YLR 2005 Judgments

2005 Y L R 937

[Election Tribunal Sindh]

Before Justice Muhammad Moosa K. Leghari, Election Tribunal

Dr. ABDUL SATTAR RAJPAR‑‑‑Petitioner

Versus

Syed NOOR MUHAMMAD SHAH and 8 others‑‑‑Respondents

Election Petition No. 146 of 2002, heard on 23rd June, 2003.

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

‑‑‑‑Ss.52 & 99(1)‑‑‑Election petition‑‑­Petitioner/unsuccessful candidate had alleged that the returned candidate was not qualified to contest elections for the reasons that he was below 25 years of age at the time of submitting Nomination forms; that Iqra University from which Bachelor Degree was obtained by him was not affiliated with University Grants Commission of Pakistan; that pre‑poll and post poll rigging took place by and at the instance of the returned candidate and that elections were unfair and in violation of law etc.‑‑‑Validity‑‑‑Returned candidate by producing his birth certificate issued by Karachi Metropolitan Corporation and certificate in respect of his Secondary School Examination, had proved that his age was more than 25 years at the time of filing Nomination papers‑‑‑No evidence had been produced to the contrary by petitioner and no reason existed to doubt genuineness of certificates produced by returned candidate‑‑‑Returned candidate, in circumstances was qualified to contest election‑‑‑Petitioner in his cross­examination had himself admitted that he had not produced any proof to the effect that Iqra University from which returned candidate had obtained Bachelor Degree was not affiliated with University Grants Commission‑‑‑Returned candidate had produced copy of Iqra University Ordinance (VI. of 2000) whereby said University had been established which was empowered to confer or award degrees, diplomas and certificates etc. to persons passing examination under prescribed conditions from said University‑‑‑Returned candidate also had produced copy of list showing University/Degree Awarding Institutions and name of Iqra University appeared at Serial No. 7 of "Private Sector University/Degree Awarding Institutions" therein‑‑‑No evidence having been adduced in rebuttal, version of returned candidate which was supported by documents, had to be believed and it could be declared that Bachelor Degree, furnished by returned candidate was valid for the purpose of contesting election‑‑‑Petitioner, though in his affidavit in evidence had stated in detail the instances of alleged rigging and use of unfair means in election, but nowhere he had stated that said rigging/violation of rules/procedure were committed either by returned candidate or at least at his instance‑‑‑Petitioner and his witnesses also had not deposed that alleged riggings were committed by or at the instance of returned candidate‑‑‑Petitioner had also failed to prove that his relatives were assaulted by returned candidate or by his supporters on the day of polling‑‑‑Standard of proof required to establish charge of illegal procedure in election, was badly lacking in the case as there was no reliable evidence to hold that alleged rigging was committed by returned candidate to get himself elected and that elections were unfair‑‑‑Petitioner having failed to establish allegations of corrupt and illegal practice against returned candidate, election petition was dismissed.

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

‑‑‑‑S.52‑‑‑Election petition‑‑‑Standard of proof with regard to allegations required in Election petition would be like that of a charge in a criminal trial and benefit in case of doubt would go to the returned candidate‑‑‑Burden and onus to prove allegation was basically on the petitioner who was required to prove allegation of illegal practice by an independent, convincing, cogent, clear, consistent and confidence inspiring evidence.

Sathi Muhammad Ishaque for Petitioner.

A. D. Hotwani, for Respondent No. 1.

Date of hearing: 23rd June, 2003.

2005 Y L R 20

[Karachi]

Before Azizullah M. Memon, J

GHULAMULLAH---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.425 of 2004, decided on 26th June, 2004.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/447---Bail, grant of---Serious allegations were made against accused of having trespassed into the school premises and then fixed pistol on Head Mistress of the school with intention to kill her, but bullet so fired did not hit the person of Head Mistress because complainant timely acted to save her---Number of documents filed with bail application had indicated that husband of Head Mistress was being complained against by accused with very serious type of allegations---Case against accused was of ineffective firing---Accused was admitted to bail on basis of peculiar facts and circumstances.

Rasool Bux Palijo for Applicant.

Syed Madad Ali Shah for the Complainant.

Muhammad Azeem Panhwar for the State.

2005 Y L R 47

[Karachi]

Before Muhammad Ashraf Leghari and Azizullah M. Memon, J

MAMOO alias MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.42 of 1997, decided on 11th December, 2003.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence—­F.I.R of the incident was promptly lodged and name of accused appeared in the F.I.R. ---Fatal injury was attributed to accused and incident was seen by complainant and other prosecution witnesses who had supported prosecution case---Medical evidence was in conformity with ocular evidence and said evidence had not been shattered by the defence--­Evidence inspired confidence which could not be disbelieved or discarded for minor discrepancies---Accused had admitted factum of firing in his confessional statement, but with version different to the evidence of prosecution witnesses---Version of accused was that he was invited in the marriage ceremony of deceased and he was sitting on the side of bride groom deceased and participants, friends and relatives of bridegroom were firing to celebrate marriage ceremony---Accused had further stated that bridegroom/deceased handed over his pistol to him for loading and while he was loading same, it accidentally went off and hit deceased on his back who later on succumbed to injuries in the hospital--­Version of accused as expressed in judicial confession could have truth in it; firstly for the reason that accused was invited in the marriage ceremony and was sitting by the side of bridegroom; secondly, after incident was over accused was not captured by the participants'; thirdly, prosecution failed to prove motive as set up by it and fourthly, complainant party had enmity with co­ accused who was let off by police and direct complaint filed against said co-accused 'by complainant also ended in his acquittal--­Version of accused as expressed in confession before Magistrate appeared to be more plausible---Version of accused having cast reasonable doubt, on the prosecution story benefit of such doubt was to be extended to accused by adopting safer course of administration of criminal justice---Death sentence awarded to accused by Trial Court being extreme penalty, same was reduced to period of sentence already undergone by accused as he had no criminal intention to commit murder of deceased, but pistol went off accidentally.

Anwer Hussain Shaikh for Appellant.

Muhammad Azim Panhwar for the State.

Date of hearing: 2nd December, 2003.

2005 Y R 53

[Karachi]

Before Muhammad Moosa K. Leghari, J

Messrs PAKISTAN CABLES LIMITED---Plaintiff

Versus

Messrs MANDVIWALA ESTATE (PVT.) LIMITED---Defendant

Suit No. 1465 of 2001 decided on 7th April, 2004.

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

----S. 9---Ingredients of S.9, Specific Relief Act, 1877---Section 9, Specific Relief Act, 1877 consisted of four ingredients; firstly, the person suing, must have been dispossessed; secondly, such dispossession must be of immovable property; thirdly, dispossession should be without consent; and fourthly, dispossession should be otherwise than in due course of law.

Riaz and others v. Razi Muhammad 1982 SCMR 741 and Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another 2001 SCMR 345 ref.

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

----Ss. 9 & 54---Suit for possession and permanent injunction---Plaintiffs who were in possession of premises in dispute as tenants; were dispossessed, without any legal proceedings---Case of plaintiffs was that they were dispossessed without their consent; while defendants had pleaded that plaintiffs had consented and had voluntarily handed over the possession of premises to them---Burden, in circumstances was upon defendants to positively prove that possession of premises was handed over to them by plaintiffs voluntarily, but defendants had not been able to prove that plaintiffs had given 'consent' to vacate premises in question as they had neither produced any documentary evidence to prove that issue nor any witness was examined by them before whom any such consent was made by plaintiffs---Held, plaintiffs had not vacated the suit premises voluntarily and they had not given any consent to that effect and therefore, had been dispossessed without their consent--­Plaintiffs who had been dispossessed illegally were directed to be re-inducted into possession forthwith.

Ghulam Rasool v. Muhammad Waris Bismil 1995 SCMR 500 ref.

Abbad-ul-Hussnain for Plaintiff.

Tasawur Ali Hashmi for Defendant.

Date of hearing: 25th March, 2004.

2005 Y L R 66

[Karachi]

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

KARACHI INTERNATIONAL CONTAINER TERMINAL LIMITED---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

C.P. No.D-1042-of 2004, decided on 4th November, 2004.

(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)-----

----Ss. 14, 16 & 2(e)---Recovery of tax from tenant---Scope---"Owner" and "rent'--­Interpretation.

From a plain reading of section 14 of the West Pakistan Urban Immovable Property Tax Act, 1958, it is evident that it does not absolve owner of the building or land from his liability towards the payment of property tax, but only empowers the concerned authority to enforce recovery of such arrears of property tax from the person paying rent in respect of that building or land, after service of notice in the prescribed form (Form PT-14) calling upon said person and requiring him to pay all future payment of rents to the concerned authority until such arrears of property tax have been duly paid. It further provides that service of such notice shall transfer to the prescribed authority the right to recover and receive such rent and that in case the person paying rent willfully fails and neglects to comply with the notice issued by the prescribe authority, after due opportunity, the prescribed authority can proceed against him in the same manner as against the owner of the building of land in respect of which tax is in arrears. It is significant to note that word "owner" has been defined under section 2(e) of the Act of 1958 by giving it very wide meaning but the word "rent" used under this section has not been defined under the Act of 1958. Word "rent" has been defined in the dictionary as consideration paid periodically for the use or occupancy of the property. Thus, it is evident that definition of word "rent" cannot be narrowly interpreted in favour of a lessee to absolve him of any action against him in terms of section 14 and 16 of the Act of 1958 on the pretext that the payment of occupancy consideration to the owner of the property is under any other head though primarily attached to the letting out/leasing of the building/plot of land, and not for any other purpose.

Blacks Law Dictionary, 7th Edn. quoted.

(b) West Pakistan Urban Immovable Property Tax Act (V of 1958)-----

----Ss. 14 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Petitioner was lessee of Karachi Port Trust in respect of Container Terminals Berth for a period of 20 years---Petitioner, apart from being lessee, in terms of Articles of the Implementation Agreement and clauses of indenture of lease had undertaken payment of all such tax liabilities of the Federal or Provincial Government or any other autonomous body on their shoulder, besides payment of annual rent to the lessor---Lessee, in circumstances, was liable to pay property tax to the Taxation Authority---Suit between the parties being pending before the High Court the question of liability was to be adjudicated in the pending Civil Suit after recording of evidence or in any other appropriate proceedings---Framing of questions of law in Constitutional petition and seeking its adjudication through the Constitutional petition was misdirected as the question of payment of property tax on the basis of mutual agreement between the parties could not be summarily adjudged in the proceedings under Art. 199 of the Constitution---Principles.

In the present case apart from being lessee of the petitioner, in terms of Articles 14.3(c) and 18 of the implementation agreement and clauses 2 and 3 of the indenture of lease lessee had undertaken payment of all such tax liabilities of the Federal or Provincial Government or any other autonomous body on their shoulder, besides payment of annual rent to the lessor. In such circumstances, the crucial issue i.e. whether in terms of such agreement between the petitioner and lessor, the petitioner was liable to pay property tax to the Taxation Authorities was to be adjudicated in the pending civil suit, after recording of evidence or in any other appropriate proceedings, but the fact remains that the claim of Taxation Authorities against the petitioner in either of the two capacities of the petitioner was fully justified so also the impugned action taken under sections 14 and 16 of the Act 1958. The framing of questions of law in the present Constitutional petition and seeking its adjudication through this petition was also misdirected as the question of payment of property tax on the basis of mutual agreement between the parties could not be summarily adjudged in these proceedings. Not only the impugned action taken by the Taxation Authorities against the petitioner was within the four corners of the relevant provisions of the Act of 1958, but the Constitutional petition was frivolous and aimed to avoid liability of payment of legitimate claim of property tax.

The import of section 14 of the Act of 1958 makes the petitioner liable for payment of arrears of property tax in their capacity as lessee subject to its adjustment/ discharge in the account of lessor/owner of the property.

Trustees of Port of Karachi v. Secretary (Excise) Officio Director General, Excise and Taxation and another C.P. No.D-1209 of 1986 and Civil Appeal No.791-K of 1990 rel.

C. P. No.1930 of 2002 distinguished.

Aziz A. Shaikh for Petitioner.

Ahmed Pirzada, A.A.-G. Sindh for Respondent No. 1.

M.S. Sulehri for Respondent No.3.

Date of hearing: 20th October, 2004.

2005 Y L R 121

[Karachi]

Before Mushir Alam, J

Mst. KOURI---Petitioner

Versus

JHANDO and 3 others---Respondents

Constitutional Petition No.228 of 2004, decided on 11th October, 2004.

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

----S.491---Guardians and Wards Act (VIII of 1890), S.25---Constitution of Pakistan (1973), Art. 199-Custody of minor girl--­Father of the minor was stated to have proceeded abroad in connection with his employment---Grand father of minor, present in the Court had given statement in writing that he would ensure well being of minor and also undertook that minor's hand would not be given to any other person nor she would be engaged---Grand father bound himself to keep such commitment as long as minor girl attained majority---Mother of minor also undertook that she would look after her and she would not do anything that could cause injury to welfare and well­ being of the minor---Mother of minor would provide free access and liberty to paternal relations to visit minor at all reasonable time and by consent they would be allowed to take minor---Brothers of minor also bound themselves not to take any step that could prejudice the interest of minor in any manner and would restore minor to mother without any legal process---Parties agreed that such arrangement would continue as long as issue of minor's custody was not decided by Guardian Court if at all such issue was agitated otherwise parties could continue with such working relationship.

Jai Jai Veshno for Petitioner.

Asif Ali Abdul Razak Soomro for Respondents Nos.2 and 3.

Mushtaque Ahmed Kourejo for the State.

2005 Y L R 122

[Karachi]

Before Khilji Arif Hussain, J

ABDUL MALIK ---Petitioner

Versus

MUHAMMAD ARSHAD and others---Respondents

Constitutional Petition No.S-170 of 2003 decided on 5th March, 2004.

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

----Ss.2(h) & 15---Ejectment application--­Maintainability---Tenant against whom ejectment application was filed by landlords on various grounds including personal bona fide requirement, had challenged maintainability of ejectment application contending that premises in question was a hotel and not . a shop---Landlords had claimed that they had rented out a shop to tenant who, after taking same on rent, had converted it in a hotel and that premises was never let out as a hotel to the tenant--­After filing ejectment application by landlords, tenant himself filed application under S.10 of Sindh Rented Premises Ordinance, 1971 seeking permission to deposit rent in Court 'which had clearly established that tenant had himself admitted jurisdiction of the Rent Controller---Tenant in his written statement had admitted that he had taken on rent a shop from the landlords---Tenant in his cross-examination had stated that he had established a hotel in shop which spoke volumes that he had started business of hotel after taking premises as shop and not as hotel--Tenant was rightly ordered to be ejected from the premises.

Shafiqur Rehman v. Haji Agha Hassan 1995 SCMR 313; Muhammad Anwar v. Jamaluddin 1996 SCMR 771 and Ata Muhammad and another v. Mir Ahmad and another 2003 SCMR 722 ref.

(b) Words and phrases---

----`Hotel'---Meaning and connotation, explained.

Shafiqur Rehman v. Haji Agha Hassan 1995 SCMR 313; Zaffar Ali v. Allah Bachayo PLD 1989 SC 294 and Muhammad Anwar v. Jamaluddin 1996 SCMR 771 ref.

Jhamat Jethanand for Petitioner.

Hassan Mehmood Baig for Respondents Nos.1 to 3.

Date pf hearing: 5th March, 2004.

2005 Y L R 34

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

HAJI PATHAN and others---Applicants

Versus

THE STATE---Respondent

Cr. Tr. No.34 of 2004 heard on 20th August, 2004.

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

----S. 526---Penal Code (XLV of 1860), Ss.365-A/395/343/34---Transfer of case--­Application for---Case was sought to be transferred to another. Court alleging that applicants/accused had lost confidence in Presiding Officer of the Court where case was pending adjudication---Validity---Mere apprehension in the mind of party seeking transfer of case on ground that he would not get justice at the hands of Presiding Officer of the Court, was not a ground for transfer of case---In absence of any cogent reason for transfer, application for transfer of the case was dismissed.

Zarif Khan v State 1987 SCMR 1353 and Muhammad Munir v The State 2001 PCr. LJ 1650 ref.

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

----S. 493---Pleading case by Public Prosecution---Engaging private counsel---If any private person or complainant would engage an advocate, prosecution would be conducted by Public Prosecutor and advocate engaged by complainant would act under directions of Public Prosecutor---No specific restraint regarding extent to which complainant's advocate would act under such directions has been provided---In any case cross-examination of a defence witness by a private pleader on behalf of public prosecutor subject to conditions under S. 493, Cr. P.C., was not barred---Direction as mentioned in S. 493, Cr. P. C. could be issued orally and no legal bar could be imported into provisions of law in absence of express terms.

M. Ilyas Khan and Habib Ahmed A.A. -G. for Respondent No.1.

M. Tamaz Khan for Respondents Nos.2 to 7.

Munir Ahmed Bhatti and M. Akbar Khan for the Complainant.

Date of hearing; 20th August, 2004.

2005 Y L R 140

[Karachi]

Before Muhammad Afzal Soomro, J

HUSSAINI---Applicant

Versus

THE STATE---Respondent

Cr. B. A. No.713 of 2004, decided on 6th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Explosive Substance Act (VI of 1908), Ss. 3, 4 & 6---Bail, refusal of--­Different formulas for preparation of bombs were recovered from accused and by said act accused was capable to prepare bombs, blast of which could have created chaos in the city which could cause terrorism which was increasing day by day and the lives of innocent persons had been put at risk---Record also showed that accused was an Indian Agent linked with Indian High Officials---Accused had not produced any material or documentary evidence for his false implication in that case---Punishment under Ss.3, 4 & 6 of Explosive Substance Act, 1908 with which accused had been. charged was within the prohibitory clause of S. 497(1), Cr. P. C. ---Accused could not be admitted on bail, in circumstances---Bail application, was dismissed.

Raja Qureshi for Applicant.

Habibur Rasheed for the State.

Date of hearing: 30th August, 2004.

2005 Y L R 145

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD UMAR---Petitioner

Versus

MUHAMMAD SULTAN SIDDIQUI and another---Respondents

C.P. No.S-433 of 2004, decided on 14th September, 2004.

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

----Ss. 2(b) (J) & 15---Ejectment application---Relationship of landlord and tenant---Once a party had accepted himself to be a tenant in the premises having been inducted therein by applicant/landlord, he/tenant would be estopped from challenging such a status of applicant landlord in the proceedings, until and unless he would conclusively prove that ownership lease hold rights in the disputed tenement stood finally determined and landlord was no more owner/lessee.

Shaukat and another v. Mst. Shahnaz Rafiq 2000 SCMR 1918 ref.

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

----Ss. 15 (2) (vii) & 15---Bona fide personal need of landlord---Appeal against judgment of Rent Controller---Appellate Court accepted plea of applicants/landlords to the effect that shop in dispute was required for their personal bona fide use as they wanted to run business of their own therein---Even if landlords were proved to be owning ant, other property wherein they could easily run business of their own, it 'was prerogative of landlords to choose premises they wanted---Nothing was on record to indicate ,that applicant landlord's plea that shop in question was needed by them for running their own business suffered from any such genuine desire or lacked bona fides on their part---Tenant was right ejected from shop in question by Appellate Court.

Sami Ahsan for Petitioner.

M. Ikram Siddiqui for Respondents Nos. 1(a) to 1(o).

2005 Y L R 152

[Karachi]

Before S. Ali Aslam Jafri, J

MUHAMMAD RIAZ MALIK ---Plaintiff

Versus

KHALID MEHMOOD and others---Defendants

Civil Suit No. Nil of 2004, decided on 14th September, 2004.

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

----Ss. 42, 54 & 56---Civil Procedure Code (V of 1908), O. VII, R.11---Customs Act (IV of 1969), Preamble---Suit for declaration, permanent injunction and damages--­Rejection of plaint---Criminal case was registered against plaintiff along with others at the instance of Customs Department under various sections of Customs Act, 1969---F.I.R. got registered against plaintiff and others had shown that plaintiff was involved in abetment and connivance with other accused for removal of assorted brands of liquors/Alcoholic Beer and other items and its supply in local market ---F.I.R. which was detailed one, contained number of allegations falling within the ambit of different sections of Customs Act, 1969---Reliefs sought by plaintiff in his suit had clearly shown that plaintiff in fact had sought quashing of F.I.R. in question through civil suit--­Plaintiff had further prayed for injunction against defendants/Investigating Agency restraining them from making any further investigation into the matter, which reliefs were not available to plaintiff under Ss.42, 54 and 56 of Specific Relief Act, 1877--­Plaintiff by fling suit wanted to circumvent and thwart whole investigation process which was not permissible under law--­What could not be done directly, could not be allowed to be done indirectly---Suit filed by plaintiff was barred under the law and no cause of action existed for filing same as relief sought in suit could not be granted by High Court---Plaint was rejected under O. VII, R.11, C.P.C. in circumstances.

Shahnaz Begum's case PLD 1971 SC 677 and M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillai AIR 1938 Mad. 129 ref.

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

----S. 42---Suit for declaration in respect of entitlement to legal character---Section 42 of Specific Relief Act, 1877 which dealt with declaration in respect of entitlement to any "legal character" or to any right as to any property' which defendant denied or was interested in denying, could not be pressed into service as no such entitlement to any legal character or to any right to any property, was shown to be infringed so as to justify exercise of discretion by Court.

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

----S. 154---Registration of F.I.R.---After receiving information regarding commission of a cognizable offence, it was duty of concerned police to register F.I.R. under S.154, Cr. P. C. and to investigate allegations in accordance with procedure as laid down in Code of Criminal Procedure as well as relevant Police Rules and thereafter submit a final report to concerned Court as to whether, as a result of said investigation, the person against whom complaint was made, was found innocent or sufficient material was collected to justify his trial before competent Court of law.

Sohail Muzaffar for Plaintiff.

Date of hearing: 14th September, 2004.

2005 Y L R 160

[Karachi]

Before Ata-ur-Rehman and Amir Hani Muslim, JJ

Mst. ASGHARI---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-218 of 2004, heard on 14th September, 2004.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)-----

----S. 10--Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Verifica­tion of Permanent Transfer Deed---Prayer of petitioner for verification of Permanent Transfer Deed issued regarding house in favour of his father and for mutation of said deed, was rejected by the Authority on ground that in view of Government instructions, Evacuee Property Wing had been wound up and all functions of Evacuee Property Department had been stopped--­Verification of a document was a right of party and custodian of such document, was bound in law to verify it by comparing same with original record---Verification of document sought to be verified by petitioner could not be denied on the ground that Evacuee Department had been wound up.

Rafiq Ahmed for Petitioner.

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

Date of hearing: 14th September, 2004.

2005 Y L R 163

[Karachi]

Before Sabihuddin Ahmed and Zia Perwaz, JJ

ABDUL AZIZ---Petitioner

Versus

CITY DISTRICT GOVERNMENT KARACHI through District Coordination Officer and another---Respondents

C. P. No. D-1172 of 2003, heard on 29th January, 2004.

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

----Ss.44, 45 & 53---Constitution of Pakistan (1973), Art.199---Constitutional petition---Mutation---Cancellation of mutation entries---Plot in question was leased out/allotted to respondent who gifted his allotment rights in favour of petitioner it ho was his younger brother and a mutation entry in favour of petitioner regarding said gift was effected in the record of rights---Subsequently some differences developed between brothers and respondent approached the Assistant District Officer for cancellation of mutation entries of gift in favour of petitioner and the entries ,were cancelled after 29 years--Validity---Powers to determine entries in a register of mutation was exercisable either during making, revision or preparation of record or in course of an inquiry, but in the present , case neither of said preconditions were fulfilled---Powers under S.44 of West Pakistan Land Revenue Act, 1967, were hedged by requirements of its S.48 which stipulated restrictions upon powers of Revenue Officer---Petitioner had asserted genuineness of oral gift in his favour and entry contrary, to possession taken up by hint, could not be made--­Provisions of S.53 of West Pakistan Land Revenue Act, 1967 had clearly stipulated that any person aggrieved by any entry in a record of rights could institute a suit for declaration under Specific Relief Act, 1877 before a competent Civil Court ---Officers of the Authority in circumstances had acted in a manner ultra wires their lawful powers and arrogated to themselves jurisdiction which law only vested in Civil Court—­Assistant District Officer had ab initio no jurisdiction to cancel mutation entries after 29 Years---Impugned order was set aside, in circumstances.

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

----Art. 199---West Pakistan Land Revenue Act (XVII of 1967), Ss.44 & 45--­Constitutional jurisdiction---Alternate remedy---Respondent had contended that in the matter of cancellation of mutation entries, petitioner should have invoked appellate or revisional jurisdiction under West Pakistan Land Revenue Act, 1967--­When initial order itself was without jurisdiction, question of alternate remedy would lose significance.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 ref.

Badar Alam for Petitioner.

Manzoor Ahmed for Respondent No. 1.

Muhammad Habib Jalib for Respondent No.2.

Date of hearing: 29th January, 2004.

2005 Y L R 169

[Karachi]

Before Sarmad Jalal Osmany, J

MITHO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-240 of 2004, decided on 21st September, 2004.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 337-A (i), (ii)---Bail, grant of---Further inquiry---According to Medical Certificate one of the injured had received three injuries which had been certified as being under S. 337-A (i), P. P. C. punishable with two years R.I.---Injury suffered by other injured had been certified as being under S. 337-A (ii), P. P. C. punishable with five years R.I.---Both punishments did not fall within prohibitory clause of 5.497, Cr. P. C. ---No particular role had been given to any accused as to which of them had inflicted injuries on injured as only a sweeping statement had been made that all of them hit injured with their weapons--­Case of accused was one of further inquiry---Accused had passed fifteen months in jail and still charge had not been framed by Trial Court---Accused was enlarged on bail in circumstances.

Noor Ahmed Memon for Applicants.

Anwar H. Ansari for the State.

2005 Y L R 175

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Mst. AISHA and others---Petitioners

Versus

K.M.C. DEFUNCT, SUCCEEDED BY CITY DISTRICT GOVERNMENT KARACHI and others---Respondents

C.M. Applications (in Constitutional Petition No. 1412 of 2002), decided on 11th March, 2003.

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

----S. 114 & O.XLVII, R.1---Review--­Scope---Review jurisdiction had to lie exercised within strict parameter laid down in O.XLVII, C.P.C. and failure of a parts, to appear on a date of hearing was no ground for review of judgment passed in his absence.

Muhammad Zahid Khan for Respondent No.3.

Manzoor Ahmed for City District Government.

2005 Y L R 180

[Karachi]

Before Mushir Alam, J

SHAHNAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 518 of 2004, decided 11th October, 2004.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/148/149---Bail, grant of---Bail application earlier filed by accused was dismissed with direction to Trial Court to frame charge and examine witnesses within three months, but no charge was framed according to direction--­Prosecution on several occasions failed to produce accused---Charge was not framed on ground that co-accused had not engaged the counsel---Since case under S.302, P. P. C. entailed capital punishment, Trial Court could appoint a pauper counsel for accused who were unable to engage counsel---Prosecution was slow in proceeding with the case, even police papers were not supplied to accused on many dates and it appeared that prosecution was not keen to proceed with case---General allegations against 17 people were that they duly armed with weapons had fired at complainant party which resulted in death of two persons---No specific allegation was on the record against accused directly, in circumstances coupled with delay in proceedings, accused was admitted to bail.

Jai Jai Vishno for Applicant.

Mushtaque Ahmed Kourejo State Counsel.

2005 Y L R 183

[Karachi]

Before Mushir Alam, J

QASIM and 4 others---Applicants

Versus

THE STATE---Respondent

Cr. B.A. No. 450 of 2004, decided on 11th October, 2004.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/337-H(2)/148/149---Bail, grant of---Since date of arrest of accused and framing of charge, no witness had been produced---One of the co-accused was extended benefit of bail---According to report of Process Server, complainant and his private witnesses had absconded in a criminal case instituted against them--­Accused were behind the bars for over two years and eight months and no possibility was in sight for a year or two that accused or witnesses could be examined---Accused were extended benefit of bail, in circumstances.

Attar v. State 2004 Pakistan Current Criminal Ruling 1289 ref.

Jai Jai Vishno for Applicant.

Mushtaque Ahmed Kourejo for State.

2005 Y L R 184

[Karachi]

Before Muhammad Afzal Soomro and Zahid Kurban Alvi, JJ

TAREEN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 516 of 2001, decided on 26th September, 2002.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.379, 380 & 395---Bail, grant of--­Further inquiry---Incident seemed to have taken place at night tine---Accused was put to identification test after ten days of his arrest---Accused was not nominated in F.I.R. nor by prosecution witnesses in their statements made under S.161, Cr. P. C. --­Statement recorded about 6/7 days after incident had made case of accused of further inquiry---No recovery had been effected from possession of accused--­Assistant Advocate-General had also not opposed grant of bail to accused--­Accused was granted bail in circumstances.

Jai Jai Vishno Mange Ram for Applicant.

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

2005 Y L R 190

[Karachi]

Before Mushir Alam, J

MOULA BUX and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.398 of 2004, decided on 5th October, 2004.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/114/148/427---Bail, refusal of---Accused along with others was alleged to have chased deceased to the roof top of the house and caused direct shot at deceased who received five shot injuries and died on spot---Allegations against accused leveled in F.I.R., were corroborated by Medical evidence---Mere fact that as to whose injury was fatal, would not be relevant consideration as deceased had received four entry wounds--­Bail, was declined to accused, in circumstances.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/427/114/148---Bail, grant of--­Allegation against co-accused according to F.I.R. was of instigation of offence---Bail, was extended to co-accused, in circumstances.

Habibullah G. Ghouri for Applicants.

Jai Jai Vishnu for the Complainant.

Mushtaque Ahmed Kourejo, State Counsel.

2005 Y L R 215

[Karachi]

Before Muhammad Moosa K. Leghari and Muhammad Mujeebullah Siddiqui, JJ

KARIM BUX---Appellant

Versus

IBRAHIM and 5 others---Respondents

Criminal Acquittal Appeal No. 141 1998, decided on 31st May, 2002.

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

----S.417(2-A)[as amended by Code Criminal Procedure (Second Amendment) Act (XX of 1994)]---Appeal against acquittal---Maintainability---Prior insertion of subsection(2-A) in S.417 Cr.P.C. , appeal against acquittal could only be filed by Provincial Government issuing directions to public prosecutor or case an order of acquittal was passed complaint case appeal could be filed in ; High Court after grant of special leave appeal against the order of acquittal while after the amendment in S. 417, Cr.P.C right to prefer an appeal against acquittal was extended to any `person aggrieved by order of acquittal "---Such was a beneficial amendment in the procedural law and must be construed liberally---Complainant in the present case was an eye-witness of incident and was closely related to deceased and injured---Contention that since complainant was neither himself an injured person nor "Wali" of deceased, he was excluded from the term “aggrieved person” and was not competent to maintain appeal, was repelled being ridiculous, misconceived and devoid of force.

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

----Ss.417(2-A) & 265-H---Penal Code (XLV of 1860), Ss.302/265-A --- Appeal against acquittal---Ocular version given by complainant and injured to the effect that accused had fired from opposite side had been falsified by Medical evidence according to which deceased sustained fire­arm injuries from backside---Ocular testimony of complainant stating that it was accused who fired at deceased from distance of three paces was also against Medical evidence---Evidence of injured was also contradictory to Medical evidence--­Statements of prosecution witnesses under S.164, Cr. P. C., were recorded after unexplained and inordinate delay of 15 days which had further rendered their version doubtful---No crime empties having been recovered from the place of Vardat, report of Ballistic Expert in respect of gun, was of little consequence to connect crime weapon with the offence---Lathies and hatchet recovered from accused were neither stained with blood nor same were sent for Chemical Examination, which had rendered such recovery of little value---Version given in F.I.R. qua role assigned to accused was not coinciding with medical evidence--­Prosecution witnesses had made significant improvement in their evidence---So many contradictions and omissions had rendered quality of evidence valueless---Trial Court neither disregarded material evidence nor had misread or received same illegally--­Impugned judgment of Trial Court acquitting accused could not be said to be fanciful, artificial stocking or ridiculous but was based on convincing reasons not calling for interference in appeal.

2002 SCMR 269; 2002 SCMR 601; 2002 SCMR 626; 2000 SCMR 448; 2000 SCMR 919; 1999 PCr.LJ 1507 and Yar Muhammad and 3 others v. the State 1992 SCMR 96 ref.

Aijaz Ahmed Shaikh for Appellant.

Syed Madad Ally Shah for Respondents Nos.1 to 5.

Mukhtiar Khanzada for the State.

Date of hearing: 15th May, 2002.

2005 Y L R 236

[Karachi]

Before Sabihuddin Ahmed and Wahid Bux Brohi, JJ

AHMED ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 114 of 1999, heard on 13th May, 1999.

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

----Ss. 496, 497 & 499-Surety--­Connotation---Expression "surety " as used in the Criminal Procedure Code, 1898, is only referable to a person other than the accused himself who makes a commitment in the form of a bond for producing the accused in Court on the date of hearing.

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

----Ss. 497, 498 & 513---Bail---Cash security cannot be demanded---Cash security whether from the accused or surety can never be demanded as a condition for grant of bail and the Court under S.513, Cr. P. C. may permit a person required to execute a bond to deposit cash security in lieu thereof.

Muhammad Yousuf v. The State 1968 MLD 2623 and Amir Sardar v. The State 1990 PCr.LJ 414 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Bail--­Accused was not released on bail for want of deposit of security amount in cash---High Court had directed the accused to be released on bail subject to furnishing security in the amount of Rs.1,00,000 with P.R. Bond in the like amount to the satisfaction of the Additional Registrar of High Court---No specific order requiring the accused to deposit cash was made--­Control of Narcotic Substances Act, 1997, did not deviate from the principles of Criminal Procedure Code, 1898, in respect of execution of bonds for furnishing security for granting bail---All the provisions of the Code had been made applicable explicitly to trials and appeals unless otherwise provided---Section 51 of the Control of Narcotic Substances Act, 1997, had acknowledged the power of Court to grant bail subject to the condition that bail would not be granted to accused of offences punishable with death and in other cases it could be granted against the security of a substantial amount---No provision of law existed requiring the accused to furnish cash security---Order contemplating security of a substantial amount had already been passed and the Additional Registrar was now only to satisfy himself that the security furnished whether by the accused or the surety was sufficient to meet the requirement of the bond---Petition was disposed of with the said clarification.

Black's Law. Dictionary 4th Edn.; Words and Phrases by Sardar Muhammad Iqbal Mokal; Legal Terms and Phrases by Muhammad Ilyas Khan; Cr. B. A. No. 108 of 1999; Cr. B. A. No.226 of 1999; Mian Mahmud Ali Qasuri and another v. The State PLD 1963 SC 478; Muhammad Yousuf v. The State 1968 MLD 2623 and Amir Sardar v. The State 1990 PCr.LJ 414 ref.

Pir Bux Bhurgari for Applicant.

Mian Khan Malik Addl. A.-G. Sindh for the State.

Date of hearing: 13th May, 1999.

2005 Y L R 252

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

SIDDIQUA FAIZ and 2 others---Petitioners

Versus

DEPUTY REGISTRAR, COOPERATIVE HOUSING SOCIETY, KARACHI

and 2 others---Respondents

C. P. No.D-308 of 1991, heard on 27th October, 2004.

(a) Co-operative Societies Act (VII of 1925)---

----S.54-A---Powers of Registrar, Co­operative Societies to set aside award--­Scope.

The powers of the Registrar to modify or correct the Award are limited to a very large extent. Under sub-clauses (i) and (ii) he could separate such parts of the Award which dilated upon matters not referred to or correct formal defects provided that the decision of the Arbitrators was not affected. Under sub-clause (iii) only clerical errors could be corrected.

Indeed clause (c) also enables the Registrar to set aside the Award but such power is also hedged by certain pre­conditions. In the first place the proviso to the aforesaid clause stipulates that the power to set aside can only be exercised in case of an objection to its legality being apparent on the face of the Award or the same being perverse or having been procured on account of misconduct with the Arbitrators. Moreover upon setting aside an Award the Registrar is required to refer the case for fresh arbitration.

(b) Co-operative Societies Act (VII of 1925)---

----S.54---Appeal against award of arbitrator---Scope---Award by the Arbitrators and not merely Registrar's nominee could be questioned under S.56, Co-operative Societies Act, 1925--­Principles.

The impugned order could always be upheld if it could be shown that it fell within the parameters of the appellate powers of the Registrar under section 56. Nevertheless a bare reading of section 56 Co-operative Societies Act, 1934 shows that an appeal could lie against an Award of the Registrar's nominee under section 54 or section 54-A(3) but only an order by the Arbitrators under section 55 attaching a particular property could be questioned in appeal. In the present case there is no order of attachment and obviously an Award by the Arbitrators and not merely Registrar's nominee could be questioned under section 56.

(c) Co-operative Societies Act (VII of 1925)---

----S.54---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Arbitration---Contention was that no panel of arbitrators in one case out of the two was formally constituted therefore award ought to be treated as one having been made by the Registrar's nominee alone---Validity---Held, no weight could be attached to such technical objection as record showed that respondent was himself representing the Society and had the occasion to nominate an Arbitrator on the latter's behalf and upon subsequently filing another case he himself consented to the trial of the two cases together and participated in the proceedings before the panel of Arbitrators---Held, Arbitrators, in circumstances, were lawfully empowered to decide both the cases and the subsequent objection that the matter was referred to arbitration without his consent was of no consequence.

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

----Art.199---Constitutional jurisdiction --­Scope---Alternate remedy, availability of--­Effect---Held, alternate remedy ought to be equally efficacious and High Court was not divested of jurisdiction merely because such remedy existed---When the order impugned was claimed to be without jurisdiction the remedy by way of Constitutional petition rather than an appeal in the same hierarchy was more efficacious.

Murree Brewery v. Pakistan PLD 1972 SC 299 ref.

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

----Art.199---Constitutional jurisdiction--­Scope---Alternate remedy not availed within stipulated time---Effect---Court would generally decline to grant relief to the negligent litigant---Impugned order, in the present case, was passed on 17-1-1991 and was questioned in Constitutional petition on 24-2-1991 well within the period of limitation provided for an appeal---Held, it would be extremely unjust to require the petitioner to seek redress in an appeal (alternate remedy) after expiry of more than 13 years---Such an objection must fail.

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

----Art.199---Constitutional petition--­Maintainability---Where the petitioner has availed of an alternate remedy by way of civil suit it is not possible for the High Court to usurp the jurisdiction of a competent Civil Court already seized of the matter---High Court, in circumstances, declined to grant any relief to the petitioner and observed that their respective disputes may be resolved in the civil suit.

Habibur Rehman for Petitioners.

Zahid Marghoob for Respondents Nos. 1 and 2.

Hafiz Abdul Baqi for Contemnors.

Date of hearing: 27th October, 2004.

2005 Y L R 260

[Karachi]

Before Sarmad Jalal Osmany, J

ZAHID IQBAL ---Petitioner

Versus

MUHAMMAD AZAD and others---Respondents

Constitutional Petition No.538 of 2003 decided on 17th June, 2004.

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

----S.21(1-A) & (I-B)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal against judgment of Rent Controller---Transfer of appeal---Appeal filed against judgment of Rent Controller, was transferred to District Judge, who marked the same to Additional District Judge for disposal according to law--­Transferee Presiding Officer, after hearing parties, reserved order but in the meanwhile on application of respondent/landlord, appeal was again transferred to another Additional District Judge without any notice to the petitioner and the transferee Additional District Judge passed final order without hearing petitioner/tenant---Validity---Powers given to District Judge in terms of S.21(1-A) and (1-B) of Sindh Rented Premises Ordinance, 1979 were purely of administrative nature and would be exercised without giving notice to the other party---In terms of subsection (1-E)(b) of S.21 of Sindh Rented Premises Ordinance, 1979 only High Court had power to transfer appeal from one Appellate Authority to another when a complaint was made by any party as to the conduct of appeal by concerned Appellate Authority or matters ancillary thereto--­Power exercised by District Judge in transferring the matter to Additional District Judge from the Court of one Additional District Judge was proper and in accordance with law and as that was done purely on administrative side, that would not require any notice to any party---Upon receipt of appeal the Additional District Judge, however decided matter without serving petitioner intimation notice and matter was reserved for announcement of judgment---Matter could not be decided in absence of the petitioner---Judgment passed by the transferee Court was set aside and matter was remanded to the transferee Court, who would decide appeal after issuing intimation notices to the parties.

Haji Khawar Saleem v. The State 2001 SCMR 905; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Asghar Ali v. The State 1992 MLD 1533; Barkat Ali v. Muhammad Ahsan 2000 SCMR 556; Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Muhammad Shoaib Alam v. Muhammad Iqbal 2000 SCMR 903; Mst. Amina Begum v. Ghulam Dastagir PLD 1978 SC 220; Master Moosa Khan v. Abdul Haq 1993 SCMR 1304 and Jamil Ahmed v. Saifuddin 1997 SCMR 260 ref.

Muhammad Shafi Muhammadi for Petitioner.

Rana Muhammad Ahmed Khan for Respondents.

Date of hearing: 1st October, 2003.

2005 Y L R 266(1)

[Karachi]

Before Ata-ur-Rehman, J

ZULFIQAR ALI Applicant

Versus

THE STATE ---Respondent

Cr. B.A. No. 601 of 2004, decided on 20th September, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11/16---Bail, grant of ---Prosecutrix, who was examined under S.164, Cr. P. C. had not involved accused in the alleged offence ---Co-accused on that ground was granted bail by High Court---Case of accused being identical to case of co­-accused, in view of rule of consistency accused was also allowed bail.

Abdul Rasool Abbasi for Applicant.

Miss Parveen Chachar State Counsel.

2005 Y L R 268

[Karachi]

Before Ata-ur-Rehman, J

NAZEER and 3 others---Applicants

Versus

THE STATE ---Respondent

Cr. B.A. No. 241 of 2000, decided on 21 September, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Bail, grant of---Accused persons who were convicted by Trial Court, preferred appeals in which judgment of Trial Court convicting accused, was set aside and case was remanded to Trial Court for re-trial from the stage of charge--­During retrial accused were also allowed bail and up to conviction they were free and on date of conviction, they were remanded to custody---During pendency of appeal and thereafter, accused had remained under custody for about 22 months---Trial had to start from Zero point which would take time for adjudication---During the period when accused remained on bail, no complaint was found against them that they had abused concession of bail, but they had been regularly attending Trial Court---State Counsel had no objection to grant of bail to accused---Accused, were admitted to bail, in circumstances.

Syed Madad Ally Shah for Applicant.

Agha Khuda Bux Assistant A.-G. for the State.

2005 Y L R 273

[Karachi]

Before Mushir Alam, J

SAJAN---Applicant

Versus

THE STATE ---Respondent

Cr. B.A. No.525 of 2003, decided on 12th October, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/337-H(ii)/148/149---Bail, grant of--­Accused was behind the bars for more than 2-1/2 years without trial and that too without any reasonable explanation or justification for said delay--- In a period of about 8 months, for thirteen consecutive dates, accused was not at all produced--­Prosecution was duty bound to produce accused on each and every date, excepting for reason to be explained and disclosed for non-production, but no such reason appeared on the record---Trend had shown that case would take more than two more years---Accused was granted bail, accordingly.

Jai Jai Vishno Mange Ram for Applicant.

Muhammad Ismail Bhutto for the State.

2005 Y L R 276

[Karachi]

Before Mushir Alam, J

SIKANDER ALI and another---Applicants

Versus

THE STATE ---Respondent

Cr. B.A. No.621 of 2004, decided on 27th September, 2004.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.302/337-A(i), (iii)/F-(i)(ii)(iii)/337-H-2/504/147/148/149---Interim bail, grant of--­Names of accused though appeared in F. I. R., but no overt act had been attributed to them---Allegation of causing injury was against other co-accused and names of accused were placed in Column No.2---No incriminating evidence being available against accused persons, issuance of non­-bailable warrants against them was not justified---Interim bail granted to accused was confirmed on the same terms and conditions.

Azizullah M. Buriro for Applicants.

Naimtullah Bhurgari for the State.

2005 Y L R 284

[Karachi]

Before Ata-ur-Rehman, J

ANWAR ALI and 3 others---Applicants

Versus

THE STATE ---Respondent

Cr. Bail. Appln. No. S-482 of 2004, decided on 28th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-H(ii)/382/504/506/147/148/149--­Interim pre-arrest bail, confirmation of --­F.I.R. in the case was lodged after 45 days of incident---No recovery had been made from accused though they had joined investigation---Possibility of false implication of accused in the matter with ulterior motive could not be ruled out--­Earlier order granting interim bail to accused was confirmed on same terms and conditions.

Basharat Ahmed Jatt for Applicants.

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

2005 Y L R 285(1)

[Karachi]

Before Mushir Alam, J

MUHAMMAD YOUNIS and another---Applicants

Versus

THE STATE ---Respondent

Cr. B.A. No.622 of 2004, decided on 27th September, 2004.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.382---Pre-arrest bail, grant and confirmation of---Dispute between complainant and accused was outcome of civil litigation in respect of fish contract and suit in that respect was still pending--­Alleged quantity of fish was two mounds, which was also not recovered---Person who was not named in F. I. R., was arrested and one fish net was recovered from him---No identification of vehicle was given in F.I.R.---Pre-arrest bail, extended to accused was confirmed on the same terms and conditions.

Azizullah Buriro for Applicants.

Naimtullah Bhurgari for the State.

2005 Y L R 293

[Karachi]

Before Ghulam Rabbani, J

GHULAM NABI and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Bail Application No. 188 of 2004, decided on 30th August, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/457/458/460/469/148/149---Bail, refusal of---Names of accused were mentioned in F.I.R.---Specific allegation against accused persons was that they had trespassed into the house of complainant duly armed with weapons and attempted to take away the buffaloes when deceased and others grappled with them and co-accused opened fire as a result deceased was murdered while other person received firearm injuries on his shoulder--­Other accused also opened fire on complainant and his other sons who luckily were saved---Delay of four and half hours in lodging. F.I.R., whether was possible or not when police station was at 6/7 kilometers from place of Wardat in the interior of District and complainant brought both injured to hospital and thereafter went to lodge report, would be seen at the time of trial---Even otherwise delay per se could not- be regarded as a ground to release accused in circumstances of case---Blood-stained earth and empties were recovered from place of incident---Accused prima facie appeared to be linked with commission of crime---Bail application was dismissed in circumstances.

State v. Fazal Ahmad 1970 PCr.LJ 633 ref.

Amanullah G. Malik for Applicants Nos. 1 and 2.

Syed Mahboob Ali Shah for Applicant No. 3.

Saleem Akhtar Buriro for the Complainant.

Ghafoor Pirzada for the State.

Date of hearing; 30th August 2004.

2005 Y L R 300

[Karachi]

Before Sarmad Jalal Osmany, J

GHULAM SHABBIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.C-560 of 2004, decided on 1st October, 2004.

Criminal Procedure Code (V of 1898)---

----S.498---Pre-arrest bail, grant of--­Accused who had been given a positive role in crime in question had been let off by the police Authorities, whereas accused, who had been given role of running towards scene of crime with a lathi in his hand had been involved and that too on statement made by one of co-accused under S.161, Cr. P. C.---Mala fides of police Authorities could not be ruled out---Interim pre-arrest bail granted to accused earlier, was confirmed on the same terms and condition.

Noor Ahmed Memon for Applicant.

Anwar H. Ansari, State Counsel.

2005 Y L R 310

[Karachi]

Before Muhammad Afzal Soomro, J

NISHAN alias NISHO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.607 of 2002, decided on 19th December, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had been involved in case in the background of enmity as suggested in F.I.R.---No active part of causing injury was attributed to accused excepting facilitating the commission of offence---Witnesses mentioned in F.I.R. were interested and hostile to accused and no independent persons were shown to have spoken against accused---Nothing incriminating was secured from possession of accused---Case was fit one where accused could be enlarged on bail---Accused was admitted to bail, in circumstances.

Abdul Rehman v. Javed and 2 others 2002 SCMR 1415; Farzand Ali v. Taj and 2 others 2000 SCMR 1854; Faraz Akram v. State 1999 SCMR 1360; Muhammad v. The State 1998 SCMR 454; Bati Khan v. Gulzar and 5 others 1988 SCMR 279; Mumtaz Hussain and 5 others v. State 1996 SCMR 1125; Shafi Muhammad v. State 1999 PCr.LJ 890; Gul Hassan alias Hassan and another v. State 2001 PCr.LJ 1491; Meer Mastoi v. State 2002 PCr.LJ 1952; Nisar Khan and others v. State 1999 PCr.LJ 1884; Abdul Razaq v. State 2002 PCr.LJ 414; Munawar v. State 1981 SCMR 1092; Hakim Ali and 3 others v. State 1979 SCMR 114; Muhammad Yousif and another v. State 2002 PCr.LJ 1645; Zahid Shah v. State 2001 PCr.LJ 134 and Haji Punhal v. State 2002 PCr.R. (Larkana) 1701 ref.

Imdad Ali Awan and Asif Kamal for Applicant.

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

Habibullah Shaikh for the Complainant.

Date of hearing: 19th December, 2002.

2005 Y L R 313

[Karachi]

Before Sarmad Jalal Osmany, J

ABDUL GHAFFAR through Legal Heirs---Petitioner

Versus

GUL MUHAMMAD and others---Respondents

Constitutional Petition No.544 of 2002, decided on 28th May, 2004.

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

----S.15(2) (vii)---Bona fide personal need of landlord---Suitability of premises for landlord---Tenant though could not question suitability of premises for landlord's need or where a number of shops were available, as to in which shop landlord should establish his business, but such need should be bona fide and landlord must approach Rent Controller with clean hands---Earlier landlord had filed ejectment application against tenant for reconstruction of premises, but said ground was abandoned by him and thereafter landlord issued notice to tenant on basis of personal need--­Landlord, before fling of present ejectment application against tenant, had tried to get shop in question vacated through Khidmat Committee---Need of landlord in respect of shop in question, did not appear to be bona fide---Landlord sought ejectment of tenant to start clinic therein, but it was quite impossible that a clinic could be opened in a small shop covering area of 16 Sq. Yards as it could hardly accommodate even two persons, a table and a chair---Landlords otherwise had settled in Karachi--­Landlord, in circumstances could not prove his bona fide personal need in respect of shop in question---Orders of Authorities whereby tenant was ejected were set aside.

Noora v. The Settlement and Rehabilitation Commissioner and another 1969 SCMR 517; Mst. Noorunisa v. Qamarul Huda 1988 CLC 1833; Muhammad Siddique v. Sayed Hasan 1998 CLC 1003; Messrs Eastern Express Co. Ltd., Karachi v. Tariq Hameed PLD 1986 Kar. 84; Faisal Ali v. Mts. Noor Jehan Begum 1991 CLC 1902; Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Fazal Azim and another v. Tariq Mahmood and anther PLD 1982 SC 218 and Faqir Muhammad and others v. Mst. Muhammad Bibi and others PLD 1991 SC 590 ref.

K.B. Bhutto for Petitioner.

Akhtar Hussain for Respondent No. 1.

Date of hearing: 20th August, 2003.

2005 Y L R 319

[Karachi]

Before Sarmad Jalal Osmany, J

Messrs ABDUL GHANI & BROTHERS‑‑‑Petitioner

Versus

GHULAM NABI and others‑‑‑Respondents

Constitutional Petition No.S‑489 of 2002, decided on 17th June, 2004.

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

‑‑‑‑Ss.10 & 15(2)(vii) ‑‑‑Default in payment of rent‑‑‑Proof‑‑‑Modes of tendering rent‑‑­Landlord had alleged that tenant had failed to pay rent of three months, May, June, July, 1991‑‑‑Contention of tenant was that landlord who used to collect rent from tenant periodically in lump sum at his convenience, had collected rent of said three months in presence of witnesses, but did not issue receipt thereof promising to do so later on‑‑‑Tenant had further alleged that landlord having not issued receipt of said period till the end of month of July, tenant sent money order for the rent of said disputed period of three months to landlord and on refusal of landlord to receive money orders, tenant deposited said rent in the Court by filing application in the case‑‑­Tenant in support of his contention had produced oral as well as documentary evidence in the form of Post Office receipts etc.‑‑‑Tenant who paid disputed rent to landlord, having not been issued, receipts thereof, had adopted mode of tendering rent provided by S.10 of Sindh Rented Premises Ordinance, 1979‑‑‑Tenancy between parties being statutory one, rent was payable in terms of S.10 of Sindh Rented Premises Ordinance, 1979‑‑‑Both Rent Controller and Appellate Authority were not justified to hold that tenant had committed default in payment of rent‑‑‑Concurrent order of Authorities below was set aside, in circumstances.

Hakim Ali v. Muhammad Saleem 1992 SCMR 46; Shezan Limited v. Abdul Ghaffar 1992 SCMR 2400; E.H. Jaffar v. Sultan Karam Ali 1995 SCMR 330; Muhammad Anwar Azim v. R.I.G. Education Board PLD 2003 Kar. 34; Allah Din v. Habib PLD 1982 SC 465; Muhammad Akram Butt v. Shajaud Din 1991 SCMR 1117; Mrs. Parveen Ali Hamid v. Mrs. Ameena PLD 1999 Kar. 277; Saeed Ahmed v. Syed Rais Pervaiz PLD 1997 Kar. 247; Syed Amir Saeed v. Mushtaque Ahmed 2002 MLD 1266; Board of Intermediate and Secondary Education, Lahore v. Mst. Salina Afroze PLD 1992 SC 263; Salim Ahmad Khan v. Mst. Jamila Latif 1990 SCMR 1117; Muhammad Subhan v. Mst. Bilquis Begum PLD 1994 Kar. 106 and Saifullah v. Muhammad Bux 2003 MLD 480 ref.

S.I.H. Zaidi for Petitioners.

Ikram Ahmed Ansari for Respondents.

Date of hearing: 4th November, 2003.

2005 Y L R 336

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

HASSAN and another‑‑‑Applicants

Versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No. 18 of 2002, decided on 22nd January, 2002.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii), 337‑F(i), 504 & 34‑‑‑Bail refusal of ‑‑‑Co‑accused was not entitled to bail because he had caused hatchet injuries with sharp side on the head of injured.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 337‑A (ii), 337‑F(i), 504 & 34‑‑‑Bail grant of‑‑‑Accused was stated to hav­e caused Lathi blows on the arm of injured‑­---Injury was not on the vital part of body of injured and was simple in nature‑‑‑Accused was admitted to bail, in circumstances.

Madad Ali Shah for Applicants.

Riazuddin Siddiqui State Counsel.

2005 Y L R 346

[Karachi]

Before Mushir Alam, J

MUHAMMAD MOOSA and 2 others‑‑‑Applicants

Versus

THE STATE ‑‑‑Respondent

Criminal Bail Application No.600 and M.A. No.1310 of 2004, decided on 27th September, 2004.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.382‑‑‑Pre‑arrest bail, grant and confirmation of‑‑‑Complainant had also lodged F.I.R. against other persons‑‑‑No recovery had been effected from accused‑‑­Accused, in circumstances were extended pre‑arrest bail‑‑‑Same was confirmed on same terms and conditions.

Azizullah Buriro for Applicants.

Naimtullah Bhurgari for the State.

2005 Y L R 349

[Karachi]

Before Sarmad Jalal Osmany, J

FAKHRUDDIN KHAN SYED and others‑‑‑Appellants

Versus

Mst. SURRYIA SULTANA and others ‑‑‑Respondents

F.R. As. Nos.746, 747 and 748 of 1998, decided on 11th June, 2004.

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

‑‑‑‑Ss.2(F)(J), 15 (2)(ii)(vii) & 21‑‑­Ejectment application‑‑‑Relationship of landlord and tenant‑‑‑Appeal against judgment of a Rent Controller‑‑‑Case of respondents was that premises in question belonged to parents of one of the respondents and. upon demise of his father, his share in premises devolved upon his legal heirs including the said respondent who was daughter of deceased and she being representative of all legal heirs of deceased sent notice to appellant/tenant to pay rent to her ‑‑‑Appellants/tenants having failed to pay/tender rent, ejectment application for default in payment of rent and for personal need of respondent/landlord was filed against tenants‑‑‑Appellants/tenants denied relationship of landlord and tenant, between parties, which application was accepted by Rent Controller and tenants had filed appeal against judgment of Rent Controller‑‑‑Validity‑‑‑Where no rent agreement existed between the parties, law would assume that when a person, who was not the owner of premises, occupied any portion thereof and had not setup a title which was adverse to owner of premises, then such a person by fiction of law would become a tenant of owner landlord‑‑­Appellants all along had stated that they were tenants of respondent's mother widow of deceased, whereas respondent had claimed that she being one of legal heirs of her deceased father who jointly owned premises along with her mother was one of the co‑owners of the premises‑‑‑ Fact that premises which originally were jointly owned by father and mother of respondent, after death of her father, she became one of co‑owners of premises and was entitled to file ejectment application against appellant/ tenant was established‑‑‑Appellant, had failed to establish that mother of respondent was their landlady in circumstances.

Beejal Mal v. Punaji 1987 CLC 1134; Ghulam Ali v. Kabiruddin 1986 MLD 1583; Muhammad Yousuf v. Muhammad Ibrahim PLD 1991 Kar. 226; General Services Corporation v. PNSC 1987 MLD 2149; Sarwar Abbas v. Hajra Bai 1983 CLC 337; Ghous Bakhsh v. M. Abdul Nadeem PLD 1976 Kar. 169; Habib Ahmad v. Liaquat Hussain PLD 1985 Kar. 741; Muhammad Aslam v. Abdul Majeed 1991 CLC 481; Sardar Begum v. Hasina Jan 1983 CLC 3258; Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Syed Hussain Ali v. Shamsuddin 1998 MLD 394 ref.

(b) Sindh Rented Premises Ordinance (X VII of 1979)‑‑‑--

‑‑‑‑Ss. 15(2)(vii) & 21‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Appeal against judgment of Rent Controller‑‑‑Landlady had sought ejectment of tenant on ground of personal bona fide need of her son who was to be married and had stated that fact on oath‑‑‑All that a landlord was required to do, was to step into witness‑box and state his personal bona fide need, whereupon burden would shift on tenant to establish the contrary, but need should be bona fide and ejectment should not be sought for some ulterior purpose or on a mere whim or fancy‑‑‑Landlady by producing witnesses had fully proved that premises in question were needed for bona fide use of her son who was to marry‑‑‑Landlady having fully proved her bona fide personal need, Rent Controller had rightly accepted her ejectment application.

F. K. Irani and Co. v. Begum Feroze 1996 SCMR 1178; Saira Bai v. Anis‑ur‑Rehman 1989 SCMR 1366 and S.M. Hooruddin v. Saga Printers 1998 SCMR 2119 ref

Khalid Dawood Pota for Appellants.

Sami Ahmad Tirmizi for Respondents.

Date of hearing: 3rd September, 2003.

2005 Y L R 358

[Karachi]

Before Sarmad Jalal Osmany, J

PEARAL‑‑‑-Applicant

Versus

THE STATE------Respondent

Criminal Bail Application No. S‑521 of 2004, decided on 10th September, 2004.

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

‑‑‑‑S.497‑‑-Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Previously in bail application filed by accused, direction was issued to Trial Court for trial of accused to be concluded within six months, but same had not been done perhaps due to the fact that accused had not been produced before Trial Court on number of occasions‑‑‑Even the charge had not been framed‑‑‑Right of accused to an expeditious and fair trial had been enshrined in the Constitution, whereas accused was behind bars since date of his arrest which was 11‑7‑2001 due to no fault on his part which could not be justified at all‑‑‑Accused was enlarged on bail, in circumstances.

Muhammad Iqbal Kalhoro for Applicant.

Anwar H. Ansari State Counsel.

2005 Y L R 418

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL RAHIM and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal B.A. No.550 of 2004, decided on 23rd November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of‑‑­Contradictions were found in between ocular and medical evidence‑‑‑Accused remained behind the bars for more than three years, but case had not proceeded without any fault of accused‑‑‑Accused, in circumstances: were entitled to concession of bail.

Jai Jai Veshno Mange Ram for Applicants.

M.I. Bhutto for the State.

2005 Y L R 792

[Karachi]

Before Muhammad Afzal Soomro, J

HAROON ‑‑‑ Applicant

Versus

THE STATE Respondent

Crl. B. A. No. 760 of 2004, decided on 6th December, 2004.

Criminal Procedure Code (V of 1898)‑--

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/452‑‑‑Bail, grant of‑‑‑Accused was behind the bars for the last more than three years, but trial had not been concluded and said delay in trial was not attributed to accused or anybody acting on his behalf‑‑‑After framing charge out of 12 hearings, complainant was in attendance on only one date‑‑‑Almost 65 hearings of the case had been made during trial, but none of prosecution witnesses had been examined except Medical Officer‑‑‑Examining one witness after nearly three years, one month and 25 days, was shocking‑‑‑In the eye of law each and every accused, unless found guilty by a competent Court, was presumed to be innocent and inordinate delay in prosecution not only would amount to abuse of process of the Court, but also would result strongly against such concept of punishment before judgment‑‑‑State counsel had no objection to grant bail to accused‑‑­Accused have been able to make out case for grant of bail, he was admitted to bail.

Abdul Rasool Abbasi for Applicant.

Mushtaque Ahmed Kourejo for the State.

2005 Y L R 810

[Karachi]

Before Anwar Zaheer Jamali, J

SAIN BAKHSH and 2 others---Applicants

Versus

THE STATE‑‑‑Respondent

Cr. B.As. Nos. 605 and 726 of 2004, decided 30th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

----S. 497(2)‑---Penal Code (XLV of 1860), Ss.324/399/402/148/149‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused were arrested from their village and recovery of unlicensed weapons had been foisted upon them‑‑‑False F.I.R. had allegedly been registered by the police mala fide in order to cover up their guilt of causing injury to one of accused‑‑‑None from police party had sustained any injury due to alleged firing of accused‑‑‑Weapons and ammunition allegedly recovered from accused and empties recovered from the spot were not sent by Investigating Officer to Ballistic Expert‑‑‑All Mashirs of arrest and recovery of accused were police personnel‑‑‑Accused having succeeded to make out a case of further inquiry in their favour within purview of S.497(2), Cr.P.C., they were granted bail.

Abdul Rasool Abbasi for Applicants.

Anwar H. Ansari for the State.

2005 Y L R 813

[Karachi]

Before Anwar Zaheer Jamali, J

ALI MUHAMMAD and another‑‑‑Applicants

Versus

THE STATE and another‑‑‑Respondents

Cr. Transfer Application No.68 of 2004, decided on 27th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.526‑‑‑Transfer of case‑‑‑Only ground urged in transfer application was that parties involved in the case had compromised their dispute but due to non‑availability of Presiding Officer of the concerned Court, matter could not be disposed of‑‑‑State counsel had no objection for transfer of case and even complainant had no objection against such transfer‑‑­Allowing the application, case was transferred accordingly.

Abdul Rasool Abbassi for Applicants.

Anwar H. Ansari State Counsel.

Opponent No.2 Nazeer Ahmad son of Muhammad Jumman is also present in Court.

2005 Y L R 816

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

DIN MUHAMMAD and 5 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos. 400 and 349 of 2004, decided on 2nd November, 2004.

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

‑‑‑‑S.498‑‑‑Pre‑arrest bail, grant Of‑‑­Principles ‑‑‑Accused seeking pre‑arrest bail had not brought any material before the Court to justify that ulterior motives had prompted the complainant party in filing such complaint‑‑‑Point to be considered at this stage was whether mala fides or ulterior motives existed to involve accused in F.I.R.‑‑‑Accused while seeking anticipatory/pre‑arrest bail must show that he apprehended his arrest on account of ulterior motives‑‑‑Principles for granting anticipatory bail were different from those applicable in after arrest bail.

Maz Wali v. The State 1977 SCMR 469; Haji Ghani v. The State PLD 1988 Lah. 507; 2003 SCMR 68, 1996 SCMR 71; 1996 SCMR 74 and Murad Khan v. Fazal­-e‑Subhan and another PLD 1983 SC 82 ref.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.382‑‑‑Pre‑arrest bail, refusal of‑‑­Accused had not placed on record any document to show that they had been involved malafidely with ulterior motives for commission of offence‑‑‑High Court earlier granted pre‑arrest bail to accused without touching the merits of the case, but later on when whole merits and demerits of case were argued by respective parties, High Court finding that accused were not involved malafidely with ulterior motives, recalled interim bail granted to accused with direction that accused could surrender before Trial Court and press their bail application after arrest.

Abdul Rasool Abbasi for Applicants.

Muhammad Azeem Panhwar the State Counsel.

2005 Y L R 845

[Karachi]

Before Sarmad Jalal Osmany and Gulzar Ahmed, JJ

IMAMUDDIN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.S‑68 of 2003, heard on 18th December, 2004.

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

‑‑‑‑S.103‑‑‑Search proceedings‑‑‑Section 103, Cr. P. C. though was applicable to the search of a dwelling house or other inhabited place, but practically it had been applied to the search of a person as well.

State v. Bashir PLD 1997 SC 408 ref.

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

‑‑‑‑S.13(d)‑‑‑Appreciation of evidence‑‑­Arrest of accused though was prompted through spy, information, but no private witnesses were associated with recovery, despite place of arrest was not a deserted one as it was close to village where private witnesses could be easily made available‑‑­Non‑association of private witnesses with recovery proceeding was not free from doubt‑‑‑Complainant, the Investigating Officer and arresting officer was same person who had submitted challan against accused, which, was of course, quite anomalous and could be considered to have caused prejudice to accused because all witnesses in the case were subordinate to him‑‑‑Weapon allegedly recovered from accused was not sent for any test to ensure that it was in working condition‑‑­Prosecution having not been able to establish the guilt of accused beyond reasonable doubt, accused was acquitted of the charge giving him benefit of doubt.

Loung v. The State 1999 PCr.LJ 595; Javed Akhtar v. State 1998 PCr. LJ 1462; Tariq Pervez v. The State 1995 SCMR 1345 and Budho Malghani v. The State 2002 MLD 1293 ref.

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

‑‑‑S.13(d)‑‑‑Appreciation of evidence‑‑­Police witness‑‑‑Where private witnesses were not available or were unwilling to act as such, then police witnesses were as good as any ones.

Nisar Ahmed Abro assisted by Asif Ali Soomro for Appellant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 18th December, 2003.

2005 Y L R 850

[Karachi]

Before Mushir Alam, J

MUHAMMAD IBRAHIM ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.408 of 2004 decided on 13th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/114/148/149‑‑‑Bail, grant of‑‑­Accused though was allegedly carrying gun but no overt act was attributed to him‑‑­Even there was no allegation against accused that he instigated accused to commit the crime or that he fired in the air to scare away the complainant‑‑‑Case for grant of bail having been made out, accused was granted bail.

Nisar Ahmed G. Abro for Applicant.

S. Mehboob Ali Shah for the State.

2005 Y L R 855

[Karachi]

Before Rahmat Hussain Jafferi, J

DEEDAR ALI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.44 of 2003, decided on 19th February, 2003.

Criminal Procedure Code (V of 1898)---

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/353‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Bail, grant of‑‑‑Police had alleged that encounter took place between police and one dacoit, but Mashirnama of Wardat did not show empties of weapon lying on the spot or secured from place of Wardat by police‑‑­Accused was not arrested from the place of Wardat and no weapon had been secured from his possession and nobody had received any injury from either side‑‑‑As to from where police had brought the second person and challaned him in the case as allegedly the encounter had taken place between police and only one alleged dacoit‑‑‑Accused, in circumstances was entitled to concession of bail.

Nisar Ahmed Abro for Applicant.

Abdul Hakeem Brohi for the State.

2005 Y L R 857

[Karachi]

Before Rahmat Hussain Jafferi, J

SABIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Cr. B. A. No.45 of 2003, decided on 4th February, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail, grant of‑‑-Name of accused was not mentioned in the F. I. R.‑‑­Vehicle in question was recovered after more than three years of the occurrence from possession of co‑accused‑‑Complainant had implicated accused in his further statement recorded after more than five months from alleged occurrence which was unbelievable as said statement was recorded after recovery of vehicle in question‑‑‑Accused, in circumstances was entitled to concession of bail.

Nisar Ahmed G. Abro for Applicant.

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

2005 Y L R 861

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

SHAMSUDDIN‑--Appellant

Versus

THE STATE‑--Respondent

Criminal Appeal No.45 of 2002, decided on 30th January, 2003.

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

‑‑‑‑S.9(b)‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑‑Appreciation of evidence‑‑­Examination of accused‑ ‑‑Report of Chemical Analyser in respect of Charas allegedly recovered from the accused, was in positive, but such report was not put to accused in his statement under S.342, Cr. P. C. despite that accused was convicted on the basis of alleged recovery of Charas‑‑‑State counsel had conceded that trial Court had committed material irregularity by not putting evidence of Chemical Analyser Report to accused as required under S. 342, Cr. P. C. and that said illegality could not be cured‑‑­Conviction and sentence awarded to accused by Trial Court was set aside and case was remanded to the Trial Court for recording statement of accused under S. 342, Cr. P. C. afresh and decide case in accordance with law.

Rahim v. Crown PLD 1952 FC 1; Aminul Haq v. Crown PLD 1952 FC 63; Muhammad Mumtaz v. The State PLD 1997 SC 689 and Din Muhammad v. The State 1969 SCMR 777 ref.

Nisar Ahmed G. Abro for Appellant.

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

Date of hearing: 30th January, 2003.

2005 Y L R 867

[Karachi]

Before Muhammad Afzal Soomro, J

AHMAD SULTAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.328 of 2004 decided on 2nd November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/353/225/427/148/149‑‑‑Bail, grant of‑‑‑Hardship‑‑‑Case against accused was false as he had been involved in the background of enmity and suspicion‑‑‑Case was of clear hardship as accused from the time of his arrest was in continuous custody, but trial had not proceeded despite period of more than two years had passed‑‑‑None of the prosecution witnesses turned up for the purpose of recording evidence despite charge was framed long before‑‑‑Case against accused being of hardship he was admitted to bail.

Nisar Ahmed Abro for Applicant.

Muhammad Ismail Bhutto for the State.

2005 Y L R 870

[Karachi]

Before Muhammad Afzal Soomro, J

GUL BAHAR and another‑‑‑Applicants

Versus

THE STATE‑-‑Respondent

Criminal Bail Application No.S‑674 of 2004, decided on 24th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑­-Bail, grant of ‑‑‑F.I.R. was lodged after delay of five days and no plausible explanation was available for such delay‑‑­Only role attributed to accused was general in nature and no specific part had been assigned to them‑‑‑Specific names of accused persons along with their parents were given by complainant party showing that both parties were known to each other‑‑‑False implication of accused in such a situation could not be ruled out‑‑‑Bail was granted to accused, in circumstances.

Nisar Ahmed Abro for Applicants.

M.I. Bhutto for the State.

2005 Y L R 886

[Karachi]

Before Shabbir Ahmed, J

FAZAL MAHMOOD‑--Applicant

Versus

THE STATE---Respondent

Spl. Crl. Bail Appln No.31 of 2004 decided on 9th September, 2004.

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

‑‑‑‑Art.75(3)‑‑‑Finance Act (II of 2004), S.32‑A‑‑Customs Act (IV of 1969), S.156(1), cls. (81)(82)‑‑‑President's assent to Bill for becoming law/Act of Parliament‑‑‑Bill would become law and would be called an Act of Parliament when President would assent to Bill‑‑‑Contention that new offence of Tax fraud under Finance Act, 2004 would be deemed on the statute book on 12‑6‑2004 when same was presented to President, was repelled because President consented to the said Bill on 30‑6‑2004‑‑‑Bill in question would become new law w.e.f. 30‑6‑2004 and not from 12‑6‑2004 and new offence could not be given retrospective effect.

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

‑‑‑‑S. 497‑‑‑Finance Act (II of 2004), S.32‑A‑‑‑Customs Act (IV of 1969), S.156(1), cls. (81)(82)‑‑‑Bail, grant of‑‑­Rule of consistency‑‑‑Applicability‑‑­Allegation against accused was that he connived with exporter and through bill of export made an untrue statement with regard to the weight, value, quantity and quality of consignment with the intention to claim duty draw back and refund of Sales Tax‑‑‑Accused allegedly had not examined said consignment which was short of description, quantity and value as per declaration made in the Bill of Export‑‑­Such allegations against accused had brought his action punishable under cls. (81)(82) of S.156(1) of Customs Act, 1969 which was punishable with a term not exceeding three years or fine or both and did not fall within prohibitory clause of S. 497, Cr. P. C.‑‑--Co‑accused had been granted hail against whom prosecution had the same charge‑‑‑Case of accused being identical to that of the co‑accused, rule of consistency required that accused should also be granted bail in order to maintain balance and follow doctrine of equality of all before law.

Imtiaz Ahmed and others v. The State PLD 1997 SC 545; Fida Hussain v. The State PLD 2002 SC 46 and Khalid Masood v. The State 2002 MLD 1012 ref.

Shaukat Hayat for Applicant.

Syed Tariq Ali for Respondent.

Dates of hearing: 26th August and 9th September, 2004.

2005 Y L R 900

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

MUHAMMAD AYUB SARWAR MALIK ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

C.P. No. 937 of 2003, heard on 21st October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑National Accountability Ordinance (XVIII of 1999), S.9‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Pre‑arrest bail, grant and confirmation of‑‑‑Further inquiry­‑‑Case of prosecution against accused was that property in question was purchased by him from its original allottee through registered sale‑deed which was obtained by accused through coercion‑‑‑Prima facie, it appeared that the property had duly been purchased by accused from original allottee as per copy of registered sale‑deed on the record‑‑‑Matter in circumstances was one of further inquiry‑‑‑Accused was attending the Court and charge against accused was yet to be framed‑‑‑Pre‑arrest bail granted earlier to accused was confirmed, in circumstances.

Mirza Sarfaraz Ahmed for Petitioner.

Amir Raza Naqvi ADGP along with Mr. G.A. Jatoi.

Date of hearing: 21st October, 2004.

2005 Y L R 915

[Karachi]

Before Rahmat Hussain Jafferi, J

RASOOL BUX and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Cr. Appeal No.71 of 2003, decided on 1st July, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302(c)/34‑‑‑Appreciation of evidence‑‑­Case against accused persons rested upon alleged judicial confession of one of accused persons which since had been retracted‑‑‑Validity‑‑‑Retracted judicial confession could form sole basis of conviction, if it was found to be true and voluntary‑‑‑Court must satisfy itself that confession was voluntary and true and it was corroborated by some independent, direct or circumstantial evidence to ensure safe administration of justice‑‑‑Incident was un-witnessed and complainant did not shoe suspicion on any person that was why F. I. R. was lodged against unknown culprits‑‑‑Accused were arrested merely on suspicion and Investigating Officer had no tangible evidence with him against accused‑‑‑When accused were produce, before Magistrate for obtaining remand police had absolutely no evidence against them and Magistrate granted remand of accused to police in a mechanical, manner without going through material available in Police Diary‑‑‑Further order of detention or granting remand by Magistrate was not justified‑‑‑Such facts had affected voluntariness of alleged confession of accused as possibility of using third degree methods by police on accused for obtaining confession, could not be ruled out‑‑‑Doubt having been created about voluntariness of confession, solitary retracted judicial confession of accused, could not be safely relied upon unless it was corroborated of material particulars‑‑‑Co‑accused was connected in occurrence through retracted judicial confession of main accused‑‑‑If very confession of main accused could not be relied upon, then involvement of co-accused was also not proved especially when no other evidence was to connect co-accused in the occurrence‑‑‑Conviction and sentence awarded to accused persons by Trial Court, were set aside and they were ­acquitted of charge against them and were released.

Wazir Khan v. The State 1989 SCMR 446; Muhammad Gul v. The State 1991 SCMR 942; Muhammad Ameen v. The State PLD 1990 SC 484: Muhammad Yousif v. The State 1995 SCMR 351 Muhammad Akram v. The State 199­SCMR 1359 and State 1995 SCMR 1359 and State v. Muhammad Naseer 1993 SCMR 1822 ref.

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

‑‑‑‑S.54‑‑‑Power of police to arrest a person‑‑‑Police under S.54. Cr. P. C. had power to arrest a person without an order from a Magistrate or without warrant of arrest on nine conditions mentioned in the said section‑‑‑Police Officer could arrest any person who had beat concerned in arrest cognizable offence or against whom a reasonable complaint had beers made or credible information had been received or a reasonable suspicion existed of his having been so concerned‑‑‑No doubt under S. 54, Cr. P. C. wide powers had been given to Police Officer to arrest a person but those powers were subject to limitation mentioned in said section‑‑‑Which did not mean that Police Officer at his own sweet twill would arrest anybody he liked although he could be peace loving citizen‑‑‑ Intention of law makers while giving such potter to Police Officer was that reasonable suspicion should at least be founded on some definite facts tending to throw suspicion on person arrested and not on a vague surmise‑‑‑If Police Officer had no material with him against accused, then arrest of accused would be illegal.

PLJ 1996 Lah 189; PLD 1974 Azad J&K 90; Nazir Ahmed v. The State 1970 SCMR 7; Abdul Qayoom v. The S.H.O. Police Station Shalimar Lahore 1993 PCr. LJ 91: State v. Mst. Zuhra Bibi. 1996 PCrLJ 546; Muhammad Arshad v. S. H.O. 2001 MLD 132: Muhammad Zakarya v. The State 1999 SCMR 94.1 and Mazharuddin v. The State 1998 PCr.LJ 1035 ref.

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

‑‑‑Ss.61 & 167‑‑‑Remand of case‑‑‑If investigation in the case was not completed within a period of 24 hours then police were required to produce accused before a Magistrate far obtaining remand as required under S.167, Cr. P. C.‑‑‑Remand to police could not be granted can the ground that presence of accused was necessary to finish investigation or to get from accused a Confessional Statement or to force him to give a clue to stolen property‑‑‑Remand could not be granted on as mere expectation that time would show, the guilt of accused‑--­Remand also could not be granted that accused had promised to tell the truth.

1973 PCr. LJ 156: 1872 Pun Re (Criminal) No. 17 p.21; 33 Cr.LJ 287 and 3 N W.P.H.C.R. 275 ref.

(d) Words and phrases‑‑

‑‑‑‑'Suspicion' and 'believe'‑‑‑Connotation.

Ali Nawaz Ghanghro for Appellant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 24th June, 2004.

2005 Y L R 954

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD AHMAD alias DANYAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Cr. A. No. 7 of 2003, decided on 4th November, 2004.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Art.22‑‑‑Identification test‑‑‑Evidentiary value‑‑‑Such test had corroborative value and it by itself was not a substantive piece of evidence and could only corroborate statement of a witness if he deposed that he had seen the culprits on the date, time and place of incident and subsequently identified him to be the same culprit in identification test.

Asadullah v. Muhammad Ali PLD 1971 SC 541 ref.

(b) Explosive Substances Act (VI of 1908)‑‑‑

‑‑‑‑Ss.4 & 5‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(b)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 22 & 129‑‑‑Appreciation of evidence‑‑‑Identification test‑-‑In absence of any evidence that prosecution witness had seen accused on the day, time and place of incident, identification test would carry no weight because same was not corroborating any statement of prosecution witness‑‑­Presence of prosecution witness at the relevant time at place of occurrence was doubtful‑‑‑Prosecution witness had improved his statement during course of evidence from his previous statement recorded by police, which had affected his credibility and it was, in circumstances very unsafe to rely upon such witness without any corroborative piece of evidence, which was lacking‑‑‑Statement of another prosecution witness which was neither confidence inspiring nor dependable could not be made basis for conviction of accused‑‑‑Prosecution had cited three eye­witnesses but only two were examined and third one was not produced before Trial Court for recording his statement and prosecution did not furnish any reason for not examining said witness‑‑‑Presumption under illustration `g' of Art.129 of Qanun­-e‑Shahadat, 1984 could easily be drawn that had said third witness been examined, he would have not supported prosecution case‑‑‑Non‑examination of said witness had adversely affected prosecution story‑‑­F.I.R., yeas a blind one in which no names of culprits were mentioned‑‑‑Delay of 24 days, in holding identification test of accused and his custody remaining with police for a considerable period under police remand could not be explained by prosecution‑‑‑Age of prosecution witness was 80 years at the time of recording his statement and it was not possible for said witness to have remembered faces of culprits after such a long time‑‑­Prosecution having failed to prove case against accused beyond any reasonable doubt, he was entitled to benefit of doubt which was given to him.

Habib‑ur‑Rehman v. Mustafa Abbas PLD 1989 SC 20; Mohammad v. Emperor AIR 1949 P.C. 45; Naiz Ali v. State 1980 SCMR 75; State v. Abdul Ghaffar 1996 SCMR 678; Muhammad Sadiq v, Muhammad Sarwer 1970 SCMR 469; Manzoor Ahmed v. State PLD 1983 SC 197; AIR 1960 SC 391; AIR 1944 FC 38; AIR 1959 SC 1012; PLD 1965 SC 188; PLD 1964 SC 26; Zaheeruddin v. Emperor 1947 PC 750 and Syed Saeed Muhammad Shah v. State 1993 SCMR 550 ref.

(c) Explosive Substances Act (VI of 1908)‑‑‑

‑‑‑‑Ss. 4 & 5‑‑‑Appreciation of evidence‑‑­Conviction could be based on a solitary eye witness, but his evidence should be reliable, dependable, trustworthy and confidence inspiring‑‑‑If such qualities were missing from evidence then conviction could not be based on evidence of a solitary witness.

Gulistan v. State 1995 SCMR 1979 and Kathi Ohabhai v. State 1993 SCMR 2405 ref.

(d) Explosive Substances Act (VI of 1908)‑‑‑‑‑‑

‑‑‑‑Ss. 4 & 5‑‑‑Benefit of doubt‑‑‑Not necessary that there should be many doubts in the case, but if a single doubt appeared in the evidence then its benefit was to be given to the accused‑‑‑Even a single infirmity in the prosecution story would entitle accused to benefit of doubt, not as a matter of grace or concession, but as a matter of right.

Tariq Pervaiz v. State 1995 SCMR 1345 ref.

Abdul Waheed Katpar for Appellant.

Habib Ahmed, AAG for Respondent.

Date of hearing: 4th November, 2004.

2005 Y L R 968

[Karachi]

Before Azizullah M. Memon, J

FAROOQ FARIA and another---Applicants

versus

THE STATE and another---Respondents

Crl. Misc. Applications Nos. 36 and 47 of 2004, decided on 3rd September, 2004.

Criminal Procedure Code (V of 1898)---

----Ss.561-A, 173, 190 & 351---Penal Code (XLV of 1860), Ss.427, 451, 147, 148 & 149---Joining persons shown in Column No.2 of challan as accused in the case---Police, after investigation, submitted challan before the Court of Magistrate of competent jurisdiction wherein applicants/ accused were shown in Column No.2 of said challan whereas co-accused were shown as accused having been found to have committed alleged offence---Trial Magistrate proceeded with case after framing charges and recorded evidence of complainant and one other prosecution witness---Complainant respondent there-after filed application praying therein that applicants, who had been shown in Column No.2 of challan, be joined as accused along with co-accused for having committed alleged offence and Trial Magistrate allowing application of respondent/ complainant joined applicants/accused as accused in the case and issued bailable warrants against them---On filing revision petitions by applicants/accused against order of Trial Court, Additional Sessions Judge, upheld order of Trial Magistrate and dismissed revision petitions---Applicants had filed misc. application against concurrent orders of Trial Magistrate and Appellate Court before High Court---Concurrent orders of two Courts below based on evidence on record and not suffering from any illegality, could not be interfered with by High Court.

PLJ 1995 SC 160, PLD 1994 SC 281; 1986 PCr.LJ 440; 1984 SCMR 594; 2001 SCMR 1556; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Waqarul Haq v. State 1998 SCMR 1428; Falak Sher v. State PLD 1967 SC 425; Muhammad Nawaz Khan v. Noor Muhammad and others PLD 1967 Lah. 176; Muhammad Akbar v. State 1972 SCMR 335; Saeed Muhammad Shah v. State 1993 SCMR 550; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736; Khushbakhtur Rehman v. State 1985 SCMR 1314; Mehar Khan v. Yaqub Khan 1981 SCMR 267; Mehrab v. Emperor 26 Cr.LJ 181 and Lal Bihari Singh v. Emperor 31 Cr.LJ 55 ref.

Rashid Yousuf Zai and Saify Ali Khan and Muhammad Ali Abbasi for Applicants.

Shaikh Mir Muhammad for the Complainant.

Shaikh Javed Mir and Zulfiqar Haider Shah for Respondents.

Date of hearing: 23rd August, 2004.

2005 Y L R 1106

[Karachi]

Before Muhammad Sadiq Leghari, J

TANVIR RAJPUT and another---Petitioners

versus

RUKIYA DADA and others---Respondents

C.P. No.240 of 2003, decided on 25th April, 2004.

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

----S.2(j)(i)---Tenant---Possession beyond period of tenancy---Effect---Plea of retaining possession under agreement to sell---Validity---Occupant entered demised premises as tenant under tenancy agreement---Although the agreement was for a fixed period, yet he continued to be in possession of the premises even after expiry of tenancy period---Occupant was tenant under S.2(j)(i) of Sindh Rented Premises Ordinance, 1979---Status of the occupant could not be converted automatically as the occupant in capacity of purchase/agreement holder.

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

----S.2(j)(i)---Statutory tenant---Legal heirs of deceased tenant in possession of premises---Status---Such occupants became statutory tenants in respect of the premises under S.2(j)(i) of Sindh Rented Premises Ordinance, 1979.

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

----S.15---Ejectment of tenant---Relation-ship of landlord and tenant, denial of---Non-framing of such issue---Validity---When the tenancy agreement and agreement to sell established the existence of relationship of landlord and tenant between the parties, the Rent Controller rightly did not frame issue regarding relationship between the parties and recorded evidence thereon---When denial of relationship appeared to be frivolous and with ulterior motives to prolong the proceedings and the existence of relationship was evident from the material on record, no formal issue regarding relationship of landlord and tenant and recording of evidence thereon was necessary.

Q. Qureshi v. Sardar Ranjhay Khan Farooq 1980 CLC 1457 rel.

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

----S.16(1)---Arrears of rent---Powers of Rent Controller---Scope---Rent Controller can direct the tenant to deposit arrears of rent within such period as he may fix and further direct him to deposit monthly rent regularly---Scope with Rent Controller under S.16(1) of Sindh Rented Premises Ordinance, 1979, is to the extent of tenant and not any person other than tenant.

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

----Ss.15 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Wilful default in monthly rent---Denial of relationship of landlord and tenant---Striking off defence---After the death of the original tenant, his two sons were in the possession of the premises who did not deposit the rent on the ground that there was no relationship of landlady and tenant between the parties---Rent Controller passed tentative rent order and directed the sons to deposit the arrears of rent and also future rent---Sons of the deceased tenant failed to comply with the tentative rent order, therefore, their defence was struck off by the Rent Controller---Evicition order passed by Rent Controller was maintained by Appellate Court---Plea raised by the sons was that there was no relationship of landlady and tenant between the parties and arrears of rent were to be deposited by all the legal heirs of the deceased tenant---Validity---Tenancy of the sons was not independent of the tenancy of their father, which was linked with and dependent upon it---Sons became tenants under the statute for being heirs of the deceased tenant in possession of demised premises at the time of his death and they had derived title to the tenancy from the deceased---On succeeding to the tenancy of the deceased, the sons succeeded to the default also and as such were bound to the default committed by their father---Rent Controller was competent to pass order for payment of arrears and also for deposit of the current and future rent---Rent Controller was competent to pass the order in respect of the arrears of future rent---High Court presumed that if the direction relating to the arrears for the period of tenancy of the deceased tenant was to be implemented against all the heirs of the deceased then also the other part of the order relating to the future rent was essentially to be complied with by the sons in possession of the premises---Non-compliance of that part of the order warranted the striking off defence of the sons---Eviction orders passed by the Courts below did not suffer from any jurisdictional defect or legal infirmity and as such did not call for interference by High Court in exercise of Constitutional jurisdiction---Petition was dismissed in circumstances.

Muhammad Aslam v. Pakistan Steel and another 1990 CLC 849; Ali Jan v. Shujauddin PLD 1985 Kar. 698 and Shaikh Fazaluddin v. Dawood Rehman and others 1983 CLC 470 rel.

Safdar Arshad and 5 others v. Mst. Farukh Nisa PLD 1985 Kar. 633 and Muhammad Azim and others v. Shaikh Muhammad Nawaz and others PLD 1966 SC 182 ref.

Muhammad Anwar Tarique for Petitioners.

M. Haroon for Respondent No.1.

Date of hearing: 18th April, 2003.

2005 Y L R 1115

[Karachi]

Before Zia Perwaz, J

MUHAMMAD BABAR SINDHU---Plaintiff

versus

AKHTAR JAVAID PIRZADA---Defendant

Suit No.908 of 2004, decided on 27th August, 2004.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Determination of loss---Plaintiff claimed that the suit plot belonged to one of the defendants and he had invested a sum of Rs.10 millions with that defendant for construction over the suit plot, for business purposes---Plaintiff sought interim injunction against the defendants restraining them from raising construction over the suit plot---Validity---To justify a temporary injunction, not only must the case be such that an injunction was an appropriate relief but there must be the further ingredient that unless the defendants were restrained forthwith by a temporary injunction, irreparable injury or inconvenience might result to the plaintiff before the suit was decided upon its merits---Application for temporary injunction was required to prove the prima facie existence of the right claimed in the suit and also its infringement---Claims of the plaintiff did not find support from the documents on record---According to the documents relied upon by the parties the suit plot was owned by some other party---Plaintiff himself had quantified his claims on account of principal amount of Rs.10 millions as well as mesne profits at Rs.10,00,000 per month on the investment he made---Plaintiff did not file any document to prima facie establish that the suit plot was owned by the concerned defendant personally---Interim injunction was refused in circumstances.

K.D.A. v. Hadi Bux Memon 1992 CLC 1036; Trustees of Port of Karachi v. Gujranwala Steel Industries 1990 CLC 197; Agha Saiduddin Khan v. Pak Suzuki Motors 1997 CLC 302; Mach Minerals Enterprises and others v. Untied Minerals Company and others 1993 SCMR 2078 and Rai Bahadur Mohan Singh Oberaoi v. Rai Bahadur Jodha Mal Kuthalia and others PLD 1961 SC 6 ref.

Yusuf Hussain Shirazi and another v. Lt.-Col. Muhammad Alam Shaikh PLD 1966 Kar. 472 and Pakistan Railways and others v. Ittefaq Foundaries (Pvt.) Limited 1990 SCMR 355 rel.

Ali Bin Adam Jafri for Plaintiff.

Mansoorul Arifin for Defendants Nos.3 and 4.

Rasheed A. Rizvi for Defendants Nos.6, 9 and 10.

Date of hearing: 27th August, 2004.

2005 Y L R 1143

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Sadiq Leghari, JJ

ABDUL KHALIQ FAROOQ and others---Petitioners

versus

GOVERNMENT OF SINDH and others---Respondents

C.P. No.D-677 of 2004, decided on 21st August, 2004.

(a) Zakat and Ushr Ordinance (XVIII of 1980)---

----S.14---Sindh Government Rules of Business, 1986, R.5(ii)---Constitution of Pakistan (1973), Arts.105, 129, 139 & 199---Constitutional petition---Appointment of Chairman and members of Provincial Zakat and Ushr Council---Jurisdiction---Notification for appointment of the Council was passed without submitting summery to Governor of the Province---Validity---Only the Governor had the right and authority to nominate/appoint Provincial Zakat Council---Summary for formation of Zakat Council was prepared by Secretary to Government and submitted for consideration of Chief Secretary and thereafter to the Chief Minister, all of whom approved it on which the notification for appointment of Zakat and Ushr Council was issued---Summary was never submitted to Governor as required under R. 5(ii), of Sindh Government Rules of Business, 1986---Such notification did not have the sanction of law or the rules viz. the Constitution of Pakistan, Zakat and Ushr Ordinance, 1980 and Sindh Government Rules of Business, 1986---Such notification was void ab initio and without lawful authority---Petition was disposed of accordingly.

(b) Zakat and Ushr Ordinance (XVIII of 1980)---

----S.16---District Zakat and Ushr Committees, constitution of---Procedure---Constitution of such Committees under S.16(1) and (2) of Zakat and Ushr Ordinance, 1980, is the sole prerogative of Provincial Zakat Council---Constitution of such Committees is to be effected in two phases; first nomination of Chairman by Provincial Council and thereafter of the Members by the Council in consulta-tion with the Chairman---District Zakat and Ushr Committees are to be notified under S.16(5) of Zakat and Ushr Ordinance, 1980, by the Provincial Council.

Raja Qureshi for Petitioner.

Anwar Mansoor Khan, A.-G. Sindh and Abbas Ali for Addl. A.-G. for Respondents.

Respondent No.7 in person.

Dates of hearing: 16th April, 22nd 234d and 24th June, 2004.

2005 Y L R 1199

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD RAFIQ and another---Appellants

versus

MUHAMMAD YOUNIS and another---Respondents

Criminal Miscellaneous No.203 of 2003, decided on 17th February, 2004.

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

----S.345(2)---Compromise is of no value unless sanctioned by Court---Compromise effected outside the Court is of no value unless sanctioned by a Court as envisaged in Column No.3 of S.345(2), Cr.P.C. and such sanction is based on sound and reasonable discretion and is not accorded as a matter of course---Court has to decide after taking into consideration all the attending circumstances of the case whether in the given situation it should or should not grant permission for compounding of the offence.

Muhammad Nazeer v. The State PLD 2001 Lah. 212 and Rana Awais and others v. S.H.O. Police Station, People’s Colony Faisalabad and others 2001 PCr.LJ 241 ref.

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

----Ss.337-A(ii) & 337-F(v)---Criminal Procedure Code (V of 1898), Ss.561-A, 249-A & 345(2)---Compromise effected outside the Court immaterial unless sanctioned by Court---Fact that the compromise was arrived at between the parties in the presence of Nazim and Naib Nazim in the office of Union Council was immaterial for the purpose of satisfaction of the Trial Court---Court was yet to arrive at a conclusion as to whether the compromise was genuinely entered into by the parties---Courts below had rightly dismissed the application of the accused moved under S.249-A, Cr.P.C. on the basis of compromise---Petition was dismissed accordingly.

Muhammad Nazeer v. The State PLD 2001 Lah. 212 and Rana Awais and others v. S.H.O. Police Station, People’s Colony Faisalabad and others 2001 PCr.LJ 241 ref.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others 1998 SCMR 466 distinguished

S. Mahmood Alam Rizvi for Applicants.

Miss Mehmooda Qasim for Respondent No.1.

Mumtaz Ali Khan Deshmukh State Counsel.

2005 Y L R 1202

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

TARIQ SIDDIQUI---Appellant

versus

THE STATE ---Respondent

Cr. Accountability Appeal No.29 of 2002, decided on 4th February, 2005.

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

----S.18---Cognizance of offences---No further reference required for subsequent trial of absconders in fresh proceedings---Reference is to be made only once and if one or more absconding accused are tried subsequently in fresh proceedings, no second or third reference is required---Once the Court takes cognizance as required under S.18 of the National Accountability Ordinance, no further reference is required thereafter and in the absence of any prohibition in any law further evidence can be collected and produced before the Court to which no exception can be taken.

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

----S.10---Penal Code (XLV of 1860), S.409---Appreciation of evidence---After the acquittal of three co-accused by the trial Court, prosecution became wiser and itself collected evidence lacking earlier connecting the accused with the commission of the offence---Trial Court had not directed the prosecution to collect such evidence and it, therefore, was not disqualified from proceeding with the trial of the accused who had absconded earlier and was arrested subsequently---Prosecution witnesses in whose favour the documents had been prepared by the accused had fully supported the prosecution case and had identified him as the person to whom they had paid the money and the person who prepared the false documents and delivered to them---No mitigating circumstances warranting reduction in sentence were available in favour of accused---White collar crime and corruption had become a great menace to the entire country and society---Conviction and sentence of accused were upheld in circumstances.

Muhammad Usman and others v. The State 1991 MLD 17 and Mian Manzoor Ahmed Wattoo v. The State 2002 YLR 2362 distinguihsed.

Azizullah K. Shaikh for Appellant.

Niamat Ali Randhawa, Special Prosecutor NAB for Respondent.

Date of hearing: 4th February, 2005.

2005 Y L R 1215

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUNAWAR HUSSAIN TALAT---Applicant

versus

THE STATE ---Respondent

Special Cr. Bail Application No.23 of 2004, decided on 28th February, 2005.

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

----S.497---Customs Act (IV of 1969), Ss.2(s)/16/32(1),(2)/178/156---Bail, refusal of---Offence alleged against the accused, prima facie, was punishable under S.156(1)(89) of the Customs Act, 1969, which although was neither mentioned in the F.I.R. nor in the interim challan, was of no consequence as the ignorance of any Investigating Officer or even of any Court would have no bearing on the provisions of law---Principle that an accused charged with an offence not falling within the prohibitory clause of S.497(1), Cr.P.C. would normally be released on bail, was not applicable to the present case which fell within the category of a white-collar crime---Instances of evasion of the State revenue were increasing at alarming rate and consequently no liberal view could be taken in the matter of granting bail---Accused according to record appeared to have been involved in series of offences and such tendency had to be curbed which was likely to affect the national economy---Bail was declined to accused in circumstances.

Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

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

----S.497—Bail---Cases not falling within the prohibitory clause of S.497(1), Cr.P.C.---Principles---Even in respect of offences not falling within the prohibitory clause of S.497(1), Cr.P.C., Courts may decline to admit an accused to bail if a recognized exceptional circumstance is available for such refusal.

Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

Muhammad Ilyas Khan for Applicant.

S. Mahmood Alam Rizvi, Standing Counsel along with Fakhar Ali Shah, Appraising Officer, Directorate General of Intelligence and Investigation (Customs and Excise for Respondent.

Date of hearing: 28th February, 2005.

2005 Y L R 1229

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD SALEEM ---Appellant

versus

THE STATE ---Respondent

Spl. Anti-Terrorism Jail Appeal No.40 of 2003, decided on 30th March, 2004.

(a) Appeal (Criminal)---

----Decision on criminal appeal should be on merits despite the conviction having not been challenged by the accused---Appellate Court has to ascertain if the evidence on record is sufficient to uphold the finding of conviction.

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

----S.392---Anti-Terrorism Act (XXVII of 1997), S.7(b)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Despite the conviction having not been challenged by the accused, evidence on record was appraised in order to ascertain if the same was sufficient to uphold the conviction---Eye-witnesses had supported the prosecution version---Ocular testimony was corroborated by medical evidence and the evidence of Police Officer who had an encounter with the accused and his companions---Unlicensed pistol loaded with three live cartridges had been recovered from the possession of accused---Convictions of accused were upheld in circumstances with some reduction in his sentences.

Muhammad Ashiq v. State PLD 1970 SC 177 ref.

Mumtaz Ali Khan Deshmukh for Appellant.

Habib Ahmed, Assistant A.-G. Sindh for the State.

2005 Y L R 1234

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MAQSOOD A. MEMON ---Applicant

versus

THE STATE---Respondent

Special Cr. Bail Application No.5 of 2005, decided on 28th February, 2005.

Criminal Procedure Code (V of 1898)---

----S.498---Customs Act (IV of 1969), S.32-A/156---Pre-arrest bail, refusal of---No mala fides could be shown on the part of prosecution against the accused---Alleged substitution of goods in the container being a matter of evidence could not be gone into at this stage---Goods had been initially examined by the accused---Huge loss to the revenue, according to the documents, had been caused on account of the report prepared by the accused---Accused, thus, was not entitled to bail before arrest---Interim pre-arrest bail granted to accused was cancelled accordingly.

M. A. Kazi for Applicant.

S. Mahmood Alam Rizvi, Standing Counsel along with Fakhar Ali Shah, Appraising Officer, (Directorate General of Intelligence and Investigation).

Date of hearing: 28th February, 2005.

2005 Y L R 1239

[Karachi]

Before Ata-ur-Rehman, J

MUHAMMAD ALI---Applicant

versus

THE STATE ---Respondent

Crl. Bail Application No.1081 of 2004, decided on 10th January, 2005.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.324/34---Pre-arrest bail, refusal of---Accused admittedly had caused fire-arm injuries on the legs of two persons---Even if the counter version was taken into consideration, accused had no plausible reason to use the fire-arm as the counter case did not contain any allegation that the said two injured persons were either armed with fire-arms or they had injured any of the accused---Police had no mala fides or ulterior motives against the accused---Interim pre-arrest bail allowed to accused was recalled in circumstances.

Ashraf Hussain for Applicant.

Ghulam Rasool Mangi for the State.

Mumtaz Ali Khan Deshmukh for the Complainant.

2005 Y L R 1246

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Mst. GHAZALA SAEED---Appellant

versus

Mst. SHAKARA ZAFAR and others---Respondents

Crl. Acq. Appeal No.80 of 2003, decided on 9th December, 2004.

Penal Code (XLV of 1860)---

----Ss.406, 420 & 489-F---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Cheque issued by the accused to the complainant had been dishonoured---Magistrate vide impugned judgment had acquitted the accused of the charge under Ss.406/420, P.P.C.---Bouncing of cheque had become an offence after insertion of S.489-F, P.P.C. with effect from 25th October, 2002, but for that purpose also dishonest issuance of cheque towards repayment of loan or fulfilment of an obligation which was dishonoured on presentation, had to be established---Offence was allegedly committed in the year 2001 when S.489-F was not on the Statute book---Trial Court had rightly acquitted the accused and the impugned judgment was not open to any exception---Appeal was dismissed accordingly.

Nemo for Appellant.

Mumtaz Ali Deshmukh for Respondent.

Khlid Mehmood Siddiqui, State Counsel.

2005 Y L R 1251

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD NAZEER AWAN---Appellant

versus

THE STATE---Respondent

Crl. Bail Application No.81 of 2004, decided on 16th February, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail, refusal of---Prosecution witnesses including the complainant in their statements recorded under S.164, Cr.P.C. had clearly implicated the accused in the crime---No reason was presently available on record to show false implication of accused at the instigation of somebody else---Bail was declined to accused in circumstances.

Abdul Naeem Memon for Applicant.

Mumtaz Ali Khan Deshmukh for the State.

2005 Y L R 1257

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ASHRAF ALI---Applicant

versus

THE STATE ---Respondent

Cr. B. No.738 of 2004, decided on 1st October, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Prosecution had based its case on the alleged version of the accused that he was cleaner of the Truck---“Charas” according to F.I.R. was secured from the possession of the Driver and another person, but no such allegation was made against the accused---Case against accused was, thus, of further inquiry---Accused was admitted to bail in circumstances.

Ilamdin Khattak for Applicant.

S. Mehmood Alam Rizvi, Spl. Prosecutor ANF.

Date of hearing: 1st October, 2004.

2005 Y L R 1283

[Karachi]

Before Sarmad Jalal Osmany and Rahmat Hussain Jafferi, JJ

HASAN AKHTAR and another---Appellants

versus

THE STATE ---Respondent

Spl. A.T.A. No.39 of 2001, decided on 27th November, 2004.

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

----Ss.302(b)/149 & 324/149---Anti-Terrorism Act (XXVII of 1997), Ss.25 & 19(12)---Appeal, competency of---Accused had been convicted and sentenced in absentia by the Anti-Terrorism Court and they had not surrendered either before the Trial Court or before the High Court---Absconders who had not surrendered before the Court after their conviction were not competent to file the appeal through their Advocate---Appeal filed by the accused through their Advocate, therefore, was not maintainable and was dismissed as such---Accused, however, were directed to approach the Trial Court as provided under S.19(12) of the Anti-Terrorism Act, 1997, for further proceedings in accordance with law.

Mohammad Jameel Ahmed v. State Special Anti-terrorism Appeal No.99 of 2001 fol.

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

----S.25---Penal Code (XLV of 1860), Ss.302(b)/149 & 324/149---Appeal by absconders---Competency---Absconders who have not surrendered before the Court after their conviction cannot file appeal through their Advocate.

Muhammad Jameel Ahmed v. State Special Anti-terrorism Appeal No.99 of 2001 ref.

Muhammad Sabir Haider and Sayed Taswar Hussain Rizvi for Appellants.

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

Date of hearing: 8th November, 2004.

2005 Y L R 1288

[Karachi]

Before Azizullah M. Memon, J

JAMIL AHMED ---Applicant

versus

THE STATE---Respondent

Crl. Bail Application No.209 of 2004, decided on 8th March, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/324---Bail, refusal of---Accused after his release on bail had misused the same and stopped appearing before the trial Court whereupon proceedings under Ss.87 and 88, Cr.P.C. were taken against him and his surety produced him in the Court---Accused was involved in a heinous offence and he had no cogent reason for not appearing in the Trial Court on the dates of hearing in the case---Trial Court had rightly rejected the bail application of accused---Bail was refused to accused accordingly.

Nisar Ahmed Dogar for Applicant.

Mumtaz Ali Khan Deshmukh State Counsel.

2005 Y L R 1292

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

RAJA JAMIL alias JAMSHED---Applicant

versus

THE STATE---Respondent

Crl. Miscellaneous Application No.7 of 2004, decided on 18th February, 2003.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), S.324/353/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Sentences sought to run concurrently---Accused had been convicted and sentenced to different terms of imprisonments in two different cases, one registered under Ss.324/253/34, P.P.C. and the other under S.13-D of the Arms Ordinance---Trial Court's order was silent about the running of the sentences in the two cases either concurrently or consecutively---Both the cases were stated to have been registered on the same day and the arms case was an offshoot of the main case---Accused, thus, was entitled to the relief prayed by him and the sentences awarded to him in the said two cases were consequently directed to run concurrently.

Crl. Misc. No.344 of 1998 dated 4-2-1999 ref.

Mumtaz Ali Khan Deshmukh for Applicnat.

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

2005 Y L R 1305

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

RAMESH M. UDESHI---Appellant

versus

THE State---Respondent

Criminal Accountability Appeal No.6 of 2000, decided on 30th December, 2004.

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

----Ss. 9(a)(vi)/10---Appreciation of evidence---No mense rea was shown on the part of accused as he had made abundantly clear in his summary that although under the rules the land in question had to be disposed of through public auction or private negotiation, Chief Minister could relax the rules under the law and as per past precedent could allow the conversion at the rate of Rs.50,000 per acre, based on the legal opinion issued by the Ministry of law---None of the prosecution witnesses had stated that the accused had benefited personally from the conversion of the land in question in favour of co-accused, which admittedly had since been cancelled by the Government---Accused in the circumstances at best could be said to have not exercised his discretion in advising the Chief Minister against the transaction---Lack of discretion or giving of wrong advice per se could not amount to an offence under S.9(a)(vi) of the National Accountability Ordinance, 1999---Stating incorrect provisions of law in the summary also did not constitute an offence which might give rise to administrative action against the accused---No reasonable case having been made out by the prosecution, accused was not bound to prove his innocence---Accused was acquitted in circumstances.

Criminal Accountability Appeals Nos.1 and 2 of 2000, Saifuddin v. Muhammad Ashfaque Piracha 1986 CLC 1819; Anwar Saifullah Khan v. The State PLD 2002 Lah. 458; Tariq Javed Afridi v. The State PLD 2002 Lah. 233; Murad Ali Shah v. Government of Sindh PLD 2002 Kar. 24; Mir Munawar Ali Talpur v. The State PLD 2003 SC 46; Ramesh Udeshi v. The State PLD 2004 Kar. 224; Aftab Ahmed Khan Sherpao v. The State PLD 2001 Pesh. 80; Ramesh Udeshi v. The State PLD 2003 Kar. 423; Gahno v. The State PLD 1964 (W.P.) Kar. 437; State v. Rabnawaz PLD 1974 SC 87; Crl. Misc. Application No.274 of 1998; Abdul Haq v. Province of Sindh PLD 2000 Kar. 224; Messrs Qasimabad Enterprises v. Province of Sindh 1997 CLC 1246; The State v. Syed Abdullah Shah and others 1998 MLD 216 and Secretary, Jaipur Development Authority v. Daulat Maljain (1997) 1 Supreme Court Cases 35 ref.

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

----S. 9(a)(vi)---Corrupt and corrupt practices---Lack of discretion or giving of wrong advice per se cannot constitute an offence under S.9(a)(vi) of the National Accountability Ordinance, 1999.

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

---S.14(d)---Presumption against accused---Once an accused is charged under S.9(a)(vi) of the National Accountability Ordinance, 1999, then before he is saddled with the onerous liability of disproving the charge, which is a departure from the ordinary rules of criminal jurisprudence, the prosecution has first to make out a reasonable case against him as per the proviso to said subsection.

Mrs. Ismat Mehdi for Appellant.

Muhammad Anwar Tariq, D.P.G., NAB for Respondent.

Dates of hearing: 12th, 17th and 19th March, 2004.

2005 Y L R 1388

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

Dr. AKMAL WALID and another---Applicants

versus

THE STATE---Respondent

Cr. Bail Appln. No.1028 of 2004, decided on 2nd December, 2004.

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

----S. 497---Penal Code (XLV of 1860), Ss.201/212/216/34---Anti-Terrorism Act (XXVII of 1997), Ss.11-N, 21-C & 21-J---Bail, grant of---Complainant Inspector was not the eye witness of the facts mentioned in the F.I.R. and his source of information was the accused themselves who had disclosed the said facts to him during their police custody---Contents of the F.I.R. apparently incriminating the accused, thus, were inadmissible in evidence---Evidence collected in another case could not be used in the present case---Investigating Officer had not yet recorded the statement of any person under S.161, Cr.P.C. to make the said record a part of this case---Entire case hinged upon the evidence of a hostile witness which was yet to be scrutinized by the Trial Court with all the evidence yet to be brought on the record---Accused were admitted to bail in circumstances.

Muhammad v. Emperor AIR 1946 PC 47; Habib Rehman v. Mustafa PLD 1989 SC 20; State v. Abdul Ghaffar 1996 SCMR 678 and Zahid Khan v. Gulsher 1972 SCMR 597 ref.

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

----S.497---Bail---Assessment of evidence---Principles---At bail stage only tentative assessment of evidence is required to be made---No deeper appreciation of evidence can be undertaken at such stage.

M. Ilyas Khan for Applicants.

Anwar Mansoor Khan. A.-G., Sindh for Respondent.

Date of hearing: 2nd December, 2004.

2005 Y L R 1440

[Karachi]

Before Sarmad Jalal Osmany, J

BASHIR AHMAD and others---Applicants

versus

THE STATE---Respondent

Cr. Bail Applications Nos. S-259 and S-260 of 2004, decided on 19th November, 2004.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/504/147/148/149---Bail, grant of---Accused had allegedly gone fully armed to the Guest House and fired at the prosecution witness which did not necessarily mean that they had shared a common intention with the co-accused to do away with the deceased or the other injured prosecution witness---Hence the accused at this stage could not be connected with the murder of the deceased and injury to the said prosecution witness on the theory of common intention---According to the allegation both the accused had fired at the prosecution witness concerned who ducked down and saved his life by hiding in the manger---Case against accused, thus, was not of ineffective firing---Nevertheless, accused did not repeat their fire upon the witness who was completely at their mercy and they, prima facie, did not have any intention to kill him---Intention was a subjective state of mind and indeed difficult to decide at bail stage unless compelling evidence was available for a positive deduction---Further probe was consequently needed into the guilt of accused and they were admitted to bail in circumstances.

Attaullah v. The State 1999 SCMR 1320; Faraz Akram v. The State 1999 SCMR 1360; Farzand Ali v. Taj 2000 SCMR 1854; Aftab Hussain v. The State 2000 SCMR 1467; Yaroo v. The State 2004 SCMR 856; Muhammad v. The State 1998 SCMR 454; Naik Muhammad v. The State 2000 PCr.LJ 1229; Muhammad Anwar v. The State 2002 SCMR 1289 and Bashir Ahmed v. The State 1996 SCMR 308 ref.

Ghulam Nabi v. The State 1996 SCMR 1023; Munawar v. The State 1981 SCMR 1092; Punhal v. The State PLD 2002 Kar. 99; Abdul Malik v. The State 2000 PCr.LJ 1816 and Todo v. The State 2001 PCr.LJ 649 distinguished

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

----S.497---Penal Code (XLV of 1860), Ss.302/ 324/504/ 147/148/149--- Bail---"Ineffective firing"---Connotation---Ineffec-tive firing means a firing without any target i.e., in the air or elsewhere.

Faraz Akram v. The State 1999 SCMR 1360; Aftab Hussain v. The State 2000 SCMR 1467 and Naik Muhammad v. The State 2000 PCr.LJ 1229 ref.

(c) Words and phrases---

----"Ineffective firing"---Connotation.

Qurban Ali H. Chohan for Applicants.

Jawaid Leghari for the Complainant.

Mashooque Ali Sammo, Asstt. A.-G.

Dates of hearing: 16th, 17th and 24th September, 2004.

2005 Y L R 1453

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

AZIZULLAH and others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.715 of 2004, decided on 10th December, 2004.

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

----S. 497---Penal Code (XLV of 1860), S.365-A---Anti-Terrorism Act (XXVII of 1997), S.7--- Bail--- Principle--- Mere accusation of non-bailable offence is not sufficient to disentitle an accused to bail---Reasonable grounds as distinguished from mere allegations of suspicion must exist---Suspicion, howsoever strong, would not take the place of reasonable ground.

Government of Sindh v. Raeesa Farooq 1994 SCMR 1283 and Ch. Abdul Malik v. The State PLD 1968 SC 349 ref.

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

----S.497---Penal Code (XLV of 1860), S.365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21-D(2)---Bail, refusal of---Apart from their affidavits six hostages in their evidence had fully implicated the accused in the crime supporting the prosecution case---Family dispute apparently appeared between the parties and the question of the same having nexus with the Anti-Terrorism Act, 1997, being sub judice before the Supreme Court, could not be examined at this stage---Offence of hostage taking, prima facie, was made out against the accused which was punishable with death or imprisonment for life and fell within the prohibitory clause of proviso to S.21-D(2) of the Anti-Terrorism Act, 1997---Bail was declined to accused in circumstances.

Government of Sindh v. Raeesa Farooq 1994 SCMR 1283; Ch. Abdul Malik v. The State PLD 1968 SC 349 and Naseer Ahmed v. State PLD 1997 SC 347 ref.

Azizullah Shaikh for Applicant.

Habib Ahmed, A.A.-G. assisted by Mr. I.A.. Hashmi for the State.

Date of hearing: 30th November, 2004.

2005 Y L R 1467

[Karachi]

Before Muhammad Afzal Soomro, J

LAKHMIR KURIO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 565 of 2004, heard on 10th November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 120-B, 148 & 149---Bail, grant of---General allegations had been levelled against accused and co-accused that they had conjointly fired at victim, but no specific injury had been assigned to accused---Name of co-accused had been placed in Column No. 2 who had been assigned similar role in F.I.R. which was not believed by Investigating Agency---Medical Officer had mentioned in his report that injury received by victim was caused by one shot while it was the case of prosecution in F.I.R. that accused along with co-accused fired conjointly at her which hit her which had created doubt in the prosecution case and benefit thereof would go to accused---Was yet to be determined at the trial that out of the two accused who had caused alleged injury---Accused having been able to make out a case for bail, was admitted to bail.

1980 SCMR 784; 1999 MLD 1033 and 2002 PCr.LJ 494 ref.

Muhammad Ayaz Soomro for Applicant.

M.I. Bhutto for the State.

Date of hearing: 10th November, 2004.

2005 Y L R 1514

[Karachi]

Before Sarmad Jalal Osmany, J

MUNAWAR ALI---Applicant

versus

THE STATE---Respondent

Cr. B.As. Nos. 341 and 299 of 2004, decided on 10th November, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/324/504/34---Bail, refusal of---Eye-witnesses had fully supported the prosecution version according to which the accused had shot at the deceased with a pistol due to election dispute and caused his death---Such version was consistent throughout as appearing in the F.I.R., police statements and depositions of the witnesses in the Court---Appreciation of the apparent inconsistencies between the consistent ocular testimony and medical evidence etc. would amount to a deeper probe in the matter which could not be undertaken at bail stage---Delay of 18 hours in lodging the F.I.R. of counter version was not explained---Counter version at this stage could not be given much weight in view of the overwhelming eye-witness account unless the defence witnesses were examined by the Trial Court---Bail was declined to accused in circumstances.

Mitho v. The State 1978 SCMR 231; Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845; Sufian Shaikhani v. The State 2003 Cr.LJ 855; Qazi-ur-Rehman v. State 1997 PCr.LJ 1612 and Abdul Baqi Shah v. The State 1997 SCMR 32 distinguished.

Muhammad Iqbal v. The State 1989 Cr.LJ 1838; Brig. (Retd.) Imtiaz Ahmad v. Federation of Pakistan 1988 PCr.LJ 2051; Gul Muhammad v. The State 1974 PCr.LJ 400; Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585; Muhammad Hanif v. Manzoor 1982 SCMR 153; Badshah Gul v. The State 1999 PCr.LJ 691; Liaqat Ali v. The State 2000 SCMR 1438; Haji Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765; Mst. Parveen Akhtar v. The State 2002 SCMR 1886; Abdul Hayee v. The State 1996 SCMR 555 and Nasir Muhammad Wassan v. The State 1992 SCMR 501 ref.

Qurban Ali Chohan for Applicant.

Choudhry Aftab Ahmed Warriach for the Complainant.

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

Dates of hearing: 11th and 12th October, 2004.

2005 Y L R 1531

[Karachi]

Before Sarmad Jalal Osmany, J

NABI BUX alias NABU---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-455 of 2004, decided on 10th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Accused had not been assigned any role as regards the murder of the deceased either by the complainant in the F.I.R. or by the prosecution witnesses in their police statements---Accused was only alleged to have fired a shot with his pistol at the complainant which had missed and he did not repeat the fire although the complainant being unarmed was completely at his mercy---Prima facie, therefore, the accused did not appear to have the intention of killing or injuring the complainant---Intention being a subjective state of mind was difficult to be decided at bail stage in the absence of compelling evidence for a positive deduction---Case of accused was one of further inquiry and he was allowed bail in circumstances.

Muhammad v. State 1998 SCMR 454; Muhammad Sadiq v. The State 1995 SCMR 1130 and Shafi Muhammad v. The State 1999 PCr.LJ 890 distinguished.

Muhammad Sadiq v. State 1996 SCMR 1654; Moin Butt v. State 2004 PCr.LJ 545; Muhammad Haroon v. State 1994 SCMR 2161; Passand v. State 2003 PCr.LJ 747; Peeral v. The State 2001 MLD 631; Aziz v. The State 2001 PCr.LJ 214; Shabbir v. State 2003 MLD 1715; Yaroo v. The State 2004 SCMR 864; Shamsuddin v. The State PLD 1996 Kar. 382; Ataullah v. The State 1999 SCMR 1320; Haleem v. The State 2001 YLR 769; Mehar v. The State 2000 PCr.LJ 1178; Haji Punhal v. State PLD 2002 Kar.99; Jehangir v. The State 1987 SCMR 1154; Naseer Ahmed v. State PLD 1997 SC 347; Faraz Akram v. the State 1999 SCMR 1360; Aftab Hussain v. the State 2000 SCMR 1467 and Naik Muhammad v. The State 2000 PCr.LJ 1299 ref.

Ayaz Latif Palejo for Applicant.

Anwar H. Ansari for the State.

Allah Bachayo Soomro for the Complainant.

2005 Y L R 1533

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Afzal Soomro, JJ

MUHAMMAD UZAIR---Appellant

versus

THE STATE---Respondent

S.T.A. No.51 of 2004, decided on 20th August, 2004.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 427---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Appreciation of evidence---F.I.R. though was lodged promptly but such fact, by itself, was not sufficient to furnish corroboration from an independent source---Examination-in-Chief of main prosecution witness, who was a Taxi Driver, could not be relied upon because said witness disappeared after Examination-in-Chief and did not make himself available for cross-examination though efforts were made to procure his attendance---Evidence of a witness could not be relied upon unless he was cross-examined but witness in the present case had not been cross-examined---Evidence of pointation regarding place of occurrence by accused in police custody from where nothing was secured, was also inadmissible in law as it was already known to police---F.I.R. had lost its sanctity in view of inadmissibility of evidence of main witness, who did not appear for his cross-examination, ocular testimony furnished by interested witnesses was not corroborated from any independent source---Entire prosecution case suffered from infirmities, improbabilities, weaknesses and material contradictions and whole case was full of doubts, was shrouded in mystery and no evidence was connecting accused with commission of crime---Prosecution having not been able to prove its case beyond any reasonable doubt, it was a case of clean acquittal---Accused was acquitted of charge and was ordered to be released.

Azizullah K. Shaikh for Appellant.

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

Date of hearing: 20th August, 2004.

2005 Y L R 1544

[Karachi]

Before Ghulam Nabi Soomro, J

RAHIM BUX---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.140 of 2002, decided on 20th June, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Rule of consistency---Applicability---Four accused persons including accused who were stated to be armed with Lathis had allegedly caused Lathi blows to deceased---Deceased in Medical Certificate was shown to have sustained only hard and blunt substance blows; one on the parietal region and other on left upper arm---Nothing was on record to show as to which of the accused had caused such injuries to deceased---Accused's case appeared to be identical with case of co-accused who had been allowed bail---Accused was entitled to be released on bail under rule of consistency---Allegation of abscondence alone would not be sufficient to refuse concession of bail, if on merits case of accused appeared to be one of bail---Bail was granted to accused, in circumstances.

Muhammad Yousuf v. The Court 2000 MLD 1697 and Javaid Anwar v. The State 2001 PCr.LJ 1125 ref.

Jai Jai Veshno for Applicant.

S. Mahboob Ali Shah for the State.

2005 Y L R 1570

[Karachi]

Before Muhammad Afzal Soomro, J

Sahibzada BEENA AHMED and others---Applicants

versus

THE STATE ---Respondent

Cr. Bail As. Nos.678 and 739 of 2003, decided on 14th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.409---Pre-arrest bail, cancellation of---Sufficient material had come on record during investigation against the accused who had been allowed pre-arrest bail by the Trial Court---Punishment of the offence with which the accused were charged went up to imprisonment for life---Public at large had been defrauded by not only private persons but also by the persons of State Authorities who were responsible to the rights of the citizens---Desire to amass wealth by illegal means had penetrated in all walks of life and people were committing offences detrimental to the society and the country for money---Approach of the Court in such a situation should be reformation-oriented with the desire to suppress the said mischiefs strictly applying the laws designed and intended to eradicate such national evils---Pre-arrest bail wrongly granted to the accused by the Trial Court was cancelled in circumstances.

Shafi Muhammadi and Ghulam Raza Khokhar for Applicants.

Habib-ur-Rashed for the State.

Date of hearing: 10th January, 2005.

2005 Y L R 1585

[Karachi]

Before Sarmad Jalal Osmany, J

RAZA MUHAMMAD and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-484 of 2004, decided on 12th November, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Bail, grant of---Complainant had not only improved upon the F.I.R. in her further statement given to the police authorities but also in her 164, Cr.P.C. statement recorded before the Magistrate---During the entire period of the complainant's absence from her house, her family did not lodge any report with any authority which had created further doubt in the matter at this stage---Medical evidence on the record did not support the complainant's version of any assault etc.---Guilt of accused, thus, needed further probe and they were admitted to bail accordingly.

Younus Rangwala v. The State 2003 PCr.LJ 957; Shabbir v. The State 1994 PCr.LJ 914; Manazir Hussain Shah v. The State 1999 PCr.LJ 86; Muhammad Azhar Nadeem v. The State 2002 PCr.LJ 12; Muhammad Nawaz v. The State 2000 YLR 1933; Abdul Khalique v. The State 2000 YLR 1813; Ismail v. The State 2000 YLR 338; Tariq Bashir v. The State PLD 1995 SC 34; Shah Muhammad v. The State 2004 SCMR 482; Shabbir v. The State 2004 PCr.LJ 1039; Liaquat Ali v. Yara and others 1994 PCr.LJ 1224; Muhammad Rais Akhtar v. The State 2004 PCr.LJ 1110 and Abdul Rehman v. Ali Sher and others 2000 PCr.LJ 33 ref.

Hakim Ali Siddiqui for Applicants.

Noorul Haq Qureshi for the Complainant.

Anwar Ansari for the State.

Date of hearing: 27th September, 2004.

2005 Y L R 1769(1)

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD SAFFAR and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.599 of 2003, decided on 17th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---Bail, grant of --During pendency of case, complainant party and legal heirs of deceased had entered into a compromise and Diyat amount had been paid---Accused had submitted that allegation of ineffective firing was against him---Main accused stood acquitted as a result of compromise between the legal heirs of deceased and the main accused---Accused were also entitled to be released on bail, in circumstances.

Syed Madad Ali Shah and Noor Nabi G. Memon for Applicants.

Mumtaz Ali Leghari State Counsel.

Complainant is present in person.

2005 Y L R 1777

[Karachi]

Before Muhammad Moosa K. Leghari, J

LAL CHAND and another--Applicants

Versus

THE STATE---Respondent

Bail Application No.S-140 of 2005, decided on 29th April. 2005.

Criminal Procedure Code (V of 1898)--

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.324 & 398---Bail, grant of --Bail had been sought on the ground that with the efforts of the elders of community, matter had been patched up and complainant had no objection if bail was granted---Affidavit of complainant and two prosecution witnesses had been filed in the Court--­Complainant along with prosecution witnesses present in Court had affirmed the fact that for the present he had no objection for grant of bail in view of resolution and reconciliation due to intervention by elders of community---State Counsel had stated no objection---Accused were directed to be enlarged on bail, in circumstances.

Syed Maded Ali Shah for Applicants.

Anwar H. Ansari for the State along with the Complainant.

2005 Y L R 1785

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD JUMAN---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-30 of 2005, decided on 8th April, 2005.

Penal Code (XLV of 1860)---

----Ss.182 & 211---Criminal Procedure Code (V of 1898), S. 439---False information and false charge of offence--­Petitioner was convicted and sentenced under S.182, P.P.C., but before initiation of proceedings against him neither any show-cause notice teas issued to him nor any explanation was sought from him which was mandatory requirement---Further, while acquitting accused persons in direct complaint, filed by petitioner, Trial Court had extended benefit of doubt to accused, but had not held that complaint was false--­Conviction and sentence awarded to petitioner by two Courts below were not maintainable in law---Judgment of two Courts below impugned in revision petition were set aside and they were acquitted of charge.

Muhammad Murad v. The State 1983 PCr.LJ 1097 ref.

Syed Madad Ali Shah for Applicant.

Muhammad Azim Panhwar for the State.

2005 Y L R 1791

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Moosa K. Leghari, JJ

NOOR HASSAN ---Applicant

Versus

Haji MUHAMMAD KHAN alias TURKEY and others---Respondents

Criminal Miscellaneous Application No.85 of 2004, decided on 31st March, 2005.

Criminal Procedure Code (V of 1898)--

----Ss. 497(5) & 498---Anti-Terrorism Act (XXVII of 1997), S.21-D---Cancellation of pre-arrest bail-Application for--­Jurisdiction of Anti-Terrorism Court ---Pre­ arrest bail granted to accused by Judge, Anti-Terrorism Court had been sought to be cancelled on two counts; first, that judge, Anti-Terrorism Court had no jurisdiction to grant pre-arrest bail; second, that bail granting order was not speaking order and that facts of the case had not been considered---Validity---Judge, Anti­-Terrorism Court had jurisdiction to grant pre-arrest bail by virtue of provisions of S.21-D of Anti-Terrorism Act, 1997--­Impugned bail granting order had shown that Judge, Anti Terrorism while granting interim pre-arrest bail and confirming the same had considered facts and had kept in view that for the purpose of granting pre arrest bait, condition precedent was to show mala fide on part of prosecution---Judge, Anti-Terrorism Court had observed that Political rivalry existed between the parties and they had been litigating up to Supreme Court and after considering all said facts had come to the conclusion that it was a fit case for grant of pre-arrest bail--­Relevant consideration for grant of pre­-arrest bail having been discussed by Judge, Anti-Terrorism, it could not be said that bail granting order was not a speaking order---Order granting pre-arrest bail, being not open to any exception, application for cancellation of bail, was dismissed.

Ghulam Nabi v. Bashir Ahmed and others 2001 PCr.LJ 1434; Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Muhammad Ismail and others v. The State 1991 MLD 496; Sardar Imdad Khan v. The State 1996 PCr.LJ 272 and Abdul Rasheed v. The State PLD 2003 Kar. 682 ref.

Chaudhry Aftab Ahmed Warraich for Applicant.

Anwar H. Ansari for Respondents Nos. 1 and 2.

Masood A. Noorani Addl. A.-G. Sindh.

Syed Madad Ali Shah as Amicus Curiae.

2005 Y L R 1808

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

RIAZ ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-96 of 2005, decided on 19th April, 2005.

Criminal Procedure Code (V of 1898)--

----S. 498---Penal Code (XLV of 1860), Ss. 403, 406, 407 & 34---Interim bail, confirmation of---Allegation against accused was that he got cheque encashed issued in favour of complainant by producing some fictitious woman who impersonated herself as the complainant--­No bank official was examined and cited as a witness in challan to state that accused had got cheque encashed in the name of the complainant---Business rivalry and enmity existed between complainant and wife of accused and they were at daggers drawn with each other---Challan had been submitted in the Court ---Mala fide on the part of prosecution being apparent, case was fit for grant of anticipatory bail--­Interim bail before arrest already granted to accused, was confirmed.

Syed Madad Ali Shah for Applicant.

Agha Khuda Bukhsh for the Complainant.

Muhammad Azeem Panhwar for the State.

2005 Y L R 1823

[Karachi]

Before Muhammad Moosa K. Leghari, J

GHULAM QADIR---Applicant

Versus

THE STATE---Respondent

Cr. B.A. Nos. S-265 of 2005, heard on 6th May, 2005.

Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 1860), Ss. 342, 364, 440, 506, 148 & 149---Bail, grant of---Further inquiry---Prima facie, evidence was available to show that place of occurrence was not electrified---No bulb was secured from the place of Wardat in the light of which accused were said to have been identified---Fact that accused was a political worker and a sitting M.P.A. was not disputed---One person appeared before Judicial Magistrate and recorded his statement under S.164, Cr.P.C. to depose that he was not abducted---Whether said person/alleged abductee was the same person as mentioned in F.I.R. or was a different one, required further inquiry--­When parties were infected with hostilities, false implication of accused could not be ruled out---Accused was released, on bail, in circumstances.

Qurban Ali H. Chohan for Applicant.

Rasheed Ahmed Qureshi A.G. for the State.

Ali Muhammad Dahiri for the Complainant.

2005 Y L R 1826

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

Shaikh NAEEM AHMED and 6 others---Petitioners

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller of Buildings and 3 others---Respondents

Constitution Petition No. D-1976 of 2002, decided on 27th May, 2004.

Establishment of Office of Ombudsman For the Province of Sindh Ordinance (IX of 1991)---

----S. 32---Constitution of Pakistan (1973), Art. 199---Limitation Act (IX of 1908), S.5---Constitutional petition---Delay in filing appeal against order of Ombuds­man ---Power of Governor to condone delay---Appeal against order of Ombudsman which was to be filed before Governor within 30 days, was filed after more than 17 months and said inordinate delay was condoned by Governor/Appellate Authority---Validity---In absence of specific statutory power, delay in filing appeal could not be condoned by Governor---Order passed by Governor, otherwise was liable to be set aside as same was passed against petitioner without notice to the petitioner---Appellate order passed by Governor was set aside with direction to respondent to consider question of issuance of required "No objection certificate" to petitioner strictly in accordance, with law.

Abdul Ghaffar v. Mst. Mumtaz PLD 1982 SC 33 and Federation of Pakistan v. Muhammad Tariq Ejaz Prizada 1999 SCMR 2744 ref.

Badar Alam for Petitioners.

Amir Malik for Respondent No. 1.

Manzoor Hussain for Respondent No.2.

M.M. Pirzada for Respondent No.4.

2005 Y L R 1848

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Roshan Essani, JJ

ALAM KHAN and 4 others---Applicants

Versus

THE STATE---Respondent

Crl. Transfer Appln. No.20 of 2002, decided on 7th August, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 526 & 561-A---Penal Code (XLV of 1860), Ss.324, 147, 148, 149 & 34--­Transfer of case---Application for--­Grievance of accused was that Presiding Officer of the Court called them in the Chambers and pressed them to compromise with complainant party else they would be convicted---Further allegation was that one of accused persons, after some time, went to the Court in connection with some work and he saw complainant coming out of the Chambers of the Court and that complainant party was claiming that accused would be convicted by the Trial Court ---Applicants/accused had alleged that he had lost faith in the Presiding Officer of the Trial Court and had prayed that his case be transferred to some other Court--­Complainant had not refuted the allegations made against him by way of counter-­affidavit ---Since apprehension existed in the mind of applicants/accused that they would not be treated even handedly and would not get justice at the hands of Presiding Officer, request of appellant/accused for transfer of case merited consideration--­Case was transferred accordingly.

Muhammad Nawaz v. Ghulam Kadir PLD 1973 SC 327 ref.

Fareed Ahmed Dayo for Applicants.

I. A. Hashmi for Complainant.

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

2005 Y L R 1857

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL RASHEED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1351 of 2000, decided on 1st January, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11 & 16---Bail, grant of---Alleged abduetee had not been recovered and no evidence was available against accused except version of prosecution witness which remained uncorroborated-- Accused having been able to make out a good case for grant of bail he was admitted to bail.

Fareed Ahmed Dayo for Applicant.

Sharafat Hussain, Assistant Advocate-General for the State.

2005 Y L R 1862

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

RAYASAT ALI ---Applicant

Versus

THE STATE---Respondent

Crl. B. A. No.23 of 2005, decided on 19th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)--­Bail, grant of --Further inquiry--­Mashirnama of recovery and F.I.R., showed that 1100 grams of Charas were recovered from possession of accused, while according to Chemical Examiner's Report, net weight of entire Charas was 978 grams and no explanation was available for discrepancy of 122 grams Charas---Delay of 17 days occurred in sending 'the sample to Chemical Examiner and no explanation was given for said delay---State counsel had no objection if bail was granted to accused---Case against accused being of further inquiry, he was admitted to bail.

Abdul Ghaffar Samo for Applicant.

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

2005 Y L R 1867

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD HANIF---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No. 150 of 2004, decided on 11th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.324, 337A(i), 504, 147, 148 & 149--­Quashing of proceedings---Application for---Object of S.561-A, Cr.P.C. whereby inherent powers were conferred upon High Court, was to do real and substantial justice and to prevent abuse of process of Court---To secure the ends of justice, power of High Court was very wide---Main consideration to be kept in view would be whether continuance of proceedings before Trial forum would be futile exercise, wastage of time and abuse of process of Court or not---If, on the basis of facts admitted and patent on record no offence could be made out against applicant, then it would amount to abuse of process of law to allow prosecution to continue with the trial against him---Applicant was aged about 60 years and was not only stated to be a patient of diabetes and hypertension, but also an infirm person on account of which he was physically unable to take part in any dispute---No case could be made out against applicant at the time of conclusion of trial and no probability was of applicant being convicted in alleged offence--­Litigation was already pending between parties as son of applicant had lodged F. I. R. against complainant party and it was contention of applicant that impugned proceedings against him had been initiated after due consideration and consultation only to pressurize him for compromise in the said case---Allowing application proceedings pending against applicant, were quashed.

The State v. Asif Ali Zardari and another 1994 SCMR 798; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Hazrat Muhammad Khan and 6 others v. Muhammad Zair Khan and 2 others 2000 SCMR 125; Allah Rakhio and others v. The State 2001 PCr.LJ 551; Maqbool Rehman v. The State and others 2002 SCMR 1076 and M.S. Khawaja v. The State PLD 1965 SC 287 ref.

Mehmood A. Qureshi for Applicant.

Ms. Rehana Akhtar Awan for the State.

Fazalur Rehman Awan for the Complainant.

2005 Y L R 1875

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

NIAZ HUSSAIN SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No193 of 2004, decided on 24th February, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498-A---Penal Code (XLV of 1860), Ss.409 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Protective bail, grant of---Name of accused had not been disclosed in F.I.R. and it appeared that a false and concocted case was prepared with mala fide intention in connivance with complainant party due to departmental disputes amongst officers---Delay of about six years had occurred in lodging of F.I.R. for which no plausible explanation had been furnished---No role of causing loss was attributed to the accused---Protective bail was granted to accused, in circumstances.

Farid Ahmed Dayo for Applicant.

2005 Y L R 1885

[Karachi]

Before S. Ali Aslam Jafri, J

MANI LAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1084 of 2004, decided on 20th December, 2004.

Criminal Procedure Code (V of 1898)--­

---S. 497(2)---Penal Code (XLV of 1860), Ss.381-A, 465, 467, 468, 471 & 34---Bail, grant of---Further inquiry---Allegation against accused was that he had committed theft of car in question and managed its registration in his name preparing forged documents---Accused had claimed that car was sold out by its owner to him through a document/declaration for a consideration which was borrowed by owner of car from accused--Said document was shown to be attested by two witnesses as well as Oath Commissioner and State Counsel had confirmed that said document was produced before Investigating Officer---In order to justify implication of accused in alleged crime, Investigating' Agency was under obligation to have referred said document to Handwriting Expert along with admitted signatures of owner of car, but same was not so referred---In absence of any expert opinion, prima facie it appeared to be a case of further inquiry--- Was yet to be proved as to whether signatures on said document were genuine or forged---Opinion of Police Officer though was not binding upon a Court, but it could not be ignored altogether, at least at bail stage---Accused was in custody of the car for the last more than six months and investigation was over---Accused did not appear to be required for investigation---Case being fit for grant of bail, accused was admitted to bail.

Fareed Ahmed Dayo for Applicant.

Fazlur Rehman for the State.

2005 Y L R 1889

[Karachi]

Before Mushir Alam, J

Mrs. UNSIA BANO and 3 others---Plaintiffs

Versus

Messrs SHELL PAKISTAN LTD. and another---Defendants

C.M.A. No.768 in Suit No.807 of 2001, decided on 8th February, 2005.

­

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

---S. 9---Suit for possession---Section 9 of Specific Relief Act, 1877 gave protection to a person put in possession of property and it did not speak of title or right of the occupant---Plaintiff in a suit under S.9 of Specific Relief Act, 1877, was merely required to show that he was in possession and had been, dispossessed from the premises in-question without his consent and that without due course of law---As regard right and entitlement of plaintiffs to continue -occupation or whether it was licence coupled with the interest, could not be gone into in proceedings under S.9 of Specific Relief Act, 1877 as such questions were alien to proceedings in such suit.

2000 CLC 1267; 2003 YLR ­2539; PLD 1999 Kar. 181; AIR 1984 Kerala 224; 1987 CLC 1566; AIR 1975 Rajisthan 178; AIR 1991 Kerala 306; 1994 MLD 527 and 1982 SCMR 741 ref.

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

---O. VII, R. 11---Rejection of plaint---For the purpose of O. VII, R.11, C.P.C. prima facie the averments in the plaint, in absence of any cogent or admitted documents, could not be taken into consideration.

Waqar Muhammad Khan Lodhi for Plaintiffs.

Ms. Rizwana Ismail for Defendant No.2.

2005 Y L R 1894

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

THE STATE through Chairman, NAB--Appellant

Versus

IMDAD A. SHEIKH---Respondent

Criminal Accountability Acquittal Appeal No.9 of 2004, decided on 1st February, 2005.

National Accountability Ordinance (XVIII of 1999)--­

----Ss. 9 & 32---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal--- Trial. Court had considered evidence of all prosecution witnesses and no case of non-reading of evidence had been made out and appreciation of evidence by Trial Court did not suffer from any misreading of evidence---Impugned finding of Trial Court, in circumstances, was not open to any exception---Accused with the judgment of acquittal acquired double presumption of innocence and very heavy burden lay on prosecution by showing strong reasons for warranting interference by Appellate Court with judgment of acquittal---There being no substance in appeal, against acquittal was dismissed.

Amanullah Khan, A.D.P.G.A. for Appellant.

Rasheed A. Razvi and Mahmood A. Qureshi for Respondent.

2005 Y L R 1895

[Karachi]

Before S. Ali Aslam Jafri, J

Messrs SHAHEEN SERVICE STATION---Plaintiff

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others---Defendants

Civil Suit No. 287 of 2004, heard on 1st November, 2004.

Specific Relief Act (I of 1877)--­

---Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Karachi Building and Town Planning Regulations, 2002, Regln. 25-11.4 & para 1-1.3---Constitution of Pakistan (1973), Arts. 2-A, 4, 8 & 25---Suit for declaration and permanent injunction---Grant of interim relief--Principles for grant of interim relief---Facts of each case and law involved therein were to be examined on the touchstone of well-known principles for grant of interim relief viz. (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss---In certain cases even an arguable case justified the grant of temporary injunction---Land in-question where petrol pump was being relocated/as well as that on which petrol pump being run by the plaintiff was situated within the jurisdiction of Cantonment and it was not to be governed by Karachi Building Control. Authority Rules or the Town Planning Regulations, 2002---Under Cantonments Act, 1924 there was no restriction of minimum distance---Right of business or trade as per law was a guaranteed right under Constitution of Pakistan, but no law had been cited to show that relocation of petrol pump of defendant to its proposed site was in violation of any law or rules--­Healthy competition in business was a part of the game and nobody could monopolize to deal in a particular business in a particular area to the .exclusion of others without there being any such law forbidding same---Principle of legitimate expectancy of future business could not be made a basis for restraining any other person from doing said business near same place or the proximity in the absence of any law prohibiting same---Present was not a case for grant of injunction as neither there was a prima facie case in favour of plaintiff nor balance of convenience---Plea of irreparable loss was also without any substance---Application for grant of injunction was rejected and interim order passed earlier was vacated.

PLD 1970 SC 180; PLD 1983 SC 693; 1980 SCMR 588; 1977 SCMR 220; 1992 CLC 2540; 1988 CLC 362; 1998 MLD 2045; 2000 YLR 2351; PLD 1983 Kar. 303; 1996 CLC 507; AIR 1962 SC 527; PLD 1969 SC 223; PLD 1996 SC 324; Zeeshan Builders's case 1992 MLD 2259; Aftabuddin Qureshi's case 2003 MLD 661; 1996 CLC 1914; PLD 1975 Kar.464 and PLD 1991 Kar. 252 ref.

Raja Qasit Nawaz for Plaintiff.

Manzoor Ahmed Ms. Saba Siddiquie, Abbas Ali, Addl. A.G., Faisal Kamal, Mushtaq Ahmed Memon, Ishrat Alvi, Badar Alam and Ashraf Ali Butt for Defendants.

Date of hearing: 29th September and 1st November, 2004.

2005 Y L R 1905

[Karachi]

Before Amir Hani Muslim, J

SAEED NASEEM CHEEMA---Plaintiff

Versus

Mrs. RUKHSANA KHAN---Defendant

Suit No. 1098 of 1996, heard on 7th February, 2005.

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

----S.12---Suit for specific performance of sale agreement ---Relief in suit of specific performance was discretionary and could only be granted to a party which had approached the Court-with clean hands and had placed material on record to show bona fides on his part to perform the contract--­Primarily, the party approaching the Court had to show that. it was willing and ready to perform its part---In present case said ingredient in the order and proceedings was missing on the part of plaintiff to entitle him to relief of specific performance inasmuch as the suit was filed by plaintiff prior to stipulated time fixed in the sale agreement, without any explanation-- Even plaintiff before filing suit had not put the party to notice of alleged non-performance of contract on her part---Since plaintiff had not approached the Court with clean hands and relief of specific performance was a discretionary remedy, suit was dismissed with costs.

Bashir Ahmed v. Shahzadi 1984 CLC 1348; Musharaf Begum v. Abdul Wahab 1997 MLD 1975; Younek Electric. Co. v. Mohd. Abdul Hayi Khan 1981 SCMR 181; Munawar Bibi v. Maheen Quddusi 1998 CLC 1226; Ali Muhammad v. Hussain Bukhsh PLD 1976 SC 37; Hakim Ali v. Muhammad Salim 1992 SCMR 46; Riaz Mahmood v. Bismillah Jan 1988 SCMR 981; Muhammad Sharif v. Fajji 1998 SCMR 2485; Ali Muhammad v. Shah Muhammad PLD 1987 Lah.607 and Khuda Bukhsh v. Muhammad Yaqoob 1981 SCMR 179 ref.

Mukhtar Ahmed Mughal for Plaintiff.

Akhtar Hussain for Defendant.

Date of hearing: 7th February, 2005.

2005 Y L R 1916

[Karachi]

Before Mushir Alam, J

IQBAL AHMED ---Plaintiff

Versus

Col. ABDUL KABIR ---Defendant

Suit No.802 of 2004, decided on 10th March, 2005.

Specific Relief Act (I of 1877)---

----Ss.8, 12, & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for possession, specific performance of contract and permanent injunction---Application seeking restraining orders against defendant not to create any third party interest---Party seeking specific performance of contract had to act with promptitude as delay could at time defeat discretionary injunction relief---Plaintiff had received cancellation notice dated 12-6-2004, but they waited for over a month before approaching the Court and present suit was filed on 24-7-2004--­Plaintif, in circumstances, having approached the Court much after cancellation of agreement no case for injunction was made out---Such application being merit less was dismissed in circumstances and ad interim orders stood vacated---Respondent was directed to deposit amount with Nazir of the Court within the specific period and plaintiff would be entitled to withdraw the same after due verification and identification--­Plaintiff could also withdraw amount deposited by him in the Court.

Muhammad Nawaz Shaikh for Plaintiff.

Abdus Samad for Defendant.

Date of hearing; 10th March, 2005.

2005 Y L R 1925

[Karachi]

Before Muhammad Afzal Soomro, J

NAZAR MUHAMMAD and others---Petitioners

Versus

PREM KUMAR and others ---Respondents

C.Ps. Nos.S-309 to 320 of 2003, decided on 7th February, 2005.

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

----Ss.2, 15(2)(ii), (iii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Default in payment of rent---Subletting---Addition and alteration in structure---First appeal filed by landlord was disposed of by Appellate Authority in terms that Rent Controller should frame point regarding addition and alteration in structure---Such judgment did not touch any of the point already decided by Rent Controller---Rent Controller, while delivering fresh order, took the points already decided by him and in that respect he gave his finding on the point of default in payment of rent in favour of landlord, whereas points with regard to addition or alteration as well as subletting were again decided in favour of the tenant---Re-opening of issue of default by Rent Controller on his own, without plausible reason and without recording evidence afresh of the parties and deciding same in favour of landlord by discarding his own finding delivered in his earlier order and so also upholding same by Appellate Authority, without any lawful reason and that too without following directions of Appellate Authority with regard to only framing of issue of alteration and addition, called interference of High Court while exercising its Constitutional jurisdiction inasmuch as the issue of default had already attained finality and could not be reopened.

Muhammad Younus and another v. Mst. Hajira Bi 1989 SCMR 1670; Mst. Saeeda Khatoon v. Muhammad Ahmed Latifi PLD 1990 SC 389; Syed Amjad Hussain v. Qaiser Siddique and others 1991 CLC 1924; Sher Afgan v. Shaikh Anjum Iqbal 1997 MLD 98; Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others 1986 CLC 1680; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070 ref.

Zayyad Khan Abbasi for Petitioner.

Suleman Junejo for Respondent No.1.

Ahmed Pirzada Addl. A.-G. for Respondents Nos.2 to 4.

Date of hearing; 24th January, 2005.

2005 Y L R 1944

[Karachi]

Before Rahmat Hussain Jafferi, J

ALI GOHAR alias GORO---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.S-83 of 2003, decided on 23rd February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 460 & 34---Appreciation of evidence---All three eye-witnesses, who were also injured, had given same details of incident---Accused was identified in Identification Test---All witnesses were thoroughly cross-examined by defence counsel, but nothing came on record to discredit their evidence---Evidence of complainant and prosecution witnesses was corroborated by medical evidence---Prosecution had proved oral testimony---Complainant had identified accused in Identification Test---Incident took place in the street---Though evidence had come on record through prosecution witnesses that accused and his co-accused had committed offence of lurking house trespass, but subsequently they left said house and incident occurred in the street---Offence of trespass would be committed while remaining in the house as defined under S.441, P.P.C.---Once offenders would leave the house then offence of lurking house trespass would come to an end---Accused had caused injury to prosecution witness after offence of house lurking trespass had terminated---Provisions of S.460, P.P.C., in circumstances would not be attracted---Conviction and sentence awarded to accused under S.460, P.P.C. were set aside, in circumstances---As regards conviction and sentence about remaining offences, prosecution had proved case against accused beyond any reasonable doubt---Conviction and sentence awarded to accused under impugned judgment in respect of remaining offences, were maintained---Sentences had been ordered to run concurrently with benefit of S.382-B, Cr. P. C.

Ghulam Ali v. Rasab PLD 1983 SC 135 ref.

Nizamuddin Baloch for Appellant.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 23rd February, 2005.

2005 Y L R 1955

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Moosa K. Leghari, JJ

GHULAM ALI---Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh Secretariat, Karachi and 8 others---Respondents

C.P. No.D-183 of 2005, decided on 1st June, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), S.364---Constitutional petition--Appre­hension of arrest after release on bail---Petitioner, who was arrested for alleged commission of offence under S.364, P.P.C., was granted bail, but he did not furnish surety on account of apprehension that as soon he was released from jail, he would be arrested in some other case---Deputy Superintendent of Police concerned had given a very clear statement to the effect that petitioner was not required in cases apprehended by him and was not required in any other case by police---Purpose of Constitutional petition having been served, same was disposed of accordingly.

Qurban Ali Chohan for Petitioner.

Masood A. Noorani, Addl. Advocate-General for Respondents Sindh along with Jang Sher Rana, D.S.P., Headquarter Nawab Shah, Syed Afaque Hussain Rizvi, Superintendent Jail Nawab Shah, Altaf S.H.O., Police Station, Sakrand, Inspector Badaruddin Syed S.H.O., Police Station, Sakrand, Nawaz Hussain, D.I.G. Prisons.

2005 Y L R 1966

[Karachi]

Before Khilji Aril Hussain, J

MUHAMMAD IBRAHIM and another---Petitioners

Versus

ABDUL MAJEED and others---Respondents

Constitution Petition No.S-133 of 2003, decided on 25th April, 2005.

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

----Ss. 15 & 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment proceedings---Ejectment appli­cation was filed by landlords about 20 years ago on various grounds---Petitioners were sub tenants of original tenant to whom premises in question was let out by landlords---Petitioners were in possession of premises and contesting the matter for the last 20 years without any title and had deprived landlords from using their own property---Petitioners had no case on merits.

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

----Art.199---Constitutional petition--Dismissal in default---Restoration---Constitutional petition against concurrent judgments of Rent Controller and Appellate Authority was adjourned several times on the request of petitioners---Finally petitioners and their counsel having failed to appear on the date of hearing, Constitutional petition was dismissed for non-prosecution---Application for restora­tion of petition was not supported by' affidavit and no cogent reason was given by petitioners as to why they were not present at the time when matter was called in Court---Petitioners, right from the beginning, had acted in gross negligent manner---Since application for restoration was not supported by affidavit of petitioners, application having no merits was dismissed.

Mazhar Ali M. Siddiqui for Petitioners.

Jai Jai Veshnu for Respondents.

2005 Y L R 1970

[Karachi]

Before Muhammad Moosa K. Leghari, J

YAR MUHAMMAD alias YAROO---Appellant

Versus

THE STATE---Respondent

Crl. Jail Appeal No.71 of 2001, decided on 30th December, 2002.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---No eye-witness of the incident was available and F.I.R. was recorded after recovery of dead body of deceased---Trial Court had based conviction of accused on statement made by mother of deceased under S.164, Cr.P.C. which was the only piece of evidence to state that deceased was last seen with accused---Apart from said last seen evidence, there was also recovery of crime weapon viz. iron rod---Mother of deceased did not substantiate contents of her statement under S.164, Cr.P.C. while deposing in the Court--'Statement of mother of deceased made order 5.164, Cr.P.C., in circumstances would have little evidentiary value---Even if same was taken into consideration, it would require corroboration by other evidence---Recovery of crime weapon i.e. iron rod could not be believed due to contradictory statements of Mashirs in that respect---Arrest of accused was also shrouded in mystery---Trial Court had failed to frame point of determination with regard to factum as to whether cause of death of deceased was natural or unnatural---Impugned judgment was absolutely incapable of being maintained as on the face of it conviction of accused was recorded in utter disregard of settled principles of law---State counsel, in circumstances was justified in not supporting impugned judgment---High Court allowing appeal, set aside impugned judgment and acquitted accused.

Nazo v. The State 1977 SCMR 20; Karamat Hussain v. The State 1972 SCMR 15; Rehmat v. The State PLD 1977 SC 515 and Ghulam Mustafa v. The State PLD 1991 SC 718 ref.

Allah Bachayo Soomro for Appellant.

Anwarul Hassan Ansari for the State.

Date of hearing: 30th December, 2002.

2005 Y L R 1979

[Karachi]

Before S. Ali Aslam Jafri, J

SULEMAN---Applicant

versus

THE STATE---Respondent

Cr. B. A. No.S-225 of 2004, decided on 7th February, 2005.

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

----S. 497---Penal Code (XLV of 1860), Ss.302 & 457---Bail, refusal of-Bail had been sought merely on the ground that out of six witnesses of incident, complainant and a prosecution witness had filed their affidavits before High Court exonerating accused---In certain cases bails were being granted by superior Courts on the basis of affidavits of witnesses, but only in those cases where all eye-witnesses had exonerated accused from commission of offence---Bail was declined to accused by Supreme Court where all witnesses and Mashirs had not filed their affidavits---Plea of bail in the present case, in view of affidavits of two eye-witnesses had been urged for the first time before High Court and rule of propriety required that all such pleas, as available, should be raised before the Court of first instance---Concession of bail could not be granted to accused, who had been directly nominated in F.I.R. with specific role of causing death, after committing lurking house trespass by night in the house of complainant in order to abduct a woman in presence of all males of the house---Bail application dismissed in circumstances---Accused requested issuance of direction to proceed with case as early as possible---Early trial, indeed was a right of an accused and Courts were always expected to dispose of cases as early as possible---Fact that Courts were overburdened also could not be ignored, but despite all such difficulties, cases in which accused were in custody, were to be given preference---Direction was issued accordingly to decide the case taking all possible efforts to ensure that charge was framed without any un-necessary delay and eye-witnesses examined within specified period.

Muhammad Nawaz and others v. The State 1989 PCr.LJ 1126; Ghulam Hyder Gadehi v. The State 2002 PCr.LJ 564; Ali Muhammad and another v. The State PLD 2002 Kar. 125; Muhammad Nawaz alias Naja v. The State 1991 SCMR 111; Rehmat Ali and another v. The State 1979 SCMR 30 and Naseer Ahmed v. The State PLD 1997 SC 347 ref.

(b) Criminal Trial---

----Early trial---Right of accused---Early trial, indeed was a right of an accused and Courts were always expected to dispose of cases as early as possible---Fact that Courts were overburdened also could not be ignored, but despite all such difficulties, cases in which accused were in custody, were to be given preference.

Aijaz Shaikh for Applicant.

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

Date of hearing: 7th February, 2005.

2005 Y L R 1982

[Karachi]

Before Wahid Bux Brohi, J

KAMRAN MASIH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-198 of 2003, decided on 10th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), SS.302, 201, 109, 120-B, 297, 404 & 34---Bail, grant of---Charge was framed after about one year of arrest of accused---Accused was in jail" for a period of more than three years---In earlier bail application it was directed that Trial Court should examine two witnesses, namely the Magistrate who had recorded confession of accused and complainant within a period of one month---Judicial Magistrate was examined, but complainant could not be examined---Directions of High Court in circumstances could not be implemented--Accused had not contributed towards delay in conclusion of trial---Direction of High Court having not been implemented during period of more than two years, case was of prolonged detention and period of detention being more than three years and five months, accused was entitled to grant of bail on the ground of hardship---Accused was admitted to bail, in circumstances.

Behram v. State 2003 PCr.LJ 73; Abdul Hameed v. State 2003 MLD 19; Shabir v. State 2003 PCr.LJ 1521 and Ali Murad v. State 2003 YLR 3166 ref.

Jai Jai Veshnu for Applicant.

Ali Nawaz Ghanghro for the Complainant.

Muhammad Ismail Bhutto for the State.

2005 Y L R 2069

[Karachi]

Before Rahmat Hussain Jafferi, J

LIAQUAT ALI BHURGRI---Applicant

versus

NAVEED and another---Respondents

Cr. Misc. Application No. 148 of 2002, decided on 16th March, 2005.

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

----Ss. 190 to 199-B---Conditions requisite for initiation of proceedings and procedure after submission of challan before the Court---Scheme of Criminal Procedure Code, I898 after submission of challan before the Court, was that first some conditions were required to be fulfilled for initiation of proceedings which were available in Part VI of Chap.XV(B), Cr.P.C. under heading "conditions requisite for initiation of proceedings"-Said conditions were mentioned from Ss.190 to 199-B, Cr.P.C.-Once said conditions were fulfilled, then proceedings were to commence as provided by Chap. XVII of Part VI of Cr.P.C. which contained only two Ss.204 & 205---Trial of case then would start.

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

----Ss. 204, 496 & 497---Commencement of proceedings before the Court---Issuance of process---Grant of bail---Once accused would appear before the Court in response to process issued under S. 204, Cr.P.C., the Court had to examine as to whether or not offence was bailable or non-bailable---If the Court would find that offence was bailable, then the Court was required to release accused under S. 496, Cr. P.C.---If offence was non-bailable then the Court was required to take accused in custody or grant him bail within meaning of S. 497, Cr. P. C.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302 & 34---Bail, cancellation of--Application for---Trial Court in the present case did not adopt required procedure concerning release of accused on bail---Bail granting order had clearly indicated that Trial Court did not apply its mind or gave any reason for grant of bail---Bail granting order appeared to have been passed in mechanical manner without considering provisions of S.497, Cr.P.C., because offence against accused fell within prohibitory clause of S. 497, Cr.P.C.---Bail granting order could not be termed as a .legal order within the meaning of S.497, Cr. P.C.---Same being not protected by any provision of law, it was required to be set aside---Bail granting order was set aside and matter was remanded to Trial Court to decide bail of accused within meaning of S.497, Cr. P.C.---Application was allowed.

Abdul Hamid Bhurgri, for Applicant.

Ahmed Ali Shaikh for Respondent No.1.

Muhammad Ismail Bhutto for the State.

Date of hearing: 16th March, 2005.

2005 Y L R 2127

[Karachi]

Before S. Ali Aslam Jafri, J

THE STATE through Additional Advocate-General, Sindh---Appellant

Versus

GENERAL MANAGER, PINGRIO SUGAR MILLS and 2 others---Respondents

Criminal Miscellaneous Application No. 84 of 2004, decided on 25th January, 2005.

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

----Ss. 561-A, 247 & 439---Sugar Factories Control Act (XXII of 1950), Ss. 2(h), 8, 21(a) & 22---Quashing of orders---Application under S.561-A, Cr.P.C. had been filed on behalf of State to assail order of dismissal of direct complaint under S.247, Cr.P.C. and order of dismissal of revision filed against said order---Direct complaint for violation of provisions of S.8 read with S.2(h) of Sugar Factories Control Act, 1950 which was punishable under S.21(a) of said Act was filed by Cane Commissioner stating therein that despite direction to start crushing of Sugar Cane on a date fixed by the Authority, Sugar Mill had failed to comply with said direction---State contended that Direct Complaint could not be dismissed in absence of complainant and that impugned order was illegal on the face of it and Additional Sessions Judge was not justified in law while dismissing revision application---After dismissal of revision application, powers under S. 561-A, Cr. P. C. were to be used sparingly and only when there appeared to be abuse of process of law or when it was necessary to prevent ends of justice from being defeated, which was not the case here---Application was dismissed, in circumstances.

Zahoor v. Said-ul-Ibrar 2003 SCMR 59 ref.

Rasheed Qureshi Assistant Advocate-General.

Date of hearing: 25th January, 2005.

2005 Y L R 2150(2)

[Karachi]

Before Ghulam Rabbani, J

RAHAM HUSSAIN---Applicant

Versus

ABDUL REHMAN and 2 others---Respondents

Civil Revision No. 89 of 2001, heard on 3rd February, 2005.

Civil Procedure Code (V of 1908)---

----O.VII, R.10, O. XXIII, R.1 & O. XLVII, Rr.1, 2 & 4---Specific Relief Act (I of 1877), Ss. 8 & 42---Return of plaint---Application seeking permission to withdraw suit---Dismissal of application---Application for review of judgment---Plaint in suit for possession, declaration and mesne profits, filed by plaintiff was returned to plaintiff for want of pecuniary jurisdiction---Plaintiff filed appeal against said order of return of plaint---Pending appeal plaintiff filed application under O.XXIII, R.1, C.P.C. seeking permission to withdraw suit, but Additional District Judge dismissed said application---Plaintiff thereafter filed application seeking review of said judgment, but said application was also dismissed by successor Additional District Judge on technical ground, holding that he was not legally competent to review order passed by his predecessor and that he was also not competent to sit as Appellate Authority over his order---Validity---Judge, who subsequently had taken charge, being successor of his predecessor within terms' of R.2 of O.XLVII, C.P.C., enjoyed plenary powers and had jurisdiction to decide review application and was empowered to exercise jurisdiction and dispose of application seeking review of judgment--Impugned order was set aside and case was remanded by High Court, in exercise of its revisional power, to Additional District Judge to decide review application afresh after hearing parties in accordance with law within specified period.

Kohai Gazi and others v. Muhammad Ishaque Sardar PLD 1966 Dhaka 110; Muhammad Rafique v. Mst. Rashida Begum 1979 CLC 832 and Mandu and others v. Muhammad Umer and others 1982 CLC 284 ref.

Abdul Qadir Shaikh for Applicant.

Ishrat Qayoom Hanfi for Respondents.

Date of hearing: 3rd February, 2005.

2005 Y L R 2158

[Karachi]

Before Muhammad Moosa K. Leghari, J

Messrs DIAMOND RUBBER MILLS through General Manager---Petitioner

Versus

Syed AMIR ALI and 3 others---Respondents

Constitution Petition No. S-252 of 2004, decided on 15th February, 2005.

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

----Ss. 15(2)(ii)(VII) & 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and personal bona fide need of landlord---Tenant had called in question orders passed by Rent Controller and judgment of Appellate Authority below whereby ejectment application against tenant on grounds of default in payment of rent of premises and personal bona fide need of landlord, was accepted---Evidence of landlords was consistent on point of personal bona fide need---No inconsistency in evidence could be pointed out to show that act of landlord was tainted with malice---Not necessary for landlord to mention in the application the minute details about business which they were going to establish in premises in question---Landlords in evidence had brought on record that premises were required to establish garments business and said stand of landlords had not been challenged---Nothing had been brought in evidence in respect of alleged 'PAGRI' amount---Assertions which were denied by landlords, were not substantiated by tenant by documentary or oral evidence---Landlords had admitted that a sum of Rs.50,000 was received by them as a security deposit to which tenant was entitled after he would put them in vacant possession of premises subject to deduction/adjustment of all arrears/dues---Finding of facts recorded by two Courts below were based on evidence---Constitutional petition could not be equated with appeal and Constitutional jurisdiction could not be allowed to be invoked as an additional remedy---No interference in extraordinary Constitutional jurisdiction was warranted in circumstances in the case as no illegality, infirmity or perversity was pointed out in concurrent judgments of Rent Controller and Appellate Authority below---Petition was dismissed.

Mrs. Freni A. Cavina v. Mrs. Dhunmai Phiroze Dalal PLD 1991 SC 265; Messrs. Pragma Leather Industries v. Mrs. Sadia Sajjad PLD 1996 SC 724; Muhammad Aslam v. Muhammad Aslam 1987 CLC 585; Shahnaz Begum v. Ikhlas Ahmad 1990 CLC 904; Mukhtar Ahmed v. Muhammad Saleem Bakhshi 1991 CLC 1047; Messrs Bara Imam Bara Trust v. Messrs Hakim & Co. 1992 CLC 2235 and Khalilur Rehman v. Mrs. Rashida 1993 CLC 2237 ref.

Mukhtar Hussain Shirzai for Petitioner.

Ali Ahmed Taqvi for Respondents Nos. 1 and 2.

Date of hearing: 15th February, 2005.

2005 Y L R 2233

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

NIMAZ DIN and 2 others---Applicants

Versus

THE STATE---Opponent

A.B.A. No.20 of 2005 and Criminal Bails Nos.39 and 96 of 2005, decided on 16th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (X.LV of 1860), Ss.302, 337-H(ii), 147, 148 & 149---Pre­-arrest bail, grant of---Evidence on record had fully established that accused were not present at the place of occurrence at relevant time as they were in custody of Levies Police of Balochistan Province as they were detained there in arms case against them---Plea of alibi raised by accused at initial stage, was not investigated by Investigating Officer-No reason was available to doubt authenticity of evidence produced by accused with regard to their plea of alibi and there was possibility that accused had been involved in case malafidely with ulterior motive---One of accused persons did not appear in F.I.R. nor his features were given in F.I.R. and he had been involved in the case as per statement of prosecution witnesses recorded under S.161, Cr. P. C. after delay of 17 days---Dispute was between parties regarding management of Dargah concerned and they were involved in the civil litigation---Accused, in circumstances had made out a case for confirmation of their bail before arrest already granted to them---In view of nature of crime, amount of surety bond, however was enhanced accordingly---Accused were directed to appear before Trial Court and face trial proceedings.

Manzoor and another v. The State 1986 PCr.LJ 460; Ali Sardar v. Gul Moeen and another 1981 SCMR 860; Sakhi Sultan v. The State 1986 PCr.LJ 117; Sadiq Ali v. The State 1966 PLD 589; Riaz Ahmad Goharshahi v. The State PLD 2000 Kar.6; Meeran Bux v. The State PLD 1989 SC 347; Ghulam Murtaza Qureshi v. The State 1990 PCr.LJ 323; Chowhdry Muhammad Aslam v. The State 1992 MLD 880; Mst. Riaz Nibi v. Sardar and 3 others 1999 PCr.LJ 1323; Rafique Ahmed v. The State 2000 PCr.LJ 994; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Mst. Bashiran Bibi v. Nisar Ahmed Khan, and others PLD 1990 SC 83 and Sarwar Sultan v. The State PLD 1994 SC 133 ref.

A.Q. Halepota, for Applicants (in Criminal Bail No.39 of 2005).

Khawaja Naveed Ahmed along with Nasir Rizwan Khan for the Complainant (in Criminal Bail No.39 of 2005).

Akhtar Saeed, State Counsel (in Criminal Bail No.39 of 2005).

Muhammad Sharif Sial for Applicants (in Criminal Bail No.96 of 2005).

Khawaja Naveed Ahmed for the Complainant (in Criminal Bail No.96 of 2005).

Akhtar Saeed, State Counsel (in Criminal Bail No.96 of 2005)

Date of hearing: 24th February, 2005.

2005 Y L R 2331

[Karachi]

Before Anwar Zaheer Jamali and Maqbool Baqar, JJ

MUHAMMAD HUSSAIN---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-509 of 2004, decided on 25th August, 2004.

Sindh Building Control Ordinance (V of 1979)---

----Ss. 7 & 6(1)---Constitution of Pakistan (1973), Art.199---Prayer in Constitutional petition with regard to demolition of dangerous construction, but absence of prayer with regard to demolition of unauthorized construction---Validity---Duty of authority was to carry out its legal obligations and demolish dangerous building or illegal/unauthorized construction---High Court in both situations was competent to issue necessary directions to concerned functionaries to act in accordance with law to avoid any abuse of process of law---High Court accepted Constitutional petition in circumstances.

Noor Muhammad and another v. Building Control Authority and 2 others 1992 CLC 729 ref.

Malik Khushhal and Ismail Memon for Petitioner.

Qazi Khalid Ali, Addl. A.-G. Sindh, Anwar Ali Shah, Farooq Hashim and Raja Sikandar Khan Yasir for Respondents.

Date of hearing: 25th August, 2004.

2005 Y L R 2350

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD ARIF---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.850 of 2004, decided on 24th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii), 504 & 34---Pre-arrest bail, grant of--Incident took place at one and the same place and at the same time---Both parties had received injuries from the hands of each other---Both parties had suppressed injuries caused to other party---Parties could take the plea of right of private defence---Case of accused required further inquiry within meaning of S. 497(2), Cr.P.C.---Accused was entitled to concession of bail---Interim bail already granted to accused was confirmed on the same terms and conditions.

Murad Khan v. Fazal-e-Subhan PLD 1993 SCMR 82; Nisar Muhammad Wassan v. The State 1992 SCMR 501; Shoaib Mehmood Butt v. Iftikharul Haq 1996 SCMR 1845 and Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 ref.

Shafi Muhammad Memon for Applicant.

Mushtaque Ahmed Korejo for the State.

Altaf Hussain Surahio for Complainant.

2005 Y L R 2352

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD JAMAL---Applicant

Versus

Mst. GULSHAN AFROZ and others---Respondents

Judicial Miscellaneous Application No. 19 of 2004, decided on 30th May, 2005.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.VII, R.11---Application challenging validity of orders on plea of fraud, misrepresentation or want of jurisdiction and rejection of plaint---Scope---Validity of orders could only be challenged under S. 12(2), C.P. C on the plea of fraud, misrepresentation or want of jurisdiction---Fraud and misrepresentation were though alleged in the present case, saying that impugned order was obtained in collusion with applicant's Advocate, but that ground had not been pressed---Words 'want of jurisdiction' used in provisions of S.12(2), C.P.C. would mean inherent lack of jurisdiction---Applicant did not even plead absolute or inherent want of jurisdiction---Pendency of application under O.VII, R.11, C.P.C. and order of the Court to decide it first, by itself would not take away the jurisdiction of the Court which it possessed over the suit---Proprieties could not affect the jurisdiction---Scheme of law did not provide that even the permission of compromise be withheld till decision on such an application---Acceptance of compromise during pendency of application under O.VII, R.11, C.P.C. was not without jurisdiction, in circumstances.

Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334 ref.

Habib-ur-Rahman and Abdul Qadir for Applicant.

Abdul Ghafoor Qureshi for Respondents.

Dates of hearing: 29th March and 26th April, 2005.

2005 Y L R 2373

[Karachi]

Before Azizullah M. Memon, J

DIRECTOR, JINNAH POST GRADUATE MEDICAL CENTRE

and another---Applicants

Versus

Syed MUHAMMAD HAIDER RIZVI---Respondent

Civil R.A. No.151 of 2004, decided on 7th February, 2005.

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

---S.79---Specific Relief Act (I of 1877), Ss.42 & 55---Suit for declaration and mandatory injunction---Suit against Government---Plaintiff in his plaint having not joined Federation of Pakistan as a party, suit itself was hit under provisions of S. 79, C. P. C. and such a defect going to the very root of the suit itself, same was liable to be dismissed---Where suit itself was hit by mandatory provision of law and thereby not found maintainable, Government could not he made to suffer on the basis of incompetent proceedings and the plea of limitation raised by plaintiff in filing revision belatedly, would not be of any help to plaintiff---Suit was to be decided looking at the fact that same itself was not maintainable---Trial Court as well as First Appellate Court having failed to properly deal with such legal aspect of case, the judgment/decree passed by them respectively, were liable to be set aside.

Haji Abdul Aziz v. Government of Balochistan 1991 SCMR 16 ref.

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

----Ss. 42 & 55---Civil Procedure Code (V of 1908), 5.115---Suit for declaration and mandatory injunction---Maintainability---Plaintiff was served with charge-sheet under relevant disciplinary rules but he did not furnish any reply to same---Such a /natter, in circumstances purely came within the jurisdiction of competent forum to hear the service matter and Civil Court had no jurisdiction to entertain any such dispute---Plaintiff had not filed proceedings to get such a charge cleared from competent forum as the dispute fell under service laws/rules---Allegations made in the charge-sheet were to be presumed to be true and correct, so also the question of payment of pensionary/retirement benefits fell exclusively within the jurisdiction of Service Tribunal and could not be entertained by Civil Court---Suit filed by plaintiff, in circumstances was not maintainable and judgments and decrees passed by two Courts below suffered from illegality---Allowing revision, impugned judgment/decree passed by two Courts below, were set aside and suit of plaintiff stood dismissed with liberty to him to approach competent forums for the purpose of getting pensionary/retirement benefits of his service.

Nadeem Azhar Siddiqui, Deputy Attorney-General for Applicants.

Abdul Haleem Siddiqui for Respondent.

Date of hearing: 24th January, 2005.

2005 Y L R 2412

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

SOBHO MAL and another---Petitioners

Versus

KARACHI DEVELOPMENT AUTHORITY (K.D.A.) and

others---Respondents

C.Ps. Nos.D-1141 and D-1142 of 1999, decided on 16th March, 2005.

Karachi Development Authority Order (V of 1957)---

----Art. 52-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of plot---Cancellation---Plot was allotted under orders of Chief Minister, but at the time of delivery of possession, a plot measuring lesser square yards was delivered to the allottee who transferred the same to petitioner through agreement of sale---Allotnent of plot in question, however subsequently was cancelled on the ground that same was carved out from amenity land meant for nursery and such conversion of amenity land into residential plot was itself illegal---Article 52-A of Karachi Development Order, 1957, explicitly required that an amenity plot could not be converted to any other purpose without inviting public objections; at the same time Chief Minister had no authority whatsoever to allot plots under different Schemes of the Development Authority.---Officers of Development Authority in complete defiance of law in flagrant violation of statutory provisions, proceeded to carve out a residential plot out of an amenity plot only to please Chief Minister without inviting public objection---Initial allotment order and conversion of ca residential plot from an amenity plot being without jurisdiction, petitioner could not be assumed to have acquired any legal rights in respect of plot in question---Discretionary jurisdiction under Art.199 of the Constitution could not be allowed to be exercised to promote unjust enrichment.

Al Shafique Housing Society v. Pakistan Medical Association PLD 1992 SC 113 ref.

Shaukat Hayat for Petitioners.

S. Jamil Ahmed for Respondents.

Date of hearing: 16th March, 2005.

2005 Y L R 2423

[Karachi]

Before Salved Saeed Ashhad, C. J. and Ghulam Rabbani, J

Messrs BAHADUR YAR JANG, COOPERATIVE HOUSING SOCIETY

LTD.---Petitioner

Versus

Malik MUHAMMAD SALIM and others---Respondents

C.P. No.D-387 of 1996, decided on 20th April, 2004.

Co-operative Societies Act (VII of 1925)-----

----Ss. 54, 56 & 64-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of plot---Cancellation of allotment by the Registrar Co-operative Society---Grievance of the Housing Society was with regard to the order of the then Administrator of the Society whereby he allotted a public amenity plot to respondent which, according to the Society, was illegal and contrary to by-laws of the Society---Plot in question was an amenity plot, but the Administrator and respondent acting in collusion with each other allegedly changed the nature of plot by converting it into a residential/Zonal Commercial area---Allotment was made to the respondent on a throwaway price of Rs.8 per square yard, whereas at relevant time value of plot was much higher---Allotment of plot in dispute was in complete disregard of by-laws of the Society, collusive and fraudulent on the face of it and subsequent sub-lease executed in favour of respondent was without any authority and was void ab initio, but Registrar's nominee and the concerned Minister, did not at all apply their mind to the facts and circumstances of case and passed orders without giving due weight to allegation of fraud, collusion and contravention of by-laws---Both orders appeared to be slipshod orders indicating that those had not been made on consideration of merits and the law applicable---Constitutional petition filed against said two Authorities was found to have merit, which was allowed and impugned order of Minister confirming allotment of respondent was set aside and that of Registrar Co-operative Societies canceling allotment and lease of plot of respondent, was restored.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Home Secretary to the Government of West Pakistan, Lahore and 2 others v. Jan Muhammad and another PLD 1969 SC 333; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671 and The State v. Zia-ur-Rehman and others PLD 1973 SC 49 ref.

Muhammad Ali Mazhar for Petitioner.

Imran Ahmed for Respondent No.1 and Ahmed Pirzada, Addl. A.-G. Sindh.

2005 Y L R 2438

[Karachi]

Before Shabbir Ahmed and Khilji Arif Hussain, JJ

KISHWAR JABEEN and another ---Petitioners

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary, Ministry of Interior Affairs and others---Respondents

C.P. No.D-332 of 2003, decided on 5th May, 2004.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)-----

----Ss.2 & 3---Criminal Procedure Code (V of 1898), S. 169---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Placing names on Exit Control List---Petitioners had challenged memorandum whereby their names were placed on Exit Control List alleging the same to be without lawful authority---No case had been registered against the petitioner for the last about three years except that another petitioner was nominated in a case, but subsequently on an application filed by Prosecutor with due approval of the N.A.B., said case was dropped under 5.169, Cr.P.C.---Petitioners could not be deprived from their Constitutional rights for indefinite period and no action detrimental to life and liberty of a citizen could be taken except in accordance with law---Authorities having failed to inform the petitioners about the reasons or the grounds for placing their names on Exit Control List and further having failed to bring on record document that any case had been registered against them, petition was allowed as prayed for by the petitioners.

Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705 and Sikandar Hayat Khan and 4 others v. Government of Pakistan and 5 others PLD 2003 Pesh. 102 ref.

Rasheed A. Razvi for Petitioner.

S. Zaki Muhammad, D.A.-G.

Sajid Latif and Muhammad Anwar Tariq, Dy.P.G., NAB.

2005 Y L R 2444

[Karachi]

Before Khilji Arif Hussain, J

MANZOOR---Applicant

Versus

THE STATE---Respondent

Cr.B. A. No. 240 of 2005, decided on 4th May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 498-A & 561-A--- Penal Code (XLV of 1860), Ss. 337-H(ii), 344, 148 & 149---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11 & 16---Pre-arrest hail, grant op-Alleged abductee was recovered while she was sitting on rear seat of motorcycle and on seeing the police she was thrown away from motorcycle and driver of motorcycle ran away---No allegation of hue and cry by alleged abductee had been alleged and no medical examination was conducted to prove that any Zinc, had been committed with her or not---Two arrested accused were acquitted by Trial Court, whereas complainant himself had exonerated five persons named in the F.I.R.---Accused, in circumstances was entitled to bail on principle of rule of consistency---No specific role had been assigned to accused, except that of ineffective firing, which at the most fell under S.337-H(ii), P.P.C. punishable up to three years---Prosecution story was clouded under doubt as complainant himself exonerated co-accused whose name was mentioned by him in F.I.R.---Case having become of two versions, accused was admitted to pre-arrest bail.

Baloo alias Piyar Ali v. The State 2000 PCr.LJ 1508 ref.

Muhammad Saleem Jessar for the Applicant.

Habib-ur-Rehman Sheikh, Asst. A.-G.

2005 Y L R 2459

[Karachi]

Before Anwar Zaheer Jamali, J

RUSTAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-855 of 2004, decided on 13th June, 2005.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 114, 147, 148 & 149---Bail, grant of-Further inquiry---Accused was not named in F.1.R. and prosecution witnesses who had named accused in their statements under S. 161, Cr.P.C., had not attributed any active role to him in the commission of crime, except that he was also armed with grin and was present at the spot---Case against accused needed further inquiry which had entitled him to grant of bail-Accused was admitted to bail, in circumstances.

Abdul Saleem v. The State 1998 SCMR 1578; Gul Zaman v. The State 1999 SCMR 1271; Amanat Ali v. The State 1993 SCMR 1992 and Muhammad Sadiq v. The State 1996 SCMR 1654 ref.

Shafi Muhammad Memon for Applicant.

Anwar H. Ansari for the State.

2005 Y L R 2500

[Karachi]

Before Ata-ur-Rehman, J

IFTIKHAR AHMED alias Raju Soomro and 2 others---Applicants

Versus

KHAN MUHAMMAD and another---Respondents

Criminal Miscellaneous Application No.3 of 2004, decided on 27th August, 2004.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11 & 16---Quashing of F.I.R.---Application for---Applicant had claimed that female in question had married with him vide Nikahnama---Complainant had filed F.I.R. under Ss.11 & 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 alleging that said female was his wife on the basis of Nikahnama---Both applicant and complainant were disputing respective Nikahnamas of each other---Dispute could only be resolved by Family Court after entering into a full-fledged inquiry as to the genuineness of marriage between the parties in the suits of Jactitation of marriage and it was not a case which should have gone to Criminal Court as Criminal Court was not competent to decide and declare about the legality of respective Nikahs--- Trial Court and the appropriate forums were to look into that aspect and decide the matter in accordance with law.

Amjad Ali Sehto for Applicants.

Allah Bachayo Soomro for Respondents.

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

2005 Y L R 2510

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

ABDUL KHALIL KHAN through Constituted Attorney---Petitioner

Versus

KARACHI METROPOLITAN CORPORATION through Administrator/

Mayor and 7 others ---Respondents

Constitutional Petition No.2620 of 1993, decided on 1st February, 2005.

Constitution of Pakistan (1973)-----

----Art.199---Constitutional petition---Levy of octroi on the goods purchased in open auction by the petitioner, stored at bonded warehouses at the port---Contention of the petitioner was that the goods in question were purchased from within the local limits of the Metropolitan Corporation and had not been imported by the petitioner for consumption, use or sale therein, therefore, levy of octroi was not justified---Validity---Held, question whether a wharf fell within the municipal limits was an intricate question of fact which should not ordinarily be undertaken in Constitutional jurisdiction---Mere fact that the goods were stored in bonded warehouses showed that no taxes and duties had been paid thereon at the time of their auction---Octroi was indeed payable on such goods irrespective of the question whether they had been imported into the municipal limits from abroad or from place outside such limits within Pakistan---Under no circumstances could therefore the liability to pay octroi be avoided.

Abdul Qadir Khan for Petitioner.

Manzoor Ahmad for Respondents Nos. 1 to 3.

Ch. Muhammad Rafique Rajori, Addl.A.-G. for Respondent No.4.

S. Ziauddin Nasir, Standing Counsel for Respondents Nos.5, 6 and 8.

Nemo for Respondent No.7.

2005 Y L R 2704

[Karachi]

Before Wahid Bux Brohi, J

GHULAM MUHAMMAD and another---Petitioners

Versus

MISHRAZ AHMED and others---Respondents

Civil Petitions Nos. D-1308 and D-118 of 2003, decided on 4th January, 2005.

Constitution of Pakistan, 1973---

----Art.199---Penal Code (XLV of 1860), Ss.406, 420, 506(b) & 34---Constitutional petition---Maintainability---Quashing of F.I.R.---Spirit of law was not that to quash an F.I.R. in every case on minor grounds, but rule in that regard was not absolute---Relief of quashing F.I.R., no doubt, could not outright be granted, but equitable relief could not be denied to petitioner particularly in circumstances where investigation remained inert for a period of about nine and half years and petitioners had no alternative, but to approach High Court---In the background of frustrating delay in commencement of investigation and particularly when not a single step had been taken by investigating agency or for that matter when no order was passed by any Court in exercise of jurisdiction under Cr.P.C. the right course was to approach the High Court invoking its Constitutional jurisdiction under Art.199 of the Constitution---Petition in circumstances, stood admitted for regular hearing.

Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Wali Muhammad v. Haq Nawaz 1971 SCMR 717; Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142; Ahmad Saleem v. Muhammad Amin 1998 PCr.LJ 170; Shaukat Ali Dogar v. Ghulam Qasim PLD 1994 SC 281; Anwar Ahmed Khan v. The State 1996 SCMR 24; Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317; Meraj Khan v. Gul Ahmed 2000 SCMR 122 and Muhammad Latif v. Sharifan Bibi 1998 SCMR 666 ref.

Umer Din Qureshi for Petitioner.

Abdul Waheed Qureshi and Sarwar Khan, A.A.-G., Sindh for Respondents.

Date of hearing: 4th January, 2005.

2005 Y.L.R 2709

[Karachi]

Before Rahmat Hussain Jafferi, J

MUJTABA HUSSAIN SIDDIQUI---Plaintiff

Versus

SULTAN AHMED---Defendant

C.M.A. No.4453 of 2004 and Suit No.1239 of 2003, decided on 25th April, 2005.

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

----Ss. 20, 8, 34 & Chap. II [Ss.3 to 19]---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for dissolution of partnership, rendition of accounts, permanent injunction and declaration---Recovery of amount was stayed under S.34, Arbitration Act, 1940 on the application of the defendant under O. VII, R.11, C.P.C. on the ground that the plaint being an application under S.20, Arbitration Act, 1940 did not disclose any cause of action and was liable to be rejected with maximum compensatory costs as the suit on the face of it appeared to be frivolous, mala fide and unwarranted under the law---Court, after hearing the parties directed them to refer the case to the Arbitrator in accordance with the Arbitration clause contained in the partnership deed---Parties having failed to approach the arbitrator, plaintiff had filed the present suit---Dispute which was required to be referred to the Arbitrator was same which was already agitated in the suit in which the order had already beer passed directing the parties to refer their dispute to the Arbitrator and the proceedings of the suit had been stayed under S.34 of the Arbitration Act, 1940---Plaintiff had already invoked the arbitration clause by serving notice on the defendant by which he appointed his Arbitrator and requested the defendant to concur with the said Arbitrator, as such, the plaintiff had already invoked the provisions of S.8, Arbitration Act, 1940---Held, plaintiff had already sent a notice to the defendant to concur on the appointment of his Arbitrator, as such, the proceedings under Chap. II of the Arbitration Act, 1940 had been initiated by the plaintiff---Suit on the subject was already pending, as such, the provisions of S.20, Arbitration Act, 1940 were not attracted in circumstances---Plaintiff, if had any grievance, should have filed proper application in the pending suit, for vacating the stay order and revival of the suit for decision according to law or move an application under Chapter II of the Arbitration Act, 1940 for appointment of Arbitrator---Suit in the present form was not maintainable as it was barred under S.20 of Arbitration Act, 1940---Plaint in the suit being application under S.20, Arbitration Act, 1940, was rejected under O. VII, R.11, C. P. C.

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

----Preamble---Scheme of the Arbitration Act, 1940 is that the dispute between the parties, who entered into an agreement of arbitration, should be decided by one or more persons, who are called to be Judges in the said dispute, and not by a regular or ordinary Court of law---Scheme further envisages that the decision of the said arbitrators is binding upon the parties whether they agree to the decision either upon law or fact, if the award is good on the face of it---Arbitration in substance ousts jurisdiction of Court except for purpose of controlling arbitrator and preventing misconduct and for regulating procedure after award.

National Construction Co. v. WAPDA PLD 1987 SC 461 ref.

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

----Preamble, Chaps.II [Ss.3 to 19], III [S.20] & IV [Ss.21 to 25]---Modes of arbitration--Perusal of Arbitration Act, 1940, reveals that there are three modes of arbitration: Arbitration without intervention of Court; Arbitration with intervention of Court where there is no suit pending and arbitration in a suit pending before Court---First category of arbitration is provided under Chap.II of the Act, which contains Ss.3 & 19, Second category of arbitration is available in Chap.III of the Act which contains only one section, that is, S.20 and Chap. IV of the Arbitration Act deals with the third category of arbitration which contains Ss.21 to 25.

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

----S. 20---Section 20, Arbitration Act, 1940 is complete code in respect of moving an application before the Court for appointment of Arbitrator; grounds on which the application can be filed; form of application so as to make it a suit; issuing notice to parties interested or claiming to be interested to be plaintiff or defendant; procedure of filing an arbitration agreement before the Court; manner in which Arbitrator or Arbitrators are appointed for arbitration proceedings after appointment of Arbitrator or Arbitrators; applicability of other omissions of the Act so far as they could be made applicable to the arbitration proceedings---Principles elucidated.

Section 20 is a complete Code in respect of moving an application before the Court for appointment of Arbitrator, grounds on which the application can be filed, form of application so as to make it a suit, issuing notice to parties interested or claiming to be interested to be plaintiff or defendant, procedure of filing an arbitration agreement before the Court, manner in which arbitrator or arbitrators are appointed, for arbitration proceedings; after appointment of Arbitrator or Arbitrators, applicability of other provisions of the Act so far as they could be made applicable to the arbitration proceedings.

Before moving the Court for appointment of arbitrator certain conditions are required to be fulfilled they are: (1) There should be an arbitration agreement between the parties executed between them before the institution of any suit with respect to the subject-matter of the agreement, (2) There should be dispute between the parties of such agreement, and (3) The parties have not invoked the provisions of Chapter II viz. sections 3 to 19. If above three conditions are fulfilled then the party may move an application in writing before the Court which shall be registered as a suit and then notice is required to be issued to the parties interested or claiming to be interested to be plaintiff or defendant. After registering the application as suit, a notice is required to be issued to all the parties to the agreement other than the application requiring them to show cause within the time specified in the notice as to why the agreement should not be filed. After serving the notice if no sufficient cause is shown to the Court then an order is to be passed that the agreement be filed and then the Court is required to pass an order of reference to the Arbitrator appointed by the parties or where the parties cannot agree upon any Arbitrator to appoint an Arbitrator. Once such orders are passed then arbitration proceedings start which should be governed by the other provisions of the Arbitration Act so far as they could be made applicable. Once the above conditions are fulfilled, then the purpose of section 20 of Arbitration Act is achieved and the application stands disposed of.

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

----S. 14 & Chap.II [Ss.3 to 19]---Award---Arbitrator, after passing the award, is required to file the award in the Court within the meaning of S.14, Arbitration Act, 1940 and then further proceedings would be conducted by the Court under the other provisions of Chap.II of the Arbitration Act, 1940.

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

----Ss. 20 & 34---Object, interpretation, application and scope of S.20, Arbitration Act, 1940---One of the requirements of maintainability of application under S.20 of the Act was that the proceedings under Ss.3 to. 19 of that Act had not commenced---Principles elucidated.

The heading of the Chapter III (section 20) of the Arbitration Act, 1940 reveals that provisions of section 20 are applicable when there is no suit pending. However, perusal of section 20 reveals that no such impression can be gathered from the wordings of the said section. If that is so then what was the heed of giving such heading to the section 20. It is evident that the heading of the Chapter would not govern the clear and unambiguous words appearing in the section. However, there is conflict of opinion in the authorities of various superior Courts on applicability of heading. One set of the authorities is to the effect that heading of the Chapter is like preamble of a statute whereas the other opinion is contrary to the above proposition by taking the plea that the heading of the section or Chapter is given by the draftsman of the statute and it is not voted in the Parliament.

Nevertheless, the heading of the section or Chapter can be taken into consideration while interpreting the actual meaning of the section or heading of the Chapter under which various sections are enacted. For that purpose entire scheme of the Arbitration Act is required to be examined to arrive at the conclusion whether it is essential for invoking the provisions of section 20 of the Arbitration Act that no suit should be pending in any Court of law.

The scheme of the Arbitration Act is that the parties should refer their disputes to the Arbitrators for decision out of Court where the technicalities of law of evidence and other procedural hurdles are not applicable to the proceedings before the Arbitrator. These proceedings are summary in nature with a view to quickly dispose of and settle the disputes between the parties without going into detailed procedural hurdles. Through this enactment, the parties have been encouraged to settle their disputes without intervention of Court and for that purpose sections 3 to 19 have been enacted in Chapter II of the Arbitration Act. If the parties do not agree on any Arbitrator, Arbitrators, or Umpire, only then the Court has been given power to settle that dispute and to appoint Arbitrator, Arbitrators or. Umpire or to remove such persons in the circumstances mentioned under various provisions of the Chapter. The Courts function starts when award is passed by the Arbitrator to make it a rule of the Court. The Arbitration Act further facilitates the parties to get their disputes settled through the Arbitrator even if they file the suit when there is no agreement of arbitration between the parties by making provisions in Chapter IV and its heading has been given "Arbitration in Suits". If the parties to arbitration agreement did not go to Arbitrator and if the party of the said agreement files a suit, then in such case under section 34 of the Arbitration Act the other party has been given right to move the Court to stay the proceedings of the suit 'so that the parties may take the dispute to the Arbitrator under the arbitration agreement. Thus, if a suit is filed by a party to the arbitration agreement then the other party has been given right to get the matter stayed under section 34 of the Arbitration Act. In such. a situation if the said party is allowed to move an application under section 20 of the Arbitration Act then there will be duplication of the proceedings. It is the intention of the Legislature that the matter in dispute of the arbitration agreement, should be decided by the parties through agreed Arbitrator or in case their is disagreement on the Arbitrator then the Court has been given power to appoint such Arbitrator within the meaning of section 8 of the Arbitration Act. If the situation is examined in the above manner then there will be no hesitation in holding that if a suit is already pending then the parties have been given right to approach the said Court under section 34 of the Arbitration Act. The purpose of section 34 and section 20 of the Arbitration Act is one and the same i.e. to refer the matter to the Arbitrator. As such, the provisions of section 20 would not be applicable to such case as alternate, adequate and efficacious remedy has already been provided to the parties in the shape of section 34 of the Arbitration Act. This can further be visualized from the position when the parties have initiated proceedings under Chapter II of the Arbitration Act then the provisions of section 20 are not applicable for the simple reason that the purpose of invoking the provisions of Chapter II and section 20 is identical and similar in nature i.e. appointment of Arbitrator. In order to attract the provisions of section 20, apart from other conditions, it was found necessary that the proceeding under Chapter II must not have been started. One of the requirements of maintainability of application under section 20 is that the proceedings under sections 3 to 19 of the Act had not commenced.

Section 20 will not be applicable in a situation where a suit is pending before the Court of law between the parties of arbitration agreement. As such the heading of the section correctly interprets the intention of the Legislature. Thus, in the peculiar circumstances of the law a benefit can be taken from the heading of the Chapter III. Thus, apart from above three conditions, if a suit is pending between the parties to arbitration agreement then section 20 of the Arbitration Act will not be attracted.

Venkata Surya Rao v. Venkata Rao AIR 1963 AP 286 and C.T.I., Corporation v. Trading Corporation, Pakistan Ltd. 1987 CLC 2063 ref.

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

---Ss. 8(1)(a), 20, 34, 3 & Sched.---Parties, in the present case had not referred the matter to the Arbitrator because of non-cooperation of the defendant, though the plaintiff was pursuing to appoint Arbitrator and for that purpose he had already sent a notice to the defendant by which he had appointed his Arbitrator and requested the defendant to concur with the said appointment blot the defendant neither replied to the notice nor took any steps to accept the said Arbitrator so that the matter might be referred to the said Arbitrator---Arbitration agreement, admittedly did not specify the number of Arbitrators or the mode of their appointment, therefore, by virtue of S.3 of the Arbitration Act, 1940, the First Schedule attached to the Act would be applicable under which the matter was to be referred to a sole Arbitrator with the consent of the parties---If the parties had not agreed to the appointment of the Arbitrator, under S. 8(1) (a) of the Act, a notice was required to be given to the party to consent or concur the appointment and after 15 days of the service of the notice if the party had not concurred to the appointment, then the Court might, on the application of a party, after giving notice and hearing the other party, appoint an Arbitrator to make an award or reference and then the said Arbitrator would be deemed to have been appointed by consent of all the parties.

Muhammad Ali Jan for Plaintiff.

Badar Alam for Defendant.

2005 Y L R 2721

[Karachi]

Before Muhammad Afzal Soomro, J

HABIBULLAH and 37 others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous No.37 of 2005, heard on 11th April, 2005.

Sindh Prevention of Gambling Ordinance (V of 1978)---

----Ss. 2, 3, 4, 5, 5-A, 8 & 9---Criminal Procedure Code (V of 1898), Ss. 561-A, 249-A & 154---Quashing of order and proceedings-Both Courts below had not only given findings ignoring legal aspects and proposition involved in case, but they also based their orders on wrong assumption while observing that evidence was recorded without appreciating mandatory legal position involved in the case; to the effect that alleged offence falling under Ss.5 & 5-A of Sindh Prevention of Gambling Ordinance, 1978 was a non-cognizable offence and no F.I.R. could he registered by police in prescribed pro forma of F.I.R. under S. 154, Cr.P.C.-Failure of both Courts below to assign findings and observations, confining themselves only to the effect that let evidence be recorded, had frustrated all practical purposes of S. 249-A, Cr.P.C.---Applicants were arrested from a Club being a registered body under Societies Registration Act, 1860 and run by elected body of Members, licence of which had been granted by competent Authority to whom required fee/taxes were being paid---Place where alleged raid was conducted was a private place and it was mandatory that before entering said place search warrants from Area Magistrate should have been obtained, but that was not done---Violation of Ss.8 & 9 of Sindh Prevention of Gambling Ordinance, 1978, had been committed, in circumstances---Even no warning was issued earlier before registration of case, if at all any information was received with regard to fact that said Club was allegedly indulging in gambling and/or was being used as "common gambling" house---Object of S.561-A, Cr.P.C. whereby inherent powers were conferred upon High Court, was to do real and substantial justice and to prevent the abuse of process of Court---Powers of High Court were very wide to secure the ends of justice---No case would be made out against applicants in circumstances, at the time of conclusion of trial and there was no possibility of applicants being convicted in the alleged offence---No mala fide was found on part of police---Allowing application impugned proceedings were quashed.

M.S. Khawaja v. The State PLD 1965 SC 287 and Meraj Khan v. Gul Muhammad 2000 SCMR 122 ref.

Muhammad Akbar Khan for Applicants.

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

Date of hearing: 11th April, 2005.

2005 Y L R 2737

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

SADRUDDIN ABDULLAH GANGJI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.67 of 2004, decided on 8th February, 2005.

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

----S.561-A---Quashing of proceedings---Principles---Legal proceedings could be quashed where case was of no evidence at all or where as a matter of law there could not be any possibility of conviction of accused---To keep a case lingering on in said circumstances would amount in fact to an abuse of process of the Court.

Mairaj Khan v. Gull Ahmed and others 2000 SCMR 122; Mian Munir Ahmad v. The State 1985 SCMR 257, Shahnaz Begum v. Hon'ble Judges of the High Court PLD 1971 SC 677; Adamjee Insurance Company Limited v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921; Anwar Ahmad Khan v. The State 1996 SCMR 24 and Muhammad Latif v. Sharifan Begum 1998 SCMR 666 rel.

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

----S.561-A---Penal Code (XLV of 1860), Ss.409, 420, 467, 468, 109 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings---Correspondence placed on record showed that issue of removal of Palm Oil without payment of customs duty, had been settled between applicant/accused and Customs Authorities and customs duty had been paid by the applicant---Applicant had also settled matter with Bank by making part payment---Lodging of F.I.R. against applicant in view of such facts and circumstances, was no more than an exercise for coercive recovery of its dues by the Bank which were of a civil nature---To allow proceedings to continue before Trial Court would be an abuse of process of Court---Proceedings under F.I.R. in question, were quashed, in circumstances.

Astam Khan v. The State 1995 PCr.LJ 459; Wahid-uz-Zaman v. Jamil and 8 others 1997 PCr.LJ 1167; Ramesh Udeshi v. The State 2002 PCr.LJ 1712. Javed Hamid v. Hasan Jan PLD 1991 Pesh. 121; Muhammad Shafiq v. Abdul Hamid 1992 PCr.LJ 229; Muhammad Idrees v, Ghee Corporation 1999 PCr.LJ 1025; Muhammad Yaqoob v. S.H.O. 1997 MLD 2097; Kaneez Bibi v. S.H.O. NLR 2000 Cr. 417; Mairaj Khan v. Gul Ahmad 2000 SCMR 122; Abdul Ghafoor v. Raeesuddin 1991 MLD 376; Manzoor Ahmed Khan v. The State 1982 PCr.LJ 1043; Ch. Waheed­u, Zaman v. Jamil and 8 others 1997 PCr.LJ 1167; Shaikh Muhammad Taqi v. The State 1991 PCr.LJ 1963; Allah Rakhio v. The State 2001 PCr.LJ 1551 and Mahmood-ul-Hasan v. Imtiaz Khan PLD 1963 (W.P.) Lah. 481 ref.

Messrs Aitizaz Ahsan, Dr. Amjad Hussain Bukhari, M. Ilyas Khan, S. Aamir Ali and Muhammad Farooq for Applicant.

S. Mehmood Alam Rizvi, Standing Counsel for Respondent.

Date of hearing: 3rd February, 2005.

2005 Y L R 2747

[Karachi]

Before Shabbir Ahmed, J

AVARI HOTELS LTD.---Plaintiff

Versus

Messrs IRAQI AIRWAYS---Defendant

Suit No. 805 of 1998, decided on 7th February, 2002.

Civil Procedure Code (V of 1908)---

----S. 12(2), O. V, Rr. 17, 20 & O.IX, R.13---Sindh Chief Court Rules (O.S.), R.141---Service of summons---Ex parte decree, setting aside of---Defendants had prayed for setting aside ex parte decree passed against them on the ground that summons of suit were never served upon them---Summons were issued to defendants not only through bailiff but by registered post as well as by courier service---All were returned with endorsement that person who could receive summons was not available---Summons were repeated through normal course, courier service as well as by registered A/D---Service was also effected by pasting as per Bailiff's endorsement which was on solemn affirmation---When process server had given endorsement about affixation of summons on solemn affirmation and same had been accepted by the Court, mere non-association of person to witness the affixation of summons, would not effect `Due Service' when service by affixation was held to be good service---Service, in circumstances was effected on defendants in ordinary course---Under proviso 2 of R.13 of O.IX, C.P.C. no decree passed ex parte would be set aside merely on ground of any irregularity in service of summons---Service of summons by affixation on the outer door of office premises by process server, report of which was on oath and accepted by the Court, could not be canvassed to be invalid for the reason that it lacked attestation by a witness.

Ayub Khan and another v. Fazal Haq and others PLD 1976 SC 422 and Syed Muhammad Anwar v. Sheikh Abdul Haq 1985 SCMR 1228 ref.

Rasheed A. Razvi for Plaintiff.

Miss Masooda Siraj for Defendant.

2005 Y L R 2823

[Karachi]

Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Appellant

Versus

Mst. ASGHARI BEGUM---Respondent

H.C.A. No.57 and C.M.A. No.438 of 2000, decided on 14th August, 2004.

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

----Ss.5, 12 & Art.151---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Delay in filing appeal---Application for condonation of delay in filing appeal--Expression "Sufficient cause", meaning and scope of---Ground for condonation of delay was that neither case was listed in daily cause list nor additional cause list was received by Advocate of appellant/applicant---Such fact stated on oath had not been denied by opposite party---Omission to print name of counsel in cause list was sufficient cause for condonation of delay, similarly non-receipt of cause list was "sufficient cause" for condonation of delay in filing appeal---Expression sufficient cause" was very wide and comprehensive---What was "sufficient cause" within the meaning of S.5 of Limitation Act, 1908 was dependant upon all circumstances of each particular case---"Sufficient cause" seemed to mean not only those circumstances as were expressly recognized, but also those which appeared reasonable to the Court---Word "sufficient cause " should be given a liberal construction, so as to advance substantial justice, when neither negligence nor inaction nor want of bona fides was imputable to appellant---Negligence was not a sufficient cause for condonation of delay in filing appeal---Delay in filing appeal was condoned---After condoning delay under S.5 of Limitation Act, 1908 and exclusion of period spent in obtaining certified copies under 5.12 of Limitation Act, 1908, appeal filed by appellant was within time under Art.151 of Limitation Act, 1908.

Fatima Bibi v. Noor Bibi PLD 1951 Lah.147; Anwar. Muhammad v. Inamur Rahim Khan 1983 CLC 376; Mustafa v. Settlement Commissioner, Bahawalpur Division, Bahawalpur 1974 SCMR 104; Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223; V. Rajamani v. The Co-operative Sugars Ltd. 1983 HLR Mad. 345; Karachi Municipal Corporation v. M/s. Karimi & Company PLD 1967 Kar. 537 and Punjab Co-operative Bank, Lahore v. Official Liquidator AIR 1941 Lah. 253 ref.

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

----O.XX, R.1---Sindh Chief Court (O.S.) Rules, Rr.7 & 28---Cause list---Sufficient notice to counsel or party---Despite non-application of R.1 of O.XX, C.P.C., it was long-standing practice of High Court that counsel were noticed for announcement of orders/judgments by listing of cases in cause list, in accordance with provisions of R. 28 of Sindh Chief Court (O.S.) Rules and said Rules would override rule contained in First Sched. to C.P. C. by virtue of R. 7 of said Rules---Where parties were being represented by counsel, cases were listed in cause list, which was sufficient notice to counsel or party through counsel---Case, in the present case, was not listed in daily cause list, but in additional cause list--Affidavit filed in support of application, counsel for appellant had stated that case was not listed in daily cause list and additional cause list was not received by him---Such statement on oath had not been disputed by other side---Such fact had proved that appellant and his counsel had no notice.

Muhammad Naeem for Appellant.

Nasir Maqsood for Respondent.

Date of hearing: 24th August, 2004.

2005 Y L R 2834

[Karachi]

Before S. Ali Aslam Jafri, J

AZIZ ANIS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.156 of 2003, heard on 24th March, 2005.

Criminal Procedure Code (V of 1898)---

----Ss.561-A & 173---Penal Code (XLV of 1860), Ss.324, 182 & 34---Quashing of order---Complainant had sought quashing of order passed by Judicial Magistrate approving report submitted by Investigating Officer under S.173, Cr.P.C. for disposal of case in 'B' Class as false and ordering for proceedings under S.182, P.P.C. against applicant/complainant---Judicial Magistrate on report submitted by police under S.173, Cr.P.C., without application of judicial mind, and without taking into consideration other material available on record as well as medical opinion recorded by the Medical Board which had suggested that indeed injuries were on person of applicant/complainant, though in healed condition, in a slipshod manner allowed said report and passed the impugned order---Magistrate did not take into consideration nor discussed entire material available on record and felt satisfied, while passing impugned order, and thereby concerned police report without considering opinion of Medical Board---Opinion of Medical Board was not understood or followed by Magistrate while keeping it in juxtaposition with other material collected during investigation---Impugned order was quashed with direction to Magistrate to pass an order afresh after taking into consideration material as a whole instead of simply concurring with police report.

Muhammad Aksar v. Arshad and others NLR 2000 Criminal 604; Khalil A. Malik and others v. Mian Aftab Saigol and others 1999 MLD 1659; Mehdi Hussain Shah v. Malik Khizar Hayat Khan and another 1983 PCr.LJ 1601; The State v. Muhammad Nawaz 2002 SCMR 634; Muhammad Akram v. The State and others 1997 MLD 1569; Zahooruddin v. Khushi Muhammad and others 1998 SCMR 1840; Shaukat Hussain v. State PLJ 1999 Cr.C. Lahore 889; Bahadur and another v. The State and another PLD 1985 SC 62 and Arif Ali Khan v. The State 1993 SCMR 187 ref.

Muhammad Ali Mazhar for Applicant.

Sardaruddin Qureshi, A.-G. for the State.

Syed Ziauddin Nasir for Respondent No.2.

Date of hearing: 24th March, 2005.

2005 Y L R 2889

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD EHSAN---Applicant

Versus

NOOR MUHAMMAD and others---Respondents

R.A. No.21 of 1998, decided on 28th April, 2005.

Civil Procedure Code (V of 1908)---

----S.115 & O.XXI, R.10---Revision---Suit for possession of house was decreed---Execution proceedings---Application of intervener/objector against execution was dismissed and execution allowed---Validity---Record showed that possession of title documents of the house were manipulated by the petitioner (intervener/objector) in collusion with the officials of the Development Authority---Possession of the house was handed over to the petitioner/intervener by the judgment-debtor with the intention to defeat the order and decree passed in favour of the respondent---Possession of petitioner (intervener/objector) was not lawful and title documents of the house in question were obtained by the petitioner/intervener from Development Authority in collusion with its officials---Orders of the Trial Court and Appellate Court dismissing the application of intervener were based on sound reasons and the same could not be altered/amended or set aside in revision as neither the same were perverse nor suffered from non-reading or misreading of evidence---Holder of fabricated/ manipulated title documents of the house issued in collusion with the officials of the Development Authority could not create any right in favour of the holder of such title documents and he had no right to retain possession of the house in question any more which was fraudulently given to him by the judgment-debtor---Revision application of the intervener/objector along with all the listed-applications were dismissed by the High Court---Executing Court was directed to issue writ of attachment without notice and to provide police aid as the judgment-debtor and objector/intervener had already enjoyed illegal possession of the house for more than 35 years.

Iqbal Sultan v. Miss Chand Sultan 1990 CLC 366 ref.

K. A. Wahab for Applicant. S.M. Afzal for Respondents.

Date of hearing: 23rd February, 2005.

2005 Y L R 2896

[Karachi]

Before Rahmat Hussain Jafferi, J

PAKISTAN through Ministry of Defence---Applicant

Versus

Ch. FAZAL MUHAMMAD and others---Respondents

J.M. No.48 of 1999, decided on 25th April, 2005.

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

---S. 20---Three essential conditions are required to be fulfilled for attracting the provisions of Arbitration Act, 1940, viz. that there should be agreement of arbitration; that there should be dispute between the parties of the arbitration agreement concerning the agreement and that the matter was referred to the Arbitrator.

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

----S. 14---Award---If there was no valid reference, the purported award was a nullity, and could be challenged in any appropriate proceedings.

Chabba Lal v. Kallu Lal AIR (33) 1946 PC 72 and Deep Narain Singh v. Dhaneshwari AIR 1960 Pat. 201 ref.

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

----Ss. 20 & 14---Civil Procedure Code (V of 1908), S.12(2)---Application under S.12(2), C.P.C. with a prayer to set aside the award of sole Arbitrator which was made the rule of the Court, on the grounds that there was no agreement between the applicant and the parties of the suit; that the applicant was not party in the arbitration proceedings nor the Arbitrator served any notice on the applicant; that the applicant was not party in the suit nor summons were served upon him and that decree was obtained by fraud ---Validity---Applicant was not a consenting party to the agreement of the arbitration nor the other party was authorized to appoint sole Arbitrator or refer the matter to the arbitration on behalf of the applicant nor there was any dispute between the applicant and the parties mentioned in the letter of appointment of Arbitrator---One of the parties allegedly interested in the matter of dispute was not party to the arbitration agreement as such the letter of appointment of Arbitrator, could not give jurisdiction to the Arbitrator to decide the dispute, and thus the award was passed on an invalid reference and was void---Essential requirements for passing the award were not available in the matter---Award being void and passed without jurisdiction, was liable to be set aside---High Court by invoking S.12(2), C.P.C. set aside the award and allowed the application in circumstances.

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

----Ss. 20 & 14---Civil Procedure Code (V of 1908), S.79---Arbitration---Award made rule of Court---If the Federal Government is made a party then it is to be made through the concerned Ministry ---No such notice was served upon the Secretary of the concerned Ministry, as such, the party was not properly or legally served by the Court before making the award a rule of Court.

Nadeem Azhar Siddiqui, D.A.-G. for Applicant.

Abdul Wajid Wayne for Plaintiff.

Mustafa Lakhani and M.M. Aqil Awan for Respondents.

Date of hearing: 14th April, 2005.

2005 Y L R 2936

[Karachi]

Before Mushir Alam and Gulzar Ahmed, JJ

JUWAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 93, 463, 464, 505, 207, 201, 338, 242, 345, 92, 277, 316, 205, 361, 362 of 2004 and 572 of 2002, heard on 17th September, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 87 & 88---Bail---Delay---General rule---Guidelines---Nature of delay to be assessed and examined in each case on its own merits---Fair and expeditious trial is the right of accused---Prosecution cannot be absolved from its duty or given any latitude on account of its inability to produce from jail for lack of resources---State was duty bound to make arrangements for providing logistic assistance to prosecution to ensure production of accused in Court on each and every date---Where the accused in able to show, that there is unexplained delay on the part of prosecution to proceed with the case, that complainant is causing impediment in early conclusion of trial, that prosecution is tardy and slow in producing evidence, that prosecution is taking undue adjournments, that co-accused are absconding and proceedings under Ss.87 & 88, Cr. P. C. were taking unreasonably long time, that Trial Court is lying vacant for sufficiently long time, that proceedings are stayed at the instance of co-accused, complainant or prosecution and there is no possibility of vacation of stay order at an early date, that unconscionable delay exists in cases triable under the Special Acts requiring day to day hearing and that some other facts are available contributing to delay in prosecution of the case, delay and the nature of the delay in each case is to be assessed and examined on its own merits---Where the Court comes to the conclusion that the delay is unexplained, repulsive and unconscionable and further where the accused or any person on his behalf has not contributed in causing delay, Court may enlarge the accused on bail---Where bail is granted on the ground of delay, surety amount may be substantial to ensure appearance of accused to face trial.

Waseem v. The State 2004 SCMR 860; Yaro v. The State 2004 SCMR 864; Moula Bux and another v. The State 2004 YLR 2765; State v. Qaim Ali Shah 1992 SCMR 2192; Ejaz Ahmed v. The State 1994 SCMR 658; Muhammad Aslam v. The State 1999 SCMR 2147; Ashko v. The State 1997 SCMR 436; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; PLD 2002 SC 456; Arbab Ali v. Ghulam Muhammad PLD 1968 SC 353; Manzoor Khan v. The State 1972 SCMR 207; Muhammad Sadique v. Muhammad Shafi and another 1973 SCMR 212; Ihrar Muhammad v. The State PLD 1974 SC 224; Riasat Ali v. The State PLD 1977 SC 480; Seer Zaman v. Muhammad Azad 1978 SCMR 248; Ghulain Jeelani v. The S.H.O. PLD 1975 SC 210; Mumtaz and 13 others v. The State 1992 PCr.LJ 2325 and Khalid v. The State 1994 PCr.LJ 12 ref.

Safdar Ali Bhutto, Muhammad Ayaz Soomro, Saeed Ahmed B. Bijrani, Jai Jai Veshnu, Roshan Ali Solangi, Ashan Ahmed Qureshi, Muhammad Daud Baloch, Syed Aijaz Ali Shah and Miss Faiz-un-Nisa Channa for Applicants.

Mushtaque Ahmed Kourejo and Muhammad Ismail Bhutto for the State.

Date of hearing: 17th September, 2004.

2005 Y L R 3020

[Karachi]

Before Rahmat Hussain Jafferi, J

ALI HASSAN and 3 others---Applicants

Versus

GHULAM QADIR and another---Respondents

Criminal Miscellaneous Application No.60 and M.As. Nos.1426, 945 of 2005, decided on 22nd July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Quashing of order---Police, after registration of case, investigated and cancelled the same---Police submitted report before Magistrate with regard to cancellation of case and Magistrate concurred with the findings of police and case was cancelled by Magistrate---Magistrate after 2-1/2 years took suo motu notice and without recalling his earlier order whereby case was cancelled, directed police to submit challan of, said case against the accused---Validity---Magistrate without recalling earlier order of cancellation of case, could not initiate further proceedings---Earlier order had not been recalled---Magistrate was not competent to pass impugned order---Said order having been passed without jurisdiction, was set aside/quashed, in circumstances.

Zafarul Haq Khan v. Muhammad Amin PLD 2005 Kar. 375 ref.

Jamshed Ahmed Faiz for Applicants.

Muhammad Iqbal for the State.

Ghulam Sarwar Korai for Respondent No. 1.

2005 Y L R 3104

[Karachi]

Before Zia Pervaiz, J

GHAZI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.242 of 2005, decided on 15th August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Penal Code (XLV of 1860), S.364---Bail, refusal of --Names of both accused appeared in F.I.R. showing to be duly armed with deadly weapons---Accused had shared their common intention with accused persons and conjointly robbed the Pick-up along with 26 goats and also committed murder of three innocent persons---Occurrence was a day rime incident and false implication of accused could not be ruled out---Declaring 12 co-accused as innocent, world not affect prosecution case rather they could be joined by the Trial Court and it was no ground to claim bail for accused---Accused had assembled at the venue of occurrence being armed with sophisticated weapons with common intention to commit heinous offence of harabah and that too on highway which involved capital punishment---Said type of offenders, would not deserve any concession, particularly when they were nominated in F.I.R. with specification of weapons allegedly carried by their---No case for bail having been made out, Bail application was dismissed.

Jai Jai Veshno Mange Ram for Applicants.

Mushtaque Ahmed Abbasi Asstt. A.-G. for the State.

2005 Y L R 3108

[Karachi]

Before Mushir Alam, J

MUHAMMAD ARIF---Petitioner

Versus

Haji SATTAR through his L.Rs. and 2 others---Respondents

C.P. No. 102 of 2004, decided on 19th August, 2005.

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

----Ss. 15 & 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment proceedings---Ex parte ejectment order, setting aside of---Ex parte ejectment order passed by Rent Controller having been maintained by Appellate Authority, petitioner/tenant had filed Constitutional petition against said order---Landlord who sought ejectment of petitioner from shop in question had disclosed two addresses of petitioner, one that of subject shop and other that of business premises, but no effort was made by the landlord to effect service at rented shop in respect of which ejectment was sought by him---Landlord was unable to satisfactorily reply to query of High Court as to why notices were not served or attempted at the rented shop---On alleged refusal, service was held good only on second attempt at second address---Petitioner had made out case that Courts below had not exercised jurisdiction vested in them in a proper manner---Order of Rent Controller and judgment of Appellate Authority were set aside and Rent Controller was directed to decide ejectment application in accordance with law within stipulated period.

Qazi Khalid Ali for Petitioner.

Ms. Hawwa Ladhani for Respondent.

2005 Y L R 3133

[Karachi]

Before Muhammad Afzal Soomro, J

MANSOOR AKBAR and others---Applicants

Versus

THE STATE---Respondent

Cr. B. As. Nos.964, 969 and 973 of 2004, decided on 5th April, 2005.

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

----Ss. 497 & 498---"Bail before arrest" and "bail after arrest "---Distinction---Principles for grant of bail before arrest and bail after arrest were entirely on different footings---In case of bail before arrest, requirement of law was that it was to be granted in very exceptional circumstances where involvement of accused was mala fide and due to ulterior reasons and such mala fide was to be alleged specifically though not required to be proved---Right of pre-arrest bail was rare and very limited which could be extended in a very strong and exceptional circumstances which were based on mala fides/enmities.

Muhammad Murad Khan v. Fazl­e-Sultan PLD 1983 SC 82; Ziaul Hassan v. The State PLD 1984 SC 192; Muhammad Afzal v. The State 1997 SCMR 278; Muhammad Saeed v. The State PLD 1999 Kar. 345 and Muhammad Azam v. The State 1996 SCMR 71 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 161, 420, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Pre-arrest bail, grant of---Plots in question were allotted to accused after following the law and procedure by Management of the then Market Committee--- Administrator Market Committee and former Secretary submitted a summary which was duly approved and plots in question were allotted to accused---Accused, after allotment of said plots moved application, much prior to registration of F.I.R. for allotment of a plot through auction platform, Challan for payment of whose price issued to both accused was paid by them---Plots in question, were allotted to accused following findings of Ombudsman and also in view of summary prepared by former Administrator approved by Market Committee ---Mala fides on part of prosecution being apparent on record interim bail granted to accused was confirmed, in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347; Rais Wazir Ahmed v. The State 2004 SCMR 1167 and Abdul Rasheed v. The State PLD 2003 Kar. 682 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 161, 420, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Pre-arrest bail, refusal of --- Two co-accused were not entitled to grant of pre-arrest bail for the reason that punishment provided for the offence, allegedly committed by them, though did not come within prohibitory clause of S. 497(1), Cr.P.C., but their case fell within an exceptional class warranting refusal inasmuch as the Courts in matters of bail had to see the seriousness of offence committed by an individual in his private capacity who belonged to a distinct class and qualified to be treated falling within an exceptional circumstance of the nature; warranting refusal of bail even where maximum sentence was less than 10 years R.I. for the offence involved---Practice to allow bail in cases not falling under prohibitory clause of S. 497, Cr. P. C., in absence of an exceptional circumstance, could be followed and the Court had to be strict in exercise of discretion of bail granting to offenders---Material was available on record to connect said co-accused with commission of offence involved---Application moved by said co-accused for pre-arrest bail, was dismissed, in circumstances.

Khawaja Shams-ul-Islam, Fareed Ahmed Dayo and Syed Ahmed Ali Shah for Applicants.

Fazlur Rehman Awan for the State.

Date of hearing: 15th February, 2005.

2005 Y L R 3143

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

ABDUL HAMEED and another---Petitioners

Versus

THE STATE through Chairman, National Accountability Bureau, Karachi---Respondent

Constitutional Petition No. D-84 of 2005, decided on 11th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art. 199---National Accountability Ordi­nance (XVIII of 1999), Ss.9/10---Bail, refusal of --- Entire evidence in the case was of a documentary nature and had been the subject-matter of a decided case in other reference wherein the version of the accused had been disbelieved as to the authenticity of the bin cards in question--- Regarding plea bargain, a valid and binding agreement existed between the parties which the accused had failed to keep up---National Accountability Bureau had also served the accused with the necessary thirty days notice and at such stage the charge against them regarding wilful misconduct could not be held to be misconceived or unlawful --- Bail was declined to accused in circumstances.

Ali Nawaz Shah v. The State PLD 2003 SC 837; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Main Munir Ahmed v. The State 2004 PCr.LJ 2012 and Asim Textile Mills Ltd. v. NAB PLD 2004 Kar. 638 ref.

Raja Qureshi for Petitioners.

Shaukat H. Zubedi, D.P.G.A., NAB for Respondent.

Dates of hearing: 14th, 18th, 21st March, 8th, 13th, 14th, 20th April, and 24th May, 2005.

2005 Y L R 3149

[Karachi]

Before Sarmad Jalal Osmany and Zia Perwez, JJ

ZAKARIA SHANI ---Petitioner

Versus

FEDERATION OF PAKISTAN and others ---Respondents

C.Ps. Nos. D-1420 to D-1422 of 2004, decided on 6th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art. 199---National Accountability Ordi­nance (XVIII of 1999), S.9/10---Bail, grant of---Superior Courts give the benefit of remissions to the accused counting the same from the date of arrest and allow bail to the accused where the major portion of the substantive sentence had been served out---Accused, in the present case, had undergone 2/3rd of his substantive sentence viz, 16 years out of 24 years, if the

remissions were counted from the date of his arrest---Accused was admitted to bail in circumstances.

Criminal Accountablity Appeal No. 33 of 2002; Waryam Fakir v. The State Criminal Miscellaneous Application No.275 of 2001; Abdul Sami Mangrio v. The State Constitution Petition No.D-453 of 2004; Mian Munir Ahmed v. The State PLD 2002 Kar. 497; Khan Muhammad Mehar v. The State 2003 SCMR 22 and Ch. Muhammad Shareef v. The Sate Cr. Petition No.314 of 2002 SC ref.

Abdul Sattar Dero v. The State Cr. Petition No.423 of 2002 and Adnan Khawaja v. The State Cr. Petition No.281 of 2004 fol.

Abdul Hafeez Lakho along with Akhtar A. Channar and Mobin A. Lakho for Petitioner.

Shoukat Hussain Zubedi, D.P.-G. NAB.

Date of hearing: 6th January, 2005.

2005 Y L R 3153

[Karachi]

Before S. Ali Aslam Jafri, J

NAZEER AHMED---Applicant

Versus

THE STATE---Respondent

Cr. Miscellaneous Application No.S-19 of 2005, decided on 8th April, 2005.

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

----Ss. 249-A & 561-A---Acquittal of accused---For seeking acquittal in a case of groundless , charge, normally the Trial Court was to be approached in the first instance, but such rule was not absolute and it was not always necessary for its strict compliance---In appropriate cases, more particularly when quashing of proceedings was sought, deviation was permissible---Even otherwise, there was no bar under S.561-A, Cr.P.C. to entertain application directly by High Court.

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

----S. 561-A---West Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Quashing of proceedings---Application for---Temporary possession or control of applicant who was a driver/servant of licensee of arms in the course of discharge of his normal duties over master's licensed fire-arms under master's order/direction, would not attract provisions of S.13(d) of West Pakistan Arms Ordinance---Applicant, in circumstances did not appear to have committed an offence for which he had been charged and being tried---Proceedings pending before Trial Court, if allowed to continue, would amount to abuse of process of law---Proceedings against applicant were quashed and he stood acquitted of the charge.

The State v. Noor Haider PLD 1967 Pesh. 182; Emperor v. Lalman Tharu AIR 1937 Pat. 347; Avidi Veerasami v. Crown AIR 1940 Mad. 257; State through A.G. Sindh v. Muhammad Akbar Samejo 1992 SCMR 2310; Bashir Ahmed v. Zafar­ul-Islam and others PLD 2004 SC 298; Munir Ahmed v. State PLD 1985 SC 257; Syed Manzoor Hussain Shah v. Agha Hussain Naqvi and State 1983 SCMR 775 ref.

Muhammad Yousaf Leghari for Applicant.

Anwar H. Ansari for the State.

Date of hearing: 18th March, 2005.

2005 Y L R 3161

[Karachi]

Before Zia Perwaz and Amir Hani Muslim, JJ

BEERBAL alias BEERO---Applicant

Versus

THE STATE---Respondent

Criminal Appeal No. D-21 of 2004, decided on 18th August, 2005.

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

----S. 13(d)---Appreciation of evidence---Accused did not press appeal on merits, but had requested for leniency in sentence---State counsel did not object the disposal of appeal in said terms---Accused was in custody since his conviction and he had remained in jail for about 3-112 years---Taking lenient view, sentence of accused was reduced to that of already undergone---Appeal was dismissed with said modification.

Abdul Karim v. State 1999 PCr.LJ 186 and Asghar v. State 2004 PCr.LJ 2048 ref.

Jai Jai Veshno Mange Ram for Appellant.

Mushtaque Ahmed Korejo for the State.

2005 Y L R 3198

[Karachi]

Before Mushir Alam, J

HASSAN ALI and another---Plaintiffs

Versus

Mst. KHATIJA and others---Defendants

Suit No.348, C.M.As. Nos.1762, 1763, 4476 and 3054 of 2005, decided on 23rd June, 2005.

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

---S. 44---Transfer by one co-sharer---Co­sharer, even if in possession of entire property is not legally competent to alienate joint property in excess of his share.

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

---Ss. 27 & 12---Suit for specific performance of agreement to sell---Subsequent transfer of property could only be assailed and impugned where it is shown that the subsequent purchaser lacked good faith and had notice of the earlier transaction---Both faith or mala fide of the seller was not relevant consideration in such cases.

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

----S. 44---Co-sharer---Nature of right and interest in undivided property---Co-sharer cannot bind other co-sharers of the property without their authority---If one co-sharer enters into an agreement for the entire property of other co-sharers, it is invalid at least to the extent of shares of other co-sharers unless of course it is shown that such co-sharer had authority on behalf of other co-sharers in this regard.

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

----S. 53-A, proviso---Specific Relief Act (I of 1877), S.27(b)---Part performance---Subsequent transfer---Subsequent trans­feree, in goof faith for value without notice of earlier transaction enjoys statutory protection, irrespective of the fact that the transaction requiring registration is not registered.

Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Khayabane-e-Iqbal (Pvt.) Ltd. and others v. Mustafa Haji Muhammad 1996 CLC 1758; Aijaz Mehmood v. Shaikh Muhammad Jamil and others PLD 1987 Kar. 546; Aijaz Mehmood v. Shaikh Muhammad Jamil and others 1996 CLC 1027; Muhammad Sarwar v. Zulfiqar and others PLD 1998 SCMR 593; Muhammad Sabir Khan v. Rahim Bakhsh PLD 2002 SC 303; Edulji Dinshaw Ltd. v. Income Tax Officer PLD 1990 SC 399; Mangal Singh v. Pandit Dial ChandAIR 1940 Lah. 159 and Ajaib Khan v. Allah Ditta 2002 YLR 2723 ref.

Abid S. Zuberi and Asghar N. Farooqi for Plaintiffs.

Nadeem Azher Siddiqui and Sajjad Ali Shah for Defendants.

Date of hearing: 16th June, 2005.

2005 Y L R 3207

[Karachi]

Before Rahmat Hussain Jafferi, J

HAKIM ALI alias SONO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.22 of 2005, decided on 4th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395---Bail, refusal of---Name of accused was mentioned in F.I.R. and encounter had taken place between police. and dacoits---Robbed vehicle was secured and accused was found sitting in said vehicle and a pistol was also secured from his possession---All prosecution witnesses had fully supported case against accused---Reasonable grounds existing for believing that accused was involved in the case, he was not entitled to concession of bail---Bail application was dismissed.

Ghulam Muhammad Khan Durrani for Applicant.

Muhammad Mahmood S. Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3208

[Karachi]

Before Rahmat Hussain Jafferi, J

DHANI BUX and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.79 and 228 of 2005, decided on 6th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Two persons had lost their lives in the incident---According to prosecution, allegation had been levelled against co-accused of causing fatal injuries to both deceased---Prosecution had itself alleged that accused were empty-handed at the time of incident---It was not the case of prosecution that accused had made any Lalkara, instigation or had participated in crime in any manner---Accused appeared to be silent speculators---Prosecution had simply alleged that accused were present at the scene of incident---If accused had common intention to commit murder, then they must have armed themselves with some deadly weapons in order to achieve object of common intention, but they were empty-handed, which had clearly indicated that their intention was not as that of co-accused who had armed himself with gun and subsequently used it to achieve his nefarious design---Tentatively from the facts and circumstances of case, it appeared that common intention between all accused, was a question of fact which could be decided at the time of trial when proper evidence would be recorded---There being no other allegation or evidence against accused to connect them with commission of crime, they were entitled to concession of bail.

A. R. Farooque Pirzada for Applicant No. 1.

Manzoor Ahmed Junejo and Ghulam Shabbir Dayo for Applicant No.2.

Muhammad Mahmood S. Khan Yousifi, A.A.-G. for the State.

Ather Iqbal Shaikh for the Complainant.

2005 Y L R 3211

[Karachi]

Before Rahmat Hussain Jafferi, J

ALI HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-94 and M.As. Nos.334 and 335 of 2005, decided on 5th July, 2005.

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

----S. 497---Penal Code (XLV of 1860), S.395---Bail, grant of---Case was of highway robbery in which ten dacoits intercepted the bus and fired at it with the result that three passengers received injuries ---Dacoits were not identified at the place of incident by any person except by two police constables---It was not the case of prosecution that dacoits came very close to police and thus they were able to see faces of dacoits nor it was case of prosecution that there was sufficient light in which said police officials were able to see dacoits at some distance---Enmity was alleged by accused with police, though cause of said enmity could properly be thrashed at time of trial---Accused, in said background, had made out case of bail---Accused was granted bail, in circumstances.

Ghulam Shabbir Dayo for Applicant.

Muhammad Mahmood Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3213

[Karachi]

Before Muhammad Moosa K. Leghari, J

Dr. ABDUL JALIL-Applicant

Versus

THE STATE---Opponent

Criminal Bail Application No.S-403 and M.As. Nos.907 and 998 of 2005, decided on 3rd August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail on ground of hardship, refusal of---Bail in the present case was pressed by accused solely on ground of hardship as according to him he was behind the bars since 1997 without any fault on his part---Report of Trial Court had adequately revealed that accused himself was not serious in getting trial concluded as he had moved applications for adjournment of case on many dates and on such dates his Advocate remained absent---Certainly expeditious and fair trial was a fundamental right of an accused and inordinate delay in conclusion of trial had never been approved---Object of criminal trial was that accused was made to face trial and answer criminal charge against him, but if in a case accused himself was apparently found to be contributing in occasioning delay in the trial he himself and none else could be blamed for that---Accused, in such cases, could not be allowed to earn premium for his own fault and follies for the simple reason that a person causing delay in his own trial could. Not cry for being victim of self-sustained hard­ship---Accused himself being not serious in getting trial concluded, he would not be entitled to concession of bail pleaded by him---Case of alleged hardship having not been made out by accused, he was not entitled to grant of bail---Bail application was dismissed, in circumstances.

2000 SCMR 107; 2004 SCMR 294 and 2005 PCr.LJ 147 ref.

Qurban Ali "H. Chouhan for Applicant.

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

Date of hearing: 17th August, 2005.

2005 Y L R 3215

[Karachi]

Before Rahmat Hussain Jafferi, J

MIR MUHAMMAD and 4 others---Applicants

Versus

THE STATE---Respondent.

Criminal Bail Application No.218 of 2005, decided on 6th July, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 265-C---Bail application---Applicants had stated that if Trial Court would record evidence of main witnesses within period of two months, they would not press bail application---Some of accursed persons being absconders, Trial Court was directed to separate the case of accused persons who were absconders and then proceed with the case against remaining accused by framing charges after compliance of S.265-C, Cr.P.C., and then record evidence of material witnesses within specified period---After recording evidence of some of witnesses, applicants would be at liberty to move fresh application for bail before Trial Court which would be decided on merits.

Ghulam Shabbir Shar for Applicants.

Muhammad Mahmood Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3216

[Karachi]

Before Rahmat Hussain Jafferi, J

ALI GOHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.224 and M.A. No. 1245 of 2005, decided on 4th July,-2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Occurrence being day time incident, question of mistaken identity could be ruled out---Specific role for causing Lathi blow to deceased had been assigned to accused---Deceased, when he was alive, had stated in his statement recorded under S. 161, Cr.P.C., that he had received Lathi injury at the hands of two accused---Such facts had been supported by witnesses in their statements recorded under S.161, Cr-P.C.-7-Possibility of receiving injury by deceased at one and same place by two blows, could not be ruled out---Same, however, required deeper appreciation of evidence, which could not be undertaken at bail stage, but said point could be thrashed, out at the time of recording evidence of prosecution witnesses at the trial---Fact remained that accused had caused injury to deceased on his head which became fatal---In view of material available on record, reasonable grounds existed to believe that accused was guilty of charge and his case fell within prohibitory clause of S.497, Cr. P. C. ---Accused being not entitled to concession of bail, his bail application was dismissed.

PLD 1972 SC 27 and 1996 SCMR 364 ref.

Maqbool Ahmed Awan for Applicant.

Muhammad Mehmood S. Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3217

[Karachi]

Before Rahmat Hussain Jafferi, J

UMED ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-118 of 2005, decided on 6th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Enmity existed between parties over murder of nephew of complainant in which co-accused was involved---Allegation of prosecution was that accused parry was pressurizing complainant to change his evidence, but he was refusing to do so --Motive assigned in the case requiring evidence, no definite finding could be given at bail stage---Prosecution witnesses had assigned to accused role of causing fire-arm injury on person of deceased---Question of diameter of injury on person of deceased as mentioned by Medical Officer could be determined at the time of trial as it required evidence to clarify as to whether or not such type of injury could be caused by Kalashnikov---Only tentative assessment of evidence was permissible at bail stage---Material available on record showed that there were reasonable grounds for believing that accused was involved in the case---Accused, in circumstances was not entitled to concession of bail as his case fell within prohibitory clause of S.497, Cr. P. C.

2002 PCr.LJ 791; 1980 SCMR 889; 2004 SCMR 481; PLD 2004 Kar.38; 2002 PCr.LJ 494 and 1997 SCMR 103 ref.

S. Mushtaque Hussain Shah for Applicant.

Muhammad Mahmood S. Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3219

[Karachi]

Before Muhammad Moosa K. Leghari, J

WALIDINO alias GUDDO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-368 of 2005, decided on 26th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 353---Bail, grant of---Neither any body was injured in the alleged incident nor empties of any kind were recovered from place of Wardat as affirmed by A.A.-G. after going through Mashirnama of Wardat prepared by police itself, though police had applied S. 324, P. P. C. along with S. 353, P.P.C.-Valid reasons were available to believe that case had been falsely foisted by police on accused---Accused, in circumstances was entitled to bail as a matter of right.

Rizwan Ahmed Memon for Applicant.

Mashooq Ali Sammo, Asstt. A.-G. for the State.

2005 Y L R 3220

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD BACHAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.256 and M.As. Nos.937 and 938 of 2005, decided on 5th July, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Penal Code (XLV of 1860), 5.396---Bail, refusal of---Ten dacoits armed with K.Ks., guns, rifles and hatchets reached the place of incident and robbed twenty cattle which were being grazed by deceased, when deceased resisted them one of the accused persons fired at deceased causing his death---Offence of murder and Haraba/dacoity, in circumstances had been committed and all accused were equally responsible for commission of Haraba/dacoity---Prosecution witnesses had supported the prosecution case---Reasonable grounds were available to believe that accused were guilty of offence which fell within prohibitory clause of S.497, Cr.P.C.---Accused were not entitled to concession of bail.

Amanullah G. Malik for Applicant.

Muhammad Mehmood S. Khan Yousif, A.A.-G. for the State.

2005 Y L R 3223

[Karachi]

Before Rahmat Hussain Jafferi, J

GUL alias GUL MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-237 and M.A. No.859 of 2005, decided on 14th July, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.324 & 337-D---Bail, refusal of---Parties were known to each other---Old enmity existing between parties, there appeared to be motive for commission of offence---Accused was armed with pistol whereas co-accused was armed with gun---Accused persons along with another accused fired at deceased with the result that deceased had received fire-arm injury on his abdomen which was vital part of the body---Injury had been declared to be `Jarh-e-Jaifah which was punishable under S.337-D, P. P. C., which had provided punishment of ten Years' R.1.---Case against accused, in circumstances fell under prohibitory clause of S.497, Cr. P. C. ---Accused, who were armed with deadly weapons, had knowledge that if they fired from their weapon, then it might cause death and their case would fall tender S. 324, P. P. C. ---Accused who had shared common intention with knowledge to commit offence, their case fell within prohibitory clause of S.497, Cr. P. C. ---Accused were not entitled to concession of bail in circumstances.

Ghulam Shabbir Dayo for Applicants.

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

2005 Y L R 3225

[Karachi]

Before Muhammad Moosa K. Leghari, J

GHULAM QADIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.366 of 2005, decided on 28th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.400---Bail, grant of---Accused had been roped in by police in the case on allegation that he belonged to a gang of dacoits as three chits allegedly written by notorious dacoit to various persons were found in his possession---Present case was absolutely of no evidence---Guilt of accused could only be brought home, if alleged chits were proved to have been written by notorious dacoit, named in F.I.R. and were handed over to accused for distribution/service---Was beyond reach of police to produce such dacoit in evidence to prove his handwriting and. signatures---Due to inaptness, ignorance and incompetence on the part of Court which passed the impugned order, such aspect of case went out of its mind, which Court ought to have attended to---Accused was granted bail, in circumstances.

Salahuddin Panhwar for Applicant.

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

Date of hearing: 28th July, 2005.

2005 Y L R 3229

[Karachi]

Before Rahmat Hussain Jafferi, J

IRSHAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 198 of 2005, decided on 5th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, grant of---Allegation against accused persons was that they armed with gun and hatchet caused injuries to complainant party---Medical evidence did not support said allegation as injured had no fire-arm injury on his person nor had any sharp side hatchet injury---Co-accused, itt similar circumstances, had been granted bail on ground of conflict between medical and oral evidence---Rule of consistency required that accused should also he granted bail---Bail was granted to accused, in circumstances.

Ghulam Shabbir Dayo for Applicant,.

Muhammad Mahmood Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3230

[Karachi]

Before Muhammad Afzal Soomro, J

NUSRAT BUGHIO and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-352 of 2005, decided on 17th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 364, 148 & 149---Bail, grant of---Further inquiry ---Nobody had witnessed the actual act of causing murder of deceased---F.LR: was lodged with inordinate delay of ten days which delay was not plausibly explainer/---No specific role had been assigned to accused in F.I.R. and even none of accused had caused any injury to deceased or to prosecution witnesses at time of incident---No witness had seen the commission of murder and all prosecution witnesses as well as Mashirs were interested and hostile to accused persons---Implication of eighteen persons, mostly from the same family could be result of admitted enmity---Offence of abduction with intention to commit murder, as alleged in F.I.R. against accused and co-accused required adjudication---Case against accused calling for further inquiry in terms of S.497(2), Cr. P. C., they were allowed bail, in circumstances.

Imdad Ali Awan along with Shaukat Ayaz Awan for Applicants.

Habibur Rahman Shaikh, Asstt. A.-G. for the State.

Date of hearing: 9th June, 2005.

2005 Y L R 3235

[Karachi]

Before Rahmat Hussain Jafferi, J

NOORUDDIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-41, M.As. Nos.1172, 1092, 528 and 146 of 2005, decided on 11th July, 2005.

Criminal Procedure Code (V of 1898)---

---- S. 497---Penal Code (XLV of 1860), S.395---Bail, refusal of---Incident took place in the night when five accused persons armed with deadly weapons entered into the house of complainant---Offence of accused, in circumstances would fall within definition of Vacoity "---During commission of offence one accused had caused injury to complainant---All the inmates of house were confined in a room and thereafter culprits took away cash, golden ornaments and other household articles---Case was not of injury where question of causing injuries should be considered independently, but in such type of cases when five or more persons armed with deadly weapons committing lurking house trespass by entering house and committed offence, each accused would be responsible for said offence---Complainant had tried to explain delay in lodging F.I.R., but same required deeper appreciation of evidence, which could be properly examined at the time of trial when required evidence would be produced by prosecution---Prosecution witnesses had fully supported prosecution case---Reasonable grounds existing for believing that accused were involved in crime, they were not entitled to concession of bail.

Shaikh Amanullah for Applicants.

Zubair Ahmed Rajput for the State.

2005 Y L R 3236

[Karachi]

Before Rahmat Hussain Jafferi, J

PERVAIZ and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.270 of 2005, decided on 7th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392---Bail, grant of --- Arrest of accused persons was illegal as police arrested them without collecting evidence---If police officer had identified accused then he could have immediately informed police and names of accused persons could have been mentioned in F.I.R. and his statement could have been recorded earlier, but there was delay in recording statements of prosecution witnesses---During course of investigation statements of only interested witnesses were recorded---Possibility was that accused had been shown to witnesses at Police Station prior to identification test---Identification was held after thirteen days of arrest of accused persons---Submissions of accused had weight which could not be controverted---Identification test had become doubtful, in circumstances---At the time of arrest of accused, police had not collected any tangible evidence warranting their arrest---All said facts required deeper appreciation for which evidence was required to be recorded during trial---Accused, in circumstances were entitled to concession of bail.

Muhammad Hamzo Buriro for Applicants.

Muhammad Mehmood S. Khan Yousufi, A.A.-G. for the State.

2005 Y L R 3238

[Karachi]

Before Rahmat Hussain Jafferi, J

NIAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-684 of 2004 and M. A. No. 1040 of 2005, decided on 7th July, 2005.

Criminal Procedure Code (V of 1898)---

---- Ss. 491 & 497---Bail, grant of---Co ­accused female who was arrested by police was released and said co-accused filed application under S.491, Cr.P.C. before Sessions Court against police and in retaliation police, in order to save themselves from case, involved the accused---Case of accused was supported by relevant documents which had been filed along with bail petition---After seven days of arrest, accused was put to identification test where two police officers identified accused to be one of culprits---Both said police officers were posted at the place under the S.H.O. against whom co-accused had filed application under S.491, Cr. P. C. ---Police, in circumstances, appeared to have grudge against the accused and co-accused---In all fairness police, in order to implicate accused, should have arranged identification parade through private witnesses who were available at the scene of offence at time of incident, but police did not care to adopt such course and had destroyed a valuable piece of evidence---Accused, in circumstances was entitled to concession of bail which he was granted.

Badlo and another v. The State

2004 PCr.LJ 157; Mithal v. The State 2005 PCr.LJ 630 and Muhammad Shafi and others v. Amanat Ali and others 2005 MLD 558 ref.

Manzoor Ahmed Junejo for Applicant.

Muhammad Mahmood Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3243

[Karachi]

Before Rahmat Hussain Jafferi, J

RAJIB ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 137 of 2005, decided on 7th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Parties were on inimical terms with each other and accused was allegedly older than other accused persons---It was not the case of prosecution that all accused carne together to commit offence, but its case was that all accused were already standing on road near the hotel when complainant party reached there and then incident took place---No overt act or any other part had been assigned to accused, except, Lalkara, nor he had facilitated other accused to commit offence nor he had deterred prosecution witnesses or threatened them or interfered in the matter---Accused was simply present empty-handed, which had shown that required intention involving ingredients of common intention, was lacking in the case, but that required deeper appreciation of 'evidence, which was function of Trial Court, which could be done at the time of trial---At bail stage a tentative assessment was to be made from evidence to form an opinion whether a case for bail had been made out or not---Accused being entitled to bail, was granted the same, in circumstances.

Abdul Raheem v. Javed 2002 SCMR 1415 ref.

Aziz Ahmed Khawaja for Applicant.

Muhammad Mahmood S. Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3244

[Karachi]

Before Rahmat Hussain Jafferi, J

MANZOOR SHAIKH alias MANZOOR AHMED---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Application No.74 and M.A. No.1262 of 2005, decided on 13th July, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 169, 170, 173 & 190---Quashing of order---Applicant had challenged order passed by Magistrate by which he had directed Police to submit challan within seven days---Said order was passed by Magistrate on letter sent by S.P. (Investigation) for cancellation of the case---Police started investigation after lodging the F. I. R. ---Validity---After investigation police had to form an opinion from evidence collected by them as to whether accused were involved in the case or not---If police formed opinion that accused were innocent, then police had power to release them under 5.169, Cr.P.C.---If police formed opinion that sufficient evidence was available against accused connecting them with commission of crime then they had to forward accused to the Magistrate empowered to take cognizance of offence under S.170, Cr.P.C.; in both cases, either releasing accused under S.169, Cr. P. C. or forwarding accused to Magistrate under S.170, Cr.P.C., police was required to submit a challan within meaning of S.173, Cr.P.C. and for that Government had provided a pro forma---Magistrate was within his jurisdiction to direct police to submit challan on pro forma provided by Government with whatever their opinion could be with regard to involvement of accused or otherwise and then Magistrate was required to pass an order within meaning of 5.190 or S.173, Cr.P.C.---Magistrate, in the impugned order did not issue any other order excepting, directing police to submit challan within seven days---Said order was legal and proper and there was no illegality or irregularity in the order and it would not require any interference---Police was to put accused in whatever Column they would like after examining evidence collected by there in appropriate Columns of challan---Application was dismissed, interim order already passed was vacated and police was directed to comply with order- of Magistrate within required period.

Habib v. The State 1983 SCMR 370 and Muhammad Alam v. Additional Secretary to Government of N.-W.F.P. PLD 1987 SC 103 ref.

Imdad Ali Awan for Applicant.

Zubair Ahmed Rajput for the State.

2005 Y L R 3247

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD RAFIQ---Appellant

Versus

THE STATE---Respondent

Special Criminal Appeal No. 14 of 2002, decided on 5th September, 2005.

(a) Administration of justice---

----Principle---Things should be done as they are required to be done in law or not at all---Said principle must be strictly adhered to, particularly in criminal cases which involve the liberty of the citizens and conviction, which always remains as a stigma on the person convicted.

(b) Customs Act (IV of 1969)---

----Ss. 156(1)(8)(89) & 185-A---Appreciation of evidence---Trial Court had presumed that the accused had abetted the commission of the offence merely because he had claimed the smuggled betel-nuts recovered from the possession of co­ accused---Such presumption had no room in the realm of criminal administration of justice---Accused had been directed to be joined as accused in the case by the Trial Court by merely reproducing the words used in S.185-A of the Customs Act, 1969, in the order that there were sufficient grounds to proceed against him, which was not sufficient compliance of the requirement of law---Trial Court was bound to record the grounds on the basis whereof it came to the conclusion that in the absence of any report under Clause (a) of subsection (1) of S.185-A of the Customs Act, 1969, proceedings would be initiated against the accused and he should be joined as an accused---In the absence of such grounds shown and the reasons recorded, Trial Court had misdirected itself' in joining the accused in the case---Jurisdiction assumed by the Trial Court by taking cognizance against the accused in a manner not warranted by late, had rendered the entire proceedings invalid and void ab initio--- Impugned judgment was set aside accordingly.

Sohail Muzaffar for Appellant.

Mehmood Alam Rizvi, Standing Counsel for Respondent.

Date of hearing: 5th September, 2005.

2005 Y L R 3258

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

JEHANGIR MALIK---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.84 of 2004, decided on 17th August, 2005.

(a) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

---- Ss. 5, 6 & 9---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Evidence against the accused was only to the extent of police statement confession of the main accused to the effect that the accused had given to him the pay orders in question for deposit etc---Even if the said confession was proved before the Trial Court, it would have to be corroborated in material particulars by other reliable and cogent evidence in order to be used against the accused, as evidence of an accomplice could not be accepted at its face value for convicting a co-accused---Arrest of the accused on the information of main accused could hardly furnish any evidence as to his involvement in the crime and he could not be convicted on such corroboratory evidence alone---Accused had been placed in Column No.2 of the challan after police investigation---Charge against accused having not even been framed, no question of trial could arise---Accused could always be joined at a subsequent stage of the proceedings, if same evidence would come on record pointing towards his involvement in the crime---Proceedings pending against the accused before the Trial Court were quashed in circumstances.

Maqbool Hussain v. The State PLD 1960 SC 382; Joygun Bibi v. The State PLD-1960 SC 313; Moula Bux v. The State 1977 SCMR 292; The State v. Asfand Yar Wali 1982 SCMR 321; Khani Zaman v. The State 1983 SCMR 573; Shabiul Hassan v. The State PLD 1991 SC 898; Abdul Ghafoor v. The State PLD 1984 Lah. 441; Muhammad Umar v. The State 1981 SCMR 479; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Mairaj Khan v. Gul Ahmed 2000 SCMR 122; Muhammad Shafique v. Abdul Hayee 1987 SCMR 1371; State v. Gulzar Muhammad 1998 SCMR 873; The State v. Asif Ali Zardari 1994 SCMR 798; S. Masoodul Hassan Naqvi v. The State 1986 PCr.LJ 1272; Ghulam Muhammad v. The State PLD 1961 Lah 146; The State v. Muhammad Shah PLD 1961 (W. P.) Lah. 1; Hasil Balouch v. DIG Police Crimes, Karachi 1983 PCr.LJ 2357; Aftab Ahmed v. Hassan Arshad PLD 1987 SC 30; Atta Muhammad v. I.-G. Police, West Pakistan PLD 1965 (W.P.) Lah. 734; Muhammad Akbar v. The State 1972 SCMR 335; Bhuboni v. The King PLD 1949 PC 90; Muhammad Sabir v. The State 1989 PCr.LJ 2047; Mazharul Haq v. The State 1999 PCr.LJ 1910; Mian Munir Ahmed v. The State 1985 SCMR 257 and the State v. Gulzar Ahmed 1998 SCMR 823 ref.

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

----S.43(b)---Evidence of accomplice---Effect---Evidence of an accomplice cannot be accepted on its face value for convicting a co-accused unless it is corroborated in material particulars by other reliable and cogent evidence.

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

-------S.561-A---Inherent jurisdiction of High Court---Scope---Proceedings in a criminal trial against an accused can be quashed by High Court under S.561-A, Cr. P. C. where it is established that due to some legal defect in the proceedings accused cannot be convicted at the trial, or the case is of no evidence at all and keeping the matter pending will not serve any useful purpose which will amount to abuse of process of Court.

Mairaj Khan v. Gul Ahmed 2000 SCMR 122; Mian Munir Ahmed v. The State 1985 SCMR 257 and the State v. Gulzar Ahmed 1998 SCMR 823 ref.

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

------S. 403---Person once convicted or acquitted not to be tried for the same offence---Application and scope---Bar contained in S. 403, Cr. P. C. as to afresh trial of an accused under the same charge would only come into operation if there has been a trial.

Rasheed A. Rizvi for Applicant.

Faisal Siddiqui for Accused.

S. Melmrood Alarn Rizvi, Standing Counsel for the State.

Dates of hearing; 9th, 30th, March, 6th, 12th and 14th April, 2005.

2005 Y L R 3265

[Karachi]

Before Zia Perwaz, J

Mst. MARIYAM---Plaintiff

Versus

Mst. KHATOON BAI and others---Defendants

Suit No. 1543 of 2000, decided on 28th May, 2002.

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

----O. XL, R.1---Appointment of Receiver as interim relief, prayer for---Suit for accounts and possession of half share in shop---Defendant denied plaintiff's share in shop in view of family settlement between parties and claimed to have established workshop therein by making investment---Validity---Question of family settlement would be decided on basis of evidence---Documents of title and existing position of ownership would be seen for purposes of interim relief---Plaintiff had a prima facie case---Plaintiff was not apprehending sale/ alienation of shop---Question of appointment of Receiver to take over shop and conduct its auction would arise only after decision of questions in issue--High Court accepted plaintiff's application by directing defendant to deposit amount of 50% of income from shop after deducting therefrom initial investment made in setting up of business and continue to file a quarterly statement of income accruing together with deposit of 50% of income during each such period within 30 days of expiry of each quarter, and not to part with its possession, induct any new tenant, create any third party interest in shop or take any action detrimental to interests of plaintiff:

M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54; Mst. Muhammad Bibi V. Additional Settlement Commissioner, Khairpur PLD 1976 Kar. 181; Mir Muhammad v. Muhammad Hashim 1988 CLC 2195; Miss Qamar Ali v. Syed Nadir Ali 1993 CLC 605; Iqrar Muhammad Siddiqui v. Mst. Shahid Zareen PLD 1997 Kar. 409 and Sahib Khan v. Muhammad Ramzan 2000 MLD 729 ref.

Aftab Ahmed Mufti v. Mst. Seema alias Zareena 1988 CLC 1567; Abdul Hai v. Mst. Haseena Khatoon 1987 CLC 1765; Basant Ram v. Dasondhi Mai AIR 1929 Lah. 497 and Moinuddin Paracha v. Sirajuddin Paracha 1993 CLC 1606 distinguished.

Ram Kishore Das v. Balram Shah AIR 1978 Patna 210 and T. Krishnaswamy Chetty v. C. Thangavelu Chetty AIR 1955 Mad. 430 rel.

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

-----O. XL, R,1---Appointment of Receiver pending a suit---Factors essential for. consideration by Court stated.

Order XL, Rule 1, C.P.C., itself vests power in the Court, whenever it considers it just and convenient to appoint a Receiver of any property; remove any person from the possession or custody of the property; commit the same to the possession, custody or management of the Receiver; and confer upon the Receiver all such powers for management and protection of the property in suit. Rule 1 of Order XL of C.P.C., simply says that whenever it is just and convenient, a Receiver can be appointed by the Court for the management of the properties in suit. The words "just and convenient" have been interpreted by different Courts and in that connection following guidelines have been laid down, which have to be borne in mind at the time of appointing a Receiver:--

(i) The appointment of a Receiver pending a suit is a matter resting in the discretion of the Court.

(ii) The Court should not appoint a Receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.

(iii) Not only must the plaintiff show a case of adverse and conflicting claims to property, but also he must show some emergency or danger or loss demanding immediate action and of his own right, he must be reasonably clear and free from doubt. The element of danger is an important consideration.

(iv) An order appointing a Receiver will not be made, where it has the effect of depriving a defendant of a "de facto" possession, since that might cause irreparable wrong. It would be different, where the property is shown to be "in media", that is to, say, in the enjoyment of no one; and

(v) The Court, on the application made for the appointment of a Receiver, looks to the conduct of the party, who makes the application and will usually see that his conduct has been free from blame.

(vi) If it is shown that the interest of the person seeking the appointment of a Receiver is exposed to manifest peril, a Receiver has to be appointed.

Ram Kishore Das v. Balram Shah AIR 1978 Patna 210 and T. Krishnaswamy Chetty v. C. Thangavelu Chetty AIR 1955 Mad. 430 fol.

Lubna Awan, for Plaintiff.

Ghulam Abbas Pishori for Defendants Nos. 1 land 2.

Nemo for Defendant No.3.

Date of hearing: 28th May, 2002.

2005 Y L R 3271

[Karachi]

Before S. Ali Aslam Jafri and Gulzar Ahmed, JJ

TANVIR AHMED---Applicant

Versus

THE STATE and 9 others---Respondents

Criminal Miscellaneous Application No.96 of 2005, decided on 2nd August, 2005.

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

---- Ss. 7(e), 17 & 32---Penal Code (XLV of 1860), Ss.365-A, 193 & 194---Criminal Procedure Code (V of 1898), Ss.561-A & 476---Anti-Terrorism Court had directed the Inspector-General of Police for investigation and action according to law in the matter regarding the allegations of forgery, fraud and cheating committed by the complainant and his witnesses during the proceedings in the private complaint---Validity---Anti-Terrorism Court had the powers either to proceed itself .in appropriate cases against the person found to have committed perjury or to issue direction to police for investigation if the matter required further probe---No doubt, offences under Ss.193 and 194, P.P.C. were not Scheduled offences under the Anti-Terrorism Act, 1997, but according to its S.17 Anti-Terrorism Court could also try any offence other than the Scheduled offence with which the accused might have been charged under the Penal Code 1860 at the same trial---Offence tinder Ss.193 and 194, P.P.C. always tookplace either during or in relation to judicial proceedings---Provisions of the Criminal Procedure Code so far as the same were not inconsistent with the provisions of the Anti-Terrorism Act, 1997, had also been made applicable to the proceedings before the Anti-Terrorism Court under S.32 of the said Act and applicability of S.476, Cr. P. C. had not been specifically excluded or found to be inconsistent with the provisions of the said Act---Discretion exercised by the Trial Court for issuing direction to the Inspector-General of Police for investigation and action as per law, did not suffer from any illegality or irregularity as the matter required thorough probe and independent investigation by the competent agencies under the circumstances of the case---No prejudice had been caused to the applicant by such action of the Trial Court as he was not found to be involved in any such malpractice of forgery, fraud or cheating which allegedly had been committed by the complainant, witnesses and the investigating agencies as pointed out in the impugned judgment which did not call for any interference---Petition was dismissed in limine accordingly.

Khairdin v. The State PLD 1982 SC 291; Mst. Karim Khatoon v. The State PLD 1984 SC 44; Syed Abbas Raza Rizvi v. D.I.G. Lahore and others 1992 PCr.LJ 1548; Abdul Hakim v. The State 1994 SCMR 1103 and Muhammad Afzal v. The State 2001 SCMR 1615 ref.

Raja Qureshi for Applicant.

Date of hearing: 20th July, 2005.

2005 Y L R 3280

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

STATE (FEDERAL GOVERNMENT OF PAKISTAN) through The Collector of Customs (Preventive)---Appellant

Versus

ANWAR KHATTAK and another---Respondents

Special Criminal Acquittal Appeal No.29 of 1991 and C.M. A. No.481 of 2002, decided on 12th September, 2005.

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

----S.428---Additional evidence at appellate stage---Scope---Appellate Court can exercise its power under S. 428; Cr. P. C. only where the additional evidence was either not available at the trial, or the party concerned was prevented from producing the same either by circumstances beyond its control, or due to misunderstanding or mistake.

Barkat Ali v. Crown 1969 SCMR 448 and Ali v. Crown PLD 1952 FC 71 ref.

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

----S.428---Customs Act (IV of 1969), S.156---Additional evidence, production of---Prosecution could not produce the original confessional statements of co-accused at the trial on the basis of which they were convicted, for the reason that the same were not traceable and their production before Trial Court was beyond its control---Appellate Court should always keep in view that in criminal cases there is also a third party viz. the society and if any party was not able to produce any evidence at trial on account of circumstances beyond its control, production of which was necessary on the face of record, such additional evidence should be allowed to be produced---Bringing the said original confessions, on record was essential in view of the circumstances of the case---Prosecution was, consequently, allowed to lead the said additional evidence in the Special Court for onward transmission to High Court---Petition was allowed accordingly.

Muhammad Azeem v. the State Criminal Acquittal Appeal No.255 of 2002; Fazal Elahi v. Crown PLD 1952 Lah. 388; Muhammad Jaffer v. The State PLD 1959 Kar. 585; Muhammad Ismail v. The State PLD 1970 Kar. 261; Zulfiqar Ali Shah v. the State 1989 PCr.LJ 21; Akhtar Hussain v. Emperor AIR 1925 Pat. 526; State v. Jai Parkash AIR 1959 All 129; Ishwar Prasad v. Emperor AIR 1918 All. 133; Dildar v. The State PLD 2001 SC 384; Barkat Ali v. Crown 1969 SCMR 448 and Ali v. Crown PLD 1952 FC 71 ref.

Fariduddin and Mehmood Alam Rizvi, Special Prosecutor for Appellant.

Sami Ahmed Sami and Sohail Muzaffar for Respondents.

Date of hearting: 29th August, 2005.

2005 Y L R 3294

[Karachi]

Before Rahmat Hussain Jafferi, J

ABDUL SATTAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.140, M.As. Nos.1286, 510, 511 and 674 of 2005, decided on 4th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Bail, grant of---Further inquiry---Counter-cases between parties---Incident of both cases occurred in front of houses of complainant of each case as their houses were adjacent to each other---Allegation was that five persons had received injuries from the side of accused, whereas from the side of complainant four persons had received injuries---Allegation against accused persons was of causing Lathi injuries to the injured---Medical report showed that only one injury was found on person of the injured---In case of two counter-versions arising from sane incident, one given by complainant in F.I.R. and other given by opposite-party, question as to who was aggressor, was to be determined as a parry had a right of private defence---Bail, in circumstances could be granted on ground of further inquiry ---Accused were admitted to bail, in circumstances.

Shoaib Mehmood Butt v. Iftikhar ul Haq and others 1996 SCMR 1845 ref.

Abdul Sattar Soomro for Applicants.

Muhammad Mehmood Khan S. Yousfi A.A.-G for the State.

2005 Y L R 3305

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUSHTAQUE AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.4 and M. A. No. 19 of 2005, decided on 28th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 514---Imposition of penalty for standing surety for accused---Applicant stood surety for 14 accused persons and out of said 14 accused persons, 4 accused persons having absconded during trial, applicant/surety was saddled with penalty of Rs.50, 000 in respect of each of them---No separate proper order of forfeiture of surety bond was passed prior to issuance of notice under S.514, Cr.P.C. to the surety/applicant---Contention of police that no order showing reason for forfeiture of surety bond was required, was repelled---Notice served upon surety/applicant had shown that it was couched in a defective language which did not meet requirement contemplated under S.514, Cr. P. C.---Show­cause notice must be explained and must contain all material facts, details of accusations and specific clarifications---Accused who were facing trial, were acquitted after conclusion of trial as their guilt could not be established---Impugned order was set aside in circumstances.

Basharat Ahmed Jatt for Applicant.

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

Date of hearing: 28th July, 2005.

2005 Y L R 3306

[Karachi]

Before Rahmat Hussain Jafferi, J

ZAWAR alias MUHAMMAD RAMZAN---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.S-65 and M.A. No.1230 of 2005, decided on 7th July, 2005

Penal Code (XLV of 1860)---

----S. 331---Payment of Diyat---Applicant/ accused who failed to pay amount of Diyat on specified date was taken and remanded to judicial custody till payment of said amount---Validity---Trial Court before invoking penal provisions of S. 331, P. P. C. was required to have passed an order either to pay Diyat amount in lump sum or in instalments which could spread over a period of 3 years from date of judgment---If accused failed to pay Diyat or any part thereof, then he could be kept in jail till amount was paid---Court had further been given discretion to release accused on bail if he furnished security equivalent to amount of Diyat or any part thereof to the satisfaction of the Court---Trial Court in the present case had not passed any order directing accused to pay Diyat amount in lump sum or in , instalments, nor had fixed the time for payment of such amount without invoking provisions of subsections (1) & (2) of 5.331, P.P.C.---Accused/applicant, in circumstances could not be remanded to judicial custody---Impugned order of Trial Court being illegal and without jurisdiction, was set aside---Matter was remanded to Trial Court to pass an appropriate order within meaning of subsections (1) & (2) of 5.331, P.P.C. and then proceed further in accordance with law.

Sarfaraz Khan Jatoi for Applicant.

Muhammad Mahmood S. Khan Yousifi, A.A.-G. for the State.

2005 Y L R 3312

[Karachi]

Before Rahmat Hussain Jafferi, J

JAMAL -Applicant

Versus

THE STATE- -Respondent

Criminal Bail Application No. 179 of 2005, decided on 12th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Incident as alleged by complainant, appeared to have not taken place, but accused had been involved in the case falsely with mala fide intention---Such observation was supported by statements of all witnesses whose statements were recorded under S.161, Cr. P. C. ---Statements of said witnesses on oath under S.164, Cr.P.C. were recorded in which they disowned incident as alleged by complainant in F.I.R. and they exonerated accused from commission of crime---Accused being entitled to concession of bail, he was granted same, in circumstances.

Abdul Baqi Jan Kakar for Applicant.

Zubair Ahmed Rajput on behalf of Addl. A.-G. for the State.

2005 Y L R 3320

[Karachi]

Before Rahmat Hussain Jafferi, J

ALI KHAN alias KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 142 of 2005, decided on 7th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Doubt had been created about veracity of prosecution story, which could be thrashed out at time of trial, but presently case for bail had been made out---Police had no objection to grant of bail to accused---Bail was granted to accused, in circumstances.

Sher Muhammad K. Shaikh for Applicant.

Muhammad Mehmood Khan S Yousufi, A.A.-G.

2005 Y L R 3346

[Karachi]

Before Rahmat Hussain Jafferi, J

FAISAL---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-35 of 2002, decided on 12th July, 2005.

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

----S. 302(b)---Appreciation of evidence---Prosecution witnesses had no enmity with the accused, their testimony was unanimous, free from material contradictions and discrepancies and the same inspired confidence---Extrajudicial confession made by accused regarding the murder of the deceased committed by him was found to have been voluntarily made---Recovery of two Chuuries" from the place of incident had also supported the extra-judicial confession made by accused as being true---Accused had not taken any specific plea in his defence and simply stated in his statement recorded under S.342, Cr. P. C, that he had been involved falsely in the case---Conviction and sentence of accused were maintained in circumstances.

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

----S. 302(b)---Extra judicial confession---Credibility tests---Extrajudicial confession is a weak type of evidence---Three conditions are, however, required to be examined before relying upon extrajudicial confession, i.e., (i) the confession was made, (ii) the confession was voluntary and (iii) the confession was true.

Maqool Ahmed Awan for Appellant.

Muhammad Mahmood Khan Yousifi A.A.-G. for the State.

Date of hearing: 5th July, 2005.

2005 Y L R 3353

[Karachi]

Before Rahmat Hussain Jafferi, J

ABDUL RAHEEM and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.261 of 2005, decided on 6th July, 2005.

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Accused had allegedly fired two pistol shots at the injured prosecution witness in order to kill him---According to medical report the said witness had received only one fire-arm injury on his chest near the nipple---Out of two fire-arm shots one appeared to have hit the injured and the other appeared to have missed the target---Both the accused, however, had made an attempt to kill the injured who had sustained the injury on the vital part of his body---Case of accused, thus, fell within the prohibitory clause of S. 497(I), Cr. P. C. ---Bail was declined to accused in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/34 & 337-F(ii) --- Bail, grant of---Four persons were alleged to have caused "Lathi " injuries on the person of the injured witness, but he had received only one "Lathi" injury on his leg which was a non-vital part of the body---Said injury according to the Doctor would fall under 5.337-F(ii), P.P.C. which was punishable with three years' R.I---It was not known as to who had caused the said injury---Accused was admitted to bail in circumstances.

Ghulam Shabbir Dayo for Applicants.

Muhammad Mahmood S. Khan Yousufi, A.A.-G. for the State.

2005 Y L R 3357

[Karachi]

Before Rahmat Hussain Jafferi, J

ALI MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.247 of 2005, decided on 7th July, 2005.

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

-----S. 497---Penal Code (XLV of 1860), 5.302---Bail, grant of---Occurrence was an unwitnessed one---No eye-witness was available in the case---Suspicion shown by the deceased before his death against the accused and others and the recovery of hatchet from the accused, were corroborative pieces of evidence, but in an unwitnessed incident the same, in the absence of substantive evidence, would not disentitle the accused to benefit of bail---Said evidence against the accused would be thrashed out at the time of trial---Accused was admitted to bail in circumstances.

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

----S. 302---Appreciation of evidence---Principles---Corroborative and substantive pieces of evidence are to be read together---Corroborative pieces of evidence and the substantive pieces of evidence are to be read together and not in isolation from each other---Corroborative evidence without substantive evidence which it corroborates, is of no help to prosecution case.

Abdul Karim Noonari for Applicant.

Ghulam Shabbir Dayo for Complainant.

Muhammad Mehmood S. Khan Yousufi, A.A.-G. for the State.

2005 Y L R 3360

[Karachi]

Before Rahmat Hussain Jafferi, J

AIJAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-126 and M.A. No.426 of 2005, decided on 12th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497 --- Penal Code (XLV of 1860), S.393---Bail, refusal of --- Accused was alleged to have attempted to rob motor cycle of prosecution witness who had no grudge against accused---No motive existed for prosecution witness to falsely involve accused---Had police not intercepted, accused would have succeeded in robbing motor cycle---If accused of robbery were released on bail, then Society would feel unsafe---All prosecution witnesses had supported prosecution case---Reasonable grounds being available to believe that accused was guilty of the crime as alleged by prosecution, he was not entitled to concession of bail.

1999 PCr.LJ 308 ref.

Sher Muhammad Shar for Applicant.

Zubair Ahmed Rajput for the State.

2005 Y L R 3365

[Karachi]

Before Rahmat Hussain Jafferi, J

AMANULLAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-664 of 2004 and M.As. Nos.1291 and 2273 of 2005, decided on 5th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, refusal of---Police arrested four accused persons who were required in some cases---Several persons armed with deadly weapons came out from the village and accused were among those persons---General allegation was that cell said persons fired at police party in order to rescue their companions who were arrested by police and in doing so they were successful in getting three of them released from police---Encounter with police continued for one hour---Arrested accused ran away, but police arrested them again and pistols and bullets were secured from them---All prosecution witnesses had supported prosecution case---Empties lying at place of incident were secured---From all said facts, it was clear that prima facie case had been made out against accused and reasonable grounds were for believing that they were not entitled to concession of bail---Bail application was dismissed, in. circumstances.

Zulfigir Ali Jatoi for Applicants.

Muhammad Mahmood Khan Yousifi A.A.-G. for the State.

2005 Y L R 1

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. KHAIRAN and 4 others---Petitioners

Versus

GHULAM MUSTAFA and 3 others---Respondents

Civil Revision No.1582 of 2004, heard on 28th September, 2004.

Civil Procedure Code (V of 1908)---

----O. XLI, R.31---Punjab Pre-emption Act (IX of 1991), S.13---Judgment in appeal--­Operative part of the judgment revealed that evidence on record was not reappraised by the First Appellate Court--­Judgment of the Trial Court was upheld without application of judicial mind--­Appellate Court had countersigned the judgment of Trial Court which was not in consonance with law---Case was remanded to the Appellate Court to be decided afresh after reappraisal of evidence.

Ghulam Mohy-ud-Din's case PLD 1964 SC 829; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158; Kanwal Nain's case PLD 1983 SC 53; Shaukat Nawaz's case 1988 SCMR 851 and Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 quoted.

Irshad Ahmad Qureshi for Petitioners.

Ch. Hafeez-ur-Rehman for Respondents.

Date of hearing: 28th September, 2004.

2005 Y L R 12

[Lahore]

Before Muhammad Muzammal Khan, J

LIAQAT ALI and 8 others---Petitioners

Versus

ABDUL AZIZ and 3 others---Respondents

Civil Revision No. 1442 of 2000, heard on 23rd September, 2004.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17, 79 & 117---Specific performance of agreement to sell ---Document--­Execution---Burden of proof---Defendants had denied execution of the agreement to sell, it was obligatory for the beneficiary of the transaction to prove bargain and execution of the agreement.

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 and Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 17 & 79---Specific performance of agreement to sell ---Document---Execution--­Proof of document---None of the witnesses had uttered a word regarding bargain of sale and their deposition was also silent about the transaction struck between the parties---No evidence was available with regard to payment and in spite of mortgage of land, title of the same could have been transferred by the owner in favour of the prospective purchaser---No sale-deed or receipt was executed at the time of payment of entire consideration---Matter was not reported to Patwari---Specific date for performance was provided with penal consequences---Time fixed was not relaxed or extended by any settlement oral or written---Suit was not fled just after the time fixed in the agreement but was filed after a lapse of 23 years---Courts below had rightly appraised the evidence of the parties and returned the findings in consonance thereof which was neither misread nor non-read---No illegality or irregularity was committed---Revision was dismissed in circumstances.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Specific performance of agreement to sell---Limitation---Agreement envisaged specific date for its perfor­mance ---Time fixed in the agreement was never relaxed or extended---Limitation had started running from the date mentioned in the agreement i.e. 31-5-1971---Suit filed beyond 31-5-1974 was patently beyond limitation.

Ghulam Nabi Bhatti for Petitioners.

Ch. Nazar Ahmad Kamboh for Respondents.

Date of hearing: 23rd September, 2004.

2005 Y L R 16

[Lahore]

Before Asif Saeed Khan Khosa and Sardar Muhammad Aslam, JJ

IJAZ-UD-DIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.970 of 2003, heard on 25th October, 2004.

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

----S. 9(a) (c)---Criminal Procedure Code (V of 1898), S.516-A---Appreciation of evidence---Destruction of remaining quantity of narcotics---Allegation against accused was that 20 K.G. Charas was recovered from his possession---Out of said recovered quantity of narcotics 20 grams were separated and were sent to Chemical Examiner and remaining 19.980 K. G. was to be destroyed---Special Judge on application filed under S.516-A, Cr. P. C. by Assistant Director/Inspector Anti-Narcotic Force for destruction of remaining quantity of narcotics, directed issuance of notice to accused---Without effecting service of accused or his counsel, on an other application of Anti-Narcotic Force, the Court shortened date of hearing already fixed and passed order for destruction of crime property and same was destroyed in absence of accused and his counsel---Once a notice was issued to accused, Court was bound to provide accused a right of hearing---Decision in absence of either accused or his counsel could not be blessed with sanctity---Remaining quantity of narcotics which was destroyed in absence of accused, was not produced in trial which was fatal to prosecution case and conviction could not be based in absence of crime property in Court unless same had been destroyed in accordance with law--­Prosecution, in circumstances, had failed to prove its case against accused under S.9(c) of Control of Narcotic Substances Act, 1997---Evidence in regard to recovery and taking of samples of 20 grams for Chemical Examiner, however stood proved by prosecution witness who had no enmity with accused---Case of prosecution having been proved against accused to the extent of 20 grams of Charas accused was liable for that quantity under S. 9(a) of Control of Narcotic Substances Act, 1997 which was punishable with 2 years' R.1. and accused was behind the bars for the last 5-1 /2 years--­Conviction and sentence of imprisonment of accused under S. 9(c) of Control of Narcotic Substances Act, 1997 including sentence of fine, were set aside and he was convicted under S.9(a) of the Act and he having already remained behind the bars for 5-1/2 years and served more sentence than awarded under said section, was ordered to be released.

Nawab Ali v. The State 1995 P.S.C. (Criminal) 246 and Muhammad Ibrahim v. The State 1996 PCr.LJ 1446 ref.

Ch. Abdul Rashid for Appellant.

Muhammad Sharif for A.N.F. for the State.

Date of hearing: 21st and 25th October, 2004.

2005 Y L R 22

[Lahore]

Before Maulvi Anwarul Haq, J

AHMAD YAR and others------Petitioners

Versus

NOOR MUHAMMAD through Legal Representatives and others---Respondents

Civil Revision No.781 of 1986, heard on 23rd June, 2004.

(a) West Pakistan Muslim Personal Law (Shariat) Application. Act (V of 1962)-----

----Ss. 3 & 4---Muslim Family Laws. Ordinance (VIII of 1961), Preamble--­Succession by agricultural custom--­Limited owner---Pedigree table---Collateral Successsion--- "Riwaj-i-am "--- Propositus died issueless and was governed by the agricultural custom in the matter of succession---Pedigree table drawn in the plaint was not disputed---Defendant female got property under custom as a representative under principle of representation till her marriage---Defendant got married before the coming into force of the Muslim Family Laws Ordinance, 1961---Defendant thus lost her right to property under custom and her limited estate therefore terminated and property reverted to last male holder to be inherited by his surviving son.

(b) Riwaj-i-Am of Multan District---------

----Presumption---All the tribes were consulted at the time of preparation of the "Riwaj-i-am "---Initial presumption arises that a member of a tribe is governed by custom.

Mst. Shahzadan Bibi and others v. Amir Hussain Shah PLD 1956 SC 227 quoted.

(c) Custom (Punjab)---

---- Order of succession---Succession in the first place goes to the sons and their direct male lineal decendants and failing them, to the widows for lives and, in the latter's absence to unmarried daughters until marriage, and failing them to the collaterals within four degrees, among whom the right of representation exists, all heirs sharing equally by degrees---Sex was no bar in the matter of entitlement to represent the estate in the said degrees.

Mian Shamasul Haq Ansari for Petitioners.

Malik Iqbal Rasul and Mirza Aziz Akbar Baig for Respondents.

Date of hearing: 23rd June, 2004.

2005 Y L R 25

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ANJUMAN AHL-E-HADITH, KHANEWAL through Amir of the Anjuman---Petitioner

Versus

RENT CONTROLLER/SENIOR CIVIL JUDGE, KHANEWAL and another---Respondents

Writ Petition No. 1204 of 2004, heard on 26th May, 2004.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Maintainability ---Default---Jurisdiction---Default in payment of rent as directed by the Rent Controller was a willful default and the same was amenable in Constitutional jurisdiction as the orders passed in violation of S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 were treated as final.

2002 CLD 1407; PLD 1964 (W.P.) Pesh. 101 and PLD 1966 (W.P.) Pesh. 119 distinguished.

Muhammad Jahangir v. Muhammad Abbas and 2 others 2002 CLC 538; 1996 CLC 1616; 1990 SCMR 557; PLD 1970 Lah. 140 and 1981 SCMR 276 quoted.

PLD 2003 SC 228 mentioned.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Default---Striking off defence---Rent Controller had passed order in presence of parties---Respondent was bound to deposit the amount of future rent before 15th of each month but he failed to comply with the same---Respondent moved application for permission to deposit rent, which he deposited on 17th of that month---Said application was allowed without any speaking order---Plea of illness was not mentioned in the application which was found to be afterthought---Order passed by the lower Court was against the settled principles of law laid down by the superior Courts---Such order being not maintainable was set aside---Defence of the respondent was struck off and ejectment order was passed against him in circumstances.

2002 CLD 1407; PLD 1964 (W.P.) Pesh. 101 and PLD 1966 (W.P.) Pesh. 119 distinguished.

Muhammad Jahangir v. Muhammad Abbas and 2 others 2002 CLC 538; 1996 CLC 1616; 1990 SCMR 557; PLD 1970 . Lah. 140 and 1981 SCMR 276 quoted.

PLD 2003 SC 228 mentioned.

Ch. Abdul Sattar Goraya for Petitioner.

Mian Anwar Hussain for Respondent No.2.

Date of hearing: 26th May, 2004.

2005 Y L R 29

[Lahore]

Before Mian Hamid Farooq, J

FARAH CHAUDHRY and 2 others---Petitioners

Versus

SHAHID MAHMOOD MALIK and 7 others---Respondents

C.Rs. Nos.2584, 2585, 2586 and 2587 of 2001, decided on 22nd April, 2004.

(a) Muslims Family Laws Ordinance (VIII of 1961)-----

----Ss. 1 & 4---Civil Procedure Code (V of 1908), S.115---Inheritance of daughter of predeceased son ---Non-Muslims-- Provisions of Muslims Family Ordinance, 1961---Applicability---Parties were Ahmadi by faith and respondent was daughter of a pre-deceased son of the owner of the property---Dispute was with regard to entitlement of the respondent in the property left by her grandfather---Plea raised by the petitioner was that provisions of S.4 of Muslims Family Laws Ordinance, 1961, were not applicable to the parties as they were not Muslims by faith---Validity--As the parties were Ahmadi by faith, therefore, provisions of Muslims Family Laws Ordinance, 1961, were not applicable to them---Order of Appellate Court granting inheritance to favour of the respondent under S.4, Muslims Family Laws Ordinance, 1961, was against the law and the same was set aside---Revision was allowed accordingly.

Muhammad Rashid Ahmad v. Mst. Musarat Jehan Begum 1986 MLD 1010 rel.

(b) Inheritance-----

---- Fiqa Ahmadia, Cl. VI, Chap. 4 & 13--­Inheritance---Daughter of pre-deceased son---Entitlement--When no other son and daughter of prepositus is alive, the daughter of pre-deceased son can inherit under Cl.IV of Chap. 4 of Fiqah Ahmadia--­Qazi can give estate to orphan to the extent of 1/3rd share under Cl.VI of Chap. 13 of Fiqah Ahmadia provided it does not cause any loss to the other legal heirs---Provision of Cl. VI of Chap. 13 of Fiqah Ahmadia relates to paternal grand-son or maternal grand-son and not to grand-daughter.

Jahangir A. Jhojha for Petitioners.

Ch. Masud Abid Naqvi for Respondents.

2005 Y L R 34

[Lahore]

Before Muhammad Muzammal Khan, J

ANSAR MEHMOOD---Petitioner

Versus

ALLAH BAKHSH and another---Respondents

Criminal Miscellaneous No. 1255/CB of 2004, decided on 27th October, 2004.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/148/149/34---Bail, cancellation of---Firing of accused resulted in death of two human beings---Trial Court while granting bail did not advert to vicarious liability of accused which he had earned on account of his sharing common intention in furtherance of common object/motive of killing---Any fire-arm injury to any of deceased could not have been attributed to accused, but by virtue of S. 34, P.P.C., he was vicariously liable for the acts done by his companions---Case against accused, in circumstances was fully covered by prohibitory clause of S. 497, Cr. P. C. disentitling him the concession of bail, especially at initial stage of investigation--­Real son of accused and his other co­ accused were still absconding, which could not be of much value, but was yet a circumstance that should have been considered by Trial Court at the time of granting bail---Accused had -intentionally committed heinous offence with a motive and earned his release by entering into a compromise with one of eye-witness at the back of heirs of .two deceased---Actual participation, nomination and sharing common intention of co-accused were not denied by accused depriving him from concession of bail---Accused was not entitled to grant of post-arrest bail, which had erroneously been granted to him by Trial Court---Bail granted to accused was cancelled.

Ali Hassan v. Haji Khamiso and 2 others 1986 PCr.LJ 21; Muhammad Akram v. The State and another 2004 PCr.LJ 1791; Muhammad Jahangir v. Kala Khan and another 2004 PCr.LJ 1843 and Sultan Ahmad v. Mushtaq Ahmad and 3 others 2004 PCr. LJ 1772 ref.

Malik Jamil Akhtar for Petitioner.

Raja Nasir Mahmood for Respondent No.1.

Sardar Liaqat Ali for the State with Sarfraz Hussain, S.-I., Police Station Pind Dadan Khan, Jhelum.

2005 Y L R 39

[Lahore]

Before Maulvi Anwarul Haq, J

AMEER through Legal Heirs and 8 others---Petitioners

Versus

GHULAM ALI ---Respondent

Civil Revision No. 1064 of 2002, heard on 13th May, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahdat (10 of 1984), Art. 64---Civil Procedure Code (V of 1908), S.115---Suit for declaration of title--­Opinion about relationship---Mutation of inheritance, challenged---Sister of plaintiff died unmarried and after her death, the plaintiff claimed to be the owner of land owned by her---Defendant asserting himself as son of the deceased sister of plaintiff got the mutation of inheritance attested in his favour---Witnesses produced by defendant were from different caste and did not know where the defendant was born, nor they knew where the father of defendant had died---Trial Court decreed the suit but Appellate Court allowed the appeal and dismissed the suit---Plea raised by plaintiff was that defendant failed to prove his relationship with deceased sister of plaintiff---Validity---Opinion expressed by conduct of any person who had special means of knowledge about the relationship, was relevant under Art. 64 of Qanun-e­-Shahdat, 1984---Opinion of competent witness must be "expressed by conduct" otherwise same would be irrelevant---In order to lay foundation for admission of evidence of such kind all necessary ingredients of Art.64, Qanun-e-Shahdat, 1984, must be brought out positively--­Appellate Court had acted with material irregularity in exercise of its jurisdiction while failing to read the evidence on record and to take note of applicable law--­Judgment and decree passed by Appellate Court was set aside and the one passed by Trial Court was restored--­Revision was allowed in circumstances.

Ghulam Muhammard and another v. Allah Yar and others PLD 1965 Lah. 482 and Lakshmi Reddi v. Venkata Reddi AIR 1987 (???) PC 201 ref.

Mian M. Hanif for Petitioners.

Shaukat Hussain Khan Baloch for Respondent.

Date of hearing: 13th May, 2004.

2005 Y L R 43

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASLAM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KOT ADDU and 2 others---Respondents

Writ Petition No.3516 of 2002, heard on 18th May, 2004.

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

----S. 14--Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appeal against decree for recovery of dower amount---Value of appeal for purposes of court fee and jurisdiction was fixed at Rs.7 lac---Appellant sought withdrawal of appeal due to lack of pecuniary jurisdiction--­Appellate Court returned appeal for its presentation before High Court ---Validity--­According to S.14(1) (b) of West Pakistan Family Courts Act, 1964, appeal against decision or order passed by Family Court would lie before District Judge, and where Family Court was presided over by District Judge or Additional District Judge or any officer of same status, then appeal would lie before High Court under subsection (a) thereof---Regarding maximum valuation of amount of decree for purpose of appeal, there was no mention in S.14 of the Act--­Appeal against decree for dower or dowry not exceeding Rs.30,000 were barred by S.14(2) (b) of the Act---Appellant's request was not an unconditional request for withdrawal of appeal, thus, before accepting same, Appellate Court was bound to apply correct law and judicious mind to the question of its jurisdiction---Such appeal before District Judge was competent, which could not be returned on such request---Appellant had a. statutory right of appeal against such decree--­Appellant had been ill-advised, thus, he could neither be deprived of passing decision on appeal on merits by Court of competent jurisdiction nor non-suited merely on technical reasons---High Court accepted Constitutional petition, set aside impugned judgment and remanded case to District Judge for decision of appeal on merits.

(b) Administration of justice-----

---- Technicalities should not stand in the way of disposal of cases on merits.

Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and others PLD 1994 Lah. 3; Dr. Zia Suleman Farooqi v. Punjab Public Service Commission and others PLD 1994 Lah. 55; Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Ittefaq Foundary v. Federation of Pakistan PLD 1990 Lah. 121; Lt.-Col. Mohsin Shah v. Mst. Qaseema Wahid and 4 others PLD 1995 Lah. 385 and Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 rel.

Sardar Tariq Sher Khan for Petitioner.

Amin-ud-Din Khan for Respondent No.3.

Date of hearing: 18th May, 2004.

2005 Y L R 51

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

NADEEM WALI---Petitioner

Versus

SPECIAL JUDGE, ANTI­ TERRORISM COURT No.4, LAHORE and another---Respondents

Writ Petition No. 18055 of 2004, decided on 2nd November, 2004.

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

----S. 540---Penal Code (XLV of 1860), Ss.365-A/109/34---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Summoning persons as defence witnesses---Two persons who were examined as prosecution witnesses, had been sought by petitioner/accused to be summoned as defence witnesses---Petitioner in his application for summoning said persons, had not mentioned the necessity causing him to re-examine said persons as defence witnesses---If any clarification yeas to be sought by examining said prosecution witnesses as defence witnesses, why it had not been done when said witnesses were available to him for purposes of cross­ examination---Case was at the stage of final arguments and date of hearing had been fixed---Application of petitioner made for summoning said persons was vague and did not contain any reason for re-summoning of them as defence witnesses and it seemed to accomplish hidden intention of petitioner to delay conclusion of trial one way or the other---Trial Court had rightly dismissed said application and order of dismissal could not be interfered with by High Court in Constitutional jurisdiction.

(b) Administration of justice---

----Justice was to be done evenhandedly--­Justice should not lean in favour of one side, its scale should weigh equally to all sides.

(c) Criminal trial---

----Delay in trial---Unnecessarily prolonged trial in a way would defeat the ends of justice.

Munir Ahmad Bhatti, Advocate.

2005 Y L R 57

[Lahore]

Before Khawaja Muhammad Sharif, J

TARIQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.369/J and 410/J of 2002, heard on 23rd July, 2004.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 380---Appreciation of evidence---Matter though was reported to police promptly, but no description of accused whatsoever was given in F.I.R. what to talk of name of the accused---Both, complainant who was brother of deceased and other prosecution witness who was first cousin of deceased, were not residents of the house where occurrence had taken place, but had their independent houses and in normal course of nature, they should have been present in their own houses at such odd hours of night---Presence of said prosecution witnesses at the spot at the time of occurrence could not be believed--­Statement of wife of deceased was recorded by police after seven months of the occurrence---Said lady had not even told any source from where she came to know about the names of accused---Lady had failed to identify accused ~ in the identification parade---Statement of the lady thus had no value in the eye of law--­Evidence of wife of deceased, therefore, was ruled out of consideration---No crime empty having been recovered from the spot, recovery of rifle on the pointation of accused was of no consequence---Case against accused being of doubtful nature, conviction and sentence recorded against them were set aside extending them benefit of doubt and they were acquitted of the charge against them.

Barrister Sulman Safdar for Appellants.

Rana Javed Anwar Khan for the State.

Date of hearing: 23rd July, 2004.

2005 Y L R 60

[Lahore]

Before Muhammad Muzammal Khan, J

SHOUKAT HAYAT---Petitioner

Versus

LIAQUAT KHAN---Respondent

Civil Revision No.234-D of 2001, heard on 9th September, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 31---Pre-emption Suit---Notice by Officer registering the sale-deed or attesting the mutation---No notice in terms of S.31 of the Punjab Pre-emption Act, 1991 was issued by the concerned Revenue Official---Plaintiff had denied the notice and had asserted that the mutation was stealthily got sanctioned---Plaintiff could not be assumed to have notice of the mutation.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 distinguished.

(b) Punjab Pre-emption Act (IX of 1991)---------

--------S. 13---Making of Talbs---Contradictions---Talb-e-Muwathibat---Witnesses were absolutely unanimous about the date, time and place of gaining knowledge and making of Talb-e-Muwathihat --- Attempt to dig out contradictions in their statements was of no avail---No such contradiction was going to the roots of the case---Statements were recorded after lapse of two years--Minor contradictions were neither material nor had negated the effect of their assertive statements.

Abdul Qayyum (deceased) through L.Rs. v. Mushk-e-Alam and another 2001 SCJ 361 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

----S.13---Qanun-e-Shahadat (10 of 1984), Arts. 72, 164 & 129---Making of Talbs--­Notice---Proof of document---Production of evidence becoming available because of modern devices---Presumptions---Photostat copy of the notice carried the original signatures of the executant and witnesses--­Such copy shall be considered as original document---Postal receipt was produced to prove dispatch of notice of Talb-e-Ishhad--­Receipt was duly proved by witness---Such notice under ordinary course of events shall be presumed to have reached the destination and distributed.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 84(2)---Proof of notice---Visual comparison---Illegality or irregularity--­Signatures on the acknowledgment receipt resembled with signatures on written statement---Delivery of notice was proved to the hilt ---Talbs were proved by positive evidence---View taken by Appellate Court was absolutely in consonance with the record and did not suffer from any illegality or irregularity amenable to revisional jurisdiction---Revision petition was dismissed in circumstances.

Zaheer Ahmed Qadri for Petitioner.

Syed Abdul Aziz Shah for Respondent.

Date of hearing: 9th September, 2004.

2005 Y L R 64

[Lahore]

Before Muhammad Farrukh Mahmud, J

FALAK SHER--------Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No, of 2004, heard on 2nd June,2004.

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

----Ss. 540 & 439---Penal Code (XLV of 1860), Ss. 302/148/149--- Application for summoning material witness---Dismissal of application---Application for summoning DSP who, at relevant time, was Investigating Officer and had recorded statements of certain witnesses, having been dismissed by Trial Court, petitioner filed revision against such order ---DSP sought to be examined admittedly had recorded statements of certain prosecution witnesses including those who were produced before the Court and copies of their statements were also distributed to petitioner by Trial Court itself---Trial Court had overlooked the fact that petitioner could take no advantage of confrontation of said witnesses who had been confronted with their statement by the DSP, until and unless such statements were put to Investigating Officer who had recorded the same---Name of the DSP was mentioned in list of witnesses in challan, it was essential for just decision of case that statement of the DSP should be recorded as, a Court witness---No prejudice would be caused to respondent/complainant as he would be within his right to cross­ examine said witness---Order dismissing application of petitioner for summoning DSP was set aside---Trial Court would summon the DSP as a Court witness for just decision of case.

Darghahi and others v The State PLD 1958 (W.P.) Lah. 300 ref.

Sardar Muhammad Shamim Khan for Appellant.

Pir Sher Shah for the State with Israr Ali, S.-I.

Zahid Rehan Tayyab for Respondent No.3.

Date of hearing: 2nd June, 2004.

2005 Y L R 77

[Lahore]

Before Muhammad Muzammal Khan, J

AKHTAR NAWAZ and another---Petitioners

Versus

MUHAMMAD NAZIR and 3 others---Respondents

Civil Revision No. 1560 of 2003, decided on 2nd July, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R.4 ---Suit for pre-emption --­Making of Talbs---Talb-e-Muwathibat--­Talb-e-Ishhad--- Particulars of time, date and place in pleadings---Particulars of time of knowledge and name of informer and particular place where the party was sitting was not mentioned in the plaint--­Improvements were made at trial---Presence of witnesses at the time of Talb-e­Muwathibat was not mentioned in the paint---Discrepancies - and contradictions existed in the statements of witnesses---No misreading or non-reading having been noticed Courts below had reached correct conclusion in dismissing the suit---Revision petition was dismissed in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)-----

----S. 13(3)---Suit for Pre-emption---"Talb­e-Ishhad"--- Delivery of registered letters--­Plaintiffs produced postman, who deposed that acknowledgment receipts were signed/thumb-marked by the defendants--­Defendants had rebutted such evidence by producing Finger Print Expert from Forensic Science Laboratory, to disprove his report---Specimen signatures and thumb-impressions were not identical--­Notices of "Talb-e-Ishhad " as alleged, held, were not delivered to the defendants in circumstances.

(c) Punjab Pre-emption Act (IX of 1991)-----

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 76---Suit for pre-emption--­Notice of Talb-i-Ishhad---Proof---Secondary evidence---Photocopies of the notices were exhibited without bringing on record their originals---Notices to produce the originals were not issued---Permission to produce secondary evidence was not sought---Notice of "Talb-e-Ishhad " was not proved in circumstances.

Mst. Amir v. Soini 1997 MLD 2376; Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292; Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409; Hayatullah Jan and others v. Jan Alam and others 2003 MLD 625 and Ghulam Abbas v. Manzoor Ahmed and another PLD 2004 Lah. 125 ref.

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

----S. 115---Revision---Courts below had returned findings in support of their judgments and decrees strictly in consonance with the evidence on the file, without misreading or non-reading of same---No illegality or irregularity, envisaged by S.115, C. P. C. having been committed no interference in revisional jurisdiction was called for.

S.M. Tayyab for Petitioners.

Malik Muhammad Qasim Joiya for Respondents.

Date of hearing: 24th June, 2004.

2005 Y L R 82

[Lahore]

Before Mian Hamid Farooq, J

Mst. SAJIDA PARVEEN AKHTAR---Petitioner

Versus

MUHAMAMD KHALID JAVED and 3 others---Respondents

Civil Revision No.1576 of 1981, heard on 28th July, 2004.

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

----O. XLI, R.20 & S.115 --- Suit for declaration ---Impleading of parties in appeal revision---Exclusion of necessary party---Neglect---Persons impleaded in appeal were not impleaded in revision petition---Petitioner did not take any steps to implead the said persons during the last twenty three years---High Court refused to excuse the neglect ---Necessary parties were not impleaded---Conduct of petitioner amounted to contumacious neglect ---Non ­impleading of the necessary parties was fatal to the proceeding's---Revision petition was dismissed in circumstances.

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

---O. VI, R.7---Pleadings---Departure--­Litigant cannot be allowed to raise a new ground of attack or defence before the Appellate or Revisional Court.

Shah Muhammad and others v. Muhammad Bakhsh PLD 1972 SC 321 ref.

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

----S. 115---Findings on question of fact---Revisional jurisdiction---Findings on questions of fact or law recorded by the Courts of competent jurisdiction could not be interfered in revisional jurisdiction unless those findings suffered from jurisdictional defeat, illegality or material irregularity.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610 rel.

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

----S. 115---Concurrent findings of facts—Revisional jurisdiction---Concurrent findings of facts based on evidence are not liable to be interfered with in exercise of jurisdiction under S.115, C. P. C.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

M.A. Hamid Awan for Petitioner.

Khan Muhammad Bajwa for Respondents.

Date of hearing: 28th July, 2004.

2005 Y L R 86

[Lahore]

Before Muhammad Farrukh Mahmud, J

LIAQAT and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.90 and 248-J of 2001, heard on 26th July, 2004.

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

----Ss. 302/324/148/149---Appreciation of evidence---Accused persons did not cause any injury to deceased or to any of prosecution witnesses---Role assigned to accused persons was that when deceased fell on the ground they along with other co­ accused resorted to aerial firing---Principal accused who had effectively fired had absconded during trial and the other one died before conclusion of trial---Three prosecution witnesses had been disbelieved qua the acquitted accused ---Validity--­Accused could be convicted on the same evidence only if strong independent incriminating evidence was available against them---Trial Court had convicted accused for two reasons; (i) that according to statement of Investigating Officer accused were found to be involved in the case during investigation; and (ii) that as admissible under any provisions of Qanun­e-Shahadat Order 1984 and as per second reason with regard to recovery of weapon, Trial Court had failed to notice that alleged recovered Guns were never sent to Forensic Science Laboratory---No opinion was on record as to whether recovered guns were in working condition or not, therefore, no reliance could be placed on the evidence of recovery---Judgment passed by Trial Court also suffered from discrimination as co­ accused who was convicted for same offence, was sentenced to the period already served out by him in jail during trial, while accused were sentenced to undergo imprisonment for life---Judgment of Trial Court was set aside and accused were acquitted of charges and were ordered to be released.

Darghahi and others v. The State PLD 1958 (W.P.) Lah. 300 and Nasir Abbas v. The State 1995 SCMR 1333 ref.

A. R. Tayyab for Appellant.

Ahmar Saeed Jillani for the State.

Date of hearing: 26th July, 2004.

2005 Y L R 90

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

NAZIR AHMAD and another---Appellants

Versus

THE STATE ---Respondent

Criminal Appeals Nos.254; 429 and Murder Reference No.97 of 2000, heard on 21st July, 2004.

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

----Ss. 302/109/34---Appreciation of evidence---Complainant and prosecution witness had rendered consistent account of occurrence and they were unanimous on major details of incident such as date, time, venue and manner of its happening and accused's side did not throw any serious challenge to their testimony---Said witnesses, though were related inter se being paternal cousins to each other, but that itself was not sufficient to view their testimony with suspicion---Presence of eye­witnesses at the spot at the relevant time had fully stood explained and there was no reason to doubt the same---Witnesses, though were not residents of the place of occurrence, but cause of their presence there, satisfactorily stood explained on the record---Testimony of said witnesses, had inspired-confidence---Incident was a broad daylight occurrence and parties were known to each other being related inter se---No mistake, in circumstances could be with eye-witnesses about identity of accused--­Report regarding incident was made at Police Station with quickest dispatch and promptitude and said promptitude and dispatch in report of incident to police was highly suggestive of fact that eye-witnesses were present at the spot and they had witnessed occurrence---Two police officials had given account of recovery of offensive weapons from accused---Nothing was in their evidence to say that they had deposed falsely on that account---Witnesses, though were police officials, but that itself was not enough to discredit them in their testimony as said officials were as good witnesses as other witnesses and they had no motive to plant recoveries upon accused---Report of Forensic Science Laboratory - had established that offensive weapons recovered from accused had matched with crime empties recovered from the spot--­Such fact was sufficient confirmation that accused had used said weapons in firing at deceased---Motive set up by prosecution was almost admitted---Medical evidence had supported fully the testimony of prosecution witnesses---Accused did not seriously challenge Doctor as regards injuries attributed to them---Guilt of two accused had fully been proved and impugned judgment of their conviction and sentence was not open to any valid exception and was maintained except to the extent that sentence of one of said accused would be treated as death by way of Ta'zir and not Qisas because of fact that requisite proof for penalty as Qisas was not available in the case---Appeal to extent of said accused was dismissed.

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

----Ss. 302/109/34---Appreciation of evidence---Medical evidence had not fully supported ocular account as regards co ­accused (third accused in case)---Medical testimony had also not supported role ascribed to said co-accused in commission of crime as narrated by eye-witnesses---No matching report was available to prosecution regarding rifle allegedly recovered from said co-accused---Recovery of criminal weapon from said co-accused was inconsequential, in circumstances and it carried shadow of doubt qua his culpability in the matter ---Co-accused did not have any direct concern with motive of abduction of mother of accused and he possibly had been involved in case due to his relationship with said accused--­Question of said co-accused with regard to his involvement in case had remained unproved---Impugned judgment to the extent of conviction and sentence of co-accused was not liable to be maintained---Appeal was accepted to the extent of said co ­accused and he was acquitted of charge giving him benefit of doubt and he was set at liberty---Murder reference to his extent was answered in negative.

Muhammad Shan Gul and Muhammad Amir Khan Niazi for Appellants (in Criminal. Appeal No.254 of 2000).

Zahid Hussain Khan for appellants (in Criminal. Appeal No.429 of 2000).

Fazal Hussain Jaafri for the State.

Syed Imdad Hussain Hamdani for the Complainant.

Date of hearing: 21st July, 2004.

2005 Y L R 99

[Lahore]

Before Syed Jamshed Ali, J

Mahr ANWAR ALI ---Petitioner

Versus

D.C.O. JAHNG and 3 others---Respondents

Writ Petition No.11667 of 2003, heard on 12th October, 2004.

(a) Punjab Local Government Ordinance (XIII of 2001)-----

----S.92(S)---Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003, R.13(8)---No­ confidence motion---Decision on such motion in meeting---Validity---No further. approval of proceedings of such meeting would be required---Fresh deliberations and debate on earlier decision and concluded proceedings would be against the expfe3s intention of legislature and would not be in public interest.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S.92(4)---No-confidence motion- -Casting vote of Nazim in favour of such motion---Not required for approval of majority of members.

(c) Punjab Local Government Ordinance (XIII of 2001)---

----S.92(S)(6)---Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003, R.13(8)---No­ confidence motion---Result of approval of such motion would be notified by District Government, but not of its failure--- Duty Of Election Authority to issue notification giving effect to provisions of S.92(5) of Punjab Local Government Ordinance, 2001.

Ch. Muhammad Masud for Petitioner.

Mian Muhammad Sikandar and Aamir Rehman Addl. A.-G. for Respondents Nos.3 and 4.

Date of hearing: 12th October, 2004.

\2005 Y L R 101

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAFI --- Petitioner

Versus

MUHAMMAD ISLAM and another ---Respondents

Criminal Revision No.1076 of 2003, decided on 25th March, 2004.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 439---Juvenile Justice System Ordinance (XXII of 2000), S. 2(b)---Age of accused---Determination of---Claim of accused that he was child within the meaning assigned to the words in the Juvenile Justice System Ordinance, 2000, had been disputed by petitioner/ complainant---Petitioner/complainant had produced birth entry of accused according to which accused was more than 18 years of age at the time of alleged incident---Trial Court relying on report of Medical Board declared accused to be Juvenile at the time of occurrence and dismissed application of complainant for summoning of record of Form of accused from National Registration Office concerned---Accused had claimed that opinion of Medical Board was more preferable than the birth record for determining the question of juvenility of accused---Trial Court taking into consideration report of Medical Board observed that accused was child, but had not considered birth entry of accused produced by complainant---Trial Court was required to give finding about acceptability or otherwise of birth entry of the accused, but it had not done so---Question of age of accused having been resolved without taking into consideration birth entry of accused, order of Trial 'Court was liable to be interfered with---Order of Trial Court was set aside in revision with direction to Trial Court to decide matter regarding age of accused afresh in the light of material produced by parties before it in accordance with law.

Malik Muhammad Imtiaz Mahl for Petitioner.

Hasnat Ahmad Khan for Respondent No. 1.

Sh. Mumtaz Ali for Respondent No.2/The State.

2005 Y L R 106

[Lahore]

Before Ijaz Ahmad Chaudhry, J.

MANAN FEROZ ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and 2 others—Respondents

Writ Petition No.5412 of 2003, heard on 21st April, 2004.

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

----S.5 & Sched. ----Contract Act (IX of 1872), S.25---Limitation Act (IX of 1908), Art. 104----Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of past maintenance---Husband through compromise arrived at during earlier proceedings undertook to pay to wife past maintenance for period more than three years---Wife on basis of such compromise claimed past maintenance for such period, which was decreed by Family Court and upheld by Appellate Court---Plea of husband was that past maintenance could not be allowed for period beyond three years---Validity---Wife while appearing as witness had denied to have been paid maintenance---As per said compromise, husband was responsible to pay such maintenance, thus, onus to prove its payment was on him, which he had failed to discharge---Husband had failed to comply with undertaking given by him---High Court repelled such plea of husband as he had voluntarily signed compromise after stating that amount for such period was payable by him to wife as maintenance---Concurrent findings of Courts below were based on evidence---High Court dismissed Constitu­tional petition.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional petition could not be heard as an appeal---High Court could not embark upon re-appraisal of evidence, but would only see jurisdictional defect or violation of statute or law settled by superior Courts in passing impugned order.

Abdur Rehman Bajwa v. Sultan PLD 1981 SC 522 and Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246 rel.

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

----Ss.5, Sched. & 13(5)--Constitution of Pakistan (1973), Art. 199---Constitutional petition---Decree for recovery of past maintenance---High Court with consent of parties allowed payment of decretal amount in instalments.

Muhammad Arif Alvi for Petitioner.

Imran Khalid for Respondent No.3.

Date of hearing: 21st April, 2004.

2005 Y L R 110

[Lahore]

Before Ch. Iftikhar Hussain, J

FATEH MUHAMMAD ---Petitioner

Versus

THE STATE ---Respondent

Criminal Miscellaneous No.2-B in Criminal Appeal No.517 of 2004, decided on 12th July, 2004.

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

----S. 426---Penal Code (XLV of 1860), Ss. 324/337-A (i) (iii)/337-F(i)/148/149--- Suspension of sentence---Accused admittedly was aged about 85 years--­Sentence awarded to accused was short and out of same accused had undergone 3-1/2 months sentence---No likelihood was of early hearing of appeal of accused in near future---Application filed by accused for suspension of his sentence was accepted and was admitted to bail.

Malik Muhammad Imtiaz Mahl for Petitioner.

Sh. Khurshid Iqbal for the State.

2005 Y L R 113

[Lahore]

Before Ch. Ijaz Ahmad, J

DOST MUHAMMAD through Legal Heirs---Petitioners

Versus

ALLAH YAR and 5 others---Respondents

Writ Petition No. 1179 of 2003, decided on 22nd October, 2004.

(a) Pleadings--

----Parties are bound by their pleadings.

Mst. Murad Begum's case PLD 1974 SC 322 and Muhammad Hanif v. Refu and others 1989 SCMR 1705 rel.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1980)-----

---S.10---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­ Consolidation of holdings---Reduction in entitlement of petitioner---Ground qua such reduction not taken in revision petition-Findings of Board of Revenue that b parties had been given land according their previous possession ---Concurrent findings of fact of Tribunals below agar petitioner---Constitutional petition, h. was not maintainable.

Raja Shah and 38 others v. Nazar Hussain Shah PLD 1976 Lah. 658; Noor Khan v. Lal Khan and two others PLD 1983 Revenue 11; Asad Riaz v. Member Board of Revenue 1997 SCMR 1611; Brig. Sadaat Ali shah v. Muhammad Hanif PLD 1993 Lah. 694; Falak Sher and others v. Sharif and others 1989 SCMR 1096 and Mst. Bakhtan others v. Member Board of Revenue 2004 SCMR 337 ref.

Khuda Bakhsh v. Muhammad Sharif and others 1974 SCMR 279; Muhammad Sharif and others v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdur Rehman Bajwa v. Sultan and others PLD 1981 SC 522 rel.

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

---Art.199---Constitutional jurisdiction of High Court---Scope---High Court in such exercise could not substitute its own findings in place of findings of Tribunals below.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. M. Massadaq Naseem Sindhoo PLD 1973 Lah. 600 and Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260 rel.

(d) West Pakistan Consolidation of Holdings Ordinance (VI of 1980)---

---S.10---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­ Consolidation proceedings---Grievance against allocation of land---Constitutional jurisdiction held was not proper forum.

Ghulam Qadir's case 1970 SCMR 292 and Allah Rehman's case 1989 SCMR 1817 rel.

Hafiz Jameel Ahmad for Petitioner.

Malik Noor Muhammad Awan for Respondents.

2005 Y L R 130

[Lahore]

Before M. Bilal Khan, J

ZAHID ABBAS and others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.4682-B of 2004, decided on 6th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail grant of---Further inquiry---Accused who allegedly were armed with fire-arms, did not use their weapons at all---Even proverbial Lalkara was not attributed to accused ---F.I.R. itself showed that deceased undeterred by gesture of accused to stop continued his course, prima facie cast some doubt on the allegation of encirclement; in that situation, keeping in view the role attributed to accused, the possibility that the net was thrown wide open by the complainant to involve as many people of accused party as possible, could not be brushed aside right away---Precedents cited by counsel for accused, had advanced his case for grant of bail, whereas precedents cited by counsel for complainant were not helpful to complainant as facts and circumstances of case in hand were entirely different---In peculiar facts and circumstances the case of accused was one of further inquiry within the meaning of subsection (2) of S.497, Cr. P. C. ---Accused were admitted to bail, in circumstances.

Yaroo v. The State 2004 SCMR 864; Tariq Zia v. The State 2003 SCMR 958; Qalib Abbas v. The State 2000 PCr.LJ 464; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Muhammad Raza alias Gulai v. The State 1997 SCMR 1420; Munawar v. The State 1981 SCMR 1092; Muhammad Shafiq v. Muhammad Hanif and another 1970 SCMR 143; and Chiragh Din and others v. The State PLD 1967 SC 340 ref.

Ch. Riyasat Ali for Petitioners.

Muhammad Ashraf Khokhar for the State.

Muhammad Inayatullah Cheema for the Complainant.

Muhammad Aslam, S.-I. with record.

2005 Y L R 136

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASLAM---Petitioner

Versus

Mst. KHURSHEED BEGUM and 6 others---Respondents

Writ Petition No.5651 of 2002, heard on 18th May, 2004.

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

----S. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition--­ Maintenance, grant of ---Appeal---Decretal amount, non-deposit of---Effect---Appeal was dismissed on the ground that petitioner failed to deposit the decretal amount towards maintenance of the respondents and to affix the court-fee ---Validity--­Condition imposed by the Appellate Court for deposit of decretal amount for entertainment of the appeal was uncalled for---Constitutional petition was accepted and order passed was set aside---Appellate Court was directed to decide the appeal on merits.

Muhammad Abdullah v. Mst. Zubaida Begum and another 1985 CLC 1542 quoted.

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

----S. 19---Court Fees Act (VII of 1870), S. 7(ii)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appeal in suit for maintenance---Court fee---Appeal was dismissed on the ground that the petitioner failed to deposit maintenance and affix court-fee ---Validity---Sufficient opportunity was not afforded to the petitioner to deposit the court-fee ---At least one more opportunity should have been provided---Deposit of court fee was a matter between the Court and the petitioner---Respondents could not be benefited by it.

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

----S. 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­ Dismissal of appeal on technical grounds--Decision on merits---Appeal was dismissed for non-deposit of decretal amount and requisite court-fee ---Appeal was not decided on merits---Petitioner was non-suited on technical grounds/reasons---Technicalities should not stand in the disposal of cases on merits.

Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 quoted.

Sardar Tariq Sher Khan for Petitioner.

Amin-ud-Din Khan for Respondents Nos. 1 to 5.

Date of hearing: 18th May, 2004.

2005 Y L R 142

[Lahore]

Before Maulvi Anwarul Haq, J

JINDA and another---Petitioners

Versus

MEHAR DIN and 15 others---Respondents

Civil Revision No.466-D of 1992, heard on 22nd June, 2004.

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

----Ss. 91 & 59-A---Limitation Act (IX of 1908), Ss. 13 & 19 and Art. 148---Civil Procedure Code (V of 1908), O. I, R. 9--­ Redemption---Limitation---Equity of redemption---Misjoinder and non joinder of necessary parties---Muslim owners had mortgaged property with non-Muslim evacuees in 1898---Central Government allotted such land to displaced persons who sold the same to the respondents—Petitioners owners filed suit for redemption on 24-6-1984 which suit was dismissed by the Trial Court as barred by time--­Appellate Court found the suit to be within time but dismissed the same on the ground that Central Government and allottees were not made party---Validity---Appellate Court had rightly held the suit was within time--­Findings of Appellate Court were supported by judgments of Supreme Court--­Respondents were ultimate purchasers, who claimed to have become owners because of the extinguishment of equity of redemption by efflux of prescribed time of 60 years--­Central Government or the allottees, in circumstances, were neither necessary nor proper parties---Equity of redemption was alive---Respondents were mortgagors by virtue of Section 59-A of the Transfer of Property Act, 1882---Petitioners were directed to pay their share of mortgage money within two months---Respondents were ordered to deliver possession otherwise decree for possession would be executed.

Samar Gul v. Central Government and others PLD 1986 SC 35; Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 Lah. 77 and Muhammad Shafi v. Ghulam Qadir and others PLD 1978 Lah. 71 mentioned.

Muhammad Naveed Hashmi for Petitioners.

Athar Rehman Khan for Respondents.

Date of hearing: 22nd June, 2004.

2005 Y L R 148

[Lahore]

Before Ch. Ijaz Ahmad, J

PUNJAB PROVINCE through Secretary to Government of the Punjab, Housing and Physical Planning Department and 4 others--- Petitioners

Versus

MUHAMMAD ISHAQUE---Respondent

Civil Revision No.773 of 2001, heard on 14th September, 2004.

(a) Administration of justice-----

----Nobody should be penalized by the act of public functionaries.

M. Latif Qureshi's case PLD 1994 Lah 3 fol.

(b) Land Acquisition Act (I of 1894)-----

-----S. 53----Civil Procedure Code (V of 1908), Preamble---Land acquisition proceedings---Civil Procedure Code, 1908---Applicability, when in conflict with---Provisions of Land Acquisition Act, 1894 would apply in case of inconsistency between its provisions and that of C. P. C.

WAPDA v. Aurangzeb Khan PLD 1975 Peshawar 1 fol.

(c) Interpretation of statutes---

---- Special law would exclude the general law.

Zia-ur-Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473 fol.

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

----Ss. 28 & 34---Civil Procedure Code (V of 1908), S.34---Land acquisition--­Payment of compensation---Granting of compound interest @ 13% on outstanding amount of compensation by Appellate Court under S. 34, C. P. C. ---Validity---Appellate Court had erred in law to grant such interest in presence of specific provisions of Ss.28 & 34 in Land Acquisition Act, 1894---Appellant was entitled to compound interest @ 8% from date of taking over possession of land by authority---High Court accepted revision petition and modified rate of compound interest accordingly.

Nishat Sarhad Textile Mills PLD 1976 SC 531 fol.

Muhammad Rasheed Ahmed for Petitioners.

Ex parte order against Respondent.

Date of hearing: 14th September, 2004.

2005 Y L R 156

[Lahore]

Before Ijaz Ahmad Chaudhry, J

RAZIA BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BUREWALA and 2 others---Respondents

Writ Petition No.5339 of 2000, decided on 10th June, 2004.

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

----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Marriage---Proof---Contradictions in statements---Evidence which could be produced but not produced ---Effect--­Jactitation of marriage---Onus to prove that respondent was married with the petitioner before marriage of the petitioner with respondent/other man was on the respondent---Contradictory statements of the witnesses were not sufficient to prove genuineness of the `Nikah' claimed by respondent with the petitioner ---Thumb­ impression on the "Nikahnama" was not got compared with the admitted thumb­ impression---Nikahnama was registered with delay of one month---Both the Courts below had failed to appreciate the contradictions and other material aspects appearing in the case---Constitutional petition was accepted; judgments and decrees of the Courts below were set aside---Suit of the respondent/husband was dismissed---Suit filed by the petitioner for jactitation of marriage with the respondent was decreed in the circumstances.

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

----Ss. 5 & 23---Muslim Family Laws Ordi­nance (VIII of 1961), S.5---Suit for jactita­tion of marriage by wife---Registration of marriage---Two "Nikahnamas " were registered. Wife filed suit for jactitation of marriage shown under one "Nikahnama " Challenge was thrown to a Nikahnama which was owned by the man and woman who claimed to be husband and wife ---Pre­sumption of truth is attached to Nikahnama acknowledged by both spouses.

PLD 1999 Lah. 494 quoted.

Syed Muhammad Ali Gillani for Petitioner.

Ch. Sarfraz Ahmad Zia for Respondent No.3.

2005 Y L R 162

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SIDDIQUE---Petitioner

Versus

MEMBER JUDICIAL (III), BOARD OF REVENUE, PUNJAB and 22 others---Respondents

Writ Petition No.4264 of 2003, heard on 14th June. 2004.

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

---Ss. 135 & 150---Punjab Land Records Manual, Chap. 18, para. 18.10--­Constitution of Pakistan (1973). Art. 199--­Cottstitutiottal petition---Limitation---Mode of partition ---Coram non judice --- Private parties were co-owners in the land--­Respondents filed an application for partition of said land---Revenue officer partitioned the land in accordance with the shares of the parties keeping in view their possession---Such partition proposals were approved with the consent of the parties--­Land teas partitioned in accordance with the recorded and admitted shares of the parties---Mode of partition had not affected the title or possession of the petitioners--­Objection was that under S.150 of the Land Revenue Act. 1967 the Girdawar could not have been appointed to determine the mode of partition and as such entire proceedings there coram non judice---Validity--­Girdawar it as deputed by the Revenue Officer to prepare the plan in terms of para. 18.10 of the Land Records Manual (Chapter l8)---Partition order could not be interfered with in Constitutional proceedings Constitutional petition was dismissed in circumstances.

Saifullah Khan for Petitioner.

Bashir Ahmad Chaudhry for Respondents.

Malik Muhammad Sami, Tehsildar, Rajanpur.

Date of hearing: 14th June, 2004.

2005 Y L R 167

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. IMTIAZ BIBI and 6 others---Petitioners

Versus

Malik ATTIQUR REHMAN---Respondent

Civil Revision No.543-D of 2001, heard on 9th September, 2004.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S.115---Suit for possession on basis of ownership ---Abadi Deh---Village proprietary body---Adverse possession--­Permissive possession---Suit for possession on basis of title was dismissed by the Trial Court but was decreed by Appellate Court---Validity---Plaintiff had proved, by producing copies of Jamabandi, that the suit property was owned by his ancestors--­Pedigree-table was produced to prove relationship---To prove asserted adverse possession no evidence was. produced--­Possession admittedly was permissive--­Permissive possession can never mature into a title--- "Abadi Deh " is owned by village proprietors---Findings of Appellate Court were absolutely in consonance with the evidence on the file and the law applicable---Revision petition was dismissed in circumstances.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 ref.

Razaq A. Mirza for Petitioners.

Syed Hamid Ali Bokhari for Respondent.

Date of hearing: 9th September.

2005 Y L R 171

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs SHAUKAT MEDICOS through Chief Executive---Petitioner

Versus

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

Writ Petition No. 13247 of 2004, decided on 29th September, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition in respect of matter already subject-matter of suit filed by petitioner against respondents in Civil Court---Non-mentioning a single word in Constitutional petition qua filing of suit---Effect---Petitioner had concealed material facts from High Court--­Constitutional jurisdiction was discretionary in character---High Court while refusing to exercise discretion in favour of petitioner dismissed Constitutional petition.

Government of N.-W.F.P. v. Bahadur Khan 1986 CLC 1457; Syed Noor Muhammad Shah v. Fakir Muhammad and 10 others PLD 1976 Kar. 14 and PLD 1991 AJ&K 26 ref.

Abdur Rashid v. Pakistan and others 1969 SCMR 141; Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196 and Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185 rel.

Adnan Aslam Qureshi for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General for Respondent No. 1.

Sarfraz Ali Cheema for Respondents Nos.2 and 3.

2005 Y L R 177

[Lahore]

Before Ch. Ijaz Ahmad, Actg. C J

YASIR KHAN---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No. 13287 of 2004, decided on 24th August, 2004.

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

----O.I. R.8---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Representative suit---Constitutional petition filed in representative capacity without fulfilling requirements prescribed under O.I, R.8, C. P. C. was not maintainable as principles of Civil Procedure Code were applicable to Constitutional jurisdiction of High Court.

Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others PLD 1970 SC 1 and Anjuman Araian, Bhera v. Abdul Rashid and 5 others PLD 1973 Lah. 500 ref.

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

----Art.199---Constitutional jurisdiction--­Scope---Constitution was based on trichotomy and High Court had only jurisdiction to-interpret law and had no jurisdiction to take the role of policy maker.

The State v. Zia-ur-Rehman and others PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 ref.

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

----Art.199---Constitutional jurisdiction--­Scope---Educational Institutions--­Disturbing Schedule of examination---High Court had no jurisdiction to disturb Schedule of examination while exercising power under Art.199 of the Constitution such being a matter pertaining to policy which was prerogative of the authorities--­High Court had no jurisdiction to upset examination date sheet for one individual.

Government of Pakistan v. Zameer Ahmad Khan PLD 1975 SC 667; Zameer Ahmad Khan v. Government of Pakistan 1978 SCMR 327; Zaheer Aslam v. Bahauddin Zakariya University, Multan 1995 CLC 1152 and Rafaqat Javaid and 5 others v. Chairman, Admission Board/Principal, King Edward Medical College, Lahore and 2 others 1995 CLC 1155 ref.

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

----Arts.4 & 199---General Clauses Act (X of 1897), S.24-A---Duties and obligations of public functionaries---Public functionaries were obliged to decide applications of citizens specially the students, as the concerned Authorities had to decide their applications keeping in view parental jurisdiction---Nobody should be penalized by inaction of public functionaries--­Application of students to be decided without fear, favour and nepotism with reasons within reasonable time.

Board of Intermediate and Secondary Education through Chairman and another v. Muhammad Younis 1998 SCMR 682; Ahmed Lateef Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah. 3 and Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268 ref.

Mian Abdul Aziz for Petitioner.

Raja Abdul Rehman, Assistant A.-G. assisted by Muntazir Mehdi (on Court's call).

2005 Y L R 181

[Lahore]

Before Muhammad Khalid Alvi, J

Sh. IQBAL HUSSAIN ---Petitioner

Versus

ANWAR HUSSAIN ---Respondent

Civil Revision No. 450 of 2004, heard on 14th June, 2004.

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

----O.XXXVII, Rr.1 & 2 & Ss.10 & 24--­Specific Relief Act (I of 1877), S.39---Suits for cancellation of cheque and recovery of amount on basis of same cheque---Stay of proceedings---Transfer of case---Petitioner had filed suit for cancellation of cheque allegedly issued by him before Civil Judge---Respondent subsequently had also filed suit for recovery of amount against petitioner under O.XXXVII, Rr.1 & 2, C.P.C. before District Judge on basis of same cheque---Petitioner filed two applications before District Judge, one, for grant of leave to defend suit filed against him by respondent and other under S.10, C. P. C. for stay of proceedings before District Judge---Application for leave to defend filed by petitioner was accepted, while application for stay of proceedings was rejected---Both parties were litigating against each other on one disputed issue and case set up by both parties before both the Courts below was the same---Dictates of justice demanded that common issue be resolved by one Court, instead of unnecessarily keeping one case pending till the disposal of other when total identity existed between the two---In the interest of justice suit filed by petitioner in Civil Court was withdrawn from that Court and was entrusted to District Judge where suit of respondent was pending with the direction that both suits should be consolidated by transferee Court and decided in accordance with law.

2004 SCMR 108 ref.

Sardar Riaz Karim for Petitioner.

Mian Abbas Ahmed for Respondent.

Date of hearing: 14th June, 2004.

2005 Y L R 185

[Lahore]

Before Muhammad Muzammal Khan, J

LAHORE DEVELOPMENT AUTHORITY through Director­ General---Petitioner

Versus

MEHMUD AHMED BUTT and 2 others---Respondents

Civil Revision No. 1183 of 1984, decided on 30th July, 2004.

Specific Relief Act (I of 1877)---

----S.54---Suit for permanent injunction--­Plaintiffs in their suit had claimed that suit property was transferred to its original owner by Settlement Department out of compensation pool and they had purchased said property from the transferee through a registered sale-deed for consideration and that defendant-Authority had no right, title or interest in the said property---Defendant­ Authority contested suit contending that suit property was acquired by defendant for a proposed Development Scheme and same had unauthorisedly been transferred to transferee by Settlement Department--­Validity---Claim of defendant-Authority was baseless as neither land forming part of alleged Scheme including suit property was ever acquired 'nor any award was announced by Land Acquisition Collector and no such Scheme was allowed by undertaking development work by laying sewerage/roads etc.---Scheme claimed by defendant-Authority had not only become barred by time, but had also become redundant by lapse of time---Possession of suit-land was not taken by defendant­ Authority after paying consideration to its owners and said land continued to remain with owners thereof---Property which was evacuated by non-Muslims at the time of partition of Indo-Pak Sub-Continent, had formed part of Compensation Pool by operation of law---Suit property was competently transferred to transferees thereof by Settlement Authority---Suit filed by plaintiffs was rightly decreed concurrently by two Courts below--­Concurrent findings of facts recorded by two Courts below being in consonance with record, deserved no interference.

Maulvi Muhammad Waheed Ullah v. The Chairman, Lahore Improvement Trust PLD 1975 Lah. 586; Director of Education (Schools) v. Hafiz Muhammad Anwar 1994 PSC 98 and Haq Nawaz and others v. Rab Nawaz and others 1992 SCMR 993 ref.

Ch. Muhammad Rashid Ahmed for Petitioner.

Ch. Mushtaq Hussain for Respondents

Date of hearing: 29th June, 2004.

2005 Y L R 191

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH DITTA---Petitioner

Versus

MUHAMMAD AFZAL and 7 others---Respondents

Civil Revision No.319 of 1985, heard on 24th June, 2004.

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

----S. 42---Civil Procedure Code (V of 1908), S. 151, O. XXIII, R. 3 & O. XLI, R.33---Suit for declaration---Pre-emption decree in favour of plaintiff was set aside by District Judge in appeal on basis of compromise---Plaintiff challenged such compromise on ground of fraud by filing application under S.ISI, C.P.C. before District Judge, who dismissed same after recording evidence of parties---Plaintiff did not challenge order of District Judge in appeal, but filed suit for declaring proceedings before District Judge as without jurisdiction for having been conducted on basis of incompetent application---Suit was dismissed by Trial Court, but was decreed by Appellate Court---Validity---Plaintiff's plea qua such application was baseless---Suit could not be found to be competent merely on the basis of such plea---Proceedings conducted by District Judge were not without jurisdiction---Appellate Court while passing impugned judgment/decree had proceeded to exercise jurisdiction not vesting in it---High Court accepted revision petition, set aside impugned judgment/decree and restored that passed by Trial Court.

The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331 ref.

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

----Arts. 61 & 65---Expert report--­Admissibility in evidence---Such report would be inadmissible without examination of author thereof.

Amin-ud-Din Khan for Petitioner.

Sardar Muhammad Rafiq Khan for Respondents.

Date of hearing: 24th June, 2004.

2005 Y L R 197

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD NAWAZ---Petitioner

Versus

AHMAD KHAN and another-----Respondents

Civil Revision No.51 of 2004, heard on 8th July, 2004.

Punjab Pre-emption Act (IX of 1991)------

----Ss.6, 13 & 20---Suit for pre-emption-----Equal right of pre-emption of plaintiffs/pre emptors and defendant vendee---Trial Cow decreed suit filed by two pre-emptors­ Appellate Court, on appeal, found that tit, plaintiffs and one defendant vendee having, equal right of pre-emption, two plaintiff were entitled to 2/3rd share of suit property, while defendant was entitled to retain 1/3rd of suit property---Transaction in dispute, had been proved to be sale and not gift as alleged by defendant vendee---Provisions of S.20 of Punjab Pre-emption Act, 1991 had mandated that where pre-emptor air vendee fell within same class of pre-emptor and had equal right of pre-emption property would be shared by the equally ---Provisions of S.20 of Punjab Pre emption Act, 1991 had provided that there was one class of pre-emptors while other was of vendees---One pre-emptor or more than one, irrespective of share in land, would distribute same equally and according to S. 20 two classes of pre­emptors and vendee would share property equally in case said two classes had equal right of pre-emption ---Sole vendee, in the present case, was confronted by two pre­emptors and all were co-sharers in suit property---Decree passed by Appellate Court to the extent of 2/3rd share in favour of two pre-emptors was modified to the effect that plaintiffs/pre-emptors would be entitled to 1 /2 share of suit property instead of 2/3rd share.

Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570; Kala Khan v. Ayub Khan 1993 SCMR 543; Sar Anjam Khan v. Abdullah Khan 1999 SCMR 2167 and Amir Hussain v. Rahim Bakhsh and others ILR 19 All 466 ref.

Muhammad Amir Butt for Petitioner.

Ch. Muhammad Munir Akhtar Minhas for Respondent.

Date of hearing: 8th July, 2004.

2005 Y L R 200

[Lahore]

Before Muhammad Muzammal Khan, J

Messrs ZARKHEZ AGRO ENGINEERING AND SERVICES (PVT.) LTD. through Chief Executive---Petitioner

Versus

Messrs SARGROH FARM AIDS (PVT.) LIMITED through Chief Executive and another---Respondent

Civil Revision No. 42 of 1996 and Civil Revision No.2263 of 1995, heard on 23rd September, 2004.

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

----O.I, R.10(2)---Striking out of party--­Only basis which weighed with the Trial Court for deletion of name of defendant was that there was no privity of contract between the plaintiff and deleted defendant---Trial Court had not examined the pleadings of the parties and the documents appended therewith and it was pleaded that the first defendant was agent of the deleted defendant who was owner of the machinery sold---Documents showed the agency---Suit was for damages allegedly suffered on account of supply of defective/damaged machinery---Deletion order suffered from material illegalities/ irregularities and was set aside and application under O.I, R.10, C. P. C. for deletion of name from the array of defendants was dismissed in circumstances.

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

----O. VII, R.11---Sale of Goods Act (III of 1930), S.4---Rejection of plaint---Suit barred by law of limitation---Plaintiff had alleged that the defendants had supplied severely damaged and cracked machinery and he had suffered damages---Initial and final date of accrual of cause of action was written in plaint---Limitation being mixed question of law and facts, plaint could not have been rejected---Suit was under Sale of Goods. Act contending that supplied goods were not according to specification and were defective---Order passed by the Trial Court disallowing the application under O. VII, R.11 being in accordance with the law, was maintained in circumstances.

Tariq Mahmood Chaudhary Kamboh v. Najam-ud-Din 1999 SCMR 2396 rel.

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

----O.XIV, R.2---Issues of law and of fact—­Preliminary issues---Trial Court, after deciding the applications for deletion of defendant and rejection of plaint, framed all the issues on merits and in exercise of its suo motu powers recalled its order of deciding the preliminary issues first---Issues of law going to root of the case were raised and these could be decided in the first instance especially when no evidence was needed for decision of such issues---No compelling necessity existed for framing of issues on merits of the case---Order of Trial Court regarding the framing of issues was set aside---Trial of preliminary issues in the first place was ordered in circumstances.

I.C.I.C. v. Mian Rafiq Saigol and others PLD 1996 Lah. 528; Raza Hussain v. Haji Qaisar Iqbal and 7 others 1996 MLD 55; 1999 MLD 2049 and Muhammad Saleem v. Hafiz Ahmad Din PLD 1975 Lah. 425 ref.

Ch. Muhammad Rashid for Petitioners.

M. Iqbal Abid Chaudhary for Respondents.

Date of hearing: 23rd September, 2004.

2005 Y R 206

[Lahore]

Before Syed Zahid Hussain, J

Syed AMANAT ALI SHAH and others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector, District Toba Tek Singh and 4 others---Respondents

Civil Revision No. 1630 of 2000, heard on 5th July, 2004.

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

----S. 30(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration--- Cancellation of land acquired by fraud--­Misrepresentation ---Acquisation of rights under Colonization of Government Lands (Punjab) Act, 1912---Petitioners purchased property from a person who had acquired -rights of ownership under Colonization of Government Lands (Punjab) Act, 1912--­Board of Revenue found that grant of land to such person was "ab initio" void and of no legal consequences, relevant conveyance deed was set aside and rescinded--­Petitioner filed suit for declaration challenging the order of Member Board of Revenue in the Civil Court---Suit was decreed on the plea of bona fide purchaser for value---Decree was set aside in appeal---Validity---Concurrent view had been taken by both the Courts below that order passed by Member Board of Revenue was not contrary to law as he had recorded his findings after examination of the record---Exercise of jurisdiction by Member Board of Revenue was neither unwarranted nor illegal---Jurisdiction of the Civil Court was eminently linked with the validity of the order passed by the authority---Finding concurrently arrived at by the Courts below as to order of . Authority being legal, jurisdiction of Civil Court was excluded--­Appellate Court had rightly dismissed the suit of the plaintiffs in circumstances.

Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha v. Muhammad Akram PLD 1993 Lah. 114 distinguished.

Alam Sher through legal heirs v. Muhammad Sharif and 2 others 1998 SCMR 468 ref.

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

----S. 30(2)---Specific Relief Act (I of 1877), S.42---Enquiry---Sinker doctrine of---Before cancellation of allotment a conditional order was passed to the effect that if predecessor in interest of the plaintiffs had cultivated the land, fresh orders be passed keeping in view the hardship caused to him but he did not appear before the authority and thus lost his right---Plaintiffs who had acquired interest through him could not claim a better title and they had to sink or sail with him.

Ch. Manzoor Hussain Basra for Petitioners.

Mr. Fazal Miran Chohan, Addl. Advocate-General for Respondents.

Date of hearing: 5th July, 2004.

2005 Y L R 212

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAFAR HUSSAIN---Petitioner

Versus

UMAR DRAZ and other Respondents

Criminal Revision No. 812 of 2004 decided on 6th October, 2004.

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

----Ss.265-C, D, E, F, 439 & 540---Qanun­e-Shahadat (10 of 1984), Art.161--­Summoning of witnesses---Application for--­Trial Court, after framing charge, started to record evidence of prosecution witnesses---After examination of eight prosecution witnesses, complainant was examined and thereafter another prosecution witness was examined---After examination of all said witnesses, complainant submitted an application for summoning three more witnesses---Prosecution witnesses sought to be examined, were neither mentioned in F.I.R. nor were joined during course of investigation, nor were mentioned in the calendar of witnesses, but complainant in his examination-in-chief introduced their names---Complainant had alleged that out of said three prosecution witnesses, statement of prosecution witnesses were not recorded by Investigating Officer under S.161, Cr. P. C. though he had insisted to record their statements---Complainant, in an answer to a question, had replied that he did not make any complaint against said Investigating Officer to the higher officers in the Police hierarchy for not doing so--­Complainant neither had filed any complaint before competent Court nor any Constitutional petition was filed before High Court---Courts were not sitting to fill up the lacunas in prosecution case---Anxiety for submitting application for examination of more witnesses arose when two eye­witnesses mentioned in F.I.R. were given up by prosecution as having been won over ---Art.161 of Qanun-e-Shahadat 1984 was not applicable in the case---Court had to use its discretion under first part of 5.540, Cr. P. C. judiciously ?and with full application of mind---No justification was under the law or any compulsion on the part of the Trial Court to summon said three witnesses during the Trial---Revision petition was allowed and order of Trial Court summoning said witnesses, was set aside.

2000 PCr.LJ 1882; 2000 PCr.LJ 62; 2000 PCr.LJ 64; PLD 1984 SC 95; 2004 SCMR 966 and 1991 MLD 17 ref.

M. Asghar Khan Rokhari for Petitioner.

Muhammad Nazir Bosal for Respondent No.1.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab.

2005 Y L R 221

[Lahore]

Before Ch. Ijaz Ahmad, J

AKBAR---Petitioner

Versus

MUHAMMAD ASLAM and another---Respondents

C. R. No. 2031 of 2004, decided on 15th September, 2004.

(a) Punjab Pre-emption Act (IX of 1991)----

----S. 24---Civil Procedure Code (V of 1908), S. 148---Deposit of 1/3rd of sale price within 30 days of filing of suit--­Extension of time---Scope---Provisions of S.24 of Punjab Pre-emption Act, 1991 were mandatory- in character---Court had no jurisdiction to extend such period.

Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746; Haji Abdul Qadir v. Zafar Shaheen PLD 1997 Lah. 549; Ahmad Bakhsh v. Nasir Khan and 2 others 2002 CLC 119 and Mian Asif Islam v. Mian Shahid Aslam and 3 others 1999 SCMR 1350 fol.

(b) Pre-emption-----

---- Right of---Such was a very weak right and penal in nature.

(c) Practice and procedure-----

---- Nobody could get benefit of his misdeeds.

(d) Maxim-----

---- "Ignorantia juris non-excusat "--­Ignorance of law is no excuse.

Mian Liaqat Ali for Petitioner.

2005 Y L R 223

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RAMZAN---Petitioner

Versus

ZAHIDA PERVEEN and 4 others---Respondents

Civil Revision No. 1479 of 2004, decided on 22nd September, 2004.

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

----S. 13---- Transfer of Property Act (IV of 1882), Ss. 41, 52 & 53---Execution of decree---Attachment of property ---Un­registered agreement to sell executed during pendency of suit in respect of attached property in favour of objector by defendant---Executing Court allowed claim of objector, but Appellate Court rejected same---Validity---Agreement to sell, even if executed bona fidely, would not convey any title- in property---Interest created during pendency of suit could not affect any decree passed in suit---Impugned judgment did not suffer from any infirmity or illegality--­High Court dismissed revision petition.

Saadia Begum v. Jangreez and 3 others PLD 2004 Pesh. 213 ref.

M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others PLD 1966 (W.P.) Lah. 953; Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909; Union Bank of the Middle East Ltd. v. Saad Carpets Ltd. 1986 MLD 482; Pir Abdullah Shah and 8 others v. Humayon and 5 others PLD 1957 (W.P.) Lah. 1054; Hakim Ghulam Rasool v. Sh. Imdad Hussain and another PLD 1968 Lah. 501; N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1959 P.C. 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657 rel.

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

----Ss. 41, 52 & 53---Agreement to sell property executed during pendency of suit--­Validity---Interest created during pendency of suit could not affect any decree passed in suit---Such agreement, even though executed bona fidely, would not convey any title in property.

M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others PLD 1966 (W.P.) Lah. 953; Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909; Union Bank of the Middle East Ltd. v. Saad Carpets Ltd. 1986 MLD 482; Pir Abdullah Shah and 8 others v. Humayon and 5 others PLD 1957 (W.P.) Lah. 1054; Hakim Ghulam Rasool v. Sh. Imdad Hussain and another PLD 1968 Lah. 501 rel.

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

----O. XLI, R. 33---Power of Court of appeal---Scope---Appellate Court could re­appraise evidence on record while deciding appeal.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1959 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657; C.P. No.1146/86 vide judgment, dated 31-3-1985 and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625 rel.

Ch. Mumtaz-ul-Hassan for Petitioner.

2005 Y L R 228

[Lahore]

Before Abdul Shakoor Paracha and Muhammad Muzammal Khan, JJ

ROOH-UL-AMEEN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 374 of 2003, heard on 21st October, 2004.

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

----Ss.9(c), 14 & 15---Appreciation of evidence---Statement of recovery witness with regard to recovery of huge quantity of heroin from vehicle driven by accused, was corroborated by complainant and other prosecution witnesses---Report of Chemical Examiner was in positive---Accused persons in their statements under S.342, Cr.P.C. had admitted their traveling at relevant time in the vehicle and their apprehension---Law did not require that one gram from total recovered narcotic substance should not be separated--­Prosecution being able to prove case against accused beyond reasonable doubt, they had rightly been found guilty under S.9(c) of control of Narcotic Substances Act, 1997 and had been rightly convicted in accordance with law---Well-reasoned judgment of Trial Court could tot be interfered with.

Mst. Anwar Bibi v. The State 2004 PCrLJ 692 and Ali Muhammadd and another v. The State 2003 SCMR 54 ref.

Raja Imran Aziz for Appellant.

Mirza Viqas Rauf for Respondent.

M.D. Shehzad for the State.

Date of hearing: 21st October, 2004.

2005 Y L R 233

[Lahore]

Before Muhammad Sair Ali, J

Mst. JANTAN through Mazhar Hussain ---Petitioner

Versus

Mst. MANZOORAN BIBI and others---Respondents

Civil Revision No. 1466 of 2000, heard on 30th September, 2004.

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

----S. 115---Revision---Re-evaluation of evidence ---Scope---Revisional Court would normally not re-evaluate evidence in absence of excess of authority, irregularity or non-exercise thereof or misreading or non-reading of evidence by Courts below.

(b) Islamic law---

----Inheritance---Sunny or Shia faith, of deceased---Proof---Witnesses alleged that deceased was Shia; her funeral rites were conducted in accordance with Shia faith; she had attended Majalis and made contribution to a Shia organization--­Validity---Witnesses had not disclosed their source, basis and reason for deceased having Shia faith---Witnesses had not disclosed particulars of modalities of alleged burial and funeral rights of deceased---Neither ladies having given last bath and coffin to deceased nor Imam leading Janaza prayer of deceased had been produced in evidence---No witness had been produced to prove as to whether deceased had ever offered prayers, if so, then under which Fiqah and faith---No witness had been produced to show that deceased ever attended MajalislZu1jinahlTazialTaboot Alam or the Muharram processions or performance of essential mandates of Shia faith---Whole community and all relatives of deceased were Sunny by faith---Held Such general, wide and unspecific depositions would not be sufficient evidence about deceased's faith---Deceased, in circumstances, was not a Shia by faith.

(c) Islamic law-----

----Inheritance---Faith of deceased--­Proof---Donation made by deceased in her life time---Evidentiary value---Donation receipts, if valid, could only prove monetary contribution to an organization, but could not be proof of donor's faith, which would require independent, clear and indisputable evidence for its proof or disproof.

(d) Islamic law---

----Inheritance---Waiver or abandonment of right in matters of inheritance could not be presumed---Exceptions stated.

A waiver or abandonment of the right cannot be presumed in the matters of inheritance, unless and until such waiver or abandonment is clear, specific, conscious, voluntary, indisputable and uncontestable. What is granted to a legal heir of a deceased by the Injunctions of Almighty cannot be taken away or denied for sheer technicalities or unproved and unclear presumptions or illogical deductions.

Sh. Naveed Sheharyar for Petitioner.

Mian Muzaffar Hussain and Ghulam Hussain Choudhry for Respondents.

Date of hearing: 30th September, 2004.

2005 Y L R 241

[Lahore]

Before Syed Zahid Hussain, J

Ch. ABDUL HAMEED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, FAISALABAD ---Respondent

W.P. No. 17391 of 2004, heard on 8th November, 2004.

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

----Ss.145 & 146--Constitution of Pakistan (1973), Art.199---Constitutional petition--­Judicial Magistrate ordered to seal the property in dispute despite the fact that the civil suit was still pending and the temporary injunction for maintenance of status quo was also operative ---Validity--­Pending the decision of the suit, interim order passed by the Civil Court ought to have been maintained---Sealing of the property on the ground of alleged apprehension of breach of peace by the Judicial Magistrate was not warranted in presence of the status quo order passed by the Civil Court in the pending suit--­Principles.

The proceedings initiated under section 145, Cr.P.C., are subordinate to a decree or order passed by a Civil Court in respect of the property in dispute before the Magistrate. Section 145 therefore, proceeds, on the premises that the Magistrate will cease to deal with the possession of land' orwater' in dispute before him as soon as a Civil Court is seized with the dispute and has passed a decree declaring the rights of the parties therein or has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr.P.C. and bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo. A contrary position will indeed lead to anomalous results.

Once a Civil Court is seized of a dispute with regard to possession of an immovable property and has passed an interim order regulating the possession with respect to such property, no Criminal Court shall exercise jurisdiction under section 145 or section 146, Cr.P.C. Civil Court, being the Court of ultimate jurisdiction is always vested with powers to decide all disputes of civil nature between the parties and the preventive proceedings before a Magistrate are always subject to the decision by a Civil Court.

Prima facie, Magistrate should have acted with care and circumspection on his part after coming to know that dispute was already sub judice before a Court of competent jurisdiction and refrained from passing a contradictory and conflicting order as he lacked jurisdiction in the given circumstances. Alternatively; best course for the Magistrate was to refer the dispute to the Civil Court, instead of assuming the jurisdiction and adding to the agony of the parties.

Pending, the decision of the suit, interim order passed by the Civil Court ought to be maintained rather than leaving it to the wisdom of the Magistrate to decide the fate of the property with regard to the possession, as claimed by respective parties.

The sealing of the property on the ground of alleged apprehension of breach of peace by the Judicial Magistrate was not warranted in presence of the status quo order passed by the Civil Court in the pending suit.

The parties were quite conscious that the matter was of a civil nature and civil remedy was being availed by them.

Thus declaring the order passed by the Judicial Magistrate as affirmed by the Additional Sessions Judge, as illegal and unwarranted the same was vacated. It was, however, observed by the High Court that the parties should respect-the order passed by the Civil Court so long as it was in force. The trial Court ' would take all possible steps to decide the suit within six months.

Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470; Shera and others v. Mst. Fatima and another 1971 SCMR 449; Shah Muhammad v. The State and 5 others 1983 SCMR 1173; Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240; Muhammad Yousaf v. The State and others 1992 PCr.LJ 1370 and Abdul Razzaq v. Barkat Ali 1985 SCMR 1235 ref.

S.M. Masood for Petitioner.

Ch. Abdul Sadiq for Respondent.

Date of hearing: 8th November. 2004.

2005 Y L R 245

[Lahore]

Before Muhammad Muzammal Khan, J

ALLAH DITTA and another- Petitioners

Versus

LIAQAT ALI and 2 others---Respondents

Civil Revision No. 2001 of 1995, heard on 1st October, 2004.

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

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Art.117---Suit for declaration and injunction---Oral agreement to sell---Oral sale---Onus to prove---Oral agreement to sell though enforceable through a suit, required strict proof.

Bashir Ahmad v. Muhammad Yousaf (deceased) represented by Muhammad Shafique 1993 SCMR 183 quoted.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.79 & 117---Declaration and injunction---Document---Agreement--­Oral agreement---Beneficiary---Agreement written or oral is to be proved by the beneficiary through positive evidence of bargain and the transaction reflected therein, especially after denial of execution.

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 and Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.115 & O.I, R.10---Suit for declaration and injunction---Oral agreement---Necessary parties---No document in form of agreement to sell or receipt regarding payment of price was executed in the present case---Witness had not uttered a single word with regard to bargain on the transaction struck between the parties---Matter was not reported to the revenue field staff for change of entries in the Revenue Record---Findings of Appellate Court regarding non-proof of the agreement were in consonance with the evidence--­Prayer of specific performance or inclusion of necessary parties could be added through amendment---Such exercise would not cure the defect of failure to prove the agreement---Appellate judgment and decree were not reversed in circumstances.

Hassan Ahmad Khan Kanwar for Petitioners.

Ex part vide order, dated 10-5-2004.

Date of hearing: 1st October, 2004.

2005 Y L R 249

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD JAMIL and 4 others---Petitioners

Versus

CHIEF SETTLEMENT COMMISSIONER, LAHORE and 3 others---Respondents

Writ Petition No. 35-R of 2001, heard on 30th June, 2004.

Displaced Persons Compensation and Rehabilitation Act, (XXVIII of 1958)-----

----S.10---Constitution of Pakistan (197.1), Art. 199---Constitutional petition---Transfer order---Particulars of property--Transfer order was made in violation of orders passed by Additional Settlement Commissioner, Chief Settlement Commissioner, High Court and Supreme Court---Such order was declared to be without lawful authority and was set aside in Constitutional petition --- Official respondents were directed to correct the transfer order in circumstances.

Syed Muhammad Ali Gillani for Petitioners.

Ch. M. Musa for Respondent No.4.

Nemo for other Respondents.

Date of hearing: 30th June, 2004.

2005 Y L R 257

[Lahore]

Before Syed Zahid Hussain, J

GHULAM SARWAR through Special Attorney---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DASKA, DISTRICT SIALKOT and 2 others---Respondents

Writ Petition No.24284 of 2000, decided on 1st September, 2004.

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

----S.9---Constitution of Pakistan (1973)--­Art. 199---Constitutional petition--­Maintainability---Suit for possession---Both Courts below on appreciation of evidence on record had concurrently believed version of plaintiff and recorded finding that plaintiff, who had been in possession of suit property, was dispossessed by defendant forcibly without her consent---Such appreciation of evidence made by Courts below could hardly be amenable to interference by High Court in exercise of its Constitutional jurisdiction---Finding of fact recorded by two Courts below as to the possession of plaintiff and her dispossession by defendants was purely a question of fact and Constitutional jurisdiction was not meant for interference with such a determination---View taken by Courts below did not suffer from any illegality or jurisdictional error so as to warrant interference by High Court in Constitutional jurisdiction.

Abdul Ghafoor v. Nazir Ahmad and others 1987 CLC 826; Raja Sher Ali v. District Judge, Jhelum and 9 others 1989 CLC 219 and Abdul Wahid Mirza v. V.T. H. Additional District Judge (South) Karachi and 3 others 1989 CLC 957 ref.

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

----Art.199---Constitutional jurisdiction--­Scope---Constitutional jurisdiction could not be converted into that of appellate jurisdiction to appreciate evidence over again or to substitute findings of lower forum.

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

----S.9---Suit for possession---In order to grant relief under S.9 of Specific Relief Act, 1877, plaintiff was required to prove; that he/she was in possession; that plaintiff was dispossessed by defendant; that dispossession was without consent of plaintiff and was otherwise than in accordance with law and that dispossession was within specified period---Other questions as regards title etc. were not germane for invoking provisions of S.9 of Specific Relief Act, 1877 as object and purpose of said section was to provide summary remedy even with no right of appeal.

Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another 2001 SCMR 345 and Abdul Aziz v. Mst. Daulat Bibi and 3 others PLD 1973 Lah. 125 ref.

Ch. Irshad Ullah Chatha, Advocate.

2005 Y L R 264

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL REHMAN CHAUDHRY---Petitioner

Versus

DEPUTY DISTRICT OFFICER (REVENUE), LAHORE CANTT. and 2 others---Respondents

Writ Petition No. 14116 of 2004, decided on 6th September, 2004.

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

----S.24-A---Constitution of Pakistan (1973), Arts.4 and 199---Constitutional petition---Failure of Tehsildar and Patwari to provide petitioner Fard of his land--­Validity---Nobody is above law---Duty and obligation of public functionaries was to decide applications of citizens without fear, favour, nepotism, with reasons and within reasonable time---High Court directed Chief Secretary and concerned Deputy District Officer (Revenue) to look into matter and issue necessary instructions to all concerned to decide applications of citizens without fear, favour, nepotism and within reasonable time.

Messrs Airport Support Service v. The Airport Manager Karachi 1998 SCMR 2268 and Ch. Zahoor Elahi's case PLD 1975 SC 383 rel.

(b) Administrative decision---

---- Nobody should be penalized for inaction of public functionaries.

Messrs Airport Support Service v. The Airport Manager Karachi 1998 SCMR 2268 rel.

Syed Anwar-ul-Haq Gillani for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General on Court's Call.

2005 Y L R 266(2)

[Lahore]

Before Muhammad Khalid Alvi, J

RIAZ HUSSAIN SHAHID---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN, and 2 others---Respondents

Writ Petition No. 1372 of 2004, heard on 27th May, 2004.

Civil Procedure Code (V of 1908)---

----O.VII, R.10 & O.XXXVII, Rr.2 & 3--­Constitution of Pakistan (1973), Art. 199--­Suit for recovery of amount on basis of dishonoured cheques, was filed by plaintiff in Court at place "M"---Defendant had filed application under O. VII, R.10, C. P. C. for return of plaint to plaintiff on ground that no cause of action had arisen within territorial jurisdiction of Court at place "M"---Said application was concurrently dismissed by Courts below and defendant had filed Constitutional petition challenging concurrent orders of Courts below--­Validity---Property in dispute in respect of which cheques were drawn was situated in "ML", the Bank for which cheques were issued was also situated in "ML", said cheques were dishonoured by said Bank in "ML "---For all practical purposes, cause of action, if any, had arisen to plaintiff within the territorial jurisdiction of Civil Court at "ML" and not at "M" where suit was filed by plaintiff---Concurrent orders of two Courts below were declared illegal and without lawful authority by Nigh Court in exercise of its Constitutional jurisdiction--­Trial Court would pass appropriate order for return of plaint for its presentation before proper Court.

1991 SCMR 970 and PLD 2001 SC 518 ref.

Mian Arshad Latif for Petitioner.

Chaudhary Muhammad Arshad for Respondents.

Date of hearing: 27th May, 2004.

2005 Y L R 269

[Lahore]

Before Muhammad Sayeed Akhtar, J

MUHAMMAD NAWAZ TAHIR---Petitioner

Versus

SAID AKBAR---Respondent

Civil Revision No.233 of 1996, heard on 1st September, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.24(1)---Civil Procedure Code (V of 1908), S.148---Pre-emption suit---Extension of time fixed for deposit of 1/3rd of sale price---Scope---Discretion vested with Court exercisable judicially on showing good and sufficient reason never be exercised beyond 30 days of filing of suit Principles.

The Court after filing of the suit has to pass an order for deposit of "Zar-e­-Soem" in cash within such period as the Court may fix. However, the first proviso to section 24(1) has fixed an outer limit of 30 days for deposit of "Zar-e-Soem". Non­-deposit of the same within the time specified by the Court is visited with a penalty i.e. the dismissal of the suit. There is nothing in the language of the section that once the period is fixed by the Court for deposit of "Zar-e-Soem", then same cannot be extended. The only embargo placed on the power of the Court is that the period shall not extend beyond 30 days of the filing of the suit. If the Court has specified time, which is less than 30 days, for deposit of "Zar-e-Soem", the same can be enlarged under section 148, C.P.C., but not beyond 30 days of the filing of the suit. It is the discretion of the Court to extend the time. The phrase "or within such further time as the Court may allow" as mentioned in section 24 of the Punjab Pre­emption Act, 1913 does not find mention in section 24 of the Punjab Pre-emption Act, 1991, but it has not curtailed the power of the Court to enlarge time on tenable grounds for deposit of "Zar-e-Soem" under section 148, C.P.C. not beyond 30 days. The discretion, however, is to be exercised judicially and if good and sufficient reason is shown. The time for deposit of "Zar-e-­Soem" can be enlarged as well, but not beyond 30 days as envisaged by section 24 of Punjab Pre-emption Act, 1991.

Awal Noor District Judge, Karak and 8 others 1992 SCMR 746; Mian Asif Islam v. Mian Shahid Adam and 3 others 1999 SCMR 1350; Muhammad Rafique v. Hassan Bakhsh and others 1993 CLC 622 and Rehman-un-Din and another v. Sahibzada Jehanzeb 2004 SCMR 418 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.24(1)---Civil Procedure Code (V of 1908), S.148---Pre-emption suit---Extension of time for deposit of 1/3rd of sale price--­Suit was instituted on 26-3-1995---Trial Court granted time for such deposit till 19-4-1995---Application for extension of time was made on 18-4-1995 through counsel that Revenue. Authorities had put pre-emptor behind the bars on 13-4-1995 for non-deposit of Government dues---Trial Court dismissed both application and suit--­Appellate Court allowed appeal, granted 7 days time for such deposit and remanded case to Trial Court ---Validity--- Pre-emptor had made application before expiry of initial time fixed for Court---Trial Court had granted 23 days for such deposit--­Appellate Court had exercised discretion on sound judicial principles as there was sufficient cause for extending time---High Court dismissed revision petition.

Mst. Mah Jehan v. Abdul Maroof NLR 2000 Civil 462; Khurshid Brothers v. Abdul Qayum NLR 1980 UC 417; Muhammad Walayat and others v. Liaqat Hayat and others 1983 CLC 2598 and Chiragh and 4 others v. Nizam Din and 4 others PLD 1985 Lah. 101 ref.

Rehman-un-Din and another v Sahibzada Jehanzeb 2004 SCMR 418 rel.

Khalid Ikram Khatana for Petitioner.

Mobeen Siddiqui for Respondent.

Date of hearing: 1st September, 2004.

2005 Y L R 275

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD IMRAN---Petitioner

Versus

THE STATE---Respondent

Cr. Miscellaneous No.643-B of 2004, decided on 23rd September, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Further inquiry---Accused was found innocent by police in investigation and such finding of police was not tainted with malice---Crime weapon Pistol .30 bore with which accused was allegedly armed, had not been recovered from accused despite he remained on physical remand---Specific role of causing fire-arms injuries on the person of deceased was attributed to other accused persons and injuries allegedly caused by said accused persons were found to be fatal---Sharing of common intention by accused with other accused persons was yet to be determined---Accused who was behind the bars since his arrest, had no previous history of his involvement in such like cases---Case of accused fell within ambit of further inquiry---Challan of case had already been submitted and next date of hearing had been fixed---Accused was admitted to bail, in circumstances.

Imran Mahmood Akhtar for Petitioner.

Sheikh Abdul Ghaffar for the Complainant.

Wajid Aftab Misson for the State.

Ahmad Hassan, A.S.-I.

2005 Y L R 289

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL LATIF and 2 others---Appellants

Versus

P.A.F. COLLEGE, SARGODHA through Principal---Respondent

Civil Revision No.201 of 2004, decided on 24th September, 2004.

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

----O.XLI, R.33---Court of appeal reversing finding of Trial Court---Scope---Appellate Court was duty bound to advert to such findings and reappraise evidence on record.

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

----S.115 & O.XLI, R.33--Qanun-e­-Shahadat (10 of 1984), Arts.17(2) (a) & 79---Suit for recovery of money based on agreement and indemnity bond executed by defendant---Failure of plaintiff to prove such documents in terms of Art. 79 read with Art. 17 of Qanun-e-Shahadat, 1984--­Suit dismissed by Trial Court on such ground was decreed by Appellate Court without adverting to such aspect of case---Validity---Findings reached by Appellate Court while totally ignoring reasons given by Trial Court for a contrary finding, could not be upheld---Appellate Court had decided case in violation of parameters prescribed by Supreme Court, thus, committed material illegality and irregularity---High Court accepted revision petition, resultantly appeal would be deemed to be pending before Appellate Court for its decision afresh in terms of law laid in Madan Gopal 's case PLD 1969 SC 617.

Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Government of Sindh through Land Acquisition Officer and another v. Noor Muhammad and 2 others 1996 CLC 412; Punjab Province through Deputy Director, Mineral Development, Jhelum v. Malik Shahbaz Khan 1980 CLC 857; Government of Pakistan through Secretary, Ministry of Defence and others v. Gul Zaman and 8 others PLD 1993 SC (AJ&K) 8 and Government of Sindh through Secretary Housing, Karachi and 2 others v. Haji Abdul Rehman and 14 others PLD 1992 Kar. 150 ref.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and Shaukat Nawaz v. Mansab Dad and another 1988 SCMR 851 rel.

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

---Arts.189 & 190 Decision of Supreme Court binding on each and every organ of State.

Iftikhar Ahmad Mali, Advocate.

Kh. Tariq Masood, Advocate.

2005 Y L R 295

[Lahore]

Before Muhammad Muzammal Khan, J

IRSHAD AHMED KHOKHAR---Petitioner

Versus

AMIR AKBAR KHAN and 5 others---Respondents

Writ Petition No. 1107 of 2004, decided on 16th September, 2004.

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

----S.13(3)(ii)---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Non-residential building---Ejectment---Bona fide personal need of landlord--­Alteration---Petitioner filed ejectment petition in the Court of Rent Controller on the basis of personal need, subletting and alterations made by tenant---Petitioner had made the averments in his deposition that he had returned from abroad and waited to start his own business and his daughter was studying medicine and she wanted to start her own clinic---Rent Controller dismissed the ejectment petition and appeal against such order had failed---Validity---Ejectment of tenant on ground of bona fide personal need of the landlord could not be refused when statement of the landlord on oath was consistent with his averments in the ejectment petition and remained unshaken during the cross-examination and otherwise was not disproved in rebuttal by the tenant.

Muhammad Shoaib Alam v. Muhammad Iqbal 2000 SCJ 306 and National Development Finance Corporation v. Sheikh Nasim-ud-Din and others PLD 1997 SC 564 rel.

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

----S.13---Islamabad Rent Restriction Ordinance (IV of 2001), S.17(6)--­Constitution of Pakistan (1973), Art. 199--­Bona fide personal need of landlord--­Constitutional petition---Re-occupation/restoration of tenancy---Temporary job by the landlord waiting vacation of the property was neither illegal nor it negatively reflected on his personal requirement---Termination letter had lent support to his stance already taken by him---Findings to non-suit the landlord were presumptive and insufficient---Change made in the building without permission of the landlord and local authority---No evidence was produced to rebut the charge of subletting---Appellate Court had not given the findings in accordance with law and the evidence on the file---Constitutional petition was accepted and case was remanded for fresh decision.

Muhammad Shoaib Alain v. Muhammad Iqbal 2000 SCJ 306 ref.

(c) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 1---Pagrri---Advance money--­Provision of "Pagrri " does not exist in the Islamabad Rent Restriction Ordinance, 2001---Thing given by the tenant for his advantage could not be used against the interest of the landlord.

Ahmad Hassan Kanwar for Petitioner.

Zaheer Bashir Ahmad Ansari along with Maulvi Ijaz ul Haq for Respondents.

2005 Y L R 301

[Lahore]

Before Syed Jamshed Ali, J

REHMAT ALI and another---Petitioners

Versus

FAQIR MUHAMMAD and others---Respondents

Civil Revision No.201-D of 1987, heard on 8th July, 2004.

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

----S.115---Revision---New plea or question of law, raising of---Scope---New plea could not be raised for first time before higher forum---Question of law not requiring factual inquiry for its determination could be raised at any stage of proceedings--­Questions of law summarized.

A new plea cannot be allowed to be raised for the first time before a higher forum. However, a question of law can be raised at any stage of the proceedings. An inference from admitted facts, effect and construction of a document, law applicable on the admitted or proved facts are questions of law, which can be raised at any stage of the proceedings subject to the qualifications that a factual inquiry is not required to determine it.

Khan Aziz Hassan Khan v. Haji Muhammad Ismail PLD 1972 Lah. 142 and Safdar Ali through his legal heirs and 3 others v. Muhammad Malik and 4 others 1995 CLC 1751 fol.

(b) Administration of Justice---

----Admitted or proved facts---Duty of Court to apply law applicable on such facts though not relied upon by a party-­Principles.

It is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable to the admitted or proved facts same had to be given effect to whether or not it has been relied upon by a party.

Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 53; Abdus Saeed Khan and 2 others G. Basharat Ali and 13 others PLD 1995 Lah. 255 and Pakistan through General Manager, P.W.R., Lahore v. Mrs. A. V. Issacs PLD 1970 SC 288 ref.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Khan Aziz Hassan Khan v. Haji Muhammad Ismail PLD 1972 Lah. 142 and Safdar Ali and others v. Muhammad Malik and others 1995 CLC 1751 fol.

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

----Ss. 12, 17 & 21 (c) (g)---Contract Act (IX of 1872), Ss.25 & 29---Civil Procedure Code (V of 1908), S.115---Suit for specific performance of agreement to sell---Suit decreed by Courts below concurrently--­Defendant for first time raised pleas before High Court in revision that suit being for partial performance was not maintainable and that agreement lacking mutuality, being vague, uncertain and without consideration, was void---Validity---Such questions being questions of law going to root of the case would not require further investigation into facts---For plea of partial performance, agreement and plaint would be looked into---One dimension (i.e. from north to south) of land agreed to be sold had been given in agreement without specifying its East to West dimension and description in terms of revenue record---Omission to sue for entire area was not explained in plaint----Plaintiff had not undertaken any reciprocal obligation in agreement to purchase land offered by vendor or paid any earnest money to vendor---Such offer of vendor, thus, would be a gratis promise and in absence of its acceptance by plaintiff would not consummate into a binding and enforceable contract---Plaintiff was bound to show that despite seeking partial performance, his case fell under Ss. 14, 15 or 16 of Specific Relief Act and S.17 thereof was not attracted---Suit was hit by Ss. 17 & 21 of Specific Relief Act, 1877 and Ss.25 & 29 of Contract Act, 1872, which could not be decreed---High Court accepted revision, set aside impugned judgments/decrees and dismissed suit.

Alamdar Hussain v. Nazir Hussain and others 2004 PSC 815; Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others 1993 SCMR 804; Chaudhry Shah Muhammad and 6 others v. Muhammad Ishaq and 5 others 2001 MLD 1518; Shaikh Javed Khalid Akhtar v. Deputy Commissioner, Khanewal and 4 others 2001 MLD 151; Kahn and Kahn v. Premsukh AIR 1931 Lah. 260; Shaukat Ali v. Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and 3 others 1995 MLD 123; Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lah. 623; Fateh Muhammad v. Faqir Ullah 2001 CLC 801; Muhammad Azam Muhammad Fazil and Co., Karachi v. Messrs N.A. Industries, Karachi PLD 1977 Kar. 21; Shajar Ali Hoti v. Esmail Sobani 1987 CLC 2307 and Muhammad Yaqoob v. Muhammad Nasrullah Khan and others PLD 1986 SC 497 ref.

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

----S. 2 (b) (e)---Offer and acceptance of promise---Unless an offer is accepted, same would not consummate into a binding and enforceable contract.

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

----S.12---Civil Procedure Code (V of 1908), S.115---Suit for specific performance of agreement to sell---Suit decreed by Courts below concurrently---Defendant's plea in revision was that plaintiff had not alleged in plaint his willingness and readiness to perform contract---Such plea was a mired question of law and fact---Had such plea been taken earlier, same could have been met---Such plea was not allowed to be raised for first time before High Court.

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

----Ss.5 & 12---Specific performance of contract, grant of---Discretionary with the Court.

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

----S.12---Suit for specific performance of agreement to sell---Filing of suit after 5 years of agreement without showing that plaintiff had ever offered sale consideration to vendor after that---Grant of specific performance was discretionary---Specific performance in such case, ought not to be granted.

Imran Mehmood for Petitioner.

Syed Abid Mumtaz Tirmizi for Petitioners.

Rana Bashir Ahmad Khan for Respondents Nos. 1, 3 and 5.

A.K. Dogar for Respondent No.2.

Date of hearing: 8th July. 2004.

2005 Y L R 316

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD ARIF---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAISALABAD and 2 others---Respondents

Writ Petition No.7275 of 2004, heard on 7th July, 2004.

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

----Art.189---Judgment of Supreme Court--­Effect---Judgment of Supreme Court is binding upon all the Courts pursuant to Art. 189 of the Constitution.

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

----Ss.15 & 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Ejectment of tenant---Execution proceedings---Appeal against order--­Objection filed by tenant was accepted by Rent Controller and execution petition was dismissed---Appellate Court allowed the appeal and objection petition was dismissed---Plea raised by the tenant was that no appeal could be filed against the order passed in execution proceedings--­Validity---Any final order passed by Rent Controller under S.17 of West Pakistan Urban Rent Restriction Ordinance, 1959, was appealable to District Judge under S.15(1) of West Pakistan Urban Rent Restriction Ordinance, 1959---Appeal before Appellate Court was competent, hence the Judgment did not call for any interference by High Court and the same was maintained---Constitutional petition was dismissed in circumstances.

Jalal Khan v. Habibullah 1987 CLC 1345; Haji Abdul Wali Khan v. Muhammad Hanif 1985 CLC 827; Haji Muhammad Ramzan and others v. Abdur Rashid and others PLD 1997 Lah.451; Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317; Mst. Samina Gul v. Zainab Din PLD 2002 Pesh.30 and Commissioner of Income Tax and Wealth Tax, Sargodha Zone, Sargodha v. Messrs Irshad Anwar & Co. 2002 PTD 750 distinguished.

Attaul Haque and others v. Additional District Judge and another 1992 MLD 1409; Muhammad Safdar v. Sardar Muhammad and others 1991 MLD 1587 and Manzoor Hussain v. Muhammad Ali and another 1990 MLD 1227 ref.

Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2457 fol.

Ch. Manzoor Hussain for Petitioner.

Mian Abdul Quddous for Respondents.

Date of hearing: 7th July, 2004.

2005 Y L R 324

[Lahore]

Before Muhammad Khalid Alvi and Muhammad Akram Baitu, JJ

SAEED AHMAD KHAN‑--Appellant

Versus

ASHRAF NADEEM‑‑‑Respondent

R.F.A. No.37 of 1996, heard on 7th June, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, R.1‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.72‑‑‑Recovery of amount‑‑­Pronote, execution of ‑‑‑Proof‑‑‑Non­ appearance of plaintiff in witness box‑‑­Plaintiff claimed recovery of amount on the basis of pronote executed by defendant in his favour‑‑‑ Plaintiff appointed his brother as special attorney to contest the case‑‑­Attorney showed his ignorance regarding the transaction which resulted into execution of disputed pronote‑‑‑Marginal witnesses of the receipt regarding payment of the disputed amount also did not enter appearance before Trial Court in support of plaintiff‑‑‑Suit was dismissed by Trial Court‑‑‑Validity‑‑‑Plaintiff failed to prove the execution of pronote, the Trial Court had rightly dismissed the suit‑‑‑Appeal was dismissed in circumstances.

Rana Abdul Qadeer Khan for Appellant.

Mian Arshad Latif for Respondent.

Date of hearing: 7th June, 2004.

2005 Y L R 326

[Lahore]

Before Muhammad Muzammal Khan, J

Al‑Hajj RAEES AHMAD QURESHI‑‑‑Petitioner

Versus

WATER AND SANITATION AGENCY (WASA.) through Managing Director and 4 others‑‑‑Respondents

Writ Petition No.13009, 16472 of 1995, 4744 of 1997 and 23368 of 1996, heard on 8th July, 2004.

(a) Lahore Development Authority Act (XXXV of 1975)‑‑‑--

‑‑‑‑S.6‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition—Construction of building without sanctioned plan allowed by High Court through interim order at petitioner's risk and cost‑‑‑Validity‑‑‑Such order would not create any right.

(b) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)‑‑‑

‑‑‑‑S.3‑‑‑Holding of Jumma/Ramzan Bazar over Nazool land‑‑‑Such land neither controlled by Administrator, Market Committee nor a notified market area under Punjab Agricultural Produce Markets Ordinance, 1978‑‑‑Validity‑‑­Holding market over such land would not confer any right on shopkeepers of such Bazzar.

(c) Lahore Development Authority Act (XXXV of 1975)‑‑‑

‑‑‑‑S.6‑‑‑Petroleum Rules, 1937, R.114‑‑­Constitution of Pakistan (1973), Art.199‑‑‑ Constitutional petition‑‑‑Construction of petrol pump on leased Nazool land having a drain at its back‑‑‑Non‑sanctioning of building plan by Lahore Development Authority‑‑‑Cancellation of "No Objection Certificate" granted by District Magistrate to install petrol pump‑‑‑Plea of Water and Sanitation Agency (WASA) was that such construction would obstruct flow of sullage water in drain‑‑‑Validity‑‑‑Petitioner's claim denying alleged obstruction, being a disputed fact, could not be gone into Constitutional jurisdiction of High Court‑‑­Dispute regarding installation of petrol pump on a green belt or its out‑side could only be settled after proper investigation‑‑­Restriction of distance between two petrol pumps was a matter requiring determination after site inspection ‑‑‑ Deputy Commissioner had requested Board of Revenue in public interest for cancellation of land leased out to petitioner for installation of petrol pump‑‑‑Ministry of Natural Resources Division had granted sanction to WASA for leasing out berms of disputed drain for nurseries etc. to protect its decay/erosion and to give a better outlook ‑‑‑WASA having control of berms of drainage had a just cause, which had proposed to set up nurseries thereon‑‑­Revocation of "NOC" by District Magistrate was not without jurisdiction, arbitrary or fanciful‑‑‑No fresh lease had been executed in favour of petitioner after expiry of original period of lease‑‑­High Court dismissed Constitutional petition being non‑maintainable.

(d) Punjab Land Administration and Management Manual‑‑‑--

‑‑‑‑Para.785‑‑‑Lease of Nazool land by orders of Chief Minister or Deputy Commissioner‑‑‑Validity‑‑‑Chief Minister had no authority to transfer/lease Nazool land under control of Board of Revenue without observing legal formalities‑‑­Competent authority qua Nazool Land was Board of Revenue and not Chief Minister or Deputy Commissioner.

(e) Punjab Land Administration and Management Manual‑---

‑‑‑‑ Appendix III‑C, Para.6‑‑‑Rules for lease of waste land‑‑‑Object stated.

The procedure as prescribed in rule 6 aims at culminating corruption/ secret transactions and safeguards the interest of Government treasury and the interests of public at large as well. Any action processed or completed in departure of such procedure would have no legal sanctity.

(f) Punjab Land Administration and Management Manual‑---

‑‑‑‑ Paras. 783 & 784‑‑‑Punjab Colony Manual, Para. 231‑‑‑Board of Revenue's Standing Order No.67 paras.36 & 54‑‑­Board of Revenue's Circular No.5525 ­75‑1/234‑CS, dated 23‑1‑1976‑‑‑Lease of land for building purposes‑‑‑Proposed transaction should be advertised one month before its submission to Government‑‑­Authorities were bound to follow procedure prescribed to ensure fair play and transparency‑‑‑Any departure from such procedure would be illegal and unconstitutional, if same infringed/denied right of public especially of those having equal right to proposed transaction or felt interested to agitate there against by raising lawful objections.

Saleem Shenazi for Petitioner.

Nasrullah Babar for Respondents.

Date of hearing: 8th July, 2004.

2005 Y L R 337

[Lahore]

Before Ch. Ijaz Ahmad, J.

SARFRAZ HUSSAIN‑‑‑Petitioner

Versus

CHAIRMAN, WATER AND POWER DEVELOPMENT AUTHORITY, WAPDA HOUSE, LAHORE and 5 others‑‑‑Respondents

Writ Petition No. 13108 of 2004, decided on 2nd September, 2004.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑­Scope‑‑‑High Court has ample jurisdiction to look into the subsequent events at the time of deciding cases.

Nasir Jamal v. Zubeida Begum 1990 CLC 1069 and Mst. Amina Begum and others v. Mehr Ghulam Dastgir PLD 1978 SC 220 ref.

(b) Contempt of Court‑‑‑--

‑‑‑‑ Contempt is always between the contemner and the Court.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑­Nature‑‑‑Constitutional jurisdiction is discretionary in character.

Rana Muhammad Arshad's case 1998 SCMR 1462 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 ref.

(d) Equity‑‑‑

‑‑‑‑ He who seeks equity must come in the Court with clean hands.

Muhammad Hanif Saleemi for Petitioner.

Ilyas Khan, Hafiz Muhammad Yousaf, Abdul Rehman Madni along with Muhammad Arif D.M.O. T.T. Singh and Ghulam Farooq, A.M.O. Pirmahal and Muhammad Nawaz Bhatti, Deputy Attorney‑General for Pakistan.

2005 Y L R 341

[Lahore]

Before Muhammad Muzammal Khan, J

WAPDA through its Chairman and 4 others‑‑‑Petitioners

Versus

KARAM DIN ‑‑‑Respondent

Civil Revision No.1407 of 2004, decided on 2nd July, 2004.

(a) Limitation Act (IX of 1908)‑‑‑--

‑‑‑‑S.5‑‑‑Delay‑‑‑Condonation of‑‑‑Ill advice by the counsel was not sufficient for condonation of delay.

Zulfiqar Ali v. Lal Din and another 1974 SCMR 162; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others 1997 SCMR 296 and Bashir Ahmad v. Muhammad Sharif and 4 others PLD 2001 SC 228 ref.

(b) Limitation‑‑‑--

‑‑‑‑ Question of limitation‑‑‑Government could trot be treated differently than the private individuals on the question of limitation.

Government of the Punjab through Secretary (Services). Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396 ref.

(c) Limitation‑‑‑--

‑‑‑‑ Limitation once having started to run, could not be stopped by any subsequent act.

Cantonment Board. Rawalpindi v. Muhammad Sharif through Legal Heirs PLD 1995 SC 472 ref.

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

‑‑‑‑S.96 & O.XLI, R.I‑‑‑Limitation Act (IX of 1908). S.5‑‑‑First appeal‑‑Limitation‑‑­Delay, condonation of‑‑‑In all cases, where condonation was prayed, each day's delay had to be explained‑‑‑Appellants, in the present case, had filed delayed appeal, but they had not given any explanation for such delay except that their counsel had intimated that appeal could be filed till a particular date‑‑‑Said explanation was not enough and ill advice of counsel was not sufficient for condonation of delay.

Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304 ref.

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

‑‑‑‑Ss.115 & 96‑‑‑Appeal‑‑‑Delay—Condonation of ‑‑‑Revisional jurisdiction exercise of ‑‑Appellate Court below applying law correctly had rightly found that appeal filed by appellants against judgment and decree of Trial Court was barred by limitation and that delay in filing appeal could not be condoned‑‑­Judgment/order of Appellate Court below not being arbitrary or fanciful could not be interfered with by High Court in exercise of its revisional jurisdiction in absence of any illegality or irregularity in judgment/order of appellate Court.

Malik Muhammad Tariq Awan for Petitioner.

2005 Y L R 344

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

SHAHID SARWAR‑‑‑Petitioner

Versus

CHAIRMAN, ADMISSION BOARD/PRINCIPAL, KING EDWARD MEDICAL COLLEGE, LAHORE ‑‑‑Respondent

Writ Petition No. 14112 of 2004, decided on 7th September, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Admission in Medical College‑‑‑Filing of application for admission after target date fixed in advertisement issued by authority‑‑‑Refusal of authority to condone delay for issuance of Admission Packet‑‑‑ Validity Authority had decided application in terms of its Rules and Regulations‑‑‑Impugned order was not violative of such Rules and Regulations, which was condition precedent for maintainability of Constitutional petition‑‑‑No malice had been alleged against the authority‑‑‑High Court had no jurisdiction to extend date fixed by authority‑‑‑Fixation of date was prerogative of authority, which fact would bring case in area of policy‑‑‑High Court had jurisdiction only to interpret law, but not to take the role of policy maker‑‑‑Petitioner was not entitled to any discretionary relief for non­ filing application within prescribed time‑‑­Issuance of direction for entertaining application of petitioner would create administrative problems for authority‑‑­High Court dismissed Constitutional petition in limine for being not maintainable.

Chairman, Board of Intermediate and Secondary Education Lahore and another v. Ali Mir 1984 SCMR 433; Saeed Nawaz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1981 Lah. 371; Dr. Haq Nawaz v. Balochistan Public Service Commission through Chairman and 2 others 1996 CLC 58; Muhammad Zubair v. The Principal. Hailey College of Commerce, University of the Punjab 1997 MLD 946; The State v. Zia‑ur‑Rehman and others PLD 1973 SC 49; Government of Pakistan through Secretary Ministry of Commerce and another PLD 1975 SC 667 and Zamir Ahmad Khan v. Government of Pakistan and another 1978 SCMR 327 rel.

Sh. Muhammad Siddique for Petitioner.

2005 Y L R 355

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. SAKINA BIBI KAUSAR through Special Attorney‑‑‑Petitioner

Versus

Mst. ROBINA KAUSAR and 3 others ‑‑‑Respondents

Civil Revision No. 109‑D of 2002, heard on 28th June, 2004.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115, O.VII, R.11 & O.X, R.2‑‑­Suit for declaration‑‑‑Better statement‑‑­Recording of‑‑‑Plaintiff in her suit had challenged mutation of gift made in favour of defendant by her and donee's father on the ground of fraud and misrepresentation‑‑‑Plaintiff had alleged that her father was suffering from serious ailment and mutation of gift in favour of defendant was got registered through fraud and misrepresentation‑‑‑During proceedings of suit father of plaintiff allegedly appeared before the Court and recorded his better statement under O.X, R.2, C. P. C. stating that he, with his own consent, had gifted away property in dispute in favour of defendant his other daughter in lieu of her service rendered to him‑‑‑Trial Court on said statement of father framed additional issue and dismissed suit‑‑‑Appeal against said judgment having been dismissed, plaintiff filed revision against judgment of Courts below‑‑‑Statement of father under O. X, R. 2, C P. C. was not an evidence as it was not recorded in presence of the plaintiff‑‑‑Plaintiff was also not afforded an opportunity to cross‑examine the donor (father) and Trial Court had deviated from normal and proper procedure prescribed in C.P.C. and dismissed suit of plaintiff without taking into consideration provisions of O.VII, R.11, C. P. C. which had provided that where‑ plaint did not disclose cause of action, plaint was liable to be rejected and not dismissed‑‑‑Concurrent judgments and decrees passed by two Courts below were set aside in revision by High Court and case was remanded to Trial Court to decide afresh in accordance with law after affording opportunity of hearing to parties and producing evidence within specified period.

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

‑‑‑‑O.X, R.2‑‑‑Better statement‑‑‑Recording of‑‑‑Better statement under O.X, R.2, C.P.C. was to be recorded for the purpose of ascertaining the real matter in controversy‑‑‑Court could examine parties, if pleadings of parties were needing any clarity and for the purpose of getting case of parties properly on record or if felt necessary to frame proper and legal issues if pleadings of parties were ambiguous and evasive‑‑‑Statement under O. X, R.2, C.P.C. could be taken into consideration, but it could not take the‑ place of a statement made on oath and it could not be given the status of an admission which could be conclusive‑‑‑Powers conferred by O.X, R. 2, C. P. C. were intended to be used by the Court only when it found necessary to obtain from a party information on any material question relating to the suit and ought not to be employed so as to supersede the Code of Civil Procedure:

Sher Singh and others v. Pierthi Singh and others AIR 1975 Allahabad 259 ref.

(c) Evidence‑‑‑--

‑‑‑‑ Statement of a party unless substantiated by evidence of the party in witness box, could not be treated as evidence against opposite party who had no opportunity of cross‑examining the maker of such statement‑‑‑Party to a suit must give evidence as a witness in respect of matters which were directly within his knowledge.

Manmohan Das and others v. Mt. Ramdei and another AIR 1931 P.C. 175 and Dogar Mal‑Amir Chand v. .P.A. Pleader AIR 1930 Lah. 947 ref.

Javed Ahmed Bhatti for Petitioner.

Sardar Asmatullah Khan for Respondents.

Date of hearing: 28th June, 2004.

2005 Y L R 359

[Lahore]

Before Ch. Ijaz Ahmad, J

DUR‑E‑NAJAF‑‑‑Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN, through Secretary, Defence, Ministry of Defence, Islambad and 2 others –­Respondents

Writ Petition No. 18586 of 2001, decided on 25th October, 2004.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition, dis­posal of‑‑‑Undertaking given by Legal Advisor of one department would not be binding upon another department.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court could not take the role of Legislature or executive.

The State v. Zia‑ur‑Rehman and others PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

(c) Cantonments Act (II of 1924)‑‑‑

‑‑‑‑Ss.68, 84, 90, 99‑A, 100 & 277‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Demand of property tax from disabled lady‑‑­Exemption from tax, claim ‑ for‑‑­Cantonment Board rejected petitioner's claim‑‑‑Validity‑‑‑Petitioner had more than one alternative remedies viz. either to file appeal, revision or approach Central Government in terms of Ss.99‑A & 100 of Cantonments Act, 1924 for formulation of scheme qua disabled persons for exemption from property tax or approach Wafaqi Mohtasib‑‑‑Constitutional petition against demand notice, held, was not maintainable.

Mst. Razia Begum v. Cantonment Board Clifton 2000 YLR 2114; Mst. Hussain Bibi v. Haji Muhammad Din 1976 SCMR 395 and Secretary to the Government of the Punjab Forest Department, Punjab Lahore v. Ghulam Nabi and 3 others PLD 2001 SC 415 ref.

Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109; State Bank of Pakistan v. The Director Military Lands and Cantonments Rawalpindi and others PLD 1990 SC 827; Chief Administrative Auqaf Government of Punjab v. Cantonment Board, Bahawalpur and others 2001 MLD 1660 and Mst. Shagufta Begum's case PLD 1989 SC 360 rel.

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

‑‑‑‑Art.199‑‑‑Demand notice—Constitutional petition not maintainable against such notice.

Mst. Shagufta Begum's case PLD 1989 SC 360 rel.

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

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), S.141 & O.I, R.8‑‑‑Constitutional petition in representative capacity‑‑­Validity‑‑‑Principles of C. P. C. would be applicable in Constitutional proceedings‑‑­Such petition without fulfilling mandatory provisions of O.I, R.8, C. P. C., would not be maintainable.

Anjuman Araian, Bhera v, Abdul Rashid and 5 others PLD 1973 Lah. 500 and Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1 rel.

Javaid Shaukat Malik for Petitioner.

Ch. Muhammad Rashid Ahmad for Respondents Nos.2 and 3.

Tariq Shamim Standing counsel on behalf of the Attorney General for Pakistan under Order 27‑A, C.P.C.

Muhammad Jahangir Wahla for Respondent No.1.

2005 Y L R 364

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SHARIF through Legal Heirs and others‑‑‑Petitioners

Versus

INAYAT ALI through Legal Heirs and others‑‑‑Respondents

Civil Revision No.482‑D of 2003, heard on 28th September, 2004.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Declaration of title ‑‑­Benami owners‑‑‑Joint family holdings‑‑­Utility bills‑‑‑Proof of ownership‑‑­Plaintiffs claimed that the suit house was exclusively owned by their deceased father and the defendants who were younger brothers of their father had no concern with the house‑‑‑Contention of the plaintiffs was that the defendants had surrendered their right in favour of their father in a family settlement as they were Benami owners of the plot beneath the suit house‑‑‑Plaintiffs produced utility bills to prove their ownership and Trial Court decreed the suit in favour of the plaintiffs but Appellate Court allowed the appeal and the suit was dismissed‑‑‑Validity‑‑‑Stand taken by the plaintiffs was self‑contradictory and self­ destructive because if the two brothers were Benami owners of the plot in dispute, then they could not surrender their rights and there could not be any question of family settlement between the real owner and Benamidar‑‑‑It was common in joint family system that elder of the family, enjoyed administrative control of the property and held the same for the benefit of the other co‑sharers as well‑‑‑Utility bills, thus did not convey that two other brothers stood excluded from the property in dispute ‑‑‑Co­ sharer in joint property was neither stopped from claiming his share therein, nor his such right could be extinguished by lapse of time at the same time his sleeping over in the matter would not exclude him from the property as clamed by the plaintiffs‑‑­Appellate Court rightly took a lawful view of the matter and returned correct findings in support of his judgment which were in consonance with the evidence on file‑‑­Neither any part of the record was misread nor any illegality/irregularity was committed by Appellate Court amenable to revisional jurisdiction of High Court‑‑­Revision was dismissed accordingly.

Sadar Din v. Mst. Khatoon and others 2004 SCMR 1102; Muhammad Amin and 5 others v. Muhammad Latif 1987 CLC 2358 and Muhammad Saeed v. Mst. Nahid Shagufta and 3 others PLD 1990 Lah. 467 rel.

(b) Co‑sharer‑‑‑

‑‑‑‑Right of co‑sharer‑‑‑Scope‑‑‑Co‑sharer in joint property is neither stopped for claiming his share therein, nor his such right can be extinguished by lapse of time at the same time his sleeping over the matter does not exclude him from the property.

Akhtar Masood Khan for Petitioners.

Sheikh Naveed Shaharyar for Respondents.

Date of hearing: 28th September, 2004.

2005 Y L R 376

[Lahore]

Before, Ch. Ijaz Ahmad, J

MUHAMMAD ANS and others‑‑‑Appellants

Versus

AKBAR ALI and others‑‑‑Respondents

R.S.A. No. 33 of 2002, heard on 13th October, 2004.

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

‑‑‑‑Ss. 4 & 21‑‑‑Pre‑emption right, exercise of‑‑‑Plea of estoppel ‑‑‑Applicability‑‑­Principle‑‑‑Courts, in pre‑emption cases, have always insisted upon plea of estoppel being proved on the basis of cogent and convincing evidence.

Abdul Karim's case PLD 1985 Lah. 552 rel.

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

‑‑‑‑Ss. 4 & 21‑‑‑Pre‑emption right, exercise of‑‑‑Plea of estoppel Vendee setting such plea on prior assurance of pre‑emptor that he would not pre‑empt the sale ‑‑‑Validity‑‑­Vendee who settles his bargain with vendor and buys property relying on prior assurance of pre‑emptor that he would not pre‑empt, such vendee cannot successfully set up the plea of estoppel and waiver in a suit for pre‑emption.

Govindsa's case AIR 1950. Nagpur 22; Kanhai Lal's case ILR 27 All. 670; Mst. Nasrin Akhtar's case NLR 1990 Civil 401; Ch. Barkat Ali's case PLD 1955 Lah. 548; Ocean Industry Limited's case PLD 1966 SC 738 and West Punjab Government's case PLD 1960 SC 88 rel.

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

‑‑‑‑Ss. 4 & 21‑‑‑Civil Procedure Code (V of 1908), O. XLI, R. 27‑‑‑Superior right of pre‑emption ‑‑‑Proof‑‑‑Misreading and non ­reading of evidence‑‑‑Trial Court decreed the suit' of pre‑emption on the ground that they had superior right of pre‑emption‑‑­During pendency of appeal before Appellate Court, vendees had filed application under O. XLI, R. 27--C.P.C. for placing on record a copy of mutation showing that the vendees were owners of some land prior to the sale under pre‑emption ‑‑‑Appellate Court dismissed the application for additional evidence but relying on proposed evidence, allowed the appeal and the suit was dismissed‑‑‑Validity‑‑‑Appellate Court erred in law to take judicial notice of the document which was not part and parcel of pleadings of parties and record of appeal as well as of Trial Court‑‑‑Such judicial notice showed that Appellate Court had accepted appeal without judicial application of mind which was not in consonance with law‑‑‑Findings of Appellate Court were reversed and that of Trial Court were upheld:

Ch. Barkat Ali v. Chanan Din PLD 1955 Lah. 548; Muhammad Afsar v. Muhammad Sharif 1989 CLC 1850 and Mst. Murad Begum and others v. Muhammad Rafique and others PLD 1974 SC 322 ref.

Dost Muhammad Khan v. Imam Bakhsh PLD 1971 Pesh. 150 and Mst. Amina Bi v. Mst. Bivi and others 1993 MLD 1207 distinguished.

Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 rel.

(d) Administration of justice‑‑‑

‑‑‑Judicial officers, duties of‑‑‑Scope‑‑‑Judicial officers are duty bound to decide cases after application of mind‑‑‑All laws of country must be on the sleeves of Judges.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 rel.

Hafiz Khalid Ahmed for Appellants.

Ch. Muhammad Akbar far Respondent.

Date of hearing: 13th October, 2004.

2005 Y L R 388

[Lahore]

Before Ch. Ijaz Ahmad, J

WATAN PARTY through President, Lahore‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Law Secretary, Ministry of Justice and Parliamentary Affairs, Islamabad and 7 others‑‑‑Respondents

Writ Petition No. 3930 of 2002, decided on 26th October, 2004.

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

‑‑‑‑Arts.193, 199 & 270(AA)‑‑‑Oath of Office (Judges) Order (Chief Executive Order No.1 of 2000/‑‑‑Constitutional petition‑‑‑Appointment of Judges‑‑‑Principle of seniority‑‑‑Applicability‑‑‑Elevation of four Judges to High Court was assailed by petitioner‑‑‑Contention of petitioner was that the principle of seniority was not adhered to while snaking the appointments‑‑‑Plea raised by Government was that the matter had already been settled by Supreme Court in earlier decisions and petitioner had no locus standi to file the present petition‑‑‑Validity‑‑‑Question of law had already been decided by Supreme Court and keeping in view the analogy laid down by Supreme Court in case titled Supreme Court Bar Association v. Federation of Pakistan and others. reported as PLD 2002 SC 939, the principle of seniority was not attracted. in the present case‑‑‑Contention of petitioner had some weight but in view of Arts. 189 and 190 of the Constitution, High Court refrained to take any view which was contrary to the principle laid down by Supreme Court‑‑‑Petition was dismissed in circumstances.

Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; Al‑Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; Government of Sindh v. Sharaf Faridi and others PLD 1994 SC 105; Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; S.P. Gupta v. M. Tarkunde AIR 1982 SC 149; S.P. Bharucha M.K. Mukherjee v. Manohar, G.T. Nanavati, S. Saghir Ahmad K. Venkataswami AIR 1999 SC 1; S. Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma.M.M. Punchhi, Yogeshwar Dayal AIR 1994 SC 268; State of Bihar v. Madan Mohan Prasad and others AIR 1976 SC 404; Supreme Court Bar Association v. Federation of Pakistan and others PLD 2002 SC 939; Mr. Justice Ghulam Hyder Lakho, High Court of Sindh, Karachi and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Islamabad and others PLD 2000 SC 179 and M.A. Khan Lughari's case PLD 1967 Lah. 227 rel.

(b) Obiter dicta‑‑‑

‑‑‑‑ Even obiter dicta of Supreme Court are binding upon High Court‑‑‑Any observation by Supreme Court even when obiter, is binding on High Court.

M. Ismail and Sons v. Trans­ Oceanic Steamship Co. Ltd. and others PLD 1966 Dacca 296; Ghaus Muhammad v. The State and another PLD 1978 Lah. 1235; Martial Law Administrator, Zone "D" and others v. Muhammad Niaz PLD 1979 SC 921 and The State v. Aziz Ahmed and another 1975 PCr.LJ 105 rel.

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

‑‑‑‑Arts. 189 & 190‑‑‑Judgment passed by Supreme Court‑‑‑Deviation‑‑‑Supreme Court has not approved deviation from its judgment.

Ghaus Muhammad v. The State and another PLD 1978 Lah. 1235 and Martial Law Administrator, Zone `D' and others v. Muhammad Niaz PLD 1979 SC 921 rel.

Zafar Ullah Khan for Petitioner.

Dr. Danishwar Malik, D.A.G. for Pakistan for Respondents.

2005 Y L R 398

[Lahore]

Before Tanvir Bashir Ansari; J

TALIB HUSSAIN ‑‑‑Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT, GOVERNMENT OF THE PUNJAB and 4 others‑‑‑Respondents

Writ Petition No.16005 of 2004, heard on 20th October, 2004.

(a) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003‑‑‑--

‑‑‑‑R. 15‑A‑‑‑ Panjab Local Government and Rural Development Department's Circular/Instruction No. SOVI (LG) 2‑253/97, dated 30‑10‑2003, clause (h)‑‑­Auction of collection rights‑‑‑Enlistment of contractors‑‑‑Scope‑‑‑Enlistment of contractors according to R. 15‑A of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, is not with reference to the District Government wherein the auction proceedings are held but relates to the respective District Government to which a particular contractor applies for such registration and it is specified in clause (h) of Circular/Instruction No. SOVI (LG) 2‑253/97, dated 30‑10‑2003 issued by Punjab Local Government and Rural Development Department that a contractor registered in any District of Punjab is entitled to participate in the auction proceedings under Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, throughout the Province of Punjab.

(b) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003‑‑‑

‑‑‑‑R. 15‑A‑‑‑ Punjab Local Government and Rural Development Department's Circular/Instruction NO.SOVI (LG) 2‑253 of 1997, dated 30‑10‑2003 cl. (h)‑‑­Constitution of Pakistan (1973), Art.199—­Constitutional petition‑‑‑Auction proceedings‑‑‑Principle of locus poenitentiae‑‑‑Applicability‑‑‑Registration of contractor‑‑‑Rights to collect fee on transfer of immovable property were put to auction by union council‑‑‑Petitioner was the highest bidder and his auction was accepted by Nazim of the union council‑‑­Auction committee of the house had also approved the auction and acceptance letter was issued to the petitioner‑‑‑Formal lease agreement/contract was entered into by the authorities and the petitioner and deposited the requisite amount‑‑‑Provincial Government on the basis of subsequent circular declared that only that contractor could participate in the auction who was registered in the District in which the auction was to be held‑‑‑Plea raised by the petitioner was that on the basis of some subsequent circular his right could not be interfered with and he had aright to collect the fee/tax as he was the highest bidder‑‑­Validity‑‑‑At the time of auction on 24‑5‑2004, the Circular Instructions No. SOVI (LG) 2‑253/97, dated 30‑10‑2003 issued by Punjab Local Government and Rural Development Department, held the field‑‑‑Contractor registered in any District of Punjab was entitled to participate in the auction proceedings under the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, throughout the Province of Punjab‑‑‑Auction proceedings held on 24‑5‑2004 were thus in accordance with the Instructions issued under R. 15‑A of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 and did not suffer from any illegality‑‑‑Subsequent circular issued by Punjab Government would not take effect against the petitioner upon the principle of locus poenitentiae‑‑­Transaction in favour of petitioner was past and closed transaction and the right accrued in his favour could not be taken away as the auction had been acted upon in all its material details‑‑Subsequent circular passed by the Provincial Government had not been made in accordance with the relevant law, rules and instructions holding the field at the time of auction thus the same was set aside‑‑‑High Court directed the authorities to pass the possession of collection rights' to the petitioner as already agreed to by this parties‑‑‑Petition was allowed accordingly.

Writ Petition No.9460 of 2004 ref.

Dr. Khalid Ranjha along with Tariq Shamim for Petitioner.

Malik Muhammad Azam Rasool for Respondents Nos.2 to 4.

Hameed‑ud‑Din and M. A. Zafar for Respondent No.5.

Raja Muhammad Younis Kiani for T.M.A. Kasur, Zahid Nusrat T.M.O., Kasur and Roy Muhammad Munsha T. O. F., Kasur.

Date of hearing: 20th October, 2004.

2005 Y L R 405

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

GHULAM HUSSAIN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 123‑J, 862 and 913 of 1999, Criminal Revision No.461 of 1999 and Murder Reference No.395 of 1999, heard on 27th May, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34 & 392/34‑‑‑Appreciation of evidence‑‑‑Witness having no enmity with the accused‑‑‑Effects‑‑‑Principles‑‑‑Mere absence of enmity of a witness with the accused cannot stamp him as truthful person‑‑‑Real and crucial test is whether the witness had seen the occurrence and his evidence rang true and inspired confidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34 & 392/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses had not identified the accused at the time of occurrence and had dishonestly tried to improve their statements at the trial in order to link them with the crime‑‑‑Identification parade admittedly having been, held without observing the necessary formalities, had no sanctity and identification of accused without the description of their roles in the occurrence had lost its efficacy ‑‑‑ Even otherwise identification parade held after eleven months of the occurrence had no evidentiary value‑‑‑Identity of the accused, thus, was not established beyond doubt‑‑‑Witnesses of extra judicial confession allegedly made by accused were not men of authority to exert influence on the complainant to pardon the accused and their evidence was not believable‑‑‑Said confession being a joint one was also inadmissible in evidence‑‑‑Medical evidence did not in any way connect the accused with the crime as its perpetrators‑‑‑Recovery of crime weapons from the accused was inconsequential in the absence of matching report of the Fire‑arm Expert of the crime empties with the same‑‑‑Motive for the occurrence was not proved on record‑‑­Evidence regarding alleged abscondence of accused was neither sufficient nor satisfactory and could not be used as a piece of confirmation to the ocular evidence‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Muhammad Sharif and another v. The State 1994 PCr.LJ 2060 Lah. DB; Muhammad Yaqoob and three others v. The State 1989 PCr.LJ 2227; Kirir v. The State PLD 1996 Kar. 246; Allah Dad v. The State PLD 1965 WP Lah. 288; State through Advocate‑General, Sindh, Karachi v. Farman Hussain and others PLD 1965 SC 1 and Tayyab Hussain Shah v. The State 2000 SCMR 683 ref.

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

‑‑‑‑Art. 22‑‑‑Identification parade‑‑­Necessary precautions in holding the identification parade enumerated.

The following precautions have to be taken in identification parade.

(a) Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence.

(b) A test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest the suspects are put to identification tests as early as possible. Such suspects should, preferably not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of over‑zealous Investigating Officers showing the suspects to the witnesses while they are in, police custody. Even when these accused persons are of necessity, to be taken to Courts for remand etc., they must be warned to cover their faces if they so choose so that no witness could see them.

(c) Identification parade should never be held at police stations.

(d) The Magistrate, supervising the identification proceedings, must verify the period, if any for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings.

(e) In order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible: But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The Superior Courts have, through their wisdom and long experience prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it.

(f) If there are more accused persons than one who have to be subjected to test identification; then the rule of prudence laid down by the Superior Court is that separate identification parade should ordinarily be held in respect of each accused person.

(g) It must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses.

(h) The Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of some one depends only upon his vigilance and caution.

(i) The Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line‑up at the parade along with their parentage, occupation and addresses.

(j) The Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings.

(k) Where a witness correctly identifies an accused person the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc., and then incorporate this statement in his report.

(l) And where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness.

(m) The Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings; and

(n) The Magistrate has to give a certificate at the end of his report in the form prescribed by CH.H.C. of Vol‑III of the Lahore High Court Rules and orders.

Muhammad Yaqoob and 3 others v. The State 1989 PCr.LJ 2227 ref.

(d) Penal Code (XLV of 1860)‑‑‑---

‑‑‑‑Ss.302(b)/34 & 392/34‑‑‑Appreciation of evidence‑‑‑Identification parade‑‑­Corroborative value‑‑‑Identification parade held without observing the necessary formalities is not a safe piece of corroboratory evidence.

Allah Dad v. The State PLD 1965 W P Lah. 288 ref.

Mian Liaqat Ali and Mrs. Asma Jahangir for Appellant (in Criminal Appeal No.123‑J of 1999).

Azam Nazir Tarar and Muhammad Wasim for Appellant (in Criminal Appeal No.913 of 1999).

Ijaz Ahmad Chadhar for Appellant (in Criminal Appeal No.862 of 1999) and (in Criminal Revision No.461 of 1999) for Petitioner.

Mirza Abdullah Baig for the State.

Date of hearings: 26th and 27th May, 2004.

2005 Y L R 419

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ.

Dr. AMJAD MUSTAFA and another‑‑‑Appellants

Versus

MUHAMMAD FIAZ and 9 others‑‑‑Respondents

I.C.A. No.206 of 2004, decided on 29th November, 2004.

(a) Punjab Local Government Elections Rules, 2003‑‑‑--

‑‑‑‑Rr.39(9) & 40‑‑‑Law Reforms Ordinance (XII of 1972), S.3(2)‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Proceedings at the close of the polls‑‑‑Consolidation of results ‑‑‑Vires of result prepared by the Presiding Officer was challenged under Constitutional jurisdiction before High Court which was subsequently changed by the Returning Officer and also changed the declaration of result prepared by the Returning Officer on the basis of the results submitted by the Presiding Officers‑‑­Returning Officer was duty bound to consolidate the results of all the Polling Stations in view of R.39(9), Punjab Local Government Elections Rules, 2003‑‑‑There being no appeal, revision or review against the order of the Returning Officer under the Punjab Local Government Elections Rules, 2003, Intra‑Court appeal against the judgment passed under Constitutional jurisdiction was maintainable‑‑‑Every provision, which had the effect of taking away the right of appeal is to be construed strictly and in case there is any doubt as to the availability of such right that doubt has to be resolved in favour of the existence of the right.

Shafique Ahmad Butt v. Punjab. Labour Appellate Tribunal and others 1983 CLC 1352 and Messrs Modern Continental Business (Pvt.) Limited through Chief Executive v. Government of Pakistan through Secretary, Ministry of Finance, Revenue and Economic Affairs, Pak Secretariat, Islamabad and another 2002 CLC 233 ref.

(b) Interpretation of statutes‑‑‑--

‑‑‑‑Every provision, which had the effect of taking away the right of appeal is to be, construed strictly.

(c) Punjab Local Government Elections Rules, 2003‑‑‑--

‑‑‑‑Rr.39 & 40, Form XIII & Form Appendix B‑‑‑Constitution, of Pakistan 1973), Art.199‑‑‑Law Reforms Ordinance IXII of 1972), S.3‑‑‑Intra‑Court appeal‑‑­Consolidation of results‑‑‑Documents pertaining to number of valid votes, if read as a whole, required to decide the controversy between the parties after recording the evidence, which was not permissible in the eye of law in Constitutional proceedings under Art. 199 of the Constitution‑‑‑High Court (Single Judge) therefore, was not justified to resolve the disputed questions of facts while exercising Constitutional jurisdiction.

Muhammad Younus Khan and 12 ethers v. Government of N.‑W.F.P., through Secretary, Forest and Agriculture Peshawar and others 1993 SCMR 618 ref.

(d) Punjab Local Government Elections Rules, 2003‑‑‑--

‑‑‑‑Rr.39 & 40‑‑‑Consolidation of results‑‑­Circumstances in the present case were of such a nature that it was appropriate for the Returning Officer to recount ballot papers of the Polling Station in question in presence of the parties‑‑‑Returning Officer had not adopted such method to resolve the controversy, which would tantamount to refusal to exercise statutory power‑‑‑High Court, in the interest of justice and fair play directed the Returning Officer to recount votes within 15 days in presence of the parties and thereafter law would take its own course in the light of the result of the recounting.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Election dispute‑‑­Constitutional petition was fled before the result of the election was declared in the official Gazette‑‑‑Constitutional petition being the only remedy available to the aggrieved party was maintainable‑‑­Objection qua maintainability of the Constitutional petition in presence of alternative remedy of election petition was repelled having no force.

Dr. M. Mohy‑ud-Din Qazi and Muhammad Kazim Khan for Appellants.

S. M. Masud for Respondents.

Dates of hearing: 28th September, 6th, 7th and 12 October, 2004.

2005 Y L R 442

[Lahore]

Before Syed Zahid Hussain, J

Messrs ABDUL GHAFOOR FURNACE‑‑‑Petitioner

Versus

WAPDA and others‑‑‑Respondents

Writ Petition No. 1102 of 2004, heard on 1st December, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑­Incentive Scheme introduced by the respondent providing for 10% rebate to the consumers‑‑‑Authority‑‑‑ "Clarification" or "amendment" of the Scheme resulting in withdrawal of rebate given to the petitioner‑‑‑Validity‑‑‑Petitioner was given benefit of the Scheme by the Authority as it was understood, construed and interpreted by the functionaries of the Authority‑‑‑If the Scheme had not been correctly interpreted by the Authority the petitioner was not to be blamed for the same nor to be made to suffer‑‑‑Authority was authorized to interpret the Scheme correctly and to clarify the correct position and while doing so, the benefit already given and availed by the petitioner could not be withdrawn nor recovery of the amount be effected from him‑‑‑Withdrawal of the rebate and the benefit was due to the later "clarification " or "amendment"; whether the same was considered as "classification" or "amendment" was not decisive of the matter‑‑‑Such instruments issued by the executive/administrative functionaries do not have retrospective effect and could not operate to nullify the rights accrued and transactions which were past and closed and principle of locus poenitentiae was attracted‑‑‑Notice and the later view taken by the Authority of the Scheme on the representation of the petitioner and communicated through letter to the extent the Authority purported to withdraw the benefit already availed by the petitioner thus was not consistent with law on the subject, and therefore not sustainable which was declared as of no legal effect by the High Court.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan 1992 SCMR 1652; Taj Mahal Hotel Limited and others v. Karachi Water and Sewerage Board and others 1997 SCMR 503; Saad Ashraf J.S. v. Muhammad Ashraf Nadeem and others 1998 SCMR 1687; Province of East Pakistan v. Sharafatullah and 87 others PLD 1970 SC 514; Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430; Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 and Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

Mian Mahmood Rasheed for Petitioner.

Muhammad Ilyas Khan for WAPDA with Muhammad Asif, Revenue Officer, Cantt. Division Gujranwala.

Date of hearing : 1st December, 2004.

2005 Y L R 445

[Lahore]

Before Muhammad Akhtar Shabbir and Muhammad Muzammal Khan, JJ

TARIQ SAEED and another‑‑‑Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 2 others‑‑‑Respondents

Writ Petitions Nos.694 and 1403 of 2004, heard on 16th June, 2004.

(a) National Accountability Ordinance (XVIII of 1999)‑‑

‑‑‑‑S.9/10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Quashing of Reference‑‑‑Reference in question had been referred to the Court against the accused on the allegation of corruption and corrupt practices which was supported by the evidence collected by the prosecution and their guilt or innocence would be determined by the Court, which could not be gone into without recording the prosecution evidence‑‑Case against accused was neither of no evidence nor based on mala fides‑‑‑High Court in exercise of its Constitutional jurisdiction would always be reluctant to interfere with such like matters‑‑‑Prayer for quashing of the proceedings of the Reference pending before the Accountability Court was declined accordingly.

Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 rel.

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

‑‑‑‑S.24(d)‑‑‑Constitution of Pakistan (1973), Arts.10 & 199‑‑‑Constitutional petition‑‑‑Communication of the grounds of arrest to the accused mandatory‑‑­Communication of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of S.24(d) of the National Accountability Ordinance, 1999, which is mandatory in nature and has to be complied with in letter and spirit as the same is based on the Constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Art.10 of the Constitution‑‑‑Provision of S.24(d) of the National Accountability Ordinance 1999, with regard to the arrest and detention of an accused and his production before a Magistrate or a competent Court within a period of twenty four hours for remand are synonymous with the provisions of Arts.10(1) and (2) of the Constitution which provide safeguard and protection to the personal liberty which in a State is inviolable of the said provisions of the Constitution and the NAB Ordinance would render the arrest and detention of the detenu illegal.

Abdul Qadir v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 5 others 2002 SCMR 1478 ref.

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

‑‑‑‑S.497‑‑‑National Accountability Ordinance (XVIII of 1999), S.9/10‑‑­Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Bail, grant of‑‑­Case against the accused to declare them guilty of misuse of official position or misappropriation of public funds for their own use or any relatives or friends, was yet to be determined by the Trial Court‑‑­Prosecution could not collect any direct evidence to show that the amounts sanctioned for the Project were not actually spent on the work for which the same were approved‑‑‑Truth or otherwise of such allegation could only be determined at the trial after analyzing the evidence produced by the parties‑‑‑Trial of the reference had not yet commenced for no fault attributable to accused‑‑‑Object of the NAB Ordinance of expeditious trial of the Scheduled Offences to be concluded within 30 days did not seem to be near to its achievement‑‑­High Court in exercise of its jurisdiction under Art.199 of the Constitution had the power to grant bail in the offences under the National Accountability Ordinance, 1999 in appropriate cases‑‑‑Bail could not be withheld as punishment on accusation of non‑bailable offences against the accused‑‑­Accused would be presumed to be innocent unless convicted and without determining their guilt they could not be detained in jail indefinitely‑‑‑Ad‑interim pre‑arrest bail granted to one accused by High Court was confirmed and the other accused was admitted to bail in circumstances.

Anwar Saifullah Khan v. The State 2001 SCMR 1041; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282 and Shahida Faisal v. Federation of Pakistan 2001 SCMR 294 ref.

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

‑‑‑‑S.497‑‑‑National Accountability Ordinance (XVIII of 1999), S.9/10‑­Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction‑‑‑Bail‑‑‑High Court in exercise of its jurisdiction under Art. 199 of the Constitution has the power to grant bail in the offences under the NAB Ordinance in appropriate cases.

Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282 and Shahida Faisal v. Federation of Pakistan 2001 SCMR 294 ref.

Masroor Shah for Petitioner.

Sardar Asmat Ullah Khan, ADPGA with Abdur Rehman Cheema Assistant Director NAB for Respondent.

Date of hearing: 16th June, 2004.

2005 Y L R 452

[Lahore]

Before Ijaz Ahmad Chaudhry, J

QADIR BAKHSH and 5 others‑‑‑Petitioners

Versus

ELAHI BAKHSH and 12 others‑‑‑Respondents

Writ Petition No.8763 of 1998, decided on 11th October, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XVII, R.3, Ss.12(2) & 115 ‑‑‑ Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Suit for declaration‑‑‑Closing of evidence‑‑‑Last opportunity was given for production of evidence‑‑‑Evidence was not produced‑‑­Trial Court, after closing the right of evidence, had dismissed the application under section 12 (2), C. P. C. ‑‑‑Such order was challenged in revision ‑‑‑Revisional Court directed to the Trial Court to grant last opportunity with costs‑‑‑Evidence was not produced on the date fixed by the Trial Court‑‑‑Trial Court gave last and final opportunity and on such date due to default in producing evidence the Trial Court closed the right of evidence under Order XVII, R. 3, C. P.C. and the application was dismissed for non‑prosecution‑Such order was challenged in revision, revisional Court accepted the same with the direction to afford one more opportunity to produce evidence‑‑‑Validity‑‑‑In the first round the revisional Court had granted only one opportunity to produce evidence with costs which order had attained finality‑‑­Revisional Court in the second round of litigation was not empowered to grant another opportunity to produce evidence‑‑­Such order being patently without lawful authority was set aside and order passed by the Trial Court was confirmed in circumstances.

Aurang Zaib Alamgir Janjoa for Petitioners.

Mirza Aziz Akbar Baig for Respondents.

2005 Y L R 463

[Lahore]

Before Maulvi Anwarul Haq, J.

HUSSAIN BUKSH‑‑‑Petitioner

Versus

Malik MUHAMMAD AFZAL‑‑‑Respondent

C.R. No.1024 of 2004, decided on 2nd November, 2004.

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

‑‑‑‑O. VI. R. 7 & S.11 S‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 72 & 133‑‑‑Pleadings‑‑­Document‑‑‑Cross‑examination‑‑‑Suit for possession on basis of ownership was resisted on the plea of agreement to sell and part payment of consideration‑‑‑Such suit was concurrently decreed‑‑‑Original agreement to sell was not produced‑‑‑Loss of agreement was not pleaded‑‑‑No attempt was made to produce secondary evidence‑‑­Plaintiff was not confronted with the said alleged agreement in his cross ­examination‑‑‑Scribe's register by no means constituted evidence of agreement‑‑‑No witness could be brought to depose regarding contents of document‑‑‑Suit was rightly decreed and decree was upheld in appeal‑‑‑Revision petition was dismissed in limine in circumstances.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.102‑‑‑Contents of document‑‑‑Oral evidence‑‑‑Witness could not be made to depose regarding the contents of a document for the reason that evidence of a document is the document itself.

Hafiz Muhammad Naveed Akhtar for Petitioner.

2005 Y L R 470

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. BUSHRA BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.4389‑B of 2003, decided on 17th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused allegedly had caught deceased from his arms while her co­ accused had inflicted Churri blow on the deceased‑‑‑Question of sharing common intention of accused was to be gone into at the time of trial‑‑‑Case of accused, in circumstances was amply covered within mischief of subsection (2) of S. 497, Cr. P. C. calling for further inquiry into the guilt of accused‑‑‑Accused being a woman, first proviso to S.497(1), Cr. P. C. was attracted to her case‑‑‑Accused was having with her milk suckling child aged about 8/9 months in jail‑‑‑Principle laid down in case reported as 1991 MLD 518, was applicable to the ‑ case of the accused‑‑‑Accused was admitted to bail, in circumstances.

Mst. Zareena Bibi v. The State 1991 MLD 518 Lah. ref.

Rai Zameer‑ul‑Hassan for Petitioner.

Muntazir Mehdi for the State.

Muhammad Siddique, S.-I. with Record.

2005 Y L R 475

[Lahore]

Before Ch. Iftikhar Hussain, J

SAEED AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Cr. Miscellaneous No.4836‑B of 2003, decided on 26th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.419/420/467/468/471‑‑‑Bail, grant of‑‑­Parties had gone to Civil Court with their respective claim in respect of disputed plot ‑‑‑Accused's side had filed certified copies of plaints in their respective suits‑‑­Question of genuineness or otherwise of sale deed in respect of plot in dispute was sub judice before competent Civil Court‑‑­Was yet to be decided whether sale‑deed was executed genuinely or it was forged one‑‑‑Case against accused, in circumstances called for further inquiry into his guilt which was covered under subsection (2) of S.497, Cr. P. C. ‑‑‑Accused was stated to be previous non‑convict‑‑­Case for enlargement on bail having been made out, accused was admitted to bail, in circumstances.

A. K. Dogar for Petitioner.

Mrs. Mussarat Rahman for the State.

Ch. Khalid Rashid for Complainant.

Muhammad Iqbal, A.S.‑I with Police Record.

2005 Y L R 480

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ALI ‑‑‑Petitioner

Versus

MUHAMMAD ARSHAD and 3 others ‑‑‑Respondents

Cr. Miscellaneous No.5422‑B‑C of 2003, decided on 26th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss. 337‑A (ii)/337‑F(i)/337‑L(ii)/337‑H(ii)/440/148/149‑‑‑Bail, cancellation of‑‑‑Bail granted to accused was sought to be cancelled by complainant on ground that accused had attacked the complainant's side and injured as many as four persons‑‑­Accused's side had advanced counter version against complainant's side and nothing adverse to such version had been shown by the complainant which was sufficient to make the case of accused to be one of further inquiry in their guilt as when there would be cross version from other side, question as to who was aggressor and who was victim would arise needing determination at trial‑‑‑Such a situation had definitely furnished a ground for bail to accused‑‑‑None of the offences with which accused had been charged, fell within prohibitory clause of S. 497(1), Cr. P. C. ‑‑­Grant of bail, in such‑like cases was a rule and refusal an exception and to withhold bail would amount to punishment in advance which was not the policy of law‑‑­Reasons which had weighed with Trial Court in allowing bail to accused being recognized in law, no case for its cancellation had been made out.

M. D. Chaudhary for Petitioner.

2005 Y L R 482

[Lahore]

Before Ch. Iftikhar Hussain, J

ASGHAR ALI alias Achhu and 2 others‑‑‑Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous. No.4849‑B of 2003, decided on 25th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/396/148/149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused neither were named in F.I.R. nor were put to any identification test‑‑‑Only material brought on record against accused was application made by complainant to police against them and supplementary statement of complainant‑‑‑Said application and supplementary statement were made about two years after the alleged incident‑‑‑State Counsel had also conceded that except said application, supplementary statement and recovery of crime weapons, no other evidence was on record against the accused‑‑‑Alleged recovery was of weapon other than the gun, whereas according to F.I.R. deceased had received injuries with .12 bore gun‑‑‑Was, yet to be seen whether on basis of said evidence alone, accused ultimately could be held liable for alleged offence‑‑‑Case against accused, in circumstances, was one of further inquiry into their guilt covered under subsection (2) of S. 497, Cr. P. C. ‑‑‑Accused were stated to be previous non‑convict‑‑‑Accused were admitted to bail, in circumstances.

Nasir‑ud‑Din Khan Nayyar for Petitioners.

Ch. Jamshed Hussain, A.A.‑G., assisted by Marina Parveen Ch. for the State.

Rai Riaz Ahmad S.‑I. with Police Record.

2005 Y L R 487

[Lahore]

Before Ch. Iftikhar Hussain, J

YASEEN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Cr. Miscellaneous No.5124‑B of 2003, decided on 1st October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Complainant though in her F.I.R. had alleged that accused had subjected her to Zina‑bil‑Jabr, but subsequently she had sworn affidavit to the effect that she had named accused in F.I.R. merely on basis of suspicion due to darkness of the night while accused was not the real culprit‑‑‑Such fact was also mentioned in the order of Trial Court passed on bail application of accused and police officer in the Court on query had also submitted that he had come to know that parties had compromised‑‑‑Due to said deposition of complainant in her affidavit, case against accused had become one of further inquiry into his guilt covered under subsection (2) of S. 497, Cr.P.C.‑‑‑Accused was stated to be previous non‑convict‑‑­Accused, in circumstances was entitled to bail.

Qasim and another v The State 1996 MLD 108 Lah. ref.

Malik Saeed Hassan for Petitioner.

Nizam‑ud‑Din Arif for the State.

Liaquat Ali, S.‑I. with Police Record.

2005 Y L R 489

[Lahore]

Before Ch. Iftikhar Hussain, J

Mirza MUHAMMAD ANWAR ‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Crl. Appeal No.330 of 2003, decided on 1st July, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑Ss. 406/419/468/471‑‑‑Criminal Proce­dure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Trial Court had not acquitted the accused under S.249‑A, Cr.P.C. without hearing the prosecutor‑‑­Specimen signatures of the accused, according to the report of Hand Writing Expert, were‑not identical to the questioned signatures on the disputed cheque‑‑‑No possibility of the ultimate conviction of accused for the, alleged offence, thus, existed and further proceedings in the case could be a futile exercise‑‑­Impugned judgment acquitting the accused did not suffer from any infirmity‑‑­Appeal was dismissed summarily accordingly.

Ch. Muhammad Anwar‑ul‑Haq for Appellant.

2005 Y L R 509

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAHID MEHMOOD and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1537 and Criminal Revision No.796 of 2001, heard on 1st October, 2003.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b), 365, 395, 343, 337‑F(i), 337‑L(2) & 148‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses had absolutely no ill‑will towards the accused‑‑‑Ocular testimony was reliable which was fully corroborated by medical evidence‑‑‑Plea of alibi taken by accused was not substantiated on record and defence evidence did not suggest that he was nor present at the police station during the days of incident‑‑‑Death of the deceased in police custody was admitted‑‑‑Delay in lodging the F.I.R. had been explained to some extent; even otherwise the deceased having been detained by the police party in their custody, registration of the cast ­against them was not an easy job and the delay, if any, in making the report to police had no adverse consequence on the prosecution case ‑‑‑Abscondence of accuse; after the occurrence was not denied and the explanation offered for the same was not satisfactory, which had also corroborated the prosecution version‑­Convictions and sentences of accused were, maintained in circumstances.

Muhammad Asad Manzoor Butt for Appellant (in Crl. Appeal No. 1537 of 2001) and Respondent No.1 (in Crl. Revision No.796 of 2001).

Mrs. Iram Shahzad Gull for the State (in both cases).

Waqar Hassan Mir for the Complainant‑Petitioner in Crl. Revision No.796 of 2001.

Date of hearing: 1st October, 2003.

2005 Y L R 516

[Lahore]

Before Ch. Iftikhar Hussain, J

JUNAID BARI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5226‑B 2003, decided on 17th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.454/380‑‑‑Pre‑arrest bail‑‑‑Delay 1‑1/2 years in lodging the F.I.R. was significant and had made the prosecution version doubtful‑‑‑Sessions Court had stag in the impugned order that the accused hi disclosed a strong defence on the basis documents tending to prove complainant's story as false and, therefor it was not justified in refusing him the relief prayed for on the ground that it could not, find any mala fide in the matter, while the same was very much present‑‑‑Accused and his companions, according to the complainant himself, had not concealed their identity from his servant before, entering his office and apparently S. 451, P.P.C. was attracted in the case which was bailable ‑‑‑Accused admittedly had neither entered the office of the complainant with the intention to commit theft nor he had committed any theft there‑‑‑Liability of the accused under S. 380, P.P.C. , thus, was also yet to be determined‑‑‑Said question required further inquiry into the guilt of accused as envisaged under S.497(2), Cr.P.C.‑‑‑Accused had joined the police investigation and was not required for such purpose‑‑‑Ad interim pre‑arrest bail granted to accused was confirmed in circumstances.

Kh. Haris Ahmad for Petitioner.

Ch. Imtiaz Ahmad for the State.

Muhammad Iqbal Yousafi Complainant in person.

Aman Ullah S.I. with Police Record.

2005 Y L R 520

[Lahore]

Before Muhammad Muzammal Khan, J

ABID HUSSAIN and others‑‑‑Petitioners

Versus

KHADIM HUSSAIN and others‑‑‑Respondents

Civil Revision No. 1288 of 1997, decided on 2nd July, 2004.

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

‑‑‑‑S.15‑‑‑Civil Procedure Code (V of 1908), O.XX, R.14‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 8‑‑‑ Suit for declaration ‑‑‑Pre‑emption decree‑‑‑Deposit of decretal amount‑‑‑Failure of pre‑emptor to deposit‑‑‑Effect‑‑‑Pre‑emptor, decree holder had not deposited the sale price as required by the decree of the Trial Court‑‑­Deposit was neither made within the time extended by the Appellate Court‑‑‑Alleged compromise before the High Court and deposit made on the basis of such compromise was scanned by High Court and it was held that the order was procured out of fraud, misrepresentation and impersonation‑‑‑Compromise was rescinded and application for restoration of order of dismissal of second appeal was dismissed which had the effect of wiping out all extensions granted and deposit made thereunder‑‑‑Party could not bank upon deposit which was made on the basis of an order obtained through fraud‑‑‑Effect of default of non‑payment was contained in the judgment and decree of Trial Court whereby the suit stood dismissed‑‑‑When deposit was not made title could not be based on a decree of pre‑emption which in its own strength dismissed the suit.

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

‑‑‑‑O.XX, R. 14‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration ‑‑‑Pre­emption decree ‑‑‑Pre‑emption suit stood dismissed for non‑deposit of decretal amount‑‑‑Land remained in the ownership of the vandee defendant.

Malik Abdus Sattar Chughtai for Petitioners.

Ch. Farrukh Mehmood Solehria for Respondents.

Date of hearing: 3rd June, 2004.

2005 Y L R 525

[Lahore]

Before Sh. Hakim Ali, J

SAJJAD HUSSAIN SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2405‑B of 2004, decided on 5th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 16/10(3)‑‑‑Penal Code (XLV of 1860), Ss.365, 452, 354 & 342‑‑‑Bail, refusal of‑‑­Accused was nominated in F.I.R. and specific role had been attributed to him by informant‑‑‑No cogent reason was given as to why a young girl of 16/17 years of age would ruin her future by leveling such bold allegations of commission of heinous offences‑‑‑Informant had deposed so clearly and loudly in F.I.R. against accused that inherent quality of narration itself, prima facie, rang true‑‑Informant girl was not alleged to be of easy virtue‑‑‑No prima facie reason existed to disbelieve story as had been put forward by informant‑‑­Admission of accused that informant had got the share of lands left by her deceased husband, would trot entitle, ex facie, accused for grant of concession of bail at that stage‑‑‑Reasonable grounds were available of involvement of accused in case‑‑‑Accused had asserted that police had discharged accused and was going to forward cancellation report under S.173, Cr. P. C.‑‑‑Ipsi dixit of police was not binding on the Court‑‑‑In absence of any reasonable and cogent ground to grant bail to accused, his bait petition, was dismissed.

Muhammad Irshad and other v. The State NLR 1980 Crl. 607 ref.

Ch. Faqir Muhammad for Petitioner.

Mahr Haq Nawaz for Informant.

Jameel Ahmad for the State along with Liaqat Ali A.S.‑I.

2005 Y L R 527

[Lahore]

Before Ch. Iftikhar Hussain, J

IFTIKHAR alias BODI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.7285‑B of 2004, decided on 25th November, 2004.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.392/411‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused was not named in F.I.R., but his name for the first time had appeared in supplementary statement of complainant recorded after about five months of alleged incident‑‑‑Accused had never been put to any identification test‑‑‑Question of evidentiary value of such belated supplementary statement of complainant was open to serious consideration‑‑‑No other evidence was available against accused on police record regarding commission of dacoity‑‑‑Was yet to be seen whether accused could ultimately be held liable for offence under S.392, P.P.C‑‑­Case against accused in circumstances, fell within the purview of subsection (2) of S. 497, Cr. P. C. calling for further inquiry into his guilt‑‑‑Allegedly an amount of Rs.5000 and four gold Kantay had been recovered from accused which attracted offence under S. 411, P. P. C which did not fall within prohibitory clause of S.497(1), Cr. P. C. ‑‑‑Accused was behind the bars for the last about 9 months and he had not been shown previously involved in any case‑‑­Accused was admitted to bail, in circumstances.

Malik Saeed Hassan for Petitioner.

Malik Muhammad Akbar Awan for the State.

Muhammad Ayyub, S.‑I. with Police Record.

2005 Y L R 532

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Haji ABID HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.2921‑B of 2004, decided on 12th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Bail, refusal of ‑‑‑F.I.R. was lodged immediately after alleged incident Complainant, prima facie had no enmity grudge to falsely implicate accused in the case‑‑‑Even accused had failed to allege any motive for his false implication by complainant and other victim in case---Accused along with others was alleged to have committed heinous offence, which fell within the prohibitory clause of S. 497, Cr.P.C. ‑‑‑Both victims supported their versions during investigation and procuring of affidavits from them, who appeared to be poor ladies, after more than 2‑1/2 months, of occurrence, prima facie would amount to tampering with prosecution case‑‑‑Said affidavits could not be termed as legal evidence to attract expression, "further inquiry "‑‑‑Trial Court would determine evidentiary value of such evidence‑‑‑No case was made out for grant of bail as from evidence on record accused was prima facie connected with offence.

PLD 1990 SC 83 and PLD 1977 Lah. 1261 ref.

Sardar Ashiq Hussain Baloach for Petitioner.

Raja Sultan Khurram‑uz‑Zaman for the State.

Mashooq Ali, A.S.‑I. with Record.

2005 Y L R 536

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. RUKHSANA‑‑‑Petitioner

Versus

S.H.O., POLICE STATION SHAH JAMAL, DISTRICT MUZAFFARGARH and 2 others‑‑‑Respondents

Writ Petition No.3299‑Q of 2004, decided on 15th July, 2004.

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

‑‑‑‑S.16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R ‑‑‑Complainant had not mentioned in F.I.R. that accused was earlier married to some one else and that Rukhsati had vet to take place‑‑‑Said story was only introduced during investigation‑‑‑None of the witnesses whose statements were recorded, had stated that fact‑‑‑Accused had claimed that she being sui juris had performed Nikah with co‑accused with her free‑will and consent and she had also sworn an affidavit in that regard‑‑‑Alleged Nikah of accused with person other than co­ accused, which was denied by accused, was allegedly performed about three months before registration of F.I.R., but that factum was not mentioned in the F.I.R.‑‑­Continuation of proceedings as a result of F.I.R., in circumstances, would amount to interference in matrimonial life of accused who being sui juris had contracted marriage with co‑accused with her will and consent and paternity of a child as she was pregnant, would also remain in dispute due to pendency of criminal proceedings‑‑­Continuation of investigation in case would be abuse of process of law and sheer wastage of time ‑‑‑F.I.R. was quashed, in circumstances.

PLD 1999 Lah. 494 ref.

Syed Muhammad Asad Abbas for Petitioner.

Sardar Manzoor Ahmad Khan for Respondent No.2.

M. R. Khalid Malik, Addl. A.‑G.

Nasir Mahmud, Inspector along with Ghulam Shabbir, A.S.‑I. with Record.

2005 Y L R 538

[Lahore]

Before Ch. Iftikhar Hussain, J

FAKHAR HUSSAIN alias FAKHRU SHAH and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.8094‑B of 2004, decided on 24th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Allegation against both accused persons was that they along with another person had enticed away the wife of complainant for Zina‑‑‑One accused had been found innocent in the investigation and it had also been found that wife of complainant had of her own accord eloped with said accused and she herself had been considered as an accused in the case‑‑‑Complainant in his affidavit had negated version as contained in F.I.R.‑‑­Besides statement of wife of complainant before police, no other evidence was on police record against accused of Zina-­bil‑Jabr with her‑‑‑Wife of complainant having herself been found as an accused in the case being consenting party to the affair, question of evidentiary value of her such statement was open to serious consideration‑‑‑Said facts certainly called for further inquiry into guilt of accused‑‑‑Case against accused, in circumstances fell within purview of subsection (2) of S. 497, Cr.P.C. ‑‑‑Accused were behind the bars and stated to be previous non‑convicts‑‑‑Accused being entitled to bail, were admitted to bail.

Mst. Jannat Bibi v. Muhammad Bashir and another 1998 PCr.LJ 152; Allah Ditta and another v. The State 1985 PCr.LJ 24 and Ali Hassan v. The State 2001 SCMR 1047 ref.

Ch. Muhammad Javed Ghani, Abdul Latif Chaudhary and C. M. Sarwar for Petitioners.

Mian Abdul Qayyum Anjum for the State.

Sheikh Irfan Ikram for Mst. Noureen Bibi.

Nusrat Ali, S.‑I, with Police Record.

2005 Y L R 543

[Lahore]

Before M. Bilal Khan, J

IMRAN RIAZ alias MANI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.7766‑B of 2004, decided on 11th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 324/337‑A (i)/337‑A (iii)/337‑F(iii)/337‑D/337‑L(2)‑‑‑Bail, refusal of‑‑‑Very serious allegations were against accused who had been specifically named in F.I.R. with definite role‑‑‑Any comment of alleged conflict between ocular account and Medico‑legal report at bail stage was likely to prejudice the trial, which had already commenced‑‑‑Star witness of prosecution, who was complainant and was allegedly injured in transaction, had already appeared and his examination‑in‑Chief had been recorded‑‑‑At present ample incriminating material was available on record against accused‑‑‑Offences against accused under Ss. 324/337‑B, P. P. C. fell within the prohibitory clause of S.497(I ), Cr. P. C.‑‑‑Bail petition filed by accused, was dismissed, in circumstances.

Ch. Naseer Ahmad Bhutta for Petitioner.

Ch. Farooq Haider for the Complainant

Rana Abdul Razzaq Saeed for the State with Muhammad Sharif A.S.‑I.

2005 Y L R 545

[Lahore]

Before Sh. Hakim Ali, J

QAISER ABBAS ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.2535‑B of 2004, decided on 3rd November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Informant was claiming co‑accused as his wife on basis of 'Sharie Nikah', allegedly performed earlier, while Nikah performed later on with accused after more than six years contained the entry showing co­ accused to be virgin girl, it was therefore, not possible at present to hold that accused had known the first alleged oral Nikah of co‑accused with the informant‑‑‑Prosecution had still to prove its case against accused, which would prove among others, as to whether accused had knowledge of earlier alleged Nikah or not, at the time of performance of his Nikah with. Co ­accused‑‑‑Mens rea of offence had not still been found with accused; keeping in view the rule of consistency, as same allegations were being leveled against accused as were alleged against co‑accused upon which she was granted bail, it would be injustice with accused, the husband of co-accused to keep him in jail for an indefinite period, because Nikah Khawan had not been arrested so far‑‑‑Case of accused falling within purview of further inquiry, he was admitted to bail.

Rao Liaqat Ali Khan for Petitioner.

Mazhar Jameel Qureshi for the Complainant.

Sh. Gul Muhammad for the State.

Mahr Arif A.S.‑I.

2005 Y L R 550

[Lahore]

Before Khawaja Muhammad Sharif, J

ALLAH BAKHSH‑‑‑Appellant

Versus

MUHAMMAD KHAN and others‑‑‑Respondents

Crl. Appeal No.1620 of 2003, decided on 21st October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.417 & 265‑K‑‑‑Penal Code (XLV of 1860), Ss. 218/420/468/471/109‑‑‑Pre­vention of Corruption Act (II of 1947), S.5(2)‑‑‑Appeal against acquittal--- Appellant/complainant had alleged that application under S. 265‑K, Cr.P.C. for acquittal of accused Was filed on behalf of few accused, but special Court had acquitted all accused persons without even recording any evidence along with dismissal of complaint case which had led to miscarriage of justice‑‑‑Accused while defending impugned order of acquittal, had submitted that there was no probability of his conviction by Trial Court because there was no allegation of acceptance of alleged bribery by him and that inquiry in the case was conducted under the orders of competent Authority wherein it was found that not a single inch of land in question had been taken away by any of accused or through collusion of accused from complainant and that on the same facts F.I.R. was recorded against two persons while complaint was filed by complainant against seven accused‑‑‑Accused had claimed that Trial Court had not committed any illegality or material irregularity to warrant interference by High Court‑‑­Validity‑‑One of accused had claimed that he had been summoned despite he was not present at time of occurrence‑‑‑Points raised by respective parties needed deeper appreciation of evidence of parties which would entail factual inquiry and that exercise could not be undertaken by High Court sitting in appellate jurisdiction as it was prerogative of Trial Court to have reached at a just conclusion after recording of evidence of parties both oral and documentary‑‑‑Not a single witness had been recorded by Trial Court‑‑‑High Court allowing appeal, set aside the impugned order with direction that complaint filed by appellant/complainant would be deemed to be pending and parties were directed to appear before Trial Court to proceed with the matter.

Hafiz Khalil Ahmad for Appellant.

Syed Faisal Raza Bokhari for the State.

Rai Muhammad Zafar Bhatti for Respondents Nos.1 to 6.

Muhammad Ashraf Nawaz Cheema for Respondent No.7.

2005 Y L R 552

[Lahore]

Before Syed Zahid Hussain, J

PROVINCE OF THE PUNJAB through Member Board of Revenue/Chief Settlement Commissioner ‑‑‑Petitioner

Versus

ALTAF HUSSAIN and others‑‑‑Respondents

Writ Petition No.65‑R of 2004, decided on 2nd December, 2004.

(a) Evacuee Property and Displaced Persons (Laws) Repeal Act (XIV of 1975)----

‑‑‑‑S.2(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Allotment of land ‑‑‑Validity‑‑­High Court had passed order in a Constitutional petition, the object of which was merely that the application of the petitioner stated to have been made be disposed of in accordance with law‑‑‑Such order could not be construed by any stretch of imagination as if the matter was remanded to the Executive District Officer (Revenue) by the High Court‑‑‑Order in question neither conferred any jurisdiction upon the said officer if he did not possess under the law nor he was directed to allot the land‑‑‑Before assuming jurisdiction the said functionary had to consider various aspects of the matter including as to whether the matter was pending before him in terms of S.2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

(b) Evacuee Property and Displaced Persons (Laws) Repeal Act (XIV of 1975)--------

‑‑‑‑S.2(2) & (3)‑‑‑Constitution of Pakistan (1973), Art.. 199‑‑‑Constitutional petition‑‑­Scope and effect of S.2, Evacuee Property and Displaced Persons (Laws) Repeal Act, 1975‑‑‑Allotment order‑‑‑Validity and effect ‑‑‑Proceedings which were pending at the time of repeal of the laws stood transferred to the Notified Officer for final disposal and those remanded by the Supreme Court or a High Court were to be decided by such officer‑‑‑Where neither any proceedings were pending at the time of the repeal of Evacuee Laws nor stood transferred or remanded by any Court to an Officer as contemplated by S. 2 (2) & (3) of the Act, the assumption of jurisdiction by, such Officer on the application of respondent, was, contrary to law anti unwarranted.

Syed Aal‑e‑Ahmad for Petitioner.

Sh. Abdul Aziz for Respondents Nos.1 and 2.

Rizwan Mushtaq A.A.‑G. with Rana Muhammad Akram Tehsildar Pindi Bhattian for Respondents Nos.3 to 7.

Date of hearing: 2nd December, 2004.

2005 Y L R 555

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.2634‑B of 2004, decided on 21st September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.21‑‑‑Bail, grant of ‑‑‑Rassagiri or Patharidari‑‑‑Further inquiry‑‑‑Some reasonable grounds must exist to hold and consider, prima facie, a person to be involved in commission of such offence and some reason/ground must be on the record to show that person who was being proceeded against, was providing shelter or refuge to thieves or criminals or was providing assistance in any form to persons who were involved in commission of theft of cattle and that he must be recipient of a share out of those cattle or from the income received therefrom upon disposal of those cattle‑‑‑If no such basis had been found on the record, in such an event, it would bring case into domain of further inquiry‑‑‑No such evidence had been brought or collected by police and basis on which police had formed such opinion, was still lacking‑‑‑Police Officials no doubt were as good as other public witnesses, but in the present case, informant of F.I.R. had not given any eye‑witness account or foundational structure, basing his alleged and asserted opinion so as to consider accused involved in that offence‑‑‑Case of accused under facts and circumstances had fallen within the sphere of further inquiry‑‑­Accused was admitted to bail, in circumstances.

Muhammad Asghar Bhutta for Petitioner.

Sh. Arshad Ali for the State along with Muhammad Iqbal, A.S.‑I.

2005 Y L R 557

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD AZAM---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER and others‑‑‑Respondents

C.M. No.3055 of 2004 in Writ Petition No.53‑R of 1998, decided on 18th November, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Punjab Acquisition of Land (Housing) Act (VIII of 1973), Ss.4 & 13‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Acquisition of land‑‑‑Judgment in personam binds the parties and has its legal efficacy qua their rights‑‑‑Petitioner, in the present case, who was an ordinary citizen of the country and who had succeeded after consuming a long time, must have hoped that his agony and misery had come to an end with the acceptance of his Constitutional petition but this was not so and even more than two years had passed but he was still entangled in litigation and was fighting for his right‑‑‑High Court deprecated such conduct of public authority who was expected to honour, implement and respect the judicial orders‑‑‑Instead of taking remedial steps to compensate the petitioner his agony had been prolonged on the grounds which did not hold good‑‑‑Application under S.12(2), C. P. C. was another attempt to bypass and frustrate the orders passed by the Court‑‑­Ingredients of S.12(2), C.P.C. were lacking and the same was not attracted and was a mala fide and frivolous move which was dismissed with costs of Rs.20,000 by the High Court.

Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Muhammad Rasheed Ahmad for Petitioner.

S.M. Masud for Respondent.

Muhammad Usman Ghani, LAC/LDA.

2005 Y L R 560

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. KHURSHEED BIBI and others‑‑‑Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8017‑B and 8018‑B of 2004, decided on 22nd November, 2004.

Criminal Procedure Code (V of 1898)---

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149/109‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused was not present at the scene of crime at the relevant time but he was charged with responsibility of providing behind‑the‑scene abetment to his co‑accused‑‑‑No witness of said alleged abetment had been mentioned in F.I.R.‑‑­Female accused was allegedly present at the spot during occurrence and had allegedly raised Lalkara‑‑‑Both said accused happened to be the parents of main accused‑‑‑Possibility regarding throwing the net wide by complainant party could not safely be ruled out‑‑‑Mother, the main accused, being female, case against her would attract provisions of first Proviso to subsection (1) of S.497, Cr.P.C.‑‑‑ Challan had already been submitted after completion of investigation‑‑‑Continued custody of accused persons in jail was not likely to serve any beneficial purpose‑‑­Case against both accused calling for further inquiry into their guilt, they were admitted to bail.

Dr. Ehsan‑ul‑Haq Khan and Syed Ghazanfar Ali Shah Ajmeri for Petitioners

(in Criminal Miscellaneous Nos.8017‑B and 8018‑B of 2004).

Sheikh Khalid Habib for the State with Muhammad Hussain, S.‑I. with Record (in Criminal Miscellaneous Nos.8017‑B and 8018‑B of 2004).

2005 Y L R 561

[Lahore]

Before Syed Zahid Hussain, J

NAVEED AHMAD MALIK‑‑‑Petitioner

Versus

DISTRICT OFFICER (REVENUE) and others‑‑‑Respondents

Writ Petition No.29‑R of 2004, decided on 18th November, 2004.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑--

‑‑‑‑S.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Main­tainability‑‑‑ "Aggrieved person "‑‑‑Record showed that the area possessed and owned by the petitioner was allowed to be retained by him by Supreme Court while remanding the case to the Notified Officer‑‑­Petitioner, in circumstances, could not lay claim over and above nor extend his entitlement, except to what was recognized by the Notified Officer, the High Court and the Supreme Court‑‑‑Petitioner, in circumstances, could not be considered to be an aggrieved person to maintain a petition under Art.199 of the Constitution qua rest of the property‑‑‑Remote possibility of an informer to gain something in case he succeeded in his information would not bring the petitioner within the ambit of an "aggrieved person "‑‑‑Petitioner, therefore, had no locus standi to agitate the matter any further as his entitlement had remained intact and transfer stood affirmed and safeguarded by the order of the Supreme Court.

Pervaiz Oliver and others v. St. Gabrial School through Principal and others PLD 1999 SC 26; Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Mst. Aqila Begum and another v. Pakistan Employees Cooperative Housing Society Ltd and others PLD 2004 Kar. 1; Administrator, Thal Development/Chief Secretary to Government of the Punjab, Civil Secretariat Lahore and another v. Mahboob Ali Khan (since deceased) represented by legal heirs 1986 SCMR 1927; Syed Muhammad Iqbal Shah v. Member, Board of Revenue and 4 others 1995 CLC 583; Abida Khatoon v. Mian Ghulam Shabbir, Settlement Commissioner, Multan Division, Multan PLD 1964 SC 793; Muhammad Latif Khan v. Miss R. Amin and 6 others PLD 1973 Lah. 262; Anjuman Arain, Bhera v. Abdul Rashid and others PLD 1982 SC 308; Ahmad Jamal v. Nazir Ahmad Khan and others 1975 SCMR 24; Ali Muhammad v. Makhdoom Sirajul Haq Qureshi 1975 SCMR 33 and Karam Bakhsh v. Muhammad Ashraf and another 1968 SCMR 740 ref.

Ch. Qadir Bukhsh for Petitioner.

Ahmad Awais and Fazal‑i‑Miran Chohan Addl. A.‑G. for Respondent No. 1.

Ch. Iqbal Ahmad Khan for Respondents Nos.2 to 7.

Muhammad Asif and Haider Ali Shah for Respondents Nos.9, 11 and 12.

M. Rafiq Javed Butt for Respondents Nos. 14 to 27.

Date of hearing: 18th November 2004.

2005 Y L R 565

[Lahore]

Before Khawaja Muhammad Sharif and Iftikhar Hussain, JJ

SHAHBAZ AHMAD alias SHAHBAZOO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crl. A. No.589 of 2000 and M.R. No.214 of 2000, heard on 8th November, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Out of three prosecution witnesses only one, who was father of deceased, appeared before Trial Court and remaining two were given up as having been won over‑‑‑No description of accused was given in F.I.R‑‑­No weapon of offence allegedly used by accused was mentioned in F.I.R.‑‑‑Was incumbent upon Investigating Officer, in circumstances to have got identification parade held, but no such parade was held‑‑‑Case, in fact was of no evidence‑‑­No doubt, one person had lost his life, but Court had to see whether prosecution had been able to prove case against accused who had been charged to face the Trial on a capital charge, which was missing in the case‑‑‑Prosecution having not been successful in proving its case against accused, benefit of doubt was extended to him and conviction and sentence recorded against him by Trial Court were set aside and he was acquitted of the charge against him.

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

‑‑‑‑Art. 22‑‑‑Identification parade‑‑­Identification test would become necessary where names of culprits were not given in F.I.R. and holding of such a test was not only a check against false implication, but was a good piece of evidence against real culprits.

Farman Ali v. The State 1997 SCMR 971 ref.

Rana Muhammad Arif and Mrs. Erum Sajjad Gul for Appellant.

Saleem Shad for State.

Date of hearing: 8th November, 2004.

2005 Y L R 572

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL SATTAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal. No. 68 and Criminal Revision No.77 of 1998, heard on 20th July, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Prosecution witnesses though were closely related inter se and accused was also closely related to them, but said witnesses were not found interested witnesses as they had no previous enmity or grudge to falsely implicate accused in the case and there was no occasion to substitute accused in place of real culprits by said eye‑witnesses‑‑‑All the three eye‑witnesses were residents of same locality and they had succeeded in proving their presence at the place and time of occurrence‑‑‑Occurrence was not per chance and matter was reported to police immediately within one hour of occurrence‑‑‑No time was left with prosecution for consultation and deliberation to falsely implicate accused and it was immaterial whether accused was alleged to be armed with rifle in the F.I.R. and at the trial he was stated to be armed with pistol as he was the only accused who had fired at the deceased‑‑‑Complainant being illiterate person could not be expected to know difference between rifle and pistol‑‑‑Only due to that reason, ocular account could not be disbelieved which otherwise was found consistent on material points and trustworthy‑‑‑Witnesses having been found independent witnesses, minor contradictions in their statements, would not be sufficient to discard their evidence as they remained consistent on material points regarding the time, place and the manner in which alleged occurrence had taken place‑­‑Medical evidence was not in conflict with ocular account‑‑‑No evidence had been brought on record to show that deceased woman was of bad character and was murdered being seen in compromising condition with any person‑‑‑Recovery of pistol from accused was witnessed by a witness who was resident of same locality‑‑­Report of Forensic Science Laboratory was positive in respect of said pistol and it had provided an independent corroboration to ocular account‑‑‑Occurrence had taken place in broad‑daylight and accused was previously known to eye‑witnesses‑‑‑No question exited of misidentification, in circumstances‑‑‑Prosecution had succeeded in bringing home guilt to accused beyond any shadow of doubt‑‑‑Mere acquittal of co ­accused, was not sufficient to exonerate accused as co‑accused were not ascribed any specific role‑‑‑Conviction and sentence awarded to accused by Trial Court, were maintained with certain modification in sentence of fine.

Ahmad Nadeem Chandia for Appellant.

Tahir Mehmood for the Complainant.

Ch. Muhammad Masood Sabir for the State.

Date of hearing: 20th July, 2004.

2005 Y L R 578

[Lahore]

Before Sardar Muhammad Aslam and M.A. Shahid Siddiqui, JJ

NASEEM SHAH alias SHEEMA SHAH and another‑‑‑Appellants

Versus

Haji GHULAM YASEEN and another‑‑‑Respondents

Criminal Appeal No. 429 of 2000, heard on 15th September, 2004.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Ocular account was furnished by complainant who was father of deceased and other prosecution witness and their evidence was confidence‑inspiring‑‑­ Presence of persons at the relevant time of occurrence and not citing them as witnesses did not affect prosecution case‑‑‑Incident took place in a small bazar with two shots fired in span of seconds, which could not have been seen by anybody else in the Bazar except hearing report of fire‑shots and fleeing away of accused‑‑‑Even otherwise moral value having gone to the lowest ebb, no one would like to be a witness to earn permanent enmity for himself and his tribe‑‑‑Presence of eye­witnesses at place of occurrence was natural and their account of incident was trustworthy‑‑‑Medical evidence was in line with ocular account in regard to nature of injuries, its duration, weapon used, time between injury and death and between death and post‑mortem which corroborated ocular account on all fours‑‑‑Police officials being Court witnesses merely on oral statements of witnesses had given clean chit to accused‑‑‑Opinion of police was not binding on the Court‑‑‑Accused had failed to prove plea of alibi taken by them‑‑­Recovery of crime weapon could not be effected because accused remained at large and due to that sufficient time elapsed and also due to the fact that Investigating Officer was concluding investigation only to strengthen defence version and negate prosecution case‑‑‑Investigation was not made in fair and impartial manner‑‑­Prosecution had proved its case against accused beyond reasonable doubt‑‑‑Appeal of accused was dismissed and death sentence awarded to him by Trial Court was affirmed ‑‑‑Co‑accused having not caused any injury to deceased, his death sentence was converted to life imprisonment and his appeal was also dismissed with such modification of sentence.

Malik Muntazir Mehdi and Sahibzada Farooq Ali Khan for Appellants.

Ch. Pervaiz Aftab for the Complainant.

Mr. Waseem Khan for the State.

Date of hearing: 15th September, 2004.

2005 Y L R 595

[Lahore]

Before Ijaz Ahmad Chaudary, J

MUHAMMAD HAYAT and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.127, 176 and Crl. Rev. No.148 of 2002, heard on 13th July, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.308(1)‑‑‑Appreciation of evidence.‑‑‑Co‑accused was not armed with any weapon at the time of incident and only role ascribed to him was that he had held deceased in Jappha while main accused armed with Khanjar had , caused successive injuries on different parts of his body‑‑Cow accused was not related to main accused who inflicted injuries to deceased‑‑‑Both accused persons had no common intention to commit murder of deceased and no motive was ascribed to co‑accused and he being Rajpoot by caste, was not related to main accused, who was Mossalli by caste—­Role ascribed to co‑accused was improbable and due to same, possibility of his false implication, could not be ruled out‑‑‑Prosecution had failed to connect co ­accused in occurrence for sharing common intention with main accused and role attributed to him had been disbelieved through medical evidence as well‑‑‑Benefit of doubt would go to co‑accused‑‑­Conviction and sentence recorded against co‑accused by Trial Court was set aside and he was acquitted of the, charge extending him benefit of doubt.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.308‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss. 2, 4 & 7‑‑­Appreciation of evidence‑‑‑F.I.R. was lodged with promptitude‑‑‑Accused was attributed successive blows with dagger on person of deceased which proved fatal‑‑­Both complainant and other eye‑witness were residents of same locality—­Complainant was f4ther of deceased and other eye‑witness was not related in any manner to complainant or deceased, except that he belonged to Bradri of deceased‑‑­Trial Court had reached the conclusion that prosecution was able to prove case against accused, but Court had convicted accused under S. 308, P.P.C. on the ground that Qatl‑i‑Amd committed by accused was not liable to Qisas under S.306, P.P.C. as he was aged about 16/17 years‑‑‑Accused had claimed that he being less than 18 years of age at time of alleged occurrence, should be tried by Court constituted under Juvenile Justice System Ordinance; 2000 and prayed for remand of case for de novo trial by said Special Court‑‑‑Validity‑‑‑Occurrence had taken place about one year prior to promulgation of Juvenile Justice System Ordinance, 2000 and case remained pending trial for more than one year after promulgation of said Ordinance, but during that period no application was moved on behalf of accused for transfer of his case to the said Court‑‑ Accused had failed to point out as to what prejudice was caused to him for such omission‑‑‑Prayer of accused for de novo trial under Juvenile Justice, System Ordinance, 2000, was repelled, in circumstances‑‑‑Accused was convicted by Trial Court under S. 308, P. P. C., but proof of Qatl‑e‑Amd liable to Qisas as provided under S.304, P. P. C. was not available in case and no proceedings for Tazkiyah‑al­-Shahood to test the veracity of eye‑witness were undergone by Trial Court‑‑‑Sentence in case could only be awarded to accused as Tazeer‑‑‑View point adopted by Trial Court for convicting accused under S.308, P. P. C. was illegal as Qisas was not available , in the case‑‑‑Conviction of accused under S. 308, P. P. C. was set aside and case was remanded to Trial Court for re‑writing of judgment without recording any fresh evidence, within specified period.

Ijaz Hussain v. The State 2002 SCMR 1455 and Faqir Ullah v. Khalil‑uz ­Zaman and others 1999 SCMR 2203 ref.

Syed Sabir Hussain for Appellants.

Abdul Aziz Khan Niazi for the Complainant.

Syed Altaf Hussain Bokhari for the State.

Date of hearing: 13th July, 2004.

2005 Y L R 602

[Lahore]

Before Sh. Abdul Rashid, J

FAKHAR UL JALIL‑‑‑Petitioner

Versus

STATION HOUSE OFFICER OF MURADPUR SIALKOT and 2 others‑‑‑Respondents

Writ Petition No.7221 of 2004, decided on 22nd November, 2004.

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

‑‑‑‑Ss.10/13/14‑‑‑Penal Code (XLV of 1860), S. 216‑‑‑Police Rules, 1934, Chap. 25, R.22‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Quashing of F.I.R.‑‑‑Prosecution case as set up in F.I.R. was that seven police officials raided on receiving secret information that a proclaimed offender was present in certain room of hotel of which accused was Chief Executive‑‑‑Allegation was that said proclaimed offender succeeded in making good his escape through a window, but three persons along with a girl were allegedly found present in that room of the hotel in naked condition and one couple was found busy in Zina and that the hotel premises were being used as brother house‑‑‑Relevant room was situated in an upper storey of the hotel and it could not be possible for alleged proclaimed offender to escape through a window had he been present there; it was also not conceivable that proclaimed offender could make good his escape in presence of seven police officials ‑‑‑F.I.R. revealed that when police officials knocked at the door of relevant room of the hotel, it itself opened, which means that door of room had not been locked or bolted from inside‑‑‑If proclaimed, offender or accused persons along with female in naked condition were present inside the room, then at least they would have taken some pre‑cautions to bolt or lock the same from inside and would not have left it to open at a slight knock, it was thus apparent, in circumstances that story of presence of proclaimed offender had been made out to create an excuse to raid relevant room of hotel without seeking any search warrant‑‑‑Entire case had been built up against accused on the basis of incriminating confession of female accused before police and no other evidence was available regarding commission of said offence‑‑‑Female accused was medically examined without seeking her consent or order of Magistrate in violation of Chapter 25 Rule 22 of Police Rules, 1934‑‑‑Report of Medical Officer and that of Chemical Examiner, could not be read in evidence as same had no legal value‑‑‑Police had conducted raid without obtaining search warrant and made out case on basis of material which was inadmissible in evidence‑‑‑Case against accused having no legal basis to proceed further, F.I.R. in question was quashed.

Riaz v. Station House Officer Police Station, Jhang City and 2 others PLD 1998 Lah 35 ref.

Malik Saeed Hassan for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.‑G. with Zabair, S.‑I. for Respondents.

2005 Y L R 609

[Lahore]

Before M. Bilal Khan, J

ZESHAN SARWAR and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 7169‑B and 6416‑B of 2004, decided on 24th November. 2004.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.380/406/420/468/471‑‑‑Pre‑arrest bail, refusal of‑‑‑Primary requirement for the grant of pre‑arrest bail was mala fide on part of complainant and police‑‑‑Only malice attributed by accused against complainant Company was that Company, had failed to perform its contractual obligations; Company and its Directors had suffered a loss and were on the look for scapegoats to offer some kind of excuse for their default and that accused and others had been made scapegoats‑‑‑Validity‑‑‑Such stance would not appear to be a convincing explanation for the involvement of accused by Company‑‑‑Even otherwise making scapegoats could not absolve complainant Company of its contractual obligations‑‑‑No plausible reason had been put forward as to why accused had been involved by police in the case‑‑‑Accused could not point out as to what benefit Company wanted to gain by lodging F.I.R. at Lahore instead of Islamabad‑‑‑Even otherwise, complainant Company which was a private limited Company, was domiciled in Lahore and there was no embargo in initiating criminal action against accused at Lahore‑‑‑Plea of accused that since offences against him did not attract prohibitory clause of S.497(1); Cr.P.C., he was entitled to pre‑arrest bail, was not available to accused‑‑‑Bail petition of accused was dismissed, in circumstances.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.380/406/420/468/471‑‑‑Bail, refusal of‑­‑Serious allegations were leveled against accused and prima facie he had abused the trust reposed in hint by his employers causing a colossal financial loss to complainant Company‑‑‑Mere fact that offence against accused did not attract prohibitory clause of S.497(1), Cr.P.C., would not mean that accused had become automatically entitled to bail‑‑‑Delay of six months and nine days in lodging F.I.R. was not very material inasmuch as action against accused had to be initiated only when alleged defalcation had come to the notice of management of complainant‑‑­Contention of accused that whole drama had been enacted by complainant to devour the salaries of employees of Company, did not prima facie appear very impressive inasmuch as it was not expected of a Company with turnover of crores of rupees to indulge in such‑like theatricals, which would ultimately malign Company itself‑‑­Statements recorded under S.161, Cr. P. C. were available on record of certain individuals, who claimed that accused and his co‑accused had cheated them in the manner as stated in the F.I.R.‑‑‑Nothing was on record with regard to alleged heart disease of accused which could suggest that accused was suffering from such disease which was not treatable in jail‑‑‑Contention that challan of case had not been submitted despite six months had elapsed since registration of case, did not appear to be correct as according to Investigating Officer, challan had already been submitted in the Court‑‑‑There being no merits in bail petition, same was dismissed accordingly.

Mansha Khan and 2 others v. The State 1977 SCMR 449: Sadiq Ali Shah v. Sardar Khalid Umar and others 1982 SCMR 975; Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 60; Muhammad Azam v. The State 1996 SCMR 71; Afzaal Ahmed v. The State 2003 SCMR 573 and Muhammad Irshad and others v. Amanant Ali and another 2004 SCMR 1375 ref.

Aftab Gul for Petitioner.

Muhammad Sharif Chohan for Petitioner in Crl. Misc. No.6416/B of 2004.

Azam Nazir Tarar for the Complainant.

Muhammad Ali Ghughtai with Gulshan Awan, S.I. for the State.

2005 Y L R 617

[Lahore]

Before M. Bilal Khan, J

Haji GHULAM MUHAMMAD alias GAMA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 6977‑B of 2004 decided on 2nd November, 2004.

Criminal Procedure Code (V of 1898)-‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 302/365/109‑‑‑Pre‑arrest bail, refusal of‑‑‑One of basic considerations in a pre­-arrest bail application was mala fides on the part of complainant and the police‑‑­Accused, in the present case, had not been able to point out any mala fides on the part of police‑‑‑So far as complainant was concerned, both sides were involved in serious criminal cases‑‑‑Deceased had sustained as many as 18 injuries on his person and from post‑mortem report it transpired that deceased was dealt with by attackers in a very cruel and brutal Manner‑‑‑While seizing a pre‑arrest bail application, High Court was to confine itself to the extent of tentative assessment of material available on record‑‑­Investigating Officer had opined about the guilt of accused and he had also stated that accused had a strong motive to commit offence‑‑‑Bail petition was dismissed, in circumstances.

Waris Muhammad v. Haji Ahmad Yar and another 1976 SCMR 182; Sadiq Ali Shah v. Sardar Khalid Umar and others 1982 SCMR 975; Syed Amanullah Shah v. The State and another PLD 196 SC 241; Khalid Javed and another v. The State 2003 SCMR 1419; Firdous Paul v. The State 2004 SCMR 15; and Atta Ullah v. The State 2004 PCr.LJ 309 ref.

Amjad Ali Chatha for Petitioner.

Ali Raza Gillani for the State.

Muhammad Iqbal Bhatti for Complainant.

Khushi Muhammad, S.‑I. with Record.

2005 Y L R 623

[Lahore]

Before M. Bilal Khan, J

ANIS AHMAD‑‑‑Petitioner

Versus

THE STATE Respondent

Criminal Revision No. 449 of decided on 12th November 2004.

Criminal Procedure Code (V of 1898)---

‑‑‑‑Ss. 265‑K, 561‑A, 439 & 435‑‑­Emigration Ordinance (XVIII of 1979), Ss. 17, 18 & 22‑‑‑Prevention and Control of Human Trafficking Ordinance (LIX of 2002), Ss. 3 & 4‑‑‑Dismissal of application under S.265‑K, Cr. P. C.‑‑‑Petitioner had called in question the order passed by Special Judge whereby his application under S. 265‑K, Cr. P. C. for acquittal was dismissed‑‑‑Petitioner/accused was named in F. I. R. with specific role of facilitating offence as contained in S.17(2) (b) of Emigration Ordinance, 1979‑‑‑Prosecution witnesses had fully implicated accused in their statements made under S.161, Cr. P. C.‑‑‑Two of prosecution witnesses in their statements made under S.161, Cr.P.C. had fully implicated accused, but in their statements subsequently made under S.164, Cr. P. C. they had disowned their statements allegedly made under S.161, Cr. P. C.‑‑‑Said subsequent statements made by two prosecution witnesses under S.164, Cr. P. C. contradicting their earlier statements made under S.161, Cr. P. C. had doubtful credibility, firstly because those were belated and secondly said witnesses had taken a totally divergent stand and had given no explanation as to why in their earlier statements under S.161, Cr. P. C. they had specifically named accused/petitioner‑‑‑Since trial had already commenced, credibility of said prosecution's star witnesses against accused/petitioner, would be determined by Trial Court‑‑‑Necessity of getting their statements by a Special Judicial Magistrate would also be ascertained during course of trial‑‑‑Arty interference at present stage by High Court in exercise of its powers under S.561‑A, Cr. P. C. would tantamount to pre­empting the functions of Trial Court‑‑‑Prosecution at the present stage in case of deprived of its right to prove its case against petitioner‑‑‑Revision 'petition was dismissed, in limine.

Naroo v. The State 1986 PCr.LJ 174; Faqir Ullah v. Khalil‑uz‑Zaman and others 1999 SCMR 2203; Sheikh Mahmood Saeed and others v. Amir Nawaz Khan 1996 SCMR 839; Shaikh Muhammad Yamin v. The State 1973 SCMR 622 and Mst. Saleem Bibi and 3 others v. Fazal Hussain 1976 PCr.LJ 555 ref.

Ahmad Awais for Petitioner.

Tariq Shamim Standing Counsel for Federal Government.

2005 Y L R 627

[Lahore]

Before Khawaja Muhammad Sharif, J

KHURSHID and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Crl. A. No. 1254 of 2003, heard on 25th October, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/148/149‑‑‑Appreciation of evidence‑‑‑Un‑explained and inordinate delay of twelve hours in lodging F.I.R. though distance between Police Station and place of occurrence was only twelve miles‑‑‑Telephone facility was available in the village, but none informed the police about occurrence‑‑‑Such delay had cast serious doubts about prosecution story‑‑‑No number had been given to the F. I. R. though it was the case of prosecution that F.I.R. was registered at Police Station on the application of complainant‑‑‑‑Such position had established that F.I.R. was registered after due deliberations, and concoctions‑‑­Two eye‑witnesses produced by prosecution were closely related to deceased‑‑­Longstanding enmity existed between both parties and cases were registered against each other‑‑‑Occurrence had taken place in a very congested area surrounded by houses, but no independent witness had been produced‑‑‑No recovery was effected from any of accused persons‑‑‑F.I.R. had revealed that accused persons made firing with .30 bore pistol, .222 rifle and .12 fore guns, but only three crimes empties of .30 bore pistol were recovered from the spot‑‑­Investigations were held by three Investigating Officers and in all investigations accused were found to be innocent‑‑‑No incriminating weapon was recovered from accused‑‑‑Both the site plans, one prepared by Investigating Officer and other by draftsman, showed no source of light though time of occurrence was 9.10 p. m. in the month of December‑‑‑Ocular testimony of two witnesses who were closely related to deceased was not corroborated through independent sources‑‑‑Prosecution having failed to prove its case against accused beyond any shadow of doubt, impugned judgment passed by Trial Court against accused, was set aside and accused were acquitted of the charge levelled against them and they were released.

Khawaja Haris Ahmad for Appellant.

Asif Hussain Sheikh for the State.

Date of hearing: 25th October, 2004.

2005 Y L R 632

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ALI ‑‑‑ Petitioner

Versus

MUZAMIL HUSSAIN and 3 others‑‑‑Respondents

Crl. Misc. No. 317/B/C of 2004, decided on 18th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.324/430/148/149‑‑‑Bail, cancellation of‑‑‑Accused were armed with lethal weapons which they effectively used and ;they had been attributed specific role‑‑­Medico‑legal certificates, prima facie had corroborated ocular account‑‑‑Statements of eye‑witnesses made under S.161, Cr. P. C. also had fully implicated accused‑‑‑In view of such overwhelming material available against accused, observation while granting pre‑arrest bail to them by Trial Court, that they had not been attributed any specific role was absolutely untenable‑‑­Extraordinary relief of pre‑arrest bail could not have been granted to accused especially in ' absence of any specific mala fides against the police‑‑‑After obtaining pre-­arrest bail accused had been trying to suborn prosecution witnesses and filing of cross complaint might have been the result of undue pressure‑‑‑In view of nature of allegations and peculiar facts and circumstances of the case specially when injury suffered by one of prosecution witnesses resulted in amputation of his leg, Trial Court had failed to apply well­-established principles governing grant of pre‑arrest bail especially when case entailed capital punishment‑‑‑Order granting bail passed by Trial Court was recalled, in circumstances.

Ch. Muhammad Hussain Chhachhar for Petitioner.

Muhammad Ahsan Bhoon for Respondents Nos.1 to 3.

Abdul Majeed Chishti and Sarwar Ali, A.S.‑I. for the State.

2005 Y L R 633

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and Bashir A. Mujahid, JJ

Sh. MUHAMMAD MUNIR‑‑‑Petitioner

Versus

CHAIRMAN, NAB‑‑‑Respondent

W.Ps. Nos. 15428, 15429, 17400 and 17088 of 2002, decided on 26th September, 2002

National Accountability Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 9(vi), 10, 18(g), 24 & 32‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Suspension of sentence‑‑‑Accused/petitioners who were convicted and sentenced had sought suspension of sentence through their Constitutional petitions pending their appeal against their conviction and sentence‑‑‑All the petitioners had been awarded sentence of three years' R.I.‑‑­Most of petitioners had already undergone major portion of their sentence of imprisonment, if calculated from the date of their arrest‑‑‑Three petitioners had already been admitted to interim bail and other three being more than seventy years of age, their case was covered under First Proviso to S. 497(1), Cr. P. C.‑‑‑Due to pendency of large number of appeals filed under National Accountability Ordinance, 1999, hearing of appeals of petitioners was not within sight in near future‑‑‑Sentence awarded to accused was suspended and they were admitted to bail accordingly.

State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah. 523 ref.

Sh. Zia Ullah along with Ashtar Ausaf Ali and Ehsan Ullah Khan Lilla for Petitioners.

Javed Shokat Malik Dy. Prosecutor General for NAB.

Date of hearing: 26th September, 2002.

2005 Y L R 636

[Lahore]

Before Tassaduq Hussain Jillani and Muhammad Sayeed Akhtar, JJ

Mian MUHAMMAD FAROOQ‑‑‑Appellant

Versus

THE STATE ‑‑‑Respondent

Criminal Appeal No. 221 of 2003, decided on 16th March, 2004.

National Accountability Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss.9(a) (iv), 10, 15 & 32‑‑‑Appreciation of evidence‑‑‑Charge against accused was that he got allotted plot from Chief Minister's discretionary quota for reserved price by giving false declaration, which plot later on was sold by accused on higher price‑‑‑Prosecution had not referred to any piece of evidence to indicate that accused or any of his dependents had any plot in any Housing Scheme prior to issuance of allotment order in his favour by Chief Minister or when alleged affidavit/declaration was signed and tendered by accused‑‑‑Trial Court found the accused guilty merely because he sold the plot in question to other person‑‑‑Said reasoning for holding accused guilty, was not tenable as merely because he subsequently sold the plot to someone else, would not make his affidavit to be false as no condition was attached to allotment of plot to accused that be would not sell the same to any third person‑‑‑Prosecution having failed to prove case against accused beyond any shadow of doubt, he was acquitted of charge against him.

Talib Haider Rizvi and Tafazzul Haider Rizvi for Appellant.

Imran Ahmad Malik for Respondent.

Date of hearing; 16th March, 2004.

2005 Y L R 639

[Lahore]

Before M. Bilal Khan and Sh. Abdul Rashid, JJ

EHSAN SHARIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Murder Reference No. 637 of 2000 and Crl. A. No. 463 of 2000, heard on 16th March, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑­Sentence, reduction of‑‑‑Accused did not challenge his conviction and sentence, but only sought reduction in sentence‑‑­Conclusion of guilt arrived at by Trial Court against accused was well founded and did not need any interference‑‑‑Eye­ witnesses were natural witnesses of the occurrence and had supported one another on all material points‑‑‑Ocular account was corroborated by Medical evidence, report of Forensic Sciences Laboratory and Chemical Examiner's report‑‑‑Witnesses did not have any enmity or ill‑will against accused‑‑‑Unexplained abscondence of accused for two and a half years also lent lot of support to prosecution case‑‑‑What had happened immediately before death of deceased was not ascertainable from record‑‑‑Maximum sentence of death awarded to accused for murder of deceased was quite harsh in peculiar facts and circumstances of case, and ends of justice would be better served if lesser penalty of life imprisonment was imposed‑‑‑No evidence of previous ill‑will and immediate cause which resulted into unfortunate death of deceased was ascertainable from record‑‑‑Motive had neither been alleged in F.I.R. nor had been stated by anyone of the prosecution witnesses produced by prosecution‑‑‑Death sentence awarded to accused by Trial Court was converted into life imprisonment accordingly.

Abid Hussain v. The State PLD 1994 SC 641; Naubahar v. The State 1999 SCMR 637; Abid Ali and others v. The State 1995 PCr.L1 834; Muhammad Sharif Khan Tareen v. The State 1995 PCr.LJ 313 and Khalid alias Khaldi v. The State 2003 PCr.LJ 638 ref.

Malik Rab Nawaz Noon for Appellant.

Mr. Tanveer Iqbal Asstt. A.‑G. for the State.

Date of hearing: 16th March, 2004.

2005 Y L R 644

[Lahore]

Before Sh. Hakim Ali, J

ALLAH DITTA and others‑‑‑Petitioners

Versus

MUHAMMAD AMIN and others‑‑‑Respondents

W.P. No. 114 of 2004/B.W.P. decided on 5th May, 2004.

Criminal Procedure Code (V of 1898)‑--

‑‑‑‑S.145‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/427/149 ‑‑‑ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Proceedings under S.145, Cr. P. C. ‑‑‑Petitioner along with suit for grant of permanent injunction had also filed application for grant of temporary injunction and Civil Judge who was seized of the case, maintained status quo‑‑Subsequently when possession of petitioner over the suit land was interfered with, he approached police and police recorded F.I.R. under Ss.337‑A(ii)/427/149, P.P.C. and after registration of F.I.R., initiated proceedings under S.145, Cr. P. C. and Special Judicial Magistrate appointed a receiver for disputed land‑‑‑Revision filed by petitioner against order of Special Judicial Magistrate was dismissed by Sessions Judge‑‑‑Validity‑‑‑Suit was filed by petitioner prior to initiation of proceedings under S.145, Cr. P. C. and order regulating possession of parties was also passed by Civil Judge‑‑‑If any dispute had arisen with regard to possession or dispossession of property in dispute, that could be resolved through approaching Civil Judge‑‑­Commencement of proceedings under S.145, Cr. P. C. was a mala fide move on the part of police as to disrupt orders of Civil Court‑‑‑When Civil Court was seized of the matter and had passed an order with regard to possession it had to be given free hand to regulate possession or to pass any appropriate order in accordance with circumstances of case and no other authority had got any power to interfere into jurisdiction of Civil Court‑‑­Proceedings initiated under S.145, Cr. P. C. and subsequent orders were declared illegal and without lawful authority by High Court with direction that matter be referred to Civil Judge who would pass appropriate order with regard to property in dispute.

Mehr Muhammad Sarwar and others v. The State PLD 1985 SC 240; Abdul Aziz v. S.H.O. 1993 MLD 374 and Rajaj Tallat Mahmood v. Assistant Commissioner City, Rawalpindi 1999 MLD 863 ref.

Abdul Ghaffar Bhuttoa for Petitioners.

Mirza Muhammad Azam for Respondents Nos. 1 and 2.

2005 Y L R 646

[Lahore]

Before Khawaja Muhammad Sharif, J

NOOR AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.7113‑B of 2004, decided on 21st October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324‑‑‑Bail, grant of‑‑‑Case was of two versions in which one person died from each side‑‑‑Two challans had been submitted before Trial Court and it would be determined by the Trial Court as to which party was the aggressor‑‑‑Accused was admitted to bail, in circumstances.

Ch. Naeem Asif for Petitioner.

Zubair Afzal Rana for the Complainant.

Mehboob Ahmad S.I. with Record.

2005 Y L R 647

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

MUHAMMAD RAFIQUE ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.8420‑B of decided on 3rd December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Emigration Ordinance (XVIII of 1979), Ss.17/22‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑One of prosecution witnesses in his statement made under S.164, Cr. P. C. had exonerated accused‑‑­Case against accused fell within fold of further inquiry entitling him to concession of bail‑‑‑Accused was admitted to bail, in circumstances.

Nadeem Mehmood Mian for Petitioner.

2005 Y L R 648

[Lahore]

Before Khawaja Muhammad Sharif, J

GHULAM MUSTAFA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.7266‑B of 2004, decided on 28th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

-‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Matter wets reported to police two days after occurrence and accused was named in F.I.R. in supplementary, statement made thereafter on the same day‑‑‑Cause of decals of deceased, according to the Doctor, was due to asphyxia resulting from drowning while statement of complainant was that accused, along with other, caused death of the deceased‑‑‑No motive was attributed to accused and it was not a case of eye­witness account‑‑‑Investigating Officer had declared accused innocent‑‑‑Case of further inquiry falling under S. 497(2), Cr. P. C. having been made out, accused was allowed bail, in circumstances.

Arif Chaudhry for Petitioner.

Ch. Nazir Ahmad, for the State.

Bashir A.S.‑I. with Record.

2005 Y L R 649

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. SAJIDA alias SAJO‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.7598‑B of 2004, decided on 25th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/13/14‑‑‑Pre‑arrest bail, grant of‑‑­Accused had been declared innocent by Investigating Officer‑‑‑Medical evidence was also in favour of accused which had contradicted story of prosecution‑‑‑There being reasonable grounds for believing false implication of accused, possibility of same could not be ruled out‑‑‑Such fact had brought case of accused under the phrase 'further inquiry "‑‑‑Accused being a woman her case fell under Proviso 1 of S.497, Cr.P.C.‑‑‑Ad‑interim bail already granted to accused was confirmed accordingly.

Munir Ahmad v. The State 2004 PCr.LJ 314; Muhammad Yaqoob v. The State 2004 Cr.LJ 295; Shaukat Ali v. The State 2004 YLR 1798; Rehmat Ullah's case 1970 SCMR 299; Mohsin's case 1977 PCr.LJ 159 and Abdul Qadir's case 1980 PCr.LJ 397 ref.

Qazi Muhammad Arshad Bhatti for Petitioner along with Petitioner in person.

Najam‑ul‑Saqib Raaj, State Officer along with Ali Hussain, A.S.‑I., Police Station, Jaranwala.

2005 Y L R 650

[Lahore]

Before Khawaja Muhammad Sharif, J

ALLAH DITTA and others Petitioners

Versus

MUHAMMAD RAMZAN and others‑‑‑Respondents

Writ Petition No. 11794 of 2004 decided on 3rd November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

----Ss.14 & 113‑‑ Pakistan Environment Protection Ordinance (XXVII of 1997), S.17‑‑‑Notification No. 152‑JOB‑1(5)/VI.E.28 dated 24‑4‑1997‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Application for conditional order for removal of nuisance‑‑‑Jurisdiction to deal with environmental matter‑‑­Application under S.133, Cr.P.C. was dismissed by Special Judicial Magistrate, but on filing revision against his order, Additional Sessions Judge, accepting said revision had allowed application‑‑­Petitioners had challenged orders of both Courts, as having been passed without jurisdictions‑‑‑Notification No. 152‑JOB-­1(5)/VI.E‑28 dated 24‑4‑1997 issued by High Court provided that only Senior Civil Judges in the Province could try offences in question as Environmental Magistrates and not Judicial Magistrates as had been done in the present case‑‑‑Perusal of said Notification had shown that Senior Civil Judges cum‑Judicial Magistrates in the Province could only try offences in question as Environmental Magistrate under S.17 of Pakistan Environmental Protection Ordinance, 1997‑‑‑Order passed by Special Judicial Magistrate, was without jurisdiction as he was not a Senior Civil Judge and was not competent to deal with such‑like issues‑‑‑Allowing Constitutional petition both orders passed by Special Judicial Magistrate and by Additional Sessions Judge, were set aside having been passed without jurisdiction‑‑­Application under S.133, Cr. P.C. would be deemed to be pending before concerned Senior Civil Judge‑cum‑Judicial Magistrate who would decide same on merits.

Mrs. Anjum Irfan v. Lahore Development Authority through Director General and others PLD 2002 Lah. 555 ref.

Shahid Qayyum Chaudhry for Petitioners.

Ch. Muhammad Hanif Khatana, Additional Advocate General on Court Call.

Shaukat Hussain Baloch for Respondent No.1.

2005 Y L R 652

[Lahore]

Before M. Javed Buttar, J

MUHAMMAD SUGHEER‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.750‑B of 2004, decided on 23rd February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Accused had been declared innocent in police investigation and had been placed in Column No. 2 of challan report‑‑‑Nothing was on record to the effect that said findings of police were incorrect‑‑‑Nothing was on record to show any connection of accused with co‑accused and accused was merely a driver of vehicle which had been taken on hire by co‑accused‑‑‑Case against accused being of further inquiry„ he was admitted to bail.

Rao Munawar Khan for Petitioner.

Sohail Tariq for the State.

Date of hearing: 23rd February, 2004.

2005 Y L R 654

[Lahore]

Before Khawaja Muhammad Sharif, J

AZIZ AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.3062‑B of 2004 decided on 11th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 406 & 420‑‑‑Bail before arrest, refusal of‑‑‑Contention of accused was that he had already paid Rs.17 lacs to complainant in two instalments and for remaining amount of Rs.1,17,000 he handed over a cheque to complainant as due to shortage of amount in account, he could not pay said amount to complainant‑‑‑Complainant had submitted that accused had issued a cheque of Rs.18 lacs and 17 thousands and not rupees 1,17,000‑‑‑Complainant had also shown photostat copy of said cheque which could not be encashed because account of accused was dormant‑‑‑Suit for cancellation of document was filed 17 days after lodging F.I.R.‑‑‑No case for bail before arrest having been made out, petition for bail was dismissed.

Tassawar Hussain Qureshi for Petitioner.

Rana Muhammad Arshad Khan for the Complainant.

Muhammad Haris Chaudhry for the State.

Date of hearing: 11th May, 2004.

2005 Y L R 655

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD YOUSAF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.4994‑B of 2003, decided on 29th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/109‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused admittedly was not present at the time of alleged occurrence‑‑­Accused during investigation was found innocent‑‑‑Was yet to be seen whether accused ultimately could be held liable for the alleged offence‑‑‑Case against accused, in circumstances, was covered under subsection (2) of S.497, Cr. P. C. calling for further inquiry‑‑‑Case for enlargement of accused on bail having been made out, he was admitted to bail, in circumstances.

Muhammad Sharif v. State 2001 YLR Lah. 2619 ref.

Syed Ijaz Qutab for Petitioner.

Maqbool Ahmad Qureshi for the State.

Umar Hayat, S.‑I. with Police Record.

2005 Y L R 656

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD AKRAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.7147‑B of 2003, decided on 15th December, 2003.

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

‑‑‑‑S.497‑‑‑Prohibition (Enforcement of Hadd) Ordinance (4 of 1979), Arts.3/4‑‑­Bail grant of‑‑‑Allegation against accused was that he and his co‑accused were found extracting liquor‑‑‑Accused was in judicial lock‑up since his arrest‑‑‑Police Officer present in Court, had stated that challan had been submitted in Court, but no evidence had been recorded‑‑‑Accused did not appear to be previous convict‑‑­Co‑accused were on bail‑‑‑Accused was admitted to bail in circumstances.

Rana Muhammad Arshad Khan for Petitioner.

Ms. Noreen Saleem for the State.

Date of hearing: 15th December, 2003.

2005 Y L R 657

[Lahore]

Before Nasim Sabir Ch., J

HAQ NAWAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl.. Miscellaneous No.929‑B of 2004, decided on 24th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.392/411‑‑‑Bail, grant of‑‑‑Accused was not named in the F.I.R.‑‑‑No identification parade was held in the case to show involvement of accused in the commission of the offence of depriving the complainant of his motor‑cycle and cash‑‑‑Presently no incriminating material was available with the prosecution to connect the accused with the offence punishable under S. 392, P. P. C. ‑‑‑Offence under S. 411, P. P. C. did not fall 0thin the ambit of the prohibition contained in S.497(1), Cr.P.C.‑‑‑Further inquire was required in the case as contemplated under S. 497(2). Cr. P. C. ‑‑‑Accused was enlarged on bail in circumstances.

Mian Arshad Latif for Petitioner

Syed Hashmat Hussain Naqvi for the State.

Muhammad Mansha, S.I.

2005 Y L R 659

[Lahore]

Before M. Naeemullah Khan Sherwani, J

QURBAN ALI alias JUDGE‑‑‑Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1705‑B of 2004, decided on 26th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.392/109‑‑‑Bail, grant of‑‑‑Further inquire,‑‑‑Accused was not named in F.I.R. and he was arrested on basis of a supplementary statement of complainant made by him after about 34 days of the occurrence‑‑‑Contents of statement of complainant did not depict the way he came to know about culpability of accused‑‑‑Such statement was hardly sufficient to link accused with commission of crime imputed to him‑‑‑No other person come forward to say a word against accused‑‑‑No recovery could be made from accused‑‑­Accusation brought against the accused had necessitated further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Ghulam Rasool Chaudhry for Petitioner.

Sarfraz Ali Cheema for the State with Muhammad Ashraf, S.‑I.

2005 Y L R 660

[Lahore]

Before Mian Muhammad Akram Baitu, J

MUHAMMAD NAWAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No. 1920‑B of 2004, decided on 6th July, 2004.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑‑Accused was attributed a fire‑arm injury on the left knee of the victim which had been declared simple in nature‑‑‑Said injury was on the non‑vital part of the body of the victim and was not repeated‑‑‑Accused was behind the bars for the last more than eight months‑‑­Trial of accused had not yet commenced and he could not be detained in judicial lock up for an indefinite period‑‑‑Case of accused was covered by S. 497(2), Cr. P. C. which called for further inquiry‑‑‑Accused was admitted to bail in circumstances.

Mian Arshad Latif, for Petitioner.

Muhammad Sarwar Awan for the State.

Akram, Sub‑Inspector.

2005 Y L R 661

[Lahore]

Before Nasim Sabir Ch., J

MUHAMMAD AHMAD‑‑‑Petitioner

Versus

THE STATE Respondent

Crl. Miscellaneous No. 1116‑B of 2004 decided on 29th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss. 337‑A Ss.337‑A(i)/337‑F(ii)/337‑D/452/34 ‑‑‑ Bail, grant of‑‑‑Further inquiry ‑‑‑ Story as narrated by prosecution was not free from doubt‑‑‑F. I. R. was lodged after an inordinate delay of three days of occurrence‑‑‑Provisions of S. 337‑D, P. P. C. was not attracted in the case‑‑‑Injury caused at the back of the chest of injured witness, did not extend to body cavity and had not caused any damage to any vital organ of body of injured‑‑‑If injury did not extend to that part of the body then same could not be treated as Jaifah'‑‑‑Offence with which accused was charged did not fall within, prohibitory clause of S.497, Cr.P.C.‑‑‑Findings of Investigating Officer were not binding on the Court‑‑‑Co‑accused had already been released on bail who was also armed with dagger and caused injury on person of complainant‑‑‑Recovery of Chhuri at the pointation of accused was not of any help to prosecution as same was not blood‑stained‑‑‑During recovery proceedings no independent witness had been associated by prosecution‑‑‑ Case against accused, in circumstances fell within ambit of further inquiry entitling him to be released on bail‑‑‑Accused it‑as admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mehr Ashfaq Ahmad for the State.

Date of hearing: 29th April, 2004.

2005 Y L R 663

[Lahore]

Before Muhammad Akhtar Shabbir, J

RIZWAN QAYYUM and another‑‑‑Petitioners

Versus

THE STATE---Respondent

Cr. Miscellaneous No.581‑B of 2004, decided on 8th June 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.337‑J/377/379/411/34‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S.12‑‑‑Bail grant of‑‑‑Further inquiry‑‑‑Medical Expert had observed that it was a case of attempt to commit sodomy and said unnatural offence had not been committed with complainant‑‑‑No prosecution/eye‑witness of occurrence had been named out crud it was an unseen occurrence‑‑‑Medico‑legal report was in contradiction of F.I.R.‑‑‑Case was not covered within provisions of S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but was a case for attempt to commit sodomy which did not fall within prohibition contained in S.497. Cr.P.C.‑‑‑Due to contradictions in F.I.R. and Medico‑Legal report and having no direct evidence of occurrence, case against accused fell within the ambit of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Malik Rab Nawaz Noon for Petitioners.

Raja Shafaat Khan for the State.

Date of hearing: 11th May, 2004.

2005 Y L R 664

[Lahore]

Before Sh. Abdur Rashid, J

SHAHZAD alias SHAZAD ZULFIQAR AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.4081‑B of 2004, decided on 28th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.406/409/506/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Complainant and his son were running gold business abroad and accused worked as their agent‑‑‑Dispute was between accused and son of complainant regarding certain quantity of Gold and amount of salaries, which dispute was settled abroad and all financial claims and liabilities stood cleared‑‑‑Present case had been made out against the accused on his return to Pakistan after lapse .of one year only with verbal assertion‑‑‑As the matter had already stood settled, contents of the F.I.R. lodged in Pakistan, were matter of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Mian Dilawar Mahmood and Ch. Imran Chadhar, for Petitioner.

Sh. Khurshid Iqbal for the State.

Date of hearing: 28th June, 2004.

2005 Y L R 666

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ZUBAIR alias BAGO and 4 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Cr. Miscellaneous No.6501‑B of 2004, decided on 11th October, 2004.

Criminal Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(iii), L(ii), H(ii), 354, 452, 148 & 149‑‑‑Pre‑arrest bail, refusal of‑‑‑Accused were named in F.I.R. and they had been ascribed specific roles in the commission of alleged offence‑‑‑Weapons of offence were still to be recovered front accused and it was likely that if extraordinary relief of pre­-arrest bail was allowed object of recovery and investigation was likely to be frustrated, which if is effected, would bring a true picture of the matter before Court‑‑­Pre‑arrest bail, could not be allowed to accused, in circumstances.

Shah Ali and 2 others v. The State 1976 PCr. LJ 1021; Mir Hassan and another v. The State 1987 PCr.LJ 1336; Muhammad Ejaz Anwar v. The State 1993 MLD 1749; Jalil Ahmad v. The State 1995 MLD 782; Shoib Mehmood Butt v. Iftikhar‑ul‑Haq and 3 others 1996 SCMR 1845; Dr. Muhammad Shoaib Suddle D.I.­G. Police, Karachi and others v. The State 1997 SCMR 1234; Muhammad Maqsood Kabir Ahmad and others 1997 PCr.LJ 1333 and Abdul Jabbar and others v. The State 2001 PCr.LJ 1956 ref.

Ch. Masood Ahmad Zafar with Nizakat Ali for Petitioner No. 3.

Mudassar for Petition, No. 4.

Abdul Ghafoor for Petitioner No. 5.

Tahir Abbas Rizvi for the State.

Muhammad Arif Chaudhry for the Complainant.

Muhammad Aslam, A.S.I. with police Record.

2005 Y L R 667

[Lahore]

Before Sh. Abdur Rashid, J

HASEEB ULLAH and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.4279‑B of 2004, decided on 20th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 324/148/149‑‑‑Pre‑arrest hail, grant of‑‑‑ Name of co‑accused had not specifically been mentioned in F I.R. and no role whatsoever in the occurrence had been ascribed to him‑-‑Injured person during police investigation had got recorded his statement in which he challenged the names of culprits mentioned in F.I.R. and he also did riot ascribe any specific role to the accused as well‑‑‑In the first medico‑legal examination injuries of injured prosecution witness were observed to be four in number and were declared to be incised in nature, but in the subsequent medical examination conducted by Board all incised injuries were held to be lacerated injuries which again belied prosecution version‑‑‑Role alleged to accused that he caused knife blow to injured prosecution witness also had become a matter of further inquiry‑‑‑Interim bail already allowed to accused, was confirmed, in circumstances.

Dr. A. Basit for Petitioners.

Saif‑ul‑Haq Ziay for the Complainant.

Zahid Sikandar for the State.

Date of hearing: 20th July, 2004.

2005 Y L R 669

[Lahore]

Before Muhammad Nawaz Bhatti, J

TALIB HUSSAIN ‑‑‑Petitioner

Versus

THE STATE---Respondent

Crl. Miscellaneous No.9151‑B of 2004 decided on 13th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Bail, refusal of‑‑‑Accused was stated to be a habitual offender as there were other cases of criminal nature against him‑‑‑Present case against the accused fell under prohibitory clause of S.497, Cr. P. C. ‑‑‑Accused was nominated in the F.I.R. and prosecution witnesses in their statements under S.161, Cr. P. C. had involved him in the matter‑‑‑Two persons, who were also victims of offence committed by accused, had clearly involved accused in their, statements under S.161, Cr. P. C.‑‑­Sufficient material was available to connect accused in commission of offence under S. 392, P. P. C. which was punishable up to 14 years R.I.‑‑‑Accused being unable to establish case to grant him bail under S.497, Cr. P. C., his bail application was dismissed.

Abdul Hameed Cheema for Petitioner.

2005 Y L R 670

[Lahore]

Before Mian Muhammad Akram Baitu, J

AHMED ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No. 178‑B of 2004 decided on 9th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Penal Code (XLV of 1860), Ss.377/342‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused though was named in F.I.R., but inordinate delay of two days in lodging F.I.R., was not explained‑‑‑Medical examination of alleged victim was made after two days of occurrence‑‑‑One of prosecution witnesses was real paternal uncle of victim and other was close relative of victim and they had not supported prosecution version to the effect' that they had not witnessed the occurrence‑‑‑Finding of police could be taken into consideration for the just decision of bail matter‑‑‑Trial against accused had not commenced‑‑Speedy trial of case was a recognized right of accused and in case of delay in the trial he was justified for asking post‑arrest bail‑‑‑Sufficient reasons existed to believe that case of accused needed further inquiry into his guilt and his case fell under sub-section (2) of S. 497, Cr. P. C. ‑‑‑Further detention of accused would not serve an useful purpose‑‑‑Accused was admitted to bail, in circumstances.

Khan Abdul Haq Khan for Petitioner.

Mian Kamran Bin Latif along with Mulazim Hussain, S.‑I. for the State.

Date of hearing: 9th February, 2004.

2005 Y L R 672

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ANAYAT MASIH and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.3476‑B of 2004, decided on 5th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Emigration Ordinance (XVIII of 1979), Ss. 17/22‑‑‑Pre‑arrest bail, refusal of‑‑‑Delay of about six years in lodging F.I. R., was of no significance as complainant had been making effort to get money back from the accused through different sources‑‑‑Persons before whom disputed amount was paid by the complainant to accused, in their statement made under S.161, Cr. P. C. had specifically stated fact of receiving amount by accused from complainant for sending son of complainant abroad for employment‑‑­Accused were also very much required for the recovery of case property‑‑‑Accused had failed to show any, mala fides on the part of prosecution for their false involvement in the case‑‑‑Bail application stood dismissed, in circumstances.

Malik Muhammad Akram Awan for Petitioners.

Masood Ahmad for the Complainant.

Sh. Javaid Sarfraz for the State.

Date of hearing: 5th July, 2004.

2005 Y L R 673

[Lahore]

Before Rustam Ali Malik, J

SHAUKAT ALI and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No. 1136‑B of 2003, decided on 17th March, 2003.

Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.395/397/312‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused was not specifically named in F.I.R.‑‑‑During course of investigation, a gun .12 bore and a rifle 8 mm had allegedly been recovered, but submission of accused was that said gun and rifle had been planted upon him‑‑­Recovery allegedly had been effected and nothing else was to be recovered from accused and since no identification parade had been held to determine identity of accused, case against him was clearly one of further inquiry‑‑‑Accused, in circumstances was entitled to concession of bail‑‑‑Bail was granted to accused, in circumstances.

Zahid Hussain Khan for Petitioners.

M. Rafique for the State.

2005 Y L R 674

[Lahore]

Before Nasim Sabir Ch., J

MANZOOR HUSSAIN ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.1471‑B of 2004, decided on 1st June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 337‑A (ii)/337‑L (2)/452/148/149‑‑‑Bail, grant of ‑‑‑Co‑accused had already been released on pre‑arrest bail by High Court‑‑­Accused was attributed only a single hatchet below on the head of the complainant which did not fall within the prohibitory clause of S. 497 (1), Cr. P. C. ‑‑­F.I.R. was lodged with an unexplained delay of two days‑‑‑Hatchet recovered from the accused hot being stained with blood did not corroborate the prosecution version‑‑‑Case of accused needed further inquiry in circumstances and he was admitted to bail accordingly.

Mian Arshad Latif for Petitioner.

Ijaz Ahmad Khan for the State with Muhammad Aslam, A.S.‑I.

2005 Y L R 675

[Lahore]

Before Bashir A. Mujahid, J

Mst. SUGHRAN BIBI‑‑‑Petitioner

Versus

S.H.O. and others‑‑‑Respondents

Writ Petition No.293 of 2004, decided on 13th January, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.362 & 365‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Quashing of F.I.R.‑‑‑Alleged abductee/petitioner had categorically stated that she had not been abducted by any one and that she had left house of complainant due to fear of her life‑‑‑Alleged abductee who was a mature lady and star witness, in her statement in presence of all her relatives, had made clear that case registered about her abduction was false and misuse of authority by S.H.O. concerned‑‑‑Law Officer had very fairly and frankly conceded that registration of case against alleged abductee was clear mala fide on part of S. H. O. and that he had no objection if F.I. R. was ordered to be quashed‑‑‑High Court exercising its inherent and Constitutional power/jurisdiction quashed the F.I.R.

Sardar Muhammad Ramzan for Petitioner.

Malik Muhammad Akram Khan Awan for Respondents.

Najeeb Faisal Chaudhry, Addl. A.­G. on Court Call.

2005 Y L R 677

[Lahore]

Before Muhammad Farrukh Mahmud, J

NAEEM ASLAM and another ‑‑‑Appellants

Versus

THE STATE ‑‑‑Respondent

Cr. Appeals Nos.322 and 340 of 2002, decided on 28th October, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Reduction in sentence‑‑‑One of the prosecution witnesses though was brother of deceased, but nothing was on record to show as to why he should have involved the accused in a false case‑‑‑House of said witness was situated, in front of cricket ground where occurrence had taken place and fact of his having seen occurrence was believable‑‑‑Other two prosecution witnesses were not related to deceased and were residents of the locality‑‑‑Said witnesses had supported version of other witness‑ ‑‑Prosecution having been able to prove its case beyond doubt as against accused, counsel for accused had rightly not pressed appeal vis‑a‑vis conviction of accused‑‑‑Possibility that a sudden flare up erupted during play in cricket ground which led to the incident, could not be ruled out‑‑­Any benefit arising out of circumstances of case, should be given to accused‑‑‑Accused had not acted in a cruel manner‑‑­Conviction of accused for an offence under S. 302 (b), P. P. C: was set aside and they were convicted for an offence under S. 302 (c), P. P. C. ‑‑‑Sentence of accused was reduced to ten years' R.I. accordingly.

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

(b) Criminal trial‑‑‑

‑‑‑‑ Benefit of doubt‑‑‑Any benefit arising out of circumstances of case should be given to accused.

Nadeem Iqbal Chaudhry for Appellants.

Ghazanfar Ali Khan for the State.

Date of hearing: 28th October, 2003.

2005 Y L R 681

[Lahore]

Before Ch. Iftikhar Hussain, J

UMAR SHAHZAD alias SUNNY ‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.6345‑B of 2004, decided on 6th October, 2004.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/34/109‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Only effective shot attributed to accused was on left thigh of injured which was non‑vital part of his body‑‑‑Apparent contradiction existed between narration of F.I.R. regarding role of accused and Medico Legal Report of injured‑‑‑Case against accused, in circumstances called for further inquiry within purview of subsection (2) of S. 497, Cr. P. C. ‑‑‑Bail was granted to co‑accused while case of accused was on better footing than that of co‑accused for purpose of bail‑‑‑Rule of consistency was ‑to be applied in case of accused‑‑‑Accused, who was behind the bars for the last about four months, was previous non‑convict‑‑­Case of accused was fit for bail and he was not to be detained unnecessarily‑‑‑Accused was admitted to bail, in circumstances.

Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582 ref.

Miss Najma Rashid for Petitioner.

Muhammad Aslam Gondal for the State.

Ch. Fowad Hussain for the Complainant.

Manzoor Ahmad, A.S.‑I. with Police Record.

2005 Y L R 683

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AKRAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.6051‑B and Crl. Revision No.722 of 2004, decided on 16th September, 2004.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Allegation against accused was that he allegedly fired a shot on the person of deceased‑‑‑Many persons appeared during course of investigation in support of plea of alibi of accused to prove his innocence‑‑‑Police prepared discharge report, submitted same before Magistrate, but he did not agree with it ‑‑‑Challan was submitted before Additional Sessions Judge having placed accused in Column No.2 in which accused had been summoned‑‑‑Two types of accused persons were to be placed in Column No. 2 of challan; (i) who were not challaned and were found to be innocent; and (ii) proclaimed offenders shown by police in red ink‑‑‑State counsel had submitted that case of accused was of further inquiry‑‑‑Sufficient material was available in the shape of evidence of alibi on the police file due to which police came to the conclusion that accused was not present at the spot‑‑‑Even during investi­gation conducted by Inspector, accused was found innocent which was verified by D.S.P. who also came to the conclusion that accused was not present at the spot and his plea of alibi was accepted‑‑‑Accused had satisfactorily explained his abscondence to establish that in reality it did not amount to abscondence‑‑‑Case of accused required further inquiry‑‑‑Accused was released on bail, in circumstances.

1993 SCMR 2288; 1985 SCMR 195; PLD 1989 SC 585; 1996 SCMR 931; 1992 SCMR 1857; 1984 SCMR 429; 1984 SCMR 521; 1999 SCMR 1271; 1981 SCMR 795 ref.

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

‑‑‑‑S.173‑‑‑Placing accused in Column No. 2 of challan‑‑‑Two types of accused were placed in Column No.2 of challan; firstly those who were not challaned and were found to be innocent and; secondly proclaimed offenders shown by police with 'red ink'.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 ref.

Mrs. Erum Sajjad Gul for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.‑G, with Rashid Inspector with Record.

Malik Muhammad Akram for the Complainant.

Abdul Majid Chishti for the State.

2005 Y L R 686

[Lahore]

Before M. Bilal Khan, J

UNILEVER PAKISTAN LIMITED through Manager‑‑‑Petitioner

Versus

MUHAMMAD RAFIQUE and another‑‑‑Respondents

Crl. Miscellaneous No.5898‑BC of 2004, decided on 5th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497(5), 498‑‑Penal Code (XLV of 1860), S.489‑F [As per amendment made in Sched. II of Criminal Procedure Code, 1898 vide Criminal Law (Amendment) Ordinance (LXXXV of 2002)]‑‑‑Pre‑arrest bail, cancellation of‑‑‑Main ground which prevailed with Trial Court in extending extraordinary concession of pre‑arrest bail to accused was that offence under un-amended S. 489‑F, P. P. C. was bailable ‑‑‑Offence under S.489‑F, P. P. C. according to Criminal Law (Amendment) Ordinance 2002, was cognizable, not bailable, not compoundable and it entailed maximum imprisonment for three years or with fine or with both‑‑‑Even otherwise in view of nature of allegations and the fact that signatures on the cheques were not grant of pre‑arrest bail to accused, order granting bail to accused was recalled.

Muhammad Mukhtiar v. Sajjad Hussain and 2 others 2004 YLR 2227 ref.

Talib H. Rizvi and Taffazul H. Rizvi along with the Petitioner.

Muhammad Aslam Zia and G.M. Chaudhry for Respondent No. 1.

Sh. Asghar Ali for the State.

Muhammad Hussain, S.‑I. with Police File.

2005 Y L R 688

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUL KHALIQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.5226‑B of 2004, decided on 8th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Alleged abductee after her recovery had levelled allegations against accused of her abduction and Zina‑bil‑Jabr with her‑‑‑Contention of accused was that alleged abductee being sui juris, had entered into valid marriage with him on her own accord‑‑‑Accused had further claimed that he had brought a suit for restitution of conjugal rights against alleged abductee and she had brought suit for jactitation of marriage against him and both said suits were pending adjudication before competent Courts‑‑‑Earlier alleged abductee had also filed suit for recovery of dower against accused‑‑‑Question of validity or otherwise of Nikah between accused and alleged abductee was to be determined by Family Court‑‑‑Case against accused, in circumstances was open to further inquiry into guilt of accused and was covered under subsection (2) of S. 497, Cr. P. C. ‑‑‑Accused was behind the bars for the last about eight months and he was a previous non­-convict‑‑‑Trial of accused had not commenced‑‑‑Accused was entitled to bail, in circumstances.

Ch. Muhammad Nawaz Sulehria for Petitioner.

Miss Noureen Saleem for the State.

Muhammad Azhar Ch. for the Complainant.

Nisar Ahmad Ghumman, A.S.‑I. with Police Record.

2005 Y L R 690

[Lahore]

Before Ch. Iftikhar Hussain, J

IMTIAZ HUSSAIN ‑‑‑Petitioner

Versus

Mst. SHAMIM AKHTAR and another‑‑‑Respondents

Crl. Miscellaneous No.6005‑CB of 2003, decided on 17th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S.497(S)‑‑‑Penal Code (XLV of 1860), S.489‑F‑‑‑Cancellation of pre‑arrest bail‑‑­Accused admittedly had brought a suit for permanent injunction against the complainant wherein status quo order had been passed by the Civil Court‑‑‑Question of issuance of cheque or otherwise by the accused in favour of the complainant, thus, was sub judice before a competent Court which was yet to be decided‑‑‑Matter regarding guilt of accused required further inquiry‑‑‑Accused was a woman and nothing was to be recovered from her‑‑­Sessions Court had rightly exercised its discretion in favour of accused keeping in view the settled principles governing the grant or otherwise of such relief‑‑­Application for cancellation of bail granted to accused was dismissed in limine accordingly.

Ch. Babar Waheed for Petitioner.

2005 Y L R 692

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FALK SHER ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miscellaneous No.1833‑B of 2004, decided on 13th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Application was moved by brother of accused about his abduction by husband of complainant and a criminal case was also registered against complainant party in that respect‑‑‑Subsequently during investigation version of accused having been found false, case was cancelled‑‑‑Even otherwise, accused according to police record was aged about 55 years and age of complainant was 40 years‑‑‑Keeping in view age of complainant and accused and circumstances of case coupled with absence of medical evidence regarding marks of dragging the body of complainant, accused had succeeded in making out case of further inquiry‑ ‑Accused was released on bail, in circumstances.

Rana Khalid Mahmud for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Syed Hashmat Hussain Naqvi for the State.

Date of hearing: 13th July, 2004.

2005 Y L R 693

[Lahore]

Before Ijaz Ahmad Chaudhry, j

Mst. BASHIRAN BIBI‑ Petitioner

Versus

'HE STATE‑‑‑Respondent

Crl. Miscellaneous No.281‑B of 2004, decided on 28th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑­Bail, grant of‑‑‑Complainant's statement was based on hearsay and for the time being no other evidence was to connect accused with commission of crime‑‑­Accused was a woman and her case fell within Ist Proviso to S.497, Cr. P. C. ‑‑­Accused could riot be kept in jail for indefinite period on ground that alleged abductee had not been recovered and bail could not be withheld as a punishment‑‑­Offence under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 alleged against accused not falling within prohibitory clause of S. 497, Cr. P. C. she was released on bail.

Altaf Ibrahim Qureshi for Petitioner.

Haji Javed Iqbal for the State.

Date of hearing: 28th January, 2004.

2005 Y L R 695

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHID RASOOL and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Crl. A. No. 947 of 2003, heard on 22nd and 29th October, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/324/148/149‑‑‑Appreciation of evidence‑‑‑Out of eight accused persons, five had already been acquitted by Trial Court and appeal against their acquittal had been dismissed by High Court‑‑‑Out of all five eye‑witnesses, one who was complainant was real brother of one of deceased and uncle of other deceased‑‑­Other eye‑witness was bodyguard of both deceased‑‑‑Third eye‑witness had died before commencement of trial‑‑‑Fourth eye­witness was not produced by prosecution‑‑­Fifth one who was star witness who had invited deceased on tea and in whose house occurrence had taken place in his presence, was given up by prosecution‑‑‑Conflict existed between ocular account and medical evidence with regard to injuries on persons of deceased and weapon of offence‑‑‑In all three investigations accused were found to be innocent‑‑‑Out of eight accused persons five were acquitted and case of remaining accused was on the same footings and grounds on which said co‑accused were acquitted and which were also applicable to accused‑‑‑Enmity between both parties did exist‑‑‑Possibility of false implication of accused in case could not be ruled out due to said enmity‑‑‑Prosecution, in circumstances, having failed to prove its case against accused beyond a shadow of doubt accused were acquitted of charge granting them benefit of doubt and were ordered to be released.

Sikandar v The State PLD 1963 SC 17 ref.

(b) Criminal trial‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Opinion of police‑‑‑Opinion of police though was not binding on Court, but in peculiar facts and circumstances of case, it would become relevant.

Inayatullah Cheema for Appellants.

Mian Muhammad Aslant Arain for the Complainant.

Syed Faisal Raza Bokhari for the State.

Dates of hearing 22nd and 29th October, 2004.

2005 Y L R 702

[Lahore]

Before Sh. Hakim Ali, J

IMTIAZ ALI ‑‑‑Petitioner

Versus

DISTRICT POLICE OFFICER and 10 others‑‑‑Respondents

Writ Petition No. 3890 of 2003/BWP, decided on 6th January, 2004.

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

‑‑‑‑Ss.154 & 157‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Recording of second F.I.R. and quashing of first F.I.R.‑‑‑Petitioner had alleged that occurrence as contained in first F.I.R. was not reported by him to police, but S.H.O. concerned had himself entered that story in the F.I.R. only to grant benefit to accused with whom said S.H.O. was allegedly in collusion‑‑‑Petitioner had prayed that first F.I.R. be quashed and Second F.I.R. be directed to be entered in prescribed register‑‑‑Validity‑‑‑Truth and veracity of version recorded in F.I.R., would be thrashed out not only during investigation, but also in the Court of law‑‑‑After registration of an F.I.R., ordinarily no second F.I.R. could be registered, but there were instances where Court had directed registration of second F. I. R. ‑‑‑Aim, object and purpose of enacting S.154, Cr. P. C. and other sections thereafter was that by providing information law was set in motion and police would come into action‑‑­Truth or falsehood would come out after investigation of the case‑‑‑Whether the information was false, mala fide, with ulterior motive or was untrue had to be explored by police and if found tainted with falsehood, action under S.182, P. P. C. and under other penal section of P. P. C. could be taken by police against informant‑‑‑In the present case, if Court would come to the conclusion after grant of opportunity of hearing that first information in fact was reported by petitioner or second information was incorrect, the Court would be at liberty to initiate strict action against complainant as provided by law‑‑‑For fixing responsibility and to investigate both reports, it was proper, and necessary to direct police to record second F. I. R. and to investigate both versions as reported in earlier F.I.R. and in Second F.I.R.‑‑­Versions contained in both F. I.Rs. would be open to investigation by police and police would be at liberty to report its conclusions under S.173, Cr. P. C. to competent Court of law‑‑‑Constitutional petition was disposed of accordingly.

Wajid Ali Khan Durrani and others v. Government of Sind and others 2001 SCMR 1556; Muhammad Anwar Sub-­Inspector, Railway Police, Lahore v. Station House Officer, Railway Police, Kasur and 2 others PLD 1999 Lah.50; Mulazim Hussain, Inspector/S.H.O., Police Station Waris Khan, Rawalpindi and another v. Maulana Abdul Jalil PLD 1999 Lah.39; M. Anwar, Barrister‑at‑Law v. The Station House Officer, Civil Lines Police Station, Lahore and another PLD 1972 Lah.493; Muhammad Ishaque v. S.P., Jaffarabad and another PLJ. 1998 Quetta 1; Abbas Ali v. The State and another 2000 YLR 1591; Muhammad Ilyas v. S.H.O., P.S. Baddomalhi, District Narowal and 3 others 1997 MLD 1527; Malik Muhammad Anwar Khan v. The State and 4 others 1988 PCr.LJ 986; Dilbar Hussain and others v. Riasat Javed Bajwa, S.H.O., Ferozewala and others 1994 MLD 1736 and Kaura v. The State and others 1983 SCMR 436 ref.

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

‑‑‑‑S.154‑‑‑Registration of Second F.I.R.‑‑­No statutory bar existed in any section of Code of Criminal Procedure that a Second F. I. R. could not be registered by police‑‑‑In fact propriety demanded that there should be only one F.I.R. to move police and it had been developed from interpretation of wording of S.154, Cr. P. C. by Superior Courts and different course could only be adopted in exceptional circumstances by the order of the Court‑‑‑In multi facets versions, especially when first version having been reported was denied, second version could be taken into consideration through its registration to fix responsibility upon informant‑‑‑In cases of recovery of weapons of offence, articles of theft/ robbery/dacoity or any such necessity when police action was found necessary in a case, complaint would not be an efficacious or effective remedy.

Muhammad Yaqub Khan for Petitioner.

Ahmad Masnoor Chishti, A.A.‑G. assisted by Mian Muhammad Moshin Rasheed for Respondents Nos.1 and 2 and Ghulam Dastgir, S.‑I.

A.R. Tayyib for Respondents Nos.4 to 6, 9 and 10.

Date of hearing: 23rd December, 2003.

2005 Y L R 707

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

SHAFAQAT ALI alias ASHFAQ alias SHAKI and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Murder Reference No. 310, Criminal Appeals Nos. 544 and 625 of 1999, heard on 13th September, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Day time occurrence and delay in lodging F.I.R. had fully been explained‑‑‑Delay in lodging F.I.R. had been fully explained on record with all reasonableness, it would have no adverse effect qua the veracity of version of eye‑witnesses‑‑‑Accused had alleged that as name of complainant did not figure in Medico‑legal report of deceased, it had suggested that complainant was not present at the spot‑‑‑Said contention was based upon mere supposition as maternal nephew of deceased was recorded in the initial Medico‑legal report of deceased as the person who brought deceased to hospital, that would not necessarily mean that complainant was not accompanying his son at that time‑‑‑Nephew of deceased being close relative of deceased might have got mentioned his own name as the person who brought deceased to hospital and mentioning of his name in that context would not necessarily exclude possibility of complainant having accompanied the injured son to hospital‑‑‑Contention was repelled, in circumstances‑‑‑Complete harmony was found in the testimony of eye‑witnesses as regards all the material and major details of the incident like day, time, venue and manner of happening of incident‑‑‑No material or significant discrepancy or contradiction had been pointed out in their testimony and their presence at the spot had fully been proved‑‑‑Said prosecution witnesses who appeared to be reliable witnesses, had rightly been relied upon by Trial Court‑‑­Accused could not establish his plea of sudden grave and sudden provocation as he did not stick to one version at the trial‑‑­Said plea was rightly rejected by Trial Court‑‑‑Medical evidence had rightly been received as corroboration to ocular testimony‑‑‑When ocular testimony appeared to be confidence‑inspiring and reliable, factum of motive having not been believed by Trial Court or having not been proved, was hardly of an adverse effect to prosecution because motive or no motive or weak motive would hardly make any difference, when other reliable evidence could be available on record against accused‑‑‑Prosecution having fully brought home guilt to accused beyond any shadow of reasonable doubt, he was rightly convicted and sentenced‑‑‑As regards co-­accused who was not attributed any overt act qua deceased, and allegedly had merely raised Lalkara at the time of occurrence, and about whom Investigating Officer had opined that he was not present at the spot at relevant time as per his investigation; he was rightly acquitted by Trial Court exercising care and caution.

Noor Muhammad v. The State 1988 SCMR 1640; Liaqat Shah and others v. The State 1985 SCMR 1415; Tariq and others v. The State 1995 SCMR 168; Zia Ullah v. The State 1993 SCMR 155; Shana and 2 others v. The State 1999 SCMR 1507; Ballia and others v. The State 1985 SCMR 854 and Muhammad Nasrullah v. State 2003 SCMR 189 ref.

Raja Muhammad Anwar and Muhammad Akram Javed for Appellant (in Criminal Appeal No.544 of 1999).

Fazal Hussain Jafri for the State.

Sh. Najam‑ul‑Hassan and Shafqat Mehmood Chowhan for the Complainant/ Applicant (in Criminal Appeal No.625 of 1999).

Date of hearing: 13th September, 2004.

2005 Y L R 717

[Lahore]

Before Maulvi Anwarul Haq and Sardar Muhammad Aslam, JJ

ASIF ALI ZARDARI Appellant

Versus

THE STATE through NAB, Islamabad‑‑‑Respondent

Criminal Appeal No. 42‑E of 2002, decided on 9th September, 2004.

(a) Ehtesab Act (IX of 1997)‑‑‑

‑‑‑‑S. 4‑‑‑Appreciation of evidence‑‑­Amount, subject matter of this case, had in fact already been paid and recovered by the National Accountability Bureau under a settlement approved by the Accountability Court on the application of the Prosecutor General, NAB itself, but the Trial Court was not informed about the same‑‑‑At no stage prior to the proceedings commenced by the prosecution in the present Reference, name of the accused was even remotely mentioned‑‑‑Investigating Officer had admittedly not joined the accused in investigation although be was fully aware that the accused was under arrest in some other cases‑‑‑Record and even the Reference itself did not show the basis on which the same had been initiated by the Chief Ehtesab Commissioner‑‑‑Entire Reference revolved around the statement of the approver which according to the Deputy Prosecutor General was the only piece of evidence connecting the accused with the alleged offence after reading the same in conjunction with the other evidence on record‑‑‑Statement of the approver recorded by the Magistrate, whether it was a confession or a statement under S. 164; Cr. P. C. read with S. 18(2) of the Ehtesab Act, 1997, was inadmissible in evidence as none of the conditions mentioned in the relevant laws to make it admissible existed‑‑‑Testimony of the prosecution witness who had named the accused for the first time in the Court was itself tainted and did not inspire any confidence‑‑‑No evidence was available on record to indicate that the said approver had ever met the accused on the relevant dates‑‑­Accused was acquitted in circumstances.

State v. Syed Mazhar Alam and others PLD 2003 Kar. 123; Ibrahim Bhak and another v. The Crown PLD 1955 FC 113; Muhammad Bakhsh v. The State PLD 1956 SC 420 and Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others 1994 SCMR 932 ref.

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

‑‑‑‑Ss. 164 & 337‑‑‑Approver's statement, recording of‑‑‑Practice and procedure‑‑­Where no pardon has been tendered when the approver makes his statement under S.164, Cr.P.C. the statement can only be recorded as a confession subject to the restrictions of that section; but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness, the former being without oath and the latter being on oath.

Ibrahim Bhak and another v. The Crown PLD 1955 FC 113 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 129. Illus. (b) & 16‑‑‑Statement of accomplice, appreciation of‑‑‑While it is not illegal to act upon uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused.

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

Dr. Z. Babar Awan, Raja Muhammad Anwar and Raja Shafaqat Abbasi for Appellant.

Abdul Basir Qureshi, D.P.G. for Respondent.

Dates of hearing: 13th, 14th, 19th, 21st, 26th, 29th January, 9th, 10th, 11th, 17th, 23rd, 25th February, 3rd, 4th, 8th, 10th, 15th, 16th, 25th, 29th March and 9th September, 2004.

2005 Y L R 737

[Lahore]

Before Ch. Ijaz Ahmad, J

RAMIZA TAHIR‑‑‑Petitioner

Versus

UNIVERSITY OF PUNJAB through Vice‑Chairman and 2 others‑‑‑Respondents

Writ Petition No. 9681 of 2004, decided on 10th December, 2004.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Special regulation excludes the general regulation.

Zia‑ur‑Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473 rel.

(b) Educational institution‑‑

‑‑‑‑ Gold medal, entitlement of‑‑‑Petitioner was student of B.Sc. (Honours) and she had passed all the semesters with distinction‑‑­Gold medal was not awarded to the petitioner for the reason that in 2nd semester, she could not appear in two papers on the ground of her illness and passed the same in special examination arranged by University Authorities‑‑‑Plea raised by the petitioner was that as she had secured highest marks in all semesters, therefore, it was her right to be awarded with gold medal‑‑‑Validity‑‑‑Specific condition prescribed by special regulation was that the petitioner must have passed alt examinations of the concerned course in first attempt‑‑‑Petitioner failed to fulfil the specific condition laid down in the special regulation of the University‑‑‑For the purpose of maintaining Constitutional petition, it was the duty and obligation of the petitioner to show that the action of the authorities was in derogation of the rules and regulations‑‑‑Petitioner failed to bring her case within the parameters of the regulations of University, therefore, Constitutional petition was not maintainable‑‑‑Petition was dismissed in circumstances, Constitution of Pakistan (1973), Art. 199.

Ali Mir's case 1984 SCMR 433 rel.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑For the purpose of maintaining Constitutional petition, it was the duty and obligation of the petitioner to show that the action of the authorities was in derogation of the rules and regulations.

Ali Mir's case 1984 SCMR 433 rel.

Taki Ahmad Khan for Petitioner.

Miss Shazia Khalil for the University.

2005 Y L R 742

Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

REHMAT ALI ‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 801 of 2004, decided on 3rd June, 2004.

(a) Criminal trial‑‑‑

‑‑‑‑ General rule and principles‑‑‑Supreme object with the Court always is to administer even handed justice to parties in a criminal case without unreasonably leaning in favour of a party, nor depriving the other party of its due right to offer defence‑‑‑Court must keep the scale of justice even to both sides and the conduct of proceedings must visibly be reflective of its clean and unbiased mind in every sense.

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

‑‑‑‑S. 540‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 36(2) & 6/9‑‑­Summoning of Chemical Examiner‑‑‑Trial Court had dismissed the application of the accused for summoning the Chemical Examiner as Court witness to elucidate his report, with the observation that he could rebut the report by adducing some other independent evidence‑‑‑Such view of the Trial Court was not endorsable as the same could ultimately be prejudicial to the defence of the accused, because the Expert alone could answer any query qua his report after entering into the witness box‑‑­Law had also empowered the Court to summon the Expert if considered necessary, in the interest of justice‑‑‑Accused had been continuously challenging the completeness and accuracy of the report of the Expert‑‑­Examination of Chemical Examiner in Court was not likely to cause any prejudice to the prosecution as it would have a chance to cross‑examine him‑‑‑Evidence of the Chemical Examiner being essential for just decision of the case, the impugned order was set aside with the direction to Trial Court to summon the Chemical Examiner and examine him as Court witness.

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

‑‑‑‑S. 36(2)‑‑‑Report of Government Analyst‑‑‑Report of the Expert admitted in evidence shall be conclusive unless rebutted‑‑‑Best and relevant person for rebuttal can be the Expert himself who had authored or compiled the report and none else.

Muhammad Nawaz Bajwa for Appellant.

Akhtar Ali Kurehi for Respondent No. 1.

Date of hearing: 3rd June, 2004.

2005 Y L R 747

[Lahore]

Before Mian Muhammad Akram Baitu and Nasim Sabir Ch., JJ

AHMED YAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 405 and Murder Reference No.578 of 2000, heard on 31st March, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑­Principles‑‑‑Related witness not an interested witness‑‑‑Relationship of prosecution witnesses inter se alone would not make them interested witnesses and their deposition cannot be brushed aside on this ground if they have no direct enmity with the accused.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑­Occurrence had taken place in broad day light‑‑‑Contradictions and discrepancies pointed out in ocular testimony were not of much importance‑‑‑Eye‑witness account was trustworthy, credible and confidence inspiriting‑‑‑Medical evidence had sufficiently supported the version of eye­witnesses‑‑‑Defence plea of false involvement of accused in the case due to enmity was not acceptable as phenomenon of substitution was rare in the Country,‑‑­Conviction of accused was upheld in circumstances‑‑‑However, accused was a little more than sixteen years of age at the time of occurrence and the motive as set up in the F.I.R. was not proved by the prosecution‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances.

Atta Muhammad and others v. The State 1995 SCMR 599 and Javed Ahmed v. The State PLD 1996 SC 138 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302 (b)‑‑‑Appreciation of evidence‑‑­Motive, proof of‑‑‑Principles‑‑‑Although it is not necessary to set up any motive, yet once it is set up then it becomes the duty of the prosecution to prove the same, otherwise it will adversely affect the prosecution case.

Mian Arshad Latif for Appellant.

Masood Sabir for Respondent.

Sardar Tariq Sher Khan and Sardar Muhammad Sarfraz Dogar for the Complainant.

Date of hearing: 31st March, 2004.

2005 Y L R 756

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASHRAF and 3 others‑‑‑Petitioners

Versus

MUHAMMAD LATIF‑‑‑Respondent

Civil Revision No. 2087 of 2004, decided on 13th December, 2004.

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

‑‑‑‑O.II, R. 2, O. VI, R.17, O. VII, R.11 & O.XXIII, R.1‑‑‑Specific Relief Act (I of 1877), Ss.54 & 55‑‑‑Rejection of plaint‑‑­Principle‑‑‑Plaintiff filed suit for permanent and mandatory injunction‑‑‑Defendants contended that earlier suit filed by the plaintiff on the same cause of action was withdrawn and the present suit negated the plea raised in the earlier suit‑‑‑Trial Court rejected the plaint under O. VII, R.11 C. P. C. ‑‑‑ Appellate Court accepted appeal of plaintiff and order passed by Trial Court 'was set aside‑‑‑Validity‑‑-As plaintiff had withdrawn his suit with permission to file fresh one, therefore, Appellate Court was justified to set aside the order of Trial Court‑‑‑If prayers of both the suits were put in juxta position, then Trial Court was not justified to accept application under O. VII, R.11 C. P. C., filed by defendants‑‑‑Cause of action accrued to plaintiff prima facie was recurring cause of action, therefore, provisions of O.II, R.2, O. VI, R.17 and O. XXIII, R.1 C. P. C. were not attracted‑‑­Court had to examine contents of plaint at the time of deciding application under O. VII, R.11 C. P. C. filed by defendants‑‑‑At the time of rejection of plaint, averments made in written statement and documents appended were not warranted‑‑‑Issues had not been framed regarding disputed facts and the plaintiff was not given any opportunity to substantiate his case‑‑‑Such rejection of plaint by Trial Court was tantamount to condemning the plaintiff in unlawful manner‑‑‑No infirmity and illegality was found in the judgment of Appellate Court, therefore, the same was upheld.

Muhammad Riaz v. Karachi Metropolitan Corporation 2000 CLC 572; Feroz Begum and 8 others v. Muhammad Khan 2001 YLR 42; Shahid Hussain Qureshi v. Manager, Small Business 2001 YLR 454; Fida Hussain v. Province of Punjab and others 2001 CLC 239; Four Square Enterprise, v. Karachi Building Control Authority 2001 MLD 1209; Mst. Kundan Mai v. Muhammad Aslam and others 2002 YLR 2531; Muhammad Roshan v. Sindh Private Limited 2004 YLR 59; Modern Terminal Operator v. City District Government 2004 YLR 1161; Pervaiz Ahmad Khan v. Mst Ashraf Begum and others 2004 CLC 572; Muhammad Akhtar and others v. Abdul Hadi and others 1981 SCMR 878; Abdur Rehman v. Sherzaman and others 2004 CLC 1340; M.D. Bazlur Rahman v. Syed Ali Pramanik and others PLD 1967 Dacca 809; Mst. Nazima Begum, v. Mst. Hussina Begum and others 1991 SCMR 177;. Jeewan v. Federation of Pakistan through Secretary 1994 SCMR 826; Mehdi. v. Muhammad Ramzan and others 1994 MLD 686; Fazal‑ur‑Rehman, v. Younis Ali Gillani and others 1999 MLD 1565; Abdullah and others v. Bashiran Bibi and others PLD 1981 Lah.336; Ghulam Nabi and others v. Muhammad Yaqub and others PLD 1983 SC 344; Messrs Hindustan Sanitary and Drainages Workers v. Shabbir PLD 1992 Kar. 21 and Mrs. Naz Shaukat Khan v. Mst. Yasmeen Minhas and others 1992 CLC 2540 distinguished.

Alam Ali v. District Judge, Multan PLD 1983 Lah.278 and Mushtaq Ahmad v. University of Punjab through Vice­-Chancellor 2001 CLC 1631 rel.

(b) Administration of justice‑‑‑

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

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

Malik Abdul Wahid for Petitioners.

Ch. Javaid Akhtar, Jajja for Respondent.

2005 Y L R 760

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

MUHAMMAD TARIQ BUTT and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1374 and 429 of 2003, heard on 28th April, 2004.

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

‑‑‑‑S. 9‑C‑‑‑Appreciation of evidence‑‑­Possession and recovery of big quantity of contraband material of 165 bags each weighing 40 kilgorams from the custody of the accused, had been proved by the prosecution witnesses who had no malice or enmity against them‑‑‑Prosecution evidence was consistent‑‑‑Minor discrepancies were bound to happen by lapse of time which could neither vitiate the trial nor make the recovery from the accused doubtful‑‑­Chemical Examiner had certified the material recovered from the accused as narcotics who had no reason for their false implication‑‑‑Section 103, Cr. P. C. was not applicable to the case, even otherwise persons involved in narcotics business being equipped gangs, nobody would dare to depose against them at the cost of their enmity‑‑‑Accused were found involved in the illegal business of transporting narcotics under the garb of local herbs and the plea taken by them was an afterthought which was not spelled out of the evidence on record‑‑‑Conviction of accused was consequently maintained‑‑‑However, the narcotic substance recovered from the accused being "Poast ", their sentences of death were reduced to imprisonment for life and ten years' R.I. with fine‑‑‑Appeals were disposed of accordingly.

Nasrullah v. The State PLD 2001 Pesh.152; Jamal Khan v. The State 2003 PCr.LJ 1139; Muhammad Nawaz v. The State PLD 1999 Lah.18; Johar Ali and another v. The State 2003 PCr.LJ 680; Maulvi Ghulam Rasool v. Administrator Auqaf, Sind and another 1976 SCMR 73; Sikandar and 2 others v. The State PLD 1978 SC 185; Gul Nawaz v. The State 1998 PCr.LJ 1730; Feroze Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCMR 1475 ref.

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

‑‑‑‑S. 9‑C‑‑‑Appreciation of evidence‑‑‑State functionaries‑‑‑State functionaries having no enmity or malice to falsely depose against the accused are as reliable as private witnesses.

Maulvi Ghulam Rasool v. Administrator Auqaf, Sind and another 1976 SCMR 73; Sikandar and 2 others v. The State PLD 1978 SCMR 185; Gul Nawaz v. The State 1998 PCr.LJ 173;): Feroze Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 199 SCMR 1475 ref.

Muhammad Irfan Malik for Appellants.

Ms. Iram Sajjad Gull for Respondent.

Dates of hearing: 27th and 28th April, 2004.

2005 Y L R 767

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

SHABBIR HUSSAIN alias THAH and another‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No. 158 and Murder Reference No. 147 of 2000, heard on 17th June, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302(b)/34‑‑‑Appreciation of evidence‑‑­Where an interested and inimical witness is found false with regard to implication of one accused whose participation he had deposed on oath, then it is essential to seek independent corroboration to his testimony regarding the other accused.

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

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302(b)/34‑‑‑Appreciation of evidence‑‑­Parties were inimically disposed towards each other prior to the occurrence‑‑‑‑Eye witnesses were interested witnesses who had not given the correct account of the occurrence, as either they had not seen the same with their own eyes or they had' deposed against the accused falsely on account of enmity with them‑‑‑Medical evidence had contradicted the ocular testimony‑‑‑Two hours significant delay in reporting the matter to the police in absence of any reasonable explanation was fatal to prosecution and F. I. R. having been recoded after preliminary inquiries at the spot had lost its evidentiary value‑‑‑Ocular testimony being not trust worthy, the motive could not be used to corroborate the same‑‑‑No crime empty having been secured from the spot, recoveries of the fire arms from the accused were inconsequential‑‑­Abscondence of accused was not proved on record by any definite evidence‑‑‑Accused were acquitted on benefit of doubt in circumstances.

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

Ch. Naseer Ahmad Sandhu for Appellants.

Salman Safdar for the State.

Date of hearing: 17th June, 2004.

2005 Y L R 774

[Lahore]

Before Muhammad Muzammal Khan, J

PAKISTAN INSTITUTE OF HUMAN RIGHTS through Muhammad Iftikhar Hussain Rajput‑‑‑Petitioner

Versus

THE STATE through Chairman, Chief Minister's Task Force and others‑‑‑Respondents

W.P. 18869 of 2004 decided on 3rd December, 2004.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Representative capacity‑‑‑Scope‑‑‑Invocation of Constitutional jurisdiction of High Court in representative capacity is not permissible in view of language of Art. 199 of the Constitution, which confers the right only to an aggrieved person.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Pro bono publico, litigation‑‑‑ Grievance of petitioner was that work of two eminent artists was not selected to be exhibited in South Asian Arts Show Exhibition to be held by Government of Punjab‑‑‑Petition was filed as pro bono publico‑‑‑Contention of the authorities was that the petition was not maintainable‑‑­Validity ‑‑‑Petition under Art.199 of the Constitution, is not maintainable by a person not aggrieved or in pro bono publico under the cover of public interest without disclosing how by non participation of any artist, the public at large would suffer or the welfare of the people would be at risk‑‑­Authorities had adopted transparent formula/criteria for selection of participants in the exhibition, whereunder three renowned personalities were nominated to provide their respective lists of artists out of which seven who figured in each list were to be picked up‑‑‑Artists complained to have been excluded were not named in any of the three lists, hence their exclusion could not be dubbed as discriminatory‑‑‑Petitioner failed to demonstrate violation by the authorities, of any law, any provision of the Constitution or his any vested right‑‑‑Petition in pro bono publico without showing any personal injury was not competent‑‑­Petition was dismissed in circumstances.

Parvaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595; PLD 1965 SC 68 and Sri Manmatha Nath Kuri v. Molvi Muhammad Mukhlees ur Rehman and others PLD 1969 SC 565 distinguished.

Democratic Workers Union, CBA v. State Bank of Pakistan and others 2002 PLC (C.S.) 614 and Malik Asad and others v. Federation of Pakistan through Secretary Law Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 rel.

M.J.I. Jafaree for Petitioner.

Amer Rehman with Fawad Rabbani, Deputy Secretary Chief Minister's Secretariat for Respondents.

2005 Y L R 778

[Lahore]

Before M. Bilal Khan, J

HAIDER ALI‑ ‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl.. Misc. No.4648‑B of 2004, decided on 27th July, 2004.

(a) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Opinion of police‑‑‑Binding force of‑‑‑Opinion of Investigating Officer or the police was not binding on the Court, but said opinion being adverse to the prosecution, would create doubt about the veracity of its story, moreso if said opinion had been recorded as a result of investigation, which could not be termed as absurd, arbitrary or fanciful.

Muhammad Afzal v. Nazir Ahmad and others 1984 SCMR 429 and Ameer Ali and another v. The State 1984 SCMR 521 ref.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Enmity between parties was borne out from F.I.R. itself‑‑‑Accused had pleaded that he absconded after occurrence as he feared a serious backlash from complainant party and he had been hiding himself to save his life‑‑‑Said plea of accused could not be lightly brushed aside keeping in view clash which took place after surrender of accused in the Court room in which he suffered serious gunshot injuries---Abscondence of accused, in circumstances, could not be termed as unexplained so as to disentitle him to the normal rights to which an accused was otherwise entitled‑‑‑Accused in facts and circumstances of case had made out a case for further inquiry within meaning of subsection (2) of S.497, Cr. P. C. ‑‑‑Accused was admitted to bail accordingly.

Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857; Zafar Iqbal v. The State 2002 MLD 454; Manzoor and 4 others v. The State PLD 1972 SC 81; Qurban Ali v. Muhammad Sabir and 2 others 2002 PCr.LJ 394; Arbab Ali v. Khamiso and others 1985 SCMR 195; Asmatullah Khan v. Bazi Khan and another PLD 1988 SC 621; Najeeb Gul v. Khalid Khan and another 1989 SCMR 899; Haji Muhammad Hanif v. The State PLD 1992 Lah.314; Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Muhammad Sadiq v. Sadiq PLD 1985 SC 182 ref.

Malik Amjad Pervaiz for Petitioner.

Mian Sikandar Hayat for the Complainant.

Malik Asghar Ali Awan for the State.

Muhammad Attique, S.‑I. P.S. Qadirpur, District Jhang with Police File.

2005 Y L R 783

[Lahore]

Before Muhammad Akhtar Shabbir, J

YEZDIAR HOMI KAIKOBAD and another‑‑‑Petitioners

Versus

FEROZSONS LTD. through Chief Executive and 3 others‑‑‑Respondents

F.A.O. No. 155 of 2003, heard 26th November, 2004.

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

‑‑‑‑S.17‑‑‑Arbitration Act. (X of 1940), S.34‑‑‑Ejectment proceedings‑‑‑Referring matter to arbitrator‑‑‑Stay of proceedings‑‑­Implementation of arbitration clause‑‑­Seeking adjournment, a step in proceedings‑‑‑Tenants in response to the notice issued by Rent Controller, appeared through counsel who sought adjournments for filing of written reply‑‑‑On the last adjourned date of hearing, the tenants filed application for referring the matter to arbitrator‑‑‑Rent Controller allowed the application, stayed the ejectment proceedings and referred the matter to arbitrator‑‑Plea raised by the landlord was that as the tenants had sought adjournments, therefore, the provisions of S.34 of Arbitration Act, 1940, were not applicable‑‑‑Validity‑‑‑Any party to proceedings might at any time before filing of written statement or taking any step in the proceedings could apply to the Court for referring the matter to arbitration‑‑­Applicant must, without any ado and before submitting to the jurisdiction of Court, inform the Court in an unequivocal terms that he was going to insist upon implementation of arbitration clause‑‑­Where a party defendant appeared in, the Court and obtained adjournments for filing of written statement, such party would be deemed to have waived his right and proceedings could not be stayed‑‑‑Tenants had not applied to the Court at the first date of hearing of the ejectment petition and failed to take benefit of S.34 of Arbitration Act, 1940, while seeking adjournment of the case‑‑‑Order passed by Rent Controller was set aside and ejectment petition was deemed to be pending before Rent Controller for decision on merits‑‑‑Appeal was allowed accordingly.

Muhammad Ilyas Khokhar v. Ihsan Ilahi Mughal 2000 CLC 206; Sahan Kumar Bhattacherjee v. Sunil Kumar Bhattacherjee and others AIR 1948 Cal. 59; New Bengal Shipping Company v. Eric Lancaster Stump PLD 1952 Dacca 22; Muhammad Idris and others v. Tobarak Hossain PLD 1965 Dacca 260; Mubarik Cotton Factory v. Messrs General Agencies, Multan PLD 1980 BJ 1; Akbar Cotton Mills Ltd. v: Messrs VES/Ojuanojo Obtedinenijie Tech/Amesh Export and another 1984 CLC 1605; Messrs ASLO Marines Ltd. v. M.T. Magada and another PLD 1985 Kar. 745; Eckhardt and Company Marine GMBH, West Germany and another v. Muhammad Hanif PLD 1986 Kar. 138; Uzin Export Import Enterprises v. Iftikhar and Company Ltd. PLD 1986 Kar. 1 and Messrs Alazizia Industries Uch Sharif Road, Ahmadpur East v. Messrs Alfalah Insurance Company Ltd. and 4 others PLD 1993 Lah. 306 rel.

Qazi Zahid Hussain for Petitioners.

Bashir Ahmed Ansari for Respondent No.3.

Date of hearing: 26th November 2004.

2005 Y L R 787

[Lahore]

Before M. Bilal Khan, J

Ch. MUHAMMAD ILYAS WARRAICH ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Cr. Misc. No. 9358‑B of 2004,decided on 21st December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Pre‑arrest bail, refusal of‑‑‑Accused had got interim relief from the Trial Court about five months before on two occasions, but on both occasions he failed to appear before Court for confirmation of his bail‑‑‑Such conduct of accused demonstrated that he had been playing acrobatics with the Court and his such conduct amounted to abuse and misuse of concession of bail‑‑‑Despite five months had passed, accused had been so far successfully able to elude process of law and according to Investigating Officer, he had not joined investigation‑‑‑Contention of accused that he had got nothing to do with his co‑accused, was belied by the fact that he and his co‑accused had been making joint application for bail before arrest and had also filed joint Constitutional petition seeking quashing of F.I.R.‑‑‑Accused had been taking inconsistent stands before Trial Court and in High Court‑‑‑Accused had not been able to point out any malice or ill‑will on the part of complainant or police so as to implicate him falsely.

Muhammad Asim alias Bhola v. The State 2004 MLD 804; Shafqat and 4 others v. The State 2004 MLD 1415; Malik Muhammad Ashraf v. The State 2004 PCr.LJ 277; Muhammad Saleem v. The State 2004 PCr.LJ 1654; Muhammad Azam v. The State 1996 SCMR 71; Muhammad Arshad and another v. The State and another 1996 SCMR 74 and Muhammad Irshad and others v. Amanat Ali and another 2004 SCMR 1375 ref.

Dr. Sohail Akhtar for Petitioner.

Muhammad Waseem for the complainant.

Ms. Samina Shahzadi for the State with Ghulam Hussain, S.‑I.

2005 Y L R 791

[Lahore]

Before Sardar Muhammad Aslam, J

LIAQAT ALI and 2 others‑‑‑Petitioners

Versus

IFTIKHAR AHMED and 4 others‑‑‑Respondents

Criminal Revision No. 128 of 2003, heard on 3rd December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.200, 202, 435 & 439‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Dismissal of private complaint‑‑‑Complainant filed complaint in the Court of Special Judge, Anti‑Terrorist Activities against petitioners with the allegation that petitioner had murdered brother of complainant‑‑‑Special Judicial Magistrate to whom enquiry of said private complaint was entrusted, after recording and examining evidence, recommended dismissal of complaint, but Trial Court disagreeing with inquiry report of Judicial Magistrate issued bailable warrants against petitioners to face trial‑‑‑Such order of Trial Court had been assailed in criminal revision‑‑‑Trial Court had not taken into consideration report of Judicial Magistrate for the reason that it was not binding on the Court‑‑‑Validity‑‑‑Petitioners were being summoned in a murder case which involved agony of trial, consummation of time and money besides hardship‑‑‑Case of petitioners required to be looked into even tentatively by evaluating evidence and examining probabilities‑‑‑Report of Magistrate could not be brushed aside lightly simply saying that it was not binding‑‑‑Impugned order of Trial Court was set aside and case was remanded back to Trial Court to pass a fresh speaking order after hearing parties.

Malik Rab Nawaz Noon for Petitioners.

Malik Waheed Anjum Respondents.

Mukhtar Ahmed Gondal for the State.

Date of hearing: 3rd December, 2003.

2005 Y L R 794

[Lahore]

Before Iftikhar Hussain Chaudhry, J

KHALID MAHMOOD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1001‑M of 2004, decided on 6th July, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324, 331, 336 & 452‑‑‑Payment of Arsh' to victim‑‑‑Release of accused to make arrangement for payment of amount of Arsh‑‑‑Accused allegedly had caused permanent disfigurement of face of female victim and permanent disfigurement of body of male victim‑‑‑Accused who was awarded various sentences was also directed to payArsh' amount to victims‑‑‑Female victim tendered 'Afu' to accused and waived her right to get 'Arsh' amount from accused, but accused was yet to pay Arsh amounting to Rs.3, 60, 000 to male victim‑‑‑Petition filed by accused under S. 331, P. P. C. for his release to make arrangement for payment of said amount, to victim was accepted and accused was ordered to be released from custody for a period of three years‑‑‑During that period of three years accused would pay amount of Arsh to victim in instalments‑‑‑In case accused failed to compensate victim fully during said period of three years, he would be taken into custody and committed to prison till he would pay amount of Arsh to victim.

Ch. Sadaqat Ali for Petitioner.

M. Saleem Shad for the State.

Date of hearing: 6th July, 2004.

2005 Y L R 796

[Lahore]

Before Muhammad Akram Baitu, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

MUHAMMAD ASIM, MAGISTRATE and others‑‑‑Respondents

Writ Petition No. 3971 of 2003, decided on 17th February, 2004.

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

‑‑‑‑S. 16‑‑‑Criminal Procedure Code (V of 1898), Ss. 161 & 164‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of order of Magistrate‑‑‑Alleged abductee earlier had contracted her marriage with her real cousin and thereafter accused/respondent allegedly abducted her and contracted marriage with her in back date with connivance of Nikahkhawan‑‑‑Lady, after her recovery got recorded her statement under S. 161, Cr. P. C. and she was produced before the Area Magistrate for recording her statement under S. 164, Cr. P. C.‑‑‑Magistrate, without observing requirements of law, firstly recorded statement of abductee in favour of accused and then observed that there was no need for recording statement of alleged abductee under S. 164, Cr. P. C. handed over the custody of abductee to the accused‑‑‑Act of Magistrate was illegal, unwarranted and liable to be quashed as Magistrate had acted beyond his jurisdiction‑‑‑Matter before Magistrate was only for the purpose of recording statement of abductee under S.164, Cr. P. C. and it was not the case for custody of abductee before him‑‑‑Impugned order passed by Area Magistrate called for interference by High Court and same was not maintainable in the eye of law‑‑‑Allowing Constitutional petition, impugned order was set aside/quashed.

Ch. Saghir Ahmed for Petitioner.

Ahsan Raza Hashmi for Respondent No. 2.

Malik Abdul Ghafar for the State and Gulzar Ahmad, A.S. ‑I. with Record.

Date of hearing: 17th February, 2004.

2005 Y L R 799

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM alias MANN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Crl. A. No. 514 and Crl. Rev. No.362 of 2003, heard on 4th November, 2004.

Penal Code (XLV of 1860)‑‑‑

---‑Ss.302/364/148/149‑‑‑Appreciation of evidence‑‑‑Case was of two versions, one put forward by prosecution and other by accused and version furnished by one of accused persons seemed to be more plausible and convincing‑‑‑Occurrence took place in the house of said accused who pleaded that occurrence had taken place under grave and sudden provocation‑‑`Danda' which was commonly used by household wives for grinding chilli etc. was used in the occurrence‑‑‑Nine injuries existed on the person of deceased which had suggested that act was done by the accused under heat of passion and same was the finding of the Trial Court‑‑‑Trial Court had disbelieved last seen evidence and the fact of taking away deceased from his house‑‑‑Delay was of two days in lodging F. I. R., though both parties lived in the same vicinity‑‑‑Accused, in circumstances was convicted, but as occurrence admittedly had taken place under grave and sudden provocation, his sentence was converted from S.302(b), P. P. C. to S. 302(c), P. P. C. and his sentence was reduced from life imprisonment to ten years' R.I. and benefit of S.382-B, Cr.P.C. was also extended to him‑‑‑Conviction and sentence awarded to co‑accused by Trial Court, was set aside and he was acquitted from the case and was released.

Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Naseeruddin Khan Nayyar for Appellants.

Syed Zahid Hussain Bokhari for Complainant.

Muhammad Asif for the State.

Date of hearing: 4th November, 2004.

2005 Y L R 803

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Hakim Ali, JJ

QADEER MOHY D‑DIN---Petitioner

Versus

THE STATE---Respondent

Cr. Misc. No. 1167‑B of 2003/BWP, decided on 18‑2‑2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/311/331/392/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Compromise‑‑­Bail, grant of‑‑‑Before execution of sentence finally awarded to accused, compromise was arrived at between accused acid legal heirs of deceased‑‑‑Trial Court, after accepting said compromise, acquitted accused from offence under S. 302, P. P. C., but convicted him under S. 311, P. P. C. and sentenced him to undergo rive years' R.I. with payment of Diyat amount‑‑‑Conviction and sentence passed against accused under S. 392, P. P. C. was maintained‑‑‑Accused had sought his release on bail in accordance with S. 331, P. P. C. on ground that he had served out his sentence and was suffering in jail because of non‑payment of Diyat‑‑‑Subsection (2) of S.331, P. P. C. enabled High Court to release accused on bail for the purpose of payment of Diyat amount‑‑‑Accused was admitted to bail with direction to pay amount of Diyat in lump sum or in instalments within specified period failing which he would be taken into custody and would be kept in jail till payment of Diyat amount.

Ch. Abdul Ghaffar Bhutao for Petitioner.

Mirza Muhammad Nadeem Asif for the State.

2005 Y L R 805

[Lahore]

Before Khawaja Muhammad Sharif, J

RIAZ UL HAQ and another‑‑‑Petitioners

Versus

MUHAMMAD NAVEED and another‑‑‑Respondents

Criminal Misc. Petition No. 1356‑M of 2004, decided on 19th August, 2004.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑Ss.167, 439‑A & 561‑A‑‑‑Penal Code (XLV of 1860), S. 392‑‑‑ Extension of physical remand of accused by Sessions Court in Revision Petition‑‑‑Validity‑‑­Complainant was an aggrieved person in the case as per F.I. R. a huge sum was snatched from him on the show and threat of fire‑arm and the case was registered under S. 392, P. P. C. ‑‑‑Complainant, therefore, had got the locus standi to file Revision Petition‑‑‑Order passed by the Magistrate refusing to grant further physical remand of the accused in the case registered under S. 392, P. P. C. was a judicial function in view of subsections (3) & (4) of S.167, Cr. P. C. ‑‑‑F.I. R. was registered in the case after eleven days of the occurrence‑‑‑Accused had remained on physical remand for seven days but no progress whatsoever had taken place‑‑­Magistrate, thus, was right in not granting further physical remand of the accused in circumstances‑‑‑Impugned order passed by Sessions Court directing further physical remand of the accused was set aside accordingly.

PLJ 2000 Karachi 10; 2000 PCr.LJ 520; 1989 PCr.LJ 2241; 1997 SCMR 304; 2001 MLD 1578; 1996 PCr.LJ 827; 2001 PCr. LJ 160; Iqbal Hussain v. State 1995 PCr. LJ 1835, Nisar Ahmad v. State 1975 PCr.LJ 400; Ghulam Sarwar and another v. The State 1984 PC r. LJ 2588 and Muhammad Rafi v. The State and 2 others 1969 PCr. LJ 873 ref.

Mian Pervaiz Hussain and Rao Javed Khurshid for Petitioners.

Muhammad Hanif Khatana, Addl A.‑G.

2005 Y L R 808

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD RIAZ and 4 others‑‑‑Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION PINDI BHATTIAN and 4 others‑‑‑Respondents

Writ Petition No. 7792 of 2004, decided on 4th June, 2004.

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

‑‑‑‑S.11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Petitioner had claimed that he had contracted a valid and legitimate marriage with the alleged abductee; that alleged abductee was adult, having age of puberty, major and being sui juris had contracted valid marriage with him with her free will and volition and that father of alleged abductee was angry and displeased by marriage of petitioner with his daughter/alleged abductee and had got registered false and fabricated F.I. R. against the petitioner‑‑‑Validity‑‑‑Alleged abductee, who was produced in the Court, appeared to be adult and having age of puberty from her very looks and she had categorically stated that neither she had been abducted nor she had been subjected to sexual violence as alleged in the F.I.R.‑‑‑Girl had further stated that she had left the house of her father of her own in her wearing apparel whereafter she had contracted marriage with the accused/petitioner of her own free will and volition which fact was evidenced by a registered Nikahnama‑‑‑State counsel had not opposed quashing of F.I. R. as same would be sheer wastage of time, energy and effort‑‑‑Petitioner/accused voluntarily, without any pressure, agreed willingly to enhance dower amount‑‑‑Continuation of proceedings in F.I.R. would be an abuse of process of law in view of fact and circumstances of the case‑‑‑Accepting petition, F.I.R. registered against petitioner was quashed.

Ch. Imran Raza Chadhar for Petitioners.

Iftikhar Ahmad for the Complainant.

Ch. Amir Rehman, Addl A.‑G for the State.

Shabbir Ahmed. A.S.I. with Record.

Date of hearing: 4th June, 2004.

2005 Y L R 812

[Lahore]

Before Bashir A. Mujahid and Abdul Shakoor Paracha, JJ

MUZAMMIL HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Miss. No. 37 of 2004, decided on 30th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.345, 435 & 439‑‑‑Penal Code (XLV of 1860), Ss. 302 & 338‑E‑‑‑Compounding of offence‑‑‑Petitioner was convicted under S. 302(a), P. P. C. and was sentenced to death as Qisas‑‑‑All legal heirs of deceased except one of his sons had compromised with accused and they had got their statements recorded that they had no objection to acquittal of accused‑‑‑Counsel for accused had stated that as one of the legal heirs of deceased, had not compromised, he had no objection if sentence of death of accused was altered to imprisonment for life‑‑‑Accepting revision petition sentence of death recorded against petitioner, was converted into imprisonment for life accordingly.

Sikandar Hayat and another v. Allah Ditta and 9 others 2004 PCr. LJ 530; Bashir Ahmad v. The State and another 2004 SCMR 236; Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307 and Amir and another v. The State 2003 SCMR 561 ref.

M.A. Zafar for Petitioner.

Misbahul Islam for the State.

Date of hearing: 30th March, 2004.

2005 Y L R 814

[Lahore]

Before Mian Muhammad Najam‑uz­-Zaman, J

ASIM ALI and another‑‑‑Petitioners

Versus

STATION HOUSE OFFICER, P.S. CANTT., SARGODHA and 3 others‑‑‑Respondents

Criminal Misc. No. 4006‑B and Writ Petition No.7812 of 2004, decided on 5th July, 2004.

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

‑‑‑‑Ss.10 & 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Quashing of F.I.R.‑‑‑Fact that co‑accused was a sui juris and could contract marriage with her own free‑will, was not denied‑‑­Co‑accused had stated that she had contracted marriage with accused with her own free‑will and consent ‑‑‑Co‑accused had denied her Nikah with person other than accused‑‑‑Prosecution could not prove Nikahnama mentioned in F.I.R. allegedly registered between co‑accused and said other person‑‑‑Registration of F.I.R. under Ss. 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was nothing, but an abuse of process of law‑‑‑F. I. R., was quashed, in circumstances.

Zafar Iqbal Chohan for Petitioners

Aftab Ahmad Bajwa for the Complainant.

Mian Abdul Qayyum Anjum for the State with Ali Muhammad A.S.‑I.

2005 Y L R 819

[Lahore]

Before Muhammad Akram Baitu, J

MUNIR AHMAD and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

W. Ps. Nos. 1634 and 2309 of 2004, decided on 10th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.516‑A‑‑‑Penal Code (XLV of 1860), S.395‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Interim custody/superdari of disputed harvester‑‑­Setting aside of order‑‑‑Both parties having claimed ownership of harvester in dispute, title of same could not be determined by way of filing Constitutional petition by parties, but instead same could only be determined by producing evidence‑‑‑Courts below had rightly directed the parties to approach Civil Court for declaration of ownership of harvester in dispute‑‑‑Harvester in dispute was stated to be in Police custody, till the decision of the title of said harvester by Civil Court; same was likely to depreciate in value by keeping it in the Police Station, in such like circumstances, disputed property was to be handed over to person from whom it was lastly recovered‑‑‑Harvester in question admittedly, was seized from possession of respondent, interim custody of the harvester was given to respondent under S.516‑A, Cr. P. C. till final decision regarding the title of same by the Court of competent jurisdiction‑‑‑Constitutional petition filed by respondent was allowed and that of petitioner was dismissed.

Maulvi Sultan Alam for Petitioners.

Malik Muhammad Rafique Rajwana for Respondents Nos. 1 and 2.

Date of hearing: 10th June, 2004.

2005 Y L R 821

[Lahore]

Before Nazir Ahmad Siddiqui and Muhammad Farrukh Mahmud, JJ

Subedar SABIR ALI ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

W.P. No. 924 of 2003/BWP, decided on 5th March, 2004.

Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S.7‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Determination of age of accused‑‑‑Quashing of order‑‑‑Medical Board consisting of specialists of Hospital had opined that the age of accused on date of examination was 19‑20 years‑‑‑When occurrence had taken place age of accused in the light of said Medical Opinion would be between 17 years, seven months or 18 years seven months‑‑‑Consensus was on the point that margin of error in determination of age through medical examination was about one year‑‑‑Benefit of doubt, if any, was to be given to accessed and in case of two possibilities, the Court should tilt in favour of accused for the purpose of determination of age‑‑‑Earlier examination of accused by Medical Board which was conducted under executive order, could not be considered for the purposes of S.7 of Juvenile Justice System Ordinance, 2000‑‑‑Evidence in the shape of school leaving certificate and Form 'B' of National Identity Card also supported claim of accused that he was Juvenile at the time of occurrence‑‑­Accused being less than eighteen years on the date of occurrence, was a Juvenile and was rightly ordered to be tried as Juvenile in accordance with provisions of Juvenile Justice System Ordinance, 2000.

Kamran Ahmad Sumra for Petitioner.

Ahmad Mansoor Chishti, A.A.‑G., for the State.

Muhammad Sharif Bhatti for Respondent No. 2.

2005 Y L R 824

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD SALEEM‑‑‑Appellant

Versus

SHAHID JAVED and another‑‑‑Respondents

I.C.A. No. 21 of 2004, decided on 8th April, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.364‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Res judicata, principle of‑‑‑Applicability‑‑­Challan of case having been submitted in the Trial Court, it was for the Trial Court to proceed with the case in accordance with law‑‑‑Direction issued by High Court even on assurance given by Law Officer or S. P. Range Crime that accused named in the F.I.R. would be arrested, would amount to interference in the investigation‑‑‑Appellant and accused placed in Column‑II of Challan could be summoned by the Trial Court to face trial in accordance with law‑‑‑No need existed for further investigation as the same was not pending at any stage and there was no need to arrest accused who were not required to be arrested as per S. P. Range Crime who stated that their houses were being raided cinder orders of the High Court and his co‑accused according to investigation were innocent‑‑‑Earlier Constitutional petition filed by respondent was with the same prayer and same was disposed of and that order had attained finality as same had not been further challenged‑‑‑Present Constitutional petition under challenge with the same prayer and on same fact was not competent on the principle of res judicata.

Zafar Iqbal Chohan for Appellant.

Mian Sikandar Hayat for Respondent No. 1.

Misbah‑ul‑Islam for the State.

Date of hearing: 8th April, 2004.

2005 Y L R 827

[Lahore]

Before Muhammad Farrukh Mahmud, J

NAZIR HUSSAIN ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Crl. Misc. No.760/Q of 2003, decided on 15th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2)/16‑‑‑Quashing of proceedings‑‑­Matter was reported to Police after a delay of 2‑1/2 months‑‑‑Co‑accused (lady) had categorically denied that she was abducted by accused, but she had stated that she left her house of her own as complainant used to subject her to torture‑‑‑Lady had stated that she was living with her parents‑‑‑Even if it was believed that the lady was seen by witnesses while she was riding a motor‑cycle driven by accused, it could not be presumed that accused had taken or enticed away her with intent to commit Zina with her‑‑‑No cogent incriminating evidence being available against accused to warrant his conviction, continuation of proceedings against accused before Trial Court would be an exercise in futility and abuse of process of Court‑‑‑Proceedings against accused before Trial Court, were quashed, in circumstances.

Ghazanfar Ali Khan for Petitioner.

Amir Ajam Malik for the Complainant.

Khalid Shamshad Rana for the State.

Date of hearing: 15th March, 2004.

2005 Y L R 829

[Lahore]

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

KHALID MEHRBAN‑‑‑Appellant

Versus

JUDICIAL MAGISTRATE, MURREE and another‑‑‑Respondents

I.C.A. No. 222 in W.P. No.2274 of 2004, heard on 2nd December, 2004.

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

‑‑‑‑Ss.36, 37, 169, 173‑‑‑Sending report to Magistrate under S.173, Cr. P. C.‑‑­Ordinary and additional powers of Magistrate‑‑‑Magistrate enjoyed ordinary powers under S. 36, Cr. P. C., conferred upon him and specified in the Third Schedule of Cr. P. C. and such powers were called his ordinary powers‑‑‑Some additional powers were also conferrable on a Magistrate on recommendation of High Court under S. 37, Cr. P. C. ‑‑‑Report under S.173, Cr. P. C sent by Police to the Magistrate was an administrative order and not a judicial order‑‑‑Order on such report passed by Magistrate would be administrative order when he would concur with or refused to agree with the police report submitted to him under S.173, Cr. P. C. and. said order would not be judicial one‑‑‑Magistrate had to pass speaking order on police report, whether he agreed or disagreed with the same after examining police diaries and applying his judicial mind to the record produced before him.

Mirdad Khan v. Zahir Shah 2000 PCr.LJ 1739 and Waqarul Haq alias Mithoo and another The State PLD 1988 Lah.336 ref.

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

‑‑‑‑Ss. 169 & 173‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court appeal‑‑­Investigation in case‑‑‑Sending report under S.173, Cr. P. C. to Magistrate‑‑‑Police after reinvestigation found appellant/accused innocent and in report sent to Magistrate under S.173, Cr. P. C. Police recommended discharge of appellant, but Magistrate declined to agree with report sent by police and summoned complainant as well as recovery witnesses who deposed against appellant‑‑‑Magistrate made detailed­ inquiry in the case‑‑‑Constitutional petition filed against order of Magistrate was dismissed by High Court with observation that Magistrate had not committed any illegality amenable to Constitutional jurisdiction of High Court‑‑‑Validity‑‑­Magistrate while disagreeing with police report sent under S.173, Cr. P. C. and recording evidence of complainant and recover: witness, had travelled beyond his jurisdiction as Magistrate and assumed the role of Trial Court in dealing with that‑‑­Investigation of a criminal case and its resultant arrival by police regarding innocence or otherwise of appellant was prerogative of police over which no other Authority had any control‑‑‑Trial Court could disagree with opinion of police and record the evidence on submission of challan by police‑‑‑Challan, in the present case, had not been sent to Magistrate, but simple report under S.173, Cr. P. C. was sent to him praying therein for discharge of accused/appellant‑‑‑If accused was not recommended for trial in criminal case, only then report under S.173, Cr. P. C. was to be submitted without any challan accompanying therewith‑‑‑High Court (Single Judge) while passing impugned order had not adverted to that legal aspect of the case ‑‑‑Intra‑Court appeal was accepted and order passed by Single Judge was set aside.

Sardar Muhammad Latif Khan, Khosa for Appellant.

Tanvir Iqbal, A.A.‑G. with Ashraf Bajwa, S.‑I. for Respondents.

Date of hearing: 2nd December 2004.

2005 Y L R 834

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD SHARIF and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 510‑B of 2004/BWP, decided on 8th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 406 & 420‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Pre‑arrest bail, refusal of‑‑‑Delay in lodging F.I.R. had been explained in F.I.R. itself‑‑‑Version of complainant was supported by statement of prosecution witness which was recorded soon after registration of case‑‑‑Story of F.I.R. was also corroborated by statement of an independent witness‑‑‑Case was investigated by different Police Officers and all of them were of the opinion that accused had committed offence under Ss. 406 & 420, P. P.C. ‑‑‑Application for grant of pre‑arrest bail of accused was dismissed, in circumstances.

Dildar Ali v. The State 1999 SCMR 1316; Dastgir v. The State 2000 MLD 240; Sajeel Rashid and another v. The State 2003 PCr.R (SC) 573; Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82 and Muhammad Safdar and others v. The State 1983 SCMR 645 ref.

Nadeem Asif Chaudhry and Malik Shafqat Melunood for Petitioners.

Mumtaz Hussain Bazmi for the Complainant.

Abdul Ghani for the State.

Date of hearing: 8th June, 2004.

2005 Y L R 836

[Lahore]

Before Sardar Muhammad Aslam, J

IMTIAZ HUSSAIN SHAH‑‑‑Petitioner

Versus

THE STATE--Respondent

Cr. Misc. No. 128‑B of 2003, decided on 19‑11‑2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/324/337‑A (i)/337‑F(ii)/147/149‑‑­Bail, refusal of‑‑‑Accused, who was armed with pistol, brought out son of sister of accused who was detained by accused and then all accused persons started beating complainant and his companions‑‑­Complainant received injuries and deceased died‑‑‑Motive mentioned in F.I.R. was substantiated from the record‑‑‑Accused was vicariously liable for the offence in which one person lost his life while four others received injuries‑‑‑Investigation was complete in which accused had been found guilty by Investigating Officer ‑‑‑ Offence was punishable with death‑‑‑Grounds urged by accused in support of his bail application, would not entitle him to the concession of bail‑‑‑Bail application, was dismissed, in circumstances.

Malik Rab Nawaz Noon for­ Petitioner.

Sardar Tariq Masood Khan for the Complainant.

Date of hearing: 19th November, 2003.

2005 Y L R 838

[Lahore]

Before M. Bilal Khan, J

SULEMAN MUNAWWAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 4420/B/2004, decided on 19th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i), 337‑F(i), 337‑F(ii) & 337‑D‑‑­Juvenile Justice System Ordinance (XXII of 2000), S.10(7)(c)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Case of prosecution was that injured asked accused about his mobile telephone whereupon accused along with two unknown companions had inflicted 'Churri' blows on different parts of body of injured‑‑‑According to Investigating Officer incident had taken place on account of grave and sudden provocation as when accused saw injured making indecent overtures towards sister of accused, he lost his cool, picked up a 'Churri' and caused injuries to injured on account of grave and sudden provocation‑‑‑According to Investigating Officer any self‑respecting person would erupt in fury when confronted with such a situation‑‑‑Very number of injuries suffered by injured had shown that he was attacked by a person full of vengeance and had exhibited his venom and spitefulness‑‑‑Plea of accused, prima facie, was more plausible‑‑‑Was yet to be seen if a petty altercation over a mobile phone could provoke accused to the extent of causing multiple 'Churri' blows on the victim who admittedly was his friend‑‑‑Plea of accused that he was provoked on account of indecent overtures of accused towards his sister, could not be brushed aside, especially in view of venue of occurrence‑‑­Even otherwise accused had been adjudged to be child within meaning of Juvenile Justice System Ordinance, 2000‑‑‑Case against accused being of further inquiry within meaning of S.497(2), Cr. P. C. and also attracting provisions of S.10(7) (c) of Juvenile Justice System Ordinance, 2000, he was admitted to bail.

Ch. Muhammad Ashraf Wahlah for Petitioner.

Mr. Sabir Hussain Ch. for the Complainant.

Abdul Majid Chishti for the State.

Muhammad Ayyub S.I.P.S. Peoples Colony, District Faisalabad.

2005 Y L R 841

[Lahore]

Before Bashir A. Mujahid, J

KALSOOM and another‑‑‑Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION MANKERA and 3 others‑‑‑Respondents

Writ Petition No. 8201 of 2004, decided on 22nd June, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.379/452/148/149‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.7(6)‑‑­Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Alleged abductee who was star witness of case, had categorically denied that she had been abducted by co‑accused and had not supported allegation as levelled in F.I.R. and had stated that she rejoined the co‑accused within 90 days before divorce between her and co‑accused had become effective‑‑‑Question of abduction of accused or commission of Zina with her, would not arise even in view of provisions of S. 7(6) of Muslim Family Laws Ordinance, 1961‑‑‑In order to protect family life of accused, F.I.R. registered against accused was quashed accepting Constitutional petition.

Muhammad Sher Chheena for Petitioner.

Raja Ghulam Hassan Khan, for Respondent No. 3.

Tanvir Ahmad Shamsi, Addl. A.‑G. along with $her Ali, A.S.‑I. for the State.

Date of hearing: 22nd June, 2004.

2005 Y L R 842

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

MUHAMMAD DAWOOD and another‑‑‑Respondents

Crl. Misc. No. 4180‑B/C of 2004, decided on 7th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497(5) & 498‑‑‑Penal Code (XLV of 1860), Ss. 324/109/34‑‑‑Pre‑arrest bail, grant of‑‑‑Accused having no blood relation with main accused, there was no occasion in circumstances, to raise alleged Lalkara by him‑‑‑Whether Lalkara attributed to accused was commanding in nature or proverbial, was to be seen by Trial Court after recording of evidence‑‑‑No allegation of misusing of concession of bail was found against the accused‑‑‑No ground for cancellation of bail having been made out, petition for cancellation of bail, was dismissed.

PLD 1984 SC 192; NLR 1995 277; 1986 SCMR 1386 and 1991 MLD 579 ref.

Muhammad Amir Khan Niazi for Petitioner.

Azam Nazeer Tarar for Respondent No. 1.

Anwar Islam Khan for the State.

Date of hearing: 7th July, 2004.

2005 Y L R 843

[Lahore]

Before Muhammad Nawaz Bhatti, J

NAWAZ alias MITHU‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.9335‑B of 2004, decided on 17th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑­Bail, refusal of‑‑‑Accused was nominated in F.I.R. as he had abducted daughter of the complainant‑‑‑Alleged abductee had not been recovered‑‑‑Case of accused was different from case of co‑accused as two of co‑accused were declared innocent by police and two other were nominated through a supplementary statement of complainant‑‑‑Major role of abduction had been assigned to accused in F.I. R. and matter was still under investigation and non‑recovery of abductee should not have been taken so lightly‑‑‑In absence of any ground for grant of bail to accused, his bail petition was dismissed.

Syed Faisal Raza Bokhari, for Petitioner.

2005 Y L R 847

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

NIZAM DIN alias NANNA---Petitioner

Versus

THE STATE‑--Respondent

Criminal Miscellaneous No.4487‑B of 2004, decided on 13th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.379/420/466‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused, no doubt was named in F.I.R. with specific role that he being clerk of an Advocate took away record of a criminal case from copy clerk of Sessions Court and thereafter he removed certain order sheets, but file of present case was absolutely silent about copy clerk from whom accused allegedly took away the file, nor during investigation any copy clerk had been involved in the case‑‑‑Record of case was also silent about the time, date, year in which occurrence had taken place as well as circumstances under which accused took away file from copy clerk‑‑‑Prima facie, said lacunae in the prosecution case, were sufficient to bring case against accused within fold of further inquiry entitling him to concession of bail.

Mehmood Ahmad Alwari for Petitioner.

Miss Nosheen Tasqeen for the State.

Muhammad Iqbal A.S.‑I.

2005 Y L R 848

[Lahore]

Before Nasim Sabir Ch.J

TAHIRA YASMEEN and 2 others‑‑‑Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION, GHALLA MANDI, SAHIWAL and another‑‑‑Respondents

Writ Petition No.2220 of 2004, decided on 5th July, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.489‑F & 506‑‑‑Federal Investigation Agency Act (VIII of 1974), S.2(e)‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑Investigation with regard to commission of offence‑‑‑Jurisdiction‑‑­Petitioner had contended that offence under S.506, P. P. C. was not made out and it had only been added in order to bring offence within territorial jurisdiction of the Police Station concerned‑‑‑Contention requiring factual inquiry, could not be undertaken by High Court while exercising Constitutional jurisdiction and it would be seen at the trial after recording of evidence of both parties whether offence under S. 506, P. P. C. was made out or not‑‑‑Investigation with regard to commission of an offence, could not be supervised or controlled or interfered with by High Court‑‑‑Federal Investigation Agency, after amendment in Schedule to Federal Investigation Agency Act, 1974, had become entitled to investigate cases involving offences under S.489‑F, P. P. C. and submit its report to the Court of competent jurisdiction‑‑‑Petitioner/accused having failed to make out case for quashing of F.I.R. petition in this behalf being devoid of any force was dismissed with direction to Investigating Officer to investigate case in accordance with law and submit report before a Court of competent jurisdiction.

Tariq Zulfiqar Ahmed Chaudhry for Petitioners.

Ch. Muhammad Hafeez Ahmed for Respondent No.2.

Malik Muhammad Ramzan Khalid, Addl. A.‑G. with Muhammad Asif, Inspector/S.H.O. and Sajjad S.‑I.

2005 Y L R 851

[Lahore]

Before Sh. Hakim Ali, J

ABDUL LATIF‑--Petitioner

Versus

MUZAMMAL MEHDI‑--Respondent

Civil Revision No.430 of 1984, decided on 8th June, 2004.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for specific performance of contract‑‑‑Defendant/vendor according to agreement of sale, received earnest amount and remaining amount was to be received by the attorney of vendor from vendee within three months and thereafter sale agreement was to be executed anti completed it favour of plaintiff/vendee‑‑­Performance of agreement having been refused by defendant/vendor, plaintiff/ vendee had filed suit for specific performance of agreement against defendant/vendor which was concurrently decreed by Trial Court and Appellate Court‑‑‑Validity‑‑‑Terms of agreement of sale showed that general attorney of defendant/vendor had to receive remaining sale consideration from plaintiff/vendee within three months and to get the document of sale executed and completed and it was not the duty of plaintiff/vendee to offer remaining payment‑‑‑If any delay occurred the same was on part of plaintiff/vendee, which was not fatal to the case of plaintiff, especially when even witness produced by defendant had clearly stated on oath that plaintiff/vendee had been continuously visiting defendant/vendor, but vendor had been dilly‑dallying on pretext that after settlement of his dispute with his tenant he would receive remaining amount from plaintiff/vendee and complete the transaction of sale‑‑‑In cases of contract with regard to immovable property, time was not considered as essence of contract‑‑‑Words used in agreement of sale did not indicate that parties had intended to make period of three months to be the time of the essence of contract and no special exceptional words were used to make out such intention of parties‑‑‑No penalty was provided for non‑performance of contract within prescribed period of three months‑‑‑If there was any fault on the part of plaintiff/vendee with regard to payment within three months, it could not be considered as fatal to his case‑‑‑Concurrent findings of both Courts below that period prescribed in agreement to sell was not of the essence of contract, being a finding of fact, same could not be upset by the High Court.

Malik Elahi and others v. Muhammad Aslam 2002 CLC 433; Lehrasap Khan and 3 others v. Muhammad Sarwar Khan and another 2002 YLR 3233; Mst. Ghulam Jannat v. Allah Ditta 2003 YLR 981; Lal Din v. Muhammad Sardar and 3 others 2002 YLR 1482; Noor Muhammad and others v. Muhammad Ishaq 2000. MLD 251; Muhammad Nawaz Khan and others v. Mst. Farah Naz PLD 1999 Lah. 238; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; 1997 SCMR 1139 and 1997 CLC 875 ref.

Shamshair Iqbal Chughtai for Petitioner.

Abdul Majid Bhatti for Respondent.

Date of hearing: 8th June, 2004.

2005 Y L R 854

[Lahore]

Before Muhammad Nawaz Bhatti, J

AMAN ULLAH‑‑‑Petitioner

Versus

SHAUKAT ALI and 4 others‑‑‑Respondents

Writ Petition No.20185 of 2004, decided on 16th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.167‑‑‑Penal Code (XLV of 1860), S.395‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional Petition‑‑‑Physical remand of accused‑‑‑Respondent/accused persons remained on physical remand with police for six days and thereafter were sent to judicial lock‑up by Magistrate concerned‑‑‑Said order of Magistrate was challenged by petitioner/complainant in revision which was dismissed by Additional Sessions Judge‑‑‑Order dismissing revision by Additional Sessions Judge had been challenged by complainant in Constitutional petition‑‑‑Additional Sessions Judge, while discussing matter in detail, had declined to interfere in the order of Magistrate holding that Magistrate was justified to refuse further physical remand of respondent/ accused‑‑‑Additional Sessions Judge had found that after giving physical remand for six days, Magistrate had rightly sent accused to judicial lock‑up without extending period of remand‑‑‑No illegality having been committed by Magistrate as well as by Additional Sessions Judge, no interference was called for in Constitutional petition.

Mian M. Nawaz Dhuddi for Petitioner.

Ch. Muhammad Suleman, Addl. A.‑G. Punjab on Court's Call.

2005 Y L R 856

[Lahore]

Before Muhammad Nawaz Bhatti, J

KHALID IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.9277‑B of 2004, decided on 16th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). Ss.10/11‑‑‑Bail, refusal of‑‑‑Accused was named in F.I. R. and he had been attributed a specific role of abduction of victim‑‑­Alleged abductee in her statement got recorded under S.164, Cr. P. C. had implicated accused in commission of offence‑‑‑Alleged abductee had stated that accused had been committing Zina‑bil‑Jabr with her against her consent and that accused also got her thumb‑impression on blank papers under duress and coercion‑‑­Offences under Ss. 10/11 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979 were heinous offences, which fell within the ambit of prohibitory clause of S.497, Cr. P. C.‑‑‑Police during investigation had found accused guilty of offence‑‑‑Accused did not deserve concession of bail‑‑‑Petition for grant of bail, was dismissed in limine.

Haider Zaman Khan for Petitioner.

2005 Y L R 858

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. HIDIYAT BIBI and 11 others‑‑‑Petitioners

Versus

Mst. MAQSOODA BEGUM and 6 others‑‑‑Respondent

Civil Revision No.571 of 2004, decided 20th December, 2004.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S.2‑‑‑Specific Relief Act (I of 1877), Ss. 8, 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Islamic Law‑‑‑Inheritance of daughter‑‑‑Custom (Punjab)‑‑‑Custom after promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962‑‑‑Effect‑‑‑Declaration of title‑‑­Limitation‑‑‑Estoppel by acquiescence principle of‑‑‑Applicability‑‑‑After the death of the owner of suit property, he teas survived by only one daughter who was maintaining the property as limited owner till her marriage in year 1977‑‑‑After her marriage, the plaintiff was given 1/4 share of the property left by her deceased father and the remaining 3/4 share was given to defendants as collaterals‑‑‑Plaintiff assailed her share and claimed it to be 112 share instead of 1/4 share‑‑‑Trial Court dismissed the suit but Appellate Court allowed the appeal and enhanced the share of plaintiff as claimed by her‑‑‑Plea raised by the defendants was that the deceased owner was governed by customary law, suit was barred by limitation and principle of acquiescence was applicable ‑‑‑Validity‑‑­Limited estate extinguished on promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, and the property reverted to Muslim heirs according to their Sharai shares, who were alive at the time of death of last male owner i.e. father of plaintiff‑‑‑Plaintiff was given the suit property of her father for maintenance purpose till her marriage or death and she was entitled to her Sharai share to the extent of 1/2 share in the legacy of her deceased father but instead the plaintiff was given only 1/4 share which was not justified under the law‑‑‑Plaintiff had become co­-sharer along with the collaterals, the moment her father breathed his last or the limited estate extinguished and no period of limitation ran against her‑‑‑Principle of estoppel was not attracted because a co­-sharer in possession of joint property was considered to hold share of the other co­-sharers out of possession‑m their behalf‑‑­Appellate Court correctly concluded the lis and findings returned in support of the judgment of Appellate Court were in consonance with the evidence on record and law applicable‑‑‑No illegality/irregularity amenable to revisional jurisdiction of High Court having been committed no interference in the judgment passed by Appellate Court could be made under S.115, C. P. C. ‑‑‑Revision was dismissed in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Anjum and 2 others v. Mst. Sufaidan and 3 others PLD 1989 Lah. 103 ref.

Sh. Istadamat Ali for Petitioner.

2005 Y L R 863

[Lahore]

Before Ch. Ijaz Ahmad, J

ANWAR‑UL‑HAQ‑‑‑Petitioner

Versus

ILLAQA/JUDICIAL MAGISTRATE, FAISALABAD and 4 others ‑‑‑Respondents

Criminal Miscellaneous No. 1735‑M of 2004, decided on 21st December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.516‑A & 561‑A‑‑‑Superdari, meaning of‑‑‑Petition to set aside order‑‑‑Delivery of vehicle on Superdari was meant primarily for the purpose of protection of property and to avoid further deterioration and same could not be used as proof of ownership‑‑‑If no rival claimants for Superdari of vehicle had come, then vehicle should have ordinarily be given on Superdari to the person, from whom its possession was taken by police‑‑‑In any case leaving vehicle in custody of police, would trot serve any purpose except reducing its value‑‑­Authorities were directed to hand over vehicle in question to the petitioner after his furnishing personal surety to the satisfaction of lllaqa Magistrate.

Badar Din's case NLR 1993 Civil Cases 593; Malik Muhammad Rafique's case 1986 SCMR 1539; Hamayun Akhtar's case 1999 MLD 1676; Haji Muhammad Ismail's case 1992 PCr. LJ 988; Abdul Bari's case PLJ 1991 FSC 330 and Haji Rab Nawaz's case 1988 PCr.LJ 1353 ref.

Muhammad Azeem Sarwar for Petitioner.

Muhammad Hanif Khatana, Acting A.‑G. Punjab along with Sultan Sikandar, S.‑I./Investigating Officer, Police Station, A‑Division, Faisalabad with Record.

2005 Y L R 866

[Lahore]

Before Abdul Shakoor Paracha and Farrukh Latif, JJ

GHULAM MURTAZA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Crl. M. No. 1000 of 2004 in Crl. A. No. 1386 of 1999 and Murder Reference No.5 of 2000, decided on 26th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.35, 397 & 561‑A‑‑‑Penal Code (XLV of 1860), Ss. 302 & 324‑‑‑Sentence, awarding of ‑‑‑Running of sentences concurrently‑‑‑Applicant/accused was awarded sentence of death under S.302, P.P.C. and sentence of seven years' R.I. under S. 324, P. P. C. by Trial Court‑‑‑On filing appeal by applicant sentence of death awarded to him was altered to imprisonment for life and sentence of seven years, R.I. awarded to him under S.324, P. P. C. remained intact‑‑‑No direction was given for concurrent running of sentences of imprisonment for life under S.302, P. P. C. and sentence of seven years' R.I. under S. 324, P. P. C. ‑‑‑Sentences awarded to applicant under Ss. 302 & 324, P. P. C. , were to run concurrently on mandate of S.35(1), Cr.P.C. as consecutive running of sentences would be violative of Proviso (a) to S.35(2), Cr.P.C.; it was thus directed that sentences of imprisonment for life under S.302, P. P. C. and seven years' R.I. under S. 324, P. P. C. should run concurrently.

Javed Sheikh v. The State 1985 SCMR 153; Muhammad Ittefaq v. The State 1986 SCMR 1627; Mukhtar Ahmad alias Mokha and another v. The State 1999 PCr. LJ 1905 and Gullat Shah v The State 1992 SCMR 1424 ref.

Ch. Abdul Rasheed for Applicant.

Rana Muhammad Siddique for the State.

2005 Y L R 869

[Lahore]

Before Muhammad Nawaz Bhatti, J

ADNAN and another‑‑‑Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9003‑B of 2004, decided on 16th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.498 & 497(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Pre‑arrest bail, grant of‑‑‑Further inquiry‑‑‑No specific role had been attributed to accused, except that they were present at the spot‑‑‑Cross‑version of accused had also cropped up‑‑‑Plea of accused that they had been falsely involved in case, could not be straightaway ruled out and case of accused was of further inquiry covered under S.497(2), Cr.P.C.‑‑‑Ad interim bail already granted to accused, was confirmed, in circumstances.

Muhammad Aslam Zar for Petitioners.

Maqbool Ahmad Qureshi for the State.

Muhammad Sain, S.-I.

2005 Y L R 872

[Lahore]

Before Syed Zahid Hussain, J

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD and others‑‑‑Petitioners

Versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Writ Petition No.6046 of 2002, decided on 12th January, 2005.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑Ss.4(1) & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Bid, non‑confirmation of‑‑‑Plea of fetching more price‑‑‑Chairman Evacuee Trust Property Board, assailing the order of Federal Government‑‑‑Property, subject-­matter of the Constitutional petition, was auctioned by Evacuee Trust Property Board and the respondent was the highest bidder‑‑‑Auction committee approved the auction but the Chairman did not confirm the auction on the ground that the Board wanted to fetch more price‑‑‑Federal Government in exercise of its jurisdiction under S.17 of Evacuee Trust Properties (Management and Disposal) Act, 1975, set aside the order passed by the Chairman and confirmed the auction in favour of respondent‑‑‑Validity‑‑‑Ascendancy of statutory position of Federal Government was shown by Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑­Decision making authority of Federal Government in statutory hierarchy had been recognized by the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑‑If Trust properties were to be disposed of, a reasonable and good price should be the prime object of the Board‑‑‑One of the well‑recognized modes of disposal of properties was the open public auction, which mode was adopted in the present case and the respondent was the highest bidder‑‑‑Evacuee Trust Property Board could not point out any illegality or impropriety in the auction proceedings‑‑­Federal Government, after due application of mind to the facts and circumstances of the case, had rightly upheld the auction proceedings and there was no illegality or jurisdictional error therein so as to warrant interference by High Court‑‑‑Any decision taken by the Evacuee Property Board after the decision of Federal Government could not successfully be pressed into service to nullify the sale in favour of respondent‑‑­Petition was dismissed in circumstances.

Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar‑ud‑Din and another 2000 SCMR 1; Pervaiz Oliver and others v. St. Gabrial School through Principal and others PLD 1999 SC 26; Miraj Din and 56 others v. Evacuee Trust Property Board, Lahore and others PLD 2004 SC 430 and C.Ps. Nos.658, 659, 661, 662 and 1125‑L of 2003 distinguished.

Ch. Naseer Ahmad and 4 others v. Government of Pakistan through Joint Secretary, Ministry of Religious Affairs and Minorities and 7 others 1993 SCMR 1570 ref.

Mian Muhammad Qamar‑uz‑Zaman and Dr. A. Basit for Petitioners.

Nemo for Respondent No. 1.

Ch. Bashir Ahmad for Respondent No.2.

Date of hearing: 10th January, 2005.

2005 Y L R 877

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

TARIQ ZAFAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6303‑B of 2004, decided on 15th September, 2004.

Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑Ss.561‑A & 497‑‑‑Penal Code (XLV of 1860), Ss.114/161/212/223/224/225/342/ 344/345/353‑‑‑Prevention of Corruption Act (II of 1947), S.5‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑A‑‑‑Police Order, (22 of 2002), Art.115‑B‑‑‑Quashing of proceedings‑‑‑Two constables and one S.I. had stated that three culprits escaped due to negligence, connivance and cowardice of accused who was S. H. O. of Police Station concerned‑‑‑Said expression of police officials had only constituted an opinion and no material had been brought on record to justify formulation of said presumption‑‑‑No material was available to suggest that accused in any manner had received illegal gratification from culprits or that he had actively assisted culprits in effecting their escape‑‑‑Prosecution allegation set up in the case, even if accepted, only would tend to show that accused was only negligent in the performance of his duty which did not show his complicity with culprits effecting their escape and negligence in performance of duty would not create any criminal liability and at the most would qualify for action under Efficiency and Discipline Rules‑‑­Accused having been illegally arrested and involved in case, proceedings against him were quashed‑‑‑Accused was released forthwith.

Iqbal Mahmood Awan for Petitioner

Najeeb Faisal Chaudhry, Addl. Advocate General with Ms. Zarqa Bashir Goraya, for the State.

2005 Y L R 879

[Lahore]

Before Ch. Ijaz Ahmad and Syed Shabbar Raza Rizvi, JJ

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION LIMITED (PASSCO) through Manager (Adorn.) Attorney‑‑‑Appellant

Versus

QAMAR‑UL‑ISLAM—Respondent

R.F.A. No.67 of 2003, heard on 14th December, 2004.

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

‑‑‑‑O.VII, R.11‑‑‑Plaint, rejection of adverting to all the paras of plaint‑‑‑Trial Court considered only two paras. of the plaint and rejected the same under O. VII, R. 11, C. P. C. on the ground of limitation Validity‑‑‑Application for rejection of plaint was decided by trial Court without adverting to the contents of the plaint mentioned in other paras‑‑‑Judicial mind was not applied by the Trial Court while deciding the application under O. VII, R. 11, C.P.C. which was a condition precedent upon the Presiding Officer to decide the controversy between the parties after application of judicial mind‑‑‑Order passed by the Trial Court was not in consonance with the provisions of Limitation Act, 1908, and the law laid down by the Superior Courts,---Order passed by the Trial Court was set aside and the case was 'remanded to Trial Court for deciding the case afresh after framing of issues‑‑­Appeal was allowed accordingly.

Irshad Ali v. Sajjad Ali and 4 others PLD 1995 SC 629 and Rasab Khan and another v. Abdul Ghani and 4 others PLD 1985 SC (AJ&K) 69 ref.

(b) Interpretation of document‑‑‑

----Document must be read as a whole and not piecemeal.

Lalit Mohan Das v. The Advocate-General, Orissa and another ELD 1957 SC (Ind.) 219; Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

(c) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S.24‑A‑‑‑Decisions of public func­tionaries ‑‑‑Principle‑‑‑Public functionaries are duty bound to decide controversy between the parties after application of mind.

Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268; PLD 1970 SC 158 and PLD 1970 SC 173 rel.

(d) Limitation‑‑‑

‑‑‑‑ Question of limitation is a mixed question of law and fact.

Rehmat Shah v. Amir Gul NLR 1992 SCJ 92 rel.

Mian Yousaf Umer for Appellant.

Sarfraz Ahmad Tarrar for Respondent.

Date of hearing: 14th December, 2004.

2005 Y L R 883

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. TASNEEM FATIMA ‑‑‑Petitioner

Versus

ARSHAD MEHMOOD and another‑‑‑Respondents

Criminal Miscellaneous No. 1348‑H of 2004, decided on 3rd January, 2005.

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

‑‑‑‑S. 491‑‑‑Guardians and Wards Act (VIII of 1890), S.25‑‑‑Custody of minor children‑‑‑Direction in the nature of habeas corpus‑‑‑Scope‑‑‑Power to issue direction in the nature of habeas corpus under S.491, Cr. P. C. being, extraordinary in nature, should be sparingly used because paternal jurisdiction in the matter rested under Guardians and Wards Act, 1890‑‑‑Superior Courts had exercised jurisdiction under S.491, Cr. P. C. only in cases of real urgency and such powers were exercised when minor was of tender age‑‑‑Interest of suckling baby would be best served if he/she was handed over to mother as the life, health or upbringing of minor was in serious jeopardy.

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

--‑S.491‑‑‑ Guardians and Wards Act (VIII of 1890), S.25‑‑‑Custody of minor children ‑‑Habeas Corpus petition‑‑­Petitioner/mother of minors who had already claimed the custody of minors through a petition under S.25 of Guardians and Wards Act, 1890, had left the house of her husband and had filed petition under S. 491, Cr. P. C. after five months and she had not taken any action during that period‑‑‑Case did not appear to be one of forcible snatching of minors‑‑‑No circumstances of urgency were made out to justify interference in petition under S.491, Cr. P. C. and decide the custody of minors in summary procedure‑‑‑Minors were well-­settled, attended their school regularly‑‑­School fees which were approximately Rs.5,000 for two months for three minors, were being paid by father of minors without any default‑‑‑Academic result of minors was exceptional and their attendance was maximum‑‑‑If minors were removed from the school, their education was likely to suffer adversely‑‑‑Keeping in view the age, welfare, education and prevailing ­circumstances of the case, no justification existed to interfere in the custody of minors‑‑Jurisdiction of High Court under S. 491, Cr. P. C. was extraordinary and summary in nature and such powers should be used sparingly.

Mst. Farzana v. Syed Muhammad Afzal and another 1991 PCr.LJ 758; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Hina Jillani v. Sohail Butt PLD 1995 Lah. 151; Muhammad Naseer Hamayon v. Syed Ummatul Kabir 1987 SCMR 174; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1; Mst. Aisha v. Baber alias Badal and another 2001 PCr. LJ 1250; Mst. Shazia Sharif v. Zeeshan Ahmad Dodhy PLD 2001 Lah. 347; Khadim Hussain v. The State 1997 PCr.LJ 104 and Mst. Nasreen Bibi v. Muhammad Ayub PL 1999 Cr.C (Lah.) 537 ref.

Syed Naveed Abbas for Petitioner.

Sardar Muhammad Ramzan for Respondent No. 1.

Tahir Mehmood Gondal, Assistant A.‑G.

2005 Y L R 890

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL HAMID‑‑‑Petitioner

Versus

SIKANDAR ALI and 3 others‑‑‑Respondents

W.P. No. 18917 of 2004, decided on 25th November, 2004.

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

‑‑‑‑Ss. 43(a), 45 & 53‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Periodical record (Khasra Girdawari), correction of‑‑‑Scope‑‑‑If entry in periodical record (Khasra Girdawari), was not correct, then the aggrieved party should have filed declaratory suit as visualized by S. 53 of West Pakistan Land Revenue Act, 1967‑‑­Variation in periodical record (Khasra Girdawari) can be made with respect to undisputed acquisition of interest in tern of S.43(a) of West Pakistan Land Revenue, Act, 1967, on the basis of facts proved or admitted‑‑‑Such corrections are permissible with the consent of all parties or which are supported by a decree or order binding c parties and not otherwise.

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

‑‑‑‑S.53‑‑‑Specific Relief Act (I of 1877) S.42‑‑‑Declaration of title‑‑‑Revenue Record, correction of‑‑‑Jurisdiction of Revenue authorities‑‑‑Scope‑‑‑Effect of provisions of S.53 of West Pakistan Land Revenue Act, 1967, may not be exclusion of jurisdiction of Revenue officials from exercising their authority to correct Revenue Record for correction of error occurred on account of slip of pen or clerical mistakes‑‑‑Wisdom behind it, provisions of S.53 of West Pakistan Land Revenue Act, 1967, is that Revenue official should take their hands off from correcting the longstanding entries especially those reflected in successive Jamabandis‑‑‑No disputed entry in Jamabandi can be altered, whether on the ground of mistake or of fraud, except on the basis of an obvious clerical mistake or a patent fact, requiring no elaborate inquire, for their veracity.

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

‑‑‑‑S.53‑‑‑Land Records Manual, Chap. 7, cls.7.28 & 7.30‑‑‑Constitution of Pakistan (1973). Art.199‑‑‑Constitutional petition‑‑‑Correction of Revenue Record‑‑‑Non‑filing of civil suit‑‑‑Petitioner was aggrieved of, entry in Khasra Girdawari of crop of Kharif, 1976‑‑‑Petitioner assailed the disputed entry before Revenue authorities in the year, 2000‑‑‑Collector relying on inquiry report of Revenue staff, accepted the application of petitioner and ordered for correction of the entry‑‑‑Respondent assailed the order of Collector before Appellate Authority but having been unsuccessful, filed revision application before Board of Revenue which was allowed and the order for correction of entry was set aside‑‑‑Plea raised by the petitioner was that any error occurring in Revenue Record could be ordered to be corrected by Revenue hierarchy without resort to declaratory suit‑‑‑Validity‑‑‑Entry in Khasra Girdawari of Kharif 1976, must have been incorporated in not less than six Jamabandis till the time, the petitioner filed application for its correction in the year, 2000‑‑‑In presence of dispute regarding possession as canvassed by the parties in the case present, correction could not have been ordered in summary proceedings on a miscellaneous application and that too on the basis of one sided report of Revenue field staff regarding‑ which no right of rebuttal was afforded to the adversaries the persons against whom the report was made‑‑‑Suit under S.53 of West Pakistan Land Revenue Act, 1967, in the form of declaration had to be usual suit, the one under S.42 of Specific Relief Act, 1877‑‑­Decision on such suit could only be given after recording of evidence and affording the parties full opportunity of evidence for substantiating their respective stance‑‑‑Such opportunity of recording of evidence could not be afforded to the parties on application for correction of Revenue Record under S.42 of West Pakistan Land Revenue Act, 1967, as the proceedings were summary in nature‑‑‑Board of Revenue acted within the compass of its jurisdiction fixed by law and did not commit any illegality amenable to Constitutional jurisdiction of High Court‑‑­Disputed entry of Khasra Gardawari incorporated in Jamabandi could only be corrected through a decree of Court and not by an order of Collector after lapse of more than two decades‑‑‑Order passed by Board of Revenue was just and fair and the same was not declared as void‑‑‑Petition was dismissed in circumstances.

Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 and Ahmad Din v. Akbar Ali 1992 CLC 608 ref.

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

‑‑‑‑S.53‑‑‑Specifc Relief Act (I of 1877), S.42‑‑‑Limitation Act (IX of 1908), Art. 120‑‑‑Declaration of title‑‑‑Revenue Record, correction of‑‑‑Limitation‑‑­Disputed entry of Khasra Girdawari, was assailed before Revenue Authorities, 24 years after its incorporation in Revenue Record‑‑‑Effect‑‑‑Limitation for filing declaratory suit under S.42 of Specific Relief Act, 1877 and the one under S.53 of West Pakistan Land Revenue Act, 1967, started from the date of accrual of cause of action under Art.120 of Limitation Act, 1908‑‑‑Entertaining of such application for correction of record after lapse of 24 years created an anomalous situation whereunder the Courts of ultimate jurisdiction were deprived of their jurisdiction to adjudicate upon the dispute due to extinction of time and such exercise was done on a miscellaneous application through summary proceedings.

(e) Land Records Manual‑‑‑

‑‑‑‑Chap.7, cl. 7.30‑‑‑Entries in Register Haqdaran Zamin‑‑‑Correction‑‑‑Entry/ sanctioning of mutation for correction of entries in Jamabandi is prohibited under chap. 7, Cl. 7.30 of Land Records Manual‑‑‑Clerical corrections, in consequence of patent facts are allowed.

Mehboob Asghar Sheikh for Petitioner.

2005 Y L R 928

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM RASOOL and others‑‑‑Petitioners

Versus

GHULAM MUHAMMAD and others‑‑‑Respondents

C.R. No. 184‑D/2000/BWP decided on 15th March, 2004.

Specific Relief Act (I of 1877)‑‑

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), Ss.11, 115 & O.II, R.2‑‑‑Suit for declaration and permanent injunction‑‑‑Res judicata, principle of plaintiffs in the first suit was that they being descendants of donee of suit‑land were its owners and that defendants with collusion with Revenue Staff had got mutation of suit‑land sanctioned in their names fictitiously‑‑‑Suit was concurrently dismissed by Trial Court and Appellate Court‑‑‑After dismissal of earlier suit, plaintiff filed another suit on basis of another mutation in the same suit‑land which was sanctioned earlier to mutation on basis of which suit earlier filed by plaintiffs was dismissed by Court below‑‑‑Plaintiffs had claimed that they were not aware of mutation impugned in second suit‑‑‑Suit earlier fled by plaintiff's not only was concurrently dismissed by two Courts below, but revision filed by plaintiffs against said concurrent‑judgment was also dismissed by High Court and plaintiffs had not further assailed said judgment before Supreme Court‑‑‑Judgment in earlier suit in circumstance had attained finality‑‑‑Claim of plaintiff's that then were not aware about mutation in respect oh suit‑land an basis of which they lead filed second suit had no credence for consideration because plaintiffs had remained in litigation for 9 years in which entire record of revenue was produced, but despite that titer had claimed that they were not aware of existence of said initiation which was made earlier in time than initiation on basis of which their earlier suit was dismissed‑‑‑Courts below thoroughly scanned curd appraised evidence produced on record‑‑‑In absence of any misreading or non‑reading of evidence on record. Courts below had rightly dismissed second suit holding that constructive res judicata was applicable to said second suit‑‑‑Said second suit was also barred under O.II, R. 2, C. P. C. because cause of action to base title on mutation subsequently relied upon by plaintiffs was available to them at relevant tune, but they did not include in that suit their entire claim and they relinquished it deliberately without permission of the Court‑‑‑Plaintiffs could not subsequently sue for same‑‑‑Both Courts below having committed no illegality or irregularity revision petition was dismissed.

Mst. Aishan v. Muhammad Din AIR 1917 Lah. 19; Mst. Bibi Alam Taj and others v. Mst. Inayat Begum PLD 1963 (W. P.) Pesh. 199: Pir Bakhsh represented by his legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Rab Nawaz Khan and 6 others v. Azim Khan and 35 others 1998 SCMR 2727; Khushi Muhammad and 2 others v. The Province of the Punjab through Secretary to Government of the Punjab and 2 others 1999 SCMR 1633 and Amanul Mulk v. Mian Ghafoor‑ur‑Rehman and others 1997 SCMR 1796 ref.

A.A. Asnari for Petitioners.

S.M. Anwar Shah for Respondents.

2005 Y L R 933

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASHIQ and 2 others‑‑‑Petitioners

Versus

MUHAMMAD ANWAR and 2 others‑‑‑Respondents

Cr. Rev. No. 153 of 2003/BWP, heard on 26th January, 2004.

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

‑‑‑‑Ss.162, 265‑C, 435 & 439‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Providing copies of statements of witnesses recorded during investigation of case and summoning of record‑‑‑Earlier F.I.R. was registered at the instance of respondent complainant, but after investigation case of complainant having been cancelled, he filed direct complaint against petitioners/accused under same offence viz. S. 302/34, P. P. C. ‑‑‑After inquiry in said complaint case, charge was framed against petitioners/accused and petitioner applied for supply of statements of prosecution witnesses recorded during investigation of earlier case of F.I.R. relating to same occurrence, but Trial Court dismissed application of petitioners/accused and petitioners had filed revision against such dismissal order‑‑­Validity‑‑‑Interest of accused facing trial on a charge of murder had been protected by provisions of S.265‑C, Cr.P.C. which required copies of evidence sought to be produced against them, be given to them seven days prior to commencement of trial‑‑‑Object of S. 265‑C, Cr. P. C. was that accused could know before they were sent up to stand their trial in a charge punishable with death or imprisonment for life as to what evidence they would have to meet at the trial‑‑‑Provisions of subsection (2) of S. 265‑C, Cr. P. C. were to be construed liberally to mean that copies of evidence oral or documentary should be made available to accused in a private complaint before commencement of trial‑‑­High Court allowing revision petition filed by petitioners/accused against order of Trial Court whereby their application for providing copies of statements of witnesses recorded during investigation of case was declined, directed that Trial Court should direct concerned police officers to furnish the required copies of statements of witnesses to petitioner.

Muhammad Riaz and others v. The State PLD 2003 Lah. 290; Pulukuri Kottays and others v. Emperor AIR 1947 PC 67; Muzaffar Khan v. The State 1977 PCr.LJ 937 and Aziz‑ur‑Rehman v. The State PLD 1987 Lah. 285 ref.

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

‑‑‑‑Ss.154 & 200‑‑‑Difference between complaint cases directly instituted in the Court and cases in which F.I.R. was got registered before police‑‑‑Line had to be drawn between the complaint cases directly instituted in the Court and those complaint cases in which complainant had first approached the police, F. I. R. was registered and during investigation statements of prosecution witnesses were recorded‑‑‑In the cases directly instituted upon complaint, question of furnishing copies of statement during investigation would not arise.

(c) Criminal trial‑‑‑

‑‑‑‑Cross‑examination‑‑‑Whole purpose of trial/inquiry was to find the truth to impart justice‑‑‑Cross‑examination was strongest tool to achieve the object; it was very important that accused should have the facility of cross‑examining the complainant and his witnesses in as complete manner as possible‑‑‑Object of cross‑examination with the assistance of earlier statement made by the complainant or his witness was to protect accused against untruthful witnesses.

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

‑‑‑‑Ss.162 & 265‑C‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.140‑‑‑Examination of person by police during investigation‑‑­Supply of statements and documents to accused‑‑‑If a person was examined by police during course of investigation under Chapter XIV of Cr. P. C. and if that person was called as a witness for the prosecution, accused had a right to request the Court to refer to such writing and for an order that accused be furnished with a copy of statement of such person in order that any part of such statement of duly approved, could be used to contradict such witness in the manner provided by Art. 140 of Qanun­-e‑Shahadat, 1984‑‑‑It was immaterial in such cases whether case was challaned by police or was inquired by the Court in complaint‑‑-Subsection (2) of S.265‑C, Cr.P.C. was not to be read in isolation as said section was part and parcel of Chapter XXII‑A of Cr. P. C. relating to trials before High Court and before Court of Session and was to be read along with other relevant provisions of law relating to trial or cases, specially, S.162, Cr. P. C. and Art.140 of Qanun‑e‑Shahadat, 1984.

Mumtaz Mustafa for Petitioner.

M. Abdul Rasheed Rashid for Respondents.

Tariq Hassan Khan for the State.

Date of hearing 26th January, 2004.

2005 Y L R 943

[Lahore]

Before Sh. Hakim Ali, J

GUL MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Cr. R. No. 41 of 2004/BWP, decided on 9th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.540 & 439‑‑‑Penal Code (XLV of 1860), Ss. 302/216/337‑F/460/109‑‑­Summoning of given up witness‑‑­Complainant moved an application under S.540, Cr. P. C. for summoning Judicial Magistrate whose evidence according to applicant was material for decision of case because said witness was to prove proceedings of identification parade‑‑­Contention of applicant was that Judicial Magistrate, though was given up, but he was an important witness whose absence would cause prejudice to the case of prosecution‑‑‑Application 'was accepted by Trial Court against which revision had been filed by accused to get order of Trial Court set aside on grounds that only Public Prosecutor could move such an application to Trial Court and complainant was not competent to file such application‑‑‑Name of Judicial Magistrate was entered into the list of witnesses of prosecution‑‑‑Section 540, Cr. P. C. empowered the Court, conducting the inquiry, trial or other proceedings to summon any person as a witness and only condition imposed and attached to it was that evidence of witness sought to be summoned, must be essential for the just decision of case‑‑‑As evidence of witness sought to be summoned in case was material, Trial Court had rightly exercised its power under S.540, Cr. P. C. ‑‑­Powers under S.540, Cr. P. C. could be exercised by Trial Court even suo motu, when at any stage it considered evidence of such witness a stepping stone for just decision of case‑‑‑Even if said witness was given up as being unnecessary, Trial Court was not helpless in the matter and could not be a silent spectator with blind eyes and deaf ears to the facts and circumstances of case as it had to regulate and conduct the case according to law‑‑‑No illegality having been committed by Trial Court while passing impugned order. revision against said order was dismissed.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Barkat Ali v. the State PLD 1979 Lah. 740 ref.

Mumtaz Hussain Bazmi for Petitioner.

Tariq Mahmood Khan for Respondent No.3.

Shahzad Aslam Khokhar for the State.

2005 Y L R 946

[Lahore]

Before Maulvi Anwarul Haq, J

SHAHADAT KHAN‑‑‑Petitioner

Versus

ZULFIQAR and others‑‑‑Respondents

Civil Revision No. 1828/D of 2002, decided on 27th April, 2004.

(a) West PakistanLandRevenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.42‑‑‑Mutation‑‑‑Mutation by itself was neither a document of title nor was even an evidence of title‑‑‑Process of mutation would start at a point of time when a transaction of transfer of property had been effected‑‑‑One or other party to a transaction would report matter to Patwari, who would make a report and then would enter the mutation.

(b) PunjabPre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.13‑‑‑Making of Talb‑i‑Muwathibat‑‑­Talb‑i‑Muwathibat as defined in Explanation‑I to subsection (1) of S.13 of Punjab Pre‑emption Act, 1991 would be made by a pre‑emptor when fact of sale would come within his knowledge through any source.

Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356 ref.

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

‑‑‑‑O.VIII, R.1‑‑‑Qanun‑e‑Shahadat, (10 of 1984), Art. 145‑‑‑Written statement‑‑­Written statement in a suit in which defendant was appearing as a witness, could hardly be termed as a previous statement to invoke the rigours of Art. 145 of Qanun‑e‑Shahadat, 1984.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.30‑‑‑Admission‑‑‑Admission which was wrong, in fact, could be withdrawn, but that would be subject to two exceptions; first where admission amounted to a representation operating as estoppel and second an admission made in the pleadings.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 ref.

Syed Mukhtar Abbas for Petitioner.

Zafar Iqbal Chauhan for Respondents.

Date of hearing: 27th April, 2004.

2005 Y L R 950

[Lahore]

Before M. Bilal Khan, J

KHAN MUHAMMAD ‑‑‑Appellant

Versus

THE STATE--‑Respondent

Criminal Appeal No.137-J of 2002, heard on 7th December, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302‑‑‑‑Appreciation of evidence‑‑­Accused could not point out any misreading, non‑reading of evidence or material discrepancy in prosecution case‑‑­Complainant in the case was none other than real father of accused, who had fully supported the case of prosecution‑‑­Statement of complainant was fully corroborated by Prosecution witness who also happened to be a real paternal uncle of accused‑‑‑Both witnesses had resolutely withstood the test of cross‑examination‑‑‑No definite line of defence had been taken by accused‑‑‑Nothing was forthcoming from the record as to why complainant, the real father of accused had falsely implicated him‑‑‑Accused could not point out alleged contradiction in ocular account and post­mortem report‑‑‑Doctor, who had fully corroborated ocular account, had not been cross‑examined at all despite opportunity was given to defence‑‑‑F.I.R. having been registered within one and a half hours of occurrence, no room was left for prosecu­tion for false implication or fabricating case against accused‑‑‑Ocular evidence had been corroborated by medical evidence as well by evidence of recoveries‑‑‑Accused had already been dealt with leniently by Trial Court for the reason that prosecution had not been able to prove motive against accused‑‑‑Appeal against judgment of Trial Court, was dismissed, in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑-‑Appreciation, of evidence‑‑­Conflict between medical opinion and credible ocular account‑‑‑If conflict was found between medical opinion and credible ocular account and the Court was convinced that witness had seen the occurrence and was worthy of credence, then conflicting opinion of Doctor would not detract anything from evidentiary value of evidence of eye‑witnesses.

Ghulam Ullah and another v. The State and another 1996 SCMR 1887 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Motive‑‑‑Absence of motive---Absence of motive was not to be considered as a mitigating circumstance and motive was a matter of mere speculation and would not constitute necessary ingredient of offence of murder.

Muhammad Sher alias Malang v. The State PLD 2001 SC 90; Muhammad Adam and others v. The State and others 2001 SCMR 223 and Waris Khan v. The State 2001 SCMR 387 ref.

Abdul Majeed Chishti for Appellant.

Imtiaz Chaudhry for Respondent.

Date of hearing; 7th December, 2004.

2005 Y L R 965

[Lahore]

Before Syed Jamshed Ali, J

ABDUL MAJEED and others---Petitioners

versus

ASSISTANT COMMISSIONER/ COLLECTOR, AS NOTIFIED OFFICER OKARA and others---Respondents

Writ Petitions Nos.322/R of 1994, 17/R of 1995 and Crl. Org. No.881 of 1998, heard on 17th September, 2003.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss.2 & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of land in excess to entitlement of allottee---Land in dispute was allotted to predecessors of petitioners by Assistant Settlement and Rehabilitation Commissioner but on appeal filed by predecessor of respondents who was sitting allottee of land in dispute, Deputy Settlement Commissioner, cancelled allotment made in favour of petitioners with directions that after satisfying claim of respondent, if some area was available, same would be retained by petitioners against their verified valid entitlement---Parties agreed for allotment of land in favour of respondent equivalent to 616 P.I.Us for which he was held entitled, but Notified Officer wrongly working out entitlement of respondent allotted land to him equivalent to 734 P.I.Us. including ‘Beshi’ which was in excess to his entitlement---Order of Notified Officer allotting land to respondent in excess to his entitlement passed ignoring the compromise between parties, was not maintainable---High Court allowing petitions, declared order of Notified Officer as without lawful authority and case was remanded to be decided afresh in accordance with law and facts of case.

Mahmmood Ahmad Alwari for Petitioners.

Nemo for Respondents.

Date of hearing: 17th September, 2003.

2005 Y L R 980

[Lahore]

Before Ch. Iftikhar Hussain, J

SARFRAZ alias MATTU---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 1522 of 2002, heard on 15th June, 2004.

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

----S. 7(c)---Explosive Substances Act (XI of 1908), S.5---Qanun-e-Shahadat (10 of 1984), Art.22---Appreciation of evidence---Accused was put to identification test after more than ten months of the incident---Witness had not identified the accused in the identification parade with reference to his role in the Commission of the crime---Magistrate had admitted in his cross-examination that the accused had raised objection before the identification parade that he had already been shown to the witnesses in the police station---Such an identification parade carried no value in the eye of law and the identification of the accused before the Trial Court after such a long time was also of no consequence---No evidence was available on record to connect the accused with the commission of the offence---Accused was extended the benefit of doubt and acquitted in circumstances.

Mehmood Ahmad and 2 others v. State 1995 SCMR 127; Ghulam Nabi v. The State 2002 PCr.LJ 349; Ghulam Abbas v. The State 2002 YLR 1759; Murid Abbas and 2 others v. The State and 2 others 1992 SCMR 338; State through Advocate General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Mehboob Ali v. The State 1991 MLD 2455 and Waheed Ahmad v. The State 2000 YLR 1756 ref.

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

----S. 7(c)---Explosive Substances Act (XI of 1908), S.5--- Qanun-e-Shahadat (10 of 1984), Art.22---Appreciation of evidence---Identification parade---Identification of accused in the identification parade by a witness without referenced to his role in the commission of the crime is of no evidentiary value.

Mehmood Ahmad and 2 others v. State PLJ 1995 SC 1 ref.

Syed Shakir Ali Rizvi for Appellant.

Muhammad Azam for the State.

Dates of hearing: 2nd and 15th June, 2004.

2005 Y L R 985

[Lahore]

Before Ijaz Ahmad Chaudhry and Muhammad Farrukh Mahmud, JJ

Haji BASHIR AHMAD---Appellant

versus

THE STATE---Respondent

Murder Reference No. 45 of 2003 and Criminal Appeal No. 247 of 2003, decided on 14th September, 2004.

Penal Code (XLV of 1860)---

----Ss. 295-A & 295-C---Criminal Procedure Code (V of 1898), S. 374---Appreciation of evidence---Defiling words highlighted in F.I.R. had constituted offence against accused under S. 295-C, P.P.C.---Prosecution, in order to prove its case against accused, had produced four prosecution witnesses along with five audio cassettes allegedly containing derogatory remarks uttered by accused on different occasions in his own voice---No enmity, mala fide, ill-will, grudge and ulterior motive had been found on part of prosecution witnesses against accused to falsely implicate him in such a heinous offence entailing capital punishment---All prosecution witnesses were independent and trustworthy and there was no reason to disbelieve them---No contradiction was found in the statements of prosecution witnesses regarding nature of allegation against accused---Accused, while appearing as defence witness, had categorically stated that none of prosecution witnesses had any ill-will or grudge against him to falsely implicate him in the case---Prosecution had been able to prove its case against accused beyond any shadow of doubt through oral statements of prosecution witnesses---Moreover resolution approved by Tehsil Council concerned on application submitted by complainant, had shown that people of the city were taking out processions against nefarious act of accused and it had eliminated the possibility of false implication of accused by prosecution witnesses for any mala fide or ulterior motive---Audio cassettes allegedly recording derogatory remarks uttered by accused, which even otherwise were only produced as corroborative piece of evidence, however, were not to be relied upon as from the record it was not clear that voice recorded therein was confronted to accused at the trial---One of defence witnesses was close relative of accused and other one was his tenant---None of said defence witnesses appeared during investigation to plead innocence of accused and during cross-examination they explained that for the first time they appeared as defence witnesses in the Court and that too on the asking of sons of accused---Statements of said defence witnesses could not be preferred over the statements of prosecution witnesses whose statements could not be shaken during cross-examination and they proved to be trustworthy---To constitute offence under S.295-C, P.P.C. number of witnesses were not required and it was not necessary that such abusive language against Holy Prophet (P.B.U.H.) should be made loudly in public or in a meeting or at some specific place, but statement of single witness that some body had made utterance for the contempt of Holy Prophet (P.B.U.H.) even inside the house was sufficient to award death penalty to such contemnor---In absence of jurisdiction for award of lesser punishment, death sentence awarded to accused by Trial Court was confirmed---Appeal filed by accused having no merits, was dismissed and impugned judgment was maintained---Murder reference was answered in affirmation and death sentence of accused was confirmed.

PLD 2002 SC 1048;; 2002 YLR 1273 and PLD 2002 Lah. 587 ref.

Ch. Muhammad Rafique Nasir for Appellant.

Tallat Mahmood Kakezai for the Complainant.

Shaheen Masood Rizvi, A.A.-G. for the State.

Date of hearing: 14th September, 2004.

2005 Y L R 994

[Lahore]

Before Ch. Iftikhar Hussain, J

SAJJAD AHMAD and 3 others---Petitoners

versus

THE STATE---Respondent

Crl. Revision No.453 of 2003, decided on 2nd July, 2004.

Penal Code (XLV of 1860)---

----Ss. 409/379/411/109---Forest Act (XVI of 1927), S.68---Criminal Procedure Code (V of 1898), S.439---Revision petition---Petition of accused under S.249-A, Cr.P.C. dismissed by Trial Court---Validity---Accused admittedly were neither the public servants nor they were in any way entrusted with the suspected property or had dominion over the same---Provisions of S.409, P.P.C., therefore, were not attracted against the accused---Compensation/loss to the Forest Department assessed at Rs.47,500 had been paid by the accused---Forester and Block officer under the law were competent to compound the Forest offence within the area of their jurisdiction---On payment of value of the suspected stolen property the accused were not to be proceeded against and they were to be discharged, as provided by S.68 of the Forest Act, 1927---No proceedings against the accused for the theft of the Forest wood, thus, were called for as the same would amount to mere abuse of the process of the Court---Impugned order was consequently set aside and the accused were acquitted of the charge---Revision petition was accepted accordingly.

Javed Ahmad Khan for Petitoners.

Ch. Liaqat Ali Sial for the State.

2005 Y L R 998

[Lahore]

Before Mian Hamid Farooq, J

HAMEED AKHTAR---Petitioner

versus

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and another---Respondents

Writ Petitions Nos. 17956 and 18234 to 18237 of 2004, decided on 23rd November, 2004.

West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grant of proprietary rights in land under Lamberdari grants---Suo motu review power---Exercise of---Petitioners who were Lamberdars, were granted proprietary rights, qua the land in their possession according to the price assessed by District Authorities, vide consolidated order passed by Member (Colonies) Board of Revenue---While petitioners were enjoying the benefits of said property with full rights, Member (Colonies) without issuance of any notice to the petitioners and in purported exercise of his review jurisdiction under S. 8 of West Pakistan Board of Revenue Act, 1957, himself condoning the delay in reviewing the order, recalled and reviewed all orders passed earlier for grant of proprietary rights under Lamberdari grants---Validity---Under provisions of S. 8 of West Pakistan Board of Revenue Act, 1957, Board could only exercise review jurisdiction on the application of any person who felt aggrieved by decree or order passed by the Board and Board after giving notice to affected parties and after hearing them, could pass order thereon---Every application for review of order would be made within 90 days from date of order---None had filed any application in the present case for review of the order within ninety days from the date of passing of latest order, Board had no powers to suo motu exercise powers to review its order---No notice was issued to petitioners who were really affected by impugned order before passing the order---Petitioners, had been condemned unheard and impugned order otherwise being violative of principles of natural justice, could not be maintained which was declared illegal, without jurisdiction and having no legal effect by High Court in exercise of its Constitutional jurisdiction.

Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 and Omar Din and others v. Member (Colonies), Board of Revenue and others 1984 CLC 17 ref.

Maik Abdul Sattar Chughtai for Petitioners.

Misbah-ul-Islam, A.A.-G. for Respondents.

Date of hearing: 23rd November, 2004.

2005 Y L R 1002

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

TAHIR BASHIR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 218 of 2001, heard on 15th June, 2004.

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

----S. 9(c)---Appreciation of evidence---Recovery witnesses, nodoubt, belonged to police department, but they were independent witnesses having no reason to falsely implicate the accused in the case---Recovery evidence was unanimous and did not suffer from any material contradiction or discrepancy---Positive reports of the Chemical Examiner bearing his signature and the seal of his office had established the recovery of “Charas” and “Heroin” from the possession of accused---Defence version was simply a fabrication and an afterthought---Conviction of accused was maintained in circumstances---Accused, however, was a first offender and had suffered detention as an under trial prisoner and a convict for about six years---Sentence of accused, therefore, was reduced from 14 year’s R.I. to 8 year’s R.I.---Appeal was disposed of accordingly.

Gul v. The State PLD 1977 Kar. 1019; Shafa Ullah and another v. The State 1984 PCr.LJ 3195 distinguished.

The State v. Noor Ahmad alias Thola and 3 others 1991 PCr.LJ 2007 ref.

Rafique Ahmad Qureshi for Appellant.

S.A. Irshad for the State.

Date of hearing: 15th June, 2004.

2005 Y L R 1007

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

NAZEER AHMED and others---Appellants

versus

THE STATE---Respondent

Crl. Appeal No. 349/J and Criminal Revision No.796 of 2000, decided on 1st December, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Accused allegedly raised Lalkara---No seat of injury whatsoever had been given in the complaint as to where the shot fired by accused hit deceased---Clear conflict existed between ocular account and medical evidence---No crime empty of .12 bore gun with which accused was allegedly armed at time of occurrence was recovered from the spot---Mere recovery of fire-arm on the pointation of accused, would not support case of prosecution---No source of light was stated in F.I.R. though it was lodged with a delay of five hours and thirty minutes, but in site-plan two electric bulbs were shown---Such was also a dishonest improvement on the part of prosecution---Identification of accused who allegedly fired at deceased and injured prosecution witnesses had not been proved---Ocular account was not corroborated by medical evidence---No positive report of Fire-arms Expert was available and motive was not proved---Participation of accused in the incident was of doubtful nature---Conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of charge and was ordered to be released.

2004 SCMR 1703 ref.

Zafar Iqbal Chohan for Appellants.

Sardar Abdul Majeed Dogar for the Complainant.

Riasat Ali for the State.

Date of hearing: 1st December, 2004.

2005 Y L R 1011

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Hakim Ali, JJ

SHAH NAWAZ alias SHANI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.145 and Murder Reference No.27 of 2000, heard on 19th April, 2004.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence---Accused was convicted and sentenced to death for committing murder of deceased---Prosecution witnesses though related to deceased, but had stood the test of cross-examination---Statements of said prosecution witnesses were corroborated by circumstances that F.I.R. was lodged promptly, post-mortem examination of dead body was conducted on the same night and empties recovered from the spot wedded with rifle recovered at the instance of accused---Medical evidence also supported ocular version---Counsel for accused, in circumstances, had submitted that instead of pressing appeal on merits he would pray for reduction of sentence awarded to accused---Earlier deceased had murdered father of accused while accused was only 2/3 years old---After committing murder, deceased removed one of the legs of father of accused and his dead body had to be buried without leg---Subsequently imputed leg was returned which was buried later---In such-like cases superior Courts had reduced sentence of death to imprisonment for life---In certain cases superior Courts had taken lenient view where father of accused was murdered by deceased earlier some 12/13 years back---High Court, in circumstances convicted accused for causing murder of deceased for offence under S.302(b), P.P.C. and reduced sentence of death awarded to accused by Trial Court to imprisonment for life accordingly.

Zulfiqar alias Bhutto v. The State 1995 SCMR 1668; Zulfiqar and 5 others v. The State 1974 PCr.LJ 100; Shera and others v. The State 1976 PCr.LJ 1028; Sambali Khan v. The State 1999 PCr.LJ 1611; Muhammad Aslam v. The State PLD 1985 SC 257 and Ajun Shah v. The State PLD 1967 SC 185 ref.

Mumtaz Mustafa for Appellant.

M. A. Farazi for the State.

A.R. Tayyib and Malik Sajid Faroze for the Complainant.

Dates of hearing: 14th and 19th April, 2004.

2005 Y L R 1017

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD WARYAM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.124/J of 2002, heard on 3rd June, 2004.

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

----S. 302(c)---Appreciation of evidence---Accused had murdered deceased and his own daughter when he saw them in a compromising position and that too in the month of holy Ramazan---If prosecution evidence was unreliable or untrustworthy, then defence plea was to be accepted in its entirety and given effect to and not a part accepted and a part rejected---Dead bodies of both deceased having been found in the house of accused, deceased having visited the house of accused at night time on odd hours and positive report of Chemical Examiner with regard to vaginal swabs of deceased daughter of accused, defence plea of accused that he committed murder of both deceased under grave and sudden provocation and on account of Ghairat, was fully proved and inspired confidence---Conviction of accused was maintained under S. 302(c), P.P.C., but his sentence was reduced to one already undergone by him and was released.

(b) Criminal trial---

----Appreciation of evidence---If prosecution evidence was untrustworthy, then defence plea was to be accepted in its entirety and given effect to and not a part accepted and a part rejected.

Muhammad Nazir v. Tariq and another 1992 SCMR 983 ref.

Muhammad Abid Ali Tahir for Appellant (at State expenses).

Asif Khalil for the State.

Date of hearing: 3rd June, 2004.

2005 Y L R 1019

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

NAZIM PALY SOCK LIMITED---Appellant

versus

COLLECTOR OF CUSTOMS CONTROL EXCISE---Respondent

Customs Appeals Nos.90, 91, 92 and E.A. No.170/LB, 171/LB and 173/LB of 1999, decided on 31st January, 2005.

General Clauses Act (X of 1897)---

----S.24-A (as inserted by General Clauses (Amendment) Act (XI of 1997)]---Speaking or judicial order---Essential elements stated.

Sketchy, slipshod and devoid of reasons judgment cannot be called a speaking or judicial order within the parameters of law. As per section 24-A of General Clauses Act, 1897, it has been enjoined upon an executive authority to give reasons for making the order. Judicial order must be a speaking order manifesting by itself that the Court/Tribunal has applied its judicial mind to the issues and points of controversy involved in the causes. When reasons are not forthcoming, then the Appellate Court would be deprived of the views of the Subordinate Court. Impugned judgments, which are not speaking orders and devoid of reasons, would not be sustainable in law being in contravention of law declared by Supreme Court in various cases.

Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others PLD 1959 SC (Pak.) 272; Gouranga Mohan Sikdar v. The Controller Import and Export and 2 others PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others 1984 SCMR 1014 rel.

Abid Hussain Chattha for Appellant.

A. Karim Malik for Respondent.

Date of hearing: 31st January, 2005.

2005 Y L R 1021

[Lahore]

Before Mian Muhammad Akram Baitu, J

KHUSHI MUHAMMAD---Petitioner

versus

DIVISIONAL CANAL OFFICER, LAYYAH, and another---Respondents

Writ Petition No.673 of 2004, decided on 6th April, 2004.

Canal and Drainage Act (VIII of 1873)---

----S. 68-A---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Restoration of dismantled ‘Khal’---Petitioner allegedly had established a ‘Khal’ for his personal use---Subsequently when petitioner dismantled said ‘Khal’, respondent submitted an application to the Authority for restoration of said ‘Khal’---Authority without holding any inquiry and taking preliminary steps, restored said water course/Khal under S. 68-A of Canal and Drainage Act, 1873---Petitioner had alleged that the Authority was bound under S. 68-A of Canal and Drainage Act, 1873, first to make an inquiry and then to pass order and that petitioner being necessary party was not afforded opportunity of hearing---Respondent had contended that Khal in question was in existence since long and he was irrigating his land therefrom for the last more than 30 years and Authority was justified while passing impugned order---Validity---Contention of respondent seemed to be correct because his land was being irrigated through Khal in question for the last 30 years and petitioner was not justified to dismantle the same---Authority was justified in passing the impugned order---Proper course for the petitioner was to approach Civil Court of competent jurisdiction for the redressal of his grievance---Impugned order could not be interfered with by High Court in exercise of discretionary Constitutional jurisdiction.

Malik Muhammad Latif Khokhar for Petitioner.

Rana Jahanzaib Khan for Respondents.

Manzoor Hussain, S.D.C.O.

2005 Y L R 1023

[Lahore]

Before Umar Ata Bandial, J

Mst. FARZANA ---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION, DARYA KHAN DISTRICT BHAKKAR and 2 others ---Respondents

Writ Petition No. 1005 of 2005, decided on 19th January, 2005.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Accused being sui juris had contracted marriage of her free-will and her husband was also present in the Court---Respondents having been distressed by her independent choice were using police authorities to exert pressure on the accused to abandon her marriage---Validity---Police Officer could not use his authority as instrument in affecting the course of private disputes falling outside any registered criminal case or investigation in his record---Present case involved a civil dispute---Police officer was, therefore, directed not to harass the accused illegally if they were not required for investigation in any criminal case---Constitutional petition was disposed of accordingly.

Nasim Ullah Khan Niazi along with couple.

2005 Y L R 1024(1)

[Lahore]

Before Bashir A. Mujahid and Ch. Iftikhar Hussain, JJ

MUHAMMAD SAJID---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.1 of 2004 in Criminal Appeal No.98 of 2004, decided on 20th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 426---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Suspension of sentence---Accused had served out one half of sentence and no likelihood was of early hearing of appeal and in case his appeal was decided in routine, he would serve out his entire sentence---Sentence of accused was suspended accordingly.

Muhammad Qadeer Asif Toor for Petitioner.

Masood Sabir for the State.

2005 Y L R 1027

[Lahore]

Before Khawaja Muhammad Sharif, J

QAISER MEHMOOD alias QAISARU---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.2207 of 2003, heard on 7th June, 2004.

Penal Code (XLV of 1860)---

----Ss. 324/353---Anti-Terrorism Act (XXVII of 1997), S. 7(b) & (h)---Appreciation of evidence---Accused was not arrested at the spot, while his co-accused, who were arrested at the spot, had been acquitted---Prosecution was unable to distinguish case of accused from the case of acquitted co-accused---Conviction of accused under S.7(b)(h) of Anti-Terrorism Act, 1997 and S.353, P.P.C., was set aside, but sentence awarded to accused which he had already undergone, was treated to be sufficient to meet the ends of justice---Accused was ordered to be released.

Ch. Imtiaz Ahmad Wahga for Appellant.

Miss Zarqa Bashir for the State.

Date of hearing: 7th June, 2004.

2005 Y L R 1029

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FAROOQ AHMAD---Petitioner

versus

THE STATE---Respondent

Crl. Revision No.126 of 2004, decided on 21st April, 2004.

Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Penal Code (XLV of 1860), S.302---Application for declaring accused as Juvenile---After completion of investigation, report under S.173 was submitted in the Court---Charge was framed and evidence of eight witnesses was recorded---Only statement of Investigating Officer was yet to be recorded, when accused moved application under S.7 of Juvenile Justice System Ordinance, 2000 for his medical examination and for declaring him as Juvenile, whereupon inquiry was conducted by Trial Court and application filed by accused was dismissed---Headmaster of School concerned had produced record which unrebuttedly showed the date of birth of accused according to which accused was more than 18 years old at the time of commission of offence---From documents produced on record age of accused having been proved beyond doubt, there was no need to call for Medical Expert Opinion regarding age of accused---Order of Trial Court dismissing application of accused not suffering from any illegality and there being nothing on record to prima facie show that accused was less than 18 years of age, revision petition against order of Trial Court was dismissed.

Allah Bakhsh Khan Kulachi for Petitioner.

2005 Y L R 1031

[Lahore]

Before Mian Saqib Nisar, J

NADIR KHAN---Petitioner

versus

INAYAT---Respondent

C.R. No.372 of 2000, heard on 8th December, 2003.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Proof---Defendant had conceded claim of plaintiff on proposition of superior right of pre-emption and only contest remained between the parties was about Talbs---Courts below concurrently decreed suit recording finding with regard to making of Talbs in favour of plaintiff and against defendant---No independent proof was available on record about making of Talb-e-Muwathibat except evidence of plaintiff and his witness, who was his first cousin and contradiction and discrepancies were existing in their statements with regard to time and place of acquiring knowledge of sale of suit property and making of Talb-e-Muwathibat---Such glaring contradictions and discrepancies were overlooked by Courts below---Effect---Plaintiff had failed to prove Talb-e-Muwathibat which condition was sine qua non for sustaining and enforcing a right of pre-emption---Even if notice of Talb-e-Ishhad had been proved, plaintiff was not entitled to decree for pre-emption in his favour---High Court allowing revision petition, set aside impugned concurrent judgments and decrees and reversed findings of Courts below on issue of Talbs and suit filed by plaintiff was dismissed with costs throughout.

Zia-ud-Din Kasuri for Petitioner.

Muhammad Farooq Bedar and M. Shahid Rana for Respondent.

Date of hearing: 8th December, 2003.

2005 Y L R 1033

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FAYYAZ MEHMOOD KHAN and another---Petitioners

versus

THE STATE---Respondent

Crl. Rev. No.122 of 2000, heard on 14th June, 2004.

Penal Code (XLV of 1860)---

----S. 337-A(ii)/34---Appreciation of evidence---Courts below having disbelieved the story of administering poison to the lady prosecution witness had already acquitted the accused of the charge under S.337-J, P.P.C. which had attained finality and as such the bone of contention alleged for the occurrence was not proved---Recording of statement of the said lady witness under S.161, Cr.P.C. after more than seven months of the occurrence had led to the inference that initially she was not ready to support the prosecution story and even otherwise she according to the complainant’s own version was unconscious at the time of incident---Other eye-witnesses were either chance witnesses or had made improvements in their statements at the trial and contradicted other witnesses---Ocular testimony was in conflict with medical evidence---None of the independent witnesses from the vicinity gathered at the spot was produced either during investigation or at the trial to corroborate the version of the complainant---Trial Court as well as the Appellate Court had misread and non-read the evidence on record and committed material irregularity in relying on the statement of the complainant---Accused were acquitted in circumstances on benefit of doubt.

Syed Athar Hassan Bokhari and Rashid Murtaza Qureshi for Petitioners.

Abdul Sattar Bhatto for the Complainant.

Muhammad Masood Sabir and Ch. Ghulam Muhammad for the State.

Date of hearing: 14th June, 2004.

2005 Y L R 1037

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD AKRAM---Petitioner

versus

ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 6 others---Respondents

Writ Petition No.1129 of 2000, heard on 1st July, 2004.

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

----S.249-A---Power of Magistrate to acquit accused at any stage---No power to dis-charge---Section 249-A, Cr.P.C. empowers the Magistrate to acquit the accused at any stage of the proceedings---Power to discharge the accused is not available under S.249-A, Cr.P.C.

(b) Criminal trial---

----Discharge---Discharge is different from acquittal---Discharge can be on account of absence of the complainant and not on the merits of the case---Accused discharged on police report under S.173, Cr.P.C. or discharged on having been declared innocent by the police, are some of the instances.

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

----Ss.249-A, 417(2-A) & 439(5)---Penal Code (XLV of 1860), S.427---Constitution of Pakistan (1973), Art.199---Constitutional petition---Sessions Court through the impugned judgment had dismissed the revision petition filed by the complainant against the acquittal of accused by the trial Court under S.249-A, Cr.P.C. on the ground of being not competent---Acquittal recorded by the competent Court on recording of evidence or without recording evidence would not determine the remedy of revision or appeal, the same being governed by the statutory provisions of law---Complainant aggrieved by the order of acquittal of accused by the Trial Court had the right to file an appeal under S.417(2-A), Cr.P.C. and in the presence of remedy by way of appeal, the revision petition filed by him was not competent under S.439(5), Cr.P.C.---The same had been rightly dismissed by the Sessions Court---Constitutional petition was dismissed accordingly---[ Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 dissented from].

Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 dissented from.

Liaqat Ali v. Muhammad Saleem Shahzad and others 2000 YLR 629; Faqir Muhammad v. State and others 2001 PCr.LJ 444; Pervez Muzammil Khan and 5 others v. Muhammad Anis and another 2002 PCr.LJ. 2072 and Ghulam Muhammad v. Additional Sessions Judge and 3 others 1998 MLD 1605 ref.

Sheikh Muhammad Suleman for Petitioner.

Ghulam Asghar Khokhar for Respondents Nos.3 to 6.

Syed Sajjad Hussain Shah, Assistant Advocate-General for the State.

Date of hearing: 1st July, 2004.

2005 Y L R 1040

[Lahore]

Before Sh. Hakim Ali, J

SHAUKAT ALI---Appellant

versus

D.P.O. and others---Respondents

Cr. M. No.52-H of 2004/BWP, decided on 12th July, 2004.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas Corpus application---Application earlier filed by applicant before Sessions Judge having been dismissed, he had filed the same before High Court---To get recovery of detinus under S.491, Cr.P.C., read with S.561-A, Cr.P.C., it was necessary that whereabouts of detinus and place should be mentioned or pointed out by applicant---Applicant had not been able to locate and disclose any such place from where recovery of detinus could be made---Registration of F.I.R. with regard to occurrence, had already been made so as to trace rest of accused and recover alleged detinus---Application, in circumstances was rightly dismissed by Sessions Judge---Applicant could approach local police with whom investigation was in progress, if he was not satisfied with progress of investigation.

Tariq Mehmood Khan for Petitioner.

2005 Y L R 1041

[Lahore]

Before Sardar Muhammad Aslam, J

TARIQ KHAN---Petitioner

versus

STATION HOUSE OFFICER and 3 others---Respondents

Writ Petition No.1132 of 2004, decided on 21st July, 2004.

(a) Prevention of Gambling Act (XXVIII of 1977)---

----Ss.6, 8 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---S.H.O. had neglected to follow the mandate of law and did not adhere to the procedure prescribed by S.8 of the Prevention of Gambling Act, 1977---Whether it was an omission, a bona fide mistake or a wanton exercise by the complainant, such omission was unlawful and would not entail conviction---Presumption attached to regularity of the raid under S.9 of the said Act was not available to the proceedings and the continuation of the same amounted to a sheer abuse of process of law and wastage of precious time---Proceedings arising out of the impugned F.I.R. were quashed in circumstances and the Constitutional petition was accepted accordingly.

(b) Administration of justice---

----Thing required by law to be done in the prescribed manner should be done in that manner alone and any other course adopted in the performance of the said act will be deemed to be unlawful to which no sanctity will be attached.

Malik Waheed Anjum for Petitioner.

Syed Sajjad Hussain Shah, A.A.-G.

2005 Y L R 1043

[Lahore]

Before Ch. Iftikhar Hussain, J

GHULAM ABBAS---Appellant

versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2004 in Crl. Appeal No.430 of 2004, decided on 14th July, 2004.

Criminal Procedure Code (V of 1898)---

----Ss.426, 496, 497, 498 & 91---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence---Accused who filed application for suspension of sentence had contended that as he had been convicted and sentenced in a private complaint, he could be released on bail by suspending his sentence in accordance with spirit of S.91, Cr.P.C.---Accused had further contended that same principles as were relevant for release of an accused on bail under Ss.496, 497 & 498, Cr.P.C. would govern question of suspension of sentence of a convict---Validity---Accused, in the present case, had been ascribed fatal shot to deceased and after due appreciation of evidence he had been found guilty of Qatl-e-Amd of deceased---Object of S.91, Cr.P.C. was only to secure attendance/appearance of a person whose presence could be required by the Court in relation to some matter before it---Position in case of accused was altogether different as accused, after due appreciation of evidence, was found guilty of charge of Qatl-e-Amd of deceased and was convicted and sentenced accordingly---Provisions of S.91, Cr.P.C. could not be attracted in case of accused for suspending his sentence---Contention that same principles would be applicable in considering question of suspension of sentence under S.426, Cr.P.C. as were relevant for grant or refusal of bail with reference to Ss.496, 497, 498, Cr.P.C., though had force, but in view of the act ascribed to accused in commission of offence he was not entitled to be released on bail by suspending his sentence---Other contentions raised by accused required appraisal of evidence on record and deeper appreciation for determination of the case, which exercise could not be undertaken at bail stage.

Abdus Sami Khawaja for Appellant.

Ms. Nafeesa Bhatti for the State.

2005 Y L R 1045

[Lahore]

Before Sh. Abdur Rashid, J

MUHAMMAD RAMZAN alias JANI---Petitioner

versus

THE STATE---Respondent

Criminal Revision No.337 of 2004, heard on 13th July 2004.

Penal Code (XLV of 1860)---

----S.392---Criminal Procedure Code (V of 1898), S.439---Appreciation of evidence--- Prosecution not only had failed to produce Magistrate, who had held identification parade, but had also failed to bring on file identification parade proceedings wherefrom identity of accused could be established as one of culprits---Investigating Officer found accused and his companions innocent---Investigating Officer having not been cross-examined, his statement stood accepted by prosecution, in circumstances---Both Courts below, while recording conviction of accused, had not only misread facts, but also had erred in law---Conviction and sentence recorded against accused were set aside and he was acquitted of the charge.

Hafiz Khalil Ahmed for Petitioner.

Mushtaq Ahmed Bhatti for the State.

Date of hearing: 13th July 2004.

2005 Y L R 1047

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. NAYYARA NAUREEN alias SHAZIA---Appellant

versus

MUHAMMAD ARIF BUTT SABRI---Respondent

Criminal Miscellaneous No.504-H of 2004, decided on 7th September, 2004.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition---Illegal custody of minor children---Petitioner’s own version in petition under S.491, Cr.P.C. was that minor children were in the house of respondent who was father of said children, when she was turned out by respondent from there---Case was not of removal of said children by respondent from custody of petitioner---Minor children were living with respondent for the last about 1-1/2 years and petitioner herself had admitted it to be so---Petitioner had also admitted that children were more familiar to respondent than her---Minor children were with respondent with all ease and familiarity---Petitioner had also brought an application under S.25 of Guardians and Wards Act, 1890 before Guardian Court for the custody of minor children and had moved an application under S.12 of Guardian & Wards Act, 1890 for interim custody of children---Could not, in circumstances be said that it was a case of illegal custody of minor children with respondent/father of children---Petition being without force, was dismissed.

Naziha Ghazali v. The State and another 2001 SCMR 1782 ref.

Muhammad Hanif Niazi for Petitioner.

Rafique Javed Butt for Respondent.

2005 Y L R 1048

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD QASIM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.666-B of 2001, decided on 25th October, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.382 & 411---Bail, grant of---No weapon of offence was recovered from accused during the investigation---One of Investigating Officer who was D.S.P. found the case to the extent of snatching of vehicle by accused as false---Accused was no more required for investigation and was admitted to bail, in circumstances.

N. A. Butt for Petitioner.

Abdul Qayyum Anjum for the State.

2005 Y L R 1049

[Lahore]

Before Ch. Iftikhar Hussain, J

MAQSOOD AHMAD---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.1/B of 2003 in Criminal Appeal No.1544 of 2003, decided on 16th October, 2003.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.320---Suspension of sentence---Offence under S.320, P.P.C. was bailable---Principles governing the question of grant or otherwise of bail to an under trial prisoner were also relevant to the question of suspension or otherwise of sentence of a convict---Sentence of accused was short (two years) while his appeal was not likely to be heard in the near future, rather it was very much likely that he might suffer his entire sentence in Jail before the hearing of his appeal---Release of accused would also facilitate to enable him to earn for payment of Diyat---Sentence of accused was suspended in circumstances and he was released on bail accordingly.

Abdul Hameed v. The State 2001 MLD 1577 ref.

Qaiser Abbas Qaiser for Appellant.

Ashfaq Ahmad Chaudhry for the State.

2005 Y L R 1050

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ABBAS---Petitioner

versus

THE STATE---Respondent

Cr. Miscellaneous No.6806-B of 2004, decided on 17th December, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/301/120-B/148/149/109---Bail, grant of---Further inquiry---F.I.R. did not contain names of any of accused persons---After about four months of occurrence father of complainant moved an application in which four persons were alleged to be perpetrators of crime, but even said application did not contain names of accused---Name of accused surfaced for the first time in the supplementary statement made by complainant himself after about six months of occurrence---Only material available against accused was the supplementary statement and apart from that no worthwhile material was available on record which could connect accused with alleged crime---Accused initially had been declared innocent by Investigating Officer, but later on Superintendent of Police, who conducted investigation, found him guilty apparently without bringing any fresh material on record; it could not be said, in circumstances that reasonable grounds appeared to exist against accused disclosing his complicity in the crime---Almost two years had elapsed and the trial had not commenced---Case of accused pre-eminently being one of further inquiry within meaning of subsection (2) of S.497, Cr.P.C., accused was admitted to bail.

Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Yousaf Javaid Phaphra for Petitioner.

Saifullah Khalid for the State with Muhammad Yar, A.S.-I.

2005 Y L R 1053

[Lahore]

Before Ch. Iftikhar Hussain, J

FIDA HUSSAIN and 3 others---Petitioners

versus

THE STATE---Respondent

Cr. R. No.811 of 2004, decided on 28th September, 2004.

Criminal Procedure Code (V of 1898)---

----Ss.265-C, 435, 439---Penal Code (XLV of 1860), Ss.302/324/34---Application for supply of copies of statement of witnesses recorded by Investigating Officer during investigation---Dismissal of application---Petitioners/accused moved application to Trial Court for supply of copies of documents of certain witnesses examined in their defence during investigation---Trial Court ordered to supply copies of statements of witnesses, except of those exmained in their defence---Persons, the copies of whose statements were required by petitioner, had been examined during investigation and they had direct or indirect knowledge of fact of which they had made statements during investigation---High Court accepting revision filed by petitioner set aside order of Trial Court to the extent of non-supply of copies of statements of witnesses recorded during investigation in petitioner’s defence with direction to Trial Court to supply petitioners copies of statements of witnesses as required by them and to proceed further in the matter in accordance with law.

Ahmad Hassan and 2 others v. The State 2002 PCr.LJ 629 Lah. and Muhammad Riaz and another v. State PLD 2003 Lah 290 ref.

Zafar Iqbal Chohan for Petitioners.

Khurshid Anwar Bhindar, Additional Advocate-General for the State.

Date of hearing: 28th September, 2004.

2005 Y L R 1054

[Lahore]

Before Khawaja Muhammad Sharif, J

FAKHAR HUSSAIN---Petitioner

versus

THE STATE---Respondent

Crl. Miscellaneous No.8693-B of 2004, decided on 6th December, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.452/324/448/ 511/ 429/ 380/ 148/ 149---Bail, grant of---Further inquiry---Accused was found innocent by police in investigation and application was submitted for discharge of accused, but Magistrate did not agree with said report of discharge---No recovery was effected from accused---No human being was injured and only one cattle had died and two others were injured---Case of accused being of further inquiry falling under subsection (2) of S.497, Cr.P.C., accused was allowed bail.

M. A. Zafar for Petitioner.

Abaid Ullah Khan Masood for the State.

Date of hearing: 6th December, 2004.

2005 Y L R 1055

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SALEEM AKRAM---Petitioner

versus

THE STATE---Respondent

Crl. Miscellaneous No.3136-B of 2004, decided on 20th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 379/411---Pre-arrest bail, grant of---Accused had alleged that some dispute existed between the parties with regard to a tractor which was purchased by his grand father from the complainant---Suit had also been filed by grand father of accused which was patched up and complainant agreed to give his allegedly stolen rotavator as well as some cash to him for return of Tractor---Tractor was delivered back to complainant who himself handed over disputed rotavator to grand father of accused and when he raised demand of remaining amount, present false case was got registered as a counter blast---Contentions raised by accused with regard to civil suit and agreement between parties found support from documents placed on record---Copy of plaint of said earlier suit also had established that parties had a dispute over same Tractor---Copy of agreement had also been produced---Registration of case against accused with said background could be a result of mala fides on the part of complainant to avoid payment of remaining amount to his grand father in lieu of Tractor---Even otherwise, recovery of alleged stolen rotavator had been effected---Sending accused to lock-up would not serve any better purpose to prosecution---Accused having succeeded in making out a case entitling him to pre-arrest bail, interim bail already granted to him was confirmed.

Nadir Manzoor Dogar for Petitioner.

Sh. Arshad Ali for the State.

2005 Y L R 1057

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. NOOR JEHAN and another---Appellants

versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2004 in Criminal Appeal No.1604 of 2004, decided on 3rd December, 2004.

Criminal Procedure Code (V of 1898)---

----Ss.426 & 497(1)---Penal Code (XLV of 1860), S.302/34---Suspension of sentence---Co-accused of petitioners/accused were acquitted from the case---Petitioners were women and their case was covered by first proviso to S.497(1), Cr.P.C. which provision was also applicable while dealing with petition for suspension of sentence---Sentence of petitioners was suspended and they were directed to be released on bail subject to their furnishing bail bond.

M. A. Zafar for Appellants.

Pervez Akbar for the State.

2005 Y L R 1058

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Tanvir Bashir Ansari , JJ

MUHAMMAD RIAZ and another---Appellants

versus

THE STATE---Respondent

Cr. Appeal No.1440 of 2000, M.R. No.583 of 2000 and Criminal Revision No.760 of 2000, heard on 9th December, 2004.

Penal Code (XLV of 1860)---

----Ss. 302(a)/34---Appreciation of evidence---Sentence, reduction in---Accused had confined their submission only to the aspect of reduction in sentence and had referred to evidence on record in that context alone---Statement made by complainant and prosecution witness did not establish the manner in which occurrence was stated by them to have taken place---Time of occurrence was not stated in F.I.R.---Was not explained as to why eye-witness reached place of occurrence after 15 minutes of alleged dragging of deceased inside the house of accused when they were only at distance of 30/35 yards from deceased at the time of occurrence---Details of occurrence as alleged by prosecution, were shrouded in mystery---Judgment of conviction recorded by Trial Court could not be differed from, but sentence of death awarded to accused was excessive and was not warranted under circumstances---Death sentence awarded to accused, was converted into imprisonment for life with benefit of S.382, Cr.P.C.

M. A. Zafar for Appellants.

Hassan Ahmed Khan Khanwar and Ishfaq Ahmed Chaudhry for the State.

Date of hearing: 9th December, 2004.

2005 Y L R 1062

[Lahore]

Before Maulvi Anwarul Haq and Farrukh Latif, JJ

Sheikh MUHAMMAD AHMAD---Petitioner

versus

THE STATE---Respondent

Cr. Miscellaneous No.2937-B of 2004, decided on 14th December, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Bail, refusal of---Accused had sought bail on sole ground of delay in trial, but order sheet had shown that alleged delay in the trial was caused from accused side and not due to any fault on part of prosecution---Though, on a few dates, some of co-accused were not produced from the jail, but that lapse, could not be attributed to prosecution---Delay in trial having occasioned by act or omission on part of accused, he was not entitled to concession of bail on ground of delay.

Muhammad Aslam v. The State 1999 SCMR 2147; Behram v. The State 2003 PCr.LJ 73; Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228; Samundar Gul and another v. The State 1984 PCr.LJ 626; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Anwar Ali and another v. The State 2002 PCr.LJ 186 (Kar.) and Muhammad Rafique v. The State PLJ 1975 Cr.C. (Lah.) 339 ref.

Kh. Haris Ahmad for Petitioner.

Malik Muhammad Mumtaz for the State.

Mian Shabbir Asad, A.S.-I. with Record.

2005 Y L R 1065

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

MUHAMMAD ARIF and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.276-J, 1817 and Criminal Revision No. 122 of 2000, heard on 3rd November, 2004.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 &, 34---Appreciation of evidence---Matter was reported to police after about two hours from the occurrence---Complainant was not resident of the house where occurrence had taken place, but was resident of a place 15 acres away from place of occurrence---Complainant in his first statement recorded by police, did not name any person as accused---Complainant had admitted that no source of light was at the place of occurrence---Witness had also admitted that accused belonged to the same village and were known to him previous to occurrence---Injured witnesses had admitted before Trial Court that they had gone to Police Station before going to hospital, but statement of none of the witnesses was recorded by police on that day and their statements for the first time were recorded 24 days after occurrence---Accused could not be identified at the time of occurrence---Despite the fact that unknown assailants were stated in the F.I.R., no identification parade was held---Recovery of empties from the spot and fire-arms on pointation of accused was of no avail to prosecution in the absence of report of Fire-arms Expert---Empties and fire-arms were not sent to the Expert---Motive introduced, had been disbelieved by Trial Court---Complainant, injured prosecution witnesses and accused were residents of same village and known to complainant, but their names were not mentioned in F.I.R.---Accused had been introduced as accused in supplementary statement---No report of Fire-arms Expert was available on record though crime empties were recovered from the spot---Defence had been able to make dents in the case set up by prosecution---Conviction and sentence recorded against accused by Trial Court were set aside and they were acquitted of the charge and were ordered to be released.

M.A. Zafar with Muhammad Anwar Khokhar for Appellants at State expenses.

Mirza Abdullah Baig for the State.

Date of hearing: 3rd November, 2004.

2005 Y L R 1069

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE---Petitioner

versus

MAQSOOD AHMAD and others---Respondents

Criminal Revisions Nos.347 and 306 of 2004, heard on 22nd October, 2004.

Penal Code (XLV of 1860)---

----Ss.380/411/458---Criminal Procedure Code (V of 1898), Ss.435/439---Appreciation of evidence---Sentence, enhancement of---Prosecution had proved case against accused beyond any shadow of doubt through evidence of prosecution witnesses, and recoveries effected from accused and their co-accused---Statement of complainant was corroborated by other prosecution witnesses---Recoveries effected from accused was a further corroborative piece of evidence against accused---Accused were specifically named in F.I.R. and they were identified at the time of occurrence---Two co-accused who were not named in F.I.R., had already earned a lenient view by both the Courts below---Offence having been committed by accused was a heinous one, conviction and sentence awarded to accused, did not meet the ends of justice---Three years R.I. was enhanced to seven years R.I. under S.458, P.P.C.---Sentence of fine and imprisonment in lieu thereof would remain the same as awarded by Trial Court and affirmed by Appellate Court---Conviction and sentence awarded to accused under S.380, P.P.C. with fine would not call for and same was set aside and accused were acquitted from charge under S.380, P.P.C.---Revisions were disposed of with such modifications in quantum of sentence.

AIR 1925 Lah. 539; AIR 1927 Qudh 313; AIR 1920 Lah. 312(1) and AIR 1926 Lah. 581 ref.

Malik Muhammad Akram Khan Awan for Petitioners/Respondents.

Ch. Muhammad Hanif Khatana Addl. A.-G. Punjab for the State.

Date of hearing: 22nd October, 2004.

2005 Y L R 1073

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Hakim Ali, JJ

DILAWAR KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos. 202 and 203 of 2000 and Murder Reference No.8 of 2001, decided on 12th April, 2004.

Penal Code (XLV of 1860)---

----Ss. 302, 364, 379, 411, 201 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Appreciation of evidence---Unwitnessed crime---Case of prosecution revolved around circumstantial evidence, starting with the allegation that deceased had accompanied accused on motorcycle and evidence of deceased having been last seen in the company of accused, was linked with the ownership and recovery of motorcycle---Complainant, who was father of deceased had stated that deceased had accompanied accused 21/22 days prior to the reporting of the matter to the police---Complainant did not report the matter to the police for 20/21 days and no plausible explanation was given for such a long delay as in normal circumstances father whose son was missing would not wait for such a long period---No evidence was on record to show that deceased was seen in the company of accused from the date of his missing up to recovery of his dead body---Evidence to the effect that accused while in custody had pointed towards the place where they had thrown the deceased, did not advance case of prosecution as same was inadmissible---Article 40 of Qanun-e-Shahadat, 1984 provided that information furnished by accused while in custody would be admissible and relevant only if it led to the discovery of a fact---Evidence of alleged extra-judicial confession made by accused before prosecution witnesses, had been discarded by Trial Court for cogent reasons and prosecution was unable to find any fault in reasoning advanced by Trial Court for rejecting story of extra-judicial confession---Whether recovered dead-body was that of deceased had not been conclusively proved by prosecution---Prosecution, in circumstances, had failed to prove its case against accused beyond doubt---Judgment of Trial Court whereby accused were convicted and sentenced, were set aside extending benefit of doubt to them and they were acquitted of all charges against them and were released.

Sukhan v. The Emperor AIR 1929 Lah. 344 and Karmat Mandal and another v. King Emperor AIR 1926 Calcutta 320 ref.

Mian Faizul Hassan for Appellant.

Pirzada Muhammad Afzal Nizami for the Complainant.

Mirza Muhammad Nadeem Asif for the State.

Dates of hearing: 1st, 8th and 12th April, 2004.

2005 Y L R 1081

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ZAMMAN alias MANNA and others---Appellants

versus

THE STATE---Respondent

Crl. A. No. 777 of 2002, heard on 17th September, 2004.

Penal Code (XLV of 1860)---

----Ss.302(b) & 364/34---Appreciation of evidence---Two very important facts given by prosecution were contradicted by Medical Examination of injured who was brought to hospital by a police officer---Duration of injuries given by Doctor had also contradicted time of occurrence as stated by prosecution---One of prosecution witnesses who was cousin of complainant, had admitted that he had not seen accused while causing injuries to injured/ deceased---Said witness had also stated that his statement was recorded 11/12 days after occurrence and he had not told complainant about occurrence on same day---Names of said two eye-witnesses were not mentioned in F.I.R.---Said two eye-witnesses were not reliable witnesses---Alleged extra-judicial confession being joint one, was inadmissible in evidence---Recovery of articles and weapons, etc., was of no use as same were not blood-stained, and were got recovered from the bank of canal lying behind the bushes---Said articles, which were less expensive, could be thrown in the canal easily, instead of concealing them behind the bushes---No eye-witness of kidnapping or abduction of deceased was available---Complainant stated that deceased was accompanied by his master, but neither name of said master was mentioned nor he was produced by prosecution---Number of Rickshaw in which deceased was brought by accused to the house of complainant, was not mentioned and neither Rickshawala was interrogated nor he joind the investigation---Name of none of eye-witnesses of extra-judicial confession was mentioned in F.I.R.---Application for registration of F.I.R. was made 7 days after the occurrence and F.I.R. was recorded about five days after filing of application in that respect---Even complainant had made dishonest improvement before Trial Court regarding motive given in F.I.R. to implicate accused---Case against accused seemed to be doubtful and prosecution had failed to prove its case beyond a shadow of doubt---Conviction and sentence awarded to accused by Trial Court were set aside and they were acquitted of charges levelled against them.

Jalees Ahmad Mir for Appellants.

Rana Javed Anwar Khan for the State.

Date of hearing: 17th September, 2004.

2005 Y L R 1085

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASGHAR---Appellant

versus

THE STATE---Respondent

Crl. A. No. 55 of 2000/BWP and M.R. No.42 of 2001, heard on 13th September, 2004.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Both prosecution witnesses were not only close relatives of the complainant, but were also non-residents of the place of occurrence and were chance witnesses; they claimed to have seen the occurrence, but they lived at a distance of three miles from the scene of occurrence and both of them had given different reasons for being present at the time of occurrence---Circumstantial as well as documentary evidence had belied statements of said prosecution witnesses---Supplementary statements of complainant and statements of prosecution witnesses were recorded nine days after the occurrence and eight days after submission of complaint---Nothing was on record to show as to why said witnesses kept quiet for such a long time---Both eye-witnesses had contradicted each other on the point of reasons for their presence at the time of occurrence---Both of them also made dishonest improvements and were duly confronted with their earlier statements---Medical evidence also did not support prosecution case and it appeared that Doctor had either been playing in the hands of complainant or in the hands of police---Opinion of doctor was based only on presumption and guess work---Prima facie it appeared that prosecution had concocted the story and possibility of death of deceased due to unknown natural causes, could not be ruled out---Alleged recovery, blood-stained Danda was not reliable as accused was arrested after a month of occurrence and no sensible person would keep incriminating evidence intact for such a long time in his house so as to hand over the same to police as a souvenir---No independent witness of locality had been produced to support element of recovery---Arguments of complainant about motive were based only on hypotheses and no independent witness had been produced to support the story of motive which was carried out after registration of case---Prosecution having failed to prove its case against accused beyond doubt, impugned judgment of Trial Court whereby accused was convicted and sentenced was set aside and he was acquitted of all the charges and was set at liberty.

A.R. Tayyib for Appellant.

Mian Amir Ahmad for the Complainant.

Ch. Abdul Ghani for the State.

Date of hearing: 13th September, 2004.

2005 Y L R 1092

[Lahore]

Before Khawaja Muhammad Sharif, J

MAQBOOL alias QUMY and others---Appellants

versus

THE STATE---Respondents

Criminal Appeal No.1572 and Criminal Revision No.995 of 2002, heard on 6th September, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Case of prosecution was that deceased was dragged by accused and his co-accused from point ‘A’ to point ‘B’ which was at distance of more than 200 feet, but no dragging marks were on the body of deceased which fact negated version of prosecution---Clear conflict was found between ocular account and medical evidence---Presence of eye-witnesses who were not resident of place of occurrence, was doubtful---Occurrence, according to the prosecution, had taken place in a congested area, but none from the vicinity was either produced before Police or cited as a witness before the Trial Court---F.I.R. which was not recorded at the spot, was recorded after due deliberation and consultation---Case as set up by prosecution was that after fatal shots by three accused, two accused also resorted to indiscriminate firing, but from the spot, except one crime empty of .7 MM Rifle nothing was recovered and according to the prosecution case itself .7 MM Rifle was being carried by co-accused, who was acquitted---Recovery of rifle .224 bore on pointation of accused was of no avail in absence of any empty of said bore rifle having been recovered from the spot---Motive alleged in F.I.R. was that 3/4 days prior to fatal occurrence, a quarrel took place between accused and deceased but matter was patched up---None from the persons who patched up the matter, was produced either before police or before Trial Court to prove the motive---Prosecution having not successfully proved its case against accused beyond any shadow of doubt, conviction and sentence recorded against accused by Trial Court were set aside and he was acquitted of charge and was released.

2000 SCMR 522 and 2004 SCMR 845 ref.

Aftab Ahmad Bajwa for Appellants.

Sardar Zahid Gul Khan for the State.

Hussain Aziz Bhatti and Zahid Iqbal Malik for the Complainant.

Date of hearing: 6th September, 2004.

2005 Y L R 1096

[Lahore]

Before Sh. Hakim Ali, J

NAZIR AHMAD---Petitioner

versus

IMDAD HUSSAIN and others---Respondents

C.R. No. 830-D of 2004, decided on 4th February, 2005.

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

----Ss. 3, 5 & Art. 142---Specific Relief Act (I of 1877), S.9---Suit for possession---Limitation---Delay, condonation of---Plaintiff filed suit after 23 years of his dispossession from shop in dispute---Article 142 of Limitation Act, 1908 provided that plaintiff was bound to file suit within twelve years of his dispossession---Plaintiff who had lost possession of disputed shop in 1971, was bound to file suit for possession uptil the year 1983, but he took no steps to recover possession till 1994 when he filed the suit---Suit was correctly held barred by limitation by Courts below---Person who was faced with an adverse order even it be a void order, having been passed against him and being used, implemented and affecting him adversely in his interest, but he having not taken any step to get it washed or cancelled, set it aside or annulled within prescribed period of limitation, could not claim exemption from limitation after its expiry---Not conducive to the good administration of justice to allow parties to come to the Court as and when they desired to get an order cancelled, ignoring or bypassing mandatory provisions of Limitation Act, 1908---Order could be void or voidable, valid or invalid, if its sustenance in the field changed the scene or the circumstances materially---Such order had to be noted with concern and had to be stayed and stalled, to get same set aside within prescribed period of limitation, otherwise there would be no end to litigation and the provisions of law of limitation would be negated in its effective application---Concurrent decrees and judgments, delivered by Courts below, were not liable to be cancelled, in circumstances.

Mst. Sughran Bibi v. Mst. Jameela Begum and others 2001 SCMR 772; Muhammad Shafi v. Mushtaq Ahmed through Legal Heirs and others 1996 SCMR 856; Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah.1039; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Muhammad Bashir v. Muhammad Khan and others 1975 SCMR 173; Sardar Ghulam Baqir Ali Khan v. Secretary to Government Punjab, Cooperative Department, Lahore and 2 others 2000 CLC 1783; Ramendra Posad Basu and others v. Baradaprosed Basu and others AIR 1938 Cal. 206; Mst. Shah Sultana and others v. Abdul Khaliq and another 1987 SCMR 1791; Afzal Khan and 2 others v. Abdul Fahim and 4 others PLD 1994 Quetta 26 and Allah Bakhsh and 4 others v. Dr. Abdul Waheed and another PLD 1996 Kar. 458 ref.

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

----Ss.3, 5 & Sched. Art.142---Limitation---Void order---Cancellation of---Delay, condonation of---Person/party who had consented or acquiesced in a void order had allowed the running of limitation to be expired, waving or abandoning his right to take necessary, needed and required action within the fixed period of limitation, could not be permitted after expiry of prescribed period of limitation, to file a suit or take any proceedings after the end of limitation---Courts could not grant a free hand to persons who were not vigilant of their rights ---Law which had prescribed some limitation for actions, those actions were acceptable to the Courts if taken within its consonance---Void orders though were nullity in the eye of law and limitation did not run against such orders and those need not be set aside and could be ignored with impunity but when a void order had been challenged before any forum, Authority or Court and the party remained unsuccessful to get the same set aside and did not take any further step, in such an event, it would be presumed that party had accepted it and that order would not only attain finality, but validity also between the parties and in such case that order would be binding upon both parties and against that order limitation would be presumed to have been commenced---Party to such order would not be allowed to challenge its validity or voidness after expiry of limitation.

Mian Arshad Latif for Appellant.

2005 Y L R 1101

[Lahore]

Before Sh. Hakim Ali, J

ABDUL SATTAR and others---Petitioners

versus

MEMBER, BORD OF REVENUE and others---Respondents

W.P. No. 5134 of 2004, decided on 4th February, 2005.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Consolidation of holdings---Appeal---Limitation---Consolidation Scheme of concerned Mauza having been confirmed, respondent filed appeal before Collector/Additional Deputy Commissioner (Consolidation) with regard to adjustment of Killa in dispute, which was accepted and Killa in dispute was finally adjusted accordingly---Petitioners in their Constitutional petition had laid great stress upon point of limitation and alleged that Additional Deputy Commissioner (Consolidation) could not condone delay in filing appeal before him in the circumstances of the case---Validity---Whether those circumstances were sufficient to condone delay in filing of appeal or not, it was discretion and jurisdiction of Additional Deputy Commissioner (Consolidation) to adjudge those reasons and his decision should be considered final unless there was grave and apparent injustice caused to other party---Question of limitation could not be re-opened in Constitutional jurisdiction of High Court.

Pakistan Refinery Ltd. v. Pakistan National Shipping Corporation and 2 others 1986 CLC 644 ref.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Aim and purpose of consolidation---Aim and purpose of consolidation was to adjust and consolidate land holdings inasmuch as they could be placed near to land already owned or possessed by each landowner---Each and every landowner could not be adjusted and consolidated completely in the process of consolidation in accordance with his wishes---For the purpose of consolidation and to bring lands of each landowner nearer to his main holding, adjustment had to be made in which Killas were to be left to others to have the benefit of propinquity of lands.

Muhammad Nawaz Khan v. Khan Zaman Khan, and others PLD 1992 Rev. 3 ref.

(c) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability--- Consolidation of Holdings---Constitutional petition had been filed against adjustment of Killa numbers made by Consolidation Authorities, who were expert to judge the appositeness of lands, adjusted and against that adjustment, Constitutional petition was not maintainable.

Asad Riaz v. Member Board of Revenue, Punjab, Lahore and 4 others 1997 SCMR 1611; Falak Sher and others v. Sharif and others 1989 SCMR 1096; Allah Rehman and others v. Amtul Qayyum and another 1989 SCMR 1817; Amir Din and others v. Muhammad Malik and others 1981 SCMR 834; Ghulam Qadir v. Member, Board of Revenue, West Pakistan, Lahore and 4 others 1970 SCMR 292; Muhammad Khan and another v. Pehlwan and others 1983 CLC 404; Mst. Said Begum and others v. Member, Board of Revenue and others 1988 CLC 2141; Qadir Bakhsh v. Mst. Mumtaz Batool Biluch 1985 MLD 1279; Farzand Ali v. Member, Board of Revenue and others 1999 CLC 1023; Ibrahim and others v. Member, Board of Revenue and others 1981 CLC 823; Mst. Ilam Bibi and 8 others v. Member (Consolidation), Board of Revenue, Punjab and another 1982 CLC 2109 and Brig. Sadaat Ali Shah v. Muhammad Hanif and 3 others PLD 1993 Lah. 694 ref.

Muhammad Tufail Alvi for Petitioner.

Respondent No.5 in person.

2005 Y L R 1112

[Lahore]

Before Nasim Sabir Ch., J

MUMTAZ and 5 others---Petitioners

versus

THE STATE and 5 others---Respondents

Criminal Revision No. 54 of 2004, decided on 16th April, 2004.

Criminal Procedure Code (V of 1898)---

----Ss.200 & 439---Penal Code (XLV of 1860), Ss.302/201/148/149/ 109/ 337-F(iv)/ 337-A(ii)---Filing of second complaint---Validity---Second complaint had been filed after more than one year of the summoning of the accused in the first complaint and after four years of registration of the F.I.R. with regard to the same occurrence---Trial Court after recording the preliminary statements of the complainant and other witnesses in the second private complaint had bound down all the accused persons named therein vide impugned order---Filing of the second complaint after four years of the occurrence with same set of facts and almost against same set of accused persons with addition of one more accused was not justified in view of the statutory provisions nor according to the settled practice of the criminal Courts---No logical explanation had been advanced for delay of four years in lodging the second complaint---Second complaint was not needed to be entertained in the circumstances---Impugned order was consequently set aside being without any legal basis, with the direction to Trial Court to conclude the proceedings in the first complaint in accordance with law and thereafter to proceed with the challan case, if need be---Revision petition was allowed accordingly.

Noor Elahi’s case PLD 1966 SC 708 ref.

Malik Muhammad Usman Bhatti for Petitioners.

Sh. Junaid Riaz and Zafar Mehmood Anjum for the State

2005 Y L R 1120

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ALI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 207 of 1993, heard on 19th May, 2004.

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

----Ss.302, 307, 304, Part. I & 308---Appreciation of evidence---Two eye-witnesses were chance witnesses who could not furnish any plausible explanation for their presence at the scene of occurrence---Third eye-witness on account of having suppressed certain facts could not be relied upon---No previous ill-will or enmity existed between the parties---Incident admittedly had occurred at the spur of the moment---Injuries sustained by the accused had been suppressed by the prosecution with mala fide intention---Prosecution evidence was not reliable---Defence version advanced by the accused of having acted under grave and sudden provocation and also in self-defence at the time of occurrence, therefore, was to be believed, which was even borne out from the prosecution evidence---Accused, however, had exceeded to right of self-defence---Conviction of accused under S.302, P.P.C. was consequently altered to S.304, Part I, P.P.C. and his sentence of imprisonment for life was reduced to ten years’ R.I. in circumstances---Conviction of accused under S.307, P.P.C. was also converted into S.308, P.P.C. with fifty per cent reduction in his sentence thereunder.

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

----Ss. 302/34 & 307/34---Appreciation of evidence---Prosecution evidence had been disbelieved---Co-accused who had admitted the occurrence, though in a different manner, had denied the presence of accused on the spot at the relevant time---Accused was given the benefit of doubt and acquitted in circumstances.

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

----Ss.302/34 & 307/34---Appreciation of evidence---Where the prosecution evidence is discarded, the defence taken by accused has to be believed or disbelieved in toto.

Abdul Aziz Khan Niazi for Appellants.

Ch. Muhammad Masood Sabir for the State.

Dates of hearing: 18th and 19th May, 2004.

2005 Y L R 1126

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD HUSSAIN---Petitioner

versus

CHOLISTAN DEVELOPMENT AUTHORITY, BAHAWALPUR and others---Respondents

Writ Petitions No. 3930 of 2004/BWP, decided on 26th November, 2004.

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

----Ss. 2(h) & 37---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Annual renewal of enlistment of contractor---Refusal---Petitioner, who was enlisted as 'A-class' contractor with the Authority applied for annual renewal of his enlistment, but his application was rejected without specifying any reason for its rejection---Reference, however had been made to the minutes of meeting of Renewal Committee according to which renewal had been refused to those contractors who were lagging behind in performance of work awarded to them and who were not serious in rectification of defects despite correspondence were addressed to them---Executive Engineer of the Authority had issued performance certificate to the petitioner wherein it was certified that petitioner had good standing with the Authority as a contractor---Said certificate was subsequent in time to the meeting of Renewal Committee and application of petitioner for renewal of his enlistment was rejected by the Authority without hearing petitioner and in his absence---Refusal of Authority to renew enlistment of petitioner, which was violative of norms of natural justice and fairness, was wholly mala fide---Said refusal was set aside---Petitioner would be entitled to submit his tender for contracts advertised by the Authority.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court, while exercising Constitutional jurisdiction could not to embark upon a factual inquiry as to the competing contentions of the parties---Resolution of such factual disputes would take place through ordinary legal process.

M. Shamshir Iqbal Chughtai for Petitioner.

Masood Ashraf Sh. with Ejaz Akhtar Mehtab SDO with record for Respondent.

Date of hearing: 26th November, 2004.

2005 Y L R 1128

[Lahore]

Before Khawaja Muhammad Sharif, J

MAQSOOD AHMAD and others---Petitioners

versus

THE STATE---Respondent

Criminal Appeals Nos. 144, 724 and Criminal Revision No.348 of 2003, heard on 2nd June, 2004.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c)---Appreciation of evidence---Complainant had dishonestly improved his statement before the Trial Court by introducing a new motive in order to strengthen the prosecution case---Witness of extra-judicial confession allegedly made by accused was related to the deceased who had neither tried to apprehend the unarmed accused, nor he had made any statement before the police---Hatchets were recovered from a deserted well lying in an open place accessible to every body---No direct evidence being available, the case rested on circumstantial evidence---Occurrence had statedly taken place in dark hours of the night but the time, according to medical evidence did not fit in with the prosecution version---Co-accused was found innocent by the police---Nothing incriminating was recovered from co-accused and he had made no extra-judicial confession---Accused were acquitted on benefit of doubt in circumstances.

Muhammad Sharif Cheema and Shamsh Mahmood for Appellants at State expenses.

Miss Nausheen Taskeen for the State.

Date of hearing: 2nd June, 2004.

2005 Y L R 1133

[Lahore]

Before Ch. Ijaz Ahmad, J

MAHMUD KHAN and another---Petitioners

versus

GOVERNMENT OF THE PUNJAB through District Collector, Lahore and 2 others---Respondents

Writ Petition No.14950 of 2002, heard on 16th February, 2005.

(a) Land Acquisition Act (I of 1894)---

----S. 4 ---Acquisition of land---Notification--- Connotation--- Word ‘Notification’ would imply that contents of declaration in question must be known to the public and not mere issuance of an order in the Office of Government Authority---Word ‘notify’ would mean act of notifying or giving notice.

Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; Saiyyid Abdul A’La Maudoodi and others v. The Government of West Pakistan PLD 1964 (W.P) Kar. 478; Alam Din and others v. Administrator Auqaf Azad Government of the State of Jammu and Kashmir, Muzaffarabad and 2 others 1989 CLC 578; Mst. Sobia Hanif v. The Collector Lahore and others 1993 CLC 2073; Alam Din and another v. Administrator Auqaf and others PLD 1983 Azad J&K 25. Ghulam Zaman’s case PLD 1984 Pesh. 35; Abdul Razzaq’s case PLD 1986 Quetta 86; Ghulam Bhik’s case PLD 1973 Lah. 617 and Dr. Muhammad Nasim Javaid’s case PLD 1983 Lah. 542 ref.

(b) Mala fide---

----General allegation of mala fide, was not sustainable in the eye of law, unless and until specific allegation of mala fide was alleged---Allegation of mala fide though easy to level, but was difficult to prove, the burden whereof heavily lay on the person who alleged mala fide.

Saeed Ahmad’s case PLD 1974 SC 151; Amanullah’s case PLD 1990 SC 1092; Muhammad Afzal Bhatti 1997 SCMR 296; Sree Raja Kandregula Srinivasa Jagannadha Rao Pantulu Bahadur v. State of Andhra Pradesh AIR 1960 Andrapradesh 343 and Rashid Ahmad’s case 1986 CLC 1841 ref.

(c) Land Acquisition Act (I of 1894)----

----Ss. 4, 11 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Acquisition of land---Notification--- Validity--- Making and announcing award---Availability of alternate remedy---Effect---Petitioner had not challenged corrigendum to Notification for a long period till Supplementary Award was announced by Land Acquisition Collector---Said award was announced on 31-7-2001 and petitioner had filed Constitutional petition after more than one year from announcement of impugned award---Petitioners were not entitled to any discretionary relief by filing Constitutional petition after considerable delay---Even otherwise Acquisition Collector having announced Supplementary Award after issuing/publishing corrigendum to Notification under S. 17(4) & (6) of Land Acquisition Act, 1894, petitioners had alternative remedy to file a reference for enhancement of compensation under relevant provisions of Land Acquisition Act, 1894 before competent Authority/ competent Court---Alternative remedy being available to the petitioners, Constitutional petition was not maintainable.

Khawaja Sharif’s case PLD 1988 Lah. 725; Haji Saifullah’s case PLD 1989 SC 166; Nawab Syed Raunaq Ali’s case PLD 1973 SC 236; Rana Muhammad Arshad’s case 1998 SCMR 1462; Sardar’s case 1997 CLC 812; Ch. Muhammad Ismail’s case PLD 1996 SC 246 and Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185 ref.

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

----Ss. 4, 11, 18 & 54---Acquisition of land---Before an order passed by a public Authority was struck down it was duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on said Authority in pursuance of which impugned order had been passed.

Lahore Improvement Trust’s case PLD 1971 SC 811 ref.

Maqbool A. Sharif for Petitioners.

Badur-ul-Amin for Respondents.

Date of hearing: 16th February, 2005.

2005 Y L R 1139

[Lahore]

BeforeKhawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

ANJUM SOHAIL BHATTI and another---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No.18-J and Murder Reference No.16 of 2000, heard on 2nd November, 2004.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence---Complainant who was widow of deceased and also the inmate of house where incident had taken place, had narrated all the details of incident in the F.I.R.---Complainant had furnished eyewitness account of occurrence and she had no enmity with accused---Occurrence was of day time and accused was known to her---No chance of any mistake about identity of accused existed---Complainant having no animus against accused, was a reliable witness---Even a solitary witness, whose evidence could be confidence inspiring and ringing true, was sufficient to base conviction of accused---Medical evidence had lent full corroboration to ocular testimony---Nothing was in evidence of Doctor to say that Medical evidence in any way was in conflict with ocular testimony---Same had rightly been received as supportive to ocular testimony---Motive which stood proved on record, was rightly received as a circumstance in corroboration to ocular testimony---Even wife of accused produced as defence witness, had completely supported case of prosecution against accused---Accused, in circumstances was rightly found guilty of charge of Qatal-e-Amd of deceased---Conviction of accused had rightly been recorded by Trial Court---Accused who came in the house of deceased armed with pistol along with his companions, fired at deceased at such part of his body that his death was inevitable, was not entitled to lesser sentence than death---No mitigating circumstance to warrant reduction in his sentence, existed---Sentence awarded to accused being correct was maintained.

Mian Abdul Qayyum Anjum for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 2nd November, 2004.

2005 Y L R 1152

[Lahore]

Before Ch. Ijaz Ahmad, J

MAHMUD ALI BABAR---Petitioner

versus

MEMBER, BOARD OF REVENUE, (JUDICIAL-II) and another---Respondents

W.P. No.8402 of 2003, decided on 25th February, 2005.

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

----S.36---West Pakistan Land Revenue Rules, 1968, R.16---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lambardar---Office of Lambardar was a selection post and selection was administrative prerogative of Revenue Authorities who, of course, were to follow the Rules, in that behalf---Appointment of Lambardar being purely an administrative function, no particular person had a vested right to be appointed as Lambardar---Selection of Lambardar could not be made by the Court in exercise of its Constitutional jurisdiction nor could discharge of such administrative duties be hampered or impeded by Court intervention---Even in discretionary and administrative fields, law and its purposes had to be kept in view---Administrative discretion and power would not extend to empower the Authorities to rewrite the law of their own choice, to understand it the way they liked and to lay down the law for subordinates and those in the lower hierarchy in an arbitrary manner and on an erroneous understanding of law---Member Board of Revenue in the present case had given specific finding that DO(R) had not given his own recommendations and that finding was in consonance with the record---Said official had only signed note of DRO---Mere countersigning the note of subordinate, would not mean that countersigning Authority had applied its own independent mind---Provisions of S.24-A of General Clauses Act, 1897, had cast duty upon public functionaries to pass orders after application of mind with reasons---Note of DO(R) would not fulfil requirements of S.24-A of General Clauses Act, 1897 which was also in violation of law.

Muhammad Baluch’s case 1996 MLD 120; Haji Noorwar Jan’s case PLD 1991 SC 531; Utility Stores Corporation’s case PLD 1987 SC 447; Chairman Regional Transport Authority’s case PLD 1991 SC 14; Muhammad Daim’s case 1992 MLD 1983; Ali Muhammad’s case PLD 1953 Rev. 3; Ghulam Mohy-ud-Din’s case PLD 1964 SC 829 and Messrs Airport Support Services’ case 1998 SCMR 2268 ref.

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

----Art.199---Constitutional jurisdiction---Scope---High Court had no jurisdiction to substitute its own finding in place of findings of Tribunal below while exercising powers of Art. 199 of the Constitution---Constitutional jurisdiction was a discretionary in character---Where substantial justice had been done between the parties, the High Court could not exercise discretion in favour of petitioner.

Lall Din’s case 2003 CLC 166; Abdul Karim’s case 1993 MLD 1628; Muhammad Aslam’s case PLD 1992 SC 819; Nawabzada Ronaq Ali’s case PLD 1973 SC 236 and Rana Muhammad Arshad’s case 1998 SCMR 1462 ref.

Ch. Ihsan-ul-Haq Bhalli for Petitioner.

M. Hanif Khattana Addl. A.G. for Respondent No.1.

Rana Rashid Akram Khan for Respondent No.2.

2005 Y L R 1157

[Lahore]

Before Khawaja Muhammad Sharif, J

SALMA BIBI and others---Appellants

versus

THE STATE---Respondent

Crl. A. No. 1323 of 2003, heard on 13th October, 2004.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Matter was reported to police and F.I.R. was recorded next day of the occurrence with a delay of about 20 hours while distance of Police Station from place of occurrence was eighteen kilometers---Out of three witnesses of occurrence, including complainant, who was brother of deceased, said complainant could not be produced during trial because he was murdered---Other eye-witness was given up by prosecution---There was only left sole testimony of third alleged eye-witness who was brother-in-law of deceased, but he was not resident of vicinity and hailed from a place fifteen miles away from the place of occurrence---Conflict existed between medical evidence and ocular account---Co-accused was servant of one of deceased and her role was that she held female deceased in her ‘Japha’ when accused fired at the female deceased---Such was an improbable story as possibility in said circumstances could have been that co-accused could also receive an injury on her person---Role of co-accused was also unnatural and improbable---Recovery of crime empty was effected after two days of occurrence and pistol and empty were sent to Forensic Science Expert ten days of recovery---Possibility of crime empty having been fired by said pistol later on, could not be ruled out---Such fact had created doubts on version of prosecution story---Presence of prosecution witness at the place of occurrence was not probable one---Case against both accused was doubtful and benefit of said doubt must go to accused---Impugned judgment of Trial Court whereby accused were convicted and sentenced, was set aside and accused were acquitted from case.

Muhammad Faisal Malik, Muhammad Pervaiz Jatala and Malik Shakeelur Rehman for Appellants.

Safdar Hussain Tarar for the State.

Date of hearing: 13th October, 2004.

2005 Y L R 1160

[Lahore]

Before Ch. Ijaz Ahmad, J

HASSAN DIN through his Legal Heirs and 9 others---Petitioners

versus

MEMBER (JUDICIAL-I), BOARD OF REVENUE, PUNJAB and 75 others---Respondents

W.P. No. 13965 and 13966 of 2004, heard on 9th February, 2005.

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

----S.24-A---Speaking order---Provision of S.24-A of General Clauses Act, 1897---Scope---Provision being procedural in nature, it has retrospective effect.

Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268 and Zian Yar Khan v. The Chief Engineer 1998 SCMR 2419 rel.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----S.7---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-speaking order---Board of Revenue decided revision petitions of the petitioners by counter-signing the findings of Additional Commissioner Revenue---Plea raised by the petitioners was that the order passed by Board of Revenue was not a speaking order---Validity---Such order passed by Board of Revenue was not in consonance with the law---Board of Revenue having decided the revision petitions of the petitioners in capacity of quasi judicial Tribunal, it was duty and obligation of the Board to decide the controversy between the parties after application of mind---Decision of Board of Revenue being in violation of the parameters prescribed by the Supreme Court in its judgments, the orders were set aside---Revision petitions filed by the petitioners were remanded to Board of Revenue for decision afresh after application of judicial mind---Petition was allowed in circumstances.

Inayat Ullah and 22 others v. Member (Revenue), Board of Revenue Punjab, Lahore 2001 MLD 1642; Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102; Government of Sindh v. Ch. Fazal Muhammad PLD 1991 SC 197 and Dilmir and others v. Member, Board of Revenue, Punjab, Lahore PLD 1991 Lah. 314 ref.

Ghulam Mohy-ud-Din’s case PLD 1964 SC 829; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 rel.

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

----Arts.189 & 190---Judgment of Supreme Court---Applicability--- Judgment of the Supreme Court is binding on each and every organ of the State as envisaged by Arts.189 & 190 of the Constitution.

Shazad Shoukat for Petitioners.

Muhammad Yasin Ch. and Mehboob Ahmed for Respondent No.4.

Date of hearing: 9th February, 2005.

2005 Y L R 1163

[Lahore]

Before Abdul Shakoor Paracha and Muhammad Muzammal Khan, JJ

MUHAMMAD YAR---Appellant

versus

THE STATE---Respondent

Crl. M. No. 407/M in Criminal Appeal No.234 of 1999 and Murder Reference No.454 of 1999, decided on 19th October, 2004.

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

----Ss.302, 309 & 310---Waiving the right of Qisas in Qatl-i-Amd---Duty of Court---Court to satisfy itself that 'Wali' of deceased had waived the right of Qisas under S.309, P.P.C. or compounded the right of Qisas under S.310, P.P.C. voluntarily and without duress, would take down the statement of Walis and record an opinion that it was satisfied that waiver or compromise, as the case could be, was voluntary and not the result of any duress.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Bashir Ahmad v. The State 2004 SCMR 236 and Muhammad Saleem v. The State PLD 2003 SC 512 ref.

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

----Ss.302(a)(b), 304, 309 & 310---Qanun-e-Shahadat (10 of 1984), Art.17---Criminal Procedure Code (V of 1898), S.227---Awarding death sentence as Qisas ---Death sentence as Qisas could only be awarded when proof of Qatl-I-Amd liable to Qisas as prescribed in S.304, P.P.C. was available---Either of the form of proof as described in Ss.304(c) and (b), 309(1)(2) and 310, P.P.C. was not available in the present case, because neither the confession of accused was recorded nor evidence as required under Art.17 of Qanun-e-Shahadat, 1984 was available---Punishment of death as Qisas under S.302(a), P.P.C. could not be awarded---Provisions of Ss.309(1) & (2) & 310(1), P.P.C. would apply to cases where punishment had been recorded as Qisas and not as Ta'zir and as such Afw of Qisas and compounding of Qisas in cases of Qatl would apply only where conviction had been recorded under S.302, P.P.C. and not to cases where conviction and sentence had been recorded under S.302(l), P.P.C.---Judgment of Trial Court to the effect whether accused was convicted and sentenced as Qisas or as Ta'zir, was silent---Since proof of Qatl-e-Amd liable to Qisas under S.304, P.P.C. was not available in the case because neither the forms of proof as prescribed under Ss.302(a), 304, 309(1) & (2) & 310, P.P.C. were available nor accused had confessed his guilt nor evidence required under Art.17 of Qanun-e-Shahadat, 1984 was produced and therefore, conviction and sentence had been recorded under S.302(b), P.P.C. as Ta'zir.

Muhammad Saleem v .The State 2003 SCMR 512 and Bashir Ahmad v. The State 2004 SCMR 236 ref.

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

----Ss. 302, 309, 310 & 311---Criminal Procedure Code (V of 1898), Ss.345(2) & 227---Appreciation of evidence---Compro-mise between parties---Two women were murdered and in case of murder of one only husband of deceased had waived his right of Qisas , whereas other walis of deceased who were her mother and collaterals, had not waived their right of Qisas ---Said first deceased woman having not left any child behind her, in her case Ss.309 & 310, P.P.C. was not applicable because accused in that case was not convicted under S.302(a), P.P.C.---Sentence awarded for murder as Ta'zir, could be compounded by all legal heirs of deceased with permission of the Court in view of S.345(2), Cr.P.C.---Forgiveness of only one Wali of deceased who was her husband while other walis had not forgiven accused, could not help accused as he was tried, convicted and sentenced as Ta'zir and not as Qisas ---Compromise to the extent of said first deceased, was rejected---In case of murder of second woman, her father being only Wali had waived his right of Qisas and had forgiven accused and said forgiveness by the only legal heir of deceased had brought out case of accused from purview of S.302(b), P.P.C.---Accused in that case could not be convicted under S.302(b), P.P.C. for murder of said second woman---Question that notwithstanding the fact that only legal heir of second deceased having waived his right of Qisas , whether accused could be convicted under S.311, P.P.C., would be determined at the time of hearing of appeal and if it was found so, charge could be amended from S.302, P.P.C. to S.311, P.P.C. by exercising jurisdiction under S.227, Cr.P.C.---Compromise to the extent of legal heirs of second deceased was accepted because her father, who was her only legal heir, had forgiven accused in Badl-e-Sulh---Death sentence recorded by Trial Court on second count was set aside.

Tariq Azam Chaudhry for the Appellant.

Tanvir Iqbal, Asstt. A.-G. for the State.

2005 Y L R 1169

[Lahore]

Before Syed Zahid Hussain, J

Qazi SADIQ HUSSAIN and others---Petitioners

versus

SECRETARY (REVENUE), BOARD OF REVENUE/SETTLEMENT COMMISSIONER (URBAN)/LAND/NOTIFIED OFFICER, PUNJAB, LAHORE and others---Respondents

W.P. No.98/R of 1998, decided on 18th October, 2004.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss. 2 & 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Transfer of evacuee property---Constitutional petition---Property in dispute which had been declared as a 'Katri', consisted of shops, quarters and main bungalow and was occupied by some 44 persons---Petitioners were in occupation of main bungalow, while respondents were the occupants of separate quarters and shops---Petitioners applied on Form 'CH' for transfer of entire property in their favour, while respondents, some of whom were claimants and others non-claimants, submitted respectively 'CH', 'NCH', 'NCS' forms for transfer of portions of property in their possession---Deputy Settlement Commissioner by his order transferred entire property in favour of petitioners---On appeals filed by respondents against judgment of Deputy Settlement Commissioner, said order was set aside by Additional Settlement Commissioner and case was remanded to Deputy Settlement Commissioner for fresh decision---Deputy Settlement Commissioner who again took up the matter and vide his detailed order divided property whereby main bungalow was transferred in favour of petitioners and shops and quarters to their respective occupants/respondents---Matter went up to Supreme Court and finally the Authority vide its order maintained judgment of Deputy Settlement Commissioner whereby main bungalow was transferred to petitioners and other shops and quarters were transferred to respondents occupants---Claim of petitioners was that said shops and quarters were in fact servant quarters which were attached to main bungalow and were integral part thereof which had to be transferred along with main bungalow to them and that respondents occupants thereof had no lawful entitlement in that respect---Respondents had contended that since before partition, property was a 'Katri' occupied by several persons having their independent utility, petitioner could not claim transfer of such a large property where number of families had been living since decades---Authority taking into consideration entire background of the case and previous litigation, had rightly transferred shops and other quarters to respondents respectively---Findings so recorded by the Authority was amply justified not only from material on record, but also on the ground realities---Even otherwise ouster of respondents after half a century of creation of Pakistan, could by no means be considered as just or fair---Disposition made by the Authority, was upheld by High Court and maintained the order passed by it---Constitutional petition filed against judgment of Authority was dismissed, in circumstances.

Mst. Fazlun Nisa Begum v. Chief Settlement Commissioner and others PLD 1967 Kar.402; Muhammad Rafiq v. The Chief Settlement and Rehabilitation Commissioner and others PLD 1968 Lah.1037; Muhammad Anwar Jan Durrani and others v. Syed Hasan Imam Kazmi and others PLD 1968 Lah.1406; Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner and others PLD 1966 SC 719; Abdul Majid Khan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan. Lahore PLD 1968 SC 154; Muhammad Yaqub v. Settlement and Rehabilitation Commissioner, Lahore and 5 others PLD 1973 SC 439; Muhammad Hussain v. Settlement and Rehabilitation Commissioner and another 1987 SCMR 1649; Allah Bakhsh v. Chief Settlement Commissioner, Lahore and 3 others 1976 SCMR 275; Barkat Ali v. Settlement and Rehabilitation Commissioner, Multan and 8 others PLD 1991 SC 610; Mst. Shah Jahan Begum v. Mst. Shabbir Fatima and another PLD 1991 SC 614; Sh. Fazal Hussain v. Abdul Waheed and others 1992 SCMR 931 and Abdul Ghafoor and 30 others v. The Rehabilitation Commissioner West Pakistan, Lahore PLD 1958 Lah. 48 ref.

A.R. Shaukat for Petitioners.

Syed Aal-e-Ahmad, Fazal Miran Chohan Addl. A.-G., Muhammad Zafar Ch., Shaukat Rafiq Bajwa and Sh. Muhammad Hanif for Respondents.

Date of hearing: 18th October, 2004.

2005 Y L R 1175

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

AURANGZEB alias GUDDU and others---Appellants

versus

THE STATE---Respondents

Criminal Appeal No.289-J and M.R. No.24-T of 2003, heard on 25th October, 2004.

Penal Code (XLV of 1860)---

----Ss.302(b) & 201---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Occurrence was unwitnessed and case rested entirely on extra-judicial confession of accused and recoveries from him---Evidence of alleged extra judicial confession was furnished by prosecution witness who was maternal uncle of deceased---Alleged confession was made at place G while said prosecution witness belonged to place S---Even conduct of said witness was unnatural as he did not raise any hue and cry when accused made alleged confession before him---Said witness neither went to house of father of deceased nor informed police on the day when confession was made before him---No supporting evidence to statement of said prosecution witness was available---Even otherwise extra-judicial confession was a weak type of evidence which alone, without any corroboration was not sufficient to maintain any conviction---Articles such as wrist watch, photograph and handkerchief of deceased, were taken into possession from an open place of house of accused---Even otherwise said articles were not so expensive as to be kept so that same could be used against accused themselves---Recovery of three bottles lying near dead body of deceased was of no significance because those were not recovered on pointation of accused---Complainant had submitted that accused pointed out the place where they had burnt dead body of deceased---As nothing incriminating was discovered therefrom by police, same could not be of any consequence to prosecution---Said evidence was inadmissible as it could not be considered as exception to Art.40 of Qanun-e-Shahadat, 1984 nor same could be relied upon as a corroboratory evidence---One weak piece of evidence could not corroborate another similar evidence---Prosecution had failed to prove its case against accused as doubts were floating on surface of the record---Extending benefit of such doubts to accused, conviction and sentence recorded against accused by Trial Court, were set aside and they were acquitted of charge against them and were released.

Ziaul Rehman v. The State 2001 SCMR 1405 ref.

Prizad Mamoon-ur-Rashid for Appellants.

Tahir Mehmood Gondal, A.A.-G. with Sarfraz Khan Gondal for the State.

Ch. Mushtaq Ahmad Cheema for the Complainant.

Date of hearing: 25th October, 2004.

2005 Y L R 1179

[Lahore]

Before Mian Hamid Farooq, J

ALLAH WASAYA and 12 others---Petitioners

versus

MUHAMMAD SADIQ and 3 others---Respondents

C.R. No.2782 of 2004, heard on 4th February, 2005.

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

----O.VIII, R.12---Consequences of failure to file address for service---Nature of proceedings under O.VIII, R.12 C.P.C.---Such proceedings are directory and not mandatory in nature.

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

----O.VIII, Rr.12 & 13---Non-filing of address for service---Striking-off defence---Plaintiffs filed application for striking off the defence of defendants for non-filing of their addresses and list of legal heirs---Application of plaintiffs was allowed and the defence of the defendants was struck-off---Plea raised by the defendants was that they had furnished their addresses and list of their legal heirs before acceptance of the application filed by plaintiffs---Validity---Despite rectification of error, the Trial Court, in complete oblivion of the facts of the case and law on the subject persisted in accepting the application of plaintiffs---Trial Court, while passing the order, had committed illegality and material irregularity---High Court in its revisional jurisdiction set aside the order of Trial Court and permitted to form the addresses and list of legal heirs as part of record.

Mirza Ali Khan v. Mst. Shahida Parveen and others 1992 SCMR 2112 and Ghulam Qadir v. Haji Khuda Bakhsh and 6 others 1990 SCMR 675 ref.

Muhammad Ramzan Chaudhary for Petitioners.

Malik Mumtaz Ahmad for Respondents.

Date of hearing: 4th February, 2005.

2005 Y L R 1181

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD AZAD and another---Petitioners

versus

MUSHTAQ KHAN through his Legal Heirs and 9 others---Respondents

Civil Revision No.31-D of 1999, heard on 1st February, 2005.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2---Specific Relief Act (I of 1877), Ss.9 & 42---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and possession---Land in dispute was temporarily allotted to plaintiff who was refugee from Jammu and Kashmir State and plaintiff, on a prescribed form, applied to competent Authority for permanent allotment of said land---Plaintiff’s form was accepted and prescribed amount was deposited by him and land so allotted to plaintiff continued to be in his possession and was never cancelled by any competent Authority---Despite that fact subsequently it was allotted by Settlement Authorities in the name of respondent on basis of RL-II vide mutation---Suit filed by plaintiff for declaration and possession of land in dispute, was concurrently decreed by Trial Court and Appellate Court below---Evidence on record had fully proved that land in dispute was permanently allotted to plaintiff and such allotment was never cancelled---Land in dispute could not be allotted to any other person by Settlement Authority as same, even on cancellation, would not become part of compensation pool---Land temporarily allotted for maintenance to Jammu and Kashmir refugees, would go out of compensation pool and would vest in Ministry of Kashmir Affairs for allotment---Both Courts below had concluded lis in accordance with settled proposition of law and had committed no illegality/irregularity amenable to revisional jurisdiction of High Court---Suit filed by plaintiff which was not barred by time, was rightly concurrently decreed by Courts below.

Feroze Bibi v. Settlement Commissioner (Land) and another 1988 SCMR 1228; Noor Muhammad and others v. The Assistant Settlement Commissioner (Land)/Collector, Vehari and others 1991 SCMR 1283; Munshi and others v. Settlement Commissioner and others NLR 1980 Civil 575; Alaf Din v. Province of Punjab through Collector, Gujranwala and 3 others 2002 CLC 1657; Mst. Sakina Bibi and another v. Mamla and 2 others PLD 1977 Lah. 202; Samand Khan v. Settlement Commissioner and others 1993 CLC 1536; Muhammad Din and others v. Allah Lok and others 1989 SCMR 323 and Ghulam Muhammad and another v. Ahmad Khan and another PLD 1991 SC 391 ref.

Raja Muhammad Aslam for Petitioners.

Maulvi Ijaz-ul-Haq for Respondent No.1.

Raja Saeed Akram, A.A.-G. for Respondent No.2.

Respondents Nos.3 to 10: Ex parte.

Date of hearing: 1st February, 2005.

2005 Y L R 1197

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Nawaz Bhatti, JJ

BAHAUDDIN ZAKRIYA UNIVERSITY through Vice-Chancellor and another---Appellants

versus

MUHAMMAD WASEEM KHAN---Respondent

I.C.A. No.210 in Writ Petition No. 6094 of 2001, heard on 9th February, 2005.

Statutes and Regulations of Bahauddin Zakriya University Multan---

----Regln.5---Examination---Passing marks in LL.B. Examination---Candidate, who appeared in L.L.B. Part-II Examination secured 40% marks in all papers except one paper in which he got 35 marks---Claim of candidate was that he was entitled to five grace marks under Regln. 5 and in case said five marks were granted to him, it would be deemed that he had passed the said examination---Plea taken by University was that even if five marks were granted, same could not be added to aggregate and result would be the same as aggregate marks were less than 45%---Validity---Aggregate marks of candidate were 311 whereas requisite marks under Regulation 5 would be 315---If five marks were added in the paper then aggregate marks of candidate would exceed prescribed numbers---Regulation 5 of Statutes and Regulations of Bahauddin Zakriya University Multan had provided that a candidate, in order to be deemed to have passed First and Second Annual Examination of LL.B. would be required to obtain 40% of maximum number of marks allotted to each paper and 45% in aggregate---Proviso (a) to the said Regulation had provided that a candidate would be deemed to have passed if he failed in any individual paper by a margin of 5 marks or failed in aggregate by a margin of 5 marks---Addition of five marks to which candidate was admittedly entitled would make aggregate mark 316 which would exceed required percentage 45%---Intra-Court appeal was dismissed, in circumstances.

Karim Bakhsh v. Controller Examination, Islamia University, Bahawalpur and another 1998 MLD 21 and Punjab Public Service Commissioner, etc. v. S. Maruf Ahmad Ali PLD 1988 SC 356 ref.

Malik Muhammad Tariq Rajwana for Appellants.

Muhammad Arif Alvi for Respondent.

Date of hearing: 9th February, 2005.

2005 Y L R 1201

[Lahore]

Before Ch. Iftikhar Hussain, J

BASHIR AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3586-B of 2004, decided on 10th June, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-A(i)(iii)/337-F(D)/148/149---Bail, grant of---Further inquiry---Delay of 11 days in lodging F.I.R. and no explanation was given by prosecution for such delay---Said delay had left room to entertain doubt qua the truth in version of complainant as contained in F.I.R. and benefit of every doubt, even at bail stage was to be given to accused---Case of accused, in circum-stances required further inquiry into his guilt attracting subsection (2) of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Arshad Ali Chowhan for Petitioner.

Raisa Sarwar for the State.

Mian Fazal Rauf Joya for Complainant.

Date of hearing: 10th June, 2004.

2005 Y L R 1212

[Lahore]

BeforeSyed Zahid Hussain and Syed Sakhi Hussain Bokhari, JJ

DIRECTOR (GP)---Appellant

versus

MUHAMMAD TUFAIL---Respondent

I.C.A. No. 8 of 1999, heard on 16th February, 2005.

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

----Art.199---Constitutional petition---Non-payment of undisputed amount by Government due to non-availability of funds---Recovery of amount, prayer for---Pendency of civil suit---Effect---Relegating petitioner to Civil Court in view of such admitted liability would be an exercise in futility resulting in prolongation of an unproductive litigation---Government functionaries in a democratic set up were expected to be just, fair and reasonable in their approach towards citizens---Denying that which was due to a citizen and taking shelter behind technicalities would not behave Government---Petitioner could not be denied such relief in Constitutional jurisdiction---High Court dismissed Intra-Court appeal and directed the Government to pay outstanding amount to the petitioner.

(b) Government functionaries---

----Government functionaries, in a democratic set up, would be just, fair and reasonable in their approach towards citizen.

Mian Ghulam Hussain for Appellant.

Ch. Safdar Hussain Tarar for Respondent.

Date of hearing: 16th February, 2005.

2005 Y L R 1213

[Lahore]

BeforeAsif Saeed Khan Khosa, J

MUHAMMAD ASLAM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.8120-B of 2004, decided on 10th November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.392/411---Pre-arrest bail, grant of---F.I.R. in the case had been lodged with a delay of one month and sixteen days and stolen motor cycle had privately been recovered even prior to registration of F.I.R.---Complainant, prosecution witness and alleged victim had entered appearance before Court and had maintained in unison that they were satisfied that it was not accused who had perpetrated alleged offence and they had owned their affidavits appended with bail petition in that regard---Challan had already been submitted before Trial Court and nothing was to be recovered from accused---Sending accused behind the bars at such stage was not likely to serve any useful purpose---In view of stand taken by complainant and other witnesses, initial implication of accused in case on account of motives other than bona fide, could not be ruled out of consideration---Ad interim pre-arrest bail already allowed to accused was confirmed.

Arshad Ali Chohan for Petitioner.

Miss Samina Shahzadi for the State.

Date of hearing: 10th November, 2004.

2005 Y L R 1219

[Lahore]

Before Jawwad S. Khawaja J

MASOOD ASGHAR and others---Petitioners

versus

TOWN COMMITTEE, LIAQUATPUR and others---Respondents

Writ Petition No. 1947 of 1996/BWP, decided on 12th October, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition Resumption of plots sold in open auction---Petitioners had claimed that they had purchased plots in question from the Municipality in open auction and pursuant to said auction, sale-deeds were also executed and registered in their favour, but Deputy Commissioner had ordered resumption of said plots---Deputy Commissioner stated that land in question was reserved for a children park and same could not have been auctioned---Authority further pointed out that amount required to be deposited by way of security as a precondition for participating in bid had not been deposited by petitioners and they also did not deposit bid amount within prescribed period---Which contentions were disputed by petitioners---Question of facts was involved in the case and High Court in exercise of its Constitutional jurisdiction, could not embark upon trial of facts---Factual controversy between parties could only be redressed by a competent Civil Court after trial---Petitioners would be entitled to assert their rights in disputed plots by means of a Civil Court.

M. Shamsher Iqbal Chughtai for Petitioners.

Ahmad Mansoor Chishti, A.A.-G. for Respondents.

Date of hearing: 12th October, 2004.

2005 Y L R 1226

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD HUSSAIN and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.162 of 2003 and Criminal Revisoin No.11 of 2004, heard on 4th June, 2004.

Penal Code (XLV of 1860)---

----Ss.302(b)/34 & 308(2)---Appreciation of evidence---Medical evidence had belied the ocular testimony qua the injuries caused to the deceased and the time of occurrence---One accused had been found innocent during investigation---Complainant had improved the motive at the trial---Eye-witnesses had been called from other District after the murder of the deceased and thereafter the F.I.R. was registered---Occurrence was not seen by the eye-witnesses---Accused were extended the benefit of doubt and acquitted in circumstances.

Muhammad Ahsan Bhone for Appellants.

Mirza Abdullah Baig for Respondent.

Date of hearing: 4th June, 2004.

2005 Y L R 1232

[Lahore]

Before Abdul Shakoor Paracha, J

KHALID BASHIR and others---Petitioners

versus

GUJRANWALA DEVELOPMENT AUTHORITY, GUJRANWALA and others ---Respondents

Writ Petition No. 24216 of 1996, decided on 6th May, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Agreement between parties---Fulfilment of terms and conditions of agreement---Questions involved in the case were; whether petitioners/auction purchasers had paid amount in accordance with the time framework/schedule; whether development work on the property in dispute was to be completed by Authority on payment of 1/3rd of auction price or full price by petitioners; whether Authority promised and asked petitioners to keep quiet for some time as alleged by petitioners and whether some assurance had been given by Authority to petitioners at time of withdrawal of earlier Constitutional petition by the petitioners---Such questions being questions of fact, could not be adjudicated by High Court in exercise of its extraordinary Constitutional jurisdiction---Petitioners could approach Civil Court for redressal of their grievance.

Mubashar Nisar Khan for Petitioners.

Altaf-ur-Rehman Khan for Respondents.

Date of hearing: 6th May, 2003.

2005 Y L R 1237

[Lahore]

BeforeMaulvi Anwarul Haq, J

KHIZAR ABBAS BHUTTA---Petitioner

versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN, through Vice-Chancellor, B.Z.U., Multanand 2 others---Respondents

Writ Petition No. 6866 of 2004, heard on 4th February, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Mandamus, writ of---Educational Institutions---Admission in Engineering University---Candidate who had passed his Intermediate Examination from Board of Intermediate and Secondary Education Dera Ghazi Khan and was graded as 'A', filed two admission forms for admission to course of Electric Engineering---One admission form was filed by candidate for seat on merit and other for seat on Self-Finance---Under Admission Policy framed by the University 50% of available seats were to be filled up on open merit while remaining 50% seats were to be filled up on merit inter se the candidates passing their Intermediate Examination from Boards of Intermediate and Secondary Education of Dera Ghazi Khan and Multan---University did not consider candidate against available reserved seats on ground that candidate had not given his preference in that respect---Ground taken by University was factually wrong as candidate had submitted two forms, one for special seat and one for open merit and candidate had clearly given preference for seats falling in 'B' category which were reserved for Dera Ghazi Khan and Multan---Even otherwise it was for the University to make requisite arrangement in that behalf when seats for said category were available---University having adopted policy with regard to admission on wrongful assumption that candidate had not given his preference to be considered for said reserved seat, writ of Mandamus was issued to the Authorities to admit candidate in course of Electric Engineering for the relevant year immediately subject to payment of all requisite charges and fees.

Abdul Rehman Lashkani for Petitioner.

Malik Muhammad Rafiq Rajwana and Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 4th February, 2005.

2005 Y L R 1240

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AKRAM and others---Petitioners

versus

THE STATE---Respondent

Criminal Appeals Nos.926 and 1636 of 2003, heard on 24th May, 2004.

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

----Ss.302(b)/149 & 148---Appreciation of evidence---Accused were attributed the role of ineffective firing only---Crime empties recovered from the spot were not sent to Firearm Expert---No crime empty of .30 bore pistol carried by one accused was recovered from the place of occurrence---Prosecution had not supported the impugned judgment---Accused were acquitted in circumstances.

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

----Ss.302(b)/149 & 148---Appreciation of evidence---No specific injury on the person of the deceased was attributed to accused---Time of occurrence had been made uncertain by medical evidence---No weapon of offence was recovered from the accused and therefore, the crime empties recovered from the spot were not sent to the Firearm Expert---Defence plea taken by accused was established on record---Accused was given the benefit of doubt and acquitted in circumstances.

Safdar Hussain Tarar with Mansoor-ur-Rehmand Khan Afridi and Muhammad Sharif Cheema at State expenses for Petitioners.

S.D.R. Qureshi for the State.

Nemo for the Complainant.

Date of hearing: 24th May, 2004.

2005 Y L R 1244

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

Mian ABDUL MONEM ---Appellant

versus

ASIF MUSHTAQ and another---Respondents

R.F.A. No.38 of 2004, heard on 23rd February, 2005.

Civil Procedure Code (V of 1908)---

----S. 151, O.VII, R. 11 & O. IX, R. 11---General Clauses Act (X of 1897), S. 24-A---Application for setting aside of ex parte order by the Trial Court by the appellants and applications for rejection of plaint by the respondents---Counsel of appellant pending applications was elevated to the High Court---Procedure---Held, it was the duty and obligation of the Trial Court to decide the applications of the respondents after notice to the appellant---Trial Court was also obliged to decide the application of the appellant for setting aside the ex parte order either independently or along with the other applications filed by the respondents---No body should be penalized by the act of Court---Failure of Trial Court to follow such procedure would bring the case in the area that the Trial Court had decided the controversy between the parties without judicial application of mind which was not in consonance with settled law.

Mian Irshad Ali v. Government of Pakistan PLD 1975 Lah. 7; Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173; Gouranga Mohan Sikdar v. The Controller of Import and Export PLD 1970 SC 158; Messrs Airport Support Service v. The Airport Manager 1998 SCMR 2268 and Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419 ref.

Noor Muhammad Khan Chandia for Appellant.

M. Iqbal and Tanveer Bashir for Respondent No.1.

Rana Muhammad Afzal for Respondent No.2.

Date of hearing 23rd February, 2005.

2005 Y L R 1248

[Lahore]

BeforeMuhammad Nawaz Bhatti, J

MUHAMMAD ARSHAD alias KALI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 746 of 2002, heard on 8th December, 2004.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence---Circumstantial evidence---Last seen evidence---No corroborating evidence was available in respect of last seen evidence except the complainant---Mere recovery of dead body nearby the house of accused would not prove case and ipso facto recovery of weapon of offence, would not connect accused with commission of offence---Case was of circumstantial evidence and in such cases and in the case of last seen evidence prosecution evidence should have been cogent and confidence inspiring---Motive had to play a fundamental role in circumstantial evidence---Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be awarded or maintained to accused---In a case which was based on circumstantial evidence, no link should be missing and all circumstances must reach to guilt of accused---Once motive was set up, but was not proved then it would be fatal for prosecution---No witness of ocular account was available in the case and nobody claimed that deceased and accused were seen at the place of occurrence or near the place of occurrence---Place of occurrence was situated at 6/7 miles away from the village and three thickly populated villages were situated around, but despite that no evidence was available to the effect that deceased was seen in the vicinity accompanied by accused---Story put forth by prosecution witness, fell to ground, in circumstances---Prosecution had not been able to prove its case against accused beyond shadow of doubt---Prosecution evidence was not such confidence inspiring which could lead to only conclusion that accused was guilty of murder of deceased---Co-accused had already been acquitted by Trial Court on the same evidence---Conviction and sentence awarded to accused by Trial Court, were set aside and accused was ordered to be released.

Maqbool Ahmed alias Koola v. The State 1998 PCr.LJ 72; Ghulam Mustafa alias Ziau v. The State PLD 1991 SC 718 and Ali Khan v. The State 1999 SCMR 955 ref.

Naseer-ud-Din Khan Nayyar for Appellant.

Ms. Aneela Bano for the State.

Date of hearing: 8th December, 2004.

2005 Y L R 1255

[Lahore]

BeforeSyed Zahid Hussain, J

SIKANDAR KHAN and others---Petitioners

versus

TAJ---Respondent

Civil Revision No. 466 of 2000, decided on 17th February, 2005.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XLI, Rr.23 & 25---Specific performance of agreement to sell---Judgment at variance---Remand of case for recording of evidence on one issue---Suit was decreed by Trial Court on the basis of compromise between the parties in an earlier suit---Appellate Court allowed the appeal and dismissed the suit---Validity---Truth about the compromise between the parties referred and recorded by the Court in earlier suit needed to be unveiled---Fate of the suit filed by the plaintiff hinged upon the findings on the issue with regard to the compromise but both the Courts below had variant approach to the evidence on the record---Judgments and decrees passed by both the Courts were set aside and the case was remanded to Trial Court for decision afresh in accordance with law after affording equal opportunity to both the parties of producing evidence in support of their respective pleas---Revision was allowed accordingly.

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 ref.

Ch. Manzoor Hussain Basra for Petitioners.

Ch. Javed Rasool for Respondent.

Date of hearing: 17th February, 2005.

2005 Y L R 1262

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

MUHAMMAD ASIF---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.2178 of 2002 and M.R. No.1-T of 2003, heard on 15th September, 2004.

Penal Code (XLV of 1860)---

----S.302(b)/34---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Prosecution witnesses though had identified accused before Trial Court, but no identification parade, as required under the law, was held in the jail under the supervision of a Magistrate---Police, despite physical remand, could not recover anything from the accused---Accused was arrested four years and six months after occurrence while statements of eye-witnesses were recorded after about one year and four months of his arrest---No evidence was available against accused except identification of accused before Trial Court---Case of two co-accused was totally different---Accused were identified in identification parade held in jail under supervision of Magistrate---Prosecution had failed to prove its case against accused beyond any shadow of doubt rather doubts were floating on the surface of record---Conviction and sentence awarded to accused by Trial Court were set aside extending him benefit of doubt and he was acquitted of charge levelled against him.

Rai Muhammad Zafar Bhatti for Appellant.

Tahir Gondal, A.A.-G. for the State.

Date of hearing: 15th September, 2004.

2005 Y L R 1281

[Lahore]

Before M. Bilal Khan, J

ADNAN ZAFAR---Petitioner

versus

THE STATE---Respondent

Crl. Miscellaneous No.1 of 2004 in Crl. Appeal No.723 of 2004, decided on 4th October, 2004.

Criminal Procedure Code (V of 1898)---

----S.426(2-A)---Penal Code (XLV of 1860), Ss.302/201/34---Juvenile Justice System Ordinance (XXII of 2000), S.18---Suspension of sentence---Statement of eye-witness under S.164, Cr.P.C. was recorded after more than one month of recovery of dead body which prosecution claimed that it was body of person who had mysteriously disappeared---Some doubt was there with regard to the profession of said witness who claimed to be a Rickshaw driver---Evidence of extra judicial confession given by prosecution witness had not been believed by the Court---Recovery of wire, Chappal and a pistol had also been disbelieved by Trial Court---Dead body had not been identified during the course of post-mortem examination and according to Doctor the time which elapsed between the death and post-mortem was 4 to 6 days---Whether prosecution witness had identified the dead body of deceased after 4 to 6 days or not was a question which needed examination during the hearing of main appeal---Likewise question as to what credibility could be given to the statement of solitary witness also needed further examination by way of reappraising his evidence---Accused being a child within the meaning of Juvenile Justice System Ordinance, 2000, his trial had to be conducted separately strictly within the contemplation of said Ordinance---Record had shown that Trial Court, instead of conducting a separate trial, had tried both accused as well as his co-accused jointly and used carbon copies of the record---Such procedure adopted by Trial Court on the face of it, militated against mandatory provisions of Juvenile Justice System Ordinance, 2000 and it had to be seen at the time of hearing of main appeal as to what sanctity could be attached to judgment of Trial Court---Conviction and sentences of accused were suspended and he was admitted to bail.

Muhammad Nawaz v. The State 1996 PCr.LJ 1250 and Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18 ref.

N.A. Shami for Petitioner.

Asad Manzoor Butt for the Complainant.

M. Aslam Malik , on behalf of the State.

2005 Y L R 1285

[Lahore]

Before Nasim Sabir Ch. J

GENERAL MANAGER, ADMINISTRATION WING, NATIONAL BANK OF PAKISTAN, REGIONAL HEADQUARTERS, MULTAN---Appellant

versus

LIAQAT ALI and 6 others ---Respondents

Criminal Appeal No.182 of 1997, heard on 21st May, 2004.

Criminal Procedure Code (V of 1898)---

----S.417(2-A)---Penal Code (XLV of 1860), Ss.380/427/436/457---Appeal against acquittal---No direct or indirect evidence was available on record against accused---Two prosecution witnesses had totally shown their ignorance about alleged incident---Said witnesses were declared hostile and many suggestions were put to them wherein they had categorically denied the involvement of accused in the case and their knowledge of the same---Accused had resiled from alleged extra-judicial confession before the Court---Even otherwise extra judicial confession was very weak type of evidence and had never been considered sufficient for the conviction of any person---Another witness, who was a formal witness, was of no help to prosecution as he conceded that no recovery whatsoever was effected in his presence from accused persons---In view of such type of evidence there was absolutely no chance for conviction of accused---Trial Court, in circumstances, had rightly acquitted accused persons of the charges levelled against them---Contention of complainant that after promulgation of "Offences in Respect of Banks (Special Courts) Ordinance, 1984", case was exclusively triable by a Special Judge, was repelled as it was a baseless effort to raise such question after such a long time---Allegation against accused was that he had stolen cash worth Rs.5 lac and had set on fire Bank premises, which offence by any stretch of imagination was not covered by definition of "offences in bank", but was pure and simple case triable by ordinary Court---No case for interference in acquittal order had been made as no arbitrariness or perversity of reasoning had been found in acquittal order passed by Trial Court---Appeal against acquittal was dismissed, in circumstances.

2002 CLC 1017 (sic) ref.

Ch. Altaf Hussain for Appellant.

Sahibzada Farooq Ali and Mian Arshad Latif for Respondents.

Sh. Junaid Riaz for the State.

Date of hearing: 21st May, 2004.

2005 Y L R 1289

[Lahore]

Before Khawaja Muhammad Sharif, J

SABIR ALI and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.335 and Criminal Revision No.277 of 2002, heard on 3rd June, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Injury on the person of the deceased could not have been caused by the dagger having the dimensions as alleged by the prosecution, but it was possible only with a heavy sharp-edged weapon like Toka, Kassi etc.---Occurrence had taken place in dark hours of the night---No source of light was mentioned either in the F.I.R. or in the site-plan---Identification of accused, thus, was difficult---Matter was not reported at the police station but on the road---Story given in the F.I.R. was neither plausible nor natural---Dagger and the Sotas were not recovered at the instance of the accused, but the same had been brought from their houses by a prosecution witness---Presence of eye-witnesses at the spot at the time of occurrence was doubtful---Benefit of doubt was extended to the accused in circumstances and they were acquitted accordingly.

N.A. Butt for Appellant.

Wallayat Umar Chaudhry for Respondent.

Date of hearing: 3rd June, 2004.

2005 Y L R 1293

[Lahore]

Before Ch. Ijaz Ahmad and Syed Sakhi Hussain Bukhari, JJ

Mst. NUSRAT alias PATHANI---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.5388-B of 2004, decided on 18th August, 2004.

(a) Interpretation of statutes---

----Special law---Special law would exclude general law.

Zia-ur-Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473 ref.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51---Bail, refusal of---One hundred and twenty five grams Heroin was recovered from accused at the spot by police party---Under provisions of S.51(2) of Control of Narcotic Substances Act, 1997, bail would not be normally granted, unless the Court was of the opinion that it was a fit case for grant of bail and against security of substantial amount---In view of quantity of Heroin recovered from accused, case was not fit for grant of bail to accused---Bail application having no merit, was dismissed.

(c) Administration of justice---

----Every case was to be decided on its own peculiar circumstances and facts.

Mst. Fahmida Begum v. The State 1997 SCMR 947; Subhan Khan v. The State 2002 SCMR 1797; Shadi Khan v. The State 2002 PCr.LJ 147; I.G. Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159; Haji Naik Muhammad v. The State 2001 PCr.LJ 1160; Gull Saif v. The State 2002 PCr.LJ 1680; Robina Kausar v. The State 2002 PCr.LJ 746; 1995 SCMR 973; 1995 SCMR 1414; Nazar Hussain's case 2002 PCr.LJ 440 and Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Ch. Muhammad Ashraf for Petitioner.

Muhammad Akbar Tarar, Addl. A.-G. for Respondents along with M. Iqbal, A.S.-I., Police Station, Factory Area, Sargodha with Record.

2005 Y L R 1303

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RIAZ and others---Appellants

versus

THE STATE---Respondent

Crl. Appeals Nos.1215, 1341 and 1258 of 2004, heard on 3rd November, 2004.

Penal Code (XLV of 1860)---

----S.324---Appreciation of evidence---Nobody was named in F.I.R.---Complainant during identification parade identified one of accused persons and other prosecution witness identified other two accused persons---Said prosecution witness during trial did not support prosecution case and was declared hostile and other prosecution witness was not produced by prosecution---Case of complainant was full of contradictions because during trial he had claimed that he had identified all three accused, which claim was totally incorrect because according to proceedings of Magistrate who had held identification parade, complainant had identified only one accused---Complainant did not state before Trial Court about the person who had fired at him---No recovery from any of the accused was made during investigation---Police Officer, who had investigated case and recorded statement of complainant, was also not produced during trial---Occurrence having taken place at the time when it was dark, it was hardly possible for complainant to identify actual culprit---False implication of accused in case, could not be ruled out, when complainant, who was a star witness of the case, had come forward with contradictory versions---Prosecution having failed to prove its case against accused beyond shadow of doubt, conviction and sentence recorded against them by Trial Court, were set aside and accused were acquitted of the charge.

M. Akram Qureshi for Appellants (in Crl. A. No.1215 of 2004).

Ch. Imtiaz Elahi for Appellants (in Crl. A. No.1341 of 2004).

Ch. Imtiaz Ahmad Bajwa for Appellants (in Crl. A. No.1258 of 2004).

Syed Faisal Raza Bokhari for the State.

Date of hearing: 3rd November, 2004.

2005 Y L R 1313

[Lahore]

Before M. Bilal Khan, J

UMAR HAYAT SAJJAD---Petitioner

versus

S.H.O. POLICE STATION MOCHI GATE, LAHORE and 5 others---Respondents

Writ Petition No.17686 of 2004, heard on 3rd November, 2004.

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

----Ss.154 & 200---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of a separate F.I.R.---Earlier widow of deceased got registered F.I.R. under S.302, P.P.C. for murder of her husband against two sons of the deceased---Petitioner who was a real brother of deceased, had entirely different story of murder of deceased to tell which according to him led to murder of his brother---Petitioner in that connection had filed a detailed application to S.H.O. praying therein for registration of separate case---Comparison of two stories, one narrated in the F.I.R. by widow of deceased and other as contained in complaint sought to be registered by complainant/brother of deceased, had shown that those were diametrically opposed to each other---Merely associating petitioner in investigative process could not serve the purpose for which F.I.R. was recorded---Purpose of recording F.I.R., apart from setting criminal law into motion, was also to provide a sound basis for carrying out investigation in the right direction---Since complaint of petitioner contained an independent grievance, allowing petition filed by petitioner, S.H.O. was directed to immediately register F.I.R. on the complaint of petitioner---After registration of separate F.I.R. investigation would immediately be taken over by Provincial Investigation Wing and Incharge of said Wing would entrust same to an honest and upright police officer not below the rank of D.S.P.

Muhammad Ishaque v. S.S.P. Jaffarabad and another PLJ 1998 Quetta-1; Imtiaz Ali v. District Police Officer and others 2004 PCr.LJ 470; Mst. Pari v. S.H.O., Police Station 'A' Section, Sukkur and another NLR 1997 Criminal 655 and Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 ref.

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

----S. 154---Registration of F.I.R.---Purpose ---Purpose of recording F.I.R., apart from setting criminal law into motion, was also to provide a sound basis for carrying out investigation in the right direction.

Ghulam Sabir for Petitioner.

Fazal-e-Miran Chouhan, Addl. Advocate-General for the State.

Ch. Ghulam Murtaza for Respondents Nos.4 and 5.

Kashif Khalil Inspector/S.H.O. with Zulfiqar Ali, S.-I./I.O., Police Station, Mochi Gate, Lahore.

Date of hearing: 3rd November, 2004.

2005 Y L R 1316

[Lahore]

Before Nasim Sabir Ch. J

ZULIFQAR ALI---Petitioner

versus

ARSHAD MAHMOOD, MAGISTRATE 1ST CLASS, KABIRWALA and 2 others---Respondents

Writ Petitions Nos.12261 and 12645 and C.M. No.2958 of 2000, decided on 15th January, 2004.

Constitution of Pakistan (1973)---

----Art.199---Criminal Procedure Code (V of 1898), Ss.190 & 195---Penal Code (XLV of 1860), Ss.420/467/468/471/193---Constitutional petition---Quashing of order and F.I.R.--- Petitioner who was lessee of land in dispute, on basis of forged and false agreement of sale, filed suit for specific performance of agreement giving wrong address of respondent and obtained fraudulent ex parte decree in his favour---Respondent on coming to know said fraud, filed application under S.12(2), C.P.C. for setting aside said ex parte decree---Magistrate concerned after enquiry and hearing both parties found that agreement to sell was forged document and directed police to proceed further in case in accordance with law---Police on application of respondent had registered F.I.R. against petitioner under Ss.420/ 467/ 468/ 471/ 193, P.P.C.---Petitioner in his Constitutional petition had sought setting aside order of Magistrate and quashing of F.I.R. filed against him---Validity---Magistrate passed order in the case in accordance with law after scrutiny of facts and Magistrate had only forwarded file to S.H.O. to act in accordance with law---S.H.O. to whom case was forwarded had to proceed with the matter strictly adhering to well-established principles of law---S.H.O. on direction of Magistrate considered case and correctly registered F.I.R. against petitioner which was pending investigation---Provisions of S.195(1)(c), Cr.P.C. were not applicable as forged sale agreement was prepared earlier than institution of case wherein same was used and proceedings were taken by Magistrate---Order passed by Magistrate neither being arbitrary nor perverse, could not be set aside and F.I.R. lodged against petitioner also could not be quashed.

PLD 1992 Lah. 178 ref.

Bashir Ahmed Chaudhry for Petitioner.

Mian Arshad Latif for Respondents.

Date of hearing: 12th December, 2003.

2005 Y L R 1320

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL RASHID and others---Appellants

versus

THE STATE---Respondent

Crl. Appeal No.105 of 2003, heard on 28th September, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Occurrence being unwitnessed nobody was named in the F.I.R.---Two prosecution witnesses who appeared against accused were first cousins of deceased---Alleged judicial confession, being joint, was not admissible in evidence---No person from locality had been cited or produced as recovery witness which was clear violation of S.103, Cr.P.C.---No direct evidence was in the case---House of deceased was situated in thickly-populated area and adjacent to his house there was house of his brother---Had there been breaking of wall of the house where occurrence had taken place, at least somebody must have heard sound of such breaking---Prosecution story in F.I.R. was not that the household articles were looted and the wall of house was also broken, but story in F.I.R. was that the wall of the house was broken and household articles were scattered in the house---Case was of circumstantial evidence and evidence produced by prosecution was not of such a type whereby conviction and sentence awarded to accused by Trial Court could be maintained---Granting benefit of doubt, conviction and sentence awarded to accused by Trial Court, were set aside and they were released from jail.

2001 PCr.LJ 1877; 1995 SCMR 1350 and 1996 SCMR 188 ref.

Mazhar Iqbal Sidhu for Appellants.

Abdul Qayyum Anjam for Respondent.

Date of hearing: 28th September, 2004.

2005 Y L R 1324

[Lahore]

Before Ch. Ijaz Ahmad, J

DIN MUHAMMAD through Legal Heirs and others---Petitioners

versus

MUHAMMAD ALI and others---Respondents

Civil Revision No.496 of 2005, decided on 18th March, 2005.

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

----S.96---Jurisdiction of First Appellate Court---Scope---Such Court could re-appraise evidence while deciding appeal.

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

----Ss.42 & 44---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Art.120---Suit for declaration challenging the vires of inheritance mutation---Limitation---Mutation was sanctioned on 9-6-1952---Suit was filed on 2-1-1994---Suit was time-barred.

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

----Ss.42 & 44---Specific Relief Act (I of 1877), S.42---Suit for declaration challenging the vires of inheritance mutation to be fraudulent---Plaintiff's claim qua disputed land based on similarity of names of two women was that mutation sanctioned in the name of predecessor-in-interest of defendant was in fact their predecessor-in-interest---Courts below concurrently dismissed suit---Validity---Defendant had sold land after inheriting the same---Plaintiffs having joint Khata with defendant had filed pre-emption suit against such sale---Courts below on basis of oral and documentary evidence on record had found disputed mutation to be genuine---No illegality or infirmity was found in such findings---High Court dismissed revision petition in circumstances.

Haji Ghulam Rasool's case PLD 1971 SC 376; Mian Ghulam Fareed's case 1993 SCMR 643 and Mst. Nasreen Bibi's case 1990 SCMR400 rel.

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

----Art.129(e)---Official acts---Presumption would be that such acts have been properly and regularly performed.

Muhammad Sadiq's case 1990 CLC 533 fol.

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

----S.115---Concurrent findings of facts by Courts below---Interference in such findings by High Court---Scope---High Court had very limited jurisdiction to disturb such findings, unless and until same were result of misreading and non-reading of record or violative of the laid down principles.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26; Board of Intermediate and Secondary Education Lahore v. Syed Khalid Mehmood 1985 CLC 657 and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625 rel.

Ch. Abdur Razzaq for Petitioner.

2005 Y L R 1329

[Lahore]

Before Tanvir Bashir Ansari, J

MUKHTAR KHAN---Petitioner

versus

S.H.O., POLICE STATION WARIS KHAN and another---Respondents

Writ Petition No.3475 of 2002, decided on 19th February, 2004.

Penal Code (XLV of 1860)---

----Ss.409, 420, 468 & 471---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.8--- Punjab Anti-Corruption Establishment Rules, 1985, R.8---Criminal Procedure Code (V of 1898), S.154---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Petitioner/accused had sought quashing of F.I.R. registered against him mainly on the ground that S.H.O. had no jurisdiction in the matter and that entire proceedings commenced by S.H.O. were coram non judice---Petitioner placing reliance upon R.8 of Punjab Anti-Corruption Establishment Rules, 1985 had contended that petitioner was a public servant and registration of case in respect of Scheduled offence, exclusively fell within the jurisdiction of Anti-Corruption Establishment and that Local Police did not figure anywhere in the said Scheme---Validity---Contention of petitioner was misconceived in view of the fact that registration of cases at the ordinary Police Station, even in case of Scheduled offence, was not illegal as S.8 of West Pakistan Anti-Corruption Establishment Ordinance, 1961 had provided that provisions of said Ordinance were in addition to and not in derogation of any other law for the time being in force---All provisions of Criminal Procedure Code, 1898 were kept intact---Rules 6, 7 & 8 of Punjab Anti-Corruption Establishment Rules, 1985 could not be interpreted to have an overriding effect upon provisions of S.154, Cr.P.C.---Punjab Anti-Corruption Establishment Rules, 1985 could not supersede, superimpose or be construed in excess to all parameters laid down in S.8 of West Pakistan Anti-Corruption Establishment Ordinance, 1961---Provisions of Rr.6, 7 & 8 of Punjab Anti-Corruption Establishment Rules, 1985 being subordinate Legislation, could not control or override S.8 of West Pakistan Anti-Corruption Establishment Ordinance, 1961 or S.154, Cr.P.C.---In absence of any jurisdictional defect in lodging the F.I.R. against petitioner, proceedings could not be quashed.

Muhammad Sharif v. S.H.O. PLD 1999 Lah. 692; Muhammad Afzal v. Muhammad Siddiq 1992 MLD 311; Aasia v. The State PLD 1996 Lah. 45; Muhammad Iqbal, A.S.-I. v. S.H.O. 2000 PCr.LJ 1924; Mirza Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109 and Shafqat Hussain and others v. Malik Sarfraz, Inspector Circle Officer ACE Hafizabad and another 2000 PCr.LJ 1995 ref.

Syed Hamid Ali Bukhari for Petitioner.

Tanvir Iqbal Khan, Assistant Advocate-General for Respondents.

Date of hearing: 19th February, 2004.

2005 Y L R 1331

[Lahore]

Before Ijaz Ahmad Chaudhry and M. A. Shahid Siddiqui, JJ

THE STATE---Appellant

versus

NAZIR AHMAD and 16 others---Respondents

Crl. Appeal No.86 of 1992, heard on 16th December, 2004.

Criminal Procedure Code (V of 1898)---

----S.417---Penal Code (XLV of 1860), Ss.302, 307, 382, 148 & 149---Appeal against acquittal---Principles---Two accused persons had also received fire-arm injuries---Trial Court had rightly found that even an illegal occupant in continued peaceful possession of land had a right to defend his possession against the true owner if some unlawful act was made to eject him therefrom---All prosecution witnesses were related inter se and with the deceased---Prosecution witnesses had admitted that they were not residents of the locality where alleged occurrence had taken place---Investigating Officer did not record statements of any of residents of the locality although according to him there were "Bheries" all around the place of occurrence---One of prosecution witnesses though was not related to the complainant party, but he too was resident of a place 10 miles away from the place of occurrence and he failed to give any plausible explanation for his presence at the spot at the relevant time---Presence of injured witnesses at the spot, no doubt was not at all doubtful and the occurrence, time and place of occurrence was admitted, but they all were interested witnesses and their statements could not be accepted as a gospel truth---Defence version that complainant party was aggressor, was borne out from evidence on record---Judgment of acquittal recorded by Trial Court, in circumstances could not be said to be the result of misreading or non-reading of any material evidence on record causing any miscarriage of justice---Accused persons could not be convicted and sentenced merely for the reason that they were involved in a heinous offence and three persons from complainant party were murdered---Appeal against acquittal had distinctive features and approach to deal with appeal against conviction was distinguishable from appeal against acquittal because presumption of double innocence was attached in latter case---Order of acquittal could only be interfered with when it was found on the face of it as capricious, perverse, arbitrary or foolish in nature, which were lacking in the present case---No improbability or infirmity in impugned judgment of acquittal recorded by Trial Court existed which being based on sound and cogent reasons did not warrant any interference by High Court---Judgment of acquittal was maintained, in circumstances.

Inayat Ullah Butt v. Muhammad Javed and others PLD 2003 SC 562 ref.

Ch. Muhammad Masud Sabir for the State.

Sahibzada Farooq Ali for Respondents.

Date of hearing: 16th December, 2004.

2005 Y L R 1339

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD BOOTA---Petitioner

versus

THE STATE---Respondent