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision No.53 and Criminal Miscellaneous No322 of 1995, decided on 30th March, 2004.

Pakistan Criminal Law Amendment Act (XL of 1958) ---

‑‑‑‑S.4‑‑‑Suo Motu Power of Special Judge‑‑‑Special Judge who was appointed to work under S.4 of Pakistan Criminal Law Amendment Act, 1958 had no power to take Suo Motu action for purpose of directing prosecution of a witness of a pending case before him, to he joined as an accused for any reason and had no power to take suo motu cognizance of offence.

Waqar Ilyas and another v. The State PLD 1993 Quetta 49; Shafiq Alam Faruqui v. State 1996 PCr.LJ 2243 and Naseebullah Khan and another v. The State PLD 1986 Kar. 417 ref.

M. Ilyas Khan and Inam Soomro for Applicant.

Ziaul Haq Makhdoom for Applicant.

Mahmood A. Rizvi learned Standing Counsel for Respondent.

Date of hearing: 22nd March, 2004.

2004 Y L R 2116

[Karachi]

Before Wahid Bux Brohi and Maqbool Baqar, JJ

Mst. HAZAR KHATOON‑‑‑Petitioner

versus

ALLAN and 2 others‑‑‑Respondents

Constitutional Petition No.226 of 2003, decided on 16th January, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), Ss. 435, 439 & 561‑A‑‑­Conversion of Constitutional petition into revision‑‑‑Administrative and executive powers of Judicial Magistrate‑‑‑Exercise of‑‑‑Substance of Constitutional petition filed by petitioner, represented a revision against a judicial order passed by Additional sessions Judge which had been assailed therein‑‑‑Petitioner should have invoked revisional jurisdiction of High Court‑‑‑In order to save time and inconvenience to the parties, Constitutional petition was converted into a Criminal Revision within meaning of Ss.435 & 439, Cr.P.C. ‑‑‑Criminal case filed by petitioner was investigated and Investigating Officer on completion of investigation, submitted a report to Judicial Magistrate with a request that case could be disposed of as "B" class‑‑‑Request of Investigating Officer was turned down by Judicial Magistrate and Investigating Officer was directed to submit challan against accused‑‑‑Accused being dissatisfied with said order of Judicial Magistrate filed application before Additional Sessions Judge against said order which was allowed and order passed by Judicial Magistrate was set aside and accused was directed to be released‑‑‑Such order was challenged in Constitutional petition which was converted into revision petition‑‑‑Order of Judicial Magistrate dealing with police report was an Administrative/Executive order and only course available to a person aggrieved by said order of Judicial Magistrate, was to approach High Court in exercise of its inherent jurisdiction within meaning . of S. 561‑A, Cr. P. C. ‑‑‑Said powers had been exercised by Additional Sessions Judge, unmindful of principles as laid 'down by superior Courts‑‑‑Order passed by Additional Sessions Judge, in circumstances was illegal, perverse and improper and was liable to be set aside‑‑‑Order passed ~by Judicial Magistrate would hold the field‑‑‑Any person aggrieved from that order should approach appropriate forum in accordance with law.

2002 PCr.LJ 394; Arif Khan v. State 1993 SCMR 187; Muhammad Sharif v. State 1997 SCMR 304; Hussain Ahmed v. Irshad Khatoon 1997 SCMR 1503 and Abdul Kadir v. State 2000 PCr.LJ 520 ref.

Nisar Ahmed Soomro for Petitioner.

Muhammad Bachal Tunio, Addl. A.‑G. for Respondent.

Date of hearing: 16th January, 2004.

2004 Y L R 2123

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

TAHAFUZ TAJRAN MAWESHIAN WELFARE ASSOCIATION‑‑‑Petitioner

Versus

SECRETARY LOCAL GOVERNMENT, GOVERNMENT OF SINDH and others ‑‑‑ Respondents

Constitutional Petition No.D‑10 of 2002, decided on 22nd January, 2003.

Sindh Local Government Ordinance (XII of 1979)---

‑‑‑‑Ss.106 & 139‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑‑ Constitutional petition‑‑­Enhancement of cattle Entry Fee‑‑­Constitutional petition had been filed to challenge enhancement of cattle Entry Fee of the animals in the "Cattle Peeri " within the territorial jurisdiction of Town Municipal Administration for 25 days in the month of Zil Haj‑‑‑Fee charged in year 2002 had been raised in year 2003, no additional facility was provided during said period‑‑‑Petition was disposed of by consent in the terms; that Authority would charge cattle Entry Fee at the rates (a) Cow/Buffalo, Rs.150 per animal; (b) Goat/Bakra Rs.50 per animal and; (c) Camel Rs. 250 per animal‑‑‑Fee was reduced accordingly.

Muhammad Nasrullah Siddiqui for Petitioner.

Manzoor Ahmed for respondents Nos.2 and 3.

Salahuddin Shaikh for respondent No.4.

2004 Y L R 2127

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

PAKISTAN TOBACCO COMPANY LIMITED‑‑‑Petitioner

Versus

DIRECTOR OF OCTROI and others‑‑‑Respondents

Constitutional Petition No.386 of 1987 decided on 20th February, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑­,exercise of‑‑‑Scope‑‑‑Concurrent finding of fact recorded by three forums below, not suffering from any legal error, would not be open to interference by High Court in exercise of its Constitutional jurisdiction‑‑­High Court in exercise of its Constitutional jurisdiction, could not undertake a detailed factual inquiry.

Zaheer Minhas for Petitioner.

Manzoor Ahmad and Abbas Ali, A.A.‑G. for Respondents.

Date of hearing; 20th February, 2003.

2004 Y L R 2131

[Karachi]

Before Saiyed Saeed Ashhdd, C.J. and S. Ali Aslam Jafri, J

HUNDAL DASS‑‑‑Petitioner

Versus

DISTRICT NAZIM and others‑‑‑Respondents

Constitutional Petition No.D‑6 of 2003, decided on 22nd January, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑­ Maintainability‑‑‑Case of petitioner was that his goods were illegally taken away by staff of Municipal Corporation, which he had been able to recover from them‑--Constitution petition had been filed by petitioner on the apprehension that in future same action would be repeated by the Municipal Corporation or by the Authority having replaced it and that a direction be issued to them not to act contrary to law in causing harassment to petitioner‑‑‑Petition filed by petitioner was frivolous and without any substance as no direction could be issued on mere apprehension and fear of petitioner.

Mehmood Ahmed Khan for Petitioner.

Manzoor Ahmed for Respondents Nos. 1, 2 and 4.

Anwer Mansoor Khan Advocate­-General, Sindh for Respondents Nos.3 and 5.

2004 Y L R 2136

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Mujeebullah Siddiqui, JJ

IQBAL PAHORE‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

C. P. No.D‑346 of 2003, decided on 20th April, 2004.

(a) Interpretation of statues‑‑‑

‑‑‑‑ Explanation to a provision‑‑‑Role of‑‑­Normally, an explanation was added to a provision of law, where Legislature was of the view that likelihood existed of an interpretation which was not in consonance with the intention of Legislature or for the purpose of clarifying any ambiguity.

(b) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑Ss. 148, 154, 156 & 164‑‑‑Election of Nazim and Naib Nazim‑‑‑Death of Member of a Local Council‑‑‑Effect‑‑‑As soon as a Member of a Local Council died, he would cease to hold Membership of a Local Council‑‑‑Factum of death of a Member of a Council, was not required to be notified under S.164 of Sindh Local Government Ordinance, 2001‑‑‑Chief Election Commissioner was to notify any election, and by election and result of such elections and resignations, removal or recall of a Member Nazim or Naib Nazim‑‑‑Contention that a Member of a Council, would continue to hold the office of Member of Council, notwithstanding his death until and unless a Notification in that behalf issued under S.164 of Sindh Local Government Ordinance, 2001, was repelled‑‑‑In the eventuality of death of an elected Member/Returned candidate or his resignation or ceasing to hold the office he/she would cease to be a Member of Union Council and would cease to be a Member of Electoral College.

Mir Saleem Khan Khosa v. Chief Election Commissioner 2002 SCMR 109 ref.

(c) Interpretation of Statutes‑‑‑

‑‑‑‑ If different expressions were used by Legislature, those would convey the different meanings and connotations.

(d) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑S. 154(3)(4)‑‑‑Election of Nazim and Naib Nazim‑‑‑Requirement to be elected as Nazim‑‑‑Requirement under S.154(3)(4) of Sindh Local Government Ordinance, 2001 was that candidate for being elected as Tehsil Nazim, must secure more than 50% of the votes of the Members of Union Council‑‑‑Expression "total votes of the members of the Union Councils" was also indicative of fact that it did not include the members who had died or the members who had resigned or had ceased to be member.

Jhamat Jethanand for Petitioner.

Masood A. Noorani, Additional A.‑G.

Ahmed Ali Shaikh for D.A.‑G.

Aijaz Ali Hakro for Respondent No.4.

Date of hearing: 25th March, 2004.

2004 Y L R 2154

[Karachi]

Before Mushir Alam, J

NASEER and 2 others‑‑‑Plaintiffs

versus

MUHAMMAD HANIF‑‑‑Defendant

Suit No.781 of 2000, decided on 5th November, 2003.

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

‑‑‑‑O. VII, R.2‑‑‑Arbitration Act (X Of 1940), S.34‑‑‑Suit for recovery of amount‑‑­Application for stay of proceedings‑‑­Summons were served upon defendant to appear, defend and file written statement‑‑­Defendant instead of filing written statement, filed application for stay of proceedings under S.34 of Arbitration Act, 1940, which application was dismissed and matter was fixed for filing written statement‑‑‑Defendant, after three opportunities was debarred from fling written statement and suit was fixed in Court for final disposal‑‑‑Defendant instead of seeking recall of debarring order or restoration of application which earlier was dismissed in default, fled second application under S.34 of Arbitration Act, 1940‑‑‑Maintainability‑‑‑After dismissal of earlier application filed under S.34 of Arbitration Act, 1940, suit was adjourned for filing written statement‑‑‑Court in circumstances had taken further steps in suit and defendant was debarred from filing written statement‑‑‑Second application under S.34, Arbitration Act, 1940, after defendant was debarred from filing written statement, was not maintainable‑‑‑Phrase `"at any time before filing written statement" used in S.34 of Arbitration Act, 1940, connoted that option to invoke S.34 of Arbitration Act, 1940 was only available during period when the matter was fixed for filing written statement‑‑‑If any step was taken in between, that could demonstrate that defendant had relinquished his option to press for arbitration, then option to invoke arbitration would be lost.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Application to stay legal proceedings‑‑‑Party to an arbitration agreement had option to compel other party to agreement, to abide by the bargain stuck between them before commencement of legal proceedings‑‑‑If one of the parties to the agreement, attempted to fall out of bargain and commenced legal proceedings, by bypassing the arbitration, other party, could exercise its option to enforce arbitration agreement‑‑‑Option available to defendant, in terms of S.34, Arbitration Act, 1940, could only be exercised at any time, but before filing a written statement or taking any other steps in proceedings‑‑­ "Another step in the proceedings" would mean a step taken before filing of written statement‑‑‑Word "before" in S. 34 of Arbitration Act, 1940, had clearly indicated that option to seek stay of proceedings had to be exercised before and not even simultaneously with the filing of written statement‑‑‑Manner, in which such option could be exercised, was by applying to the Court before which legal proceedings commenced‑‑‑Once defendant had exercised such option, then plaintiff had to satisfy the Court that sufficient reason existed as to why matter should not be referred to arbitration‑‑‑In case defendant filed written statement and/or took any other step into proceedings, then option or right to enforce arbitration, would be extinguished‑ "Any other step into proceedings" as used in S.34 of Arbitration Act, 1940, was not relatable to any step, action or inaction on the part of the Court‑‑‑Such phrase was referable to a step, action or inaction on the part of defendant, who could demonstrate" that, he had submitted to the jurisdiction of the Court‑‑‑Option given to defendant to invoke S.34 of Arbitration Act, 1940 must be invoked before opportunity to file written statement lapsed‑‑‑Defendant must avail such option promptly as delay could adversely reflect on his intention to enforce bargain as mandated under S.34 of Arbitration Act, 1940‑‑‑In order to enforce arbitration, defendant must demonstrate that in order to invoke S.34 of Arbitration Act, 1940, not only at the commencement of the proceedings, he was ready and willing to take all steps and measures, but was still ready for proper conduct of arbitration.

The Marriage Hall Association v. KBCA 1999 YLR 2317; Province of Punjab v. Industrial Machine Pool PLD 1978 Lah. 829; Belsand Sugar Co. v. Gijra Nandan Singh AIR 1969 Pat. 8; 1990 MLD 1383; Shroof Bros. v. Diyal AIR 1974. Cal. 83 and Indian Oil Corporation v. Nainsukdas Baldooads AIR 1982 Mad. 323 ref.

Syed Ali Ahmed Tariq for Plaintiffs.

Imran Ahmed for Defendant.

Date of hearing: 24th November, 2003.

2004 Y L R 2163

[Karachi]

Before Zahid Kurban Alvi and Maqbool Baqar, JJ

GHULAM SHABIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.71 and Conf. Case No.9 of 2000, decided on 17th September, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 3021306(c)1308(2) ‑‑‑ Appreciation of evidence‑‑‑Counsel for accused did not challenge judgment of Trial Court to the extent of facts of the case, but he wanted to argue legal issue as to whether accused, wino had killed his wife; should have been convicted and ‑sentenced under S.302, P. P. C. or he should have been convicted and sentenced under S.306(c), P.P. C. or S.308(2), P.P.C.‑‑‑Deceased had killed his wife leaving behind two children, one son and one daughter as his legal heirs‑‑‑Where husband had committed Qatl‑i‑Amd of his wife leaving behind children, accused could not be convicted under S.302, P. P. C. ‑‑­ Courts should take note of S.306(c), P. P. C. which had clearly stipulated that if Qatl‑i­-Amd was committed by husband of his wife leaving behind children the same was not liable to Qisas‑‑‑Law had specifically provided for punishment of Qatl‑i‑Amd not liable to Qisas under 5.308, P. P. C. which did not provide death sentence‑‑‑Judgment of Trial Court was modified convicting accused under S.308(2), P. P. C. to undergo 14 years' R.I. and would also be liable to Diyat.

Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore PLD 1994 SC 885 and Faqirullah v. Jalil Zaman 1998 SCMR 2203 fol.

Muhammad Abdullah Khan v. The State 2001 PSC (Crl.) 632 and Khalil uz Zaman v. Supreme Appellate Court, Lahore PLD 1994 SC 885 ref.

Habibullah Shaikh for Appellant.

Ubedullah Awan for the State.

Date of hearing: 17th September, 2003.

2004 Y L R 2170

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

JOHN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 13 of 2000 and Confirmation Case No.3 of 2000, decided on 22nd October, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)l34‑‑‑ Appreciation of evidence‑‑‑Prosecution though had proved that deceased was last seen alive with accused, but beyond that prosecution could not produce any other piece of evidence against accused‑‑‑Evidence on the point of deceased last seen alive with accused, was a very weak type of circumstantial evidence for basing conviction of accused which required strong corroboration, and same was lacking in the case‑‑‑Prosecution had alleged that prosecution witnesses had seen accused running away front place of incident at 2‑00 a.m. in the night, but no source of light had been shown by prosecution to prove the identification of accused‑‑‑Prosecution had failed to prove motive beyond any reasonable doubt‑‑­Alleged confessions of accused were recorded while accused were in illegal custody of police‑‑‑Such illegal custody of accused had adversely reflected upon judicial confessions of accused‑‑‑Medical evidence also did not corroborate judicial confession‑‑‑Said judicial confession could not be safely relied upon‑‑‑Empties and weapons of offence were sent to Ballistic Expert after more than one year of recovery thereof and said inordinate delay was not explained‑‑‑Crime weapon and crime empties were sent together, which had also adversely affected the report in the light of unexplained inor4inate delay of‑sending same to Ballistic Expert‑‑‑Prosecution case being highly doubtful, accused were entitled to benefit of doubt‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside.

Nazo v. State 1977 SCMR 20; Ghulam Mustafa v. State PLD 1991 SC 718; Additional A.G. v. Abdul Majeed PLD 1965 Quetta 20; Muhammad Shafi v. State PLD 1968 Lah. 869; Muhammad Hassan v. State PLD 1982 Lah. 577; Muhammad Younis Khan v. State 1992 SCMR 545; Muhammad Mushtaq v. State PLD 2001 SC 107; Hamzo v. State PLD 1960 (W.P.) Kar. 817; Bahadar Khan v. State PLD 1995 SC 336; Muhammad Akram v. State 1995 SCMR 1359; Pervaiz Iqbal v. State PLD 1976 Kar. 583; Muhammad Youris Khan v. State PLD 1992 SC 149; Naqibullah v. State PLD 1978 SC 21 and Karamat v. State 1972 SCMR 15 ref.

Shoukat Hussain Zubedi for Appellant.

Jawaid Akhtar for the State.

Date of hearing: 22nd October, 2003.

2004 Y L R 2182

[Karachi]

Before S. Ali Aslam Jafri, J

INAYATULLAH‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.812 of 2003, decided on 31st December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Allegation of grappling or taking into clasp a person who was done to death by a co­accused, though in all cases could not be a ground for grant of bail but each case was to be seen in its own perspective and back­ground‑‑‑Meeting of complainant side and accused in the graveyard at the relevant time, date and fact that there was only one shot on the head of deceased, though four persons nominated in F.I.R. had been assigned various parts in commission of evidence, would show that there were grounds to hold that case of accused required further inquiry as contemplated under S. 497(2), U. P. C. ‑‑‑Accused were admitted to bail, in circumstances.

Mahmood. Akhtar and another v. Haji Nazir Ahmed and 4 others 1995 SCMR 310; Akbar Khan v. The State 1985 PCr.LJ 2695; Ghulam Jeelani v. The State 1987 PC!‑.LJ 1583 and Ali Shah v. The State 2002 PCr.LJ 707 ref.

Ghulam Rasool A. Baloch for Applicant.

Muhammad Iqbal Memon, A:‑G. for the State.

Date of hearing: 31st December, 2003.

2004 Y L R 2185

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ABDUL JABBAR‑‑‑Applicant

versus

Mst. PATHANI and 9 others‑‑‑Respondents

Civil Revision No.50 of 2003, decided on 30th September, 2003.

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

‑‑‑‑O. XVII, R.3‑‑‑Specific Relief Act (I of 1877), Ss.12 & 54‑‑‑Suit for specific performance and injunction‑‑‑Closing of evidence ‑and dismissal of suit‑‑‑Trial Court, after framing issues, adjourned the matter for recording' evidence of plaintiff, but plaintiff failed to adduce evidence despite obtaining as many as eight continuous adjournments by filing adjournment applications on flimsy grounds‑‑‑Plaintiff's evidence was closed and his suit was dismissed on account of his conduct‑‑‑Evidence on cord had proved that plaintiff ,remained negligent and had adopted careless attitude to proceed with the matter‑‑‑Plaintiff had himself failed to lead evidence‑‑‑Law would help the vigilant and not the indolent‑‑‑Closing the side of plaintiff for the purpose of evidence was in accordance with law as he had failed to avail several opportunities offered to him for producing evidence‑‑‑Concurrent judgments and decrees of Courts below, not suffering from any illegality, were maintained.

Industrial Sales and Service v. Archifar Opal Laboratories Ltd. PLD 1969 Kar. 418; Sultan v. Yara 1995 MLD 1078; Syed Tasleem Ahmed Shah v. Sajawal Khan 1985 SCMR 585 and Shahid Hussain v. Muhammad Akram 2000 SCMR 1135 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Caw favours decision on merits rather than on technicalities unless party was guilty of gross, negligence.

(c) Administration of justice‑‑‑

‑‑‑‑Law helps the vigilant and not the indolent.

Ghulam Sarwar Abbasi for Applicant/Plaintiff.

Respondents Nos. 1 to 7 in person.

Muhammad Bachal Tonyo, Additional A.‑G. for Respondents Nos.8 to 10.

Date of hearing: 17th September, 2003.

2004 Y L R 2192

[Karachi]

Before Sarmad Jalal Osmany and Wahid Bux Brohi, JJ

ASIF JATOI‑‑‑Petitioner

versus

ELECTION COMMISSION OF PAKISTAN and others‑‑‑Respondents

C. Ps. Nos. D‑192, D‑193 and D‑198 of 2003, heard on 10th February, 2003.

Conduct of General Election Order (Chief Executive's Order No. 7 of 2002]‑‑‑

‑‑‑‑Art.8‑A‑‑‑Senate (Elections) Rules, 1975), R.36(a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­ Senate election‑‑‑Rejection of nomination papers‑‑‑Nomination papers filed by candidates were scrutinized and were not found satisfactory as concerned Foreign Universities from which candidates had obtained their Bachelors' Degrees were not found to be accredited to the University Grants Commission‑‑‑Candidates having not been found not to fulfil academic requirements under‑Art. B‑A of Conduct of General Election Orders, 2002, their nomination papers were rejected‑‑­Operative portion of Art.8‑A of Conduct of General Election Orders, 2002 regarding condition of graduation and that regarding a Degree recognized as equivalent by University Grants Commission, were disjunctive in nature‑‑‑Constitutional petitions filed against rejection order with regard to nomination papers of candidates, were admitted to regular hearing‑‑‑Stay applications filed by candidates, were also allowed with the result that candidates would be eligible to contest forthcoming Senate Election‑‑‑Election Commission and Authorities were directed to include names of candidates in the list of those contestants who aspired towards Senate Election‑‑­Candidates, however, during course of hearing of Constitutional petition would satisfy the High Court that in fact on date when nomination papers were filed, they did possess a bachelor degree and that documents submitted by them before Returning Officer as well as before High Court, were genuine.

Raja Qureshi, Mushtaq A. Menton and Agha Faisal for Petitioners.

Gohar Iqbal for Respondent:

Nadeem Azhar Siddiqui, Deputy Attorney General for all the official Respondents alongwith Atta‑ur‑Rehman, Asstt. Election Commissioner.

Date of hearing: 10th February, 2003.

2004 Y L R 2200

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MITHAN and 2 others‑‑‑Applicants

versus

Mst. JAMEELA and 8 others‑‑‑Respondents

Revision Application No. 14 of 2003, decided on 22nd April, 2004.

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

‑‑‑‑O.II, R.2(2)‑‑‑Dekkan Agriculturists' Relief Act (XVII of 1879), S.15‑D‑‑‑Object of O.II, R.2(2), C.P.C.‑‑‑Suit for redemption of mortgaged property‑‑‑Omission to sue for one of several reliefs ‑‑­Under provisions of O.II, R.2(2), C.P.C. every suit was required to include whole of the claim which plaintiff was entitled to make in respect of cause of action‑‑‑If, however, there were two distinct obligations in favour of mortgagor, those would give rise to different causes of action and filing of suit for one, would not have the effect of relinquishment of other right‑‑‑Primary object of O.II, R.2(2) was to dispose of all the matters arising and relating to same transaction in one suit and to avoid splitting up of claims and remedies to prevent multiplicity of suits‑‑‑Provision of O.II, R.2(2), C.P.C. was based on the principle that defendants should not be vexed twice for same cause and if plaintiff intentionally relinquished or omitted any portion of his claim arising out of same cause of action, he should not afterwards be allowed to sue in respect of portion so omitted or relinquished‑‑‑If two suits were based on two different causes of action, the bar contained in O.II, R. 2 (2), C. P. C. would not be attracted.

Tikandas v. Abdul Wali PLD 1968 SC 241; Abdul Hakim v. Saadullah Khan PLD 1970 SC 63; Haji Hafeezuddin v. Lucas Service Pakistan Ltd. PLD 2000 Kar. 58 and Rafia Begum v. Miraj‑ud‑Din PLD 1959 Lah. 890 ref.

(b) Dekkan Agriculturists Relief Act (XVII of 1879)----

‑‑‑‑S.15‑D‑‑‑Transfer of Property Act (IV of 1882), S.60‑‑‑Civil Procedure Code (V of 1908), Ss.11, 115 & O.II, R.2(2)‑‑‑Suit for possession and redemption of mortgaged property‑‑‑Suit earlier filed by plaintiffs under S. 15‑A of Dekkan Agriculturists' Relief Act, 1879, was based on plea that ostensible sale transaction in respect of suit‑land was in fact a transaction in nature of mortgage and for that purpose declaration in respect of amount to be paid was sought‑‑‑Relief for redemption of mortgaged property could not be sought until and unless declaration was granted and subsequent suit for redemption was based on judgment and decree in said first suit‑‑Second suit was brought by plaintiffs in pursuance of statutory right for redemption of mortgage under S.60 of Transfer of Property Act, 1882‑‑‑Appellate Court, in circumstances was fully justified in holding that subsequent suit was not barred under OX, R.2(2), C.P.C.‑‑‑No exception could be taken to the decree allowing redemption of mortgage to plaintiffs‑‑‑In absence of any illegality or material irregularity warranting interference by High Court in exercise of its revisional jurisdiction, revision petition was dismissed.

Ejaz Ali Hakro for Applicants.

Hassan Mahmood Baig for Respondents Nos. 1 to 6.

Masood A. Noorani, Addl. A.‑G. for Respondents Nos.8 and 9.

Date of hearing: 2nd April, 2004.

2004 Y L R 2209

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD NAWAZ‑‑‑Petitioner

versus

THE STATE and 3 others‑‑‑Respondents

C.P. No. S‑317 of 2003, decided‑on 19th April, 2004.

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

‑‑‑‑Arts.2‑A & 4‑‑‑ Constitution of Pakistan (1973), Art.2 A‑‑‑Protection of human rights‑‑‑Main consideration in the matter pertaining to human rights, should be protection of human rights and particularly when the rights of minor children or females were involved‑‑‑Technicalities should not frustrate the ends of justice‑‑­District and Sessions Judge, in the present case, had exercised jurisdiction in pursuance of Scheme Framed for Protection of Human Rights of all Classes of Society in the country by Chief Justices Committee, which Scheme was framed in consonance with the purpose of Objectives Resolution which was substantive part of Constitution under Art. 2‑A of the Constitution‑‑­Article 2‑A had laid emphasis on ensuring arid guaranteeing all fundamental human rights with special emphasis on dispensation of justice in accordance with law laid down in Holy Qur'an and Sunnah.

(b) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S.25‑‑‑Custody of minor children‑‑­Maintenance of children‑‑‑ Courts exercised parental jurisdiction and in exercise of that jurisdiction they were empowered to deal with the matters of Hizanat (custody) of minor children‑‑‑Responsibility for maintenance of children was always on the father, notwithstanding that custody was given to another person by the Court either in pursuance of some settlement arrangement or looking to the facts and circumstances of the case.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑­Scope‑‑‑Jurisdiction was discretionary and even if there was any order which was not technically correct or there was any irregularity, but it had not caused any miscarriage of justice and was on the contrary in furtherance of interest of justice and welfare of person concerned, High Court would not interfere in exercise of its Constitutional jurisdiction‑‑‑Reason for that being that High Court in exercise of its jurisdiction, would always come in aid of justice and would never come in aid of injustice, though there could be some irregularity which did not go to the root of ; the case‑‑‑No wrong assumption of jurisdiction, incorrect exercise of jurisdiction or any injustice having been caused to any party in the case, Constitutional petition held, was without substance and thus stood dismissed.

Muhamriiad Shoaib Shibli for Petitioner.

Masood A. Noorani, Addl. A.G. for Respondents Nos. l to 4.

Jhamat Jethanand, Amicus Curiae.

Date of hearing: 19th April, 2004.

2004 Y L R 2218

[Karachi]

Before Gulzar Ahmed, J

CARGO MOVER and others‑‑‑Plaintiffs

versus

UNION BANK LIMITED and another‑‑‑Defendants

Suit No.859 of 1988, decided on 15th December, 2003.

Defamation‑‑‑

‑‑‑‑ Suit for recovery of damages for defamation‑‑‑Plaintiffs had alleged that letter written by defendant to plaintiffs contained several false and defamatory allegations and that defendant through its officers had committed several acts which constituted defamation, libel and slander‑‑­Plaintiffs had claimed that publication of the letter had injured reputation of plaintiffs and had lowered its esteem and it caused plaintiffs to be regarded with contempt, dislike and disesteem‑‑‑Affidavit‑in‑evidence of plaintiffs had shown that there was not even a hint as to what acts of defamation, libel and slander were committed by defendant through its officers‑‑‑Plaintiffs had alleged that defendant made repeated telephonic calls to the Airlines for several days and levelled false and malicious accusations of most serious nature against plaintiffs, but substance of said false and malicious accusations was not disclosed‑‑­In absence of evidence giving substance and actual matter of libel, slander and false accusation, no case for defamation, could be made out ‑‑‑Defamation was caused through spoken words and through writing containing defamatory material, but affidavit‑in‑evidence of plaintiffs did not contain spoken words or writings which were slanderous or libelous‑‑‑In a case for defamation, burden to prove the fact that act of defendant was based on true facts, lay upon defendant‑‑‑Evidence of plaintiffs in the present case had itself shown that two airway bills signed and issued by them were not genuine, which in other words would be false‑‑‑Conclusion in respect of letter allegedly containing false and defamatory allegations was that defendant had not made any statement in its letter amounting to defamation‑‑‑Plaintiffs having failed to prove their case, suit filed by them was dismissed.

Gray v. Jones (1939) 1 All. E.R. 798; Lewis and another v. Daily Telegraph Ltd: (1963) 2 All. E.R. 151; C. M.G. Ogilvie v. Punjab Akhbarat and Press Company Ltd. AIR 1929 Lah. 561; Rustam K. Karanjia and another v. Kirshnaraj M.D. Thackersey and another, AIR 1970 Bombay 424 and P.K. Oswal Hosiery Mills Millerganj, Ludhiana v. Tilak Chand L. Ghasita Ram Jain AIR 1969 Punjab and Haryana 150 ref.

Abdul Qayyum Abbasi for Plaintiffs.

Iqbal L. Bawani for Defendants.

Date of hearing: 5th December, 2003.

2004 Y L R 2238

[Karachi]

Before S. Ali Aslam Jafri, J

BAKHSHO alias BAKHSHAL‑‑‑Applicant

versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No.835 of 2003, decided on 1st January, 2004.

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‑‑‑Name of accused, his hulia and features, did not find place in F. I. R. and after arrest ‑ accused was not put to identification parade‑‑‑No other tangible piece of 'evidence was against accused, except the word of co‑accused while in police custody‑‑Grounds existed, in circumstances to hold that case against accused was of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Mujeebur Rehman for Applicant.

Ghulam Shabbir Shar for the State.

Date of hearing:1st January, 2004.

2004 Y L R 2247

[Karachi]

Before Zahid Kurban Alvi, J

AIJAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail No.705 of 2003, decided on 16th December, 2003.

Criminal Procedure Code (V of 1898)---

S.497(2)---Penal Code (XLV of 1860), S. 302/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Further inquiry---Name of accused did not appear in F.I.R., but was subsequently brought on record by virtue of statements recorded by prosecution witnesses---Identification parade of accused was carried out one day after his arrest--Accused was in jail for the tact three years---Accused was admitted to bail.

Gul Hassan v. State 2003 MLD 1526; Muhammad Nawaz v. The State 1993 SCMR 3; Dadan alias Dad Muhammad 2003 PCr.LJ 1510; Bashir v. The State 2003 PCr.LJ 1521 and Nadir v. The State 2003 PCr.LJ 1459 ref.

S. Mehboob Ali Shah for Applicant.

Ghulam Shabbir Shar for the State.

2004 Y L R 2249

[Karachi]

Before Muhammad Ashraf Leghari, J

AKBAR and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.647 and 679 of 2003, decided on 19th December, 2003.

Criminal Procedure Code (V of 1898)--

----S.497---Penal Code (XLV of 1860), Ss.295/295-A/295-C/489-F---Bail, grant of---Allegation against accused was that photostat of portrait of `Kaba tullah' and Roza-e-Rasool' with certain writing was pasted on shop of accused and also on his car---Nothing was in said photostat which could be said to be derogatory qua Holy Prophet--- Criminal intentions of accused in printing said writing or photostating Kabatullah and Roza-e-Rasool were yet to be established at the trial---Merely, the pasting of Photostat of Kabatullah or Roza-e-Rasool for flourishing the business, could not be termed to be derogating to Holy Prophet---Final challan had been submitted under Ss.489-F & 295-C, P. P. C. ---Provisions of S. 489-F, P. P. C. would not be attracted in circumstances--¬Offence uncle, S.295, P.P.C. was punishable for two years---Final challan had not been submitted under S.295-C, P.P.C.---Accused was admitted to bail, in circumstances.

Qurban Ali H. Chauhan for Applicants.

Khuwaja Naveed Ahmed for Respondent.

Rashid A. Qureshi, Asstt.A.-G. for the State.

2004 Y L R 2253

[Karachi]

Before Wahid Bux Brohi, J

SOBAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.585 of 2003, decided on 13th January, 2004.

Criminal Procedure Code (V of 1898)

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 16 & 17---Bail, grant of--¬Further inquiry---Accused, who was injured in the incident was arrested from hospital---Allegation against accused was that he was armed with a Lathi---Beyond the version of complainant, no direct evidence was available to prima facie, involve accused in the commission of Haraabah---Even witnesses cited in F.I.R. were silent on point of snatching of buffalo by accused--Delay of three days in lodging F.I.R. was conspicuous---In the background of blood feud between parties and counter versions recorded by police, case of accused on the sole version of complainant would require further inquiry---Accused was admitted to bail, in circumstances.

Shah Ali v. State 1976 PCr.LJ 1021; Fazal Hussain v. State 1976 SCMR 124 and Mahfooz-ur-Rehman v. State 2001 PCr.LJ 207 ref.

Faiz Muhammad Larik for Applicant.

Muhammad Ismail Bhutto for the State.

2004 Y L R 2254

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ALI BAHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.433 of 2003, decided on 27th October, 2003.

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

---S.497(2)---Penal Code (XLV of 1860) S.302/324/ 337-H(ii)/ 34/148/ 149/114--¬Bail, grant of---Further inquiry---No overt act was attributed to accused during occurrence---F.I.R. specifically stated that co-accused had fired at deceased--¬Allegation against accused was that, he was armed with rifle, but did not cause any injury to deceased---Presence of accused at the place of wardat would be determined at the trial stage for participating in commission of offence-Accused in circumstances had made out a case for grant of bail and further inquiry was needed in the case---Accused was admitted to bail, in circumstances.

Jai Jai Veshnu for Applicant.

Mushtaque Ahmed Kourejo for the State. (present in Court waives notice).

2004 Y L R 2348

[Karachi]

Before Anwar Zaheer Jamali and S. AU Aslam Jafri, JJ

Messrs PACIFIC MARITIME (PVT.) LTD.---Petitioner

Versus

Messrs BATALA GHEE MILLS (PVT.) LTD. and another---Respondents

C.Ps. Nos.D-252 and D-253 of 2002, decided on 17th February, 2004.

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

----O.V, Rr.9, 12, 13 & O. VII, R.2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of amount---Service of Summons---Suit was filed by plaintiffs against shipping agent and his principal---Since address of principal was not within the knowledge of plaintiffs, they filed application that principal be served through agent---Said application was resisted by agent on ground that he being not agent of principal, was not liable to accept summons on behalf of principal---Trial Court held service good and said order passed by Trial Court was assailed in revision which having been dismissed by Appellate Court, the agent had filed Constitutional petition against judgment passed in revision---A gent in his Constitutional petition had called in question order passed in revision by Appellate Court below, but had not assailed order passed by Trial Court---Agent/petitioner had .tot come to the Court with clean hands as he did not want to disclose address of his principal and it appeared that agent was trying to suppress the facts---Agent/petitioner wanted equitable relief in his favour, but did not appear to be ready to act himself in an equitable manner---He who sought equity, must do equity---No justification existed, in circumstances, for High Court to exercise its Constitutional jurisdiction in facts and circumstances of the case.

Alliance Insurance Company Limited v. Burjorjee and Co., Karachi and others PLD 1977 Kar.765 and Trading Corporation of Pakistan v. Intercontinental Oceanic Enterprises Corporation and 2 others 2000 CLC 1892 ref.

(b) Equity--

----He who seeks equity, must do equity.

A.R. Akhtar for Petitioner.

Mazhar Imtiaz Lari for Respondent No.l.

2004 Y L R 2368

[Karachi]

Before Muhammad Moosa K. Leghari, J

ARJUMAND AZHAR and others-Plaintiffs

Versus

SALIM AKHTAR KHAN and others---Defendants

Suits Nos.68 of 2001 and 1182 of 2000, decided on 6th May, 2004.

Specific Relief Act (I of 1877)

----S. 42---Negotiable Instruments Act (XXVI of 1881), S.4---Qanun-e-Shahadat (10 of 1984), Arts. 72 & IO2---Promissory Note---Proof---Execution of promissory note under duress without consideration--¬Stamps not cancelled-Defendant denied any obligation and declined to have executed the promissory note against consideration-Plaintiffs also did not assert that the promissory note was for consideration actually paid to the " defendant at the time of its execution--¬Signatures of the defendant were procured by the plaintiffs under duress by exerting pressure upon him by way of using their influence on police---Effect---Promissory note was not voluntarily executed by the defendant and the amount therein was filled in subsequently after the blank stamp paper was got signed by the defendant under duress---As the stamps affixed on the promissory note had not been cancelled, such instrument was inadmissible in evidence and decree could not be passed on the basis of that instrument---If the case of the plaintiffs wholly depended upon the promissory note and if the instrument was found to be inadmissible in evidence, the suit could be dismissed on such ground, however, if in case besides the promissory note the plaintiffs' also relied upon other evidence, then the promissory note would be excluded from consideration being inadmissible in evidence yet the suit could be decided on the basis of other evidence and in that case the bar contained in Art.102 of Qanun-e-Shahadat, 1984 would not come in the way of the plaintiffs---Plaintiffs failed to prove execution of promissory note by defendant in their favour---Suit was dismissed in circumstances.

Nasir Ahemd v. Pakland Cement Ltd. 2001 CLC 1156; 1998 CLC 816; PLD 1995 Lah.395; Sohan Lal Nihal Chand v: Raghu Nath Singh and others AIR 1934 Lah. 606; K.M. Muneer v. Mirza Rashid Ahmed PLD 1963 (W.P.) Kar. 905; Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 759 and Ram Nath v. Bhagwati Prasad and another AIR 1946 All. 15 ref.

Mushtaq Ahmed Memon for Plaintiffs (in Suit No.68 of 2001) and for Defendants (in Suit No.1182 of 2000).

Munib Ahmed Khan for Defendant No.1 (in Suit No.68 of 2001) and for Plaintiff (in Suit No.1182 of 2000).

Muhammad Ismail Memon for Defendant No. 2 (in Suit No. 68 of 2001).

2004 Y L R 2395

[Karachi]

Before Muhammad Ashraf Leghari, J

Rana MUHAMMAD YOUNUS---Applicant

Versus

THE STATE---Respondent

Cr. Misc. Appin. No.20 of 2003, decided on 5th May, 2003.

Criminal Procedure Code (V of 1898)--

----Ss.249-A & 561-A---Penal Code (XLV of 1860), Ss.448/34---Quashing of F.I.R.---Application moved by applicant/accused under S.249-A, Cr.P.C. was dismissed on 11-1-2003 whereas challan in the case was submitted by police in Trial Court on 1-4-2003---When application under S. 249-A, Cr.P.C. was moved in the Trial Court, no proceedings were pending, but only F.I.R. was being investigated by police---F.I.R. and investigation could not be quashed under S. 561-A, Cr. P. C. in circumstances. /pp. 2396, 2397] A & B

Ahmed Saeed v. The State and another 1996 SCMR 186 ref.

M.A. Awan for Applicant.

Rana Shamiun for Respondent No.2.I

2004 Y L R 2405

[Karachi]

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

NADIR HASSAN---Petitioner

Versus

1ST ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Petitions Nos.D-196, 197 and 198 of 2003, decided on 17th February, 2004.

Civil Procedure Code (V of 1908)

---O. XLVII, R. 1---Review---Scope---Review application could not be filed as an alternate of an appeal as the Court could review its order only if falling within the limits prescribed by O.XLVII, R.1, C. P. C. ---Review application could be filed only when some new fact and important matter or evidence which, after exercise of due diligence, was not within the knowledge of plaintiff and could not be produced at the time when the decree was passed or order made or on account of some mistake appearing on the face of judgment/order---Application for review was maintainable for correcting the error in the order/judgment and not for correcting the wrong decision.

Rafique Ahmed for Petitioner.

Date of hearing: 17th February, 2004.

ORDER

KHILJI ARIF HUSSAIN, J.---By this order we intend to dispose of Constitutional Petitions Nos.196 to 198 of 2003 as a common points of law arc involved.

Brief facts of the purpose of disposing off the petitions are that petitioner is owner of the Revenue Survey No.79 measuring 600 Sq. Ft. situated near Government Hospital, Pretabad, Hyderabad and has constructed some houses on the said plot. The respondents were allowed to occupy House Nos.27, 31 and 79 on the assurance of vacating the same after three months. After expiry of three moths the respondent refused to vacate the house hence, the petitioner filed suit before learned IIIrd Senior Civil Judge, Hyderabad against the respondent for possession and mesne profit. The respondent remained absent and as such, an ex parte judgment and decree were passed by the learned trial Court on 30-1-2002 and while decreeing the suit for possession the learned Judge declined the relief for mesne profits as claimed by the petitioner in the suit. The petitioner after passing the said judgment and decree, did not prefer any appeal against the finding recorded by learned Senior Civil Judge, declining the relief for the mesne profits, hence, the said finding of the learned trial Court attained finality. The petitioner on 17-4-2002 filed an application under Order 47, rule 1 read with section 151, C.P.C. before the learned Senior Civil Judge, Hyderabad and prayed to review the judgment and decree dated 30-1-2002. The applications were dismissed by the learned trial Court vide its order dated 6-5-2002 holding that the petitioner/plaintiff if aggrieved by the judgment in question, the proper course for him was to file an appeal against the judgment instead of filing an application for review after more than two and half months of passing of judgment. Aggrieved with the said orders, the petitioner filed Revision Applications Nos.35 to 37 of 2002, which too were dismissed by the learned 1st Additional District Judge, Hyderabad vide order dated 6-5-2003. The learned Revisional Court held that after expiry of the appeal period the judgment and decree passed by the trial Court attained finality, which the petitioner now wants to assail by filing the review applications.

Heard Mr. Rafique Ahmed, learned Advocate for the petitioner.

Learned Advocate for the petitioner argued that the learned trial Court committed error of law in disallowing the relief of mesne profits on the ground that the respondents are poor persons and, as such the applications for review were maintainable. Learned Advocate further argued that the petitioner gave temporary accommodation to the respondents for a specific period and after expiry of the said period since respondents have failed to vacate the premises in their possession, the petitioner was entitled for the mesne profits at the rate of Rs.2000 per month.

We have taken in consideration the arguments, advanced by the learned Advocate and also perused the record.

In the plaint while claiming mesne profits, petitioner has only stated that "the defendant/respondent is in unauthorized possession of the house since September, 2000 and hence the plaintiff is entitled for mesne profit at the rate of Rs.2000 per month trom September, 2000". No particular has been given that on what basis the petitioner has claimed Rs.2000 per month as mesne profits, in respect of the premises in possession of the respondent. Learned trial Court disallowed the relief of mesne profit disbelieving the contention of the petitioner that the petitioner has handed over the premises in question to the respondent without any written document i.e. rent agreement and had allowed the respondent to occupy the said property without any rent or consideration. This finding of the trial Court has not been assailed by way of an appeal and, as such same attained finality. A review application cannot be filed as an alternate of an appeal as the Court can review his order only if falling within the limit prescribed by Order 47. rule 1, Civil Procedure Code. It need not be emphasized that a review application can be filed when some new fact and important matter or evidence which, after the exercise of due diligence was not within the knowledge of plaintiff and could not he produced at the time when the decree was passed or order made, or on account of some mistake appearing on the face of judgment/order. An application for the review is maintainable for correcting the error in the order/judgment and not for correcting the wrong decision. The petitioner's case does not fall within the four corner of Order 47, rule 1, C.P.C.

We are of the view that the orders passed by trial Court as well as Revisional Court, dismissing the review application, are in accordance with law, warranting no interference.

For the foregoing reasons the Constitutional petitions are dismissed.

Above are the reasons for our short order dated 17-2-2004.

H.B.T./N-22/K Petitions dismissed.

2004 Y L R 2413

[Karachi]

Before Azizullah M. Memon, J

R.B. AVARI ENTERPRISES (PVT.), LIMITED---Plaintiff

Versus

SHAHEEN INSURANCE COMPANY LIMITED and another---Respondents

Suit No.678 of 2002 and C.M.A. No.6652 of 2002, decided on 27th January, 2003.

Specific Relief Act (I of 1877)

----S. 42---Insurance Ordinance (XXXIX of 2000), S. 47-C(2)---Civil Procedure Code (V of 1908), S. 9 & O.V11, R.11---Suit for declaration and liquidated damages---Jurisdiction of Civil Court---Rejection of plaint---Until and unless it was shown that ordinary jurisdiction of Civil Court was barred to entertain civil suit by any special enactment such jurisdiction of the Civil Court was to be deemed to be in existence--- Civil Courts had to jealously guard their jurisdiction to entertain the claim of civil nature unless expressly or impliedly barred---Defendants in the present case having failed to show that High Court had got no jurisdiction to entertain suit filed by plaintiff in its original civil jurisdiction, application filed by them for rejection of plaint under O.V11, R. 11, C.P.C. was dismissed.

Messrs M.R. Transport Company v. National General Insurance Company Limited 2001 CLC 1618 ref.

M. Hasan Akber for Plaintiff.

Muhammad Ashraf Bhatti for Defendants.

Date of hearing: 13th January, 2003.

ORDER

C.M.A. No.6652 of 2002 is an application under Order 7, rule 11, C.P.C., filed by learned counsel for the defendants, praying therein to reject the plaint of this suit on the grounds that, "the claims of the plaintiff is based on Fire Insurance Policy and as such, the suit has to be filed before the 'Claims Settlement Board', which is authorized to adjudicate upon all the disputes arising under the policies."

The facts giving rise to the filing of the said application are to the effect that the plaintiff, namely, R.R. Avari Enterprises (Pvt.) Limited, has filed the suit with prayer to:-

(A) declare that under the insurance policy, the plaintiff is entitled to compensation for the loss to the goods insured;

(B) declare that the report of the defendant No.2 dated 29-9-2001 is based on mala fide intentions to defeat the rightful claim of the plaintiff;

(C) pass a decree for a sum of Rs.725,000 against the defendant No.1 on account of loss to the goods insured with mark-up at 25% till final realization;

(D) pass a decree for a sum of rupees five million jointly and severally against the defendants on account of damages for refusing the plaintiff's claim unlawfully and with mala fide intentions; or in the alternative;

(E) pass a decree for liquidated damages in terms of section 118 of the Insurance Ordinance, 2000;

(F) costs of the suit and such other reliefs as may be deemed appropriate and necessary in the circumstances of the case."

Pleadings in the plaint thereof that the plaintiff being a private limited company, incorporated under the Companies Ordinance, 1984, and defendant No.1 being a Insurance Company formed under the Insurance Act, and while defendant No.2 is a surveyor of claims appointed by defendant No.1; an insurance policy was obtained by the plaintiff in the month of April, 2001, covering the risks of losses or damages by fire to the stocks of pesticide stored in the premises situated at Plot No.6, Sector 23, Korangi, Karachi, alongwith other receipts; it is further pleaded by the plaintiff that on 19-9-2001, at about 1900 hours, a fire broke out in one of the sheds of the said insured premises and, despite due efforts having been put into save/secure the above-stated stocks, some losses were caused to it, which were duly covered under the said insurance policy, in consequence whereof, the plaintiff lodged its claims with the defendant No.1 for compensation against the said losses to the insured goods.

It is further pleaded that the defendant No.1 appointed defendant No.2 to report his findings regarding the circumstances of said losses, who submitted such a report dated 29-9-2001 to the effect that the fire broke out due to short circuiting of electric wiring outside the shed, which rapidly spread to the sheds, where the pesticides in finished form were stored in main product tank, which caused losses to the insured stocks, estimated to the tune of Rs.7,25,000 and under the terms of the insurance policy the plaintiff is entitled to be compensated by the defendant No.1; but even then, the defendant No.1 denied the said claims and defendant No.2 with mala fide intention further reported that the policy did not cover losses/damages and the same is not indemnifiable.

The plaintiff has contested the said application (C.M.A. No.6652 of 2002) under Order 7, rule 11, C.P.C. .

I have heard Mr. M. Hasan Aimed. learned counsel for the plaintiff, Ashraf Ali, learned counsel for the defendants and have also perused R&P of the case.

Learned counsel for the defendants has placed on record, a copy of S.R.O. 919(1)/90, dated 27th August, 1999, issued by the Ministry of Commerce, Government of Pakistan, and published in the Gazette of Pakistan Extraordinary, August 29, 1990, which reads as under:-

"MINISTRY OF COMMERCE Islamabad the 27th August, 1990

"S.R.O.919(I)90---In exercise of the powers conferred by clause (b) of section 47-L of the Insurance Act, 1938 (IV of 1938), the Federal Government is pleased to authorize the Claims Settlement Board to adjudicate upon disputes arising under Insurance policies relating to the following claims to insurance business, namely:-

(a) Fire Insurance

(b) Marine Insurance

(c) Life Insurance

(d) Miscellaneous Insurance"

According to learned counsel for defendants, this suit could not be filed by the plaintiff, as the jurisdiction exclusively lay with the 'Claims Settlement Board', appointed/constituted under section 47-L(b) of the Insurance Act, 1938 (IX of 1938).

Contents of the said Notification discloses, do not indicate that the jurisdiction of the Civil Courts in any manner is barred to entertain the suits for the claims against the compensation to be awarded for the losses suffered by the holder of an insurance policy, pertaining to the goods got insured under such a policy; so also, no details are mentioned in the said notification as to the procedure to be adopted by the concerned parties, as well as, the 'Claims Settlement Board' for the purpose of adjudication upon the dispute arising under the insurance policies of the nature as of the present suit.

It is a well-settled principle of law that until and unless it is shown that the ordinary jurisdiction of a civil Court is barred under the competent provisions of law to entertain the civil suits by any special enactment towards such end, such a jurisdiction of the Civil Court is to be deemed to be in existence, and further that the Civil Courts have to jealously guard their jurisdiction to entertain the claim of civil nature unless expressly or impliedly barred.

A somewhat similar decision was recorded by my learned brother Mushir Alam, J., in a case reported in Messrs M.R. Transport Company v. National General Insurance Company Limited 2001 CLC 1618, and the relevant observations may be reproduced hereunder:-

"Bare perusal of the above-referred provision suggests that any dispute arising under insurance policy in respect of a motor vehicle or encompassing any liability of its own arising out of use of insured vehicle, any party may take up such dispute before the "Settlement Board" constituted under subsection (2) to section 47-C of the Act of 1938. Such provision cannot be read as a barring clause. Jurisdiction of the Civil Court in terms of section 9 of the Civil Procedure Code, 1908, extends to all claims of civil nature unless expressly or impliedly barred, Civil Courts jealously guard their jurisdiction. Above-referred provision only signified the existence of alternate remedy for resolution of dispute over motor insurance claim. Where there are more than one forum available for the resolution of a dispute, then generally choice of forum rest with the plaintiff.

"Unlike Constitutional jurisdiction mere existence of alternate remedy will not divest Civil Court of its inherent jurisdiction to adjudicate dispute of civil nature unless otherwise barred. Even otherwise, no prejudice is shown to have been caused to the defendant, who was extended full and fair opportunity to defend, which was not availed."

It was further observed in the said case at page 1623 as under:-

"Once an insurance contract is executed then on happening of any act, even or contingency compassing "risk" covered the liability of the insurer to indemnify the loss crystallizes. An insurer cannot be allowed to wriggle out or repudiate its liability on the ground not available under law, moreso alleging that due to oversight while printing the "Policy Form" particular nature of risk was not included in the General Exception Clauses; such excuse that too after expiry of the policy can hardly justify the stance taken by the defendant. Even if such be the case, then it is the insurer to suffer and not the insured. Under circumstances the second objection is also rejected. The repudiation of the claim was without any legal justification."

Consequently, the defendants have failed to show that this Court has got no jurisdiction to entertain this suit in its original civil jurisdiction and, therefore, this application (C.M.A. No.6652 of 2002) under Order 7, rule 11, C.P.C. merits no consideration and is hereby dismissed.

H.B.T./R-15/K Application dismissed.

2004 Y L R 2434

[Karachi]

Before S. Ali Aslam Jafri, J

KOURO and another---Petitioners

Versus

THE STATE---Respondent

Crl. BA. Nos. 582 and 755 of 2003, decided on 24th December, 2003.

Criminal Procedure Code (V of I898)--

--S. 498---Penal Code (XLV of 1860), Ss.302/34---Pre-arrest bail, grant of--Inordinate delay in lodging report to police had not been explained—Preliminary investigation appeared to have been conducted before recording F.I.R.---Case was of dishonest investigation as dead-body of deceased had been identified in hospital prior to lodging of F.I.R. and consultation and deliberation before lodging of F.I.R., could not be ruled out—Involvement of accused in commission of alleged offence, required further enquiry; firstly, because the story as narrated in F.I.R. which itself was sufficiently delayed. without any plousible explanation, prima fade, did not inspire confidence and facts stated therein prima facie did not appeal to reason---Dead-body had already reached at Police Station after telephonic message from landlord of complainant whose name had not been disclosed in F.I.R.---F.I.R. having been lodged after conducting Post-Mortem of dead-body of deceased, its sanctity had become doubtful, in circumstances--Inclusion of name of co-accused as one of accused through statement under S. 162, Cr.P.C. by the complainant had made whole prosecution story, further doubtful--¬Allegations of mala fides and false involvement of accused in the case at the hands of one who was on inimical terms with accused, had some force---Case, in ., circumstances was a fit one for confirmation of pre-arrest bail to accused---Pre-arrest bail granted to accused, was confirmed.

Mst. Karam Jan v. Muhammad Akram and., others 1986 SCMR 938; Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344; Ayoob Masih v. The State PLD 2002 SC 1048; Hussain alias Hussaini v. State 2003 PCr.LJ 815 and Muhammad Jameel v. Shoukat Ali and others 1996 SCMR 1685; Zaheer alias Fauji v. The State 2002 PCr.LJ 1114; Shahzado v. The State PLD 2002 Kar. 472 and Tahir Abbas v. The State 2003 SCMR 426 ref.

Sardar Akbar Ujjan for Applicants (in Cr.B,A. No.582 of 2003).

S. Mushtaque Russian Shah for Applicants (in Cr.B.A. No. 755 of 2003).

Sher Muhammad Shar for Complainant.

Mumtaz Ali Siddiqui for the State.

Date of hearing: 24th December, 2003.

ORDER

By this single order I propose to dispose of pre-arrest Bail Application No.582 of 2003, filed by applicants (1) Kauro son of Shahzad Lakho, and (2) Urs son of Morand Lakho and post-arrest Bail Application No.755 of 2003 filed by applicant Muhammad Waris son of Rahim Dino Sangi as both these applications relate to Crime No.28 of 2003 of P.S. Lakha Road, District Naushahroferoze registered on 1-9-2003 under section 302/34, P.P.C.. at the instance of complainant Shafi Muhammad Sangi.

1. Facts of the case as narrated in the F.I.R. appear to be that on 1-9-2003 at about 7-30 a.m. complainant heard that somebody was calling his father Saeed Khan outside the house. He and his father responded to that call and went outside the house where they saw Qadir Bux son of Shahzad and Urs son of Morand Lakho (applicant No.2) standing there. They allegedly asked the father of the complainant that they had to talk to him and took him towards West in the cotton crop. The complainant went back inside the house. At about 10-30 a.m. he heard a call from backside of his house and as such he alongwith his paternal-uncle Muhammad Ibrahim Sangi and maternal-uncle Bashir Sangi went there and saw that the accused 1. Qadir Bux 2. Muhammad Urs 3. Kauro and one unknown person with open face were standing there. They allegedly told the complainant to have the dead body of Saeed Khan. They further told that despite their warnings from time to time the complainant had not shifted from the land to some other place hence they had killed Saeed Khan and went away. Neck of Saeed Khan found broken and there were signs/marks of burning on his body. Saeed Khan was found lying dead. Due to cries so many persons from neighbourhood were attracted. The complainant claimed to have tracked the footprints which lead towards the cotton crop of Khair Muhammad Sangi where marks of struggling were visible. The complainant further stated that after leaving the witnesses over the dead body, he went to his landlord and narrated him the above story who informed the police on telephone and advised the complainant to meet nekmard Ghulam Abbas, Advocate. The complainant went to meet Ghulam Abbas but he was in Court hence the complainant went on waiting for hint When Ghulam Abass came back from the Court complainant narrated the story to him who asked the complainant to lodge such report with the police whereafter the complainant reached at P.S. and lodged such report on 1-9-2003 at 2300 Hours.

2. Applicants Kauro and Urs on coming to know that they have been implicated in this case, obtained protective bail from this Court on 9-9-2003 and thereafter approached die learned Sessions. Judge, Naushahroferoze for pre-arrest bail, as the applicants were apprehending of their arrest at the hands of the police at the instance of the complainant who has implicated them at the behest of Ghulam Abbas, Advocate with mala fide intentions and ulterior motive to cause insult, humiliation and harassment to them. Their bail appliation was rejected on 26-9-2003 by the learned Sessions Judge, Naushahroferoze, whereafter they approached this Court. Interim bail before arrest was granted to them by this Court on 1-10-2003.

3. According to Mr. Sardar Akbar Ujjan learned counsel applicants are innocent and have been falsely implicated due to dispute over the lease of land between the applicants party and the said Ghulam Abbas, Advocate who wants to involve the applicants in this false case which has been registered at his instance who wants to get the applicants arrested with mala fide intentions for causing insult and humiliation to them so as to bring undue pressure to give-up their rights over the land in favour of said Ghulam Abbas. He further argued that the facts narrated in the F.I.R. are nothing but concoction and even a man of ordinary prudence would not believe the same. There is inordinate delay of about 11 hours in lodging of the F.I.R. for which no plausible explanation has been given. As per F.I.R. dead body of the father of the complainant was allegedly brought to his house by the accused themselves at about 1030 hours but no report was lodged till 2300 hours When the Police Station is hardly 8 Kilometer away from the place of incident. The explanation furnished for delay in the F.I.R. is hardly believable. The dead body of deceased Saeed Khan had reached in the Taluka Hospital Kandiaro where post-mortem was conducted at 6-15 p.m. i.e. much prior to the lodging of the F.I.R. as such preliminary investigation appears to have been conducted before the recording of the F.I.R. Learned counsel has therefore, argued that it _ is a case of dishonest investigation as the dead body has been identified in the hospital by Ali Ahmed and Ghulam Abbas, Advocate much prior to the lodging of the F.I.R. hence consultation and deliberation before lodging of the F.I.R. cannot be ruled out. Mr. Sardar Akbar Ujjan learned counsel has further argued that there is no evidence that, deceased Saeed Khan was done to death by, the accused-applicants and at the most it is a case of last seen evidence which too appears to be most unnatural as the people try to conceal their guilt rather to act in the manner as described in the F.I.R. In support of his plea of bail learned counsel for the applicants has relied upon the following cases:-

(1) Mst. Karam Jan v. Muhammad Akram and others (1986 SCMR 938); (2) Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344; (3) Ayoob Masih v. The State (PLD 2002 SC 1048); (4) Hussain alias Hussaini v. State (2003 PCr.LJ 815 and (5) Muhammad Jameel v. Shoukat Ali and others (1996 SCMR 1685).

On the other hand Messrs Mumtaz Ali S iddiqui and Sher Muhammad Shar, Advocates have opposed to the grant of bail and have argued that the names of the applicants Kauro and Urs are transpiring in the F.I.R. with part assigned to them. They have further argued that no case for grant of pre-arrest bail has been made out as there is evidence of last seen as well as throwing of the dead body of Saeed Khan in the backside of the house of the complainant in his presence as well as that of his two Uncles, hence the application is liable to be rejected. In support of his case Mr. Sher Muhammad Shar, learned counsel for the complainant has placed reliance on the case of Zaheer alias Fauji v. The State (2002 PCr.LJ 1114).

1. Mr. S. Mushtaque Hussain Shah, learned counsel for applicant Waris has argued that the applicant is related to the complainant's side and there is matrimonial dispute between the parties, hence he has been falsely implicated at a later stage. Had he been amongst the culprits, his name would have appeared in the F.I.R. instead of mentioning that an unidentified person was also with the accused who have been named in the F.I.R. Learned counsel has further argued that subsequent disclosure of the names of the applicant in his 162, Cr.P.C. statement by the complainant has absolutely no evidentiary value under the circumstances of the case as it is purely an after thought to implicate the applicant falsely due to the matrimonial dispute. In support of his case, he has relied upon the following authorities:-

(1) Tahir Abbas v. The State (2003 SCMR 426) and (2) Shahzado v. The State PLD 2002 Kar. 472.

1. Mr. Sher Muhammad Shar has opposed to the grant of bail to applicant Waris as well, whereas the learned State counsel has raised no objection because despite being related to the complainant side the name of the applicant Waris does not find place in the F.I.R. and one unidentified person is shown to be in the company of accused Qadir Bux, Kauro and Muhammad Uris when they allegedly brought the dead body of Saeed Khan for being handed over to the complainant.

2. I have considered the arguments of the learned counsel for the applicants and learned State counsel as well as Mr. Sher Muhammad Shar, for the complainant.

3. After going through the facts of the case and the case-law cited by learned counsel for the parties in support of their respective contentions I have come to the conclusion that the involvement of the applicants in the commission of the alleged offence requires further enquiry for reasons more than one. Firstly, the story as narrated in the F.I.R. which itself is sufficiently delayed and without any plausible explanation prima facie does not inspire confidence. The fact that deceased was called from his house on the fateful day by the applicant Kauro and Urs and was taken with them on the pretext of talking to him on some point and thereafter the fact that deceased did not return till 10-30 a.m. when the accused/applicants and unidentified person brought his dead body to the house of the complainant for being handing over to the complainant are such type of facts which prima facie do not appeal to the mind of a man of ordinary prudence. Furthermore despite murder having taken place, during the earlier part of the day after 7-30 a.m. and despite having received the dead body at 10-30 a.m at his own house, there appears to be no logic in the explanation given by the complainant that he was all along waiting for Ghulam Abbas, Advocate who was busy in Court and instead of meeting the said Advocate there in the Court even after the Court hours he did not approach the police for lodging of the F.I.R. Furthermore the dead body had already reached at P.S. after telephonic message from the landlord of the complainant whose name has not been disclosed in the F.I.R. Even the post-mortem was conducted whereafter the F.I.R. was lodged hence the sanctity of the F.I.R. has become somewhat doubtful. Furthermore inclusion of the name of the applicant Waris as one of the accused through statement under section 162, Cr.P.C. by the complainant has made his whole story further, doubtful. There are allegations of mala fides and false involvement of the applicants in the case at the hands of Ghulam Abbas, Advocate who is on inimical terms with the accused partly hence the involvement of the applicants with ulterior motive and mala fide intentions appear to have some force. It is, therefore, a fit case for confirmation of the pre-arrest bail granted to the applicants Kauro and Uris on 1-10-2003 and grant of bail after arrest to the applicant Waris in the sum of Rs.2,00,000 and P.R. bond in the like amount to the satisfaction of the learned Trial Court.

By a short order, dated 24-12-2003 both these applications were granted and the above are the reasons for the same. Further it is made clear that all the observations made above are tentative in nature and the learned Trial Court shall not be influenced by the same at the stage of trial.

H.B.T./K-I9/K Bail granted.

2004 Y L R 2442

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUSLIM COMMERCIAL BANK LTD., HYDERABAD through Asstt. Vice-President---Applicant

Versus

ABDUL ATIQUE---Respondent

R.As. Nos. 49 to 55 of 2003, decided on 7th November, 2003.

Advocate

----Status and function of---Advocates are the officers of the Court and are required to provide unbiased, fair and independent assistance to the Courts of law in order to enable them to arrive at just, proper and legally valid conclusion as the paramount consideration before the Couns and the lawyers is and should be to administer, even handed justice.

Nazir Ahmed and another v. Muslim Commercial Bank Ltd. and others 2004 PLC 1 ref.

Wazarat Ali for Applicant.

Inayatullah Morio for Respondent (in R.A. No. 49 of 2003).

S. Fasahat Hussain Rizvi for Respondent (in R.N. Nos. 50, 52 to 55 of 2003).

Manzoor Ahmad Shaikh for Respondent (in R.A. No. 51 of 2003).

Masood A. Norrani Add. A.-G. on Courts Notice).

Date of hearing: 7th November, 2003.

ORDER

Two sets of revision applications are being disposed by this single order as common question of law is involved therein.

1. Revision Applications Nos. 52 of 2003, 53 of 2003, 54 of 2003 and 55 of 2003 arise out of a similar order, dated 17-1-2001, in Applications Nos. 62 of 1996, 65 of 1996, 64 of 1996 and 63 of 1996 passed by learned Presiding Officer, Sindh Labour Court No.VI, Hyderabad, whereby learned Labour Court dismissed the application moved by the applicants for deciding preliminary legal issues before finally deciding the matter on merits.

2. Revision Applications Nos. 49 of 2003, 50 of 2003 and 51 of 2003 are directed against a consolidated order, dated 13-2-2002, passed by learned Presiding Officer, Sindh Labour Court No. VI, Hyderabad in Applications Nos. 6 of 1997, 551 of 1997 and 47 of 1998 whereby the learned Labour Court overruled the objections raised by the applicant with regard to maintainability of the grievance petitions and the jurisdiction of the Labour Court.

3. The facts of the case, in nutshell which are relevant for the purpose of disposal of these revision applications are, that the respondents are admittedly the employees of the applicant viz. Muslim Commercial Bank Limited. Their services were terminated by the Bank. Being aggrieved of their termination they individually filed grievance petitions before the Labour Court No.VI, Hyderabad. The applicants/bank filed the written-statement and also raised legal objections with regard to maintainability of the petitions and the jurisdiction of the Court.

4. The main legal objection taken before the Labour Court was that the applicants were employed in different branches of the bank wherein less than 20 workers were employed. Due to this reason, the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not applicable thus the protection provided to the workmen under the said law was not available to the respondents/workers. Besides, other corollary objections also were raised. But those also admittedly required recording of evidence.

5. It seems that an application was moved on behalf of the applicant/bank before the Labour Court praying therein that before deciding the cases on merits Labour Court must, first decide the legal objections. Such applications moved by the applicant/bank appear to have been dismissed by two different orders mentioned hereinabove. It was however observed by the Labour Court that the legal objections taken by the applicant/bank shall be decided while deciding the main case. It will be pertinent to note that at least in five grievance petitions the evidence was duly recorded and the matters were ripe for final adjudication.

6. Being aggrieved of those orders the revision applications were filed before the erstwhile Labour Appellate Tribunal. However since the Labour Appellate Tribunal ceased to exist, consequent upon the promulgation of Industrial Relation Ordinance, 2002, therefore, these revisions applications were filed before this Court.

7. Before proceeding with the matter learned counsel for the applicant moved an application for adjournment.

8. Vide order, dated 10-10-2003, which was passed in presence of counsel for both the parties. Mr. Mehmood Abdul Ghani, learned counsel for the applicant requested for permission to allow him to submit written arguments on the question of maintainability or otherwise of these revision applications as he was to leave for Saudi Arabia next Friday. Accordingly, the request was allowed, the matters were adjourned to 17-10-2003 and in the meanwhile the proceedings before the Labour Court were stayed till further orders. On 30-10-2003 the matters were taken up and the arguments of Mr. S. Fasahat Hussain Rizvi, Advocate for the respondent were partly heard, as the arguments submitted by learned counsel for the applicant were already available on record in pursuance of this Court's order, dated 10-10-2003. The matters were however, adjourned at the request of Mr. Wazarat Hussain counsel for the applicant with• a clear observation that no further adjournment shall be fought.

9. Today an application for adjournment has been moved on the ground that Mr. Mahmood Abdul Ghani, Advocate has proceeded for Umrah and that he has been granted general adjournment from all High Court Benches up to 23-11-2003.

10. The application for adjournment prima facie appears to be motivated, and is meant to protract the proceedings. As observed in the earlier part of the order Mr. Mahmood Abdul Ghani Advocate was granted permission to file written arguments only on the ground that he was leaving for Saudi Arabia and would not be available. In such circumstances the proceedings before the Labour Court were stayed. The order of the Labour Court which is impugned in this revision application, was passed on 17-1-2001. It seems that the matter has protracted for a period of more than .two and half years. The Application for adjournment being without merit dismissed.

11. Apart from perusing the written arguments already available on the record, the oral arguments addressed by Mr. Wazarat Hussain have been heard and the case-law has been taken into consideration.

12. The main objection raised on behalf of the applicant in the case is that each branch of Muslim Commercial Bank Ltd. is a separate entity and since less than 20 workmen were employed in ' the respective branches where the applicants were employed, therefore, the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not attracted. Thus the respondents/employees were not competent to invoke the jurisdiction of the Labour Court. The grievance petitions being not maintainable, were liable to be dismissed.

13. It is quite concerning to note that indeed this facial objection was previously agitated by applicant Muslim Commercial Bank Limited before a learned Division Bench of this Court with full force and vehemence. The said contention of the applicant/bank was thoroughly examined by the learned Division Bench in the case of Nazir Ahmed and another v. Muslim Commercial Bank Ltd. and others reported in (2004 PLC I) which found it to fanciful, irrational and devoid of wisdom, thus repelled the same being untenable.

14. I can do no better than to reproduce the relevant paragraph from the above cited case-law:—

"(24) It is, therefore, crystal clear that Muslim Commercial Bank is a company transacting the business of banking in Pakistan through its principal office and its hundreds of branches all over Pakistan established with the permission of the State Bank of Pakistan under the Banking Companies Ordinance, 1962. The branches no matter where situated in Pakistan and irrespective of the number of workmen employed therein whether 20 or less are all instrumentalities of MCB and operate as a single unit both in the sense the term bank or banking company used in the business/banking circle and trade and under the provisions of -the Banking Ordinance. To reiterate, no branch of MCB is an independent legal entity or an independent commercial establishment as defined in the Standing Orders but every branch is an integral and inseparable part and instrumentality of MCB which is a banking company operating as one institution irrespective of the number of workmen employed therein Consequently, the provisions of the Standing Orders are applicable to all workmen employed by MCB whether at its principal office or in any branch where less than 20 workmen are employed or were so employed on any day during the preceding twelve months because the total number of workmen employed in MCB as one unit are and have always been more than twenty".

Accordingly, not only that petitions filed by the workmen were allowed but they were also granted special costs.

1. When confronted with the above decision Mr. Wazarat Ali having been caught-up in the web has no room to escape and had to concede. In view of the elaborate verdict of a learned Division Bench of this Court exactly on the same point, the revision applications are liable to be dismissed and accordingly stand dismissed vide two short order, dated 7-11-2003, separately passed in the above-cited revision applications.

2. In Revision Applications Nos. 49 of 2003, 50 of 2003 and 51 of 2003 which are in relation to grievance Petitions Nos. 6 of 1997, 551 of 1997 and 47 of 1998 learned Labour Court is directed to proceed with the case on day-to-day basis and give its findings on legal as well as factual issues raised before it and decide the petitions on merits after affording opportunity of hearing to the parties concerned. Adjournment if granted only in absolutely inevitable circumstances should not exceed beyond two days. The petitions shall be finally disposed of by 19th December, 2003.

While in Revision Applications Nos. 52 of 2003, 53 of 2003, 54 of 2003 and 55 of 2003 which are related to grievance Petitions Nos. 62 of 1996. 65 of 1996, 64 of 1996 and 63 of 1996, the evidence has already been recorded, the Trial Court is directed to decide the petitions by 10th December, 2003, after hearing the parties.

1. In view of the fact that the respondents had to suffer the agony of protracted litigation and have to sustain monetary losses also as indicated in the short order, the applicants are saddled with a cost of Rs.3,000 each in R.As. Nos. 49 of 2003, 50 of 2003 and 51 of 2003, and a cost of Rs.10,000 each in R.As. Nos. 52 of 2003, 53 of 2003, 54 of 2003 and 55 of 2003.

2. It hardly needs to be reiterated that the Advocates are the officers of the Court and are required to provide unbiased, fair and independent assistance to the Courts of law in order to enable the Courts to arrive at just, proper and legally valid conclusions, as the paramount consideration before the Courts and the lawyers is and should be to administer, even handed justice. Though it is a terrible irony, yet a hard reality to express that Mr. Mehmood Abdul Ghani, Advocate who had filed these revision applications on behalf of Muslim Commercial Bank Ltd., himself appeared in the case of Nazir Ahmed (supra) and represented the applicant/Bank which was heard on 23rd and 30th October, 2001, in which the same plea was repelled. Learned Advocate obviously concealed from this Court the fact that an authoritative decision was given by a Divison Bench of this Court. It was expected from the learned Advocate to have outrightly made a statement to that effect and ought to have withdrawn these revision applications on this ground but unfortunately this was not done, rather the matters were perfidiously pursued in a zestful manner.

3. Mr. Wazarat Ali learned counsel for the applicant/Bank who is present had no explanation to offer, in this regard except to repent. Thus is openly expressed penitence and remorsed in the open Court. There is unrebutable presumption that this was being done purposely to mislead the Court in a deliberate and cautious move to obtain a possibly perverse and wrong decision. Obviously by acting in such ridiculous and devastating manner the duty towards the Court, rule of law, dispensation of justice and the society as a whole was distressfully registered and blinked away. This evidently reflects upon the conduct of learned Advocates representing the Bank. The least, they deserve, is a note on caution.

4. Applicant Muslim Commercial Bank Ltd. evidently did not act prudently: It was responsible for letting itself to be pushed to pursue frivolous and senseless litigation. The officer(s) responsible for this mindless misadventure whereby the Bank had to suffer the embarrassment and sustain colossal loss have to be taken to task. Some senior executive at the helm of affairs of the Bank must take prompt action in the right direction.

These are the reasons for the short orders.

H.B.T./M-81/K Order accordingly.

2004 Y L R 2448

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

RASHEED AHMED and 3 others—Petitioners

Versus

THE STATE---Respondent

Crl. B. Appln. No.420 of 2003, decided on 14th October, 2003.

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

----S. 497---Penal Code (XLV of 1860), S.380/511---Bail, refusal of---Accused were arrested at the spot by the raiding party with whom they had not alleged any enmity for false implication---Question about the attraction of S. 380, P. P. C. in the case could only be resolved after recording the evidence at the trial---Devices and the material for stealing the petroleum recovered on the spot from the accused were not stated to have been foisted on them by the police---Accused were found digging the earth with spades and attempting to join the pipeline with the main line---Offence although was not punishable with death or ten years' R.I. yet it related to causing loss to National Exchequer by attempting to steal .the oil from the main pipeline---Oil-tanker belonging to one Pathan and the car seized by the raiding party at the place of incident had admittedly been driven by the accused---Bail was declined to accused in circumstances.

Saddarudding v. State 1994 PCr.LJ 1215; Amanullah v. State 1997 MLD 1470; Ghulam Rasool v. State 2003 PCr.LJ 387; Saeed Muhammad Shah v. State 1993 SCMR 550; Imtiaz Ahmed v. State PLD 1997 SC 545; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Shabir Ahmed alias Shablee v. State 1999 PCr.LJ 1348 and Imtiaz Ahmed and another v. The State PLD 1997 SCMR 239 ref.

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

----S. 497---Penal Code (XLV of 1860), S. 380/511---Bail---Principles---Courts even in offences not falling within the prohibitory clause of S.497(I), Cr.P.C. may decline to admit an accused to bail if the exceptional circumstances of the case so warrant.

Imtiaz Ahmed v. State PLD 1997 SC 545; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Shabir Ahmed alias Shablee v: State 1999 PCr.LJ 1348 and Imtiaz Ahmed and another v. The State PLD 1997 SCMR 239 ref.

Sarfraz Khan Jatoi for Applicants.

Mushtaque Ahmed Kourejo for State.

Date of hearing: 14th October, 2003.

ORDER

Applicants are involved in Crime No. 42 of 2003 of P.S. Dakhan recorded on 5-6-2003 at 2 a.m. at the instance of complainant Karim Bux Jatoi S.H.O., P.S. Dakhan under Sections 380, 511, P.P.C. The bail plea on behalf of the applicants/accused was filed in 'die Court of Sessions, but it was heard and decided by the learned IInd-Additional Sessions Judge, Shikarpur being Cr. B.A. No. 353 of 2003. The bail application was dismissed on 25-08-2003, hence the applicants/ accused have preferred this baiLapplication before, this Court on similar grounds for seeking post-arrest bail.

1. The brief facts as enunciated in the F.I.R. are reproduced herein below in extenso: -

"It is complained on behalf of the State that I alongwith my subordinate staff namely A.S.-I., Ghulam Rasool Jamali, H.C. Anwar Ali, P.C. Shahzado Khan, P.C. Shahmeer Ali, P.C. Abdul 1-lafeez left Police Station duly in police uniform in police mobile driven by driver P.C. Gulzar Ahmed carrying service weapons vide such daily diary entry No.20/4-6-2003 for patrol duty in the area. After partrolling at different point when we reached Wasul picket, we received spy information that near salinity canal on link road leading from High Way to Dare hick:), 9 persons are extricating the oil .from the pipe line and filling a tanker and on such information we proceeded to pointed placed. At about 11-00 p.m. we reached near salinity canal on link road leading to Jahn), we saw on head light of vehicle and torch light 9 persons, one tanker and one car of following description. Two persons were-digging earth with spades, and rest were attempting to join the pipes. We asked the 'culprits to stop telling them our identity, hence the accused started running, but we encircled them and were able to apprehend 7 of them while rest two decamped taking advantage of darkness. We also secured the oil tanker and car in our possession and on inquiry the apprehended persons disclosed their names to be 1. Nasrullah son of Ghulam Nabi Mirani, r/o village Maroon, Kakepoto, Taluka Garhi Yasin, 2. Muhammad Yakoob s/o Ghulam Sarwar Malgani r/o village Ghulam Hussain Malgani, Taluka and District Larkana, 3 Muhammad Ramzan son of Ghulam Muhammad Arain r/o Sadiqabad, 4. Rasheed Ahmed son of Muhammad Khushhal Kaleri r/o village Sardar Ganh, Taluka Rahimyar Khan, 5. Akhtar Hussain son of Ahmed Bux Muhano r/o village Sadabad, .Taluka Rahimyar Khan, 6. Muhammad Imran son of Amir Zaman Awan r/o Sher Bahadur, District Attuk 7. Qalab Hussain son of Mazari Khan Jatoi, r/o village Haji Ali Murad Jatoi, Taluka Larkana and the accused further disclosed that they had come there tor purpose of committing theft of oil. The personal search of apprehended culprits was conducted in presence of Mashirs A.S.-I. Ghulam Rasool Jatuall and Head Constable Anwar Ali Soomro, but nothing incriminating was secured. We then with the help of headlight of vehicle and torch lights secured the following described articles of oil extrication and such Mashitanma of arrest, recovery of oil tanker, car and articles was prepared at the spot with the signatures of the above-named Mashirs. Thereafter we brought the arrested accused and oil-tanker, car etc. to Police Station. Since the above-named accused have attempted to steal away the oil and hence committed offence punishable under section 380-511, P. P.0 . hence the F I. R. is lodged against them on behalf of the State.

Details of recovered oil tanker, car and articles:-

(1) Oil tanker No.LS 3711 of silver colour with green belt to tanker valued at Rs.25 lac.

(2) One Toyota Corolla Car No. Karachi 2300 of green colour valued at Rs. Two lac.

(3) One black coloured pipe measuring 30 feet valued at Rs. One thousand.

(4) One iron nail' valued at Rs. Two hundred.

(5) Two iron pipe pieces valued at Rs .500 .

(6) One clip for extricating oil valued at Rs.200.

(7) Six pieces of pipe valued at Rs. 1,000;

(8) One red colour Pano valued at Rs.100;

(9) Six nuts and bolts valued at . Rs.200;

(10) Ten wishers valued at Rs.100.

(11) Two iron bars valued at Rs.50.

(12) One cutting belt and two spades valued Rs.300.

Total value Rs.27,03,650

Mr. Sarfraz Kahn Jatoi, learned counsel for the applicants has contended that the offence under sections 380, 511, P.P.C. has not been made out, but at the most the offence would fall under section 379, P.P.C. It is further urged by the learned counsel that nothing incriminating was secured from the personal search of the applicants and they were allegedly found empty handed and the applicants/accused cannot be termed as habitual offenders as observed by the learned IInd Additional Sessions Judge while rejecting the bail application, as no independent person has been cited as witness in the case and no ()Vert act is attributed to the applicants for stealing the petroleum substance. The applicants have been made target in the enmity with the police and there are no reasonable grounds to believe that applicants being guilty of offence punishable with death, imprisonment for life or ten years, as such the matter requires further inquiry and the applicants/accused are entitled for the concession of bail It is further alleged by the learned counsel that the offence alleged against the applicants does not come within the prohibitory clause of section 497, Cr.P.C. Mr. Sarfraz Khan Jatoi, learned counsel for the applicants in support of his arguments, has relied upon the following case-laws:-

(1) Saddaruddin v. State (1994 PCr.LJ 1215);

(2) Amanullah v. State (1997 MLD 1470);

(3) Ghulam Rasool v. State (2003 PCr.LJ 387);

(4) Saeed Muhammad Shah v. State (1993 SCMR 550).

Conversely Mr. Mushtaq Ahmed Kourejo, learned counsel for the State has vehemently opposed this application on the ground that the applicants/accused were arrested on the spot alongwith oil tanker, one car and other articles, which can be used in stealing the oil. It is pointed out by the learned counsel for the State that the applicants/accused and other co-accused dug the land near by the pipeline, who intended to fill the tanker and on such spy information the police party proceeded towards canal of link road leading to Daro Jakhro and police party saw 9 persons and two persons were digging the earth with spades and rest were attempting to join the pipes. The police party encircled them and apprehended 7 accused persons while rest decamped taking the advantage of darkness. It is further argued by the learned State counsel that if the offence does not fall within prohibitory clause of section 497, Cr.P.C., the applicants/accused cannot be claimed bail as a right, as they had tried to extend loss to the National exchequer by trying to steal the petroleum substance while tampering the pipeline, therefore, they have attempted to commit a heinous offence, as such they were arrested with device and pipe line cutters, clip, nut, bolt and one cutting belt and 7 others pipe lines, iron pipe and iron nail with a view to steal away the oil.

1. I have considered the arguments of the learned counsel for the respective parties and the case-law cited at the bar.

2. Admittedly, the applicants were arrested at the spot by the raiding party with whom no enmity has been advanced to implicate the applicants/accused in false case. The argument of the learned counsel that the ingredient of section 380, P.P.C. are not attracted to the facts and circumstances of the case. This point can only be resolved by recording the evidence by the Trial Court regarding the commission of the offence. It is not agitated by the learned counsel for the applicants that all the devices and material for stealing the petroleum have been foisted against the applicants and other co-accused by the police party. As Mashirnama of the Wardat, the applicants and co-accused were digging the earth nearby the pipeline with the spades and the applicant/accused were arrested for making the connection in the pipeline. The police party on spy information reached at the place of Wardat, but applicants/accused and other co-accused tried to run away, but police party apprehended seven accused, persons whereas remaining two culprits ran away while taking the benefit of darkness. Thereafter, the raiding party arrested the applicants/accused and secured oil tanker, one car and other articles from their possession and enquired the names of arrested accused. On disclosure of the culprits, they disclosed their names to be Nasrullah, Muhammad Buz, Muhammad Ramzan, Rasheed Ahmed, Akhtar Hussain, Muhammad Imran and Talib Hussain. At that time the arrested accused persons admitted their guilt that they had come for committing the theft of oil. The police party also secured two spades from the place of incident where they digging the earth for attempting to join the pipeline from the main line. Although the offence is not punishable with death or ten years, but this offence relates to cause loss to National exchequer by attempting to steal the oil from the main line.

3. The main argument advanced by the learned counsel for the applicants is that the alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C. and applicants/accused are entitled for the concession of bail and during the arguments of the learned counsel for applicants, it is conceded that the applicant Rasheed Ahmad was driven the oil-tanker being its driver and the oil-tanker belongs to one Pathan and it is also conceded that applicant Muhammad Yakoob had driven the car which belongs to his father and the same vehicles were seized by the raiding party at the place of incident.

4. With regard to the proposition that the offence does not fall within the prohibitory clause of Section 497, Cr.P.C. there is pronouncement of a case Imtiaz Ahmed v. State (PLD 1997 SC 545). In this authority, it has been dilated by the Hon'ble apex Court, which is reproduced as under:-

In the same authority, it is also observed by the Hon'ble apex Court that

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refusal of bail, to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. The Hon'ble Supreme Court has further observed in the same authority, which is as under:—

"The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated, in all walks of life. The people commit offences detrimental to the society and the country for money."

It is also highlighted by the Hon'ble apex Court in the case of Tariq Bashir v. State (PLD 1995 SC 34), the observations made in the above-cited case are as under:-‑

"It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non‑bailable offences the grant of bail is not right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principles to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a 'rule and refusal an exception. So the hail will be declined only in extraordinary and exceptional cases."

There is another view expressed in a case of Shabir Ahmed alias Shablee -v: State (1999 PCr.LJ 1348). The observations made in this case are reproduced herein below:-:

"No doubt the petitioner is ­charged with an offence under section 337-F(v), P.P.C. which is not covered by the prohibition contained in section 497, Cr.P.C.- but he caused such an injury to the complainant which made him permanently disabled. He has gone through surgery many times just to be on his legs again, but perhaps he will have to remain on crutches. It is now well-established that even regarding offences not covered by the prohibitory clause of section 497, Cr.P.C. the Court can decline to admit an accused to bail where there are exceptional circumstances. Reliance is placed upon the case of Imtiaz Ahmed and another v. The State (PLD 1997 SCMR 239)."

In the above authority, the case of Tariq Bashir v. State (PLD 1995 SC 34), was considered.

1. In view of the dicta laid down in the above authorities, I have no option but to follow the same, the applicants/accused have not made out a case for grant of bail. The case-law cited by the learned counsel

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for the applicants is distinguishable from the facts of the present case.

1. Resultantly, the bail application is dismissed. However, the petitioner can move for bail afresh in the Trial Court after recording of some material evidence.

N.H.Q./R-16/K Bail refused.

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2004 Y LR 2546

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

AITBAR ALI---Applicant

Versus

MEDICAL SUPERINTENDENT, TALUKA HOSPITAL, RATODERO and another-Respondents

Civil Revision Appln. No.21 of 2002, decided on 7th October, 2003.

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

Ss. 42 & 54---Suit for declaration and injunction---Claim of plaintiff was that he had purchased suit-land from its owner and after purchase, the possession of suit-land was handed over to him and he continued to be in its possession since then---Plaintiff had alleged that defendants had tried to occupy suit land claiming that same had been acquired by them under law--- Plaintiff's case was that land in question had illegally and forcibly been occupied by defendants and same was not acquired by them in accordance with law or/and that no compensation was paid to him by Land Acquisition Officer---Ownership of plaintiff in respect of suit-land was unrebutted and was established from the certified true copy of record of right in his favour and in favour of his predecessor-in-interest--- Defendants had failed to prove that said documents were jubricated and managed whereas defendants in their written statement had conceded that suit-land was the property of Central Government and itwas allotted to its allottee who sold the same to a person from whom plaintiff had purchased same for valuable consideration and entry of said sale was effected in Revenue Record---Presumption of correctness of entries in Revenue Record regarding ownership was always attached to entries and burden was on defendant who had challenged said correctness, but defendants had failed to prove that allotment of suit land to its allottee was fabricated or subsequent sale was managed or that further sale to plaintiff was false one---Two Courts below had erred in misreading evidence on record and had ignored documentary evidence produced by plaintiff and documents in question were not found bogus though defendants had alleged that said documents had been managed---Even otherwise land in question being of Central Government, could not be acquired by Land Acquisition Authority--- Concurrent judgments and decrees passed by two Courts below being erroneous and based on wrong proposition of facts and law, were set aside by High Court, in exercise of its revisional jurisdiction--- Health Department had already constructed a hospital on suit land for the welfare of public-at-large, and if possession of suit land was handed over to plaintiffs. the whole community would suffer and would stand deprived of Medical facilities---In alternate plaintiff having made out a case for grant of compensation being the owner of suit-land, he was entitled to claim . compensation according to market value of suit-land.

Evacuee Trust Property Board v. Ghulam Rasool Khokhar 1990 SCMR 725; Dadabhoy Cement Indus. Ltd. v. National Development Finance Corpn. PLD 2002 SC 500: Allah Bakhsh v. Muhammad Abdullah1995 CLC 331 (a) and (b); Muhammad Bakhsh v. Ellahi Bukhsh 2003 SCMR 286; PLD 1983 SC 53: 1975 SCMR 472; 1993 MLD 962: PLD 1987 SC 574: PLD 1965 SC 295: 1997 SCMR 1139: 1968 SCMR 213 and 1964 SCMR 302 ref.

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

---S. 52---Entries in Revenue Record--- Presumption of correctness---Presumption of correctness of entries in Revenue Record regarding the ownership was always attached to such entries and burden would lie on person who challenged its correctness to prove that said entries were fabricated.

Gul Hassan Solangi for Applicant.

Muhammad Bachal Additional A.-G. for Respondents. Tonyo.

Date of hearing: 7th October, 2003.

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2004 Y L R 1

[Lahore]

Before Bashir A. Mujahid and Mian Muhammad Jpoehangir, JJ

IFTIKHAR HUSSAIN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.438‑T, 456‑T and Criminal Revision No. 188 of 2001, decided on 15th April, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/334/337‑F(v)l394/396/458/460‑‑­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑­Appreciation of evidence‑‑‑Two of accused persons who were sentenced to imprisonment for life with fine by Trial Court, did not enter into the house of deceased and they were not identified by complainant and the eye‑witnesses in the identification parade‑‑‑Said persons were implicated by prosecution witness in his statement under S.161, Cr. P. C. stating that he saw the accused in front of house of deceased/complainant but he did not give any description/feature of said accused persons‑‑‑Trial Court had placed reliance on involvement of one of said accused persons in previous cases to convict him in .the present case without confronting said accused about his previous history‑‑­Statement of prosecution witness having not been corroborated from any other independent sources accused persons could not be held vicariously liable for causing murder of deceased by the other co‑accused and thus they were acquitted of the charge against them.

(b) Penal Code (XLV of 1860)‑--

‑‑‑‑Ss.302/334/337‑F(v)/394/396/458/460‑‑­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑­Appreciation of evidence‑‑‑Accused were sentenced to death by Trial Court, had actively participated in the commission of crime and their participation had also been fully corroborated by medical evidence‑‑­Said accused were identified by complainant and other prosecution witnesses during identification parade‑‑­Prosecution witnesses had, no enmity for false implication of said accused persons by letting off real culprits‑‑‑All prosecution witnesses stood to the test of lengthy cross ­examination and nothing was brought on record to discard their testimony‑‑­Prosecution witnesses were inmates of the house and their presence at the spot could not be doubted, particularly when two of prosecution witnesses were injured in the same occurrence‑‑‑Said accused having been identified by role played by each of them, prosecution had succeeded to prove its case against them beyond any shadow of doubt‑‑‑Fatal injury caused to deceased was attributed to another co‑accused who was murdered in police encounter and alleged looted articles were also not recovered from said accused persons‑‑‑Maintaining convic­tion of said two accused persons, sentence of death awarded to them by Trial Court was reduced to imprisonment for life which would meet the ends of justice.

Muhammad Amin Jan for Appellants/Petitioners (in Criminal Appeal No.438‑T and Criminal Revision No. 188 of 2001)

Fareed Nawaz Ch. for Appellant (in Criminal Appeal No.456‑T of 2001).

Qazi Muhammad Amin for Respondent.

M.D. Shehzad for the State.

Date of hearing: 15th April, 2002.

2004 Y L R 10

[Lahore]

Before Syed Zahid Hussain, J

PROVINCE OF PUNJAB and others‑‑‑Petitioners

Versus

GHULAM SHABBIR‑‑‑Respondent

Civil Revision No.217 of 2002, decided on 3rd April, 2002.

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

‑‑‑‑S.115‑‑‑Limitation Act (IX of 1908), Ss.5 & 29(2)‑‑‑Revision petition‑‑­Limitation‑‑‑Delay, condonation of‑‑­Revision, in the present case, was barred by time and was accompanied by an application under S.5 of Limitation Act, 1908 for condonation of delay‑‑­Maintainability‑‑‑Limitation for filing of revision had itself been prescribed by proviso to S.115, C.P.C. which was 90 days‑‑‑Section 115, C. P. C. having prescribed its own period of limitation, S.5 of Limitation Act, 1908 could not be availed unless made applicable as per S.29(2) of Limitation Act, 1908‑‑‑Application under S.5, Limitation Act, 1908 for seeking condonation of delay, was of no avail to the petitioner.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 ref.

(b) Limitation‑‑‑

‑‑‑‑ Condonation of delay ‑‑‑Principles‑‑­Equality of litigants‑‑‑When the matter would come before the Court, the Court was obliged to decide and dispose it of in accordance with law irrespective of the standards and status of the parties before it‑‑‑Equality of all before the Courts of law in the litigation, was the hallmark of administration and dispensation of justice, which could not be sacrificed at agcy cost‑‑­Government was not entitled to any preferential' treatment in the matter of condonation of delay because with the expiry of period of limitation, valuable rights would accrue to and vest in other side and such a party could not be denuded of the same, unless delay was condoned for good reasons‑‑‑Laxity and lack of proper prosecution by a party, could not be condoned by the Court‑‑‑Government and the officials concerned were duty bound to take proper steps for defending and prosecuting the cases before the Courts with due care and diligence.

Riaz Ahmed Lone for Petitioners.

Date of hearing: 3rd April, 2002.

2004 Y L R 13

[Lahore]

Before Mian Muhammad Jahangir, J

QURBAN HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3333‑B 2003, decided on 25th July, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 337‑F(v)/337‑A(i)/337‑L(ii)/148/149/ 105‑‑‑Bail, grant of‑‑‑Accused had allegedly inflicted injuries on non‑vital parts of body of the victim‑‑Accused was no more required by police for any further investigation‑‑‑Trial Court had also observed that offence against accused did not fall within the prohibitory clause of S. 497, Cr. P. C. ‑‑‑Accused was admitted to bail, in circumstances.

Malik Ijaz Hussain Gorchha for Petitioner.

Syed Nazir Hussain Shah for the Complainant.

Akhtar Ali Qureshi for the State.

Date of hearing: 25th July, 2003.

2004 Y L R 16

[Lahore]

Before Farrukh Latif, J

Mst. SHAGUFTA SHEHNAZ and 2 others‑‑‑Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and 2 others‑‑‑Respondents

Writ Petition No. 2568 of 2001, decided on 30th April, 2002.

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

‑‑‑Ss.5, Sched. & 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Two separate suits for recovery of dower amount and for maintenance allowance‑‑‑Single appeal; competency of‑‑­ Plaintiff (wife) filed two suits in Family Court against defendant; one for recovery of dower and expenses incurred on delivery of children and second for the maintenance allowance for herself and for children‑‑­ Family Court consolidated two suits and by one judgment,, decreed one suit to the extent of dowry only while her claim regarding delivery expenses was dismissed and in the second suit maintenance allowance to the extent of children was granted, but claim of plaintiff for maintenance allowance was rejected‑‑‑Plaintiff being aggrieved by judgment of Family Court filed single appeal against said consolidated judgment assailing it on the ground that quantum of maintenance granted to minor children was less and dismissal of her claim regarding maintenance and recovery of delivery charges was illegal‑‑‑Appellate Court dismissed appeal filed by plaintiff on the ground that single appeal was not competent and two separate appeals should have been filed for obtaining different reliefs claimed by plaintiff ‑‑‑Validity‑‑­Provisions of Civil Procedure Code, 1908, other than Ss.10 & 11 thereof, being inapplicable to the proceedings before Family forums, technical objection of filing a single appeal against consolidated judgment, when it was directed against decision in both the suits would not come in the way of, adjudication‑‑‑High Court accepted the Constitutional petition by plaintiff, set aside judgment of Appellate ,Court with direction to decide the appeal afresh in accordance with law.

Allah Bakhsh v. Mst. Shamshad Zohra and others 1985 SCMR 959 ref.

Abdul Aziz Khan Niazi for Petitioners.

Respondent No.3: Ex parte.

Date of hearing: 17th April, 2002

2004 Y L R 18

[Lahore]

Before Ali Nawaz Chowhan, J

SHAUKAT ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2224‑B of 2003, decided on 14th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 392/411/412-‑‑Bail, grant of‑‑‑Accused was stated to be involved in seven criminal cases including murder eases‑‑‑Accused was alleged to be a desperate and hardened criminal who remained fugitive from law in some cases‑‑‑Though accused was a Councilor of his Ilaqa, but he depended on ransom for his living and he had made the lives of many others miserable‑‑‑Prima facie, case against accused having been made out and there being no good ground for grant of bail, his bail application was dismissed.

Aftab Ahmad Bajwa for Petitioner.

Khawaja Muhammad Asif Ali Butt for the Complainant.

Date of hearing: 14th July, 2003.

2004 Y L R 19

[Lahore]

Before Khawaja Muhammad Sharif, J

IMTIAZ ALI and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3623‑B of 2003, decided on 8th July, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420/471‑‑‑Bail, grant of‑‑None of the offences alleged against accused fell within the ambit of S.497(1), Cr.P.C.‑‑‑Recovery, had been effected and accused had been sent to judicial lock‑up as he was no more required by police for further investigation‑‑‑Accused was admitted to bail, in circumstances.

Zafar Iqbal Chowhan for Petitioners.

Muhammad Tariq for the State.

Date of hearing: 8th July, 2003.

2004 Y L R 20

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD IQBAL and 3 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3529‑B 2003, decided on 30th June, 2003.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑During investigation, two accused persons who were attributed inflicting Chhuri blows on deceased, were declared innocent and were placed in Column No. 2 of the report under S.173, Cr. P. C. ‑‑‑Such fact was sufficient to make out a case against said two accused of further inquiry‑‑‑Bail was granted to said two accused.

Ch. Muhammad Hussain Chhachhar for Petitioners.

Mushtaq Ahmad Bhatti for the State.

Date of hearing: 30th June, 2003.

2004 Y L R 29

[Lahore]

Before Maulvi Anwarul Haq, J

Sahibzada M. MUNAWAR ALI KHAN‑‑‑Petitioner

Versus

RETURNING OFFICER and others‑‑‑Respondents

Writ Petition No.3981 of 2001, decided on 20th March, 2001.

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑--

‑‑‑‑S. 14(c)‑‑‑Punjab Local Government ,Elections Rules, 2000, Rr.16 & 18‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Election for the seat of Naib‑Nazim‑‑‑Nomination papers, acceptance of‑‑‑Qualification of candidate‑‑‑Certificate showing' his qualification and date of birth produced by the candidate, was proved to be bogus one‑‑‑Candidate lacking qualification mentioned in S.14(c) of Punjab Local Government Elections Ordinance, 2000 to contest election to seat of Naib‑Nazim, orders accepting his nomination papers, were void‑‑‑Orders accepting nomination papers of the candidate, were set aside by High Court.

Muhammad Akram Qureshi for Petitioner.

Muhammad Amer Rehman and Shehzad Shaukat for Respondents Nos.3 and 4.

Muhammad Jahangir Wahla, A.A.‑G. (on Court's call).

Date of hearing: 20th March,

2004 Y L R 30

[Lahore]

Before Syed Zahid Hussain, J

SHARIFAN BIBI and 7 others‑‑‑Petitioners

Versus

NASIM AHMED and 13 others‑‑‑Respondents

Civil Revision No.474 of 1997, heard on 26th September, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XIV, R.5 & O.XLI, R.23 & 115‑‑­Specific Relief Act (I of 1877), Ss. 42 & 54‑­‑Suit for declaration and injunction‑‑­Remand of case‑‑‑Suit having been dismissed by Trial Court, plaintiffs preferred appeal and defendants filed cross­ objection qua the findings on one issue‑‑­Appellate Court set aside judgment and decree of Trial Court and remanded matter for decision afresh in accordance with law‑‑‑Defendants assailed judgment of Appellate Court in revision‑‑‑Case was remanded for two reasons firstly that necessary issues were not framed by Trial Court and secondly that evidence in the case was not taken down by Trial Judge himself, but was taken down by the Reader of the Court‑‑‑Validity‑‑‑Material on record had shown that issues were framed in presence of counsel for parties and despite the fact that suit remained pending for number of years after framing of issues no one raised any objection in that respect— Parties could avail R. S of O. XIV, C. P. C. in case any issue was left to be framed, but no steps were taken by the parties during such long period which had shown that parties were satisfied with the form, contents and scope of issues framed by the Trial Court— Parties produced evidence of their choice to their satisfaction before Trial Court and freely cross‑examined witnesses produced by other side, it could not be assumed that parties were not, conscious of the real controversy involved in the lis‑‑‑Plaintiffs could not have complained before Appellate Court below about that aspect and that was not a valid ground to remand the case‑‑‑Second ground of remand was also not tenable, because evidence though was taken down by the Reader of the Court, but certificate was appended by Trial Judge to the effect that it was dictated by him to the Reader and that would suffice the requirement of law‑‑‑ Contention that High Court should, in exercise of, its revisional jurisdiction, decide the matter itself, was repelled because it was the domain of First Appellate Court to decide the appeal in first instance which jurisdiction could be exercised both on question of fact as also of law‑‑‑Jurisdiction of Appellate Court could not be bypassed merely to overcome the delay that had occurred in decision of the matter‑‑‑Revision petition was accepted by High Court to the extent that remand was not called for and that Appellate Court ought to have decided the appeal and Cross‑objection by itself.

Pramatha Nath Chowdhary and 17 others v. Kamir Mondal and others PLD 1965 SC 434; North‑West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others PLD 1993 SC 418 and Haji Mohammad Amin Mian v. Jamir Ahmed and another 1968 SCMR 274 ref.

Dr. A. Basit, Raja Bilal Ahmed and Malik Amjad Pervez for Petitioners.

Muhammad Saleem Sheikh for Respondents Nos. 1 to 11.

Legal Heirs of Respondents Nos. 12 and 14: Ex parte.

Aziz‑ur‑Rehman Sheikh for Respondent No. 13.

Dates of hearing: 25th and 26th September, 2003.

2004 Y L R 42

[Lahore]

Before Ch. Ijaz Ahmad, J

Mrs. A. MINHAS and others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN and others‑‑Respondents

Writ Petition No.416 of 1999, decided on 3rd October, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 4‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Duty of public functionaries‑‑‑Public functionaries were duty bound to decide the application of citizens/their subordinates without fear, favour and nepotism.

Messrs Airport Support Service v. The Airport Manager I.A., Karachi 1998 SCMR 2268 ref.

M. Ajmal Khan for Petitioners.

Ch. Shahid Saeed for Respondents.

Date of hearing: 3rd October.

2004 Y L R 44

[Lahore]

Before Mian Muhammad Jahangir, J

MUHAMMAD RASHID ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3030‑B of 2003, decided on 12th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/342/148/149/337‑A (i)/337‑L (2)‑‑‑ Bail, grant of‑‑‑Further inquiry‑‑‑No injury to deceased was attributed to the accused and contention that injuries sustained by witness were simple in nature, had not been rebutted by the prosecution‑‑‑Result of investigation as verified by D.S.P. in a Zimni was that the accused had inflicted Sota blows to prosecution witness, but he was not present in the second part of the same incident when firing was made by the opponents at the spot and in connection with main occurrence prosecution witness etc. were found guilty under S.324/34, P. P. C. in cross‑version advanced by accused party and a direction was given to arrest accused persons to recover the crime weapons‑‑‑Said opinion of investigating police seemed to have been based upon some sound material, which could be taken into consideration‑‑‑To the extent of accused, it was a case of further inquiry‑‑­Accused was admitted to bail, in circumstances.

Atta Ullah and 3 others v. The State 1999 SCMR 1320; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Abdul Aziz v: The State 1996 SCMR 1693 and Muhammad, Sadiq v. Muhammad Nisar and 7 others 2003 PCr.LJ 20 ref.

Ch. Muhammad Hussain Chhachhar for Petitioner.

Muhammad Azam for the State.

Date of hearing: 12th June, 2003.

2004 Y L R 48

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

AZMAT BASHIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2153‑B of 2003, decided on 19th May, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.380/440/454/148/149‑‑‑Bail, grant of‑‑­Special circumstances of enmity existed between police and accused which was evident from the fact that another case under S.9(c) of Control of Narcotic Substances Act, 1997 was registered against the accused on the behest of brother of S.H.O. concerned and two police officials who were witnesses in that case in which accused were acquitted, were also recovery witnesses in the present case against the accused‑‑‑Prima facie, case of bail had been made out by the accused‑‑­Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Date of hearing: 19th May, 2003.

2004 Y L R 49

[Lahore]

Before Ch. Iftikhar Hussain, J

SAFDAR ALI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.763‑B of 2003, decided on 17th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

---------S. 497(2)‑‑‑Penal Code (XLV of 1860), S. 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑­Bail, grant of‑‑‑Further inquiry‑‑‑Thirty eight hours' delay in lodging the F.I.R.‑‑­No mark of violence was found on the body of alleged victim on his medical examination which fact had cast doubt on victim's story‑‑‑Benefit of every doubt, even at bail stage, was to be given to the accused‑‑‑Case of accused, in circum­stances, required further inquiry into his guilt covering his case under subsection (2) of S. 497, Cr. P. C. ‑‑‑Accused was behind the bars for about one year and two months and was, previous non‑convict‑‑‑Accused was admitted to bail, in circumstances.

Tariq Zulfiqar Ahmad Chaudhary for Petitioner.

Javed Iqbal for the State.

Date of hearing: 17th April, 2003

2004 Y L R 50

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

ABDUL SATTAR‑‑‑Petitioner

Versus

MUHAMMAD ISHAQ‑‑‑Respondent

Civil Revision No. 186‑D of 1992, heard on 7th October, 2002.

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O. VII, R. 11‑‑‑Suit for declaration‑‑­Rejection of plaint‑‑‑Suit‑land was purchased by, predecessor‑in‑interest of plaintiffs from deceased predecessor‑in-­interest of defendants in 1947 through registered sale‑deed and vendee obtained possession of suit‑land‑‑‑After death of vendee his legal heirs/plaintiffs remained in possession of suit‑land as owners thereof‑‑­Vendee in his lifetime could not apply for mutation in his favour on the basis of registered sale‑deed executed in his favour and plaintiffs being legal heirs of deceased vendee got mutation sanctioned in their favour in 1990 on the basis of said sale ­deed‑‑‑Collector having cancelled said mutation, plaintiffs/legal heirs of deceased vendee filed suit for declaration‑‑‑Trial Court rejected plaint on the ground that suit was time‑barred and order of Trial Court was upheld in appeal by Appellate Court‑‑­Validity‑‑‑Defendants had themselves admitted in their written statement that plaintiffs being legal heirs of deceased vendee were in possession of suit‑land‑‑‑No period of limitation had anywhere been prescribed for the entry and attestation of a sale mutation on the basis of a registered sale‑deed‑‑‑When a sale‑deed was admitted to registration, it was the duty of Registration Authority to suo motu send a `Parcha Registry' to concerned Revenue Authorities for the entry and attestation of mutation on the strength of registered sale‑deed‑‑‑Said registered sale‑deed was still very much intact as defendants had not instituted any legal proceedings for the cancellation of the sale­ deed‑‑‑Even otherwise party in possession was never out of time‑‑‑Suit filed by plaintiffs was not time‑barred and plaint could not have been rejected on that ground‑‑‑Concurrent judgments of Court below whereby plaint was rejected, were set aside by High Court in circumstances.

(b) Limitation‑‑‑

‑‑‑‑ Question of limitation being a mixed question of law and fact trial or disposal of such question could not be permitted to be undertaken without allowing opportunity of producing evidence, pro and contra to the contesting parties.

1992 SCMR 1828 and 1999 SCMR 2396 ref.

A.M. Farani for Petitioner.

Nadeem Iqbal Chaudhry for Respondent.

Date of hearing: 7th October, 2002.

2004 Y L R 56

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mehr MUHAMMAD YUSUF‑‑‑Petitioner

Versus

THE STATE and 3 others‑‑‑Respondents

Criminal Revision No.273 of 2003, decided on 17th July, 2003.

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

‑‑‑‑Ss. 22‑A(6), 435 & 439‑‑‑Direction of Sessions Judge to register criminal case against police officer‑‑‑Validity‑‑‑Complaint was filed by brother of detenu to the effect that petitioner police officer arrested his brother while he went for offering Salam' to a Mazar and said police officer kept brother of the complainant in illegal confinement, where, he was severely tortured and police officer had received amount of Rs. 34,000 from him to release his brother‑‑‑Sessions Judge , on the complaint of the brother of the detenu directed to hold an inquiry against the petitioner police officer‑‑‑Allegations leveled against the petitioner police officer and others having been found correct, Sessions Judge besides, recommendation for departmental action, also passed order for registration of criminal case against the accused police officer by Anti‑Corruption Department for receiving Rs. 34,000 as illegal gratification which were recovered from accused during course of inquiry‑‑­Registration of said case was challenged by the accused police officer contending that under S.22‑A, Cr.P.C. Sessions Judge had no power to direct for registration of case against him‑‑‑Provisions of subsection (6) of S.22‑A, Cr. P. C. had clearly provided that Sessions Judge, while acting asJustice of the Peace', was competent to issue appropriate direction regarding registration of case‑‑‑Provisions of Establishment of Anti‑Corruption Rules were only directory in nature and any violation of the same, was not sufficient to quash the F.I.R. or undo any action if allegation against the accused otherwise was borne out from the facts and circumstances of the case‑‑‑Purpose of registration of case was to set in motion the criminal proceedings and accused police officer could prove, his innocence‑‑‑In absence of any jurisdictional or legal defect in the order passed by Sessions Judge, same could not be interfered with in revision.

Malik Shawkat Ali Dogar and others v. Ghulam Qasim Khan Khakwani PLD 1994 SC 281 ref.

Abdul Aziz Khan Niazi for Petitioner.

Date of hearing: 17th July, 2003.

2004 Y L R 62

[Lahore]

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

Mst. RIAZ QAYYUM and others‑‑‑Petitioners

Versus

STATE and others‑‑‑Respondents

Writ Petitions Nos.4991, 5583, 6963 and 8146 of 2003, heard on 21st July, 2003.

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

‑‑‑‑Ss. 9 & 18‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Reference against accused on the ground of corruption and corrupt practices‑‑­Validity‑‑‑Case of prosecution regarding References filed in the Accountability Court was that accused (alleged manufacturer) alongwith co‑accused officials prepared false reports to the effect that accused in his factory had installed a machinery and that said unit had in‑house facility to manufacture special precision shafting of iron and alloy steel and on the basis of said false report manufacturer was extended facility of S.R.O.510(1)91 dated 30‑5‑1991 and thereby was provided with a benefit of huge amount causing corresponding loss to the Public Exchequer‑‑‑ Collector Customs, who was also an accused in the case, was asked to provide a list of machinery installed in the premises of the factory who managed to send list of machinery duly verified by the accused officers Committee, on the basis of said list confirmed that factory/company had sufficient in‑house facility to manufacture precision shafting of iron and alloy steel‑‑­Accused/Collector Customs on the said report, sent second verification report endorsing the claim of accused/owner of the factory/company that 31 machines had duly been installed in its premises‑‑‑Central Board of Revenue, in view of the reports, issued a provisional certificate permitting the company factory to import 10, 000 Metric Tons Square Billets under concessionary rate of Duties Taxes under S.R.O. 510(1)91 dated 30‑5‑1991 and the company/factory continued deriving benefit of said S.R.O. and imported the raw material without payment of duties‑‑­Collector Custom (accused) was asked by a letter to verify as to whether said company factory had any in‑house facility of manufacturing said goods and the accused sent the report which proved to be false on which references had been made‑‑­Role of accused in his capacity as Superintendent. Central Excise and Sales Tax, was that he alongwith co‑accused carried out spot inspection of the premises of the factory and on his report certificate was issued‑‑‑Criminal liability of accused was no less than the co‑accused‑‑‑Constitutional petitions against filing of references were dismissed.

Rashdeen Nawaz Kasuri for Petitioners.

M. Bilal Khan with Ali Tipu Khan for Respondents.

Date of hearing: 21st July, 2003.

2004 Y L R 68

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD MUSTAQEEM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2716‑B of 2002, decided on 4th February, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Emigration Ordinance (XVII of 1979), Ss.17 & 22‑‑‑Bail, grant of‑‑­Allegation ‑against accused was that he alongwith co‑accused had received huge amount from complainants for getting them visas for employment abroad, but accused neither supplied them visas nor returned money‑‑‑Offence alleged against accused attracted Ss. 17 & 22 of Emigration Ordinance, 1979 and punishment prescribed under S.17 of the Ordinance was five years and under S.22 for a term which could extend to fourteen years‑‑‑Alternative sentence of fine was provided in the said two provisions of Emigration Ordinance, 1979‑‑‑Case against accused, in circumstances, would be out of prohibitory clause in S.497(1), Cr.P.C.‑‑‑Accused, who was behind the bars for the last about nine months, was previous non‑convict‑‑­Accused was entitled to grant of bail.

Shakil Hassan Rashdi v. The State 1992 MLD 99 ref.

Abdul Aziz Khan Niazi for Petitioner.

Iftikhar Ibrahim Qureshi for the State.

Date of hearing: 4th February, 2003.

2004 Y L R 70

[Lahore]

Before M.A. Shahid Siddiqui and Ch. Iftikhar Hussain, JJ

MUHAMMAD AYYUB alias MANNA‑‑--Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1254‑B of 2003, decided on 12th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts‑3 & 4‑‑­Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑‑Bail, grant of‑‑‑Allegation against accused was that Charas weighing 1055 grams was recovered from him‑‑­Nothing was on record to show that substance allegedly recovered from the possession of accused was Charas‑‑­Chemical Examiner in his report had informed the police that result of analysis of sample was inconclusive and that second sample was required for analysis‑‑‑Second sample had not been sent to the Office of Chemical Examiner‑‑‑Despite lapse of more than a year prosecution had not submitted challan‑‑‑Accused, in circumstances could not be detained for indefinite period when delay in submission of challan had not properly been explained by the prosecution‑‑‑Bail was granted to accused, in circumstances.

Abdul Aziz Khan Niazi for Petitioner.

Waseem Khan Babar for the State.

Jam Nazir Ahmad, District Attorney, Rajanpur.

Date of hearing: 12th June, 2003.

2004 Y L R 71

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AKHLAQ AHMED ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.1236 to 1283 of 2001, decided on 15th February, 2002.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 409/420/468/471‑‑Appreciation of evidence‑‑‑All prosecution witnesses had been subjected to lengthy cross­ examination, but nothing could be gained by accused from them as their statements were consistent on material points and no discrepancy had been found in their statements‑‑‑Accused had failed to point out any contradiction in statements of prosecution witnesses which could cast doubt on prosecution case‑‑‑ Contention of accused that alleged amount had been planted upon him, was repelled because such a huge amount could not be planted, if it was not recovered from him‑‑‑No reason existed to substitute accused by exonerating the other accused‑‑‑‑Accused had failed to point out any mala fides on part of prosecution witnesses to exonerate other accused if offence had been committed by them‑‑‑Prosecution had fully established its case against accused‑‑‑Judgment of Trial Court was based on cogent reasons and it was supported by evidence on record‑‑‑No illegality had been committed by Trial Court while convicting accused‑‑­Prosecution in the case had stood on its own legs and accused had failed to show any reason for interference in judgment of Trial Court‑‑‑Appeals against judgment of Trial Court having no merits, were dismissed.

NLR 1994 Criminal 505 and State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 409/420/468/471‑‑‑Criminal Procedure Code (V of 1898), S.156‑‑­Investigation‑‑‑ ‑Competent, Agency to investigate‑‑‑Investigation conducted by any Agency other than the relevant Agency, would not vitiate the trial on such ground alone unless some prejudice had occasioned by investigation to accused‑‑‑Accused had failed to . point out any circumstances by which it could be inferred that prejudice had been caused to the accused by investigation of Local Police instead of F.I.A.‑‑‑Challan was submitted to the Court and prosecution produced evidence under relevant provisions of law in a Court of competent jurisdiction‑‑‑Court could not go back to see whether case was registered by competent person or not‑‑‑Prosecution in. the case had stood on its own legs and accused had failed to show any reason for interference in judgment of Trial Court‑‑­Appeals having no merits, were dismissed.

Zahid Hussain Khan for Appellant.

Mrs. Siddiqua Altaf for the State.

Date of hearing: 15th February, 2002.

2004 Y L R 81

[Lahore]

Before Syed Zahid Hussain, J

BARKAT ALI ‑‑‑Petitioner

Versus

NADIR KHAN and another‑‑‑Respondents

Civil Revision No. 1893 of 1991, heard on 24th July, 2001.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), Ss.12(2) & 115‑‑‑Suit for declaration‑‑‑Allegation of fraud and collusiveness‑‑‑Plaintiff offered that if defendant's witness took Oath on Holy Qur'an and deposed that plaintiff had sold suit‑land to father of defendant, his suit could be dismissed‑‑‑Said offer was accepted and witness took the Oath accordingly and suit filed, by plaintiff was finally dismissed up to the High Court‑‑­Petitioner, who was brother of plaintiff, filed application under S.12(2), C.P.C. alleging that plaintiff had already sold the shop in dispute in his favour and that decree in suit had been passed without impleading him as party in litigation between plaintiff and defendant and that decree in the case was based on fraud and ‑collusion‑‑‑Said petition having been dismissed, petitioner had filed revision against the dismissal and had claimed that his petition could not have been dismissed without recording evidence in the matter‑‑­Validity‑‑‑Plaintiff and petitioner who were real brothers, were residing in the same village, it was in circumstances, very hard to believe that petitioner would not have come to know of the litigation which had been started by his brother against the defendant, way back in year 1988‑‑‑Plaintiff whose suit was dismissed, had fought up to the High Court when his revision petition was dismissed‑‑‑Had it been a collusive matter, plaintiff/brother of petitioner would not have challenged judgment against him up to extent of High Court‑‑‑Petitioner had filed petition under S.12(2), C. P. C. after dismissal of revision filed by plaintiff‑‑‑Said action of petitioner was a design aimed at to deprive the defendant of the outcome of litigation which had ended in his favour‑‑­Petitioner could not produce any proof to show that suit shop was sold to him by his brother/plaintiff‑‑‑Contention of petitioner that his petition under S.12(2), C.P.C. could not be dismissed without recording evidence, was repelled because it was not in every case that Court would be under obligation to frame issues, record evidence of parties and follow procedure prescribed for decision in a suit‑‑‑Petition filed under S.12 (2), C. P. C. having not disclosed a triable controversy for which issues were necessary to be framed, was rightly dismissed, in circumstances.

Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 492.; Muhammad Hussain v. Mst. Razia Bibi and others 1999 MLD 3030; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 ref.

Malik Amjad Pervez for Petitioner.

Syed Fayyaz Ahmed Sherazi for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 24th July, 2001.

2004 Y L R 84

[Lahore]

Before Syed Zahid Hussain, J

M.Z. KHAN‑‑‑Petitioner

Versus

AZIZ‑UD‑DIN AHMAD KHAN and others‑‑‑Respondents

Writ Petition No.74‑R of 1997, heard on 26th May, 2003.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑--

‑‑‑‑S. 2(2)‑‑‑Constitution of Pakistan (1973) Art.189‑‑‑Decision of Supreme Court‑‑‑Binding, effect of‑‑‑Supreme Court while disposing of application filed against judgment of High Court observed that Notified officer would be free to resolve all disputed questions of fact by making an independent inquiry‑‑‑Notified Officer passed order in the light of said observation/direction of Supreme Court‑‑­Observation/direction of Supreme Court was entitled to highest regard and respect and would bind the parties‑‑‑High Court was not in a position to ignore the same, rather no one could be allowed to find faults with such a clear mandate contained in the judgment of Supreme Court‑‑‑Duty of Notified Officer was to have made an independent inquiry enabling him to resolve disputed matter‑‑‑Notified Officer in embarking upon such an inquiry, keeping in view directions of the Supreme Court, had not overstepped his jurisdiction as that aspect of the matter stood clinched by Supreme Court.

Sh. Manzoor Hussain v. Maula Bakhsh and another 1981 Law Notes (SC) 684 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 16‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑‑Undue influence, plea of—­Executant of agreement of association in respect of transfer of property had alleged that alleged execution was a result of undue influence ‑‑‑Executant of agreement had alleged that he suffered from a mental ailment and had started living with his father‑in‑law who taking advantage of his mental illness got certain documents signed by him and same were implemented in Settlement Record and his father‑in‑law got P. T. O. and P. T. D. in his favour on basis of said documents which he got executed from him under undue influence ‑‑‑Executant of agreement sought transaction on basis of said agreement to be avoided on allegation of undue influence practised upon him in execution. of agreement‑‑‑Allegation of undue influence was not proved as executant did not make statement in that respect before Settlement Authority and his long silence in the matter also had given rise to adverse inference against him‑‑­Precise nature of influence exercised, manner of use of influence, unfair advantage derived by the other party, had to be proved with precision, because the essence of undue influence was that a person was constrained to do against his will, and but for such influence, he would have refused to do the same if left to exercise his own judgment.

Amir Chand Tota Ram, Delhi v. Smt. Sucheta Kripalani, Delhi AIR 1961 Punj. 383; Misrilal Jalamchand and another v. Sobhachand Jalamanand and others AIR 1956 Bom. 569; Thakkadi Syed Muhammad v. Ahmed Fathummal and others AIR 1973 Mad. 302; Afsar Shaikh and another v. Soleman Bibi and others AIR 1976 SC 163 and Shamir through Legal Heirs v. Faiz Elahi, through Legal Heirs 1993 SCMR 145 ref.

(c) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑--

‑‑‑‑S. 2(2)‑‑‑Constitution Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­ Cancellation of allotment of property for non‑payment of transfer price‑‑‑Restoration allotment‑-‑Property in dispute was transferred in favour of respondent according to his share, but he having failed to pay the price, allotment in his name was cancelled and property was resumed by the Settlement Authority‑‑‑Respondent thereafter entered into agreement of association with petitioner who paid the entire price of the property and got property restored in name of respondent‑‑­Agreement of association envisaged 51 /56 share of property in question in favour of petitioner and 5/56 in favour of respondent‑‑‑Such agreement of association being legal and enforceable, petitioner was entitled to 51/56 share of property according to agreement of association while respondent was entitled to 5/56 share of same in terms of agreement‑‑‑Notified officer was directed to issue title documents accordingly.

(d) Administration of justice‑‑‑--

‑‑Principles of‑‑‑Scales of justice would not and should not tilt on account of a particular position and status a person was holding‑‑‑Even‑handed administration and dispensation of justice was a hallmark of a judicial system, necessary to maintain equilibrium in Society‑‑‑No one should gain or be allowed to take advantage of his position or status, how high it might be; at the same time no one should suffer deprivation, on, account of his status and position‑‑‑All were equal before law and the Court‑‑‑Matters were to be decided without fear and favour.

(e) Undue influence‑‑‑--

‑‑‑‑Concept‑‑‑Precise nature of influence exercised, manner of use, of influence, unfair advantage derived by the other party, had to be proved with precision, because the essence of undue influence was that a person was constrained to do against his will, and but for such influence, he would have refused to do the same if left to exercise his own judgment.

Muhammad Hanif Khan Niazi for Petitioner.

Kh. Muhammad Afzal for Respondents.

M.Z. Khalil for Respondent No.3.

Date of hearing: 26th May, 2003.

2004 Y L R 90

[Lahore]

Before Mian Muhammad Jehangir, J

AHMAD KHAN and others‑‑‑Petitioners

Versus

THE STATE ‑Respondent

Criminal Miscellaneous No.5793‑B 2001, decided on 31st October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Bail, grant of‑‑‑Case was registered against twelve accused persons‑‑­During arguments, alleged abductee had supported prosecution case on question of her abduction and commission of Zina by main accused and counsel .for accused withdrew the bail application to the extent of said accused‑‑‑Alleged abductee in her statement recorded under S.161, Cr.P.C. had leveled allegations of commission of Zina against six accused persons including the main accused‑‑‑Case was not fit for bail to the extent of said six accused persons and as a consequence remaining six accused persons against whom there was no allegation of commission of Zina, were admitted to bail.

Zahid Hussain Khan for Petitioners.

Malik Abdul Aziz Khan Kandwal for the Complainant.

Sheikh Mumtaz Ali for the State.

2004 Y L R 91

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAFIQUE‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1271‑B of 2003, decided on 24th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused was not named in F.I.R., but his name was given subsequently by witnesses in their supplementary statements‑‑‑Accused "was declared innocent by Investigating Officer‑‑‑Nothing incriminating was recovered from accused‑-‑Case against accused being of further inquiry falling under subsection (2) of S. 497, Cr.P.C. he was admitted to bail.

Rana Farhat Ali for Petitioner.

Ms. Kausar Akhtar for the State.

Date of hearing: 24th March, 2003.

2004 Y L R 93

[Lahore]

Before Iftikhar Hussain Chaudhry, C J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2973‑B of 2003, decided on 23rd June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Case against accused was registered promptly within half an hour in which complainant had alleged that accused had fired with M‑16 Rifle at deceased who died at the spot‑‑‑Motive for occurrence was stated to be previous enmity between deceased and accused‑‑‑Accused though allegedly was injured in incident, but plea of accused that he had fired back in self‑defence, would be examined by Trial Court after evidence would be led by parties and at bail stage it was difficult and also inappropriate to give any opinion qua the plea of self‑defence raised by accused.

Sardar M. Latif Khan Khosa for Petitioner.

Syed Zahid Hussain Bokhari for the Complainant.

Noor Muhammad Qaisar Kalyar for the State.

Date of hearing: 23rd June, 2003.

2004 Y L R 94

[Lahore]

Before Mian Muhammad Jahangir, J

MUHAMMAD AFZAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3375‑B 2003, decided on 24th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Role attributed to accused had resulted into an injury on the left leg of injured and fire shots made by co‑accused had hit on right leg of injured‑‑‑Seat of injury selected by accused had reflected that he had no intention to kill the injured otherwise if he had intended to kill injured he could have hit his vital parts of body‑‑­Delay in disposal of case happened either in submission of challan or in the trial‑‑­Trial Court while disposing of bail application of accused had observed that the ground of accused remaining behind the bars for the last about one year, was not available after deletion of 3rd and 4th provisos to S.497, Cr.P.C. by Amending Ordinance, 2001, dated 10‑10‑2001, which would mean that before commission of the offence 3rd and 4th provisos to S.497, Cr. P. C. having been deleted, accused could not claim any such concession‑‑‑Fact of delay in disposal of case had to be examined by the Court and Court had to see as to who was responsible for causing delay as it was the basic duty of the Court in administration of criminal justice‑‑‑Delay having not been caused by accused, same was worth‑consideration‑‑‑Case, in circumstances, was of further inquiry‑‑­Accused was admitted to bail, in circumstances.

Meeran Bux v. The State 1996 PCr.LJ 544 and Master Dur Muhammad and 2 others v. The State 1994 PCr.LJ 1769 ref.

Ch. Muhammad Arif Bhindar for Petitioner.

Sajjad Ali Jafri for the State.

Date of hearing: 24th June, 2003.

2004 Y L R 96

[Lahore]

Before M. Naeemullah Khan Sherwani, J

Mst. MAQSOOD BIBI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2800‑B 2003, decided on 19th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979); Ss.l3/14‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Alleged eye‑witnesses whose names figured in F.LR. had tendered their duly sworn affidavits before Trial Court, completely refuting the prosecution story‑‑­Accused though did not belong to place of occurrence, but their mere availability in the house of co‑accused who allegedly was keeping brothel house, could hardly be considered as an incriminating circumstance‑‑‑Accusation brought against accused calling for further probe, they were admitted to bail.

Muhammad Riaz v. S.H.O., Police Station City Jhang PLD 1998 Lah. 35 and 2001 MLD 277 ref.

Ch. Ahmad Saifullah Khatana for Petitioner.

Mehmood‑ul‑Hassan Qureshi for the State.

Date of hearing: 19th June, 2003.

2004 Y L R 97

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD SALEEM alias BUGGI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Civil Miscellaneous No.1 of 2002 in Criminal Appeal No.644 of 2002, decided on 11th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Suspension of sentence‑‑‑Trial Court did not believe the motive part of occurrence and found that it was the deceased who had come to the shop of accused‑‑‑Plea of accused that there was no premeditation and incident was a case of sudden fight and that such a harsh sentence was not warranted, was not without substance and needed deeper appreciation of evidence‑‑‑Evidence, in circumstances, would require reappraisal and existence of mens rea would be a moot point ‑‑‑Petition ­for suspension of sentence was allowed, in circumstances.

Allah Yar and another v. The State 1994 PCr.LJ 211 and Faqir Muhammad v. Akbar and others 1979 SCMR 270 ref.

Azam Nazir Tarar for Applicant.

Date of hearing: 11th March, 2003.

2004 Y L R 137

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD AKRAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.990‑B of 2003/BWP, decided on 15th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/109134‑‑‑Bail, grant of‑‑‑Allegation against accused was that at his behest, the other accused persons who were nominated in the F.I.R., had committed the murder of the deceased ‑‑‑F.I.R. was silent as to why alleged command was made to the accused persons by accused and what was the enmity which led him to direct other accused persons to commit heinous offence‑‑‑No nexus was available to prove the motive behind the command/direction having allegedly been given by the accused to the other accused persons‑‑‑Not only Inspector S.H.O. Police but the S.D.P.O. also had investigated the case and had found the accused innocent‑‑‑To rope in the innocent person, was easy, but to prove such allegation was difficult ‑‑‑Mere allegation of direction given by the accused without any prima facie substantive, cogent and well founded evidence, would not be sufficient to keep any person behind the bars indefinitely ‑‑‑Ipsi dixit of Police though was not binding upon the Court, but it had got some weight to be considered at the time of grant or refusal of the bail‑‑­Accused was behind the bars since his arrest‑‑‑No useful purpose would be served by keeping the accused in detention‑‑­Accused was admitted to bail, in circumstances.

Malik Saeed Ijaz for Petitioner.

Zafar Iqbal Awan for the Complainant.

Raja Aftab Hussain for the State.

2004 Y L R 148

[Lahore]

Before Sh. Hakim Ali, J

GHULAM HUSSAIN‑-‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No.843‑Q of 2003, decided on 22nd October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 561-A & 550‑‑‑Constitution of Pakistan (1973), Art. 24‑‑‑Petition for quashing of order‑‑‑ Two mares were taken into possession by police from the custody of petitioner under S.550, Cr.P.C. and petitioner was granted time to produce proof of ownership of said two mares‑‑­Custody of said two mares, in the meantime on application of another person, was given to him by the Magistrate‑‑‑Petitioner produced receipt which displayed the purchase of said two mares in his favour‑‑­Police, on production of said receipt by the petitioner, requested the Magistrate to review his earlier order whereby two mares were handed over to the other person. and to direct the delivery of possession of said mares to the petitioner, but said request was turned down by the Magistrate and then by the Additional Sessions Judge‑‑­Validity‑‑‑Mars had not been shown or proved to have been stolen or involved in any case of theft or any commission of theft‑‑‑No F.I.R. with regard to alleged theft of said two mares had been lodged by person to whom custody of said mares was handed over by the Magistrate or any other person‑‑‑Proper course, in circumstances, was to hand over the mares to the petitioner from whose custody those were taken into possession by the police‑‑‑Both the Magistrate and Additional Sessions Judge, by passing impugned orders, had transgressed their limits and had adopted the procedure of deciding the civil dispute of ownership between, the petitioner and said other person to whom mares were handed over‑‑‑Owner of disputed mares who had produced 'valid receipt, had been deprived of his mares without any fault on his part whereas a stranger had been inducted in and graced with said mares‑‑­Right granted to petitioner under Art.24 of the Constitution had been violated. in circumstances‑‑‑Impugned order was quashed and it was, ordered that custody of disputed mares be returned to petitioner and said other person if had any claim in respect of the mares, could move the proper Court for resolution of the dispute regarding their ownership.

Muhammad Yousuf v. Muhammad Ramzan 1999 PCr.LJ 968; Awuwu Hamid Muhammad and 4 others v. The State 1999 M L D 1531 and Muhammad Saleem v. State 1992 PCr.LJ 750 ref.

M. Abdur Rasheed Rashid for Petitioner.

Abdul Ghani for the State.

2004 Y L R 227

[Lahore]

Before Tanvir Bashir Ansari, J

SAKHI MUHAMMAD and others‑‑‑Petitioners

Versus

HAQ NAWAZ and others‑‑‑ Respondents

Civil Revision No.259‑D of 1996, decided on 19th August, 2003.

Islamic Law‑‑‑

‑‑‑‑ Inheritance‑‑‑Shia Law‑‑‑Paternal and maternal uncles and aunts of deceased and their descendants‑‑‑Order of succession‑‑­Maternal uncles and aunts living at time of death of propositus would be entitled to inherit estate of deceased as against descendants of paternal uncles and aunts‑‑­Paternal uncles and aunts would get 2/3rd share of estate, but in their absence, maternal uncles and aunts would take the whole of estate of deceased‑‑‑In absence of any uncle or aunt on both paternal and maternal sides, children of deceased uncles and aunts could inherit pro­portionate share of his/their predecessor.

Mohammedan Law by D.F. Mulla, Arts. 76, 90, 91 and 92 rel.

Hafiz‑ur‑Rehman Syed for Petitioners.

Maulvi Ijaz‑ul‑Haq for Respondents.

Date of hearing: 19th March, 2003.

2004 Y L R 239

[Lahore]

Before Abdul Shakoor Paracha, J

Mirza ALLAH DITTA alias MIRZA JAVED AKHTAR‑‑‑Petitioner

Versus

Mst. AMNA BIBI and another‑‑‑Respondents

Civil Revision No.883 of 1996, heard on 2nd May, 2003.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 5‑‑‑West Pakistan Rules under Muslim Family Laws Ordinance, 1961, Rr.10, 11, 12 & 13‑‑‑Registration of Nikah, not a requirement of law for a valid Nikah.

(b) Islamic Law‑‑‑

‑‑‑‑Marriage‑‑‑Proof‑‑‑Presence of two witnesses mandatory for proof of valid Nikah‑‑‑Where both man and woman admit factum of Nikah and solemnizing marriage with each other, then requirement of producing two witnesses not mandatory‑‑­Presumption of truth would attach to Nikah, which is acknowledged by both the spouses.

Arif Hussain and another v. The State PLD 1982 FSC 42 and Humaira Mahmood v. the State arid others PLD 1999 Lah. 494 rel.

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

‑‑‑‑Ss.115, 11 & O.XXIII, R.1‑‑‑Revision‑‑­Plea as to suit being hit by principles of res judicata and barred under O.XXIII, R.1, C. P. C.‑‑‑No issue was framed on such point nor same was raised during arguments in appeal‑‑‑Effect‑‑‑Petitioner could not raise such point for the first time in revision petition.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 78, 79 & 111‑‑‑Sale‑deed, execution of‑‑‑Burden of proof‑‑‑Statement on oath by plaintiff that sale‑deed was based on fraud and misrepresentation‑‑­Effect‑‑‑The moment such statement is made by plaintiff, onus would shift to defendant (purchaser) to prove that sale‑deed had been executed by vendor in accordance with law‑‑‑Result of non production of scribe or marginal witnesses of sale‑deed would be that defendant would be deemed to have failed to prove execution of sale‑deed by the vendor in his favour.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 59, 61, 78, 79, 81 & 84‑‑­Document, proof of‑‑‑Different modes highlighted.

There are different modes of proving the document according to Qanun­e‑Shahadat Order, which are as under:‑‑

By calling the person, who signed or wrote the document.

(ii) By calling a person in whose presence the document was signed or written.

(iii) By calling a handwriting expert.

(iv) By calling a person acquainted with handwriting of the person by whom the document is supposed to be signed or written.

(v) By comparing in Court the disputed signature or writing with some admitted signature or writing.

(vi) By proof of an admission by the person, who is alleged to have signed or written the document that he signed or wrote it.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Omission to implead legal heirs of pro forma‑respondent already on record before Appellate Court ‑‑‑Effect‑‑­Petitioners claimed to have acquired disputed property in lieu of dower from deceased pro forma‑respondent (her husband)‑‑‑Respondent claimed to be purchaser of property through registered sale‑deed executed by deceased pro forma respondent in his favour‑‑‑Both petitioner and respondent claimed to have stepped into shoes of deceased pro formas‑respondent‑‑‑Such omission would not be fatal to the case of petitioner.

Sardar Muhammad and 2 others v. Haider Zaman and 3 others PLD 1993 Pesh. 81 rel.

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

‑‑‑‑O. XLI, R. 1 & S.11‑‑‑Two separate decrees in two connected suits disposed of by one consolidated judgment‑‑‑Filing of one appeal against both such decrees‑‑­Effect‑‑‑Decree against which appeal was not filed; would not operate as res judicata.

Sardar Menhajuddin Ahmad and another v. Sudhir Kumar Sinha and others PLD 1959 Dacca 316; Manzoor Ahmad v. Additional District Judge‑III, Rahimyar Khan and another 1988 CLC 436; Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892; Siraj Din and others v Rajada 1989 SCMR 1780 and Government of Punjab through the Secretary, Communication and Works Department, Lahore and others v. Ashers Trading Construction Co. 2002 SCMR 1070 ref.

Abdullah v. Faqir Ullah and others 1981 SCMR 585 and Shukar Din and others v. Nazir Ahmad and others 1993 CLC 1367 rel.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Two separate decrees in two connected suits disposed of by one consolidated judgment‑‑‑Non Non‑filing of copy of decree passed in other suit alongwith revision petition would not make any difference‑‑‑Petitioner could be allowed to file same and delay in filing same could be condoned.

Sardar Menhajuddin Ahmad and another v. Sudhir Kumar Sinha and others PLD 1959 Dacca 316; Manzoor Ahmad v. Additional District Judge‑III, Rahimyar Khan and another 1988 CLC 436; Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892; Siraj Din and others v. Rajada 1989 SCMR 1780; Abdullah v. Faqir Ullah and others 1981 SCMR 585; Government of Punjab through the Secretary, Communication and Works Department, Lahore and others v. Ashers Trading Construction Co. 2002 SCMR 1070 and Shukar Din and others v. Nazir Ahmad and others 1993 CLC 1367 ref.

Sheikh Naveed Shaharyar with Zahid Hussain Khan for Petitioner.

M.A. Zafar for Respondents.

Ch. Muhammad Lehrasib Khan Gondal for Respondent (in Criminal Original).

Date of hearing: 2nd May, 2003.

2004 Y L R 255

[Lahore]

Before Raja Muhammad Sabir and Sh. Abdur Rashid, JJ

MUHAMMAD ANWAR ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1290 to 1293 of 2000, heard on 16th September, 2003.

Penal Code (XLV of 1860)---

---S.302(b)/34---Appreciation of evidence--­Motive incident narrated by the prosecution witnesses was more a source of suspicion against the complainant party rather than against the accused---Recoveries of weapons of offence, made in the case did not support the ocular version---Medical evidence was in conflict with prosecution story---Case of prosecution was replete with infirmities and discrepancies---No independent eye-witness of the occurrence was examined by the prosecution ---Eye­witnesses produced at the trial were related to the deceased and inimical to the accused whose presence at the scene of incident stood belied by the circumstances and facts of the case and their partial acceptance and belief against the accused and disbelief against the three co-accused without any supportive evidence was legally untenable---Accused were acquitted in circumstances.

Ch. M. Anwar Bhindar for Appellant.

Saif-ul-Malook for the Complainant.

Miss Nousheen Taskeen for the State.

Date of hearing: 16th September, 2003.

2004 Y L R 274

[Lahore]

Before Muhammad Akhtar Shabbir, J

KHALID ABBAS ---Petitioner

Versus

Hafiz MUHAMMAD FAROOQ and another---Respondents

Civil Revision No.672 of 1998, heard on 28th July, 2003.

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

----S. 30(a) --- Misconduct --- Elements treating or constituting misconduct on the part of arbitrators highlighted.

Elements treating or constituting misconduct on the part of arbitrators are:--

(a) Neglect of duties and responsibilities by arbitrators;

(b) something contrary to what Courts of justice expect from them before allowing finality to their .award;

(c) if arbitrator has refused to postpone a meeting for purpose of allowing a party to engage a counsel, when other party unexpectedly turns up with a counsel;

(d) if award is made without having heard all the evidence;

(e) if evidence of witnesses is recorded behind the back of a party;

(f) if a party has not been allowed reasonable opportunity of proving his case;

(g) if arbitrator has not brought to the notice of opposite-party a document received by him from his adversary or not given him an opportunity of meeting the inferences deducible from them;

(h) if irregularities in the proceedings are proved, which amount to improper hearing of the matter in dispute;

(i) if finding is perverse or unsupported by evidence before him;

(j) if arbitrator decides a disputed question .without going into evidence as in such a case he would be said to have decided blindly;

(k) if there is indication of gross negligence or recklessness on the face of record;

(l) if there is some mistake of fact, provided it is either admitted or at least clearly beyond reasonable doubt.

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

----Ss. 17 & 30---Award, setting aside of--­Agreement for construction of house--­Claim of respondent-contractor was that petitioner had paid him less than the work done by him---Petitioner's objection to award was that arbitrator had neither sent him notice nor taken measurement of constructed house---Trial Court made award Rule of Court, which was upheld by Appellate Court---Validity---Arbitrator as witness had stated that he had not issued notice to petitioner, but had met petitioner at his residence and given him information regarding dispute and that he had joined petitioner in arbitration proceedings--­Petitioner had not cross-examined arbitrator at length in respect of his objections---No evidence on record was available to show that arbitrator had conducted proceedings in absence of petitioner and had not provided him opportunity to rebut evidence produced by respondent---Arbitrator had submitted his report in detail after measurement of work done by respondent--- Recording of evidence in such a case was not vital---Taking measurement of petitioner's house in his absence could not be inferred---If petitioner was not satisfied with measurement of arbitrator, he could produce other evidence to rebut the same, but no such material had been placed on record---High Court dismissed revision petition.

Deep Narain Singh v. Mt. Dhaneshwari AIR 1960 Pat. 201 ref.

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

----S. 30---Civil Procedure Code (V of 1908), Second Sched.---Award, setting aside of---Evidence of parties not taken down in writing by arbitrator---Effect---No procedure was laid down for arbitrator in Sched. II of C. P. C. ---No bar in Arbitration Act, 1940 against relying on oral evidence nor same compel arbitrator to record on paper statement of witnesses or admissions of parties---Non-recording of any proceedings or non-holding of public enquiry by arbitrator would not be enough to vitiate award, unless his refusal to examine any evidence tendered by parties was proved---Failure of arbitrator to reduce evidence into writing was not an omission fatal to award and would not constitute misconduct on his part.

Kanshi Ram v. Harnam Das and others A I R 1940 Lah. 73 and Gul Hasan Shah v. Sardali Shah PLD 1960 (W.P.) Pesh.14 rel.

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

----Ss. 17 & 30---Power of Court while examining validity of award---Scope---Court would not act as Court of appeal nor could undertake reappraisal of evidence recorded by arbitrator in order to discover error or infirmity therein rendering award invalid---Such error or infirmity must appear on the face of award and should be discoverable by reading award itself.

Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108; Messrs World Circle v. State Cement Corporation of Pakistan 1997 CLC 212 and Pakistan Defence Housing Authority v. Meer Brothers 1992 CLC 1252 rel.

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

----S.30---Award, setting aside of--Law leans in favour of upholding award and not vitiating same.

Ashfaq Ali Qureshi v. Municipal Corporation Multan 1985 SCMR 597 and Abdul Rauf v. Muhammad Saeed Akhtar PLD 1985 Kar. 145 rel.

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

----S. 115---Concurrent findings of fact--­High Court would not interfere with such findings, unless established that Courts below had exercised jurisdiction so vested in them illegally or had failed to exercise the same legally.

Guldar Khan v. Isa Khan 1993 SCMR 2099; Nazir Ahmad v. Boota 1989 SCMR 450; Riaz v. Muhammad Saleem 1989 SCMR 1491 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 rel.

Hamid Shabbir Aazar for Petitioner.

Falak Sher Malik for Respondents.

Date of hearing: 28th July, 2003.

2004 Y L R 280

[Lahore]

Before M. Javed Buttar, J

MUHAMMAD RAFIQUE ANWAR ---Appellant

Versus

HABIB UR REHMAN---Respondent

Second Appeal from Order No. 131 of 1994, heard on 7th October, 2003.

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

----S. 13--Bona fide personal need of landlord- Choice of landlord---Giving another shop on rent during pendency of ejectment petition---Landlord was owner of multi-storeyed building having shops on ground-floor as well as on the first floor--­Dispute was with regard to possession of one shop on ground floor---No allegation was made that the landlord was occupying another shop in the market specially on the ground floor---Landlord had been asserting and agitating for the last more than 15 years that the disputed shop was better located and more suitable for his business---Validity---Disputed shop being situated at ground floor was better located than the shops situated on the other floors---Both the Courts below had failed to give due weight to the choice of landlord and the suitability of the shop in question to his need and had not given any lawful reasons for doubting the bona fide personal need of the landlord---Non-occupation of another shop by the landlord, situated on ground floor and vacated during the pendency of ejectment petition or immediately before the filing of the ejectment petition and giving of the same on rent to another tenant could not lead to the conclusion that the landlord was not in personal need of the disputed shop--­Landlord had to determine as to which shop was better suited to his needs---Landlord, who was not occupying any shop in the premises, had proved that the shop in occupation of tenant was required by him in good faith for running his business---Both toe Courts below had denied relief to the landlord merely on the basis of surmises and conjectures and contrary to the facts available on record---Orders passed by both the Courts below were set aside and tenant was evicted from the shop.

Qadir Bux Haji Nathu Khan & Co. v. Mst. Nawab Begum and another 1982 CLC 819; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070; Wilayat Shah v. District Judge, Kohat and 4 others 1997 CLC 1796; Muhammad Boota v. Haji Ghulam Mustafa and others 1991 MLD 2385; Sardar Khan v. Riaz Ahmad and others 1986 SCMR 1981; S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119; Muhammad Tayyub v. Syed Abdul Habib 2002 SCMR 1320 and Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185 ref.

Jehangir A. Jhoja for Appellant.

Khadim Hussain Bhatti for Respondent.

Date of hearing: 7th October, 2003.

2004 Y L R 288

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. MARRIYAM BIBI---Petitioner

Versus

KHAN MUHAMMAD through Legal Heirs and others---Respondent

Civil Revision- No. 2683-D of 1996, decided on 2nd October, 2003.

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

----Arts. 72, 117 & 120---Pardanashin lady---Execution of title document--­Transaction by Pardanashin and illiterate lady---Onus to prove---Where transaction is denied, it is for the beneficiary to prove that the lady had executed the same with her own free will under independent advice of her relations fully knowing the nature of transaction---Illiterate lady is deemed to be a Pardanashin lady, though she works without "Parda" in fields---If the lady denies execution of document and challenges the transaction on the basis of fraud and misrepresentation, the onus shifts on the other party, i.e. the beneficiary of the document---Other party has to establish that the document at the time of its execu­tion and registration was read over to the lady and she as a token of its correctness on the basis of independent advice and her intelligence, accepted and thumb-marked the same.

Muhammad v. Rehmon 1998 SCMR 1354 ref.

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

----S.42---Contract Act (IX of 1872), Ss. 215 & 216---Title over suit-land---Attorney, exchanging land without specific authority of the principal---Private advantage of attorney---Plaintiff, a Pardanashin and illiterate lady denied execution of power of attorney in favour of defendant authorizing him to exchange the land with that of the sons of the defendant---Both the Courts below concurrently dismissed the suit and appeal respectively---Validity---Such exchange of land created doubt that the attorney could have exercised the- right and power of the owner to make a mental decision for the purpose of making a transaction of exchange without the owner/plaintiff herself having taken a mental conscious decision of making the transaction of exchange with the son of the general attorney/defendant---Person who stands in a relation of trust or confidence to another, cannot be permitted, in pursuit of his private advantage, to place himself in a situation which gives him a bias against the due discharge of that trust or confidence--­Attorney is an agent of principal and cannot make any secret profit or benefit in exercise of his authority out of­ transaction ---Authority is always given to the agent to perform the duties and functions as prescribed/mentioned in the document of authority and if he has to exercise the authority for his own benefit, he has to seek permissions from the principal---The deed of attorney-ship, in the present case, did not mention the description of the property of the plaintiff the transaction of exchange in favour of the sons of the attorney nor there was any specific authority in favour of the general attorney---Both the Courts below had not examined the evidence and it was a case of misreading and non­ reading of evidence---Alienation of land made by the attorney in favour of his sons was not sustainable and judgments and decrees passed by both the Courts were set aside---Revision was allowed accordingly.

Malik Riaz Ahmad v. Mian Inayat Ullah 1992 SCMR 1488; Guldar Khan v. Isa Khan 1993 SCMR 2099; Nazir Ahmad v. Boota 1989 SCMR 450; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Riaz v. Muhammad Saleem 1989 SCMR 1491; Mst. Shumal Begum v. Mst. Gulzar Begum 1994 SCMR 818; Dost Muhammad v. M.B.R. 2001 MLD 2019 and Fida Muhammad's case PLD 1995 SC 341 ref.

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

----Ss.215 & 216---Power of attorney--­Authority given in instrument ---Scope--­Power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument, the authority in question may be found within the four corners of the instrument either in express terms or by necessary implications.

Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700 rel.

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

----S.118---Exchange of property --Proof -- One of the parties did not appear before Revenue Officer for transfer of her land in exchange in favour of the other Exchange was not proved in circumstances.

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

----Ss.215 & 216---Power of attorney--­Scope---Maxim: Suppressioveri, exprossio false---Applicability---No specific authority was given to attorney by the principal for exchange of property with that of the sons of the attorney---Such transfer of property on behalf of the principal was not backed by any legal authority---Transaction of exchange was "suppressioveri exprossio false" in circumstances.

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

----S.115---Revisional jurisdiction of High Court, exercise of---Concurrent findings of fact by the Courts below---Scope---Such findings are amenable to the revisional jurisdiction of High Court and the Court is competent to set at naught the findings of the Courts below.

Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700 ref.

Chaudhry Zafarullah for Petitioner.

Mubeen Ahmad Siddiqui for Respondent No.2.

Date of hearing: 17th September, 2003.

2004 Y L R 295

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDULLAH and 5 others---Petitioners

Versus

ABDUR REHMAN and 9 others---Respondents

Writ Petition No.583 of 1994, heard on 19th September, 2003.

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

----Art. 33---Admission by person referred to by party to suit ---Status---Value--­Procedure---Existence of three parties is contemplated under Art.33 of Qanun-e­-Shahadat, 1984; firstly the party who refers; secondly the party who is referred and thirdly the party to whom the reference is made---When one party refers another second party to a third party for information, the first party is presumed to undertake to adopt as his own the information furnished by the third party--­Matter referred to the third person is not in the nature of a submission to arbitration but rather as an aid to the settlement of the difference existing between the parties and to enable the parties themselves to effect settlement on the information---Party in such case is bound by the declaration of the persons referred to, in the same manner and to the same extent as if the declarations were made by the referring party himself--­Necessarily there must be an express reference for information in order to make the statement an admission under Art. 33 of Qanun-e-Shahadat, 1984---Such declarations by the third party are not evidence unless strictly within the subject-­matter they fall in relation to which the reference is made---Where parties to a proceedings agree to abide by a statement of a third person, it is a statement within the meaning of Art.33 of Qanun-e­-Shahadat, 1984.

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

----S.14---Qanun-e-Shahadat (10 of 1984), Art.33---Award not a statement under Art. 33 of Qanun-e-Shahadat, 1984---Parties applied to Court agreeing to refer their dispute to a named person as referee and case was to be decided as per the statement of the referee---Referee appeared in the Court but made no statement due to lack of his knowledge of facts of the case ---Effect--Referee was expected to make statement on his own knowledge or belief and not on the basis of inquiry made by him in a judicial manner---Award was not a statement under Art.33 of Qanun-e­-Shahadat, 1984.

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

----S.14--- Qanun-e-Shahadat (10 of 1984), Art. 33--- "Arbitrator" and "referee"---Distinction---Arbitrator is a person who decides a dispute after inquiry--­Determination of dispute by such a person is essentially made by following a judicial procedure keeping in view the principles of natural justice and law of the land---Such decision is known as award and can be made a rule of the Court after following the procedure provided in the Arbitration Act, 1940---Statement of referee on the other hand is not his finding rather it is a statement made before Court on the basis of knowledge or belief of the referee.

Sher Zaman Khan and another v. Noor Zaman Khan and another PLD 1977 Lah. 672 ref.

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

----Ss.4 & 14---Award beyond the scope of reference---Validity---Agreement to recognize an award beyond the scope of dispute mentioned in the reference is void and is not binding on the parties to the reference.

Parsram Gangandas and others v. Topandas Dholandas and others AIR 1928 Sindh 81 rel.

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

----Art.33---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Factual controversy---Dispute over possession--­Opinion of referee---Such opinion beyond the terms of reference---During pendency of the petition, both the parties agreed to settlement of the dispute in the light of the opinion of referee---Statement made by the referee was after his making an inquiry and not purely on the basis of his personal knowledge of facts---Plea raised by the petitioners was that such statement of the referee was not binding on them--­Validity---Referee entered upon inquiry, as authorized under the arbitration agreement thus he could not be termed as referee and such statement or decision was not binding on the parties---Referee had made the statement contrary to the dispute and did not give his finding or opinion with regard to the possession of the disputed property--­Reference to arbitration was confined to the subject-matter of the suit and any award on the matters not covered by the suit was void to that extent---Same would apply to any consequential decree that might be passed by the Court in terms of such award for the reason that the Court would not be seized of the matters which were not put in controversy in the suit itself--Petition was dismissed in circumstances.

Attiq Ullah v. Kafayat Ullah 1981 SCMR 162; Sindh Road Transport Corporation v. Major (Retd.) S.M. Zali Zaheer Khan 1991 SCMR 425; Nizam Din v. Niamat Bibi and 3 others 1985 CLC 98; Ata Muhammad v. Muhammad Raman 1989 MLD 4554; Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd. PLD 1968 Kar. 115; Mushtaq-ur-­Rehman and 4 others v. Muhammad Akbar and 5 others 1982 CLC 364; Mst. Akbari Begum v. Rehmat Hussain and others AIR 1933 All. 861 and Surti and others v. Baghwan Singh and another AIR 1934 Lah. 218 distinguished.

Kamal-ud-Din v. Muhammad Shafi and another 1997 CLC 1555 and Jumma Khan and others v. Mahmood Khan and others 1973 SCMR 289 ref.

Ch. Muhammad Abdul Saleem for Petitioners.

Ch. Muhammad Ashraf for Respondent.

Date of hearing: 19th September, 2003.

2004 Y L R 302

[Lahore]

Before Mansoor Ahmad, J

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and another‑‑ Appellants

Versus

BAQIR ALI SHAH‑‑‑Respondent

First Appeal from Order No. 98 of 1996, decided on 15th July, 2003.

Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss.2(iii), 7, 11 & 12‑‑‑Mussalman Waqf Validating Act (VI of 1913), S.3‑‑‑Petition against notification issued under S.7 of Punjab Waqf Properties Ordinance, 1979‑‑‑Waqaf‑alal‑Aulad‑‑‑Proof‑‑‑Petition claimed that area of four Kanals of land containing shrine of Hazrat Sakhi Sultan and graves of his family, for being used from time immemorial as graveyard of his family, had assumed character of Waqaf­alal‑Aulad‑‑‑ District Judge accepted the petition‑‑‑Validity‑‑‑Nature of such land as admitted by petitioner and his witnesses was Waqf land, which fell within definition of "Waqf property" as given in S.2(iii) of Ordinance, 1979, thus, only exclusion therefrom was the kind of Waqf described in S.3 of Mussalman Waqf Validating Act, 1913‑‑‑Use of such land from time immemorial as shrine and graveyard was recognized in Islam as religious, pious and charitable purposes‑‑‑Petitioner had not produced evidence to show that such land was a Waqf created by a person in favour of his family, children and descendants and ultimately for benefit of poor or other relevant charitable purposes as spelled out in S.3 of Mussalman Waqf Validating Act, 1913‑‑‑Such was not a case of Waqf‑alal-Aulad as such Waqf land was not meant to provide maintenance and support wholly or partially to successors of Hazrat Sakhi Sultan‑‑‑District Judge had not given any plausible reason to exclude such land from notification‑‑‑High Court accepted appeal and set aside impugned judgment, resultantly petition filed by petitioner was dismissed.

Sheikh Mumtaz Ahmad v. Chief Administrator of Auqaf, West Pakistan, Lahore PLD 1975 Lah. 1147 ref.

Sh. Iftikhar Ahmed for Appellants.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 4th July, 2003.

2004 Y L R 307

[Lahore]

Before Muhammad Zafar Yasin, J

Mst. SALMA BIBI alias PAPOO‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2515‑B of 2003, decided on 4th November, 2003.

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

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2)/11‑‑‑Bail‑‑‑Second bail application‑‑­Maintainability‑‑‑Earlier bail application having been dismissed as withdrawn for the time being, second bail application was maintainable.

Ali Hassan v. State 2001 SCMR 1047 rel.

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

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2)/11‑‑‑Bail, grant of‑‑‑Further enquiry‑‑‑Accused as well as her co­-accused had been throughout claiming that they had contracted marriage with each other, hence the charge of offence under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, prima facie, was not made out‑‑‑Benefit of doubt was to be given to the accused even at bail stage‑‑­Case of accused, thus, was one of further inquiry‑‑‑Accused was admitted to, bail in circumstances.

Ali Hassan v. State 2001 SCMR 1047 and PLD 1996 SC 173 ref.

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

‑‑‑‑Ss.497/498‑‑‑Bail‑‑‑Benefit of doubt‑‑­Principle‑‑‑Benefit of doubt is to go to the accused even at bail stage.

Mian Arshad Latif for Petitioner.

Tariq Zulfiqar Ahmed Ch. for the Complainant.

Anwar‑ul‑Haq for the State.

2004 Y L R 309

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMED YAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 806 and Criminal Revision No.922 of 2002, heard on 9th December, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Complainant and other two eye‑witnesses were closely related inter se and two deceased‑‑‑Complainant was real brother of one of deceased persons, one of prosecution witnesses was maternal uncle of one deceased and third witness was maternal uncle of the other deceased‑‑‑Residences of two prosecution witnesses were at a distance of 2 to 3‑1/2 miles away from place of occurrence‑‑‑Accused was not connected with motive of the occurrence‑‑­Accused alongwith three co‑accused was placed in Column No.2 of the challan‑‑‑Out of six accused persons, five were murdered by the complainant party before the trial of the case and trial of only one accused was held‑‑‑Complainant also died before commencement of the trial‑‑‑Investigating Officer had stated before the Trial Court that during investigation several persons appeared before him and stated that accused was innocent‑‑‑Accused was never arrested during the course of investigation as his arrest was put off by the Investigating agencies‑‑‑Record had shown that both deceased were of desperate character and they were involved in many criminal cases of heinous nature ‑‑‑F.I.R. was lodged after due deliberation and consultation‑‑‑No crime empty was recovered from the spot‑‑‑Opinion of Police though was not binding on the Court in murder cases, but in peculiar circumstances of the case, participation of accused in the present case was doubtful‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside granting him benefit of doubt by the High Court and he was ordered to be released.

Khizar Hayat Dhillon for Appellant.

Malik Abdul Nasir Jasra for the State.

Date of hearing: 9th December, 2003.

2004 Y L R 312

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

MUHAMMAD JAMEEL‑‑‑Petitioner

Versus

THE STATE‑‑Respondent

Criminal Appeals Nos.538 and 593 and Murder Reference No.267 of 1998, heard on 8th December, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 (b)/392/411/452/34‑‑‑Apprecia­tion of evidence‑‑‑Neither anybody was named in the F.I.R. nor description of any of the accused was stated‑‑‑Alleged extra­-judicial confession was jointly made by accused persons which was not admissible in evidence‑‑‑Conduct of prosecution witnesses before whom alleged extra­-judicial confession was made by the accused persons, was unnatural as after alleged confession by accused persons, said prosecution witnesses neither apprehended accused nor informed the police or complainant and police recorded statements of said prosecution witnesses with a delay of four days‑‑‑Such facts were enough to prove that said prosecution witnesses were cooked up witnesses‑‑‑Evidence of last worn was furnished by two witnesses and out of those two one was given up while conduct and the way of other witness in furnishing last seen evidence, was sufficient to discard his statement‑‑‑No weapon was recovered from the accused‑‑‑Chhurri was recovered on pointation of co‑accused who was awarded imprisonment for life and he had not filed appeal against his conviction and sentence‑‑‑One of the recovery witnesses was resident of other District‑‑-Accused, though had not produced any defence evidence, but prosecution had to stand on its own legs and not to take benefit of the case of defence‑‑‑Supplementary statement made by complainant, in facts and circumstances of case, had no evidentiary value‑‑‑Case was of circumstantial evidence and in such‑like cases where no ocular evidence was available connecting the accused with commission of offence alleged against him, it would not be safe to record conviction of accused particularly when any link in chain was missing‑‑‑Doubts having occurred in prosecution case, conviction and sentence recorded against accused by Trial Court were set aside granting him benefit of doubt‑‑‑Accused was acquitted of charge and was released forthwith.

1991 PCr.LJ 113 and Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 ref.

Rana Liaqat Ali for Appellant.

Ashfaq Ahmad Chaudhary for the State.

Muhammad Shan Gul for the Complainant.

Date of hearing: 8th December, 2003.

2004 Y L R 317

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUSAF‑‑‑Petitioner

Versus

AHMAD KHAN and 3 others‑‑‑Respondents

Civil Revision No. 354 of 1997, heard on 1st October, 2003.

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

‑‑‑‑S. 13‑‑‑Pre‑emption, right, exercise of ‑‑­Talb‑i‑Muwathibat‑‑‑ Proof‑‑‑ Non‑mentioning of name of informer, time and place of information regarding sale, in the plaint‑‑­Validity‑‑‑Such omission in pleadings was not fatal to the suit of pre‑emptor‑‑­Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored, whereby suit of pre‑emptor was decreed in his favour.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 rel.

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

‑‑‑‑S.13‑‑‑Pre‑emption right, exercise of ‑‑­Talb‑i‑Ishhad‑‑‑ Proof‑‑‑Non‑mentioning of date in the notice of Talb‑i‑Ishhad‑‑-­Execution of notice, its posting and its receipt by the addressees had been duly proved on the record‑‑‑Post mark was visible on the copies of Acknowledgement Due Receipts, numbers of the registered letters were also noted thereon and the signatures of the addressees were followed by the dates of receipts of the notice‑‑­Effect‑‑‑Notice of Talb‑i‑Ishhad was proved in circumstances.

Syed Qalb‑i‑Hassan for Petitioner.

Ch. M. Khan for Respondents.

Date of hearing: 1st October, 2003.

2004 Y L R 319

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SIDDIQUE and another‑‑‑Petitioners

Versus

Mst. BANO and 8 others‑‑‑Respondents

Civil Revision No. 3140 of 1996, heard on 22nd September, 2003.

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

‑‑‑‑S.42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.53 & 172(1)(2)(xviii)‑‑­Civil Procedure Code (V of 1908), S.115‑‑­Declaration of title‑‑‑Entries of Revenue Record‑‑-Factual controversy‑‑‑Jurisdiction of Civil Court‑‑‑Plaintiffs claimed to be owners of the suit‑land and alleged the entries of Revenue Record as a result of fraud‑‑‑Trial Court dismissed the suit while the Appellate Court allowed the appeal and the suit was decreed in favour of the plaintiffs‑‑‑Plea raised by the defendants was that the jurisdiction of Civil Courts was barred‑‑‑Validity‑‑‑Plaintiff had sought declaration of title to suit‑land as its exclusive owners with consequential relief of restraining the defendants from interfering with their possession‑‑­Jurisdiction of Civil Court was not barred and the provisions of S.172(1)(2) (xviii) of West Pakistan Land Revenue Act, 1967, were not attracted‑‑‑Jurisdiction involving factual controversy could be raised and decided by Civil Court and provision of S.53 of West Pakistan Land Revenue Act, 1967 was applicable‑‑‑Party aggrieved by wrong entry must seek remedy through civil suit‑‑‑Plaintiffs through oral and documentary evidence had proved their claim‑‑‑High Court, in exercise of its revisional jurisdiction, could not re­appraise the evidence unless glaring misreading and non‑reading was pointed out‑‑‑Judgment and decree passed by the Appellate Court was maintained.

Muhammad Din and 3 others v. Administrator‑General of Auqaf, Pakistan Islamabad and 2 others 1979 CLC 551; Dilmir and others v. Member, Board of Revenue, Punjab, Lahore and 9 others PLD 1991 Lah. 314; Sardar Khan v. Ghulam Hussain and others 2003 YLR 1788; Din Muhammad and 6 others v. Mehar Ali Khan and 2 others PLD 1978 Kar. 267 and Sheereen Khanum v. Member, Board of Revenue 2001 YLR 2387 ref.

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

‑‑‑‑S.172‑‑‑Bar of jurisdiction of Civil Court‑‑‑Scope‑‑‑Jurisdiction of Civil Court is excluded under S.172 of West Pakistan Land Revenue Act, 1967, from taking in hand the functions assigned to Revenue Courts and also from questioning the methodology adopted for discharge of such function‑‑‑Function of Revenue Court is to prepare the Revenue Record in the light of evidence with regard to one's title or interest‑‑‑Finality is attached to the orders of Civil Court determining civil rights of the parties.

Ch. Muhammad Tufail for Petitioners.

Ch. Muhammad Ali Sulehari for Respondents Nos. 2 to 6.

Date of hearing: 22nd September, 2003.

2004 Y L R 322

[Lahore]

Before Maulvi Anwarul Haq, J

NAZAR HUSSAIN---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, CHAKWAL and 4 others---Respondents

Writ Petition No.2497 of 1997, heard on 16th October, 2003.

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

----S.9---Suit for possession---Co-sharer in possession, if dispossessed had two remedies; one a suit for separate possession by partition; and the second a suit in accordance with terms of S.9 of Specific Relief Act, 1877, plaintiff, in the present case, being co-sharer, opted for the second remedy---Plaintiff had specifically stated that he was dispossessed two weeks before the institution of suit, but Trial Court did not decide issue framed in that respect--­Had the issue been decided in favour of plaintiff, he would have been entitled to a decree for possession---Trial Court dismissed suit simply deciding issue of limitation in a slip shod manner holding that suit filed by plaintiff was barred by time without discussing evidence on record---Judgment of Trial Court, in circumstances, was absolutely perverse as suit-land in possession of defendants was being cultivated by the plaintiff through a tenant.

Muhammad Shafi and others v. Collector and others NLR 1980 AC 243 ref.

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

----O. VI, R.17---Amendment of pleadings--­Amendments were to be allowed liberally and were to be refused only when the very nature of the suit was changed---Court was empowered at any stage of the proceedings to allow either party to alter or amend his pleadings in such a manner and on such terms as could be just---When an amendment was allowed to be made by the Court and it was incorporated in the pleadings with the leave of the Court, then same would relate back to the date of the suit as originally filed.

Mst. Barkat Bibi v. Khushi Muhammad and others 1994 SCMR 2240 ref.

Ch. Imtiaz Muhammad Khan for Petitioner.

Nemo for Respondents.

Date of hearing:16th October, 2003.

2004 Y L R 325

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHAFQAT---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, TALAGANG and 2 others---Respondents

Writ Petition No. 2874 of 2003, decided on 28th October, 2003.

West Pakistan Family Courts Rules, 1965---

-----R.6---Civil Procedure Code (V of 1908), S.21---Constitution of Pakistan (1973), Art.l99---Constitutional petition-­Objection to place of suing not raised before Family Court in written statement, but raised for the first time in Constitutional petition before High Court--­Validity---Such objection must be taken at the earliest and certainly before framing of issues---Such general rule contained in C. P. C., being primarily a rule of equity, would also apply to the Family Court---Said objection having not been raised before Family Court, High Court dismissed the Constitutional petition in limine.

Mirza Muhammad Ansar for Petitioner.

2004 Y L R 334

[Lahore]

Before Ch. Iftikhar Hussain, J

KHALID MEHMOOD and another---Appellants

versus

THE STATE ---Respondent

Criminal Appeal No.1379 of 2000, heard on 5th December, 2003.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence--­Complainant was father-in-law of the deceased and other prosecution witness was .Ws maternal grandson and son of deceased---Both complainant and prosecution witness, in circumstances, not only were inter se relatives, but were close relatives of the deceased and appeared to be inimical towards accused which 1i-as admitted by the prosecution witness in his cross-examination---Evidence of such witnesses was to be scrutinized cautiously--­Complainant and prosecution witness who resided at a distance of about 1-1 /2 K. M. from place of occurrence, could not offer any explanation for their presence at the place of occurrence at the relevant time--­Both complainant and prosecution witness were not only interested witnesses, but were chance witnesses and could not be termed as natural witnesses and their evidence was not reliable---Medical evidence was not in conformatory with the ocular evidence--­Prosecution witness had admitted that main door of the house wherefrom the recovery was effected was lying open and family of accused and absconding co-accused were living there---Gun allegedly recovered, in circumstances, was not in exclusive possession of the accused persons---Police officer had also admitted that recovery of the gun was effected from an iron box which was lying open and that room was not locked-- -Recovery of gun, in circumstances, was inconsequential and could not give any corroborative support to the ocular account---Report of Forensic Science Laboratory, also was of no effect--­Trial Court, in view of the improvement made by complainant in motive part of the story, was not justified in holding motive as of corroborative value to the ocular testimony---Prosecution having failed to bring home the guilt to accused beyond any shadow of doubt, their conviction and sentences recorded by the Trial Court, were set aside and they were acquitted of the charge giving them benefit of doubt.

Sadaqat Mehmood Butt and Malik Hamid Jamil Awan for Appellants.

Ishfaq Ahmad Chaudhary for the State.

Khalid Warn Khatana for the Complainant.

Date of hearing: 5th December, 2003.

2004 Y L R 342

[Lahore]

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

BOARD OF INTERMEDIATE ANTS SECONDARY EDUCATION, GUJRANWALA through Chairman and 2 others ---Appellants

versus

AYESHA MARYAM---Respondent

Intra-Court Appeal No. 1130 in Writ Petition No.4338 of 1998, decided on 30th September, 2003.

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

----Art.l99---Constitutional jurisdiction of High Court---Scope---High Court has ample jurisdiction to look into the subsequent events at the time of deciding the cases.

Nasir Jamal's case 1990 CLC 1069 and Amina Begum's case PLD 1978 SC 220 ref.

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

----S.3---Intra-Court Appeal---Judgment of the Single Judge was not in accordance with the dictum as laid down by the Supreme Court and. as such was not approved in Intra-Court Appeal.

Nawab Ali's case 2002 SCMR 1085; Salma Afroz's case PLD 1992 SC 263; Saima Zaid's case 1996 SCMR 676 and Tahir Saeed Qureshi's case 1996 SCMR 1872 ref.

Sheikh Shahid Waheed for Appellant.

Mian Waheed-ud-Din for Respondents.

2004 Y L R 348

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM HABIB and another---Petitioners

versus

Ch. MUHAMMAD SALEEM---Respondent

Second Appeal from Order No. 23 of 2003, heard on 23rd October, 2003.

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

----Ss.13(6) & 15---Striking off defence of tenant---Tenants, on the very last date which was fixed to deposit arrears of rent, appeared and filed application before Rent Controller that as father-in-law of one of the tenants had died on the previous date they had to leave for their village to participate in the funeral proceedings and due to that reason they were not able to deposit rent and prayed for extension of time for deposit of rent---Rent Controller turned down the request of tenants for extension of time and struck off their defence and passed ejectment order against them holding that default had already occurred---Validity---Rent Controller, even if was not willing to extend time to deposit rent as prayed for by the tenants, could at least order to deposit rent on very date which was fixed for deposit of rent and tenants were present on that date in the Court giving them benefit of said entire date---Order striking off defence of tenant passed by Rent Controller not only was against law, but also was perverse which could not sustain---Order striking off defence of tenants was set aside by the High Court.

Ibad-ur-Rehman Lodhi for Appellants.

Majib-ur-RehmanKiani for Respondent.

Date of hearing: 23rd October, 2003.

2004 Y L R 361

[Lahore]

Before Syed Zahid Hussain, J

Haji GHULAM RASOOL---Appellant

versus

Mian JAVED AHMED ZIA and another---Respondents

First Appeal from Order No.202 of 2003, heard on 30th October, 2003.

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

----O.XXXIX, Rr.1, 2 & S.94---Temporary injunction, grant of---Tentative assessment of the matter was to be made by the Court in order to dispose of the matter of temporary injunction---Court in such a case was to keep in view the facts and circumstances of each case---Court would pass the order considering the peculiarity of a particular matter, which would assume relevance and significance as to what type of order was to be passed and with what conditions--- While dealing with a matter concerning the grant of temporary injunction, the Court could .regulate the conduct and dealings of the parties in order to secure their interests---Court, in order to prevent the ends of justice from being defeated, had ample power to make such interlocutory order as could be considered just and proper--Provisions of S.94, C. P. C. had recognized such powers of the Court.

Khizar Hayat Khan v. Mussarat Rabbani PLD 1995. Lah. 438; Said Muhammad v. Abdul Rehman 1996 MLD 60; Dr. Akram Chaudhry v. Ch. Fazal Dad 1997 MLD 1821; Abrar Ahmad and others v. Munawwar Saeed 1998 MLD 601; Abrar Ahmad Khan Tareen v. Munawar Saeed 1994 SCMR 1764; Pandurang Ganpat Tanawade v. Ganpat Phairu Kadam and others 1997 PSC 1442; Friends Associates (Regd.) through Managing Partner, Lahore and 3 others v. Messrs Binn Bak Industries (Pvt.) Limited through Chief Executive, Faisalabad and 9 others PLD 2003 Lah. 17; Messrs Bin Bak Industries (Pvt.) Ltd. and another v. Friends Associates (Regd.) and others 2003 SCMR 238; Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan PLD 1956 (W.P.) Kar. 521; Anjum Rehmat and another v. (Rid.) Sqii/Ldr. Shaikh Ghulam Sadiq 1981 CLC 276; Sheikh Muhammad Rafiq Akhtar v. Sqn. /Ldr. (Rid.) Shaikh Ghulam Sadiq 1981 CLC 453; Mirza Shah Nawaz Agha v. Iqbal Aziz Khan and 3 others 1986 MLD 1914; Ferozuddin and another v. Tien Ying Lee and others 1987 MLD 2035; Shama Enterprises (Private) Ltd. v. Malik Ghulam Sarwar and others 1989 MLD 21; Fateh Muhammad v. Muhammad Hanif and another PLD 1990 Lah. 82; Balquees Zaman Khan and others v. Tahir Mahmood Butt 1991 CLC 1507; Wiqar Avais v. Raja Muhammad Shafi Janjua and 4 others 1992 CLC 8; Muhammad Nazir v. Yaqoob Khan and others 1994 CLC 12; Manzoor Ahmad and 6 others v. Hamid Shah Gilani and another 1997 SCMR 1443; Muhammad Banaras Khakan v. Miss Rubina Chaudhary and others 1997 CLC 997; Dr. Akram Chaudhry v. Ch. Fazal Dad 1997 MLD 1821 and Muhammad Aref Effendi v. Egypt Air 1980 SCMR 588 ref.

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

----S.12---Suit for specific performance of contract---Normal approach and ordinary rule followed by the Courts in suits for specific performance -was to direct the plaintiff to make deposit of the balance consideration in case an injunctive order was sought from the Court, reason for the same being that the plaintiff was supposed to be ready with settled price and willing to perform his part.

M. S. Baqir for Appellant.

Azmat Saeed for Respondents.

Dates of hearing: 24th, 27th and 30th October, 2003.

2004 Y L R 366

Before Muhammad Khalid Alvi, J

Messrs SHAMIM & CO. ‑‑‑Petitioner

versus

TEHSIL MUNICIPAL ADMINISTRATION, MULTAN CITY through Nazim and 2 others‑‑‑Respondents

Writ Petitions Nos. 1996, 1311, 1432 and 2233 of 2003, decided on 14th July, 2003.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Words "adequate remedy" occurring. in Art. 199 of the Constitution‑‑‑Concept‑‑‑Use of phrase "adequate remedy" in Art.199 is subjected to the objective satisfaction of the Court, requiring the High Court to examine each and every case in its own given circumstances to satisfy itself as to whether the remedy was "adequate" or not‑‑­Primarily interpretation of law and Constitution, was the duty of superior judiciary, therefore, in such circumstances, despite availability of alternate remedy, High Court could entertain a matter directly in Constitutional jurisdiction‑‑­Mere availability of an alternate remedy was not sufficient to refuse entertaining a Constitutional petition‑‑‑Case involving important questions of law expected to come before High Court for final resolution, could safely be said to be adequate and appropriate for invoking Constitutional jurisdiction of High Court under Art. 199 of the Constitution.

United Business Lines, S.I.E., Gujranwala and another v. Government of Punjab through Secretary, Local Government, Lahore and 5 others PLD 1997 Lah: 456 and Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah. 1155 ref.

(b) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Second Sched., Part III, Item 6 & Ss.2(xxxi), 54 & 142‑‑‑Notification No. 797 TOR, TCN‑TMAITCM, dated 4‑7‑2002‑‑­Constitution of Pakistan (1973), Art.,199‑‑­Constitutional petition‑‑‑Levy‑‑‑"Advertise­ment tax" levied by Tehsil Municipal Authority whether a "tax" or 'fee "‑‑‑Held, that Tehsil Municipal Authority could levy fee on advertisement, but before such levy could be imposed, Bye‑Laws necessary for regulating the system of advertisement in the city should be framed‑‑‑No Bye‑Laws had been framed by the Authority to regulate the system of affixing boards and advertisement in the city; providing the place where such board could be affixed; size of boards; the material to be used; language and pictures that could be displayed and prohibited zones etc. ‑‑‑Tehsil Municipal Authority had contracted for the recovery of the fee with an individual which was violative of S.54(2) (a), Punjab Local Government Ordinance, 2001‑‑‑Levy in question being not a tax but a fee, its rate must commensurate with the expenses incurred in regulating it, its collection and to some extent a special benefit being derived by the beneficiaries‑‑‑Notice for the recovery had been issued by the contractor under 5.142 of the Punjab Local Government Ordinance, 2001 which could only be issued by an officer authorized by the Nazim who was under his administrative control‑‑‑Contractor being not under the administrative control of Nazim, notices issued by contractor were without lawful authority‑‑‑High Court declared the notices issued by the contractor and notification issued by the Tehsil Municipal Administration to be illegal and without lawful authority in circumstances.

Mahboob Yar Khan and another v. Municipal Committee, Mian Channu and 2 others PLD 1975 Lah. 74,8; Sheikh Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388; Abdul Majeed and another v. Province of East Pakistan and others PLD 1960 Dacca 502; Haji Muhammad Yaqoob v. S. Khalid Shafqat and others PLD 1975 Kar.543; Municipal Corporation of Rangoon v. Pazundaung Bazar Co. Ltd. and others AIR 1930 Rang. 282; Corporation of Madras v. Spencer & Co. Ltd. AIR 1930 Mad. 55; Municipal Council, Kumbakonam v. Ralli Brothers AIR 1931 (sic) 497; Messrs Pakistan Telecommunication Company Ltd. through General Manager (South) v. Government of the Punjab through Secretary, Excise and Taxation, Lahore and another 2002 CLD 1010; Pakistan Flour Mills Association and another v. Government of Sindh and others 2003 SCMR 162; Sindh Glass Industries Limited v. Chief Controller of Import and Export, Islamabad and 2 others 1990 CLC 638; Messrs Daewoo Corporation v. Government of Punjab and others 1995 SCMR 977; Haji Ghulam Qadir and 47 others v. Municipal Committee; Lalamusa, District Gujrat through Administrator and 3 others 1998 CLC 1647; Rauf Trading Company Limited v. Faisalabad Municipal Corporation through Mayor and another 1990 CLC 1732; United Business Lines, S.I.E., Gujranwala and another v. Government of Punjab through Secretary, Local Government, Lahore and 5 others PLD 1997 Lah. 456; Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah. 1155; Nazir Ahmad v. King‑Emperor AIR 1936 PC 253; Ghulam Mustafa v. Chairman, Board of Intermediate and others 1998 CLC 432 and Muhammad Jaffar Tarrar v. District Magistrate, Gujranwala and another 1990 CLC 281 ref.

Malik Muhammad Rafiq Rajwana and Malik M. Tariq Rajwana for Petitioner.

Syed Kabir Mehmood Shah and Muhammad Khalid Ashraf Khan for Respondents.

Date of hearing: 27th June, 2003.

2004 Y L R 378

[Lahore]

Before Sh. Abdul Rashid, J

MUHAMMAD ASIF alias MUHAMMAD ILYAS---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.4931-B of 2003, decided on 25th September, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Penal Code (XLV of 1860), S.452--­Bail, grant of---Further inquiry---Accused was arrested after about 27 days from the alleged occurrence and remained on physical remand with the police, but no weapon of offence which accused was alleged to be carrying at the time of commission of offence had been recovered from him---Story in the F.I. R. that accused fell over the victim girl on the ground after breaking her loin string, removed his own Shalwar and attempted to commit Zina-bil-­Jabr with her in presence and view of two prosecution witnesses, who were real uncles of the victim, prima facie, appeared to be improbable particularly when there was a delay of 13 days in lodging the F.I.R. --­Case against accused appeared to be a matter of further inquiry---Even otherwise offence charged against accused did not fall within prohibitory clause of 5.497(2), Cr. P. C. ---Accused was, admitted to bail, in circumstances:

Malik Muhammad Imtiaz Mahl for Petitioner.

Zafar Abbas Khan for the State

2004 Y L R 380

[Lahore]

Before Ali Nawaz Chowhan, J

GHULAM ABBAS ABBASI---Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, ISLAMABAD and

others---Respondents

Writ Petition No.2508 of 2003, decided on 30th September, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 144 & 195(l)(a)---Penal Code (XLV of 1860), S.188---Constitution of Pakistan (1973), ,Art.199---Constitutional petition--­Cancellation of F.I.R.---Accused having been found firing in the air in violation of order passed by District Magistrate under S.144, Cr. P. C. , Assistant Sub-Inspector of Police lodged F.I.R. against accused--­Validity---Case filed against accused could not proceed before Magistrate concerned as Police ofcial/Assistant Sub-Inspector of Police being not Authority in terms of 5.195 (1) (a), Cr. P. C., was not authorized to register case against accused---F. I. R. lodged against accused being invalid and illegal, was cancelled, in circumstances.

Abdul Baqi and others v. The State 1998 PCr.LJ 87; Muhammad Ayub alias Ranjha v. District Magistrate/Deputy Commissioner, Multan and others 2001 PCr.LJ 1039 and Muhammad ldrees v. The State and others 2001 PCr.LJ 593 ref.

Raja Rizwan Abbasi for Petitioner.

Syed Sajjad Hussain Shah, Asstt. A.-G.

2004 Y L R 392

[Lahore]

Before Ch. Ijaz Ahmad, J

MUKHTAR AHMAD---Petitioner

versus

MUSHTAQ AHMAD and 2 others---Respondents

Civil Revision No.3247 of 1.996„ decided on 13th October, 2003.

(a) Counsel and client---

---- Appearance by advocate---Effect---Such appearance means appearance by party himself.

Bhagwan Prasad v. Madam Murari Lal and others AIR 1929 -All. 811 ref.

(b) Counsel and client---

---- Seeking of instructions by counsel before cross-examination---Scope---Wording of power-of-attorney, does not contain single word that the advocate has to secure instructions from his client before cross-examining a witness.

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

----O. III, Rr.3 & 4---Withdrawal of power ­of-attorney---Grievance of the petitioner in revision was that he had engaged new counsel due to that reason witnesses produced by the other party were not cross-­examined---Trial Court refused to recall the witnesses for, cross-examination for the reason that power-of-attorney in favour of the previous counsel had not been withdrawn---Validity---Original counsel could not cease to act on behalf of the party unless the power-of-attorney was cancelled by the party---Once an advocate was appointed by a party under O.III, R.4, C.P.C., the advocate owed a duty to the Court under O. III, R. 3, C. P. C. ---Power-of ­attorney enured till its termination with the permission of the Court or till the proceedings finally ended---Relationship of counsel and client could not come to an end except in compliance of provisions of law under 0.111, Rr.3 & 4, C.P.C.--­Vakalatnama (power-of-attorney) continued to be in force, till the mandatory provisions, for termination or withdrawal of the same, was invoked---Power-of-attorney executed by the petitioner in favour of the original counsel thus remained in field and thus the act of the original counsel was binding upon the petitioner---Judgment passed by the Trial Court was in accordance with law and there was no infirmity and irregularity in it.

Rehmat Bi v. Manzoor Ali Khan PLD 1975 Kar. 1066; Hussain Naseer v. Syed Shamim Yaqub 1989 CLC 2125; Alico Civil Engineers v. Syeda Mushtri Rafiq Ahmad 1980 CLC 466 and Mst. Qamar Sultana v. Abdul Hussain 1982 CLC 767 ref.

(d) Counsel and client---

---- Acts of counsel---Scope---If an advocate does not represent his client properly, the opposite party is not to be blamed for the consequences of his neglect---Any statement made in Court by advocate is binding on party and the party cannot resile from it on 'the score that the party was not present in the Court---All acts of advocate authorized to act on behalf of his client must necessarily be taken as act of his client and binding on the patty--If there is any negligence or misconduct on the part of advocate, the remedy available to the aggrieved party is to take action against the advocate under the law.

Khera v. Muhammad Sadiq PLD 1992 Lah. 169;.Ahmad Din v. Muhammad Ishaq 1992 CLC 816; Noor Muhammad v. Muhammad Shafi 1986 SCMR 127; Mst. Mahmooda Begum v. Major Malik Muhammad Ishaq 1984 SCMR 890; Mirza Muhammad Saeed v: Shahab Din and others PLD 1983 SC 385 and Pakistan through G.M. v. Messrs Q.M.R. Expert ,Consultants PLD 1990 SC 800 rel.

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

----O. III, R.4---Termination of power-of­-attorney--- Procedure--- Power-of-attorney signed by the party in favour of advocate is a contract between the client and his counsel---Duty of the party as well as the advocate is to revoke or terminate the power-of-attorney through notice.

Hussain Naseer v. Syed Shamim Yaqub 1989 CLC 2125 ref.

(f) Power-of-attorney---

----Power-of-attorney of an advocate deems to be in force until the same is either determined with the leave of the Court or counsel dies or the proceedings of the suit are concluded, as far as the client is concerned.

(g) Counsel and client---

---- Civil Procedure Code (V of 1908), O.XVII, R.3---Closing of evidence without cross-examination---Setting aside of such order---Noting of wrong date---Proof---Due to absence of counsel of defendant, the Trial Court recorded evidence of the witnesses of plaintiff and right of cross­examination was closed---Defendant sought re-examination of the witnesses on the ground that wrong date was noted by his counsel---Defendant relied on the diary of his counsel but neither the counsel was present before the Court nor the, clerk of the counsel---Trial Court dismissed the application for re-examination of the witnesses---Validity---Date mentioned in the diary of his counsel had no relevancy unless and until the defendant had proved the same with cogent reasons that he had noted the wrong date---Application for re­examination of the witnesses was rightly dismissed by . the Trial Court in circumstances.

Khalid Habib for Petitioner.

Mian Muhammad Ashraf for Respondent No.1.

2004 Y L R 397

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. BIBI SAID KHANNUM---Petitioner

versus

MUHAMMAD SARWAR KHAN---Respondent

Civil Revision No.211-D of 1997, heard on 23rd September, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. VI, R. 2---Courts ought not to go by the form, but substance of the pleadings and further to read evidence properly based on the same---Mere fact that the suit was in the form of specific performance, ought not to have caused any hurdle in the way of the Court to read the plaint properly.

Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978 ref.

Muhammad Hanif Satti for Petitioner.

Shah Rasool Hamidi for Respondent.

Date of hearing: 23rd September, 2003.

2004 Y L R 407

[Lahore]

Before Khawaja Muhammad Sharif, J

NAJAF SALEEM---Appellant

versus

Lady Dr. TASNEEM and others---Respondents

Criminal Appeal No. 122 of 2003, heard on 13th November, 2003.

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

----S. 302---Criminal Procedure Code (V of 1898), S.417(2)---Appeal against acquittal--Appreciation of evidence--­Complainant had not produced on record any documentary evidence either at the time of recording of preliminary evidence or at the trial about the cause, of death of the deceased---Cause of death of the deceased could not be ascertained or proved on oral testimony of the prosecution witnesses---No expert was examined by the complainant during the trial---Story of the complainant was that after the condition of the deceased lady deteriorated she was .taken to the hospital where the doctor observed that due to the negligence of the respondent the deceased had died, but the said doctor was neither produced at the trial nor even cited in the calendar of the witnesses of the complaint---Complainant himself had taken the deceased to the hospital and it was not known whether the treatment given by the doctors of the said hospital had led to the death of the deceased or she had died due to the treatment, given by the accused respondents--One of the lady doctors was on leave on the day when the deceased lady was operated upon, which had proved her innocence---Appeal filed by complainant against acquittal of accused was dismissed in circumstances.

Obstetrics and Perinatal Care for Developing Countries, p.1365 by Saad Rana ref.

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

----S. 417---Penal Code (XLV of 1860), S.302---Appeal against acquittal--­Principles-Double presumption of innocence having been attached to the order of acquittal passed by a Court of competent jurisdiction, High Court and Supreme Court would not interfere unless the same was arbitrary, capricious, fanciful and against the record.

Obstetrics and Perinatal Care for Developing Countries, p.1365 by Saad Rana ref.

Ch. Jameel Ahmad Sindhu for Appellant.

Mirza Abdullah Baig for the State.

Azhar Jameel Bhatti for Respondents Nos. l and 2.

Date of hearing: 13th November, 2003.

2004 Y L R 410

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. HAYAT BIBI---Petitioner

versus

THE STATE and 2 others---Respondents

Writ Petition No. 14761 of 2003, decided on 9th December, 2003.

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

----Ss. 10/11---Constitution of Pakistan (1973), Art.l99---Constitutional petition--­Quashing of FI.R.---Petitioner had denied that she was abducted by the accused nominated in the F I. R. lodged by father of the petitioner---Petitioner had categorically/stated that she was married to the accused by her parents with their free will and her consent was also there and that she had nor indulged in Zina with any one---Petitioner had also stated that she had given birth to a child and her parents due to some domestic dispute had turned hostile to her and her husband/accused and that her father had falsely and maliciously had got registered the case against accused and his relations---Additional Advocate-General had submitted that Nikah between petitioner and accused had been found to be correct and in accordance with law---When petitioner had refuted allegation of her abduction as contained in the FI.R. and pleaded existence of valid marriage between her and the accused, EI.R. lodged by complainant seemed to be based upon falsity and mala fides on the part of complainant and was liable to be quashed ---EI.R. was quashed accordingly.

Muhammad Bashir v. Muhammad Usman and others 2003 SCMR 1339; Mst. Naseer Khatoon v. S.H.O., Police Station City, Mianwali and another 1994 PCr.LJ 1111 and Mst. Gulnaz Bibi v. Mian Muhammad Younas, S.-I. and 2 others, 2003 MLD 1608 ref.

Imtiaz Hussain Khan Baloach for Petitioner.

Ch. Jamshed Hussain, Addl. A.-G. for Respondents Nos. l and 2.

Complainant (Respondent No.3) in person.

2004 Y L R 413

[Lahore]

Before Khawaja Muhammad Sharif, J

KHALIL AHMAD and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 164 and 165 of 2002, heard on 8th December, 2003.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence--­Both eye-witnesses were real brothers and sons of deceased and their presence at the spot was doubtful for the reason that their conduct was most unnatural---Had the said eye-witnesses been present at the spot they must have tried to apprehend the accused persons who were allegedly armed with only Danda and iron pinch---None of the eye-witnesses went to police station after the incident to lodge FI.R. and it was the police who came at the spot and recorded statement of complainant and other witnesses ---Post-mortem of the deceased was conducted on the next day of occurrence with delay of 28 hours without arty plausible explanation of said delay which had shown that after occurrence some lady had informed the police about the occurrence---Even otherwise duration given by Doctor between death and post­mortem examination did not fit in with the time of occurrence ---Danda and iron pinch allegedly recovered, were not stained with blood---F I. R. was recorded after due deliberation and consultation---Conviction and sentence awarded to accused by Trial Court were set aside granting benefit of doubt to them and then were ordered to be released forthwith by the High Court.

Anwar Ahmad Qureshi, Abdul Samir Khan and Abdul Hamid Rana for Appellants.

Salman Safdar for the State.

Date of hearing: 8th December 2003

2004 Y L R 419

[Lahore]

Before Muhammad Akhtar Shabbir, J

ZAHID MAHMOOD---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others---Respondents

Writ Petition No. 16135 of 2003, decided on 17th November, 2003.

Civil Procedure Code (V of 1908)---

------O. IX, R. 13 & O.XLIII, R.1--Constitution of Pakistan (1973), Art.199--­Constitutional petition---Ex parte order, setting aside of-- Appeal, competency of--­Ex parte order passed by Trial Court in favour of decree-holder, was set aside by executing Court on filing application by judgment-debtor against the ex parte order-- Appeal by decree-holder against order accepting application of judgment­-debtor for setting aside ex parte order otherwise being time-barred was dismissed by Appellate Court being not maintainable under O. XLIII, R.1, CRC ---Decree­holder filed Constitutional petition against the said order---Order accepting application of judgment-debtor filed under O.IX, R.13, C P. C. was passed by Trial Court in presence of counsel for parties and after hearing their arguments---Application under said order for setting aside ex parse decree, if rejected by the Court, was appealable order, but not the acceptance of application---Since impugned order was not appealable, it could not be treated as appellate order---Decree-holder could neither point out any illegality or material irregularity in exercise of jurisdiction by Court below nor he could establish that impugned order was void, without jurisdiction or perverse---Constitutional petition against said order was dismissed accordingly.

WAPDA through Chairman, Lahore v. Muhammad Sanaullah Khan and another 2003 CLC 737; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others PLD 1999 Kar. 257 and Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 ref.

Ch. Akbar Ali Shah for Petitioner

2004 Y L R 421

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. NAZAKAT ALI and another---Petitioners

versus

MANZOOR HUSSAIN MALIK and 10 others---Respondents

Writ Petition No.1817 of 2003, decided on 13rd July, 2003.

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

----Rr. 80(c), 81 & 82---Declaring a person other than returned candidate as elected—Essential considerations---Election petitioner could be declared elected only if it was alleged and proved that disqualification attributed to returned candidate was so notorious that entire electorate was fully aware of the same--­Only upon establishment of such fact, votes cast by majority could be said to be thrown away votes.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 fol.

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

----S. 16---Punjab Local Government Elections Rules, 2000, Rr. 70 & 80(b)--­Constitution of Pakistan (1973), Art.l99--­Constitutional petition-- -Joint candidates for election of Nazim and Naih Nazim declared as returned candidates---Petitioner challenged only election of Nazim, which was set aside by Election Tribunal--­Contention of petitioner was that election of Naib Nazim too was liable to be set aside, notwithstanding the fact that no allegation was made against him in election petition--­Effect---Election of Naib Nazim would not be set aside only upon finding that Nazim suffered from disqualification alleged and proved---High Court dismissed Constitu­tional petition in limine.

Ch. Maqbool Ahmad and others v. Malik Falak Sher Farooq and others PLD, 2003 Lah. 138 rel.

Syed M. - Zafar Ullah Salari for Petitioners.

2004 Y L R 423

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ANWAR ---Petitioner

versus

MUHAMMAD RAMZAN---Respondent

Civil Revisions Nos. 1959 and 1960 of 1999, heard on 24th June, 2003.

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

----S. 42---Mutation proceedings---Summary in nature meant for fiscal purposes, by no means a judicial proceedings determining right and title in property.

Nirman Singh and others' case 53 IA 220 rel.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 49---Entrieslfaets/transactions em­bodied in mutation---Evidentiary value and burden of proof---Entries in mutation are admissible in evidence under Art.49 of Qanun-e-Shahadat, 1984---Party relying upon such entries has to prove them in accordance with principles applicable to prove admissions---Rebuttable presumption in favour of party in whose favour mutation was effected---Onus to prove transaction embodied in mutation is essentially upon beneficiary of mutation and not on a party challenging the correctness thereof---Mere mutation does not create or extinguish any right, unless transaction/facts on the basis of which same has been sanctioned, if denied, are independently proved to have existed.

Nagheshar Bakhsh Singh's case AIR 1920 PC 46; G.N. Gabai's case AIR 1930 PC 93; Gurunathar's case AIR 1948 PC 210;. Muhammad and others v. Sardal PLD 1965 Lah. 472; Hakim Khan's case 1992 SCMR 1832; Nabi Sarwar's case PLD 1995 Pesh.27; Abdul dalil's case PLD 1964 Pesh. 159;'Ghulam Muhammad's case 1992 MLD 1335; M. Malik v. Mst. Razia PLD 1988 Lah. 45 and Ali Muhammad's case 1984 SCMR 94 rel.

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

----S. 54---Sale---Proof---Sale not complete, where payment of price to owner not proved.

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

----S-42---Transfer of Property Act (IV of 1882), S.54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Sale through mutation---Cross suits---Plaintiff claimed to have purchased suit-land from the deceased vendor, whereas defendant (heir of vendor) in his suit sought cancellation of mutation to have been secured by fraud and without consideration---Suit of defendant was decreed, while that of plaintiff was dismissed by Trial Court and Appellate Court---Validity---Onus to prove transaction embodied in mutation was essentially upon beneficiary of mutation--­ Burden of proof would lie on party in whose favour such entry was made but not on the party challenging correctness thereof--­ Mere mutation would not create or extinguish any right, unless transaction/ facts on the basis of which same has been sanctioned, if denied, were independently proved to have existed---None of the plaintiff's witnesses had stated a word qua payment of consideration to deceased vendor, while one witness deposing about sanctioning of mutation for certain consideration had not stated that such consideration had passed on to deceased vendor in his presence---Plaintiff had failed to prove payment of price to deceased vendor with cogent evidence---High Court dismissed revision petition.

Abdul Ahad and others v. Roshan Din and others PLD 1979 SC 890; The State v. Ali Ahmad PLD 1977 Rev. 25; Arbab Jamshed Ahmad v. Ghazan Khan and others 1995 CLC 695; Muhammad Rafi and others v.. Additional Commissioner Revenue, Sargodha and others _1981 SCMR 1181; Ashfaq Khalid and others v. Muhammad Hanif 1988 SCMR 74; Muhammad Subhan and others v. Mst. Bilqees Begum through Legal Heirs PLD 1994 Kar. 106; Tooti Gul and others v. Irfanuddin 1996 SCMR 1386; Barkat Ali v. Mst. Barkat Bibi and another 1991 MLD 2707; Muhammad Yaqub v. Feroze Khan 2003 SCMR 41 ref.

Tooti Gul and others v. Irfanuddin 1996 SCMR 1386; Nabi Sarwar's case PLD 1995 Pesh. 27; Abdul Jalil's case PLD 1964 Pesh. 159; Ghulam Muhammad's case 1992 MLD 1335; M. Malik v. Mst. Razia PLD 1988 Lah. 45; Ali Muhammad's case 1984 SCMR 94; Muhammad Shafi v. Allah Dad Khan PLD 1986 SC 519; Arshad Ameen's case 1993 SCMR 216; Roazi Khan's case 1997 SCMR 1849 and Muhammad Qasim's case PLD 2001 Lah.9 rel.

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

----Art. 2(c)---Evidence---Party has to succeed on the basis of evidence produced by him and cannot take benefit of weaknesses in evidence of opposite party.

Mian Iqbal Mahmood Banday v Muhammad Sadiq PLD 1995 SC 351 rel.

S.M. Masud for Petitioner.

A.R. Shaukat and Mehdi Khan Chohan for Respondent.

Date of hearing: 24th June, 2003.

2004 Y L R 432

[Lahore]

Before Muhammad Akhtar Shabbir, J

IBRAR HUSSAIN ---Petitioner

versus

KHALID HUSSAIN and 3 others---Respondents

Civil Revision No.67 of 2003, heard on 18th September, 2003.

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

----S. 118---Transfer of exchange---. Essential character---Essential character of a transaction of exchange, was a mutual transfer of ownership of property by two persons---Where there was a transfer of ownership by one of the parties only and not by the other, the transaction was not an exchange as there was no mutual transfer of ownership.

Mst. Miraj Bibi v. Mst. Azim Khatoon and others 1997 SCMR 1892 and Tahir Hussain's case PLD 19'78 Kar.182 ref.

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

----S. 54---Sale, essential elements of---Sale as envisaged under S.54 of Transfer of Property Act, 1882, was a transfer of ownership in exchange for a price paid or promised or part paid or part promised and was complete on execution of the sale­deed---Essential elements of sale were; (i) the parties; (ii) the subject-matter; (iii) the transfer of or conveyance; and (iv) price and consideration---If any of said elements was missing, it would not be a transaction of sale---For a transaction to be a sale it was necessary that price in cash must have been paid for things sold and there must be ownership in a thing on one side and cash price for it on the other.

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

----S.6---Suit for pre-emption ---Main­tainability---Mutation in respect of suit property, whether was "sale " or "exchange "---Determination---Plaintiff had claimed that transaction in respect of suit land was sale, whereas claim of defendant vas that it was an exchange---Onus was on plaintiff to prove that transaction was sale, but he could not establish the circumstances proving the transaction as a "sale"--­Plaintiff had asserted that amount was paid to vendor by vendee, but he could not produce any eye-witness to prove his assertion---Entries in Revenue Record had fully proved that transaction was "exchange "---Concurrent findings of two Courts below that mutation in respect of transfer of suit property was 'an "exchange ", could not be interfered with by High Court in exercise of its revisional jurisdiction when plaintiff could not point out any illegality, misreading or non-­reading of evidence or any jurisdictional defect in concurrent judgment and decree of Courts below.

Ahmad Yar and another v. Muhammad Aslam 1981 CLC 527; Ali Muhammad v. Malik Sanwal and others PLD 1961 (W.P.) Pesh. 62; Khan Muhammad and another v: Mir Zaman PLD 1986 Pesh. 109; Gulzar Khan v: Isa Khan 1993 SCMR 2099; Nazir Ahmad v. Boota 1989 SCMR 450; Riaz v. Muhammad Saleem 1989 SCMR 1491; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Syed Nazar Hussain Shah and another v. Shah Muhammad and 3 others 1998 SCMR 2755 ref.

Mehdi Khan Chouhan for Petitioner.

Ch. Muhammad Abdus Salain for Respondents:

Date of hearing: 18th September, 2003.

2004 Y L R 437

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD YOUSAF and another---Petitioners

versus

CIVIL JUDGE, SARGODHA and 2 others---Respondents

Writ Petition No.4272 of 2002, decided on 15th October, 2003.

(a) Court---

----Act of Court shall not prejudice any party.

Ladha Khan and others v. Mst. Bhiranwan 2001 SCMR 533 ref.

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

---Ss. 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pre­ emption suit ---Zar-e-Soem (1 /3rd of sale price) ---Determination---Pre-emptor, on the direction of Trial Court, had deposited a sum of Rs. 200, 000 as 1 /3rd of the sale price---Contention of vendee was that the sale price was not properly determined and less amount was deposited by the pre emptor ---Validity---If sale price appeared to be inflated, the Trial Court, in such a case, could competently require under S.24 of Punjab Pre-emption Act, 1991, deposit of 1 /3rd of the probable value of the suit property---Trial Court had not specified the amount and had considered Rs. 2, 00,000 to be proper compliance of its order---Trial Court had rightly declined to reject the plaint as actual sale price was still to be determined after recording evidence of the parties---Orders passed by both the Courts below not suffering from any illegality or infirmity so as to warranting interference by High Court in Constitu­tional jurisdiction, petition was dismissed.

Ch: Muhammad Abdus Saleem for Petitioners.

Sh. Naveed Sheharyar for Respondent No.3.

2004 Y L R 440

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD JAMEEL --- Petitioner

versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE

and others---Respondents

Writ Petition No.897 of 2003, decided on 29th September, 2003.

West Pakistan Land Revenue Rules, 1968---

-----. 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­ Lumberdar, appointment of---Petitioner was a candidate for- the appointment of Lumberdar---Revenue Authorities appointed the respondent as Lumberdar---Plea raised by the petitioner was that he was a member of majority community and was a better candidate than the respondent---Validity-- Choice of Revenue Authorities for the appointment of Lumberdar should not be ordinarily interfered with unless there was very serious irregularity, injustice or perverseness in order of Revenue Authorities---Where order of Revenue Authorities was reversed on extraneous considerations/factors same was liable to be set aside---Revenue Officer had not violated the rules relating to the appointment of Lumberdar and such choice had been confirmed up to the Board of Revenue, therefore, the same could not be challenged in the Constitutional jurisdiction--­ Petitioner failed to point out any illegality or violation of any Rule for the appointment of Lumberdar---Orders passed by Revenue Authorities were unexceptionable and called for no interference---Constitutional petition was dismissed in circumstances.

Shahbaz Khan v. Muhammad Umar and another 1985 MLD 366 rel.

Ch. Ghulam Qadir for Petitioner.

2004 Y L R 442

[Lahore]

Before Ijaz Ahmad Chaudhry and Ch. Iftikhar Hussain, JJ

MUHAMMAD QAYYUM TAHIR and 3 others---Appellants

versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIA UNIVERSITY, MULTAN and

3 others---Respondents

Intra-Court Appeal No.200 of 2002 in Writ Petition No.1018 of 2001, decided on 3rd July, 2003.

Educational institution---

---- Failure of candidate in LL.B., Part I, First Annual Examination---Candidates who were students of LL.B. three years course appeared in LL.B., Part I, First Annual Examination and provisionally admitted in LL.B., Part II Class, but when result was declared they all failed in LL.B., Part I, First Annual Examination and their names were dropped from the roll of college through notification---Candidates submitted their admission forms for taking part in LL.B., Part I, Second Annual Examination from the college as late college students--­Candidates appeared in said examination and were declared successful in the same--­Candidates submitted their admission forms for appearance in Part II, First Annual Examination, but their candidature was objected to on the ground that they had not completed one academic year between passing of LL.B., Part I and Part II, First Annual Examination---Candidates had contended that LL.B. Part I, Second Annual Examination which they had passed, was integral part of Part I of First Annual Examination of that "year and as they had passed latter one (Second Annual Examination), it would be deemed that they had completed their one academic year before entry/appearance in Part II, First Annual Examination and refusal of Authorities to them from appearing in Part II, First Annual Examination was against the relevant rules--- Validity--­University Regulation S(ii) had provided that LL.B., Part I students who appeared in First Annual Examination, would be permitted to join LL. B., Part II, provisionally at the time of regular admission, but in case they failed to pass in Part I, First Annual Examination, .they would lose their right of admission and would not be allowed to join the college after declaration of result of First Annual Examination---`Due to failure of candidates' in Part I, First Annual Examination, their names were rightly dropped from the college as said act was perfectly in accordance with requirement of the University Regln.5(ii)---Such action was not at all beyond that or any other rule governing the matter---Contention of candidates that Part I, Second Annual Examination was integral part of Part I, First Annual Examination, was repelled.

Mian Ahmad Mehmood for Appellants.

Malik M. Tariq Rajwana with Rashid Ahmad Khan, Admn. Officer, Bahauddin Zakaria University, Multan for Respondents Nos. l and 2.

Dr. Maqbool Ahmad Khan, Chairman, Mohammadan Law College, Multan for Respondent No.4.

Date of hearing: 3rd July, 2003.

2004 Y L R 449

[Lahore]

Before Muhammad Akhtar Shabbir, J

DAULAT ALI ---Petitioner

versus

MEMBER, BOARD OF REVENUE (COLONIES), LAHORE

and 2 others---Respondents

Writ Petition No.2922 of 1976, heard on 21st October, 2003.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 10 &, 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Revisional jurisdiction of Additional Commissioner (Consolidation) ---Scope--- Respondent, after confirmation of Consolidation Scheme in the village concerned filed application before Additional Commissioner (Consolidation) alleging that he had been given land less than his entitlement and Additional Commissioner treating said application its revision, in his suo motu revisional jurisdiction, accepted the same and withdrew the excess land from Wanda of the petitioner---Revision petition filed by petitioner under S.13 of West. Pakistan Consolidation of Holdings Ordinance, 1960 having been dismissed by the Member, Board of Revenue, petitioner had filed Constitutional petition---Petitioner alleged that he had been condemned unheard as order in revision was passed by the Additional Commissioner in his absence without providing him opportunity of hearing and that Additional Commissioner was not competent to convert application of respondent into a revision---Validity--­ Additional Commissioner before exercising his suo motu revisional jurisdiction, issued notice to petitioner, but he refused to accept the service thereof; thereafter a proclamation was issued in the village, but petitioner on his own accord did not turn up---Additional Commissioner having met requirements of law by issuing notice to petitioner, it could not be said that petitioner was condemned unheard ---Suo motu exercise of revisional jurisdiction under S.13 of West Pakistan. Consolidation of Holdings Ordinance, 1960 was permissible and there was no need of any regular formal revision application by any interested party---Said power really vested in Additional Commissioner--- Contention that Commissioner was not competent to convert application of respondent into suo motu revisional jurisdiction, was repelled--­Objection of jurisdiction was neither raised by petitioner before Member, Board of Revenue nor it was raised in memo. of Constitutional petition---Plea/objection which was not raised before lower forum could not be raised before the High Court ,for the first time during hearing of Constitutional petition---Order having been passed by competent Consolidation Authorities, taking into consideration the facts of the case, High Court in Constitutional jurisdiction would not sit in judgment against the same---Question of fact being involved in the case requiring recording of evidence and appreciation of record, High Court in exercise of its Constitutional jurisdiction would not interfere, especially when petitioner was unable to point out any illegality or jurisdictional . defect in impugned orders of Authorities below.

Ch. Nasir Ahmad v. Haji Muhammad Ismail 1979 SCMR 262; Munawar Hussain v. The State 2003 SCMR 1658; Khairati and 4 others v. Aleem-ud­-Din and. another PLD 1973 $C 295; Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68; Mst. Neelam Nawaa v. The State PLD 1991 SC 640; Messrs Mairaj. Sons and others v: United Bank Ltd. and others 1985 SCMR 987; Muhammad Ahmad v. Mst. Aziz Begum 1985 SCMR 19.62; Mst. Sardaro .and others v. Wt., Nazran Begum and others PLD 1985 SC 274; Muhammad Idrees v: Mst. Safia Begun and others 1986 SCMR 795; Mad Ajab. and others v. Awal Badshah 1984. SCMR 440; Malik Khadim Hussain v. Ch. Muhammad Siddique and another 1970 SCMR 293; Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary and others 1993 SCMR 618; Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918 and Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 ref.

Muhammad Ashraf Wahla for the L.Rs. of Petitioner.

M.A. Zafar for the L.Rs. of Respondent No.3.

Date of hearing: 21st October, 2003.

2004 Y L R 454

[Lahore]

Before Ch. Ijaz Ahmad and Farrukh Latif, JJ

Dr. MUHAMMAD RASHID KHAN---Appellant

Versus

SECRETARY HEALTH, CIVIL SECRETARIAT, LAHORE and 7 others---Respondents

Intra-Court Appeal No.65 of 2003 in Writ Petition No.3052 of 2002, decided on 29th July, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Law Reforms Ordinance (XII of .1972), S.3---Constitutional petition--­Intra-Court appeal---Appellant at the time of filing Constitutional petition had concealed material facts and secured order from the High Court without impleading one respondent who was necessary party and without challenging the vires of appointment order of said respondent--­Constitutional jurisdiction was discre­tionary in nature and one who sought equity must come to the Court with clean hands, but appellant, in the present case, did not approach High Court with clean hands as he had suppressed material facts from the Court---High Court, under its Constitu­tional jurisdiction, in circumstances, was justified in not exercising discretion in favour of the appellant and Constitutional petition by him was rightly dismissed---In absence of any infirmity or illegality in the judgment of High Court, said judgment could not be interfered with in Intra-Court Appeal.

Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196; Abdul Rashid v. Pakistan and others 1969 SCMR 141; Nasir Jamal v. Zubedia Begum 1990 CLC 1069; Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 and Dr. Habibullah's case PLD 1973 -SC 144 ref.

Mian Ahmad Mahmood for Appellant.

Muhammad Jehangir, A.A.-G. for Respondents.

2004 Y L R 461

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. FARZANA PARVEEN---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondents

Writ Petitions Nos.2287 and 2288 of 1999, heard on 30th June, 2003.

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

----Ss. 2 (c) (i), 13 (2) (i) (3) (a) (i)---Ejectment of tenant on grounds of default in payment of rent and bona fide personal need of landlord---Relationship of landlord and tenant---Proof---Tenant denied relationship of landlord and tenant and had claimed that original owner of house in question had mortgaged the house in favour of his mother with a condition that in case the house was not redeemed by owner/ mortgagor within two years, mother of tenant mortgagee would become owner of the house---Landlord filed suit against legal representatives of deceased original tenant of house in question which finally was decreed in favour of landlord---Application filed by tenant under S.12(2), C. P. C. alleging that decree passed in favour of landlord was based on fraud was. finally dismissed by Courts holding that no fraud or misrepresentation was committed as alleged by tenant---Appellate Court, in circumstances, rightly allowed ejectment application filed by landlord against tenant.

Firdus Khan v. Seyid Azam Shah. and 14 others PLD 1970 (W.P.) Pesh. 141 ref.

Ajmal Kamal Mirza for Petitioner.

Syed Qalab-i-Hassan for Respondents.

Date of hearing: 30th June, 2003.

2004 Y L R 464

[Lahore]

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

GOVERNMENT OF THE PUNJAB through Secretary and another---Appellants

Versus

Messrs EMPIRE CINEMA McLEOD ROAD, LAHORE through Manager and another---Respondents

Intra-Court Appeal No.781 of 2002 in Writ Petition No.9735 of 2002, decided on 7th October, 2003.

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

----S. 5---Condonation of delay---Condition precedent---Party seeking condonation of delay has to explain each day's delay, which is condition precedent.

Ch. Muhammad Sharif's case 1975 SCMR 259; Mian Abdur Rahim Sethi's case 2000 SCMR 1197; Federation of Pakistan v. Jamal ud Din 1996 SCMR 727 and Commissioner of Income-tax v. Pir Ahmad Khan 1981 SCMR 37 fol.

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

----S. 5---Condonation of delay claimed by Government---Scope---Government could not claim to be treated in any manner differently from ordinary litigant for both were equal before the Courts.

Federation of Pakistan v. Jamal ud Din 1996 SCMR. 727; Commissioner of Income-tax v. Pir Ahmad Khan 1981 SCMR 37 and Province of East Pakistan v. Abdul . Hameed Darji and others 1970 SCMR 558 fol.

Muhammad Hanif Khatana, Addl. A.-G. for Appellants.

Ahmad Sabtain Fazli for Respondents.

2004 Y L R 469

[Lahore]

Before Farrukh Latif, J

KHURSHID AHMAD---Petitioner

Versus

BASHIR AHMAD and others---Respondents

Writ Petition No.584 of 2000, decided on 9th September, 2003.

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

----O. VI, R.17. & S. 115---Constitution of Pakistan (1973), Art.199---Constitutional petition---Amendment of plaint--­Application for amendment of plaint was accepted by Trial Court, but on filing revision against order of Trial Court, said order was set aside by the Appellate Court on solitary ground that such amendment was allowed by Trial Court at belated stage---Such fact was hardly a reasonable ground for setting aside order of Trial Court in revision because where an amendment was necessary to resolve the real controversy, it could be allowed at any stage including appellate stage--­Jurisdiction under O. VI, R.17; C. P. C, was discretionary and an improper exercise of discretion could be corrected in appeal if it was contrary to legal principle governing exercise of such discretion, but it was not open to interference in revision--­Interference of Appellate Court by way of revision with decision regarding a matter which was within the discretion of subordinate Court, in circumstances was not warranted---Constitutional petition, though not as a rule could not be maintained against revisional order High Court, however, in exercise of its Constitutional jurisdiction could interfere where order passed by subordinate Court suffered from jurisdictional defect or violated any provision of law or was in excess or abuse of jurisdiction---Order of Appellate Court was declared by High Court to have been passed without lawful authority and of no legal effect.

Mst. Ziadat v. Shahadat and others 1989 SCMR 1392; Noor Muhammad v. Sarwar Khan and 2 others 1985 SCMR 131; Dilshad v. ADJ, Multan and others 1986 SCMR 1396; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and PLD 2001 SC 149 ref.

Muhammad Naveed Hashmi for Petitioner.

Muhammad Tahir Ijaz Joya for Respondents Nos. 1 and 2.

Malik Muhammad Sharif for Respondents Nos.4 and 5.

Date of hearing: 9th September, 2003.

2004 Y L R 471

[Lahore]

Before Ch. Ijaz Ahmad, J

Sardar MUHAMMAD ASHIQ DOGAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and another---Respondents

Writ Petition No. 14626 of 2003,. decided on 20th October, 2003.

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

----Arts. 189 & 190---Judgment of Supreme Court is binding 'on each and every organ of the State.

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

----Art.2A---Natural justice, principles of --­Scope---Principles of natural justice are in 'accordance with injunctions of Islam--­ Under Art.2A of the Constitution, it is the duty and obligation of Competent Authority to decide representation of agencies after providing proper hearing to all the concerned.

Zakir Ahmad v. University of Dacca PLD 1965 SC 90; Pakistan Chrome Mines Ltd. v. Inquiry Officer 1983 SCMR 1208; Pakistan and others v. Public-at-­Large and others PLD 1987 SC 304; Mst. Badshah Begum v. The Additional Commissioner 2003 SCMR 629 and Malik Iftikhar Ahmad v. Ali Asghar and another PLD 1981 SC (AJ&K) 47 ref.

(c) Establishment of the Office of Wqfaqi Mohtasib (Ombudsman) Order (1 of 1983)----

--------Art. 32---Constitution of Pakistan (1973), Art. 199---Constitutional petition—Natural justice, principles of---Principle of consistency---Applicability---Dismissal of appeal without giving opportunity of hearing---Plea raised by the petitioner was that the Appellate Authority had accepted the appeal under Art. 32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, without even issuance -of notice to the petitioner---Effect---Judgment passed by the Appellate Authority was hit by the principles of natural justice---High Court having already taken such view in various Constitutional petitions, therefore, it declined to deviate from the previous view on the principle of consistency---Judgment passed by the Appellate Authority was set aside and case was 'remanded for decision afresh---Petition was allowed accordingly.

Federation of Pakistan v, Muhammad Tariq pirzada 1999 SCMR 2189; Commissioner of Income-tax v. Fazal-ur-Rehman PLD 1964 SC 410; Pakistan and others v. Public at large PLD 1987 SC 304; Malik Iftikhar Ahmad v. Ali Asghar and others PLD 1981 SC (AJ&K) 47 and M. Muzaffar Khan v. M. Yousaf Khan PLD 1959 SC (Pak.) 9 ref.

Syed Meenoo Cheher for Petitioner.

Slier Zaman Khan, D.A.-G. for Pakistan (on Court's Call).

2004 Y L R 482

[Lahore]

Before Farrukh Latif, J

MUHAMMAD MASOOD ABBASI---Appellant

Versus

Mst. MAMONA ABBASI---Respondent

(a) Muslim Family Laws Ordinance (VIII of 1961)-----------

----Form 11, Columns 18 & 19---Form of Nikahnama---Restriction imposed on husband's right of divorce---Relevant column---Form of Nikahnama is prescribed under Muslim Family Laws Ordinance, 1961, and is therefore, indicative of the fact that the relevant law treats those columns as lawful--Column No.19 of Nikahnama, relating to any restriction imposed on husband's right of. divorce, with a view to safeguard interest of wife cannot be deemed as unlawful---Whether condition/restriction has been mentioned in Column No.18 instead of Column No. 19 of Nikahnama has, no significance.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7 & Form II, Column 19---Divorce---. Restriction on ,the right .of husband to divorce wife---Import, object and scope---Such restriction is not provided under Muslim Family Laws Ordinance, 1961, or Rules framed thereunder but there is also no provision in the law or rules that such restriction is void---To preserve marriage contract and to safeguard interest of wife against its unjustified termination by husband, if any stipulation is made in Nikahnama whereby husband agrees to pay some damages in the event of divorcing wife without just cause, such stipulation is neither against Injunctions of Islam nor against public policy---Islam allows husband to divorce his wife without assigning any cause but it also approves preservation and protection of marriage and does not approve unjustified exercise of the right of divorce by husband as the same leads to innumerable social problems for the divorcee and the children who consequently have an adverse impact on the society as well---By imposing such condition, right, of divorce of husband is neither taken away nor is restricted; as husband can still divorce his wife in spite of the condition but in case he divorces her without any reasonable cause or justification he would be liable to pay the agreed amount as damages so that the destitute divorcee and children may make some arrangement for their food and shelter for the time being.

(c) Islamic Law---

------Divorce---Assigning of any cause--­Validity---Marriage under Islamic Law is a civil contract and husband has a right to divorce his wife whenever he desires without assigning any cause.

(d) Muslim Family Laws Ordinance (VIII of 1961)-----

----S. 7 & Form II, Columns 18, 19---Contract Act (IX of 1872), S.23--­Restriction on the right of husband to divorce wife---Such restriction whether against public policy---Condition for payment of damages to wife in the event of divorcing her without any cause or justification is not against public policy--­Such restriction is rather in conformity with the same as it discourages unjustified divorces which result in broken homes and endless social and economic problems for the divorcee, children and the society as well---Condition contained in Column No.18 of Nikahnama is not void under the provisions of S.23 of Contract Act, 1872, as the provisions of Contract Act, 1872, speak about the object and consideration of the agreement and not condition contained therein---Every agreement of which the object or consideration is unlawful is void under S.23 of Contract Act, 1872.

(e) Muslim Family Laws Ordinance (VIII of 1961)-----

----S. 5 & Form II, Column 18---Contract Act (IX of 1872), Ss.23, 26, 28 & 29--­Contract of marriage (Nikah)---Registration of such contract---Restriction on the right of husband to divorce wife---Object and scope---Object of contract of marriage .(Nikah) is the procreation and legalizing of children which is lawful object--­Agreements in restraint of marriage, legal proceedings or meaning whereof is not certain, are void under Ss.26, 28 & 29 of Contract Act, 1872---Provisions of Contract Act, 1872, relate to agreements and do not apply to a condition or stipulation which the agreements may. contain---Condition contained in Column No.18 of Nikahnama is not the object of marriage contract and is not void.

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

----Art. 113---Admitted fact---Such facts are not required to be proved.

(g) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7 & Form 11, Column 18---Divorce--­Restriction on the right of husband to divorce wife---Escaping the liability of damages as mentioned in Column No.l9'of Nikahnama---Onus to prove---Right of divorce was exercised by husband---Wife asserted that she was divorced without just and reasonable cause, therefore, she had claimed damages as were mentioned in Column No.18 of Nikahnama---Family Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed in favour of the wife--Validity-.­Right of divorce was exercised by the husband, it was therefore, in order to escape the liability of damages, husband was obliged to show reasonable and just cause for exercising that right---Nothing was produced on record by husband to prove that he had divorced his wife on account of some just and reasonable cause---Appellate Court had rightly held the husband liable under the condition contained in Column No. 18 of Nikahnama---Revisional jurisdiction was directed against irregular exercise, non­ exercise or illegal assumption of jurisdiction and not against conclusion of fact or law, not involving question of jurisdiction---Judgment passed by Appellate Court was reasonable, conclusions drawn were based on evidence and were supported by plausible reasoning and did not suffer from any jurisdictional infirmity---High Court in exercise of revisional jurisdiction declined to interfere with the judgment passed by Appellate Court in favour of the wife---Revision was dismissed in limine.

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

----S. 115(1)(c)---Words 'illegally or with material irregularity'---Connotation--­Words in S.115.(1) (c), C. P. C. have reference to material defects of procedure and not to errors of law or fact that the formalities having complied with prescribed by law.

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

----S. 115---Revisional jurisdiction--­Findings on question of fact or law recorded by Court of competent jurisdiction---Effect---Such findings however erroneous. they may be cannot be interfered with by. High Court in exercise of its revisional jurisdiction, unless such findings are based on no evidence or they are perverse or fanciful.

Syed Muhammad Ali Gillani for Appellant.

2004 Y L R 487

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD IMTIAZ---Petitioner

Versus

NASIR ALI and others---Respondents

Criminal Revision No.402 of 2003, decided on 24th November, 2003.

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

----S. 52---Specific Relief Act (1 of 1877), S.8---Suit for possession---Doctrine of lis pendens---No party to the suit could deal with the property in dispute except with prior permission of the Court---If any party to the suit would make any transaction or make any alteration in the nature of suit property or encumber or alienate the property in dispute in any manner, it would be at its own cost and risk and would not be approved by the Court concerned at the time of final adjudication of the case--­Party adopting such methods, ways or means had to suffer himself---Even the person coming into picture through any such bargain, would become bound by the decree which was passed in the suit and. could not claim any additional or substituted benefits and such person had to follow the footsteps of the party under whom he claimed any such right.

Syed Ahmad Saeed Karmani v. Raja Ashfaq Sarwar and others 2000 MLD 495; Mst. Attia Sultana v. Muhammad Siddique and others 1988 MLD 1109 and Ch. Shujaat Hussain and another v. Mian Aslam Riaz Hussain and others 1994 MLD 2079 ref.

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

----S. 8---Civil Procedure Code (V of 1908); O.XXXIX, Rr.1 & 2---Suit for possession---Interim injunction, grant of--­Plea of exclusive ownership in respect of suit property raised by plaintiffs having been disputed by defendants who claimed joint ownership in the suit property, claim .of plaintiffs had still to, be adjudicated upon---Grant of injunction in case of joint ownership would adversely affect the interest of joint ownership of the parties in suit---Courts below, in circumstances, had rightly dismissed application of plaintiffs for grant of interim injunction.

Sheikh Muhammad Sharif Zafar for Appellant.

2004 Y L R 493

[Lahore]

Before Farrukh Latif, J

QADIR BAKHSH---Appellant

Versus

DIN MUHAMMAD and others---Respondents

Civil Revision No.518-D of 2003, decided on 28th July, 2003.

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

----S. 42---Title over suit-land ---Proof--­Concurrent findings of fact by the Courts below---Mutation of exchange was assailed by plaintiff on the ground that the same was illegal and based on fraud---Defendant contended that he had purchased the land in presence of witnesses but the witnesses were not produced before the Trial Court--­Defendant in support of his assertion had neither produced any sale-deed nor mutation of sale---Both the Courts below had dismissed - the. suit and appeal respectively---Validity---Disputed mutation of exchange was not even supported by the defendant---Findings on question of fact or law recorded by Courts of competent jurisdiction, though erroneous, could not be interfered with, in exercise of revisional jurisdiction unless such findings were based on. no evidence or were arbitrary and perverse---Defendant failed to point out any material piece of evidence which was overlooked or was omitted by any of the two Courts below---Judgments passed by the Courts below, neither contained any misreading of evidence nor any material piece of evidence had been overlooked while deciding the issues--- Defendant could not point out the commission of any error of procedure in the course of trial or appeal by the Courts below---Revision was dismissed in limine.

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

----S. 115 (1) (c)---Words `illegally or with material irregularity' occurring in S.115(1)(c), C.P.C. have reference to material defects of procedure and not to errors of law or fact.

Abdul Rafique Sheikh for Appellant.

2004 Y L R 495

[Lahore]

Before M. Javed Buttar, J

MUKHTAR AHMAD and 2 others---Petitioners

Versus

FATIMA BIBI and 6 others -Respondents

Civil Revision No.503-D of 1997, heard on 25th June, 2003.

Civil Procedure Code (V of 1908)---

----O. X, R.4 & S.115---Better statement of parties, recording of---Penal provisions of O.X, R.4, C.P. C. – Failure to pose any question or query to defendant---Decreeing of suit in terms of O.X, R. 4(2), C. P. C. ---Trial Court pronounced judgment against defendants under O.X, R.4(2), C.P.C. merely because of the absence of the defendants on the date specified for recording better statement of both the parties and not for recording better statement of defendants alone---Counsel of he e defendants was present on the date when the judgment was passed by the Trial Court and the suit was decreed in favour of plaintiff---Trial Court did not pose any query/question to the counsel of the defendants and there was no finding by trial Court that the defendants' counsel had refused or was unable to answer any material question relating to the suit--­Validity---In absence of such finding, the Trial Court could not have pronounced the judgment, as, no material question was put to the counsel of the defendants---Condition precedent for pronouncing the judgment forthwith under O.X, R.4(2), C.P.C. against defaulting party was the fulfilment of conditions laid down in O.X, R.4(1), C. P. C. ---Better statement of defendants was to be recorded in routine only after recording of better statement of plaintiff because both the parties had been directed to appear personally but the plaintiff's statement was not recorded although the plaintiff was present alongwith his counsel---Judgments and decrees passed by both the Courts below were set aside, the order of closure of right to produce defence was also set aside and the case was remanded to Trial Court for decision afresh---Revision was allowed accordingly.

Z.Z. Ahmad (Retd.) Deputy Inspector-General of Police v. National Bank of Pakistan 2000 UC 237; Sardar Ali Khan Syal v. District Judge/Election Tribunal, Zilla Council, Jhang and 2 others PLD 1982 Lah. 63; Sadeshwar Narain v. Qadir Bakhsh and others AIR 1918 Oudh 429 and Sodhi Sadhu Singh & Sons and others v. Dal Chand Tulsi Ram and another AIR 1933 Lah. 922 ref.

Qazi Zahid Hussain for Petitioners.

Shuja-ud-Din Hashmi and Mian Muhammad Aslam for Respondents Nos.1 to 5.

Qazi Imran Zahid for Respondents Nos.6 and 7.

Date of hearing: 25th June, 2003.

2004 Y L R 506

[Lahore]

Before Farrukh Latif, J

MUHAMMAD YAQOOB---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No. 163-D of 2003, decided on 28th July, 2003.

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

----S. 115(1)(c)---Expression "illegally or with material irregularity "---Connotation--­Words "illegally or with material irregularity", in S.115(1)(c), C.P.C., have reference to material defects of procedure and not to errors of law or fact, after the formalities prescribed have been complied with.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.53---Declaratory suit--­Civil Courts, jurisdiction. of---Concurrent findings of facts by the Courts below--­Dispute was with regard to allotment of Ihata in favour of defendants---Trial Court decided the suit in favour of defendants and Appellate Court .maintained the judgment and decree passed by the Trial Court---Plea raised by the plaintiff was that the Civil Court did not have jurisdiction to decide the case---Validity---Plaintiff had himself invoked jurisdiction of Civil Court against the orders of Revenue .hierarchy with the prayer for setting aside the orders---After ,unfavourable decision, the plaintiff could not say that Civil Court had no jurisdiction to decide the case---Both the Courts below respectively had jurisdiction to decide civil suits and appeals arising therefrom--­Findings on question of fact or law rendered by Courts of competent jurisdiction, even though erroneous, could not be interfered with in exercise of revisional jurisdiction unless such findings were based on no evidence, were arbitrary or perverse---Concurrent findings both on fact and law recorded by the Courts below were based on evidence supported by sound and plausible reasoning and did not suffer from any jurisdictional infirmity---Revision was dismissed in circumstances.

Ahmad Nadeem Khan Chandia for Petitioner.

Syed Hashmat Hussain Naqvi on behalf of A. A.-G. for Respondent No .l.

Athar Rehman Respondents Nos.2 and 3.

Date of hearing: 28th July, 2003

2004 Y L R 510

[Lahore]

Before Syed Zahid Hussain, J

SAJID NASEER CH. and 4 others---Petitioners

Versus

MEMBER, BOARD OF REVENUE (CONSOLIDATION), PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.20233 of 2002, heard on 3rd July, 2003.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition--­ Consolidation scheme---No one shall be condemned unheard---Failure to provide opportunity of hearing to all landowners--­Disposing of the matter on executive side'--- Consolidation scheme confirmed in the year 1995, was annulled by Board of Revenue in the year 2002---Grievance of the petitioners was that they had not been heard by the Board of Revenue before passing the order---Validity---Apart from well-entrenched and settled principles of natural justice that one should not be condemned unheard in a matter, likely to adversely affect his rights and interest, there was a specific provision in law i.e. S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960 on the subject--­All those persons who were likely to be affected by the order were to be given opportunity of hearing under proviso to S.13(4) of West Pakistan Consolidation of Holdings Ordinance, 1960---By denying adjournment and opportunity of hearing to the petitioners, the provisions of law and principles of natural justice were disregarded by Board of Revenue---Board had wrongly treated the case and disposed it of onexecutive side' as the matter fell within the judicial realm--­Rights having so accrued in favour of the parties as a result of judicial determination by the appellate revisional forum could not be trampled on nor ignored through executive dispensation---Order passed by Board of Revenue was set aside and the matter was remanded to the –Board for decision afresh after giving opportunity of hearing to all the parties---Petition was allowed accordingly.

Ch. Muhammad Abdul Saleem for Petitioners.

Iqbal Ahmad Khan and Akhtar Ali Kureshi, A.A.-G. for Respondents.

Date of hearing: 3rd July, 2003

2004 Y L R 512

[Lahore]

Before Muhammad Akhtar Shabbir, J

SAFIA BEGUM through Legal Heirs---Petitioner

Versus

MUHAMMAD ASLAM through Legal Heirs--Respondent

Civil Revision No.794 of 2000, heard on 11th November, 2003.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), Ss. 122 & 123---Limitation Act (IX of 1908), Art. 120---Suit for declaration and permanent injunction---Gift, validity of---Gift made by donor in favour of his three sons and wife had been challenged by the plaintiff in her suit for declaration and permanent injunction which suit was concurrently dismissed by Trial Court and Appellate Court---Gift-deed executed by donor had shown that at the time of registration of the same donor as well as one of the donees appeared before Registering Authority and thumb-impression of donor and said donee were reflected on said documents which was sufficient proof that requirements of offer and acceptance of gift were completed---Plaintiff had not been able to point out any illegality in gift-deed nor could refer non-performance of any of three requirements for a valid gift---Suit was fled by plaintiff beyond prescribed period of six years as provided by Art-120 of Limitation Act, 1908---Suit, otherwise being not maintainable, was rightly dismissed by Courts below and concurrent findings of Courts below not suffering from any illegality or jurisdictional defect could not be interfered with by High Court in exercise of its revisional jurisdiction.

Mst. Khalida Bibi v. Mst. Daryai Khanum 1994 MLD 2339; Muhammad Shafi v. Nasir Ali 1994 MLD 283; Noor Muhammad Khan v. Habibullah Khan PLD 1994 SC 650; Mirza Muhammad Sharif v. Mst. Nawab Bibi 1-993 SCMR 462; Muhammad Alam v. Rahmat Ali 2000 MLD 1459; Ajimuddin Parmanik and others v. Najeemuddin Mondal PLD 1966 Dacca 259; M. Rafique v. Ameer Shahzad 1999 YLR 610; Rab Nawaz v. Shah Hanif 1999 MLD 2160 and Guldar Khan v. Isa Khan and others 1993 SCMR 2099 ref.

Sardar Abdul Majeed Dogar for Petitioners.

Zahid Hussain Khan for Respondents.

Date of hearing: 11th November, 2003.

2004 Y L R 519

[Lahore]

Before Farrukh Latif, J

Ch. MUHAMMAD DIN---Petitioner

Versus

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

Writ Petition No. 10-M of 1996, decided on 30th June, 2003.

Cooperative Societies Act (VII of 1925)---

----Ss. 22-A & 50-A---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Maintainability---Alternate remedy--­Availability---Loss to cooperative society-­Recovery of loss---Time-barred appeal--­Non-filing of application for condonation of delay---During audit of the accounts of the Cooperative Society, auditor found the petitioner responsible for the loss and recommendation was made to recover the loss under Ss.22-A & 50-A of Cooperative Societies Act, 1925, from the petitioner--­Appeal against the order was dismissed by Appellate Authority being time-barred--­Plea raised by the petitioner , was that alongwith appeal he had filed application for condonation of delay which was allowed by predecessor-in-office of the Appellate Authority, therefore, successor-in-office could not dismiss the appeal being time ­barred---Validity---Petitioner had neither produced copy of application filed under Limitation Act, 1908, nor any order allegedly passed on said application condoning delay in filing the appeal--­Constitutional jurisdiction under Art. 199 of the Constitution, could only be invoked, where the law had not provided any, other adequate and alternate remedy---Remedy of appeal was provided which was not availed by the petitioner within time prescribed by law---By filing a time-barred appeal, the petitioner could not be deemed to have availed such remedy---Order of recovery passed by the Authorities had attained finality and was deemed to have been accepted by the petitioner---Petitioner had lost his locus standi to file Constitutional petition---Petition was dismissed in circumstances.

Muhammad Ashraf Saleemi for Petitioner.

Syed Hashmat Hussain Naqvi on behalf of A.A.-G. for Respondents.

Date of hearing: 30th June, 2003.

2004 Y L R 521

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ---Petitioner

Versus

PAKISTAN RAILWAYS and others---Respondents

Writ Petition No.2403 of 2003, decided on 8th April, 2003.

(a) Order-----

---- Order passed by Competent Authority under the dictate of superior is not sustainable in the eye of law.

Ghulam Mohy-ud-Din's case PLD 1964 SC 829 ref.

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

----S. 24-A---Decision without reasons--­Effect---Duty and obligation of public functionaries under S.24-A of General Clauses Act, 1897, to decide applications of citizens giving reasons.

Messrs Airport Support Services' case 1998 SCMR 2268 ref.

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

----Art. 4---Power of Executive Authority, exercise of---Principles---Such power must be exercised in accordance with law--­Duty of each and every public functionary is to act in accordance with law and not in derogation of law as ordained under Art. 4 of the Constitution.

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

---Art. 5(2)---Obedience to the Constitution---Scope---Even Chief Executive of the country, in view of Art.5(2) of the Constitution, is bound to obey the mandate of the Constitution.

Ch. Zahur Elahi, M.N.A. v: Mr. Zulfikar Ali Bhutto and others PLD 1975 SC 383 ref.

(e) Punjab Local Government Ordinance (XIII of 2001)-----

----Ss. 4 & 16---Constitution of Pakistan (1973), Art-199 ---Constitutional petition--­ Maintainability ---Vires of order passed by public functionary---Principle of equity and fairplay.--Applicability---Building plan submitted by respondent was provisionally approved by the Authorities in exercise of powers under S.4 of Punjab Local Government Ordinance, 2001, merely on the direction of superior Authority--­ Petitioner assailed the vires of the order passed by the Authorities while approving the building plan---Validity---Executive Authority prescribed under S.4(2) of Punjab Local Government Ordinance, 2001, was of supervisory nature---Provincial Government had to formulate the policy by exercising powers under S.4(2) of Punjab Local Government Ordinance, 2001---Executive Authority approving the building plan had neither exercised its discretion in public interest nor in accordance with law on well-known maxim of fairplay, equity and justice---Order passed by the Authorities was set aside in circumstances.

Muhammad Sadiq v. Muhammad Rafiq and others 1985 SCMR 376; Assistant Director v. Messrs B.R. Herman and others PLD 1992 SC 485; Zahid Akhtar v. Government of Punjab and others PLD 1995 SC 530; Punjab Textbook Board and others v. M . Akhtar Sherani and others PLD 2001 SC 1032; Chairman, Municipal Committee v. Muhammad Jan 1987 CLC 2416; Munshi Abdul Jabbar Arid others v. Teh. Barisal Municipal PLD 1970 Dacca 508; Malik Muhammad Nawaz v. Town Committee 1985 CLC 2891; Ashraf Ali Akanda v. Abdul Awal, Deputy Magistrate PLD 1968 Dacca 962; Muhammad Din & Sons v. Province of West Pakistan PLD 1962 Lah. 823; Tanvir Akhtar and others v. Mst. Muqaddas Asri and others 1987 CLC 640; Aftab Hassan v. Province of Punjab, East Pakistan 1971 DLC 250; Muhammad Iqbal's case PLD 1991 SC 35 and "Capt. (R.) Abdul Qayyum's case PLD 1992 SC 184 ref.

(f) Public functionaries---

---- Public functionaries are duty bound to act in accordance with law.

Utility Stores Corporation's case PLD 1987 SC 447 ref.

(g) Constitution of Pakistan (1973)-----

----Art. 199---Constitutional petition--­Maintainability ---Vires of orders of public functionary---Validity---Petition was not filed for enforcement of contract, in fact the petitioner had challenged the vires of order of public functionary--­Petition was maintainable in circumstances.

Shaukat Ali's case PLD 1997 SC 342 ref.

Aamar Raza A. Khan for Petitioner.

N.A. Butt for Respondent No. 1.

Ghufran Khurshid Imtiazi for Respondent No.2.

Muhammad Hanif Khatana, Addl. A.-G. for Respondent No.3.

Date of hearing: 8th April, 2003.

2004 Y L R 533

[Lahore]

Before Farrukh Latif, J

NAZAR HUSSAIN and others---Petitioners

Versus

FATEH MUHAMMAD and others---Respondents

Civil Revision No.68 of 2003, decided on 10th September, 2003.

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Civil Procedure Code (V of 1908), Ss.12 (2) & O. XXXII, R.4(3)--­Suit for specific performance of agreement and declaration---Suit was dismissed by Trial Court, but was decreed by the Appellate Court on basis of `Adhlapi' agreement---Two sons of the defendant, after about twenty-one years filed application under S.12(2), C. P. C. challenging validity of decree of Appellate Court on the plea of fraud and misrepresentation---Said two sons had alleged that at the relevant time they were minors and defendant who was their father had defended suit on their behalf as their alleged guardian ad litem, but . his appointment as guardian ad litem was void as he was appointed without consent and thus had not taken any interest in defending the suit and appeal and furthermore mandatory provisions of O.XXXII, R.4(3), C. P. C. had not been complied with by the Trial Court---Joint written statement was submitted in suit by all the defendants including minors through an advocate---No allegation was made by said two sons in their application under S.12(2), C.P.C. that said Advocate was not appointed as counsel by defendant or that said Advocate was not authorized as to make statement on behalf of defendant---Defendant was father of minors/defendants and no other person was more suitable to safeguard the right of minors---Record showed that interest of defendant/guardian ad litem was not adverse to his minor sons neither any such allegation was made by said two sons in their application under S.12(2), C.P.C.--­Evidence on record had shown that not only suit, but appeal was contested and that minors were fully represented by their guardian ad litem through same advocate who was representing their guardian ad litem---Joint written statement was thumb­marked by guardian ad litem and other major defendants---If thumb-impressions of minors were also obtained on said written statement, it was merely a redundant exercise wherefrom it could not be inferred that they were not represented by their guardian ad litem---Nothing was produced to show that defendant was not aware that he was appointed as guardian ad litem and that he had not taken interest in defending the suit and appeal---Both, suits as well as appeal, were contested and were decided on merits---Contention that mandatory provisions of O.XXXI, R.4(3), C.P.C. was not complied with by Trial Court, was without force and was repelled because counsel for defendant had given consent on behalf of his client and appointment of said counsel had never been objected to---Impugned order being based on plausible reasoning and not suffering from any jurisdictional infirmity, could not be interfered with in revision.

Malik Muhammad Ibrahim for Petitioners.

2004 Y L R 537

[Lahore]

Before M. Javed Buttar, J

QAISER MANSOOR MALIK ---Petitioner

Versus

Mst. JHANDO through Legal Heirs and 13 others-- -Respondents

Civil Revision No.346-D of 1991, heard on 4th July, 2003.

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

----S. 16---Pre-emption suit---Issue of contiguity---Concurrent findings of fact--­Misreading of evidence by Courts below in regard to such issue was minor in nature---High Court refused to upset such findings in exercise of revisional jurisdiction.

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

----Ss. 5(a), 7 & 16---Pre-emption suit--­Urban property---Plaintiffs alleged prevalence of custom of pre-emption in locality, where suit property was situated, and claimed superior right of pre-emption on basis of contiguity--Defendant's plea was that suit property was a "Katra ", regarding which no right of pre-emption existed---Trial Court decreed the suit, which was upheld by Appellate Court--­Validity---Plaintiffs had not declared his own witness, as hostile who had stated that suit property was a "Katra "---Such statement of witness had not been termed to be incorrect by remaining witnesses including one of the plaintiffs---Suit property had been established to be a "Katra " through un rebutted evidence---Sale in question was, thus, not pre-emptible--­Plaintiffs were bound to prove existence of custom of pre-emption in such locality before 1913, but their witnesses had not stated anything in such regard---Courts below had drawn wrong and illegal conclusion on basis of facts found and had acted illegally in decreeing suit---High Court accepted revision petition, set aside impugned judgments/ decrees and dismissed plaintiffs' suit.

Manzoor Hussain v. Allah Ditta 1990 MLD 743 and Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through Legal Heirs and another 1993 SCMR 1477 rel.

(c) Punjab Pre-emption Act (1 of 1913)-----

----S. 5(a)---Civil Procedure Code (V of 1908), S.115---Revision---Raising new question of law---Scope---Inference drawn on basis of facts found was a question of law---Suit property on face of record was a "Katra "---Such property, whether pre­ emptible or not, was a legal plea--­Defendant could not be estopped from taking such plea before High Court for first time in revision petition.

Fazal Akbar v. Mst. Hussan Pari 1982 SCMR 738 and Mahant Kirpa Singh v. Maya Ram, Mst. Jai Kaur and others 22 Pb. Rec. 1910 ref.

(d) Pre-eruption---

----Right of---Proof---Such right is a weak right, which has to be proved by clear, primary and direct evidence.

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

----Ss. 5(a) & 8(2)---Notification No.149/L. R. dated 16-6-1941---Effect--­Area falling outside Circular Road, Lahore had been exempted by virtue of such notification from-exercise of right of pre­emption ---Such notification was not evidence of existence of custom of pre­emption before year 1913 in areas falling within Circular Road, Lahore.

Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180 rel.

Muhammad Ehsan Waine for Petitioner.

Sh. Khurshid Iqbal for Respondents.

Date of hearing: 4th July, 2003.

2004 Y L R 541

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUZAFFAR HUSSAIN SHAH and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 4 others---Respondents

Writ Petition No. 2996 of 1996, heard on 20th November, 2003.

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

-----O. VII, Rr.14, 15 & 18---List of documents relied upon by plaintiff--­Object---Object of such list is to put defendant to guard, allow him to cross­ examine and confront such document; and to restrain parties from producing document through fraud or forgery---Trial Court has jurisdiction:, to allow for disallow plaintiff from producing such documents in view of circumstances of each case.

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

-----O. VII, Rr.14, 15 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Production of documents finding mention in list of reliance ---Scope--­Certified copy of Expert report forming part of judicial file of criminal case and finding mention in list of reliance---Order of Trial Court allowing plaintiff to produce in evidence such document was set aside by Appellate Court in revision filed by defendant---Validity---Order of Trial Court was based on sound reasoning and had been passed within provisions of law--­High Court accepted Constitutional petition and set aside impugned order.

Habib Ullah Ch. for Petitioners.

Nemo for Respondents Nos. 1 to 3. and 5.

Abdul Rehman Madni for Respondent No.4.

Date of hearing: 20th November, 2003.

2004 Y L R 544

[Lahore]

Before Ch. Ijaz Ahmad, J

WAJAHAT IQBAL ---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director­ General and 3 others---Respondents

Civil Revision No.656-D of 1998, heard on 14th November, 2003.

(a) Land Acquisition Act (I of 1894)----

----S.4---Punjab Acquisition of Land (Housing) Act (VIII of 1973), Ss, 4 & 13--­Acquisition of land---Publication of notification---Object---Government through such notification notifies its intention to acquire land for public purpose and impliedly warns public at large that any transaction relating thereto would be made by transferees at their own risk.

(b) Punjab Acquisition of Land (Housing) Act (VIII of 1973)----

----Ss.4 & 13---Lahore Development Act (XXX of 1975), S. 13---Gift of land by original owner subsequent to its acquisition by Lahore Development Authority--­Validity---Title of acquired land on taking overt as possession would automatically vest in the Authority ---Donee could avail proper remedy under provisions of Land Acquisition Act, 1894, Punjab Acquisition of Land (Housing) Act, 1973 and Lahore Development Act, 1975 before Competent Authority.

L.D.A. v. The Land Acquisition Collector/L.D.A. and 3 others PLD 1983 Lah. 413; Muhammad Khalid and another v. The land Acquisition Collector Civil Petition No.913 of 1983; Muhammad Haleem's case 1991 SCMR 1231; Deputy Collector, Calicut Division v. Aiyavu Pillay 9 IC 341 (Mad.) and Chhedi Ram v. Ch. Ahmad Shafi and others AIR 1933 Oudh 100 rel.

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

----Ss.96, 115 & O.XLI, R.33---"Power of Appellate Court to reverse findings of Trial Court" and `jurisdiction of High Court under S.115, C.P.C. to reverse findings of Appellate Court "---Distinction.

While exercising power under section 96, C.P.C., First Appellate Court is well within its right to reappraise evidence on record and reverse findings of trial Court. High Court has very limited jurisdiction to reverse the findings of First Appellate Court while exercising power under section 115, C.P.C., unless and until the same is result of misreading and non ­reading of the record or any violation of the principle laid down by superior Courts.

Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 and N. S. Vangatagiri Ayyangar and another v. The Hindus Religious Endowments Board, Madras PLD 1949 PC 26 ref.

Ch. Abdul Razzaq Kamboh for Appellant.

Ch. M. Rashid Ahmad for Respondent.

Date of hearing: 14th November, 2003.

2004 Y L R 548

[Lahore]

Before Syed Jamshed Ali, J

SALMAN ZAFAR (Minor) through his Mother---Petitioner

Versus

AITCHISON COLLEGE through Secretary, Board of Governors and 3 others---Respondents

Writ Petition No. 14113 of 2003, heard on 20th November, 2003.

(a) Prospectus of Aitchison College (Lahore)---

---- Re-admission in A " Level---Giving preference to students belonging to "sister institutions "---Scope---Criteria for admission in A " Level according to Admission Policy was 7 "As" preferably in first attempt---No Aitchisonian including students belonging to any sister institution" would be entitled to any preference for re-admission---All students had to compete on basis of merit alone--­ Grant of preference to students of "sister institutions-", if backed by Admission Policy or prospectus, could be saved only, if same was based on reasonable classification--­ Mere declaring the Cadet College, Hassan Abdal; Lawrence College, Ghora Gali; Sadiq Public School, Bahawalpur and Aitchison College as autonomous bodies under the Education Department by Punjab Government itself would not be sufficient that students of said institutions would be entitled to any preference over other students in matter of admission to Aitchison College---All such institutions were public institutions and admissions therein could only be regulated by Prospectus and Admission Policy duly framed.

(b) Precedent---

----Precedent is to be understood and applied in the context of facts of a particular case.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 fol.

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

----Art.199---Civil Procedure Code (V of 1908), Preamble---Provisions of Civil Procedure Code, 1908---Applicable to proceedings in Constitutional proceedings.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 fol.

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

----Art.199---Civil Procedure Code (V of 1908), O. VII, R. 7---Grant of relief in Constitutional jurisdiction---Scope and essential conditions stated.

Code of Civil Procedure, 1908 applies to the proceedings in Constitutional jurisdiction. According to Order VII, rule 7 of Code of Civil Procedure, the relief claimed by the plaintiff in the suit shall be expressly stated, but it is not necessary to ask for general or other relief, which may always be given as the Court may think just to the same extent as if had been asked for. The principle of said rule is equally applicable to the proceedings in writ jurisdiction.

Relief granted to the petitioner should be founded on the pleadings; so that the other party had notice to meet the case set up in the petition and the relief granted flows from the adjudication made by the Court.

Prof. Muhammad Usman and others v. Punjab University Academic Staff Association and another 1991 SCMR 320; Akhtar Abbas and others v. Nayyar Hussain 1982 SCMR 549; Saiyyid Abul A'la Maudoodi and 2 others v. Government of West Pakistan and another PLD 1964 SC 673; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; A.G. Khan v. Shuja-ud-Din Qureshi and others PLD 1961 SC 1; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121 and Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 rel.

(e) Educational institution---

----Admission---College Authorities would be the best Judge of the merits of competing candidates---Comparative merits of candidates would be examined by, applying objective criteria.

M. Saleem Sahgal for Petitioners.

Abbas Mirza for Respondents Nos. 1 and 2. Hamood-ur-Rehman and Ali Asghar Syed for Respondent No.3.

Zia Khan for Respondent No.4.

Dates of hearing: 19th and 20th November, 2003.

2004 Y L R 554

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mian RIAZ-UL-HAQ through Legal Heirs and 6 others---Petitioners

Versus

MUHAMMAD PERVAIZ CHAUDHRY and 2 others ---Respondents

Writ Petition No. 23887 of 1999, heard on 3rd November, 2003.

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

----S.117---Powers of Revenue Officers to define limits of estate---Scope and extent--­Provisions of S.117 of West Pakistan Land Revenue Act, 1967 had empowered a Revenue Officer for the purpose of framing any record or making any assessment on the application of any person interested to define the limits of the estate, or of any holding, field or other portion of an estate and could for the purpose of indicating those limits require boundary marks to be erected or repaired---Powers under S.117 of West Pakistan Land Revenue Act, 1967 for demarcation proceedings were unlimited and unfettered---Revenue Officer for purpose of preparation of record or assessment of a case, could on his own motion or on application of interested person, demarcate boundaries of an estate.

Sheikh Abdul Ghafoor and others v. Faqir Muhammad 1992 CLC 586 and Tahir Hanif v. Member, Board of Revenue and others 1982 CLC 1732 ref.

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

----Ss.117 & 175---West Pakistan Land Revenue Rules, 1968, R.67-A---Powers of Revenue Officer to remove encroachment from land---Scope---Revenue Officer under S.175 of West Pakistan Land Revenue Act, 1967 was empowered to remove the encroachment from the land which was reserved for the common purposes--­Rule 67-A of West Pakistan Land Revenue Rules, 1968 had further strengthened the demarcation power to be exercised by Revenue Officer with regard to limits of estate, a holding, field or any portion thereof---Rule 67-A envisaged the demarcation of land on an application under S.117 of West Pakistan Land Revenue Act, 1967 for defining the limits of an estate; a holding, field or any portion thereof.

Amir Bibi v Dheru and another AIR 1927 Lah. 615 and Pervez Ahmad Khan Burki and 3 others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31 ref.

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

--- Art.199---Constitutional jurisdiction of High Court---Scope---High Court would riot sit as a Court of appeal on a decision/judgment of Court or Special Tribunal in exercise of its Constitutional jurisdiction--­Where Special forum, however, misconstrued the provision of law or passed the decision contrary to the settled proposition of law ignoring the material evidence on record or exceeded its jurisdiction or committed a gross error of law or fact, High Court, could correct that mistake.

Ras Tariq Chaudhry alongwith Anwar-ul-Haq for Legal Heirs of Petitioners.

Shahid Amin and M. Aslam Khan Butter for Respondent No. 1.

Muhammad Sohail Dar, A.A.-G. for Respondents Nos.2 and 3.

Date of hearing: 3rd November, 2003.

2004 Y L R 558

[Lahore]

Before Maulvi Anwarul Haq, J

MANZOOR AHMED ---Petitioner

Versus

RENT CONTROLLER, RAWALPINDI CANTONMENT and 3 others-- Respondents

Writ Petition No. 2192 of 2003, heard on 24th October, 2003.

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

---Ss.17(4) (8)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Bona fide personal need of the landlord -- Necessary party---Relationship of landlord and tenant between the parties having been admitted, Rent Controller passed order directing tenant to deposit rent in terms of S.17(8) of Cantonments Rent Restriction Act, 1963---Third person, thereafter filed an application to the effect that he being a co-owner in the premises in question and having filed a suit for partition, ought to be impleaded as a party in ejectment application which was allowed by the Rent Controller ---Validity---Whereas it would be necessary to implead the other co-owners in a suit for possession, it would not at all be necessary to implead co-owners in an application filed by one or more of them for the ejectment of a tenant---Orders, in the present case, had been passed for deposit of rent and issues had been framed---Said third person/alleged co-owner, in such state of affairs, was not at all a necessary or even a proper party--Act of Rent Controller accepting application of alleged co-owner to be impleaded as party being in direct violation of law his order was without lawful authority which was set aside.

Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429 ref.

Shaukat Aziz Siddiqui for Petitioner.

Munir Bashir Ansari for Respondents Nos.2 to 4.

Date of hearing: 24th October, 2003.

2004 Y L R 560

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUBARIK SHAH and another ---Petitioners

Versus

RAZIA BIBI and 5 others---Respondents

Civil Revision No. 439 of 2001, heard on 14th November, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), Ss.122 & 123---Suit for declaration---Execution of gift, proof of--­Plaintiffs had claimed that they were owners of suit-land according to their shares being legal heirs of its original owner and that mutation of alleged gift got sanctioned by the defendants in their favour was based on fraud and being illegal was liable to be set aside--Plaintiff, had further alleged that subsequent transfer by defendants through mutation to other defendant was also illegal---Plaintiffs had alleged that their predecessor had handed over the possession of suit-land to the defendants as tenants who had been paying the plaintiff's share of produce up to 1994, but later on, they refused to give plaintiff share of produce and denied ownership of plaintiffs with regard to the suit-land and with connivance of Revenue Staff got sanctioned gift mutation in their favour--­Trial Court dismissed the suit, but Appellate Court set aside the judgment and decree of Trial Court---Validity---Plaintiff by producing cogent, convincing and confidence-inspiring evidence on record had fully proved that alleged gift mutation was forged and fictitious---No possession was delivered to the defendants on basis of alleged gift mutation---None of the alleged two donees opted to appear before Trial Court to make statement in support of their version with regard to gift in their favour---Evidence on record had fully proved that Trial Court had failed to appreciate evidence brought on record, whereas Appellate court decided appeal against judgment of Trial Court after appraisal of entire material available on record---In absence of any misreading or non-reading of evidence on record no justification was available to set aside judgment passed by Appellate Court.

Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 and Muhammad Aslam and another v. Imam Bakhsh and 2 others 1980 SCMR 879 ref.

Rana Abdul Rahim Khan for Petitioners.

A.G. Tariq Ch. for Respondents.

Date of hearing: 14th November, 2003.

2004 Y L R 563

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD AZAM and 3 others---Petitioners

Versus

Mst. AYESHA ---Respondent

Civil Revision No.2002 of 2003, decided on 3rd November, 2003.

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

----S.8 & 42---Suit for declaration and possession---Claim of plaintiff was that suit­-land owned by her was leased out to the defendant, but when on expiry of lease period she demanded to return of the land from defendants, they refused to return the same and while examining Revenue Record plaintiff came to know that defendants had got transferred suit-land in their favour through mutation of gift which was attested by Revenue Officer while she had never created any gift-deed in favour of defendants---Plaintiff had alleged that she being illiterate and Pardanashin lady had been defrauded by the defendants---Trial Court dismissed the suit, but Appellate Court set aside judgment and decree of the Trial Court---Validity---Appellate Court, was well within its right to reappraisal of evidence at the time of deciding appeal--­Appellate Court below after reappraisal of evidence on record had given positive findings that plaintiff was Pardahnashin lady and that said fact was not considered in its true perspective by the Trial Court--­Defendants had failed to bring on record any piece of evidence which could reveal that at the time of execution of alleged gift qua suit-land in favour of defendants, plaintiff had independent legal advice--­Defendants had failed to bring on record any evidence that plaintiff was not an old illiterate lady---Appellate Court, in circum­stances, was justified to reverse findings of Trial Court---In absence of any infirmity and illegality in judgment of Appellate Court, same could not be interfered with in revisional jurisdiction of High Court.

Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Muhammad Rafique v. Mst. Rashida Begum 1979 CLC 823; Alloo v. Sher Khan and others PLD 1985 SC 382; Muhammad Sharif v. Abdul Majid 1982 CLC 208; Mst. Ameer Begum v. Muhammad Naeem Khan PLD 2000 SC 839; Messrs Dadabhoy Cement Industries and others v. National Development Finance PLD 2002 SC 500; Khalil-ur-Rehman v. Mst. Haleem Khatoon PLD 2001 Lah. 3; Muhammad Ishaq and others v. Ghafoor Khan and others 2000 SCMR 519; Manzoor Hussain and others v. Muhammad Siddique 2000 CLC 623; Mst. Hafeezan Bibi v. Ali Hussain 1994 SCMR 1194; Ghulam Ali's case PLD 1990 SC 1; Mst. Jannat Bibi's case PLD 1990 SC 642; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657; N. S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 ref.

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

----Arts.72, 117 & 118---Document of title---Burden of proof ---Beneficiary of document of title was obliged to prove the contents of documents and burden of proof lay on the party, who wanted benefit of said documents to establish its genuineness in his favour in accordance with law.

Wali Muhammad's case PLD 1989 Lah. 440 ref.

Sh. Naveed Shaharyar for Petitioners.

2004 Y L R 567

[Lahore]

Before Muhammad Akhtar Shabbir, J

SARJAH KHAN---Petitioner

Versus

Mst. BAIGEE and another---Respondents

Civil Revision No. 449 of 2002, heard on 17th September, 2003.

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

----Ss.6, 13 & 30---Suit for pre-emption--­Making of Talbs---Suit was concurrently dismissed by Trial Court and. Appellate Court on the ground that plaintiff had failed to establish performance of Talb-e-Muwathibat and Talb-i-Ishhad--- Plaintiff had specifically referred in the plaint two Talbs having been made in presence of two witnesses---Copy of notice of Talb-i-Ishhad as envisaged under S.13(3) of Punjab Pre­emption Act, 1991 had been produced in evidence on which no cross-examination had been made nor any objection had been taken by defendants---Both witnesses produced by plaintiff had categorically stated that plaintiff had declared the intention to pre-empt the suit-land--­Defendants had cross-examined said witnesses at length, but no substantial contradiction was made out---Both Courts below had non-suited the plaintiffs with observation that there were minor contradictions in the statements of plaintiff---No ambiguity was found in the plaint and the statement of plaintiff about making of Talbs---Plaintiffs had produced sufficient and convincing evidence to establish the said Talbs---Both Courts below had given findings on issue of Talbs without applying judicial mind to the evidence produced by plaintiff---Concurrent judgments of Courts below were based on surmises and conjectures and it would not be appropriate in the interest of justice to non-suit plaintiff on some slight discrepancies, if any, in his statement--­Superior right of plaintiff had also not been rebutted by cogent evidence by defendants---High Court accepting revision set aside concurrent judgments and decrees of Courts below and decreed suit for pre-emption with costs throughout.

Noor-ud-Din and 3 others v. Pakistan through the Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others 2000 SCMR 354 and Nadir Khan v. Itebar Khan 2001 SCMR 539 ref.

Ghulam Farid Sanotra for Petitioner.

Ch. Haider Bakhsh for Respondents.

Date of hearing: 17th September, 2003.

2004 Y L R 571

[Lahore]

Before Ch. Ijaz Ahmad, J

RIFFAT ULLAH KHAN---Petitioner

Versus

ELECTION TRIBUNAL/ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHEIKHUPURA and 6 others--­Respondents

Writ Petitions Nos. 13930 and 14206 of 2003, heard on 9th December, 2003.

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

----R.70---Punjab Local Government Elections Ordinance (V of 2000), S.14(1)--­Constitution of Pakistan (1973), Art.199--­Constitutional petition---Election petition filed by unsuccessful candidate against the returned candidate was accepted holding that nomination papers of returned candidate for Nazim were invalid in terms of S.14(1) of Punjab Local Government Elections Ordinance, 2000---Said finding of Election Tribunal was based on allegation that returned candidate had concealed assets owned by him and his wife while submitting his declaration of assets alongwith his nomination papers---Election Tribunal had given finding of fact against returned candidate in its judgment after proper appreciation of evidence---Judgment of Election Tribunal based on evidence on record was in accordance with mandate of S.14(1) of Punjab Local Government Elections Ordinance, 2000---High Court, while exercising powers under Art. 199 of the Constitution had no jurisdiction to substitute its own finding in place of finding of the Tribunal below---Constitutional petitions to the extent of said judgment of Election Tribunal, were dismissed.

Musaddaq's case PLD 1973 Lah. 600; Syed Azmat Ali's case PLD 1964 SC 260 and Fazal Din's case PLD 1969 SC 223 ref.

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

----S.152---Punjab Local Government Elections Ordinance (V of 2000), S.14(1)--­Punjab Local Government Elections Rules, 2000, R.70---Amendment of judgment--­Application for---Election petition--­Principles of natural justice ---Non­observance---Effect---Election of returned candidate as Nazim was declared invalid in terms of S.14(1) of Punjab Local Government Elections Ordinance, 2000--­On receiving copy of order of Election Tribunal, Provincial Election Commission issued new Notification cancelling the Notification of returned candidate earlier issued---Unsuccessful candidate filed application under S.152, C. P. C. for correction of judgment of Election Tribunal whereby his election was declared invalid and for issuance of fresh Notification which was accepted by Election Tribunal without issuance of notice to the parties in the election and without application of mind--­Said order which was passed by the Election Tribunal in violation of principle of natural justice and without application of mind, was set aside by the High Court with direction that application filed by unsuccessful candidate would be deemed to be pending adjudication before the Election Tribunal.

Maula Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 ref.

Dr. Qazi Mohy-ud-Din for Petitioner.

Chaudhry Hameed-ud-Din for Respondent No. 3.

Date of hearing: 9th December, 2003.

2004 Y L R 577

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AKRAM---Petitioner

Versus

Mst. SHEEDAN BIBI and another---Respondents

Writ Petition No. 10638 of 2003, heard on 12th November, 2003.

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

----S.39---Suit for cancellation of a document---Plaintiff must allege that if the impugned instrument was allowed to exist the same would cause him injury---Under S.39 of Specific Relief Act, 1877, suit for cancellation of instrument would be through a declaration for cancellation of the instrument declaring the same to be void or voidable.

Rasheed Ahmad v. Haq Nawaz and others 1982 CLC 9; Mst. Bhagan through Legal Heirs v. Mubarik Begum and others 1998 MLD 2929; Mst. Perveen Akhtar v. Azhar Ali and 2 others 2002 CLC 1549; Muhammad Riaz Aslam v. Muhammad Akhtar and 2 others 1993 CLC 1391; Ghulam Farid v. Mst. Pathani and 2 others 1993 MLD 1023; Mst. Nasim Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J&K 66; Pervez Akhter and 2 others v. Raj Muhammadu PLD 1991 Azad J&K 50 and Siddique Khan and others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref.

(b) Words and phrases---

----"Instrument", meaning and scope, explained.

Chamber's Dictionary and Black's Law Dictionary ref.

(c) Constitution of Pakistan (1973)--

--- Art.199---Civil Procedure Code (V of 1908), S. 115---Constitutional petition--­Revisional order could not be challenged through Constitutional petition if the same was not covered within the dictum laid down in cases reported as PLD 1999 Kar. 257 and 1991 SCMR 970.

Rana Mamoon Rasheed v. Kokab Noorani Okarvi PLD 1999 Kar. 257 and Muhammad Khan v. Mst. Ghulam Fatima 1991 SCMR 970 ref.

Muhammad Yaqoob Chaudhry for Petitioner.

Ustad Muhammad Iqbal for Respondents.

Date of hearing: 12th November, 2003.

2004 Y L R 583

[Lahore]

Before Farrukh Latif, J

MUHAMMAD TALIB---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.9701 of 2002, decided on 11th September, 2003.

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

----Ss. 5 & Sched. & S.14(2) (c)--­Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Suit for maintenance---Appeal, maintainability of--­Family Court granted maintenance allowance to all the three plaintiffs (mother, minor daughter and son) at the rate of Rs.500 p.m. each---Argument of defendant was that decree of Family Court jointly being for Rs.1, 500 p.m., and that being more than Rs.500 p.m., such decree was appealable and that appeal filed by him was competent and maintainable ---Validity--­Family Court, in the present case, had separately granted maintenance allowance to each plaintiff at the rate of Rs. 500 p. m.---Claim of plaintiffs having not jointly been decreed, amount of maintenance granted to each plaintiff in suit for maintenance jointly filed by them could not be clubbed together---Appeal against decree for maintenance of Rs.500 p.m. did not lie under S.14(2)(c) of West Pakistan Family Courts Act, 1964---Appeal fled by defendant against decree for maintenance of Rs.500 p.m. each was rightly dismissed by Appellate Court as .the same was not maintainable.

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

----S. 5 & Sched:---Constitution of Pakistan (19734, Art.199---Constitutional petition--­Suit for maintenance---Plaintiff, who was divorced, had filed suit for maintenance for herself, one minor son and a minor daughter---Minor son according to agreement/compromise made in Punchayiat, would live with father. and said minor according to the agreement was living with father for the last three years, but Family Court without taking into consideration such fact, granted maintenance allowance to all three plaintiffs including the minor son---Judgment of Family Court in that respect, not, only was based on non-reading of material evidence, but also was under erroneous assumption of fact---Judgment of Family Court, to that extent, was declared to have been passed without lawful authority and of no legal effect---Suit for maintenance would be deemed to have been pending before Family Court and would be disposed. of in accordance with law within the shortest possible time.

Syed Israr Hasnain Shah for Petitioner.

Malik Muhammad Latif Khokhar for Respondents Nos.2 and 3.

Date of hearing: 11th September, 2003.

2004 Y L R 585

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD ALTAF MITRO and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 4 others---Respondents

Writ Petition No.5663 of 2002, decided on 28th April, 2003.

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

----S. 14(j)---Punjab Local Government Elections Rules, 2000, Rr.70, 71, 77 & 81---Constitution of Pakistan (1973), Art. 199---Election of Nazim and Naib­Nazim---Nomination papers, rejection of--­Disqualification of returned candidate on ground of being defaulter--- Objection was raised by opposing candidates at the time of scrutiny of nomination papers that returned candidate being defaulter of National Bank of Pakistan, was disqualified under S. 14(j) of Local Government Elections Ordinance, 2000---Returning Officer rejected nomination papers---Appeal against order of Returning Officer having been dismissed, candidate filed Constitutional petition---Validity--­Nomination papers were accepted subject to deposit of stipulated amount by the candidate---Candidate having been elected as Nazim, opposing candidates filed election petition wherein election of returned candidate was challenged on ground that returned candidate had been adjudged as defaulter by Banking Court against which appeal was filed by him--Returned candidate was adjudged defaulter after about two months from filing of election petition which would mean that at the time when election petition was filed candidate was not an adjudged defaulter--­Election petition, in circumstances, was not competent---Contention of opposing candidates that issuance of statement of account by Bank after consulting accounts of an individual, would amount to adjudication, was repelled because such a statement of accounts when presented before a Court of competent jurisdiction, could be accepted, rejected or varied, while findings given by the Court on such determination would be an adjudication at law which status could not be given to a statement of account prepared by Bank---In absence of any ground to declare returned candidate as disqualified, election petition by opposing candidates, was not maintainable---High Court accepted Constitutional petition and order of the Election Tribunal whereby returned candidates were declared disqualified for contesting election of Nazim and Naib Nazim on ground of being adjudged defaulter was set aside declaring the same to be illegal and without lawful authority.

1998 CLC 272; PLD 1968 SC 301; 2002 YLR 2094 and PLD 1966 Lah. 111 ref.

(b) Words and phrases---

----'Adjudged', meaning and scope---Person could only be said to have been 'adjudged' provided he had undergone the rigours of a trial before a Court of competent jurisdiction and some verdict was given by the Court in a judicial proceeding.

Mian Abbas Ahmad for Petitioners.

Muhammad Arif Alvi for Respondents.

Date of hearing: 25th April, 2003.

2004 Y L R 592

[Lahore]

Before Raja Muhammad Sabir, J

Sardar MUHAMMAD ASLAM---Petitioner

Versus

ADDITIONAL DISTRICT & SESSIONS JUDGE, OKARA/ELECTION TRIBUNAL FOR TEHSIL CHUNIAN and 5 others---Respondents

Writ Petition No.6959 of 2003, decided on 27th May, 2003.

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

----S. 14 (e)---Punjab Local Government Elections Rules, 2000, R.70---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election of Nazim---Academic qualification of candidate---Petitioner alongwith nomination papers filed forged duplicate Matric Certificate allegedly issued by Secondary Education Board, and produced, during trial of election petition another forged duplicate certificate allegedly issued by another Secondary Education Board---Election Tribunal declared election of petitioner void for lack of requisite academic qualification--­Validity ---Petitioner had not appeared in Matric Examination under subject roll number from one Board, which belonged to some other candidate---Record of said Board did not contain any form of admission by the petitioner---Contradictory plea taken by petitioner in written statement that he had appeared from another Board was also false---Record of said other Board pertaining to the given roll number had been tampered with---Petitioner had produced duplicate certificate, but had not produced the original certificate, which had been placed on record by original candidate, who had appeared under the given roll number and had been recruited as Constable in Police Department on basis of such certificate---Petitioner was not a Matriculate, but he had posed himself through fraudulent means to be so to contest election for the office of Nazim, for which he was not qualified---Findings of Tribunal did not warrant interference--­High Court dismissed Constitutional petition with directions to Superintendent of Police of the area to register criminal case against the petitioner under relevant provisions of law for producing forged duplicate certificates in Court of law in his defence.

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

----Rr. 70 & 71---Punjab Local Government Elections Ordinance (V of 2000), S.14(e)--­Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election of Nazim---Production of forged duplicate Matric Certificate---Election Tribunal declared election of petitioner void for lack of requisite qualification-- -Contention of petitioner was that he had not received copy of election petition in advance--- Validity-­Petitioner was suffering from inherent disqualification to contest election---Such fact once brought to the notice of Tribunal, it became its duty to remove petitioner from office of Nazim---Such objection being of technical nature would not affect decision of election petition on merit---High Court dismissed Constitutional petition in limine.

Sardar Muhammad Latif Khan Khosa for Petitioner.

2004 Y L R 599

[Lahore]

Before Ch. Iftikhar Hussain, J

RIAZ AHMAD---Petitioner

Versus

JUDGE FAMILY COURT, ROJHAN and 3 others---Respondents

Writ Petition No. 1990 of 2003, decided on 22nd May, 2003.

(a) Islamic Law---

----Maintenance of children--Father under v as well as morally is bound to maintain his children---Father cannot escape from his such liability on any pretext.

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

----Ss. 5, 13(5) & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Execution of decree for recovery of maintenance of minors---Dismissal of petition filed by father for allowing payment of decretal amount in instalments---Validity---Family Court had fixed maintenance for each child @ Rs.400 per month with annual increase of 10%---In view of cost of living going high day-by­-day, such 10% annual increase was not unreasonable---Minors were living with mother separately before institution of suit, thus, were entitled to past maintenance also---Father could easily pay such meagre amount---Father could not be absolved of his liability to maintain minor daughters on excuse of his weak financial position, particularly when amount of maintenance fixed was not at all exhorbitant or excessive---Father, instead of paying maintenance to minors, had dragged them into litigation and in order to prolong its payment had requested Executing Court for making instalments of decretal amount--­Minors had remained without maintenance for sufficient time---Father had been negligent in discharging his responsibility towards minors---Father was not justified in seeking indulgence of High Court in form of making instalments of decretal amount---Executing Court had rightly declined such request---High Court dismissed Constitutional petition in limine.

Fiyaz Ahmad Shaheen for Petitioner.

2004 Y L R 608

[Lahore]

Before Syed Zahid Hussain and Muhammad Akhtar Shabbir, JJ

LAND ACQUISITION COLLECTOR and another---Appellants

versus

ABDUL WAHID CHAUDHRY and 3 others---Respondents

Regular First Appeals Nos.591, 592 73E and 739 of 2001, decided on 12th June 2003.

(a) Land Acquisition Act (I of 1894)--

----S. 23---Land acquisition---Compensa­tion---Determining factors enlisted.

Following are the plus and minus factors to be kept in mind while determining the compensation:--

Plus factors:

(1) Smallness of size.

(2) Proximity to a road.

(3) Frontage on a road.

(4) Nearness to developed area.

(5) Regular shape.

(6) Level vis-a-vis land under acquisition.

(7) Special value for an owner of an adjoining property to whom it may have some very special advantage.

Minus factors:

(1) Largeness of area.

(2) Situation in the interior at a distance from road.

(3) Narrow strip of land with very small frontage compared to depth.

(4) Lower level requiring the depressed portion to be filled up.

(5) Remoteness from developed locality. , (6) Some special disadvantageous factor which would deter a purchaser.

Factors for determining the compensation vary from time to time, location to location keeping in view the use present and future, its vicinity and ambience. No fixed criteria exists and assessment of fair compensation is to be made objectively.

Chimanlal Harqovinnddas v. Special Land Acquisition Officer, Poona and another AIR 1988 SC 1652 ref.

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

----Part II, Chap. 1 & Arts. 23 & 24---Land Acquisition Act (I of 1894), preamble--­Fundamental guarantees---Right to hold property---Acquiring of property---Import, object and scope---Certain rights have been guaranteed to the citizens some of which are recognized as fundamental rights--­Right to acquire, hold and dispose of property is one of the fundamental rights enshrined by Art.23 of the Constitution and guarantee for protection of the right has been provided---Such protection has been laid down under Art.24(1) of the Constitution---Acquisition process employed to deprive some one of his property is an exception visualized by the Constitution and the process has to be in consonance with conditions, parameters and manner laid down in Art.24(2) & (3) of the Constitution---State is enabled under the provisions of Land Acquisition Act, 1894, to acquire property of someone for public purpose---No one can ordinarily object to such acquisition, despite his unwillingness to lose his property and owner of such property can only ask for compensation---If property of any person is being taken over to serve the public purpose and interest, such person is to be given adequate, fair, just and due compensation--­Property to be acquired in a particular case may be the only source of income or the acquisition may render the owner shelterless ---Court being guardian of fundamental rights of citizens has to keep all such factors in mind while dealing with the cases of such nature and ensure award of due and fair compensation to the landowner.

(c) Land Acquisition Act (I of 1894)---

---S. 18---Higher rate of compensation--­Proof of---Burden to prove---Scope--­Burden of proving entitlement to higher rate of compensation is on the landowner.

Government of Sindh and 2 others v. Muhammad Usman and 2 others 1984 C LC 3406 ref.

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

----Ss. 18, 23 & 28---Stamp Act (II of 1899), S.27-A---Acquisition of land--­Compensation, fixation of---Valuation Table notified by District Collector under S.27-A of Stamp Act, 1899---Compulsory acquisition charges and compound interest, entitlement to---Landowners were not satisfied with the compensation fixed by the Authorities and the matter was referred to Court---Compensation was enhanced by the Court but the landowners were even not satisfied with the compensation fixed by the Court---No evidence had been produced by the Authorities and the evidence produced by the landowners was also inadequate, scanty and deficient in many respects and the Court proceeded to fix the rate of compensation on his assessment of the matter---Plea raised by the landowners was that the Court had not properly determined the value of the land and compulsory acquisition charges and compound interest from tile date of possession till-date of final payment of decretal amount had not been given---Validity---No solid, concrete and cogent evidence except the oral testimony as to probable value of the land was available in this behalf---Material on record had established that the surroundings of the land were growing fast and were acquiring urban colour, therefore, neither the Authorities nor the Court had assessed the rate of compensation justly and fairly---High Court relied on the valuation table notified by the District Collector under S.27-A of Stamp Act, 1899, and fixed the value of the land according to the table, as it was official assessment of the value of land situated in different localities of the District which could furnish adequate , basis for fair value---Judgment and decree passed by the Acquisition Judge was modified to the extent that the compensation payable to the landowners would be according to the rate mentioned in the Valuation Table and the landowners were also entitled to recover 15 % compulsory acquisition charges and 8% compound interest from the date of possession till the date of payment of the deeretal amount---Appeal was allowed accordingly.

Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Market Committee, Kanganpur through Administrator v. Rayyat Ali and others 1991 SCMR 572; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Maqbool Ahmed Fatchally and others v. The Collector, District Lasbella and others 1992 SCMR 2342; Land Acquisition Collector, Rawalpindi and others v. Dina and others 1999 SCMR 1615; Murad Khan through his widow and 13 others v. Land Acquisition Collector and another 1999 SCMR 1647; Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others 2000 SCMR 1322; Fazal Haq College through Vice-Chairman v. Said Rasan and others PLD 2003 SC 480; C.P.L.A. No.963-L of 2002; Land Acquisition Collector (PWD), B&R, Central Region, Lahore and others v. Messrs Rana Motors Ltd., Lahore and others 1988 SCMR 1880; Punjab Province v. Umar Daraz and others 1988 MLD 1900 and Federation of Pakistan and others v. Shafique Ahmad Khan and others NLR 1994 Rev. 23 ref.

Jehanzeb Khan Bharwana for Appellants.

Respondent No. l in person.

Dates of hearing: 22nd, 26th and 27th May, 2003.

2004 Y L R 616

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

ABDULLAH---Petitioner

versus

JAWARIA ASLAM and 2 others---Respondents

Writ Petition No.9916 of 2003, decided on 14th July, 2003.

(a) West Pakistan Family Court Act (XXXV of 1964)-----

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.l99---Constitutional petition--­Suit for maintenance by minors against grandfather---Family Court dismissed suit, but same was decreed by Appellate Court--­Contention of grandfather was that he was not bound to maintain minors as they were in easy circumstance ---Validity--­Grandfather had failed to bring on record documentary or strong evidence in support of such plea---Record showed that grandfather was a man of means and could easily maintain minors---Grandfather was bound by law to maintain minor children of his deceased son, who were also legal heirs in property owned by him---Law does not leave minors unprotected to be swayed in cruel circumstances---Minors had no means for their survival---Appellate Court had rightly reversed judgment-decree of Family Court---High Court dismissed Constitutional petition in limine.

Muhammadan Law by Mulla, S.370 rel.

(b) Islamic Law---

---- Maintenance of minor children--­Liability of father and grandfather--­Scope---Even if the custody of minor is with mother, father or grandfather is bound to maintain sons, until they attain age of puberty and daughters; until they are married---Father or grandfather not bound to maintain adult sons, unless disabled by infirmity or disease.

Muhammadan Law by Mulla, S.370 fol.

Qazi Khurshid Alam for Petitioner.

2004 Y L R 626

[Lahore]

Before Muhammad Akhtar Shabbir, J

SARDAR MUHAMMAD ---Petitioner

versus

Mst. HASMAT BIBI alias HASMATEE and 3 others---Respondents

Writ Petition No.24204 of 1999, decided on 7th October, 2003.

Arbitration Act (X of 1940)---

---- Ss. 14, 17 & 30---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition----Award, setting aside of --Plea of fraud and misrepresentation---Application under S.12(2), C. P.C. ---Maintainability--­Predecessor-in-interest of respondents admitted the award in the Trial Court and the award was made rule of the Court--­After death of their predecessor-in-interest, respondents assailed the award on the plea of fraud and misrepresentation--­Application under S.12(2), C. P. C. filed by the respondents was dismissed by the Trial Court but Lower Appellate Court, in exercise of revisional jurisdiction, allowed the application and the award was set aside---Validity---Where award was obtained by fraud or misrepresentation, the parties affected thereby could challenge the same by application under Ss.30 or 33 of Arbitration Act, 1940 but application under S.12 (2), C. P. C. was not maintainable to challenge such award---Lower Appellate Court failed to attend such legal aspect of the case and had exceeded jurisdiction vested in it---Judgment passed by the Lower Appellate Court was illegal and the same was set aside---Petition was allowed accordingly.

Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39 and Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197 ref.

Masood Abid Naqvi for Petitioner.

Malik Abdul Sattar Chughtai for Respondents.

2004 Y L R 629

[Lahore]

Before Tanvir Bashir Ansari, J

Raja BASHARAT HUSSAIN and 3 others---Petitioners

versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and

3 others---Respondents

Writ Petition No.2524 of 2002, decided on 23rd July, 2003.

(a) Land Acquisition Act (I of 1894)---

----Ss. 4 & 17---Capital Development Authority Ordinance (XXIII of 1960), S.12(5)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­ Acquisition of land in capital area by Army Welfare Trust for establishing housing scheme---Trust had obtained 60% land from landowners through private negotiations--­ Trust after lapse of original notification had issued fresh successive notifications to acquire remaining land not purchased earlier privately---No delay in acquisition proceedings, which could defeat or demolish acquisition process itself--­ Mention of only one village in "No­ Objection Certificate" would make no difference---No-objection certificate issued by C.D.A. was in respect of whole scheme, which would cover all or any acquisition of land forming part and parcel of development scheme as a whole--­ Description of purpose in original notification as "defence purpose" and in later notifications as establishment of Housing Scheme for Army Personnel were not conflicting---Both purposes aimed at promotion of general welfare of defence personnel---Judicial notice could be taken of acute shortage of accommodation and rehabilitation facility for beneficiaries of Trust---High Court dismissed Constitutional petition.

Divisional Engineer (Dev.), N-II T&T v. Rana Muhammad Sharif 2002 CLC 985; The Murree Brewery Co. Ltd. v. Pakistan and 2 others PLD 1972 SC 279; Sub. (Retd.) Muhammad Ashraf v. D.C., Jhelum and others PLD 2002 SC 706; Raja Muhammad Amer and 14 others v. Province of the Punjab and 2 others PLD 1985 Lah. 355; Messrs U.C.C. Private Limited v. D.C., Lahore 1999 MLD 1186 and Liaquat Rasheed and 3 others v. The Commissioner, Lahore Division 1993 CLC 558 ref.

(b) Land Acquisition Act (I of 1894)---

----S.4---Acquisition proceedings ---Delay--­Only unexplained and unaccounted for delay would adversely affect such proceedings---No premium could be put on default of Acquisition Authority itself.

(c) Land Acquisition Act (I of 1894)---

----S. 4---Capital Development Authority Ordinance (XXIII of 1960), S.12(5)--­Acquisition of land---No-Objection Certificate from Capital Development Authority not covering entire land sought to be acquired by Acquiring Agency--­Validi4---Not obligatory for Acquiring Agency under S.12(5) of Capital Development Authority Ordinance, 1960 to obtain 'No-Objection Certificate' from C.D.A. for every piece of land proposed to be acquired through notification from time to time, if aggregate of land was required for same comprehensive scheme.

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

----S. 4---Acquisition of land---Public purpose---Essence of public purpose is a matter, which is within exclusive domain of Acquiring Agency.

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

----Ss. 3(e) & 4---Army Welfare Trust--­Such Trust fell within definition of a "company "---Land could be acquired for a public purpose having nexus with such Trust.

Ibad-ur-Rehman Lodhi forPetitioners.

Malik Nobahar Ali for Respondent No. 1.

Ch. Mushtaq Ahmad Khan and Raja Inam Ameen Minhas for Respondents Nos.2, 3 and 4.

Date of hearing: 26th May, 2003

2004 Y L R 634

[Lahore]

Before Sayed Sakhi Hussain Bokhari, J

MUHAMMAD ASLAM and others---Petitioners

versus

FAISAL NADEEM and others---Respondents

Civil Revision No.824 of 2003, decided on 13th June, 2003.

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

----S. 8---Suit for possession---Claim of plaintiffs was that suit property belonged to their father and defendants were residing therein as servants of their father and that said property was transferred in favour of plaintiffs by their father---Subsequently when defendants were no more servants of father of plaintiff, they were asked to vacate suit property, but they failed to vacate same despite some time was given to them for this purpose---Defendants resisted suit contending that father of plaintiffs 70/80 years back had gifted away the suit property to father of defendants and that they being successors of their father, were owners of the suit property- Claim of plaintiffs in respect of suit property had fully been proved on the basis of evidence brought on record whereas defendants had failed to prove their claim---Suit was concurrently decreed by Courts below--appeal filed by defendants against judgment and decree of Trial Court was barred by time and defendants could riot give cogent reasons for condonation of delay despite several adjournments were granted by the appellate Court---Application for condonation of delay was rightly dismissed by Appellate Court---Revision petition against judgment of Appellate Court was also time-barred and defendants had filed application under S.5 of Limitation Act, 1908 for condonation of delay but S.5 of Limitation Act, 1908 being not applicable to the proceedings under S.115, C. P. C. , application for condonation of delay, was rightly dismissed---Appellate Court decided appeal after appraisal of entire material available on record---In absence of any misreading or non-reading of evidence and any jurisdictional defect, concurrent find­ings of Courts below could not be interfered with by High Court in exercise of its revisional jurisdiction.

Sher Muhammad v. Said Muhammad Shah 1981 SCMR 212; Muhammad Ramzan and 4 'others- v. Settlement Authorities and 2 others 1981 SCMR 194 and Jhanda, v. Maqbool Hussain and others 1981 SCMR 126 ref.

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

----S. 115---Limitation Act (IX of 1908), S.5---Revision---Limitation---Provision of S.5, Limitation Act, 1908 not applicable to revision petition under S.115, C. P. C.

Dr. Muhammad Akmal Saleemi for Petitioners.

2004 Y L R 637

[Lahore]

Before Ch. Ijaz Ahmad, J

KARIM BAKHSH and another‑‑‑Petitioners

versus

Mst. ZULEKHAN‑‑‑Respondent

Civil Revision No.370‑D of 2003, decided on 22nd July, 2003.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 4‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan (1973), Arts.2‑A & 203‑D(1‑A) (2)‑‑‑Suit for declaration‑‑‑Succession‑‑‑After death of original owner of suit‑land, mutation of property left by deceased was sanctioned in favour of his two sons (plaintiffs) and a daughter of deceased daughter of original owner who died 40/45 years prior to death of original owner‑‑‑Claim of plaintiffs/sons of deceased owner was that deceased daughter of original owner/sister of plaintiffs was not entitled to inherent property of the deceased original owner and had challenged said mutation‑‑‑Contention of plaintiffs was that S.4 of Muslim Family Laws Ordinance, 1961 whereby children of predeceased son and daughter of deceased original owner were held entitled to receive share from property of original owner, having been declared un‑Islamic by Federal Shariat Court, defendant, who was daughter of the deceased daughter of original owner, could not get the disputed share‑‑‑Validity‑‑‑Judgment of Federal Shariat Court which had been challenged before Supreme Court, would be suspended automatically till the decision of appeal filed before Supreme Court in view of Art.203‑D(1‑A) (2) of Constitution of Pakistan (1973) and S.4 of Muslim Family Laws Ordinance, 1961 would remain in field till disposal of said appeal by the Supreme Court‑‑‑Mutation in dispute was sanctioned prior to the judgment of Federal Shariat Court whereby S.4 of Muslim Family Laws Ordinance, 1961 was declared against Injunctions of Islam‑‑‑Judgment of Federal Shariat Court had prospective effect‑‑‑Defendant being granddaughter of original owner of property, was entitled to get share equal to share of her deceased mother in view of S.4 of Muslim Family Laws Ordinance, 1961 which at the relevant time was in force‑‑‑Suit filed by plaintiffs was rightly dismissed concurrently by Courts below.

Allah Rakha and others v. Federation of Pakistan PLD 2000 FSC : Fazeelat Jan and others v. Sikandar through his Legal Heirs PLD 2003 SC 475; Muhammad Yusuf v. Chief Settlement Commissioner and others PLD 1968 SC 101; Chief Land Commissioner and others v. Ch. Atta Muhammad Bajwa and others 1991 SCMR 736; Muhammad Sharif and others v. Nawab Ali and others 2002 CLC 285; Hakam Ali's case PLD 1992 SC 595; Muhammad Ramzan's case 2001 CLC 158; Kamal Khan alias Kamala v. Zainab Bibi PLD 1983 Lah. 546; Ibrahim and 3 others v. Nehmat Bi and others PLD 1988 Lah. 186; Mst. Iqbal Mai and others v. Falak Sher and others PLD 1986 SC 228; Asghar Ali v. Siraj‑ullah Khan alias Shaji‑ullah 1993 CLC 545; Ashfaq‑ur‑Rehman v. Ch. Muhammad Afzal PLD 1971 SC 766 and John E. Brown‑lee v. Vivian Mac Millan AIR 1940 PC (sic) ref.

Syed Aon Hussain Shah for Petitioners.

2004 Y L R 641

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. YASMIN BIBI---Petitioner

Versus

MEHMOOD AKHTER and 2 others---Respondents

Writ Petition No. 1471 of 2003, heard on 11th July, 2003.

(a) Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minor---Remarriage by mother---Effect--­Separation of spouses took place through agreement, whereby minor was to remain with mother and to be maintained by father; but in case of remarriage by mother, minor was liable to be returned to father---Father claimed custody of minor on remarriage by mother---Mother's plea was that separating minor from her and maternal grandmother would not be in welfare of minor; that on failure of father to pay maintenance to minor, she had obtained decree, which was yet to be executed---Trial Court dismissed petition, but Appellate Court accepted the same observing that decretal amount had been paid as per agreement ---Validity--­Minor had to file suit for recovery of maintenance, which had been contested tooth and nail by father---Father had failed to provide maintenance to minor as stipulated in agreement, thus, he was not entitled to return of minor---Rules of personal law would be subservient to welfare of minor---Mere remarriage by mother would not result in handing over of custody of minor to father, when same was not otherwise in welfare of minor---Father had also remarried---Nothing on record was available to show that minor was not being brought up by mother properly---No allegation or evidence on record to show that minor was not keeping good health--­Record showed that minor was studying in school---Minor was being looked after by maternal grandmother also---High Court allowed Constitutional petition and set aside impugned judgment while declaring same to be without lawful authority.

Firdaus Iqbal v. Shafaat Ali and others 2000 SCMR 838 fol.

(b) Islamic Law---

----Custody of minor---Remarriage by mother---Effect---Mere fact of remarriage by mother would not ipso facto result in handing over of custody of minor to father, when same was not otherwise in welfare of minor.

(c) Islamic Law---

----Custody of minor---Rules of personal law would be subservient to welfare of minor.

Malik Shehzad Ahmad and Sh. Ahsan-ud-Din for Petitioner.

Sh. Kamran Shehzad Siddiqui for Respondent No. 1.

Date of hearing: 11th July, 2003.

2004 Y L R 647

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD LATEEF---Appellant

Versus

Mst. PARVEEN AKHTAR through Legal Heirs and 5 others---Respondents

Second Appeal from Order No.35 of 2001 heard on 11th September, 2003.

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

----S. 13---Second appeal---Bona fide personal need of landlady---Death of landlady---Abatement of ejectment petition---Sons of landlady, despite being educated, did not have any job or business---Sons of landlady were neither owners nor in possession of any other shop in the concerned urban area---Eviction order passed by Rent Controller was maintained by the Lower Appellate Court--­Contention of the tenant was that the ejectment petition should have been abated after the death of landlady ---Validity--­Petition could not abate as the same was on the ground of bona fide personal requirement ---Eviction order passed by both the Courts below was maintained---Second appeal was dismissed in circumstances.

Haji Muhammad Siddique v. District Judge 1990 SCMR 997 ref.

Zafar Iqbal Chaudhary for Appellant.

Saeed Yousaf Khan for Respondents.

Date of hearing: 11th September, 2003.

2004 Y L R 650

[Lahore]

Before Ch. Ijaz Ahmad, J

SABIR HUSSAIN SHAH---Petitioner

Versus

MUHAMMAD SADIQ and 18 others---Respondents

Writ Petition No. 13920 of 2003, decided on 7th October, 2003.

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

---Art. 199---Constitutional jurisdiction of High Court---Scope---Substituting findings of Tribunals below---High Court has no jurisdiction to substitute its own findings in place of findings of Tribunals below while exercising powers under Art.199 of the Constitution.

Musaddaq Naseem's case PLD 1973 Lah. 600 and Syed Azmat Ali's case PLD 1964 SC 260 ref.

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

----S. 5---Delay, condonation of---Powers of Appellate Authority---Scope---Duty and obligation of the party seeking condonation of delay is to explain delay of each day--­Appellate Court, while exercising power under the law, has lawful authority to examine the case qua condonation of delay granted by the lower Authority---If the lower Authority has condoned the delay without applying its independent mind, then the higher Authority is well within its right to reverse the order---In order to be entitled for the condonation of delay, within parameter of law, each day's delay has to be explained by the party who seeks condonation of delay.

Ch. Muhammad Sharif's case 1975 SCMR 259 and Abdur Rehman Saithi's case 2000 SCMR 1197 ref.

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

----Arts. 189 & 190---Judgment of Supreme Court is binding on each and every organ of the State.

(d) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 10---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition—Consolidation scheme---Time-barred appeal---Petitioner assailed the scheme 12 years after its implementation---Collector condoned the delay and allowed the appeal---Order of the Collector was set aside by the Appellate Authority on the ground that the delay was condoned in violation of law laid down by Supreme Court---Order of the Appellate Authority was maintained by the Board of Revenue--­Validity---Both the forums below had rightly set aside the order passed by the Collector---Petition was dismissed in circumstances.

Ch. Muhammad Munir Badr for Petitioner.

2004 Y L R 652

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

FATIMA BIBI---Petitioner

Versus

DISTRICT & SESSIONS JUDGE, MANDI BAHA-UD-DIN and 2 others---Respondents

Writ Petition No. 14172 of 2003, decided on 10th October, 2003.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Death of mother of the minor---Custody of minor—­Welfare of minor---Determination--­Maternal grandmother of the minor claimed the custody on the ground that since death of the mother of the minor, he was living with her---Maternal grandmother of the minor had six children and she had contracted second marriage---Father of the minor was from Zamindar family, he had no other child and had a young sister who could look after the minor properly---Both the Courts below had decided the matter in favour of the father---Validity---Paramount consideration in determining custody of minor was his welfare---Father, in circumstances, was capable of maintaining the minor in a better manner and thus being real father of the minor and natural guardian could not die deprived of the custody of his minor son---Judgments and decrees passed by both the Courts below did not suffer from any illegality or infirmity---Petition was dismissed in limine.

Ch. M. Lehrasib Khan Gondal for Petitioner.

2004 Y L R 655

[Lahore]

Before Maulvi Anwarul Haq, J

ISRAR AHMAD --- Petitioner

Versus

GHAFOOR KHAN---Respondent

Civil Revision No.510/D of 1997, heard on 23rd September, 2003.

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

----S.13---Pre-emption right, exercise of--­Talb-I-Muwathibat--- Proof--- Non-produc­tion of informer of the sale ---Pre-emptor had pleaded and proved that the information of the disputed sale was received in presence of the witnesses and Talb-i-Muwathibat was made in presence of the witnesses ---Pre-emptor had produced the witnesses of Talb-i-Muwathibat before the Trial Court but informer of the sale was not produced as witness---Both the Courts below had dismissed the suit, on the ground that the informer was not produced as witness---Validity---Non production of the informer was not fatal---Both the Courts below had acted with material irregularity in exercise of their respective jurisdiction while deciding the issue related to fulfilling the requirement of Talb against the pre­emptor ---Judgments and decrees passed by both the Courts below were set aside and the suit was decreed in favour of the pre­emptor.

Abdul Malik v. Muhammad Latif 1999 SCMR 717 rel.

S.M. Ayub Bokhari for Petitioner.

Malik M. Nasim Khan for Respondent.

Date of hearing: 23rd September, 2003.

2004 Y L R 657

[Lahore]

Before Syed Zahid Hussain, J

CHIEF ADMINISTRATOR OF AUQAF, PUNJAB, LAHORE---Appellant

Versus

NIZAMUL HAQ and 2 others---Respondents

First Appeal form Order No.284 of 1999, heard on 15th October, 2003.

Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 7 & 11---Notification under S.7 of Punjab Waqf Properties Ordinance, 1979--­Status of property---Disputed property was held to be privately owned property in the notification---Such finding was based on a judgment of Civil Court passed on 13-8-1934---Appellant assailed the notification on the ground that his name was mentioned in Jamabandi of 1988-1989---Validity---Dispute pertaining to Dargah had been resolved by the Civil Court in the year 1934---No convincing evidence was produced by the appellant to discredit the claim of respondent as to private nature of the property in dispute--­Mere mention in Jamabandi was of no use in presence of the judgment and decree of the Civil Court on the subject---No error or illegality had been committed by the Trial Court in placing reliance upon such piece of evidence and recording findings accordingly---High Court declined to interfere with the judgment passed by the Court below---Appeal was, dismissed in circumstances.

Mumtaz Hussain v. Chief Administrator, Auqaf Department, Lahore PLD 1976 Lah. 1511 and Muhammad Ishaq v. Chief Administrator, of Auqaf, Punjab PLD 1977 SC 639 ref.

Aurangzeb Ch. for Appellant.

Nauman Qureshi for Respondent No. 1.

Dates of hearing: 7th and 15th October, 2003.

2004 Y L R 659

[Lahore]

Before M. Javed Buttar, Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

TANVIR ASHRAF---Appellant

Versus

Ch. RIASAT ALI and 5 others---Respondents

Intra-Court Appeal No. 828 of 2002, heard on 9th July, 2003.

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

-----S. 99(1) (cc) --- Qanun-e-Shahadat (10 of 1984), Art. 92---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Election of National Assembly--­Acceptance of nomination papers of appellant--Respondent's plea was that appellant was not B.A. as his result card was forged ---High Court accepted Constitutional petition after finding result card as forged on basis of comments of University and on examination of original record; and that no degree was issued in favour of appellant---Validity---Award list and notification of examination containing appellant's name and roll number showing him to have passed B.A. Examination were found to exist on original record---Original Detailed Marks Certificates, produced by appellant also related to same roll number---Presumption of regularity was attached to such documents---Very strong or at least tangible reliable material was required to condemn such documents---In absence of tangible evidence, stance of University that award list and notification were bogus, was not sustainable---Ex parte inquiry and conclusion drawn by University could not be, pressed to the detriment of appellant, who had not been heard---Award list and notification having been signed by Controller of Examination would amount to his approval---University had taken more than 12, years to issue notification declaring degree bogus--­Appellant for such delay, could neither be blamed nor any adverse conclusion be drawn against him---Issuing degree was responsibility of University, which recognized result card as substitute for degree---Result card was based on notification---No decision/order of University was sown, whereby award list, notification or result card had been declared any forged documents---Such was not a case of substituting opinion or finding of domestic Tribunal like University, rather same involved examination of adequacy of material to arrive at adverse conclusion against appellant---High Court accepted appeal and set aside impugned judgment with observations that University would be at liberty to hold regular inquiry in regard to genuineness of disputed documents after affording opportunity of hearing and defence to appellant.

Muhammad Ramzan v. Deputy Commissioner, Attock and another PLD 1992 Lah. 322 and Mushtaq Ahmed v. University of the Punjab 2001 CLC 1631 ref.

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

----Art.92---Presumption as to genuineness of documents kept under law---Evidence to rebut such presumption---Original Award List and Notification of Examination produced by University---Validity--­Presumption of regularity was attached to such documents---Very strong or at least tangible reliable material was required to condemn such documents.

(c) Educational institution---

----Notification of examination---Delay caused by institution in issuing such notification---Effect---Such delay could hardly establish that notification of examination .was forged---Student could neither be blamed nor any adverse conclusion be drawn against him for such delay--Delay' in issuing notification or even non-issuance of degree to student could at worst raise a-suspicion; but could not be said to be proof of fact of forgery.

Samar Pervaiz v. Board of Intermediate and. Secondary Education, Lahore and another PLD 1971 SC 838 fol.

(d) Educational institution---

---Award List and notification of examination---Institution held such documents as bogus without conducting any formal inquiry and associating concerned student with it ---Validity--­Conclusion arrived at in such fact-finding inquiry would not be "absolute" or `final".

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

----Art.2(1)(c)(4)---Evidence---Proof of .a fact---Conjectures and suspicion could not take the place of proof of a fact--­Tribunal's decision must rest not on sus­picion, but upon legal grounds established by legal evidence.

Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838 and Samiuddin v. Collector of Customs PLD 1989 SC 335 fol.

(f) Natural justice, principles of---

----Inquiry by domestic Tribunals, like University--Principles .of natural justice-­Applicability---Adverse conclusion drawn by domestic Tribunal against a person in ex parte inquiry---Validity---Ex parte inquiry and conclusion drawn by domestic Tribunal like University, cannot be pressed to the detriment of concerned person---For arriving at a finding- adverse to some person, not only cogent evidence' is required, but also affected person has to be confronted with material sought to be used against him to fulfil the duty of "adequate disclosure "---Such person is entitled to opportunity of defence to rebut such material to satisfy requirement of principles of natural justice and fairness to obey the command of Art.4 of the Constitution---Domestic Tribunals like University are not absolved of such duty at least in those cases, wherein a factual dispute is involved.

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

----S.14(1)(5-A) & 99(1)(cc) --- Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3--Constitutional petition 'against acceptance of nomination papers---Maintainability---Petitioner alleged that respondent was not qualified to contest, election as his B.A. Result Card was forged---High Court decided .Constitutional petition on basis of comments of University and examination of relevant register---Validity---Disputed questions of fact such as genuineness of award list, notification of examination and result card could not be determined in summary Constitutional jurisdiction on basis of comments of. University, or even examination of original register---For adjudication of such controversy, initial proper forum was Returning Officer, before whom no such objection had been raised--­Other forum was Election Tribunal by filing election petition by aggrieved person, where parties were allowed to lead evidence and thereafter findings were recorded---Full Bench of High Court allowed intra-Court appeal and- set aside impugned judgment.

Nawabzada Mir Balach Khan Marri v. Mir Mohabat Khan Marri and 4 others PLD 2003 Quetta 42 ref.

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

----S.14(1)(5-A)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Maintainability---Right of elector to challenge nomination of candidate at pre­-election stage---Scope---Elector is not an aggrieved person " to maintain Constitutional petition against acceptance of nomination papers---Remedy of writ of quo warranto would be available to elector after completion of process of election against returned candidate---Pre-election challenge to nomination of candidate by elector is neither a civil right nor a right founded on the Constitution.---Such right is creature of statute and its exercise is to be regulated by statute, which created same--­Elector at pre-election stage cannot be permitted to interrupt process of election by way of Constitutional petition except as provided by Representation 7of.the People Act, 1976---Principles.

Najaf Abbas Sial v. Kh. Hassan Wali Khan, Additional District Judge/Returning Officer PP-83, Rang 2003 CLC 1068; N.P. Pannuswami v. The Returning Officer; Namakhal Constituency AIR 1952 SC 64 and Sri Subrata Chatterjee's case AIR 1983 Cal. 436 rel.

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

----S.3---Constitution of Pakistan (1973), Art. 199---Jurisdiction of Division Bench of High Court while hearing intra-Court appeal---Scope---Division Bench exercises same jurisdiction, which vested in Single Bench of High Court---Such jurisdiction is discretionary in nature.

(j) Natural justice, principles of---

----Findings of domestic Tribunal should be based on some tangible material---If an adverse conclusion is to be drawn against a person, then he is entitled to clear himself by an opportunity of hearing.

(k) Constitution of Pakistan (1973)--

----Art.199---Interference by High court in exercise of Constitutional jurisdiction--­Scope---If such interference results in an unjust consequence, then judicial restraint is warranted---If non-interference results in an unjust consequence, then discretionary jurisdiction cannot be withheld.

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

----S.14 (1) (5-A)---Disqualification of candidate--Proof --Election dispute is not to be treated as a lis inter parties as same involves entire constituency---Electorate is entitled to insist on to be represented only by a duly qualified person--Will of majority in favour of returned candidate is to be respected and same cannot be over­ruled on suspicion and conjectures--­Disqualification of a candidate requires strict proof.

Khan Muhammad Yusaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 fol.

Azmat Saeed for Appellant.

Dr. Khalid Ranjha for Respondent No. 1.

Dr. A. Basit for Respondents No.5.

Aitzaz Ahsan and Syed Faisal Hussain Naqvi for Respondent No.6.

Date of hearing: 9th July, 2003.

2004 Y L R 679

[Lahore]

Before Muhammad Akhtar Shabbir, J

MANZOOR AHMAD alias MANZOOR HUSSAIN ---Petitioner

Versus

MUHAMMAD AYUB ---Respondent

Civil Revision No.978 of 2003, heard on 14th November, 2003.

Specific Relief Act (I of 1877)---

----S.9---Suit for possession---Claim of plaintiff was that defendant had forcibly occupied share of property of plaintiff by demolishing wall of Ahata separating his share and that defendant after constructing a wall, included share of plaintiff into his own share and possession in absence of the 'plaintiff---Trial Court after recording and appreciating evidence of the parties decreed the suit and such finding of Trial Court was affirmed by Appellate Court---Plaintiff by producing sufficient' and convincing evidence on record had fully proved that defendant had forcibly occupied portion of Ihata in question---Concurrent findings of fact of Courts below based on sufficient and convincing evidence on record, could not be interfered with by High Court in exercise of its revisional jurisdiction, when defendant could not point out any illegality or material irregularity in the said concurrent judgments of Courts below.

Muhammad Nawaz v. Sh. Abdul Latif 1971 SCMR 198; Izhar-ud-Din v. Sardar Ahmad 1985 CLC 666; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427; Mustafa Khan v. Muhammad Khan PLD 1978 SC (AJ&K) 75; Muhammad Muzaffar Khan's case PLD 1959 SC (Pak.) 9; Muhammad Sharif v. Ghulam Hussain 1995 SCMR 514; Muhammad Afzal Khan v. Muhammad Latif 1995 CLC 1951; Syed Jamal Shah v. Abdul Qadir Shah and another PLD 1995 Pesh. 26; Guldar Khan v. Isa Khan 1993 SCMR 2099; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Hakeem v. Habib Ullah 1997 SCMR 1139 and Abdul Qayyum v. Mushkle-i-Alam 2001 SCMR 798 ref.

Ch. Atta Ullah for Petitioner.

Syed Zahid Hussain Shah for Respondent.

Date of hearing: 14th November, 2003.

2004 Y L R 681

[Lahore]

Before Syed Zahid Hussain, J

DIN MUHAMMAD and 4 others---Petitioners

Versus

MEMBER BOARD OF REVENUE PUNJAB, LAHORE and others---Respondents

Writ Petition No.65-R of 2000, heard on 2nd July, 2003.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.3(1)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­"Available property "---Cancellation of allotment---Orders on the basis whereof cancellation of the land from the predecessor-in-interest of the vendor was claimed having been declared as of no legal effect by the Supreme Court, the allotment of land and the sale thereof in favour of the purchaser for consideration remained in­ tact---Land in question being not "available property ", tenants thereof could not have any right to lay claim to the' said land as "available property'; nor could they have any locus standi for invoking jurisdiction of High Court under Art. 199 of the Constitution.

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

----Arts.189 & 190---Determination and deposition made by the Supreme Court can neither be bypassed nor the verity and validity thereof be examined by High Court as the same has binding force and effect under Arts. 189 & 190 of the Constitution--­Right duly recognized by the judgment of the Supreme Court has to be given effect.

Maqbool Elahi Malik for Petitioners.

Ahmad Awais for Respondents Nos. 1 to 3.

S. M. Nasim for Respondent No.4.

Date of hearing: 2nd July, 2003.

2004 Y L R 684

[Lahore]

Before Muhammad Akhtar Shabbir, J

MAHMOOD ELAHI PARACHA---Petitioner

Versus

DEPUTY DISTRICT OFFICER (REVENUE) and another---Respondents

Writ Petition No. 6243 of 2003, heard on 4th November, 2003.

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

----S.9---West Pakistan Land Revenue Act (XVII of 1967), Preamble---Colonization of Government Lands (Punjab) Act (V of 1912), Preamble---Registration Act (XVI of 1908), Ss. 34, 58, 59 & 60---Genuineness or otherwise of registered documents--­Adjudication---Forum---Where presumption of truth was attached to the registered documents under Ss. 58 to 60 of Registration Act, 1908, adjudication with regard to the genuineness or otherwise of such documents could be made by a Court of competent jurisdiction and that was the Civil Court under S. 9, C. P. C. ---No provision existed in West Pakistan Land Revenue Act, 1967 which had empowered a Revenue Officer to inquire into such-like matters---Even Colonization of Government Lands (Punjab) Act, 1912 had not empowered the Revenue Officer to take cognizance of the matter--­Sale-deed registered by Sub-Registrar under Registration Act, 1908 could be challenged through a civil suit as Civil Court was competent to declare whether it was a forged and fabricated document--­Procedure had been provided in S.34 of the Registration Act, 1908 to make an enquiry before registration by Sub­-Registrar.

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

----Ss.154 & 156---Power of police to register a case/F.I.R. and right of police to investigate cognizable crime---Scope--­Police Officer is empowered to register a case/F.I.R. on a complaint with, regard to commission of a cognizable offence--­Provisions of S.154, Cr. P. C. had contemplated that every information relating to the commission of a cognizable offence, if given orally to an Officer Incharge of a Police Station, would be reduced to writing by him or under his direction and be read over to the informant---Any or every such information, whether given in writing or reduced to writing, would be signed by the person giving it and substance thereof would be entered in a book to be kept by such officer in such form as provided by the Provincial Government---Police, under S.156, Cr. P. C. had the statutory right to investigate the circumstances of the alleged cognizable crime without any permission from the judicial authorities and such statutory right could not be interfered with by judiciary.

Muhammad Shafi v. Deputy Superintendent of Police, Narowal and 5 others PLD 1992 Lah. 178 and Muhammad Azam v. Saee Muhammad and others 2000 SCMR 774 ref.

Sh. Naveed Shaharyar for Petitioner.

Malik Noor Muhammad Awan for Respondent No.2.

Date of hearing: 4th November, 2003.

2004 Y L R 690

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD AJAID- --Petitioner

Versus

MUGHAL HUSSAIN and 2 others---Respondents

Civil Revision No.5-D of 1997, heard on 19th June, 2003.

(a) Islamic Law---

----Gift---Essentials-'-Declaration of gift by donor; acceptance of gift, express or implied, by or on behalf of donee; and delivery of possession of subject of gift by donor to donee.

Muhammadan Law, Sec. 149 rel.

(b) Islamic Law---

--- Gift---Marz-ul-Maut---Donee alleged oral gift in his favour by donor followed after two months by acknowledgment deed executed on 27-4-1984 in presence of witnesses ---Donee or his witnesses did not allege date, time and place of declaration of gift by donor---Acknowledgement deed did not find mention that possession had been delivered to donee two months prior to its execution---No documentary proof of delivery of possession---Such deed was not entered in Rapt Roznamcha---Gift mutation contained statement that same was in accordance with acknowledgement deed---Donee's case was not that gift had been made through acknowledgement deed---Mere production of scribe and marginal witnesses of such deed, thus would not absolve donee to prove valid gift in his favour---Donee had not denied entry in death certificate of donor showing his death on 15-7-1984 due to Cancer in 85 years of age---Donor at time of execution of acknowledgment deed was suffering from a disease in which patient always remains under immediate apprehension of death--­No valid gift in favour of donee by donor had been proved in circumstances.

Shamshad Ali Shah and others v. Hassan Shah PLD 1964 SC 143; Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28; Noor Muhammad Khan and 2 others v. Habibullah Khan and 27 others PLD 1994 SC 650; Muhammadan Law by D.F. Mulla, Sec.135 and Hakim Muhammad Buta and others v. Habib Ahmad and others PLD 1985 SC 153 ref.

Muhammadan Law, Sec. 149 fol.

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

----Art.79---Document required by law to be attested---Proof of execution---Such document would not be used in evidence, unless at least two attesting witnesses, if alive and subject to process of Court and capable of giving evidence, had been called to prove its execution.

(d) Islamic Law---

----Gift--Writing riot essential to validity of gift of movable or immovable property.

Muhammadan Law, Sec.147 rel.

(e) Words and phrases---

---- "Acknowledgement "---Meaning.

Black's Law Dictionary; Chamber's English Dictionary and Concise Oxford Dictionary ref.

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

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration--­Limitation---Gift mutation was attested on 29-10-1984---Collector dismissed appeal on 11-6-1985---Plaintiff on 15-5-1991 filed suit challenging validity of gift mutation--­Held, suit was within time under Art. 120 of Limitation Act, 1908.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 and Hakim Khan v. Aurangzeb and another 1979 SCMR 625 distinguished.

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

----Ss. 39 & 42--Limitation Act (IX of 1908), Arts. 120 & 91---Acknowledgment of gift---Suit for declaration---Limitation--: Plaintiff did not seek - cancellation of acknowledgement deed, but sought declaration under S.42 of Specific Relief Act, 1877---Held, Art. 91 of Limitation Act, 1908 would have no nexus with such case--­Suit filed by plaintiff within six years under Art. 120 of the Act would be within time.

Mujeeb-ur-Rehman Kiani for Petitioner.

Ch. Munir Akhtar for Respondents.

Date of hearing: 19th June, 2003.

2004 Y L R 698

[Lahore]

Before Nasim Sikandar, J

Dr. LIAQUAT ALI and others---Appellants

Versus

Mst. SHAKILA FATIMA alias RANI---Respondent

Second Appeals from Order Nos. 181 to 183 of 2000, decided on 7th July, 2003.

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

----S.13---Default in payment of rent--­Tenant admitted landlady as co-owner of shop, but asserted that its rent was being collected with her consent by other co­-owner---Rent Controller treated such assertion of tenant as denial of tenancy and framed issue with regard to relationship of landlord and tenant between parties---Rent Controller accepted ejectment petition, which judgment was upheld by Appellate Court ---Validity--­Denial of relationship was qualified as tenant wanted to state that ejectment petition was not maintainable for there was no default on his part---Landlady during trial had admitted receipt of her share of rent through other co-owner ---Collection of rent by one co-owner on behalf of other co-owners had, thus, established---No default on part of tenant---Rent Controller in view of pleadings of parties ought to have framed issue of default in payment of rent instead of denial of relationship between parties---High Court accepted appeal and set aside judgments of Courts below.

Haji Abbullah Jan. v. Anwar Khan PLD 2000 SC 787 rel.

Muhammad Sarwar Awan for Appellants.

Muhammad Rafique Warraich for Respondent No. 1.

Date of hearing: 23rd May, 2003.

2004 Y L R 700

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Mst. MUMTAZ BIBI---Petitioner

Versus

SAIF ULLAH and others---Respondents

Writ Petition No. 7094 of 2003, heard on 24th July, 2003.

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

----S.5 & Sched., Item 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for jactitation of marriage by the lady, claiming that she was the legally-wedded wife of "G" with whom she had solemnized registered Nikah and sought a declaration to restrain the defendant "S" to claim her as his wife---Plaintiff lady had herself appeared as witness in support of her version and stated that her angry father registered a criminal case against her husband "G" after the date of Nikah while prior to the Nikah she was living with her father who wanted to sell her and she left the house one week before the Nikah planned by her father---Lady also produced witnesses to support her stance ---Validity--­Both the Courts below being influenced by the criminal case pending against the lady and her husband had not read the evidence properly---Criminal prosecution could not affect the adjudication of a civil matter--­Family Court, being a Civil Court had to decide the case on material issues, in accordance with the evidence on record--Both the Courts below had not applied their judicial mind rather discussed the criminal case registered against the lady/petitioner and had not read the evidence on record which was trustworthy and material witnesses to Nikah were produced and cross-examined by the counsel of the defendant and nothing existed on record to -disbelieve them ---Nikah Registrar had admitted that he had signed the Nikahnama---Lady/petitioner having successfully proved her case that she was the legally-wedded wife of "G" as she was sui juris and had given her free consent and Nikah was a registered one---High Court, while setting aside the judgments and decrees passed by the Courts below decreed the suit for jactitation of marriage of the petitioner with "G".

Ms. Shaista Kaisar for Petitioner.

Rab Nawaz Khan Niazi for Respondent No. 1.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 24th July, 2003.

2004 Y L R 707

[Lahore]

Before Farrukh Latif, J

MUHAMMAD AJMAL and others ---Appellants

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Civil Revision No.296 of 2001, decided on 10th October, 2003.

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

-----Art.199---Constitutional petition--­Principle of constructive res judicata--­Applicability---Said principle is as much applicable to Constitutional jurisdiction as in civil suit.

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

----O.VII, R.11 & S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of plaint---Principle of res judicata---Applicability ---Subject­-matter of suit was the same which had already been decided by High Court in Constitutional petition, even relief sought in the suit was also the same---Trial Court returned the plaint to the plaintiffs but Appellate Court rejected the same under O. VII, R.11; C. P. C. ---Validity--Since matter to be considered in the civil suit had already been considered by High Court while deciding Constitutional petition, subsequent civil suit was barred on the principle of constructive res judicata and the plaint was rightly rejected by the Appellate Court---Order passed by Appellate Court not suffering from any jurisdictional infirmity, the same was not open to interference in revisional jurisdiction.

Pakistan Steel Mills Corporation (Pvt.) Ltd. v. Muhammad Ashiq and another 1995 CLC 1000 distinguished.

Rafique Ahmed Malik for Petitioners.

Tariq Murtaza Khan Malezai for Respondents Nos.1 to 3.

Abdul Aziz Khan Jaskani for Respondents Nos. 4 to 6.

Date of hearing: 25th September, 2003.

2004 Y L R 709

[Lahore]

Before Ch. Ijaz Ahmad, J

AMIRULLAH KHAN and another---Appellants

Versus

MUHAMMAD AKRAM---Respondent

Regular Second Appeal No.108 of 1999, heard on 23rd September, 2003.

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

----Ss.8 & 53-A---Registration Act (XVI of 1908), Ss. 49 & 60---Transfer of Property Act (IV of 1882), S.54---Qanun-e-Shahadat (10 of 1984), Arts.17(2) (a) & 79---Suit for possession---Plaintiff's- claim was based on registered sale-deed, which was tendered in evidence, but was not proved to be forged and fictitious---Defendant claiming property on basis of unregistered sale-deed executed by original owner did not produce same or attesting witnesses thereof in evidence--­Receipts qua consideration paid by defendant neither contained signatures of original owner nor same were proved by calling attesting witnesses thereof Defendant did not bring on record any documentary evidence worth consideration as compared to plaintiff, who had tendered registered sale-deed---Trial Court as well as Appellate Court while ignoring sale-deed in favour of defendant decreed the suit--­Defendant on failing to prove having taken possession of property on basis of any title executed by original owner, was not entitled to take benefit, of S.53-A of Transfer of Property Act, 1882---High Court dismissed second appeal fled by defendant.

Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772; Fazla v. Mehr Din and 2 others 1997 SCMR 837; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR1821; Wali Muhammad's case 1998 SCMR 964; Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; Amirzada Khan and others v. Ahmad Noor and others PLD 2003 SC 410; Muhammad Shafi and another v. Allah Daad Khan PLD 1986 SC 519;. Qazi Muhammad Saqib Khan's case 2003 MLD 131; Tahir Hussain Malik's case 1995 SCMR 1407 and Mirza Muhammad Sharif's case 1993 SCMR 461 ref.

(b) Practice and procedure---

----Plaintiff has to prove his case independently and cannot get benefits of shortcomings of defendant.

Qazi Muhammad Saqib Khan's case 2003 MLD 131 fol.

(c) Registration Act (XVI of 1908)---

----Ss.17, 49 & 50---Transfer of Property Act (IV of 1882), S.54---Registered sale­deed---Would have always precedence and preference over prior unregistered document.

Tahir Hussain Malik's case 1995 SCMR 1407 fol.

(d) Registration Act (XVI of 1908)---

----Ss.49 & 60---Registered document--­Evidentiary, value---Sanctity is attached to registered document---Strong evidence is required to cast aspersion on its genuineness.

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

----S.115---Concurrent findings of fact--­Interference by High Court in revisional jurisdiction---Principles.

Interference in concurrent findings on facts can be made by High Court only when the evidence is misread and evidence is based on surmises and conjectures or based on inadmissible evidence or there existed an error or defect in the procedure, which may possibly have introduced an error or defect in the decision on merits.

Musarrat Sultana's case 1997 SCMR 1866 fol.

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

----S.53-A---Benefit of S.53-A of Transfer of Property Act, 1882 cannot be taken in absence of any document.

Tariq Masud for Appellants.

Malik Noor M. Awan for Respondent.

Date of hearing: 23rd September, 2003.

2004 Y L R 716

[Lahore]

Before Abdul Shakoor Paracha, J

Dr. ISHTIAQ HUSSAIN and another---Petitioners

Versus

SPECIAL JUDGE ANTI-CORRUPTION (PROVINCIAL), RAWALPINDI DIVISION, RAWALPINDI and 3 others---Respondents

Criminal Miscellaneous No.25-Q of 2003, decided on 22nd May, 2003.

(a) Punjab Anti-Corruption Establishment Rules, 1985---

----R.12---Criminal Procedure Code (V of 1898), S.197---Pakistan Criminal Law Amendment Act (XL of 1958), S.6(5)--­Sanction from Competent Authority for taking cognizance against a public servant---Provisions of S.197, Cr. P. C. and of S.6(5) of Pakistan Criminal Law Amendment Act, 1958 having been declared being repugnant to Injunctions of Islam, said provisions of law would cease to have any effect---Sanction for prosecution under S.197, Cr. P. C. or S. 6(5) of Pakistan Criminal Law Amendment Act, 1958 or under R.12 of Punjab Anti-Corruption Establishment Rules, 1985, from Competent Authority for taking cognizance against public servant, was not mandatory prerequisites.

Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC 72; Malik. Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref.

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

----Ss.468/471---West Pakistan Anti-­Corruption Establishment Ordinance (XX of 1961), Ss. 2 (1) (i), 3, 6 & 8---Punjab Anti-­Corruption Establishment Rules, 1985, Rr.6, 8 & 12---Constitution of Pakistan (1973), Arts.4 & 25---Equal protection of law---Scheduled offences---Term law', meaning of---Offences under Ss.468 & 471, P. P. C. were scheduled offences---Under Arts.4 & 25 of the Constitution to enjoy protection of law and to be treated in accordance with law, was the inalienable right of every citizen wherever he might be and that all citizens were equal before law and were entitled to equal protection of law---Termlaw' mentioned in Arts.4 & 25 of the Constitution would mean Acts, Ordinances, Rules and Regulations which were enacted for citizens---Special Law of Anti-Corruption made for public servants, which had provided mechanism for registration of case and investigation, would have preference over the general law---Contention that provision of West Pakistan Anti-Corruption Ordinance, 1961, were in addition to and not in derogation of any other law for the time being in force and thus case could be registered in terms of S.154, Cr.P.C. at local Police, was not sustainable under law---When law had prescribed a particular manner and procedure in which things were required to be done, same must be done in that way and not otherwise at all---Local Police had neither jurisdiction nor powers to investigate case in respect of scheduled offence committed by public servants.

Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge Gujranwala and 3 others 1992 MLD 311; Riaz Ahmad Tahir v. The State and others PLJ 1996 Criminal Cases Lahore, 80; Saleem Hussain v. The State PLJ 1996 Criminal Cases Lahore 916; Muhammad Sharif v. S.H.O. Police Station City Hafiz Abad and another PLD 1997 Lah. 692; Bashir Ahmad v. The State 2002 MLD 746; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101 and M. Latif's case 1981 SCMR 1101 ref.

(c) Administration of justice---

----When law had prescribed a particular manner and procedure in which things were required to be done, same must be done in that way and not otherwise.

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

----Ss.195 (1) (c) & 561-A---Penal Code (XLV of 1860), Ss.420, 468, 471 & 167--­Prosecution of public servant---Authority to institute complaint---Quashing of proceedings---General law was that any person irrespective of fact whether he was aggrieved or not and his interest was involved or not, having knowledge about commission of an offence, could bring law in motion, but provisions contained in Ss. 195 to 198, Cr. P. C. contained exceptions to said general rule from taking cognizance of offences, unless functionary concerned instituted a complaint---Only public Authority concerned and Court had the right to file a complaint under provisions of S.195, Cr. P. C. and unless there was a complaint by Authority or the Court, Court could not take its cognizance---Only a public servant or Court concerned were competent to file such complaint which could not be filed by private person in respect of any of offences mentioned in S.195, Cr. P. C. and in case such complaints were instituted, "Court concerned" could take cognizance---Since petitioner/accused, who had allegedly committed a scheduled offence, was a public servant and police concerned had no authority to register and investigate the case and order of registration of case was coram non judice, and without jurisdiction, Special Judge Anti-Corruption could not have taken cognizance under S.195(1)(c), Cr.P.C.--­Proceedings before Trial Court being without due process of law, were quashed, in circumstances.

Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904; Bashir Ahmad v. The State 2002 MLD 746; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; Mashood Ali v. The State 1990 PCr.LJ 1997 and Nga Pan Gaing and others v. King-Emperor AIR 1927 Rang. 61 ref.

Muhammad Arshad Tabraiz for Petitioners.

Ch. Muhammad Waris Khan for Respondents.

Muhammad Saeed Akram Raja, A.A.-G.

2004 Y L R 722

[Lahore]

Before Ch. Ijaz Ahmad, J

JAMIA SHEIKH-UL-ISLAM (REGISTERED) through Maulana Sher Muhammad Salvi ---Petitioner

Versus

CHIEF ADMINISTRATOR AUQAF PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No. 14956 of 2003, decided on 24-10-2003.

Punjab Waqf Properties Ordinance (IV of 1979)---

---- Ss. 7 & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Notification for taking over Waqf property---Petitioner had challenged the vires of Notification issued by Chief Administrator, Auqaf alleging that said Notification was issued mala fide and without jurisdiction under influence of some persons---Validity---Petitioner admittedly had alternative remedy under S.11 of Punjab Waqf Properties Ordinance, 1979 to file petition before District Judge concerned; in view of availability of said alternative remedy, Constitutional petition by petitioner was not maintainable.

Syed Muhammad Ali Shah Bokhari v. Chief Administrator Auqaf 1972 SCMR 297; Muhammad Ismail's case PLD 1996 SC 246; Mst. Shamim Akhtar's case 1993 MLD 713 and. Evacuee Trust Property Board's case 1994 CLC 939 ref.

Muhammad Aslam Riaz for Petitioner.

Muhammad Hanif Khattana, Addl.A.-G.,(on Court's call).

2004 Y L R 724

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs MULTI PHARMA (PVT.) LTD. through Director---Petitioner

Versus

SECRETARY, CENTRAL LICENSING AND REGISTRATION BOARD, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD and another---Respondents

Civil Revision No. 1585 of 2002, heard on 2nd October, 2003.

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

----S.115---Revisional jurisdiction of High Court, exercise of ---Consideration of subsequent events---Scope---High Court has ample jurisdiction to look into the subsequent events at the time of deciding revision petition.

Nasir Jamal v. Zubaidah Begum 1990 CLC 1069 and Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref.

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

----S.42-Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.115---Interim injunction, grant of---Concurrent findings of fact by two Courts below---Plaintiff assailed the order passed by the Authorities whereby drugs manufacturing licence of the plaintiff was cancelled---Both the Courts below rightly exercising discretion had refused to grant interim injunction to the plaintiff---High Court in. exercise of revisional jurisdiction under S.115, C. P. C. declined to disturb the concurrent findings of fact---Orders passed by the Courts below not suffering from infirmity or illegality, revision was dismissed in circumstances.

Ghulam Hussain's case 1989 ALD 326; Amir Gull's case PLD 1992 Pesh. 76 and Shehzada Muhammad Umar Baig's case PLD 1970 SC 139 ref.

(c) Interlocutory order---

---- Observations in interim orders are always tentative in nature.

Ch. Akbar Ali Shad and Ch. Naseer A. Bhutta for Petitioner.

Mian Hameed-ud-Din Qasuri, D.A.-G. for Respondents.

Date of hearing 2nd October, 2003.

2004 Y L R 728

[Lahore]

Before Nazir Ahmad Siddiqui, J

Mian AFTAB---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3156-B of 2002, decided on 3rd December, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/148/149/337-F(iii)/337-C(i)---Bail, grant of---Further inquiry---Bail earlier eranted to accused was cancelled and since cancellation of bail he was behind the bars, but no progress at all was made in trial of case despite submission of challan--­Offensive weapon was not recovered from accused despite bringing him on physical remand with the police for considerable period---Alleged injured person had also lodged a criminal case under S. 302. P. P. C. in which he nominated other accused persons named in the F.I.R. who had been declared innocent later on---Accused though was present at the place of occurrence, but he was empty-handed and fire-arm injury was caused by the other one who had been granted bail---Role of accused and his co-accused was the same and said co-accused had already been enlarged on bail---Rule of consistency had supported the case of accused---No allegation of repetition of blow was made against the accused---No previous history of involvement of accused in such-like case existed and he was previous non-convict--­Case of accused being of further inquiry, he was granted bail.

Mian Fazal Rauf Joya for Petitioner.

Arshad Ali Chowhan for the Complainant.

Syed Hashmat Hussain for the State.

2004 Y L R 730

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Rustam Ali Malik, JJ

ABDUL HAQ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.47-J of 2002, Criminal Appeal No. 1489 and Murder Reference No.56-T of 2001, decided on 3rd June, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/324/337-F(ii)/337-F(iii)/148/149---Anti-Terrorism Act (XXVII of 1997), Ss.617---Appreciation of evidence---Mere fact that complaint was drafted by an Advocate on dictation of the complainant, could not render the complaint invalid and fact that, the Advocate who had drafted the complaint was Head of one Community, would not mean that he had attempted to give a twist to facts of the occurrence, so as to give it a colour of sectarianism---Both accused persons were named in the promptly recorded F.I.R. which was sufficient to exclude possibility of consultation, premeditation and even of false implication of accused persons--­Presence of complainant to offer fateha on the grave of his brother in the graveyard and also to attend 'Majlis' which was taking place at place of occurrence, was quite natural---Eye-witness account was furnished by four natural witnesses of occurrence, one of said witnesses was himself injured and the other witness who was also injured was of the different faith---Testimony of such witness was very crucial because it could not be believed that he would make a false statement to let off the culprits who had attempted to kill him and had seriously injured him in the process---Said witness was brother of one of the deceased and it could not be believed that he would make a false statement against persons with whom he had no previous enmity---Statements of eye­witnesses were further corroborated by statements of Medical Officers---Report of Forensic Science Laboratory in respect of weapon of offence allegedly recovered from the accused, was positive---Overwhelming evidence was on record that accused with fire-arms had indulged in indiscriminate firing on people present in Majlis on the day of occurrence as a result of which eight persons were killed---Prosecution having successfully established guilt of accused on all charges, accused were rightly convicted and sentenced---Accused having been awarded sentence of death under Ss.3021 149, P. P. C. on eight counts, awarding them sentence of death separately for offence under S.7 of Anti-Terrorism Act, 1997 also on eight counts, however, would not be justified.

Mian Muzaffar Ahmed for Appellants.

Syed Shakir Ali Rizvi for the Complainant.

Masood Sadiq Mirza for the State.

Date of hearing: 3rd June, 2003.

2004 Y L R 738

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM MURTAZA---Petitioner

Versus

Mst. MUSSARRAT MAI and 2 others---Respondents

Writ Petition No.2837 of 2003, decided on 23rd July, 2003.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Suit for recovery of dower---Family Court and Appellate Court concurrently decreed the suit on the basis of evidence on record---Concurrent findings of fact of Courts below could not be interfered with by High Court in exercise of its Constitutional jurisdiction which was discretionary in nature---High Court had no jurisdiction to substitute its own findings in place of findings of the Tribunal below.

Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279; Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; M. Musaddaq's case PLD 1973 Lah. 600; Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner and others PLD 1964 SC 260; Ashfaq-ur-­Rehman v. Ch. Muhammad Afzal PLD 1971 SC 766; John E. Brownelee v. Vivan MacMillan AIR 1940 PC 219; Liaqat Ali's case 1997 SCMR 1122; Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and Miani Sahib's case PLD 1973 SC 17 ref.

Umar Kamal Khan for Petitioner.

2004 Y L R 741

[Lahore]

Before Ch. Ijaz Ahmad and Farrukh Latif, JJ

MANAGER, AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN BUREWALA, DISTRICT VEHARI and another---Petitioners

Versus

ABDUL GHANI and 4 others---Respondents

Review Application No.18 of 2002 in Writ Petition No. 3998 of 1998, decided on 29th July, 2003.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Constitution of Pakistan (1973), Art.199---Review of order of High Court---Application for—­Constitutional petition---Applicants/Manager and Regional Manager of Bank had sought review of order passed by High Court in Constitutional petition against them---Review application had been filed by applicants after more than three years from order passed in Constitutional petition--­Evidence on record had established that applicants were not duly served in the said Constitutional petition filed against them and their service was not in accordance with mandatory provisions of law---Service of applicants in Constitutional petition filed against them having not been effected, order passed in such petition was hit by principle of natural justice---Principles of Civil Procedure Code, 1908 being applicable in Constitutional proceedings, review application filed within time from date of knowledge of order passed in Constitutional petition, was accepted and order passed against applicants in Constitutional petition by High Court was set aside with direction to fix main Constitutional petition before appropriate Bench after notice to parties.

PLD 1992 FSC 1; PLD 1992 FSC 445; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Ghulam Sarwar and another v. The State 1979 SCMR 43; Lt.-Col. Nawabzada Muhammad Ameer Khan v. The Controller of State Duty, Government of Pakistan PLD 1962 SC 335; Syed Muhammad Zaki v. Maqsood Ali Khan PLD 1976 SC 308; Muhammad Chottay Khan v. Muhammad Munir Khan 1990 CLC 1057; Muhammad Hussain v. Farzand Ali PLD 1976 Lah. 1173; Jalal Din and another v. Major Muhammad Akram Khan PLD 1963 Lah. 596; Messrs A.R. Bhuiyan & Co. Ltd. v. Messrs Centrotex Foreign Trading Corporation PLD 1968 Dacca 779; Mian Muhammad Atta Ullah v. D.C., Lyallpur and others PLD 1967 Lah. 1072; Muhammad Rafique v. Qamar Ali and 8 others 2003 MLD 52; Mst. Parveen Begum v. Ha bib Gul and another 1997 MLD 2473; Fazal Din and others v. Barkat Bibi PLD 1978 Lah. 1016; Mst. Shamero v. Sardaraz Khan and others PLD 2001 Pesh. 54; Municipal Committee, Pattoki v. Muhammad Anwar 1982 CLC 910; Rehman v. Hussain Bakhsh 1987 CLC 1257; Muhammad Bakhsh v. Rab Nawaz NLR 1994 AC 456; Mst. Sardaran Begum v. Muhammad Fazal 1993 CLC 2303; Dil Muhammad v. Additional District Judge 1991 MLD 2068; Hashim v. Syed Akhtar Ali Shah 1993 MLD 889; Sibat Ullah Khan v. Pirzada Noor Ullah PLD 1993 Pesh. 90; Syed Mazhar Ali Shah v. Shah Muhammad 1990 MLD 1070 and Crescent Sugar Mills v. Central Board of Revenue PLD 1982 Lah. I ref.

Mian Shakeel Akhtar Hashmi for Petitioners.

Khan Atta Ullah Khan Tareen for Respondents.

2004 Y L R 744

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD TANVIR KHALID---Petitioner

Versus

P.T.C.L. through Chairman, P.T.C.L. and 7 others---Respondents

Civil. Revision No.640 of 2003, decided on 24th July, 2003.

Civil Procedure Code (V of 1908)---

----O. IX, R.8---Second suit, maintainability of---Suit earlier filed by plaintiffs having been dismissed for non prosecution, second suit filed by plaintiff qua the same subject­matter and relief was not maintainable in view of mandatory provisions of O. IX, R. 8, C. P. C.---Both Courts below having decided case in terms of mandatory provisions of law, in absence of any infirmity and illegality, concurrent judgments, of Courts below, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Iftikhar Ibrahim Qureshi for Petitioner.

2004 Y L R 745

[Lahore]

Before Khawaja Muhammad Sharif, J

ABID JAVAID---Petitioner

Versus

MUSTAFA AHMAD alias BUDDI---Respondent

Criminal Revision No.489 of 2003, decided on 23rd June, 2003.

Criminal Procedure Code (V of 1898)---

----S.540-A---Exemption from personal appearance granted to accused---Validity--­Exemption from personal appearance had been granted to accused when he was not present before the Court---Accused was also granted bail before arrest by the Court in his absence in clear violation of S.498, Cr. P. C. ---Although accused had been summoned by the Trial Court in the complaint case, yet he never appeared before it---Impugned order passed by Trial Court was consequently set aside and the exemption of-personal appearance granted to accused was withdrawn.

2002 PCr.LJ 947 distinguished.

PLD 1983 Pesh. 155; Muhammad Saleem Babar v. The State PLD 1987 Lah.288 and Ghulam Nabi and others v. Additional District Judge and another 1983 CLC 2382 ref.

Muhammad Aslam Zia for Petitioner.

Muhammad Pervaiz Chaudhary for Respondents.

Maqbool Ahmad Qureshi for the State.

2004 Y L R 747

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

Ch. ABDUL MAJEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1511, 1355, 1391, 1393 and 1394 of 2002, decided on 10th July, 2003.

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

----S. 9 (a)(vi)/10---Appreciation of evidence---Statement of accused under S. 342, Cr. P. C. had not been recorded by the Trial Court in accordance with law and the same could not be legally considered as his statement---Conviction and sentence of accused were set aside in circumstances and the case to his extent was remanded to Trial Court 'for recording his statement under S. 342, Cr. P. C. afresh in accordance with law and after recording the defence evidence, if any, to decide his case afresh according to law.

Muhammad Nawaz alias Muhammad and 6 others v. The State 1991 PCr.LJ 156 ref.

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

----S. 423---Powers of Appellate Court--­Partial remand of case---Appellate Court can make an order for retrial of a particular accused from a particular stage in proceedings of a case and it is not obliged to make order for retrial of the case as a whole.

Muhammad Nawaz alias Muhammad and 6 others v. The State 1991 PCr.LJ 156 ref.

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

----S.9---Mens rea, existence of---In order to convict a person on the criminal charge, it is essential to prove the existence of mens Tea and it is not appropriate to convict him on the basis of mere presumptions---Criminal liability can be determined after adverting to the fact as to what extent a particular person is liable on account of his acts or omissions and whether the same entail criminal liability.

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

----S. 9(a)(vi)/10---Appreciation of evi­dence ---Prosecution witnesses could not point out any instance of misfeasance, malfeasance, misappropriation, embezzle­ment, dishonesty or corruption with reference to any of the accused who were not even named in the complaint--­Prosecution was unable to prove any specific act or omission on the part of accused or the existence of mens rea in their part---Conviction against the accused could not be recorded on the basis of mere presumptions or on account of the company they kept, as every one was accountable only for his own acts and deeds---Accused were acquitted in circumstances.

The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567; State Bank of Pakistan v. Messrs Salman Associates (Pvt.) Ltd., Karachi 1992 MLD 142; Abdul Muhammad Khan v. Mahananda Upadhyaya AIR 1931 Pat. 293 and Muzaffar Ali Shah and others v. Registrar, Cooperative Societies, Karachi and another PLD 1968 Kar. 422 ref.

M.A. Malik for Appellant.

Waqar Hassan Mir for the State.

Date of hearing: 18th June, 2003.

2004 Y L R 762

[Lahore]

Before M. Naeemullah Khan Sherwani, J

NAEEM TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3454/B of 2003, decided on 11th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-F(i)/337-F(ii)/337-H(ii)/334/ 148/109---Bail, grant of---Three Investigating Officers after through investigation had reached the conclusion that although accused was present at the spot, yet he had not fired any shot at the injured victim---Excessive and unwarranted delay of eleven days in lodging the F.I.R. was not reasonably or plausibly explained---Prosecution witnesses had made variant statements--Allegations against the accused called for further probe---Accused was admitted to bail in circumstances.

Shaukat Rafique Bajwa for Petitioner.

Syed Saeed Ahmed Timizi for the State.

2004 Y L R 764

[Lahore]

Before Ch. Ijaz Ahmad, J

WAQAS HAMEED---Petitioner

Versus

ISLAMABAD ELECTRIC SUPPLY COMPANY LIMITED and 2 others---Respondents

Criminal Revision No. 1313 of 2003, decided on 11th July, 2003.

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

----S. 20(c), Expln. II & O. VII, R. 10--­Return of plaint---Invitation of tenders, submission of tenders and acceptance of plaintiff's bid were taken place at place "R "---Defendant- Corporation was situated at place "R", where construction work was carried out---Notice to terminate contract and blacklist plaintiff's firm was received at place "G"---Plaint in suit instituted at place `G" was returned by Trial Court, which order was upheld by Appellate Court--­Validity---Defendant being a statutory Corporation would fall within provisions of Expln. II of S. 20(c), C. P. C.---Corporation could be sued elsewhere apart from its principal office only if part of cause of action arose at such place and had also subordinate office at such place---All transactions between the parties including construction work had been concluded at place "R", except termination notice, which had been received by plaintiff at place "G "---Defendant had no sub-office at place "G"---High Court dismissed revision petition.

Hitachi Limited and others v. Rupali Polyester 1998 SCMR 1618; Provincial Industrial Development Corporation v. Sh. Muhammad Amin & Co. PLD 1975 Kar. 707; Messrs Gharibwal Cement v. Messrs Universal Traders PLD 1977 Lah.481; Ch. Muhammad Yasin v. Ch. Abdul Aziz PLD 1993 SC 395; Mian Ghulam Bari v. WAPDA 1991 MLD 313; Hakam Singh v. Messrs Ganmon (India) Ltd. AIR 1971 SC 740; Bhola Nath Aggarwal and another v. The Empire of India Life Assurance Co. Ltd. AIR 1948 Lah.56; Messrs Rehmania Trading Company v. Messrs Eagle Star Insurance Company Ltd. PLD 1960 SC 202; S.M. Abdullah & Sons v. Burewala Textile Mils Ltd. 1988 MLD 1; WAPDA and others v. Mian Ghulam Bari PLD 1991 SC 780; Registered Firm Sheikhan Industries, Quetta v. West Pakistan Industrial Development Corporation, Karachi PLD 1976 Quetta 94 and Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 fol.

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

----S. 20(c), Expln. II---Statutory Corporation and Corporation registered under Companies Ordinance, 1984--­Distinction---Section 20, C. P. C. makes no distinction between such two corporations.

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

----S. 20(c), Expln. II---Suing Corporation at a place other than its Principal Office--­Scope ---Corporation could be sued elsewhere apart from its principal office only if part of cause of action, arose, at such place and also if it had subordinate office there.

Registered Firm Sheikhan Industries, Quetta v. West Pakistan Industrial Development Corporation, Karachi PLD 1976 Quetta 94 and Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 rel.

Muhammad Anwar Warraich for Petitioner.

2004 Y L R 768

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IFTIKHAR ZAFAR---Petitioner

Versus

MUHAMMAD AHMED and 2 others---Respondents

Writ Petition No.10633 of 2003, decided on 24th July, 2003.

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

----Ss. 5, Sched. & 17-A (as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Constitution of Pakistan (1973), Art. 199---Constitution petition---Suit for past and future maintenance by minors--­Interim order for current maintenance--­Father denied his liability to pay maintenance on the ground that as per terms of divorce deed, minors were to remain in custody of mother and to be maintained by maternal grandfather--­Family Court directed father to pay maintenance to minors @ Rs.1,000 per head from date of filing of written statement---Contention of father was that in view of law laid down in Ghulam Fatima's case (PLD 1958 Lah. 596), he was not liable to pay maintenance to minors---- Validity--Written statement did not disclose that father had ever been anxious or had made bona fide demands for custody of minors, whether son or daughter---Not certain that children, had remained with mother against wishes of father---Family Court had passed impugned order in terms of provisions of S. 17-A of West Pakistan Family Courts Act, 1964---Judgment (PLD 1958 Lah. 596) did not bar passing of order for current maintenance by Judge, Family Court, who by all means was a Qazi and authorized by law to pass such order---Facts of the referred case were not similar to those of the present case---High Court dismissed Constitutional petition.

Mst. Ghulam Fatima v. Sheikh Muhammad Bashir PLD 1958 (W.P.) Lah. 596 ref.

(b) Islamic Law---

---- Maintenance of minor children--­Custody of child retained voluntarily or against wishes of father by a person not entitled to custody---Liability of father to maintain such child---Scope---Father not liable to maintain a child separately, if latter keeps away or is kept away by someone not entitled to custody, from his house without his consent---Father is bound to maintain an indigent child himself, but not through another, unless so directed by the Qazi or Court---Child already being voluntarily maintained by another does not stand in need of food, cloth or lodging, thus, cannot require father to pay maintenance---Person maintaining child of another voluntarily without reference to his father is ,not entitled to claim his maintenance from father---Where father is entitled to custody of minor son under personal law, then he cannot be forced to pay maintenance for him, if his wife/ex-wife retains his custody against his wishes---If father establishes that he had all along been anxious and made bona fide demands for custody of minor child, whose legal guardianship under personal law vested in him, then he can well defeat application for grant of maintenance of his child.

Kachi Muhaidia Tharaganar v. Sainambu Ammal and others AIR 1941 Mad. 582; Dinsab Kasimsab v. Muhammad Hussen Dinsab and another AIR 1945 Bom. 390 and 1943 Bom. LR 823 fol.

A.K. Dogar for Petitioner.

2004 Y L R 775

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUR RASHID through Legal Heirs and others---Petitioners

Versus

AYUB KHAN---Respondent

Civil Revisions Nos.449 and 450 of 1996 heard on 21st July, 2003.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr. 24 & 33---Oaths Act (X of 1873), Ss. 8 & 12---Appeal---Oath--­Failure to make oath ---Procedure---Non­compliance---Effect---Parties agreed to decision of appeals on basis of statements to be made on oath on Holy Qur'an by named persons---Parties failed to produce such persons on date fixed for recording their statements, over which Appellate Court proceeded to dismiss petitioner's appeal and allowed respondent's appeal--­Validity---In case of refusal of a party or witness to make oath/affirmation, duty of Court was to record nature of proposed oath/affirmation, the fact he was asked whether he would make oath; and that he refused the same together with any reason assigned for refusal---Appellate Court had not made attempt to enquire whether such persons agreed to take oath---Appellate Court had proceeded in contravention of provisions of S.12 of Oaths Act, 1873--­High Court accepted revision petitions and set aside impugned judgments/decrees, resultantly appeals filed by parties would be deemed to be pending before Appellate Court, who would decide same on merits in the light of evidence on record.

Syed Zulifqar Ali Bukhari for Petitioners.

Zahid Nawaz Cheema for Respondents.

Date of hearing: 21st July, 2003.

2004 Y L R 778

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

ABDUL REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.128-J of 1998 and Murder Reference No.122 of 1999, heard on 17th June, 2003.

Penal Code (XLV of 1860)---

---S.302(a)(b)---Appreciation of evidence--­Accused did not deny the occurrence--­Date, time and place of occurrence were also not in dispute---Accused had admitted that he had fired at the deceased with gun---Evidence on record had established that deceased had expired as a result of injuries sustained by him during the occurrence---Ocular account furnished by prosecution witnesses, could not be shaken despite they were subjected to lengthy cross-examination---Statements of prosecution witnesses were corroborated by medical evidence---Parties were very closely related to each other and accused was also living in the same house--Admitted fact was that deceased had admonished accused for quarrelling with .female member of family on her refusal to wash clothes of the accused---Accused in heat of the moment, picked up gun and fired at the deceased which proved fatal--­Accused was not alleged to have repeated shot at the deceased---Occurrence had taken place in heat of moment, after deceased had an altercation with accused--­Accused had fired solitary shot at the deceased---Said fact had provided sufficient mitigating circumstance for awarding lesser punishment to the accused---Conviction of accused was converted from S.302(a), P. P. C. to S. 302 (b), P. P. C. and sentence of death awarded to accused by Trial Court was reduced into life imprisonment accordingly.

2004 Y L R 782

[Lahore]

Before Maulvi Anwarul Haq, J

Haji MUHAMMAD IJAZ---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence and others---Respondents

Writ Petition No.25 of 2003, heard on 30th June, 2003.

Cantonments Act (II of 1924)---

----Ss. 13-A, 14, 15-E & 37(2)--­Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Constitution of Varied Board in place of Board constituted under S. 13-A of Cantonments Act, 1924--­Period of Varied Board was extended by issuing successive notifications, which ultimately expired on 5-11-2002--­Authority upon expiry of such period, refused to requisition Special Board Meeting in terms of S.37(2) of the Act--­Contention of petitioners was that constitution of Varied Board was without any reason; and that upon expiry of such period, Board constituted under S.13-A of the Act stood restored automatically--­Validity ---Authority had opted to act under S. 14(1)(b) of the Act---Such provisions envisaged satisfaction of Government as to reasons as to why same was desirable to Varied Board for administration of Cantonment---Nothing in such notifications had been brought on record to show as to how Government was satisfied that such extraordinary measure was required to be taken---Nothing on record to enable High Court to adjudge that Government was satisfied on touchstone of criteria laid down by Supreme Court in Syed Saeed Hassan's case (PLD 1976 SC 6)-­Constitution of another Board after bifurcating existing Board to meet administrative problems was not a reason sufficient to Varied Board as process of de­limitation and then elections were duly laid down in the Act itself---Section 15-E of the Act provided that notwithstanding expiry of terms of members, they would continue to function as members till election or nomination of their successors under S.13-A(5) of the Act---High Court allowed Constitutional petition, declared notifications Varied Board and extending term thereof to be without lawful authority and set aside same, resultantly all decisions taken or orders made by members of Varied Board except payment of salary to staff and utility bills would stand void unless ratified by specified date by Board constituted under S. 13-A of the Act.

Ghulam Habib Rana and another v. Pakistan and others 1996 CLC 293; 1997 SCMR 1; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another PLD 1992 SC 646 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

Razzaq A. Mirza for Petitioners.

Nemo for Respondent No. 1.

Waqar-ul-Haq Sheikh for Respondents Nos.2 and 3.

Date of hearing: 30th June 2003.

2004 Y L R 789(2)

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ALI BHUTTA---Petitioner

Versus

MUHAMMAD AZAM KHOKHAR and another---Respondents

Criminal Revision No. 84 of 1997, heard on 3rd July, 2003.

Civil Procedure Code (V of 1908)---

----O. IX, Rr. 6 & 13---Ex parte decree, setting aside of---Order of ex parte proceedings passed On a date, when suit was neither fixed nor called for hearing, but only part heard application was fixed--­Validity---Trial Court had no jurisdiction to proceed against defendant ex parte on such date---Ex parte decree emanating from such void ex parte proceedings would be wholly void, without lawful authority and liable to be set aside.

Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949 and Habib Ismail Bajva v. Kh. Ghulam Mohy­-ud-Din PLD 1970 Lah. 428 ref.

Muhammad Munir Paracha for Petitioner.

Zamir Hussain for Respondent, No. 1.

Nemo for Respondent No.2.

Date of hearing; 3rd July, 2003.

2004 Y L R 793

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUNIS and another---Petitioners

Versus

MEMBER (JUDICIAL), BOARD OF REVENUE, PUNJAB and 2 others---Respondents

Writ Petition No.1114 of 2003, heard on 4th July, 2003.

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

----S. 135---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Application for partition---Respondents expressed their consent to partition of joint land, over which Revenue Officer devised and sanctioned mode of partition--­Collector dismissed appeal filed by respondent, but E.D.O. (R) accepted their revision petition---Board of Revenue dismissed revision filed by petitioner--­Validity---Board of Revenue had proceeded on assumption that since respondents or their vendors were in possession of joint land, thus, they could not be disturbed--­Such findings were against the spirit of law and principles governing partition of joint land---Such was not a case of confirmation of private partition, rather Revenue Officer had been called upon to partition joint land---Neither question of title had been raised nor private partition had been alleged and proved---Entire land was in self-cultivation of parties, who had purchased same according to their shares in joint Khata in column of ownership, but not in column of possession---Regarding classification of land, there was no objection---High Court declared judgment to be without lawful authority and set aside the same, resultantly order of Revenue Officer being in accordance with shares of co-owners in joint land would stand restored.

(b) Co-sharer---

----Joint land---Partition---Each and every co-sharer would be deemed to be owner and also in possession of every inch of joint land till such time, same is partitioned by metes and bounds---Actual possession over joint land would matter little, when land comes to partition.

Mahmood ul Hassan Awan for Petitioners.

Syed Iftikhar Ali Shah for Respondents.

Date of hearing: 4h July, 2003.

2004 Y L R 796

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD YOUNUS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.767 of 2003, heard on 17th September, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/324/148/149/337-A(ii)/337-­F(ii)---Juvenile Justice System Ordinance (XXII of 2000), S.7--- Trial of accused under 18 years of age---Jurisdiction of Court---Accused, who claimed to be under 18 years of age filed application for his separate trial under Juvenile Justice System Ordinance, 2000---Trial Court accepting application of accused directed S. H. O. to submit a separate challan against accused under Juvenile Justice System Ordinance, 2000---Validity---Accused by producing his Birth Certificate of concerned Union Council and School Leaving Certificate had proved that his age was less than 18 years at the relevant time--­Complainant, who alleged that accused was above 18 years of age, had contended that medical examination of accused was necessary to determine age of accused as contemplated by S.7 of Juvenile Justice System Ordinance, 2000---Contention of complainant was repelled on the ground that a genuine Birth Certificate duly recorded in Birth Register of Union Council would have preference over all other modes of evidence for determining age of a person---Ossification test of a person could only give a clue as to his age, but could not be a conclusive proof thereof and said exercise had to be resorted to only when there was no other proof---Birth Certificate and School Leaving Certificate produced by accused in proof of his age to be below 18 years had been proved to be genuine and complainant had failed to produce any document to prove that accused was above 18 years of age at the time of occurrence--­Finding of Trial Court was based on proper appreciation of evidence qua age of accused and order whereby Trial Court had directed S. H. O. to submit a separate challan against accused under Juvenile Justice System, 2000, did not suffer from any legal error warranting interference of High Court in exercise of its revisional jurisdiction.

Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633 ref.

Maqbool Ahmed Bhatti Petitioner.

Tasawar Hussain Qureshi for Respondents.

Ghulam Asghar for the State.

Date of hearing: 17th September, 2003.

2004 Y L R 798

[Lahore]

Before Khawaja Muhammad Sharif, J

MUKHTAR AHMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 964 of 2003, heard on 21st July, 2003.

Penal Code (XLV of 1860)---

----Ss. 216/149 & 148---Anti-Terrorism Act (XXVII of 1997), S. 7(i)---Appreciation of evidence---Occurrence had started at 3 a.m., in the night but no source of light was mentioned in the F.I.R. for identification of accused---Accused were not known to the raiding party prior to the occurrence and no identification parade was held after their arrest---Nothing incriminating was recovered from the accused---None of the accused had received a single scratch on his body although three co-accused had been killed in the police encounter--­Accused, according to prosecution, were present on the roof top of the house while the police party was on the ground, identification of accused in the absence of any source of light in such circumstances was highly doubtful-Accused were acquitted in circumstances.

Ch. Muhammad Javed Ghani for Appellants.

Bashir Ahmad Gill for the State.

Date of hearing: 21st July, 2003.

2004 Y L R 801

[Lahore]

Before Ch. Ijaz Ahmad, J

NAZIA SAYED---Petitioner

Versus

DISTRICT EDUCATION OFFICER, OKARA and 2 others---Respondents

Writ Petition No.3207 of 2003, decided on 15th December, 2003.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact---High Court has no jurisdiction to resolve such question in exercise of Constitutional jurisdiction.

Muhammad Younas Khan's case 1993 SCMR 618 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Findings of Tribunal below---High Court has no jurisdiction to substitute its own findings in place of findings of Tribunal below.

M. Musaddaq's case PLD 1973 Lah. 600 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Re-evaluation of marks secured by candidates in interview held by Authority---High Court had no jurisdiction to make such exercise in Constitutional jurisdiction.

Salma Afroze's case PLD 1992 SC 263 rel.

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

----Art. 199---Constitutional petition--­Maintainability---Failure of petitioner to point out impugned action to be violative of rules and regulations of Authority would render Constitutional petition non-­maintainable.

Ali Mir's case 1984 SCMR 433 rel.

(e) Mala fide---

---- Allegations of mala fide, if general in nature, would not be sustainable in eyes of law.

Saeed Ahmed Khan's case PLD 1974 SC 151 and Aman Ullah's case PLD 1990 SC 1992 rel.

Mian Saeed-ud-Din for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents Nos. 1 and 2.

2004 Y L R 803

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASLAM---Petitioner

Versus

BALDIA NOOR PUR THAL through Administrator and another---Respondents

Criminal Revision No. 1554 of 2003, decided on 9th December, 2003.

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

----O. XXVI, R. 9---Issuance of commission for demarcation at site---Dispute between parties related to encroachment at site--­Courts below, after appraising evidence on record, dismissed the suit---Validity---Lands of both parties were adjacent to each other---No evidence on record except vagus assertions of witnesses regarding encroachment by plaintiff--Courts below had not adverted to their jurisdiction to have disputed properties demarcated in order to set controversy between the parties at rest for all times to come---Provisions of O.XXVI, R. 9, C.P.C. had escaped from the notice of Courts below---Such was the only solution for doing complete justice between the parties---If plaintiff had really encroached upon land of defendant, then mere disposal of suit would not serve purpose, but same would amount to giving a dagger in hand of defendant to do whatever he wished by violation of law--­Impugned judgments and decrees were suffering from material illegality and irregularity---High Court accepted revision petition, set aside impugned judgments and decrees and remitted case back to Trial Court with a direction to appoint revenue expert Local Commission to demarcate both properties and decide suit afresh on basis of evidence already recorded and the demarcation report.

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

---O. XXVI, R. 9---Issuance of commission for local investigation--Scope---Court may issue such commission for purpose of elucidating any matter in dispute---Court can exercise such powers even suo motu without move by any party.

(c) Administration of justice---

----Court cannot sit as a silent spectator and it must use authority to resolve dispute between parties equitably.

Hafiz Khalil Ahmad for Petitioner.

Zahid Hussain Khan for Respondent No.1.

Ch. Muhammad Suleman for Respondent No.2.

2004 Y L R 807

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, J

MUHAMMAD SALEEM and 7 others---Appellants

Versus

LAND ACQUISITION COLLECTOR, NATIONAL HIGHWAY AUTHOIRTY, LAHORE---Defendant

Regular First Appeal No. 604 of 1996 and 282 of 1997, heard on 6th November, 2003.

Land Acquisition Act (I of 1894)---

----S. 23---Civil Procedure Code (V of 1908), O. XX, R. 5 & XLI, R. 23--­Acquisition of land---Reference to Court--­Determination of compensation on basis of "Aust Yaksala "---Failure to Referee Court to give findings on issue as to when possession of disputed land was taken over by the authority---Contention of land owners was that such findings were necessary for determination of time from which interest would be payable to them--­Validity---Impugned judgment was suffering from basic defect due to non-decision an such issue---Referee Court had illegally placed reliance on mere average sale price of one year (Aust Yaksala) while ignoring entire oral and documentary evidence on record---High Court allowed appeal, set aside impugned judgment and remanded case to Referee Court for its fresh decision after giving fresh opportunity to parties to adduce evidence.

Lal and others v. Muhammad Sharif PLD 1961 (W.P.) Lah. 47; Fazalur Rehman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32; Land Acquisition Collector, WAPDA SCARP-VI and others v. Quresh Muhammad and others 1990 MLD 2133, N. W. F. P. through Collector, Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767: Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner; Abbottabad and others 1991 SCMR 2164; Nisar Ahmed Khan and others v. Collector, Land Acquisition, Swabi and others PLD 2002 SC 25; Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCMR 1670 and Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407; Province of Punjab through Collector, District Bahawalpur v. Sheikh Hasan Ali and others NLR 1994 Revenue 146 and Province of Punjab, Lahore and another v. Shah Rasool and 3 others 1992 CLC 67 ref.

Rana Abdur Rahim Khan for Appellant.

Jehanzeb Khan Bharwana for Defendant.

Date of hearing: 6th November, 2003.

2004 Y L R 818

[Lahore]

Before Muhammad Muzammal Khan, J

Sheikh KHURSHID MEHBOOB ALAM---Petitioner

Versus

Mirza HASHIM BAIG and another---Respondents

Civil Revision No. 2284 of 2002, heard on 10th December, 2003.

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

----O. XVII, R. 3---Taking penal action under O.XVII, R. 3, C.P.C.---Scope---For taking such action, case on preceding date should have been adjourned on request of party being penalized---Where adjournment was in routine and was not at the behest or on request of a party, then penal action under O.XVII, R.3, C.P.C., could not be taken.

Syed Tasleem Ahmed Shah v. Sajawal Khan and others 1985 SCMR 585; Hadi Bakhsh v. Additional District Judge and others 1998 CLC 610; Irshad Ali and another v. Munawar Khan 2001 CLC 1899; Chanan Din v. Ghulam Haider and 8 others 2002 CLC 574; Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 and Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129 ref.

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

----O. XVII, Rr. 1 & 3---Provisions of Rr.1 & 3 of O. XVII, C.P.C.---Applicability--­where plaintiff's right to lead evidence was closed and case could not be decided on available record, Trial Court should proceed under R. 1 instead of R.3 of O.XVII, C. P. C.

Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270 and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 rel.

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

----S. 8---Suits by rival pre-emptors ---Trial Court consolidated both suits---First pre­emptor's suit was dismissed for failure to produce evidence, but during pendency of his appeal, second pre-emptor's suit was decreed and was not challenged any further by first pre-emptor---Second pre-emptor in view of decree, passed in his suit seeking dismissal of first pre-emptor's appeal filed application before Appellate Court—­Appellate Court while setting aside order of trial Court dismissing first pre-emptor's suit also dismissed second pre-emptor's application---Contention of second pre-emptor was that decree passed in his suit had attained finality for being unchallenged rendering appeal or suit of first pre-emtpor as infructuous---Validity---Both suits by rival pre-emtpors had been consolidated, which should not have been decided singly---Both rival pre-emptors had been impleaded in such cross suits---Second pre­emptor was party to suit of first pre-emptor, whose decree remained subject to scrutiny by Court---Second pre-emptor could raise such contention before Trial Court--­Appellate Court had taken a right view on application of second pre-emptor--­High Court dismissed revision petition.

Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Interference with impugned judgment was not permissible in law in absence of any illegality or irregularity committed by Court below or misreading or non-reading of file.

Shaukat Hussain Khan Baloch for Petitioner.

Malik Amjad Parvez for Respondents.

Date of hearing: 10th December, 2003.

2004 Y L R 823

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

HAMEED AKHTAR alias MAGGU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6401/B of 2003, decided on 21st November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/148/149---Bail, grant of--­Complainant party had also been challaned in cross-case and accused in cross-case were on bail---Was to be seen at the time of trial as to who was the aggressor---Two co­-accused were named in the F.I.R. but S. H. O. concerned present in the Court had stated that during investigation they were found to be innocent and their names had been placed in Column No.2 of the report under S.173, Cr. P. C. ---Case being fit for grant of bail to accused, he was admitted to bail.

Muhammad Afsar v. The State 1994 SCMR 2051 ref.

Mian Ghulam Rasool for Petitioner.

Farooq-ur-Rehman Buttar for the Complainant.

M. Saeed Warriach for the State.

Date of hearing: 21st November, 2003.

2004 Y L R 824

[Lahore]

Before Maulvi Anwarul Haq, J

ALTAF HUSSAIN SHAH and another---Petitioners

Versus

ABDUL QADEER and 2 others---Respondents

Civil Revision No. 352-D of 1998, heard on 23rd October, 2003.

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

----S. 13---Pre-emption suit ---Talb-i­-Muwathibat and Talb-i-Ishhad, proof of--­Minor variations in evidence of witnesses--­Effect---All the three witnesses were unanimous that Talbs was made eleven months before their statements were recorded---During evidence one witness stated that notice of Talb-i-Ishhad was given after 6 days, the other stated 4 days while the third witness stated 8 days---Both the Courts below dismissed the suit on the ground that there was discrepancies in the evidence---Validity---Witnesses were not expected to remember each and every date after a long time and such variations were always held to be natural for the witnesses were not to give statement as tape­recorders---Memory of each and every human being was not the same, therefore, it had been proved on record that requirements of performance of both Talbs had been fulfilled and proved---Evidence of witnesses could not, be rejected on the ground of minor variations by holding the same as discrepancies of material nature--­Variations in the statements of, the witnesses regarding issuance of notice of Talb-i-Ishhad was not relevant, once it was proved that the notice had been given in accordance with law---Both the Courts below had acted without any lawful authority in rejecting the testimony of the three witnesses---Judgments and decrees passed by both the Courts below were set aside and the suit was decreed in favour of pre-emptors---Revision was allowed in circumstances.

Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 and Haji. Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 rel.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts. 76 (a) & 77---Pre-emption suit Notice of Talb-i-Ishhad--- Proof---Producing copies of the notice as secondary evidence without permission of Trial Court ---Vendees denied receipt, of notice of Talb-i-Ishhad--- Pre­emptors produced local postman to prove delivery of the notice who stated on oath that he handed over the registered envelops to the vendees who were known to him personally---Postman also stated that he made the entry in postman book brought by him ---Vendees did not cross-examine the postman---Effect---Service of notice of Talb­i-Ishhad under registered cover A.D. stood proved on record ---Pre-emptors had proved that the vendees were in possession of the original notices---Leading of secondary evidence of the contents of document was permitted under Art. 76(a) of Qanun-e­Shahadat, 1984, while Art. 77 of the Qanun-e-Shahadat exempted a party seeking to prove a notice from serving a prior notice in its terms---Copy of the notice was admissible in evidence and the Courts below had committed error of jurisdiction in proceeding to discard the notice on the assumption that permission was required by .the pre-emptors to produce the copies of the notices---Both the Courts below had misread the evidence on record while proceeding to dismiss the suit of the pre-emptors--­Judgments and decree passed by both the Courts below were set aside and the suit was decreed in favour of the pre-emptors.

Malik Shahzad Ahmad for Petitioners.

Haji Shamas-ud-Din for Respondent.

2004 Y L R 830

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AKRAM and another ---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.967-B of 2003, decided on 10th October, 2003.

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

----S. 195(1)(c)---Prosecution for certain offences relating to documents given in evidence---Clause (c) of subsection (1) of S.195, Cr. P. C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence.

Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah. 178 ref.

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

----Ss. 497 & 195(1) (c)---Penal Code (XLV of 1860), Ss.420/468/471--- Bail --- Alleged forgery had been committed before the institution of the civil suits---Documents were bearing the dates 13-1-2003 and 21-1-2003 while the suits were filed on 21-7-2003---Section 195 (1) (c), Cr. P. C. therefore, did not apply to the case of accused which had been registered with lawful authority---Accused had not placed the original documents on the record of the civil suits despite the requirement of law and had also refused to hand over the same to the police to enable the prosecution to get the signatures thereon of the complainant and his mother compared with their admitted signatures, thus a prima facie adverse inference was to be drawn against the accused in the matter---Bail was declined to accused in circumstances.

Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 19; Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah. 178 and Anisminic Ltd. Foreign Compensation Commission (1969) 2 AC 147 ref.

Sardar M. Latif Khan Khosa for Petitioners.

M. Nadeem Akhtar Bhatti for the State.

Ms. Nahida Mahboob Elahi for the Complainant.

2004 Y L R 834(2)

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ISHAQ---Petitioner

Versus

MEMBER (COLNSOLIDATION), BOARD OF REVENUE, PUNJAB and 3

others---Respondents

Writ Petitions Nos.7525 and 9063 to 9074 of 2003, heard on 30th October, 2003.

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

----Ss.3(1) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---­Pre-emption suit---Agriculture land, status of---Determination---Suit property was converted into residential plots and the same was sold as such ---Pre-emptor contended that the property was agriculture land and claimed his superior right of pre­emption over the suit land---Revenue Authorities decreed the suit in favour of the pre-emptor and the decree was maintained by Board of Revenue---Plea raised by the vendees was that the land ceased to be agricultural property and had changed its status into urban ---Validity--­Locality/property in dispute had been supplied the facilities by Municipal Corporation and it was part of one Mohallah of the city---After inclusion of the locality in Municipal limits, Councillor had been elected---Corporation had provided electricity to the inhabitants of the area and had considered the property as urban property---Such evidence produced by the vendees was not controverted by the pre­emptor---Vendees had established their case by documentary as well as by oral evidence that the suit property at the time of sale and institution of suit was not agricultural land---Judgments and decrees passed by Revenue Authorities as well as Board of Revenue were set aside and the suit was dismissed---Constitutional petition was allowed accordingly.

Abdul Haq and 4 others v. Sardar Shah and others 1994 SCMR 1238; Nazir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Mst. Amina Begum v. Sheikh Muhammad Nazir Ahmad and another PLD 1985 SC 260 fol.

Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159; Abdul Rehman v. Haji Rashid AIR 1937 Lah. 182; Ram Lal v. Municipal Committee, Bhera and another AIR 1947 Lah. 3860; Abdul Aziz through L. Rs. v. Muhammad Hasan 1999 AC 153; Bashir Ahmad and 3 others v. Mst. Naseem Fatima and 5 others 2001 CLC 1447; Allah Bukhsh v. Illahi Bakhsh and 3 others PLD 1975 Lah. 359 ref.

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

----S.2(9) & O.XX, R.5---Judgment--­Contents---Judge should announce judgment after evaluating and appreciating evidence of parties and he should give his decision for which issues have been framed---Court should state its findings or decision with reasons upon each separate issues, unless the finding upon any one or more issues is sufficient for the decision of the suit.

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

----O.XVIII, R.18---Site inspection--­Presiding Officer, duty of---Presiding Officer himself inspected the site on his own and based his finding on such inspection--­Validity---Such inspection would mean that the Presiding Officer himself assumed the role of witness---If the Presiding Officer was a witness then he could not be a Judge and if he was a Judge then he was not a witness---Inspection could be made only in the light of the dictum laid down by High Court in the case of Dr. Syed Altaf Hussain Bukhari, reported as 1996 CLC 654--­Finding of the Presiding Officer of the Court on the basis of his own inspection was nullity in the eyes of law---Judgment based upon such finding was set aside in circumstances.

Dr. Syed Altaf Hussain Bukhari v. Siddique Ahmed Chaudhry 1996 CLC 654 fol.

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

----Art.199---Constitutional jurisdiction of High Court---Setting aside of judgment passed by Special Tribunal or Court--­Scope---High Court cannot sit as a Court of appeal and the judgment passed by Special Tribunal or Court is not amenable for interference by High Court in exercise of its Constitutional jurisdiction---Where the Special Tribunal or the Court had not attended to the legal aspect of the case, High Court in exercise of its Constitutional jurisdiction could set at naught the proceedings of the lower forums.

Mst. Amina Begum v. Sheikh Muhammad Nazir Ahmad and another PLD 1985 SC 260 rel.

Muhammad Zain-ul-Abidin for Petitioner.

Muhammad Sohail Dar, A.A.-G. for Respondents Nos. 1 to 3.

Ch. Muhammad Iqbal for Respondent No.4.

Date of hearing: 30th October, 2003.

2004 Y L R 845

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

Mst. MEHMOODA BEGUM---Appellant

Versus

Syed HASSAN SAJJAD and 2 others---Respondents

Regular First Appeals Nos. 120 and 121 of 2001, heard on 11th November, 2003.

(a) Contract Act (IX of 1872)

----S.55---Time as essence of contract--­Scope---Matter related to immovable property---Time is never to be of the essence of contract---Merely because date and time is- fixed in contract for performance; the same does not make the time essence of the contract---Rule applicable is that such contract has to be performed in a reasonable time and further intention of the parties has to be gathered from attending circumstances of the case as to whether the parties intended time to be of the essence of the contract.

Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1; Seth Essabhoy v. Saboor Ahmed PLD 1973 SC 39 and Muhammad Ramzan v. Assadullah 2000 YLR 398 rel.

(b) Practice and procedure---

----Parties cannot be allowed to prove what has not been pleaded by them.

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

---Art.113---Fact admitted need not to be proved.

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

----S.12---Contract Act (IX of 1872), S.55---Specific performance of agreement to sell---Time as essence of contract---Proof--­Owner of the suit property received part of consideration even after the date mentioned in the agreement---Suit was decreed by Trial Court in favour of the plaintiff on the ground that the time was not of the essence of the contract---Validity---Evidence on record did not suggest that the parties ever intended the time to be of the essence of the contract---Judgment and decree passed by the Trial Court was maintained by High Court in exercise of appellate jurisdiction---Appeal was dismissed in circumstances.

Abdul Hamid v. Abbas l3hai­Abdul Hussain Sodawaterwalal PLD 1962 SC 1; Seth Essabhoy v. Saboor Ahmed PLD 1973 SC 39; Muhammad Ramzan v. Assadullah 2000 YLR 398 and Ch. Shah Muhammad and 6 others v. Muhammad Ishtiaq and 5 others PLJ 2001 Lah. 462 ref.

Rana Mashood Ahmad Khan for Appellant.

Habib-ul-Wahab-ul-Kheri for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 11th November, 2003.

2004 Y L R 850

[Lahore]

Before Ch. Ijaz Ahmad, J

PIASTISCANS (PVT.) LTD. ---Petitioner

Versus

ICI PAKISTAN LIMITED---Respondent

Civil Revision No. 1250 of 2003, decided on 4th July, 2003.

Civil Procedure Code (V of 1908)---

----O.XXIX, R.1 & S.115---Qanun-e-­Shahadat (10 of 1984), Arts. 117 & 120--­Suit filed by company---Authority to file suit---Onus to prove---Resolution was passed on 1-9-1999, by Board of Directors of the company, whereby Secretary of the company was authorized to file suit---On the basis of resolution, general power of attorney was executed in favour of the Secretary and the suit was filed by the Secretary on 31-10-2000---Defendant, during trial, filed application for deciding the issue regarding authority of the Secretary to file the suit, before recording of evidence---Application was dismissed by the Trial Court---Validity---Secretary, in his examination-in-chief had stated that the general power of attorney was executed in his favour by the Competent Authority on the basis of the resolution---General power of attorney had not been revoked till date, therefore, it was not necessary by the plaintiff Company to pass/execute fresh special power of attorney with regard to file the suit---After the statement of the Secretary recorded in Trial Court, the onus had shifted to the defendant to rebut that the Secretary was not authorized by the Board of Directors through resolution dated 1-9-1999 on the basis of which the general power of attorney was executed in favour of the Secretary---Order passed by the Trial Court did not have any illegality or infirmity---Revision was dismissed in circumstances.

Zahoor Asif's case 1989 ALD 380(2) rel.

Khan Iftikhar Hussain Khan v. Messrs Ghulam Nabi Corporation PLD 1971 SC 550; Messrs Muhammad Siddique, M. Umar v. The Australasia Bank PLD 1966 SC 684; Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 381 and Millat Tractors v. Ch. Tawakallah NLR 1991 AC 432 distinguished.

Emirates Bank International Ltd. v. Super Drive-in Ltd. and others 1990 MLD 538 and Modern Cotton Ginning and Pressing Factory (Pvt.) Ltd. of Sarhari, District Sanghar, Sindh v. Eastern Federal Union Insurance Company Ltd. 1996 CLC 1064 ref.

Mirza Naseer Ahmed for Petitioner.

2004 Y L R 857

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

HAQ NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.26 and Criminal Revision No.28 of 1993, heard on 3rd July, 2003.

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

----S.302---Appreciation of evidence--­Prosecution had produced only evidence of extra judicial confession against accused which was allegedly made by accused before two prosecution witnesses---Out of said two prosecution witnesses one was real maternal uncle of the deceased whereas other one was brother-in-law of the deceased---Said persons neither, apprehended accused nor produced him before the police---Conduct of said closely related witnesses being most unnatural their evidence of extra judicial confession could not be relied upon---Parties were inimically disposed towards each other before the occurrence---One of prosecution witnesses had appeared before police after five months of the occurrence and his statement was not believed even by the Trial Court---Apparently prosecution had concocted a story to falsely implicate the accused in the case which had made prosecution story doubtful--Pistol was allegedly recovered at the instance of accused and at the time of recovery, empty cartridge was also found in the chamber of said pistol, but according to report of Forensic Science Laboratory, nothing could be opined as to whether crime empty had been fired from the pistol or not--Recovery of pistol, in circumstance, had no value---Occurrence was a blind murder as none had witnessed the same --- Investigation Officer who had recorded statements of material witnesses, arrested accused and had completed investigation, was not examined by prosecution as its witness, which too had made prosecution story doubtful---Prosecution having failed to prove its case against accused, judgment of Trial Court was set aside and accused ­was acquitted of charge preferred against him by prosecution.

Dosa v. The State PLJ 1975 Cr.C. (Lahore) 55 ref.

(b) Criminal trial---

----Extra judicial confession---Evidence of extra judicial confession was always considered to be a weak evidence as same could be easily procured.

Sarfraz Khan v. State and 2 others 1996 SCMR 188 ref.

Sardar Ahmad Khan for Appellant.

Malik Sadiq Mahmood Khurrum for the Complainant.

M. A. Farazi on behalf of A.A.-G.

Dates of hearing: 2nd and 3rd July, 2003.

2004 Y L R 863

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD FAROOQ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 113 of 2003, decided on 7th July, 2003.

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

----Art.40---Information received from accused---Admissibility---Any information received from accused, it was required to be established by prosecution that any article or other evidence discovered during investigation of the case in consequence of information supplied by accused had connected him with the crime.

Asif Jameel and others v. The State 2003 MLD 676 and Abdul Sattar v. The State PLD 1976 SC 404 ref.

Sardar Muhammad Ishaq Khan for Petitioner.

Tariq Mehmood Butt for the Complainant.

Sher Zaman Bhatti for the State.

2004 Y L R 865

[Lahore]

Before Maulvi Anwarul Haq, J

SIKANDAR KHAN and 6 others---Petitioners

Versus

MUHAMMAD NAWAZ and 2 others---Respondents

Civil Revision No. 191-D of 1999, heard on 11th November, 2003.

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

----Ss.6 & 13---Suit for pre-emption--­Making of Talbs, proof of---Plaintiff who claimed superior right of pre-emption on the ground of being an owner of adjacent property and also sharing a common passage, filed suit after performing required Talbs---Trial Court decreed the suit, but Appellate Court dismissed suit on the ground that Talbs had not been performed by the plaintiff---Witnesses produced by plaintiffs had submitted that when Patwari informed about the sale of suit-land, plaintiffs made Talbs then and there and said witnesses had also attested notice of Talb-i-Ishhad---Exact date, though had not been stated by any of the said two witnesses, but their statements were in accord with pleadings of the plaintiff--­Observation of the Appellate Court that non production of Patwari was fatal, was not justified because plaintiff had stated in the plaint that Talb was made in presence of members of Majlis and both witnesses had stated that Patwari told the plaintiff about sale in question---No need was to produce the Patwari, in circumstances--­Insistence of Appellate Court that, date and time of Talb-i-Muwathibat had not been mentioned in the plaint, and also having not been stated by the witnesses, was fatal, was misplaced because upon an overall reading of the evidence, one could get sufficient idea as to the time and manner of making of Talb-i-Muwathibat and thereafter performance of Talb-i-Ishhad which had been made within prescribed period of 14 days counting from the date of attestation of mutation itself---Appellate Court having misread evidence on record, its judgment suffered from material irregularity in exercise of its jurisdiction---Judgment and decree passed by Appellate Court below, were set aside and that of the 'Trial Court were restored by High Court in revision.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 ref.

M. Amir Butt for Petitioners.

Basharat Ullah Khan for Respondents.

Date of hearing: 11th November, 2003.

2004 Y L R 868

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. PIARI JAN---Petitioner

Versus

MUHAMMAD AFZAL and 14 others---Respondents

Civil Revision No.321-D of 1998, heard on 15th October, 2003.

Specific Relief Act (I of 1877)---

----S.42---Suit for possession of property--­Divorce---Proof ---Mutation of inheritance in the name of defendant was assailed by plaintiffs on the ground that predecessor of the parties had divorced the defendant in his lifetime---Plaintiffs relied on the record of a declaratory suit and a Constitutional petition filed by the predecessor against the defendant wherein he claimed to have divorced the defendant---Both the proceedings were dismissed for non-­prosecution and the predecessor had not taken an v step for restoration of the same--­Trial Court dismissed the suit filed by the plaintiffs but Appellate Court allowed the appeal and decreed the suit ---Validity--­Effect of dismissal of both the proceedings earlier instituted was that nothing was decided in favour of the predecessor--­Appellate Court had misread the evidence on record as the defendant was not proved to be divorced by the predecessor of the parties---Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Dr. Ashique Hussain v. First Additional District Judge and Family Appellate Court and 2 others PLD 1991 Kar. 174 ref.

Sardar Tariq Anees for Petitioner.

Raja Muhammad Aslam for Respondents.

Date of hearing: 15th October, 2003.

2004 Y L R 871

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD MALIK and another---Petitioners

Versus

MUHAMMAD ISMAIL ---Respondent

Civil Revision No.2613-D of 1996, heard on 3rd November, 2003.

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

----S.13---Performance of Talbs---Duty of pre-emptor to prove same for suit for pre­emption.

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

----S.13---Pre-emption suit ---Performance of Talbs---Proof---Dismissal of suit by Courts below---Validity---Notice of Talb-i-Ishhad had not been produced in evidence---Witnesses claiming to be attesting witnesses of such nonce had denied to have knowledge about contents thereof---Pre-emptor had failed to prove performance of Talbs---Courts below had disbelieved contradictory evidence---Such appreciation of evidence could not be interfered with by High Court while exercising revisional jurisdiction---High Court dismissed revision petition.

Muhammad Aslam v. Ghulam Qadir 2003 YLR 1650; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Haji Muhammad Saleem v. Khuda Bux PLD 2003 SC 315; Abdul Qayyum v. Muhammad Rafiq 2001 SCMR 1651; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Rahim Dil v. Province of Punjab 1999 SCMR 1060 and Khurshid Bibi v. Muhammad Rafique 1987 SCMR 1545 ref.

(c) Duty of Court---

---- Function of Court to dig out truth from evidence produced by parties.

Muhammad Kazim Khan for Petitioners.

Muhammad Naeem Bhutta for Respondents.

Date of hearing: 3rd November, 2003.

2004 Y L R 876

[Lahore]

Before Muhammad Akhtar Shabbir, J

FALAK SHER ---Petitioner

Versus

MUHAMMAD YAR and 4 others---Respondents

Writ Petition No.9868 of 2003, decided on 5th November, 2003.

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

----O.XVI, R.1 (2)---Summoning of witnesses and filing list of witnesses---Power of Court---Scope---Court has power to permit a party to call witnesses or file list of witnesses, provided sufficient good cause for omission is shown---Court, if grants permission would record reasons for so doing.

Bashir Ahmad v. Fazal. Din 1994 CLC 1920; Muhammad Yousaf v. Muhammad Abbas 1985 CLC 2248 and Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 ref.

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

----O.XVI, R.1---Nonding of list of witnesses for about 3 Years---Plaintiff did not apply to Court for permission to produce list of witnesses during such period---Plaintiff was not entitled for production of witnesses at such belated stage.

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

----Art.199---Civil Procedure Code (V of 1908), S.115---Constitutional petition against revisional order passed by lower Court---Maintainability---Constitutional petition would lie, if revisional order was wholly void or coram non judice.

Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 and Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others PLD 1999 Kar. 257 rel.

Khalid Ikram Khatana for Petitioner.

Muhammad Akhtar for Respondents Nos. 1 to 3.

2004 Y L R 879

[Lahore]

Before Syed Zahid Hussain, J

Mst. AMTUL KARIM and others--- Petitioners

Versus

ROSHAN DIN and others---Respondents

Civil Revision Case No. 2051 of 1995 decided on 25th September, 2003.

(a) Administration of justice---

----Factors necessary for decision---Neither bulk or volume of record nor the length or breadth of an order/judgment is always a decisive factor in cases---Court is expected to reach the crux of the matter and the real controversy involved by taking into consideration all the attending circumstances discernible from the record.

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

----S. 42---Civil Procedure Code (V of 1908), O. VII, R.3---Title over suit property---Incorrect description of property---Effect---While deciding civil matters the preponderance of evidence is the determining factor and not a single circumstance taken in isolation of the other material on record---Mere incorrect description of the property given in a document cannot be the sole consideration when there is ample material to establish the identity of the property subject-matter of sale---When property subject-matter of sale was otherwise identifiable and the purchaser continued to be in possession, mere mis-description of Khasra number in sale-deed could not be taken as circumstance or a determining factor to nullify the sale.

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

----Ss. 8, 42 & 54---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15(8)---Civil Procedure Code (V of 1908), O. VIII, R.3---Declaration of title and recovery of possession---Incorrect description of property---Judgment passed by Rent Controller attaining finality--­Effect---Plaintiffs claimed to be owners of the suit property and sought recovery of possession on the ground that Khasra number mentioned in the sale-deed in favour of the defendants was different and did not pertain to that of the property in possession of the defendants---Defendants raised the plea that the question of ownership had already been decided in their favour by Appellate Court in appeal against eviction order passed by Rent Controller and the judgment passed. by the Appellate Court had attained finality---Suit was dismissed by the Trial Court but Appellate Court reversed the findings and decreed the suit in favour of the plaintiffs---Validity---Property, subject­matter of the sale, was otherwise identifiable and the defendants had continued to be in its possession---Mere mis-description of Khasra number could not be taken as circumstance or a determining factor to nullify the sale---Findings of Appellate Court in appeal against eviction order and findings of Trial Court in the present suit were legally valid---High Court declined to affirm or uphold the view that prevailed with the Appellate Court in accepting the appeal of plaintiffs--­Judgment and decree passed by the Appellate Court suffered from material illegality and the same was set aside and that of the Trial Court was restored accordingly.

Mir Salah-ud-Din v. Qazi Zaheer-­ud-Din PLD 1988 SC 221; Muhammad Bakhsh and 3 others v. Khuda Bakhsh and 3 others 1993 MLD 937 and Rehmatullah's case 1983 SCMR 1064 ref.

S.M. Masood and Muhammad Iqbal Ghaznavi for Petitioners.

Gulam Nabi Bhatti for Respondents.

Dates of hearing: 18th, 19th, 22nd and 25th September, 2003.

2004 Y L R 885

[Lahore]

Before Ch. Ijaz Ahmad, J

AHMAD NAWAZ and 2 others---Petitioners

Versus

AKHTAR HUSSAIN and another---Respondents

Criminal Miscellaneous No. 73-T of 2003, decided on 23rd July, 2003.

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

----S. 526---Transfer of case---Principles--­General allegation of malice against the Court is not sustainable in the eye of law.

Saeed Ahmad Khan's case PLD 1974 SC 151 and Amanulalh Khan's case PLD 1990 SC 1092 ref.

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

----S. 526---Penal Code (XLV of 1860), S.362/34---Transfer of case--General allegations levelled against the Presiding Officer was not sustainable in the eye of law---Presiding Officer had rejected the application of accused for ascertaining his age on judicial side and any observation made therein was of tentative' nature---Accused despite having a remedy against the said order had not challenged the same in the High Court and appeared to have not approached High Court with clean hands for transfer of the case and simply wanted to prolong the proceedings before the Trial Court---Decision of the application of any party by the Trial Court before the commencement of the trial was no ground for transfer of the case--- Unsubstantiated assertion that the Additional Sessions Judge seized with the trial of the case was of same political, philosophical or sectarian persuasion as accused's opposing party, would not warrant transfer of the case--­Proceedings could not be transferred merely on suspicion or whims of a party--­Petition for transfer of the case was dismissed in circumstances.

Mst. Rachel Joseph v. Aftabuddin Qureshi and others 1999 Cr.LJ 572; Syed Jaffar Raza Naqvi v. The State 1996 MLD 606; Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104; Haji Khawar Saleem v. The State 2001 SCMR 905; Muhammad Hayat v. Muhammad Iqbal and others 2002 PCr.LJ 1237; Muhammad Ishaq v. Muhammad Nadeem and another 2002 SCMR 440; Muhammad Ajmal v. The State through Advocate-General, Punjab PLD 2003 SC 1; Saced Ahmad Khan's case PLD' 1974 SC 151; Amanulalh Khan's case PLD 1990 SC 1092; Muhammad Ishaq v. Muhammad Nawaz Malik 1979 SCMR 147; Chuni Lal's case 196 IC 816; Muhammad Mustafa's case and others 1977 PCr.LJ 677 and Abdul Ghafoor v. The State 1993 PCr.LJ 1784 ref.

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

----S. 526---Transfer of case---Decision by the Trial Court of any application of any party before the commencement of the trial is not a ground for transfer of the case.

Muhammad Ishaq v. Muhammad Nawaz Malik 1979 SCMR 147 ref.

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

----S. 526---Transfer of case---Principles--­Mere apprehension of being convicted is not a ground for transfer of case.

Chuni Lal's case 196 IC 816 and AIR 43 Cr.LJ 71 ref.

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

----S. 526---Transfer of case-Principles--­Passing of a wrong order or in violation of the procedure by the Court, by itself, is not a sufficient ground for transfer of a criminal case.

Muhammad Mustafa's case and others 1977 PCr.LJ 677 ref.

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

----S. 526---Transfer of case ---Principles--­Proceedings cannot be transferred merely on the suspicion or whims of a party.

Khadim Nadeem Malik for Petitioner.

Muhammad Qasim Khan, A.A.-G. (on Court's call).

2004 Y L R 888

[Lahore]

Before Ch. Ijaz Ahmad, J

AHMAD NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 287 of 2003, decided on 31st July, 2003.

Penal Code (XLV of 1860)---

----S. 302/34---Juvenile Justice System Ordinance (XXI of 2000), Ss. 4 & 7--­Criminal Procedure Code (V of 1898), S.439---Revision---Trial Court had dismissed the application of accused for ascertaining his age for trial under the Juvenile Justice System Ordinance, 2000--­Contention was that the Trial Court had no jurisdiction to take the cognizance of the matter and pass the impugned order in violation of Ss.4 & 7 of the Juvenile Justice System Ordinance, 2000---Validity--­Accused having himself filed the aforesaid application before the Trial Court (Additional Sessions Judge), had no right to raise objection qua its jurisdiction with regard to the maintainability of the application--Accused was estopped to raise such objection after dismissal of his application by the Trial Court which, even otherwise, had been dismissed on cogent reasons in accordance with law---Being aggrieved of the said order the accused had also filed a petition for transfer of his case from the Trial Court to same other Court of competent jurisdiction, which had 'been dismissed by High Court---Accused therefore, had filed the present revision petition with mala fide intention in order to delay the trial---Accused, thus, had not approached High Court with clean hands--­Impugned order did not suffer from any illegality or infirmity---Revision was dismissed in circumstances.

Hasan Zafar v. State 2001 PCr.LJ 1939; Ahmad Ali v. The State 2001 MLD 1191; Ch. Haq Nawaz Chohan v. Ch. Tariq Azam and others 1994 CLC 1530; Rice Export Corporation of Pakistan (Pvt.) Limited v. Chairman, Sindh Labour Appellate Tribunal and others 1993 PLC 287; Muhammad Amjal's case PLD 2003 SC 1 and Hussain Bano v. Mrs. Mumtaz Younas PLJ 1989 SC 458 ref.

Khadim Nadim Malik for Petitioner.

2004 Y L R 890

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD MALIK and 4 others---Petitioners

Versus

MANSOOR SIDDIQUE and 4 others---Respondents

Civil Revision No. 268 of 1995, heard on 7th October, 2003.

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

---S.48---Execution of decree---Limitation--­Execution of decree other than a decree granting of injunction is barred after expiration of six years from the date of decree sought to be executed provided fresh applications is made after the prescribed period.

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

----O. XXI, R.32---Execution of decree in cases where some injunction has been passed---Pre-condition---Where a party is directed to do some act as well as where he is directed to abstain from doing an act, decree in such cases can only be executed in the manner given in O. XXI, R. 32, C. P. C. ---Before allowing execution under O. XXI, R. 32, C. P.C., the only condition is that the Court has to see if the judgment ­debtor had any opportunity of obeying the decree or whether he has wilfully failed to obey the same.

Municipal Committee, Sonepat v. Dharem Chand and others AIR 1954 197 rel.

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

----S. 54---Civil Procedure Code (V of 1908), S.115 & O. XXI, R. 32---Decree for injunction---Execution---Concurrent findings of fact by the Courts below---Suit for permanent injunction was decreed in favour of plaintiffs and defendants were restrained from making any construction on the share of plaintiff, and they were also restrained from transferring that specific portion to some other person--­Defendants, in violation of the terms of decree, transferred the specific portion of land to other persons and raised construction on the same---Plaintiffs filed execution petition but both the Courts below concurrently dismissed the same--­Validity---Both the Courts below had misconstrued the provisions of O.XXI, R. 32, C. P. C. and orders were passed in violation of the principles laid down by the superior Courts--- High Court set aside the concurrent findings of both the Courts below and the application was remanded to Executing Court for decision on merits accordingly.

Muhammad Hussain and others v. Muhammad Aslam 1988 SCMR 151; and Municipal Committee, Sonepat v. Dharem Chand and others AIR 1954 Punjab 197 ref.

Malik Amjad Pervaiz for Petitioners.

Sh. Abdul Aziz for Respondents.

Date of hearing: 27th October, 2003.

2004 Y L R 899

[Lahore]

Before Raja Muhammad Sabir, J

Khawaja AHMAD HASSAN ---Petitioner

Versus

GOVERNMENT OF PUNJAB and 7 others---Respondents

Writ Petition No. 11358 of 2003, heard on 22nd September, 2003.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 24, 63 & 191---Constitution of Pakistan (1973), Art. 199---Constitutional petition---No confidence motion--­Constitutional petition---No confidence motion was moved and put up before the House against Nazims---Majority of Members being against them, motion was carried in the House---Head of 'the Institution, in a democratic set up, could only continue to hold office and transact business as long he would enjoy, the support of majority in the House and in the absence of majority's support, it was not possible for him to function as Nazim---Allegation of mala fides on the basis of speech of a member in the House, could not be examined under Art. 199 of the Constitution as it needed factual inquiry---When an action was mala fide, without- jurisdiction or coram non judice, same was nullity in the eye of law and was to be struck down whenever brought to the notice of the Court---Mala fides in the case was not proved by any undisputed material on the record---Contention that no confidence motion was manoeuvred under the pressure and carried in mala fide manner, had no merit in circumstances.

The Federation of Pakistan through Secretary, Establishment Division v. Saeed Ahmad Khan and others PLD 1974 SC 151; Fauji Foundation's case PLD 1983 SC 457 and Mian Ziauddin 1985 SCMR 365 ref.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----Ss.24, 63 & 191---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---No confidence move---Framing of relevant Rules and application thereof--­Scope---Punjab Local Government Ordinance, 2001 had empowered the Government to frame the Rules to carry out the purpose of the Ordinance---Rules having been framed in accordance with Punjab Local Government Ordinance, 2001 and no inconsistency having been pointed out, no valid objection could be raised against the said Rules---Order of the Government and the Election Authority in pursuance to R.14(1)(2) framed under S.191, Punjab Local Government Ordinance, 2001, was not repugnant of the Ordinance or any other law---Rules under a Statute unless repugnant to the Constitution or inconsistent with the law, could not be struck down---Rules framed under the Statute could not go beyond and overreach the Statute itself---Rules framed .could only be applied after their publication in the official Gazette and not otherwise--­Notification issued debarring the Nazims, against whom no confidence move was carried, from functioning in their respective councils prior to the publication of relevant rules was not lawful in circumstances.

Messrs Malik Muhammad Nawaz, Haji Aziz Ahmad Commission Agents, Chakwal v. Syed Mehmood Hussain 1997 SCMR 264; Anokhmal Bhurelal v. Chief Panchayat Officer, Rajasthan Jaipur and others AIR 1957 Raj. 388; Commissioner of Income-tax v. Ekbal & Co. AIR 1945 Bom. 316; Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38; Mian Zaiuddin v. Punjab Local Government and others 1985 SCMR 365; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Mehr Zulfiqar Ali Babu and another v. Government of the Punjab and others PLD 1997 SC 11; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; Zahoor Ahmad and others v. The Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1999 Lah. 139; Ch. Sadiq Ali v. Collector, Gujranwala and another PLD 1964 (W.P.) Lah. 255; Secretary to The Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; 1997 SCMR 264; Hakimuddin v. Chief Cotton Inspector PLD 1960 Lah. 709; PLD 1971 SC 376; Mumtaz Hussain v. Chief Administrator Auqaf PLD 1976 Lah. 1511; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Ismail v. Member, Board of Revenue, Punjab Lahore and 13 others 2000 YLR 295 and Messrs Nemat Flour Mills (Pvt.) Ltd. through Director and 6 others v. Government of the Punjab through Secretary, Local Government and Rural Development Department, Lahore and 3 others 2001 YLR 835 ref.

(c) Interpretation of statutes--

----Rules under a statute---Application--­Requirements---Repugnancy of rules--­Principles---Rules under a Statute unless repugnant to the Constitution or inconsistent with the law, could not be struck down---Rules framed under the Statute could not go beyond and overreach the Statute itself---Rules framed could only be applied after their publication in the official Gazette and not otherwise.

Umar Ata Bandial and Muhammad Ahmad Qayyum for Petitioner.

Syed Shabbar Raza Rizvi, A.-G., Tahir Mahmood Gondal, A.A.-G. and Faisal Raza Bulehari for Respondents.

Date of hearing: 22nd September, 2003.

2004 Y L R 911

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAH MUHAMMAD and 5 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision No. 263 of 2003, decided on 11th July, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/452/354-A/337-A/148/149--­Criminal Procedure Code (V of 1898), Ss. 265-K, 345(2) & 439---Revision--­Dismissal of application of accused moved under S. 265-K, Cr. P. C.---Validity---Parties had entered into a compromise at the time of grant of pre-arrest bail to accused--­Agreement arrived at although revealed that some amount out of the total amount of "Badl-e-Sulh" had been paid to the legal heirs of the deceased, yet their affidavits did not disclose the receipt `of any such payment to them by the- accused---Shares of the legal heirs of the deceased were not even mentioned in their affidavits--­Separate statements of the said legal heirs were not recorded by the Sessions Court at the time of confirmation of ad interim bail before arrest of accused---Record did not show if any amount was received by the legal heirs collectively or individually--­Compromise effected between the parties at bail stage could not be considered to have given a legal effect for acquittal of the accused in the main case, because according to S. 345(2), Cr. P. C. it was the Court seized of the trial/prosecution which had to satisfy itself about the genuineness and voluntariness of the compromise before granting permission for the same---Accused also could not claim acquittal in a slipshod manner under S. 265-K, Cr. P. C. merely because of compromise effected between the parties at bail stage in the presence of S. 311, P. P. C. empowering the Court to convict the accused in spite of the waiver or compounding of right of Qisas by the legal heirs of the deceased and, sentenced them with imprisonment up to 14 years keeping in view the facts and circumstances of the case---Impugned order did not suffer front any illegality---Revision petition was dismiss in limine accordingly.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah 1998 SCMR 466 distinguished.

Malik Muhammad Rafique Rajwana for Petitioners.

2004 Y L R 913

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM HAIDER ---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 259 of 2003, decided on 10th July, 2003.

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

----Ss. 458/319---Criminal Procedure Code (V of 1898), Ss. 265-F & 439---Revision--­Trial Court by means of the impugned order had dismissed the application of the complainant in the case for giving up two prosecution witnesses---Both these witnesses had been cited as prosecution witnesses in the calendar of witnesses--­Complainant seemed to be in league with the accused who had also supported the said application of the complainant--Complainant not being related to deceased, did not appear to be interested in the conviction of the accused and he had no discretion to produce or withhold any witness at the trial, which rested with the Court under S. 265-F(3), Cr. P. C. to accept or reject the request---Trial Court had rightly rejected the application, of the complainant after applying its mind judiciously---Impugned order did not suffer from any illegality or improbability necessitating interference in the revisional jurisdiction-- Revision petition was dismissed in limine accordingly.

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

-----S. 265-F(3)---Examination of the prosecution witnesses at the trial--­Discretion regarding of the statements of the witnesses lies with the Court which as to be exercised judiciously,---Complainant has no discretion to produce or withhold any witness, but as per subsection (3) of S. 265-F, Cr. P. C., the discretion rests with the Courts to accept or reject such request.

Muhammad Khalid Ashraf Khan for Petitioner.

2004 Y L R 915

[Lahore]

Before Syed Jamshed Ali and Muhammad Ghani, JJ

PROVINCE OF PUNJAB through Deputy Commissioner, Faisalabad and another---Appellants

Versus

MUHAMMAD AKRAM and others---Respondents

Regular First Appeal No. 6 of 1993, heard on 28th October, 2003.

(a) Land Acquisition Act (I of 1894)---

----Ss. 9, 11, 18 & 25---Seeking compensation in excess of amount awarded by Collector---Failure or omission to make such claim before Collector in response to notice under S.9 of Land Acquisition Act, 1894---Effect---Inquiry contemplated by Collector under S.11 of Act, 1894 after service of such notice on interested person is not only in regard to measurement of acquired land, but also as to value of land---In absence of any claim as to quantum of compensation, Collector would have no occasion to adjudicate upon claim of interested person---Claim contemplated by S. 25, Land Acquisition Act, 1894 is before the stage of reference by Collector under S.18 of the said Act---Provisions of S. 25(2) of the Act, are mandatory, subject to powers of Court to condone such default---Reference application cannot meet requirements of S.25(2) of the Act--Mere entertainment of reference by Court and proceeding to decide same cannot be a ground to presume that Court has condoned such default---Such default, unless condoned by Court for sufficient cause, would entail penal consequences i.e. compensation to be awarded by Referee Court in no case would exceed the amount awarded by Collector---Such penal consequences can only ensure if a valid notice under S.9 of Act, 1894 was duly served on interested person---Principles.

The provisions of section 25(2) of the Land Acquisition Act, 1894 show that claim to compensation is required to be made before the Collector pursuant to the notice given under S.9 of the said Act the failure or omission to make a claim for compensation before the Collector entails penal consequences i.e. that compensation to be awarded by Court, shall in no case exceed the amount awarded by Collector, unless the Court permits to raise the claim before it for a sufficient reason. Provisions of subsection (3) of section 25, however, empower the Court to grant higher compensation than the compensation awarded by Collector, but it is also subject to the condition that the omission to prefer claim before Collector is condoned by the Court for a sufficient reason. The claim contemplated by section 25 is before the stage of reference by Collector under section 18. Merely because the Referee Court entertains the reference a td proceeds to decide it. It cannot be presumed that the Court had condoned the default under section 25(2). The provision is expressed in negative terms and on the basis of the language employed, it is to be construed as mandatory, subject to the powers of the Referee Court to condone the omission.

Section 11 of the Land Acquisition Act, 1894 contemplates an inquiry by Collector after notice under section 9 has been served on an interested person. The inquiry contemplated by said section is not only in regard to the measurement of land under acquisition, but also as to the value of land. In the absence of any claim as to quantum of compensation made before Collector, the Collector has no occasion to adjudicate upon the claim of an interested person. Section 9(2) of the Act also contemplates that notice will require the interested persons to state the nature of their respective interest in the land and the amount and particulars of their claims to compensation and their objections to the measurement. Provision of section 18 of the Land Acquisition Act providing for a reference to Collector is for determination by the Court the objection as to the measurement of land of the interested persons, the amount of compensation and the person to whom it is payable. The combined reading of sections 9, 11, 18 and 25 of the Act makes it abundantly clear that on receipt of notice, an interested person has to file his claim for compensation and has to specify the amount, which he claims as compensation for the land and other interests. The stage of reference under section 18 is posterior to the announcement of the award.

Section 15 of the Land Acquisition Act provides that in determining compensation, the Court shall be guided by, the provisions of, sections 23 and 24 of the said Act. These provisions are to be read alongwith the provisions contained in sections 9, 11, 18 and 25 of the Act and not in isolation. Assumption that section 15 is not being controlled by section 25 will render the provision of section 25 as redundant.

Section 25 has been placed in the Act after sections 9, 11, 18 and 23. Therefore, determination of compensation by the Court is subject to the provisions of section 25.

Penal provisions of section 25 can only be applied, if a valid notice under section 9 was duly served on an interested landowner.

Claim for compensation has to be made by interested landowners in response to the notice under section 9,' which is a subject-matter of the determination in an inquiry under, section 11 and ultimately by the Court under section 18. Unless omission to prefer claim for compensation is condoned by the Court, the interested landowner cannot seek enhancement of compensation exceeding the amount awarded-by the Collector.

Question of grant of compensation in excess of amount granted by Collector will only arise, if Referee Court is satisfied that there is sufficient reason within contemplation of section 25(2)(3) for landowners not to have claimed specific amount of compensation before Collector in response to the notices under section 9. The landowners will be allowed an oppor4unity for the purpose and if need be an issue may be framed and decided first before proceeding further in the matter. In case landowners are able to overcome the constraints of section 25, then Referee Court will proceed to determine the compensation in accordance with law.

Collector, Peshawar District v. Sher Ahmad Khan and others PLD 1966 (W.P.) Pesh. 193; Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407; Hyderabad Development Authority and another v. Karam Khan Shoro 1985 SCMR 45; Muhammad Sharif v. Afsar Textile Mills Ltd. and another 1985 SCMR 1181; Secretary of State v. Tikka Jagtar Singh AIR 1936 Lah. 733; Mrs. Gunj Khatoon and another v. The Province of Sindh through Secretary, Revenue Department, Karachi and another 1987 SCMR 2084; Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCMR 1670; Punjab State v. Messrs Lachhman Dass & Sons AIR 1964 Punj. 68 and State v. Krishna Pillani Ramakrishne Pillai ILR 1955 Trav-Co 174 rel.

(b) Interpretation of statutes----

---- Redundancy cannot be attributed to Legislature.

(c) Land Acquisition Act (I of 1894)---

----Ss. 9 & 25---Omission to prefer claim for compensation before Collector in response to notice tinder S. 9 of Land Acquisition Act, 1894---Effect of such omission is a pure question of law going to the root of jurisdiction of Referee Court to enhance compensation awarded by the Collector.

(d) Administration of justice--

----Court cannot do what the statute expressly forbids.

State v. Krishna Pillani Ramakrishne Pillai ILR 1955 Trav-Co 174 fol.

(e) Interpretation of statutes---

----Mandatory provision---Neither by consent nor by waiver mandatory provisions of statute can be either modified or waived.

State v. Krishna Pillani Ramakrishne Pillai ILR 1955 Trav-Co 174 fol.

(f) Land Acquisition Act (I of 1894)---

----Ss. 23 & 24-Compensation--­Determination of---Referee Court did not consider evidence, but solely relied on approval of estimated costs by Board of Revenue---Validity---Such estimate was only tentative-- -Duty of Referee Court was to determine compensation on basis of evidence produced in the case keeling in view guidelines indicated in Ss.23 & 24 of Land Acquisition Act, 1894.

Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407 rel.

(g) Land Acquisition Act (I of 1894)---

----S. 23---Compensation---Determination of---Location of acquired land is of paramount importance---Land abutting a main metalled road although agricultural in nature, would be of higher value and have better potential than land situated elsewhere.

Ch. Aamar Rehman for Appellants.

Zain-ul-Abidin Syed for Respondents.

Date of hearing: 28th October, 2003.

2004 Y L R 927

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

FAZAL DIN---Petitioner

Versus

FARZAND ALI and others---Respondents

Civil Revision No. 1160 of 1998 decided on 19th January, 2004.

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

----Ss.6(2) & 35(2)---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for pre­emption---Maintainability---Rejection of plaint---Elements of Zaroorat and Zarar had not been mentioned in the plaint--­Courts below, keeping in view the pleadings of the parties that knowledge of sale was gained by the pre-emptor 8/9 days before institution of the suit and no specific date or time had been mentioned, therefore, the making of Talb-e-Muwathibat which was necessary for a suit for pre-emption could not be proved ---Zaroorat or avoidance of Zarar was also to be pleaded in the plaint in terms of S.6(2) of the Punjab Pre­emption Act, 1991 which was not done--­Suit filed on 13-2-1989 during the interregnum period of 1-8-1986 to 13-2-1989 was to be filed in term of S.35(2) of the said Act, where it was necessary to mention the elements of Zaroorat and avoidance of Zarar for filing a suit for pre­emption and also Talb-e-Muwathibat--­-Plaint in the suit was rejected by both the said Courts on account of lack of mentioning Zaroorat and Zarar and also not proving Talb-i-Muwathibat --- Held target date as fixed by the Shariat Appellate Bench of the Supreme Court in PLD 1994 SC I was to be applied prospectively w.e.f. 31-12-1993 and would not be applicable to a suit filed on 13-2-1989---Courts below, in circumstances, had rightly rejected the plaint and no interference by the High Court was warranted in the concurrent findings of both the Courts below in revision.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Mst. Bashiran Bibi v. Muhammad Kashif Khan PLD 1995 Lah. 200; Muhammad Ishaque and others v. District Judge, Sargodha and others PLD 1993 Lah. 456 and Muhammad Ismail Qureshi and others v. Government of Punjab and others PLD 1991 FSC 80 ref.

Seerat Hussain Naqvi for Petitioner.

Zia Ullah Khan Niazi for Respondents.

Date of hearing: 13th January, 2004.

2004 Y L R 929

[Lahore]

Before Ch. Ijaz Ahmad, J

IMRAN ULLAH SHEIKH---Petitioner

Versus

PAKISTAN RAILWAY through Chairman, Civil Secretariat, Islamabad and another---Respondents

Writ Petition No. 1559 of 2002, decided on 17th September, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Educational institution--­Issuance of show-cause notice to candidate and his disqualification ---Validity--­Petitioner had prayed that show-cause notice issued to him be declared without lawful authority, without jurisdiction and mala fide and that during pendency of Constitutional petition respondents had passed order of disqualification of petitioner for one year and that said order was not sustainable in the eyes of law--­Impugned order having been passed by respondents after completing all legal formalities, same was valid and it was not necessary for the respondents to call supervisory staff in the witness-box--­High Court had no jurisdiction to substitute its own findings in place of findings of the Tribunal below---General allegation of malice was not sustainable.

M. Musaddaq Naseem's case PLD 1973 Lah. 600; Zakir Ahmad's case PLD 1965 SC 90; Ahmad and 3 others v. Vice-­Chancellor, University of Engineering and Technology and another PLD 1981 SC 464; Saeed Ahmad’s case PLD 1974 SC 151 and Aman Ullah's case PLD 1990 SC 1092 ref.

Ghulam Haider Al-Ghazali for Petitioner.

Arfan Masood Sheikh, Legal Advisor for Respondents.

2004 Y L R 931

[Lahore]

Before Rustam Ali Malik, J

Sardar MUHAMMAD ASHIQ--- Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.3558 of 2003, heard on 3rd July, 2003.

Police Order (22 of 2002)---

----Art. 18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Re-investigation---Jurisdiction of Provincial Police Officer---Submission of incomplete challan in Trial Court---Grievance of the petitioner was that after submission of incomplete challan in Trial Court, the Authorities could not pass order for re­investigation of the case---Validity---In order to ensure justice, the Provincial Police Officer was not debarred under the provisions of Police Order, 2002, from transferring the investigation---Case could be re-investigated even after submission of challan---As the trial had not commenced and only incomplete challan had been submitted, therefore, the order passed by the Provincial Police Officer was not passed without any lawful authority--­Petition was dismissed accordingly.

Meer Dad Khan v. Zahir Shah and 3 others 2000 PCr.LJ 1739; Muhammad Yousaf v. State and others 2000 SCMR 453 and PLD 2001 Quetta 10 ref.

Saif-ul-Malook for Petitioner.

Tahir Munir Malik and Sardar Tariq Mahmood for Respondents.

Date of hearing: 3rd July, 2003.

2004 Y L R 933

[Lahore]

Before Farrukh Latif, J

Malik SULTAN KHAN--Petitioner

Versus

Mst. AZRA YASMEEN and others---Respondents

Writ Petition No.9487 of 2002, decided on 10th October, 2003.

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

----S. 5 & Sched.---Suit for maintenance--­Deposit of interim maintenance--­Determination of amount of maintenance--­Family Court, during pendency of suit directed the defendant to deposit maintenance amount per month for four children/plaintiffs, being their educational expenses---Defendant resisted order of Family Court contending that though the children were studying in various classes, but Family Court while determining quantum of maintenance had not taken into consideration his financial resources as-he was jobless and a retired person whose monthly pension was Rs.1,304 only---Contention of the plaintiffs was that defendant, after his retirement, was serving as Administrative Officer and was drawing monthly salary of Rs. 25, 000 beside pension and income from several investments made by him---Defendant neither had produced order of his termination from service nor could explain as to how he was living and maintaining in a rented house in Islamabad for the last five years after his alleged termination from service in a locality where monthly rent of residential accommodation was much more than what he had been asked to deposit by way of interim maintenance for his children---Ex facie defendant appearing to be a man of means, interim maintenance amount was rightly determined by Family Court.

M. Saleem Ahmad Siddique v. Mst. Sabira Begum and others 2001 YLR 2329 ref.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Order for interim maintenance--­Constitutional petition against interim order was not maintainable unless such order was without jurisdiction---Family Court had jurisdiction to pass an order for interim maintenance---Interim maintenance allowance was always subject to variation and adjustment at the time of final decision which was given after recording evidence of parties.

Sh. Muhammad Sadiq v. Khurram Gulraiz and 2 others 1998 MLD 624 Lah. Ref.

Ch. Shakir Ali for Petitioner.

Mrs. Moazma Hussnain for Respondents.

Date of hearing: 10th October, 2003.

2004 Y L R 935

[Lahore]

Before Raja Muhammad Sabir and M. Naeemullah Khan Sherwani, JJ

RIFAT IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1-B of 2003 in Criminal Appeal No. 173-J of 2002, decided on 23rd July, 2003.

(a) Appeal (criminal)---

----Appreciation of evidence---Police opinion---Opinion of the Investigating Officer cannot be given any weight in appeal and is immaterial after the conviction.

Riaz Hussain v. The State 2001 SCMR 1779 ref.

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

----S. 426---Penal Code (XLV of 1860), Ss.302(b)/109---Suspension of sentence--­Accused was not present at the place of occurrence and he was found innocent by the Investigating officers, but the discharge report submitted for approval of the Court was rejected---Validity---Although the evidence could not be appreciated at such stage, yet the salient features of the case could not be ignored altogether---Case of co-accused whose sentence had already been suspended by the High Court was at par with the case of accused except that he was 80 years old---Other aspects vis-a-vis the allegation of abetment, award of death sentence to his son, his two brothers and life imprisonment to the remaining three brothers were similar ---Accused thus in the light of rule of consistency was also entitled to the concession of bail---Case of accused being almost at par with that of the aforesaid co-accused, his sentence was suspended and he was admitted to bail accordingly.

Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668; Adil Bashir v. The State 2003 SCMR 407 and Riaz Hussain v. The State 2001 SCMR 1779 ref.

Ch. Muhammad Yaqoob Sidhu for Petitioner.

Sardar Muhammad Latif Khan Khosa for the Complainant.

S.D. Qureshi for the State.

2004 Y L R 939

[Lahore]

Before Maulvi Anwarul Haq and Tanvir Bashir Ansari, JJ

STATE/FORCE COMMANDER, REGIONAL DIRECTORATE ANF, RAWALPINDI ---Petitioner

Versus

MUHAMMAD AKRAM---Respondent

Criminal Revision No.74 of 2003, decided on 14th July, 2003.

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

----S. 74---Superdari of the vehicle not completely barred---Section 74 of the Control of Narcotic Substances Act, 1997, is not a complete bar to Superdari during the trial of the case--Trial Court, even during the course of trial can form a prima facie opinion about the fact whether or not the owner had any knowledge of the use of his vehicle for transportation of narcotics--­Judicial discretion can be exercised in suitable cases for the release of the vehicle temporarily on Superdari in view of the principle that when a Court can grant final relief it also possesses inherent jurisdiction to grant a similar temporary relief pending the trial.

Niaz Ullah v. The State 2002 PCr.LJ 1997 and Abdul Salam v. The State 2003 SCMR 246 ref.

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

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/14/15 & 74---Release of vehicle on Superdari---Validity---Conductor and driver of the truck were closely related to the owner of the truck which was loaded with the narcotics in the manner that 106 sacks containing 3768 Kilograms of Poppy Heads were concealed underneath 61 sacks containing tobacco---Such act could not be performed without the active knowledge of the owner of the truck---Nothing was available on record to show that the owner of the truck had no knowledge about the narcotics being transported in his vehicle--­Owner had not stated that the truck was being used without his permission or by the persons over whose activity he had no control---impugned order of the Trial Court giving the truck on Superdari to its owner was set aside in circumstances--­Revision petition was accepted accordingly.

Niaz Ullah v. The State 2002 PCr.LJ 1997 and Abdul Salam v. The State 2003 SCMR 246 ref.

Arshad Mehmood for Petitioner.

Ajmal Raza Bhatti for Respondent.

Date of hearing: 1st July, 2003.

2004 Y L R 942

[Lahore]

Before Farrukh Latif, J

MUHAMMAD AKRAM and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.971 of 2003, decided on 7th October, 2003.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XXXIX, Rr. 1 & 2--­Revisional jurisdiction, exercise of---Stay application---Findings on question of law and fact recorded by Courts of competent jurisdiction, though erroneous, could not be interfered with in exercise of revisional jurisdiction as said jurisdiction was to be directed against irregular exercise, non-­exercise or illegal assumption of jurisdiction---Trial Court had jurisdiction to decide stay application either way and Appellate Court was competent to decide appeal against order passed by Trial Court on stay application---Concurrent orders passed in the case being reasonable, same could not be interfered with by High Court in exercise of its revisional jurisdiction in absence of any jurisdictional infirmity in the said order.

Ch. Abdul Majeed Jahanian for Petitioner.

2004 Y L R 946

[Lahore]

Before Ch. Ijaz Ahmad and Ali Nawaz Chowhan, JJ

Ch. ALTAF HUSSAIN ---Appellant

Versus

PROVINCE OF THE PUNJAB through Deputy Commissioner/Collector, Jhang and 2 others---Respondents

Regular First Appeal No.232 of 1992, heard on 24th March, 2003.

Land Acquisition Act (I of 1894)---

----Ss. 4, 6, 18, 23 & 54---Acquisition of land---Market value of acquired land, determination of---Relevant date for such determination---Damages, claim for--­Marker value of acquired land was to be determined at the date of publication of notification under S.4 of Land Acquisition Act, 1894 is view of S.23(1), first clause of Land Acquisition Act, 1894 and not under S.6 of the said Act---Land owner had produced document to show that due to separation of his land for construction of 'Naala' he had sustained loss/damage qua his remaining land but the Referee Court, though enhanced the compensation of land, but did not award proper compensation of damages to landowner in view of S.23(1), fourth clause of Land Acquisition Act, 1894---Compelisation qua damages sustained by landowner in case of remaining land, was enhanced by the High Court keeping in view the proportionate of enhancement of compensation of acquired land by Referee Court.

Naveed Ahmad v. Asif Riaz PLD 1996 Lah. 702; Mst. Sabiran Bi v. Ahmad Khan 2000 SCMR 847; Market Committee, Kanganpur v. Rayyat Ali 1991 SCMR 572; Secretary of Government of N.W.F.P. v. Haji Fateh Khan 2001 SCMR 974; Karachi Electric Supply Corporation v. Mst. Khalida Latif 1997 CLC 848; Project Director Darya Khan v. Collector, Land Acquisition PLD 1998 Pesh.21 and Land Acquisition Collector v. Muhammad Iqbal 1992 SCMR 1245 ref.

Hamid Khanm for Appellant.

Mian Ghulam Hussain, Asstt. A.-G. for Respondents.

Date of hearing: 24th March, 2003.

2004 Y L R 950

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Mian Muhammad Jahangir, JJ

MUHAMMAD RIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1187 of 1998 and Murder Reference No.51 of 1999, heard on 15th July, 2003.

Penal Code (XLV of 1860)---

----Ss. 302 (b) & 449---Appreciation of evidence---Prosecution witness giving the "Wajtakkar" evidence had no occasion to pass near the house of the accused during the odd hours of the night and his statement having been recorded after four days of the occurrence had reflected adversely on his credibility---No plausible explanation had come on record regarding the delay, in recording the statements of the witnesses of the extra judicial confession, nor they had made any attempt to apprehend the accused after his confession---Recoveries had been effected in violation of S.103, Cr. P. C.--­Even otherwise blood-stained "Chhuri " and clothes were recovered 1-1/2 months after the occurrence and the accused could not be expected to keep with him the said articles for such a long time when he had ample opportunity to wash away the blood stains---Motive for the occurrence was never narrated to the complainant who had lodged the F.I.R. by the concerned witness and this part of the prosecution case seemed to have been tailored by the agency during investigation under some legal advice just to strengthen the prosecution case---Prosecution case was nothing but a pack of lies---Accused was acquitted in circumstances.

Rana Muhammad Arif for Appellant.

Ch. Imtiaz Ahmad for the State.

Date of hearing: 15th July, 2003.

2004 Y L R 956

[Lahore]

Before Mian Muhammad Jahangir, J

KHALID KHAN KHATAK, A.S.P., SADAR, RAWALPINDI and another---Petitioners

Versus

SPECIAL JUDGE ANTI­ CORRUPTION, PUNJAB and another---Respondents

Criminal Miscellaneous N.os.52-Q and 133-Q of 2000; decided on 2nd June, 2003.

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

----S. 561-A---Pakistan Criminal Law Amendment Act (XL of 1958), S.6(5)--­Penal Code (XLV of 1860), S.161--­Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings--­Sanction for prosecution---Complaint against Police Officers under S.161, P. P. C. and under S.5(2), Prevention of Corruption Act, 1947---Special Judge Anti-Corruption, after recording preliminary evidence came to the conclusion that prima facie reasonable grounds existed to summon petitioners to face trial and on the same day i.e. 18-6-1999 directed in writing to the Competent Authority for according sanction for prosecution of petitioners---Letter for according sanction was received in Office of Commissioner on 9-7-1999 and on 9-9-1999 Trial Court was intimated that Competent Authority had refused sanction for prosecution of the officers---Trial Court had concluded, that if 22 days of remaining month of July and 31 days of August, 1999 were calculated, then lack of sanction should have been accorded by 7-9-1999, but as it was sent on 9-9-1999, it had shown that it was accorded after 62 days and presumption would be that sanction for prosecution was legally accorded by operation of law---Proviso to subsection (5) of S.6 of Pakistan Criminal Law Amendment Act, 1958, provided that question with regard to sanction or refusal should be disposed of within sixty days--­Letter for sanction might have been written two weeks earlier, but the first day would bed counted when letter was received in the office of Competent Authority and last day would be counted when sanction was sent by Competent Authority and not when letter disclosing therein sanction or refusal was received by the Court---Sanction for prosecution should be treated as an upper limit and refusal as a lower limit---Where letter of refusal was received within sixty days and some days were consumed in sending and receipt of letter, those days should be excluded---For counting of days there should be a clear deduction by writing the days as under. 9-9-1999(-) 9-7-1999 and for convenience thirty days of July and thirty first day of August would be excluded from counting and also the public holidays and other Gazetted holidays which would come in the way after sending of letter of sanction for prosecution---Expression "within sixty days", would mean all working days and no holiday, as by counting those days, the receipt of sanction/refusal would be two days late--­Deduction should be in the said manner--­Even otherwise by delay of two days, it would not mean that sanction was not refused---Proceedings pending against petitioners before Special Judge Anti­-Corruption, were quashed, in circumstances.

Qamar ud Din v. State NLR 1982 Criminal 451 ref.

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

----S. 561-A---Pakistan Criminal Law Amendment Act (XL of 1958), S.6(5)--­Prevention of Corruption Act (II of 1947), S.5(2)--- Penal Code (XLV of 1860), S.161---Sanction for prosecution--­Limitation---Counting of time---Procedure and methodology elaborately discussed.

Qamar ud Din v. State NLR 1982 Criminal 451 ref.

Saeed Ullah Khan for Petitioner.

Muhammad Sajjad Sindhu for Petitioner (in Criminal Miscellaneous No. 133-Q of 2000).

Ms. Nausheen Taskeen for the State.

2004 Y L R 959

[Lahore]

Before Ch. Ijaz Ahmad, J

LAHORE DEVELOPMENT AUTHORITY through Director‑General‑ ‑‑Petitioner

Versus

MUHAMMAD SHAFI and 3 others‑‑‑Respondents

Writ Petition No. 18670 of 2001 decided on 10th October, 2003.

Civil Procedure Code (V of 1908)‑‑-

‑‑‑‑O. VIII, R.10‑‑‑Specific Relief Act (I of 1877), S.54‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Failure to file written statement‑‑‑Striking off defence of defendants‑‑‑Trial Court, in suit for permanent injunction provided six opportunities to the defendants to file written statement, but defendants failed to file the same‑‑‑Trial Court struck off defence of defendants on their such failure and said order of Trial Court was upheld in revision by Appellate Court‑‑‑Validity‑‑‑Trial Court, though had granted' five adjournments in routine to file written statement, but even in the last adjournment order Trial Court did not use expression that "it was the last opportunity given to file written statement or that no further opportunity would be granted "‑‑‑Trial Court, in circumstances, had erred in law to strike off defence of defendants which tantamount to applying penal clause by Trial Court without application of mind and in violation of law laid down by the superior Courts‑‑‑Concurrent judgments of Courts below not being in consonance with law were set aside by High Court subject to payment of heavy costs to the plaintiff and defendants were directed to file written statement within specified period‑‑‑Trial Court was directed to proceed in the matter thereafter in accordance with law.

Col. Retd. Ayub Ali Rana's case PLD' 2002 SC 630; Malik Muhammad Saeed's case 1985 MLD 1440; Azad Hussain's case 1994 CLC 1817 and Khuda Yaar's case PLD 1975 SC 678 ref.

Ch. Muhammad Rashid Ahmad for Petitioner.

M. Asif Chatha for Respondents.

2004 Y L R 961

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ABASS ALI and another---Petitioners

Versus

PUNJAB PROVINCE through Collector and 8 others---Respondents

Civil Revision No. 1395 of 2003, decided on 11th September, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. VI, R.17 & O.XLI, R.33---Suit for declaration---Amendment of plaint--­Mutation challenged in suit had already been cancelled and was no more in the field----Trial Court dismissed the suit--­Plaintiff in appeal filed application for amendment of plant seeking relief to challenge vires of subsequent mutation--­Appellate Court dismissed both appeal and such application---Validity---Plaintiff had requested to substitute new cause of action, which was not permissible in the law--­Courts below had rightly dismissed suit and appeal.

Mst. Arshan Bibi and others v. Maula Bakhsh and others 2003 SCMR 318 and Qazi Nazir-ul-Islam and others v. Khurshid Anwar and others PLD 1968 Lah. 315 distinguished.

Mst. Ghulam Bibi and another v. Sarsa Khan and others PLD 1985 SC 345; Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341; Malik Riaz Ahmad and others v. Mian Inayat Ullah and others 1992 SCMR 1488; Barkat v. Muhammad Sadiq and others 1990 CLC 1532; Habib-­ur-Rehman and others v. Mst. Waheedan and others PLD 1984 SC 424; Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 and Muhammad Luqman v. Bashir Ahmad PLD 1994 Kar. 492 rel.

Riaz Ahmad Rana for Petitioner.

2004 Y L R 965

[Lahore]

Before Ch. Ijaz Ahmad, J

Mrs. ISBAH HASSAN ---Petitioner

Versus

WATER AND SANITATION AGENCY, LAHORE DEVELOPMENT AUTHORITY, LAHORE through Officer Bill Area---Respondent

Writ Petition No.7369 of 2002, decided on 17th September, 2003.

Constitution of Pakistan (1973)---

----Arts. 4 & 199---General Clauses Act (X of 1897), S.24-A---Duty and obligation of public functionaries was to decide the representation of the citizens without fear and nepotism within reasonable time--­Nobody should be penalized by inaction of public functionaries.

Messrs Airport Support Service v. The Airport Manager, Karachi Airport 1998 SCMR 2268; Zain Yar Khan v. The Chief Engineer, C.R. and others 1998 SCMR 2419 and Ahmad Lateef Qureshi v. Controller of Examinations PLD 1994 Lah. 3 ref.

Malik Saeed Hassan for Petitioner.

Mian Muzaffar Hussain, Legal Advisor of L.D.A.

2004 Y L R 967

[Lahore]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD PANJAL---Applicant

Versus

GHULAM SHABIR JAT and 6 others---Respondents

Criminal Revision Application No. 7 of 2003, decided on 28th October, 2003.

(a) Criminal trial---

---- Appreciation of evidence---Police opinion---Opinion of the Investigating Officer is not binding on a Court, nor his finding is a legal evidence.

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

---S.203---Dismissal of complaint ---Scope--­Scope of S. 203, Cr. P. C. is to hold a preliminary inquiry and it does not contemplate that a notice be issued to the accused person before issuing a process---If the Court holding such inquiry issues a notice to the accused before issuing process, it would not vitiate the inquiry.

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

----Ss. 324/364/435/452/427/218/201/221/147/148---Criminal Procedure Code (V of 1898), S. 439---Revision petition---Direct complaint filed by the complainant had been dismissed by the Sessions Court on the ground that the prosecution evidence was not believable and the complaint was brought as, a counterblast to the F.I.R. already registered against the complainant party in respect of the murder of the son of the accused arrayed in the complaint case---Impugned judgment was based on cogent reasons and proper appreciation of evidence adduced by the complainant in the Court during preliminary inquiry---Court would be justified to decline issue of process to the accused unless the evidence produced before it was such that if unrebutted conviction might be based thereon---Material produced by the complainant before the Court fell short of establishing a prima facie case--­Complainant and his witnesses were interested witnesses as litigation earlier went on between them in respect of the aforesaid murder of the son of accused in which sons of the complainant were nominated accused alongwith others, which trial was pending in the Court---Impugned order was consequently maintained and the revision petition was dismissed accordingly.

1991 SCMR 1608; 1994 PCr.LJ 1752; 2001 PCr.LJ 601; 2000 SCMR 489 and 1998 SCMR 922 ref.

Ali Murad Abro for Applicant.

Muhammad Ayaz Soomro for Respondents Nos. 1 to 6.

Mushtaque Ahmad Kourejo for the State.

Date of hearing: 28th October, 2003.

2004 Y L R 974

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUSHTAQ AHMAD SHAH ---Petitioner

Versus

NASEEB KHAN and another---Respondents

Civil Revision 1391 of 2003, decided on 2nd October, 2003.

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

----S. 24---Civil Procedure Code (V of 1908), S.2(2) & 91---Failure to deposit 1/3rd of sale price within time fixed by Court or withdrawal of such sum so deposited by the plaintiff---Effect---Such amount could not be ordered to be deposited beyond thirty days---Court was not empowered to extend such time---Such failure or withdrawal of amount would result in dismissal of suit.

Awal Noor v. District Judge, Okara and 8 others 1992 SCMR 746; Muhammad Ismail v. Jamil-ur-Rehman and 6 other others 1995 MLD 1011; Mian Asif Islam v. Mian Shahid Aslam and 3 others 1999 SCMR 1350; Riaz Ahmed v. Additional District Judge, Sargodha and others 1999 YLR 336 and Muhammad Siddiq v. Muhammad Ilyas v. Muhammad Ilyas 1999 YLR 1105 rel.

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

----S. 24---Civil Procedure Code (V of 1908), Ss. 2(2) & 91---Non-deposit of 1/3rd of sale price within time fixed by Court--­Dismissal of suit on such score ---Validity--­Such dismissal of suit was a decree and appealable.

Ghulam Qadir Khan and others v. Ahmad Nawaz Khan and others 1994 CLC 1118 rel.

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

----S. 24---Civil Procedure Code (V of 1908), Ss. 2 (2) & 91---Court Fee Act (VII of 1870), S. 6 & Sched. I, Art. 1---Dismissal of suit on failure to deposit 1/3rd of sale price within time fixed by Court---Appeal against such dismissal order---Non payment of Court fee on memo. of appeal--­Dismissal of appeal---Validity----Such dismissal of suit was a decree and appealable---Court fee on memo. of appeal fled in District Court was leviable in accordance with S.6 of the Court Fee Act, 1870---Appellate Court had directed plaintiff to make up deficiency on memo. of appeal, but he had failed to comply with the order---Appeal had been validly dismissed by Appellate Court being incompetent for lack of court-fee ---High Count dismissed revision petition.

Ghulam Qadir Khan and others v. Ahmad Nawaz Khan and others 1994 CLC 1118 and Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161 rel.

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

----Ss. 2(2), 91 & O. VII, R. 11---Rejection of plaint under O. VII, R. 11, C. P. C. is a decree and appealable.

Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129; Ghulam Muhammad v. United States Agencies for International Development Mission, Islamabad 1986 SCMR 97 rel.

Zia Ullah Khan Niazi for Petitioner.

2004 Y L R 978

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.265 of 2003, decided on 14th July, 2003.

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

----Ss. 302/324/148/149---Appreciation of evidence---Police opinion---Opinion of the police is not binding on the Court and such opinion alone is not sufficient for the conviction or acquittal of the accused unless supported by some independent tangible evidence as the same has got no evidentiary value.

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

----Ss. 302/324/148/149/109---Criminal Procedure Code (V of 1898), Ss.540 & 439---Revision---Trial Court by means of the impugned order had rejected the application of the accused for summoning three police officers who, during investigation, had declared him and his co­-accused as innocent---Police opinion was not binding on the Courts and by itself was not sufficient for conviction or acquittal of accused unless supported by some independent tangible evidence as it had no evidentiary value---Investigating Officer had already been examined in the case and the accused was at liberty to question him about the fate of investigation conducted by other police officials---Even otherwise, the accused still had an opportunity to produce the said police officials in support of their innocence while leading defence evidence--­Impugned order did not suffer from any illegality or jurisdictional defect---Revision petition was dismissed in limine in circumstances.

Bashir Ahmad v. The State 1988 MLD 2435 dissented.

Ch. Pervaiz Aftab for Petitioner.

2004 Y L R 979

[Lahore]

Before Raja Muhammad Sabir, J

Mian ANSAR ABBAS BHATTI---Petitioner

Versus

MUNEEB HAYAT BHATTI and 5 others ---Respondents

Writ Petition No.9911 of 2003, decided on 14th November, 2003.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 63, 69(4) & 197---Constitution of Pakistan (1973), Art.199---Constitutional petition---Motion to recall Tehsil Nazim--­Such re-call motion was carried in meeting convened and presided over by Naib Tehsil Nazim---Contention that as per Notification dated 30-5-2003, such meeting was to be convened and presided over by senior most member of panel of Presiding Officers of Tehsil Council and not by Naib Tehsil Nazim--- Validity---Naib Tehsil Nazim had been bypassed through the notification, which had been withdrawn by the Government---Such notification was in violation of provisions contained in S.63 of Punjab Local Government Ordinance, 2001---Naib Tehsil Nazim was authorized by law to convene and preside over the meeting---Contention raised by the petitioner was not justified by any provision of the Punjab Local Government Ordinance, 2001---High Court dismissed Constitutional petition.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 63 & 69(3) (4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Motion to recall Tehsil Nazim (petitioner)---Validity---Such motion moved in a meeting convened by Naib Tehsil Nazim was attended by fifteen members, out of which thirteen voted in favour of the motion---Petitioner did not command majority in House, thus, could not run its business---Petitioner had addressed such meeting and tried to persuade members not to vote against him, but had failed---Motion had been fairly and properly carried out by the House---High Court dismissed Constitutional petition.

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

----Art. 199---Constitutional petition under Art. 199 of the Constitution---Mala fide---Proof of---Very difficult to prove mala fides in Constitutional proceedings.

Ch. Fawad Hussain for Petitioner.

Sarfraz Nawaz Malik for Respondents Nos. 1, 3 and 4.

Tahir Mahmood Gondal, A.A.-G.

Date of hearing: 7th November, 2003.

2004 Y L R 983

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MANZOOR HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.204 of 1993, heard on 23rd June, 2003.

Prevention of Corruption Act (II of 1947)----

---S. 5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence---Amount in question was not recovered from the possession of accused but was picked up by two Constables from the ground at the time of apprehension of accused, who were not examined at the trial as prosecution witnesses---Nobody had seen the accused throwing the said amount on the ground, nor passing of money by the complainant to him---Conversation between the accused and the complainant at the relevant time was also not heard by the Magistrate and the Investigating Officer---Statement of the complainant could not be taken as a gospel truth in the presence of documentary evidence produced immediately at the time of raid that he had come to pay Rs.105 as balance amount of Abiana outstanding against his father which was included in the amount collected from the ground--­Accused was acquitted in circumstances.

Muhammad Ashraf Qureshi for Appellant.

Sh. Muhammad Rahim for the State.

Date of hearing: 23rd June, 2003.

2004 Y L R 985

[Lahore]

Before Muhammad Muzammal Khan, J

Haji ABDUL LATIF and 4 others---Petitioners

Versus

ATEEQ AHMAD and 3 others---Respondents

Civil Revision No.554 of 2003, decided on 13th October, 2003.

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

----Ss. 12 & 35---Civil Procedure Code (V of 1908), S.148---Suit for specific performance of agreement to sell--Passing decree with rider of dismissal of suit in case of non-payment of decretal amount within time fixed therein---Extension of time--­Power of Court---Scope---Provisions of S.148, C.P.C. were available to the Court only in pending matters---Decree in suit for specific performance is preliminary in nature, but same becomes final, when such rider is attached thereto---Such decree will have its course, unless and until set aside by the competent Court---Court by attaching such rider beforehand indicates its intention in terms of S.35 of Specific Relief Act, 1877 to rescind agreement on plaintiff's failure in form of dismissal of suit---Till the time such decree becomes final, Court passing decree keeps seizin over lis and can extend time, but not thereafter---Principles.

Someshwar Dayal and others v. Widow of Lalman Shah and others AIR 1958 Allahabad 488; Amjad Malik v. Muhammad Saleem and 5 others 1992 MLD 31; Dr. Iftikhar Ahmad Zahid v. Mrs. Neelofar Akhtar and another PLD 2002 Lah. 176; Nisar Ahmad v. Muhammad Yousuf PLD 1994 Lah. 280; Maj. (Retd.) Hamid Ali Khan v. Main Muhammad Anwar 2000 CLC 1633; Ahmad Yar v. Abdul Razzaq and 2 others 2002 MLD 1010; Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177 and Amjad Malik v. Muhammad Saleem and 5 others 1992 MLD 31 ref.

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

----S. 148---Extension of time---Such power is available to the Court only in pending matters.

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

----S. 148---Extension of time---Duty of Court---Jurisdiction vested in Court under S.148, C.P.C., must be exercised judicially by comprehending entire dispute between parties---Such jurisdiction cannot be invoked arbitrarily or fancifully by taking away valuable rights already accrued to a party by lapse of time.

Iftikhar Ahmad Dar for Petitioner.

Jehangir A. Jhoja for Respondents.

2004 Y L R 990

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUKHTAR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 22 of 1999 and Murder Reference No.71 of 1999, heard on 21st July, 2003.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence--­Sentence, reduction in---F.I.R. had been promptly lodged---Case was of a single accused and a single shot which first hit the upper left arm and then went to the chest cavity of the deceased---Solitary statement of complainant who had no animus for false implication of accused inspired-confidence and was duly corroborated by medical evidence--­Conviction of accused was upheld in circumstances---Motive alleged by the prosecution was shrouded in mystery, age of the accused being 18 years or not at the time of occurrence was doubtful, accused had fired only one shot, complainant had made a dishonest improvement at the trial regarding concealment of accused at the time of incident, and no crime empty having been recovered from the spot recovery of gun from the accused was of no help to prosecution ---Said circumstances being mitigating circumstances in favour of accused, his sentence of death was converted into imprisonment for life.

2001 SCMR 177; 2002 SCMr 1455 and PLD 1996 SC 122 ref.

Masud Mirza for Appellant.

H. Masood for Respondent.

Date of hearing: 21st July, 2003.

2004 Y L R 993

[Lahore]

Before Ch. Ijaz Ahmad, J

Rana MUHAMMAD MUSTAFA and another---Petitioner

Versus

JAVED IQBAL SIDDIQUI and 2 others---Respondents

Writ Petition No.8846 of 2003, decided on 31s, October, 2003.

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

----Rr. 39, 40, 42, 55, 70, 82 & 83(a)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Election of Nazim and Naib-Nazim--- Re-counting of votes by Election Tribunal---Votes secured by petitioners at the time of declaration of result of election were 2051, which on re­counting by Tribunal were found to be 1812 votes---Votes secured by returned candidates at the time of declaration of result of election were 2307, which on re­counting by Tribunal were found to be 1608 votes---Votes secured by petitioners on such re-counting were found to be more as compared with returned candidates, but Tribunal declared election as a whole to be void instead of declaring petitioners to be elected---Validity---Mere comparison of such two figures of both parties established that polling staff and Returning Officer had not counted votes in accordance with mandatory provisions of election laws--­Result had been prepared/declared in violation of mandatory provisions of Rr.39, 40, 42 & 55 of Punjab Local Government Elections Rules, 2000---Grievance of petitioners as raised in election petition that polling staff had not counted votes in accordance with provisions of election laws and rules framed thereunder, would fall within ambit of R.83(a) of Punjab Local Government Elections Rules, 2000--­Tribunal after proper appreciation of evidence had given findings qua corrupt and illegal practice committed by parties with connivance of Polling Staff---Tribunal was justified to declare election as a whole to be void---High Court while exercising jurisdiction under Art. 199 of the Constitution had no power to disturb such findings of fact of the Tribunal---High Court refused to exercise discretion in favour of petitioner and dismissed Constitutional petition.

Abdul Sami's case PLD 1990 Lah. 378; Ch. Nazir Ahmad's case PLD 2002 SC 184; Manzoor Ahmad Butt's case 1999 CLC 1520; Saeed Hasan's case PLD 1876 SC 6; Dr. Naiz Ahmad v. The State PLD 1961 SC 224; M. Musaddaq's case PLD 1973 Lah. 600; Syed Azmat Ali's case PLD 1964 SC 260 and Nawab Syed Raunaq' Ali's case PLD 1973 SC 236 ref.

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

----R. 83 (a)---Failure of Polling Staff to act in. accordance with provisions of Punjab Local Government Elections Rules, 2000--­Effect---Result of election, in such situation, would be materially affected and election should be declared as a whole to be void.

Sana Ullah's case PLD 1966 Lah.97; Bristol South's East Parliamentary Election 1961, Vol. III, A.E.L.R. 354 and Rashid Rehmani's case PLD 1968 SC 301 ref.

(c) Punjab Local Government Election Rules, 2000---

----Rr. 81 (d) & 83(b)---Commission of corrupt and illegal practice in election--­Effect---Such practice is not an isolated affair as between petitioners; its effects are not confined to petitioners; is a matter of vital public interest relating to purity of election thus should be brought to light and duly investigated.

Jamal Shah's case PLD 1966 SC 1 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court had no jurisdiction to substitute its own findings in place of findings of Tribunal below.

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

---Art. 199---Constitutional jurisdiction of High Court---Discretionary in character.

Dr. M Mohy-ud-Din Qazi for Petitioners.

Zafar Iqbal Chohan for Respondent No.4.

2004 Y L R 999

[Lahore]

Before Ch. Ijaz Ahamd, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Chairman and 2 others---Petitioner

Versus

Mst. RIZWANA SHAHEEN --- Respondent

Civil Revision No.1267 of 2003, decided on 29th September, 2003.

(a) Pakistan Telecommunications (Re­-Organization) Act (XVII of 1996)---

----Ss. 20 & 21---Disconnection of telephone without notice ---Scope--­Licensee/subscriber on obtaining telephone connection from Pakistan Telecommuni­cation Corporation would secure a vested right---Corporation had to disconnect such connection ' after notice to the licensee/subscriber.

(b) Pakistan Telecommunications (Re­-Organization) Act (XVII of 1996)---

----Ss. 23, 33 & 7---Civil Procedure Code (V of 1908), S. 9---Disconnection of telephone without notice---Suit for damages filed by licensee/subscriber against Pakistan Telecommunication Corporation was decreed by Trial Court and upheld by the Appellate Court---Validity--­Corporation had not placed on record any document showing that such disconnection was after notice to the plaintiff---Courts below had given concurrent finings of fact that Corporation had disconnected the telephone of plaintiff without any notice--­Order of disconnection was in violation of judgment of Supreme Court--Civil Court had jurisdiction to take cognizance under S. 9, C. P. C. ---Courts below had rightly awarded meagre damages to plaintiff--­High Court dismissed revision petition.

Zakir Ahmad's case PLD 1965 SC 90; Pakistan and others v. Public at large PLD 1987 SC 304; Pakistan Chrome Mines v. The Enquiry Officer 1983 SCMR 1208 and Zafar-ul-Ahsan's case PLD 1960 SC 113 fol.

(c) Natural justice, principles---

----Principle of natural justice must be read in each and every statute, unless and until same is prohibited by wording of statute itself.

Commissioner of Income Tax v. Fazal-ur-Rehman PLD 1964 SC 410 fol.

(d) Practice and Procedure---

----When basic order is without lawful authority, then superstructure built on it shall automatically fall on the ground.

Crescent Sugar Mills v. C.B.R. PLD 1982 Lah. 1 and Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 fol.

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

---Arts. 189 & 190---Judgment of Supreme Court---Binding on each and every organ of the State by virtue of Arts. 189 & 190 of the Constitution.

(f) Administration of justice---

---Mere technicalities should not be hindrance to do complete justice. Manager Jammu and Kashmir State Property v. Khuda Yar and others PLD 1975 SC 678 fol.

(g) Tort---

---- Damages ---Public functionaries taking law in their own hands arid not proceeding in terms of law---Awarding damages to aggrieved person is the need of day---Such process can only save the nation and people of Pakistan from destruction---if the Law of tort is established in the country, public functionaries and other authorities would run the country smoothly.

Gorsi Muhammad Din Chaudhry for Petitioners.

2004 YLR 1002

[Lahore]

Before Mansoor Ahmed and Abdul Shakoor Paracha, JJ

HAIDER HUSSAIN---Petitioner

Versus

PAKISTAN through Secretary Ministry of Defence Pakistan Secretariat Islamabad and 5 others----Respondents

Writ Petition No. 6635 of 1988 decided on 22nd July 2003.

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

----Art. 199(3)---Constitutional jurisdiction of High Court---Ouster clause ---Scope--­Presumption against ouster of jurisdiction of the Superior Courts---Ouster clause has to be narrowly construed for the reason that the people who are oppressed and their rights are infringed have to seek redressal of their grievances before a forum established under the Constitution---Acts, orders, proceedings which are done, made or taken without jurisdiction, mala fide or coram non judice are, therefore, not saved from the scrutiny of the Courts by the ouster clause of Article 199(3) of the Constitution.

The State v. Zia-ur-Rehman and others PLD 1973 SC 49 and `Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

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

----Art. 199---Constitutional jurisdiction--­Jurisdiction under Art. 199 of the Constitution though is very wide but it has to be regulated by the Court keeping in juxtaposition the other relevant Constitutional provisions in exercising the said jurisdiction---Barring clause is provided in Art.199(3) of the Constitution to abridge and limit the jurisdiction of the Superior Courts to judicially reviewing the act, order or authority exercised in relation to and in respect of the terms and conditions of service of the personnel in all the three forces in uniform---Said bar is provided to maintain discipline in Armed Forces and to infuse strength to command and control of Defence Forces.

(c) Pakistan Air Force Act (VI of 1953)---

----S. 52-F---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Accused was Wing Commander in uniform, and charges against him were wrongful loss within the provisions of S.52 of the Pakistan Air Force Act, 1953---Bar contained in Art.199(3) of the Constitution would come into play if- the jurisdictional defect and plea of mala fides raised by the accused were found without substance---Accused had failed to show or substantiate any lack of jurisdiction on the' part of P.A.F. Headquarter to initiate proceedings against him or to substantiate the plea of coram non judice ---Inquiry, initiative, investigation made and trial conducted in the case of accused through the process of Board of Inquiry, summary of evidence and General Court Martial were all in accordance with law and the same neither suffered from any lack of jurisdiction nor from any mala fides nor from any discrimination---Constitutional petition filed by the accused, thus, was hit by the provisions of Art.199(3) of the Constitution and the same was dismissed accordingly.

Ex Capt Muhammad Akram Khan v. Islamic Republic of Pakistan through Secretary to the Government of Pakistan, Ministry of Law and Parliamentary. Affairs, Islamabad and others PLD 1969 SC 174; The State v. Zia ur Rehman and others PLD 1973 SC 49; The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Brig. Retd. F.B. Ali and another v. The State PLD 1975 SC 506; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Federation of Pakistan and 2 others v. Khurshid Ahmad and another 1999 SCMR 664 and Ex.Lt.Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary Ministry of Defence Rawalpindi and 2 others PLD 2001 SC 549 ref.

Petitioner in person

Qazi Ahmad Naeem Qureshi for Respondents.

Date of hearing: 30th June, 2003.

2004 Y L R 1010

[Lahore]

Before Maulvi Anwarul Haq. J

MUHAMMAD SHAFI JAVED------Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY LAHORE through Managing Director (Power)---Respondent

Writ Petition No. 2710 of 2001 heard on 23rd October 2003.

Civil service---------

----Promotion---Entitlement---Civil servant joined service as Line Superintendent and thereafter got move-over in B.S.17---Civil servant got foreign degree which was recognized to be equivalent to B.Sc. (Engineering) degree not only by West Pakistan University of Engineering and Technology, but also by the Authority--­Fifty per cent. quota was reserved for promotion' from Line Superintendents Grade-1 to Junior Engineer having qualification of B. Sc. (Engineering)---Civil servant having not been promoted despite being fully qualified for such promotion, had filed Constitutional petition---Civil servant was stated to be disqualified for said promotion according to minutes of meeting of Departmental Committee; on the grounds that A.C.Rs. of civil servant for years 1998, 1999, concerned to maintain the record properly---No disciplinary case was pending against civil servant and a certificate had already been issued stating that no inquiry was pending against him--­Reason with regard to para.98 was unexplained while the last reason viz. qualification, admittedly he was possessed of a qualification which had been declared and recognized by the Authority to be equivalent to B. Sc. (Engineering) degree civil servant, in circumstances, was not liable to take any departmental examination--- Civil servant, was fully qualified to be promoted and all the grounds stated by Authority for his disqualification were absolutely incorrect--­Authority, was directed by the High Court to pass appropriate orders for promotion of civil servant after considering the matter in a just and fair manner.

Fida Hussain v. Secretary, Kashmir Affairs and Northern Areas, Islamabad PLJ 1996 SC 490 ref

Syed Asghar Hussain Sabzwari for Petitioner.

Nemo for Respondent.

Date of hearing: 23rd October, 2003.

2004 Y L R 1014

[Lahore]

Before Ch. Ijaz Ahmad, J

PUNJAB TEXTBOOK BOARD EMPLOYEES ASSOCIATION through President------Petitioner

Versus

PUNJAB TEXTBOOK BOARD through Chairman and 2 others---Respondents

Writ Petition No. 11840 of 1999, heard on 30th October, 2003.

(a) Punjab Textbook Board Ordinance (XLI of 1962)-----

------Ss. 4, 5, 11 & 15---Constitution of Pakistan (1973), Art. 199---Constitution petition---Refusal of Punjab Textbook Board (respondent) to grant house rent allowance to its employees----Board, during pendency of Constitutional petition accepted demand of petitioner, but recalled such relief through subsequent order---Petitioner had not challenged subsequent order before competent forum/Court---High Court had ample jurisdiction to look into the subsequent events at the time of deciding Constitutional petition---High Court dismissed Constitutional petition with observations that petitioner would be within its right to challenge subsequent order before competent/Court.

Paki Petroleum Workers Union v. Ministry of Interior and others 1991 CLC 13; Shrin Munir and others v. Government of Punjab through Secretary Health PLD 1990 SC 295; Government of Punjab through Secretary Health and others v. Naila Begum PLD 1987 Lah. 336. Datari Construction Co. Ltd. v. A. Razaq Adamjee and others 1995 CLC 846; Anisur Rehman v. Government of Sindh and others 1997 CLC 615; Nazir Ahmad v. Faisalabad Development Authority 2003 CLC 359 and Malik Muhammad Ismail and others v. Settlement Commissioner and another 1992 CLC 282 ref.

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

---Art. 199---Subsequent events---High Court has ample jurisdiction to look into subsequent event at the time of deciding Constitutional petition.

Nasir Jamal v. Mst. Zubaida Begum 1990 CLC 1069 and Mst. Amina Begum and others v. Mehr Ghulam Dastgir PLD 1978 SC 220 rel.

Ch. Khurshid Ahmad for Petitioner.

Badar-ul-Ameer Malik for Respondents.

Date of hearing: 30th October, 2003.

2004 Y L R 1019

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MAQSOODA and 8 others‑‑‑Petitioners

Versus

MUHAMMAD AZEEM and 5 others‑‑‑Respondents

Civil Revision No.255‑D of 1999, heard on 19th November, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. I, R.10 & XX, R.18‑‑‑Suit for partition‑‑‑Application by co‑sharer to implead him as party in suit after passing of preliminary decree‑‑‑Validity‑‑‑So long land in dispute remained joint and final decree was not drawn up, any necessary party being vested with title or interest therein, could be impleaded‑‑‑Applicant was necessary party, thus, was entitled to join such proceedings before Trial Court for preparation of final decree.

Sardar Tariq Anees for Petitioners.

Irfan Ullah Malik for Respondents.

Date of hearing: 19th November, 2003.

2004 Y L R 1020

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. AYESHA BIBI 5 others--------Petitioner

Versus

NOOR---------Respondent

Civil Revisions Nos. 2035 and 1730 of 1998, decided on 30th December 2003.

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

----O.XLI, R.27---Additional evidence Documents available at the time of trial Petitioner had full opportunity of defending the suit of the respondents and had led evidence of his choice before the Trial Court---Application for additional evidence was filed at the time of final hearing of revision petition by High Court ---Validity--­Documents sought to be produced as additional evidence were in existence at the time of trial---Petitioner failed to explain as to why the documents were not produced during, the trial or why such effort was not made before the Trial Court or Appellate Court---Application was dismissed in circumstances.

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

---S.39---Qanun-e-Shahdat (10 of 1984), Arts.117 & 120---Sale transaction and attestation of mutation of sale---Onus to prove---Where owner of the property had denied such transaction, onus shifted to the beneficiary of the mutation to prove not only the mutation but also the transaction itself.

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

----Ss.39 & 42---Declaration of title--­Cancellation of sale mutation---Plea of Pardanashin illiterate lady---Plaintiffs denied having sold the suit-land in favour of defendant and asserted that the attestation of sale mutation was a result of fraud and misrepresentation---Suit was dismissed by Trial Court but Appellate Court partially decreed the suit to the extent of one of the plaintiffs who was minor at the time of the sale transaction while dismissed the suit to the extent of the other plaintiff---Validity---Sanctioning of sale mutation on the day when inheritance mutation was attested in favour of the plaintiffs showed that it was done in the manner claimed by the plaintiffs who were illiterate villagers including. Pardah observing lady and minors---Plaintiffs under the law, were protected and the defendant failed to prove good conscience of the transaction and also failed to prove that the plaintiffs being ladies were provided independent advice before their recording of statements on the mutation---In absence of such proof, the sale mutation was not lax fully sanctioned and no lawful title was transferred to the defendant Defendant being beneficiary of the mutation was required to prove such facts---Both the Courts below had misread the evidence and misapplied the law and the judgments and decrees passed by both the Courts below being tainted with material irregularity and illegality were set aside---Suit was decreed in favour of both the plaintiffs.

Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Irshad Hussain v. Ijaz Hussain and 9 others PLD 1994 SC 326 and Baggu v. Mst. Roshan Bibi 1996 MLD 377 ref.

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

----S.39---Mutation of sale--Proof---Failure to produce witnesses---Persons who identified the vendors before Revenue Officer at the time of sanction of mutation were not produced---Effect---Mutation was not a document of title and was sanctioned only for fiscal purposes---When the vendee failed to produce any of the witnesses of the sale transaction, the mutation of sale was not proved in circumstances.

Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Mst. Tahira Begum v. Federal Land Commission, Islamabad and 5 others 1983 CLC 663; Government of Pakistan v. Maulvi Ahmad Saeed 1983 CLC 414 and 1986 CLC 545 ref.

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

----Ss. 39 & 42---Suit for declaration and cancellation of document--- Maintain­ability---Failure to seek recovery of possession---Plea raised by the defendants was that the plaintiff was out of possession and he only sought declaration of title alongwith cancellation but recovery of possession was not sought---Validity----Such suit could be filed and was maintainable under S.39 of Specific Relief Act. 1877--­Suit was maintainable in circumstances.

Ata-ul-Mohsan Lak for Petitioners.

Ghulam Mustafa Bandaisha for Respondent.

Date of hearing: 5th December, 2003.

2004 Y L R 1026

[Lahore]

Before Muhammad Farrukh Mahmud, J

Ch. ABDUL SALAM---Petitioner

Versus

SUPERINTENDENT and other---Respondents

Criminal Miscellaneous No.97-H of 2003, decided on 15th December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 491---National Accountability Ordinance (XVIII of 1999), S.10---Habeas carpus petition-- Appellate Court had reduced the sentence of imprisonment of accused from seven, years' R.1. to three years' R.1. with benefit of S.382-B, Cr. P. C., which, he had already served out---Authorities had not taken into account the period of three months for which the accused had remained in the custody of police for the same offence and which was to be counted towards his imprisonment as required by S.382-B, C1.P.C.--Accused was consequently directed to be, released forthwith from jail---Petition was allowed accordingly.

A. R. Tayyab for Petitioner.

Ahmad Mansoor Chishti, A.A.-G.

2004 Y L R 1028

[Lahore]

Before Farrukh Latif, J

KHALIL-UR-REHMAN---Petitioner

Versus

JUDGE FAMILY COURT, MULTAN and another ---Respondents

Writ Petition No.5310 of 2003, decided on 9th December, 2003.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Powers of High Court in Constitutional jurisdiction were not analogous to those of an Appellate Court--­Constitutional jurisdiction could only be exercised if the lower Court had exceeded its jurisdiction or acted without jurisdiction---When a Court possessed jurisdiction, finding of fact recorded by it could not merely be disturbed on the ground that another view was possible on the same evidence unless that finding was based on no evidence or was fanciful or arbitrary.

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

----Ss. 5, 11 & 17-A ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance--­Assessment of evidence ---Jurisdiction--­Grievance of the husband that the quantum of maintenance allowance fixed by the Family Court to be paid to the wife was excessive and exorbitant---Appraisal of evidence, assessment of its evidentiary value and drawing inference therefrom was the function of the Family Court, which Court was vested with the exclusive jurisdiction to decide matters like determination of the amount of maintenance---High Court, in its extra­ ordinary jurisdiction, could neither substitute finding of fact recorded by Family Court nor give its opinion about adequacy or quality of evidence.

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

----Ss.17-A & S---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Maintenance allowance to disobedient child---Contention of the father was that the impugned judgment of the Family Court allowing the maintenance allowance was contrary to law, as a disobedient child was not entitled to such allowance ---Validity--­Where the fact of disobedience of child was not proved by the petitioner or any of his witnesses before the Family Court, it was held that the impugned judgment did not suffer from any jurisdictional infirmity--­Petition dismissed.

Mukhar-ul-Hassan Sididqui v. Judge Family Court, Rawalpindi and 4 others 1994 CLC 1216 distinguished.

Sardar Tariq Sher Khan for Petitioner.

2004 Y L R 1034

[Lahore]

Before Muhammad Muzammal Khan, J

IFTIKHAR AHMED---Petitioner

Versus

HAKAM BIBI---Respondent

Civil Revision No. 2006 of 2003, decided on 28th January, 2004.

(a) Islamic Law ---

----Gift---Conditions of---Transaction of gift--- Proof--- Fiduciary relationship between petitioner and respondent ­Contention of the petitioner was that a lawful and voluntary gift was made to him by the respondent---Fraud was alleged against the petitioner---Denial by the respondent of the gift and attestation of the mutation---Petitioner being beneficiary was required to prove not only the mutation but also the transaction---For a lawful gift there had to be some offer and acceptance and delivery of possession, but the petitioner failed to prove these things at the time of trial---Gift, in circumstances, by the respondent in favour of petitioner was not proved.

(b) Pardanashin Lady-----

---- Mutation---Pardanashin lady, protection to---Obligations with regard to Pardanashin lady---Respondent, despite being an old, illiterate and Parda observing lady was not provided any independent advice before the sanctioning of mutation---Obligatory on the beneficiary to have made the lady understand things done in connection with attestation and sanctioning of mutation, with regard to her unawareness, age and non-exposure to public---Any transaction, in such circumstances, by a lady could not be maintained without strict proof.

Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 Privy Council 204; The National Electric Radio, Refrigeration Co. (Pakistan) Ltd., Karachi v. Messrs Sachiliae Lauro, Naples (Italy) and 3 others PLD 1977 Kar. 264; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Manzoor Hussain v. Raja Shah and others 1992 CLC 602; Muhammad Hashim and others v. Arshad Javed and another 1991 MLD 986 and Baggu v. Mst. Rahman Bibi 1996 MLD 377 ref.

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

----O.XLI, Rr.30, 31 & 32---Judgments at variance---Appellate judgment to be followed---Reasons---If the judgments of the Trial and Appellate Courts were at variance, the appellate judgment would be followed, unless the same was against the record---Reasons for such conclusions being that firstly, Appellate Court was a Court of facts and exercises the same jurisdiction, as enjoyed by the Trial Court, secondly, at the time of hearing of first appeal the entire case opens and the Appellate Court could re-apprise evidence and give its own view point, in place of the one given by the Trial Court; thirdly, judgment of the Trial Court merges into the appellate judgment and fourthly Appellate Courts were normally presided over by comparatively senior judicial officers, having more experience to their credit.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1842 and Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 312 ref.

Rana Muhammad Arshad Khan for Petitioner.

Ghazanfar Ali Bhatti for Respondent.

2004 Y L R 1038

[Lahore]

Before Ch. Ijaz Ahmad, J

AMAN ULLAH KHAN and another---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and another---Respondents

Writ Petition No. 1492 of 1995, heard on 11th February, 2004.

(a) Rules of Business, (Punjab) 1974--------

----R. 21(2) & Sched. V---Constitution of Pakistan, Art.199---Constitutional petition—Locus poenitentiae principles of--­Applicability ---Duty and obligation of Government officials to refer matters to competent authorities---Grievance of the petitioners that the Director-General of the Authority had earlier passed an order in their favour due to which vested rights had accrued to them and therefore, the Chief Minister/Chairman of the Authority had subsequently no lawful authority to review the same---Order of the Chief Minister/Chairman of the Authority was not accepted by the Director-General of the Authority as the same was not in accordance with the policy of the Authority and thus he had to refer the matter back to the Chief Minister Chairman--No vested right accrued to the petitioners as the impugned order was not implemented and moreover the principle of locus poenitentiae was not attracted in the case--­Constitutional petition was dismissed.

Zahid Akhtar v. Government of Punjab and others PLD 1995 SC 530 and Jalal-ud-Din's case PLD 1992 SC 207 ref.

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

----Art.199---Constitutional petition of High Court---Scope---He who seeks equity must come to the Court with clean hands--­Authorities granted three extensions to the petitioners but the petitioners did not avail the same, therefore, they had not approached the Court with clean hands.

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

---- Art.199---Constitutional jurisdiction, discretionary in character---Principles.

Nawab Syed Raunaq Ali v. Chief Settlement Committee PLD 1973 SC 236 and Rana Muhammad Arshad v. Addl. Commissioner and others 1998 SCMR 1462 ref.

(d) Administration of justice---

---- Every case to be decided on its own peculiar circumstances and facts.

(e) Pleadings---

----Principle---Parties are bound by their pleadings.

Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322 ref.

(f) Malice--

----Principle---General allegation of malice is not maintainable in the eye of law.

Saeed Ahanad's case PLD 1974 SC 151 and Aman Ullah' case PLD 1999 SC 1092 ref.

Ch. Khurshid Ahmad for Petitioners.

Mian Muzaffar Hussain for Respondents.

Date of hearing: 11th February, 2004.

2004 Y L R 1043

[Lahore]

Before Muhammad Muzammal Khan, J

MAHBOOB ALI --- Appellant

Versus

BASHIR AHMAD and 2 others---Respondents

Regular Second Appeal Case No.52 of 2003, decided on 23rd December, 2003.

Civil Procedure Code (V of 1908)---

----Ss.96 & 107(2)---Appellate Court, jurisdiction and powers of---Failure to deposit decretal amount within stipulated time ---Consequences ---Contention of the appellant was that the respondents had failed to comply with the direction given in the decree of the Trial Court for depositing the decretal amount within the stipulate time period and as after passing the decree the Trial Court had become functus officio, therefore, the first Appellate Court could not have granted the respondents more time for deposit and further permission to deposit another amount--No question of extension of period for deposit of decretal amount was involved in the case, as the Trial Court was neither moved in this behalf nor any order was passed by it--­Order directing the respondents to deposit another amount was an appellate order which could have been passed only by the first Appellate Court as the appeal was directed against the original decree--­Appellate Court while hearing appeal against the decree of the trial Court, exercises the same jurisdiction which vested in the Trial Court and lis becomes open, without any restriction placed by the decree appealed against---No infirmity was thus found in the decision of first Appellate Court, which had exercised its jurisdiction within the ambit of law.

Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983 ref.

M. A. Aziz and M. Yaqoob Pannu for Appellant.

Ch. Muhammad Ashraf for Respondents.

Date of hearing: 16th December, 2003.

2004 Y L R 1046

[Lahore]

Before Muhammad Farrukh Mahmud, J

BASHIR AHMAD alias BASHIRA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.767-B of 2002, decided on 10th April, 2002.

Criminal Procedure Code (V of 1898)---

----S.497-- Penal Code (XLV of 1860), S.392/412---Bail, grant of---Extra judicial confession allegedly made by the accused and his co-accused before the complainant and another prosecution witness was the only incriminating evidence against the accused which was made jointly---Trial Court was yet to determine after recording evidence whether the said confession was admissible or not---Accused was admitted to bail in circumstances.

Ijaz Ahmad and another v. The State 1997 SCMR 1279 ref.

Malik Muhammad Saleem for Petitioner.

Muhammad Rafiq Rajput for the State.

2004 Y L R 1047

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SIDDIQUE ---Petitioner

Versus

ZAFAR ABBAS ---Respondent

Civil Revision No. 1907 of 2003, heard on 30th January, 2004.

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

----O.XXXVII & R.2(3)---Suit on the basis of pronote -decreed in favour of the respondent---Dismissal of application for leave to defend by the Trial Court on the ground that the same was drafted as a written statement---Validity---Court had power to treat an application as a written statement and a written statement as an application---Wrong drafting or wrong quotation of law by the party or its counsel would not debar Court from taking into consideration gist of assertions made therein---No written statement could be filed without grant of leave, in terms of O.XXXVII, R. 2 (3), C. P. C., therefore, it was unfair to dismiss the petitioner's said application treating same as a written statement, for the reason that it was not drafted properly.

Kala v. Board of Revenue and another PLD 1985 SC 208 and Mst. Rashida Khatoon and another v. Muhammad Nisa and another 1983 CLC 2209 ref.

Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 distinguished.

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

----O.XXXVII & R.2(3)---Suit on the basis of pronote decreed in favour of the respondent---Trial Court had dismissed the application for leave to defend application of the petitioner on the ground of absence of any assertion entitling him to grant of leave to defend---Validity---Said application by the petitioner contained assertions that claimed the promotes as forged and without consideration---Such assertions were thus enough for grant of leave to defend the suit, as those could not be determined without holding a regular trial.

Ch. Tanvir Akhtar for Petitioner.

Muhammad Akhtar for Respondent.

Date of hearing: 30th January, 2004.

2004 Y L R 1050

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD RAMZAN---Petitioner

Versus

FAZAL WAHID and 5 others---Respondents

Writ Petition No.597 of 2004, decided on 19th January, 2004.

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

----O. VIII, R.10 & O. IX, Rr. 6, 7 & 13---Ex part order, setting aside---Case was adjourned by the Trial Court for filing of written statement by the defendant, however, as he did not enter appearance on that date an order was passed for initiating ex parte proceedings against him on the same day---Validity---Said order of initiating ex parte proceedings was void ab initio, because when the order was passed the case was not fixed for hearing but only for filing of the written statement of the defendant and the date of filing of written statement was not the date of hearing---Suit could not have been decreed ex parte for non-appearance on the date when only written statement was to be filed.

Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104 ref.

(b) Limitation---

----Void order---No limitation runs for filing an application for setting aside the void order.

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

----Art.199---Constitutional petition---Maintainability---Where the impugned order was passed by the Court who had the jurisdiction to pass the said order and the same was neither corum-non judice nor illegal, Constitutional petition against such order would not be maintainable.

Noor Muhammad v. Sarwar Khan and others PLD 1985 SC 131 ref

(d) Administration of justice---

----Mere technicalities of procedural law should not be considered as a hurdle and may not be allowed to defeat the ends of justice.

Ziaullah Khan Niazi for Petitioner.

2004 Y L R 1054

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs HAKAS (PVT.) LTD. ---Petitioner

Versus

FAUJI CEMENT COMPANY LTD. ---Respondent

Civil Revision No. 676 of 2003, heard on 20th January, 2004.

Arbitration Act (X of 1940)---

----S.28---Civil Procedure Code (V of 1908), S.115---Revision petition--­Enlarging time for making award--­Arbitration proceedings---Application by petitioner to enlarge time for arbitration proceedings was dismissed by the Trial Court on the ground that there was no plausible reason with the petitioner to justify the earlier delay in proceedings--­Extension of time was allowed by the High Court by observing that the Trial Court had failed to properly examine the proceedings conducted by the arbitrators---Record showed that there were only three adjournments in arbitration proceedings and the evidence of the parties had also been concluded and only the arguments were to be heard by the arbitrators and thereafter the award was to be made--­Petition was allowed.

Messrs Vaseem Construction Co. v. Province of Sindh and 3 others 1991 MLD 2047 ref.

Sardar Zahir Ahmad for Respondent.

Date of hearing: 20th January, 2004.

2004 Y L R 1069

[Lahore]

Before Jawwad S. Khawaja, J

AHMAD KHAN---Petitioner

Versus

KHADIM HUSSAIN and another---Respondents

Civil Revision No.984 of 1999, decided on 9th June, 2003.

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

----Ss. 6 & 13---Suit for pre-emption--­Making of Talbs---Proof---Appellate Court after examining evidence on record had come to the conclusion that plaintiff had been unable to prove making of Talb-e-­Muwathibat---Testimony of witness of plaintiff had been duly considered by Appellate Court---Discrepancies and contradictions were found in the testimony of witness of plaintiff---Effect---Judgment of Trial Court whereby suit filed by the plaintiff was decreed, was rightly set aside by the Appellate Court in view of the discrepancies and contradictions in the testimony of witness of the plaintiff--­Plaintiff was unable to advert to any jurisdictional error or legal infrmity in the judgment and decree passed by the Appellate Court---Judgment and decree of Appellate Court would not require interference of High Court.

Ihsan Ullah Khan Lilla for Petitioner.

Zafar Iqbal Chohan for Respondents.

Date of hearing: 9th June, 2003.

2004 Y L R 1113

[Lahore]

Before Muhammad Akhtar Shabbir, J

MEHMOODA BEGUM and 4 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and 16 others---Respondents

Writ Petition No.9595 of 2003, heard on 26th January, 2004.

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

---Arts.76 & 77---Production of secondary evidence, mode and circumstances of--­Notice, requirement of---Requirement of law for production of secondary evidence is that the party in whose possession the document to be produced is given notice for production of the same in the Court or that it is proved when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court; or of any person legally bound to produce it, and when, after the notice mentioned in Art. 77 of Qanun-e-Shahadat Order, 1984, such person does not produce it or when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.

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

---Art. 77---Production of additional evidence, application for---Notice, requirement of---Application for permission to produce additional evidence did not make out that any notice under Art. 77 of Qanun-e-Shahadat Order, 1984 had ever been issued through Court in the prescribed manner to the respondent to produce the original document being the Talaqnama, nor was there any proof on the record that such Talaqnama was ever reduced into writing or ever sent to the respondent by her husband---Said application was not supported by any affidavit---High Court in Constitutional jurisdiction held- that the application for production of additional evidence must give full detail.

State of Rajasthan v. Khemraj AIR 2000 SC 1759 ref.

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

----Art. 76(c)---Secondary evidence, condi­tion precedent of---Under Art.76(c) of Qanun-e-Shahadat Order, 1984 the proof of loss of a document was the condition precedent to permission to lead secondary evidence---Where the loss of document was not proved, secondary evidence would become valueless.

Mukhtar Ahmad v. Muhammad Yunus 2001 CLC 1796 ref.

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

----Art.76---Production of secondary evidence, conditions of---Non fulfilment of conditions under Art.76 of Qanun-e­Shahadat Order, 1984---Record did not suggest that original document was lost or was not available or that the same could not be produced without inordinate delay or that same was available on record of case in any other Court---Secondary evidence, in circumstances, could not be allowed to be produced unless conditions laid down in Art. 76 of the Qanun-e-Shahadat for production of secondary evidence stood satisfied.

Muhammad Azam v. Abdullah 1999 CLC 200 ref.

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

----Arts.70 & 76---Oral evidence for documentary facts---Proof of--- Validity--­When any transaction had been drawn and executed in form of document, no oral evidence could be allowed to be produced to prove the same unless it was shown that original document had been lost or could not be produced or procured and that too, after obtaining permission from the Court for production of secondary evidence.

Kalsoom Akhtar v. Fazal Noor 2000 MLD 1653 ref.

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

----Art. 76 (c)---Secondary evidence, proof of---Mandatory provision of law is that party claiming the production of secondary evidence has to prove the loss of original document.

Mst. Khurshid Begum's case 1995 SCMR 1237 ref.

(g) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition--­Maintainability---Where the impugned order assailed in the Constitutional petition had been passed by the Additional District Judge while exercising its revisional jurisdiction, the writ against the same would not be competent unless it was proved that it was perverse and coram non judice.

Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322; Noor Muhammad v. Sarwar Khan PLD 1985 SC 131 and Muhammad Khan v. Mst. Ghulam Fatimah 1991 SCMR 970 ref.

Taqi Ahmad Khan for Petitioners.

Ch. Amanat Ali Bajwa for Respondents.

Date of hearing: 26th January, 2004.

2004 Y L R 1119

[Lahore]

Before Muhammad Farrukh Mahmud, J

FAIZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.73 of 1998, decided on 16th December, 2003.

Penal Code (XLV of 1860)---

----Ss.302 & 337-F(ii)---Appreciation of evidence---Presence of the injured eye­witness at the scene of occurrence could not be denied, as not only witness was an inmate of the house but also had received injuries at the hands of the accused--­Accused had admitted the presence of the other eye-witness though in a different context---Eye-witnesses had supported the prosecution version as set down in the promptly lodged F.I.R.---Accused was caught red-handed at the spot---Ocular account was fully supported by medical evidence---Accused had also admitted the occurrence but he had tried to give it a twist by levelling allegation of Zina against the deceased and an eye-witness and had failed to substantiate the same, which was even belied by the circumstances of the case---Motive as set out by the prosecution was quite plausible and undeniable--­Convictions and sentences of accused were upheld in circumstances.

Sardar Jamshaid Iqbal Khakwani for Appellant.

M. A. Farazi for Respondent.

Dates of hearing: 15th and 16th December, 2003.

2004 Y L R 1122

[Lahore]

Before Muhammad Muzammal Khan, J

NAZIR AHMED ---Petitioner

Versus

SAJIDA BIBI and 2 others---Respondents

Civil Revision No.985 of 2002, heard on 22nd January, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Suit for specific performance of agreement ---Pardanashin Lady--­Pardanashin lady, protection to---Ladies in the society are assumed to be weak as compared to men, especially those ladies who are not exposed to public and are Parda observing, and are thus protected by law---Transactions claimed against such ladies are to be shown to have contracted out of good conscience and after consultation with some independent person---Where there was no evidence on the file showing, good conscience of the transaction with the respondent who was a Parda observing lady, the suit could not have been decreed in favour of the petitioner.

Mst.Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204; Fayyaz-ud-Din v. Kutab-ud-Din AIR 1929 Lah. 309; Muhammad Isa Khan (deceased) represented by Khalida Adib Khanam and others v. Muhammad Hussain Khan and others PLD 1954 Pesh. 39; The National Electric Radio, Refrigeration Co. (Pakistan) Ltd., Karachi v. Messrs Schiliae Lauro, Naples (Italy) and 3 others PLD 1977 Karachi 264; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Muhammad Hashim and others v. Arshad Javed (Irshad Javaid) and another 1991 MLD 986; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Manzoor Hussain v. Raja Shah and others 1992 CLC 602 and Baggu v. Mst. Rahman Bibi 1996 MLD 377 ref.

Rana Nasrullah Khan for Petitioner.

Naim-ul-Hassan Sherazi for Respondents.

Date of hearing: 22nd January, 2004.

2004 Y L R 1126

[Lahore]

Before Ch. Ijaz Ahmad, J

Malik TARIQ MAHMOOD---Petitioner

Versus

PROVINCE OF PUNJAB, through Secretary to the Government of Punjab, Local Government and Rural Development Department, Lahore and another ---Respondents.

Writ Petition No. 1023 of 2004, decided on 22nd January, 2004.

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

----Art. 199---Constitutional petition--­Maintainability---When representation of the petitioner on a matter is pending before a competent authority, Constitutional petition on that matter would not be maintainable.

Ch. Tanbeer Ahmed Siddikui's case PLD 1968 SC 185 ref.

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

----Arts. 4 & 5(2)---Public functionaries, duty of---Public functionaries were duty bound to act in accordance with law---Even the Chief Executive of the country was duty bound to act in accordance with law in view of Art.4 read with Art. 5(2) of the Constitution.

Ch. Zahoor Elahi's case PLD 1275 SC 383 ref.

(c) Rules of Business of the Government Punjab-----

----Rule 21(2) & Sched. V---Powers of transfer of Government" servants---Authorities competent to make transfers of civil servants of different categories--­Guidelines---High Court reiterated the guidelines laid down by the Supreme Court for the public functionaries to exercise statutory powers in matters of transfer of Government servants.

Zahid Akhtar's case PLD 1995 SC 530 ref.

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

----Arts.199 & 4---General Clauses Act (X of 1897), S.24-A---Constitutional petition--­Duty and obligation of public functionaries---Duty and obligation of the public functionaries was to decide the appeals of the citizens without fear, favour and nepotism within reasonable time as envisaged by Art. 4 of the Constitution read with S.24-A of General Clauses Act 1897--­Authorities were directed to decide the representation of the petitioner with reasons strictly in accordance with law, after providing proper hearing to all the parties and within the prescribed time in the light of Art.4 of the Constitution read with S.24-A, of the General Clauses Act 1897---Constitution petition was disposed of accordingly.

Messrs Airport Support Service v. The Airport Manager, Karachi Airport 1998 SCMR 2268 ref.

Muhammad Shehzad Shaukat for Petitioner.

Muhammad Hanif Khatana, Addl. Advocate General on Court's call.

2004 Y L R 1133

[Lahore]

Before Syed Zahid Hussain, J

MAHMOOD-UL-HASSAN and 3 others---Petitioners

Versus

YATEEM BIBI and 36 others---Respondents

Civil Revisions Nos. 1395-D and 1396-D of 1997, decided on 15th January, 2004.

(a) Islamic Law---

---Sect---Presumption---Proof---Controversy whether deceased was a Sunni or Shia--­Presumption in the Sub-Continent was that all Muslims were Sunnis unless proved to the contrary by producing good evidence--­Onus to prove as Shia lay upon the party that asserted it.

Pathana v. Mst. Wasai and another PLD 1965 SC 134 ref.

(b) Islamic Law---

----Sect---Evidence---Preponderance of evidence---Contention of the petitioners that the respondents were not able to prove with cogent and convincing evidence that the deceased was a Shia ---Where the respondents had asserted that the deceased was a Shia and their depositions were consistently supported by other witnesses, it was sufficient evidence produced by them--­Preponderance of the evidence in civil matters was to be made the basis for forming an opinion and recording a finding on a particular issue and a slight discrepancy in such a process could not be made basis to erode the efficacy of the findings supported from material on the record.

Mst. Iqbal Begum v. Mst. Syed Begum and others AIR 1933 Lah. 80; Amir Ali v. Gul Shaker and 10 others PLD 1985 Kar. 365; Nazir Ahmad through legal heirs v. Boota and 3 others 1988 CLC 1925; Ghulam and 2 others v. Ghulam Sarwar Naqvi PLD 1989 Lah. 372 and Muhammad Sadiq v. Federation of Pakistan through Chairman, Pakistan Railways Board 1991 MLD 1 ref.

Abdul Majeed Khan for Petitioners.

Muhammad Anwar Bhinder for Respondents.

Date of hearing: 15th January, 2004.

2004 Y L R 1136

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM RASOOL---Petitioner

Versus

UMAR HAYAT alias Billa and another---Respondents

Civil Revision No. 1424 of 2003, decided on 21st January, 2004.

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

----S.115---Revisional jurisdiction--­Production of evidence at belated stage--­Validity---Contention of the petitioner was that the land under dispute was under joint ownership but the respondents were raising construction over it without resort to partition proceedings---Respondents relied upon an arbitration award and private partition of joint holdings produced for the first time in revisional jurisdiction--­Revenue Record showed that the land under dispute was still joint ---Effect--­Neither the private partition of joint holdings nor the alleged award had been asserted by the respondents in their written statements, therefore, the same could not be accepted as evidence at such a belated stage in revisional jurisdiction.

(b) Co-sharer--

----Joint immovable property ---Co-sharer's rights---Change in nature of property by a co-sharer---Contention of the petitioner was that the respondents being co-sharers in possession of the land, were trying to change its nature by raising construction thereon---Validity---Each co-sharer was owner in every part of the joint holdings to the extent of his entitlement---No co-sharer could be permitted to change character of the land to the exclusion of other co­ sharers, without resorting to some lawful partition proceedings.

Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130 and Fazal and others v. Ghulam Muhammad and others 2003 SCMR 999 Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 ref.

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

----O.XXXIX, Rr.1 & 2---Temporary injunction, grant of---Petitioner made out a prima facie and arguable case by claiming that the property was still joint and respondents had no right to raise constructions to change its character--­Validity---If the respondents were not restrained the petitioner was bound to suffer an irreparable loss and injury--­Balance of convenience also leaned in favour of the petitioner as the respondents were already in possession of the disputed land---Held in the circumstances, it was quite in the fitness of things and in the interest of parties that the injunction be issued.

Sohail Majeed Khan for Petitioner.

Subah Sadiq Kalasson for Respondents.

Date of hearing: 21st January, 2004.

2004 Y L R 1139

[Lahore]

Before Maulvi Anwarul Haq, J

MICRONET BROADBAND (PVT.) LTD. and 2 others---Appellants

Versus

PAKISTAN TELECOMMUNCATION AUTHORITY ---Respondent

R.F.A. No.169 of 2003, decided on 15th December, 2003.

Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)-----

----Ss.4, 5, 6, 7 & 9---Contract for provision of Digital Subscriber Line Services---Such contract already awarded to appellants contained a clause that award of any such ,further contract to other contractors would he subject to determination by Pakistan Communication Authority after consideration of market dynamics---Authority further launched such services in collaboration with private sector, but without notice and knowledge of appellants and without making such determination---Appellants complaining against breach of such clause of contract filed appeal, which as dismissed---Validity---Impugned order awarding subsequent contract did not contain any reference to such clause of previous contract or to any process applied for determining market trends or dynamic--­Alleged market dynamics survey conducted by Authority did not disclose as to who had conducted same and when---Contractor of subsequent contract was one of the failed bidders---Authority had treated impugned order to be an order passed by its officer--­Impugned order did not fulfill criteria laid down in S.6 of Pakistan Telecommunication (Re-Organization) Act, 1996---Powers vesting in authority in matter of contracts and in matter of dispute between licensee and contractors including appellants were outside purview of S.9 of the Act---Duty of authority was to have taken such decision in strict compliance with provisions of S.6 of Pakistan Telecommunication (Re­ Organization) Act, 1996 after giving notice to appellants being affected persons--­Alleged market survey was not free from doubt and conclusive in its own terms--­High Court accepted appeal and remanded matter to Authority for its decision afresh within specified period after hearing appellants and getting conducted a fresh market dynamics survey/study.

Umar Atta Bandial for Appellants.

Muhammad Shoaib Razzaq for Respondent.

Date of hearing: 15th December, 2003.

2004 Y L R 1143

[Lahore]

Before Maulvi Anwarul Haq, J

Sh. ASHFAQ-UR-RASOOL ---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY, through its Chairman, Islamabad and 2 others---Respondents

Writ Petition No.3408 of 2002, heard on 12th December, 2003.

(a) Registration Act (XVI of 1908)---

----S.1(2)---Islamabad Capital Territory--­Registration Act, 1908 applicable to such territory.

(b) Registration Act. (XVI of 1908)-----

----Preamble---Registration Act, 1908 constitutes a complete Code in itself, in matters of registration of documents.

(c) Registration Act (XVI of 1908)---

-----Ss.35 & 49---Constitution of Pakistan (1973), Arts.23 & 199---Constitutional petition---Decision issued by Deputy Director (Revenue) of Capital Development Authority to Sub-Registrar making registration of all kinds of deeds/agreements relating to properties located within Municipal limits of Islamabad subject to "No Objection Certificate" (NOC) to be issued by office of such Deputy Director---Contention of respondents was that purpose of such direction was to avoid fraudulent transactions and save innocent public--­Validity---Capital Development Authority and its Deputy Director (Revenue) did not figure anywhere in the scheme of Registration Act, 1908---Such direction having effect of creating hurdle in way of registration of document would ultimately deprive citizens of their rights under Art. 23 of the Constitution---Such rights were absolute and subject to only reasonable restrictions imposed by law in public interest---Respondents had no authority to impose any restriction on such right otherwise than in accordance with provisions of Art.23 of the Constitution--­Provisions of Registration Act, 1908 contained sufficient safeguards upon a strict observance thereof by Registering Authorities---High Court accepted Constitutional petition and set aside such direction by declaring same to be without lawful authority.

Ch. Muhammad Yunus v. The Islamic Republic of Pakistan PLD 1972 Lah. 847 ref.

Fertilizer Corporation Kamagar Union (Regd) Sindri and others v. Union of India and others AIR 1981 SC 344 and Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 rel.

Sh. Muhammad Suleman and Rana Ali Ahmad for Petitioner.

Malik M. Nawaz Khan for Respondents Nos. 1 and 2.

Nemo for others.

Date of hearing: 12th December, 2003.

2004 Y L R 1148

[Lahore]

Before Muhammad Muzammal Khan, J

WARIS ALI ---Petitioner

Versus

SURRAYA BIBI---Respondent

Civil Revision No.2338 of 2003, decided on 23rd December, 2003.

(a) Pardanashin Lady-----

--- Pardanashin lady entitled to protection--­Scope---Assertion of the petitioner was that as the lady could fluently sign, she could not be considered a Pardanashin lady--­Validity---Such assertion had no legal substance as it was in the knowledge of a common man that ladies living away from big cities, were not trained and intelligent enough to deal and handle acts of execution of agreements and attestation of mutations, therefore, the lady although not wearing a veil, was a non-working lady and as such was entitled to protection under the law provided to a Pardanashin lady.

(b) Pardanashin Lady---

--- Pardanashin lady entitled to protection--­Parda observing ladies protected under the law---Where during the transaction the lady was neither accompanied by any male member or her family, nor had any independent advice nor was made to understand the transaction, such transaction could not be considered as lawful and, in circumstances, beneficiary had thus failed to prove good conscience of the transaction to claim rights as the beneficiary.

Mst. Mahmooda begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Fazal Jan v. Roshan Din and others PLD 1990 SC 661; Mst. Hassan Bibi v. Ghulam Siddique and others 1992 CLC 402 and Baggu v. Mst. Rehman Bibi 1996 MLD 377 ref.

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

----Art.79---Evidence Act, 1872, S.68--­Document, execution of---Proof---Document was executed after coming into force of Qanun-e-Shahadat Order, 1984 so it was to be proved according to provisions of Art. 79 of the Qanun-e-Shahadat by producing two marginal witnesses---Petitioner's attempt to prove execution of the document through one marginal witness and scribe by relying on judgments of the superior Courts under the old Evidence Act, 1872 did not succeed as the said documents were executed after the promulgation of Qanun-e-Shahadat Order, 1984.

Mst. Rasheea Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

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

----S.39---Document, cancellation of---Suit for---Suit for cancellation of mutation of exchange was a suit under S.39 of Specific Relief Act, 1877 and such a suit could be filed even where the plaintiff was not in possession of the land in dispute.

Fateh Ali Shah and others v. Muhammad Bakhsh and others AIR 1928 Lah. 516 and 1999 Indian Cases 165 (1936) page 625 ref.

Mohsin Raza for Petitioner

2004 Y L R 1151

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHAZI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1242/B of 2003, decided on 4th December, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34/449---Bail, refusal of---Accused was seen inside the house at small hours of the night and was duly identified by the complainant and other witnesses while running away after scaling over the wall--­Electric bulb, according to F.I.R., was on and the same if not mentioned in the site plan was a lapse on the part of the Investigating Officer---Deceased had lost his life due to fire-arm injury---Prosecution witnesses had woken up after hearing the fire-shot and had seen the accused near the cot of the deceased---Accused was, prima facie, connected with the crime on reasonable grounds--Offence was hit by the prohibition, clause of S.497(1), Cr.P.C.--­bail was refused to accused in circumstances.

Muhammad Munir Gondal for Petitioner.

Hafiz Muhammad Asghar Loung for the State.

2004 Y L R 1155

[Lahore]

Before Maulvi Anwarul Haq, J

SAADAT---Petitioner

Versus

SHER MUHAMMAD ---Respondent

Civil Revision No.239 of 1999, heard on 18th December, 2003.

Civil Procedure Code (V of 1908)---

----O.XXVI, R.16---"Local Commissioner" and "referee "---Distinction---Appeal decided against the petitioner by the District Judge on the basis of the report of Local Commissioner treating him as a referee-- Contention of the petitioner was that the Local Commissioner appointed by the Court could not be treated as a referee as his report was subject to objections by the parties---District Judge had acted with material irregularity by treating the Local Commissioner as a referee and arbitrator despite the fact that the directions issued to the latter were of the nature of the Local Commissioner.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 and Naveed Aziz and another v. Rauf Ali Syed 1996 CLC 1932 ref.

Malik Shahzad Ahmad for Petitioner.

M. Siddique Awan for Respondent.

Date of hearing: 18th, December, 2003.

2004 Y L R 1175

[Lahore]

Before Muhammad Muzammal Khan, J

BASHIR---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector and 2 others---Respondents

Civil Revision No.1291-D of 1995, decided on 23rd December, 2003.

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

----S.30(2)---Cancellation of allotment--­Show-cause notice, provision of---Principle of natural justice, violation of---No show­ cause notice was served on the petitioner who was the subsequent transferee pf allotted land by the Board of Revenue under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912 before cancellation of allotment---Effect---Held, provision of notice of hearing before cancellation was a statutory provision and petitioner being a lawful transferee was entitled to notice as well as hearing, thus, the order of the respondent was bad in law.

Mian Bashir Ahmad v. The Government of Sindh through Chief Secretary, Sindh Secretariat Karachi and 3 others 1997 MLD 1847 ref.

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

----Ss.16 & 30(2)---Scope of ---Ss.16 & 30(2) Colonization of Government Lands (Punjab) Act, 1912--- Board of Revenue can proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under Ss. 16 & 30(2) of Punjab Colonization of Government Lands (Punjab) Act, 1912, but not with regard to land permanently settled on the allottees --­Where the petitioner had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land, his allotment could not be cancelled---Board of Revenue was not equipped with any authority even to cancel allotment in favour of the original allottee or the petitioner, after receipt of price and execution of sale-deed.

Government of Punjab Province v. Malik Harbhagwan and another 1940 PLR 529 ref.

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

----S.30(2)---Delegation of power--­Validity--Ultra vices act---Absence of fraud or misrepresentation---Power under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912 given to Board of Revenue could not have been delegated by it, but instead, without holding any inquiry and after passing the order of cancellation against the petitioner it had remitted the case to its subordinates---Validity---Course adopted by the Board of Revenue was not permissible under the law and in the absence of proof of fraud or misrepresentation the order of cancellation was void, contrary and ultra vires of the provisions of S.30(2) of Colonization of Government Lands (Punjab) Act, 1912.

Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha v. Muhammad Akram PLD 1993 Lah. 114 and Muhammad Liaqat and 5 others v. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others 2000 CLC 953 ref.

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

----Ss.16 & 30(2)---Statutory notifications, validity of---Locus poenitentiae principle of---Order of Board of Revenue based on the notification relating to the fact that the allotment to the petitioner fell within the prohibitory zone of the municipal limits was not a good ground to cancel the allotment because once the land was made available for allotment, it was transferred and it settled on the petitioner, it would supersede all the notifications imposing prohibitions--­Presumption in law is that acts done by the statutory functionaries are done in good faith and in lawful manner, according to law applicable at that time---Board of Revenue, under the principles of locus poenitentiae. was not justified in canceling land of the petitioner through subsequent notifications.

Naveed Shaharyar for Petitioner.

Ch. Muhammad Suleman, Addl. A.-G. for Respondent.

Date of hearing: 4th December, 2003.

2004 Y L R 1180

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ---Petitioner

Versus

SHAHBAZ and 21 others---Respondents

Writ Petition No. 4908 of 2003, decided on 30th December, 2003.

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

----O.VII, R.11 & O.XXIII, R.3--­Constitution of Pakistan (1973), Art.199--­Constitutional petition---Decree based on compromise---Petitioner's subsequent suit relating to the same matter--­Maintainability---Suit was rejected under O. VII, R. 11, C. P. C. by revisional Court--­Petitioner resorting to High Court under Constitutional jurisdiction to declare order of revisional Court as illegal---Pleas of the respondents that suit based on compromise was not executable, suit of the petitioner was barred by time and that the suit was not maintainable, rejected by the High Court---Suit of the petitioner could not be said to be barred or not maintainable especially where there was an assertion that part of the compromise was unperformed.

Nazir Ahmad and others v. Muhammad Din and others 1995 SCMR 933 ref.

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

----S.47(2)---Court has jurisdiction to treat an execution petition as a suit or a suit as an execution petition, without any requirement that earlier some execution petition should be pending---When a suit is treated as an execution petition, pendency of some earlier execution petition is not needed for such conversion.

Manzoor Ilahi, through its legal representatives v. Ch. Muhammad Akbar and. 2 others 1999 MLD 901 and Broken Hill Proprietary Company Limited v. Ghee Corporation of Pakistan 2001 CLC 707 ref.

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

----S. 47(2) & O.XXIII. R.4---Compromise decree, execution of---Decree was passed on a compromise between the petitioner and the respondents to reciprocally exchange lands---Any fresh suit by the petitioner to discharge respective obligations under the said decree could not be held to be barred.

Manzoor Ilahi, through its legal representatives v. Ch. Muhammad Akbar and 2 others 1999 MLD 901 ref.

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

----O. VII & R.11---Constitution of Pakistan (1973), Art. 199---Constitutional petition --­Decree based on compromise---Petitioner's subsequent suit relating to the same matter rejected under O. VII & R.11, C. P. C. by revisional Court being time-barred--­Question of limitation---Contention of the petitioner was that as he was in possession of the disputed land the limitation would not run against him---High Court refused to determine the question of limitation in Constitutional jurisdiction as it being a mired question of law and fact and issue regarding same was framed, it was the domain of the civil Courts to determine the same.

Tariq Mehmood Chaudhary Najam-ud-Din 1999 SCMR 2396. ref.

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

----S.115 & O. VII, R. 11---Revisional jurisdiction---Scope---Whether revisional Court can reject a plaint under O. VII, R. 11, C. P. C. ---Legality---Revisional Court cannot reject a plaint in place of the trial Court as while hearing the revision against an order refusing to exercise the jurisdiction under O.VII, R. H, C.P.C. the plaint is not pending before the revisional Court.

Mst. Balqees Begum v. Haji Ghulam Rasul 1994 CLC 2294 ref.

Sheikh Naveed Shaharyar for Petitioner.

Khurshid Ahmad Chaudhary for Respondents.

Date of hearing: 17th December, 2003.

2004 Y L R 1188

[Lahore]

Before Muhammad Muzammal Khan, J

MEHMOOD ALI and 4 others---Petitioners

Versus

Mst. NAZIRAN BIBI and 10 others--Respondents

Civil Revision No.262-D of 2000, decided on 30th December, 2003.

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

----O.IX & R.2---Dismissal of suit against certain respondents due to non-deposit of process fee by the petitioners---In the absence of the said respondents who were transferees through a joint sale-deed, for valuable consideration and claiming that they had no notice of the mutation in favour of the petitioners, suit of the petitioners', could not have been decreed---Contention of the petitioners in the revision petition that since the said respondents did not appeal against the judgment and decree passed by the Trial Court, the Appellate Court could not reverse the same, was without any substance, since, after the earlier dismissal, of the suit against the said respondents, they were not required 4to appeal against the subsequent decree which was not passed against them and if at all any such adjudication was needed, they were to be transposed by the Appellate Court and in that manner, after transposition, they were to be considered as appellants like other respondents.

Muhammad Saqib and others v. Shakily Jamil 1983 CLC 1705 ref.

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

----S.42---Defects in the mutation--­Unattested mutation---Validity---Unattested mutation whether proof of the transaction--­Contents of the alleged sale in favour of the petitioners did not carry any presumption of correctness, contents of which were not proved by examining the Patwari who entered it---Entry of mutation not proved by examining Revenue Officer, Patwari or the person who signed the mutation--­Revenue Officer claimed to have recorded statement of the original owners but did not get their signatures on the mutation--­Mutation not a document of title under the revenue law and to be used only for fiscal purposes---Any sale transaction involving mutation needs to be proved by reliable evidence---Insufficient proof of sale transaction where only one witness produced by the petitioner, simply deposing that he appeared before the Revenue Officer, where vendors had sated that they had sold their land and did not mention the transaction itself or passing of the consideration or transfer of possession under sale---Petitioner, thus, produced no evidence, documentary or oral to prove transfer of possession under the claimed sale, payment of consideration and the transaction of sale---Mere reliance on an unattested mutation- was no proof of transfer of title in favour of the petitioners---Revision petition was dismissed in circumstances.

Muhammad Ishaq and another v. Mst. Ghazala Riaz, and another 1997 SCMR 974 and Amir Zada Khan and another v. Itbar Khan and others 2001 SCMR 609 ref.

Rana Ghaffar Ahmed for Petitioners.

Ch. Manzoor Hussain for Respondents.

Date of hearing: 4th December, 2003.

2004 Y L R 1196

[Lahore]

Before Maulvi Anwarul Haq, J

NAEEM KHAN---Petitioner

Versus

TAUQIR SULTAN AWAN--Respondent

Civil Revision No.262 of 1999, heard on 19th November, 2003.

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

----O.XX, R.15-Rendition of accounts of partnership---Preliminary decree in favour of respondent, validity of---Contention of the petitioner was that the Trial Court had acted without lawful authority by passing a preliminary decree in favour of the respondent for rendition of accounts of partnership without framing issues and conducting trial---Validity---Material contents of the plaint of the respondent at the trial stage had been admitted by the petitioner in particular the partnership and its terms, and in such a case there was no need to record any evidence to pass the preliminary decree---Revision was dismissed.

Ram Singh v. (Firm) Ram Chand­ Tirath Ram and others AIR 1936 Lah. 78; Mt. Merha v. Kundan Lal and others AIR 1914 Oudh 399; Razia Begum v. Sahebzadi Anwar Begum and others AIR 1958 SC 886 and Messrs Friend Engineering Corporation, The Mall, Lahore v. Government of Punjab and 4 others 1991 SCMR 2324 ref.

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

----O.XX & R.15---Rendition of accounts of partnership---Preliminary decree in favour of respondent---Validity---One of the contentions of the petitioner was that the Trial Court had acted without lawful authority by passing a preliminary decree in favour of the respondent for rendition of accounts of partnership without allowing the parties to enter the witness-box and subjecting them to cross-examination from either side so that a guideline could have been provided to the auditor in order to conduct the audit and rendition of accounts---Validity---Where the facts provided by the respondent in his plaint were admitted by the petitioner there was no need for the parties to re-state the same in the witness box---Revision was dismissed.

Ch. Naseer Ahmad for Petitioner.

M. Mehboob Alam for Respondent.

Date of hearing: 19th November, 2003.

2004 Y L R 1199

[Lahore]

Before Mian Saqib Nisar, J

NAZAR MUHAMMAD and 2 others---Petitioners

Versus

GHULAM MUSTAFA and 3 others--Respondents

Civil Revision No.451 of 1998, decided on 16th January, 2004.

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

----S.152---Amendment of decree--­Principle of notice, applicability of--­Limitation for amendment, requirement of---Contention of the petitioner was that no correction could have been allowed in the decree passed by the Trial Court after the expiry of period of limitation and that too without notice---Validity---For the purposes of correction of a decree-sheet, so as to bring the same in line with the judgment, the Court had the powers even to suo motu make the correction, or, an application in this behalf could be moved at any time by the concerned party---No bar of limitation thus existed for amendment of decree---Where the Court was satisfied that the request of the party for amendment of the decree was genuine and bona fide and the mistake in the decree was apparent, conspicuous and floating on the surface of the record, it could correct the decree without notice to the opposite side.

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

----S.152---Amendment of decree--­Contention of the petitioner was that after the lapse of period provided for execution of the decree, no amendment could have been allowed---Validity---Although the decree had attained finality but due to the error of the Court, figures of the area that was claimed and awarded to the decree ­holder was not truly shown, therefore, the Court had the power, either on pointing of the concerned party or on its own motion, that it could even, after the expiry of the period of limitation for the execution, grant the amendment.

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

----Ss.152 & 115---Amendment of decree--­Revisional jurisdiction---High Court refused to interfere in exercise of its revisional jurisdiction where the Trial Court had drawn the decree-sheet incorrectly and any interference with the amended decree would have deprived someone of the fruits of the decree---Principle that no one should be prejudiced by the act of the Court had to be kept in view.

Shahbaz Khursheed for Petitioners.

Ras Tariq Chaudhry for Respondents.

Date of hearing: 22nd December, 2003.

2004 Y L R 1201

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ALI SABTAIN and 4 others---Petitioners

Versus

Mst. SHAHJAHAN BIBI and 9 others--Respondents

Civil Revision No.2115 of 1997, decided on 30th December, 2003.

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

----S.27---Summary proceedings before Revenue Officers of Revenue Officers---Revenue Officers should not embark upon determination of any complicated questions of rights of inheritance in summary proceedings and should leave it out for determination by the civil Court.

Muhammad Yousaf and 3 others v. Khan Bahadur through legal heirs 1992 SCMR 2334; Aurang Zaib v. Messrs. Al Haider Construction Company through Managing Partner and 4 others PLD 1993 Kar. 397; Ghous Bux v. Altaf Hussain and others PLD 1993 Kar. 410; Mst. Gul Pari alias Gulbaro v. Zarin Khan and others PLD 1994 Pesh. 249 and Muhammad Younis and another v. Mst. Inayat Begum 1984 CLC 3279 ref.

(b) Muslim Family Laws Ordinance (VIII of 1961)-----

----S. 4---Succession---Claim of inheri­tance ---Non-challenging of the mutation by the mother of the respondents during her lifetime, does not subsequently debar the respondents from claiming the share of inheritance of their father that vested in them, the moment the propositus died.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(c) Muslim Family Laws Ordinance (VIII of 1961)----

----S.4---Applicability of S.4, Muslim Family Laws Ordinance, 1961---Section 4 of Muslim family Laws Ordinance, 1961 had already come into effect at the time when the grandfather of the respondents was still alive and thus it would be applicable as the law giving right to respondents being daughters of pre­deceased son of a propositus to claim their share of inheritance---Provisions of S.4 of the Ordinance were not contrary to the Injunctions of Islam and were effective and part of the statute and thus the respondents were entitled to inherit share of their father, going to him from the estate of respondent's grandfather.

Allah Rakh and others v. Federation of Pakistan and others PLD 2000 FSC 1 and Muhammad Ali and others v. Muhammad Ramzan and others 2002 SCMR 426 ref.

Tafazzal Haider Rizvi for Petitioners.

Muhammad Yousaf Khan for Respondents Nos.1 and 2.

Date of hearing: 23rd December, 2003.

2004 Y L R 1206

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL WAHEED QURESHI---Petitioner

Versus

MUNICIPAL COMMITTEE, LALAMOOSA and 3 others--Respondents

Writ Petition No. 1033 of 2004, decided on 22nd January, 2004.

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

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Constitutional jurisdic­tion, exercise of---Principles of Civil Procedure Code 1908 are applicable in Constitutional proceedings.

Hussain Bukhsh's case PLD 1970 SC 1 ref:

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

----Art.199----Constitutional petition--Second Constitutional petition on the same subject---Maintainability---Where the petitioner had filed a second Constitutional petition on the same subject-matter and relief, second writ petition on the same subject-matter and relief was not maintainable.

Pir Bukhsh's case PLD 1987 SC 145 ref.

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

----Art.199---Constitutional petition--­Constitutional petition during pendency of appeal---Maintainability---Where the appeal of the petitioner was still pending adjudication before public functionary, Constitutional petition was not maintainable.

Ch. Tanbeer Ahmad Siddiky's case PLD 1968 SC 185 ref.

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

----S.24-A---Constitution of Pakistan (1973), Art.4---Duties and obligations of public functionaries---Public functionaries were bound to decide the appeals of the citizens without fear, favour and nepotism within reasonable time as envisaged by Art.4 of the Constitution read with 5.24-A of General Clauses Act, 1897.

Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268 ref.

Arshad Qayyum for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General.

2004 Y L R 1208

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE--Respondent

Criminal Miscellaneous No.1091-B of 2003, decided on 19th November, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Bail, grant of---Police had not recorded the statements of the prosecution witnesses of the last seen evidence for more than a year though they had informed the complainant at the funeral of the deceased that they had seen the deceased in the company of the accused---No motive had been alleged against the accused for the commission of the offence even in the said belated statements---Neither the recovered pistol was sent to the Forensic Science Laboratory, nor any crime empty was recovered from the scene of occurrence--­Accused was not absconder in the case--­Guilt of the accused needed further probe--­Accused was admitted to bail in circumstances.

Ch. Muhammad Shafique Piya for Petitioner.

Jamshaid Iqbal Khakwani for the State.

2004 Y L R 1209

[Lahore]

Before Sh. Hakim Ali, J

EJAZ AHMAD---Petitioner

Versus

AUDIT OFFICER and others--Respondents

Writ Petition No.2108 of 2002, decided on 11th February, 2004.

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

----S.20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Locus poenitentiae, principle of ---Application--­ Authorities through the impugned order demanded return of the total remuneration amount paid to the petitioner for his services from the Zakat grant, treating the same as an. irregular payment---Petitioner in the Constitutional petition challenged the impugned order---Petitioner could not be deprived of vested right which he had earned on the basis of act of the Authorities---Although the principle of locus poenitentiae was available to the Authorities whereby any order which was made by mistake could be undone, yet such order could not be withdrawn or rescinded once it had taken legal effect and created rights in favour of any individual- Petitioner having been given remuneration after approval by certain Authorities, had created vested right in his favour which could not be undone subsequently--­Authority which was competent to make order had the power to undo the same--­Such order, however, could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.

Chairman, Selection Committee/ Principle, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 ref.

(b) Administration of justice----------

-----Principle of equitable delivery of justice---Applicability---Principle of equitable delivery of justice would come into play for the rescue of a person who had rendered his services for a purpose and received remuneration amount thereof but was subsequently ordered by the Authorities to return the said amount---If the amount was directed to be returned, then he would be deprived of his services, without any fault on his part.

Raja Muhammad Sohail Iftikhar for Petitioner.

Sh. Raees Ahmad for Respondents Nos. 1 and 3.

Ahmad Mansoor Chishti, Assistant Advocate-General for Respondent No.2.

2004 Y L R 1212

[Lahore]

Before Muhammad Muzammal Khan, J

RIAZ AHMAD---Petitioner

Versus

MUHAMMAD SADIQ---Respondent

Civil Revision No.2455-D of 1996, decided 2nd January, 2004.

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

----S.13---Performance of Talbs---Suit for possession through pre-emption --- Dismissal of suit by Trial and Appellate Courts after appraisal of evidence on the ground that the witnesses of the petitioner were not truthful and their statements could not be relied upon to prove that the petitioner had performed the required Talbs---Statements of petitioner's witnesses narrating different circumstances taking place after performance of first Talb, did not wipe off' their statements whereby they had consistently corroborated the assertions of the petitioner---Where there were only minor discrepancies in the statements of the witnesses and both the witnesses were consistent regarding time, place, day and manner of conveying information of sale and manner of performance of Talbs, the petitioner had substantially performed Talbs required by S.13 of Punjab Pre-emption Act, 1991 and had proved it by evidence--­Narration of performance of Talbs in the plaint by the pre-emptor and proof of those by producing witnesses is substantial compliance of the law---Petitioner had to make a reference to his first demand by way of Talb-e-Muwathibat at the time of Talb-i­Ishhad---Where the petitioner had mentioned in Talb-e-Ishhad that he had performed Talb-e-Muwathibat in the presence of a deposing witness, nothing more was required to be done by him, under law.

Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 and Anwar Ali v. Shah Nawaz and others PLD 1989 Kar. 246 ref.

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

----S.13---Performance of Talbs, whether to be performed in the presence of same witnesses---Objection of the respondent that the second witness of notice of Talb-e-Ishhad was not present at the time of the performance of Talb-e-­Muwathibat---Law does not require that Talb-e-Muwathibat be made in the presence of two witnesses, who should be the same that would also sign the notice of Talb-e-­Ishhad.

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

----S.13(3)---Performance of Talbs--­Petitioner had performed all the three Talbs in accordance with law and as such his suit could not have been dismissed by the Courts below relying on minor discrepancies that do not dispel the impact of evidence of the petitioner's witnesses--­Pre-emptor who had made Talb-e­-Muwathibat and had dispatched notice of Talb-e-Ishhad within the specified time, had sufficiently complied with the provisions of S.13(3) of the Punjab Pre­emption Act, 1991.

Abdul Malik v. Muhammad Latif 1999 SCMR 717 and Muhammad Gul v. Muhammad Afzal 1999 SCMR 724 ref.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Arts.90, 91 & 92---Presumption of correctness---Where the sale was made through a registered sale-deed and the entire sale price was paid in the presence of the Sub-Registrar at the time of registration who had certified this fact in his order attesting the sale-deed, the Court attached a presumption of correctness to this endorsement, having been inscribed during the discharge of official/statutory duties.

Pirla and others v. Noora and others PLD 1976 Lah. 6 and Malik Wahid Bakhsh v. Ch. Muhammad Shafi PLD 1976 Lah. 1069 ref.

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

----Ss.25 & 27---Award of additional expenses to the vendee ---Where the vendee in the pre-emption suit claimed to have incurred additional expenses for the execution and completion of the sale-deed besides payment of the sale price, and he was not cross-examined in this regard by the petitioner, such would amount to admission of the vendee's claim by the petitioner---Portion of witness not cross­ examined was deemed to be admitted in the circumstances ---Pre-emption being a right of substitution, pre-emptor should bear all the expenses which were incurred by the vendee ---Additional expenses were awarded to the vendee alongwith the sale price.

Mst. Nur Jehan Begum through legal representatives v. Syed Mujtaba Ali­ Naqvi 1991 SCMR 2300 and Shah Muhammad and another v. Hafiza Begum and 2 others 2000 MLD 404 ref.

Imran Raza Chadhar for Petitioner.

Taqi Ahmad Khan for Respondent.

Date of hearing: 23rd December, 2003.

2004 Y L R 1218

[Lahore]

Before Ch. Ijaz Ahmad, J

SALMA AKHTAR BHATTI---Petitioner

Versus

MEHBOOB QADIR SHAH and 5 others---Respondents

Civil Revision No.862 of 2003, decided on 15th January, 2004.

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

----S. 47 & O.XXI---Kinds of decrees and their execution ---Declaratory decree is not executable and prohibitory decree can be executed only when it is violated.

Gladstone, Wyllie & Co. Ltd. v. Badsha Miah PLD 1960 Dacca 305 and Board of Intermediate & Secondary Education, Lahore and another v. Mrs. Najma Khurshid and another 2001 MLD 89 ref.

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

----Art. 181---Interpretation of Art. 181, Limitation Act, 1908---Prohibitory decree, execution of---Decree granting permanent injunction that -prohibits someone from doing an act is not capable of execution, as there is nothing to execute, until there is a violation of the prohibitory injunction.

Shyam Sundar Prasad v. Ramdas Singh AIR 1946 Patna 392 ref.

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

----O. XXI, R.32---Constitution of Pakistan (1973), Art.199---Application of O.XXI, R. 32, C. P. C. ---Order XXI, Rule 32, C. P. C. applies to both mandatory and prohibitory injunctions accordingly, there is no ground for non-applying the O. XXI, C. P. C. to a case of writ of mandamus issued by the High Court, if it is in the nature of a mandatory injunction---Application to enforce a decree granting perpetual or prohibitory injunction is not subject to limitation---If a prohibitory injunction is disobeyed the fresh cause of action arises for which remedy is either by issuance of mandatory injunction or in some other way.

Pauls's case AIR 1969 Kerala 232; Subbayya's case AIR 1969 A.P. 92; Murari's case AIR 1961 A.P. 482; Abdul Rajack's case AIR 1961 A.P. 482; State of Tamil Nadu v. Messrs National Trading Corporation 1961 L.W. 263; Aram Sinogh v. Salig Ram AIR 1975 Alaabad 11 and Him's case AIR 1957 A.P.44 ref.

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

----S. 24-A---Application of the petitioner submitted in terms of the judgments of the Trial and Appellate Courts rejected by the respondents without any cogent reasons--­Duty and obligation of the respondents to decide the application of the petitioner in accordance with law in view of S.24-A of the General Clauses Act, 1897.

Messrs Airport Support Service's case 1998 SCMR 2268 ref.

Arif Karim for Petitioner.

Mian Muhammad Sultan Masood for Respondents Nos.2 to 4.

Kh. Muhammad Afzal for Respondent No.5.

Muhammad Hanif Khatana, Additional Advocate-General for Respondent No.6.

Mian Hameed-ud-Din, D.A.-G. and Syed Ali Zafar as Amicus Curiae.

2004 Y L R 1229

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. SUGHRAN---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Writ Petition No.4925/Q of 2003, decided on 17th December, 2003.

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. ---Suit for dissolution of marriage filed by petitioner against her husband was decreed and petitioner (lady) during her Iddat period had contracted second marriage with the co-accused--­Effect---If Nikah was contracted by the lady during Iddat period and spouses started living as husband and wife, they were guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Nikah performed during Iddat period was liable to be cancelled as according to Shariah said Nikah was void and in order to validate the same, spouses could contract Nikah for the second time and if they failed to revive their Nikah, they would be guilty of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Marriage having been contracted by the petitioner with the co-accused during Iddat period, unless they would perform Nikah again, they could not live as husband and wife and would be guilty of offence of Zina---Second marriage contracted by a lady without observing iddat period, was an irregular marriage which ceased to be a valid marriage---Conviction of the lady was maintained especially when no law was produced in support of the contention that Nikah performed during iddat could be regularized after expiry of 90 days ---F.I.R. against the petitioner, in circumstances, could not be quashed, in circumstances.

Allah Dad v. Mukhtar and another 1992 SCMR 1273; NLR 1993 770; Mst. Kundan Mai v. The State PLD 1988 FSC 89; Ghulam Hussain v. Sirajul Haque and others 1997 PCr.LJ 1214; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Ghulam Shabbir Shah v. The State 1983 SCMR 942 and 1994 SCMR 2142 ref.

Sardar Tariq Sher Khan for Petitioner.

Muhammad Qasim Khan, A.A.-G.

2004 Y L R 1232

[Lahore]

Before Muhammad Farrukh Mahmud, J

NASEER AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1208-B of 2003, decided on 12th November, 2003.

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

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Penal Code (XLV of 1860), S.452---Bail, grant of---Further inquiry--­Accused admittedly was empty handed at the time of occurrence and according to F.I.R. neither he had removed his own trousers nor that of the alleged victim--­Whether an offence under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was made out or not, required further probe within the purview of S. 497(2), Cr. P. C. ---Section 452, P. P. C. did not attract the prohibitory clause of S. 497(1), Cr. P. C. ---Persons who had allegedly rescued the accused from the custody of the complainant had been found to be innocent---Contention that the accused was arrested only one month ago was not tenable, as once the Court had found that the case of accused had fallen within the ambit of S. 497(2), Cr. P. C. , statutory right of bail to accused could not be denied to him---Accused was admitted to bail accordingly.

Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585 ref.

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

----S. 497(2)---Bail, grant of---Case of further inquiry---Once the Court comes to the conclusion that the case of the accused falls within the purview of subsection (2) of S.497, Cr.P.C., bail becomes his statutory right which cannot be denied to him.

Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585 ref.

Sardar Muhammad Shamim Khan fuel petitioner.

Qari Nazir Ahmad for the Complainant.

Pir Sher Shah for the State.

2004 Y L R 1237

[Lahore]

Before Muhammad Muzammal Khan, J

Malik MUHAMMAD ADREES---Appellant

Versus

Ch. NUSRAT MAHMOOD and 4 others---Respondents

Second Appeal from Order No.162 of 2003, decided on 30th December, 2003.

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

----S. 15(1)---Limitation Act (IX of 1908). Ss.5 & 29(2)---Condonation of delay--­Appeal barred by limitation---Section 15(1) of West Pakistan - Urban Rent Restrictions Ordinance, 1959 was a special statute and provided for the time limitation for filing of appeal---By virtue of S.29(2), Limitation Act, 1908, provision of S.5 of the Limitation Act, 1908 would not be applicable for condonation of delay in case of appeal under West Pakistan Urban Rent Restrictions Ordinance, 1959 which was a special law---Delay in filing of appeal under the West Pakistan Urban Rent Restrictions Ordinance, 1959, therefore, could not be condoned under S.5 of Limitation Act, 1908.

Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88; Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239 and Abdul Rehman v. Inspector-General of Police, Lahore and 2 others PLD 1995 SC 546 ref.

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

----S. 15(1)---Limitation Act (IX of 1908), S.5---Appeal---Running of limitation period---Condonation of delay---Proper explanation of delay---Contention of the appellant was that the delay was due to the fact that his counsel did not inform him of the decision of the Rent Controller--­Further delay of 25 days was caused by the petitioner in filing of the appeal after he had received the certified copy of the order-- -Petitioner was unable to explain the reason behind said delay of 25 days--­Effect---When period of limitation starts running, it cannot be stopped by any subsequent act and delay of each day, had to be explained---Appellant had, thus, no case for condonation of delay---Application under S.5 of Limitation Act, 1908, was dismissed.

Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 S C M R 304; Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1975 SC 396 and Cantonment Board, Rawalpindi v. Muhammad Sharif through legal heirs PLD 1995 SC 472 ref.

Shaukat Hussain Khan Baloch, Advocate.

Date of hearing: 30th December, 2003.

2004 Y L R 1240

[Lahore]

Before Maulvi Anwarul Haq, J

Khan IFTIKHAR SHAHZADA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, ISLAMABAD---Respondent

Criminal Revision No.214 of 2003, heard on 21st January, 2004.

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

----S. 514---Penal Code (XLV of 1860), Ss.406/420---Abscondance of accused--­Surety bond, forfeiture of---Surety furnished bail bond---Petitioner had attested said bail bond---Accused having absconded, proceedings were initiated against the surety in terms of S. 514, Cr. P. C. and his non-bailable warrants for arrest were issued---Said warrants came back with the report that surety had gone abroad and Trial Court proceeded to issue notice to the petitioner holding that petitioner being attesting witness, was also bound by terms of bail bond---Notice was ordered to be issued to the petitioner directing him to produce surety before Court or to make payment of amount of the bond, failing which legal action would be taken against him---Validity---Trial Court had passed impugned order wholly without jurisdiction as petitioner who had only attested the bond as witness, by no stretch of imagination could be bound by terms of bail bond--­High Court allowing revision set aside order passed by Trial Court whereby notice was issued to the petitioner.

Syed Wosat-ul-Hassan Shah for Petitioner.

Atif Hussain Naqvi for Respondent.

Date of hearing: 21st January, 2004.

2004 Y L R 1241

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD MUNIR and 5 others---Petitioners

Versus

MUHAMMAD IQBAL and 73 others---Respondents

Writ Petition No.5289 of 2003, decided on 24th December, 2003.

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

----Ss. 2(2) & 97---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Preliminary decree---Challenged to---Suit against the petitioners had matured into a preliminary decree of the Court--­Objections that went in favour of the petitioners were not allowed to be raised by the High Court in Constitutional jurisdiction as these objections were not raised earlier by them in their written statement or at any subsequent stage of the proceedings in the suit---Held, that after dismissal of appeal by the Appellate Court against the preliminary decree, it could no more be attacked.

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

----O.XIV, R.1---Scope of O.XIV, R.1, C. P. C. ---Framing of issues after preliminary decree, legality of---Order XIV R.1, C. P. C. was of no benefit to the petitioners as issues regarding partition or otherwise of the property could not be framed once the property had been declared as joint through preliminary decree of the Court---Under O.XIV R.1, C.P.C. a fact asserted and denied, can only be brought to issues, but the issues sought to be framed by the petitioners, had no backing in the pleadings, thus no indulgence could be shown to the petitioners in this behalf.

Sadaqat Ali for Petitioners.

Mian Israrul Haq for Respondent No.46.

Ex parte for other Respondents.

Date of hearing: 12th December, 2003.

2004 Y L R 1245

[Lahore]

Before Ch. Ijaz Ahmad, J

GOVERNMENT OF THE PUNJAB through Secretary Housing and Physical Planning and another---Petitioners

Versus

MUHAMMAD ASHRAF---Respondent

Civil Revision No.2290 of 2003, decided on 4th December, 2003.

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

----Ss. 42 & 54---Constitution of Pakistan (1973), Arts. 4 & 5(2)---Allotment of plot--­Cancellation---Judgments at variance---Plot allotted to plaintiff was cancelled by Authorities/defendants on the ground that number of National Identity Card mentioned by the plaintiff in his application form was a fictitious number---Possession slip had been issued and the plaintiff had raised construction over the plot---Contention of the plaintiff was that there was no column in the application form for National Identity Card number---Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed---Validity---As there was no column in the application form to be filled by the plaintiff by mentioning the number of National Identity Card, therefore, the Trial Court erred in law to non-suit the plaintiff---Appellate Court was justified to reverse the findings of the Trial Court as there was no condition precedent in the rules and regulations of the Authorities regarding mentioning of such number at the time of submitting the application form---Public functionaries are duty bound to act in accordance with law as is envisaged by Art.4 read with Art.5(2) of the Constitution---Action of the Authorities was in derogation of their own rules and regulations, therefore, Appellate Court was justified to accept the appeal of the plaintiff; and the same was in accordance with law---No infirmity and illegality in the judgment of Appellate Court, appearing, revision was dismissed.

Abdul Hameed's case PLD 1969 SC 407; Ali Mir's case 1984 SCMR 433 and N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 PC 26 rel.

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

----Ss. 96 & 107(2)---Appellate Court, powers of---Reappraisal of evidence--­Scope---Appellate Court has right to reappraisal of evidence on record and after reappraisal, the Court can come to a different conclusion.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madrass PLD 1949 PC 26 and Board of Intermediate & Secondary Education, Lahore v. Syed Khalid Mehmood" 1985 CLC 657 rel.

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

----S. 115---Revisional jurisdiction of High Court, exercise of---Principles---High Court under S.115, C. P. C. is empowered to satisfy itself' upon three matters viz. that the order of the subordinate Court is within its jurisdiction; that the case is one in which the Court ought to exercise jurisdiction; and that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision---If High Court is satisfied upon the said three matters, it has no power to interfere because it differs from the conclusion of the subordinate Court upon questions of fact or law.

Mian M. Athar for Petitioners.

2004 Y L R 1252

[Lahore]

Before Muhammad Muzammal Khan, J

HABIB ULLAH KHAN---Petitioner

Versus

KARIM NAWAZ and another---Respondents

Civil Revision No.393 of 2002, decided on 15th December, 2003.

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

----S.16---Part performance of agreement--­Scope---If contract is severable the specific performance of agreement may be granted under S.16 of Specific Relief Act, 1877, for that part which ought to be performed.

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

----Ss. 12 & 16---Specific performance of agreement to sell---Part performance--­ Defendants executed agreement to sell in favour of plaintiff, regarding the land allotted to them---Plaintiff asserted that possession of the suit-land owned by one of the defendants was handed over to him and he had invested huge amount in developing the same---Defendants denied having executed the agreement to sell---Trial Court decreed the suit in favour of the plaintiff- Appellate Court dismissed the suit on the ground that the plaintiff was not entitled to get specific performance of the agreement to sell as he had not asked for performance of the agreement against the other defendants---Validity---Specific performance could have been filed only after finalization of allotment in favour of other defendants who were given land on different occasions and at the time when the suit was filed allotment in favour of the other defendants had not matured---Plaintiff being in possession of the suit-land was only to file suit on denial of defendants their liability to perform their part of contract and thus suit, which contained an assertion of refusal by the defendants to perform their part of contract, was not barred by limitation--­Appellate Court wrongly returned the judgment and decree passed by the Trial Court which not only ran counter to the evidence' on, the file but opposed to the law applicable or tainted with material illegality and irregularity---Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored---Revision was allowed accordingly.

Muhammad Suleman Qureshi for Petitioner.

Bashir Ahmad Chaudhary for Respondents.

Date of hearing: 4th December, 2003.

2004 Y L R 1256

[Lahore]

Before Muhammad Muzammal Khan, J

Dr. JAMIL SARFRAZ and another---Petitioners

Versus

Mrs. MUSSARAT MANSOOR and 5 others---Respondents

Civil Revision No.2449 of 2003, decided on 3'Oth December, 2003.

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

----O. VI, R. 17---Amendment of plaint--­Validity---Where the amendment proposed by the respondents in the plaint was essential for determination of the question of jurisdiction of the Court which was not given in the original plaint and did not change the nature of the suit or the cause of action or its complexion, same was rightly allowed by the Trial Court---Amendments not affecting the cause of action or nature of the suit, should be liberally allowed and time factor should not hinder, in such exercise---Amendment in the plaint can be allowed at any stage of the proceedings.

Mst. Rahim Noor v. Mst. Salim Bibi and 2 others PLD 1992 SC 30 and Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180 ref.

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

----O. VI, R. 17---Unauthorized amend­ments ---Where unauthorized amendments are introduced in the amended plaint by the plaintiff, beyond the order allowing the amendment of the plaint, those unauthorized amendments can simply be ignored and the defendants in their amended written statement can take an objection to this effect which will be subsequently decided by the Trial Court--­Any material introduced in the amended plaint which falls beyond the scope of order allowing amendment, should be ignored at the time of final decision of the case or the unauthorized 'amendments be removed from the file.

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

----O. 1, R. 3---Impleading of defendants, legality of---Objection to---Where the respondents, while the suit was at the trial stage, impleaded certain defendants as necessary and proper parties to the suit, their impleadment could not be objected to by the petitioners because by the said impleadment, no right of the petitioners was to be prejudiced---Suit property was claimed to be 'Benami', and to confirm this nature of the property the assistance of the impleaded defendants was required by the Court.

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

----S. 14---Condonation of delay--­Proceedings bona fide in Court without jurisdiction---Where the petitioners filed their revision petition with due diligence before the Court not having the pecuniary jurisdiction to hear the case, the delay caused due to this was to be ignored in calculating the limitation period within which the petition was to be filed in the Court having the jurisdiction.

Muhammad Riaz Lone, Advocate.

2004 Y L R 1260

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM HAIDER ---Petitioner

Versus

AHMAD KHAN and another---Respondents

Civil Revision No.380/D of 1999, heard on 12th December, 2003.

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

----Ss. 13 & 20---Right of pre-emption, exercise of---Variations in evidence—­Principle of rival pre-emptors ---Vendees also claimed to have equal right of pre­emption ---Trial Court dismissed the suit on the ground that one of the witnesses of the pre-emptor who was 70 years of age had mentioned wrong date and incorrect name of one of the attesting witnesses of the notice of Talb-i-Ishhad---Suit was dismissed by Trial Court and judgment and decree passed by the Trial Court was maintained by Appellate Court---Validity---Witnesses were not expected to remember each and every date after such a long time and such variations were natural for they were not to give statement as tape-recorders---Memory of each and every human being was not the same---Both the parties were equipped with equal right of pre-emption as both of them were co-sharers in the suit-land--­Judgments and decrees passed by both the Courts below were set aside and the suit was decreed in favour of both the parties equally under the provision of S.20 of Punjab Pre-emption Act, 1991.

Jalal Din and another v. Hakeem Chiragh Din and others PLD 1982 SC 41 and Abdul Qayum through Legal Heirs v. Mushke-e-Alam and another 2001 SCMR 798 ref.

Ch. Afrasiab Khan for Petitioner.

Ch. Saleem Murtaza Mughal for Respondents.

Date of hearing: 12th December, 2003.

2004 Y L R 1263

[Lahore]

Before Ch. Ijaz Ahmad, J

WATER AND POWER DEVELOPMENT AUTHORITY/LAHORE ELECTRICITY SUPPLY COMPANY LIMITED through Sub-Divisional Officer, Sheikhupura---Petitioner

Versus

Messrs BHATTI ICE AND RICE MILLS, BUCHIKI through Proprietor and another---Respondents

Writ Petition No. 10868 of 2003, decided on 16th December, 2003.

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

----Art. 199---Constitutional jurisdiction--­Scope---High Court has no jurisdiction to substitute its findings of fact in place of findings of inferior Tribunals.

Board of Intermediate Education, Lahore, v. M. Mussadaq Naseem Sindhu PLD 1973 Lah. 600 and Syed Azmat Ali v. The Chief Settlement Rehabilitation Commissioner PLD 1964 SC 260 ref.

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

----Art. 199---Constitutional jurisdiction--­Scope---Concurrent findings of inferior Tribunals---Constitutional petition is not maintainable in the High Court against the concurrent findings of the Tribunals below.

Khuda Bakhsh v. Muhammad Sharif and another 1974 SCMR 279; Muhammad Sharif and others v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and others PLD 1981 SC 522 ref.

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

----Art. 199---Constitutional petition--­Failure to implead a necessary party--­Where the Electric Inspector against whose orders the petitioner had filed the petition, was not impleaded as respondent, the Constitutional petition was not maintainable.

Rameez-ul-Haq's case PLD 1992 SC 221 ref.

(d) Natural justice, principles of---

----Principles of natural justice, fulfillment of---Where the petitioner was granted several opportunities by the Electric Inspector to file reply to the petition of the respondent, but the petitioner failed to file the same, the petitioner cannot subsequently be allowed to take the plea that the order of the Electric Inspector was in violation of the principles of natural justice---Nobody is allowed to get benefit of his own misdeed.

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

----Art. 199---Consthutional jurisdiction--­Scope---Constitutional jurisdiction is discretionary in character, he who seeks equity, must come to the Court with clean hands.

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

----Art. 199---Constitutional jurisdiction--­Scope---Matter was earlier decided against the petitioner on account of inaction of an officer ---Relief under Art.199 of the Constitution being discretionary, High Court considering the conduct of the petitioner, was vested with the power to decline relief sought in circumstances.

Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1461 ref.

Shabbir Ajmal Jaffery for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General on Court's call.

2004 Y L R 1268

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD ZAMAN---Petitioner

Versus

MUHAMMAD HANIF and another---Respondents

Writ Petition No-4071 of 1992, heard on 20th January, 2004.

(a) Punjab Pre-emption Ordinance (XVIII of 1990)---

---Preamble---Islamic law of pre-emption--­Applicability---Suit for pre-emption was filed on 31-5-1998---Punjab Pre-emption Act, 1973 ceased to exist on 31-7-1986---No statutory law was in the field till 27-8-1990 when Punjab Pre-emption Ordinance, 1990 was promulgated---In the absence of enacted law during the interregnum period beginning from 31-7-1986 till 27-8-1990, when the pre-emptor filed the suit, Islamic law of pre-emption would be applicable to his case.

Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Falak Sher v. Muhammad Mumtaz and others 1992 MLD 1879 ref.

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

----Ss. 13(3) & 35(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption was filed on 31-5-1988---Dismissal of the suit--­Retrospective effect of S.13(3) of Punjab Pre-emption Act, 1991---Validity--­Petitioner was non-suited on the ground that Talb-e-Ishhad had not been made according to S.13(3) of Punjab Pre-emption Act, 1991, by notice in writing to the other party---Section 35(2) of the Act was the saving provision that provided that in suits of pre-emption instituted between 1-8-1986 and 28-3-1990. it was sufficient for the pre­emptor to establish that he had made Talb­e-Ishhad in the presence of a truthful witness ---Pre-emptor was thus not required to prove in strict terms the issuance of notice of Talb-e-Ishhad in accordance with the provisions of S.13(3) of the Act, as said provision could not be applied retrospectively---Constitutional petition was thus allowed.

Muhammad Usman and another v. Khushi Muhammad and 2 others 2001 YLR 2908 ref.

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

----S. 6(2)---Repugnancy to Injunctions of Islam---Non-pleading of "Zarar and Zaroorat "---Suit of the pre-emptor was not filed under Punjab Pre-emption Act, 1991, but at a time when Islamic law of pre­emption was in force---Supreme Court through its judgment, that became effective after 31-12-1993, had declared that S.6(2) of the Act was repugnant to the Injunctions of Islam ---Pre-emptor, who would have filed suit after promulgation of Punjab Pre emption Act, 1991 till 31-12-1993 was bound to plead "Zarar and Zaroorat " under S.6(2) of the said Act---"Zarar and Zaroorat", however, was not required to be proved under the Islamic law---Petitioner had filed his suit as pre-emptor during the interregnum beginning from 31-7-1986 till 27-2-1990 under which Islamic law was applicable, therefore, there was no requirement of pleading "Zarar and Zaroorat " same being repugnant to the Injunctions of Islam.

Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province Lahore PLD 1994 SC 1 and Ghulam Hamdani v. Muhammad Iqbal and 9 others 1993 SCMR 1083 ref.

Mehdi Khan Chowhan for Petitioner.

Arshad Qayyum for Respondents.

Date of hearing: 20th January, 2004.

2004 Y L R 1272

[Lahore]

Before Muhammad Muzammal Khan, J

WAPDA through Chairman, and another---Petitioners

Versus

Syed IRSHAD HUSSAIN ABDI and 5 others---Respondents

Civil Revision No. 1091 of 2001, heard on 5th December, 2003.

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

----S. 115---Revisional jurisdiction---Where the petitioner committed the illegal and unauthorized act of disconnection of electric supply of the respondents for eight years, and subsequently took the plea that the bill of arrears due to which disconnection was made did not relate to respondents, the High Court in such a case would be careful to see that the petitioner does not escape the liability incurred by it.

Mercantile Co-operative Bank Ltd. v. Messrs Habib & Co. and others PLD 1967 Kar. 755 and A. Majid Sama v. The Asbestos Cement Industries and another 1996 M L D 803 ref.

(b) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Arts. 9 & 29---Bar of jurisdiction--­Question of limitation---Order of Ombudsman was not further challenged -by the petitioner which had attained finality--­Petitioner, in the presence of the said order could not take the plea that the suit by the respondents against the petitioner was filed after the expiry of the period of limitation, as the limitation period had begun from the date of the order of the Ombudsman.

(c) Maxim---

---`Actio personalis moritur cum persona'--­Applicability---Where the respondents were sons and daughters of the deceased principal respondent and were living alongwith him and had endured the sufferings of disconnection of electric supply for eight years due to the illegal and unauthorized activity of the petitioners, the maxim 'Actio personalis moritur cum persona', would not be applicable as the said respondents being sons and daughters of the main respondent had also sustained damages.

Mian Khurshid Alam Ramay for Petitioners.

Nemo for Respondents.

Date of hearing: 5th December, 2003.

2004 Y L R 1275

[Lahore]

Before Ch. Ijaz Ahmad, J

CRESCENT SUGAR MILLS LIMITED through Factory Manager---Petitioner

Versus

FAISALABAD DEVELOPMENT AUTHORITY through Director­ General and another---Respondents

Writ Petition No.465 of 2004, decided on 14th January, 2004.

Punjab Development of Cities Act (XIX of 1976)---

----Ss. 27 & 28---Lahore Development Authority Act (XXX of 1975), Ss.28 & 29--­Constitution of Pakistan (1973), Art.199--­Constitutional petition---Natural justice, principles of---Right of the petitioner to be heard---Grievance of the petitioner was that the Authorities without any lawful authority, through the impugned bills had demanded aquifer and sewerage charges from the petitioner---Validity---Said bills having been sent to the petitioner without passing of any order by the competent authority under the provisions of Punjab Development of Cities Act, 1976, orders passed by the Authority without affording opportunity of personal hearing were void and of no legal effect.

Pakistan and others v. Public-at­ large PLD 1987 SC 304; University of Dacca v. Zakir Ahmad PLD 1965 SC 90 and Pakistan Chrome Mines v. Enquiry Officer 1983 SCMR 1208 ref.

Z.A. Hashmi for Petitioner.

Ali Akbar Qureshi for Respondents.

2004 Y L R 1276

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

DIRECTOR-GENERAL, L.D.A. ---Petitioner

Versus

Haji ABDUL QADOOS---Respondent

Civil Revision No.313 of 1998, heard on 10th February, 2004.

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

----S. 96---Appeal, continuation of suit--­Finality of judgment---Appeal is a continuation of trial in which the judgment of the Trial Court merges into the judgment of the Appellate Court---Where the respondent did not challenge the setting aside of judgment and decree of the Trial Court, the judgment passed by the Appellate Court would achieve finality.

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

----O. VIII, R. 1--- "Written statement", definition of---Time of filing ---Procedure--­Written statement was a statement filed by the defendant in answer to the plaint and constituted his defence---Defendant could file the written statement without formal order of the Court at any stage---In the pleadings all available objections should be made in the shape of written statement.

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

----O. VIII, R.10---Failure to file written statement---Effect---Order VIII, R.10, C.P.C., was a punitive rule which was attracted when the defendant failed to file written statement.

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

----O. VI, R.9---Effect of document in pleadings---Under O. VI, R. 9, C. P. C. wherever the contents of any document were material; it was sufficient in any pleading to state the effect of the same as briefly as possible, without setting out the whole or any part of it, unless the precise words of the document or any part of it were material.

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

----O. VIII, R.10 & S.115---Revisional jurisdiction---Procedural impropriety--­Leading evidence without written statement---Trial Court struck off the right of the defendant to f le the written statement after giving certain opportunities--­Appellate Court, on appeal, remanded the case to the Trial Court with the direction to record the evidence of the defendant after giving opportunity of cross-examination to the plaintiff---Plaintiff in revision petition argued that the Appellate Court had allowed the defendant to lead evidence without realizing how evidence was to be led without pleadings of parties and the list of documents that were to be relied in the written statement---Judgment of the Appellate Court was modified by the High Court under revisional jurisdiction to the extent that the Trial Court should give an opportunity to the defendant to file the written statement---Mere technicalities of procedural law, were not be allowed to defeat the ends of justice.

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and others PLD 1975 SC 678 ref.

(f) Administration of justice----

----Procedural law---Mere technicalities of procedural law, unless offering insurmountable hurdles, were not be allowed to defeat the ends of justice.

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and others PLD 1975 SC 678 ref.

Ch. Abdul Rashid for Petitioner.

Ghulam Hussain Malik for Respondent.

Date of hearing: 10th February, 2004.

2004 Y L R 1279

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. IQBAL BIBI---Petitioner

Versus

ALLAH YAR and 2 others---Respondents

Writ Petition No. 11851 of 2003, decided on 2nd January, 2004.

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

----S. 24---Civil Procedure Code (V of 1908), O.XVII, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition ---Pre-emption suit---Deposit of Zar­e-Soem---Limitation---Accepting of challan form for deposit of Zar-e-Soem---Trial Court directed the pre-emptor to deposit Zar-e-Soem within three days ---Pre-emptor neither deposited the same as directed by the Trial Court nor any application was filed for extension of time---Suit filed by the pre-emptor was dismissed by Trial Court and the order passed by the Trial Court was maintained in appeal---Plea raised by the pre-emptor was that Zar-e-Soem had been deposited within thirty days as mentioned in S. 24 of Punjab Pre-emption Act; 1991, and accepting of challan form for the deposit had the affect of extension of time--­ Validity ---Pre-emptor had to deposit under S. 24 of Punjab Pre-emption Act, 1991, one­ third of the sale price of property in cash within the period fixed by the Court---Such period could have been extended by the Court itself to the maximum period of 30 days from the date of filing of the suit--­ Petitioner neither moved any application for extension of time fixed by the Court nor the Trial Court extended the period in exercise of suo motu powers, as .such, non­ compliance/default had occasioned on the part of the pre-emptor ---Order allowing deposit on challan form was a routine order and the Court did not apply its mind for extension of time---Such deposits usually are made at the own risk of the depositor--­ Whenever some extension was sought, the applicant had to give reason for extension, in absence of which, order for extension could not be passed by the Trial Court and that too without applying its conscious judicial mind to the fact that the deposit could adversely affect the rights of adversary which had accrued by the party's own lapse---Revisional Court had rightly dismissed the suit under S.24(2) of Punjab Pre emption Act, 1991—Judgment/order passed by the Appellant court in exercise of revisional jurisdiction was within the ambit of its jurisdiction allocated by law and did not suffer from any jurisdictional defect Constitutional petition was dismissed in circumstances.

Jahanzeb Khan v. Muhammad Iqbal 2000 SCMR 365 and Dur Muhammad v. Abdul Sattar PLD 2003 SC 828 distinguished.

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

----S. 115---Revisional jurisdiction of Courts, exercise of ---Principles---Revisional Court is equipped with powers to right the illegality committed by the Trial Court--­ Once the revisional Court comes to the conclusion that order of Trial Court suffers from legal defects, amenable to its jurisdiction under S.115, C. P.C., the Court can act in the like manner, as the Trial Court, can act---Although the scope of revisional Court is narrow, yet once the Court assumes jurisdiction in accordance with law, there is no restriction on, its power to pass any order according to the settled principles known for administration of justice.

Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Sadiq Ali v. Taj Din and others PLD 1992 Lah. 158 ref.

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

----S.115---Revisional jurisdiction of Court ---Suo motu powers---Whenever any illegality committed by Trial Court comes to the notice of Appellate Court, the Court can exercise suo motu its revisional jurisdiction.

Chairman, Board of Intermediate and Secondary Education, Balochistan, Quetta and 2 others v. Maleha Ejaz and another 1995 SCMR 1060 ref.

Aamir Muhammad Joiya Malik for Petitioner.

Muhammad Sher Cheena for Respondents.

2004 Y L R 1284

[Lahore]

Before Muhammad Khalid Alvi, J

BASHIR AHMAD‑‑‑Petitioner

Versus

KARIM BAKHSH and 2 others—Respondents

Civil Revision No.333‑D of 1999, heard on 11th December, 2003.

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

‑‑‑‑S.13‑‑‑Pre‑emption suit‑‑‑Talb‑e­-Muwathibat and Talb‑e‑Ishhad, non‑making of‑‑‑Plea raised by the pre‑emptor was that minor discrepancies in the evidence had occurred because of his being illiterate villager‑‑‑Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed in favour of the pre­emptor ‑‑‑Validity‑‑‑Evidence of the pre­emptor showed that neither Talb‑e-­Muwathibat was performed as pleaded nor Talb‑e‑Ishhad which were the pre‑requisite for enforcing a pre‑emptive right under Islamic Law‑‑‑Judgment and decree passed by the Appellate Court was set aside and the suit was dismissed.

PLD 1994 SC 162 and 1989 SCMR 797 ref.

Mian Arshad Latif for Petitioner.

Mian Habib‑ur‑Rehman Ansari for Respondents.

Date of hearing: 11th December, 2003.

2004 Y L R 1286

[Lahore]

Before Bashir A. Mujahid and Ch. Iftikhar Hussain, JJ

AHMAD YAR‑‑‑Appellant

Versus

THE STATE ‑‑Respondent

Criminal Appeal No.909 of 2001, heard on 27th January, 2004.

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

‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑­Sentence, reduction in‑‑‑Accused was the driver of the car and a shopping bag containing heavy quantity of narcotics was recovered from underneath the driving seat‑‑‑Accused, had never taken the plea either during investigation or before the Trial Court that the said narcotics belonged to his co‑accused‑‑‑Conviction of accused was upheld in circumstances‑‑­Considering that accused was a poor man and a previous non‑convict, his sentence of 14 years' R.I. was reduced to 10 years' R.I. with reduction in fine.

Malik Muhammad Imtiaz Mahal for Appellant.

Muhammad Siddique Khalid for the State.

Date of hearing: 27th January, 2004.

2004 Y L R 1288

[Lahore]

Before Muhammad Mozammal Khan, J

MUHAMMAD ASHRAF ‑‑‑ Appellant

Versus

AMJAD KHAN and 9 others—Respondents

Regular Second Appeal No.66 of 2060, heard on 19th December, 2003.

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

‑‑‑‑S.27(b)‑‑‑Subsequent title to property‑­Bona fide purchase, proof of‑‑‑Where the appellant claimed himself to be a bona fide, purchaser, for, valuable consideration, Without, notice, of the agreement to sell, it was for him to prove that he made all‑‑efforts to inquire about the title of the land in dispute and such efforts should have been proved on the file, through, evidence.

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

‑----S.27(b)‑‑‑Subsequent title to property‑‑‑Bona fide purchase, proof of---Appellant did not undergo any inquiry regarding title of the land, before, purchase as he did, not inquire from the respondent as to who was in possession of the land‑‑‑Subsequent purchaser was 'required to', prove that he had undergone 'necessary inquiry ,before purchase, and mere denial, of agreement to sell, would not, protect, him under the law.

Mst. Kair-ul‑Nisa and 6 others. v. Malik Muhammad Ishaque and 2 others PLD 1972, SC 25 and Mst. Surraya, Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 and Muhammad Shafi v. Muhammad Sarwar and others 1997 C L C 1231 ref.

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

‑‑‑‑S. 42‑‑‑Reporting of agreement to sell, requirement of‑‑‑Non‑reporting of agreement to sell to Revenue Authorities is of not much significance because it is neither the requirement of law nor there is any provision in the West Pakistan Land Revenue Act, 1967 for making such entry into the Revenue Record.

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

‑‑‑‑S.27(b)‑‑‑Subsequent title to property‑‑‑ ‑Bona fide purchaser, without notice‑‑­Where the notice of the agreement to sell to the appellant was not a matter of presumption but there was documentary evidence ,on the file to show that he had notice of the same law, in circumstances, would not extend protection to the appellant for being, a subsequent purchaser with no notice of the transaction.

Muhammad Bashir and others, v. Chiragh Din through legal heirs and others 2003 SCMR 774 and Muhammad Afzal v. Muhammad Ayub and others 2003 SCMR 961 distinguished.

Ghulam Farid Sanotra for Appetlant.

Hafiz Khalil Ahmed for Respondents.

Date of hearing: 19th December, 2003.

2004 Y L R 1294

[Lahore]

Before Muhammad Farrukh Mahmud, J

MAJEED alias MACHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1162‑B of 2003, decided on 19th November, 2003.

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

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11/10(3)‑‑‑Penal Code (XLV of 1860), S.338‑A(b)‑‑‑Bail, refusal of‑‑‑Victim, a minor unmarried girl, had levelled the allegation of Zina‑bil‑Jabr against the accused in her statement recorded under S.161, Cr. P. C. soon after the registration of the case‑‑‑No enmity existed between the parties previously‑‑‑Delay in reporting the matter to the police in such‑like cases was not material‑‑‑Opinion of the S. H. O. regarding innocence of accused was based only on the statements of the witnesses who were not present at the time of abduction and had not seen the occurrence‑‑‑Even otherwise, police opinion though relevant was not binding on the Court‑‑‑Reasonable grounds existed to connect the accused with the commission of the offence which attracted the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 ref.

Sardar Zulfiqar Ali Khan Rind for Petitioner.

Nishat Ahmad Bajwa and Ghazanfar Ali Khan for Complainant.

Mian Muhammad Mohsin Rasheed for the State.

2004 Y L R 1296

[Lahore]

Before Asif Saeed Khan Khosa, J

Sheikh SHOAIB FAROOQ‑‑‑Petitioner

Versus

THE STATE ‑‑Respondent

Criminal Miscellaneous No.4066‑B of 2003, decided on 20th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Emigration Ordinance (XVIII of 1979), S.17/22‑‑‑Bail, refusal of‑‑‑Accused had been specifically nominated in the F.I.R. as the sole perpetrator of the alleged offences with definite allegation‑‑­Prosecution witnesses including the complainant who had no reason for false implication of accused in the case had fully g involved him in their statements made before the Investigating Officer‑‑­Documentary evidence had cause on record to show that the accused had accepted receiving the relevant amount from the complainant for sending his nephew abroad for employment and now he was trying to shift his liability to somebody else‑‑­Accused had already been found guilty in the inquiry and the police investigation‑‑­Case of accused was hit by the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Saqib Saleem for Petitioner.

Malik Muhammad Imtiaz Mahal for the Complainant.

Mian Abdul Qayyum Anjum for the State.

2004 Y L R 1297

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

THE STATE ‑‑Respondent

Criminal Miscellaneous No.5589‑B of 2003, decided on 22nd October, 2003.

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

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑­Bail, grant of‑‑‑High Court had dismissed the bail application moved by the accused earlier on merits ‑‑‑Abductee, the star witness in the case, had now been murdered and her statement under S.164, Cr. P. C. was not recorded‑‑‑No chance for conviction of the accused in the circumstances if trial subsisted‑‑‑Bail could not be withheld as punishment‑Case of accused had become that of further inquiry‑‑‑Accused was no more required for investigation‑‑‑Bail was allowed to accused accordingly.

Malik Muhammad Imtiaz Mahal for Petitioner.

Ch. Muhammad Hafiz Rafique for the State.

2004 Y L R 1298

[Lahore]

Before Khawaja Muhammad Sharif, J

IBRAHIM and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1 of 2003 in Criminal Appeal No. 1189, of 2003, decided on 24th November, 2003.

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

‑‑‑‑S.426‑‑‑Penal Code (XLV of 1860), S.302(b)/34‑‑‑Suspension of sentence‑‑‑One of the male accused had been shown to have caused murder of the deceased and in complaint case specific injury to deceased and also to injured prosecution witness was attributed to him‑‑‑Female accused who was mother of male accused was a lady and was not named in the F.I.R.‑‑‑Sentence of female accused was suspended, but male accused having failed to make out case for suspension of his sentence, his petition for suspension of sentence, was dismissed.

Sheheryar Sheikh for Petitioners.

Miss Uzma Zakee for the State.

2004 Y L R 1299

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ILYAS ASHRAF and 3 others‑‑‑Petitioners

Versus

AITZAZ AHMAD, MAGISTRATE 1STCLASS, GUJRANWALA and 2 others‑‑Respondents

Writ Petition No. 15542 of 2001, decided on 24th December, 2003.

(a) Punjab Local Government Ordinance (XIII of 2001)‑‑‑--

‑‑‑‑‑Ss.30, 31 & 32‑‑‑Penal Code (XLV of 1860), Ss. 420, 468 & 471‑‑‑Criminal Procedure Code (V of 1898), S.403‑‑­Constitution of Pakistan (1973), Art. 13‑‑­Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Offences alleged against the petitioner fell under Ss.30, 31 & 32 of Local Government Ordinance, 2001 for fictitiously preparing National Identity Cards and also fell under Ss.420, 468 & 471 of Penal Code, 1860 for preparation of fake identity cards and using of them as genuine‑‑‑Alleged offences fell under two distinct statutes being tried independently in different Courts‑‑‑Contention of the petitioner was that trial of the alleged offences in different Courts at the same time would amount to double ,jeopardy in violation or Art.13 of the Constitution— Validity‑‑‑Where the extent of two offences was different and they fell under different statutes, their trial independently, would not amount to double jeopardy­ Constitutional petition was dismissed.

The State v. Anwar Khatak and others PLD 1990 FSC 62 ref.

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

‑‑‑‑S.154‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Competence of a Magistrate to direct registration of a criminal case‑‑­Contention of the petitioner was that the respondent being a Magistrate had no authority to order registration of a criminal case‑‑‑Anybody can report commission of a cognizable offence to the police under S.154, Cr. P. C. and the respondent being a citizen of the country, ignoring his position as a Magistrate, was competent to give information of commission of the offence‑‑­Constitutional petition was dismissed.

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

‑‑‑‑S.154‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑One illegal and cognizable act of any person, could make him liable under two enactments, triable by two different Courts‑‑‑Assertion of the respondent that both the complaint and the F.I. R. against the petitioner could be ordered to be tried by one Court instead of canceling of F.I.R. was credible‑‑‑Cancellation of the F.I.R. could not be done in its Constitutional jurisdiction by the High Court because the truthfulness or falsity of the assertions could not be determined by the High Court‑‑‑Constitutional petition was dismissed.

Xiomoria Mania De Armas Trojillo and another v. The State 2000 PCr.LJ 956 ref.

Mushtaq Raj for Petitioners.

Muhammad Ahsan Bhoon for Respondent No.3.

2004 Y L R 1303

[Lahore]

Before Raja Muhammad Sabir and Sh. Abdur Rashid, JJ

MUHAMMAD YASIN‑‑‑Appellant

Versus

THE STATE‑‑Respondent

Criminal Appeal No.1317 of 2001, heard on 30th October, 2003.

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

‑‑‑‑Ss.9(c), 21 & 22‑‑‑Appreciation of evidence‑‑‑Entire investigation in the case had been made by Assistant Sub‑Inspector of Police who had recovered narcotic substances, made them into sealed parcels, prepared their sample sealed parcels and also drafted its recovery memos. as well the complaint and also recorded statements of witnesses who attested recovery memos.‑‑­Validity‑‑‑Investigations carried out by said police officer. were violative of Ss.21 & 22 of Control of Narcotic Substances . Act; 1997‑‑‑Officer below the rank of Sub ­Inspector of Police could not seize in any public place and had no authority to search and arrest a person for recovery of narcotics‑‑‑Proceedings` of search, arrest and recovery, could not be processed or carried out by Assistant Sub-Inspector of Police axed recovery memos. prepared by him carried no legal force and accused on basis of investigations carried out by said officer could not be convicted‑‑‑ Assistant Sub‑Inspector of Police having carried out entire investigation in violation of mandatory provisions of S.21 of Control of Narcotic Substances Act, 1997, conviction and sentences awarded to accused were set aside and he was acquitted of charge against him.

Khalid Nawaz v. The State 1998 PCr.LJ 2008 and Nasrullah v. The State PLD 2001 Pesh. 152 ref.

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

‑‑‑‑Ss.9(c), 21, 22 & 26‑‑‑Appreciation of evidence‑‑‑Proceedings carried out, by Assistant Sub‑Inspector of Police‑‑‑Any search‑seizure or arrest of an accused in narcotics cases, provisions of Ss.21, 22 & 26 of Control of Narcotic Substances Act, 1997 would be attracted as they were, mandatory in nature and absence thereof would invalidate any search seizure and arrest and the whole action from inception to the end would be set at naught‑‑‑Officers below the rank of Sub‑Inspector of Police were just a non‑entity Jon the purposes of Control of Narcotic Substances Act, 1997.

Shaharyar Sheikh for Appellant.

Mrs. Salma Malik, A.A.‑G. for Respondent.

Date of hearing: 30th October, 2003.

2004 Y L R 1305

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

AHMAD NAWAZ‑‑‑Petitioner

Versus

THE STATE‑‑Respondent

Criminal Miscellaneous No.5972‑B of 2003, decided on 19th January, 2004.

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

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21‑‑‑Bail, grant of‑‑‑No precise measurement being possible at the time of recovery, possibility that SO grams of "Charas " might have been exaggerated could not be ruled out and the case being a border line one would fall, prima facie, under S. 9(b) of the Control of Narcotic Substances, Act, 1997, which was not punishable beyond seven years' R.I.‑‑­Raid conducted in the case and the investigation being carried out by an Assistant Sub‑Inspector of Police was also illegal in view of S.21 of the said Act‑‑­Accused was admitted to bail in the light of said contentions.

Malik Muhammad Imtiaz Mahl for Petitioner.

Yaqoob Qureshi for the State.